United States District Court, Southern District of New York
August 8, 1991
RENE WILFRED MOLINA CALERO, PLAINTIFF,
IMMIGRATION AND NATURALIZATION SERVICE, WILLIAM S. SLATTERY, IN HIS OFFICIAL CAPACITY AS DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION SERVICE, RICHARD THORNBURGH, IN HIS CAPACITY AS ATTORNEY GENERAL OF THE U.S., AND IMMIGRATION AND NATURALIZATION SERVICE, AN AGENCY OF THE DEPARTMENT OF JUSTICE, DEFENDANTS.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
OPINION AND ORDER
In this action, plaintiff, a 15-year-old illegal alien,
seeks appointment of a guardian ad litem to represent him in
deportation proceedings. The government moves pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure to dismiss the action for lack of subject matter
jurisdiction and failure to state a claim upon which relief
can be granted. For the reasons set forth below, the
government's motion is granted.
Rene Wilfred Molina Calero ("Calero") was apprehended on
February 12, 1991 when he entered the United States without
inspection at Brownsville, Texas. On February 21, 1991 Calero
was released on his own recognizance upon application by his
brother-in-law who resides in Huntington Station, New
York.*fn1 Plaintiff's deportation proceedings were
transferred to New York.
The proceedings were twice adjourned, on March 27 and April
24, 1991, at the request of Bruno Joseph Bembi ("Bembi"), an
attorney present with Calero at the proceedings, to permit
Calero to obtain appointment of a guardian ad litem. On June
26, 1991 Immigration Judge Peggy M. McManus
advised plaintiff he could appear at the next hearing
scheduled for July 3, 1991 with an authorized representative,
friend, guardian or relative.
On July 3, 1991 Bembi submitted a notice of appearance along
with written notice that plaintiff was not waiving his request
for appointment of a guardian ad litem. The Immigration Judge
refused to accept the written notice and Bembi stated Calero's
position on the record. The proceedings were adjourned to
August 27, 1991.
Under the heading "Jurisdiction," the complaint in this
action filed April 25, 1991 states that application is made
under Rule 17(c) of the Federal Rules of Civil Procedure for
appointment of a guardian ad litem. Rule 17(c) provides in
. . An infant or incompetent person who does
not have a duly appointed representative may sue
by next friend or by a guardian ad litem. The
court shall appoint a guardian ad litem for an
infant or incompetent person not otherwise
represented in an action or shall make such other
order as it deems proper for the protection of
the infant or incompetent person.
This rule does not confer subject matter jurisdiction on a
federal district court. See Fed.R.Civ.P. 82. Even construing
the allegations of the complaint in favor of the pleader, see
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40
L.Ed.2d 90 (1974), no federal question is presented in the
complaint and this Court lacks subject matter jurisdiction.
The most an alien is entitled to in deportation proceedings
is to be represented by an attorney or "other representative
of his or her choice" at no expense to the government.
8 U.S.C. § 1362. An immigration judge may not accept an admission
of deportability from an unrepresented alien under age 16 not
accompanied by a guardian, relative or friend but must instead
conduct a hearing on the issues. 8 C.F.R. § 242.16(b) (1991).
Mr. Bembi, an attorney, has filed a notice of appearance in
Calero's case and will presumably appear on Calero's behalf in
future deportation proceedings concerning plaintiff. Although
Calero's relatives want Bembi to represent Calero, Bembi is
concerned that this 15-year-old is not legally competent to
retain him and wants a guardian ad litem to be appointed to
retain Bembi as Calero's counsel. Under these circumstances,
plaintiff's complaint fails to state a claim for relief under
federal law. Accordingly, the complaint is dismissed. This case
is ordered closed.
IT IS SO ORDERED.