Case 2:07-cv-00857-JAG-MCA Document 13 Filed 09/05/2007 Page 1 of 4

CHRISTOPHER J. CHRISTIE ELECTRONICALLY FILED

United States Attorney
By: Jafer Aftab
Assistant U.S. Attorney
970 Broad Street, Suite 700
Newark, NJ 07102
Tel: 973.645.2892
Fax. 973.297.2010
Jafer.Aftab@usdoj.gov

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY
E LENA K ESTELBOYM, H ON. JOSEPH A. G REENAWAY, JR., U.S.D.J.

Plaintiff, Civil Action No. 07-857

v. REPLY BRIEF IN SUPPORT OF MOTION

TO DISMISS
M ICHAEL C HERTOFF, S ECRETARY FOR
D EPARTMENT OF H OMELAND S ECURITY;
E MILIO T. G ONZALES, D IRECTOR, U NITED
S TATES C ITIZENSHIP & IMMIGRATIONS
S ERVICES; R USSELL O WEN, D ISTRICT
D IRECTOR, CIS,

Defendants.

I. Preliminary Statement

Pursuant to Rule 12 of the Federal Rules of Civil Procedure, the defendant has moved the

Court for an Order dismissing this action without prejudice because it is not ripe for resolution.

Defendant now replies to the opposition by plaintiff.

II. 8 U.S.C. § 1256(a) Clearly Authorizes the Attorney General to Institute

Removal Proceedings at Any Time; Defendant’s Conduct was Entirely
Lawful.

Defendant’s initiation of removal proceedings was based on plaintiff’s responses at her

naturalization interview that took place well within the five year period relating to a moral character
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determination.1 Accordingly, plaintiff’s argument in Point III that defendant’s initiation of removal

proceedings was void ab initio or ultra vires because it is based on conduct beyond five years is

baseless.2 Similarly, plaintiff reliance on putative legal authority for the same proposition in the form

of Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996), is also unavailing and misleading because the

immigration law upon which it is based, has been legislatively overruled by the enactment of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). See 8 U.S.C. §

1256(a)(IIRIRA added: “Nothing in this subsection shall require the Attorney General to rescind the

alien’s status prior to commencement of procedures to remove an alien under section 240 [1229a],

and an order of removal issued by an immigration judge shall be sufficient to rescind the alien’s

status.”). Under the current law, that is applicable here, a person can be placed in removal

proceedings at any time if it is discovered that she was adjusted improperly – there is no five year

limitation to the initiation of removal proceedings through the issuance of a Notice to Appear. Id; see

also In re Roa-Garcia, 2007 WL 1192114 (BIA March 21, 2007); In re Gonzalez, 2006 WL 3485775

(BIA October 31, 2006). For the reasons stated above, defendants’ conduct was entirely in

compliance with the law.

III. The Initiation of Removal Proceedings Render this Case Unripe and this
Court Should Sustain the Agency’s Efforts to Determine this Ongoing Matter
There Instead of Determining this Matter Anew.

Given that the agency’s conduct was clearly lawful, this Court is left to construe the interplay

between 8 U.S.C. §§ 1421 and 1429. As set forth in the defendants’ initial letter brief, the Sixth

1
Plaintiff’s assertion to the contrary, is belied by this reality. See Pl.’s Opp. to Mot. to
Dismiss, p. 4 n. 2.
2
. Though it his last legal argument, plaintiff lauds it as the most important and
explicitly relegates his first two arguments as “academic.” See Pl.’s Opp. to Mot. to Dismiss, p. 23. As
set forth hereinafter, his other contentions fare no better.

2
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Circuit decision in Zayed v. United States, 368 F.3d 902 (6th Cir. 2004), provides superior guidance for

this Court, because it presents a nearly identical factual predicate and the soundest application of

legal principles. Defendants scrupulously argued in its initial letter brief that this Court should

dismiss the matter as unripe. Defendants provided a footnote citation to a Third Circuit opinion

wherein the Court of Appeals pondered whether the District Court even had subject matter

jurisdiction. However, defendants’ explicitly concluded that “[t]his Court should dismiss the

amended complaint without prejudice while the removal proceedings are pending, because the

amended complaint is unripe.” See Defs. Letter Brief at pp. 2-3. Nevertheless, in plaintiff’s first legal

argument, defendant begins with a mischaracterization of defendants’ position that this Court lacks

jurisdiction. See Pl.’s Opp. to Mot. to Dismiss, pp. 8-16.

To reiterate, defendants’ maintain that for the same reasons provided by the Zayed court, in a

nearly identical case, it is wise for this Court to dismiss the matter without prejudice as unripe, while

the removal action is pending. This determination supports the agency that was designed to

adjudicate these matters and that has already dealt with the matter to this point.3

IV. The Administration of Justice Supports a Determination of Concurrent

Jurisdiction.

Reading sections 1421 and 1429 together makes it eminently clear that there is concurrent

jurisdiction by this Court and the agency. Despite this, plaintiff continues to mischaracterize

defendants’ position, stating that because defendants’ argue that removal proceedings deprive this

Court of jurisdiction, this Court should determine that it has exclusive jurisdiction. See Pl.’s Opp. to

Mot. to Dismiss, pp. 17-20. Plaintiff suggests that defendants should initiate removal proceedings

after the judicial action is resolved. First, as stated earlier, plaintiff misconstrues defendants’

3
The removal proceeding is scheduled for 16 May 2008.

3
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argument; defendants’ maintain that it is wiser for this Court to dismiss the matter without prejudice

so that the agency can review the matter. Second, plaintiff’s suggestion is no more than an effort to

steer his adversary’s ship. The agency had no control over plaintiff’s filing of a petition for judicial

review. As much as plaintiff argues that defendant is forum shopping, see Pl.’s Opp. to Mot. to

Dismiss, pp. 20-23, it can also be argued with equal counter-force that petitioner filed in District

Court in an effort to avoid removal proceedings and the agency forum. As the Zayed court implicitly

recognized, all of this is speculative though and unhelpful to the discussion.

There is concurrent jurisdiction to resolve this matter. See Zayed, supra. This Court also

should determine that there is concurrent jurisdiction because it provides the agency with an

opportunity to handle matters for which it is designed and advances the sound administration of

justice by avoiding duplicative litigation. Id.

CONCLUSION

The defendants’ conduct in this case is altogether lawful. Further, the sound administration

of justice supports dismissing this unripe immigration matter without prejudice for handling by the

immigration agency.

Respectfully submitted,

CHRISTOPHER J. CHRISTIE
United States Attorney

By: /S/ Jafer Aftab

Jafer Aftab
Assistant United States Attorney
DATED: 31 August 2007
Newark, NJ