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VASANTHANKUMARAN SELVARAJAH v. U.S. DEPARTMENT OF HOMELAND SECURITY

November 30, 2010

VASANTHANKUMARAN SELVARAJAH, PLAINTIFF,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY,
ERIC HOLDER U.S. ATTORNEY GENERAL
DEFENDANTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge:

MEMORANDUM OPINION AND ORDER

The plaintiff Vasanthankumaran Selvarajah ("Selvarajah" or the "plaintiff"), seeks to enjoin the defendants Department of Homeland Security ("DHS") and United States Attorney General Eric Holder, Jr. (collectively the "defendants" or the "Government") from continuing removal proceedings against him. He seeks a preliminary injunction enjoining those proceedings. The plaintiff claims that the Notice to Appear ("NTA") charging him with removability is defective because it was signed by an officer who was not authorized to issue an NTA. The defendants move to dismiss the Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and oppose the motion for a preliminary injunction.

The Government contends that the Complaint should be dismissed for lack of subject matter jurisdiction. Because the plaintiff's removal proceeding is currently pending before the immigration court and a final order has not yet been issued, the Government contends that this proceeding is not ripe for judicial review and that under 8 U.S.C. § 1252(a)(5), the district court does not have jurisdiction over the plaintiff's claim because it relates to a removal order.

I.

In defending a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Procedure 12(b)(1), the plaintiff bears the burden of proving the Court's jurisdiction by a preponderance of the evidence. In considering such a motion, the Court generally must accept the material factual allegations in the complaint as true. See J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004). The Court does not, however, draw all reasonable inferences in the plaintiff's favor. Id.; Graubart v. Jazz Images, Inc., No. 02 Civ. 4645, 2006 WL 1140724, at *2 (S.D.N.Y. Apr. 27, 2006). Indeed, where jurisdictional facts are disputed, the Court has the power and the obligation to consider matters outside the pleadings, such as affidavits, documents, and testimony, to determine whether jurisdiction exists. See Anglo-Iberia Underwriting Mgmt. Co. v. P.T. Jamsostek (Persero), 600 F.3d 171, 175 (2d Cir. 2010); APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003); Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998); Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). In so doing, the Court is guided by that body of decisional law that has developed under Federal Rule of Civil Procedure 56. Kamen, 791 F.2d at 1011; see also Leyse v. Bank of Am., No. 09 Civ. 7654, 2010 WL 2382400, at *1 (S.D.N.Y. June 14, 2010).*fn1

II.

The plaintiff is a native of Sri Lanka who sought political asylum in the United States. On May 22, 2002, the plaintiff was granted asylum and his status was adjusted to lawful permanent resident. (See Compl. Ex. A.)

On March 17, 2009, the United States Department of Homeland Security issued Selvarajah an NTA alleging that he procured asylum "by fraud or by willfully misrepresenting a material fact." (Id.) The NTA was executed by Philip A. Savage, a Supervisory Immigration Services Officer.

On November 24, 2009, the plaintiff filed a Motion to Terminate Proceedings before Immigration Judge Javier Balasquide, on the ground that the NTA was defective. (Compl. ¶¶ 10-11.) The plaintiff argued that the NTA was defective, because a Supervisory Immigration Services Officer ("SISO") is not one of the enumerated officials authorized to issue an NTA pursuant to 8 C.F.R. § 239.1(a). (Id.) In an oral decision delivered on March 2, 2010, Judge Balasquide denied the motion, explaining that he found SISO Savage to be authorized to execute an NTA. (Id. ¶ 11.)

The plaintiff's request for an Interlocutory Appeal to the Board of Immigration Appeals (BIA) was denied. (Id. ¶ 13.) The Board's decision stated that "[t]he circumstances of this case do not meet [the] stringent criteria for interlocutory review." (Id. ¶ 13.)*fn2

The plaintiff now moves for a preliminary injunction against the Government to stop the removal proceedings against him.

III.

The Government contends that this Court does not have subject matter jurisdiction in this case, because ยง 1252 vests the court of appeals with exclusive jurisdiction to review challenges arising from removal proceedings and requires a final order as a prerequisite to judicial ...


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