Civil Action No: 02-1338 Section: "R" (5)
February 14, 2003
ORDER AND REASONS
Before the Court is the Immigration and Naturalization Service's ("INS") motion to dismiss for lack of subject matter jurisdiction plaintiff's declaratory judgment action for judicial review of the INS' denial of plaintiff's application for asylum and denial of her motion to reopen her case. For the following reasons, the Court GRANTS defendant's motion to dismiss.
Plaintiff, Carine Umuzayire, a Rwandan citizen, entered the United States on June 22, 1999 on a non-immigrant student visa. On May 1, 2000, plaintiff filed an application for asylum with the INS Asylum Office in Houston, Texas, claiming that she suffered past persecution and had a well-founded fear of future persecution in Rwanda.
The Houston Asylum Office investigated plaintiff's case and issued a notice of intent to deny plaintiff's application on June 14, 2000. The office found that she had failed to present credible evidence, but it permitted her to submit rebuttal or new evidence. On June 23, 2000, plaintiff submitted an affidavit to the Asylum Office that explained her position. She also submitted a letter from a United Nations official that confirmed the events that plaintiff said had taken place in Rwanda. On July 5, 2000, the INS issued a final denial of plaintiff's application. The INS informed plaintiff that she would continue in valid non-immigrant status and that she would not be subject to removal proceedings as long as she maintained the conditions appropriate to that status. The INS also informed her that there was no appeal from its decision.
Plaintiff filed a motion to reopen, which the INS denied on April 4, 2002. The INS informed plaintiff that she could reapply for asylum by filing another asylum application with the proper office. Plaintiff instead filed a declaratory judgment action in this Court under 28 U.S.C. § 1331 and 1346, 5 U.S.C. § 701 (the Administrative Procedure Act), and 28 U.S.C. § 2201 (the Declaratory Judgment Act), claiming that the INS abused its discretion by denying her application and her motion to reopen. The INS moves to dismiss for lack of subject matter jurisdiction.
The Immigration and Nationality Act ("the Act") provides:
Any alien who is physically present in the United States or who arrives in the United States . . . irrespective of such alien's status, may apply for asylum in accordance with this section.8 U.S.C. § 1158 (a)(1). Asylum officers have considerable discretion under the Act and the Code of Federal Regulations to approve, deny, dismiss, or refer asylum applications. 8 C.F.R. § 208.14 (b)-(c), 208.13(b)(1)(i). The Code provides, however, that if an INS officer decides not to grant asylum after conducting an interview with an applicant who is in valid status at the time of her application, the officer shall deny (rather than dismiss or refer) the application. 8 C.F.R. § 208.14 (c)(2). In paragraph 2 of section 1158(a) of the Act, there are exceptions to an alien's general ability to apply for asylum, including the following:
(C) Previous asylum applications. Subject to subparagraph (D), paragraph (1) shall not apply to an alien if TB alien has previously applied for asylum and had such application denied.
(D) Changed circumstances. An application for asylum of an alien may be considered . . . if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum . . .8 U.S.C. § 1158(a)(2)(C)-(D). The Act then provides, "No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2)." 8 U.S.C. § 1158 (a)(3). Plaintiff argues that, because her application for asylum was denied and she cannot show changed circumstances, she is ineligible to apply for asylum relief. Plaintiff proposes that she therefore does not fall under paragraph 2 and that this Court has jurisdiction to review the INS' determination. The Code of Federal Regulations provides, however, that "an asylum application has not been denied unless denied by an immigration judge or the Board of Immigration Appeals." 8 C.F.R. § 208.4(a)(3). The Court therefore finds plaintiff's argument meritless.
An alien has two tiers of appeal within the administrative process for appealing the denial of asylum by an INS office. First, the alien may renew the application at a removal proceeding before an immigration judge under de novo review; second, the alien may appeal an adverse decision by the immigration judge to the Board of Immigration Appeals ("BIA") under de novo review. 8 U.S.C. § 1252; 8 C.F.R. § 208.2 (b), 208.4(b)(3)(i), 3.1(b)(3) (9). Judicial review of an adverse decision by the BIA lies exclusively in the appropriate court of appeals. 8 U.S.C. § 1252 (b)(2). Aliens must exhaust these administrative remedies before seeking review in the courts of appeals of a final order of removal or exclusion. 8 U.S.C. § 1252(d).
Further, the Administrative Procedure Act ("APA") permits judicial review of final agency action for which there is no adequate administrative remedy. 5 U.S.C. § 702, 704. Under the ABA, however, judicial review of agency action may be circumscribed where it is expressly precluded by statute or where congressional intent to preclude judicial review is "fairly discernible" in the statutory scheme. 5 U.S.C. § 701 (a)(1); see also Block v. Community Nutrition Institute, 467 U.S. 340, 351 (1984)
Plaintiff argues that the judicial review provision of section 1252(d) of the Act is not applicable to preclude jurisdiction under the APA because she has not yet entered removal proceedings. Rather, she argues that the APA applies to her because she has been forced into a situation in which she has no right to appeal the INS' denial of her asylum application unless and until she is in removal proceedings. Plaintiff asserts that she would have to violate the law to render herself removable, which is an untenable solution.
While it is true that plaintiff is not yet in removal proceedings because she is in valid non-immigration visa status, her argument is flawed in several ways. First, in an oft-cited case addressing the question of district court review of INS denials of asylum applications in the context of the Act's legislative history, the Seventh Circuit held that, in providing an avenue for review by the Immigration Judge, the BIA, and the court of appeals, "Congress intended to establish a systematic scheme for admitting refugees but failed to reveal any evidence of congressional intent to allow review of the District Director's denial of an asylum petition." Kashani v. Nelson, 793 F.2d 818, 824 (7th Cir. 1986). The Southern District of New York articulated the illogical implications of plaintiff's suggested course:
There is and can be no question that plaintiffs can assert any claims they have with respect to political asylum before an Immigration Judge in deportation or exclusion proceedings with a subsequent appeal to the Board of Immigration Appeals ("BIA") and judicial review by the Court of Appeals. . . Thus, the effect of adopting plaintiffs' position would be to afford judicial review twice — once by resort to the District Court from the discretionary denial of asylum by the District Director, and then again to the Court of Appeals following an unsuccessful de novo presentation to an Immigration Judge and appeal to the BIA.
Such a tortuous procedure would clearly circumvent the asylum procedure. . . In short, dismissing plaintiffs' claims at this stage does not deny them judicial review, but merely defers it to a later date.Chung v. Smith, 640 F. Supp. 1065, 1068-69 (S.D.N.Y. 1986). Following this line of reasoning, courts have consistently held that before an alien can seek judicial review on the merits of a denial of an individual asylum application, the alien must exhaust available administrative remedies. See Townsend v. United States Dep't of Justice I.N.S., 799 F.2d 179, 181 (5th Cir. 1986) (when exhaustion is statutorily mandated, the requirement is jurisdictional); Kashani, 793 F.2d at 826 (noting that goals of judicial and administrative efficiency are promoted in requiring an alien seeking asylum to exhaust his administrative remedies before seeking judicial relief); Haitian Refugee Center v. Smith, 676 F.2d 1023, 1033 n. 23 (5th Cir. 1982) (district court does not have jurisdiction to review an individual deportation order on its merits); Hernandez v. Immigration and Naturalization Service, 539 F.2d 384, 386 (5th Cir. 1976). See also generally McKart v. United States, 395 U.S. 185, 193-95 (1969) (holding that the exhaustion requirement avoids "premature interruption of the administrative process" and preserves agency discretion, expertise, correction, and efficiency); Sweet Life v. Dole, 876 F.2d 402, 407 (5th Cir. 1989) (holding exhaustion required, in part, "because of the possibility that administrative review might obviate the need for judicial review")
Second, plaintiff's argument that, under the APA, she is entitled to judicial review of final agency action because she has no adequate administrative remedy fails because, as the court stated in Chung, dismissing plaintiffs' claims at this stage does not deny her judicial review, but merely defers it to a later date. Chung, 640 F. Supp. at 1068-69. When plaintiff's visa status changes at some point in the future, as it inevitably will, and she is no longer able to remain in the country legally, she is guaranteed the opportunity to access the appellate review she seeks.
For the foregoing reasons, the Court finds that it does not have jurisdiction over plaintiff's claim under the APA or the federal jurisdiction statute, 28 U.S.C. § 1331. Further, the Court does not have jurisdiction under 28 U.S.C. § 1346 because plaintiff is not seeking monetary damages. See, e.g., Richardson v. Morris et al., 409 U.S. 464 (1973). Lastly, the Court does not have jurisdiction under 28 U.S.C. § 2201, the Declaratory Judgment Act, because a declaratory judgment action must have an independent basis of subject matter jurisdiction. See, e.g., Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950).
Accordingly, defendant's motion to dismiss plaintiff's claim for lack of subject matter jurisdiction is GRANTED.