Nieto-Ayala v. Mukasey et al

Filing 18

MEMORANDUM AND ORDER granting 15 Motion to Dismiss filed by Defendants: For the reasons set forth within, the Government's motion to dismiss pursuant to Rule 12(b)(1) is GRANTED and Nieto-Ayala's petition is dismissed. (Signed by Judge Lawrence M. McKenna on 8/25/2011) (ab)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - X
OSCAR ADOLFO NIETO-AYALA

:

Plaintiff,

:
08 Civ. 8347(LMM)

-v-

:

ERIC H. HOLDER, JR., ATTORNEY
:
GENERAL; DEPARTMENT OF HOMELAND
SECURITY, UNITED STATES
:
CITIZENSHIP AND IMMIGRATION
SERVICES
:

MEMORANDUM AND ORDER

Defendants. :
- - - - - - - - - - - - - - - - X
McKENNA, D.J.
Plaintiff

Oscar

Adolfo

Nieto-Ayala

(“Nieto-Ayala”)

filed a writ of mandamus against United States Attorney
General

Michael

B.

Mukasey1

and

Department

of

Homeland

Security, United States Citizenship and Immigration Service
(“USCIS”)(collectively,

“the

Government”

or

“the

Defendants”) seeking an order compelling the Government to
continue
pending

“his

enlargement

application

Government

moves

to

for

on

recognizance”

asylum

dismiss

the

is

until

considered.

complaint

for

lack

his
The
of

subject matter jurisdiction pursuant to Rule 12(b)(1) of

1

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Eric
H. Holder, Jr. has been substituted as defendant in this matter.

the Federal Rules of Civil Procedure.

For the following

reasons, the Government’s motion to dismiss is GRANTED.
FACTUAL BACKGROUND
On

August

8,

1984,

Nieto-Ayala

entered

States as a lawful permanent resident.

the

United

(Compl. at 2.)

On

January 6, 1992, Nieto-Ayala was convicted, upon a plea of
guilty,

in

the

United

States

District

Court

for

the

District of New Jersey for facilitating the distribution of
cocaine

and

(Id. at 2.)
the

New

was

to

four

months

imprisonment.

On June 15, 1992, Nieto-Ayala was convicted in

Jersey

possession

sentenced

of

imprisonment.

Superior

cocaine

and

Court,
was

Morris

sentenced

County,

for

ninety

days

to

(Id. at 2.)

On June 10, 1992, an Immigration Judge (“IJ”) ordered
Nieto-Ayala deported, and on September 5, 1992, the Board
of Immigration Appeals (“BIA”) affirmed the IJ’s decision,
making the removal order final.

(Id. at 2-3.)

16, 1992, Nieto-Ayala was deported.
In

October

1993,

Nieto-Ayala

On November

(Id. at 3.)
reentered

the

States without permission of the Attorney General.

United
(Id. at

3.)
In February 2005, Nieto-Ayala was arrested and charged
with entering the United States after having been deported
subsequent

to

a

conviction

for

2

an

aggravated

felony

in

violation of 8 U.S.C. § 1326(a) and (b)(2).

United States

v. Nieto-Ayala, 2005 WL 2006703 at *1 (S.D.N.Y. Aug. 18,
2005).

On

August

18,

2005,

this

Court

dismissed

the

indictment against Nieto-Ayala, holding that because his
counsel was ineffective during the deportation hearings,
the underlying deportation order violated his due process
rights and could not be the basis for the prior deportation
element in the illegal reentry charge.

Nieto-Ayala, 2005

WL 2006703 at *2.
After the dismissal of the indictment, Immigration and
Customs Enforcement (“ICE”) placed Nieto-Ayala in removal
proceedings,

charging

him

as

an

controlled substance violation.

alien

convicted

of

(Compl. Ex. B, Ex. C.)

a
On

October 26, 2005, bond was posted on Nieto-Ayala’s behalf
and he was released from the custody of ICE.
Nieto-Ayala

filed

an

deportation

under

§

application
212(c)

Nationality Act (“INA”).
the

IJ

denied

of

for
the

(Id. at 3.)

Nieto-Ayala’s

ordered Nieto-Ayala removed.

§

a

(Id. at 4.)
waiver

Immigration

of
and

On June 20, 2007,

212(c)

application

(Id. Ex. B)

and

On June 18,

2008, the BIA dismissed Nieto-Ayala’s appeal, making the
removal order final.

(Id. Ex. C.)

Nieto-Ayala did not

seek a review of the removal order under the applicable
review scheme in 8 U.S.C. § 1252.

3

On August 26, 2008, Nieto-Ayala filed an application
for asylum with USCIS.
however,

did

not

(Compl. at 3-4; Ex. D.)

accept

the

application

(Id. at 4; Ex. E.)

incomplete.

because

USCIS,
it

was

Nieto-Ayala alleges that

he has since provided USCIS with additional information to
complete his application.
On
obligor

(Id. at 4.)

September

17,

who

posted

requesting

had

that

the

2008,

ICE

bond

obligor

sent

on

a

notice

Nieto-Ayala’s

deliver

Nieto-Ayala

to

the

behalf,
to

the

nearest ICE office within five days of October 7, 2008.
(Id. Ex. F.)
On September 28, 2008, Nieto-Ayala filed this action
for a writ of mandamus to compel the Government to continue
his

enlargement

on

bond

application for asylum.

until

USCIS

adjudicates

his

(Id. at 5-6.)

The Government moves to dismiss for lack of subject
matter

jurisdiction

pursuant

to

Federal Rules of Civil Procedure.

Rule

12(b)(1)

of

the

(Defs.’ Mem. at 1.)

DISCUSSION
A. 12(b)(1) Motion to Dismiss Standard
Rule 12(b)(1) provides for the dismissal of a claim
when

a

federal

court

lacks

Fed. R. Civ. P. 12(b)(1).
motion

to

dismiss,

this

subject

matter

jurisdiction.

In addressing a Rule 12(b)(1)
Court

4

must

take

all

factual

allegations in the complaint as true, Atl. Mut. Ins. Co. v.
Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198 (2d Cir.
1992)(citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)),
and

Nieto-Ayala

preponderance

bears

of

the

the

jurisdiction exists.

burden

evidence

of

that

proving
subject

by

a

matter

Marakova v. United States, 201 F.3d

110, 113 (2d Cir. 2000).
B. Jurisdiction Under the REAL ID Act
The

Government

jurisdiction

to

argues

review

that

Nieto-Ayala’s

this

Court

challenge

lacks
to

his

removal order or to stay his removal order under the REAL
ID Act, 8 U.S.C. § 1252.

(Defs.’ Mem. at 2.)

Nieto-Ayala

does not contest that the REAL ID Act divests this Court of
jurisdiction to consider a challenge to a removal order or
to stay a removal order.

(See Pl.’s Opp’n Mem. at 2.)

Instead, Nieto-Ayala argues that he does not directly or
indirectly challenge his removal order and thus, the REAL
ID Act does not apply.

(Id. at 1.)
1.

The REAL ID Act, 8 U.S.C. § 1252, divests district
courts of jurisdiction to review direct challenges to final
orders of removal for aliens, like Nieto-Ayala, that “are
removable

by

reason

substance violation.”

of

having

committed

a

controlled

Arostegui v. Holder, 368 Fed. App’x.

5

169, 171 (2d Cir. 2010) (citing 8 U.S.C. § 1252(a)(2)(C)).
Specifically,

the

REAL

ID

Act

provides

that

“[n]ot

withstanding any other provision of law . . . no court
shall

have

jurisdiction

to

review

any

final

order

of

removal against an alien who is removable by reason of
having

committed

1182(a)(2).”

8

a

criminal

U.S.C.

§

offense

covered

1252(c).

in

section

Nieto-Ayala’s

1992

convictions for possession and distribution of cocaine are
controlled substance offenses that fall within the scope of
section

1182(a)(2).

Sol

See

v.

Immigration

and

Naturalization Serv., 274 F.3d 648, 651 (2d Cir. 2001).
The Second Circuit recently held that the REAL ID
Act also divests district courts of jurisdiction to review
indirect

challenges

to

removal

orders.

See

Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011).

Delgado

v.

In Delgado,

the government had reinstated the removal order of Delgado,
a

previously

application,

removed
which

alien,
sought

admission after removal.

and

denied

permission

Id. at 54.

Delgado’s
to

reapply

I-212
for

Delgado brought a

mandamus action to compel USCIS to make a determination on
the

merits

of

her

I-212

waiver

application.

Id.

The

Second Circuit held that even though the USCIS’s grant of
an I-212 waiver would not “per se prevent her removal,”
such a waiver was “a necessary prerequisite to her ultimate

6

Id. at 55.

goal of adjustment of status.”
Circuit

further

reasoned

that

“‘an

The Second

adjustment-of-status

challenge is inextricably linked to the reinstatement of
[an alien's] removal order,’ because ‘a nunc pro tunc Form
I–212

waiver

status

to

render

the

of

that

inadmissibility
of

[a

lawful

reinstatement

and

the

permanent

order

adjustment

resident]’

‘invalid.’”

Id.

of

would
at

55

(quoting Morales-Izquierdo v. Dep’t of Homeland Sec., 600
F.3d

1076,

1082-83

(9th

Cir.

2006)

(holding

that

the

district court was without jurisdiction under the REAL ID
Act to consider petitioner’s challenge to the denial of his
adjustment-of-status

application)).

The

Second

Circuit

concluded that under the REAL ID Act, the district court
was

without

jurisdiction

to

consider

challenge to her reinstatement order.

Delgado’s

indirect

Id. at 55.

2.
Here, Nieto-Ayala does not directly challenge his
removal order.

Instead, Nieto-Ayala seeks to compel the

Government to continue his enlargement on bond until his
application for asylum is adjudicated by USCIS.
5-6.)

(Compl. at

Although, unlike in Delgado, Nieto-Ayala does not

seek to compel USCIS to act, if this Court were to grant
the relief sought and compel the Government to allow NietoAyala

to

remain

on

parole

until

7

USCIS

adjudicates

his

asylum application, then the Government would be without a
mechanism

to

enforce

the

removal

order

until

USCIS

has

adjudicated his asylum application.

Thus, the effect of

any

to

stay

by

this

Court

would

be

prompt

USCIS

to

adjudicate Nieto-Ayala’s asylum application, and like the
I-212

application

in

Delgado,

Nieto-Ayala’s

asylum

application is “inextricably linked” to his removal order
because

if

the

asylum

application

removal order would be invalid.
55.

is

granted,

then

his

See Delgado, 643 F.3d at

This Court therefore is without jurisdiction under the

REAL ID Act to consider Nieto-Ayala’s indirect challenge to
his removal order.
C.

Jurisdiction Under the Mandamus Statute

Further, even if this Court does not construe NietoAyala’s mandamus request as an indirect challenge to his
removal order, this Court would be without jurisdiction to
consider his petition under the mandamus statute, 8 U.S.C.
§ 1361.
It is well established that “[t]he remedy of mandamus
is

a

drastic

one,

to

be

invoked

only

in

extraordinary

situations,” Kerr v. U.S. Dist. Court, 426 U.S. 394, 402
(1976), and that “jurisdiction under the mandamus statute
is limited to actions seeking to compel the performance of
a

nondiscretionary

duty.”

Duamutef

8

v.

Immigration

and

Naturalization
(emphasis

removed)

sought

compel

to

because

such

386

Serv.,

F.3d

172,

Cir.

2004)

mandamus

petition

that

plaintiff’s

removal

order

(dismissing

execution

execution

was

General’s discretion).

of

entirely

180

(2d

within

the

Attorney

See also Heckler v. Ringer, 466

U.S. 602, 614 (1984) (“The common-law writ of mandamus, as
codified in 28 U.S.C. § 1361, is intended to provide a
remedy . . . only if the defendant owes [plaintiff] a clear
nondiscretionary

duty.”);

Work

v.

United

States

ex

rel.

Rives, 267 U.S. 175, 177-78 (1925) (holding that if an act
is within a federal officer’s discretion, mandamus cannot
be used to compel such an action); Yilmaz v. McElroy, 2001
WL

1606886

at

*3

(S.D.N.Y.

Dec.

17,

2001)

(dismissing,

pursuant to Fed. R. Civ. P. 12(b)(1), complaint that sought
to compel action on plaintiff’s application for residency
because such action was “solely within the discretion of
the INS”).
”Parole

is

a

matter

of

the

Attorney

General’s

discretion (and of the opinion of those she appoints) and
may be ended without hearings or special forms.”
McElroy, 98 F.3d 694, 700 (2d Cir. 1996).

Ofosu v.

Specifically,

“[t]he Attorney General at any time may revoke bond or
parole authorized under [8 U.S.C. § 1226(a)],” and “[t]he
Attorney

General’s

discretionary

9

judgment

regarding

the

application
review.”

of

this

section

shall

not

be

subject

to

8 U.S.C. §§ 1226(b), (e).

Here, even if this Court were to find that Nieto-Ayala
is not indirectly challenging his removal order, this Court
is without jurisdiction because the continuance of NietoAyala’s bond is a matter entirely within the discretion of
the Attorney General.
Similarly, even if this Court were to find that NietoAyala is seeking only a stay of his removal order until his
asylum application is considered, Nieto-Ayala has pointed
to

no

authority

that

suggests

that

ICE

has

a

nondiscretionary duty to refrain from executing the removal
order against him until Nieto-Ayala’s asylum application
has

been

adjudicated

or

that

USCIS

must

adjudicate

his

asylum application before ICE executes the removal order.
See Hanif v. Gantner, 369 F. Supp. 2d 502, 505 (S.D.N.Y.
2005) (holding that the court lacked jurisdiction under the
mandamus statute to stay plaintiff’s removal until USCIS
had adjudicated his application for adjustment of status
because

plaintiff

pointed

to

no

authority

“for

the

proposition that ICE has a nondiscretionary duty not to
remove

[plaintiff]

application],

or,

until

[USCIS]

conversely,

10

that

has

[USCIS]

[heard
must

his

fulfill

removal order")

that duty prior to ICE's execution of

2

CONCLUSION

For
smiss

the

above

pursuant

to

reasons,
Rule

Government's

12(b) (1)

is

GRANTED

motion
and

to

Nieto-

Ayala's petition is dismissed.
SO ORDERED.
Dated: August

25, 2011
Lawrence M. McKenna
U.S.D.J.

------~-----------.-----

2
Moreover, as the Government notes, under 8 U.S.C. § 1252(g), this
Court does not "have jurisdiction to hear any cause or claim by or on
behalf of any alien arising from the decision or action by the Attorney
General to
execute removal orders
any alien under this
chapter."
8 U.S.C. § 1252(g).
See also Reno v. American-Arab Anti­
Discriminat
Comm., 525 U.S. 471, 482 (1999); DU<imutef:., 386 F.3d at
181.
A claim seeking to stay a removal order arises from a decision or
action by the Attorney General to execute removal orders and this Court
therefore is without jurisdiction to hear such a claim.
See Moussa v.
Jeni
389 F.3d 550, 554 (6th Cir. 2004) (holding that the Attorney
General's denial of a stay of removal is part of a decision to execute
a removal order and thus, under 8 U. S. C. § 1252 (g), the court was
without jurisdiction to consider any chal
to the denial);
v.
280 F.3d 786, 787 (7d Cir. 2002) (holding that a request
for a stay of removal until adjudication of additional administrative
relief "'arises from' the Attorney General's decision.
. to execute
a removal order·) .

11