Akpovi v. Douglas et al

Filing 37

MEMORANDUM AND ORDER - Petitioner's Motion to Alter or Amend Judgment Pursuant to Federal Rule of Civil Procedure 59(e), Filing 29 , is denied. Ordered by Judge Brian C. Buescher. (LKO)

8:20-cv-00268-BCB-CRZ Doc # 37 Filed: 07/19/21 Page 1 of 3 - Page ID # 492

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HAFILS Y AKPOVI,
Petitioner,

8:20-CV-268

vs.
MEMORANDUM & ORDER
DAVID DOUGLAS, District Director USCIS
Nebraska District Office; WILLIAM CONNOR,
Field Office Director U.S. Citizenship and
Immigration Services; KENNETH T.
CUCCINELLI, Senior Official Performing the
Duties of the Director, U.S. Citizenship and
Immigration Services; CHAD F. WOLF, Acting
Secretary U.S. Department of Homeland
Security; and WILLIAM BARR, Attorney
General U.S. Department of Justice;
Respondents.

On April 1, 2021, the Court dismissed this case because it lacks authority to grant the relief
sought by Petitioner and for failure to state a claim upon which relief can be granted. Filing 27.
The Court subsequently entered judgment, Filing 28. Pending before the Court is petitioner Hafils
Y Akpovi’s Motion to Alter or Amend Judgment Pursuant to Federal Rule of Civil Procedure
59(e). Filing 29. Because Akpovi has not demonstrated a manifest error of law or fact in the
original judgment, his Motion to Alter or Amend is denied.
Akpovi asks the Court to alter or amend its judgment dismissing his case pursuant to
Federal Rule of Civil Procedure 59(e). Filing 29. “Motions under Rule 59(e) ‘serve the limited
function of correcting manifest errors of law or fact or to present newly discovered evidence . . . .’”
Ryan v. Ryan, 889 F.3d 499, 507 (8th Cir. 2018) (quoting United States v. Metro. St. Louis Sewer
Dist., 440 F.3d 930, 933 (8th Cir. 2006)). Such motions “cannot be used to introduce new evidence,

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tender new legal theories, or raise arguments which could have been offered or raised prior to the
entry of judgment.” Id. (quoting Metro. St. Louis Sewer Dist., 440 F.3d at 933). “[T]he district
court has ‘considerable discretion to deny a post-judgment motion for leave to amend because such
motions are disfavored . . . .’” Ryan, 889 F.3d at 508 (quoting United States ex rel. Roop v.
Hypoguard USA, Inc., 559 F.3d 818, 824 (2009)).
Akpovi argues that the Court committed a “manifest error of law” for purposes of Rule
59(e) by dismissing his petition without prejudice, specifically when the Court stated he could
reassert the claim “should removal proceedings be terminated in his favor.” Filing 30 at 2; Filing
27 at 10. Akpovi argues that because he would be “time-barred from reasserting” his petition for
review, the Court erred in stating he could reassert his claim if he were to be successful in his
removal proceedings. Filing 30 at 2.
The Court agrees that 8 C.F.R. § 336.9 requires the petition for review of a denial of an
application for naturalization be filed “within a period of not more than 120 days after the USCIS
final determination.” However, the Court also correctly noted that Petitioner could reassert a
petition should removal proceedings be terminated in his favor. Filing 27 at 10. Specifically, if
successful in his removal proceedings, Akpovi would be able to file a new N-400 application and
would not be precluded from filing a petition under 8 U.S.C. § 1421(c) should the newly filed
application be denied. While this might be inconvenient or costly for Petitioner, this does not mean
that the Court’s legal conclusions constitute a “manifest error of law.” Other courts have agreed
that in similar situations, a petitioner could refile if he or she prevails in his or her immigration
proceedings. See, e.g., Ajlani v. Chertoff, 545 F.3d 229, 241 (2d Cir. 2008) (“To the extent Ajlani
faults the district court for dismissing his [request-for-hearing-on-denial-of-naturalization] claim
rather than holding it in abeyance pending the conclusion of his removal proceedings, we identify

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no error because we do not understand the district court to have foreclosed the possibility of refiling
if removal proceedings are resolved favorably to Ajlani.”); Zayed v. United States, 368 F.3d 902,
907 (6th Cir. 2004) (finding no error in dismissing a petition for review of a naturalization denial
because, “[t]he petition having been dismissed without prejudice, Ms. Zayed will have an
opportunity to file a new petition if she prevails in the removal proceedings.”). The standard for a
Rule 59(e) motion to amend or alter is a high bar, and Akpovi has not demonstrated a manifest
error of law or fact.
Akpovi also reasserts “all of the arguments set forth in his . . . Motion to Dismiss” and
urges the Court to “reconsider its finding that it would ‘nevertheless dismiss his petition for failure
to state a claim upon which relief can be granted.’” Filing 30 at 3. Rule 59(e) “may not be used to
relitigate old matters, or to raise arguments or present evidence that could have been raised prior
to the entry of judgment.” Exxon Ship. Co. v. Baker, 554 U.S. 471, 486 n.5 (2008) (quoting 11 C.
Wright & A. Miller, Federal Practice and Procedure § 2810.1 (2d ed. 1995)). To the extent that
Akpovi raises a new argument or reiterates arguments previously made, a Rule 59(e) motion is not
the appropriate vehicle to relitigate or disagree with an issued order.
IT IS ORDERED:
Petitioner’s Motion to Alter or Amend Judgment Pursuant to Federal Rule of Civil
Procedure 59(e), Filing 29, is denied.

Dated this 19th day of July, 2021.
BY THE COURT:

___________________
Brian C. Buescher
United States District Judge