Calero v. I.N.S., 861

• Decision Date: 19 February 1992
• Docket Number: D,No. 861,861
• Citation: 957 F.2d 50
• Parties: Rene Wilfredo Molina CALERO, Plaintiff-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE; William S. Slattery, in his official capacity as District Director of the Immigration and Naturalization Service; Richard Thornburgh, in his capacity as Attorney General of the United States and the Immigration and Naturalization Service, an agency of the Department of Justice, Defendants-Appellees. ocket 91-6247.
• Court: U.S. Court of Appeals — Second Circuit

Page 50

957 F.2d 50

21 Fed.R.Serv.3d 1281

Rene Wilfredo Molina CALERO, Plaintiff-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE; William S Slattery, in his official capacity as District Director of the Immigration and Naturalization Service; Richard Thornburgh, in his capacity as Attorney General of the United States and the Immigration and Naturalization Service, an agency of the Department of Justice, Defendants-Appellees.

No. 861, Docket 91-6247.

United States Court of Appeals Second Circuit.

Argued Jan. 29, 1992.

Decided Feb. 19, 1992.

Neil H. Afran, International Human Rights Asylum Litigation Clinic, Touro College, Jacob D. Fuchsberg Law Center Huntington, New York City, for plaintiff-appellant.

Diogenes P. Kekatos, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., James A. O'Brien, III, Sp. Asst. U.S. Atty., Thomas A. Zaccaro, Asst. U.S. Atty., of counsel), for defendants-appellees.

Before TIMBERS and WINTER, Circuit Judges, and MUKASEY, District Judge. ^*

WINTER, Circuit Judge:

Appellant Rene Wilfredo Molina Calero appeals from Judge Patterson's order dismissing his complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction, and under Fed.R.Civ.P. 12(b)(6), for failure to state a claim. Calero, a fifteen-year-old citizen of El Salvador, unlawfully entered the United States on February 12, 1991. The Immigration and Naturalization Service ("INS") served Calero with an order to show cause and notice of hearing, charging that his illegal entry made him deportable. Calero indicated to INS officials that he wished to have a hearing before an immigration judge. In late February, Calero was released from INS custody on his own recognizance and moved to Huntington Station, New York, to live with his brother-in-law.

After two adjournments, the deportation proceedings resumed in New York City on June 26, 1991 before Immigration Judge Peggy M. McManus. Bruno Joseph Bembi, an attorney who had accompanied Calero at the two adjourned proceedings, refused to act as counsel to Calero until a guardian ad litem was appointed. In response, Immigration Judge McManus explained to Calero that at the next hearing he could appear with an authorized representative, or with a friend, guardian or relative. She also provided Calero with a list of free legal services from which he might obtain representation. The proceedings were then adjourned until July 3, 1991. When they resumed, Bembi entered an appearance as Calero's attorney. Immigration Judge McManus, however, refused to accept written notice that Calero was not waiving his request for a guardian ad litem. She then adjourned the proceedings to allow Calero to pursue litigation over the guardian issue in the Southern District of New York.

On April 25, 1991, Calero filed the instant action, requesting the appointment, at the government's expense, of a guardian ad litem for Calero. The basis for jurisdiction stated in the complaint was Fed.R.Civ.P. 17(c), which provides that "[t]he court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person." The complaint also asserted that, if a guardian ad litem were not appointed, Calero would be denied due process. On June 28, 1991, the government moved to dismiss the complaint and on July 30, Calero filed an amended complaint, which sought to supplement the jurisdictional allegations. Judge Patterson dismissed Calero's complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), 770 F.Supp. 197 (S.D.N.Y.1991), and Calero appealed.

We first examine whether subject-matter jurisdiction exists. Calero's reliance upon Fed.R.Civ.P. 17(c) is unavailing. The civil "rules govern the procedure in the United States district courts," Fed.R.Civ.P. 1, and there is nothing in Rule 17(c) that suggests its applicability to administrative proceedings in the executive branch. To the contrary, it applies only to "an infant or incompetent person not otherwise represented in an action," a reference to a civil action in a district court. See Fed.R.Civ.P. 3.

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