Opinion
No. 04 Civ. 3168 (PKC).
December 13, 2004
MEMORANDUM AND ORDER
Plaintiff Adzi Kadriovski filed this action on April 26, 2004, seeking mandamus relief compelling the defendant to act on his application for adjustment of status pursuant to section 245 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255. (Complaint ¶ 1) Defendant moves to dismiss this action for lack of subject matter jurisdiction.
For the reasons explained below, defendant's motion is granted, and the action is dismissed without prejudice.
Background
According to the Complaint, Kadriovski, a native of Yugoslavia and a citizen of the former Yugoslav Republic of Macedonia ("Macedonia"), entered the United States in 1991 at age 15. (Complaint ¶¶ 13, 24) In 1997, Kadriovski filed an INS Form 1-485 application for adjustment of status. (Complaint ¶ 28) Pursuant to the then-operative statute, Kadriovski filed the application for adjustment to status with the District Director of the Immigration and Naturalization Services. This application remains unadjudicated. (Complaint ¶¶ 28, 41)
Several months after submitting his application for adjustment to status, the INS commenced a separate and distinct administrative action seeking Kadriovski's removal from the United States. (Complaint ¶ 30) In an administrative proceeding that began in or about December 1997, Kadriovski was charged with being inadmissible to the United States due to the absence of valid entry documentation at the time of his 1991 arrival. (Complaint ¶¶ 30, 32) His removal action was consolidated with those of his parents and two brothers, and in a written decision dated September 24, 2003, each of their asylum applications was denied. (Complaint ¶¶ 34, 35) As part of the decision, the Immigration Judge denied an adjustment of status application submitted by Kadriovski. (Complaint ¶ 36) At oral argument in this action, the plaintiff's counsel acknowledged that the adjustment of status application made during the removal proceeding was essentially the same in terms of the relief sought and the basis thereof as his original application for adjustment filed with the district director. (Transcript, Oct. 25, 2004, at 2-3)
In reference to the difference between the application for adjustment to status made as part of the removal proceeding and the application made to the district director, counsel to Kadriovski acknowledged that "[i]t's essentially the same application. It is essentially the same form of relief. He is seeking to get a green card." (Transcript, Oct. 25, 2004, at 3).
Kadriovski timely appealed the decision of the Immigration Judge to the Board of Immigration Appeals. (Complaint ¶ 38) Kadriovski's appeal remains pending. (Complaint ¶ 38; Transcript, Oct. 25, 2004, at 3-4) On February 11, 2004, Kadriovski separately submitted a written request for an exercise of prosecutorial discretion seeking termination of the removal proceedings, to which no reply has been received. (Complaint ¶¶ 39-40; Transcript, Oct. 25, 2004, at 7-8) Kadriovski contends that there has been willful and unreasonable delay in processing his 1997 application for adjustment of status, and argues that an underlying regulation, 8 C.F.R. § 245.1(c)(8), is arbitrary and capricious under the Administrative Procedures Act ("APA"). (Complaint ¶¶ 46, 60-61)
The defendant, who is sued in her official capacity, moves to dismiss the Complaint pursuant to Rule 12(b)(1), Fed.R.Civ.P., arguing that the Court lacks subject matter jurisdiction over this action. The defendant argues that (1) INA section 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i), bars Kadriovski's claim in this action, (2) Kadriovski failed to exhaust his administrative remedies, (3) the Court lacks subject matter jurisdiction to grant mandamus relief under the APA, and (4) Kadriovski has not suffered justiciable injury or asserted eligibility for adjustment to his immigration status.
Discussion
Rule 12(b)(1) provides for the dismissal of a Complaint when a federal court lacks subject matter jurisdiction or the matter. Analysis of a Rule 12(b)(1) motion is contingent upon whether jurisdiction is challenged on factual or legal grounds. Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 (2d Cir. 2001). Where, as here, the challenge to subject matter jurisdiction is based on legal grounds, "the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000).
I begin with the text of two statutory provisions most relevant to this motion. INA section 242, 8 U.S.C. § 1252(d), requires that a plaintiff administratively exhaust his or her claims related to removal before filing an action in federal court. The statute states:
A court may review a final order of removal only if — (1) the alien has exhausted all administrative remedies available to the alien as of right, and (2) another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order.
As set forth by the relevant regulations, an alien's application for adjustment of status brought during a removal proceeding is subject to a three-tier administrative process. First, an applicant for adjustment must bring forth his or her application to the Immigration Judge that presides over the underlying removal proceeding. 8 C.F.R. § 245.2(a)(1). The applicant may appeal then appeal the Immigration Judge's order to the Board of Immigration Appeals. 8 C.F.R. §§ 1003.1(b); 1003.38(a). Lastly, if the Board of Immigration Appeals affirms the Immigration Judge's order, the applicant may the appeal his or her removal to the relevant United States Court of Appeals. 8 U.S.C. § 1252(a)(1).
The second key statutory provision is INA section 245, 8 U.S.C. § 1255, which sets forth the criteria for granting an adjustment of status. Section 245 states:
The status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
According to the Second Circuit, the exercise of discretion pursuant to section 1255 "is considered to be extraordinary relief." Jain v. INS, 612 F.2d 683, 687 (2d Cir. 1979), cert. denied, 446 U.S. 937 (1980).
The Second Circuit has considered the INA's exhaustion requirement to an adjustment of status application during removal proceedings. In Howell v. Immigration and Naturalization Service, 72 F.3d 288 (2d Cir. 1995), the Second Circuit affirmed Judge Weinstein's dismissal of an alien's complaint for failure to exhaust administrative remedies prior to her lawsuit seeking relief under INA section 245. The New York district director of the then-Immigration and Naturalization Service denied the plaintiff's application for an adjustment in status. Id. at 289. The plaintiff then filed a complaint in federal district court, seeking, inter alia, review of her application for adjustment of status, Id. at 290.
Howell observed that administrative exhaustion means that "`a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself.'" Id. at 291 (quoting Guitard v. United States Secretary of Navy, 967 F.2d 737, 740 (2d Cir. 1992)). The opinion noted the limited exceptions to the exhaustion mandate:
Exhaustion of administrative remedies may not be required when: (1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional question.Id. at 291 (quoting Guitard, 967 F.2d at 741). The Second Circuit concluded that "requiring an alien to utilize available administrative remedies will allow a full record to develop concerning the alien's application for adjustment of status." Id. at 292. In so doing, it relied upon Randall v. Meese, 854 F.2d 472, 482 (D.C. Cir. 1988), which observed that requiring an alien to strictly adhere to "the normal appeal route" will "assure that eventual court review will be enlightened by a full record, including the Board of Immigration Appeals' decision, and that this court avoids premature blockage of, or interference with, regulatory actions Congress has assigned to other government bodies." See also Beharry v. Ashcroft, 329 F.3d 51, 62-63 (2d Cir. 2003) (determining in the habeas context that unless futile, immigration administrative process must be exhausted prior to commencing action in federal district court); Dinsey v. Dep't of Homeland Security-United States Citizenship Immigration Services, 2004 WL 1698630, at *5 (S.D.N.Y. July 28, 2004) (court lacks jurisdiction over alien's claim because he failed to administratively exhaust before commencing suit) (collecting cases); Karim ex rel. Karim v. New York Dist. Office of I.N.S., 1999 WL 105037, at *3 (S.D.N.Y. Mar. 1, 1999) ("[B]ecause the administrative scheme for asylees continues to afford plaintiffs an opportunity to pursue their adjustment of status claims, this Court is without jurisdiction over this case."); cf. Heckler v. Ringer, 466 U.S. 602, 616 (1984) ("The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.").
The Immigration Judge denied Kadriovski's asylum request, his petition for adjustment of status, and granted him a sixty-day window preceding voluntary departure to Macedonia. (Decision of the Immigration Judge ("I.J. Decision") at 15-16, 20, attached at Affirmation of Matthew Guadagno Ex. A) Although Kadriovski alleges that he exhausted his administrative remedies prior to commencing this action, the Complaint also makes clear that his appeal to the Board of Immigration Appeals is pending. (Complaint ¶¶ 15, 38) Kadriovski argues that this appeal challenges his order of removal. He acknowledges that it also challenges the denial of the adjustment application made to the Immigration Judge. The Immigration Judge denied the application for adjustment to status:
The Court notes that although no paperwork was submitted in support of the respondent's adjustment of status, it was discussed in court as a form of relief. However, as the respondent was charged with being an arriving alien, he is precluded from adjusting status. 8 C.F.R. § 245.1(c)(8) (2002). Thus, the respondent is denied this form or [sic] relief as well.
(I.J. Decision at 16) At oral argument, plaintiff confirmed that this application — which he described as a "defensive" in nature — is currently under administrative appeal as part of the removal proceedings. (Transcript, Oct. 25, 2004, at 2-3) The Board of Immigration Appeals may reverse the ruling of the Immigration Judge, providing the relief sought by this lawsuit and therefore rendering this action moot. The plaintiff acknowledged as much at oral argument:
THE COURT: . . . If you get all the relief you seek on your defense application and the Court grants the application and hence your client is entitled to a green card your affirmative application is moot; is that correct?
MR. GUADAGNO: If you are seeking a yes or no answer and that is all, then I would say that's correct. But I would like to explain more.
THE COURT: OK. It's correct that it's moot, but go ahead and explain.
MR. GUADAGNO: OK. It's pretty much a fact — possibility that I can prevail on that appeal. My argument is that the regulation is ultra vires and I cannot win on an argument before the Board of Immigration Appeals.
THE COURT: Can you win before the Second Circuit?
MR. GUADAGNO: Before the Second Circuit I could prevail theoretically, yes.
(Transcript, Oct. 25, 2004, at 5-6)
Hence, assuming arguendo that plaintiff is entitled to mandamus relief as to the 1997 application, judicial action mandating such relief would at best duplicate a question presently before the Board of Immigration Appeals. As Judge Walker observed in his Howell concurrence, judicial relief would be imprudent in such a context because "[o]nce deportation proceedings have begun there will be no direct and immediate impact until after the final decision in the deportation proceedings, judicial review would interfere with the INS's adjudication process, the factual record has not been fully developed, and there is no final agency action." 72 F.3d at 294 (Walker, J., concurring). See also McCarthy v. Madigan, 503 U.S. 140, 145 (1992) (exhaustion promotes judicial efficiency and recognizes agency expertise), superceded on other grounds as recognized by Booth v. Churner, 532 U.S. 731 (2001).
Kadriovski has indicated a belief that exhausting his administrative appeals on the adjustment of status application is futile because an appeal likely will fail. (Transcript, Oct. 25, 2004, at 5-6) However, as the Second Circuit pointed out, an administrative appeal's apparently low likelihood of success does not equate to futility. Beharry, 329 F.3d at 62.
Kadriovski argues that this Court possesses subject matter jurisdiction over his claim because the action includes claims challenging the defendant's actions under the APA. His APA claims relate both to Kadriovski's still-outstanding 1997 application for adjustment in status, and to defendant's compliance with the APA in adopting 8 C.F.R. § 245.1(c)(8). While it is true that exhaustion need not be satisfied as a predicate to jurisdiction for a claim under the APA, the APA requires finality before a party may bring a challenge. "`As a general matter . . . the action must be one by which rights or obligations have been determined or from which legal consequences will flow.'" Top Choice Distributors, Inc. v. U.S. Postal Service, 138 F.3d 463, 466 (2d Cir. 1998) (quoting Bennett v. Spear, 520 U.S. 154, 178 (1997)). This action potentially requires a determination as to whether 8 C.F.R. § 245.1(c)(8) contradicts the statute's explicit mandate. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). While I have no view as to the merits of that issue, it would be premature to make such a determination at this point. If the administrative process concludes with a finding in plaintiff's favor, a ruling on the legality of section 245.1(c)(8) would be rendered unnecessary. Moreover, assuming arguendo that a seven-year delay in the agency's response to Kadriovski's 1997 application warrants mandamus relief, it is, as I observed above, conceivable that either the Board of Immigration Appeals or the Second Circuit Court of Appeals will conclude that an adjustment of status is warranted.
In a factual context similar to this one, Augoustinakis v. U.S. Immigration Naturalization Service at New York, NY, 693 F. Supp. 1554 (S.D.N.Y. 1988), concluded that the court lacked subject matter jurisdiction over a claim seeking declaratory relief following the district director's denial of an application for adjustment of status under section 245. Id. at 1554. Five months after the plaintiff filed his action in federal district court, the government commenced deportation proceedings against him. Id. at 1555. The government noted that the plaintiff could receive de novo review of his application for adjustment as part of the deportation proceeding. Id. Augoustinakis concluded that there was no legal authority for a federal court to exercise jurisdiction over the plaintiff's claim, and expressed concern that its ruling would constitute nothing more than an "advisory opinion" adjunct to the INS proceeding. Id. at 1556.
Lastly, I note that Supreme Court has recognized prudential reasons for a district court to decline to exercise jurisdiction on ripeness grounds. See, e.g., Reno v. Catholic Social Services, Inc., 509 U.S. 43, 57 n. 18 (1993) (collecting cases). As noted in Reno, a challenge to a regulation that could not be felt immediately in the conduct of day-to-day affairs "would not be ripe before the regulation's application to the plaintiffs in some more acute action, since `no irremediabl[y] adverse consequences flow[ed] from requiring a later challenge.'" Id. at 57-58 (alterations in original) (quoting Toilet Goods Ass'n v. Gardner, 387 U.S. 158, 164 (1967)); see also Regional Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974) ("ripeness is peculiarly a question of timing . . ."); Karim, 1999 WL 105037, at *3 n. 4 (declining jurisdiction over section 245 claim because "the agency's actions are not yet final, one of the requirements necessary to find ripeness . . .") (emphasis in original).
At present, Kadriovski remains at liberty in this country. The district director asserts that it is a proper exercise of her discretion not to address the adjustment of status application until the removal proceedings and appellate review thereof are completed. (Transcript, Oct. 25, 2004, at 11-12, 19) Indeed, plaintiff's appeal of the Immigration Judge's ruling may conclude in his favor. There is no basis to conclude that, at the present time, the administrative process does not provide adequate relief, or that Kadriovski has suffered irreparable injury.
Conclusion
Defendant's motion to dismiss pursuant to Rule 12(b)(1) is GRANTED and the action is dismissed without prejudice, pending the resolution of plaintiff's administrative appeal. If plaintiff's administrative appeal from the September 23, 2003 ruling is not resolved by the Board of Immigration Appeals within one year of the date of this order, or within one year of receipt of the transcript of the proceeding before the Immigration Judge, whichever is later, then he may reinstate this action.
SO ORDERED.