Yaniel Garriga v. District Director of Kendall Field Office of USCIS

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16200
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-22361-CMA
YANIEL GARRIGA,
Plaintiff-Appellant,
versus
DISTRICT DIRECTOR OF KENDALL
FIELD OFFICE OF USCIS,
Joseph Hackbarth,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(September 27, 2013)
Before DUBINA, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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Appellant Yaniel Garriga appeals the district court’s dismissal of his
complaint seeking review of the U.S. Citizenship and Immigration Service’s
(“USCIS”) discretionary denial of his application for adjustment of status, which
he made pursuant to the Cuban Refugee Adjustment Act of 1966 (“CAA”), Pub. L.
No. 89-732, 80 Stat. 1161 (1966). Garriga invoked federal jurisdiction under the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702 and 704; the Declaratory
Judgment Act (“DJA”), 28 U.S.C. § 2201; and the federal question statute, 28
U.S.C. § 1331. The district court dismissed Garriga’s complaint for lack of subject
matter jurisdiction on two alternative grounds. First, the district court concluded
that the Immigration and Nationality Act (“INA”), § 242(a)(2)(B)(ii), 8 U.S.C.
§ 1252(a)(2)(B)(ii), barred its jurisdiction over discretionary decisions made under
Chapter 12, Subchapter II of Title 8, 8 U.S.C. §§ 1151 to 1378, and because the
CAA was codified as a historical note to 8 U.S.C. § 1255, the INA
§ 242(a)(2)(B)(ii) discretionary decision bar applied. Second, the district court
determined that the APA, 5 U.S.C. § 701, barred judicial review of decisions
committed to agency discretion by law, and that the CAA gave the Attorney
General such discretion.
We review de novo a district court’s dismissal for lack of subject matter
jurisdiction. Maradiaga v. United States, 679 F.3d 1286, 1291 (11th Cir. 2012);
see also Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 562 F.3d 1137, 1142
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(11th Cir. 2009) (reviewing de novo the district court’s determination that it did not
have subject matter jurisdiction over an alien’s complaint requesting review of a
USCIS action). “Passing references to issues are insufficient to raise a claim for
appeal.” Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1145 (11th Cir. 2010).
Under the APA, “[a] person suffering legal wrong because of agency action,
or adversely affected or aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. The APA
further states that “final agency action for which there is no other adequate remedy
in a court [is] subject to judicial review.” Id. § 704. A reviewing court shall
“compel agency action unlawfully withheld or unreasonably delayed” and set aside
agency actions found to be “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Id. § 706(1), (2)(A). However, the APA
does not apply to the extent that “statutes preclude judicial review” or “agency
action is committed to agency discretion by law.” Id. § 701(a)(1)-(2).
Section 245 of the INA governs adjustment of status applications. INA
§ 245, 8 U.S.C. § 1255. It specifies that the Attorney General 1 has discretion to
adjust an alien’s status if the alien applies for adjustment, is eligible to receive an
1
In the Homeland Security Act of 2002, Pub. L. No. 107-296, § 451, 116 Stat. 2135(Nov. 25, 2002) (codified at 6 U.S.C. § 271), USCIS assumed the functions of the Immigration
and Naturalization Service. The Homeland Security Act of 2002 also specified that any function
transferred under the act “shall be deemed to refer to the Secretary, other official, or component
of the Department to which such function is so transferred.” 6 U.S.C. § 557. Thus, references to
the Attorney General refer to the Secretary of the Department of Homeland Security.
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immigrant visa, and is admissible for permanent residence. INA § 245(a), 8 U.S.C.
§ 1255(a). The CAA, codified as a historical note to 8 U.S.C. § 1255, provides:
That, notwithstanding the provisions of section 245(c) of the
[INA], . . . the status of any alien who is a native or citizen of Cuba
and who has been inspected and admitted or paroled into the United
States subsequent to January 1, 1959 and has been physically present
in the United States for at least one year, may be adjusted by the
Attorney General, in his discretion and under such regulations as he
may prescribe, to that of an alien lawfully admitted for permanent
residence if the alien makes an application for such adjustment, and
the alien is eligible to receive an immigrant visa and is admissible to
the United States for permanent residence.
CAA, Pub. L. No. 89-732, 80 Stat. 1161, § 1 (codified as amended at 8 U.S.C.
§ 1255, historical note).
Section 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B) provides that:
Notwithstanding any other provision of law . . . and regardless of
whether the judgment, decision, or action is made in removal
proceedings, no court shall have jurisdiction to review--
(i) any judgment regarding the granting of relief under section . . .
1255 of this title, or
(ii) any other decision or action of the Attorney General or the
Secretary of Homeland Security the authority for which is specified
under this subchapter to be in the discretion of the Attorney General
or the Secretary of Homeland Security . . . .
INA § 242(a)(2)(B)(i)-(ii), 8 U.S.C. § 1252(a)(2)(B)(i)-(ii). The language
“specified under this subchapter” refers to Chapter 12, Subchapter II of Title 8, 8
U.S.C. §§ 1151 to 1378. Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1361 (11th Cir.
2006).
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On appeal, Garriga argues that the district court had jurisdiction to review
his complaint because INA § 242(a)(2)(B)(ii), by its plain language, only applies to
actions “the authority for which is specified under [Chapter 12, Subchapter II of
Title 8, 8 U.S.C. §§ 1151 to 1378],” and the CAA is not part of Subchapter II
because it is codified as a historical note to 8 U.S.C. § 1255. 2 We need not reach
this issue, however, because we conclude that the district court correctly
determined in the alternative that it lacked subject matter jurisdiction under the
APA. See 5 U.S.C. § 701(a)(2). The APA specifies that it does not apply to
agency action that is committed to agency discretion by law, and the CAA
expressly states that the Attorney General may, “in his discretion,” adjust any
Cuban national’s status if that alien meets certain requirements. 5 U.S.C.
§ 701(a)(2); CAA, Pub. L. No. 89-732, 80 Stat. 1161, § 1 (codified as amended at
8 U.S.C. § 1255, historical note). USCIS clearly stated in its decision that it was
denying Garriga’s application “as a matter of discretion” because he showed a lack
of good moral character. Because USCIS’s action in Garriga’s adjustment
application is committed to agency discretion by the CAA, the APA does not
provide the district court with jurisdiction. See 5 U.S.C. § 701(a)(2); CAA, Pub. L.
No. 89-732, 80 Stat. 1161, § 1 (codified as amended at 8 U.S.C. § 1255, historical
2
Garriga also makes passing reference to the district court’s jurisdiction under the federal
question statute, 28 U.S.C. § 1331, and the DJA. However, we will not address whether those
statutes provide jurisdiction because Garriga made only passing reference to them in his initial
brief on appeal. See Lapaix, 605 F.3d at 1145 (“Passing references to issues are insufficient to
raise a claim for appeal.”).
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note). Accordingly, we affirm the district court’s dismissal of Garriga’s complaint
for lack of subject matter jurisdiction.
AFFIRMED.
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