Anesh Gupta v. U.S. Attorney General , 439 F. App'x 858 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10283 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 31, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 6:10-cv-00861-MSS-KRS
ANESH GUPTA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant
versus
U.S. ATTORNEY GENERAL,
SECRETARY FOR THE DEPARTMENT OF HOMELAND SECURITY,
DIRECTOR OF THE U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
FIELD OFFICE DIRECTOR ORLANDO FIELD OFFICE,
U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
(USCIS)
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 31, 2011)
Before CARNES, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Anesh Gupta, an alien in removal proceedings acting pro se, challenges the
district court’s dismissal of his complaint, filed under the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 701 et. seq.; the Mandamus Act, 28 U.S.C.
§ 1361; the Federal Question Statute, 28 U.S.C. § 1331; and the Declaratory
Judgment Act, 28 U.S.C. §§ 2201 and 2202. After thorough review, we affirm.
I.
Gupta, a citizen of India, lawfully entered the United States on a B-2 visa.
On June 19, 2002, Gupta submitted an application to the Immigration and
Naturalization Service (“INS”) for adjustment of status to lawful permanent
resident based on his marriage to a U.S. citizen. At the same time, Gupta’s wife
filed a petition for alien relative, which sought a visa for him. According to the
allegations in Gupta’s complaint, the U.S. Citizenship and Immigration Service
(“USCIS”) approved both applications “in and about 2005-2006.” Without going
through recission proceedings, the USCIS issued a second decision dated July 23,
2009 denying Gupta’s application for adjustment of status on the ground that his
marriage was a sham.
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On August 6, 2009, the INS issued Gupta a notice to appear charging that
Gupta was subject to removal because his B-2 visa had expired. On May 28,
2010, Gupta filed a complaint in district court seeking a declaratory judgment that
the 2009 denial of his application for adjustment of status was arbitrary,
capricious, and unlawful because his application had already been approved.
Gupta also sought an order compelling the USCIS to record his status as a lawful
permanent resident. The district court dismissed Gupta’s complaint for lack of
subject matter jurisdiction, and he now appeals.
II.
“We review the district court’s dismissal for lack of subject matter
jurisdiction de novo.” Arris Grp., Inc. v. British Telecomms. PLC, 639 F.3d 1368,
1373 (11th Cir. 2011). Pro se pleadings are liberally construed. Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, we may not “serve
as de facto counsel for a party, or . . . rewrite an otherwise deficient pleading in
order to sustain an action.” GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d
1359, 1369 (11th Cir. 1998) (citations omitted), overruled on other grounds by
Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009).
The APA provides judicial review of “final agency action for which there is
no other adequate remedy in a court.” 5 U.S.C. § 704. An adjustment of status
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decision is a final agency action when “there are no deportation proceedings
pending in which the decision might be reopened or challenged.” Ibarra v.
Swacina, 628 F.3d 1269, 1270 (11th Cir. 2010) (quotation marks omitted); see id.(holding that a district court lacks subject matter jurisdiction under the APA to
review the denial of an alien’s application for adjustment of status where the alien
is in removal proceedings).
Under the Mandamus Act, 28 U.S.C. § 1361, a district court has original
jurisdiction over a mandamus action “to compel an officer or employee of the
United States or any agency thereof to perform a duty owed to the plaintiff.” “The
test for jurisdiction is whether mandamus would be an appropriate means of
relief.” Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003) (quotation marks
omitted). A writ of mandamus is only appropriate when: “(1) the plaintiff has a
clear right to the relief requested; (2) the defendant has a clear duty to act; and (3)
no other adequate remedy [is] available.” Id. (quotation marks omitted).
The Declaratory Judgment Act “does not, of itself, confer jurisdiction upon
federal courts.” Stewart Weitzman, LLC v. Microcomputer Res., Inc., 542 F.3d
859, 861–62 (11th Cir. 2008). It is “an enabling Act, which confers a discretion
on the courts rather than an absolute right upon the litigant.” Wilton v. Seven
Falls Co., 515 U.S. 277, 287, 115 S. Ct. 2137, 2143 (1995) (quotation marks
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omitted). “[T]he Act permits a party to apply to a federal court for a declaration of
an underlying right or relation . . . .” Christ v. Beneficial Corp., 547 F.3d 1292,
1299 (11th Cir. 2008).
The district court did not err in dismissing Gupta’s complaint for lack of
subject matter jurisdiction. No jurisdiction lies under the APA or the Mandamus
Act because Gupta is in removal proceedings. Thus, “[t]he decision on [his]
adjustment of status is not yet final,” Ibarra, 628 F.3d at 1270, and he still has
remedies available to him, see Cash, 327 F.3d at 1258. Moreover, because Gupta
is in removal proceedings, the USCIS no longer has jurisdiction to consider his
claims for relief, and therefore, the district court could not grant relief even if it
had jurisdiction over the complaint. 8 C.F.R. § 1245.2(a)(1); see also Nyaga v.
Ashcroft, 323 F.3d 906, 916 (11th Cir. 2003) (holding that where an agency is
unable to act on requested relief, the district court should dismiss a mandamus
action as moot). Gupta’s claim that his due process rights were violated by the
USCIS’s failure to record the approval of his application “in and about 2005-
2006" also does not create jurisdiction in the district court. See Estrada v. Holder,
604 F.3d 402, 407–08 (2d Cir. 2010) (holding that the district court lacked
jurisdiction under the APA and the Due Process Clause over an alien’s procedural
challenge to the recission of his permanent resident status because the issue was
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reviewable in his pending removal proceedings). Finally, the Declaratory
Judgment Act does not provide an independent basis of jurisdiction. See Stewart
Weitzman, 542 F.3d at 861–62. For these reasons, we affirm.
AFFIRMED.
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