Kale v. United States INS

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 13, 2002
• Docket: 01-10921
• Status: Unpublished

Opinion

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

3 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

4 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.