                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT

                     __________________________

                            No. 01-10921
                     __________________________

OLADIPO A. KALE,
                                              Petitioner-Appellant,

versus


UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE,
NEBRASKA SERVICE CENTER,
                                             Respondent-Appellee.

         ___________________________________________________

             Appeal from the United States District Court
                  For the Northern District of Texas
                            (No. 01-CV-225)
         ___________________________________________________
                              May 10, 2002


Before DUHÉ, DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Appellant Oladipo Kale appeals from the district court’s

dismissal of his petition for mandamus, declaratory, and injunctive

relief for lack of federal subject matter jurisdiction.   We agree

that jurisdiction is lacking over Kale’s request for mandamus, but

disagree that we are divested of jurisdiction over the federal

claims for which Kale seeks declaratory and injunctive relief.

Nevertheless, we conclude that other grounds justify the district

court’s summary dismissal of those claims, and therefore we affirm.



     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
                              I.    FACTS AND PROCEEDINGS

      On     July       20,    2000,        Kale’s       former          employer,      Hyundai

Semiconductor          America      (“Hyundai”),         filed      an    application        with

Immigration and Naturalization Service (“INS”) for a change of

Kale’s nonimmigrant status.1                The INS denied Hyundai’s request on

the ground that Kale was not eligible for a change of status

because his previous immigration status had already expired.                                   See

8   C.F.R.    §    248.1(b).             Thereafter,         Kale   moved       to    reopen    or

reconsider the denial, but the INS declined to reconsider its

decision on the ground that Kale did not have standing as he was

not an “affected party” as defined in 8 C.F.R. §§ 103.5(a)(1)(i)

and 103.3(a)(1)(iii)(B).

      Appearing pro se and proceeding in forma pauperis, Kale filed

this suit against the INS, seeking judicial review of its decision

not   to   reconsider         the    denial      of    change       of    status.       In     his

complaint, Kale asserts that the INS’s denial of his motion for

reconsideration          constituted        an       error    of    law    or    an    abuse    of

discretion        in    that       the    agency       had    misinterpreted           its     own

regulations,           specifically         8    C.F.R.        §§    103.5(a)(1)(i)            and

103.3(a)(1)(iii)(B).             Further, he contends that the INS’s failure

to follow its regulations in denying his motion resulted in a

violation of his due process and equal protection rights.                                    Kale



      1
        Kale previously had a nonimmigrant visa with B-1 status,
meaning he was temporarily visiting the United States for
business, but sought to be reclassified as nonimmigrant H-1B,
which would authorize him to work in a specialty occupation and
to earn a salary. See 8 U.S.C. § 1101(a)(15).

                                                 2
claims an entitlement to relief in the nature of mandamus as well

as declaratory and injunctive relief.

     Before service on the INS, the magistrate judge screened

Kale’s complaint and, citing lack of subject matter jurisdiction,

recommended       that     it    be     dismissed      pursuant    to     28    U.S.C.    §

1915(e)(2)(B)(i).              Agreeing,       the   district     court    adopted      the

magistrate judge’s recommendation and entered judgment accordingly.

This appeal followed.

                                      II.    DISCUSSION

                                A.    Standard of Review

     We   review         the    district       court’s    dismissal       for    lack    of

jurisdiction de novo.           Hager v. NationsBank N.A., 167 F.3d 245, 247

(5th Cir. 1999).          The district court dismissed Kale’s complaint

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), which authorizes the

dismissal    of    an     in    forma       pauperis   complaint     that       the   court

determines to be frivolous.                 A complaint is frivolous if it “lacks

an arguable basis either in law or in fact.”                    Neitzke v. Williams,

490 U.S. 319, 325 (1989); Hickey v. Irving Indep. Sch. Dist., 976

F.2d 980, 981 n.2 (5th Cir. 1992).

     As an initial matter, we note our agreement with the district

court that the Administrative Procedure Act, 5 U.S.C. § 702, does

not, in itself, confer subject matter jurisdiction on the federal

courts.     See Califano v. Sanders, 430 U.S. 99, 107 (1977).                           The

same is true with regard to the Declaratory Judgment Act, 28 U.S.C.

§§ 2201-2202, and Federal Rules of Civil Procedure 57 and 65; an

independent jurisdictional basis must be present before a claim for


                                               3
declaratory and injunctive relief can be entertained.                See, e.g.,

Schilling v. Rogers, 363 U.S. 666, 667 (1960).                  Accordingly, we

turn to the question whether the independent bases for jurisdiction

asserted by Kale provide arguable support for the exercise of

jurisdiction.

                B.   Jurisdiction Under the Mandamus Act

       We first consider Kale’s contention that the Mandamus Act, 28

U.S.C. § 1361, supplies jurisdiction here.             The Mandamus Act vests

district courts with original jurisdiction over “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.”     An extraordinary remedy, mandamus is available only

where the plaintiff has a “clear and certain” right to relief.

Dunn-McCampbell Royalty Interest, Inc. v. National Park Serv., 112

F.3d 1283, 1288 (5th Cir. 1997); Giddings v. Chandler, 979 F.2d

1104, 1108 (5th Cir. 1992).           In addition, for mandamus to issue,

the defendant must owe a duty “so plainly prescribed as to be free

from   doubt”   —    that   is,   a       duty   imposed   by   statute   or    the

Constitution    —    to   perform     a    specific,   nondiscretionary        act.

Giddings, 979 F.2d at 1108.

       In this case, there is no arguable basis for the exercise of

mandamus jurisdiction.       First, Kale has no clear right to relief

because he lacks standing to move for reconsideration.                Under the

applicable regulations, standing to move to reopen or reconsider is

given only to an “affected party,” which is defined as “the person

or entity with legal standing in a proceeding.              It does not include


                                           4
the   beneficiary      of     a    visa        petition.”         8     C.F.R.    §

103.3(a)(1)(iii)(B).         Hyundai was the party recognized to have

standing in the underlying proceeding to change the classification

of Kale’s nonimmigrant visa to H-1B; Kale was not a party to the

original request for an adjustment of status. Although Kale may be

regarded   as    the   beneficiary       of     Hyundai’s    petition,     such   a

beneficiary is not recognized as an “affected party” under the

plain terms of the governing regulation. Accordingly, we find that

the INS properly determined that Kale lacked standing under its

regulations.

      Second, even if Kale could be considered to have standing to

seek reconsideration as an “affected party,” he would not be

entitled to reconsideration in any event.             The regulations clearly

provide that no appeal lies from the denial of an application for

a change of nonimmigrant classification.              Id. § 248.3(g).        Thus,

for this reason as well, Kale lacks a clear right to relief.

      Finally, mandamus is unavailable as Kale does not seek the

performance of a ministerial, nondiscretionary act. The applicable

regulations     clearly     vest   the       appropriate    INS   official    with

discretion in deciding whether to reconsider or reopen a matter:

8 C.F.R. § 103.5(a)(1)(i) provides that, upon a motion to reopen or

reconsider, the official “may, for proper cause shown, reopen the

proceeding or reconsider the prior decision.”               Mandamus cannot be

used to compel the performance of such a purely discretionary act.

Therefore, it is patently clear that there is no arguable basis

supporting the exercise of mandamus jurisdiction.                     The district


                                         5
court   properly      held    that     28   U.S.C.   §   1361   does    not   convey

jurisdiction here.

                   C.    Federal Question Jurisdiction

      We now turn to the question whether federal courts possess

jurisdiction to grant Kale injunctive and declaratory relief with

regard to his claims under the APA and his due process and equal

protection claims.           The district court concluded that it lacked

subject matter jurisdiction over Kale’s claims for injunctive and

declaratory relief because judicial review was barred by 8 U.S.C.

§ 1252(g).   We disagree.

      Under 8 U.S.C. § 1252(g), “no court shall have jurisdiction to

hear any cause or claim by or on behalf of an 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.”              The district court considered the

application for adjustment of status to be an application for

adjudication of an immigration claim and thus found that the

statute divested it of jurisdiction. However, in Reno v. American-

Arab Anti-Discrimination Committee, 525 U.S. 471, 482 (1999), the

Supreme Court narrowly construed 8 U.S.C. § 1252(g), stating that

it does not cover “the universe of deportation claims” but applies

only to “three discrete events along the road to deportation.”                   For

purposes of this case, American-Arab instructs that the three

jurisdiction-stripping events listed in the statute — the decisions

to commence proceedings, to adjudicate cases, and to execute

removal orders — represent “the initiation or prosecution of


                                            6
various stages in the deportation process.”      Id. at 483.   The

applicability of § 1252(g) in this case is thus doubtful because

there is no indication in the record that the actions taken by the

INS were part of deportation proceedings; indeed, there is no

indication that deportation proceedings have been initiated against

Kale.    The mere fact that deportation proceedings might later be

initiated against Kale does not bring this case within narrow reach

of § 1252(g).

     Neither does 8 U.S.C. § 1252(a)(2)(B)(ii) strip the court of

jurisdiction to consider Kale’s federal claims.       That statute

insulates from judicial review any “decision or action of the

Attorney General the authority for which is specified under this

subchapter to be in the discretion of the Attorney General.”   Kale

seeks review of the INS’s denial of his request to reconsider its

ruling as to Kale’s eligibility for a status change.2     Although

that decision is a discretionary one, 8 C.F.R. § 103.5(a)(1)(i),

there is no provision in the relevant subchapter that vests the

Attorney General with such discretionary authority.   Accordingly,

we decline to hold that § 1252(a)(2)(B)(ii) deprives the district

court of jurisdiction to consider the denial of a motion to reopen.



     2
        Curiously, if Kale were challenging the INS’s underlying
decision — its denial of Hyundai’s request to change Kale’s
nonimmigrant visa status — the statute would bar the exercise of
federal jurisdiction here: 8 U.S.C. § 1258, which is within the
subchapter, leaves the decision to change a nonimmigrant’s status
to the discretion of the district court and therefore such
decisions are not subject to judicial review under §
1252(a)(2)(B)(ii). See Prado v. Reno, 198 F.3d 286, 291 (1st
Cir. 1999) (discussing this scenario).

                                 7
     Although   the   district    court    erroneously   dismissed   Kale’s

federal   claims   for   lack    of   subject   matter   jurisdiction,   we

nevertheless conclude that its dismissal of Kale’s complaint was

justified on other grounds. See Bickford v. International Speedway

Corp., 654 F.2d 1028, 1031 (5th Cir. Unit B Aug. 1981) (stating

that a dismissal may be upheld on alternative grounds).         Kale’s APA

claim as well as his constitutional claims are based solely upon

his allegation that the INS either misinterpreted or failed to

follow its regulations relative to standing.         But because we have

found that the INS properly applied the governing regulations,

there is no arguable basis in law for Kale’s remaining claims.           The

district court properly dismissed Kale’s complaint.

                           III.       CONCLUSION

     For the foregoing reasons, the judgment of the district court

is AFFIRMED, albeit on alternative grounds.




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