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United States District Court, S.D. New York

July 27, 2004.

DEPARTMENT OF HOMELAND SECURITY-UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, EDWARD McELROY, as District Director for the New York District, and TOM RIDGE, Secretary of the Department of Homeland Security, Defendant.

The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District


Plaintiff George Dinsey is an alien who married a United States citizen while he was illegally present in the United States, and then sought United States citizenship by virtue of the marriage. He has brought this action against defendants Department of Homeland Security-United States Citizenship & Immigration Services, Edward McElroy, as District Director for the New York District, and Tom Ridge, as Secretary of the Department of Homeland Security. Dinsey seeks declaratory and injunctive relief ordering defendants to withdraw a previous denial of his wife's Alien Relative Petition ("I-130") filed on his behalf, and to grant him a hearing on whether to adjust his status to that of a lawful permanent resident. Defendants have moved to dismiss Dinsey's complaint for lack of jurisdiction. For the reasons set forth below, defendants' motion to dismiss is granted.


  Plaintiff Dinsey is a native of Ghana and currently resides in New York. (Amended Complaint for Mandamus Relief ("Am. Compl.") ¶ 5) Defendant Department of Homeland Security-United States Citizenship & Immigration Services (the "Agency") is an agency of the United States government with offices in New York. (Id. at ¶ 6) Defendant McElroy is the District Director of the New York District of the Agency and is charged with the over-all responsibility for setting and regulating administrative procedures within the New York District of the Agency. (Id. at ¶ 7) Defendant Ridge is the Secretary of the Department of Homeland Security ("Department"). (Id. at ¶ 8)


  Defendants have moved to dismiss plaintiff's complaint under Fed.R.Civ.P. Rule 12(b)(1), arguing that the court lacks subject matter jurisdiction. The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Dinsey's Amended Complaint for Mandamus Relief is riddled with factual gaps and conclusory claims. Nevertheless, all ambiguities — of which there are many — and reasonable inferences have been drawn in his favor. See Id. On a 12(b)(1) motion, the court also "may refer to evidence outside the pleadings." Id. The following facts have been drawn from the allegations in and exhibits attached to Dinsey's Amended Complaint for Mandamus Relief.

  Dinsey entered the United States on January 4, 1992, with a non-immigrant visitor visa permitting him to stay until July 3, 1992. (Am. Compl., Ex. B (Notice to Appear dated Nov. 4, 2002)) Dinsey remained unlawfully in the United States after his visa expired and married Regina Dinsey, a United States citizen, on August 13, 1996. (Id.) In December 1996, Dinsey's wife filed an I-130 on his behalf. (Id. at Ex. G (Notice of Intent to Deny I-130 Petition dated Feb. 11, 2004 ("Notice of Intent"))) The Dinseys were interviewed separately on February 29, 2000, by an Agency officer to determine whether their marriage was bona fide or instead entered for the purpose of evading the immigration laws. (Id.) These interviews are called Stokes interviews. See Stokes v. United States I.N.S., 393 F. Supp. 24, 31 (S.D.N.Y. 1975). On February 13, 2001, the Agency denied the I-130 due to discrepancies between Dinsey's and his wife's testimony and based on their failure to provide sufficient documentary evidence. (Notice of Intent)

  Dinsey's wife appealed the Agency's denial of her I-130 to the Board of Immigration Appeals (the "BIA"). (Am. Compl., Ex. G (BIA Order dated Apr. 9, 2002 ("BIA Order")) The BIA denied her appeal on April 9, 2002, finding "that the petitioner was given sufficient opportunity but failed to rebut the discrepancies between the testimony of the petitioner and the beneficiary at the interview; nor did the petitioner on appeal persuasively rebut the discrepancies." (Id.) On May 30, 2002, Dinsey filed a second application for adjustment of status, which included another I-130 petition filed by his wife on his behalf. (Am. Compl. ¶ 9, Ex. A) On November 4, 2002, the Agency placed Dinsey in removal proceedings. (Id. at ¶ 10) On March 13, 2003, Dinsey appeared in the immigration court for the removal proceedings and requested that the proceedings be terminated because he had an adjustment of status application pending. (Id.) Dinsey's case was adjourned to September 26, 2003. (Id.) On March 18, 2003, Dinsey asked a member of the Agency to process his I-130 application before the September 26, 2003 court appearance, but he was informed by letter dated September 4, 2003, that the particular unit of the Agency he had contacted lacked jurisdiction over Dinsey's application because he had been placed in removal proceedings. (Id. at ¶ 11) A few days later Dinsey asked the Agency to join in his motion to terminate the removal proceedings so that he could pursue his adjustment of status application. (Id. at ¶ 12) At the September 26, 2003 court appearance, Dinsey provided counsel for the Agency with a duplicate of his I-130 petition, and she agreed to send it to the appropriate Agency unit for adjudication. (Id. at 13) Dinsey contacted counsel for the Agency about the status of his application on September 29, 2003, and again on November 14, 2003. (Id.) Dinsey filed his original mandamus complaint in this court one month later.

  On February 11, 2004, the Agency sent Dinsey a Notice of Intent to deny the I-130 petition. (Id. at ¶ 15, Notice of Intent) Dinsey alleges that the "sole basis" for the immigration officer's denial of the second I-130 was that his wife's first I-130 had been denied. (Id. at ¶ 15) This allegation apparently arises from the Agency's explanation in the Notice of Intent that the previous denial and dismissal by the BIA constituted "an adverse discretionary factor" which rendered Dinsey "ineligible to adjust his status" and made it "unnecessary to proceed with an interview on the second petition." (Notice of Intent) The Agency informed Dinsey in the Notice of Intent that he had 15 days (18 if by mail) from the date of the Notice of Intent "to submit evidence in opposition to the grounds stated for denial." (Id.) Rather than submitting any evidence, Dinsey's counsel sent a letter to the Agency complaining that the February 11 denial ran afoul of the BIA Order in which the BIA noted in a footnote that their "decision does not preclude the petitioner from filing a new visa petition on behalf of the beneficiary fully supported by probative evidence, including secondary evidence, to establish the relationship." (Id., BIA Order) In the letter, Dinsey's counsel claimed that the Agency's "abusive manner" "knows no bounds" and accused the District Adjudicating Officer of being "too blinded by your desire to re-affirm your initial faulty decision." (Am. Compl., Ex. G (letter from Iosepovici to Hernandez dated Feb. 11, 2004) On March 4, 2004, Dinsey received a final decision from the Agency denying his application. (Id. at ¶ 15) As of the filing of his Amended Complaint for Mandamus Relief, Dinsey was in the process of filing an appeal of the March 5, 2004 denial of his latest application. (Id. at ¶ 16)


  In his Amended Complaint for Mandamus Relief, Dinsey pleads five grounds for jurisdiction in this court: (1) federal question, 28 U.S.C. § 1331; (2) the Declaratory Judgment Act (the "DJA"), 28 U.S.C. § 2201; (3) the Administrative Procedure Act (the "APA"), 5 U.S.C. § 702; (4) mandamus, 28 U.S.C. § 1361; and (5) the Immigration & Nationality Act (the "INA"), 8 U.S.C. § 1329. In his opposition to defendants' motion to dismiss, Dinsey abandons three of these grounds and relies only on federal question jurisdiction under 28 U.S.C. § 1331 and mandamus under 28 U.S.C. § 1361. However, none of the five grounds, including federal question and mandamus, suffices to establish jurisdiction here.

  Dinsey is one of many plaintiffs who have filed complaints in this Circuit seeking injunctive or mandamus relief ordering the Agency to adjudicate applications for adjustment of status; he states precisely the grounds for jurisdiction that the others have. See, e.g., Wan Shih Hsieh v. Kiley, 569 F.2d 1179 (2d Cir. 1978); Karan v. McElroy, 02 Civ. 6678, 2003 WL 21209769 (S.D.N.Y. May 23, 2003); Zheng v. Reno, 166 F. Supp.2d 875 (S.D.N.Y. 2001); Yilmaz v. McElroy, No. 00 Civ. 7542, 2001 WL 1606886 (S.D.N.Y. Dec. 17, 2001); Sadowski v. INS, 107 F. Supp.2d 451 (S.D.N.Y. Aug. 4, 2000); Mesallum v. INS, No. 99 Civ. 3997, 1999 WL 1627348 (S.D.N.Y. Oct. 14, 1999); Rahman v. McElroy, 884 F. Supp. 782 (S.D.N.Y. 1995). In these cases, the Court has found no subject matter jurisdiction on any of the grounds presented in Dinsey's Amended Complaint. See Id. Undeterred by precedent, Dinsey filed this action seeking the same relief and reciting the same jurisdictional arguments as those who preceded him.

  Although Dinsey has wisely abandoned the DJA, APA and INA as jurisdictional bases, the court will address them so that the result is not clouded by any possible doubt. The DJA merely provides a type of remedy; it does not confer subject matter jurisdiction. Fleet Bank, N.A., v. Burke, 160 F.3d 883, 886 (2d Cir. 1998) (citing Skelly v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950)). "[T]he APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action." Califano v. Sanders, 430 U.S. 99, 107 (1977); see also Wan Shih Hsieh, 569 F.2d at 1182 ("[T]he Administrative Procedure Act . . . does not provide subject matter jurisdiction."). Finally, Dinsey's argument for invoking the INA is frivolous from the face of the statute, which states: "The district courts of the United States shall have jurisdiction of all causes, civil and criminal, brought by the United States. . . . Nothing in this section shall be construed as providing jurisdiction for suits against the United States or its agencies or officers." 8 U.S.C. § 1329 (emphasis added); see also Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 477 n. 4 (1999) (noting that the statute "applies only to actions brought by the United States"). The INA does not confer jurisdiction here because this action was not brought by the United States, but rather against the United States.

  Dinsey's reliance upon federal question jurisdiction is equally misplaced. Federal question jurisdiction exists only in "civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Dinsey seems to have abandoned the constitutional due process claim implied in his Amended Complaint, and rightly so. "An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case." Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985) (internal quotation marks omitted). However, Dinsey has no property right in an immigrant visa. See Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990); see also Rahman, 884 F. Supp. at 786. Therefore, there is no constitutional due process question before the court. Nevertheless, Dinsey argues that federal question jurisdiction exists based upon a statutory claim — namely, a claim under the APA. According to Dinsey, "the federal question which grants this Court subject matter jurisdiction is the interpretation of the APA itself." (Plaintiff's Memorandum of Law in Opposition to the Defendants' Motion to Dismiss for Lack of Jurisdiction ("Pl. Mem.") 2)*fn1 Although Dinsey is correct that "a district court may have subject matter jurisdiction under 28 U.S.C. § 1331 over a claim that an agency has violated the APA," Zheng, 166 F. Supp.2d at 878, Dinsey assumes that the APA applies here. It does not.

  The APA expressly does not apply where "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). The Agency's action challenged here — namely, the decision not to conduct another Stokes interview and not to adjust Dinsey's status to that of a lawful permanent resident — is exempt from review under the APA because it is discretionary. The INA states:

The status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, 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) (emphasis added). The INA expressly places the adjustment of immigration status within the "discretion" of the Attorney General. The question of whether Dinsey attempted to have his immigration status adjusted through fraudulent means is solely within the Agency's discretion, "and hence not reviewable under the Administrative Procedure Act." Wan Shih, 569 F.2d at 1182. Because the Agency's action here is not reviewable under the APA — and Dinsey has not raised any other federal statutory or constitutional claims — there is no federal question jurisdiction in this action.

  Further, Dinsey has failed to exhaust his administrative remedies. "Under the doctrine of exhaustion of administrative 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." Howell v. I.N.S., 72 F.3d 288, 291 (2d Cir. 1995). "If a party fails to exhaust administrative remedies, then the court may dismiss the action because subject matter jurisdiction does not exist." Id. In Howell, the Court of Appeals held that "the district court lacked jurisdiction to review the district director's denial of Howell's application for adjustment of status [under the APA] once deportation proceedings commenced, because she failed to exhaust her administrative remedies." Id. at 293. According to Dinsey, the Agency has placed him in removal proceedings (Am. Compl. ¶ 10) and he is pursuing an appeal within the Agency. (Id. at ¶ 16) Therefore, Dinsey, like the plaintiff in Howell, has failed to exhaust his administrative remedies, and thus the court lacks subject matter jurisdiction to review the Agency's action.

  Recognizing that the exhaustion requirement is not met, Dinsey argues nevertheless that he meets two exceptions to the rule. First, the rule does not apply where "administrative appeal would be futile." Howell, 72 F.3d at 291. Dinsey argues that his "appeal to the BIA should be considered a futile exercise of administrative remedy" because the district director already ignored "an order issued by the BIA in this case . . . and a second order will likely be treated in an equally dismissive manner by the District Director." (Pl. Mem. 4-5) However, the only order issued by the BIA in this case according to Dinsey's complaint was an order dismissing his appeal from the denial of his first I-130. (See BIA Order) This order included a footnote in which the BIA explained that its "decision does not preclude the petitioner from filing a new visa petition on behalf of the beneficiary fully supported by probative evidence, including secondary evidence, to establish the relationship." (BIA Order) Dinsey has attempted to turn this footnote into an order from the BIA to withdraw the previous denial and grant Dinsey another Stokes interview. (Pl. Mem. 4-5) However, this footnote does no such thing, and there is no evidence of any other order from the BIA that does. Therefore, there is no support for Dinsey's claim that a second order from the BIA withdrawing the previous denial would not be heeded by the district director. Dinsey has failed to establish the futility exception to the exhaustion requirement.

  Second, the exhaustion requirement does not apply where "irreparable injury may occur without immediate judicial relief." Howell, 72 F.3d at 291. Dinsey claims that he "will likely be ordered removed from the United States should the Writ of Mandamus action be dismissed," which "will expose [Dinsey] to significant hardship." (Pl. Mem. 5) However, this claim is speculative. No removal order has been issued against Dinsey, despite two appearances before the immigration judge. Additionally, even if a removal order is issued against him, Dinsey may be able to appeal that order to the BIA. See 8 C.F.R. § 1003.1(b). Should Dinsey not appeal, the removal order would not become final until after the deadline to file an appeal, which is 30 days after the order is issued. Id. at § 1240.53, 1241.1(a). Therefore, Dinsey's removal is not imminent, and Dinsey has failed to establish the irreparable injury exception to the exhaustion requirement.

  Dinsey's reliance upon mandamus jurisdiction is equally unavailing. "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 nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 616 (1984). Neither requirement for mandamus relief is met here. As already discussed above, Dinsey has failed to exhaust administrative remedies and the decision whether to adjust his status and conduct another Stokes interview is discretionary. "It is settled that the judiciary will not interfere with the visa-issuing process." Wan Shih, 569 F.2d at 1181. "The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled . . ." Kleindienst v. Mandel, 408 U.S. 753, 766 (1972).

  Finally, to the extent Dinsey argues that the Agency's decision was "arbitrary, capricious and abusive" and is therefore reviewable for "abuse of discretion," (Pl. Mem. 6), Dinsey has failed to make such a showing. Dinsey has not alleged any facts in support of his I-130, nor has even alleged what the discrepancies were that led the Agency to deny it, much less how these discrepancies were explained or resolved by him and his wife. He also has not alleged what transpired during the Stokes interviews, what documentary evidence was presented to the Agency in support of the petition, and, most important, what additional evidence was provided to the Agency in support of the second petition filed after the BIA's order dismissing the first petition. In short, there is absolutely no factual basis upon which to review the Agency's denial of Dinsey's I-130 petitions for "abuse of discretion," even if the court had the jurisdiction to do so.

  * * *

  For the reasons set forth above, defendants' motion to dismiss is granted and Dinsey's Amended Complaint for Mandamus Relief is dismissed.

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