United States District Court, D. Colorado
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendants' Motion
to Dismiss for Lack of Subject Matter Jurisdiction
[#13] (the “Motion”). Plaintiff has
not filed a Response to the Motion [#13]. The Court has
reviewed the Motion, the case file, and the applicable law,
and is sufficiently advised in the premises. For the reasons
set forth below, the Motion [#13] is
April 25, 2019, Plaintiff filed a Writ of Mandamus (the
“Writ”) [#4] seeking to compel the United States
Citizenship and Immigration Service (“USCIS”) to
complete his I-485 Application to Register Permanent
Residence or Adjust Status (“Application”).
Writ [#4] ¶¶ 2, 24(b). According to
Plaintiff, he was born in Iran, entered the United States in
2012 with a valid B1 visa, married a U.S. citizen, and filed
the Application in 2017. Id. ¶¶ 11-12, 14.
Plaintiff states that “[s]ince then, there has been no
response to the I-485, [so] Plaintiff remains unreasonably in
limbo regarding his status.” Id. ¶ 17.
contend that USCIS denied his Application in June of 2019
(approximately two months after the filing of this lawsuit),
thereby making this action moot. Motion [#13] at 3.
For that reason, Defendants argue that the Court lacks
subject matter jurisdiction and therefore they move to
dismiss pursuant to Fed.R.Civ.P. 12(b)(1). Id. at 1.
Standard of Review
purpose of a motion to dismiss pursuant to Rule 12(b)(1) is
to test whether the Court has jurisdiction to properly hear
the case before it. Because “federal courts are courts
of limited jurisdiction, ” the Court must have a
statutory basis to exercise its jurisdiction. Montoya v.
Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P.
12(b)(1). Statutes conferring subject-matter jurisdiction on
federal courts are to be strictly construed. F & S
Constr. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir.
1964). “The burden of establishing subject-matter
jurisdiction is on the party asserting jurisdiction.”
Id. (citing Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994)).
motion to dismiss pursuant to Rule 12(b)(1) may take two
forms: facial attack or factual attack. Holt, 46
F.3d at 1002. When reviewing a facial attack on a complaint,
the Court accepts the allegations of the complaint as true.
Id. By contrast, when reviewing a factual attack on
a complaint, the Court “may not presume the
truthfulness of the complaint's factual
allegations.” Id. at 1003. With a factual
attack, the moving party challenges the facts upon which
subject-matter jurisdiction depends. Id. Therefore,
the Court must make its own findings of fact. Id. In
order to make its findings regarding disputed jurisdictional
facts, the Court “has wide discretion to allow
affidavits, other documents, and a limited evidentiary
hearing.” Id. (citing Ohio Nat'l Life
Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.
1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5
(10th Cir. 1987)). The Court's reliance on
“evidence outside the pleadings” to make findings
concerning purely jurisdictional facts does not convert a
motion to dismiss pursuant to Rule 12(b)(1) into a motion for
summary judgment pursuant to Rule 56. Id.
III of the Constitution limits federal courts to deciding
‘Cases' and ‘Controversies,' and an
actual controversy must exist not only at the time the
complaint is filed, but through all stages of the
litigation.” Kansas by & through Kansas
Dep't for Children & Families v. SourceAmerica,
874 F.3d 1226, 1236 (10th Cir. 2017) (quoting Kingdomware
Techs., Inc. v. United States, 136 S.Ct. 1969, 1975
(2016) (internal quotation marks omitted)). “In
considering mootness, we ask whether granting a present
determination of the issues offered will have some effect in
the real world.” SourceAmerica, 874 F.3d at
1236 (quoting Fleming v. Gutierrez, 785 F.3d 442,
444-45 (10th Cir. 2015) (internal quotation marks omitted)).
“A case is moot . . . where the relief sought can no
longer be given or is no longer needed.” Id.
(internal quotation marks omitted).
the case is moot because there is not an actual controversy
and therefore, there is no relief for the Court to provide.
Plaintiff asks that the Court compel Defendants to act on the
Application. Writ [#4] ¶ 24(a). Yet, USCIS has
already denied the Application. Motion [#13] Ex. 1
at 6. In its denial, USCIS stated that Plaintiff's
alleged wife, Magali Rodriguez, withdrew a Petition for Alien
Relative form that she had submitted on Plaintiff's
behalf. Id. Moreover, she informed USCIS that
Plaintiff offered to pay her “$10, 000 to enter into a
fraudulent marriage [to] . . . circumvent immigration
laws.” Id. The denial explained that because
Plaintiff testified that the information in the Application
was true and correct, while also stating that he was married
to Rodriguez, he had misrepresented a material fact.
Id. at 6-7. In consequence, USCIS denied the
Application. Id. Irrespective of Plaintiff's
marital status, the Court cannot compel Defendants to act
because USCIS has already done so. See Ahmadabadi v.
Lambrecht, No. 15-cv-01459-RM-MEH, 2015 WL 7075669 (D.
Colo. Nov. 12, 2015) (Plaintiff's petition for mandamus
to compel USCIS to act was rendered moot because the agency
had already done so). Just as Defendants note, “now
that USCIS has acted on Plaintiff's I-485 application,
the Court lacks jurisdiction to order USCIS to act [on] an
application that it has already adjudicated.”
Motion [#13] at 4. Finally, the Court notes that
Plaintiff has filed no response attempting to show that
dismissal of this action is inappropriate.
the Court finds that Writ [#4] is moot. Plaintiff's claim
is therefore dismissed without prejudice.
See Lewis v. Burger King, 398 Fed.Appx. 323, 325 n.3
(10th Cir. 2010) (stating that dismissal due to mootness must
be without prejudice).
on the foregoing, IT IS HEREBY ORDERED that
the Motion [#13] is GRANTED and that the
case is DISMISSED without prejudice. The
Clerk of ...