Ahmed-Al-Khalifa v. Holder
Filing
7
WRITTEN Opinion entered by the Honorable Harry D. Leinenweber on 6/5/2013: Plaintiff's application to proceed in forma pauperis (ECF No. 4 ) is denied. Plaintiff's complaint is frivolous and dismissed with prejudice. Plaintiff's motion for appointment of counsel (ECF No. 5 ) is denied as moot. Mailed notice (tlm)
Order Form (01/2005)
United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge
Harry D. Leinenweber
CASE NUMBER
12 C 10339
CASE
TITLE
Sitting Judge if Other
than Assigned Judge
DATE
6/5/2013
Ahmed-Al-Khalifa vs. Holder
DOCKET ENTRY TEXT
Plaintiff’s application to proceed in forma pauperis (ECF No. 4) is denied. Plaintiff’s complaint is frivolous
and dismissed with prejudice. Plaintiff’s motion for appointment of counsel (ECF No. 5) is denied as moot.
O[ For further details see text below.]
Docketing to mail notices.
Mailed AO 450 form.
STATEMENT
Pro se Plaintiff Oluwashina Kazeem Ahmed-Al-Khalifa filed an application to proceed in forma pauperis and
a motion for appointment of counsel. Plaintiff, a non-resident alien, brings his claim under 18 U.S.C. §1983
alleging that on November 14, 2012, the Attorney General violated his civil rights by declining to grant him
“express consent” to re-enter the United States as required under 8 U.S.C. §1326 following his deportation.
To permit Plaintiff to proceed in forma pauperis, the Court must find two things: (1) that Plaintiff cannot pay
the costs of the case; and (2) that the case is not frivolous or brought in bad faith. 28 U.S.C. § 1915(a),(e).
The Court will dismiss the case if it is frivolous, malicious, or fails to state a claim upon which relief may be
granted. Id. § 1915 (e)(2)(B). The Court liberally construes pro se filings, including applications to proceed
in forma pauperis. See Ricketts v. Midwest Nat. Bank, 874 F.2d 1177, 1183 (7th Cir. 1989).
Plaintiff has represented to the Court that he has no income whatsoever. The Court is highly skeptical of this
representation. As a non-incarcerated person, Plaintiff must have some way of obtaining food, shelter and
clothing on a day-to-day basis. This is especially true considering Plaintiff claims an individual is dependent
on him for support in response to question 11. Plaintiff also failed to indicate his spouse’s salary in response
to question 3. The Court must have an accurate picture of Plaintiff’s finances in order to determine if he is
eligible to proceed in forma pauperis, and Plaintiff failed to do so.
More problematic for Plaintiff, however, is that he fails the second prong, as well. Congress has plenary
power to make policies excluding aliens. Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972). 8 U.S.C.
§1326 is limited in scope to aliens who have been previously deported. “An alien who has been deported
reenters this country at his peril…[and] had better make certain that he has the Attorney General's express
consent to enter, because if he does not he is guilty of a felony.” United States v. Carlos-Colmenares, 253
12C10339 Ahmed-Al-Khalifa vs. Holder
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STATEMENT
F.3d 276, 278 (7th Cir. 2001). Moreover, unadmitted and nonresident aliens do not have a constitutional right
of entry into the United States. Kleindienst, 408 U.S. at 762.
Under Article III of the United States Constitution, federal courts have limited jurisdiction to hear only
“cases” and “controversies.” Abercrombie v. Office of Comptroller of Currency, 833 F.2d 672, 674 (7th Cir.
1987). In order to be a justiciable case or controversy, the plaintiff must have standing. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). The doctrine of standing has three elements:
First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected
interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical. Second, there must be a causal connection between the injury and the conduct
complained of - the injury has to be fairly traceable to the challenged action of the defendant,
and not the result of the independent action of some third party not before the court. Third, it
must be likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.
Id. at 560-61 (quotations omitted).
Plaintiff’s complaint fails for lack of standing. Congress chose to use its plenary power to pass 8 U.S.C
§1326. This law clearly states nonresident aliens who were previously deported from the United States are
guilty of a felony if they enter, attempt to enter, or at any time are found in the United States without first
obtaining express consent from the Attorney General. Id. In the instant case, the Plaintiff falls under the
scope of 8 U.S.C. §1326 because he was previously deported from the United States after admitting he
illegally entered the country using a counterfeit social security card and birth certificate. However, the
Plaintiff has not sustained an actual injury to a legally protected interest. Plaintiff has not entered, attempted
to enter, or been found in the United States in violation of 8 U.S.C. §1326. Additionally, Plaintiff – who is a
nonresident alien residing in Nigeria – does not have a Constitutionally protected right of entry into this
country. Kleindienst, 408 U.S. at 762. As a result, the Department of Justice’s November 14, 2012, letter
returning Plaintiff’s request for the Attorney General’s express consent to enter the United States did not
constitute an actual injury granting Plaintiff standing to bring this claim. Thus, Plaintiff’s complaint is
frivolous and dismissed with prejudice. As a result, Plaintiff’s motion for the appointment of counsel is
denied as moot.
12C10339 Ahmed-Al-Khalifa vs. Holder
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