The opinion of the court was delivered by: McKENNA, D.J.
Plaintiff Oscar Adolfo Nieto-Ayala ("Nieto-Ayala") filed a writ of mandamus against United States Attorney General Michael B. Mukasey*fn1 and Department of Homeland Security, United States Citizenship and Immigration Service ("USCIS")(collectively, "the Government" or "the Defendants") seeking an order compelling the Government to continue "his enlargement on recognizance" until his pending application for asylum is considered. The Government moves to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the following reasons, the Government's motion to dismiss is GRANTED.
On August 8, 1984, Nieto-Ayala entered the United States as a lawful permanent resident. (Compl. at 2.) On January 6, 1992, Nieto-Ayala was convicted, upon a plea of guilty, in the United States District Court for the District of New Jersey for facilitating the distribution of cocaine and was sentenced to four months imprisonment. (Id. at 2.) On June 15, 1992, Nieto-Ayala was convicted in the New Jersey Superior Court, Morris County, for possession of cocaine and was sentenced to ninety days imprisonment. (Id. at 2.)
On June 10, 1992, an Immigration Judge ("IJ") ordered Nieto-Ayala deported, and on September 5, 1992, the Board of Immigration Appeals ("BIA") affirmed the IJ's decision, making the removal order final. (Id. at 2-3.) On November 16, 1992, Nieto-Ayala was deported. (Id. at 3.)
In October 1993, Nieto-Ayala reentered the United States without permission of the Attorney General. (Id. at 3.)
In February 2005, Nieto-Ayala was arrested and charged with entering the United States after having been deported subsequent to a conviction for an aggravated felony in violation of 8 U.S.C. § 1326(a) and (b)(2). United States v. Nieto-Ayala, 2005 WL 2006703 at *1 (S.D.N.Y. Aug. 18, 2005). On August 18, 2005, this Court dismissed the indictment against Nieto-Ayala, holding that because his counsel was ineffective during the deportation hearings, the underlying deportation order violated his due process rights and could not be the basis for the prior deportation element in the illegal re-entry charge. Nieto-Ayala, 2005 WL 2006703 at *2.
After the dismissal of the indictment, Immigration and Customs Enforcement ("ICE") placed Nieto-Ayala in removal proceedings, charging him as an alien convicted of a controlled substance violation. (Compl. Ex. B, Ex. C.) On October 26, 2005, bond was posted on Nieto-Ayala's behalf and he was released from the custody of ICE. (Id. at 4.) Nieto-Ayala filed an application for a waiver of deportation under § 212(c) of the Immigration and Nationality Act ("INA"). (Id. at 3.) On June 20, 2007, the IJ denied Nieto-Ayala's § 212(c) application and ordered Nieto-Ayala removed. (Id. Ex. B) On June 18, 2008, the BIA dismissed Nieto-Ayala's appeal, making the removal order final. (Id. Ex. C.) Nieto-Ayala did not seek a review of the removal order under the applicable review scheme in 8 U.S.C. § 1252.
On August 26, 2008, Nieto-Ayala filed an application for asylum with USCIS. (Compl. at 3-4; Ex. D.) USCIS, however, did not accept the application because it was incomplete. (Id. at 4; Ex. E.) Nieto-Ayala alleges that he has since provided USCIS with additional information to complete his application. (Id. at 4.)
On September 17, 2008, ICE sent a notice to the obligor who had posted bond on Nieto-Ayala's behalf, requesting that the obligor deliver Nieto-Ayala to the nearest ICE office within five days of October 7, 2008. (Id. Ex. F.)
On September 28, 2008, Nieto-Ayala filed this action for a writ of mandamus to compel the Government to continue his enlargement on bond until USCIS adjudicates his application for asylum. (Id. at 5-6.)
The Government moves to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Defs.' Mem. at 1.)
A. 12(b)(1) Motion to Dismiss ...