72 F.3d 288 (2nd Cir. 1995), 94-6306, Howell v. I.N.S.

Docket NºDocket 94-6306.
Citation72 F.3d 288
Party NameDebra A. HOWELL, Plaintiff-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee. No. 1688.
Case DateDecember 20, 1995
CourtUnited States Courts of Appeals, United States Court of Appeals (2nd Circuit)

Page 288

72 F.3d 288 (2nd Cir. 1995)

Debra A. HOWELL, Plaintiff-Appellant,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee.

No. 1688.

Docket 94-6306.

United States Court of Appeals, Second Circuit

December 20, 1995

Argued Aug. 7, 1995.

Page 289

Irving Edelman, New York City, for Plaintiff-Appellant.

Scott A. Dunn, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney for the Eastern District of New York, Deborah B. Zwany, Assistant United States Attorney, of counsel), for Defendant-Appellee.

Before MINER, WALKER and PARKER, Circuit Judges.

MINER, Circuit Judge:

Plaintiff-appellant Debra A. Howell appeals from a judgment entered in the United States District Court for the Eastern District of New York (Weinstein, J.) dismissing plaintiff's complaint. The district court found that it lacked subject matter jurisdiction to review the district director's denial of Howell's application for adjustment of status pursuant to 8 U.S.C. Sec. 1255. For the reasons that follow, we affirm the judgment of the district court.

BACKGROUND

On August 8, 1992, Howell, a citizen of Jamaica, used the passport and identity of another person, Sadie Dennis, to enter the United States. Howell is the alien spouse of a United States citizen. On March 31, 1993, a Form I-130 petition was filed on Howell's behalf with the Immigration and Naturalization Service ("INS"), seeking to classify her as an immediate relative. On the same day, Howell filed an I-485 application for adjustment of her status to that of a permanent resident. She also filed a Form I-601 application for a waiver of excludability in order to request that the INS waive, as a ground of inadmissibility, the fact that she fraudulently entered the United States.

On December 13, 1993, INS District Director William S. Slattery of the New York District (the "district director") approved Howell's petition for classification as an immediate relative. However, he denied Howell's application for adjustment of status. The district director found that Howell had not presented "evidence to prove ... that she was the one that was inspected on August 8, 1992, as required." He stated that she had not "submitted any credible evidence to establish that she was the person who presented the passport and nonimmigrant visa of Sadie Dennis to an Immigration Inspector on August 8, 1992." The district director also denied Howell's application for a waiver of excludability for the same reasons. He granted Howell until January 13, 1994 to depart voluntarily from the United States.

Page 290

Howell, nonetheless, did not depart from the United States, and, on January 31, 1994, she filed a complaint in the district court, seeking, inter alia, review of the district director's denial of her application for adjustment of status. On February 24, 1994, the INS sent a Form I-72 letter to Howell, requesting that she provide the INS with information regarding her application. Howell did not respond to the letter.

The INS moved to dismiss Howell's complaint, contending in a Memorandum of Law dated August 23, 1994 that the district court "lack[ed] jurisdiction to review the INS's denial of [Howell's] application because she [had] failed to exhaust her administrative remedies." Howell opposed the INS's motion to dismiss, arguing in a Memorandum of Law dated September 20, 1994, inter alia, that under the Supreme Court's decision in Darby v. Cisneros, --- U.S. ----, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993), she was not required to exhaust her administrative remedies in order to obtain district court review of the district director's denial of her application for adjustment of status.

On October 19, 1994, the INS sent Howell a Form G-56 Call-In Notice, directing her to come to the INS for an interview, but again Howell did not respond. On October 28, the INS served on Howell an Order to Show Cause why she should not be deported. 1 The INS, however, did not file the Order to Show Cause with the Office of the Immigration Judge, and, therefore, deportation proceedings against Howell did not commence at that time. 2

In a letter dated October 28, 1994, the INS responded to Howell's Memorandum of Law opposing the INS's motion to dismiss. The INS argued that the Supreme Court's decision in Darby did not require that the district court review the district director's denial of Howell's application for adjustment of status because she had the opportunity to renew her application during deportation proceedings. In an Order and Judgment dated November 16, 1994, the district court granted the INS's motion and dismissed Howell's complaint "for the reasons set forth in [the INS's] Memorandum of Law and in [the INS's] October 28, 1994 letter to the Court." On December 1, 1994, Howell filed a Notice of Appeal.

On March 9, 1995, the INS discovered that it had not filed the Order to Show Cause with the Office of the Immigration Judge. Accordingly, on that date, the INS filed the Order to Show Cause with the Office of the Immigration Judge, as required under 8 C.F.R. Sec. 242.1(a) for the commencement of deportation hearings, and the Order to Show Cause again was sent to Howell at her last known address and to her attorney. 3

DISCUSSION

  1. Adjustment of Status

    Under Sec. 245 of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. Sec. 1255:

    The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of

    Page 291

    an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

    Since Sec. 1255 allows an alien to apply for permanent residence status in the United States rather than requiring him to return to his own country to apply for such status, its provision for adjustment of status "is considered to be extraordinary relief." Jain v. INS, 612 F.2d 683, 687 (2d Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980).

    Pursuant to the regulations promulgated under Sec. 1255, an alien seeking adjustment of status applies to the "director having jurisdiction over his place of residence." 8 C.F.R. Sec. 245.2(a)(1). If the director denies the alien's application, "[n]o appeal lies from the denial of an application by the director, but the applicant retains the right to renew his or her application in [deportation] proceedings." 8 C.F.R. Sec. 245.2(a)(5)(ii). In addition, 8 C.F.R. Sec. 245.2(a)(1) provides that "[a]fter an alien has been served with an order to show cause or warrant of arrest, his application for adjustment of status ... shall be made and considered only in [deportation] proceedings."

    Deportation proceedings are "commenced by the filing of an order to show cause with the Office of the Immigration Judge." 8 C.F.R. Sec. 242.1(a). During the proceedings, the alien is given a plenary hearing and has the right to be represented by counsel, to cross-examine, and to introduce evidence. 8 C.F.R. Sec. 242.16. If the immigration judge rules against the alien, then the alien may appeal to the Board of Immigration Appeals. 8 C.F.R. Sec. 242.21. An unfavorable decision by the Board of Immigration Appeals may be appealed to a circuit court of appeals. 8 U.S.C. Sec. 1105a(a)(2) (providing that the venue for judicial review of deportation orders "shall be in the judicial circuit in which the administrative proceedings before a special inquiry officer were conducted").

  2. Exhaustion of Administrative Remedies

    Under the doctrine of exhaustion of administrative remedies, "a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself." Guitard v. United States Secretary of Navy, 967 F.2d 737, 740 (2d Cir.1992) (citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1938)). The requirement of exhaustion "may arise from explicit statutory language or from an administrative scheme providing for agency relief." Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 592 (2d Cir.1993). If a party fails to exhaust administrative remedies, then the court may dismiss the action because subject matter jurisdiction does not exist. DiLaura v. Power Auth., 982 F.2d 73, 79 (2d Cir.1992).

    There are, however, established exceptions to the exhaustion rule. "Exhaustion of administrative remedies may not be required when: (1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional question." Guitard, 967 F.2d at 741 (internal quotations omitted).

    Also, the Supreme Court's decision in Darby v. Cisneros, --- U.S. ----, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993), has placed additional limitations on the requirement for the exhaustion of administrative remedies. In Darby, the Supreme Court held that federal courts do...

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98 practice notes
  • Kalman v. Berger, 022707 CTSUP, CV064006197
    • United States
    • Connecticut Superior Court of Connecticut
    • Invalid date
    ...statutory language or from an administrative scheme providing for agency relief . . . Howell v. Immigration & Naturalization Service, 72 F.3d 288, 291 (2d Cir. 1995) . . . Id. at pp. 563-64. Exhaustion of administrative remedies . . . is not required before bringing a claim pursuant to ......
  • 317 F.Supp.2d 398 (S.D.N.Y. 2004), 03 Civ. 7261, Ying Fong v. Ashcroft
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • April 30, 2004
    ...determination until the party has first sought all possible relief within the agency itself." Id. at 56 (quoting Howell v. INS, 72 F.3d 288, 291 (2d Cir. 1995)). This rule of exhaustion is compelled both judicially and by statute. Id. at 63; see 8 U.S.C. § 1252(d)(1).4 In Theodoropoulo......
  • 448 F.Supp.3d 297 (S.D.N.Y. 2020), 20-cv-1345 (LJL), Garcia v. Decker
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • March 24, 2020
    ...of prudential exhaustion "may arise ... from an administrative scheme providing for agency relief." Howell v. I.N.S., 72 F.3d 288, 291 (2d Cir. 1995) (citation and internal quotations omitted). Prudential exhaustion is intended to "protect[] the authority ......
  • Enterpreting agency enabling acts: misplaced metaphors in administrative law.
    • United States
    • William and Mary Law Review Vol. 41 Nbr. 5, May 2000
    • May 1, 2000
    ...523 U.S. 83, 96-97 (1998) (standing); McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) (mootness); Howell v. INS, 72 F.3d 288, 291 (2d Cir. 1995) (exhaustion); New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1498-99 (10th Cir. 1995) (ripeness). But cf. Americ......
  • Request a trial to view additional results
99 cases
  • Kalman v. Berger, 022707 CTSUP, CV064006197
    • United States
    • Connecticut Superior Court of Connecticut
    • Invalid date
    ...statutory language or from an administrative scheme providing for agency relief . . . Howell v. Immigration & Naturalization Service, 72 F.3d 288, 291 (2d Cir. 1995) . . . Id. at pp. 563-64. Exhaustion of administrative remedies . . . is not required before bringing a claim pursuant to ......
  • 317 F.Supp.2d 398 (S.D.N.Y. 2004), 03 Civ. 7261, Ying Fong v. Ashcroft
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • April 30, 2004
    ...determination until the party has first sought all possible relief within the agency itself." Id. at 56 (quoting Howell v. INS, 72 F.3d 288, 291 (2d Cir. 1995)). This rule of exhaustion is compelled both judicially and by statute. Id. at 63; see 8 U.S.C. § 1252(d)(1).4 In Theodoropoulo......
  • 448 F.Supp.3d 297 (S.D.N.Y. 2020), 20-cv-1345 (LJL), Garcia v. Decker
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • March 24, 2020
    ...of prudential exhaustion "may arise ... from an administrative scheme providing for agency relief." Howell v. I.N.S., 72 F.3d 288, 291 (2d Cir. 1995) (citation and internal quotations omitted). Prudential exhaustion is intended to "protect[] the authority ......
  • Saleh v. Pastore, 042721 NYSDC, 19 Civ. 11799 (KPF)
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • April 27, 2021
    ...v. Headstrong, Inc., No. 12 Civ. 6652 (RA), 2013 WL 4710388, at *3 (S.D.N.Y. Aug. 30, 2013) (quoting Howell v. I.N.S., 72 F.3d 288, 291 (2d Cir. The Second Circuit has determined that the INA requires the exhaustion of administrative remedies before an applicant may......
  • Request a trial to view additional results
1 books & journal articles
  • Enterpreting agency enabling acts: misplaced metaphors in administrative law.
    • United States
    • William and Mary Law Review Vol. 41 Nbr. 5, May 2000
    • May 1, 2000
    ...523 U.S. 83, 96-97 (1998) (standing); McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) (mootness); Howell v. INS, 72 F.3d 288, 291 (2d Cir. 1995) (exhaustion); New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1498-99 (10th Cir. 1995) (ripeness). But cf. Americ......

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