United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on review of defendant's
Motion to Dismiss for Mootness (Doc. #21) filed on October
25, 2017. No response has been filed, and the time to respond
has expired. The government also indicates that attempts to
contact counsel for plaintiff were unsuccessful. For the
reasons stated below, the Court finds that the Complaint must
be dismissed as moot.
13, 2017, plaintiff, a native and citizen of Haiti, filed his
Complaint to compel defendants to adjudicate his Form I-140
Petition (Petition) that was filed with the United States
Citizenship and Immigration Services (CIS) on December 20,
2010, seeking a classification as an alien of exceptional
ability, and in the national interest, under 8 U.S.C. §
1153(b)(2). Plaintiff seeks relief pursuant to the
Administrative Procedures Act, 5 U.S.C. § 701, et seq.,
and by declaratory judgment, 28 U.S.C. § 2201 and §
2202. After receipt of plaintiff's Petition, in 2011, CIS
issued a Request for Evidence for additional documentation.
Plaintiff responded, and CIS issued a second Request for
Evidence. Plaintiff again responded. Despite this compliance,
plaintiff alleges that his Petition remains pending, and has
been unreasonably delayed.
August 3, 2017, CIS issued a Notice of Intent to Deny
plaintiff's Petition because CIS concluded that plaintiff
had not established that he qualified as an alien of
exceptional ability or that he qualified for a national
interest waiver of the job offer requirement. (Doc. #22-1,
Exh. A.) Plaintiff was provided time to submit any additional
information, but plaintiff did not submit any response.
September 25, 2017, CIS issued its Decision (Doc. #22-2, Exh.
B) denying the Form I-140 Petition for Alien Worker. The
Decision provides that plaintiff could appeal to the
Administrative Appeals Office, or file a motion to reopen or
reconsider. There is no indication that plaintiff exercised
either one of these options within the time period provided.
argue that the issuance of a Decision renders the lawsuit
moot, and that the case should be dismissed pursuant to
Fed.R.Civ.P. 12(b)(1) on this basis. The Court agrees.
Motion to Dismiss
case, plaintiff does not seek review of the denial of his
application, which occurred after the filing of his
Complaint. Rather, plaintiff is seeking to compel the agency
to process his visa application, which remained undetermined
at the time the Complaint was filed. The failure to follow
regulations, and the failure to process a visa application
altogether, is reviewable as a non-discretionary function.
Kurapati v. U.S. Bureau of Citizenship & Immigration
Servs., 775 F.3d 1255, 1262 (11th Cir. 2014);
Bonillo v. Sec'y, U.S. Dep't of Homeland
Sec., 497 Fed.Appx. 913, 916 (11th Cir.
2012). For this reason, and because visas are to
be considered in the priority order from the date an
application is accepted for processing, see 8 C.F.R.
§ 204.5(d), the Court finds it had subject-matter
jurisdiction when the Complaint was filed.
have changed however. Defendants have now made a decision on
the application, and there remains nothing for the Court to
compel regarding the processing of the application.
III of the United States Constitution limits the jurisdiction
of the Court to cases or controversies that are justiciable.
Al Najjar v. Ashcroft, 273 F.3d 1330, 1335 (11th
Cir. 2001). A case becomes moot, and ceases to be a case or
controversy, when it no longer presents a live controversy
with respect to which the Court can give meaningful relief.
United States v. Al-Arian, 514 F.3d 1184, 1189 (11th
Cir. 2008). “[E]ven a once-justiciable case becomes
moot and must be dismissed ‘when the issues presented
are no longer ‘live' or the parties lack a legally
cognizable interest in the outcome.'”
Flanigan's Enters., Inc. of Ga. v. City of Sandy
Springs, Ga., 868 F.3d 1248, 1255 (11th Cir. 2017)
(quoting Powell v. McCormack, 395 U.S. 486, 496
the Petition has now been decided, there exists no case or
controversy in which the court can give meaningful relief.
The case will be dismissed as moot.