Mukhtar v. Beers et al

Filing 25

ORDER Granting 24 Notice of Voluntary Dismissal. Case terminated. Signed by Judge Richard F. Boulware, II on 11/4/15. (Copies have been distributed pursuant to the NEF - MMM)

XAVIER GONZALES, ESQ.
Nevada Bar No.:1862
528 S. Casino Center Blvd.
2nd Floor
Las Vegas, Nevada 89101
[phone]
Attorney for Plaintiff
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
QASIR ALI MUKHTAR,

)Case No. 2:14-cv-01441-RFB-CWH
)INS No. A# 088-442-824
Plaintiff,
)
)
v.
)
)
THE UNITED STATES OF AMERICA,
)
)
Rand BEERS, in his Official Capacity,
)
Secretary, Department of Homeland Security
)
)
Loretta LYNCH, in her Official Capacity,
)
Attorney General Department of Justice,
)
)
Jeanne KENT, in her Official Capacity,
)
Officer in Charge, Department of Homeland Security )
Las Vegas, Nevada (USCIS Local)
)
)
Steven M. BRANCH, in his Official Capacity,
)
ICE Field Office Director, Detention and Removal )
Las Vegas, Nevada (ICE Local)
)
)
Defendants.
)
PETITIONERS NOTICE OF VOLUNTARY DISMISSAL OF AMENDED
PETITION FOR DECLARATORY RELIEF WITHOUT PREJUDICE

1

I. PLAINTIFF’S RESPONSE
In the Governments introduction they assert that the Plaintiff, Qasir Ali Mukhtar,
challenges the Defendant, the United States of America, et. al. the Governments discretionary
decision to place him in Expedited Removal Proceedings pursuant to 8 U.S.C. § 1228(b),
rather than general removal proceedings pursuant to 8 U.S.C. § 1229a. The Government
correctly points out that Mr. Mukhtar asserts that this unfettered discretionary decision
violates his due process rights because 8 U.S.C. § 1228(b) denies him the opportunity to
apply for the relief he claims he is allegedly entitled to i.e. adjustment of status, based upon
an approved I-130 Petition for Alien Relative filed by his U.S. Citizen spouse. Page 2 of the
Governments Introduction lines 1 through 9.
However, the Governments assertion that because Mr. Mukhtar is an aggravated felon
he is ineligible to adjust status, they cite 8 U.S.C. § 1255, Page 2 of the Governments Motion
to Dismiss lines 18 through 19, is patently false. Mr. Mukhtar is eligible to adjust his status
on the basis of an approved I-130 Petition filed by his U.S. Citizen wife. A waiver to
overcome the bar to admissibility and adjustment of status based upon an aggravated felony
conviction is available pursuant to INA Section. 212(h). The fact that Mr. Mukhtar had an
inspected entry would otherwise permit him to adjust his status to that of a Lawful Permanent
Resident as a basis for overcoming deportation. See, Matter of Michel, 21 I&N Dec. 1101
(BIA 1998). Depriving Mr. Mukhtar of available relief from deportation naturally raises due
process concerns. See, Demore vs. Kim, 538 U.S. 510, 523 (2003) “…for it is well established
that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.”

2

“Moreover, the agency must consider all favorable and
unfavorable factors relevant to the exercise of its discretion;
failure to do so constitutes an abuse of discretion. See An Na
Peng v. Holder, 673 F.3d 1248, 1253 (9th Cir.2012) (the BIA
abuses its discretion when it fails to consider all relevant
factors bearing on the balance of equities or an application for
relief); Xiao Fei Zheng v. Holder, 644 F.3d 829, 833 (9th
Cir.2011) (same); cf. United States v. $11,500.00 in U.S.
Currency, 710 F.3d 1006, 1011 (9th Cir.2013) (a district court
abuses its discretion if it fails to consider factors relevant to the
exercise of its discretion). If the procedures used by ICE do not
assure that the decision-makers obtain the requisite
information before the decision is made, then it is unlikely that
the decision made will be a proper one under the abuse of
discretion standard.” See, Villa-Anguiano v. Holder, 727 F.3d
873, 881 (9th Cir. 2013).
Secondly, the Government asserts that pursuant to 8 U.S.C. § 1252(b)(9), REAL ID
Act precludes challenges to removal orders in the District Court and that the new INA §
242(a)(2)(D) preserves judicial review of Constitutional claims or questions of law raised
upon a Petition for Review filed with the appropriate Court. As the Government goes on to
accurately describe, Mr. Mukhtar does not necessarily directly challenge the Final
Administrative Order of Removal in these proceedings. Mr. Mukhtar’s Amended Complaint
for Declaratory Relief challenges the constitutionality of a statutory scheme that permits the
Government to treat aliens, similarly situated, differently and by an unfettered choice of
proceedings unfairly and unconstitutionally limits relief and thereby discriminate between
aliens in violation of the due process and equal protection clause of the United States
Constitution. Mr. Mukhtar complains that because there is no standard by which to
differentiate between both processes other than mere unfettered discretion of the
Government, when it effects Mr. Mukhtar’s ability to remain in the United States and united
3

with his family such a statutory scheme is a violation of the United States Constitution and
cannot survive Judicial scrutiny.
II. CONCLUSION
Having said that, Mr. Mukhtar was served with a Final Administrative Order of
Removal on September 24th 2014 pursuant to 8 U.S.C. § 1228. On October 2nd 2014 a timely
Petition for Review was filed with the 9th Circuit Court of Appeals, Case No. 14-73057. The
issue of whether or not Mr. Mukhtar has been convicted of an aggravated felony and is
therefore subject to summary removal proceedings is currently the subject of Judicial Review
by way of a Petition for Review in the 9th Circuit Court of Appeals. The issue of whether,
even if Mr. Mukhtar has been convicted of an aggravated felony subjecting him to summary
removal proceedings, wherein the statutory scheme precludes him from pursuing an
otherwise available form of relief, is a violation of the Due Process, and Equal Protection
Clause of the United States Constitution is currently the subject of Judicial Review by way
of a Petition for Review in the 9th Circuit Court of Appeals.
On that basis Mr. Mukhtar requests Voluntary Dismissal of the instant Amended
Petition for Declaratory Relief.
DATED this 29th day of October, 2015.

By:

IT IS SO ORDERED:

__________________________
RICHARD F. BOULWARE, II
United States District Judge
DATED this 4th day of November, 2015.

4

/s/ XAVIER GONZALES, ESQ.
Xavier Gonzales, Esq.
Nevada Bar No.: 1892
528 S. Casino Center Blvd., Ste. 205
Las Vegas, Nevada 89101
Attorney for Plaintiff

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 29th day of October, 2015, I electronically filed the
foregoing Petitioner’s Notice of Voluntary Dismissal of Amended Petition for Declaratory
Relief Without Prejudice with the Clerk of the United States District Court, District of
Nevada, by using the appellate CM/ECF system. I certify that all participants in the case are
registered CM/ECF users and that service will be accomplished by the appellate CM/ECF
system.

By:

/s/ Liliana Mier
An employee of XAVIER GONZALES, ESQ.

5