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

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER

RULI NGS BY SU MMA RY ORD ER DO NOT HAVE PRE CED ENT IAL EF FEC T . C ITA TIO N T O ASU MMARY ORD ER FIL ED ON OR AFT ER JANUARY 1, 2007, IS PERMIT TED AND IS GOVERNED BY F EDE RAL RULE OF A PPE LLA TE P ROC EDU RE 32.1 AND TH IS COU RT ’ S L OCA L RULE 32.1.1. W HEN CIT ING A SUMMAR Y ORD ER IN A DOC UME NT FIL ED WIT H THI S C OUR T , A PAR TY MUS T C ITE EI THE R T HE F EDE RAL A PPE NDI X O R AN ELE CTR ONI C D ATABAS E ( WIT H T HE NOT ATI ON “ SUMMAR Y O RDE R ”). APA RTY CI TIN G ASU MMARY ORD ER MUS T S ERV E ACO PY OF IT ON ANY PA RTY NO T R EPR ESE NTE D B Y C OUN SEL . 

### 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 day of May, two thousand and ten. th 

### 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 27 282 

### 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 instead3 

### 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.4 

### 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