Asil Mashiri v. Department of Education, et al

Filing

FILED PER CURIAM OPINION (ALFRED T. GOODWIN, DIARMUID F. O'SCANNLAIN and JACK ZOUHARY) AFFIRMED. FILED AND ENTERED JUDGMENT. [8550201]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ASIL MASHIRI,
Plaintiff-Appellant,

No. 10-56022

v.

D.C. No.
3:09-cv-01877WQH-AJB

DEPARTMENT OF EDUCATION ;
DEPARTMENT OF HOMELAND
SECURITY ; UNITED STATES
CITIZENSHIP AND IMMIGRATION
SERVICES; ARNE DUNCAN ;
WILLIAM J. TAGGART ; JANET A.
NAPOLITANO ; MICHAEL AYTES;
F. GERARD HEINAUER,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted
November 8, 2012—Pasadena, California
Filed March 14, 2013

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MASHIRI V . DEPARTMENT OF EDUCATION

Before: Alfred T. Goodwin and Diarmuid F. O’Scannlain,
Circuit Judges, and Jack Zouhary, District Judge.*
Per Curiam Opinion

SUMMARY**

Immigration
The panel affirmed the district court’s denial of
immigrant Asil Mashiri’s mandamus petition, in which he
sought to compel the Department of Education to issue him
a Stafford Loan.
The panel wrote that the jurisdictional and substantive
merits determinations merge in this case. The panel held that
although Mashiri’s mandamus petition falls within the scope
of the sue-and-be-sued clause in 20 U.S.C. § 1082(a)(2), the
anti-injunction clause in that subsection bars his suit for
declaratory relief. The panel held that the Larson-Dugan
exception to sovereign immunity did not bar Mashiri’s
petition under the mandamus statute, 28 U.S.C. § 1361. On
the merits, the panel held that the district court correctly
dismissed Mashiri’s petition because when his Stafford Loan
eligibility was reviewed, he did not provide any evidence that
he was “in the United States for other than a temporary

*

The Honorable Jack Zouhary, District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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purpose,” as required to receive a Federal Family Education
Loan Program loan.

COUNSEL
Asil Mashiri, pro se, San Diego, California, for PlaintiffAppellant.
Raven M. Norris, Assistant U.S. Attorney, San Diego,
California, for Defendants-Appellees.

OPINION
PER CURIAM:
Asil Mashiri appeals the district court’s denial of his
mandamus petition, in which he sought to compel the
Department of Education (the “DOE” or “Department”) to
issue him a Stafford Loan. We affirm.
Mashiri immigrated to the United States from Germany
with his mother, his father, and his brother. See Mashiri v.
Ashcroft, 383 F.3d 1112 (9th Cir. 2004). The family,
originally from Afghanistan, sought asylum based on the
alleged failure of the German government to protect them
from anti-foreigner violence in Germany. See id. at 1115–18.
After Mashiri’s mother obtained asylum, the Immigration
Judge (“IJ”) assigned to hear Mashiri’s separate asylum case
terminated those proceedings and directed him to file a

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derivative asylum application based on his mother’s approval.
On October 5, 2007, he did so.1
While Mashiri’s immigration status was still pending, he
obtained valid employment authorization, graduated from the
University of California, San Diego, and submitted an
application to Thomas Jefferson School of Law (“TJSL”).
After TJSL accepted him, Mashiri filed a Free Application for
Federal Student Aid (“FAFSA”) and requested a Stafford
Loan to pay his tuition. But after Mashiri’s immigration
documents were reviewed, TJSL declined to find him eligible
for any form of federal student aid, and he was therefore
unable to obtain a Stafford Loan.
TJSL insisted upon payment of the tuition, and Mashiri
obtained a private student loan for the first year of school.
But he continued to believe that he should have received a
Stafford Loan. He therefore filed the present petition against
the DOE and the Secretary of Education (the “Secretary”).
I. DISCUSSION
A. LEGAL STANDARDS
Subject matter jurisdiction can never be forfeited or
waived, and federal courts have a continuing, independent
obligation to determine whether subject matter jurisdiction
exists. See Leeson v. Transamerica Disability Income Plan,
671 F.3d 969, 975 n.12 (9th Cir. 2012). Where, as here, the
government “object[s] that . . . [the] court lacks subject-

1

Mashiri’s derivative asylum application was ultimately granted in
November 2009, and Mashiri obtained federal student loans after his first
year of law school.

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matter jurisdiction,” that objection “may be raised . . . at any
stage in the litigation.” Arbaugh v. Y & H Corp., 546 U.S.
500, 506 (2006); Wood v. City of San Diego, 678 F.3d 1075,
1082 (9th Cir. 2012).
B. APPLICATION
1. 20 U.S.C. § 1082
One potential basis for subject matter jurisdiction is 20
U.S.C. § 1082(a). The district court relied on this section in
determining that it had jurisdiction. Section 1082(a) provides
that:
In the performance of, and with respect to, the
functions, powers, and duties, vested in him
[related to the Federal Family Education Loan
Program] the Secretary [of Education] may–
....
(2) sue and be sued . . . in any district court of
the United States, and such district courts
shall have jurisdiction of civil actions arising
under this part without regard to the amount in
controversy . . . . but no attachment,
injunction, garnishment, or other similar
process, mesne or final, shall be issued
against the Secretary or property under the
Secretary’s control . . . .
20 U.S.C. § 1082 (emphasis added).
The statute’s “sue-and-be-sued clause” is significant here.
Neither Mashiri nor the government cites a Ninth Circuit case

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directly holding that the clause confers subject matter
jurisdiction, but we are satisfied that the Eleventh Circuit
correctly followed Supreme Court precedent in Bartels v.
Alabama Commercial College, Inc., 54 F.3d 702, 706–07
(11th Cir. 1995). Bartels held that because § 1082(a)(2)
specifically mentions the federal courts, it confers federal
subject matter jurisdiction in cases where, as here, the claims
“involv[e] the Secretary’s administration” of the Federal
Family Education Loan Program (“FFELP”). 54 F.3d at 707
(citing Am. Nat’l Red Cross v. S.G., 505 U.S. 247, 255
(1992)). Thus, Mashiri’s mandamus petition falls within the
scope of the sue-and-be-sued clause in § 1082(a)(2).
Notwithstanding the sue-and-be-sued clause, however,
§ 1082(a)(2)’s separate “anti-injunction clause,” derived from
federal sovereign immunity, presents the question whether it
applies to Mashiri’s mandamus petition. We have previously
concluded that certain suits for declaratory relief against the
Secretary are barred by the anti-injunction clause, see Am.
Ass’n of Cosmetology Schs. v. Riley, 170 F.3d 1250, 1253–55
(9th Cir. 1999). We cannot rely on § 1082 to provide
jurisdiction in this case.
2. The Larson-Dugan
Immunity

Exception to Sovereign

Mashiri also contends jurisdiction is proper under the
mandamus statute, 28 U.S.C. § 1361. We have stated that, in
general, “the bar of sovereign immunity” applies to
mandamus petitions. See Smith v. Grimm, 534 F.2d 1346,
1352 n.9 (9th Cir. 1976). In these circumstances, the only
potential support for Mashiri’s claim to jurisdiction is the
Supreme Court’s Larson-Dugan exception to sovereign

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immunity. Larson v. Domestic & Foreign Commerce Corp.,
337 U.S. 682 (1949), explains that:
There may be, of course, suits for specific
relief against officers of the sovereign which
are not suits against the sovereign . . . .
[W]here the officer’s powers are limited by
statute, his actions beyond those limitations
are considered individual and not sovereign
actions. The officer is not doing the business
which the sovereign has empowered him to do
or he is doing it in a way which the sovereign
has forbidden. His actions are ultra vires his
authority and therefore may be made the
object of specific relief.
337 U.S. at 689; see also Dugan v. Rank, 372 U.S. 609
(1963); Wash. Legal Found. v. U.S. Sentencing Comm’n, 89
F.3d 897, 901 (D.C. Cir. 1996) (if “a plaintiff seeks a writ of
mandamus to force a public official to perform a duty
imposed upon him in his official capacity . . . no . . . waiver
of sovereign immunity is needed”); Washington v. Udall, 417
F.2d 1310, 1315–17 (9th Cir. 1969), superseded by statute on
other grounds as stated in EEOC v. Peabody W. Coal Co.,
610 F.3d 1070, 1085 (9th Cir. 2010) (discussing Larson and
Dugan).
Here, there is no dispute that the Secretary’s powers over
the FFELP are “limited by statute.” Larson, 337 U.S. at 689.
And Mashiri’s petition challenges the end result of the
FFELP’s eligibility process by arguing that he is, in fact,
statutorily eligible for a federal Stafford Loan. In similar
circumstances, where merits questions were directly relevant
to the government’s asserted “duty to the plaintiff,” the D.C.

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Circuit reasoned that the question of “[w]hether the LarsonDugan exception” applied “merge[d] with the question on the
merits.” Wash. Legal, 89 F.3d at 901–02. The court then
turned to address the substantive merits of the mandamus
claim before it. Id. We do likewise.
3. The Merits of Mashiri’s Petition
On the merits, two separate statutes govern Mashiri’s
eligibility for a federal student loan: 8 U.S.C. § 1611, and
20 U.S.C. § 1091(a)(5). Neither establishes a “clear
nondiscretionary duty” to Mashiri. Heckler v. Ringer, 466
U.S. 602, 616 (1984).
A. 8 U.S.C. § 1611
8 U.S.C. § 1611 provides that only certain eligible aliens
may receive government-funded loans and other federal
public benefits. See 8 U.S.C. §§ 1611(a), 1611(c)(1)(A).
8 U.S.C. § 1641(b) sets forth specific alien eligibility
limitations, and permits only legal permanent residents and
other limited classes of aliens to participate in § 1611’s public
benefits. Mashiri conceded at oral argument that he did not
fall within any of the classes of aliens described in § 1641(b),
and we agree. But that leaves Mashiri to rely on the
eligibility requirements in 20 U.S.C. § 1091(a)(5), and he
cannot show eligibility under that statute, either.
B. 20 U.S.C. § 1091
20 U.S.C. § 1091 provides that:
(a) . . . In order to receive [any FFELP loan]
. . . a student must–

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....
(5) be a citizen or national of the United
States, a permanent resident of the United
States, or able to provide evidence from the
Immigration and Naturalization Service that
he or she is in the United States for other than
a temporary purpose with the intention of
becoming a citizen or permanent resident . . . .
20 U.S.C. §§ 1091(a), 1091(a)(5) (emphasis added); see also
34 C.F.R. § 668.33(a)(2)(ii).
Even if this statute precluded the application of 8 U.S.C.
§ 1641, none of the documents Mashiri provided during the
eligibility verification process could conceivably show the
statute’s required non-temporary purpose.
The first document Mashiri submitted, a Ninth Circuit
order regarding his mother’s asylum case, does not speak to
Mashiri’s immigration status or non-temporary purpose
because, as he concedes, he and his mother filed separate
asylum applications.
The second document Mashiri
submitted, a Ninth Circuit judgment remanding Mashiri’s
application to the Board of Immigration Appeals, would at
most suggest that his asylum case required further
proceedings in the immigration court. The third document
Mashiri submitted, an IJ’s order terminating Mashiri’s
separate asylum proceedings, similarly fails to satisfy the
statute. Even if the document is combined with Mashiri’s
assertion that the IJ directed him to file a derivative
application, the circumstances at most indicate that a further
asylum case would be pursued. On its face, the order neither

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confers legal status nor shows that Mashiri was in the United
States for a non-temporary purpose.
And the fourth document Mashiri submitted, his
employment authorization document, was obtained during the
pendency of his asylum application, see 8 C.F.R.
§ 274a.12(c), and was only temporary in nature. See Guevara
v. Holder, 649 F.3d 1086, 1091–92 & n.4 (9th Cir. 2011).
That document did not itself confer any legal status or render
Mashiri legally admitted—much less constitute evidence that
he was in the United States for other than a temporary
purpose, as § 1091(a)(5) requires. See id. at 1092–93; Garcia
v. Holder, 659 F.3d 1261, 1271 (9th Cir. 2011); Vasquez de
Alcantar v. Holder, 645 F.3d 1097, 1103 (9th Cir. 2011);
United States v. Bazargan, 992 F.2d 844, 848 (8th Cir. 1993).
For the first time on appeal, Mashiri argues that he also
submitted a copy of his then-pending asylum application to
TJSL. This court generally “will not consider” arguments or
allegations “that are raised for the first time on appeal.” Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999); Padgett v.
Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
But even so, Mashiri’s asylum application would not show
that he was in the United States for a non-temporary purpose,
as § 1091(a)(5) requires. Ninth Circuit case law states:
The status of asylum applicants and its
duration can hardly be described as fixed, or
permanent . . . . [T]hey are best described as
inchoate . . . .
. . . . A residence is temporary when the
alien’s continued presence is solely dependent
upon the possibility of having his application

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for asylum acted upon favorably. Aliens who
have official authorization to remain
indefinitely until their status changes reside
permanently; asylum applicants who merely
participate in a process that gives rise to the
possibility of such an authorization reside
temporarily . . . .
Sudomir v. McMahon, 767 F.2d 1456, 1462 (9th Cir. 1985)
(emphasis added) (footnote omitted).
II. CONCLUSION
The jurisdictional question merges with the merits in
these circumstances. See Wash. Legal, 89 F.3d at 901–02.
When Mashiri’s Stafford Loan eligibility was reviewed, he
did not provide any evidence from the INS or USCIS that he
was “in the United States for other than a temporary
purpose.” 20 U.S.C. § 1091(a)(5); 34 C.F.R.
§ 668.33(a)(2)(ii). The district court therefore correctly
dismissed Mashiri’s petition on the merits.
AFFIRMED.