Opinion
03 Civ. 2835 (GEL)
December 18, 2003
Michael Williams, New York, NY, for plaintiff
F. James Loprest, Jr., New York, NY, for defendants
OPINION AND ORDER
The plaintiff in this case is an alien whose petition for adjustment of status to become a lawful permanent resident of the United States was denied by the United States Bureau of Citizenship and Immigration Services ("BCIS"), formerly known as the Immigration and Nationalization Service ("INS"). Plaintiff seeks declaratory and injunctive relief against BCIS, and defendants have moved to dismiss on grounds of mootness and lack of subject-matter jurisdiction. Because this Court is unable to grant the relief requested, defendants' motion will be granted for lack of jurisdiction.
BACKGROUND
The following facts are taken from the Complaint, except where noted. All factual allegations in the Complaint are assumed to be true for purposes of this motion.Plaintiff Mabhidia Riley first came to the United States from Jamaica, West Indies, with his father at age 12, in 1994, and has lived here since that time. Riley's father died in 1996, and Riley was placed under the care of the New York City Administration for Children's Services, pursuant to a family court ruling that he had been neglected and that it was in his best interest to be placed in long-term foster care in the United States, rather than to return to Jamaica. (Compl. ¶¶ 13-16.) On July 19, 2000, Riley submitted a petition to BCIS under a provision of the Immigration and Naturalization Act ("INA") for adjustment of his status to that of lawful permanent resident, under a provision allowing certain persons under age 21, classified as "special immigrant juveniles," more expeditious procedures for attaining such status. 8 U.S.C. § 1255(a), 1101(a)(27)(J). That application was denied on March 12, 2003, on grounds that Riley had been arrested numerous times in the time-period surrounding his application. On April 4, 2003, Riley filed with BCIS a motion to reconsider and reopen his application ("Motion to Reconsider"), which is the subject of the present action. (Compl. ¶¶ 23-24.)
BCIS advised Riley that he was ineligible to have his claim reopened because he had "aged out" of eligibility as a special immigrant juvenile by the time he filed his Motion to Reconsider, which was a few weeks after his 21st birthday. Upon learning of the agency's position, plaintiff filed the instant Complaint with this Court, seeking declaratory and injunctive relief. Plaintiff argues that although he turned 21 on March 13, 2003, Congress had adopted a statute in response to the post-9/11 disruption of normal immigration services, extending eligibility for forty-five days after their 21st birthday to persons who had filed special immigrant juvenile petitions prior to September 11, 2001. See Pub.L. No. 107-56, Title IV, Subtitle C, sec. 421, 115 Stat. 272, 356-57 (Oct. 26, 2001). Plaintiff argues that under this provision, the relevant date on which his eligibility ended was actually April 25, 2003. On April 24, 2003, Judge Lewis Kaplan, sitting in Part I, granted a preliminary injunction ordering the agency to decide plaintiffs Motion to Reconsider no later than 11:59 p.m. on April 25, 2003, the date on which his eligibility for status as a special immigrant juvenile was to expire. On April 25, BCIS denied plaintiffs motion on grounds that he was no longer eligible for adjustment of status based on his age, and declined to disturb its prior ruling based on plaintiffs alleged poor moral character.
Plaintiff now seeks various remedies from this Court related to the denial of his application for adjustment of status and of his Motion to Reconsider. Specifically, plaintiff seeks a declaration that he did not "age out" of eligibility upon reaching 21, that he is still eligible for adjustment based on his past status as a special immigrant juvenile, and that the agency's April 25 denial of his Motion to Reconsider was incorrect as a matter of law. He also seeks various forms of injunctive relief, including a tolling of the cut-off date for eligibility and injunctions against the agency's issuing a final decision pending the outcome of any administrative appeals, or "issuing a final determination other than `approved' regarding his adjustment of status pending final judgment in this action." Defendants assert that the Court lacks subject-matter jurisdiction to review the BCIS decision, and further, that even if it had jurisdiction, plaintiffs claims would be moot, as he is no longer eligible for adjustment as a special infant juvenile.
DISCUSSION
I. Applicable Immigration LawA brief explanation of the legal issues involved in petitioning for adjustment of immigration status is necessary in order to understand the nature of Riley's claim. Typically, in order to gain status as a lawful permanent resident, an alien must first obtain a visa. In practice, this historically meant that in order to become a permanent resident, an alien residing in the United States had to leave the country and apply for a visa abroad. See Elkins v. Moreno, 435 U.S. 647, 667 (1978). To prevent this technical requirement from posing undue expense and inconvenience to resident aliens, Congress amended the immigration laws to allow the Attorney General to "adjust" the status of an eligible alien already present in the country, provided that they met certain requirements, including that "an immigrant visa is immediately available" at the time the application is filed. 8 U.S.C. § 1255(3).
The statute provides in relevant part:
The status of an alien . . . 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.
U.S.C. § 1255(a).
Recognizing that this procedure still presented barriers to certain aliens such as Riley, who were brought to the United States as minors and might not have "immediate" access to a visa, Congress further allowed an exception to the visa requirement for certain categories of persons, including special immigrant juveniles. See 8 U.S.C. § 1255(h). The statute defines "special immigrant juvenile" as an alien present in the United States
(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State and who has been deemed eligible by that court for long-term foster care due to abuse, neglect, or abandonment;
(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; and
(iii) in whose case the Attorney General expressly consents to the dependency order serving as a precondition to the grant of special immigrant juvenile status. . . .8 U.S.C. § 1107(a)(27)(J); see also 8 C.F.R. § 204.11(c)(1)-(c)(7) (requiring, inter alia, that the petitioner be under 21 years old, unmarried, and "dependent upon the juvenile court and eligible for long-term foster care"). In cases involving special immigrant juveniles, the Attorney General may grant adjustment of status even without the applicant's having immediate access to a visa.
As the Second Circuit has explained, "[t]here are two distinct questions in a proceeding upon an alien's application for adjustment of status. . . . The first is whether the alien applicant is eligible for such relief; the second is whether such relief should be granted in the discretion of the Attorney General." Marino v. INS. 537 F.2d 686, 690 (1976); see also Gao v. Jenifer, 185 F.3d 1548, 554-55 (6th Cir. 1999) ("[A]ttaining [special immigrant juvenile] status would only entitle [the plaintiff] to apply for permanent status — the actual grant is both discretionary and conditioned.") (emphasis in original). The application involved in this case therefore entailed a two-step process. The distinction between the two steps bears on whether the Court has subject-matter jurisdiction to decide the case,
II. Subject-matter Jurisdiction
In order for plaintiffs claim to proceed to the merits, he must establish both standing under Article III and the statutory jurisdiction of the Court to decide the case; if either is lacking, the case must be dismissed for lack of subject matter jurisdiction. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101. Defendants challenge the jurisdiction of this Court on both grounds.
Article III grants federal courts the authority to hear only "cases or controversies." As the Supreme Court has explained, "[the] triad of injury in fact, causation, and redressability constitutes the core of Article III's case-or-controversy requirement." Steel Co., 523 U.S. at 102-04. Defendants here do not contest that plaintiff meets the first two requirements for standing. They argue, however, that because he is no longer under 21 or "eligible [for] foster care," and is therefore no longer eligible for adjustment of status as a special immigrant juvenile under BCIS regulations, the case is moot because his injury is not redressable by the agency. See 8 C.F.R. § 204.11(c).
Defendant's mootness argument hinges on the correctness of the agency's interpretation of the statute as requiring the plaintiff to be under 21 in order to obtain review of its initial decision. But that is the very interpretation that plaintiff brought this suit to challenge. And that interpretation is doubly dubious. First, Congress specifically extended the eligibility of applicants (like plaintiff) who had sought adjustment of status before September 11, 2001, for 45 days after their 21st birthday. See Pub. L. No. 107-56, Title IV, Subtitle C, sec. 421, 115 Stat. 272, 356-57 (Oct. 26, 2001). Thus, the agency's ruling that plaintiff was ineligible on April 25, 2003, because he had turned 21 just 43 days earlier is, to say the least, in tension with the most recent expression of congressional intent. While the regulations implementing the statute do limit eligibility for special immigrant juvenile status to those juveniles who "[c]ontinu[e] to be dependent upon the juvenile court and eligible for long-term foster care," 8 C.F.R. § 103.5(a)(1)(i), they do not specify that a plaintiff must remain "eligible" during the second part of the process, when the ultimate determination as to status adjustment is issued. See id. Nor do they require a plaintiff to be under 21 in order to request reconsideration of a denial of an application for adjustment of status made while the applicant was eligible. See 8 C.F.R. § 103.5. Second, plaintiff applied for adjustment of status in 2000, nearly three years before his 21st birthday, at a time when he was unquestionably eligible for special immigrant juvenile status. It would be peculiar to hold that, if the agency erroneously denied his application, it would be without power to correct its own mistake on reconsideration, simply because it had delayed acting on plaintiffs application until the eve of his 21st birthday. See Pierre v. McElroy, 200 F. Supp.2d 251, 253-54 (S.D.N.Y. 2001) (noting that the agency's interpretation "would render meaningless" the statute extending eligibility, and granting writ of mandamus directing BCIS to adjudicate petition for adjustment of status no later than 45 days after plaintiffs 21st birthday); see also this Court's Order dated April 24, 2003 (slip op.) (granting preliminary injunction requiring BCIS to decide plaintiffs motion to reconsider no later than 45 days after plaintiffs 21st birthday).
Whether this issue is seen as one of standing, or of the merits of plaintiff's case, however, it need not be answered, as the Court in any event lacks subject matter jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85 (1999) ("[A] federal court [may] choose among threshold grounds for denying audience to a case on the merits."). Plaintiffs strongest claim for jurisdiction is under 28 U.S.C. § 1331, the federal question statute, which grants jurisdiction to federal courts in cases "arising under" federal law. "An action is said to arise under [federal law] where the complaint includes allegations either that [federal law] creates the cause of action or that [federal law] is a necessary element of the claim or that some right or interest will be defeated or sustained by a particular construction of [federal law]." Franchi v. Manbeck, 947 F.2d 631, 633 (2d Cir. 1991). Plaintiff challenges BCIS's interpretation of the statute's eligibility provisions as applied to his Motion to Reconsider. Because plaintiffs claim would fail under one interpretation of this statute and would succeed under the other, his claim "arises under" federal law.
Plaintiff asserts jurisdiction under various statutory provisions: Federal Question jurisdiction, 28 U.S.C. § 1331; the Declaratory Judgment Act, 28 U.S.C. § 2201; the Administrative Procedures Act ("APA"), 5 U.S.C. § 702; and the Mandamus and Venue Act, 28 U.S.C. § 1361. (Compl. ¶ 12.) Plaintiffs assertion that either the APA or the Declaratory Judgment Act confer jurisdiction is patently incorrect, as neither statute amounts to an affirmative grant of jurisdiction. See Califano v. Sanders, 430 U.S. 99, 105-07 (1977) (APA not an independent basis for jurisdiction); Clark v. Commodity Futures Trading Comm'n, 170 F.3d 110, 113 n.l (2d Cir. 1999) (same); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950) (Declaratory Judgment Act not an independent basis for jurisdiction); Fleet Bank, Nat. Ass'n v. Burke, 160 F.3d 883, 886 (2d Cir. 1998) (same).
As the Second Circuit has observed, "[d]istrict courts . . . require no further statutory authority to hear appeals from agency decisions than . . . federal question jurisdiction." Clark 170 F.3d at 113 n. 1. Federal courts regularly exercise jurisdiction over construction of immigration statutes by the agency that has authority to implement them. See, e.g., Reno v. Catholic Social Services, 509 U.S. 43, 56 (1993) (holding that district court had jurisdiction to review regulation promulgated under INA); M.B. v. Quarantillo, 301 F.3d 109, 109 (3d Cir. 2002) (holding that district court had jurisdiction to review denial of asylum application under federal question statute and APA); Cordoba v. McElroy, 78 F. Supp.2d 240, 243 (S.D.N.Y. 2000) (district court had jurisdiction to review time-period for immigration decision under federal question statute and § 6 of the APA).
Although the APA does not provide an affirmative grant of jurisdiction in federal court, it serves as a waiver of sovereign immunity and grants a cause of action against the government to "a person suffering legal wrong because of agency action," 5 U.S.C. § 702. Because the Court lacks subject-matter jurisdiction over the present action, it need not consider whether plaintiff would be foreclosed from stating a cause of action under the APA due to defenses such as failure to exhaust administrative remedies, see Howell v. INS, 72 F.3d 288, 291-92 (2d Cir. 1995), or exemption from review because the agency action in question was not final or was "committed to agency discretion by law" under 5 U.S.C. § 704, 701(a)(2). See Kalkouli v. Ashcroft, 282 F.3d 202, 203-04 (2d Cir. 2002); Karan v. McElroy, No. 02-Civ. 6678, 2003 WL 21209769 (S.D.N.Y. May 23, 2003).
In the realm of administrative law, however, Congress may affirmatively exempt certain agency actions from judicial review, depriving federal courts of jurisdiction. Id. Defendants argue that in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Congress did just that. See Pub.L. No. 104-208, 110 Stat. 3009-546, § 242(a)(2)(B), codified at 8 U.S.C. § 1252(a)(2)(B). Under the heading "Judicial Review of Orders of Removal," IIRIRA provides:
The question of whether judicial review has been foreclosed is approached in light of a "strong presumption in favor of judicial review of administrative action." INS v. St. Cyr. 533 U.S. 289, 298 (2001). "Only upon a showing of `clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review." Board of Governors of Federal Reserve System v. Corp Financial Inc., 502 U.S. 32, 44 (1991) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967)). Congress is presumed to understand this "well settled presumption" when it legislates,McNary v. Haitian Refugee Ctr., 498 U.S. 479, 496 (1991); restrictions on judicial review should thus be construed narrowly, and courts should not assume that Congress intended to eliminate review unless the statute says so explicitly and unambiguously.
Notwithstanding any other provision of law, no court shall have jurisdiction to review —
(i) any judgment regarding the granting of relief under section . . . 1255 of this title, or
(ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General. . . .8 U.S.C. § 1252(a)(2)(B). According to defendants, this provision expressly bars review of the administrative decisions at issue.
Several district courts in this Circuit have held that § 1252(a)(2)(B) bars review of only those decisions connected to removal proceedings, as the title of the provision suggests, preserving jurisdiction over other agency decisions that either fall under § 1255 or are discretionary. See Talwar v. U.S. INS, No. 00 Civ. 1166, 2001 WL 767018, at *4 (S.D.N.Y. Jul. 9, 2001) (Martin, J.);Burger v. McElroy, No. 97 Civ. 8775, 1999 WL 203353, at *4 (S.D.N.Y. Apr. 12, 1999) (Patterson, J.); see also Cordoba, 78 F. Supp. at 243-45 (exercising jurisdiction over agency inaction on status adjustment petitions without discussing IIRIRA). But see Vladgina v. Ashcroft, No. 00 Civ. 9456, 2002 WL 1162426, at *4 (S.D.N.Y. Apr. 8, 2002) (holding review of status adjustment is barred by IIRIRA without discussing whether statute was limited to removal proceedings); Zeng v. McElroy, No. 98 Civ. 1772, 1998 WL 702318, at *4 (S.D.N.Y. Oct. 7, 1998) (same). The Second Circuit has not yet ruled on the question; however, the other circuit courts that have ruled on the issue have concluded that IIRIRA is not limited to the context of removal, but rather, that it bars review of all determinations regarding adjustment of status. See Samirah v. O'Connell, 335 F.3d 545, 548 (7th Cir. 2003); GDI Info. Svcs. v. Reno, 278 F.3d 616, 620 (6th Cir. 2002); Van Dinh v. Reno, 197 F.3d 427, 431-32 (10th Cir. 1999).
As these circuits have concluded, the latter view is more consistent with the statutory language. First, it is a well settled rule of statutory construction that the title of a statute cannot be used to contradict its plain language. Brotherhood of Railroad Trainmen v. Baltimore Ohio R. Co., 331 U.S. 519, 528-29 (1947). Although the provision is entitled "Review of Orders of Removal," the statute's language gives no indication that its command should be limited to this context. On the contrary, the provision specifically encompasses all decisions under § 1255, which contains many provisions completely unrelated to removal. In addition, the broad language of § 1252(a)(2)(B)(ii), exempting from review all decisions or actions "within the discretion of the Attorney General," indicates that Congress intended the provision to cover a broader category of agency actions than those strictly relating to removal. The scope of the statutory language leads to the conclusion that § 1252's title "does no more than indicate the provisions in a general manner." GDI Info., 278 F.3d at 620.
To the extent that plaintiff seeks to challenge the agency's determination on the merits of his application for adjustment of status, defendants are correct that the Court lacks jurisdiction. BCIS's original decision to deny plaintiffs adjustment of status on grounds that he lacked moral character is unquestionably a "judgment regarding the granting of relief under section . . . 1255" falling within the scope of 1252(a)(2)(B)(i); moreover, it would be excluded from review independently under 1252(a)(2)(B)(ii) as a discretionary decision.See, e.g., McCreary v. Ferryman, 212 F.3d 985, 986 (7th Cir. 2000) (holding that § 1252(a)(2)(B)(i) barred judicial review of denial of status adjustment); Gao, 185 F.3d at 554-55 (decision to grant status adjustment "is both discretionary and conditioned");Vladgina, 2002 WL 1162426, at *4 (holding review of status adjustment is barred by IIRIRA); Zeng, 1998 WL 702318, at *4 (same); Sadowski v. INS, 107 F. Supp.2d 451, 453-54 (S.D.N.Y. 2000) (stating in dictum that review of status adjustment is barred by INA). As such, it is expressly shielded from judicial review under the statute, and the Court consequently lacks subject-matter jurisdiction to consider this aspect of plaintiffs claim.
However, plaintiff challenges not only BCIS's decision on his underlying application for status adjustment, but also its denial of his Motion to Reopen. He argues that in issuing its denial, the agency wrongly applied § 1255's eligibility requirements to determine that he had "aged out" of eligibility to have his case reopened. This decision, he argues, was a purely legal determination that was incorrect as a matter of law, and as such, it should not be exempt from judicial review under § 1252(a)(2)(B).
Were plaintiffs age the sole basis for the agency's refusal to reconsider his application, plaintiff might have a valid argument under this theory for jurisdiction over the agency's decision on his Motion to Reopen. First, it is not clear that decisions on motions to reopen, which are governed by a separate regulation, 8 C.F.R. § 3.2, are "judgment[s] regarding the granting of relief under" § 1255. Three Circuits have held that such decisions are not necessarily barred by the IIRIRA. See Prado v. Reno, 198 F.3d 286, 290 (1st Cir. 1999);Stewart v. INS, 181 F.3d 587, 593-95 (4th Cir. 1999);Arrozal v. INS, 159 F.3d 429, 431 (9th Cir. 1998).
Second, it is an open question whether a refusal to adjust status that was premised solely upon a determination of ineligibility as a special immigrant juvenile is within IIRIRA's prohibition on judicial review. While the Second Circuit has not yet ruled on this question, several courts of appeals have held that the IIRIRA bars review only of discretionary decisions made under § 1255, and not of those that are purely legal in character. See Iddir v. INS, 301 F.3d 492, 497-98 (7th Cir. 2002) (holding that review of INS adjudication of Diversity Visa Lottery application, which preceded determination on status adjustment, was not discretionary and was therefore subject to judicial review); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2001) (same, in context of removal proceeding); also cf. Bernal-Vallejo v. INS, 195 F.3d 56, 63 (1st Cir. 1999) (holding that under transitional rules promulgated by IIRIRA, question of whether minimum residency period had been met was not discretionary decision barred from judicial review);Marino v. INS, 537 F.2d 686, 690 (holding, prior to enactment of § 1255(a)(2)(B), that "[d]etermination of an alien's eligibility for status adjustment involves questions of law and fact. . . . A holding of ineligibility is subject to judicial review to determine whether or not the appropriate standards have been correctly applied"). Under this reasoning, the Court might reach the merits of plaintiffs claims.
However, plaintiffs age was not the sole basis for the agency's decision. Rather, the agency's refusal to reopen, like its initial decision, relied on the alternative ground that plaintiff lacked "good moral character." The agency's letter-ruling was grounded at least equally on the latter concern: it discussed the issue at considerable length, devoting roughly half of the ruling to an examination of plaintiff's actions during the time-period relevant to his adjustment of status application. Indeed, despite the agency's assertion that the plaintiff was no longer eligible to have his petition for status adjustment reviewed, BCIS appears, in effect, to have reconsidered his petition and affirmed its prior decision on the merits. The agency's decision on grounds of his moral character therefore provided an independent ground for rejecting his application for review.
The agency's decision also devotes a paragraph to discussing and rejecting a legal argument raised by plaintiff regarding the proper standard for assessing an application for adjustment of status where adverse factors are present. This portion of the opinion also goes to the merits of plaintiff's application for adjustment of status, and not to his age or eligibility for special immigrant juvenile status.
This independent ground, as determined above, is insulated from judicial review, as it falls squarely under § 1252's bar to review of status adjustment decisions under § 1255. Whether or not IIRIRA bars review of all decisions on motions to reopen, it does bar review of such decisions when the BCIS has effectively reached the merits of the petitioner's underlying claim. Accord, Prado, 198 F.3d at 291-92; Stewart v. INS, 181 F.3d at 595 (same holding under IIRIRA's transitional rules). This rule is consistent with the language and purpose of IIRIRA, and serves to bar jurisdiction over the agency's decision on the merits of plaintiffs petition.
Thus, even if the Court would have had jurisdiction to review the agency's ruling had it been based solely on plaintiffs age, it lacks jurisdiction to review the decision in this case, which expressly reaffirmed the agency's discretionary decision to adhere to its earlier refusal of adjustment of status under § 1255. Because the court has no jurisdiction to review these alternative grounds, a declaratory judgment that the agency had misconstrued the provision on eligibility for special immigrant juvenile status, or even an injunction ordering reversal of its determination on those grounds, would make no difference to the outcome of plaintiff's case. The agency's actual ruling in this case is thus nothing more or less than a continued discretionary rejection of plaintiff's application for adjustment of status, a ruling that Congress has denied this Court jurisdiction to review.
To the extent plaintiff argues that he challenges only the first paragraph of the agency's decision, the challenge is indeed moot; a declaration that plaintiff was eligible for special immigrant juvenile status would have no effect on the agency's ultimate decision, and would amount to nothing more than an abstract advisory opinion on the correctness of a portion of that decision that was not controlling to its ultimate determination. See Baca v. King, 92 F.3d 1031, 1037 (10th Cir. 1996) (no case or controversy where the remedy requested was "completely within the Secretary of Interior's discretion").
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss for lack of jurisdiction is granted.SO ORDERED