Maringo v. Mukasey , 281 F. App'x 365 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 11, 2008
No. 07-20029 Charles R. Fulbruge III
Clerk
DENIS MARINGO,
Petitioner-Appellant,
v.
MICHAEL B MUKASEY, US Attorney General; DIRECTOR, BUREAU OF
CITIZENSHIP AND IMMIGRATION SERVICES (BCIS); HIPOLITO
ACOSTA, Director, BCIS Houston District,
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CV-3397
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Denis Maringo, pro se, filed suit against Michael B.
Mukasey, the United States Attorney General; the director of the United States
Citizenship and Immigration Services (“USCIS”); and Hipolito Acosta, USCIS
District Director in Houston, Texas (collectively “Government”). Maringo sought
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-20029
a writ of mandamus to compel the Government to adjust his status; a
declaratory judgment stating that USCIS abused its authority in accepting his
wife’s withdrawal of the Petition for Alien Relative (I-130) that was previously
approved on his behalf; injunctive relief preventing USCIS from accepting such
withdrawals in the future; a declaratory judgment stating that Maringo’s
application for adjustment of status (I-485) was improperly accepted and that
any action taken by the Government related to his I-485 application is null; and
injunctive relief requiring the Government to issue a revised Form I-485 that is
not confusing or misleading.
The Government moved to dismiss Maringo’s complaint for lack of subject
matter jurisdiction. The district court granted the motion explaining that review
of discretionary denials of adjustment of status applications is precluded by 8
U.S.C. § 1252(a)(2)(B)(I). Alternatively, the district court concluded that even
if it had subject matter jurisdiction, Maringo had failed to state a claim upon
which relief could be granted because he was ineligible for adjustment of status
due to a conviction for immigration fraud which rendered him inadmissible
under 8 U.S.C. § 1182(a)(6)(C). Thereafter, Maringo filed a motion for new trial,
or in the alternative, a motion to amend or alter the judgment. The district
court denied both motions. Maringo then filed this timely notice of appeal.
Maringo argues that the district court erred by concluding that it lacked
subject matter jurisdiction to consider his claim. According to Maringo, the
district court misconstrued his complaint as a challenge to the discretionary
decision of USCIS to deny his application for adjustment of status. He contends
that his suit instead challenges the Government’s failure to comply with 8 C.F.R.
§ 245.10(d), which provides that when an alien who is eligible to adjust his
status under 8 U.S.C. § 1255(i) submits an application for adjustment of status
without the requisite fee and supplemental form, USCIS must give applicants
“the opportunity to amend the adjustment of status application.” This court
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No. 07-20029
reviews questions of jurisdiction de novo. Hadwani v. Gonzales, 445 F.3d 798,
800 (5th Cir. 2006).
As an initial matter, according to the plain language of the statute, USCIS
is only required to send notice regarding an alien’s failure to include the
supplemental form and fee if the alien is otherwise eligible for adjustment of
status. See 8 C.F.R. § 245.10(d). Here, USCIS determined that Maringo was
ineligible for adjustment of status after determining that he had committed
fraud in order to procure his adjustment of status. Accordingly, the requirement
that USCIS give notice regarding the failure to include the supplemental form
and fee is inapplicable here. Moreover, even if USCIS had given Maringo the
notice that he seeks, there is no indication that it would have had any effect on
Maringo’s I-485 application. This is because the denial of his application was not
related to his failure to include the supplemental form or the filing fee, rather
it was based on an allegation of fraud.
Additionally, notwithstanding Maringo’s assertion that he is not
challenging USCIS’s denial of his adjustment of status application, Maringo
states in his brief to this Court that he seeks the following relief: “Petitioner
hereby petitions this court to grant a writ of mandamus against the Respondents
to compel them to adjust his status to that of permanent residence based on an
approved I-130 petition in which he is the beneficiary.” It is well-established
that this Court lacks jurisdiction to consider the discretionary denial of
Maringo’s adjustment application. See 8 U.S.C. § 1252(a)(2)(B)(i); Hadwani, 445
F.3d at 800. Likewise, the revocation of the previously approved I-130 filed by
Maringo’s wife on his behalf was a discretionary act that the district court lacked
jurisdiction to review. See 8 U.S.C. § 1155; 8 U.S.C. § 1252(a)(2)(B)(ii); Ghanem
v. Upchurch, 481 F.3d 222, 224-25 (5th Cir. 2007).
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No. 07-20029
Further, contrary to Maringo’s assertions, there is no other statutory basis
for jurisdiction in this case. The REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), is not
applicable to Maringo’s civil suit because that provision pertains to
“constitutional claims or questions of law raised upon a petition for review filed
with an appropriate court of appeals.” 8 U.S.C. § 1329 does not provide district
courts with jurisdiction over “suits against the United States or its agencies or
officers.” See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 477
n4 (1999). The All Writs Act, 28 U.S.C. § 1651, “does not confer an independent
basis for subject matter jurisdiction.” Renteira-Gonzalez v. INS, 322 F.3d 804,
811 (5th Cir. 2002). Article III and § 1331 also do not confer jurisdiction in the
present case. See Nolan v. Boeing Co., 919 F.2d 1058, 1064 (5th Cir. 1990);
Oliver v. Trunkline Gas Co., 789 F.2d 341, 343 (5th Cir. 1986).
Finally, Maringo is also precluded from seeking review of the district
director’s decision because he has failed to exhaust his administrative remedies.
Pursuant to 8 C.F.R. § 245.2(a)(5)(ii), an alien who is denied adjustment of
status by the district director may renew his adjustment of status application
upon commencement of removal proceedings, which constitutes a further
mechanism for judicial review. See Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir.
2007) (holding that the alien did not exhaust her administrative remedies
regarding her denial of adjustment of status because she could renew her
request for adjustment of status upon the commencement of removal
proceedings); Jones v. Alexander, 609 F.2d 778, 781 (5th Cir. 1980) (holding that
unavailability of other adequate remedy is requirement for mandamus
jurisdiction).
For the foregoing reasons, the ruling of the district court is AFFIRMED.
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