Delgado v. Quarantillo
2011 U.S. App. LEXIS 12383
| 2d Cir. | 2011Background
- Delgado, a native and citizen of Ecuador, failed to enter the U.S. using false identification and was removed under an expedited order.
- She reentered the U.S. without inspection in December 2000 and later married a U.S. citizen who is her attorney in this action.
- In 2006 Delgado sought to reapply for admission (I-212) and adjust status; USCIS denied both because she was inadmissible and had not applied for reentry prior to unlawful entry.
- ICE reinstated Delgado's prior expedited removal order on October 26, 2006, after denial of her I-212 and adjustment applications.
- The Second Circuit upheld the reinstated removal order in 2008, holding a lifetime bar on admission is waivable only if reapplication occurs from abroad after a waiting period.
- Delgado filed a mandamus/APA challenge in district court; the district court dismissed for lack of jurisdiction under REAL ID Act § 1252(a)(5) and alternatively res judicata; Delgado was removed in May 2010.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court had jurisdiction over an indirect challenge to a removal order. | Delgado argues for APA/mandamus review of USCIS actions denying I-212. | REAL ID Act 1252(a)(5) precludes district court review of removal orders, even indirect challenges. | Yes; district court lacked jurisdiction for indirect challenge. |
| Whether the district court can hear a challenge framed as I-212 adjustment-related relief. | I-212 denial is a precondition to adjustment; relief affects removal order indirectly. | Challenge is to removal order; barred by 1252(a)(5). | Barred; indirect challenge to removal order is within §1252(a)(5) bar. |
| Whether federal questions or mandamus save the claim from §1252(a)(5). | Claims arise under APA or are mandamus actions to compel agency action. | REAL ID Act precludes such jurisdiction; APA and mandamus do not create jurisdiction here. | Neither; jurisdiction not saved. |
Key Cases Cited
- Morales-Izquierdo v. Department of Homeland Security, 600 F.3d 1076 (9th Cir. 2010) (adjustment and I-212 waivers linked to removal orders; bifurcated DHS system not dispositive)
- Lee v. CIS, 592 F.3d 612 (4th Cir. 2010) (APA claims precluded by §1252; preemption of review where statute limits review)
- Ruiz v. Mukasey, 552 F.3d 269 (2d Cir. 2009) (some actions unrelated to removal may escape §1252(a)(5); not applicable here)
- Gonzales v. Department of Homeland Security, 508 F.3d 1227 (9th Cir. 2007) (prior authority on removal review limitations)
- Lang v. Napolitano, 596 F.3d 426 (8th Cir. 2010) (mandamus/injunctive claims lacking jurisdiction when aimed at removal)