10-5068-cv
    Panchishak v. United States Department of Homeland Security


                           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 TO 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 16th day of November, two thousand eleven.

    PRESENT:
                ROGER J. MINER,
                ROBERT D. SACK,
                PETER W. HALL,
                      Circuit Judges.
    _____________________________________

    Mycola Panchishak,

                                Plaintiff-Appellant,

                      v.                                                          10-5068-cv

    United States Department of Homeland Security
    Nebraska Service Center U.S.C.I.S.,

                                Defendant-Appellee.

    _____________________________________


    FOR PLAINTIFF-APPELLANT:                                Mycola Panchishak, pro se, New City, NY.

    FOR DEFENDANT-APPELLEE:                                 David Bober and Benjamin H. Torrence, Assistant
                                                            United States Attorneys, for Preet Bharara, 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 (Pauley, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-appellant Mycola Panchishak, proceeding pro se, appeals from the district

court’s judgment dismissing his complaint as moot to the extent that he sought mandamus relief

to compel adjudication of his application for adjustment of his immigration status and for failure

to state a claim and lack of subject matter to the extent that he sought nunc pro tunc relief and

damages. We assume the parties’ familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

       We review de novo the district court’s dismissal of a complaint under Federal Rule of

Civil Procedure 12(b)(6), “construing the complaint liberally, accepting all factual allegations in

the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers

v. Time Warner, Inc., 

, 152 (2d Cir. 2002). A district court’s dismissal of a

complaint for lack of subject matter jurisdiction is reviewed de novo. See Celestine v. Mount

Vernon Neighborhood Health Center, 

, 79-80 (2d Cir. 2005).

       Here, an independent review of the record and case law reveals that the district court

properly dismissed Panchishak’s complaint. Except as noted below, we affirm for substantially

the same reasons stated in the district court’s memorandum and order. See Panchishak v. U.S.

Dep’t of Homeland Sec., No. 08cv6448 (WHP), 

(S.D.N.Y. Sept. 22, 2010).

       On appeal, Panchishak challenges the dismissal of his claim for nunc pro tunc relief. In

the immigration context, the purpose of the nunc pro tunc doctrine is “to return aliens to the


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position in which they would have been, but for a significant error in their immigration

proceedings.” Edwards v. INS, 

, 309 (2d Cir. 2004). Nunc pro tunc relief

ordinarily should be available in the immigration context where agency error would otherwise

result in an alien being deprived of the opportunity to seek a particular form of relief. 

see also Iouri v. Ashcroft, 

, 87 (2d Cir. 2007).

       Here, Panchishak’s allegations did not suggest a plausible basis for nunc pro tunc relief.

Panchishak’s complaint sought nunc pro tunc relief to rectify the “error” of the United States

Citizenship and Immigration Services (“CIS”) of a then-ongoing five-year delay in processing

his application to adjust to lawful permanent resident (“LPR”) status, which he alleged had

deprived him of the opportunity to apply for citizenship at the earliest possible time but for the

delay. Because Panchishak subsequently was granted LPR status in 2009, there was no longer

any impediment preventing him from applying for citizenship. Panchishak maintains that he was

also deprived of the opportunity to petition to bring his now-adult daughter to the United States

at an earlier time. However, as Panchishak himself acknowledges, he can still petition to bring

his daughter to the United States, albeit he must now wait longer than if he had been granted

LPR status before she turned 21. Indeed, Panchishak has filed such a petition, and the petition

has been approved. Thus, in light of his grant of LPR status, it cannot be said that he has been

deprived of the opportunity to seek immigration relief to the extent necessary sufficiently to state

a plausible claim for nunc pro tunc relief. See 

.

       We have considered all of Panchishak’s arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk



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