Aguilera v. Kirkpatrick

• Decision Date: 07 March 2001
• Docket Number: No. 00-4008,00-4008
• Citation: 241 F.3d 1286
• Parties: (10th Cir. 2001) JUDITH AGUILERA; MARIO AGUILERA; SKYE SINGH; AMAN SINGH; LUCIA FIERRO; RICHARD SCHULL, Plaintiffs - Appellants, v. WAYNE KIRKPATRICK, Acting OIC; JOSEPH GREENE, District Director, INS; JANET RENO, U.S. Attorney General, Defendants - Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1286

241 F.3d 1286 (10th Cir. 2001)

JUDITH AGUILERA; MARIO AGUILERA; SKYE SINGH; AMAN SINGH; LUCIA FIERRO; RICHARD SCHULL, Plaintiffs - Appellants, v. WAYNE KIRKPATRICK, Acting OIC; JOSEPH GREENE, District Director, INS; JANET RENO, U.S. Attorney General, Defendants - Appellees.

No. 00-4008

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

March 07, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH. (D. Ct. No. 99-CV-37-B)

[Copyrighted Material Omitted] Todd A. Utzinger (Hakeem Ishola, on the brief), Ishola, Utzinger & Perretta, Salt Lake City, Utah, appearing for Appellants.

Francis W. Fraser, Attorney (John J. Andre, Senior Litigation Counsel, with him on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, DC, appearing for Appellees.

Before TACHA, Chief Judge, McWILLIAMS and MURPHY, Circuit Judges.

TACHA, Chief Judge.

Petitioners appeal the district court's dismissal of their habeas corpus petition for lack of subject matter jurisdiction. Although we hold that we do have jurisdiction under 28 U.S.C. 2241, we dismiss because Petitioners fail to state a claim upon which relief can be granted.

I. Background

A. Factual Background

1. Petitioners Mario and Judith Aguilera

On January 26, 1995, an immigration judge denied Petitioner Mario Aguilera's asylum application. Mr. Aguilera, a citizen and native of Chile, appealed to the Board of Immigration Appeals (BIA), which affirmed the immigration judge's decision on October 12, 1995. Mr. Aguilera did not exercise his statutory right to appeal to this court. On October 25, 1995, after Mr. Aguilera's final order of deportation had been entered, he married Petitioner Judith Aguilera, a U.S. citizen. In addition to Mr. Aguilera's two sons from a previous marriage, Mr. and Mrs. Aguilera have two daughters, who were born in the United States. In May 1997, Mrs. Aguilera filed Form I-30 immediate relative visa petitions for her husband and step-children. The next year, the Immigration and Naturalization Service (INS) approved the I-30 visa petitions, allowing Mr. Aguilera and his children to apply for legal permanent residency.

Mr. Aguilera did not return to Chile after his asylum application was denied, and on October 8, 1997, the INS issued a warrant of deportation. In 1998, he was convicted for using a false social security number in violation of 42 U.S.C. 408(a)(7)(B), for which he was sentenced to six months in jail. Upon his release, the INS agreed to stay his deportation for a year, expiring on February 27, 1999, or until he reopened his deportation proceedings to apply for adjustment of status based on his marriage to a U.S. citizen. Before the expiration of his sentence, Mr. Aguilera sought to reopen his deportation proceedings under 8 C.F.R. 3.2(c)(3)(iii), which allows the filing of an untimely motion to reopen if and when the INS jointly files such motion. The INS did not, however, agree to join his motion to reopen.

2. Petitioners Arman and Skye Singh

On January 29, 1997, the BIA affirmed an immigration judge's denial of Petitioner Arman Singh's asylum application. Mr. Singh, a citizen and native of India, then filed a petition for review with this court but withdrew it on May 9, 1997 after we refused to grant a stay of deportation while his appeal was pending. In April 1997, while his case was still pending, Mr. Singh married Petitioner Skye Singh, a U.S. citizen. A few months later, Mrs. Singh filed an I-30 visa petition for her husband. On September 29, 1997, after the INS approved the petition, Mr. Singh requested the INS join in his motion to reopen his deportation proceedings to apply for adjustment of status. The following year, in November 1998, the INS declined to jointly file his motion to reopen, arresting Mr. Singh two days later but releasing him on his own recognizance. Subsequently, the INS placed Mr. Singh on supervised release and ordered that he deport himself by January 25, 1999.

3. Petitioners Lucia Fierro and Richard Schull

After being denied asylum by INS asylum officers, Petitioner Lucia Fierro, a citizen and native of Mexico, was placed in deportation proceedings. On November 15, 1996, because Ms. Fierro failed to appear for her deportation hearing, an immigration judge entered an in absentia deportation order. After Ms. Fierro failed to appeal the order, it became final, and on November 23, 1996, the INS issued a warrant of deportation. Subsequently, in October 1997, she married Petitioner Richard Schull, a U.S. citizen, who filed an I-30 visa petition for her. In November 1998, the INS approved the petition. Around that time, the couple also had their first child. The following February, Ms. Fierro filed a motion to reopen with the immigration court, requesting the INS join in her motion. The INS declined to do so.

B. Legal and Procedural Background

Under 8 C.F.R. 3.2(c)(2), an alien may file a motion to reopen before either the BIA or the immigration judge on or before September 30, 1996, or no later than ninety days after entry of the final administrative decision, whichever date is later. All the petitioners failed to file motions to reopen within the requisite ninety days, or before the 1996 deadline, so their motions are time barred unless they satisfy one of the exceptions listed under 8 C.F.R. 3.2(c)(3), which includes an exception for motions to reopen joined by the INS, 8 C.F.R. 3.2(c)(3)(iii).

Because their motions are otherwise time barred, the petitioners attempted to meet one of the regulation's exceptions, asking the INS to join their motions to reopen under 8 C.F.R. 3.2(c)(3)(iii). The INS refused, and the petitioners subsequently filed a habeas corpus petition in federal district court seeking temporary and permanent injunctive and mandamus relief enjoining the INS from applying 8 C.F.R. 3.2 arbitrarily and capriciously and staying their deportation. Specifically, the petitioners alleged the INS arbitrarily and capriciously applied 8 C.F.R. 3.2 in violation of their due process rights, in particular the citizen-petitioners' substantive rights to marry, remain, and work in the United States. They also alleged that the regulation is an unconstitutional delegation of authority to the Attorney General.

Defendants moved to dismiss the petitioners' claims for both lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Rule 12(b)(6). The district court dismissed the petition for lack of jurisdiction, adopting the reasons stated in the defendants' memorandum in support of their motion to dismiss.¹ Despite the court's statement that it dismissed for lack of jurisdiction, its order is ambiguous because it adopts the reasons in the defendants' memorandum without distinguishing those arguments based on jurisdiction from those based on failure to state a claim. Even if we presume, however, that the district court order incorporates only the defendants' jurisdictional arguments, we may nevertheless affirm on the ground that the petitioners fail to state a claim upon which relief can be granted. Remanding the case for dismissal under Rule 12(b)(6) would indeed be a "futile exercise." Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 239 (3d Cir. 1980) (affirming district's court's dismissal for lack of jurisdiction on ground that plaintiff failed to state a claim under Rule 12(b)(6)); accord Chiplin Enters., Inc. v. City of Lebanon, 712 F.2d 1524, 1528-29 (1st Cir. 1983); Sacks v. Reynolds Sec., Inc., 593 F.2d 1234, 1239 (D.C. Cir. 1978); Carr v. Learner, 547 F.2d 135, 137 (1st Cir. 1976); see also United States v. Sandia, 188 F.3d 1215, 1217 (10th Cir. 1999) (recognizing this court may affirm a district court decision on grounds not relied on by the district court if the record supports conclusions of law). As such, we hold that, although the district court had subject matter jurisdiction over the petitioners' claims under 28 U.S.C. 2241, it should have dismissed for failure to state a claim under Rule 12(b)(6). We therefore affirm the district court's dismissal but on the alternative ground that the petitioners fail to state a claim upon which relief can be granted.

II. Jurisdiction

On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, amended by Act of Oct. 11, 1996, Pub. L. No. 104-302, 110 Stat. 3656. IIRIRA dramatically changed the Immigration and Nationality Act (INA), in particular limiting the availability of judicial review of removal orders. Because the petitioners' deportation proceedings were not commenced on or after IIRIRA's effective date, April 1, 1997, most of the new provisions do not apply to them.² IIRIRA 309(c), reprinted in 8 U.S.C. 1101 note. The INS argues, however, that one jurisdictional provision, INA 242(g), applies to the petitioners and forecloses any judicial review, including habeas review, in this case. INA 242(g) provides:

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.

8 U.S.C. 1252(g). This provision applies "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings." IIRIRA 306(c)(1), reprinted in 8 U.S.C. 1252 note. Because INA 242(g) applies to past and pending deportation proceedings it clearly applies to the petitioners' claims.

The question we must therefore resolve is whether INA 242(g) precludes judicial review of the petitioners' constitutional claims regarding their motions to reopen under 8 C.F.R. 3.2(c)(3)(iii). The INS argues that INA 242(g) forecloses...