                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0667n.06

                                        Case No. 08-1903                                FILED
                                                                                     Sep 30, 2009
                           UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

 RAVI ARYA; PREETI N. ARYA,                           )
                                                      )
        Plaintiffs - Appellants,                      )
                                                      )      ON APPEAL FROM THE
                v.                                    )      UNITED STATES DISTRICT
                                                      )      COURT FOR THE EASTERN
 UNITED STATES CITIZENSHIP AND                        )      DISTRICT OF MICHIGAN
 IMMIGRATION SERVICES, Director,                      )
 Detroit District; DEPARTMENT OF                      )
 HOMELAND SECURITY,                                   )
                                                      )
       Defendants-Appellees.                          )
 _______________________________________              )

BEFORE: BATCHELDER, Chief Judge; BOGGS and COOK, Circuit Judges.

       ALICE M. BATCHELDER, Chief Judge. Ravi Arya entered the United States on a

professional worker visa in 1997, and in 2003 he married Preeti N. Arya. The same year, Mr. Arya’s

employer filed an I-140 “Immigrant Petition for Alien Worker” form on his behalf, which was

approved. In 2004, both Mr. and Mrs. Arya applied for permanent resident status via I-485 forms.

Mrs. Arya’s separate application was entirely dependent on Mr. Arya’s, since it was premised on his

approved I-140 petition.

       After an interview with a United States Citizenship and Immigration Services (“USCIS”)

adjudication officer on June 5, 2007, Mr. and Mrs. Arya were denied permanent resident status on

May 19, 2008. That denial reviewed Mr. Arya’s criminal history, and concluded that his application

did not warrant a favorable exercise of discretion. The Aryas filed a “Complaint in the Form of Writ

of Mandamus and Declaratory Judgment; and Emergency Motion for an Order to Temporarily
Extend Plaintiffs’ Employment Authorization” on June 3, 2008. In it, they challenged the legal

conclusions in USCIS’s decision and the process by which it was reached, and asserted that they had

exhausted their administrative remedies. The Aryas requested varied relief, including temporary

extension of their employment authorization and legal status. The district court dismissed the action.

       USCIS’s denial of the Aryas’ permanent resident status was a discretionary determination

by the Attorney General of the United States made under 8 U.S.C. § 1255(a) (2007), and is

unreviewable by this court under 8 U.S.C. § 1252(a)(2)(B)(i). Styling the claim as a writ of

mandamus does not aid the Aryas, since we have held that “[m]andamus jurisdiction is available

only if (1) the plaintiff has exhausted all available administrative appeals and (2) the defendant owes

the plaintiff a ‘clear nondiscretionary duty’ that it has failed to perform.” Your Home Visiting Nurse

Servs., Inc. v. Sec’y of Health and Human Servs., 132 F.3d 1135, 1141 (6th Cir. 1997) (quoting

Heckler v. Ringer, 466 U.S. 602, 616 (1984)). Here, neither condition was met. The Aryas have not

yet initiated an administrative appeal of USCIS’s adverse determination, and any duty owed them

by USCIS is neither clear nor nondiscretionary. By statute, it is explicitly the opposite — 8 U.S.C.

§ 1255(a) says that an alien’s status may be “adjusted by the Attorney General, in his discretion.”

Id. (emphasis added). This classifies the government’s action as an unreviewable denial of

discretionary relief under Section 1252(a)(2)(B)(i). The district court was correct to dismiss this

action for lack of jurisdiction, and accordingly to dismiss the Aryas’ emergency motion as moot.

       Because the issuance of a full opinion would serve no jurisprudential purpose and would be

duplicative, we AFFIRM on the basis of the district court’s opinion the dismissal of this action.




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