Catchai v. Department of Justice, Executive Office for Immigration Review et al

Filing 4

ORDER dismissing this action, and denying leave to proceed in forma pampers on appeal, by Judge Lewis T. Babcock on 3/7/16. 3 Application to Proceed in District Court Without Prepaying Fees or Costs is granted. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00538-GPG
SIMAO PEDRO CATCHAI,
Plaintiff,
v.
DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, and
DEPARTMENT OF HOMELAND, IMMIGRATION AND CUSTOMS ENFORCEMENT,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Simao Pedro Catchai, has filed pro se a Complaint and Jury Demand
(ECF No. 1) and an Application to Proceed in District Court Without Prepaying Fees or
Costs (Long Form) (ECF No. 3). The Application to Proceed in District Court Without
Prepaying Fees or Costs (Long Form) will be granted.
The court must construe the complaint liberally because Mr. Catchai is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Mr. Catchai claims his rights were violated during immigration proceedings that
resulted in a final order of removal. During those proceedings, “he sought asylum,
withholding of removal, and protection under the United Nations Convention Against
Torture (CAT) on the basis of political persecution.” Catchai v. Holder, 591 F. App’x 665,
666 (10th Cir. 2014). The immigration judge found Mr. Catchai not credible and ordered

his removal, the Board of Immigration Appeals affirmed, and the United States Court of
Appeals for the Tenth Circuit denied his petition for review. See id. Mr. Catchai
appears to acknowledge that this Court does not have “jurisdiction to review the
immigration case.” (ECF No. 1 at 1.) Nevertheless, he contends “[t]he Deprivation of
the Plaintiff’s civil rights rises based on how the law was wrongly applied and the due
process of law of the Constitution of the United States was violated” by the immigration
judge, the Board of Immigration Appeals, the Tenth Circuit, and the Bureau of
Immigration and Customs Enforcement. (Id.) Whatever due process claim Mr. Catchai
may be asserting stemming from the proceedings in his immigration case must be
dismissed because the Court lacks jurisdiction to consider that claim. See Green v.
Napolitano, 627 F.3d 1341, 1346-47 (10th Cir. 2010).
Mr. Catchai also asserts several claims contending his rights under various
criminal statutes and federal treaties have been violated. As relief he seeks an injunction
or temporary restraining order to restrain violations of his civil rights under 18 U.S.C. §
242 and damages for torture, emotional distress, and trauma. These claims also will be
dismissed for lack of jurisdiction to the extent Mr. Catchai is asking the Court to review the
proceedings in his immigration case. See id.
Furthermore, Mr. Catchai lacks standing to assert claims premised on alleged
violations of criminal statutes because courts universally endorse the principle that
private citizens cannot prosecute criminal actions. See, e.g., Cok v. Cosentino, 876 F.2d
1, 2 (1st Cir.1989) (per curiam); Connecticut Action Now, Inc. v. Roberts Plating Co., 457
F.2d 81, 86-87 (2d Cir.1972) (“It is a truism, and has been for many decades, that in our
2

federal system crimes are always prosecuted by the Federal Government, not as has
sometimes been done in Anglo-American jurisdictions by private complaints.”); Winslow
v. Romer, 759 F. Supp. 670, 673 (D. Colo.1991) (“Private citizens generally have no
standing to institute federal criminal proceedings.”). In addition, the statutes Mr. Catchai
cites do not provide for a private right of action that would authorize an award of damages.
See, e.g., Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007) (dismissal of claims
alleging violations of criminal statutes proper if criminal statutes do not provide for a
private right of action).
Finally, Mr. Catchai cannot recover an award of damages in this action because
Defendants are federal government agencies. See FDIC v. Meyer, 510 U.S. 471, 475
(1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its
agencies from suit.”).
For these reasons, the complaint will be dismissed. The Court also certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in
good faith and therefore in forma pauperis status will be denied for the purpose of appeal.
See Coppedge v. United States, 369 U.S. 438 (1962). If Plaintiff files a notice of appeal
he also must pay the full $505 appellate filing fee or file a motion to proceed in forma
pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in
accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the Application to Proceed in District Court Without Prepaying
Fees or Costs (Long Form) (ECF No. 3) is granted. It is
FURTHER ORDERED that the Complaint and Jury Demand (ECF No. 1) and the
3

action are dismissed. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied
without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on
appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this

7th

day of

March

, 2016.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

4