2002 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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. 

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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 xrays, 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. 

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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. 

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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. 

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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 

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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 longterm 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 

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