Shabaj v. Holder

Filing

AMENDED PUBLISHED PER CURIAM OPINION, FILED.[918306] [12-703]

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12-703
Shabaj v. Holder

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2012
(Argued: October 15, 2012

Decided: January 15, 2013
Amended: April 25, 2013)

________________________________________________________
PAULIN SHABAJ,
Plaintiff-Appellant,
—v.—
ERIC H. HOLDER, JR., Attorney General; DEPARTMENT OF HOMELAND SECURITY; JANET
NAPOLITANO, Secretary, Department of Homeland Security; UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES; LORI SCIALABBA, Deputy Director, United States Citizenship and
Immigration Services; ANDREA QUARANTILLO, District Director, New York District Office;
PERRY RHEW, Chief, Administrative Appeals Office,
Defendants-Appellees.
Docket No. 12-703 (ag)
________________________________________________________

B e f o r e : KEARSE and KATZMANN, Circuit Judges, and GLEESON,* District Judge.
_______________

*

The Honorable John Gleeson, of the United States District Court for the Eastern District of
New York, sitting by designation.

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Appeal from a December 21, 2011 judgment of the United States District Court for the Southern
District of New York (Hellerstein, J.) dismissing Plaintiff-Appellant’s complaint for lack of
jurisdiction. We hold that the district court lacked jurisdiction to review the United States
Citizenship and Immigration Services’ discretionary decision to deny Plaintiff-Appellant’s
application for a waiver of inadmissibility under 8 U.S.C. § 1182(i)(1) because judicial review of
such decisions is available only for “constitutional claims or questions of law raised upon a petition
for review filed with an appropriate court of appeals.” 8 U.S.C. § 1252(a)(2)(D). AFFIRMED.
_______________

MICHAEL P. DIRAIMONDO (Marialaina L. Masi and Stacy A. Huber, on the
brief), DiRaimondo & Masi LLP, Melville, N.Y., for Plaintiff-Appellant.
PATRICIA L. BUCHANAN, Assistant United States Attorney (Sarah S.
Normand, Assistant United States Attorney, on the brief), for Preet
Bharara, United States Attorney for the Southern District of New York,
New York, N.Y., for Defendants-Appellees.
_______________
PER CURIAM:
Plaintiff-Appellant Paulin Shabaj (“Shabaj”) appeals from a December 21, 2011
judgment of the United States District Court for the Southern District of New York (Hellerstein,
J.) dismissing his complaint. The judgment was entered in accordance with a December 19,
2011 order holding that the district court lacked jurisdiction to review the decision of the United
States Citizenship and Immigration Services (“CIS”) to deny Shabaj’s application for a waiver of
inadmissibility pursuant to section 212(i) of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1182(i) (a “212(i) waiver”). Because the plain language of the INA provides that
judicial review of such decisions is available only for “constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court of appeals,” 8 U.S.C. §
1252(a)(2)(D) (emphasis added), the district court correctly determined that it lacked jurisdiction
to adjudicate Shabaj’s claims. The judgment of the district court is therefore AFFIRMED.
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BACKGROUND
Shabaj, a native and citizen of Albania, arrived in the United States in November 2000
bearing a false passport of Italy. See Shabaj v. Holder, 602 F.3d 103, 104 (2d Cir. 2010).1
Shabaj was detained upon arrival, and he was referred to an Immigration Judge for an asylumonly proceeding. Id. Shabaj’s attempts to obtain asylum in the United States ultimately proved
unsuccessful. See generally id. at 104-06.
While asylum proceedings were ongoing, Shabaj married a United States citizen in July
2005. CIS concluded that Shabaj’s marriage was bona fide and approved his wife’s
marriage-based visa petition (immigration form I-130), which allowed Shabaj to file an
application for adjustment of status. However, because Shabaj had attempted to enter the United
States by fraud, he was also required to file an application for a waiver of inadmissibility
pursuant to INA section 212(i), which provides that the Attorney General may, in his discretion,
waive an immigrant alien’s inadmissibility if “the refusal of admission to the United States of
such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse
or parent of such an alien.” 8 U.S.C. § 1182(i); see also Jun Min Zhang v. Gonzales, 457 F.3d
172, 174 (2d Cir. 2006) (indicating that alien who has engaged in immigration fraud cannot
adjust status absent a waiver of inadmissibility under INA § 212(i)).
Shabaj filed two separate applications for adjustment of status and a waiver of
inadmissibility, which CIS denied in February 2007 and January 2009, respectively. On May 2,
2011, CIS’s Administrative Appeals Office (“AAO”) dismissed Shabaj’s appeal, concluding that

1

Citizens of Italy are eligible to enter the United States under a Visa Waiver Program that allows
individuals from certain nations to visit the United States without a visa for up to 90 days. See
Shabaj, 602 F.3d at 104.
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Shabaj had failed to demonstrate that his U.S. citizen wife would suffer extreme hardship if he
were removed from the United States.
On July 14, 2011, Shabaj filed the instant lawsuit in the United States District Court for
the Southern District of New York. The complaint alleged, inter alia, that CIS’s decision to
deny his section 212(i) waiver application was erroneous as a matter of law. Shabaj maintained
that his action arose under both the Immigration and Nationality Act and the Administrative
Procedures Act (“APA”), 5 U.S.C. § 551 et seq., asserted that the district court had subject
matter jurisdiction under 28 U.S.C. § 1331, and requested that the court “grant relief pursuant to
the APA, the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq., and 28 U.S.C.
§ 1361.” Complaint ¶ 1.
On December 19, 2011, the district court issued an order granting the government’s
motion to dismiss the complaint and denying Shabaj’s cross-motion for judgment on the
pleadings. The district court held that it did not have subject matter jurisdiction to
review CIS’s denial of Shabaj’s 212(i) waiver application because 8 U.S.C. § 1182(i)(2)
expressly provides that “[n]o court shall have jurisdiction to review a decision or action of the
Attorney General regarding a waiver [of inadmissibility].” 8 U.S.C. § 1182(i)(2). In reaching
this conclusion, the district court rejected Shabaj’s argument that it had jurisdiction under 8
U.S.C. § 1252(a)(2)(D), because that section permits judicial review of discretionary section
212(i) waivers only for “constitutional claims or questions of law raised upon a petition for
review filed with an appropriate court of appeals.” 8 U.S.C. § 1252(a)(2)(D).2

2

The Department of Homeland Security issued a removal order against Shabaj on January 26,
2009. In August of 2011, Shabaj agreed to comply with his removal order by purchasing his
own plane ticket to leave the United States, but he subsequently received an administrative stay
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DISCUSSION
“Where a district court grants a defendant’s Rule 12(b)(1) motion to dismiss, an appellate
court will review the district court’s factual findings for clear error and its legal conclusions de
novo.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). “[A]
district court may properly dismiss a case for lack of subject matter jurisdiction under Rule
12(b)(1) if it lacks the statutory or constitutional power to adjudicate it.” Id. (internal quotation
marks omitted).
As indicated above, Shabaj’s complaint asserts that CIS’s decision to deny him waiver of
inadmissibility under 8 U.S.C. § 1182(i)(1) was erroneous as a matter of law. However,
subparagraph 2 of § 1182(i) provides that “[n]o court shall have jurisdiction to review a decision
or action of the Attorney General3 regarding a waiver [of inadmissibility] under paragraph (1).”
8 U.S.C. § 1182(i)(2). Similarly, 8 U.S.C. § 1252 provides that with respect to denials of
discretionary relief, 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(i)].” 8 U.S.C. § 1252(a)(2)(B); see also Jun Min Zhang,
457 F.3d at 175 (“The REAL ID Act of 2005 instructs us to treat this petition [for review of the
Board of Immigration Appeals’ determination that an alien does not satisfy the extreme-hardship

of his removal until March 30, 2012. Following the expiration of the stay, Shabaj purchased his
own ticket and, on April 28, 2012, departed the United States pursuant to his removal order.
3

Although CIS is a unit of the Department of Homeland Security (“DHS”), the Homeland
Security Act of 2002 mandates that references to the Attorney General are deemed to include
DHS where, as here, the relevant agency functions have been transferred from the Department of
Justice to DHS. 6 U.S.C. § 557.
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standard of § 1182(i)(1)] as a petition for review under 8 U.S.C. § 1252.”). The § 1182(i)(1)
hardship determination is discretionary, see Camara v. Dep't of Homeland Sec., 497 F.3d 121,
124 (2d Cir. 2007) (per curiam), and we therefore lack jurisdiction to review it unless an
exception to 8 U.S.C. §1252(a)(2)(B) applies.4
The exception Shabaj relies on is codified at 8 U.S.C. § 1252(a)(2)(D), which provides:
Nothing in subparagraph (B) or (C), or in any other provision of this Act (other
than this section) which limits or eliminates judicial review, shall be construed as
precluding review of constitutional claims or questions of law raised upon a
petition for review filed with an appropriate court of appeals in accordance with
this section.
Shabaj argues that because his claims purportedly raise “constitutional claims or questions of
law,” § 1252(a)(2)(D) applies and the denial of those claims is subject to judicial review. See,
e.g., Sumbundu v. Holder, 602 F.3d 47, 54 (2d Cir. 2010) (noting that courts of appeals retain
jurisdiction to review the agency’s hardship determinations for constitutional claims and
questions of law).
Even assuming, however, that Shabaj’s complaint actually had raised “constitutional
claims or questions of law,” Shabaj’s argument ignores the statute’s requirement that any such
claims must be raised “upon a petition for review filed with an appropriate court of appeals.” 8
U.S.C. § 1252(a)(2)(D) (emphasis added). Thus, while this court would have jurisdiction to
review any constitutional claims or questions of law properly raised in a petition for review, the

4

See Nethagani v. Mukasey, 532 F.3d 150, 154 n.2 (2d Cir. 2008) (“We have concluded that §
1252(a)(2)(B)(ii) strips our jurisdiction to review grants or denials of . . . [h]ardship waivers
under 8 U.S.C. § 1182(i).”); Camara, 497 F.3d at 124 (“[W]e lack jurisdiction to review
challenges to factual and discretionary determinations leading to the denial of a petition for
review where a jurisdiction-denying provision of the INA is implicated, unless, of course, the
petitioner raises a constitutional claim or a question of law.”).
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district court did not have jurisdiction to review Shabaj’s challenge to CIS’s discretionary
hardship determination.5
Shabaj correctly points out that at least two district courts in this Circuit have exercised
jurisdiction to review purported errors of law in CIS’s hardship determinations. See Saati v.
Holder, 10 Civ. 1345 (MAD/DEP), 2011 WL 2975478 (N.D.N.Y. July 21, 2011); Chen v.
Napolitano, 651 F. Supp. 2d 63 (S.D.N.Y. 2009). Those decisions, however, never addressed or
acknowledged, as they should have, the limitation in § 1252(a)(2)(D) providing that petitions for
review raising constitutional claims or questions of law must be filed in the appropriate court of
appeals.
Finally, relying largely on our decision in Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir.
2008), Shabaj argues that jurisdiction was proper in the district court under the APA and 28
U.S.C. § 1331. However, the judicial review provisions of the APA do not apply “to the extent
that . . . statutes preclude judicial review.” 5 U.S.C. § 701(a)(1). In this case, judicial review of
CIS’s hardship ruling is precluded by 8 U.S.C. § 1182(i)(2) and 8 U.S.C. § 1252(a)(2)(B).
Although we held in Sharkey that 8 U.S.C. § 1252(a)(2)(B) did not strip the district court of
jurisdiction to consider Sharkey’s claims that CIS previously granted her legal permanent
resident (“LPR”) status, owed her proof of that status, and unlawfully rescinded that status, our
decision was based on the fact that none of Sharkey’s claims would “subject to judicial review

5

The government contends that a petitioner could never file a “petition for review” of a CIS
hardship determination because petitions for review are only available for challenges to orders of
removal, and CIS determinations are not made as part of removal proceedings. However, we
need not decide whether a petitioner could file a “petition for review” of a CIS hardship
determination directly with this court because, in this case, Shabaj filed his legal challenge in the
district court, which indisputably lacked jurisdiction under § 1252.
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any discretionary decision by the agency.” Sharkey, 541 F.3d at 85. Rather, the district court in
that case would “simply seek to determine what decision was made, not whether the decision
was correct or a proper exercise of discretion.” Id; see also id. at 86 (“Section 1252(a)(2)(B)(i)
does not bar the district court from deciding Sharkey’s unlawful rescission claim because the
agency has a non-discretionary duty to commence rescission procedures prior to rescinding LPR
status . . . .”); id. at 87 (“[B]ecause the agency has a non-discretionary duty to provide LPRs with
proof of their status, Section 1252(a)(2)(B) does not strip the district court of jurisdiction to
review whether Sharkey is owed proof of her status.” (internal citation omitted)). In this case, by
contrast, Shabaj seeks “de novo review of [his] waiver application,” Pl.’s Br. at 5, which would
subject to judicial review CIS’s discretionary determination that Shabaj should not be granted a
waiver of inadmissibility. Thus, Sharkey is inapplicable, and Shabaj’s claim must fail.
CONCLUSION
Because the district court properly concluded that it lacked jurisdiction to adjudicate this
case, we need not consider the government’s remaining arguments that Shabaj’s removal from
the United States renders this appeal moot and that Shabaj failed to identify any legal errors in
CIS’s decision. For the reasons stated herein, the order of the district court is AFFIRMED.

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