Immig Kestelboym V. Chertoff Def Motion

Case 2:07-cv-00857-JAG-MCA

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CHRISTOPHER J. CHRISTIE United States Attorney By: Jafer Aftab Assistant U.S. Attorney 970 Broad Street, Suite 700 Newark, NJ 07102 Tel: 973.645.2892 Fax. 973.297.2010 [email protected]

Filed 09/05/2007

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ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY E LENA K ESTELBOYM, Plaintiff, v. M ICHAEL C HERTOFF, S ECRETARY FOR D EPARTMENT OF H OMELAND S ECURITY; E MILIO T. G ONZALES, D IRECTOR, U NITED S TATES C ITIZENSHIP & IMMIGRATIONS S ERVICES; R USSELL O WEN, D ISTRICT D IRECTOR, CIS,

H ON. JOSEPH A. G REENAWAY, JR., U.S.D.J. Civil Action No. 07-857

REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS

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. Defendant now replies to the opposition by plaintiff. II.

8 U.S.C. § 1256(a) Clearly Authorizes the Attorney General to Institute Removal Proceedings at Any Time; Defendant’s Conduct was Entirely Lawful.

Defendant’s initiation of removal proceedings was based on plaintiff’s responses at her naturalization interview that took place well within the five year period relating to a moral character

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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 compliance with the law. 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

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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 jurisdiction. See Pl.’s Opp. to Mot. to Dismiss, pp. 8-16. 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 IV.

The Administration of Justice Supports a Determination of Concurrent Jurisdiction.

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’

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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 recognized, all of this is speculative though and unhelpful to the discussion. 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 justice by avoiding duplicative litigation. Id. 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 By:

/S/ Jafer Aftab Jafer Aftab Assistant United States Attorney

DATED: 31 August 2007 Newark, NJ

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