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14-2945-cv 

H.M.G. v. Johnson 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A 

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH 

THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER 

MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 9th day of April, two thousand fifteen. 

 

PRESENT: CHESTER J. STRAUB, 

 ROBERT D. SACK, 

CHRISTOPHER F. DRONEY, 

Circuit Judges. 

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H.M.G., H.L.G., KELLY RUTHERFORD, 

Petitioners-Appellants, 

v. No. 14-2945-cv 

 

SECRETARY JEH JOHNSON, U.S. Department of Homeland 

Security, in his official capacity as well as his successors 

and assigns, ATTORNEY GENERAL ERIC H. HOLDER, JR., in 

his official capacity as well as his successors and assigns, 

U.S. Department of Justice, DIRECTOR LEON RODRIGUEZ, 

U.S. Department of Homeland Security, U.S. Citizenship 

and Immigration Services, in his official capacity, as well 

as his successors and assigns, NEW YORK CITY DIRECTOR 

PHYLLIS COVEN, New York City Field Office, U.S. 

Department of Homeland Security, U.S. Citizenship and 
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Immigration Services, in her official capacity, as well as 

her successors and assigns, 

 Respondents-Appellees.

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FOR PETITIONERS-APPELLANTS: WENDY MURPHY, Director, Women’s and 

Children’s Advocacy Project, Center for 

Law and Social Responsibility at New 

England Law | Boston, Boston, MA (James 

R. Marsh, Marsh Law Firm PLLC, White 

Plains, NY, on the brief). 

FOR RESPONDENTS-APPELLEES: JACOB M. BERGMAN, Assistant United 

States Attorney (Benjamin H. Torrance, 

Assistant United States Attorney, of 

counsel; Preet Bharara, United States 

Attorney for the Southern District of New 

York, on the brief), United States 

Attorney’s Office for the Southern District 

of New York, New York, NY. 

Appeal from an August 15, 2014 memorandum and order of the United States 

District Court for the Southern District of New York (Carter, J., sitting in Part I). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the order of the district court is AFFIRMED. 

This appeal arises in connection with the dissolution of a marriage and the 

subsequent custody and welfare of the children of that marriage. The issues that 

Petitioners seek to raise are thus of grave importance and sensitivity. We deeply 

sympathize with the plight of these parents and their children. However, we are plainly 

without authority to address these questions in this proceeding. 

Petitioners, a U.S. citizen mother and her two minor, U.S. citizen children, filed a 

mandamus petition and request for a preliminary injunction against the heads of various 

federal agencies involved with citizenship and removal responsibilities. The district court 

dismissed the petition for lack of subject matter jurisdiction and observed that, even if 

jurisdiction did exist, Petitioners had failed to demonstrate entitlement to preliminary 

injunctive relief. This appeal followed. 
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We assume the parties’ familiarity with the underlying facts, the procedural history 

of the case, and the issues on appeal. 

We review de novo a district court’s dismissal of a case for lack of subject matter 

jurisdiction. See Delgado v. Quarantillo, 643 F.3d 52, 54 (2d Cir. 2011) (per curiam). 

Under the mandamus statute, “[t]he district courts shall have original jurisdiction of 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.” 28 U.S.C. § 1361. In order 

for the writ to issue, a petitioner is required to “prove[] that (1) there is a clear right to the 

relief sought; (2) the Government has a plainly defined and peremptory duty to perform the 

act in question; and (3) there is no other adequate remedy available.” Benzman v. 

Whitman, 523 F.3d 119, 133 (2d Cir. 2008) (citing Anderson v. Bowen, 881 F.2d 1, 5 (2d 

Cir. 1989)). 

As the district court correctly held, Petitioners have identified neither a clear right to 

relief nor a “plainly defined and peremptory duty” on the part of the federal agencies to 

intervene in the custody dispute. Petitioners allege that the California state court’s 

custody order had the effect of deporting the children in violation of their Fourteenth 

Amendment right to remain in the United States. 

There is no authority establishing the unconditional right of minor children to reside 

in the United States when one of their custodial parents lives abroad.1

 Likewise, there is 

 

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 In support of the existence of such a right, Petitioners rely in significant part on a District of New Jersey 

case—reversed on appeal—in which the deportation of two non-citizen parents was held to effect the unlawful, 

constructive deportation of their U.S. citizen child. See Acosta v. Gaffney, 413 F. Supp. 827 (D.N.J. 1976), rev’d, 558 

F.2d 1153 (3d Cir. 1977). 

Petitioners contend that, in reversing the outcome in Acosta, the Third Circuit left undisturbed the district 

court’s holding regarding the right to remain in the United States. This mischaracterizes the Third Circuit’s ruling. 

The Third Circuit first observed that the right at issue was actually the “broader . . . fundamental right of an American 

citizen to reside wherever he wishes, whether in the United States or abroad, and to engage in the consequent travel.” 

Acosta, 558 F.2d at 1157. The court then explained that “the right is purely theoretical” with respect to minors who 

are “incapable of exercising it.” Id. This latter statement was not, as Petitioners contend, aimed solely at children 

who lack a guardian in the United States. As the Third Circuit explained, even if the parents had the option of leaving 

the child with foster parents, “this would be their decision involving the custody and care of their child, taken in their 

capacity as her parents, not an election by [the child] herself to remain in the United States.” Id. at 1158. 

The Northern District of New York’s decision in Perez v. United States, 502 F. Supp. 2d 301 (N.D.N.Y. 

2006), also cited by Petitioners, is not to the contrary. In Perez, the petitioner had been unaware of his citizenship 

status at the time of his deportation and subsequent conviction for wrongful reentry. Id. at 303-04. The district court 

granted his habeas petition on the grounds that, inter alia, U.S. citizens are legally entitled to remain in the United 

States and thus cannot be convicted of illegal reentry. Id. at 311. The children here have neither been deported nor 

charged with illegal reentry; they have simply been placed in the joint custody of their parents, one of whom resides 

abroad. 
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no “plainly defined and peremptory duty” requiring Respondents to interfere with the 

custody order—nor is there, as Petitioners contend, a general affirmative duty on federal 

agencies requiring them to intervene against what is claimed to be unconstitutional state 

action. Petitioners effectively concede as much in their brief, as they urge the Court to 

“recognize” the duty in light of the “unique and unprecedented facts” of the case. Pet’rs’ 

Br. at 20-21. But it is well established that federal courts may not impose new duties in 

the context of mandamus proceedings. See U. S. ex rel. Int’l Contracting Co. v. Lamont, 

155 U.S. 303, 308 (1894) (“The duty to be enforced by mandamus must not only be merely 

ministerial, but it must be a duty which exists at the time when the application for the 

mandamus is made.”). 

We also affirm the district court’s holding that it lacked federal question jurisdiction 

under 28 U.S.C. § 1331. While the jurisdictional inquiry is ordinarily distinct from an 

assessment of the viability of the underlying claim, this general principle does not apply 

where, as here, the claim is “wholly insubstantial and frivolous.” Bell v. Hood, 327 U.S. 

678, 681-83 (1946); Carlson v. Principal Fin. Grp., 320 F.3d 301, 306 (2d Cir. 2003); see 

also Hernstadt v. Hernstadt, 373 F.2d 316, 317-18 (2d Cir. 1967). 

Here, as the district court correctly observed, the children have not been deported; 

they retain their United States citizenship and, once they reach the age of majority, they 

will be free to choose where to reside. There is, therefore, no non-frivolous constitutional 

question, only an attempt to seek federal judicial intervention in a state court custody 

dispute. Under such circumstances, it would plainly be improper for the federal courts to 

assume jurisdiction over the case. See Hernstadt, 373 F.2d at 317-18. 

Because the district court properly dismissed the petition for want of subject matter 

jurisdiction, we need not reach the merits of Petitioners’ preliminary injunction 

application. 

We have considered Petitioners’ remaining arguments and find them to be without 

merit. Accordingly, we AFFIRM the district court’s memorandum and order dismissing 

the petition. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court