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Chapinski v. Ziglar

January 28, 2002

JADWIGA CHAPINSKI, ELZBIETA LICHOSYT, AND MALGORZATA CZAJKOWSKA-KRAS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
JAMES ZIGLAR, COMMISSIONER OF THE UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE; JOHN D. ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES; AND BRIAN PERRYMAN, DISTRICT DIRECTOR OF THE CHICAGO DISTRICT OFFICE OF IMMIGRATION AND NATURALIZATION SERVICE, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 C 4395--Charles R. Norgle, Sr., Judge.

Before Bauer, Harlington Wood, Jr. and Manion, Circuit Judges.

The opinion of the court was delivered by: Bauer, Circuit Judge.

Argued November 27, 2001

Appellants filed a petition for writ of mandamus, asking the district court to order the Attorney General and the Immigration and Naturalization Service (INS) to adjudicate their applications for permanent resident status. The district court dismissed the petition for lack of subject matter jurisdiction pursuant to the Immigration and Nationality Act, which precludes jurisdiction in certain matters involving the discretion of the United States Attorney General. Because we agree that jurisdiction over this matter rests exclusively with the Attorney General, we affirm the decision of the district court.

I. BACKGROUND

Section 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) allows nationals from Guatemala, El Salvador and former Soviet bloc countries to apply for discretionary relief from deportation under more relaxed terms than is otherwise required under immigration laws. The benefits provided under NACARA extend to spouses and children of qualifying individuals as well.

Appellants are nationals of former Soviet bloc countries and seek to obtain lawful permanent resident status. Appellants themselves are not eligible as principal applicants for permanent resident status; their eligibility derives from their spouses, who have been granted suspension of deportation and lawful resident status in immigration proceedings under NACARA. The INS declined to consider Appellants' applications because it lacked jurisdiction. Under the applicable regulations, since Appellants' respective spouses were granted suspension of deportation by the Immigration Court in deportation proceedings, only the Immigration Court, and not the INS, has jurisdiction to adjudicate Appellants' applications.

Appellants filed a class action suit under the Declaratory Judgment Act and the Administrative Procedure Act. Appellants' complaint sought mandamus, declaratory and injunctive relief to compel the Attorney General and the INS to accept and process their applications under NACARA to obtain lawful permanent resident status. The district court dismissed the action for lack of subject matter jurisdiction because section 1252(g) of the Immigration and Nationality Act precludes judicial review of the Attorney General's discretion to commence removal proceedings in order to process the applications. Appellants now appeal that judgment.

II. DISCUSSION

The sole issue in this appeal is whether the district court erred in dismissing Appellants' complaint. We review the district court's dismissal of a complaint for lack of subject matter jurisdiction de novo. Bhatt v. Reno, et al., 204 F.3d 744, 746 (7th Cir. 1999).

Under the applicable statutory and regulatory framework, the INS can only determine whether an applicant is eligible for the discretionary grant of suspension of deportation or cancellation of removal in deportation or removal proceedings. 8 C.F.R. sec. 240.62(b) (2001). The Immigration and Nationality Act grants the Attorney General exclusive jurisdiction over any decision to commence removal proceedings and expressly precludes federal court jurisdiction over any action implicating a decision of the Attorney General regarding commencement of removal proceedings. Section 1252(g) of this act reads:

Except as provided in this section and notwithstanding any other provision of law, no court shall 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 commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. 8 U.S.C. sec. 1252(g).

In Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ("AADC"), the United States Supreme Court emphasized that Congress clearly intended to bar judicial review of a decision to commence removal proceedings, stating that the purpose of section 1252(g) is to "give some measure of protection . . . to discretionary determinations" of the Attorney General, and to prevent "separate rounds of judicial intervention outside the streamlined process that Congress has designed." Id. at 485. If judicial review of a decision to commence proceedings is barred, it follows that section 1252(g) also precludes judicial review of the Attorney General's decision not to commence removal proceedings. Alvides-Reyes v. Reno, 180 F.3d 199, 205 (5th Cir. 1999).

Appellants insist that the federal court retains jurisdiction over their complaint because they are not explicitly asking the court to order the Attorney General to initiate proceedings against them; they simply want their applications processed. Appellants' request, however, necessarily compels the Attorney General to commence proceedings in order to consider their applications. Appellants' suit calls on us to reverse the Attorney General's exercise of his discretion not to commence proceedings against Appellants and not to process their applications. Id. The Supreme Court has stated that the intent of Congress in enacting section 1252(g) was to limit any judicial influence on the Attorney General's decisions regarding the commencement of removal proceedings. AADC, 525 U.S. at 485. Appellants can have their applications for lawful resident status adjudicated when and if removal proceedings are instituted against them by the Immigration Court. Before such proceedings are initiated, however, this ...


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