"aging out", the customary practice of the INS is to expedite the
processing of that individual's claim. See id., ¶ 19. The
complaint herein is predicated upon what Sadowski perceives to be
the INS's failure to expedite his claim and its delay of
forty-two months which effectively resulted in the denial of his
adjustment of status application as a derivative beneficiary of
his mother. Sadowski contends that as a consequence of the INS's
alleged negligence he has suffered irreparable harm, including,
but not limited to, an unreasonable delay in establishing
eligibility for United States citizenship; an inability to travel
or relocate; an inability to enlist in the Armed Services of the
United States, to establish residency for tuition purposes, and
to obtain home or educational loans; and continuing mental and
emotional distress related to his unsettled residency status.
See id., ¶ 21.
This Court must determine whether subject matter jurisdiction
exists in the case at hand prior to addressing any of the
pleadings. See Steel Co. v. Citizens For a Better Environment,
523 U.S. 83, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998)
(rejecting the district court practice of assuming subject matter
jurisdiction arguendo in order to decide a case on its merits).
Sadowski alleges that the Court has subject matter jurisdiction
over this action pursuant to 28 U.S.C. § 1361 and
8 U.S.C. § 1329. His reliance upon these statutes, however, is incorrect.
A. Subject Matter Jurisdiction Under 28 U.S.C. § 1361
The jurisdictional claim grounded on § 1361, which relates to
mandamus relief, is addressed in Wan Shih Hsieh v. Kiley,
569 F.2d 1179, 1182 (2d Cir. 1978), where the Second Circuit
determined that "matters solely within the discretion of the INS
. . . are not reviewable under . . . 28 U.S.C. § 1361." This
sentiment is echoed in Zheng v. McElroy, No. 98 Civ. 1772, 1998
WL 702318, at *3 (S.D.N.Y. Oct.7, 1998), where the court ruled
that 28 U.S.C. § 1361 is inapplicable as a basis for jurisdiction
in an adjustment of status case, because the decision process in
immigration status matters should be left to the discretion of
the INS. Moreover, mandamus is not appropriate to these cases.
"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 non-discretionary duty." Rahman v.
McElroy, 884 F. Supp. 782, 787 (S.D.N.Y. 1995) (quoting Heckler
v. Ringer, 466 U.S. 602, 606-17, 104 S.Ct. 2013, 80 L.Ed.2d 622
(1984)). While the application of mandamus requires the existence
of a clear non-discretionary duty owed to a petitioner, no such
obligation to Sadowski exists in this matter, rendering the
application of 28 U.S.C. § 1361 inapposite.
B. Subject Matter Jurisdiction Under 8 U.S.C. § 1329
Sadowski's basis for jurisdiction under § 1329 is also
misplaced in this matter. In Howell v. Immigration and
Naturalization Serv., 72 F.3d 288 (2d Cir. 1995), the Second
Circuit, noting that several other courts had so determined, held
that district courts lack jurisdiction to review a district
director's denial of adjustment of status. Further, § 1329 "was
amended by § 381 of the Illegal Immigration Reform and Immigrant
Responsibility Act (`IIRIRA') and no longer provides jurisdiction
for suits filed on or after October 1, 1996." Zheng, 1998 WL
702318, at *4.
In their cross-motion to dismiss the present action, the INS
asserts that the Court does not have subject matter jurisdiction,
based upon 8 U.S.C. § 1252(a)(2)(B)(i) (Supp. II 1996), which
states in relevant part, "[n]otwithstanding 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." Section
1255 governs the criteria for granting applications for
adjustment of status. That provision therefore effectively bars
judicial review of a § 1255 application denial. See Zheng, 1998
WL 702318, at * 3. The disposition in Zheng supports this
notion. There the court stated that it was "unaware of any basis
upon which it could entertain jurisdiction over a section 1255
denial of adjustment of status. . . ." Id. at *5. Courts
generally have determined that judicial review of immigration
matters is extremely limited. See e.g., Landon v. Plasencia,
459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) ("Control
over matters of immigration is a sovereign prerogative, largely
within the control of the Executive and Legislature."); United
States v. ValenzuelaBernal, 458 U.S. 858, 864, 102 S.Ct. 3440,
73 L.Ed.2d 1193 (1982) ("The power to regulate immigration — an
attribute of sovereignty essential to the preservation of any
nation — has been entrusted by the Constitution to the political
branches of the Federal Government."); Fiallo v. Bell,
430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (holding that "it
is important to underscore the limited scope of judicial inquiry
into immigration legislation.").
The INS asserts that subject matter jurisdiction here can also
be challenged on the ground that Sadowski's action is moot. See
Government's Memorandum of Law in Opposition to Motion for
Summary Judgment and in Support of Cross-Motion, dated Jan. 12,
2000 ("Government Memo") at 12. The prohibition on review of moot
cases arises from "the Article III requirement that federal
courts adjudicate only `Cases' and `Controversies'". In re
Kurtzman, 194 F.3d 54, 58 (2d Cir. 1999). A case is moot "when
it becomes impossible for the courts through the exercise of
their remedial powers, to do anything to redress the injury".
Cook v. Colgate, 992 F.2d 17, 19 (2d Cir. 1993) (quoting
Alexander v. Yale, 631 F.2d 178, 183 (2d Cir. 1980)).
The INS asserts that the passing of the relevant deadline for
adjustment of status renders Sadowski's action moot, as an
individual who is over the age of twenty-one at the time of
processing is no longer eligible for legal permanent resident
status, thus providing no claim for this Court to adjudicate.
See Government Memo at 12. As previously noted, in order to
achieve derivative beneficiary status, an applicant must be
younger than twenty-one at the time legal permanent resident
status is granted, regardless of the application date. See
Reply Memo at 3. When a relevant deadline for adjustment of
status has passed, a request for relief is deemed plainly moot,
depriving district courts of subject matter jurisdiction. See
Cook, 992 F.2d at 19; Zapata v. Immigration and Naturalization
Serv., 93 F. Supp.2d 355, 358 (S.D.N.Y. 2000).
D. Exhaustion of Administrative Remedies
Beyond the mootness issue, Sadowski faces another
jurisdictional obstacle to bringing his action before the Court.
There is no indication from the pleadings that Sadowski has
appealed the decision of the INS to the Board of Immigration
Appeals. "As a matter of jurisdiction, courts may not review the
administrative decisions of the INS unless the appellant has
first exhausted all administrative remedies." Cardoso v. Reno,
216 F.3d 512, 517 (5th Cir. 2000) (internal quotations omitted)
(quoting Camacho-Marroquin, 188 F.3d 649, 651 (5th Cir. 1999)).
In Cardoso, a case with a fact pattern almost identical to
Sadowski's, the court held that the claimant could not directly
appeal the immigration judge's denial of adjustment of status at
the district court level, but could renew her application only
during deportation proceedings. See id. (citing
8 C.F.R. § 245.2(a)(5)(ii) (1999)); see also McBrearty v. Perryman,
212 F.3d 985, 987 (7th Cir. 2000) (claimants' suit was "premature,
since . . . they could obtain review of the district director's
decision by the Board of
Immigration Appeals if and when the immigration service
institutes removal (i.e., deportation) proceedings against
them"); Howell, 72 F.3d at 291 ("under the doctrine of
exhaustion of remedies, 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".)
Therefore, until Sadowski exhausts the administrative remedies
available to him, there is a jurisdictional bar to bringing this
claim before the Court.
E. Sadowski's Rebuttals
In response to the INS's arguments that this Court lacks
jurisdiction over the present matter pursuant to INA §
242(a)(B)(i), Sadowski concedes that the substance of the law is
correct and simply states that "any provision of law which
endeavors to strip the power of the federal judiciary to review
decisions of a federal agency should be approached with extreme
caution. On such slippery roads is democracy most often
derailed." Plaintiff's Answer and Memorandum of Law in Opposition
to Motion to Dismiss and in Support of Motion for Summary
Judgment, dated Feb. 15, 2000 ("Answer") at 7. Ultimately,
Sadowski appears to ask the Court to ignore INA § 242(a)(B)(i),
stating in support of that proposition: "[i]f we remove the
foundation from . . . INA § 242(a)(B)(i) . . . the court can
still do what it does best: do justice". Id. at 8. Concerning
the mootness of this matter, Sadowski states, "since the decision
of the defendants was to deny Sadowski's case solely on the
grounds that he no longer qualifies for a derivative immigrant
visa because he is a minor . . . the complaint is not at all
moot". Id. at 6. However, Sadowski's argument overlooks that,
for the exact reason he offers in support of the proposition that
the case is not moot, the opposite is true, and thus no relief
can be granted by this Court, regardless of whether or not the
case has been substantively adjudicated.
Accordingly, and for the reasons set forth in the foregoing
Decision, it is hereby
ORDERED that Mariusz Sadowski's motion for summary judgment
is denied; and it is further
ORDERED that defendants' cross motion to dismiss is granted.
The Clerk is directed to close this case.
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