United States District Court, S.D. New York
April 5, 2004.
LY CHECKNAN, Plaintiff, -against- EDWARD McELROY, Defendant
The opinion of the court was delivered by: RONALD ELLIS, Magistrate Judge
OPINION AND ORDER
Petitioner Ly Checknan ("Checknan") seeks a writ of mandamus and a
declaratory judgment compelling the Immigration and Naturalization
Service ("INS")*fn1 to place him in removal proceedings. Checknan
alleges jurisdiction in his complaint under the declaratory judgment
statutes, 28 U.S.C. § 2201, 2202; under the mandamus statute,
28 U.S.C. § 1361; under the Administrative Procedure Act ("APA"),
5 U.S.C. § 701 et. seq.; and under the Immigration and Nationality
Act's jurisdiction statute, 8 U.S.C. § 1329. In his papers, Checknan
also contends that there is jurisdiction over a federal question under
28 U.S.C. § 1331. The parties have consented pursuant to 28 U.S.C. § 636(c)
to have all matters resolved by the undersigned. The Government
has moved to dismiss the complaint: (1) for lack of subject matter
jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure;
and (2) for failure to state a claim under Rule 12(b)(6). For the reasons set forth below, Checknan's complaint is
DISMISSED without prejudice.
A. Factual History
Checknan, a citizen of the Republic of the Ivory Coast, entered the
United States on July 25, 1990, under a temporary visitor's visa that
authorized him to stay until October 25, 1990. Plaintiff's Complaint for
Declaratory Relief and for a Writ in the Nature of Mandamus to Instruct
Defendants [sic] to Place Him in Removal Proceedings ("Compl.") at ¶¶
8(a), 8(d), 8(e). Checknan did not leave the United States when his stay
expired. Compl. at ¶¶ 8(c), 8(f). He has been continuously physically
present in the United States since his arrival. Compl. at ¶ 8 and
Exhibit ("Exh.") D (Letter to District Counsel, INS, dated April 22,
2002). He also has three minor children who are United States citizens by
birth. Compl. at Exh. A (Birth Certificates, Ousmane Ly, born May 5, 1996;
Assahtra Ly, born April 23, 1999; and Thata Ly, born October 23, 2001).
B. Procedural History
On December 10, 1990, Checknan filed an application with the INS seeking
asylum in the United States and withholding of deportation to the Ivory
Coast, pursuant to sections 208(a) and 243(h)(1) of the Immigration and
Nationality Act of 1952 ("INA"), as amended, 8 U.S.C. § 1158(a),
1253(h)(1) (1988). Compl. at ¶ 8(f); Defendant's Memorandum of Law in
Support of its Motion to Dismiss the Complaint ("Def. Mem.") at 4.
On May 2, 1996, Checknan was served with an Order to Show Cause ("OSC"),
charging that he was deportable from the United States as an alien
present in the United States in violation of law,*fn2 pursuant to former section 241(a)(1)(B) of the INA,
8 U.S.C. § 1251(a)(1)(B) (1988) (recodified without substantive
alteration as INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B)).
Compl. at ¶ 8(g) and at Exh. C (Board of Immigration Appeals'
Decision, dated Jan. 31, 2002, setting forth deportation charge); Def.
Mem. at 4.
On December 4, 1997, an immigration judge ("U") issued an order denying
Checknan's application for asylum and withholding of deportation. Compl.
at ¶ 8(i); Def. Mem. at 4. Checknan appealed the IJ's decision to the
Board of Immigration Appeals ("BIA"). Compl. at ¶ 8(j); Def. Mem. at
4. On August 1, 2000, the BIA issued a per curium decision
administratively closing Checknan's deportation proceeding so that the
Attorney General could elect to terminate deportation proceedings, and
reinstate the matter as removal proceedings. Compl. at Exh. B (Board of
Immigration Appeals' Decision, dated Aug. 1, 2000). The BIA held that the
IIRIRA gave the Attorney General discretion to terminate deportation
proceedings in which no final administrative decision had been issued and
reinstate the matter as a removal proceeding. Compl. at Exh. B. Further,
the BIA stated that this might make a non-lawful permanent alien such as
Checknan eligible for "cancellation of removal," pursuant to section
240A(d)(1) of the INA, 8 U.S.C. § 1229b(d)(1) (Supp. IV 1998), by
allowing him to avoid the "stop-time rule" in IIRIRA § 309(c)(5), 110
Stat 3009-627 (1996) (providing that time counted towards an alien's
fulfillment of seven years' continuous physical presence in the United
States ceases when the alien is served with an Order to Show Cause).
Compl. at Exh. B (citing Nicaraguan Adjustment and Central American
Relief Act of 1997 ("NACARA"), Pub.L. No. 105-100, Title II § 203(a)(1), 11 Stat 2160, 2196 (Nov. 19, 1997) (extending
application of stop-time rule to aliens placed into deportation
proceedings before April 1, 1997, IIRIRA's effective date)).
Checknan moved to reopen his terminated deportation proceedings so that
he could apply for cancellation of removal. Compl. at ¶ 8(1) and at
Exh. C (Board of Immigration Appeals' Decision, dated Jan. 31, 2002). The
BIA issued a per curium decision denying Checknan's request to
reinstate proceedings because only the INS had the authority to terminate
deportation proceedings, and recharge in removal proceedings.
Id. The BIA directed Checknan to file his
request to the INS. Id.
In a letter dated April 22, 2002, Checknan requested that the INS
"repaper" him and reinstate the matter as removal proceedings so that he
could apply for cancellation of removal. Id. at ¶ 8(n) and
at Exh. D (Letter to District Counsel, INS, dated April 22, 2002). Thus
far, the INS has not responded to Checknan's request. Id. at
On August 21, 2002, Checknan filed this complaint seeking (1) a writ of
mandamus; and (2) a declaratory judgment compelling the INS to place him
in removal proceedings. On August 7, 2003, the Government moved to
dismiss the complaint for lack of subject matter jurisdiction and for
failure to state a cognizable claim.
A. Subject Matter Jurisdiction
On a motion to dismiss, the factual allegations contained in the
complaint are accepted as true, and the plaintiff given the benefit of
all reasonable inferences. See Conboy v. A T & T
Corp., 241 F.3d 242, 246 (2d Cir. 2001); see also
Gant v. Wallinford Bd. Of Educ., 69 F.3d 669, 673 (2d Cir.
1995). The Court must not weigh the evidence that would have been
presented at trial, but "merely [ ] determine whether the complaint itself is
legally sufficient" Goldman v. Belden, 754 F.2d 1059, 1067 (2d
Cir. 1987). Therefore, the Government's motion to dismiss may only be
granted if Checknan can prove no set of facts entitling him to the relief
requested. See Conley v. Gibson, 355 U.S. 41, 45-46
(1957); Connollv v. McCall, 254 F.3d 36, 40 (2d Cir. 2001).
Checknan must demonstrate the basis for jurisdiction on the face of the
complaint. See Metropolitan Life Ins. Co. v.
Taylor, 481 U.S. 58, 63 (1987); Fleet Bank, N.A. v. Burke,
160 F.3d 883, 885-86 (2d Cir. 1998).
In its motion to dismiss pursuant to Rule 12(b)(1), the Government
argues that Checknan has failed to offer grounds that would confer
jurisdiction on this Court to compel the INS to place him in removal
1. Neither the Declaratory Judgment Act nor the Mandamus
Statutes Provide a Basis for Jurisdiction
The declaratory judgment statutes, 28 U.S.C. § 2201, 2202, are not
an independent basis for subject matter jurisdiction in the district
courts. See Skelly Oil Co, v, Phillips Petroleum
Co., 339 U.S. 667, 671-72 (1950). Unless Checknan's claim itself
involves a federal question, no subject matter jurisdiction exists.
Invoking the mandamus statute does not cure this problem. "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 defendant owes him a clear
non-discretionary duty." Sandowski v. INS, 107 F. Supp.2d 451,
453 (S.D.N.Y. 2000) (internal quotations and citations omitted).
Matters within the INS's discretion are not reviewable under the mandamus
statute. See Hsieh v. Kiley, 569 F.2d 1179, 1182 (2d
Cir. 1994) (district court does not have jurisdiction under the APA or mandamus statute to
compel the INS to pursue inquiry into rescinding alien's status since
matter is solely within INS's discretion). Moreover, IIRIRA §
309(c)(3) "confers complete discretion on the Attorney General regarding
whether to repaper a particular case." Rojas-Reyes v.
INS. 235 F.3d 115, 126 (2d Cir. 2000). Similarly, the courts have
repeatedly found that mandamus relief is not available for delays in
processing applications. See Sandowski,
107 F. Supp.2d at 453. Here, Checknan has not exhausted all available remedies
of relief because the INS has yet to issue a decision either denying or
instituting removal proceedings. In addition, Checknan is arguing that
the INS owes him a duty, but the requested action is clearly within the
discretion of the Attorney General.
2. Checknan's Claims are Barred by the APA
The APA itself does not confer jurisdiction on a district court to
review the decision of an administrative agency. See
Califano v. Sanders, 430 U.S. 99, 107 (1977); Clark v.
Commodity Futures Trading Commission, 170 F.3d 110, 113 n.1 (2d Cir.
1999); B.K. Instrument Inc. v. United States, 715 F.2d 713, 723
(2d Cir. 1983). Although there is a presumption in favor of judicial
review of agency actions, that presumption may be overcome if the
statutory scheme indicates that Congress intended to preclude judicial
review. See Block v. Community Nutrition Institute,
467 U.S. 340, 349 (1984); Dew v. United States,
192 F.3d 366, 371-72 (2d Cir. 1999). Under 5 U.S.C. § 701(a)(2), the APA does
not apply "to the extent that . . . agency action is committed to agency
discretion by law." "[W]here a decision is committed to agency
discretion, `review is not to be had if the statute is drawn so that a
court would have no meaningful standard against which to judge die
agency's exercise of discretion.'" Dina v. Attorney General,
793 F.2d 473, 476 (2d Cir. 1986) (quoting Heckler v.
Chancy, 470 U.S. 821, 830 (1985)); see also Lincoln v.
Vigil 508 U.S. 182, 190-91 (1993); Marlow v. U.S. Dept of
Education, 820 F.2d 581, 582 (2d Cir. 1987) (per curiam).
Thus, the INS has non-reviewable discretion in its determination whether
to institute removal proceedings against Checknan.
The APA limits the ability of this Court to review the INS's refusal to
take any enforcement action. `"[G]eneral unsuitability for judicial
review of agency decisions to refuse enforcement,' arises because failure
to act is hard to review; by contrast, "when an agency does act
to enforce, that action itself provides a focus for judicial review,
inasmuch as the agency must have exercised its power in some manner."
Dina v. Attorney General, 793 F.2d at 477 (concurring opinion)
(quoting Heckler v. Chaney, 470 U.S. at 831-832)
(emphasis in original). If the INS chooses to institute removal
proceedings and grant Checknan's request, this motion compelling removal
proceedings would be rendered moot
Although Checknan relies on Yu v. Brown, 36 F. Supp.2d 922
(D. N.M. 1999), to argue that this Court, under the APA, should have
jurisdiction to consider claims in which the INS delayed processing for
one year, Checknan's reliance is unavailing. In Yu v. Brown,
the court held that where the INS normally processed such applications in
six months, a delay of one year was unreasonable as a matter of law.
See 36 F. Supp.2d at 935. Here, unlike Yu v. Brown,
Checknan has failed to state the typical processing time for such
applications and to show that his application is not being processed in a
timely fashion. Moreover, as stated in 8 U.S.C. § 1229b(e)(1), the
Attorney General may not cancel the removal and adjust the status of a
total of more than 4,000 aliens in any fiscal year. Therefore, as stated
in Yu v. Brown, "the reasonableness of such delays depends on
the facts and circumstances of each individual case." 36 F. Supp.2d at 935.
3. Checknan's Claims are Barred by the Immigration and
Nationality Act's Jurisdiction Statute, 8 U.S.C. § 1329
Despite Checknan's claim, this Court does not have subject matter
jurisdiction to review his claim under the Immigration and Nationality
Act's jurisdiction statute, 8 U.S.C. § 1329. This section states, in
relevant part, that it shall not "be construed as providing jurisdiction
for suits against the United States or its agencies or officers." Thus,
although this Court has general jurisdiction to review actions of the
INS, it lacks jurisdiction to compel the INS to act in matters that are
clearly within the discretion of the INS, particularly where there has
been no final determination by the administrative agency. See
Howell v. INS, 72 F.3d 288 (2d Cir. 1995) (alien failed to
exhaust administrative remedies and alien must pursue these remedies
rather than seek review in district court pursuant to
8 U.S.C. § 1329).
B. Checknan's Claims are Barred under the Federal Question
Checknan alleges that 28 U.S.C. § 1331 gives this Court subject
matter jurisdiction. However, as the Second Circuit has stated regarding
28 U.S.C. § 1331, "[f]ederal question jurisdiction generally exists
only when a well-pleaded complaint raises issue of federal law on its
face." Smith v. Dunham-Bush. Inc., 959 F.2d 6, 8 (2d Cir. 1992).
Here, Checknan has failed to identify an interest of which he has been
deprived that is protected by federal law. Since the INS has not yet
issued a decision on whether to institute removal proceedings, Checknan
has not been deprived of his right to due process.
For the foregoing reasons, the complaint is DISMISSED without
prejudice and the clerk is directed to enter the judgment against Plaintiff.