Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

CHECKNAN v. McELROY

April 5, 2004.

LY CHECKNAN, Plaintiff, -against- EDWARD McELROY, Defendant


The opinion of the court was delivered by: RONALD ELLIS, Magistrate Judge

OPINION AND ORDER

I. INTRODUCTION

Petitioner Ly Checknan ("Checknan") seeks a writ of mandamus and a declaratory judgment compelling the Immigration and Naturalization Service ("INS")*fn1 to place him in removal proceedings. Checknan alleges jurisdiction in his complaint under the declaratory judgment statutes, 28 U.S.C. § 2201, 2202; under the mandamus statute, 28 U.S.C. § 1361; under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et. seq.; and under the Immigration and Nationality Act's jurisdiction statute, 8 U.S.C. § 1329. In his papers, Checknan also contends that there is jurisdiction over a federal question under 28 U.S.C. § 1331. The parties have consented pursuant to 28 U.S.C. § 636(c) to have all matters resolved by the undersigned. The Government has moved to dismiss the complaint: (1) for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure; and (2) for failure to state a claim under Rule 12(b)(6). For the reasons set forth below, Checknan's complaint is DISMISSED without prejudice.

  II. BACKGROUND

 A. Factual History

  Checknan, a citizen of the Republic of the Ivory Coast, entered the United States on July 25, 1990, under a temporary visitor's visa that authorized him to stay until October 25, 1990. Plaintiff's Complaint for Declaratory Relief and for a Writ in the Nature of Mandamus to Instruct Defendants [sic] to Place Him in Removal Proceedings ("Compl.") at ¶¶ 8(a), 8(d), 8(e). Checknan did not leave the United States when his stay expired. Compl. at ¶¶ 8(c), 8(f). He has been continuously physically present in the United States since his arrival. Compl. at ¶ 8 and Exhibit ("Exh.") D (Letter to District Counsel, INS, dated April 22, 2002). He also has three minor children who are United States citizens by birth. Compl. at Exh. A (Birth Certificates, Ousmane Ly, born May 5, 1996; Assahtra Ly, born April 23, 1999; and Thata Ly, born October 23, 2001).

 B. Procedural History

  On December 10, 1990, Checknan filed an application with the INS seeking asylum in the United States and withholding of deportation to the Ivory Coast, pursuant to sections 208(a) and 243(h)(1) of the Immigration and Nationality Act of 1952 ("INA"), as amended, 8 U.S.C. § 1158(a), 1253(h)(1) (1988). Compl. at ¶ 8(f); Defendant's Memorandum of Law in Support of its Motion to Dismiss the Complaint ("Def. Mem.") at 4.

  On May 2, 1996, Checknan was served with an Order to Show Cause ("OSC"), charging that he was deportable from the United States as an alien present in the United States in violation of law,*fn2 pursuant to former section 241(a)(1)(B) of the INA, 8 U.S.C. § 1251(a)(1)(B) (1988) (recodified without substantive alteration as INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B)). Compl. at ¶ 8(g) and at Exh. C (Board of Immigration Appeals' Decision, dated Jan. 31, 2002, setting forth deportation charge); Def. Mem. at 4.

  On December 4, 1997, an immigration judge ("U") issued an order denying Checknan's application for asylum and withholding of deportation. Compl. at ¶ 8(i); Def. Mem. at 4. Checknan appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). Compl. at ¶ 8(j); Def. Mem. at 4. On August 1, 2000, the BIA issued a per curium decision administratively closing Checknan's deportation proceeding so that the Attorney General could elect to terminate deportation proceedings, and reinstate the matter as removal proceedings. Compl. at Exh. B (Board of Immigration Appeals' Decision, dated Aug. 1, 2000). The BIA held that the IIRIRA gave the Attorney General discretion to terminate deportation proceedings in which no final administrative decision had been issued and reinstate the matter as a removal proceeding. Compl. at Exh. B. Further, the BIA stated that this might make a non-lawful permanent alien such as Checknan eligible for "cancellation of removal," pursuant to section 240A(d)(1) of the INA, 8 U.S.C. § 1229b(d)(1) (Supp. IV 1998), by allowing him to avoid the "stop-time rule" in IIRIRA § 309(c)(5), 110 Stat 3009-627 (1996) (providing that time counted towards an alien's fulfillment of seven years' continuous physical presence in the United States ceases when the alien is served with an Order to Show Cause). Compl. at Exh. B (citing Nicaraguan Adjustment and Central American Relief Act of 1997 ("NACARA"), Pub.L. No. 105-100, Title II § 203(a)(1), 11 Stat 2160, 2196 (Nov. 19, 1997) (extending application of stop-time rule to aliens placed into deportation proceedings before April 1, 1997, IIRIRA's effective date)).

  Checknan moved to reopen his terminated deportation proceedings so that he could apply for cancellation of removal. Compl. at ¶ 8(1) and at Exh. C (Board of Immigration Appeals' Decision, dated Jan. 31, 2002). The BIA issued a per curium decision denying Checknan's request to reinstate proceedings because only the INS had the authority to terminate deportation proceedings, and recharge in removal proceedings. Id. The BIA directed Checknan to file his request to the INS. Id.

  In a letter dated April 22, 2002, Checknan requested that the INS "repaper" him and reinstate the matter as removal proceedings so that he could apply for cancellation of removal. Id. at ¶ 8(n) and at Exh. D (Letter to District Counsel, INS, dated April 22, 2002). Thus far, the INS has not responded to Checknan's request. Id. at ¶¶ 8(o)-8(r).

  On August 21, 2002, Checknan filed this complaint seeking (1) a writ of mandamus; and (2) a declaratory judgment compelling the INS to place him in removal proceedings. On August 7, 2003, the Government moved to dismiss the complaint for lack of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.