Rios v. Ziglar, No. 04-3009.

• Decision Date: 16 February 2005
• Docket Number: No. 04-3009.
• Citation: 398 F.3d 1201
• Parties: Eloy RIOS, Plaintiff-Appellant, v. James ZIGLAR, Commissioner of Bureau of Citizenship and Immigration Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

398 F.3d 1201

Eloy RIOS, Plaintiff-Appellant, v. James ZIGLAR, Commissioner of Bureau of Citizenship and Immigration Services, Defendant-Appellee.

No. 04-3009.

United States Court of Appeals, Tenth Circuit.

February 16, 2005.

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James S. Phillips, Jr., Wichita, KS, for Plaintiff-Appellant.

Eric F. Melgren, United States Attorney, and Laurie K. Kahrs, Assistant United States Attorney, for the United States.

Before McCONNELL, HOLLOWAY, and TYMKOVICH, Circuit Judges.

McCONNELL, Circuit Judge.

We abated oral argument in this appeal after Plaintiff-Appellant's counsel was disbarred. Upon notification from Plaintiff-Appellant that he will not seek replacement counsel and that he wishes to have his appeal considered on the record, we ordered this matter submitted for disposition on the briefs. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G).

Plaintiff-Appellant Eloy Rios appeals the district court's dismissal of his petition for writ of mandamus for lack of subject-matter jurisdiction and the dismissal of his claim for declaratory and injunctive relief for failure to state a claim. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I.

Eloy Rios is a native of Nicaragua. The Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub.L. 105-100, 111 Stat. 2160, 2193 (1997) (amended by Pub.L. No. 105-139, 111 Stat. 2644 (1997)), permitted undocumented Nicaraguan nationals to adjust their status to that of lawful permanent residents. Regulations promulgated under NACARA required that proper applications to adjust status be received before April 1, 2000. 8 C.F.R. § 245.13(g). Mr. Rios and his family applied for adjustment of status under NACARA. On March 27, 2000, the INS Mesquite, Texas Servicing Center received and date-stamped three Form I-485 applications to register permanent residence or adjust status under NACARA for Mr. Rios, his wife, and his nineteen-year-old son. A check written by Mr. Rios's wife for $580.00 was attached to the applications. The correct fee was $1,385.00.¹

Because the applications did not include a correct filing fee, the INS sent Mr. Rios a notice of rejection, dated April 13, 2000, which reads in its entirety:

The above application or petition, along with any check or other form of fee payment, is attached. The application or petition cannot be accepted because the proper fee of $245.00 U.S. is not attached. Since the case is not properly filed, a priority or processing date cannot be assigned.

Please attach a check or money order for this amount and resubmit this entire package to the address listed below. To speed processing, please leave this notice on top.

Notice of Action (April 13, 2000), Aplt.App. 58. Mr. Rios resubmitted his application on September 9, 2000. The INS rejected this application because it was filed after the March 31, 2000 deadline. Mr. Rios submitted a third application on August 14, 2001. On August 23, 2001, the INS rejected the application for the same reason. On November 7, 2001, Mr. Rios submitted his application again as part of a motion to reopen. The INS denied his motion to reopen on November 30, explaining that his application had not been denied. Mr. Rios did not apply for, and the INS did not grant, a waiver of the filing fee for his application for adjustment of status under NACARA. On June 30, 2002, Mr. Rios filed a complaint in the United States District Court for the District of Kansas seeking a writ of mandamus, declaratory relief, and a mandatory injunction directing the INS to process his NACARA application.² The government filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim or, in the alternative, for summary judgment. The district court granted the government's motion, dismissing the petition for writ of mandamus for lack of subject matter jurisdiction and dismissing his claim for injunctive relief for failure to state a claim. Order at 3-4. We review the district court's grant of a motion to dismiss de novo. U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir.1999).

II.

Mr. Rios advances two principal arguments on appeal.³ First, he claims that the district court erred in dismissing his petition for writ of mandamus because he raised a genuine issue of fact concerning his right to relief. He argues that NACARA and its accompanying regulations permit an applicant to correct defects in his application after the filing deadline provided that the application was submitted before the deadline. He also argues that he included sufficient funds for his own application in the original submission on March 27, 2000. Second, Mr. Rios claims that the court erred in dismissing his claim for declaratory and injunctive relief because the government was estopped from claiming that his application was untimely.⁴ He maintains that the government's rejection notice led him to believe that he could resubmit his application with the correct application fee after the filing deadline. He also suggests that the government took conflicting positions regarding his application. Both of these claims lack merit.

A. Subject-Matter Jurisdiction over the Petition for Writ of Mandamus

Mr. Rios concedes that the filing fee attached to the March 27, 2000 applications was insufficient. He argues, nonetheless, that he has a right to a protected filing date of March 27, 2000, and he seeks a writ of mandamus directing the INS to process his NACARA application. The district court dismissed Mr. Rios's petition for writ of mandamus for lack of subject matter jurisdiction, finding that Mr. Rios had not established a clear right to relief. Op. 1205. We affirm the dismissal of Mr. Rios's petition on other grounds.

The Mandamus Act provides, "The 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. To be eligible for mandamus relief, the petitioner must establish (1) that he has a clear right to relief, (2) that the respondent's duty to perform the act in question is plainly defined and peremptory, and (3) that he has no other adequate remedy. Johnson v. Rogers, 917 F.2d 1283, 1285 (10th Cir.1990). Once the petitioner has established the prerequisites of mandamus relief, the court may exercise its discretion to grant the writ. Marquez-Ramos v. Reno, 69 F.3d 477, 479 (10th Cir.1995). The determination whether the mandamus factors are met is reviewed de novo; the exercise of discretion is reviewed for abuse of discretion. Id.

The court's jurisdiction over a mandamus petition depends on the character of the government's duty to the petitioner. Id. ("[T]he question of whether a particular act is discretionary or ministerial rises to the jurisdictional level."). "The test for jurisdiction is whether mandamus would be an appropriate means of relief." Carpet, Linoleum & Resilient Tile Layers v. Brown, 656 F.2d 564, 567 (10th Cir.1981). If the duty is "ministerial, clearly defined and peremptory," mandamus is appropriate. Id. at 566 (quoting Schulke v. United States, 544 F.2d 453, 455 (10th Cir.1976)).

In Mr. Rios's case, mandamus is an appropriate form of relief. Mr. Rios alleges that the INS improperly refused to process his application to adjust status under NACARA. The government does not contend that processing applications is a discretionary function. It argues that Mr. Rios failed to file a proper application. For purposes of mandamus jurisdiction, however, the petitioner's allegations, "unless patently frivolous, are taken as true to avoid tackling the merits under the ruse of assessing jurisdiction." See id., quoted in Ahmed v. Dep't of Homeland Security, 328 F.3d 383, 386 (7th Cir.2003). Because Mr. Rios alleged that the INS failed to carry out a ministerial task, the court had jurisdiction over his mandamus petition.

Mr. Rios's petition was properly dismissed, however, because he cannot establish the prerequisites of mandamus relief. NACARA permitted Nicaraguan and Cuban nationals to apply for adjustment to lawful permanent resident status if they met certain eligibility criteria. 8 C.F.R. § 245.13(a). The regulations enacted under NACARA required that all aliens "properly file an application for adjustment of status before April 1, 2000." 8 C.F.R. § 245.13(g). INS regulations provided that an application was properly filed when (1) the application was date-stamped by the INS, (2) the applicant signed and executed the application, and (3) the applicant attached the required filing fee or the INS granted a waiver of the fee. 8 C.F.R. § 103.2(a)(7)(i).

Mr. Rios concedes that his family's applications were not accompanied by a proper filing fee, but he maintains that their applications should have received a priority filing date, allowing the applications to be considered timely filed if the correct filing fee was submitted after the deadline. Mr. Rios did not request or receive a fee waiver. The regulations specifically provide that "[a]n application or petition which is not properly signed or is submitted with the wrong filing fee shall be rejected as improperly filed. Rejected applications ... will not retain a filing date." 8 C.F.R. § 103.2(a)(7)(i) (emphasis added). Mr. Rios's application did not retain a filing date because it was not accompanied by a proper filing fee.

Mr. Rios argues that although his family's original submission did not include a sufficient filing fee for all of the applications, the check for $580.00 was sufficient to cover the filing fee for his own application. He also maintains that the original check was sufficient for his and his wife's applications. Reply Br. 3. Accordingly, he argues, the INS was required to do one of two things: (1) process his application and refund the difference; or (2) give his application a priority filing date.

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