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Ngassam v. Chertoff

January 17, 2008

ROSE AMOUGOU NGASSAM, PLAINTIFF,
v.
MICHAEL CHERTOFF, SECRETARY OF DEPARTMENT OF HOMELAND SECURITY; EMILIO GONZALEZ, DIRECTOR OF UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; F. GERARD HEINAUER, DIRECTOR OF THE NEBRASKA SERVICE CENTER OF UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, DEFENDANTS.



Opinion and Order

Background

Plaintiff, Rose Amougou Ngassam, was granted asylum in June 2003. In September 2003 she submitted seven Form I-730 petitions to United States Citizenship and Immigration Services ("USCIS") seeking derivative asylum status for her children in Cameroon. USCIS approved the petitions and forwarded them to the United States Embassy in Cameroon for the issuance of travel documents that would permit the children to enter the United States as asylees.

However, in November 2005 Ms. Ngassam learned that there was a problem with the birth certificates submitted. She obtained official copies of the children's birth certificates, which she sent to USCIS. She never received confirmation that USCIS received the birth certificates. In October 2006, Ms. Ngassam obtained DNA test results confirming that she is the biological mother of her children, and submitted the results to USCIS.

The consulate in Cameroon returned the petitions to USCIS after discovering that the birth certificates originally submitted were fraudulent.*fn1 USCIS reopened three of the petitions for reconsideration in January 2007. USCIS then notified Ms. Ngassam of its intent to revoke its approval of the petitions. USCIS denied the three reopened petitions on May 7, 2007:

The Service acknowledges the results of the DNA testing facility as proof of your biological parentage of the beneficiary. However, the consular findings also stated that the beneficiary appeared to be much older than claimed on the form and the birth certificate as submitted. The research of the birth record by the consulate in fact proved that you submitted fictitious birth records in support of this petition. . . . The consular officials, then, were unable to confirm that the beneficiary named in this approved petition even existed. In addition, the age and marital status of the claimed beneficiary has not been established, and you have not proven that the beneficiary is eligible for the benefit sought.

September 18, 2007 Affidavit of Jenny-Brooke Condon, Ex. 23. It also stated "This denial may not be appealed." Id. On September 18, 2007, Ms. Ngassam filed suit. She requested, inter alia, that the Court (1) hold unlawful and set aside USCIS's decision denying asylee-relative status; (2) declare that her children are eligible for, and should be granted, asylee-relative status; (3) direct USCIS to grant plaintiff's asylee-relative petitions; and (4) direct USCIS to facilitate the visa processing of her children's visas.

On September 19, 2007, the Court denied plaintiff's Order to Show Cause for a Preliminary Injunction and dismissed her claim for lack of jurisdiction. On October 4, 2007, plaintiff filed a motion for reconsideration, stating that she does not seek review of the discretionary decision withholding the granting of asylum, but that she challenges the underlying basis of that decision and solely seeks a declaration that her children are eligible for derivative asylum.

On October 10, 2007, the Court entered an order directing plaintiff to serve the motion and its underlying papers on defendants, and directing defendants to respond within thirty days thereafter. Plaintiff served defendant on October 12, 2007 and the government responded on December 3, 2007.

Plaintiff argues that the Court should not accept the government's response because it was filed after the deadline set in the Court order. Regardless of timing, the Court finds that it does not have jurisdiction over plaintiff's claim.

Discussion

Plaintiff relies on the Administrative Procedures Act ("APA") and the mandamus statute as her bases for jurisdiction. However, the APA does not apply where "agency action is committed to agency discretion by law."

5 U.S.C. § 701(a)(2). Therefore, USCIS's decision to deny derivative asylum status to Ms. Ngassam's children is exempt from review under the APA because it is discretionary. See 8 U.S.C. § 1158(b)(3)(A) ("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. § 1252(a)(2)(B) provides that notwithstanding any other provisions of law, including habeas corpus, mandamus, and the "all writs" statute, no court shall have jurisdiction to review any discretionary action of the Attorney General or the Secretary of Homeland Security with respect to such immigration matters as this.

Plaintiff argues that she does not challenge the discretionary determination to deny asylum but only the underlying determination that her children are legally ineligible for derivative status, which is a non-discretionary matter and in which the agency erred by disregarding (in violation of its own rules) the evidence she submitted. However, "the 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). While her reply memorandum (p. 9 n.2) states that "Plaintiff asserts jurisdiction pursuant to Federal Question Jurisdiction, 28 U.S.C. ยง 1331, with ...


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