Ravi Arya v. United States Citizenship and Immigration Servs , 345 F. App'x 993 ( 2009 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 09a0667n.06
    Case No. 08-1903                                FILED
    Sep 30, 2009
    UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
    FOR THE SIXTH CIRCUIT
    RAVI ARYA; PREETI N. ARYA,                           )
    )
    Plaintiffs - Appellants,                      )
    )      ON APPEAL FROM THE
    v.                                    )      UNITED STATES DISTRICT
    )      COURT FOR THE EASTERN
    UNITED STATES CITIZENSHIP AND                        )      DISTRICT OF MICHIGAN
    IMMIGRATION SERVICES, Director,                      )
    Detroit District; DEPARTMENT OF                      )
    HOMELAND SECURITY,                                   )
    )
    Defendants-Appellees.                          )
    _______________________________________              )
    BEFORE: BATCHELDER, Chief Judge; BOGGS and COOK, Circuit Judges.
    ALICE M. BATCHELDER, Chief Judge. Ravi Arya entered the United States on a
    professional worker visa in 1997, and in 2003 he married Preeti N. Arya. The same year, Mr. Arya’s
    employer filed an I-140 “Immigrant Petition for Alien Worker” form on his behalf, which was
    approved. In 2004, both Mr. and Mrs. Arya applied for permanent resident status via I-485 forms.
    Mrs. Arya’s separate application was entirely dependent on Mr. Arya’s, since it was premised on his
    approved I-140 petition.
    After an interview with a United States Citizenship and Immigration Services (“USCIS”)
    adjudication officer on June 5, 2007, Mr. and Mrs. Arya were denied permanent resident status on
    May 19, 2008. That denial reviewed Mr. Arya’s criminal history, and concluded that his application
    did not warrant a favorable exercise of discretion. The Aryas filed a “Complaint in the Form of Writ
    of Mandamus and Declaratory Judgment; and Emergency Motion for an Order to Temporarily
    Extend Plaintiffs’ Employment Authorization” on June 3, 2008. In it, they challenged the legal
    conclusions in USCIS’s decision and the process by which it was reached, and asserted that they had
    exhausted their administrative remedies. The Aryas requested varied relief, including temporary
    extension of their employment authorization and legal status. The district court dismissed the action.
    USCIS’s denial of the Aryas’ permanent resident status was a discretionary determination
    by the Attorney General of the United States made under 8 U.S.C. § 1255(a) (2007), and is
    unreviewable by this court under 8 U.S.C. § 1252(a)(2)(B)(i). Styling the claim as a writ of
    mandamus does not aid the Aryas, since we have held that “[m]andamus jurisdiction is available
    only if (1) the plaintiff has exhausted all available administrative appeals and (2) the defendant owes
    the plaintiff a ‘clear nondiscretionary duty’ that it has failed to perform.” Your Home Visiting Nurse
    Servs., Inc. v. Sec’y of Health and Human Servs., 
    132 F.3d 1135
    , 1141 (6th Cir. 1997) (quoting
    Heckler v. Ringer, 
    466 U.S. 602
    , 616 (1984)). Here, neither condition was met. The Aryas have not
    yet initiated an administrative appeal of USCIS’s adverse determination, and any duty owed them
    by USCIS is neither clear nor nondiscretionary. By statute, it is explicitly the opposite — 8 U.S.C.
    § 1255(a) says that an alien’s status may be “adjusted by the Attorney General, in his discretion.”
    
    Id. (emphasis added).
    This classifies the government’s action as an unreviewable denial of
    discretionary relief under Section 1252(a)(2)(B)(i). The district court was correct to dismiss this
    action for lack of jurisdiction, and accordingly to dismiss the Aryas’ emergency motion as moot.
    Because the issuance of a full opinion would serve no jurisprudential purpose and would be
    duplicative, we AFFIRM on the basis of the district court’s opinion the dismissal of this action.
    2
    

Document Info

Docket Number: 08-1903

Citation Numbers: 345 F. App'x 993

Judges: Batchelder, Boggs, Cook

Filed Date: 9/30/2009

Precedential Status: Non-Precedential

Modified Date: 10/19/2024