Immig Kestelboym V. Chertoff Order On Reconsider

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

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ____________________________________ : ELENA KESTELBOYM, : : Plaintiff, : : v. : : MICHAEL CHERTOFF, Secretary, : Department of Homeland Security; : RUSSELL OWEN, District Director, : United States Citizenship and Customs : Enforcement [sic]; UNITED STATES : CITIZENSHIP AND IMMIGRATION : SERVICES, : : Defendants. : ____________________________________:

Civil Action No. 07-857 (JAG) ORDER

This matter comes before this Court on the motion of Defendants Michael Chertoff, Russell Owen, and the United States Citizenship and Immigration Services (collectively “Defendants”), for reconsideration of this Court’s March 13, 2008 Opinion and Order, denying Defendants’ motion to dismiss for lack of subject matter jurisdiction, pursuant to FED . R. CIV . P. 12(b)(1). I. BACKGROUND This Court stated the facts relevant to the pending motion in its March 13, 2008 Opinion. See Kestelboym v. Chertoff, No. 07-857, 2008 U.S. Dist. LEXIS 20529, *2-5 (D.N.J. Mar. 13, 2008). This Court will not repeat those facts; however, this Court will provide a brief procedural history. On August 2, 2004, Plaintiff filed an N-400 application for naturalization, pursuant to § 319(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1430(a) (1990). (Am.

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Compl. ¶ 24.) The United States Citizenship and Immigration Services (“USCIS”) denied Plaintiff’s naturalization application, as well as Plaintiff’s request for a hearing. (Id. at ¶¶ 25-27.) As a result of this denial, Plaintiff filed a complaint in this Court, on February 21, 2007, seeking a de novo review of the denial of her naturalization application, pursuant to § 310(c) of the INA, 8 U.S.C. § 1421(c) (1990). On May 8, 2007, USCIS issued a removal notice to Plaintiff, and subsequently filed a motion to dismiss Plaintiff’s Complaint. (See generally, Mot. to Dismiss.) This Court, construing the motion as one to dismiss for lack of subject matter jurisdiction, denied the Motion to Dismiss. Kestelboym, 2008 U.S. Dist. LEXIS 20529, at *15-16. On March 31, 2008, USCIS filed a Motion for Reconsideration, arguing that “[t]his Court did not address the United States’s only argument,” that this matter should be dismissed because it is unripe, and for that reason, its motion should be granted. (See Mot. for Recons. 2.) II. STANDARD OF REVIEW A motion to reconsider, pursuant to FED . R. CIV . P. 59(e) and L. CIV . R. 7.1(i), is “an extremely limited procedural vehicle,” and requests pursuant to these rules are to be granted “sparingly.” P. Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161 F. Supp. 2d 349, 353 (D.N.J. 1992) (citing Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986)). The Third Circuit has held that the purpose of a motion to reconsider is to “correct manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986). A court may grant a motion to reconsider only if the moving party shows either: (1) an intervening change in the controlling law; (2) the existence of new evidence that was not 2

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

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available when the court issued its order; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. See N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). To satisfy its burden, the moving party must show “dispositive factual matters or controlling decisions of law” that were brought to the court’s attention but not considered. P. Schoenfeld Asset Mgmt. LLC, 161 F. Supp. 2d at 353; see also Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987). “The motion may not be used to re-litigate old matters or argue new matters that could have been raised before the original decision was reached.” P. Schoenfeld Asset Mgmt., L.L.C., 161 F. Supp. 2d at 352. “A party seeking reconsideration must show more than a disagreement with the Court’s decision, and ‘recapitulation of the cases and argument considered by the court before rendering its original decision fails to carry the moving party’s burden.’” Id. (quoting G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990) (internal citations omitted)). The “proper ground for granting a motion to reconsider, therefore, is that the matters or decisions overlooked, if considered by the court, ‘might reasonably have altered the result reached.’” G-69, 748 F. Supp. at 275 (quoting N.Y. Guardian Mortgagee Corp. v. Cleland, 473 F. Supp. 409, 420 (S.D.N.Y. 1979)). III. ANALYSIS Defendants argue that this Court failed to comprehend the crux of their argument adequately. They state that the gist of the argument is that Plaintiff’s claim is unripe because removal proceedings are pending. (Mot. for Recons. 2.) Defendants claim that this particular position is novel, and therefore, “it was not possible to cite to case law” in support of such theory. (Id.) 3

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Although Defendants may be correct in arguing that the theory that a case must be ripe for adjudication has not been applied to the particular facts before this Court, ripeness is not an inherently novel issue, whether in this context or otherwise. See 15 JAMES WM . MOORE , MOORE ’S FEDERAL PRACTICE §§ 101.70[1], 101.73[1] (3d ed. 2007) (stating that “[t]he question of ripeness goes to whether the district court has subject matter jurisdiction” and that “[t]he question of ripeness, like other challenges to a court’s subject matter jurisdiction, is treated as a motion to dismiss under Rule 12(b)(1)”). However, Defendants fail to cite any precedent at any level of federal jurisprudence, or any analogous legal theories that shed light on the theory espoused. This Court perceived then, and perceives now, that it has subject matter jurisdiction over Plaintiff’s Complaint, and that the claims are ripe. A person whose application for naturalization under this title is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court for the district in which such person resides. . . . Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application. 8 U.S.C. § 1421(c). Plaintiff’s application for naturalization, as well as her request for a hearing before an immigration officer, was denied. (Am. Compl. ¶¶ 24-27.) Accordingly, Plaintiff’s claim is properly before this Court.1 See 15 JAMES WM . MOORE , MOORE ’S FEDERAL PRACTICE §§ 101.70[2] (stating that “[t]he ripeness doctrine concerns the timing of the suit. It asks whether the case has been brought at a point so early that it is not yet clear whether a real dispute to be 1

It is curious that Defendants attempt to craft an argument suggesting that Plaintiff’s claims are unripe when her Complaint was filed prior to the institution of removal proceedings. In fact, Plaintiff’s Complaint was filed on February 21, 2007, while Defendants initiated removal proceedings on May 8, 2007, over a year after Plaintiff’s naturalization application was denied, and six months after her request for a hearing was denied, but just six days before Defendants’ answer to Plaintiff’s Complaint was due. 4

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resolved exists between the parties.”). For the reasons stated above and good cause appearing, IT IS on this 17th day of June, 2008 ORDERED that Defendants’ Motion for Reconsideration is DENIED; and it is further ORDERED that a copy of this Order be served on all parties within seven (7) days of the date of entry of this Order.

S/Joseph A. Greenaway, Jr. JOSEPH A. GREENAWAY, JR., U.S.D.J.

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