Espin v. Gantner

• Decision Date: 19 July 2005
• Docket Number: No. 05 CIV. 4595(LAP).,05 CIV. 4595(LAP).
• Citation: 381 F.Supp.2d 261
• Parties: Andrea ESPIN, Petitioner, v. Mary Ann GANTNER, USCIS District Director, et al. Respondent.
• Court: U.S. District Court — Southern District of New York

381 F.Supp.2d 261

Andrea ESPIN, Petitioner, v. Mary Ann GANTNER, USCIS District Director, et al. Respondent.

No. 05 CIV. 4595(LAP).

United States District Court, S.D. New York.

July 19, 2005.

Donald H. London, Law Office of Donald H. London, Yonkers, NY, for Petitioner.

Frank James Loprest, Jr., U.S. Attorney's Office, New York City, for Respondent.

ORDER

PRESKA, District Judge.

Andrea Espin ("Espin", "Petitioner"), has submitted a petition for a Writ of Mandamus to the Court, requesting, among other things, that the Court direct Respondents, Mary Ann Gantner, United States Citizenship and Immigration Services ("USCIS") District Director, Department of Homeland Security Secretary and Office of the General Counsel (collectively, "Respondents"), to accord her lawful permanent resident status. For the reasons outlined below, Espin's application is denied and her underlying petition is dismissed.

I. Background

Andrea Espin, a native and citizen of Ecuador, claims that in February 2002 she submitted an application ("adjustment application" or "I-485 application") to the New York District office of the former Immigration and Naturalization Service ("INS")¹ seeking a discretionary adjustment of her immigration status to that of lawful permanent resident of the United States, pursuant to § 245(a) of the Immigration and Nationality Act of 1952, as amended ("INA"), 8 U.S.C. § 1255(a). (Petition for a Writ of Mandamus ("Petition") dated April 9, 2005, ¶ 7.) Espin claims that she was eligible for adjustment because her mother married a United States citizen. Id. Espin claims she was interviewed by an officer of the CIS (as the INS's successor agency) in January 2004. Id., ¶ 8. She claims she made several inquiries of the CIS regarding her application. Id., ¶ 10-16. She claims the CIS took a set of her fingerprints in connection with her application on April 15, 2005. Id., ¶ 17.²

Less than one month later, on May 9, 2005, Espin filed the instant action, seeking an Order "direct[ing] Respondent immediately to accord lawful permanent resident status to Petitioner within thirty (30) days." (Petition, "Wherefore" clause, ¶ 2.) On or about that date, Espin also submitted to the Court a proposed Order to Show Cause and application for injunctive relief.

II. Standard of Review

1. The Law Governing Adjustment of Immigration Status

Prior to 1952, in order to become permanent residents, all "aliens in the United States who were not immigrants had to leave the country and apply for an immigrant visa at a consulate abroad." Elkins v. Moreno, 435 U.S. 647, 667, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978); accord Randall v. Meese, 854 F.2d 472, 473 (D.C.Cir.1988) ("to achieve reclassification from nonimmigrant to permanent resident status, [an] alien had to leave the country and, in the ordinary course, apply to a United States consular officer abroad for an immigrant visa") (citations omitted). Recognizing, however, that there were "aliens in this country in nonimmigrant status who could show they qualified for immigrant status and who wished to avoid a costly trip out of the country merely to obtain a visa," Choe v. INS, 11 F.3d 925, 928 (9th Cir.1993), Congress created the mechanism for adjusting one's status contained in INA § 245, 8 U.S.C. § 1255(a). See INS v. Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976) (per curiam)(statute enacted so that "such aliens would not inevitably be required to leave the country and apply to a United States consul in order to obtain permanent-resident status").

Thus, in INA § 245, Congress gave the Attorney General discretion to adjust the status of an eligible alien already present in the country to that of a lawful permanent resident. See 8 U.S.C. § 1255(a)(i). A status adjustment applicant must meet several prerequisites: (1) he or she must have been "inspected and admitted or paroled" into the United States; (2) he or she must have submitted an application for adjustment of status; (3) an immigrant visa must be "immediately available" to the alien at the time the adjustment application is filed; and (4) he or she must be "admissible to the United States for permanent residence." 8 U.S.C. § 1255(a); 8 C.F.R. §§ 245.1(a) & 245.2(a)(2004). In addition, an adjustment applicant must also demonstrate that he or she merits status adjustment in the exercise of the Attorney General's discretion. See 8 U.S.C. § 1255(a); see, e.g., Elkins, 435 U.S. at 667, 98 S.Ct. 1338 ("adjustment of status is a matter of grace, not right").

2. The Law Governing Injunctions Against the Government

As an initial matter, because Espin seeks to enjoin governmental action taken in the public interest pursuant to a statutory or regulatory scheme, injunctive relief cannot be granted to her unless she establishes both irreparable injury and a likelihood of success on the merits of her claim.³ See Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir.1996); see also Able v. United States, 44 F.3d 128, 130 (2d Cir.1995)(heightened standard when seeking to enjoin governmental action "reflects the idea that governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly"). Moreover, because Espin seeks mandatory injunctive relief, the standard is even higher: she must establish a "substantial likelihood of success on the merits." See Hertz Corp. v. Avis, Inc., 867 F.Supp. 208, 211-12 (S.D.N.Y.1994) ("burden on the moving party is heightened when the movant ... seeks to disturb the status quo by ordering affirmative relief").

III. Discussion

In fact, Petitioner has not demonstrated any "likelihood of success" on the merits of her claims. Espin has failed to: (1) establish that this Court has subject matter jurisdiction over her claims; (2) state a claim upon which the Court may grant relief; or (3) demonstrate irreparable harm.⁴

1. Jurisdiction to Compel Government Action

It is well settled that "[t]he burden of proving jurisdiction is on the party asserting it." Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996) (citation omitted). Thus, the "well-pleaded complaint" rule requires Espin to state the basis for this Court's subject matter jurisdiction on the face of her petition. See, e.g., Beneficial National Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003); City of Rome v. Verizon Communications, Inc., 362 F.3d 168, 173 (2d Cir.2004).⁵

Espin has not met this burden. As an initial matter, in seeking a "writ of mandamus," Espin prays for a form of relief abolished over seventy years ago with the promulgation of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 81(b) ("The writs of scire facias and mandamus are abolished."); In re Nagy, 89 F.3d 115, 116 (2d Cir.1996); Cordoba v. McElroy, 78 F.Supp.2d 240, 242 (S.D.N.Y.2000); see also Fed.R.Civ.P. 1 (Rules "govern procedure in the United States district courts in all suits of a civil nature"); Fed.R.Civ.P. 2 (Rules establish "one form of action to be known as [a] `civil action'") (quotation marks in original).

It is also well-settled that mandamus relief is extraordinary and should not issue unless the action which a plaintiff seeks to compel is "subject to positive command, plainly described and free from doubt." Fifth Avenue Peace Parade Committee v. Hoover, 327 F.Supp. 238, 242 (S.D.N.Y.1971); see also Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984). However, as has been noted, the process of immigration status adjustment is not susceptible to mandamus jurisdiction because it is wholly discretionary with the Attorney General. See 8 U.S.C. § 1255(a); see also Elkins, 435 U.S. at 667, 98 S.Ct. 1338; Randall, 854 F.2d at 473; Jain v. INS, 612 F.2d 683, 687 (2d Cir.1979)(calling adjustment "extraordinary relief"). The Supreme Court long ago held that "[m]andamus... cannot be used to compel or control a duty in the discharge of which by law [a federal officer] is given discretion." Work v. United States ex rel. Rives, 267 U.S. 175, 177, 45 S.Ct. 252, 69 L.Ed. 561 (1925). Likewise, the Second Circuit has stated:

[M]atters solely within the INS's discretion ... are not reviewable under ... 28 U.S.C. § 1361 .... Aside from our powerlessness to intervene, the judicial creation of such a duty would have the potential for mischievous interference with the functioning of already overburdened administrative agencies.

Wan Shih Hsieh v. Kiley, 569 F.2d 1179, 1182 (2d Cir.1978).

Thus, in recent years, judges in this District have consistently declined to exercise mandamus jurisdiction over adjustment-related claims and have dismissed them. See, e.g., Vladagina v. Ashcroft, No. 00 Civ. 9456(DAB)(THK), 2002 WL 1162426, at *4 (S.D.N.Y. April 8, 2002), appeal dismissed, No. 02-6120, 2004 WL 1638248 (2d Cir. April 21, 2004); Saleh v. Ridge, 367 F.Supp.2d 508, 511 (S.D.N.Y.2005); Zheng v. Reno, 166 F.Supp.2d 875, 880-81 (S.D.N.Y.2001); Sadowski v. U.S. INS, 107 F.Supp.2d 451, 453 (S.D.N.Y.2000); Maldonado-Coronel v. McElroy, 943 F.Supp. 376, 381 (S.D.N.Y.1996); Rahman v. McElroy, 884 F.Supp. 782, 787 (S.D.N.Y.1995); Zaytsev v. Gantner, No. 04 Civ. 7101(WHP), 2004 WL 2251665, at *1 (S.D.N.Y. Sept. 24, 2004); Riley v. Gantner, 03 Civ. 2835(GEL), 2003 WL 22999487, at *4 (S.D.N.Y. Dec. 22, 2003); Karan v. McElroy, No. 02 Civ. 6678(JGK), 2003 WL 21209769, at *1 (S.D.N.Y. May 23, 2003); Yilmaz v. McElroy, No. 00 Civ. 7542(RCC), 2001 WL 1606886, at *3 (S.D.N.Y., Dec. 17, 2001); Ying Wang v. Reno, No. 01 Civ. 1698(BSJ), 2001 WL 1150343, at *2 n. 1 (S.D.N.Y. Sept. 27, 2001); Batista v. U.S. INS, No. 99 Civ. 2847(MBM), 2000 WL 204535, at *3 (S.D.N.Y. Feb. 22, 2000); Cobas v. INS, No. 99 Civ. 9378(LAK), 1999 WL 1627349, at *1 (S.D.N.Y. Sept. 30, 1999); Xin-Ming Zheng v. McElroy, No. 98 Civ. 1772(LBS), 1998 WL 702318, at *5 (S.D.N.Y. Oct. 7, 1998). Similarly, this Court does not have...