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