Summary
holding that waiting for an agency to process applications is not an administrative remedy
Summary of this case from Iddir v. Immigration and Naturalization ServiceOpinion
No. 3:99-CV-0981-L.
November 1, 2000.
MEMORANDUM OPINION AND ORDER
Before the court are Plaintiffs' Motion to Reconsider, filed October 28, 1999; a Motion by Amici Curiae for Leave to File Brief, filed November 4, 1999; and Defendant's Renewed Motion to Dismiss, filed December 6, 1999. The motion for leave to file brief, by amici curiae the American Immigration Law Foundation, the Texas Lawyers' Committee for Civil Rights Under Law, and the National Immigration Law Center, was not opposed by Defendants and is hereby granted. The clerk of the court is directed to file on this date the Brief of Amici Curiae in Support of Plaintiffs' Motion for Reconsideration, which was received on November 4, 1999. After careful consideration of the motions, responses, briefs, and applicable law, the court grants in part and denies in part Plaintiffs' motion, and denies Defendant's motion.
I. Factual and Procedural Background
Plaintiffs are a family (husband, wife, and daughter) who are citizens of the People's Republic of China. The Immigration and Naturalization Service ("INS") previously approved an 1-140 immigrant petition for alien worker for the husband. Plaintiffs each filed an 1-485 Application to Adjust to Permanent Resident Status on March 31, 1997. The INS has not yet acted on those applications. On April 30, 1999, Plaintiffs filed a complaint, seeking a writ of mandamus directing the INS to act upon the applications. Plaintiffs then filed a Motion for Judgment on the Pleadings, and Defendants filed a Motion to Dismiss, asserting that the court has no jurisdiction. Both motions were referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b) for findings and recommendations.
The United States Magistrate Judge filed his Findings, Conclusions, and Recommendations ("Findings") on September 3, 1999, recommending that Plaintiffs' motion be denied and Defendants' motion be granted, for two reasons. First, a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. 104-208, div. C, tit. III, § 306, 110 Stat. 3009, codified at 8 U.S.C. § 1252 (g), precludes judicial review of "the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders." Second, Plaintiffs had not substantiated federal jurisdiction under any of the three bases asserted: 1) writ of mandamus under 28 U.S.C. § 1361; 2) federal question jurisdiction under 28 U.S.C. § 1331; 3) or the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, either alone or in conjunction with 23 U.S.C. § 1331. The United States Magistrate Judge concluded that there was no jurisdiction to grant a writ of mandamus because Plaintiffs did not show that no other remedy was available to them; federal question jurisdiction was precluded by 8 U.S.C. § 1252 (g); and the APA did not provide an independent basis for subject matter jurisdiction. The court, after reviewing the Findings and Plaintiffs' objections thereto, adopted the Findings on October 14, 1999. The court denied Plaintiffs' motion for a judgment on the pleadings, granted Defendants' motion to dismiss, and dismissed Plaintiffs' claims with prejudice.
"The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."
Plaintiffs filed their Motion to Reconsider, asserting that the court's order was based on an incorrect interpretation of law, and requesting that the court reconsider its order of October 14, 1999, and grant Plaintiffs judgment on the pleadings. Defendants opposed the motion and renewed their Motion to Dismiss, asserting that there was insufficient basis for reconsideration and that in any event the court had no subject matter jurisdiction and Defendants had no duty to adjudicate the applications. The court construes Defendants' motion as both a motion to dismiss for lack of jurisdiction over the subject matter, Fed.R.Civ.P. 12(b)(1), and a motion to dismiss for failure to state a claim, Fed.R.Civ.P. 12(b)(6). Because the motion to dismiss for failure to state a claim was filed after the answer, it will be construed as a motion for judgment on the pleadings, Fed.R.Civ.P. 12(c). See Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999).
II Analysis
In evaluating the motions presently before it, the court must address four issues: 1) is there a sufficient basis for reconsideration of the prior order; 2) if so, does 8 U.S.C. § 1252 (g) preclude jurisdiction over such action; 3) if not, have Plaintiffs adequately identified a basis for federal jurisdiction; and 4) has either party conclusively demonstrated as a matter of law that Plaintiffs are or are not entitled to the relief requested?
A. Reconsideration of Orders
Motions to reconsider fall under Fed.R.Civ.P. 60(b), which "confers authority on the Court to reconsider its judgments, orders, or proceedings. . . . Accordingly, the Court has discretion to entertain a motion requesting it, on such terms as are just, to relieve a party from a previous Order of the Court." Texas Instruments, Inc. v. Micron Semiconductor, Inc., 815 P. Supp. 994, 996 (E.D. Tex. 1993). Defendants assert that none of the bases for reconsideration in Rule 60(b) has been satisfied. The law in this Circuit, however, is that "a court is authorized under subsection (1) [of Rule 60(b), addressing `mistake, inadvertence, surprise, or excusable neglect'] to correct a substantive `mistake' of its own, if motion is made within a reasonable time." Meadows v. Cohen, 409 F.2d 750, 752 (5th Cir. 1969). "One purpose of Rule 60(b)(1) is to permit the trial court to reconsider and correct `obvious errors of law' without forcing the parties to engage the machinery of appeal." United States v. 329.73 Acres of Land, 695 F.2d 922, 925 (5th Cir. 1983). In this case, Plaintiffs assert just such an error by the court, in interpreting 8 U.S.C. § 1252(g) and the requirements for a writ of mandamus. The court therefore concludes that there is a sufficient basis to reconsider its prior order.
B. Preclusive Effect of 8 U.S.C. § 1252(g)
The court's prior order concluded that the court had no jurisdiction over this complaint, based on 8 U.S.C. § 1252(g):
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any 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 court concluded that INS action or inaction on an application for adjustment of status would be a "decision or action . . ., to . . . adjudicate cases," and therefore not subject to review by this court. On reconsideration, the court concludes that its prior order was in error regarding the scope of section 1252(g).
Judicial review — other than of final decisions, for which judicial review is allowed pursuant to 8 U.S.C. § 1252(d) — is precluded for three categories of decisions or actions by the Attorney General: 1) to commence proceedings; 2) to adjudicate cases; and 3) to execute removal orders. Defendants apparently read the reference to "removal" in section 1252(g) to limit only the third category, execution of orders, and argue that this case falls within the second category. Plaintiffs agree as to the categorization of this case, but argue that all three categories are limited to the context of removal or deportation proceedings.
Both sides cite Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) and Alvidres-Reyes v. Reno, 180 F.3d 199 (5th Cir. 1999). The court concludes that these cases do not support Defendants' contention that section 1252(g) precludes judicial review in this case. Both cases refer to preclusion only in the context of deportation proceedings. American-Arab Anti-Discrimination Comm., 525 U.S. at 483 (the acts mentioned in section 1252(g) "represent the initiation or prosecution of various stages in the deportation process") (emphasis added); Alvidres-Reyes, 180 F.3d at 201 ("§ 1252(g) protects from judicial intervention the Attorney General's exercise of her executive discretion whether to prosecute and adjudicate removal cases") (emphasis added). Although these cases do not explicitly state that actions unrelated to removal or deportation are not covered by section 1252(g), neither do they clearly interpret the scope as broader than such actions. At the very least, it would be reasonable to infer from these precedents that section 1252(g) applies only to INS actions related to deportation or removal.
Other cases in this district have come to the same conclusion concerning the scope of section 1252(g). See, e.g., Hu v. Reno, 2000 WL 425174, at *2 (N.D. Tex. Apr. 18, 2000) ("The removal of aliens and the adjudication of immigrant applications are separate and distinct actions performed by the INS. Section 1252(g) deprives federal courts of jurisdiction over claims involving the former, not the latter."); Dominance Industries, Inc. v. INS, 1998 WL 874904, at *2 (N.D. Tex. Nov. 24, 1998) ("Section 1252(g) therefore applies only to actions or decisions of the Attorney General or the INS that arise in relation to proceedings to deport or exclude aliens from the United States."). Other jurisdictions have interpreted section 1252(g) similarly. See, e.g., Paunescu v. INS, 76 F. Supp.2d 896, 898 (N.D. 111. 1999); Yu v. Brown, 36 F. Supp.2d 922, 934 (D.N.M. 1999). Defendants' reliance on Rahman v. McElroy, 884 F. Supp. 782 (S.D.N.Y. 1995) is inapposite, as that case sought review of the INS decision rather than to compel the INS to decide.
Further support for this conclusion is evident in the text of the statute. Section 1252 is entitled "Judicial review of orders of removal." The statute further provides that "subsection (g) . . . shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings." Pub.L. 104-208, div. C, tit. III, § 306(c)(1), 110 Stat. 3009 (emphasis added).
The court finds that the evidence overwhelmingly supports the interpretation of section 1252(g) urged by Plaintiffs. The court also concurs with Plaintiffs' assertion that the applications for adjustment to status filed by Plaintiffs are not related to deportation or removal proceedings. Accordingly, the court concludes that section 1252(g) does not bar this action. The portion of the court's earlier order that held to the contrary is therefore vacated and set aside.
C. Basis for Federal Jurisdiction
In its prior order, the court concluded that there was no federal jurisdiction under 28 U.S.C. § 1331, or under the APA in conjunction with 28 U.S.C. § 1331, specifically because of the preclusive effect of section 1252(g). See Findings at 4-5. Because the court has now concluded that section 1252(g) does not bar this action, that portion of the court's earlier order is also vacated and set aside . Although the APA by itself does not provide subject-matter jurisdiction for the court's review of agency action, Califano v, Sanders, 430 U.S. 99, 107 (1977), the APA in conjunction with section 1331 does provide such jurisdiction. "The obvious effect of this modification [of section 1331], subject only to preclusion-of-review statutes created or retained by Congress, is to confer jurisdiction on federal courts to review agency action, regardless of whether the APA of its own force may serve as a jurisdictional predicate," Id.; see also Hu, 2000 WL 425174, at *1 ("[Section 1331], in combination with the APA, vests the court with jurisdiction to compel agency action that is unreasonably delayed or withheld."). Absent any "preclusion-of-review statutes," the court would therefore have jurisdiction over this case.
In a previous motion to dismiss, Defendants argued that 8 U.S.C. § 1329 precluded review, because: 1) it limits jurisdiction of immigration-related matters to those arising under title II of the Immigration and Nationality Act ( 8 U.S.C. § 1151-1378); and 2) it provides jurisdiction only for suits brought by the United States. The first claim is correct, see Chen Chuan-Fa v. Kiley, 459 F. Supp. 762, 764 (S.D.N.Y. 1978), but applications for adjustment in status clearly fall within this scope. See Baria v. Reno, 94 F.3d 1335, 1337-39 (9th Cir. 1996). Regarding the second claim, despite the literal language of section 1329, the Eighth Circuit has clarified that it "does not provide a grant of jurisdiction" but also "does not preclude jurisdiction under other provisions of law." Sabhari v. Reno, 197 F.3d 938, 942 (8th Cir. 1999). Although the Fifth Circuit has not yet expressly addressed this question, the court finds the reasoning of the Eighth Circuit in Sabhari persuasive and hereby adopts it.
"The district courts of the United States shall have jurisdiction of all causes, civil and criminal, brought by the United States. . . . Nothing in this section shall be construed as providing jurisdiction for suits against the United States or its agencies or officers." 8 U.S.C. § 1329.
As noted above, section 1252(g) does not preclude jurisdiction here. Because the court concludes that section 1329 also does not preclude jurisdiction, the court has subject-matter jurisdiction under the APA in conjunction with 28 U.S.C. § 1331 over cases involving applications for adjustment in status under the Immigration and Nationality Act.
Because Plaintiffs seek a writ of mandamus, there is the further question whether the court has jurisdiction to grant that specific form of relief. Mandamus is only available if the petitioner demonstrates "(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." In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997). As to the first two elements, Defendants "have a clear duty to process [such] applications in a timely manner." Hu, 2000 WL 425174, at *4. Such duty is mandatory, not discretionary. Id. at *3 This necessarily means that Plaintiffs have a clear right to have their applications processed "within a reasonable time." 5 U.S.C. § 555(b).
This also presupposes that the requested visas were available at the time Plaintiffs filed their complaint, as the INS does not adjudicate applications for change in status if visas are not available. Defendants dispute the availability of the requested visas. This goes to the merits of the individual situation rather than whether mandamus is generally appropriate relief for a failure to adjudicate an application for adjustment in status within a reasonable time. Consequently, this is discussed below as part of the issue of whether judgment on the pleadings is appropriate.
The court previously concluded that Plaintiffs were not entitled to mandamus relief because of their failure to satisfy the third element, lack of another adequate remedy. The court specifically identified, as an alternative remedy, the INS adjudication process itself. See Findings at 4. Upon reconsideration, the court concludes that this was based upon an erroneous characterization of Plaintiffs' complaint. Plaintiffs do not seek a writ of mandamus directing the INS to adjust their status, for which the INS adjudication process would be a viable alternative. Instead, they seek a writ of mandamus directing the INS to adjudicate their applications. Waiting for an agency to act cannot logically be an adequate alternative to an order compelling the agency to act. Neither would it be reasonable to require Plaintiffs to wait to raise their claims until the government initiated removal proceedings. See Paunescu, 76 F. Supp.2d at 901.
For the reasons noted above, the court concludes that petitioners whose applications for adjustment in status are properly before the INS (and for which the visas requested are available) have a right, enforceable through a writ of mandamus, to have the applications processed within a reasonable time. Plaintiffs' complaint therefore does not seek an improper form of relief. The portion of the court's earlier order that held Plaintiffs had not demonstrated the absence of an alternative remedy is therefore vacated and set aside.
D. Judgment on the Pleadings
The court must still determine whether, at the time the complaint was filed, the visas requested were available and therefore Plaintiffs' applications were ready for processing. If so, the court must also address the Plaintiffs' request for judgment on the pleadings and Defendants' motion to dismiss. "Judgment on the pleadings is appropriate only if material facts are not in dispute and questions of law are all that remain." Voest-Alpine Trading USA Corp. v. Bank of China, 142 F.3d 887, 891 (5th Cir.), cert. denied, 525 U.S. 1041 (1998). As the court has already concluded that Defendants have a duty to adjudicate applications for adjustment in status within a reasonable time, judgment on the pleadings further depends on whether the delay in the present case is "reasonable."
1. Whether the Visas Requested were Available
The court's previous order concluded that "Plaintiffs' priority date for eligibility did not become current until June, 1999, two months after Plaintiffs filed their Writ of Mandamus with the District Court. It is only subsequent to a priority date becoming current that the INS adjudicates an adjustment of status application." See Findings at 4. The basis for this conclusion is not clear, and is disputed by Plaintiffs. The court notes that there may be some disagreement about underlying facts. Plaintiffs identify their immigration status as "EB-2," see Plaintiffs' Objections to Findings, Conclusions and Recommendations of the United States Magistrate Judge, at 4. Defendants seem to assert that Plaintiffs' immigration status is "3rd preference labor based," see Defendant's Response in Opposition to Plaintiffs Motion to Reconsider and Renewed Motion to Dismiss, at 3.
The parties have filed motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), not motions for summary judgment pursuant to Fed. R, Civ. P. 56. The court reviews motions for judgment on the pleadings solely on the basis of the allegations in the pleadings and accepts all allegations as true. St. Paul Ins. Co. v. AFIA Worldwide Ins. Co., 937 F.2d 274, 279 (5th Cir. 1991). The court can look outside the pleadings and treat the motions as for summary judgment, id., but the court concludes that it would be improper to make such a factual determination based on assertions that were not fully briefed. The portion of the court's earlier order that held that "Plaintiffs' priority dates for eligibility did not become current until June, 1999" is therefore vacated and set aside.
Even if the requested visas were not available when the complaint was filed, neither party disputes that visas were available by June, 1999. The court would not be disposed to dismiss a complaint as, in essence, unripe when the situation has since changed. Doing so would not promote judicial economy.
2. Whether the Delay in Adjudicating the Applications was "Reasonable"
Defendants do not explicitly address this issue in either of their motions to dismiss, asserting instead that they have no nondiscretionary duty to adjudicate the applications and that the court has no jurisdiction. As noted above, the court now finds to the contrary as to both assertions. Plaintiffs assert that there has been a two year delay and that such a delay is per se unreasonable. The court finds that the only undisputed fact is that Plaintiffs filed their applications on March 31, 1997. Because that is insufficient to conclude as a matter of law whether the delay in adjudicating the applications is reasonable, judgment for neither party is appropriate at this stage. Defendants' Renewed Motion to Dismiss and Plaintiffs' renewed request for judgment on the pleadings are therefore both denied.
IV. Conclusion
The court grants in part Plaintiffs' Motion to Reconsider, with respect to reconsidering its prior order of October 14, 1999. Upon reconsidering that prior order, the court makes the following conclusions: 1) the court has subject matter jurisdiction over this case pursuant to the APA in conjunction with 28 U.S.C. § 1331; 2) 8 U.S.C. § 1252(g) does not preclude such jurisdiction; 3) no adequate remedy exists for the alleged injury other than mandamus and therefore mandamus is a proper form of relief; and 4) there has been no determination as a matter of law whether visas were available for Plaintiffs when the complaint was filed. Accordingly, the court's order of October 14, 1999 is hereby vacated and set aside. With respect to Plaintiffs' Motion to Reconsider, the court denies it insofar as their request for judgment on the pleadings because Plaintiffs have not demonstrated as a matter of law that they are entitled to the relief requested. See Conclusion 4. Defendants' Renewed Motion to Dismiss is denied. The court's judgment filed on October 14, 1999, which dismissed this action with prejudice, is hereby vacated and set aside.
It is so ordered this 1st, day of November, 2000.