         09-3719-cv
         Cherif v. Department of Homeland Security (District Counsel)


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 24 th day of May, two thousand and ten.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                RICHARD C. WESLEY,
 8                         Circuit Judges,
 9                PAUL A. CROTTY,
10                         District Judge. *
11
12
13       DR. SOULEYMANE CHERIF,
14
15                                       Plaintiff-Appellant,
16
17                       -v.-                                                   09-3719-cv
18
19       DEPARTMENT OF HOMELAND SECURITY
20       (District Counsel), and BUREAU OF
21       CITIZENSHIP AND IMMIGRATION SERVICES,
22       VERMONT SERVICE CENTER (Service
23       Counsel),
24
25                                       Defendants-Appellees. **
26
27
28

                 *
                 The Honorable Paul A. Crotty, United States District Court for the
         Southern District of New York, sitting by designation.

                 **
                 The Clerk of the Court is respectfully directed to amend the official
         caption in this action to conform to the caption in this summary order.
 1   FOR APPELLANT:              DR. SOULEYMANE CHERIF, pro se,
 2                               New York, NY.
 3
 4   FOR APPELLEES:              SUE CHEN, Special Assistant
 5                               United States Attorney (Benjamin
 6                               H. Torrance, Assistant United
 7                               States Attorney, on the brief),
 8                               for Preet Bharara, United States
 9                               Attorney for the Southern
10                               District of New York, New York,
11                               NY.
12
13        Appeal from the United States District Court for the
14   Southern District of New York (Jones, J.).
15
16       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

17   AND DECREED that the judgment of the district court is

18   AFFIRMED.

19       Plaintiff, a native and citizen of Cote d’Ivoire who

20   proceeded pro se throughout these proceedings, appeals the

21   June 5, 2009 decision of the district court dismissing his

22   complaint.   We presume the parties’ familiarity with the

23   facts, the procedural history, and the issues in the appeal.

24       Plaintiff commenced this action seeking an order

25   directing the government to reopen the proceedings that led

26   to the denial of his visa application.       In a May 3, 2006

27   Report and Recommendation, a magistrate judge recommended

28   that the district court transfer the matter to this Court

29   pursuant to 28 U.S.C. § 1631.       By order dated June 5, 2009,

30   however, the district court declined that course and instead

                                     2
1    dismissed the complaint.   Cherif v. Dep’t of Homeland Sec.,

2    No. 04 Civ. 5727, 2009 WL 1619903 (S.D.N.Y. June 5, 2009).

3    In declining to transfer, the court held that the “REAL ID

4    Act . . . requires such transfers [to the Court of Appeals]

5    only where the action seeks review of a final order of

6    removal,” but that “Plaintiff sought only to compel the

7    Associate Commissioner to reopen the decision revoking the

8    approval of his visa petition.”   Id. at *2.   The district

9    court reasoned further that, even if the complaint was

10   construed as a challenge to a subsequent order that he be

11   removed from the country, this Court would lack jurisdiction

12   over any challenge to that order because plaintiff failed to

13   exhaust his administrative remedies before the Board of

14   Immigration Appeals.   See id. at *3 n.3.

15       Finally, in dismissing the action, the district court

16   found the complaint insufficient, noting that although it

17   sought an order compelling the agency to reopen the visa

18   petition proceedings, both the complaint and the agency’s

19   records showed that the motion to reopen had in fact been

20   granted.   The court ruled that the fact that the agency had,

21   after reopening the proceedings, decided to adhere to its

22   original decision afforded plaintiff no grounds for relief.


                                   3
1        We review de novo the district court’s legal

2    conclusions regarding the legal sufficiency of plaintiff’s

3    complaint, see Ajlani v. Chertoff, 545 F.3d 229, 233 (2d

4    Cir. 2009), and we review for abuse of discretion the

5    district court’s decision declining to transfer the action

6    to this Court pursuant to 28 U.S.C. § 1631, see Paul v. INS,

7    348 F.3d 43, 46 (2d Cir. 2003).     In doing so, we are mindful

8    of plaintiff’s pro se status and therefore liberally

9    construe his pleadings and submissions.     Harris v. Mills,

10   572 F.3d 66, 72 (2d Cir. 2009).     Nevertheless, having

11   conducted a thorough and independent review of the record,

12   as well as considered all of plaintiff’s arguments on this

13   appeal, we affirm for reasons substantially similar to those

14   stated by the district court.

15       Accordingly, the judgment of the district court is

16   AFFIRMED.
17
18                              FOR THE COURT:
19                              Catherine O’Hagan Wolfe, Clerk
20
21




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