United States District Court, D. New Jersey
September 22, 2005.
Gonzalez et al.,
The opinion of the court was delivered by: WILLIAM MARTINI, District Judge
This matter comes before the Court on respondents' motion to
dismiss petitioner's complaint for failure to state a claim or,
in the alternative, summary judgment. Petitioner, Lendina
Barushi, petitioned this Court for a writ of mandamus to direct
respondents to process her Refugee/Asylum Relative Petition
(I-730), Application to Adjust Status (I-485), Work Authorization
(I-765), and Refugee Travel Document (I-131) under the
Administrative Procedure Act (5 U.S.C. § 551 et seq.) and the
Madamus Act (28 U.S.C. § 1361).
I. Standard of Review
Fed.R.Civ.P. 12(b) states that if, on a Rule 12(b)(6)
motion, "matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56." Since
adjudication of respondents' motion necessarily requires this
Court to view matters outside the pleadings, it shall be treated
as a motion for summary judgment. Summary judgment is appropriate if there is no genuine issue as
to any material fact and the moving party is entitled to a
judgment as a matter of law. See FED. R. CIV. P. 56. Rule 56(e)
requires that when a motion for summary judgment is made, the
nonmoving party must set forth specific facts showing that there
is a genuine issue for trial. See id.; see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). The mere existence of
some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment. Only
disputes over facts that might affect the outcome of the lawsuit
under governing law will preclude the entry of summary judgment.
See Anderson, 477 U.S. at 247-48. If the evidence is such that
a reasonable fact-finder could find in favor of the nonmoving
party, summary judgment should not be granted. See id.; see
also Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
II. Denial of Petitioner's Refugee/Asylum Relative Petition
Petitioner claims that respondents failed to comply with §
555(b) of the Administrative Procedure Act ("APA"). This Court
has jurisdiction to review agency actions under this section
pursuant to § 706 of the APA.
Section 706(2)(A) requires a petitioner to demonstrate that
respondents' actions were "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law."
5 U.S.C. § 706(2)(A). "When a party challenges an agency action as
arbitrary and capricious, the reasonableness of the agency's
actions is judged in accordance with its stated reasons."
Allegheny Def. Project, Inc. v. U.S. Forest Service, No.
04-2442, U.S. App. LEXIS 19827, at *42 (3d. Cir. Sep. 15, 2005)
(citation omitted). "Moreover, we can assess the facts and
evidence of record; we cannot speculate about the agency's
ulterior motives to an extent not supported by the record." Id.
(citation omitted). Additionally, this court will assess factual
determinations made by respondents under the substantial evidence
standard. Havrylenko v. A.G. of the United States, No. 04-3144,
2005 U.S. App. LEXIS 19798, at *8 (3d Cir. Sep. 13 2005)
("Whether an applicant qualifies for asylum . . . is generally a
factual determination, which this court will review under the
substantial evidence standard.")
The crux of whether the CIS improperly denied petitioner's
application for asylum depends on whether petitioner was married
to the principal applicant (i.e., petitioner's husband) at the
time he received asylum. See 8 C.F.R. § 208.21(b). It was the
burden of the petitioner's husband to prove that a marriage
between him and petitioner existed at the time he received
asylum. See id. at § 208.21(f). Petitioner's husband submitted
to the CIS (then "INS") a "Certificate of Marriage" and attendant
documents allegedly produced by the government of Tirana,
Albania. The creation date of these documents was approximately
one month after petitioner's husband received asylum.
Furthermore, according to the CIS, the certificate appears to
arbitrarily set petitioner's date of marriage as November 20,
1991. There is no corroborating evidence, besides petitioner's
husband's own testimony that he and petitioner were married on
that date, to support the date of marriage listed on the
certificate. The CIS afforded petitioner's husband an opportunity to
respond. In his response, he provided a letter from an individual
claiming to be employed by the city hall of Tirana, Albania,
confirming the date of marriage as November 20, 1991. According
to the CIS, this letter was not deemed credible because it
referred to a marriage license, but contained no copy of such a
document. The letter also did not state what position the
signatory held, nor his qualifications in making the
determination contained therein. The CIS also felt that the
documents were not credible because petitioner had a history of
saying that she was unmarried on immigration documents.
Petitioner explained this pattern by saying that she "did not
think she could marry a second time in the [United] States" and
because "without proof of marriage, she filed as unmarried." The
CIS felt that the explanation was mere pretext.
Under the very deferential standard of "substantial evidence,"
it would be inappropriate for this court to second-guess the
credibility determinations of the CIS in processing petitioner's
application, which found that the marriage certificate and
attendant documents did not adequately set the date of marriage
as occurring at or before petitioner's husband's receipt of
asylum. Furthermore, based upon the CIS's factual determinations,
this court cannot say that the CIS acted in an arbitrary or
capricious manner in denying petitioner's I-730 application.
III. Denial of Application to Adjust Status (I-485), Work
Authorization (I-765), and Refugee Travel Document (I-131)
Petitioner challenges the denial of her applications for
Adjustment of Status (I-485), a Refugee Travel Document (I-131),
and Work Authorization (I-765). Each of these applications,
however, require the granting of petitioner's Refugee/Asylum
Relative Petition (I-730). See, respectively,
8 C.F.R. §§ 209.2, 223.2(2)(b)(2), 208.21(c), and 274a.12(a). Therefore,
since respondents' denial of petitioner's I-730 application was
not arbitrary and capricious (see supra Part II), respondents
were not arbitrary and capricious in denying petitioner's I-485,
I-131, and I7-65 applications.
IV. Availability of Mandamus Relief
Petitioner also asks this Court to use its mandamus
jurisdiction to compel the CIS to process her various
applications. "Mandamus is an extraordinary remedy available only
if the plaintiff has exhausted all other avenues of relief and
only if the defendants owe him a clear, non-discretionary duty."
Wakefield v. Barnhart, No. 05-2133, 2005 U.S. App. LEXIS 19315,
at *3 (3d Cir. Sep. 7, 2005) (citing Ringer v. Heckler,
466 U.S. 602, 616 (1984)). Asylum is a discretionary determination on
the part of the INS. Bakhtriger v. Elwood, 360 F.3d 414, 417
(3d Cir. 2004). Therefore, this Court cannot grant petitioner's
petition for a writ of mandamus regarding her Refugee/Asylum
Relative Petition. Furthermore, this Court cannot grant mandamus
relief regarding petitioner's Application to Adjust Status, Work
Authorization, and Refugee Travel Document since those benefits
are contingent upon her being granted asylum. See supra Part
III. V. Conclusion
Accordingly, for the foregoing reasons, respondents' motion for
summary judgment to dismiss the petitioner's complaint is
An appropriate Order accompanies this Letter Opinion.
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