14-2945-cv
H.M.G. v. Johnson


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 9th day of April, two thousand fifteen.

PRESENT: CHESTER J. STRAUB,
                 ROBERT D. SACK,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
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H.M.G., H.L.G., KELLY RUTHERFORD,

                                 Petitioners-Appellants,

                        v.                                               No. 14-2945-cv

SECRETARY JEH JOHNSON, U.S. Department of Homeland
Security, in his official capacity as well as his successors
and assigns, ATTORNEY GENERAL ERIC H. HOLDER, JR., in
his official capacity as well as his successors and assigns,
U.S. Department of Justice, DIRECTOR LEON RODRIGUEZ,
U.S. Department of Homeland Security, U.S. Citizenship
and Immigration Services, in his official capacity, as well
as his successors and assigns, NEW YORK CITY DIRECTOR
PHYLLIS COVEN, New York City Field Office, U.S.
Department of Homeland Security, U.S. Citizenship and


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Immigration Services, in her official capacity, as well as
her successors and assigns,

                                 Respondents-Appellees.
----------------------------------------------------------------------

FOR PETITIONERS-APPELLANTS:                              WENDY MURPHY, Director, Women’s and
                                                         Children’s Advocacy Project, Center for
                                                         Law and Social Responsibility at New
                                                         England Law | Boston, Boston, MA (James
                                                         R. Marsh, Marsh Law Firm PLLC, White
                                                         Plains, NY, on the brief).

FOR RESPONDENTS-APPELLEES:                               JACOB M. BERGMAN, Assistant United
                                                         States Attorney (Benjamin H. Torrance,
                                                         Assistant United States Attorney, of
                                                         counsel; Preet Bharara, United States
                                                         Attorney for the Southern District of New
                                                         York, on the brief), United States
                                                         Attorney’s Office for the Southern District
                                                         of New York, New York, NY.

       Appeal from an August 15, 2014 memorandum and order of the United States
District Court for the Southern District of New York (Carter, J., sitting in Part I).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the district court is AFFIRMED.

       This appeal arises in connection with the dissolution of a marriage and the
subsequent custody and welfare of the children of that marriage. The issues that
Petitioners seek to raise are thus of grave importance and sensitivity. We deeply
sympathize with the plight of these parents and their children. However, we are plainly
without authority to address these questions in this proceeding.

       Petitioners, a U.S. citizen mother and her two minor, U.S. citizen children, filed a
mandamus petition and request for a preliminary injunction against the heads of various
federal agencies involved with citizenship and removal responsibilities. The district court
dismissed the petition for lack of subject matter jurisdiction and observed that, even if
jurisdiction did exist, Petitioners had failed to demonstrate entitlement to preliminary
injunctive relief. This appeal followed.


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       We assume the parties’ familiarity with the underlying facts, the procedural history
of the case, and the issues on appeal.

        We review de novo a district court’s dismissal of a case for lack of subject matter
jurisdiction. See Delgado v. Quarantillo, 643 F.3d 52, 54 (2d Cir. 2011) (per curiam).
Under the mandamus statute, “[t]he 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. In order
for the writ to issue, a petitioner is required to “prove[] that (1) there is a clear right to the
relief sought; (2) the Government has a plainly defined and peremptory duty to perform the
act in question; and (3) there is no other adequate remedy available.” Benzman v.
Whitman, 523 F.3d 119, 133 (2d Cir. 2008) (citing Anderson v. Bowen, 881 F.2d 1, 5 (2d
Cir. 1989)).

        As the district court correctly held, Petitioners have identified neither a clear right to
relief nor a “plainly defined and peremptory duty” on the part of the federal agencies to
intervene in the custody dispute. Petitioners allege that the California state court’s
custody order had the effect of deporting the children in violation of their Fourteenth
Amendment right to remain in the United States.

       There is no authority establishing the unconditional right of minor children to reside
in the United States when one of their custodial parents lives abroad.1 Likewise, there is

1
         In support of the existence of such a right, Petitioners rely in significant part on a District of New Jersey
case—reversed on appeal—in which the deportation of two non-citizen parents was held to effect the unlawful,
constructive deportation of their U.S. citizen child. See Acosta v. Gaffney, 413 F. Supp. 827 (D.N.J. 1976), rev’d, 558
F.2d 1153 (3d Cir. 1977).

          Petitioners contend that, in reversing the outcome in Acosta, the Third Circuit left undisturbed the district
court’s holding regarding the right to remain in the United States. This mischaracterizes the Third Circuit’s ruling.
The Third Circuit first observed that the right at issue was actually the “broader . . . fundamental right of an American
citizen to reside wherever he wishes, whether in the United States or abroad, and to engage in the consequent travel.”
Acosta, 558 F.2d at 1157. The court then explained that “the right is purely theoretical” with respect to minors who
are “incapable of exercising it.” Id. This latter statement was not, as Petitioners contend, aimed solely at children
who lack a guardian in the United States. As the Third Circuit explained, even if the parents had the option of leaving
the child with foster parents, “this would be their decision involving the custody and care of their child, taken in their
capacity as her parents, not an election by [the child] herself to remain in the United States.” Id. at 1158.

           The Northern District of New York’s decision in Perez v. United States, 502 F. Supp. 2d 301 (N.D.N.Y.
2006), also cited by Petitioners, is not to the contrary. In Perez, the petitioner had been unaware of his citizenship
status at the time of his deportation and subsequent conviction for wrongful reentry. Id. at 303-04. The district court
granted his habeas petition on the grounds that, inter alia, U.S. citizens are legally entitled to remain in the United
States and thus cannot be convicted of illegal reentry. Id. at 311. The children here have neither been deported nor
charged with illegal reentry; they have simply been placed in the joint custody of their parents, one of whom resides
abroad.


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no “plainly defined and peremptory duty” requiring Respondents to interfere with the
custody order—nor is there, as Petitioners contend, a general affirmative duty on federal
agencies requiring them to intervene against what is claimed to be unconstitutional state
action. Petitioners effectively concede as much in their brief, as they urge the Court to
“recognize” the duty in light of the “unique and unprecedented facts” of the case. Pet’rs’
Br. at 20-21. But it is well established that federal courts may not impose new duties in
the context of mandamus proceedings. See U. S. ex rel. Int’l Contracting Co. v. Lamont,
155 U.S. 303, 308 (1894) (“The duty to be enforced by mandamus must not only be merely
ministerial, but it must be a duty which exists at the time when the application for the
mandamus is made.”).

       We also affirm the district court’s holding that it lacked federal question jurisdiction
under 28 U.S.C. § 1331. While the jurisdictional inquiry is ordinarily distinct from an
assessment of the viability of the underlying claim, this general principle does not apply
where, as here, the claim is “wholly insubstantial and frivolous.” Bell v. Hood, 327 U.S.
678, 681-83 (1946); Carlson v. Principal Fin. Grp., 320 F.3d 301, 306 (2d Cir. 2003); see
also Hernstadt v. Hernstadt, 373 F.2d 316, 317-18 (2d Cir. 1967).

       Here, as the district court correctly observed, the children have not been deported;
they retain their United States citizenship and, once they reach the age of majority, they
will be free to choose where to reside. There is, therefore, no non-frivolous constitutional
question, only an attempt to seek federal judicial intervention in a state court custody
dispute. Under such circumstances, it would plainly be improper for the federal courts to
assume jurisdiction over the case. See Hernstadt, 373 F.2d at 317-18.

       Because the district court properly dismissed the petition for want of subject matter
jurisdiction, we need not reach the merits of Petitioners’ preliminary injunction
application.

       We have considered Petitioners’ remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the district court’s memorandum and order dismissing
the petition.

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




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