Immig Kestelboym V. Chertoff Def Reconsider

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

Document 16-3

Filed 03/31/2008

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United States Department of Justice United States Attorney District of New Jersey Civil Division 970 Broad Street, Suite 700 Newark, New Jersey 07102

General Tel: 973.645.2700 Direct Tel: 973.645.2892 Fax:: 973.297.2010 e-mail: [email protected]

ELECTRONICALLY FILED 31 March 2008 The Honorable Joseph A. Greenaway, Jr., U.S.D.J. United States District Court United States Post Office & Courthouse Federal Square Newark, NJ 07102 Re:

Kestelboym v. Chertoff, et al., Civil Action No. 07-857

Your Honor: Please accept this letter in support of defendant's motion for reconsideration. Local Civil Rule 7.1(i) permits a party to set forth concisely the matter or controlling decision that the party believes the judge has overlooked in support of a motion for reconsideration. The courts in this district have emphasized repeatedly that the motion of reconsideration invites counsel to draw the court's attention to decision which counsel believes the court may have overlooked, not those overlooked by counsel. See Polizzi Meats, v. Aetna Life & Cas., 931 F. Supp. 328, 339 (D.N.J. 1996). The United States further recognizes that a motion for reconsideration should be rare, though it is improperly used with unfortunate frequency. See Bowers v. NCAA, 130 F. Supp.2d 610, 613 (D.N.J. 2001). The United States believes this is that rare case where the Court overlooked the United States's argument and would like to give the Court another opportunity to reconsider. In the end, the United States had asserted in its succinct submissions to the Court that the matter should be dismissed, because it is unripe only. After the United States had reviewed the statutory and administrative scheme and the case law, the United States advised the Court that the Third Circuit left open the question of whether there was subject matter jurisdiction in the matter, but because the United States already had reviewed the other case law on the subject, holding that there was subject matter jurisdiction, it therefore only scrupulously asserted, "this Court must dismiss the instant petition without prejudice, because it is, at a minimum, unripe." See Def.'s Mot. Letter Br. at p. 1-2. Accordingly, the United States then brought to the Court's attention and digested the Sixth Circuit case, Zayed v. United States, 368 F.3d 902 (6th Cir. 2004), in relation to this matter, which explored the interplay between Sections 1421 and 1429, and determined that the District Court had subject matter jurisdiction. Id. at 906. However, based on the statutory and administrative scheme and consistent with the case law, the United States novelly argued that the District Court should dismiss the complaint, because it was unripe only. See Def.'s Mot. Letter Br. at p. 2. The United States therefore concluded that "this Court should dismiss the amended complaint without prejudice while the removal proceedings are pending, because the amended complaint is unripe." Id. at p. 3.

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Concerned that plaintiff had misconstrued defendant's argument about subject matter jurisdiction, in its reply, the United States in its preliminary statement, again reiterated its unripeness position. See Def. Reply Br. at p. 1. The United States maintained in the reply brief, "Defendant scrupulously argued in its initial brief that this Court should dismiss the matter as unripe. Defendant 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 Def.'s Letter Br. at pp. 2-3." See Def. Reply Br. at p. 3. The United States then reiterated its position three more times, including the conclusion, leaving little doubt that the United States asserted that while there is concurrent jurisdiction, again citing to Zayed, the Court should dismiss the unripe matter to advance the sound administration of justice by avoiding duplicative litigation. Id. at 3-4. As footnote 1 of this Court's opinion demonstrates, this Court has overlooked the argument of the United States. See Kestelboym v. Chertoff, ___ F. Supp.2d ___, 2008 WL 68398 at *1 n.1 (D.N.J. Mar. 13, 2008). Contrary to the Court's assertion in that footnote, the United States was not challenging the Court's subject matter jurisdiction. The United States's collective submissions demonstrate this to be true. Furthermore, contrary to the Court's assertion, the United States rested its authority on Rule 12 as well as Zayed, for the repeated assertion that while there may be subject matter jurisdiction, the matter should be dismissed as unripe. Aside from this, the United States submits that ripeness is not truly rooted in any rule, but in prudential considerations, as the Third Circuit has recited. See Armstrong World Indus. by Wolfson v. Adams, 961 F.2d 405, 411 n. 12 (3d Cir. 1992). Interestingly, one District Court in the District of New Jersey has attached the ripeness doctrine to Rule 12(b)(1), which is the Rule this Court attached to the United States's submission. See Ford Motor Credit Co. v. Chiorasso, 529 F. Supp.2d 535, 539-40 (D.N.J. 2008). Aside from the citation to the Rule or case law, the United States plainly set forth the novel ripeness argument for review. Finally, because of the novelty of the argument, it was not possible to cite to case law. The Court's entire opinion went on to hold that the Court has subject matter jurisdiction. See Kestelboym, 2008 WL 68398 at *1-6. However, the United States plainly had recognized and conceded that point. The United States's only argument was that the Court should dismiss the matter as unripe. This Court did not address the United States's only argument. The United States submits that this is that rare case for reconsideration, and submits further that this Court should dismiss the amended complaint without prejudice because of unripeness as a matter prudence, because of the pending removal proceedings. In support thereof, consistent with the position of the United States, this Court in its opinion has agreed that the priority provision is designed to prevent a race between the immigrant and the Attorney General and that the overhaul of the naturalization process was designed to shift from judicial to administrative naturalization proceedings. See Kestelboym, 2008 WL 68398 at *3. Moreover, consistent with the United States's position, this Court has agreed that the Court has concurrent jurisdiction. The United States never suggested, as the Court has understood the United States's argument, that the Attorney General could avoid the Court's jurisdiction, id. at *5, rather it conceded the Court's jurisdiction and only suggested that prudentially this Court should dismiss the immigrant's complaint. However, the Court did not reach the United States's ripeness argument. In this way, should this Court reconsider and agree, the immigrant, under the proper circumstances, would still have the opportunity to bring the

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complaint at the right time.1 This is the soundest course for the reasons already set forth by this Court; it avoids a race by the litigants, advances the legislative priority given to administrative naturalization proceedings, and advances the sound administration of justice by avoiding duplicative litigation as already set forth by the United States in its prior submissions to this Court. For these reasons, we respectfully submit that this Court should reconsider its published opinion and reissue an opinion properly reciting the United States's argument, that is, that while the Court does indeed have concurrent jurisdiction, the complaint prudentially should be dismissed because it is unripe only. Sincerely, CHRISTOPHER J. CHRISTIE United States Attorney /S/ Jafer Aftab By: JAFER AFTAB Assistant United States Attorney

1

As provided in the reply brief, the removal proceeding hearing is scheduled for 16 May 2008; this is 11 days after the return date of this motion.