United States, Ex Rel. Bledar Vaso v. Secretary Michael Chertoff, Secretary of the Department of Homeland Security

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 09-1988
_____________
UNITED STATES, EX REL. BLEDAR VASO
v.
SECRETARY MICHAEL CHERTOFF, SECRETARY
OF THE DEPARTMENT OF HOMELAND SECURITY;
JULIE MYERS, ASSISTANT SECRETARY
OF THE DEPARTMENT OF HOMELAND SECURITY
IN CHARGE OF THE U.S. IMMIGRATION
AND CUSTOMS ENFORCEMENT;
THOMAS DECKER, FIELD OFFICE DIRECTOR
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;
EMILIO GONZALEZ, DIRECTOR
U.S. CITIZENSHIP AND IMMIGRATION SERVICES;
DONALD MONICA, DISTRICT DIRECTOR
U.S. CITIZENSHIP AND IMMIGRATION SERVICES
Bledar Vaso,
Appellant
_________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 08-cv-00273)
District Judge: Honorable William J. Nealon
__________
Argued January 25, 2010

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Before: RENDELL and JORDAN, Circuit Judges,
and PADOVA, District Judge*.
(Filed: March 5, 2010)
__________
Joseph C. Hohenstein, Esq. [ARGUED]
Orlow, Kaplan & Hohenstein
620 Chestnut Street, Suite 656
Philadelphia, PA 19106
Counsel for Appellant
Stephen R. Cerutti, II, Esq.
Dennis C. Pfannenschmidt, Esq.
Melissa A. Swauger, Esq.
Office of United States Attorney
228 Walnut Street
P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Sonya F. Lawrence, Esq.
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Kimberly E. Wiggans, Esq. [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 868
Ben Franklin Station
Washington, DC 20001
Counsel for Appellees
__________________
* Honorable John R. Padova, Senior Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.

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Mary A. Kenney, Esq.
Beth J. Werlin, Esq.
American Immigration Council
1331 G. Street, N.W., Suite 200
Washington, DC 20005
Counsel for Amicus-Appellant
OPINION OF THE COURT
__________
RENDELL, Circuit Judge.
This case raises jurisdictional issues regarding an alien’s ability to challenge, in
federal district court, the adjudication of certain immigration applications by U.S.
Citizenship and Immigration Services (“USCIS”). Appellant Bledar Vaso filed a
complaint in the District Court seeking declaratory judgment, a writ of habeas corpus, and
a writ of mandamus. The District Court dismissed the case for lack of subject matter
jurisdiction. We will affirm the District Court’s order dismissing the complaint.
I.
Vaso is an Albanian citizen who entered the United States on December 24, 1997
using a fraudulent Italian passport. The Government commenced removal proceedings
against him within about a month of his arrival. Vaso conceded removability, but applied
for asylum, withholding of removal, and voluntary departure. On December 23, 1998,
these applications were denied by an immigration judge. After several years of further
proceedings, the Board of Immigration Appeals (“BIA”) ultimately denied his final
administrative appeal on February 19, 2003, and then denied two motions to reconsider.

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Vaso petitioned this court for review of the BIA’s decisions. On February 12, 2008, we
denied the petition to the extent that it challenged the denial of one of the motions to
reconsider, and dismissed it for lack of jurisdiction to the extent that it raised other
claims. Vaso v. Att’y Gen. of the United States, No. 07-4164 (3d Cir. Feb. 12, 2008).
Vaso was allowed to remain at liberty during most of this ten-year period, during which
time he married a U.S. citizen and had two children.
After being detained in August 2007 in anticipation of removal, Vaso sought
various forms of relief from USCIS in a further attempt to avoid removal. On September
7, 2007, he submitted an Application to Register Permanent Residence or Adjust Status,
as provided for by 8 U.S.C. § 1255. USCIS determined that Vaso was inadmissible under
8 U.S.C. §§ 1255(a)(2) and 1182(a)(6)(C)(i) because he had attempted to procure
admission into the United States by fraud or willful misrepresentation (i.e., by relying on
the fraudulent Italian passport). On December 5, 2007, USCIS issued a Notice of Intent
to Deny the application on those grounds. In response, on December 27, 2007, Vaso
submitted an Application for Waiver of Grounds of Inadmissibility under § 1182(i)(1) on
the ground that his removal would result in hardship to his wife.
On January 24, 2008, both applications were denied. Vaso moved to reopen and to
reconsider these denials, but these motions were denied on April 14, 2008.
On December 4, 2007, before USCIS had responded to his application for
adjustment of status, Vaso filed a complaint in the District Court. He later amended the
complaint twice; the second amended complaint, which was filed on May 14, 2008, is the
operative complaint and was the subject of the District Court order dismissing the case.

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The complaint alleged that USCIS has a blanket policy of denying applications for
adjustment of status submitted by aliens who relied on fraudulent documents to enter the
United States, and that USCIS thus did not give meaningful consideration to his
applications. It also challenged USCIS’s delay in processing the applications and failure
to interview him in connection with the applications.
The complaint asserted that the District Court had jurisdiction under several
provisions of federal law: Article I, section 9 of the U.S. Constitution and 28 U.S.C.
§ 2241(c), both of which concern the writ of habeas corpus; the Administrative Procedure
Act (“APA”), 5 U.S.C. § 701; the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1101 et seq.; and 28 U.S.C. § 1361, which authorizes the issuance of writs of
mandamus.
Vaso sought three forms of relief. First, he sought a declaratory judgment that the
denials of his applications were unlawful and an order to USCIS that his “adjustment of
status application . . . be granted based on the prima facie showing of . . . the requisite
‘extreme hardship.’” App. 63. Second, he sought a writ of mandamus to compel USCIS
to adjudicate his applications. Third, he sought a writ of habeas corpus to secure release
from custody and an interview regarding his applications.
Although the District Court had initially stayed removal, it lifted that stay on
February 13, 2009, shortly before dismissing the case. Vaso was subsequently removed
to Albania.
Vaso now appeals. The American Immigration Council filed a brief as amicus
curiae on his behalf.

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The Government, in supplemental briefing submitted shortly before oral argument1
(when Vaso had little opportunity to respond), argued that the case is moot because Vaso
has been removed from the United States, which means that his application for
adjustment of status is treated by USCIS as abandoned. See 8 C.F.R. § 245.2(a)(4)(ii)(A).
However, as we held under analogous circumstances in Chong v. INS, 264 F.3d 378, 385
(3d Cir. 2001), an “order of removal creates sufficient collateral consequences” to avoid
mootness by preventing an alien from reentering the United States for several years.
Although Vaso is not directly challenging the order of removal, a favorable resolution of
his applications for adjustment of status and waiver of inadmissibility would likely have
allowed him to avoid the same collateral consequences that we identified in Chong.
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II.
We have jurisdiction over this appeal under 28 U.S.C. § 1291. “We exercise
plenary review over the decision to grant [a] motion to dismiss for lack of subject matter
jurisdiction.” Marran v. Marran, 376 F.3d 143, 149 (3d Cir. 2004). “[T]here is a
well-settled presumption favoring interpretations of statutes that allow judicial review of
administrative action, and we will accordingly find [congressional] intent to preclude
such review only if presented with clear and convincing evidence” of such intent. Reno v.
Catholic Soc. Servs., Inc., 509 U.S. 43, 63-64 (1993) (internal quotation marks and
citations omitted).
III.
In order to conclude that the District Court had jurisdiction over this case, we must
determine that (1) it could rely on some affirmative grant of jurisdiction and (2) there was
nothing that barred the District Court from exercising jurisdiction. Vaso has not shown
that the District Court had jurisdiction over his claims, and has not persuasively rebutted
the Government’s argument that 8 U.S.C. § 1252(a)(2)(B) foreclosed any jurisdiction that
may have existed.1

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Under these circumstances, we decline to dispose of this case on mootness grounds.
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A.
Although the complaint claimed jurisdiction under the Constitution, 28 U.S.C.
§ 2241, the APA, the INA, and the mandamus statute, Vaso has offered no argument on
appeal to support the District Court’s jurisdiction under any of these provisions. Instead,
Vaso directs his argument to two other bases of jurisdiction.
First, Vaso claims that, under the Supreme Court’s decision in United States ex rel.
Accardi v. Shaugnessy, 347 U.S. 260, 266-67 (1954), “federal Courts maintain
jurisdiction to review even a discretionary determination in which discretion has been
abused or unlawfully exercised.” Appellant’s Opening Br. at 12. This argument
misconstrues Accardi. In that case, the Court considered a habeas petition that claimed
that the BIA had failed to exercise discretion (as required by its regulations) in making a
determination. There was no discussion in Accardi of the district court’s jurisdiction over
the habeas petition. Instead, Accardi addressed the limited question of whether the BIA
had exercised its discretion appropriately. Thus, contrary to Vaso’s contention, Accardi
does not provide a basis for district court jurisdiction over his claims.
Second, Vaso argues that his claims “presented legal questions that were sufficient
for the District Court to invoke jurisdiction.” Appellant’s Opening Br. at 14-15.
However, he cites no authority, and we have found none, for the proposition that a litigant
can invoke a federal court’s jurisdiction merely by raising “legal questions.” To the
extent that Vaso means to argue that 8 U.S.C. § 1252(a)(2)(D), by referring to “review of

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constitutional claims or questions of law,” confers jurisdiction on district courts to review
such questions, that argument is without merit. The scope of 8 U.S.C. § 1252(a)(2)(D) is,
by its terms, limited to the jurisdiction of the courts of appeals; it does not provide a basis
for district courts to exercise jurisdiction, even to review questions of law.
By failing to address the bases of jurisdiction asserted in the complaint, Vaso has
waived any arguments that they conferred jurisdiction on the District Court. Yet even if
we did not find these arguments waived, we would find that the District Court lacked
jurisdiction.
First, the APA did not confer jurisdiction over Vaso’s claims. Vaso invoked the
APA to seek an order for his “adjustment of status application to be granted.” App. 63.
However, pursuant to 8 U.S.C. § 1255(a), USCIS’s adjudication of an adjustment of
status application is “committed to agency discretion,” and is therefore not subject to
review under the APA. 5 U.S.C. § 701(a). Second, writs of mandamus are only available
to compel “a legal duty which is a specific, plain ministerial act devoid of the exercise of
judgment or discretion.” Harmon Cove Condominium Ass’n, Inc. v. Marsh, 815 F.2d
949, 951 (3d Cir. 1987) (internal quotation marks and citation omitted). The adjudication
of Vaso’s applications was not a ministerial act devoid of the exercise of judgment or
discretion, and thus was not relief available through a writ of mandamus. Third, the
claims that Vaso grounds in habeas jurisdiction related solely to his detention by the
Government, which ended with his removal and no longer support the exercise of
jurisdiction. Finally, although the complaint referred to the INA as a basis for

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jurisdiction, we are aware of no specific provision of the INA that would confer
jurisdiction in this case.
B.
Even if there were a proper basis for jurisdiction in this case, 8 U.S.C.
§ 1252(a)(2)(B) would prevent the District Court from exercising such jurisdiction over
Vaso’s claims.
Section 1252(a)(2)(B) provides as follows:
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, or any other
habeas corpus provision, . . . and except as provided in
subparagraph (D), and regardless of whether the judgment,
decision, or action is made in removal proceedings, no court
shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under
section 1182 (h), 1182 (i), 1229b, 1229c, or 1255 of this
title, or
(ii) any other decision or action of the Attorney General or
the Secretary of Homeland Security the authority for
which is specified under this subchapter to be in the
discretion of the Attorney General or the Secretary of
Homeland Security . . . .
We have construed this language to bar review only of discretionary actions. By contrast,
“[n]on-discretionary actions . . . and purely legal determinations made by the agency . . .
remain subject to judicial review.” Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir. 2005).
For instance, “[d]etermination of eligibility for adjustment of status—unlike the granting
of adjustment itself—is a purely legal question and does not implicate agency discretion.”
Id. Thus, if Vaso were challenging the determination that he is statutorily inadmissible
for attempting to procure admission through fraud, review of that determination would
not be foreclosed by § 1252(a)(2)(B). The District Court’s comment to the contrary was

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error. The determination that an alien is statutorily inadmissible is a nondiscretionary,
legal determination, for which § 1252 does not foreclose review.
However, Vaso is not challenging this nondiscretionary determination. Instead, he
is challenging the Government’s decisions on his applications for a waiver of
inadmissibility and adjustment of status. These decisions are discretionary judgments of
the Executive, for which the Attorney General is explicitly directed by statute to use his
discretion. See 8 U.S.C. §§ 1182(i); 1255(a). As we have indicated, the decision on an
application to adjust status, unlike the statutory determination of whether an immigrant is
eligible for such an adjustment, is “within the discretion of the agency” and is not subject
to judicial review. Pinho, 432 F.3d at 203. The same is true of the decision on a waiver
of inadmissibility. By virtue of § 1252(a)(2)(B), neither is subject to judicial review.
Vaso contends that § 1252(a)(2)(B) cannot bar review of his claims because the
title of § 1252 is “Judicial review of orders of removal,” and he is not challenging an
order of removal. This argument is wholly without merit. As other courts of appeals
have held, the title of § 1252 does not limit its scope to removal proceedings, since “‘the
heading of a section cannot limit the plain meaning of [its] text.’” Samirah v. O’Connell,
335 F.3d 545, 548-49 (7th Cir. 2003) (quoting Bhd. of R.R. Trainmen v. Balt. & O.R. Co.,
331 U.S. 519, 528-29 (1947)); see also CDI Info. Servs., Inc. v. Reno, 278 F.3d 616, 620
(6th Cir. 2002); Van Dinh v. Reno, 197 F.3d 427, 432 (10th Cir. 1999). Moreover,
nothing in § 1252(a)(2)(B) contains any language limiting its provisions to orders of
removal; § 1252(a)(2)(B)(i) in fact specifically refers to statutes concerning other matters,
such as applications for waivers of inadmissibility and adjustments of status. Indeed, we

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stated explicitly in Jilin Pharmaceutical USA, Inc. v. Chertoff that, “[s]ince the enactment
of the REAL ID Act, this jurisdiction-stripping provision applies ‘regardless of whether
the [administrative] judgment, decision, or action is made in removal proceedings.’ This
amendment . . . resolved whether § 1252(a)(2)(B) applied outside the context of removal
proceedings.” 447 F.3d 196, 199 n.5 (3d Cir. 2006) (quoting § 1252(a)(2)(B)).
We note, however, that the District Court erred to the extent that it held that
§ 1252(a)(2)(D) forecloses district court review of constitutional claims. The
Government urges that, by granting the courts of appeals jurisdiction to review
“constitutional claims or questions of law,” § 1252(a)(2)(D) eliminates district court
review of the same claims. Conversely, Vaso argues that § 1252(a)(2)(D) grants
jurisdiction to the district courts. We disagree with both propositions. Section
1252(a)(2)(D) unambiguously refers only to the jurisdiction of the courts of appeals. It
makes no mention of, and has no effect on, the jurisdiction of the district courts.
Moreover, § 1252(a)(2)(D) applies only to petitions for review of final removal orders.
Again, Jilin is instructive. After holding that § 1252(a)(2)(B) stripped the district court of
jurisdiction to hear the constitutional claims at issue there, we went on to state:
Had these claims been brought in a petition for review of a
final order of removal, then the jurisdiction stripped by
§ 1252(a)(2)(B) to review these constitutional claims would
have been restored by recently enacted § 1252(a)(2)(D).
Because, however, this is not a petition for review and no
final order of removal has been issued, § 1252(a)(2)(D) does
not apply.
447 F.3d at 206 n.16. As was the case in Jilin, Vaso did not bring a petition for review of
a final removal order. Thus, § 1252(a)(2)(D) has no bearing on this case.

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In light of the above conclusions, we need not reach the Government’s argument
that § 1182(i)(2) independently foreclosed jurisdiction in this case.
IV.
For the foregoing reasons, we will affirm the District Court’s order dismissing this
case for lack of subject matter jurisdiction.

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