Rodrigo Aguilera vs District Director, USCIS, Miami, FL, Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14525 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 18, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cv-21049-JLK
RODRIGO AGUILERA,
Plaintiff - Appellant,
versus
DISTRICT DIRECTOR, USCIS, MIAMI, FLORIDA,
ATTORNEY GENERAL, UNITED STATES,
SECRETARY OF DEPARTMENT OF HOMELAND SECURITY,
US ATTORNEY’S OFFICE,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 18, 2011)
Before CARNES, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Rodrigo Aguilera, an alien in removal proceedings, challenges the district
court’s dismissal of his complaint, filed pursuant to the Mandamus Act, 28 U.S.C. §
1361, the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702 and 706, and the
Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, in which he apparently
requested that the district court declare that he had been previously paroled into the
United States and order the U.S. Citizenship and Immigration Service (“USCIS”) to
act on his application for adjustment of status. On appeal, Aguilera argues that: (1)
the district court erred by dismissing his complaint for lack of subject matter
jurisdiction, because he alleged a due process violation based on the USCIS’s failure
to inform him of his right to appeal from its decision denying his I-485 application for
adjustment of status and I-601 application for a waiver of inadmissibility, filed under
the Immigration and Nationality Act (“INA”); and (2) he was eligible for a waiver and
to adjust his status, and that the district court erred by not requiring the USCIS to act
favorably on his applications. After thorough review, we affirm.
We review de novo a district court’s order granting a motion to dismiss for lack
of subject matter jurisdiction and its interpretation and application of statutory
provisions. See Chaney v. Tenn. Valley Auth., 264 F.3d 1325, 1326 (11th Cir. 2001);
see also Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 562 F.3d 1138, 1142 (11th
Cir. 2009). Issues not raised below are deemed waived, see Four Seasons Hotels &
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Resorts, B.V. v. Consorcio Barr, S.A., 377 F.3d 1164, 1168-69 (11th Cir. 2004), and
passing references to an issue are insufficient to raise a claim, see Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1228-29 n.2 (11th Cir. 2005).
The INA’s judicial review statute eliminates review by any court of
discretionary decisions or actions of the Attorney General or Secretary of Homeland
Security. 8 U.S.C. § 1252(a)(2)(B)(ii). With regard to the review of denials of
discretionary relief, the statute provides as follows:
Notwithstanding any other provision of law . . . and except as provided
in subparagraph (D), and regardless of whether the judgment, decision,
or action is made in removal proceedings, no court shall have jurisdiction
to review . . . any judgment regarding the granting of relief under section
1182(h), 1182(i), 1229b, 1229c, or 1255 [adjustment of status] of this
title.
8 U.S.C. § 1252(a)(2)(B)(i). Although the INA precludes judicial review of the
discretionary denial of an application for adjustment of status, it does not preclude
review by an appellate court of non-discretionary legal decisions that pertain to
constitutional issues or statutory eligibility for discretionary relief. 8 U.S.C. §
1252(a)(2)(D); see also Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th
Cir. 2005). However, an alien may not “cloak[] an abuse of discretion argument in
constitutional garb” by couching such a claim in constitutional language. Arias v.
U.S. Att’y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007).
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Moreover, the regulation regarding the USCIS’s denial of an application for
adjustment of status provides that no appeal lies from the denial of an application by
USCIS. 8 C.F.R. § 1245.2(a)(5)(ii). However, an alien may “renew his or her
application in [removal] proceedings.” Id. Once an alien is placed in removal
proceedings, “the immigration judge hearing the proceeding has exclusive jurisdiction
to adjudicate any application for adjustment of status the alien may file.” 8 C.F.R. §
1245.2(a)(1)(i).
The APA establishes that judicial review is not available until “an aggrieved
party has exhausted all administrative remedies expressly prescribed by statute or
agency rule.” Ibarra v. Swacina, 628 F.3d 1269, 1269 (11th Cir. 2010) (quotation
omitted). Once administrative remedies have been exhausted, the agency’s action is
final and, therefore, subject to judicial review. Id. However, even if an action is final,
the APA specifically provides that it does not apply where “statutes preclude judicial
review.” 5 U.S.C. § 701(a)(1); Mejia Rodriguez, 562 F.3d at 1142.
Under 28 U.S.C. § 1361, otherwise known as the Mandamus Act, the district
court has original jurisdiction over a mandamus action “to compel an officer or
employee of the United States or any agency thereof to perform a duty owed to the
plaintiff.” 28 U.S.C. § 1361; see also Cash v. Barnhart, 327 F.3d 1252, 1257 (11th
Cir. 2003). The test for jurisdiction is whether mandamus would be an appropriate
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means of relief, and such relief is only appropriate when: (1) the plaintiff has a clear
right to the relief requested; (2) the defendant has a clear duty to act; and (3) no other
adequate remedy is available. Cash, 327 F.3d at 1258. In other words, “a writ of
mandamus ‘is intended to provide a remedy for a plaintiff only if he has exhausted all
other avenues of relief and only if the defendant owes him a clear nondiscretionary
duty.’” Id. (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)).
The Declaratory Judgment Act does not establish an independent basis for
federal jurisdiction. See Seibert v. Baptist, 594 F.2d 423, 428 (5th Cir. 1979).1 The
Declaratory Judgment Act is “an enabling Act, which confers a discretion on the
courts rather than an absolute right upon the litigant.” Wilton v. Seven Falls Co., 515
U.S. 277, 287 (1995) (quotation omitted). It only gives the federal courts competence
to make a declaration of rights; it does not impose a duty to do so. Brillhart v. Excess
Ins. Co. of America, 316 U.S. 491, 494 (1942).
Here, the district court did not err in dismissing Aguilera’s complaint for lack
of subject matter jurisdiction, because the INA expressly provides that the denial of
an application for adjustment of status is not reviewable by any court. 8 U.S.C. §
1252(a)(2)(B)(i). While the INA allows for judicial review of non-discretionary legal
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent all decisions of the former Fifth Circuit issued before October 1, 1981.
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decisions that pertain to constitutional issues or statutory eligibility for discretionary
relief, 8 U.S.C. § 1252(a)(2)(D); Chacon-Botero, 427 F.3d at 957, Aguilera’s passing
reference to a due process claim in his counseled complaint -- even assuming he did
not waive the claim by failing to provide any argument for it -- still did not create
jurisdiction in the district court. Indeed, a claim that his due process rights were
violated by USCIS’s failure to notify him of his “right” to appeal is meritless, because
he had no right to appeal. See 8 C.F.R. § 1245.2(a)(5)(ii). Additionally, to the extent
he challenges the denial of his I-485 application and application for waiver of
inadmissability, he is only couching the USCIS’s use of discretion as a constitutional
claim, which would not create jurisdiction. See Arias, 482 F.3d at 1284. Therefore,
the jurisdiction-stripping provision under § 1252(a)(2)(B) bars jurisdiction under the
APA and the Mandamus Act.
Moreover, Aguilera could not invoke either the APA or the Mandamus Act,
because the USCIS does not have a clear duty to rule favorably on his I-485
application, and he still has remedies available to him, as he is in removal proceedings
where he can pursue this and any other application for relief. See Ibarra, 638 F.3d at
1269; Cash, 327 F.3d at 1257-58. Finally, because Aguilera is in removal
proceedings, the USCIS no longer has jurisdiction to consider his claims for relief,
and therefore, the district court could not grant relief even if it had jurisdiction over
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the complaint. 8 C.F.R. § 1245.2(a)(1); see also Nyaga v. Ashcroft, 323 F.3d 906, 916
(11th Cir. 2003) (holding that where an agency is unable to act on requested relief, the
district court should dismiss a mandamus action as moot). Lastly, the Declaratory
Judgment Act did not provide an independent basis for jurisdiction. See Seibert, 594
F.2d at 428. Accordingly, we affirm.
AFFIRMED.
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