Olasebikan Akinmulero v. Eric Holder, U S Attorney , 347 F. App'x 58 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 23, 2009
No. 09-20193 Charles R. Fulbruge III
Summary Calendar Clerk
OLASEBIKAN N. AKINMULERO
Plaintiff - Appellant
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL; JANET
NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND SECURITY;
JONATHAN “JOCK” SCHARFEN, as Acting Director of the United States
Citizenship and Immigration Services for Houston Texas,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CV-2553
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Olasebikan Akinmulero (“Akinmulero”) appeals the district court’s
decision to grant summary judgment in favor of Eric H. Holder, United States
Attorney General, et al. (the “Government”), and dismissing Akinmulero’s
complaint requesting a writ of mandamus to compel action on his application for
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 09-20193
a status adjustment to that of a lawful permanent resident. Because we find the
district court correctly determined that it lacked jurisdiction to hear
Akinmulero’s claims, and regardless found no genuine issues as to any material
fact in his complaint, we affirm.
Akinmulero had been deported from the United States for undisclosed
reasons when he returned illegally in June 1986. He was placed in removal
proceedings in March 1998. An immigration judge (“IJ”) found that Akinmulero
was subject to removal and granted him sixty days to depart from the United
States voluntarily. Akinmulero did not leave within the time allowed, and more
than a year later, he appealed the IJ’s decision that he was not entitled to relief
from removal. The Board of Immigration Appeals (“BIA”) dismissed
Akinmulero’s appeal.
Akinmulero subsequently requested a stay of deportation and filed a
petition for discretionary review to challenge the BIA’s decision. The United
States Court of Appeals for the Tenth Circuit dismissed this petition, but
Akinmulero received a stay of removal to determine whether he was entitled to
relief pursuant to a judgment entered in ongoing class action lawsuit Proyecto
San Pablo v. INS, No. 4:89-cv-456 (D. Ariz.). Akinmulero then filed an I-485
application with the United States Citizenship and Immigration Service
(“USCIS”) to adjust his immigration status to that of a lawful permanent
resident alien pursuant to 8 U.S.C. § 1255. This application was dismissed for
lack of jurisdiction, but Akinmulero has filed a motion to reopen with USCIS,
which is pending.
Akinmulero also filed a complaint with the district court alleging that
USCIS failed to properly adjudicate his I-485 application. He sought a writ of
mandamus pursuant to 28 U.S.C. § 1361 to compel the Government to adjust his
status. The Government filed a motion to dismiss for lack of subject matter
jurisdiction under F ED. R. C IV. P. 12(b)(1), which the district court converted into
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No. 09-20193
a motion for summary judgment under F ED. R. C IV. P. 56(c), allowing both
parties an opportunity to supplement the record with additional evidence. The
district court granted the Government’s motion for summary judgment and
dismissed Akinmulero’s complaint. He now appeals.
We review de novo the district court’s grant of summary judgment. Rios
v. Rossotti, 252 F.3d 375, 378 (5th Cir. 2001). Summary judgment shall be
granted if the pleadings, depositions, and affidavits show that there is no
genuine issue of material fact and that the moving party is entitled to judgment
as a matter of law. F ED. R. C IV. P. 56(c); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
Because Akinmulero is a pro se litigant, we construe his briefs liberally
and “apply less stringent standards to parties proceeding pro se than to parties
represented by counsel.” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
Reading Akinmulero’s briefs in the light most favorable to him, he appears to be
contesting each of the district court’s holdings in support of its grant of summary
judgment in favor of the Government.
First, Akinmulero argues that the district court erred in finding his
complaint moot because USCIS had already considered his application and
administratively closed his file. In order to pursue a claim in federal court, a
plaintiff must establish standing under Article III’s “case-or-controversy
requirement.” Spencer v. Kemna, 523 U.S. 1, 7 (1998). Under this requirement,
“throughout the litigation, the plaintiff must have suffered, or be threatened
with, an actual injury traceable to the defendant and likely to be redressed by
a favorable judicial decision.” Id. (internal quotation marks and citation
omitted). Here, the USCIS administratively closed Akinmulero’s I-485
application in 2007 after it determined that it was without jurisdiction to
consider his request. Akinmulero failed to show that there was any claim
remaining in his application on which the district court could compel action.
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No. 09-20193
Thus, the district court properly found his application for writ of mandamus
moot.
Second, Akinmulero challenges the district court’s holding that it lacked
subject matter jurisdiction to consider his complaint. Congress has eliminated
district court jurisdiction over “all questions of law and fact . . . arising from any
action taken or proceeding brought to remove an alien from the United States”
and lodged exclusive jurisdiction in the courts of appeals once agency remedies
have been exhausted. 8 U.S.C. §§ 1252(a)(5) & (b)(9). Aliens subject to orders
of removal may only seek adjustment of status by filing a motion to reopen
removal proceedings with an immigration judge, and any subsequent challenges
may be brought via petition for review of the final removal order. See id.;
Wellington v. INS, 108 F.3d 631, 635 (5th Cir. 1997) (“INS practice requires that
aliens who have been found deportable in deportation proceedings seek
adjustment of status through the mechanism of reopening their deportation
proceedings.” (citation omitted)).
Akinmulero is, in effect, appealing the decision to execute a removal order
against him, a form of relief which we have previously held to be outside the
bounds of district court jurisdiction. Li v. Agagan, No. 04-40705, 2006 U.S. App.
LEXIS 6289, at *12-13 (5th Cir. Mar. 14, 2006) (“[B]ecause Appellant had a final
order of deportation, and although Appellant characterized his claim as a
request for adjustment of status, he is actually seeking review of the decision to
execute a removal order against him. Hence, 8 U.S.C. § 1252(g) precludes
[district court] jurisdiction.”). Thus, the district court properly found it lacked
subject matter jurisdiction to grant Akinmulero’s requested relief.1
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The district court relied on 8 U.S.C. § 1252 to find it lacked subject m atter jurisdiction to
review USCIS’s decision on Akinm ulero’s application for adjustment of status, citing Hadwani v.
Gonzales, 445 F.3d 798, 800 (5th Cir. 2006). However, Hadwani is factually distinguishable from the
instant matter in that the IJ found Hadwani to be “statutorily eligible for adjustment of status, but
declined to adjust Hadwani’s status as a matter of discretion.” Id. Here, USCIS did not address the
merits of Akinmulero’s application because it found it lacked jurisdiction to consider it. Thus, we apply
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No. 09-20193
Finally, Akinmulero challenges the merits of the district court’s holding
regarding his request for a writ of mandamus compelling a favorable
adjudication of his I-485 application. The federal mandamus statute provides
that 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 the plaintiff.” 28 U.S.C. § 1361. A writ
of mandamus is a “‘drastic and extraordinary’ remedy ‘reserved for really
extraordinary causes.’” Cheney v. United States Dist. Ct. for Dist. of Columbia,
542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259-60 (1947)).
To obtain this writ, Akinmulero would need to establish “(1) a clear right to the
relief, (2) a clear duty by the respondent to do the act requested, and (3) the lack
of any other adequate remedy.” Davis v. Fechtel, 150 F.3d 486, 487 (5th Cir.
1998) (citation omitted).
Even construing his pleadings liberally, Akinmulero has not shown a clear
right to an adjustment of his status, the first requirement for issuance of a writ
of mandamus. As previously discussed, the jurisdiction-channeling provisions
of the INA provide that aliens subject to removal may only seek adjustment of
status by filing a motion to reopen their removal proceedings with an IJ.
Subsequent challenges to the IJ’s decision may be brought in the courts of
appeals via a petition for review of the final removal order. See 8 U.S.C. §§
1252(a)(5), (b)(9), (g); 8 C.F.R. § 1245.2(a)(1)(i) (“In the case of any alien who has
been placed in deportation proceedings or in removal proceedings (other than as
an arriving alien), the immigration judge hearing the proceeding has exclusive
jurisdiction to adjudicate any application for adjustment of status the alien may
file.”); see also Wellington, 108 F.3d at 635.
the jurisdiction-channeling provisions of the INA to reach the same end result as the district court.
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No. 09-20193
Thus, Akinmulero has not shown that the district court could grant him
his requested relief, let alone that he has a right to that relief. Indeed, no alien
has a “right” to be granted adjustment of status, and the ultimate decision
whether to approve an application for adjustment of status is committed to the
Attorney General’s discretion as a matter of law. See 8 U.S.C. § 1255(a); Elkins
v. Moreno, 435 U.S. 647, 667 (1978) (noting that “adjustment of status is a
matter of grace, not right”). Furthermore, Akinmulero has not shown a lack of
any other adequate remedy, as he is already benefitting from a stay of removal
pursuant to his membership in the Proyecto class action suit and his pending
motion to reopen with USCIS.
We thus AFFIRM the judgment of the district court. Appellant’s motion
for oral argument is DENIED.
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