Adegbuji v. Mukasey et al

Filing 13

MEMORANDUM and ORDER DENYING petition for writ of mandamus; Clerk of court is directed to CLOSE case.Signed by Honorable James M. Munley on 10/9/08. (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA TOSIN ADEGBUJI, Petitioner : No. 3:08cv1714 : : (Judge Munley) v. : : MICHAEL MUKASEY, Attorney : General of the United States : of America; : MICHAEL CHERTOFF, : Secretary, Department of Homeland : Security; : EMILIO GONZALEZ, Director, United : States Customs and Immigration : Service; : JULIE MYERS, Assistant Secretary, : Immigration and Customs : Enforcement; and : MARIE DAMOUR, Acting Minister, : Consular Affairs, : Respondents : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court is the instant petition for a writ of mandamus (Doc. 1). For th e reasons stated below, the court will deny that petition. B a c k g ro u n d P e titio n e r Tosin Adegbuji is a native and citizen of Nigeria. (See Adegbuji v. Q u a ra n tillo , No. 02-4878 (D. N.J. 2003), attached as Exh. A (hereinafter "Exh. A") to G o ve rn m e n t's Response to the Court's Order to Show Cause (Doc. 11) (hereinafter "G o ve rn m e n t's Response") at 2). Adegbuji entered the United States on July 28,

1 9 8 6 as a non-immigrant visitor. (Id.). He had permission to remain in the county u n til January 27, 1987. (Id.). Petitioner did not depart by that date, but instead m a rrie d a United States citizen on October 18, 1987. (Id.). His wife filed a petition fo r an immigrant visa for him, along with an application for adjustment of status. (Id.). The Immigration and Naturalization Service ("INS") discovered that petitioner h a d submitted a false Nigerian divorce decree with his application for adjustment, h o w e ve r, and issued a notice denying the application. (Id. at 3). Plaintiff's American w ife then withdrew her petition and on November 7, 1989 the INS denied petitioner's a p p lic a tio n for a status adjustment. (Id.). A court in the United States District Court for the District of Rhode Island c o n vic te d petitioner of fraudulent use of access devices on December 15, 1989. (Id.). On January 10, 1990, a Rhode Island state court convicted him for writing fra u d u le n t checks. (Id.). On the day of petitioner's federal conviction, the INS issued a notice informing him that he was inadmissible into the United States because he h a d been convicted of a crime involving moral turpitude and was not in possession o f a valid immigrant visa. (Id.). Petitioner's Rhode Island state-court conviction for p a s s in g a bad check led to a sentence of two-years probation. (See United States v. M a fa n y a , 24 F.3d 412, 414 (2d Cir. 1994)).1 The court issued a warrant for his arrest w h e n he failed to make the required restitution. (Id.).

Petitioner used a false name, Abel Manfaya, and claimed to be from South Africa when arrested in this 1994 case. See Manfaya, 24 F.3d at 413. 2

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A n Immigration Judge ("IJ") in 1991 ordered petitioner excluded and deported fro m the United States. Petitioner reentered the United States in January 1993, u s in g a false identity. (Exh. A at 4). The United States Secret Service arrested him in July 1993 on charges of illegal use of a credit card. (Id.). A court later sentenced p e titio n e r to thirteen months in prison and three years supervised release. (Id.). Petitioner apparently absconded from parole and returned to Nigeria after this re le a s e . (Id.). Petitioner again attempted to enter the United States on May 1, 2002. (Id.). He applied for admission as a visitor under the Visa W a iv e r Program, presenting a fa ls e passport from the United Kingdom. (Id.). Border officials noticed this fraud, a n d also discovered that a warrant for petitioner's arrest existed based on his 1993 c o n vic tio n . (Id.). Turned over to the United States Marshal's service for prosecution, p e titio n e r was eventually convicted and sentenced to time served. (Id. at 5 n.3). Once he completed his sentence, officials returned petitioner to the custody of the im m ig ra tio n service. (Id. at 5). On July 10, 2002, the INS found petitioner in a d m is s ib le to the United States, as he was an alien convicted of a crime involving m o ra l turpitude and had attempted to gain entry to the United States by means of fra u d or wilful misrepresentation of a material fact. (Id.). T h e United States on July 16, 2002 attempted to remove petitioner to the U n ite d Kingdom. (Id.). The United Kingdom refused to accept him and returned him to United States custody. (Id.). The United States then attempted to remove 3

p e titio n e r to Nigeria, but he expressed a fear of persecution if sent to that country. (Id.). Petitioner filed an application for asylum. (Id. at 6-7). An immigration judge h e ld a hearing on this application. (Id. at 7). On December 3, 2002, the judge is s u e d an verbal decision denying petitioner's request for asylum. (Id.). The Board o f Immigration Appeals remanded the case for further proceedings on April 3, 2003. (See Exh. B to Government's Response). Thereafter, the Immigration Judge g ra n te d the application and the Board of Immigration Appeals affirmed this decision o n January 28, 2004. (See Exh. C to Government's Response). On February 11, 2 0 0 5 , however, petitioner was removed to the United Kingdom, where he today re s id e s . (See Petition for W rit of Mandamus (Doc. 1) (hereinafter "Petition") at ¶ 5). O n October 4, 2006, petitioner mailed an Application for Advance Permission to Enter as Non-Immigrant Pursuant to INA Section 212(d)(3) ("Application") to the U n ite d States Citizenship and Immigrant Services office in New York. (Id. at ¶ 16). Petitioner contends that he had filed several civil actions in Middlesex County, New J e rs e y while he was detained there awaiting removal. (Id. at ¶ 12). He alleges that th e s e actions sought damages for personal injuries petitioner sustained during his d e te n tio n . (Id.). The Application sought a waiver of petitioner's inadmissibility order s o that he could attend jury trials on these matters. (Id.). On August 29, 2008, the V is a Coordination Unit for the United States Embassy in London, England informed p e titio n e r that his application had been denied. (See Exh. 1 to Petition). The Unit d e n ie d petitioner's application because he had committed a crime of moral turpitude. 4

( Id . ). A fte r being denied permission to enter the United States, petitioner filed the in s ta n t action on September 16, 2008. Petitioner contends that the civil actions he file d in United States district court had been set for trial. Since he had been d e p o rte d and could not attend trial, the cases had been dismissed with prejudice. Later, however, the court determined that plaintiff could reopen his cases if he could c e rtify that he had permission to enter the United States to prosecute his actions. After the Visa Coordination Unit denied petitioner's application he found that he had n o means to comply with the court order. Fearing his cases would be dismissed p e rm a n e n tly , petitioner filed the instant action. He seeks an order from the court in s tru c tin g the defendants to rule on his application and declaring that consular d e c isio n to deny his application was contrary to law. He also asks the court to c o m p e l the defendants to allow petitioner entry into the United States to pursue his c o u r t cases. A fte r receiving the petition, the court ordered (Doc. 3) the defendants to file a re s p o n s e . The defendants did so (Doc. 11), bringing the case to its present posture. J u r i s d ic t i o n B e c a u s e petitioner brings this action pursuant to 28 U.S.C. § 1361, the court h a s jurisdiction to hear the case. See 28 U.S.C. § 1361 ("The district courts shall h a ve original jurisdiction of any action in the nature of mandamus to compel an o ffic e r or employee of the United States or any agency thereof to perform a duty 5

o w e d to the plaintiff."). Discussion In their response, respondents contend that this court lacks jurisdiction to a d ju d ic a te the matter for two reasons. First, the government insists that this court h a s no jurisdiction to issue a writ of mandamus requiring that the defendants e xp e d ite a decision on an application to enter as a nonimmigrant. Second, the g o ve rn m e n t asserts that this court does not have jurisdiction to review the decision o f a consular official in a foreign country. P e titio n e r seeks in part a writ of mandamus requiring the Bureau of Im m ig ra tio n and Customs Enforcement to expedite its decision on his waiver a p p lic a tio n . A writ of mandamus "will issue only to compel the performance of `a c le a r nondiscriminatory duty.'" Pittstown Coal Group v. Stebben, 488 U.S. 105, 121 (1 9 8 8 ) (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)). The purpose of the w rit is "to confer jurisdiction on district courts to compel a Government official or a g e n c y to perform a duty owed to the plaintiff or to make a decision, but not to direct o r influence the exercise of discretion of the officer or agency in the making of the d e c is io n ." Hill v. United States Board of Parole, 257 F. Supp. 129, 130 (M.D. Pa. 1 9 6 6 ). As the Third Circuit Court of Appeals has explained, "in order for mandamus to issue, a plaintiff must allege that an officer of the Government owes him a legal d u ty which is a specific, plain ministerial act `devoid of the exercise of judgment or d is c re tio n .' An act is ministerial only when its performance is positively commanded 6

a n d so plainly prescribed as to be free from doubt." Harmon Cove Condominium A s s 'n , Inc. v. Marsh, 815 F.2d 949, 951 (3d Cir. 1987) (quoting Richardson v. United S ta te s , 465 F.2d 844, 849 (3d Cir. 1972)). Further, "the party seeking mandamus h a s the burden of showing that its right to issuance of the writ is `clear and in d is p u ta b le .'" W ill v. United States, 389 U.S. 90, 96 (1967) (quoting Bankers Life & C a s . Co. v. Holland, 346 U.S. 379, 384 (1953)). T h e question here, then, is whether the defendants have a non-discretionary duty to grant petitioner a waiver, or at least to issue a decision on plaintiff's a p p lic a tio n to enter the country as a non-immigrant. Petitioner seeks admission to the United States pursuant to 8 U.S.C. § 1182(d), which provides for the temporary a d m is s io n of non-immigrants. Under that subsection of the Immigration and N a tio n a lity Act, an alien ineligible for a visa "may, after approval by the Attorney G e n e ra l of a recommendation by the Secretary of State or by the consular officer th a t the alien be admitted temporarily despite his inadmissibility, be granted such a vis a and may be admitted into the United States temporarily as a nonimmigrant in th e discretion of the Attorney General." 8 U.S.C. § 1182(d)(3)(A)(i). The Attorney G e n e ra l also has discretion to admit such ineligible aliens without a recommendation fro m another official if that alien possesses "appropriate documents." 8 U.S.C. § 1 1 8 2 ( d ) (3 ) (A )(ii). The statute does not, however, prescribe a time period in which th e Attorney General must render a decision. Petitioner nevertheless contends that h e is eligible for such a waiver and the government should be compelled to respond 7

to his application. T h e court finds that the issuance of a non-immigrant waiver to enter the c o u n try is not the sort of non-discretionary, ministerial duty that can lead to the is s u a n c e of a writ of mandamus. The act's language makes clear that the Attorney G e n e ra l "may" decide to admit an ineligible alien. The decision to allow such entry, h o w e ve r, is left to the Attorney General's discretion and is not "so plainly prescribed a s to be free from doubt." Accordingly, a writ of mandamus cannot be issued o rd e rin g the Attorney General to grant petitioner a waiver. Here, however, petitioner's complaint appears to be that his application for w a ive r has not been ruled upon.2 He asks the court to order the government to a d ju d ic a te his claim. Several courts which have addressed similar issues have fo u n d that the writ of mandamus cannot be used to compel adjudication of visa a p p lic a tio n s and other immigration petitions. See, e.g., Qui v. Chertoff, 486 F. Supp. 2 d 412, 418 (D. N.J. 2007) (finding that Congress did not provide any sort of time lim ita tio n in the portion of the Immigration and Nationality Act that allows for a d ju s tm e n t of status and thus "Congress did not intend to limit the discretion of im m ig r a tio n officials by specifying a certain time period within which they must act."); L i v. Chertoff, No. 06-13679, 2007 W L 541974 at *2 (S.D.N.Y. Feb. 16, 2007)

Respondents indicate that petitioner may not have filed his application with the proper agency or provided all the required information with that application. They acknowledge that the instructions for filing that document could be confusing and inform the court that additional time may be necessary to determine the status of the application. 8

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(fin d in g that the court lacked jurisdiction to order that a visa application be a d ju d ic a te d within a reasonable amount of time); Zhang v. United States Citizenship & Immigration Serv., No. 05 Civ. 4086, 2005 W L 3046440 (S.D.N.Y. Nov. 8, 2005); L i v. Gonzalez, No. 06-5911, 2007 W L 1303000, at *23 (D.N.J. May 3, 2007) (finding th a t mandamus need not issue to require immigration officials to adjudicate a visa c la im because "[d]efendants have no clear duty to perform a ministerial act for P l a i n t if f s . " ) . T h e court agrees with those courts which have found that no ministerial duty to adjudicate applications under the Immigration and Nationality Act because the d e c is io n on whether to grant the application is discretionary and the statute does not p re s c rib e a time period in which that decision must be made. See, e.g., Liu v. C h e rto ff No. 07-3452, 2007 W L at *6 (D.N.J. April 30, 2008) (finding that "the p e rm is s ive `may' in the statute [8 U.S.C. § 1255(a)] commits that adjustment of an a p p lic a n t's status, including the pace of the process, to the sound discretion of the A tto r n e y General."); Da Silva v. Gonzales, No. 07-2278, 2008 W L at *6 (D.N.J. M a rc h 26, 2008) (finding that "the INA clearly states that the adjudication of I-485 a p p lic a tio n s lies in the discretion of the Attorney General, and that such adjudication is not reviewable by this Court."). Federal regulations related to wavier under that s e c tio n of the INA also do not prescribe a time period in which the decision must be m a d e . See 8 C.F.R. § 212.4. Accordingly, the timing of the adjudication on p la in tiff's application is discretionary, and no writ of mandamus can issue to compel 9

a decision. W h ile the court's ruling may seem harsh to the petitioner, who seeks entry to th e United States to pursue a court claim for violation of his rights while detained by th e United States, the court finds that other factors make this ruling both fair and n e c e s s a ry . First, the court's ruling does not preclude petitioner from seeking relief fro m the court where he filed his civil cases. His inability as of yet to enter the c o u n try almost certainly represents good cause to reschedule hearings on his cause o f action. Second, petitioner may obtain the relief he seeks from the defendants a fte r they process his application. In he does not obtain that relief, as explained a b o ve he could not turn to this court for relief anyway. Finally, issuing a writ under th e s e circumstances would circumvent the procedures prescribed in the statute and a llo w the petitioner to jump to the head of the line for consideration of his application. Issuing the writ and ordering a decision on petitioner's application, would be unfair to th o s e who follow the dictates of the statute. See, e.g., Qui, 486 F.Supp.2d at 420 (fin d in g that "[w]hen, as here, the Court lacks power to review the ultimate agency d e c is io n and the agency's cases are backlogged, granting the writ to compel a d ju d ic a tio n would do nothing more than shuffle to the front of the line those I-485 a p p lic a n ts canny enough to file a complaint in federal district court."). T h e court likewise lacks jurisdiction to issue a writ of mandamus altering the d e c is io n of the London consulate to deny petitioner a visa to pursue his lawsuits. As d isc u s s e d above, the INA provides discretionary authority to consular officials to 10

d e te rm in e whether to grant aliens entry to the United States pursuant to 8 U.S.C. § 1 1 8 2 (d )(A ) (3 )(i). The law contemplates those officials providing the Attorney G e n e ra l a recommendation, which the Attorney General has clear discretion to fo llo w or ignore. Since the consular official and the Attorney General have discretion to determine whether petitioner should be granted a visa, no clear magisterial duty e xis ts to provide the visa. Mandamus to the consular official is therefore in a p p ro p ria te here as well. If petitioner desires to appeal the consular decision, he h a s other means to do so. Conclusion F o r the reasons stated above, the court will deny the petition for a writ of m a n d a m u s . An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA TOSIN ADEGBUJI, Petitioner : No. 3:08cv1714 : : (Judge Munley) v. : : MICHAEL MUKASEY, Attorney : General of the United States, : of America; : MICHAEL CHERTOFF, : Secretary, Department of Homeland : Security; : EMILIO GONZALEZ, Director, United : States Customs and Immigration : Service; : JULIE MYERS, Assistant Secretary, : Immigration and Customs : Enforcement; and : MARIE DAMOUR, Acting Minister, : Consular Affairs, : Respondents : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER AN D NOW, to wit, this 9th day of October 2008 the instant petition for a writ of m a n d a m u s (Doc. 1) is hereby DENIED. The Clerk of Court is directed to CLOSE the c a se . B Y THE COURT: s / James M. Munley JUDGE JAMES M. MUNLEY U n i te d States District Court 12