United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING RESPONDENTS' MOTION TO
Victoria A. Roberts United States District Judge
Saposnik filed a visa petition on behalf of her son Yosef
Shaposhnik. She died while the application was pending.
Unaware of her death, the United States Citizenship and
Immigration Services (“USCIS”) approved her visa
petition. Izya Berman, Ester's other son, filed a
substitute affidavit of support along with his mother's
death certificate to continue her visa petition. Once
informed of her death, the USCIS automatically revoked
Ester's petition. Berman brings this suit on behalf of
his brother Yosef to continue efforts to get him an immigrant
Government claims this Court lacks subject matter
jurisdiction. The Court agrees and GRANTS
Respondents' motion to dismiss.
January 18, 2005, Ester Saposnik (“Ester”) filed
a Form I-130 visa petition, on behalf of her son Yosef
Shaposhnik (“Yosef”) - who is a resident and
citizen of Israel. On November 26, 2007, Ester died, and
Yosef did not inform the USCIS of her death. In February
2010, the USCIS approved the visa petition. In September
2015, Ester's other son Izya Berman
(“Berman”) filed a Form I-864 substitute
affidavit of support and Ester's death certificate with
the State Department's National Visa Center
(“NVC”). The NVC notified the USCIS of
Ester's death. The USCIS then automatically revoked the
I-130 petition under the authority of 8 C.F.R.
205.1(a)(3)(i)(C) because of Ester's death. On July 8,
2016, Berman filed this action against Respondents - Jeh
Johnson, Secretary of Homeland Security; Leon Rodriguez,
Director of USCIS; and, Kathy Baran, Director of the USCIS
California Service Center. He alleges that the Government
abused its discretion when it automatically revoked
Yosef's visa petition.
STANDARD OF REVIEW
bring their motion under Fed.R.Civ.P. 12(b)(1), claiming that
the Court lacks subject matter jurisdiction. The burden is on
Berman to prove the Court has jurisdiction. Moir v.
Greater Cleveland Reg'l Transit Auth., 895 F.2d 266,
269 (6th Cir. 1990). To defeat a motion to dismiss for lack
of subject matter jurisdiction, “the plaintiff must
show that the complaint ‘alleges a claim under federal
law, and that the claim is substantial.'” Mich.
S. R.R. Co. v. Branch & St. Joseph Counties Rail Users
Ass'n, Inc., 287 F.3d 568, 573 (6th Cir. 2002)
(quoting Musson Theatrical, Inc. v. Fed. Express
Corp., 89 F.3d 1244, 1248 (6th Cir. 1996)).
addition, in order for a federal court to exercise
jurisdiction, a petitioner must have standing to sue.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992) (“[T]he core component of standing is an
essential and unchanging part of the case-or-controversy
requirement of Article III.”)). The “irreducible
constitutional minimum” of standing requires Berman to
establish three elements: (1) “an injury in fact -- -an
invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical”; (2) “a causal
connection between the injury and the conduct complained of,
” often referred to as traceability; and, (3) “it
must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision, ”
known as redressability. Lujan, 504 U.S. at 560-61
(internal citations and quotations omitted).
12(b)(1) motion will be granted if “taking as true all
facts alleged by the plaintiff, the court is without subject
matter jurisdiction to hear the claim.” Id.
argue that this Court lacks subject matter jurisdiction
because the Secretary's decision to revoke an approved
visa is discretionary, not subject to judicial review, and
Berman lacks standing.
visa petition was revoked pursuant to 8 C.F.R. §
205.1(a)(3)(i)(C). § 205.1(a)(3)(i)(C) says that
“the approval of a petition ... is revoked ... upon the
death of the petitioner, ” if the death occurs before
the beneficiary comes to the United States. Here, Ester died
before USCIS approved her visa petition and before Yosef came
to the United States.
Mehanna v. U.S. Citizenship and Immigration
Services, 677 F.3d 312, 313 (6th Cir. 2012), the Sixth
Circuit held that the decision to revoke an approved visa
petition under 8 U.S.C. § 1155 is a decision within the
discretion of the Secretary such ...