                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-22-2002

M.B. v. Quarantillo
Precedential or Non-Precedential: Precedential

Docket No. 02-2328




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PRECEDENTIAL

        Filed August 22, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 02-2328

M.B.,
        Appellant

v.

ANDREA QUARANTILLO,
IMMIGRATION AND NATURALIZATION SERVICE
       Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civ. No. 02-cv-00463)
District Judge: Honorable John C. Lifland

Audio Teleconference
June 14, 2002

Before: BECKER, Chief Judge, FUENTES, and
WEIS, Circuit Judges.

(Filed: August 22, 2002)




        Blair G. Connelly, Esquire
         (ARGUED)
        Scott Louis Weber, Esquire
        John Ducoff, Esquire
        Latham & Watkins
        One Newark Center, 16th Floor
        P.O. Box 10174
        Newark, New Jersey 07101-3174

        Attorneys for Appellant M.B.

        Peter G. O’Malley, Esquire
         (ARGUED)
        Assistant United States Attorney
        Christopher J. Christie, Esquire
        United States Attorney
        970 Broad Street, Suite 700
        Newark, New Jersey 07102

        Attorneys for Appellees
        Andrea Quarantillo and the
        Immigration and Naturalization
        Service

OPINION OF THE COURT
WEIS, Circuit Judge.

In this appeal we conclude that the Attorney General did
not act arbitrarily or capriciously in denying an alien’s
request to have his dependency status determined by a
state juvenile court. We also conclude that the federal
courts have jurisdiction to review the ruling under the
Administrative Procedure Act, 5 U.S.C. S 701 et seq.
Accordingly, we will affirm the District Court’s order
denying relief to the plaintiff alien.

Plaintiff is a young man, allegedly a national of Algeria1
_________________________________________________________________

1. There is some indication in the record that the plaintiff may be a
citizen of Morocco.

                                2


who arrived in Newark, New Jersey as a stowaway on a
ship that had departed from La Spezia, Italy. The INS
apprehended him on arrival, and he has been detained at
the Elizabeth Detention Center in Elizabeth, New Jersey
ever since. Plaintiff applied for asylum, but his request was
denied by an immigration judge and that decision was
affirmed by the Board of Immigration Appeals.

Plaintiff asserts that he lived with his parents in Algeria
until they were both killed by a bomb when he was about
ten years of age. He then lived with an aunt in Algeria until
he was twelve years old, at which time she forced him to
leave. He went to other countries, and then lived in Italy for
three years where he worked as a farm laborer.

At the time of his initial detention, plaintiff carried
documents from a proceeding before the Italian Labor &
Immigration Department in which he gave his date of birth
as June 25, 1982. However, he told the INS on his initial
interview that he was born on July 25, 1984. Noting the
conflict over the birth date, the INS had a dentist x-ray the
plaintiff’s teeth and wrist. Based on his reading of the x-
rays, the dentist opined that plaintiff was more than 18
years of age.

After his unsuccessful attempt at asylum, plaintiff sought
special immigration juvenile status under 8 U.S.C.S
1101(a)(27)(J)(I). This provision applies to immigrants who
have been declared dependent by a juvenile court that has
deemed them eligible for long-term foster care because of
abuse, neglect or abandonment.

Because plaintiff was in the custody of the INS, the
Attorney General’s consent was required before a juvenile
court could obtain jurisdiction of the dependency claim.
The district director of the INS, acting on behalf of the
Attorney General, denied the consent request. In a letter
dated July 31, 2001, the director pointed out that under
New Jersey law for purposes of juvenile court jurisdiction,
"child" meant a person under 18 years of age. Based on
plaintiff’s statement to Italian authorities that he was born
in 1982, he would have been 19 years old at the time of his
request. Moreover, the director noted, the INS had not been
provided evidence that the plaintiffs’ parents had been
killed or that his aunt had abused him.

                                3


The director’s letter concluded:

       "Given the circumstances, it does not appear that you
       have provided the proper documentation needed for a
       favorable consideration to have [plaintiff’s] jurisdiction
       transferred to a New Jersey juvenile court. Therefore,
       your request is denied. . . . [Y]our request was refused
       in accordance with regulations issued under the
       Immigration and Naturalization Act, as amended (INA),
       existing INS policy, and New Jersey State Law."

In response to a request for reconsideration, the district
director wrote another letter dated October 5, 2001,
repeating that as a stowaway the plaintiff was inadmissible
for entry into the United States pursuant to 8 U.S.C. S
1182(a)(6)(D). The letter elaborated on Italian documents
charging plaintiff with violating the immigration law of that
country. In addition, the director cited 8 C.F.R.S 204.11(d),
which requires documentary evidence confirming an
applicant’s age, and further noted that New Jersey law
limited the juvenile court’s authority to persons under the
age of 18. Concluding that plaintiff had failed to submit any
new evidence, the director again denied the request to grant
juvenile court jurisdiction.

Plaintiff then filed this suit in the District Court for the
District of New Jersey, seeking declaratory and injunctive
relief.2 After extended oral argument, the District Court
determined that the INS order was reviewable under the
Administrative Procedure Act. The Court further decided
that the INS action was neither arbitrary nor capricious in
view of plaintiff’s failure to supply documentary evidence in
support of his application. The Court dismissed the
complaint for failure to state a claim.

On appeal, plaintiff contends that the INS has no
authority to determine whether an individual meets the
jurisdictional age of juvenile court, but is limited by its
_________________________________________________________________

2. We acknowledge the excellent presentation of plaintiff’s counsel
Latham & Watkins in their pro bono representation in his behalf. The
firm and its lawyers assigned to this case acted in accordance with the
highest traditions of the bar and we commend their dedication to the
profession and the cause of justice.

                                4


regulations to determine only whether the person is under
the age of twenty-one. In addition, he argues that the
requirement of documentary evidence of age is contrary to
the congressional intent underlying the special immigration
provisions for juveniles. The INS contends that its decision
is not subject to judicial review.3 We will discuss the
jurisdictional issue first.

I.

Initially, we recognize that the Immigration and
Naturalization Act restricts judicial review in certain
circumstances, and we must determine whether those
limitations apply here.

In Reno v. American-Arab Anti-Discrimination Committee,
525 U.S. 471 (1999), the Supreme Court reviewed 8 U.S.C.
S 1252(g), which denies judicial review of certain
immigration matters. Section 1252(g) provides that no court
shall have jurisdiction over cases "arising from the decision
or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders
. . . ." Carefully parsing the text, the Court concluded that
that provision applied only to three specific decisions or
actions by the Attorney General: those "commencing
proceedings," "adjudicating cases" or "executing removal
orders." American-Arab Anti-Discrimination Comm., 525 U.S.
at 482.

The Court also noted that the statute’s other subsections
insulate from review the Attorney General’s exercise of
discretion in a number of contexts. Id. at 486-87. This
Court, for example, has held that we lack jurisdiction to
review a deportation order pursuant to 8 U.S.C.
S 1101a(a)(10), now codified at 8 U.S.C. S 1252(a)(2)(C).
Salazar-Haro v. INS, 95 F.3d 309, 310-11 (3d Cir. 1996).

Having thoroughly reviewed the statute, we are not
persuaded that it precludes jurisdiction in the case before
us. Significantly, the INS does not invoke any specific
_________________________________________________________________

3. This Court heard oral argument on an emergency basis on June 14,
2002 and from the bench affirmed the District Court’s order. This
Opinion explains the basis for the ruling.

                                5


provision of the INA as bearing on this Court’s authority to
review the Attorney General’s actions here. That, however,
does not end the jurisdictional inquiry. We must now
examine the Administrative Procedure Act, which the
plaintiff contends permits us to review the Attorney
General’s refusal of consent to juvenile court jurisdiction.

The Act provides in broad terms that a "person suffering
legal wrong because of agency action . . . is entitled to
judicial review . . . ." 5 U.S.C. S 702. That expansive
language, however, is blunted by section 701(a)(2), which
limits this review "to the extent that . . . (2) agency action
is committed to agency discretion by law."
The Supreme Court has read the Administrative
Procedure Act as embodying a basic presumption of judicial
review. In Lindahl v. Office of Personnel Management, 470
U.S. 768, 778 (1985), the Court said, "[w]e have often noted
that ‘only upon a showing of "clear and convincing
evidence" of a contrary legislative intent should the courts
restrict access to judicial review.’ " (quoting Abbott Labs. v.
Gardner, 387 U.S. 136, 141 (1967)).

On the other hand, the Court significantly weakened the
force of that pronouncement when it referred to its previous
statement as " ‘just’ a presumption." Lincoln v. Vigil, 508
U.S. 182, 190 (1993). The Court explained that review is
not available "in those rare circumstances where the
relevant statute" is so drafted " ‘that a court would have no
meaningful standard against which to judge the agency’s
exercise of discretion.’ " Id. at 191 (quoting Heckler v.
Chaney, 470 U.S. 821, 830 (1985)). In such a situation, the
statute can be read "to have committed the decisionmaking
to the agency’s judgment absolutely." Id. (internal
quotations omitted). That approach is rooted in the
language of Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 410 (1971), which explained that when there
is "no law to apply," there can be no judicial review.4
_________________________________________________________________

4. Professor Davis, an acknowledged expert in administrative law, argued
that judges should be able to apply such "law" as justice, fairness and
reasonableness requires in deciding whether agency action was arbitrary
or capricious. Kenneth Culp Davis, No Law to Apply, 25 San Diego L.
Rev. 1 (1988) (criticizing Chaney); see also Ronald M. Levin,
Understanding Unreviewability in Administrative Law , 74 Minn. L. Rev.
689 (1990) (summarizing availability of judicial review of agency
decisions).

                                6


There are circumstances, however infrequent, in which
review is not available. See, e.g., Lincoln, 508 U.S. 182
(review precluded where agency’s discretion is involved in
allocating appropriated funds); Webster v. Doe , 486 U.S.
592 (1988) (CIA director’s decision to terminate employee
on national security grounds not reviewable); ICC v.
Brotherhood of Locomotive Eng’rs, 482 U.S. 270 (1987)
(ICC’s refusal to grant reconsideration of a prior ICC order
not reviewable); Heckler v. Chaney, 470 U.S. 821 (1985)
(FDA decision refusing to take various enforcement actions
not subject to review); Local 2855, AFGE (AFL-CIO) v. United
States, 602 F.2d 574 (3d Cir. 1979) (army’s decision to
contract stevedoring work not reviewable). See also Harmon
Cove Condo. Ass’n, Inc. v. Marsh, 815 F.2d 949 (3d Cir.
1987) (Court refused to grant mandamus directing
Secretary of the Army to enforce compliance with a permit
because of lack of guidelines).

Nevertheless, the "no law to apply" threshold is not
insurmountable. The Supreme Court’s comments on agency
discretion in an immigration case are instructive. The Court
held that although its discretion may be unfettered at the
outset, if an agency "announces and follows -- by rule or by
settled course of adjudication -- a general policy by which
its exercise of discretion will be governed, an irrational
departure from that policy . . . could constitute action that
must be overturned as ‘arbitrary, capricious,[or] an abuse
of discretion’ within the meaning of the Administrative
Procedure Act, 5 U.S.C. S 706(2)(A)." INS v. Yang, 519 U.S.
26, 32 (1996).

We have previously distinguished Chaney, where an
agency’s decision declining to enforce substantive
provisions in its enabling act was nonreviewable, from a
case in which an agency had taken affirmative steps to
adjudicate a breach of contract claim. Williams v. Metzler,
132 F.3d 937, 944-45 (3d Cir. 1997). In any event, when
deciding whether review of agency action is reviewable, we
have adhered to the Supreme Court’s presumption in favor
of judicial action. Id. at 943-44.

Thus, this Court has held that where regulations list
factors an agency must consider in reaching a decision,
there is sufficient guidance for a court to determine

                                7


whether the agency had acted arbitrarily and capriciously.
Davis Enters. v. United States Envtl. Prot. Agency, 877 F.2d
1181 (3d Cir. 1989); Chong v. Director, United States Info.
Agency, 821 F.2d 171 (3d Cir. 1987). See also Hondros v.
United States Civil Serv. Comm’n, 720 F.2d 278, 294-95
(3d Cir. 1983) (personnel officer’s official memoranda
established policy decisions that restricted agency
discretion and permitted judicial review).

In this case, regulation 8 C.F.R. S 204.11, adopted by the
INS, sets out the material matters to be included in a
petition for special immigrant juvenile status. In order for
an alien to be eligible for that classification, he must be
under 21 years of age, unmarried, and found by a juvenile
court to be a dependent. 8 C.F.R. S 204.11(c)(1)-(6). In
addition, documentary evidence of the alien’s age and a
juvenile court order must be attached to his application. 8
C.F.R. S 204.11(d)(1)-(2).

In addition to that regulation, Thomas E. Cook, acting
assistant commissioner of the INS, issued a Memorandum
dated July 9, 1999, clarifying interim field guidance with
respect to special immigrant juvenile cases. The
Memorandum discusses situations in which applicants are
in INS custody, as well as those in which they are not.

The Memorandum explains that when the applicant is in
INS custody, the consent of the Attorney General must be
secured before juvenile court proceedings begin. In general,
consent should be given if doing so served the best
interests of the child, and if the child would be eligible for
special immigrant juvenile classification.
We are persuaded that regardless of whether the
regulation and the Cook Memorandum properly construe
the statute -- and putting aside the question of what
deference, if any, we should grant them5 -- they do supply
"some law to apply." Accordingly, judicial review is
_________________________________________________________________

5. The fact that certain memos, policies, guidelines, or manuals could
constitute "law" for jurisdictional purposes has no bearing on whether
the Court owes some deference to them in ruling on the merits of an
appeal from an agency action. The two situations are distinct and must
receive different review.

                                8


available. See Concerned Residents of Buck Hill Falls v.
Grant, 537 F.2d 29, 35-36 (3d Cir. 1976).

The details of 8 C.F.R. S 204.11(c) meet the Davis, Chong,
and Hondros description of factors that the INS must
observe; thus, the regulation is unlike that found in Local
2855, which granted broad policy discretion to dispose of
appropriated funds. A district court opinion following our
precedents found jurisdiction in a factual situation similar
to the one now before us. Yeboah v. INS, 2001 WL 1319544
(E.D. Pa. Oct. 26, 2001).

Accordingly, we conclude that we have jurisdiction to
review the validity of the INS’s refusal to yield jurisdiction
to the juvenile court.

II.

We turn then to the terms of the Immigration and
Naturalization Act. In its current version and its former text
enacted in 1990, the statute defined special immigrant
juveniles as immigrants present in the United States whom
a juvenile court has determined to be dependent or who
have been placed in the custody of a state agency for long-
term foster care because of abuse, neglect or abandonment.
8 U.S.C. S 1101(27)(J)(I). In addition, it must have been
determined that it would not be in the best interest of the
juvenile to be returned to his home country. Id .
S 1101(27)(J)(ii).

Being granted such status is, of course, quite
advantageous to an alien. As the Court noted in Gao v.
Jenifer, 185 F.3d 548, 551 n.1 (6th Cir. 1999), granting a
special immigrant juvenile request enables that individual
to apply for permanent resident status, although the latter
classification is discretionary and conditional. Gao, 185
F.3d at 556-57.

Before its amendment in 1997, the statute did not
prevent a state court from assuming jurisdiction over a
juvenile immigrant, even one in the legal custody of the
INS. Id. at 553. In 1997, however, an amendment to the
INA required the Attorney General to "expressly consent" to
a juvenile court’s dependency order. 8 U.S.C.
                                9


S 1101(27)(J)(iii). In addition, the amendment required the
Attorney General to specifically consent to the jurisdiction
of the juvenile court "to determine the custody status or
placement of an alien in the actual or constructive custody
of the Attorney General . . . ." 8 U.S.C. S 1101(27)(J)(iii)(I).

The legislative history confirms that the revision in the
statute was intended to curtail the granting of special
immigrant juvenile status. The conference report on the
amendment states that:

       "[t]he language has been modified in order to limit the
       beneficiaries of this provision to those juveniles for
       whom it was created, namely abandoned, neglected, or
       abused children, by requiring the Attorney General to
       determine that neither the dependency order nor the
       administrative or judicial determination of the alien’s
       best interest was sought primarily for the purpose of
       obtaining the status of an alien lawfully admitted for
       permanent residence, rather than for the purpose of
       obtaining relief from abuse or neglect."

H.R. Rep. No. 105-405, at 2981 (1997), 1997 WL 712946,
at 130.

The legislative history demonstrates an intent to remove
immigration decisions from the exclusive control of juvenile
courts and the social agencies affiliated with them. Some
examples of the state courts’ then-dominant role in status
determination are illustrated in Gao v. Jenifer , 185 F.3d
548 and Yu v. Brown, 92 F. Supp. 2d 1236 (D. N.M. 2000).

The regulation on which the plaintiff so heavily relies, 8
C.F.R. S 204.11, was adopted in 1993, before the
amendment to the special immigrant juvenile provision was
enacted. It is significant that the regulation applies to
applications for special status requested after the juvenile
court has made the necessary adjudication of dependency,
long-term foster care and the best interest of the child. The
application must be accompanied by juvenile court orders
and other documents, such as a birth certificate
establishing the alien’s age. An additional requirement --
one on which the plaintiff seizes -- is a statement that the
applicant is under 21 years of age.

                                10


At this point in the proceedings the plaintiff is not in a
position to file a special immigrant juvenile petition, and so
is pursuing the preliminary steps to obtain the director’s
consent to juvenile court jurisdiction. As can be seen, the
regulation does not directly bear on a request for
permission to apply to a juvenile court. However, the
regulation can have a bearing on the director’s future ruling
on whether to give effect to a juvenile court decision if
consent to its jurisdiction is granted.

Apparently because the regulation lacked an explicit
connection to the consent process, the INS promulgated the
Cook Memorandum in 1999. It authorized the district
directors, in consultation with their district counsel, to give
consent on behalf of the Attorney General. The
Memorandum also distinguishes between juveniles in INS
custody and those not so classified.

In cases where the alien is in the custody of the INS, the
Cook Memorandum requires that requests for consent to a
juvenile court’s jurisdiction be in writing. Thereafter,

       "The district director, in consultation with the district
       counsel, should consent to the juvenile court’s
       jurisdiction if:

       1) it appears that the juvenile would be eligible for SIJ
       status if a dependency order is issued; and

       2) in the judgment of the district director, the
       dependency proceeding would be in the best interest of
       the juvenile."

The Cook Memorandum thus appears to anticipate that
if consent is granted, a resulting juvenile court order would
make the alien eligible for the benefits of a special
immigrant juvenile. According to the Memorandum,
however, a petition for that status should include, in
addition to records of the juvenile court proceeding,

       (1) evidence of the juvenile’s date and place of birth;

       (2) evidence of the juvenile’s date and manner of entry
       into the United States;

       (3) evidence of the juvenile’s current immigration
       status.

                                11


Therefore, in exercising discretion to deny jurisdiction to
the juvenile court, the district director, in consultation with
legal counsel, can reasonably consider the requirements of
a petition for special immigrant juvenile classification.
Based on the evidence in the INS’s possession that
contradicted plaintiff’s version of his birthdate and native
country, the director could have reasoned that plaintiff
would not be able to produce the documentary evidence
required for a special immigrant juvenile application. Thus,
allowing the juvenile court proceeding to go forward would
have amounted to endorsing an exercise in futility.

The district director acknowledged that she had
considered New Jersey law in connection with her decision.
Consequently, the juvenile court’s 18-year age limitation
was pertinent. We are not persuaded by plaintiff’s argument
that the regulatory history of 8 C.F.R. S 204.11
demonstrates that the INS had ceded the right to consider
as relevant any age other than one under 21. That
concession was made under the 1990 version of the
statute, before Congress limited availability of juvenile court
jurisdiction by requiring the consent of the Attorney
General. To the extent that the regulation is in conflict with
the statutory amendment, the latter must control. The
director also noted that the plaintiff was a stowaway and
thus had not legally entered the United States. This is
another factor that, according to the Cook Memorandum,
would be pertinent to a special immigrant juvenile petition.

Although we have held that "for purposes of review," a
Handbook and Guide prepared by an agency "serve only as
indicia of whether the evaluation procedures adopted in a
particular case are ‘arbitrary and capricious,’ " see
Concerned Citizens of Buck Hill Falls, 537 F.2d at 38, here
we have more. The district director’s refusal to consent,
based on factors that would be critical to an expected
future application for special immigrant juvenile status, is
well within the discretion permitted by the Cook
Memorandum. We reject the plaintiff’s contention that the
regulation requires that an application for consent must be
accepted for all petitioners under 21 years of age and that
the district director was thus denied the authority to
consider the New Jersey jurisdictional limit of 18 years of
age.

                                12


In sum, we believe that the District Director did not act
arbitrarily and capriciously in refusing consent to the
juvenile court’s jurisdiction. Both the statute and the
regulation implicitly require an alien applying for special
immigrant juvenile status to be young enough to qualify for
a dependency order under state law. Neither the statute nor
the regulation expressly prohibit the Attorney General from
denying consent because the alien is too old to be eligible
for a dependency order. For the District Director to
withhold consent on the ground that the alien does not
satisfy one of the statutory eligibility requirements, even if
it is derived from state law and would ultimately be
adjudicated by a state juvenile court, is not arbitrary and
capricious.

Accordingly, we will affirm the Order of the District
Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                13
