Opinion
Case No. 02-1226-JTM
December 3, 2003
ORDER AND MEMORANDUM
This matter comes before the court on the defendant's motion to dismiss, or alternatively, motion for summary judgment (Dkt. No. 15). In this case, the plaintiff seeks prospective injunctive and declaratory relief against the U.S. Department of Homeland Security, Bureau of Citizenship Immigration Services, formerly known as the Immigration and Naturalization Service and requests an order requiring the INS to process his application for adjustment to permanent status under the Nicaraguan Adjustment and Central American Relief Act (NACARA). The motion is fully briefed and ripe for disposition. For the reasons set forth below, the court grants the defendant's motion to dismiss.
I. Statement of Facts
The plaintiff, Eloy Rios, alleges he is a native of Nicaragua. On March 27, 2000, the Immigration and Naturalization Mesquite Texas Servicing Center received and date-stamped three (3) Form 1-485 applications to register Permanent Residence or Adjust Status under NACARA for the plaintiff, Eloy Rios, his wife, Gloria Delgado, and his 19 year-old son, Jose Felix-Martinez. The original I-485 applications were submitted on Form I-485 with a revision date of September 9, 1992. The plaintiff's original applications for himself and his family members had attached a single check in the amount of $580.00. All three applications and the check were submitted in a single parcel mailing. The originally submitted applications did not include the correct filing fee. The application fee for each I-485 application to register Permanent Residence or Adjust Status under NACARA was $245.00 per individual over the age of 14.
The Mesquite Texas Servicing Center rejected the plaintiff's application to register Permanent Residence or Adjust Status under NACARA because the plaintiff did not include the proper filing fee of $245.00 per individual applying for adjustment of status. The Mesquite Texas Servicing Center informed the plaintiff in writing by way of Rejection Notice dated April 13, 2000, that his application would not be assigned a priority or processing date because the case was not properly filed.
The plaintiff resubmitted an application to register Permanent Residence or Adjust Status under NACARA after April 1, 2000. The plaintiff resubmitted an application to register Permanent Residence or Adjust Status under NACARA, which was received and date-stamped by the Mesquite Texas Servicing Center on September 12, 2000. The Mesquite Texas Servicing Center rejected the plaintiff's resubmitted application because it was received after the March 31, 2000 filing deadline.
The plaintiff again resubmitted an application to register Permanent Residence or Adjust Status under NACARA, which was received and date-stamped by the Mesquite Texas Servicing Center on August 27, 2001. The Mesquite Texas Servicing Center rejected plaintiff's resubmitted application because it was received after the March 31, 2000 filing deadline.
The plaintiff did not apply for, nor was he granted a waiver of filing fee with regard to his I-485 applications for adjustment under NACARA. The deadline for receipt of a proper application to Adjust Status under NACARA was prior to April 1, 2000.
II. Analysis
The defendant moves to dismiss the plaintiff's claim under Fed.R.Civ.P. 12(b)(1), 12(b)(6), or alternatively for summary judgment pursuant to Fed.R.Civ.P. 56. The defendant argues that the plaintiff failed to file a proper application prior to NACRA's filing deadline.
The court finds that subject matter jurisdiction does not exist for the plaintiff's claim, since the plaintiff failed to establish a clear right to relief. The plaintiff alleges that he attempted to file an application for permanent residency under NACARA. Now, the plaintiff requests a writ of mandamus and an order requiring the INS to process his application. "In order to be entitled to mandamus relief, the plaintiff must establish (1) a clear right to the relief requested; (2) that the duty owed is peremptory; and (3) that no other adequate remedy is available." Wang v. Reno, 2001 WL 1150343 *1 (S.D.N.Y. 2001) (citing Heckler v. Ringer, 466 U.S. 602, 616-17 (1984)). The Mesquite Texas Servicing Center rejected the plaintiff's application for failure to include the correct filing fee and, it is uncontested that the originally submitted applications did not include the correct filing fee. The deadline for receipt of a proper application to Adjust Status under NACARA was prior to April 1, 2000. 8 C.F.R. § 245.13(g). The plaintiff failed to file a complete and correct application prior to this deadline. Accordingly, he failed to establish a clear right to relief and the court lacks subject matter jurisdiction over his claim. See also Wang, 2001 WL 1150343 at *1 (finding that the as the petitioner "has not filed a complete and correct petition with the INS, she has failed to meet the first prong of the test for mandamus relief. This Court therefore lacks subject matter jurisdiction under the Mandamus Act.").
Although the plaintiff resubmitted his application after the statutory deadline, this does not aid his claim. INS v. Pangilian, 486 U.S. 875, 883-85 (1988) (court lacked power to confer citizenship to war veterans after statutory deadline for applications expired).
The plaintiff argues that he is entitled to relief on the basis of equitable estoppel. He alleges that his rejection notice from the INS led him to believe that his application could be resubmitted after the filing deadline. "Equitable estoppel does not lie against the government in the same manner as it does against private litigants." Kowalczyk v. INS, 245 F.3d 1143, 1149 (2001) (citing Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 419 (1990)). Furthermore, "Supreme Court jurisprudence establishes that estoppel against the government in the immigration context has a particularly high bar." Id. at 1150. In U.S. v. Murwin, 1990 WL 254984 * 2 (D. Kan. 1990), the court discusses equitable estoppel claims against the government:
In order to establish equitable estoppel against the federal government, a defendant must prove that the government actively engaged in "affirmative misconduct." Affirmative misconduct must be more than negligence, and mere unexplained delay does not show misconduct. Even affirmative misconduct will not estop the government unless the government's wrongful conduct threatened to work a serious injustice and the public's interest would not be unduly damaged by imposition of estoppel.
(internal citations omitted). The court finds the plaintiff fails to establish any affirmative misconduct on the part of the government. The rejection notice stated that the plaintiff's application would not retain a filing or priority date as provided by INS regulation. The rejection notice demonstrates no misconduct on the part of the INS.
IT IS THEREFORE ORDERED this 3rd day of December, 2003 that the court grants the government's motion to dismiss (Dkt. No. 15).