Kale v. United States INS ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 01-10921
__________________________
OLADIPO A. KALE,
Petitioner-Appellant,
versus
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE,
NEBRASKA SERVICE CENTER,
Respondent-Appellee.
___________________________________________________
Appeal from the United States District Court
For the Northern District of Texas
(No. 01-CV-225)
___________________________________________________
May 10, 2002
Before DUHÉ, DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Appellant Oladipo Kale appeals from the district court’s
dismissal of his petition for mandamus, declaratory, and injunctive
relief for lack of federal subject matter jurisdiction. We agree
that jurisdiction is lacking over Kale’s request for mandamus, but
disagree that we are divested of jurisdiction over the federal
claims for which Kale seeks declaratory and injunctive relief.
Nevertheless, we conclude that other grounds justify the district
court’s summary dismissal of those claims, and therefore we affirm.
*
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that this opinion should not be published and is not precedent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.
I. FACTS AND PROCEEDINGS
On July 20, 2000, Kale’s former employer, Hyundai
Semiconductor America (“Hyundai”), filed an application with
Immigration and Naturalization Service (“INS”) for a change of
Kale’s nonimmigrant status.1 The INS denied Hyundai’s request on
the ground that Kale was not eligible for a change of status
because his previous immigration status had already expired. See
8 C.F.R. § 248.1(b). Thereafter, Kale moved to reopen or
reconsider the denial, but the INS declined to reconsider its
decision on the ground that Kale did not have standing as he was
not an “affected party” as defined in 8 C.F.R. §§ 103.5(a)(1)(i)
and 103.3(a)(1)(iii)(B).
Appearing pro se and proceeding in forma pauperis, Kale filed
this suit against the INS, seeking judicial review of its decision
not to reconsider the denial of change of status. In his
complaint, Kale asserts that the INS’s denial of his motion for
reconsideration constituted an error of law or an abuse of
discretion in that the agency had misinterpreted its own
regulations, specifically 8 C.F.R. §§ 103.5(a)(1)(i) and
103.3(a)(1)(iii)(B). Further, he contends that the INS’s failure
to follow its regulations in denying his motion resulted in a
violation of his due process and equal protection rights. Kale
1
Kale previously had a nonimmigrant visa with B-1 status,
meaning he was temporarily visiting the United States for
business, but sought to be reclassified as nonimmigrant H-1B,
which would authorize him to work in a specialty occupation and
to earn a salary. See 8 U.S.C. § 1101(a)(15).
2
claims an entitlement to relief in the nature of mandamus as well
as declaratory and injunctive relief.
Before service on the INS, the magistrate judge screened
Kale’s complaint and, citing lack of subject matter jurisdiction,
recommended that it be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(i). Agreeing, the district court adopted the
magistrate judge’s recommendation and entered judgment accordingly.
This appeal followed.
II. DISCUSSION
A. Standard of Review
We review the district court’s dismissal for lack of
jurisdiction de novo. Hager v. NationsBank N.A., 167 F.3d 245, 247
(5th Cir. 1999). The district court dismissed Kale’s complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), which authorizes the
dismissal of an in forma pauperis complaint that the court
determines to be frivolous. A complaint is frivolous if it “lacks
an arguable basis either in law or in fact.” Neitzke v. Williams,
490 U.S. 319, 325 (1989); Hickey v. Irving Indep. Sch. Dist., 976
F.2d 980, 981 n.2 (5th Cir. 1992).
As an initial matter, we note our agreement with the district
court that the Administrative Procedure Act, 5 U.S.C. § 702, does
not, in itself, confer subject matter jurisdiction on the federal
courts. See Califano v. Sanders, 430 U.S. 99, 107 (1977). The
same is true with regard to the Declaratory Judgment Act, 28 U.S.C.
§§ 2201-2202, and Federal Rules of Civil Procedure 57 and 65; an
independent jurisdictional basis must be present before a claim for
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declaratory and injunctive relief can be entertained. See, e.g.,
Schilling v. Rogers, 363 U.S. 666, 667 (1960). Accordingly, we
turn to the question whether the independent bases for jurisdiction
asserted by Kale provide arguable support for the exercise of
jurisdiction.
B. Jurisdiction Under the Mandamus Act
We first consider Kale’s contention that the Mandamus Act, 28
U.S.C. § 1361, supplies jurisdiction here. The Mandamus Act vests
district courts with original jurisdiction over “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.” An extraordinary remedy, mandamus is available only
where the plaintiff has a “clear and certain” right to relief.
Dunn-McCampbell Royalty Interest, Inc. v. National Park Serv., 112
F.3d 1283, 1288 (5th Cir. 1997); Giddings v. Chandler, 979 F.2d
1104, 1108 (5th Cir. 1992). In addition, for mandamus to issue,
the defendant must owe a duty “so plainly prescribed as to be free
from doubt” — that is, a duty imposed by statute or the
Constitution — to perform a specific, nondiscretionary act.
Giddings, 979 F.2d at 1108.
In this case, there is no arguable basis for the exercise of
mandamus jurisdiction. First, Kale has no clear right to relief
because he lacks standing to move for reconsideration. Under the
applicable regulations, standing to move to reopen or reconsider is
given only to an “affected party,” which is defined as “the person
or entity with legal standing in a proceeding. It does not include
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the beneficiary of a visa petition.” 8 C.F.R. §
103.3(a)(1)(iii)(B). Hyundai was the party recognized to have
standing in the underlying proceeding to change the classification
of Kale’s nonimmigrant visa to H-1B; Kale was not a party to the
original request for an adjustment of status. Although Kale may be
regarded as the beneficiary of Hyundai’s petition, such a
beneficiary is not recognized as an “affected party” under the
plain terms of the governing regulation. Accordingly, we find that
the INS properly determined that Kale lacked standing under its
regulations.
Second, even if Kale could be considered to have standing to
seek reconsideration as an “affected party,” he would not be
entitled to reconsideration in any event. The regulations clearly
provide that no appeal lies from the denial of an application for
a change of nonimmigrant classification. Id. § 248.3(g). Thus,
for this reason as well, Kale lacks a clear right to relief.
Finally, mandamus is unavailable as Kale does not seek the
performance of a ministerial, nondiscretionary act. The applicable
regulations clearly vest the appropriate INS official with
discretion in deciding whether to reconsider or reopen a matter:
8 C.F.R. § 103.5(a)(1)(i) provides that, upon a motion to reopen or
reconsider, the official “may, for proper cause shown, reopen the
proceeding or reconsider the prior decision.” Mandamus cannot be
used to compel the performance of such a purely discretionary act.
Therefore, it is patently clear that there is no arguable basis
supporting the exercise of mandamus jurisdiction. The district
5
court properly held that 28 U.S.C. § 1361 does not convey
jurisdiction here.
C. Federal Question Jurisdiction
We now turn to the question whether federal courts possess
jurisdiction to grant Kale injunctive and declaratory relief with
regard to his claims under the APA and his due process and equal
protection claims. The district court concluded that it lacked
subject matter jurisdiction over Kale’s claims for injunctive and
declaratory relief because judicial review was barred by 8 U.S.C.
§ 1252(g). We disagree.
Under 8 U.S.C. § 1252(g), “no court shall have jurisdiction to
hear any cause or claim by or on behalf of an alien arising from
the decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against
any alien under this chapter.” The district court considered the
application for adjustment of status to be an application for
adjudication of an immigration claim and thus found that the
statute divested it of jurisdiction. However, in Reno v. American-
Arab Anti-Discrimination Committee, 525 U.S. 471, 482 (1999), the
Supreme Court narrowly construed 8 U.S.C. § 1252(g), stating that
it does not cover “the universe of deportation claims” but applies
only to “three discrete events along the road to deportation.” For
purposes of this case, American-Arab instructs that the three
jurisdiction-stripping events listed in the statute — the decisions
to commence proceedings, to adjudicate cases, and to execute
removal orders — represent “the initiation or prosecution of
6
various stages in the deportation process.” Id. at 483. The
applicability of § 1252(g) in this case is thus doubtful because
there is no indication in the record that the actions taken by the
INS were part of deportation proceedings; indeed, there is no
indication that deportation proceedings have been initiated against
Kale. The mere fact that deportation proceedings might later be
initiated against Kale does not bring this case within narrow reach
of § 1252(g).
Neither does 8 U.S.C. § 1252(a)(2)(B)(ii) strip the court of
jurisdiction to consider Kale’s federal claims. That statute
insulates from judicial review any “decision or action of the
Attorney General the authority for which is specified under this
subchapter to be in the discretion of the Attorney General.” Kale
seeks review of the INS’s denial of his request to reconsider its
ruling as to Kale’s eligibility for a status change.2 Although
that decision is a discretionary one, 8 C.F.R. § 103.5(a)(1)(i),
there is no provision in the relevant subchapter that vests the
Attorney General with such discretionary authority. Accordingly,
we decline to hold that § 1252(a)(2)(B)(ii) deprives the district
court of jurisdiction to consider the denial of a motion to reopen.
2
Curiously, if Kale were challenging the INS’s underlying
decision — its denial of Hyundai’s request to change Kale’s
nonimmigrant visa status — the statute would bar the exercise of
federal jurisdiction here: 8 U.S.C. § 1258, which is within the
subchapter, leaves the decision to change a nonimmigrant’s status
to the discretion of the district court and therefore such
decisions are not subject to judicial review under §
1252(a)(2)(B)(ii). See Prado v. Reno, 198 F.3d 286, 291 (1st
Cir. 1999) (discussing this scenario).
7
Although the district court erroneously dismissed Kale’s
federal claims for lack of subject matter jurisdiction, we
nevertheless conclude that its dismissal of Kale’s complaint was
justified on other grounds. See Bickford v. International Speedway
Corp., 654 F.2d 1028, 1031 (5th Cir. Unit B Aug. 1981) (stating
that a dismissal may be upheld on alternative grounds). Kale’s APA
claim as well as his constitutional claims are based solely upon
his allegation that the INS either misinterpreted or failed to
follow its regulations relative to standing. But because we have
found that the INS properly applied the governing regulations,
there is no arguable basis in law for Kale’s remaining claims. The
district court properly dismissed Kale’s complaint.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED, albeit on alternative grounds.
8