11-589-cv
    Torres v. Dep’t of Homeland Sec.



                              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
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the 19th day of December, two thousand eleven.

    PRESENT:
                PETER W. HALL,
                GERARD E. LYNCH,
                DENNY CHIN,
                      Circuit Judges.
    __________________________________________

    Wilfredo Torres,

                      Plaintiff-Appellant,

                                v.                                          11-589-cv

    Department of Homeland Security,

                Defendant-Appellee.
    __________________________________________

    FOR APPELLANT:                     WILFREDO TORRES, pro se, New York, New York.

    FOR APPELLEES:                     AMY ANN BARCELO, Assistant United States Attorney, (Benjamin
                                       H. Torrance, Assistant United States Attorney, on the brief), for
                                       Preet Bharara, United States Attorney for the Southern District of
                                       New York, New York, New York.
       Appeal from a judgment of the United States District Court for the Southern District of

New York (Sullivan, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

       Appellant Wilfredo Torres, proceeding pro se, appeals the district court’s judgment

granting the defendant’s motion to dismiss his complaint for lack of subject-matter jurisdiction

pursuant to Fed. R. Civ. P. 12(b)(1). We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal. We review de novo a district

court’s dismissal of a complaint pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction.

See Virtual Countries, Inc. v. Republic of S. Afr., 

, 235 (2d Cir. 2002). Dismissal

under Rule 12(b)(1) is proper “when the district court lacks the statutory or constitutional power

to adjudicate it.” Makarova v. United States, 

, 113 (2d Cir. 2000).

       We do not decide the government’s waiver argument and exercise our discretion to

consider Torres’s appeal on the merits. We affirm for substantially the same reasons as those

stated by the magistrate judge in his thorough and well-reasoned report and recommendation.

       We have considered Torres’s additional arguments, including his arguments that the

district court improperly denied his request for appointment of counsel and that the magistrate

judge exhibited bias against him, and have found them to be without merit. Accordingly, the

judgment of the district court is hereby AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




                                                 2