Kashannejad v. United States Citizenship and Immigration Services et al

Filing 114

ORDER Denying 108 Plaintiff's Motion to Reconsider and Other Requests for Relief. Signed by Judge Edward M. Chen on 7/3/2012. (emcsec, COURT STAFF) (Filed on 7/3/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMSHID S. KASHANNEJAD,

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Plaintiff,

For the Northern District of California

United States District Court

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No. C-11-2228 EMC
ORDER DENYING PLAINTIFF’S
MOTION TO RECONSIDER AND
OTHER REQUESTS FOR RELIEF

v.
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, et al.,

(Docket No. 108)

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Defendants.
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Plaintiff has filed a document in which he asks the Court to reconsider a prior ruling as well

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as to grant other requested relief. Having considered Plaintiff’s submission, the Court hereby

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DENIES Plaintiff’s motion in its entirety.

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I.

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A.

DISCUSSION

Reconsideration
Plaintiff first asks the Court to reconsider its prior orders in which it declined to decide the

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issue of whether 8 C.F.R. § 245a.2(u)(2)(ii) could be retroactively applied to him. See, e.g., Docket

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No. 50 (Order at 5); Docket No. 53 (Order at 2); Docket No. 63 (Order at 2 n.1); Docket No. 84

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(Order at 3). The Court denies the motion to reconsider because Plaintiff has failed to show a

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material difference in law, a change in the law, or a manifest failure by the Court to consider a

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dispositive legal argument. See Civ. L.R. 7-9(b).

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Plaintiff’s reliance on a recent decision issued by the Ninth Circuit, see Garcia v. Thomas,

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No. 09-56999, 2012 U.S. App. LEXIS 11635 (9th Cir. June 8, 2012), is unavailing. In Garcia, the

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Ninth Circuit simply held that the Real ID Act (8 U.S.C. § 1252(a)(4)) did not repeal all federal

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habeas jurisdiction over the petitioner’s claims because it could “be construed as being confined to

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addressing final orders of removal, without affecting federal habeas jurisdiction.” Id. at *4. To the

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extent Plaintiff argues that the Court may express an opinion on the retroactivity of the regulation so

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long as no final order of removal has been issued, the Court does not agree. Defendants have not

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made any decision about whether to put Plaintiff into removal proceedings once he returns to the

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United States. Thus, Plaintiff is asking the Court to provide, in essence, an advisory opinion. The

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Court also notes that, under 8 U.S.C. § 1252(g), “no court shall have jurisdiction to hear any cause

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or claim by or on behalf of any alien arising from the decision or action by the Attorney General to

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commence proceedings, adjudicate cases, or execute removal orders against any alien under this
Act.” 8 U.S.C. § 1252(g); see also Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 599 (2002)

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For the Northern District of California

United States District Court

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(construing § 1252(g) “to include not only a decision in an individual case whether to commence,

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but also when to commence, a proceeding”) (emphasis omitted).

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B.

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Interlocutory Appeal
In his papers, Plaintiff asks the Court to certify for an interlocutory appeal whether this Court

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should express an opinion on the retroactivity of 8 C.F.R. § 245a.2(u)(2)(ii). Plaintiff also suggests

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that the Court should certify for an interlocutory appeal the issue of retroactivity on the merits. The

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Court denies this request for relief. Plaintiff has made no showing that he has met the standard laid

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out in 28 U.S.C. § 1292(b). See 28 U.S.C. § 1292(b) (providing that, “[w]hen a district judge, in

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making in a civil action an order not otherwise appealable under this section, shall be of the opinion

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that such order involves a controlling question of law as to which there is substantial ground for

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difference of opinion and that an immediate appeal from the order may materially advance the

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ultimate termination of the litigation, he shall so state in writing in such an order”).

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C.

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Prosecutorial Discretion
Plaintiff further asks the Court to order Defendants to make a statement as to whether they

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intend to exercise their prosecutorial discretion and initiate removal proceedings against him (in

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particular, before termination of his LTR status). This request for relief is also denied. As indicated

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above, § 1252(g) provides that “no court shall have jurisdiction to hear any cause or claim by or on

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behalf of any alien arising from the decision or action by the Attorney General to commence

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proceedings, adjudicate cases, or execute removal orders against any alien under this Act,” 8 U.S.C.

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§ 1252, and the Ninth Circuit has construed § 1252(g) “to include not only a decision in an

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individual case whether to commence, but also when to commence, a proceeding.”

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Jimenez-Angeles, 291 F.3d at 599 (emphasis omitted).

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D.

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Law of the Case
Finally, Plaintiff asks the Court to make a determination that it is the law of the case that 8

Medrano, 20 I. & N. 216 (1990), governs his case. See id. at 218 (holding that “the termination

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process will precede the commencement of deportation proceedings against an alien”) (emphasis

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added). This argument has no merit. The case over which Judge Legge presided is a completely

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For the Northern District of California

C.F.R. § 245a.2(u)(2)(ii) has no applicability to him and that instead the rule articulated in Matter of

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United States District Court

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different lawsuit from the instant case. The Court also notes that this is an argument that Plaintiff

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could have raised before but did not.1

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II.

CONCLUSION

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For the foregoing reasons, the Court denies Plaintiff’s request for relief. The Court also

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notes that it has now rejected Plaintiff’s argument that the Court should decide the retroactivity

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argument at least four times. See Docket No. 50 (Order at 5); Docket No. 53 (Order at 2); Docket

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No. 63 (Order at 2 n.1); Docket No. 84 (Order at 3). Plaintiff is forewarned that, if he moves the

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Court to reconsider this ruling yet another time, he risks having sanctions imposed on him should the

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Court conclude that his request for reconsideration is without substantial justification.

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IT IS SO ORDERED.

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Dated: July 3, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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The Court has already rejected arguments made by Plaintiff that judicial estoppel, res
judicata, and/or collateral estoppel is applicable based on the prior proceedings involving Judge
Legge.

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