Clemencia Kightlinge v. Janet Napol

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 9, 2012
Decided January 11, 2013
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
EDMOND E. CHANG, District Judge*
No. 11-2745
CLEMENCIA G. KIGHTLINGER, et al., Appeal from the United States
Plaintiffs-Appellants, District Court for the Southern
District of Illinois.
v.
No. 10-cv-00121
JANET A. NAPOLITANO, Secretary of the
Department of Homeland Security, et al., Michael J. Reagan,
Defendants-Appellees. Judge.
ORDER
Clemencia Garing Kightlinger and her son, Evan Mendoza, sought judicial review of
an Immigration Judge’s decision to order them removed from the United States. The district
court dismissed their case for lack of subject matter jurisdiction. We affirm.
*
The Honorable Edmond E. Chang, District Judge of the United States District Court
for the Northern District of Illinois, sitting by designation.
No. 11-2745 Page 2
In June 1998, Clemencia Garing Kightlinger (“Kightlinger”), a native and citizen of the
Philippines, married Brian Kightlinger, a United States citizen. Kightlinger and her son (from
a previous relationship), Evan Mendoza, received immigrant visas and lawfully entered the
United States as conditional permanent residents. In October 2002, Kightlinger and her
husband jointly petitioned to remove the conditions on Kightlinger and Mendoza’s residency.
See 8 U.S.C. § 1186a(c)(1). As required by law, Kightlinger was interviewed by Department of
Homeland Security officials in connection with the petition. § 1186a(d)(3). During the
interview, Kightlinger disclosed that she had been married in the Philippines, and had not
obtained a divorce. As a result, the Department concluded that Kightlinger’s marriage to Brian
was invalid, and terminated her and her son’s status as conditional permanent residents.
About one year later, Kightlinger and Brian divorced.
Kightlinger and Mendoza filed another petition to have the conditions on their lawful
residency in the United States lifted. Although the statute requires aliens to jointly file the
petition with their spouse, this requirement may be waived if the alien entered into the
marriage in good faith and the marriage has been terminated. 8 U.S.C. § 1186a(c)(4)(B). The
Department denied Kightlinger’s petition, concluding that Kightlinger failed to establish that
she married Brian in good faith. With their conditional residence status terminated,
Kightlinger and Mendoza were placed in removal proceedings. 8 U.S.C. § 1227(a)(1)(D)(I).
An Immigration Judge held a hearing on the merits of Kightlinger and Mendoza’s
removal. After considering Kightlinger’s testimony and other evidence presented at the
hearing, the Immigration Judge held that the Department correctly refused to lift the
conditions on Kightlinger’s residency. The Immigration Judge concluded that Kightlinger’s
marriage to Brian was not valid in light of Kightlinger’s prior marriage. As an alternative
ruling, the Immigration Judge also held that he would not exercise his discretion to grant
Kightlinger’s petition for a waiver under § 1186a(c)(4)(B). The Immigration Judge ordered
Kightlinger and Mendoza removed from the United States.
Kightlinger appealed the Immigration Judge’s decision to the Board of Immigration
Appeals. But the Board agreed with the Immigration Judge’s finding that Kightlinger’s
marriage to Brian was invalid, and dismissed the appeal. The Board did not address the
Immigration Judge’s alternative reason for denying Kightlinger’s petition and for ordering her
and Mendoza removable as charged.
Shortly after receiving the Board’s decision, Kightlinger and Mendoza brought this
action against Janet Napolitano, as Secretary of the Department of Homeland Security, and
against the District Director of the United States Citizenship and Immigration Services. The
complaint challenged the Immigration Judge’s and the Board’s decisions from the removal
proceedings. The district court granted the government’s motion to dismiss for lack of subject
No. 11-2745 Page 3
matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Kightlinger and
Mendoza now appeal.
We review this question of subject matter jurisdiction de novo. Johnson v. Orr, 551 F.3d
564, 567 (7th Cir. 2008). The district court held that it lacked jurisdiction because only the court
of appeals has jurisdiction to review an order of removal. We agree. Specifically, 8 U.S.C. §
1252(a)(5) states
a petition for review filed with an appropriate court of appeals . . . shall be the sole and
exclusive means for judicial review of an order of removal entered or issued under any
provision of this chapter . . . .
What’ s more, § 1252(b)(2) explains that “[t]he petition for review shall be filed with the court
of appeals for the judicial circuit in which the immigration judge completed the proceedings.”
So, as the district court concluded, because Kightlinger’s removal proceedings were completed
in St. Louis, Missouri, only the Eighth Circuit had jurisdiction to consider her underlying
removal order on a petition for review.
Kightlinger’s argument against this jurisdictional bar is that the complaint does not,
according to her, seek review of the underlying removal order, but really seeks declaratory
relief based on certain actions taken by the government in adjudicating her petition to lift the
conditions on her residency. That alternative way of characterizing the complaint makes no
difference. As the district court correctly held, Kightlinger’s challenges to the immigration
proceedings are actually challenges to orders that were part and parcel to the deportation
proceeding. See Torres-Tristan v. Holder, 656 F.3d 653, 658 (7th Cir. 2011) (the term “final order
of removal” includes “not only the actual order of deportation, but all orders closely related
to the deportation proceeding . . . and entered during the proceeding”) (quotation and citation
omitted). At bottom, what Kightlinger was challenging in the district court was the removal
order, and the district court lacked jurisdiction to hear that challenge.
Kightlinger argues that the district court erred in dismissing her complaint because the
court had federal-question jurisdiction pursuant to 28 U.S.C. §§ 1331, 1361, 2201, and 5 U.S.C.
§ 701. This argument is not persuasive because, as already discussed, 8 U.S.C. § 1252(a)(5)
divests district courts of jurisdiction to review final removal orders, barring reliance on other
jurisdictional grants of general applicability. This jurisdictional bar applies with respect to “all
questions of law and fact, including interpretation and application of constitutional and
statutory provisions, arising from any action taken or proceeding brought to remove an alien
from the United States. § 1252(b)(9); see also § 1252(a)(5) (“Notwithstanding any other provision
of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas
corpus provision, and section [] 1361 of such title, a petition of review filed with an appropriate
No. 11-2745 Page 4
court of appeals . . . shall be the sole and exclusive means for judicial review of an order of
removal . . . . ”).
In addition, the government argues that Kightlinger has waived reliance on the
Declaratory Judgment Act and the Administrative Procedure Act because of her asserted
failure to develop the arguments in her opening appellate brief. Federal Rule of Appellate
Procedure 28(a)(9)(A) provides that the appellant’s brief must contain her “contentions and
reasons for them, with citations to the authorities and parts of the record on which [she]
relies.” With regard to the Declaratory Judgment Act, we agree that Kightlinger failed to
sufficiently develop the argument. Kightlinger cites to the Declaratory Judgment Act in her
brief’s jurisdictional statement, but provides no further analysis or argument. That is not
enough to raise the issue on appeal, and reliance on the Declaratory Judgment Act as a
jurisdictional basis is waived.
Turning to the Administrative Procedure Act (“APA”), Kightlinger asserts that the APA
permits judicial review of agencies’ decisions, “except to the extent that (1) statutes preclude
judicial review; or (2) agency action is committed to agency discretion by law.” See 5 U.S.C. §
701(a) (emphasis added). On appeal, Kightlinger argues that the district court had jurisdiction
pursuant to the APA because the removal of conditional residence under 8 U.S.C. § 1186a is
a non-discretionary act. The government contends that Kightlinger’s argument does not
address the reasoning the district court actually employed with respect to this issue and,
therefore, Kightlinger has waived reliance on the APA as a jurisdictional basis. It is true that,
in the district court, Kightlinger did not specifically raise this argument in her opposition to
the government’s motion to dismiss. But that is not the same as waiving the issue on appeal
by failing to develop the APA argument on appeal. In any event, the district court’s
ultimate conclusion that the APA does not confer jurisdiction over her case is correct. District
courts do not have jurisdiction over an APA challenge to federal-agency action when another
federal statute specifically precludes review. See Califano v. Sanders, 430 U.S. 99, 108 (1977).
Here, 8 U.S.C. § 1252 specifically precludes district-court review of Kightlinger’s order of
removal.1
For the foregoing reasons, we AFFIRM the district court’s judgment.
1
If § 1252 did not preclude district-court jurisdiction over Kightlinger’s case, then
jurisdiction over an APA action would be conferred by § 1331. See, e.g., Feezor v. Babbitt, 953 F.
Supp. 1, 4 (D.D.C. 1996) (citing Robbins v. Reagan, 780 F.2d 37, 42-43 (D.C. Cir. 1985) (“even
though the APA itself technically grants no jurisdiction, power to review any agency action
exists under 28 U.S.C. § 1331”).