DESMOND WHYTE v. DEPARTMENT OF HOMELAND SECURITY ET AL (2022)

RULING GRANTING THE PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND RECOMMENDING DISMISSAL WITHOUT PREJUDICE TO RE-FILE

On July 26, 2022, the petitioner, Desmond Whyte, a self-represented petitioner who was deported to Jamaica in 2000 and again in 2010, filed a Petition for Writ of Mandamus pursuant to 28 U.S.C. § 1361, seeking “immediate ‘return’ to the United States.” (Doc. No. 1 at 1). The plaintiff also filed a Motion for Leave to Proceed in Forma Pauperis. (Doc. No. 2).

On August 25, 2022, United States District Judge Charles S. Haight, Jr., referred to the undersigned the petitioner's Motion to Proceed in Forma Pauperis (Doc. No. 2) and the initial review of the Writ of Mandamus (Doc. No. 1) pursuant to 28 U.S.C. § 1915. (Doc. No. 4).

It appears from the Writ of Mandamus that the petitioner was twice deported to Jamaica, most recently on December 30, 2010. (Doc. No. 1 at 3-4). The petitioner seeks a declaration from the Court that the respondents’ refusal to facilitate his return to the United States amounts to a violation of his rights under federal law, as well as an order directing the respondents to facilitate his prompt return to the United States. (Id. at 10).

For the reasons set forth below, the Court respectfully recommends that the plaintiff's Motion to Proceed in Forma Pauperis (Doc. No. 2) be GRANTED, and that the Writ of Mandamus (Doc. No. 1) be DISMISSED without prejudice to re-file.

I. LEGAL STANDARD

This matter is before the Court to decide the petitioner's Motion for Leave to Proceed in Forma Pauperis (Doc. No. 2) pursuant to 28 U.S.C. § 1915, which provides, in pertinent part:

[A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that ․ [she] is unable to pay such fees or give security therefor.

28 U.S.C. § 1915(a)(1).

The same statute that authorizes the Court to grant in forma pauperis status to a plaintiff also contains a provision that protects against the abuse of this privilege. Subsection (e) provides that the Court “shall dismiss the case at any time if the court determines that ․ the action ․ (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

II. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The petitioner filed his motion along with a standard form “Financial Affidavit in Support of Motion for Leave to Proceed in Forma Pauperis Pursuant to 28 U.S.C. § 1915” and a transaction record from his bank account showing a balance of 205.62 Jamaican Dollars (“JMD”)¹ as of July 12, 2022. (Doc. No. 2 at 2-6). Based on a review of these documents, the Court concludes that the petitioner has demonstrated an inability to pay for the commencement of this action and GRANTS the plaintiff's Motion to Proceed in Forma Pauperis. (Doc. No. 2).

III. REVIEW OF THE MERITS OF THE PETITION

Turning to the merits of the petition, the Court finds that the petitioner has not met the requirements for the issuance of a writ of mandamus. Stated otherwise, the petitioner has failed to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).

The declaratory judgment statutes are not an independent basis for subject-matter jurisdiction in federal court. 28 U.S.C. §§ 2201-02; see Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950). Unless the petitioner's claim involves a federal question, no subject-matter jurisdiction exists.

Invoking the mandamus statute does not cure this problem. “Mandamus is an extraordinary remedy, which absent compelling circumstances, normally should not issue.” Day v. Maldonado, 3:12-CV-802 (AWT), 2013 WL 2358669 (D. Conn. May 29, 2013) (citing Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (“The Court has repeatedly observed that the writ of mandamus is an extraordinary remedy, to be reserved for extraordinary situations.”)). The federal mandamus statute provides that “the district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. The Supreme Court has held that the extraordinary remedy of mandamus should only issue when a plaintiff “has exhausted all other avenues of relief and the defendant owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984) (citations omitted). The Second Circuit requires that three elements be satisfied before a writ of mandamus may issue: “(1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and peremptory duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available.” Lovallo v. Froehlke, 468 F.2d 340, 343 (2d Cir. 1972), cert. denied, 411 U.S. 918 (1973) (citations omitted).

Matters within the discretion of Immigration and Customs Enforcement (“ICE”) are not reviewable under the mandamus statute. See Hsieh v. Kiley, 569 F.2d 1179, 1182 (2d Cir. 1994) (holding that district court does not have jurisdiction under the Administrative Procedure Act or mandamus statute to compel the government to pursue inquiry into rescinding alien's status since matter is within the government's sole discretion). Here, the petitioner's request for a writ of mandamus suffers from two insurmountable hurdles.

First and most importantly, the petitioner cannot show that he has “no other adequate remedy available,” Lovallo, 468 F.2d at 343, because he has not exhausted all available remedies. His underlying immigration case now sits with Immigration Judge (“IJ”) Philip Verrillo. On February 2, 2021, the Department of Homeland Security filed a Motion to Dismiss Without Prejudice the 1991 Order to Show Cause and the 2010 Notice to Appear, pursuant to which the petitioner was twice removed from the United States. (Doc. No. 16-18). The petitioner opposed the government's motion in filings dated May 18, 2021, and November 12, 2021. (Doc. No. 1 at 5-6 and 35-52). Based on the information contained in the petitioner's request for a writ of mandamus, it appears that the IJ has yet to issue a ruling on the pending Motion to Dismiss. (See Doc. No. 1 at 6). Until the IJ renders a decision on the government's motion, the petitioner has not exhausted all adequate remedies available to him.²

Second, the petitioner has failed to demonstrate how the respondent has “a plainly defined and peremptory duty ․ to do the act in question.” Lovallo, 468 F.2d at 343. Although the petitioner asserts that “ICE ha[s] a clear and unequivocal duty” to perform the action that he requests, the petitioner offers no legal support for this assertion. There is a difference between the petitioner claiming that because the prior deportation orders have been vacated, he can return to this country and lawfully reside here as a permanent resident, and what he apparently seeks in this action, which is a court order directing a government agency to transport him from Jamaica to the United States.

A. Administrative Procedure Act

In support of his request for a writ of mandamus, the petitioner cites the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551, et seq.

The APA itself does not confer jurisdiction on a district court to review the decision of an administrative agency. See Califano v. Sanders, 430 U.S. 99, 107 (1977); Clark v. Commodity Futures Trading Commission, 170 F.3d 110, 133 n.1 (2d Cir. 1999); B.K. Instrument, Inc. v. United States, 715 F.2d 713, 723 (2d Cir. 1983). Although there is a presumption favoring judicial review of agency actions, it may be overcome if a statutory scheme indicates that Congress intended to preclude judicial review. See Block v. Community Nutrition Institute, 467 U.S. 340, 349 (1984); Dew v. United States, 192 F.3d 366, 371-72 (2d Cir. 1999). Under 5 U.S.C. § 701(a)(2), the APA does not apply “to the extent that ․ agency action is committed to agency discretion by law.” “[W]here a decision is committed to agency discretion, ‘review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion.’ ” Dina v. Attorney General, 793 F.2d 473, 476 (2d Cir. 1986) (quoting Heckler v. Cheney, 470 U.S. 821, 830 (1985)); see also Lincoln v. Vigil, 508 U.S. 182, 190-91 (1993); Marlow v. U.S. Dept. of Education, 820 F.2d 581, 582 (2d Cir. 1987) (per curiam).There is a well-established statutory and regulatory procedure for administrative review of an IJ's deportation decision by the Board of Immigration Appeals (“BIA”) and for judicial review of the BIA's decision by the District Court and the Second Circuit. The APA does not confer jurisdiction on the district court to act where, as here, there is a clear process for judicial review already in place.

B. Immigration and Nationality Act

Despite the petitioner's claim, the Court does not have subject matter jurisdiction to review his claim under the Immigration and Nationality Act's jurisdiction statute, 8 U.S.C. § 1329. This section states, in relevant part, that it shall not “be construed as providing jurisdiction for suits against the United States or its agencies or officers.” 8 U.S.C. § 1329. Although this Court has general jurisdiction to review ICE's actions, it lacks jurisdiction to compel ICE to act in matters that are clearly within ICE's own discretion, particularly where there has been no final determination by the administrative agency. See Howell v. INS, 72 F.3d 288 (2d Cir. 1995) (requiring petitioner to exhaust administrative remedies before seeking review in district court pursuant to 8 U.S.C. § 1329). Here, the IJ does not appear to have issued a decision on the government's Motion to Dismiss Without Prejudice. Should the IJ issue a ruling that is adverse to the petitioner, the petitioner could then seek review of the IJ's ruling by the BIA. While the procedural history of this case is lengthy, it demonstrates how immigration cases are meant to be handled under the controlling statutes and regulations, which require administrative review by an immigration judge and the BIA before judicial review in the District Court and the Second Circuit.

C. Fifth Amendment Due Process Clause

The petitioner also seeks relief pursuant to the Fifth Amendment Due Process Clause and argues that this Court has subject-matter jurisdiction over his claim pursuant to 28 U.S.C. § 1331 on the basis that it involves a federal question. The Court disagrees. The Second Circuit has held that “[f]ederal question jurisdiction generally exists only when a well-pleaded complaint raises an issue of federal law on its face.” Smith v. Dunham-Bush, Inc., 959 F.2d 6, 8 (2d Cir. 1992) (citing Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-10 (1983)). Since the IJ has not yet issued a decision on the government's Motion to Dismiss, the petitioner has not been deprived of his right to due process. Moreover, there is a well-settled procedure for challenging an IJ's ruling at the administrative level before seeking judicial review. There is no authority to suggest that this Court is empowered under the Fifth Amendment Due Process Clause to order a federal agency to transport the petitioner from Jamaica to the United States.

IV. CONCLUSION

For the reasons stated above, the Court respectfully recommends that the petitioner's Motion for Leave to Proceed in Forma Pauperis (Doc. No. 2) be GRANTED and that the Writ of Mandamus (Doc. No. 1) be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) without prejudice to re-file. If the petitioner wishes to pursue his claims further, then he must first exhaust all available administrative remedies and address the jurisdictional issues raised in this recommended ruling. Upon doing so, the petitioner may then file an amended complaint that sets forth a clear statement of his claims, together with an explanation of the basis for those claims, on or before October 31, 2022. Any amended complaint must comply with the Federal and Local Rules of Civil Procedure and must be captioned “Amended Complaint.” The amended complaint will completely supersede the current complaint.

This is a recommended ruling. See Fed. R. Civ. P. 72(b)(1). Any objections to this recommended ruling must be filed with the Clerk of the Court within 14 days. See Fed. R. Civ. P. 72(b)(2); D. Conn. L. Civ. R. 72.2(a). A party receiving notice of a recommended ruling from the Clerk by mail shall have five (5) additional days within which to file an objection. See id. Failure to file a timely objection will preclude appellate review. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e); D. Conn. L. Civ. R. 72.2; Impala v. United States Dept. of Justice, 670 F. App'x 32 (2d Cir. 2016) (summary order) (failure to file timely objection to Magistrate Judge's recommended ruling precludes further appeal to Second Circuit).

SO ORDERED at New Haven, Connecticut, on this 15th day of September 2022.

FOOTNOTES

1.   Applying the conversion rate as of September 15, 2022, 205.62 JMD equals 1.35 USD.

2.   Should the IJ grant the government's Motion to Dismiss Without Prejudice, that ruling is subject to administrative review by the Board of Immigration Appeals (“BIA”). Once the BIA has issued a final decision on the administrative appeal, that ruling is subject to judicial review. The petitioner successfully navigated the administrative and judicial review processes in the past when, in 2018, he appealed the BIA's denial of his motion to reopen his deportation proceedings to the Second Circuit.

Robert M. Spector United States Magistrate Judge