Malik v. Meissner

Decision Date02 May 1996
Docket NumberNo. 1153,D,1153
Citation82 F.3d 560
PartiesMohammed Abdul MALIK, Plaintiff-Appellant, v. Doris MEISSNER, Commissioner, Immigration and Naturalization Service and Immigration and Naturalization Service, Defendants-Appellees. ocket 95-6179.
CourtU.S. Court of Appeals — Second Circuit

Appeal from a judgment of the United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge ) dismissing appellant's complaint for lack of subject matter jurisdiction. We affirm the district court's ruling that review of the INS's denial of the Special Agricultural Worker status to Malik is barred by statute.

Charles A. Grutman, New York City, for Plaintiff-Appellant.

Diogenes P. Kekatos, Assistant United States Attorney, Southern District of New York, New York City (Mary Jo White, United States Attorney, James A. O'Brien III, F. James Loprest, Jr., Special Assistant United States Attorneys, Steven M. Haber, Assistant United States Attorney, of counsel), for Defendants-Appellees.

Before: VAN GRAAFEILAND, MESKILL, and WINTER, Circuit Judges.

WINTER, Circuit Judge:

Mohammed Abdul Malik appeals from Judge Scheindlin's dismissal of his amended complaint. Malik sought a declaratory judgment that defendants Doris Meissner, Commissioner of the Immigration and Naturalization Service ("INS"), and the INS had unlawfully declined to reopen his disapproved application for temporary resident status as a Special Agricultural Worker ("SAW") pursuant to 8 U.S.C. § 1160(b)(1), (2) & (4). Malik also sought a writ of mandamus or mandatory injunction compelling the INS to reopen and reconsider his SAW application. Judge Scheindlin dismissed the complaint for lack of subject matter jurisdiction. Malik argues that under McNary v. Haitian Refugee Ctr., 498 U.S. 479, 492, 111 S.Ct. 888, 896, 112 L.Ed.2d 1005 (1991), the district court had jurisdiction to review his challenge to the procedures employed by the INS. Because McNary recognized an exception to the statutory jurisdictional bar only where a plaintiff brings a general collateral challenge to allegedly unconstitutional practices and because Malik challenges only the INS's denial of his individual SAW application, we affirm.

Malik, a native and citizen of Bangladesh, illegally entered the United States at Miami, Florida on August 6, 1985. Pursuant to the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1160(b)(1), (2) & (4), Malik applied on July 8, 1988 for temporary residence as a Special Agricultural Worker. See 8 U.S.C. § 1160(b)(3)(B) & 1160(a)(1)(B)(ii) (requiring applicant for SAW status to submit documentation that he or she performed at least ninety man-days of qualifying seasonal agricultural services during twelve-month period ending May 1, 1986). Along with his application, Malik submitted supporting documentation that he had worked at Cook Farms in Pompano Beach, Florida for 118 days during the twelve months ending May 1, 1986. After interviewing Malik, an INS legalization officer issued a preliminary recommendation that Malik's application be denied because of fraud. On June 20, 1990, the INS Regional Processing Facility ("RPF") issued a notice of its intent to deny Malik's application. Despite Malik's objection and submission of additional material allegedly supporting his case, the RPF denied Malik's application on the ground that materials originally submitted in support of the application were fraudulent and that there was insufficient proof of Malik's eligibility for SAW status. Malik appealed to the Legalization Appeals Unit, which dismissed the appeal, holding that information acquired in the course of investigating Malik's claim of agricultural employment proved his claim to be false. Malik moved that the RPF reconsider his application. That motion was denied. Malik then brought the present suit seeking a determination that his application was considered in an unlawful and unconstitutional manner and a mandatory injunction or writ of mandamus compelling defendants to reopen the case. The district court dismissed the case for lack of subject matter jurisdiction. This appeal followed.

We review a district court's dismissal for lack of subject matter jurisdiction de novo. Hotel & Restaurant Employees Union Local 217 v. J.P. Morgan Hotel, 996 F.2d 561, 564 (2d Cir.1993). "The burden of proving jurisdiction is on the party asserting it." Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994).

Judicial review of an individual's denial of SAW status is ordinarily limited to review of an order of exclusion or deportation. See 8 U.S.C. §§ 1105(a) & 1160(e...

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