Santos-Torres v. Houghton ( 2022 )

22-297-cv
Santos-Torres v. Houghton
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 9th day of December, two thousand twenty-two.
4
5 PRESENT:
6 AMALYA L. KEARSE,
7 MICHAEL H. PARK,
8 ALISON J. NATHAN,
9 Circuit Judges.
10 _____________________________________
11
12 Sandro Yobani Santos-Torres,
13
14 Plaintiff-Appellant,
15
16 v. 22-297
17
18 Timothy J. Houghton, in his official capacity,
19 District Director, New York District Office, U.S.
20 Citizenship and Immigration Services, U.S.
21 Department of Homeland Security, Tracy
22 Renaud, in his official capacity, Senior Official
23 performing the duties of the Director, U.S.
24 Citizenship and Immigration Services, U.S.
25 Department of Homeland Security, Alejandro N.
26 Mayorkas, in his official capacity, Secretary,
27 U.S. Department of Homeland Security, United
28 States Citizenship and Immigration Services,
29 United States Department of Homeland Security,
30
31 Defendants-Appellees.
32 _____________________________________
1 FOR PLAINTIFF-APPELLANT: Jan H. Brown, Law Offices of Jan H.
2 Brown, P.C., New York, NY.
3
4 FOR DEFENDANTS-APPELLEES: Jessica F. Rosenbaum, Christopher
5 Connolly, Assistant United States Attorneys,
6 Of Counsel, for Damian Williams, United
7 States Attorney for the Southern District of
8 New York, New York, NY.
9
10 Appeal from a judgment of the United States District Court for the Southern District of
11 New York (Abrams, J.).
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
13 DECREED that the judgment of the district court is AFFIRMED.
14 Appellant Sandro Yobani Santos-Torres appeals the district court’s dismissal of his
15 complaint for lack of subject matter jurisdiction. Santos-Torres was ordered removed in absentia
16 in 2004 after failing to appear at his removal proceeding. In 2019, Santos-Torres filed an I-212
17 application with the United States Citizenship and Immigration Services (“USCIS”) for permission
18 to reapply for admission. USCIS denied the application in 2020 after weighing several factors,
19 including Santos-Torres’s family ties and his prior order of removal. Almost a year later, Santos-
20 Torres challenged USCIS’s July 2020 denial in federal court. The district court dismissed for lack
21 of subject matter jurisdiction, finding that USCIS’s denial of the I-212 application was an
22 unreviewable discretionary determination and that Santos-Torres’s complaint constituted an
23 indirect challenge to his removal order that was also unreviewable in district court. We assume
24 the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues
25 on appeal.
26 We review de novo a district court’s grant of a motion to dismiss under Federal Rule of
2
1 Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Bldg. Indus. Elec. Contractors
2 Ass’n v. City of N.Y., 678 F.3d 184, 187 (2d Cir. 2012). “A case is properly dismissed for lack of
3 subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or
4 constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
5 2000).
6 The district court correctly granted the motion to dismiss for lack of subject matter
7 jurisdiction. Santos-Torres cannot challenge the denial of his I-212 application in district court.
8 The “court of appeals,” not the district court, is the “sole and exclusive means for judicial review
9 of an order of removal.” 8 U.S.C. § 1252(a)(5). Santos-Torres’s I-212 application is an indirect
10 challenge to an order of removal. See Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011).
11 Thus, only the court of appeals would have exclusive jurisdiction over a timely challenge to the
12 denial of Santos-Torres’s I-212 application. Id. Nasrallah v. Barr, 140 S. Ct. 1683 (2020), does
13 not hold otherwise. In Nasrallah the Supreme Court held that a challenge to the denial of relief
14 under the Convention Against Torture (“CAT”) is not subject to the same jurisdictional limitations
15 as an order of removal because CAT relief “does not disturb the final order of removal.” Id. at
16 1691. The Supreme Court made clear that “rulings that affect the validity of the final order of
17 removal merge into the final order of removal for purposes of judicial review.” Id. Delgado’s
18 holding—that the denial of an I-212 application is reviewable only by the courts of appeals when
19 such an application is a necessary prerequisite to the applicant’s ultimate goal of obtaining
3
1 immigration relief that affects the validity of a final order of removal—is thus entirely consistent
2 with Nasrallah. See Nasrallah, 140 S. Ct. at 1691–92; Delgado, 643 F.3d at 55. 1
3 Finally, the district court had no reason to transfer Santos-Torres’s complaint to this Court
4 because transfer is appropriate only where the transferee court would have had jurisdiction. See
5 Ruiz v. Mukasey, 552 F.3d 269, 273 (2d Cir. 2009) (citing 28 U.S.C. § 1631). This Court’s
6 jurisdiction is limited to petitions for review “filed not later than 30 days after the date of the final
7 order of removal.” 8 U.S.C. § 1252(b)(1). Even if USCIS’s decision denying Santos-Torres’s I-
8 212 application constituted a reviewable removal order, USCIS issued that decision in July 2020,
9 and Santos-Torres filed his district court complaint over eight months later, in April 2021. The
10 district court thus was not required to transfer the case where we would have lacked jurisdiction
11 due to the untimely petition for review anyhow.
12 We have considered all of Santos-Torres’s remaining arguments and find them to be
13 without merit. For these reasons, we AFFIRM the judgment of the district court.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk of Court
1
Nor does the Administrative Procedure Act (“APA”) provide a basis for jurisdiction. See Dep’t
of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905 (2020) (establishing that the APA’s
presumption of judicial review “can be rebutted by a showing that the relevant statute precludes review”
(quotation marks and brackets omitted)).
4