21-1073

Saleh v. Pastore

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order 

filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this court, a party must cite either the Federal Appendix 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.

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 27th day of October, two thousand twenty-one.

PRESENT: Dennis Jacobs,

Steven J. Menashi,

Circuit Judges

Lewis J. Liman,

District Judge.*

____________________________________________

TAREK YOUSSEF HASSAN SALEH,

Plaintiff-Appellant,

v. No. 21-1073

* Judge Lewis J. Liman of the United States District Court for the Southern District of 

New York, sitting by designation.
2

GINA PASTORE, as Brooklyn Field Office 

Director U.S. Citizenship and Immigration 

Services, SUSAN QUINTANA, as New York City 

Field Office Director U.S. Citizenship and 

Immigration Services, LEE BOWES, as Acting 

Field Office Director, Northeast Region, USCIS, 

TRACY RENAUD, Acting Director, USCIS, 

Alejandro Mayorkas, Secretary U.S. Department of 

Homeland Security, CHRISTOPHER A. WRAY, 

Director Federal Bureau of Investigation, 

MERRICK B. GARLAND, Attorney General U.S. 

Department of Justice,

Defendants-Appellees.

____________________________________________

For Plaintiff-Appellant: Tarek Youssef Hassan Saleh, pro se, Staten 

Island, NY

For Defendants-Appellees: Joshua Kahane, Christopher Connolly, 

Assistant United States Attorneys, for

Damian Williams, United States Attorney 

for the Southern District of New York, New 

York, NY

Appeal from a judgment of the United States District Court for the Southern 

District of New York (Failla, J.).
3

Upon due consideration, it is hereby ORDERED, ADJUDGED, and 

DECREED that the judgment of the district court is AFFIRMED.

Appellant Tarek Saleh, proceeding pro se, sued officers of United States 

Citizenship and Immigration Services (“USCIS”) and other government officials, 

alleging violations of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 

et seq.; the Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq.; and Saleh’s 

Fifth Amendment right to due process, U.S. Const. amend. V, as well as unlawful 

interference with Congress’s power to establish a uniform rule of naturalization, 

U.S. Const. art. I, § 8, cl. 4. Saleh sought an order (1) compelling USCIS to 

adjudicate his Application for Naturalization (Form N-400) and (2) enjoining 

USCIS from employing the Controlled Application Review and Resolution 

Program (“CARRP”) in conducting that adjudication. While the case was pending, 

USCIS denied Saleh’s Form N-400, and Saleh administratively appealed the 

decision by filing a Request for a Hearing on a Decision in Naturalization 

Proceedings (Form N-336).

The district court subsequently dismissed the complaint in part as moot and 

in part for Saleh’s failure to exhaust his administrative remedies. It also denied 

Saleh’s motions for recusal, for a hearing on his then-pending naturalization 
4

application under 8 U.S.C. § 1447(b), and for an order directing USCIS to hold a 

hearing on Saleh’s administrative appeal and to issue an opinion within 180 days

of the hearing. We assume the parties’ familiarity with the underlying facts, the 

procedural history of the case, and the issues on appeal.

I

When reviewing a dismissal under Federal Rule of Civil Procedure 12(b)(1), 

“we review factual findings for clear error and legal conclusions de novo.” Makarova 

v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

The district court properly dismissed Saleh’s claims related to his Form 

N-400 as moot. “A case is moot when the issues presented are no longer live or the 

parties lack a legally cognizable interest in the outcome.” Tann v. Bennett, 807 F.3d 

51, 52 (2d Cir. 2015) (internal quotation marks omitted). “In the immigration and 

naturalization context, courts have dismissed cases as moot where the executive 

agency to which the plaintiff has applied grants the relief sought in the complaint 

prior to the court’s adjudication.” Li v. Napolitano, No. 08-CV-7353, 2009 WL 

2358621, at *3 (S.D.N.Y. July 30, 2009) (collecting cases).

Saleh sought an order directing USCIS to schedule a naturalization 

interview and to adjudicate his Form N-400 application. On February 18, 2020,
5

USCIS interviewed Saleh and then, on August 31, 2020, issued its denial of Saleh’s 

application. Accordingly, any claim seeking to compel USCIS to adjudicate Saleh’s

application became moot because “the relief sought can no longer be given or is 

no longer needed.” Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983).1

Saleh argues that his case cannot be dismissed on mootness grounds 

because USCIS lost the power to adjudicate his claims when he filed his § 1447(b) 

petition. Although a “properly filed Section 1447(b) petition vests jurisdiction in 

the district court and divests USCIS of its jurisdiction to decide the application,”

Saleh did not properly file a § 1447(b) petition. Bustamante v. Napolitano, 582 F.3d 

403, 406 (2d Cir. 2009). After USCIS fails to make a determination on a Form N-400 

within 120 days of an applicant’s examination, the applicant “may apply to the 

United States district court for the district in which the applicant resides for a hearing 

on the matter.” 8 U.S.C. § 1447(b) (emphasis added). It is undisputed that Saleh 

resides in Richmond County, which is within the Eastern District of New York. See 

28 U.S.C. § 112(c). Because he sought review in the Southern District of New York, 

1 Moreover, any claim that the district court should have granted Saleh’s request for a 

hearing under 8 U.S.C. § 1447(b)—or transferred the case to the Eastern District of New 

York for such a hearing—is moot because Saleh’s naturalization application has been 

denied.
6

Saleh did not “properly file[]” his section 1447(b) petition, and therefore his 

petition did not “divest[] USCIS of its jurisdiction to decide [his] application.”

Bustamante, 582 F.3d at 406.

II

The district court also properly found that Saleh’s request for mandamus 

relief directing USCIS to schedule a hearing on his Form N-336 administrative 

appeal is moot. USCIS has 180 days after the date an administrative appeal is filed 

to schedule a hearing. 8 C.F.R. § 336.2(b). Saleh filed his Form N-336 appeal on 

September 1, 2020, and the hearing—which Saleh opted not to attend—was 

scheduled for February 24, 2021, within the 180-day deadline.

In addition, the district court did not err by denying Saleh’s motion for an

order directing the USCIS to issue a decision within a specific timeframe. Saleh 

cannot obtain mandamus relief directing USCIS to issue a decision on his Form N336 appeal according to a prescribed timeline. “[M]andamus is an extraordinary 

remedy, intended to aid only those parties to whom an official or agency owes ‘a 

clear nondiscretionary duty.’” Escaler v. USCIS, 582 F.3d 288, 292 (2d Cir. 2009) 

(quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)). Saleh does not identify any 
7

statute or regulation setting out a timeline for a USCIS decision on a Form N-336 

appeal.

III

The district court properly dismissed the remainder of Saleh’s claims—

brought under the INA, the APA, and the Constitution—concerning the purported 

adjudication of his naturalization application through CARRP. To obtain judicial 

review of a naturalization application an applicant must exhaust his 

administrative remedies before filing suit. See Escaler, 582 F.3d at 292 (“[J]udicial 

review of the denial of an application to be naturalized[] requires the exhaustion 

of administrative remedies prior to seeking that relief.”); see also 8 U.S.C. § 1421(c) 

(providing a cause of action for a person whose application for naturalization has 

been denied “after a hearing before an immigration officer under section 1447(a)”). 

The APA and constitutional claims are likewise subject to the INA’s exhaustion 

requirement. See Moya v. DHS, 975 F.3d 120, 126-27 (2d Cir. 2020). This exhaustion 

requirement is “mandatory, and courts are not free to dispense with it.” Escaler, 

582 F.3d at 292. At the time Saleh filed his complaint, USCIS had not yet denied 

his Form N-400 application. The district court therefore properly dismissed these 

claims because Saleh failed to exhaust his administrative remedies prior to seeking 
8

judicial review. See Moya, 975 F.3d at 127 (holding that a plaintiff “may not sue 

until they have satisfied” the exhaustion requirement). Even now, the record does 

not indicate that USCIS has issued a final decision on Saleh’s Form N-336 appeal.

IV

Finally, the district court did not abuse its discretion by denying Saleh’s 

motion for recusal. We review a denial of a motion to recuse for abuse of 

discretion. See United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992). 

“A federal judge must recuse herself in any proceeding where her 

‘impartiality might reasonably be questioned’” or “where the judge ‘has a personal 

bias or prejudice concerning a party.’” United States v. Morrison, 153 F.3d 34, 48 (2d 

Cir. 1998) (quoting 28 U.S.C. § 455(a), (b)(1)). Additionally, a judge shall not 

proceed in a matter in which he or she “has a personal bias or prejudice either 

against [the plaintiff] or in favor of any adverse party.” 28 U.S.C § 144. The need 

for recusal arises when “an objective, disinterested observer fully informed of the 

underlying facts” would “entertain significant doubt that justice would be done 

absent recusal.” United States v. Amico, 486 F.3d 764, 775 (2d Cir. 2007).

Saleh argues recusal was required here for three reasons. First, he suggests

that the district judge, who was a former federal prosecutor, was biased against 
9

him because she previously prosecuted Muslim terrorists. But Saleh offers no 

evidence that the district judge was biased against Muslims based on her prior 

prosecutorial experience. The fact that the district judge was a former prosecutor 

is not sufficient to create bias. See, e.g., Kendrick v. Carlson, 995 F.2d 1440, 1444 (8th 

Cir. 1993) (“[A]n AUSA without any involvement in a case brought by other 

attorneys in his office is not required to disqualify himself from presiding over 

such a case under 28 U.S.C. § 455(b)(3).”); United States v. Fanta, No. 04-CR-1253, 

2005 WL 3434709, at *2 (S.D.N.Y. Dec. 13, 2005).

Second, Saleh infers that the district judge was biased against him because 

she denied his motion for a § 1447(b) hearing and delayed deciding whether to 

transfer his case to the Eastern District of New York. But adverse rulings are not 

evidence of bias. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial 

rulings alone almost never constitute a valid basis for a bias or partiality recusal 

motion.”). 

Third, Saleh contends that the district judge tried to force him to attend an 

administrative hearing by informing him that failure to attend could result in 

further delays in his case. But that statement was not coercive; the district judge 

merely pointed out that failure to attend the hearing could create more delays. 
10

Because the standards for recusal were not met, the district court did not 

abuse its discretion by denying Saleh’s motion for recusal.

* * *

We have considered Saleh’s remaining arguments, which we conclude are 

without merit. For the foregoing reasons, we AFFIRM the judgment of the district 

court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court