Opinion
No. 01 CV 0511 (SJ).
June 25, 2004
LYUDMILA MINKINA, New York, Plaintiff, Pro Se.
ROSLYNN R. MAUSKOPF, ESQ., United States Attorney, Eastern District of New York, New York, By: Steven J. Kim, Esq., Assistant United States Attorney, Attorneys for Defendants.
MEMORANDUM AND ORDER
On May 27, 2004, this Court dismissed Plaintiff Lyudmila Minkina's ("Plaintiff") Petition for failure to exhaust administrative remedies within the Department of Justice. Presently before the Court is Plaintiff's motion for reconsideration of that decision. For the reasons stated herein, Plaintiff's motion is denied.
BACKGROUND
This case grows out of Plaintiff's ongoing efforts to seek adjustment of immigration status under the Soviet Scientists Immigration Act of 1992 ("SSIA" or "the Act"). The history of the SSIA and Plaintiff's attempts to seek adjustment of status under the Act are outlined in the Court's previous Decisions and need not be repeated in full here. On July 24, 2002, the Court dismissed the action as moot, finding that the Attorney General's authority to issue visas under the SSIA had expired. On September 30, 2002, Congress reauthorized the Attorney General to issue visas under the SSIA and extended that authority for an additional four-year period beginning September 30, 2002. In light of this change in the law, the Second Circuit found that Minkina's petition was no longer moot, and summarily vacated this Court's decision and remanded her petition. On May 27, 2004, this Court issued a new Decision, in which it found that it did not have jurisdiction over Plaintiff's Petition because she had not exhausted her administrative remedies. Petitioner now seeks relief from that judgment.DISCUSSION
Eastern District of New York Local Civil Rule 6.3 authorizes motions for reconsideration when accompanied by "a memorandum setting forth concisely the matters or controlling decisions which [the movant] believes the court has overlooked." Local Rule 6.3 is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have already been considered fully by the court. Veloz v. State of New York, No. 98 Civ. 0567, 1999 WL 642883, at * 2 (S.D.N.Y. Aug. 24, 1999). A reconsideration motion is not intended to be a substitute for an appeal. Id. Consequently, a party may not "advance new facts, issues or arguments not previously presented to the court." Id. (citing Morse/Diesel, Inc. v. Fidelity Deposit Co. of Md., 768 F. Supp. 115, 116 (S.D.N.Y. 1991)). Thus, a moving party's motion for reconsideration will be denied unless the moving party can point to matters "that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 256-67 (2d Cir. 1995) (citations omitted).
In her motion for reconsideration, Plaintiff does not indicate that she has made any attempt to renew her application or to file a new visa petition and reapply for adjustment of status under the SSIA. Instead, she argues that she should not be required to exhaust available administrative remedies. Having reviewed her arguments, the Court finds that she has failed to advance any meritorious issues or controlling decisions which the court has overlooked and which would suggest a basis for jurisdiction over her Petition.
First, Plaintiff argues that Defendants failed initially to raise the particular jurisdictional argument upon which the Court based its dismissal. This argument is unavailing. The defense of lack of subject matter jurisdiction cannot be waived and may be asserted at any time. See Westmoreland Capital Corp. v. Findlay, 100 F.3d 263, 266 (2d Cir. 1996); Fed.R.Civ.P. 12(h).
Second, Plaintiff argues that this Court misconstrued the nature of her request by focusing on the adjustment of status rather than her eligibility for an immigrant visa. In fact, the Court declined to decide whether Plaintiff had an available administrative remedy regarding her application for adjustment of status. The Court acknowledged conflicting case law on this issue and expressed its concern that the allegedly available administrative remedy, removal proceedings, might not be sufficient avenue for relief, since Plaintiff cannot control if and when such proceedings might be commenced. Instead, the Court found that Minkina had the available remedy of filing a new visa petition, now possible under the reauthorized SSIA.
As the Court explained in its July 24, 2002 and May 27, 2004 Decisions, the Attorney General's regulations for administration of the SSIA require that Plaintiff first apply for an immigrant visa and then seek adjustment of status under the SSIA. Plaintiff's 1999 application for a visa was denied on the grounds that it was not approved by October 24, 1996, as required by the original enactment of the SSIA. On September 30, 2002, Congress reauthorized the Attorney General's authority to issue visas under the SSIA. However, Plaintiff has not indicated that she has renewed her application or reapplied for a visa or otherwise invoked the Attorney General's authority to consider her application under the reauthorized SSIA. This Court has no authority to direct the agency to issue a visa for which Plaintiff has not applied.
CONCLUSION
In its May 27, 2004 Decision, this Court found that it had no jurisdiction over Petitioner's claim because she had not exhausted her administrative remedies. Nothing in Plaintiff's motion for reconsideration suggests that this finding was in error. Accordingly, Plaintiff's motion for reconsideration is denied.SO ORDERED.