Sharkey v. Quarantillo

• Decision Date: 03 September 2008
• Docket Number: Docket No. 06-1397-cv.
• Citation: 541 F.3d 75
• Parties: Felipa SHARKEY, Plaintiff-Appellant, v. Andrea QUARANTILLO<SMALL><SUP>1</SUP></SMALL>, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

541 F.3d 75

Felipa SHARKEY, Plaintiff-Appellant, v. Andrea QUARANTILLO¹, Defendant-Appellee.

Docket No. 06-1397-cv.

United States Court of Appeals, Second Circuit.

Argued: October 29, 2007.

Decided: September 3, 2008.

David Kwang Soo Kim (Matthew L. Guadagno, Kerry W. Bretz, Jules E. Coven, on the brief), Bretz & Coven, LLP, New York, NY, for Appellant Felipa Sharkey.

F. James Loprest, Jr., Special Assistant United States Attorney (David S. Jones, Assistant United States Attorney, of counsel, on the brief) for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Appellee Andrea Quarantillo.

Before: MINER, LEVAL, AND POOLER, Circuit Judges.

POOLER, Circuit Judge:

Plaintiff-appellant Felipa Sharkey appeals from the January 25, 2006, judgment of the United States District Court for the Southern District of New York (Crotty, J.) granting defendant-appellee's motion to dismiss for lack of subject matter jurisdiction. We hold that the district court erred by dismissing the complaint for lack of subject matter jurisdiction. The following factual allegations, which we assume to be true for purposes of considering this appeal, are drawn from Sharkey's complaint.

BACKGROUND

Felipa Sharkey is a native and citizen of the Dominican Republic and a resident of New York City. She entered the United States without inspection in 1994 and married a U.S. citizen, Anthony Sharkey, in January 1995. In April 1995, Mr. Sharkey submitted on his wife's behalf an Immigration and Naturalization Service ("INS") form I-130,² which is a petition to classify an alien as an "immediate relative" of a United States citizen. Concurrent with Mr. Sharkey's I-130 petition, Mrs. Sharkey filed an INS form I-485, which is an application for adjustment of immigration status to that of a lawful permanent resident ("LPR").³ The INS issued notices requiring Mr. and Mrs. Sharkey to appear at its New York District Office to be interviewed in conjunction with the I-130 visa petition and the I-485 adjustment application. Following the interview in November 1996, an INS officer recommended further investigation into the bona fides of their marriage. On November 29, 2001, District Adjudications Officer ("DAO") Kinosewitz interviewed Mr. and Mrs. Sharkey in order to ascertain whether they had entered into a bona fide marriage. At the end of the interview, according to Sharkey's allegations, the DAO decided to adjust Sharkey's status to that of an LPR and memorialized this decision by placing a temporary I-551 stamp on her passport. The stamp reads: "Processed for I-551. Temporary Evidence of Lawful Admission for Permanent Residence Valid Until — Nov. 29, 2002. Employment Authorized." The DAO wrote "IR-6 NYC 11-29-01" on the stamped passport.

A year later, on or about November 29, 2002, Sharkey went to the New York district office of the INS to renew the I-551 stamp on her passport. The DAO who saw her on the visit manually crossed out the I-551 stamp and wrote "cancelled with prejudice" above the seal on the stamp. Sharkey has not yet received her Alien Registration Card or any other suitable evidence of her alleged LPR status.

On June 14, 2005, Sharkey filed an action in the United States District Court for the Southern District of New York suing the District Director ("the Director") of the New York District of the United States Customs and Immigration Services ("USCIS") in her official capacity. Sharkey argued that her status was adjusted to that of an LPR when, on November 29, 2001, the immigration officer reviewing her case decided to adjust her status. As evidence that the immigration official decided to adjust her status, Sharkey appended to her complaint a copy of the temporary I-551 stamp placed on her passport, which reads "Processed for I-551. Temporary Evidence of Lawful Admission for Permanent Residence Valid Until — November 29, 2002."⁴ She argued that by regulation, "in the absence of countervailing evidence," a "passport[] ... endorsed to show admission for permanent resident status ... will be regarded as establishing lawful admission for permanent residence," 8 C.F.R. § 103.2(b)(17). At oral argument, the government conceded that absent mistake or fraud, an immigration official places a temporary I-551 stamp on an alien's passport only if the officer has decided to adjust the alien's status to a permanent resident.⁵

Sharkey argued that when the agency crossed out the I-551 stamp on her passport and wrote "cancelled with prejudice" above the seal, the agency attempted to rescind her LPR status without following the mandatory statutory and regulatory procedures governing the rescission of LPR status. As a remedy, Sharkey asked the district court to hold unlawful the putative rescission of her LPR status and to order the agency to issue her new documentary evidence of her previously granted LPR status.

In her complaint, Sharkey asserted, inter alia, the following jurisdictional bases for her claims: (a) the Federal Question Statute, codified at 28 U.S.C. § 1331, on the ground that her claims arise under the Administrative Procedure Act ("APA"); (b) the Mandamus Statute, codified at 28 U.S.C. § 1361, on the ground that her claims seek to compel an officer of an United States agency to perform a duty owed to her. She further asserted that under Firstland Int'l, Inc. v. INS, 377 F.3d 127, 130-31 (2d Cir.2004), the district court had jurisdiction to review her claim that the USCIS attempted to rescind her LPR status without following mandatory statutory and regulatory rescission procedures.

The Director moved to dismiss Sharkey's complaint (a) for lack of subject matter jurisdiction under Fed. R. Civ. Pr. 12(b)(1) or (b) for summary judgment.⁶ In support of its motions, the Director provided the district court with copies of Mr. Sharkey's Petition for Alien Relative (I-130 petition) and Ms. Sharkey's adjustment of status application (Form I-485). Based on this evidence, the Director contended that the petitioner, as a matter of law, could not have been granted LPR status, because an approved I-130 petition is a prerequisite to eligibility for adjustment of status and Sharkey's I-130 petition was not approved. In support of this last contention, the director argued that all approved I-130 petitions have an approval stamp on the "action block," but no approval stamp appears on the "action block" on Sharkey's I-130 petition. Thus, the Director contended that even if the immigration official reviewing Sharkey's case decided to adjust her status, this decision had no legal effect or validity because Sharkey was not eligible, as a matter of law, for LPR status. The Director urges us "not to spin a grant of [LPR] status out of what was, at most, an INS Officer's mistake."

In response, Sharkey noted that the action block on the I-130 petition contained a written inscription that had been crossed-out and made illegible. She contended that the crossed-out writings indicated approval of the petition. In addition, she requested discovery to determine why the I-551 stamp on her passport and the writings on her I-130 petition had all been crossed out. She stated that if the administrative record did not contain any more relevant documents, she would request to depose the agents who worked on her case to learn whether the I-551 stamp was placed on her passport because the immigration official reviewing her case had decided to adjust her status or rather was placed on her passport by inadvertence.

The district court dismissed the complaint for lack of subject matter jurisdiction and did not reach the Director's alternative motions. The district court first held that the mandamus statute, 28 U.S.C. § 1361, was not a proper jurisdictional base because mandamus jurisdiction cannot be used to compel a federal official to perform a discretionary act. The district court reasoned that because adjustment of immigration status is wholly discretionary, mandamus jurisdiction cannot be used to "challeng[e] the denial or rescission of adjustment of status."

The district court next held that the case did not arise under the APA because the APA does not apply "to the extent that . . . agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). The district court again relied on its finding that decisions to grant, deny, or rescind LPR status are committed to agency discretion by law.

The district court held, finally, that Section 1252(a)(2)(B)(i) of Title 8 strips federal courts of jurisdiction to review "any judgment regarding the granting of relief" under Section 1255 of Title 8, which, inter alia, governs applications for adjustment of status.⁷ The district court reasoned that even if this section bars review only of discretionary decisions, the bar nevertheless precluded Sharkey's suit because Sharkey challenged agency action committed to agency discretion.

The district court concluded that Sharkey had failed to allege a proper jurisdictional base for her claims and dismissed her suit for lack of subject matter jurisdiction. In so concluding, the district court relied at each stage of the analysis on its finding that the

USCIS has non-reviewable discretion with regard to applications for adjustment of immigration status. This wide discretion [encompasses] cases like Sharkey's, which allege unlawful withholding of permanent resident status either by denial of such status in the first instance or by rescission of previously conferred status.. . ."

(emphasis added).

On appeal, Sharkey concedes that the decision to grant or deny LPR status is left to the agency's discretion. She argues, however, that in order to rescind an adjustment to LPR status, the USCIS has a non-discretionary duty to follow the mandatory rescission procedures, as set out in 8 C.F.R. § 246.1-7, which it did not do. Sharkey contends that the alleged rescission is reviewable under Firstland because Section 1252(a)(2)(B)...