Jimenez v. Napolitano et al

Filing 33

ORDER dismissing case with prejudice re 31 Response to Order to Show Cause filed by Leticia Gonzalez Jimenez. Signed by Judge Ronald M Whyte on 7/29/2015. (rmwlc2, COURT STAFF) (Filed on 7/29/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LETICIA GONZALEZ JIMENEZ,

Case No. 5:12-cv-03558-RMW

United States District Court
Northern District of California

Petitioner,
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v.

ORDER DISMISSING CASE

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Re: Dkt. Nos. 31, 32

JANET NAPOLITANO, et al.,
Respondents.

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Petitioner Letitia Gonzalez Jimenez seeks a writ of habeas corpus pursuant to 28 U.S.C.

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§ 2241 based on ineffective assistance of counsel. Dkt. No. 1. On September 30, 2013 the court

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granted petitioner’s motion to stay her petition for habeas corpus pending exhaustion of her

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administrative remedies. In the following 32 months, petitioner failed to file any motion to reopen

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her case before the BIA. On June 25, 2015, following three status updates indicating that

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petitioner had failed to file any administrative motion to reopen her case before the BIA, the court

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lifted the stay. Dkt. No. 30. The court also ordered petitioner to show cause why her case should

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not be dismissed for failure to diligently prosecute. Id.

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Petitioner’s response to the order to show cause agreed that the petitioner should be

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dismissed, but asks that the court dismiss the petitioner without prejudice. Dkt. No. 31.

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Respondents request that the dismissal be with prejudice, because petitioner is not seeking to

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reopen her administrative proceedings based on ineffective assistance of counsel, but rather “for

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5:12-cv-03558-RMW
ORDER DISMISSING PETITION

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purposes of a remand for administrative closure based on an approved, but not yet available fourth

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preference immigration visa in lieu of reopening based on ineffective assistance of counsel.” Dkt.

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No. 31 at 2. Because petitioner apparently has no plans to exhaust her administrative remedies

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with regard to the ineffective assistance of counsel claim, as required to pursue her petition in

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federal court, see Dkt. No. 25, the court will dismiss her petition WITH PREJUDICE to any claim

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based on ineffective assistance of counsel.

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IT IS SO ORDERED.
Dated: July 29, 2015
______________________________________
Ronald M. Whyte
United States District Judge

United States District Court
Northern District of California

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