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Defendants.
I. Preliminary Statement
Pursuant to Rule 12 of the Federal Rules of Civil Procedure, the defendant has moved the
Court for an Order dismissing this action without prejudice because it is not ripe for resolution.
naturalization interview that took place well within the five year period relating to a moral character
Case 2:07-cv-00857-JAG-MCA Document 13 Filed 09/05/2007 Page 2 of 4
determination.1 Accordingly, plaintiff’s argument in Point III that defendant’s initiation of removal
proceedings was void ab initio or ultra vires because it is based on conduct beyond five years is
baseless.2 Similarly, plaintiff reliance on putative legal authority for the same proposition in the form
of Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996), is also unavailing and misleading because the
immigration law upon which it is based, has been legislatively overruled by the enactment of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). See 8 U.S.C. §
1256(a)(IIRIRA added: “Nothing in this subsection shall require the Attorney General to rescind the
alien’s status prior to commencement of procedures to remove an alien under section 240 [1229a],
and an order of removal issued by an immigration judge shall be sufficient to rescind the alien’s
status.”). Under the current law, that is applicable here, a person can be placed in removal
proceedings at any time if it is discovered that she was adjusted improperly – there is no five year
limitation to the initiation of removal proceedings through the issuance of a Notice to Appear. Id; see
also In re Roa-Garcia, 2007 WL 1192114 (BIA March 21, 2007); In re Gonzalez, 2006 WL 3485775
(BIA October 31, 2006). For the reasons stated above, defendants’ conduct was entirely in
III. The Initiation of Removal Proceedings Render this Case Unripe and this
Court Should Sustain the Agency’s Efforts to Determine this Ongoing Matter
There Instead of Determining this Matter Anew.
Given that the agency’s conduct was clearly lawful, this Court is left to construe the interplay
between 8 U.S.C. §§ 1421 and 1429. As set forth in the defendants’ initial letter brief, the Sixth
1
Plaintiff’s assertion to the contrary, is belied by this reality. See Pl.’s Opp. to Mot. to
Dismiss, p. 4 n. 2.
2
. Though it his last legal argument, plaintiff lauds it as the most important and
explicitly relegates his first two arguments as “academic.” See Pl.’s Opp. to Mot. to Dismiss, p. 23. As
set forth hereinafter, his other contentions fare no better.
2
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Circuit decision in Zayed v. United States, 368 F.3d 902 (6th Cir. 2004), provides superior guidance for
this Court, because it presents a nearly identical factual predicate and the soundest application of
legal principles. Defendants scrupulously argued in its initial letter brief that this Court should
dismiss the matter as unripe. Defendants provided a footnote citation to a Third Circuit opinion
wherein the Court of Appeals pondered whether the District Court even had subject matter
jurisdiction. However, defendants’ explicitly concluded that “[t]his Court should dismiss the
amended complaint without prejudice while the removal proceedings are pending, because the
amended complaint is unripe.” See Defs. Letter Brief at pp. 2-3. Nevertheless, in plaintiff’s first legal
argument, defendant begins with a mischaracterization of defendants’ position that this Court lacks
To reiterate, defendants’ maintain that for the same reasons provided by the Zayed court, in a
nearly identical case, it is wise for this Court to dismiss the matter without prejudice as unripe, while
the removal action is pending. This determination supports the agency that was designed to
adjudicate these matters and that has already dealt with the matter to this point.3
Reading sections 1421 and 1429 together makes it eminently clear that there is concurrent
jurisdiction by this Court and the agency. Despite this, plaintiff continues to mischaracterize
defendants’ position, stating that because defendants’ argue that removal proceedings deprive this
Court of jurisdiction, this Court should determine that it has exclusive jurisdiction. See Pl.’s Opp. to
Mot. to Dismiss, pp. 17-20. Plaintiff suggests that defendants should initiate removal proceedings
after the judicial action is resolved. First, as stated earlier, plaintiff misconstrues defendants’
3
The removal proceeding is scheduled for 16 May 2008.
3
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argument; defendants’ maintain that it is wiser for this Court to dismiss the matter without prejudice
so that the agency can review the matter. Second, plaintiff’s suggestion is no more than an effort to
steer his adversary’s ship. The agency had no control over plaintiff’s filing of a petition for judicial
review. As much as plaintiff argues that defendant is forum shopping, see Pl.’s Opp. to Mot. to
Dismiss, pp. 20-23, it can also be argued with equal counter-force that petitioner filed in District
Court in an effort to avoid removal proceedings and the agency forum. As the Zayed court implicitly
There is concurrent jurisdiction to resolve this matter. See Zayed, supra. This Court also
should determine that there is concurrent jurisdiction because it provides the agency with an
opportunity to handle matters for which it is designed and advances the sound administration of
CONCLUSION
The defendants’ conduct in this case is altogether lawful. Further, the sound administration
of justice supports dismissing this unripe immigration matter without prejudice for handling by the
immigration agency.
Respectfully submitted,
CHRISTOPHER J. CHRISTIE
United States Attorney