9th Circuit affirms dismissal of Bangladeshi widower’s suit

The U.S. Court of Appeals for the Ninth Circuit affirmed yesterday the U.S. District Court for the NMI’s dismissal of a case of a Bangladeshi widower of a U.S. citizen wife who is suing to prevent his deportation.

According to the Ninth Circuit ruling issued by Chief Judge Sidney R. Thomas and Judges Consuelo M. Callahan and Morgan Christen, nowhere in the record or the briefing does Obaydul Hoque Bhuiyan claim any intent to travel to the United States.

The Ninth Circuit judges said the U.S. government has affirmed that, as a result of the reopening of Bhuiyan’s case and the grant of humanitarian parole, he no longer has any unlawful accrued presence time.

“Thus, any injury he might suffer as a result of any prior potentially accrued unlawful presence time does not constitute an injury sufficient to support the existence of a case or controversy,” the judges said.

Chief Judge Ramona V. Manglona dismissed Bhuiyan’s entire lawsuit in July 2017 for lack of jurisdiction.

Bhuiyan’s lawsuit was originally filed in 2014.

In her order granting the U.S. government’s motion to dismiss the case, Manglona said Bhuiyan fails to point to any decision or order resulting in a finding of unlawful presence that has triggered a ground of inadmissibility that the court can review and provide any relief.

Manglona also determined that the issue of accrual of unlawful presence did not trigger until Bhuiyan left the CNMI; it remained a non-issue from the time he initiated this court action up until his departure.

Bhuiyan departed the CNMI on Nov. 3, 2015, while still holding a humanitarian parole status.

Bhuiyan then appealed, asking the Ninth Circuit to reverse Manglona’s dismissal of his lawsuit.

In affirming Manglona’s decision, the Ninth Circuit judges said the District Court lacked jurisdiction over Bhuiyan’s Federal Tort Claims Act claim because he failed to identify similar circumstances giving rise to liability under state tort law.

The judges said the FTCA waives the U.S. government’s sovereign immunity “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

The U.S. government argued that Vermont law applied, while Bhuiyan contended that the law of the CNMI applies.

The Ninth Circuit judges ruled that they need not decide which law applies, because Bhuiyan failed to demonstrate that either CNMI or Vermont law would hold a private action liable in any similar situation.

The judges said Bhuiyan relies on Vermont law involving general negligence principles, and a CNMI case involving an employer’s responsibility to submit documents to the government.

The judges said none of the cases are sufficiently analogous.

The judges said Bhuiyan cites out-of-jurisdiction authority, but that “reliance on out-of-jurisdiction cases do not suffice, per the plain language of the statute.”

Further, the judges said, as Manglona noted, there is, as a general matter, “no private analogue to governmental withdrawal of immigration benefits.”

The judges also ruled that the District Court lacked jurisdiction over Bhuiyan’s declaratory judgment action because his complaint died not articulate a sufficiently certain injury in fact.

According to court records, Bhuiyan commenced his lawsuit in June 2014. He seeks damages for negligence, a declaration that his presence in the CNMI was lawful from Nov. 28, 2009, through Nov. 3, 2015.

He also seeks an injunction barring the U.S. government and its agents from asserting in any context that he had accrued unlawful presence during that time.

According to court records, Bhuiyan first came to the CNMI from Bangladesh in 1996, and has resided in the CNMI continuously since then.

On March 5, 2004, Bhuiyan married Ana Atalig, also known as Ana Atalig Torres, a U.S. citizen. Less than three years later, she died.

After his marriage, Bhuiyan applied for and was issued an immediate relative permit by the CNMI government.

In March 2013, plaintiff was issued a notice to appear for removal proceedings, on the ground that he was “an immigrant not in possession of a valid unexpired immigrant visa.”

Bhuiyan then filed a court action in federal court.