United States District Court, S.D. New York
October 13, 2005.
ROZETA GOXHABELLI HULI, Petitioner,
TERRY E. WAY, District Director of the Nebraska Service Center, Bureau of Citizenship and Immigration Affairs, formerly the Immigration and Naturalization Service, Respondent.
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Petitioner Rozeta Goxhabelli Huli ("Huli"), an asylee residing
in the United States, brings this action by Petition for a Writ
of Mandamus (the "Petition") to set aside Respondent's denial of
Huli's Refugee Asylee Relative Petition seeking derivative asylee
status for her husband, Hartin Huli, and ordering Respondent to
grant Huli's Refugee Asylee Relative Petition. Respondent Terry
E. Way ("Respondent"), District Director of the Nebraska Service
Center, Bureau of Citizenship and Immigration Services ("BCIS")
(formerly known as the Immigration and Naturalization Service
("INS")), cross-moves to dismiss the Petition for lack of subject
matter jurisdiction, or in the alternative, for a grant of summary judgment. Huli did not file
any submissions in response to Respondent's motion to dismiss the
On September 30, 2005, this Court issued an Order granting
Respondent's motion to dismiss for lack of subject matter
jurisdiction and stated that its findings, reasoning and
conclusions would be set forth in a subsequent decision.
Accordingly, for the reasons discussed below, Respondent's motion
is granted and Huli's Petition is dismissed.
The following facts are taken from the Petition, except where
noted. All factual allegations in the Petition are assumed to be
true for purposes of this motion.*fn1
Huli was granted asylum in the United States in May 1997. In
October 1999, Huli filed a Refugee Asylee Relative Petition
("I-730 Petition") with the INS in which she requested derivative
asylee status for her husband Hartin Huli ("Hartin") pursuant to
the Immigration and Naturalization Act ("INA") § 208 (b) (3) (A)
(codified at 8 U.S.C. § 1158 (b) (3) (A)). That provision states
that "a spouse or child . . . of an alien who is granted asylum under
this subsection may, if not otherwise eligible for asylum under
this section, be granted the same status as the alien if
accompanying, or following to join, such alien."
8 U.S.C. § 1158(b) (3) (A).
An applicant for derivative asylum status must demonstrate that
the marriage relationship existed "at the time the principal
alien's asylum application was approved." 8 C.F.R. § 208.21. The
burden of proving the marriage relationship is on the derivative
asylum applicant. See 8 C.F.R. § 208.21(f). Evidence
demonstrating eligibility for derivative asylum status must be
submitted "as set forth in 8 C.F.R. § 204" and should include,
"where possible," a "certificate of marriage issued by civil
authorities." Id.; 8 C.F.R. § 204.2.
In October 1999, Huli submitted her I-730 Petition to BCIS
accompanied by a copy of a marriage certificate issued by a
religious entity, the Albanian Islamic Cultural Center, dated
March 3, 1997. (See Certificate of Marriage Registration, dated
March 3, 1997, attached as Exhibit 1 to Huli's Petition for a
Writ of Mandamus, dated April 1, 2003 ("Petition").) Huli did not
submit a marriage certificate issued by civil authorities with her initial application
Huli attempted to obtain a civil marriage certificate prior to
obtaining asylum status but was turned away from the New York
City Clerk's Office because she lacked the required
identification documentation. (See Brief of Petitioner, dated
January 3, 2005 ("Pet.'s Brief"), at 1.) In July 1998, after Huli
was able to obtain identification documents from the federal
government as a result of obtaining asylum status, Huli and
Hartin were "re-married" at the City Clerk's Office and issued a
civil marriage certificate dated July 30, 1998. (Id. at 1-2.)
On March 30, 2000, BCIS sent a "Request for Evidence" in
response to Huli's I-730 Petition. The Request for Evidence
stated that "the documentation submitted is not sufficient to
warrant a favorable consideration of your petition/
application. . . . The church issued marriage certificate is
insufficient, please submit a copy of the marriage certificate of
Rozeta Goxhabelli and Hartin Huli which has been registered with
the proper civil authorities." (See Request for Evidence, dated
March 30, 2000, attached as Exhibit 6 to the Petition.) In
response to the Request for Evidence, Huli submitted a copy of a marriage certificate issued by the City of New York dated July
30, 1998. (See Certificate of Marriage Registration, dated July
30, 1998, attached as Exhibit 2 to the Petition.)
By letter dated May 23, 2000, BCIS denied Huli's I-730
Petition. The letter explained the grounds for denial as follows:
The evidence of the record indicates that your
application for asylum in the United States was
approved on May 27, 1997. The evidence of the record
also indicates that you were married on July 30,
1998, after your application for asylum was approved.
Since the relationship between you and the
beneficiary did not exist when your application was
approved, this petition may not be approved.
(Letter from Respondent to Huli, dated May 23, 2000, attached as
Exhibit 7 to the Petition.)
On December 2, 2002, Huli, having retained counsel, submitted a
Motion to Reopen and Reconsider the denial of her I-730 Petition.
BCIS denied Huli's motion on the basis that the motion was
untimely. (See Letter from Respondent to Huli, dated February
18, 2003, attached as Exhibit 10 to the Petition.) Huli now seeks
a writ of mandamus setting aside the denial of her I-730 Petition
and ordering Respondent to grant the Petition.
II. DISCUSSION Prior to addressing any of the pleadings, the Court must
determine whether it has subject matter jurisdiction over the
claims raised by Huli. See Steel Co. v. Citizens For a Better
Env't, 523 U.S. 83 (1998). A plaintiff has the burden of proving
by a preponderance of the evidence that subject matter
jurisdiction exists. See Lunney v. United States,
319 F.3d 550, 554 (2d Cir. 2003) (citing Makarova v. United States,
201 F.3d 110, 113 (2d Cir. 2000)). The Court finds that Huli has not
met that burden in this case.
The Petition states that the proceeding is brought pursuant to
the Mandamus Act, 28 U.S.C. § 1361 ("Section 1361"). (See
Petition at 1). In a later submission, Huli asserts that the INA
§ 279 ("Section 279"), codified at 8 U.S.C. § 1329, and
28 U.S.C. § 1331 ("Section 1331") also provide bases for jurisdiction.
(Pet.'s Brief at 6-7.) None of the cited statutes provide subject
matter jurisdiction in this proceeding.
A. JURISDICTION PURSUANT TO SECTION 279
Huli's argument that Section 279 provides a basis for subject
matter jurisdiction in this proceeding fails because the statute
states that "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. Furthermore, the Supreme Court has explained that the
provision does not confer jurisdiction over lawsuits against
immigration officials. See Reno v. American-Arab
Anti-Discrimination Comm., 525 U.S. 471, 477 n. 4 (1999); see
also Sadowski v. INS, 107 F. Supp. 2d 451, 453 (S.D.N.Y.
B. JURISDICTION PURSUANT TO SECTION 1361
Huli's jurisdictional claim grounded on Section 1361 also
fails. Section 1361 provides that "[t]he district courts shall
have original jurisdiction of any action in the nature of
mandamus to compel an officer or employee of the United States or
any agency thereof to perform a duty owed to plaintiff."
28 U.S.C. § 1361. That provision offers a remedy only where the
government official or agency owes the petitioner a "clear
nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 616
(1984); see also Sadowski, 107 F. Supp. 2d at 453; Rahman
v. McElroy, 884 F. Supp. 782, 787 (S.D.N.Y. 1995). Therefore,
"matters solely within the discretion of the INS" are "not
reviewable" under Section 1361. Wan Shih Hsieh v. Kiley,
569 F.2d 1179, 1182 (2d Cir. 1978); see also Zheng v. McElroy,
No. 98 Civ. 1772, 1998 WL 702318, at *3 (S.D.N.Y. Oct. 7, 1998);
Ortiz v. INS, No. 99 Civ. 0705, 2000 WL 728145, at *1 (S.D.N.Y.
Jan. 18, 2000). The decision to grant derivative asylum status is entirely
discretionary. See 8 U.S.C. § 1158(b) (3) (A); Miljkovic v.
Ashcroft, 366 F.3d 580, 582 (7th Cir. 2004). The statutory basis
for asylum, Section 208(b) (1) (A) of the INA, provides that "the
Secretary of Homeland Security or the Attorney General may
grant asylum to an alien who has applied for asylum in accordance
with the requirements and procedures established by the Secretary
of Homeland Security or the Attorney General."
8 U.S.C.A. § 1158(b) (1) (A) (West 2005) (emphasis added). Pursuant to this
provision, the Attorney General is not required to grant asylum
even to applicants who meet the eligibility standards prescribed
by the government. Clearly, therefore, the Attorney General can
be under no mandate to approve the applications of petitioners
who do not satisfy the established requirements and procedures.
See INS v. Cardoza-Fonseca, 480 U.S. 421, 443 (1987) ("[A]n
alien who satisfies the applicable standard under [INA] § 208(a)
does not have a right to remain in the United States; he or she
is simply eligible for asylum, if the Attorney General, in his
discretion, chooses to grant it." (emphasis in original)); see
also Zhang v. INS, 386 F.3d 66, 71 (2d Cir. 2004). The
statutory language pertaining to derivative asylum contains
similar terms: "A spouse . . . of an alien who is granted asylum under
this subsection may . . . be granted the same status as the
alien if accompanying, or following to join, such alien."
8 U.S.C. § 1158(b) (3) (A) (emphasis added). Because mandamus does
not lie to direct an agency to rule in a particular way on a
decision within its discretion, Section 1361 does not provide
jurisdiction in this proceeding. Maldonado-Coronel v. McElroy,
943 F. Supp. 376, 381 (S.D.N.Y. 1996).
Huli contends that mandamus relief is also available to compel
an official to act where that official has "ignored, abused, or
violated statutory or regulatory standards in exercising their
discretion." (Pet.'s Brief at 7.) Some courts have adopted the
view that mandamus may be a vehicle for a court to review agency
decision-making for abuse of discretion. See, e.g., Work v.
Rives, 267 U.S. 175, 177 (1925); Carpet, Linoleum & Resilient
Tile Layers v. Brown, 656 F.2d 564, 566 (10th Cir. 1981); see
also 4 Kenneth C. Davis, Administrative Law Treatise §§
23:12-:13 (2d ed. 1983) (contrasting the "orthodox" majority view
that mandamus relief is limited to compelling nondiscretionary
actions with the "reformed" view that mandamus provides
jurisdiction to review for abuse of discretion). Courts in this Circuit have primarily espoused the more limited "orthodox"
view of mandamus relief endorsed by the Second Circuit. See,
e.g., Wan Shih, 569 F.2d at 1182; see also Zheng, 1998 WL
702318, at *3; Sadowski, 107 F. Supp. 2d at 453; Rahman,
884 F. Supp. at 787.
Even under the minority view, however, the Court lacks subject
matter jurisdiction in this proceeding. According to that
approach, the central issue is whether the action complained of
"fall[s] within the scope of the discretion which Congress
accorded the administrators." Carpet, 656 F.2d at 566. If the
court finds that "defendants have been accorded sufficient
discretion to act as they have, the courts may not direct them to
act otherwise, and dismissal for lack of subject matter
jurisdiction is appropriate." Id. at 568. Applying this
analysis, the denial of Huli's I-730 Petition on the specified
grounds falls squarely within the scope of discretion Congress
accorded because the statute grants "sole discretion" to
Respondent to determine "what evidence is credible and the weight
to be given to that evidence" in determinations regarding asylum
and derivative asylum. 8 C.F.R. § 204.1 (f) (1). Furthermore,
Respondent has discretion to deny derivative asylum status even
to eligible applicants. Cardoza-Fonseca, 480 U.S. at 443; Zhang, 386 F.3d at 71. Accordingly, Section 1361 does not
provide jurisdiction in this proceeding.
C. JURISDICTION PURSUANT TO SECTION 1331
Huli also alleges jurisdiction under Section 1331. Section 1331
provides that federal district courts "shall have original
jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States." 28 U.S.C. § 1331. An
action arises under a federal statute "where the complaint
includes allegations either that [federal law] creates the cause
of action or that [federal law] is a necessary element of the
claim or that some right or interest will be defeated or
sustained by a particular construction of [federal law]."
Franchi v. Manbeck, 947 F.2d 631, 633 (2d Cir. 1991); see
also Kim, 340 F. Supp. 2d at 388. Section 1331, standing
alone, does not confer subject matter jurisdiction. The
jurisdiction extends only to claims that arise from some other
applicable federal constitutional or statutory provision. See
Karan v. McElroy, No. 02 Civ. 6678, 2003 WL 21209769, at *2
(S.D.N.Y. May 23, 2003). Because Huli's Petition does not cite
any federal statute that provides a cause of action or otherwise
creates a federally-protected right or interest that would afford
an applicable remedy in this case, Section 1331 by itself does not grant the Court subject matter jurisdiction.
Although Huli alleges a violation of the INA, that statute does
not itself create a cause of action or federally-protected right
or interest in derivative asylum status, just as it does not
confer an alien a right to remain in the United States. See
Cardoza-Fonseca, 480 U.S. at 443. Analogously, the statute
simply provides that aliens may be granted derivative asylum "if
the Attorney General, in his discretion, chooses to grant it."
Id.; see also Azizi v. Thornburgh, 908 F.2d 1130, 1134
(2d Cir. 1990) (holding that alien and alien spouse do not have a
constitutionally-protected property right to an immigrant visa).
Accordingly, the Court finds that Section 1331 does not provide
subject matter jurisdiction.
For the reasons stated above, it is hereby
ORDERED that the Court's Order dated September 30, 2005 is
amended to incorporate the discussion above; and it is further
ORDERED that the petition of petitioner Rozeta Goxhabelli
Huli for a writ of mandamus is DENIED, and the cross-motion
(Docket No. 13) of respondent Terry E. Way to dismiss the
petition herein is GRANTED. The Clerk of the Court is directed to close this case.
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