Adiemereonwuv.Ashcroft

United States District Court, N.D. Texas, Dallas DivisionJul 19, 2004
No. 3-04-CV-0394-M (N.D. Tex. Jul. 19, 2004)

No. 3-04-CV-0394-M.

July 19, 2004


FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE


JEFF KAPLAN, Magistrate Judge

Petitioner Peter C. Adiemereonwu, appearing pro se, seeks a writ of mandamus to compel federal immigration officials to adjudicate his application for citizenship. For the reasons stated herein, this case should be dismissed as moot.

I.

Petitioner, a citizen Nigeria, entered the United States in September 1985 on an F-1 visa. He married an American citizen and was given conditional permanent residency on February 28, 1989. Within months after obtaining permanent residency status, petitioner enlisted in the United States Navy. He served in both Operation Desert Shield and Operation Desert Storm before receiving an honorable discharge from active duty in March 1996.

In April 1996, petitioner applied for citizenship under an Executive Order that authorized expedited naturalization for aliens who served in active duty during the Persian Gulf conflict. While his application was pending, petitioner pled guilty to misuse of a social security number and was sentenced to three years probation. United States v. Adieme, No. 4-03-CR-055-Y (N.D. Tex. Jun. 25, 2003). Based on that conviction, the Bureau of Immigration and Customs Enforcement ("ICE") arrested petitioner and initiated removal proceedings. Petitioner now seeks an order requiring federal immigration officials to adjudicate this application for citizenship and to release him from custody.

Executive Order 12939, signed by President Clinton on November 22, 1994, provides, in pertinent part:


[I]n order to provide expedited naturalization for aliens and noncitizen nationals who served in an active-duty status in the Armed Forces of the United States during the period of the Persian Gulf Conflict, it is hereby ordered as follows:
For the purpose of determining qualification for the exception from the usual requirements for naturalization, the period of Persian Gulf Conflict military operations in which the Armed Forces of the United States were engaged in armed conflict with a hostile force commenced on August 2, 1990, and terminated on April 11, 1991. Those persons serving honorably in active-duty status in the Armed Forces of the United States during this period are eligible for naturalization in accordance with the statutory exception to the naturalization requirements, as provided in section 1440(b) of title 8, United States Code.

Exec. Order No. 12939, 59 Fed. Reg. 61,231, 1994 WL 658952 (Nov. 22, 1994).

II.

Petitioner has invoked federal subject matter jurisdiction under the Mandamus Act, 28 U.S.C. § 1361. Mandamus is an extraordinary remedy available only where a government official clearly has failed to perform a nondiscretionary duty. Dunn-McCampbell Royalty Interest, Inc. v. National Park Service, 112 F.3d 1283, 1288 (5th Cir. 1997), citing Pittson Coal Group v. Sebben, 488 U.S. 105, 121, 109 S.Ct. 414, 424, 102 L.Ed.2d 408 (1988). In order for mandamus to issue, the petitioner must demonstrate that a government officer owes him a legal duty that is a specific, ministerial act, devoid of the exercise of judgment or discretion. Id. The legal duty must be set out in the Constitution or by statute, and "its performance must be positively commanded and so plainly prescribed as to be free from doubt." Id., citing Giddings v. Chandler, 979 F.2d 1104, 1108 (5th Cir. 1992).

Petitioner also alleges that jurisdiction is proper under the Declaratory Judgment Act, 28 U.S.C. § 2201. ( See Pet. Compl. at 2). However, this statute does not provide an independent basis for federal subject matter jurisdiction. See Gaar v. Quirk, 86 F.3d 451, 453 (5th Cir. 1989); Brathwaite v. Ashcroft, 2003 WL 22947484 at *1 n. 1 (N.D. Tex. Sept. 11, 2003) (immigration case).

Assuming arguendo that petitioner can meet his heavy burden of showing that mandamus is an appropriate remedy to compel the adjudication of his application for citizenship, respondents point out that such an adjudication was made by the Bureau of Citizenship and Immigration Services ("CIS") on June 9, 2004. In a four-page written decision, CIS denied petitioner's application because of his extensive criminal history and lack of good moral character. ( See Resp. Ans., Exh. 1). Because petitioner has obtained all the relief to which he may be entitled by way of mandamus, this action should be dismissed as moot.

In addition to his federal conviction for misuse of a social security number, petitioner has a prior state conviction for aggravated assault on a peace officer and three prior state convictions for driving while intoxicated. ( See Resp. Ans., Exh. 1).

To the extent petitioner seeks an order compelling CIS to approve his application for citizenship, he has not exhausted his available administrative remedies. See 8 U.S.C. § 1447(a) and 8 C.F.R. § 336.9 (applicant may exhaust administrative remedies with respect to decision on naturalization by requesting a hearing before an immigration officer). Nor is petitioner entitled to release on bond pending his removal. As a permanent resident alien convicted of a deportable criminal offense, petitioner is not eligible for release on bond. See Denmore v. Kim, 538 U.S. 510, 513, 123 S.Ct. 1708, 1712, 155 L.Ed.2d 724 (2003) (upholding mandatory detention provisions of 8 U.S.C. § 1226(c)(1)).

RECOMMENDATION

Petitioner's application for writ of mandamus should be dismissed as moot.