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May 27, 2004.

JOHN ASHCROFT, United States Attorney General; TOM RIDGE, Secretary, Department of Homeland Security, Defendants.

The opinion of the court was delivered by: STERLING JOHNSON, JR., District Judge


Lyudmila Minkina ("Plaintiff" or "Minkina") brought the above-captioned action asking the Court to compel the Immigration and Naturalization Service ("INS") and the United States Department of Justice ("DOJ") to issue her a visa under the Soviet Scientists Immigration Act of 1992 ("SSIA"). On July 24, 2002, this Court granted Defendants' motion to dismiss, finding that Minkina's application was moot. Following an subsequent change in the law, the Court of Appeals for the Second Circuit summarily vacated the dismissal and remanded. On remand, this Court finds that Plaintiff has failed to exhaust her administrative remedies, and thus the Court lacks subject matter jurisdiction over the claim. Accordingly, the action must be dismissed.


  Plaintiff, a native and citizen of Ukraine, applied for a visa under the SSIA, which made available a limited number of immigrant visas to certain eligible scientists from former Soviet states. In its original enactment, the SSIA charged the Attorney General with allocating these immigrant visas and declared that this authority "shall terminate" on October 24, 1996. SSIA § 4(d), 8 U.S.C. § 1153(b)(2)(A) (Supp. V 1999). The SSIA is subject to provisions of § 245 of the Immigration and Nationality Act ("INA"), and Congress directed the Attorney General to promulgate additional rules to regulate the issuance of the special visas under the SSIA.

  Section 245 of the INA provides that "The status of an alien . . . may be adjusted . . . to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed." 8 U.S.C. § 1255(a). The specific regulations promulgated by the Attorney General for administration of the SSIA provided that "[a]n application for adjustment of status, as a preference alien, shall not be approved until an immigrant visa number has been allocated by the Department of State." 8 C.F.R. § 245.2(a)(2) (2001). Thus, in order to be eligible for approval of a visa under the SSIA, the applicant must show that a visa is immediately available for her.

  Minkina entered the United States on a temporary visa on October 10, 1995 and applied for adjustment of status under the SSIA one year later. On June 30, 1999, the INS District Director for the New York District denied Minkina's application for adjustment of status on the basis that she did not have an approved and immediately available immigrant visa when she applied for adjustment of status, as required by 8 U.S.C. § 1255(a). In his decision, the District Director noted that immigrant visa petitions under the SSIA must have been approved by October 24, 1996, and that Minkina did not apply for an immigrant visa until April 5, 1999.

  Minkina then filed suit in federal court to compel the INS and DOJ to issue her a visa. In its July 24, 2002 Order, this Court held, under the mootness doctrine, that it had no jurisdiction over Plaintiff's request because Congress had terminated the Attorney General's authority to allocate visas under the SSIA as of October 24, 1996, and thus there was no relief that could be granted. Plaintiff's Motion for Reconsideration was denied. Thereafter, Plaintiff appealed the decision to the Second Circuit.

  On September 30, 2002, and subsequent to this Court's decision, Congress reauthorized the Attorney General's authority to issue visas under the SSIA. See Foreign Relations Authorization Act, Fiscal Year 2003, Div. B. Title XIII, § 1304(a); 116 Stat. 1436. Under those amendments, Congress gave the Attorney General the authority to grant an additional 200 special visas (more than the 750 originally approved) and extended that authority for an additional four-year period beginning September 30, 2002. In light of this change in the law, the Second Circuit found that Minkina's petition was no longer moot, and summarily vacated this Court's decision and remanded her petition.*fn1


  On remand, this Court must first determine whether it may exercise subject matter jurisdiction over Plaintiff's request.*fn2 Defendants renew their jurisdictional argument based on Plaintiff's failure to exhaust administrative remedies.*fn3 "The general rule is that `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.'" Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir. 2003) (quoting Howell v. INS, 72 F.3d 288, 291 (2d Cir. 1995)) (add'l quotations omitted). "[The exhaustion rule] is based on the need to allow agencies to develop the facts, to apply the law in which they are peculiarly expert, and to correct their own errors. The rule ensures that whatever judicial review is available will be informed and narrowed by the agencies' own decisions. It also avoids duplicative proceedings, and often the agency's ultimate decision will obviate the need for judicial intervention." Guitard v. United States Sec'y of the Navy, 967 F.2d 737, 741 (2d Cir. 1992) (citations omitted).*fn4

  Furthermore, judicial review in immigration matters is narrowly circumscribed. See e.g. Reno v. Flores, 507 U.S. 292, 305 (1993) ("`[O]ver no conceivable subject is the legislative power of Congress more complete.'" (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977). Congress has specifically charged the Attorney General with administration and enforcement of laws relating to the immigration and naturalization of aliens, including promulgation of rules and regulations to carry out this authority. 8 U.S.C. § 1103(a). See also Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 171 (1993).

  Defendants argue that under these regulations, as codified at 8 C.F.R. § 245.2(a)(5)(ii) and 1245(a)(5)(ii), Plaintiff's only remedy following denial of her application for adjustment of status lies in her right to renew her application in removal proceedings before an immigration judge and the Board of Immigration Appeals. (October 22, 2003 Letter of Steven J. Kim at 2.) The Court is troubled by this argument, since this potential avenue of relief would only be available "if and when the immigration service institutes removal (i.e., deportation) proceedings." McBrearty v. Perryman, 212 F.3d 985, 987 (7th Cir. 2000).

  The Second Circuit has not decided whether a district court may exercise subject matter jurisdiction over a denial of adjustment of status before an applicant is subject to removal proceedings. Howell v. INS, 72 F.3d 288, 293 n. 5 (2d Cir. 1995) (Finding that the district court lacked jurisdiction to review the district director's denial of an application for adjustment of status once deportation proceedings commenced and prior to exhausting these proceedings, but declining to address the jurisdictional question where removal proceedings had not yet begun). Other circuit courts and some district courts have concluded that this potential avenue for relief is a sufficient administrative remedy, which, if unexhausted, precludes subject matter jurisdiction in the district court. See Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir. 2000) (finding no subject matter jurisdiction where plaintiff "may . . . renew her request [for adjustment of status] upon the commencement of removal proceedings."); McBrearty, 212 F.3d at 987 ("The suit was premature, since . . . [plaintiffs] 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."); Sadowski v. INS, 107 F. Supp.2d 451, (S.D.N.Y. 2000) (dismissing the action for lack of subject matter jurisdiction in accordance with the reasoning in Cardoso); Chan v. Reno, 916 F. Supp. 1289, (S.D.N.Y. 1996) ("Plaintiffs, because they have not been subjected to deportation proceedings, have not yet exhausted their administrative remedies.").

  Yet at least one court has found, in a similar situation, that the mere possibility of deportation proceedings, at some time in the indefinite future, is not a sufficient administrative remedy to preclude federal court review under the exhaustion doctrine. Rong-Hua Chen v. Reno, No. 96 Civ. 5792, 1997 WL 316482, at *2 (S.D.N.Y. June 11, 1997) (finding that plaintiff "has exhausted his administrative remedies because as a denied applicant not in deportation proceedings, he has no further options under the regulatory or statutory scheme to force a prompt decision by the INS."). See also Jaa v. INS, 779 F.2d 569, 571 (9th Cir. 1986) (holding that district court "has jurisdiction to review a denial of status adjustment."); Karim v. INS New York Dist. Office, No. 95 Civ. 510, 1998 WL 60949, at 3 (S.D.N.Y. Feb. 13, 1998) (finding subject matter jurisdiction where plaintiffs' adjustment of status applications were denied but deportation proceedings had not begun) (vacated by No. 95 Civ. 510, 1999 WL 105037, at *2 (S.D.N.Y. March 1, 1999) (vacating its own previously entered judgment finding subject matter jurisdiction because plaintiffs had an alternative form of administrative relief through filing another adjustment of status claim in asylum proceedings). After all, such plaintiffs could not even raise the argument until the Bureau of Citizenship ...

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