Akimenko v. Mayorkas

Background

Andrey Nikolaevich Akimenko sued Alejandro Mayorkas, Tracy Renaud, and John Kramar. He sought an order under the Administrative Procedure Act and the Mandamus Act requiring officials to adjudicate his Form I-485 application to adjust his status to that of a lawful permanent resident. Akimenko alleged that he had submitted the application, attended three interviews, responded to a request for evidence, and experienced an unreasonable delay.

USCIS filed the application after Akimenko’s Form I-140 immigrant-worker petition, filed on his behalf by VAAS, had been approved. On October 5, 2021, USCIS revoked approval of the I-140 petition. On October 7, 2021, USCIS denied the I-485 application because the revoked petition could no longer support an immigrant visa or adjustment of status.

Motion and arguments

The defendants moved under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal for lack of subject-matter jurisdiction. They argued that the case was moot because USCIS had already adjudicated the I-485 application. Mootness means that no live dispute remains and that the court cannot provide effective relief.

Akimenko opposed the motion, arguing that the defendants had never actually adjudicated his I-485 application and had instead made it invalid by revoking the I-140 petition. He also argued that the revocation was illegal, unreasonable, groundless, and motivated by revenge or persecution. The court explained that the complaint challenged only the alleged delay in deciding the I-485 application; it did not challenge the revocation. A party may not add a new claim through an opposition brief.

Ruling

The court held that USCIS had adjudicated the I-485 application by denying it on October 7, 2021. Because no outstanding duty remained for the court to compel and Akimenko could obtain no further relief under the Mandamus Act concerning that application, the case was moot. Judge Donna M. Ryu granted the defendants’ motion to dismiss and dismissed Akimenko’s claim that USCIS unreasonably delayed acting on the I-485 application as moot.

The court stated that Akimenko could file an amended complaint by June 15, 2022, if he could state a viable claim challenging the I-140 revocation. If he did not amend by that date, the court stated that it would enter judgment for the defendants and close the case.