Case 2:07-cv-00857-JAG-MCA Document 16-3 Filed 03/31/2008 Page 1 of 3

United States Department of Justice

United States Attorney
District of New Jersey
Civil Division

970 Broad Street, Suite 700 General Tel: 973.645.2700

Newark, New Jersey 07102 Direct Tel: 973.645.2892
Fax:: 973.297.2010
e-mail: Jafer.Aftab@usdoj.gov

ELECTRONICALLY FILED
31 March 2008

The Honorable Joseph A. Greenaway, Jr., U.S.D.J.

United States District Court
United States Post Office & Courthouse
Federal Square
Newark, NJ 07102

Re: Kestelboym v. Chertoff, et al.,

Civil Action No. 07-857

Your Honor:

Please accept this letter in support of defendant's motion for reconsideration. Local Civil
Rule 7.1(i) permits a party to set forth concisely the matter or controlling decision that the party
believes the judge has overlooked in support of a motion for reconsideration. The courts in this
district have emphasized repeatedly that the motion of reconsideration invites counsel to draw the
court's attention to decision which counsel believes the court may have overlooked, not those
overlooked by counsel. See Polizzi Meats, v. Aetna Life & Cas., 931 F. Supp. 328, 339 (D.N.J. 1996).
The United States further recognizes that a motion for reconsideration should be rare, though it is
improperly used with unfortunate frequency. See Bowers v. NCAA, 130 F. Supp.2d 610, 613 (D.N.J.
2001). The United States believes this is that rare case where the Court overlooked the United
States's argument and would like to give the Court another opportunity to reconsider.

In the end, the United States had asserted in its succinct submissions to the Court that the
matter should be dismissed, because it is unripe only. After the United States had reviewed the
statutory and administrative scheme and the case law, the United States advised the Court that the
Third Circuit left open the question of whether there was subject matter jurisdiction in the matter,
but because the United States already had reviewed the other case law on the subject, holding that
there was subject matter jurisdiction, it therefore only scrupulously asserted, "this Court must
dismiss the instant petition without prejudice, because it is, at a minimum, unripe." See Def.'s Mot.
Letter Br. at p. 1-2. Accordingly, the United States then brought to the Court's attention and
digested the Sixth Circuit case, Zayed v. United States, 368 F.3d 902 (6th Cir. 2004), in relation to this
matter, which explored the interplay between Sections 1421 and 1429, and determined that the
District Court had subject matter jurisdiction. Id. at 906. However, based on the statutory and
administrative scheme and consistent with the case law, the United States novelly argued that the
District Court should dismiss the complaint, because it was unripe only. See Def.'s Mot. Letter Br. at
p. 2. The United States therefore concluded that "this Court should dismiss the amended complaint
without prejudice while the removal proceedings are pending, because the amended complaint is
unripe." Id. at p. 3.
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Concerned that plaintiff had misconstrued defendant's argument about subject matter
jurisdiction, in its reply, the United States in its preliminary statement, again reiterated its unripeness
position. See Def. Reply Br. at p. 1. The United States maintained in the reply brief, "Defendant
scrupulously argued in its initial brief that this Court should dismiss the matter as unripe. Defendant
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 Def.'s Letter Br. at
pp. 2-3." See Def. Reply Br. at p. 3. The United States then reiterated its position three more times,
including the conclusion, leaving little doubt that the United States asserted that while there is
concurrent jurisdiction, again citing to Zayed, the Court should dismiss the unripe matter to advance
the sound administration of justice by avoiding duplicative litigation. Id. at 3-4.

As footnote 1 of this Court's opinion demonstrates, this Court has overlooked the argument
of the United States. See Kestelboym v. Chertoff, ___ F. Supp.2d ___, 2008 WL 68398 at *1 n.1 (D.N.J.
Mar. 13, 2008). Contrary to the Court's assertion in that footnote, the United States was not
challenging the Court's subject matter jurisdiction. The United States's collective submissions
demonstrate this to be true. Furthermore, contrary to the Court's assertion, the United States rested
its authority on Rule 12 as well as Zayed, for the repeated assertion that while there may be subject
matter jurisdiction, the matter should be dismissed as unripe. Aside from this, the United States
submits that ripeness is not truly rooted in any rule, but in prudential considerations, as the Third
Circuit has recited. See Armstrong World Indus. by Wolfson v. Adams, 961 F.2d 405, 411 n. 12 (3d Cir.
1992). Interestingly, one District Court in the District of New Jersey has attached the ripeness
doctrine to Rule 12(b)(1), which is the Rule this Court attached to the United States's submission. See
Ford Motor Credit Co. v. Chiorasso, 529 F. Supp.2d 535, 539-40 (D.N.J. 2008). Aside from the citation
to the Rule or case law, the United States plainly set forth the novel ripeness argument for review.
Finally, because of the novelty of the argument, it was not possible to cite to case law.

The Court's entire opinion went on to hold that the Court has subject matter jurisdiction. See
Kestelboym, 2008 WL 68398 at *1-6. However, the United States plainly had recognized and conceded
that point. The United States's only argument was that the Court should dismiss the matter as
unripe. This Court did not address the United States's only argument.

The United States submits that this is that rare case for reconsideration, and submits further
that this Court should dismiss the amended complaint without prejudice because of unripeness as a
matter prudence, because of the pending removal proceedings. In support thereof, consistent with
the position of the United States, this Court in its opinion has agreed that the priority provision is
designed to prevent a race between the immigrant and the Attorney General and that the overhaul
of the naturalization process was designed to shift from judicial to administrative naturalization
proceedings. See Kestelboym, 2008 WL 68398 at *3. Moreover, consistent with the United States's
position, this Court has agreed that the Court has concurrent jurisdiction. The United States never
suggested, as the Court has understood the United States's argument, that the Attorney General
could avoid the Court's jurisdiction, id. at *5, rather it conceded the Court's jurisdiction and only
suggested that prudentially this Court should dismiss the immigrant's complaint. However, the Court
did not reach the United States's ripeness argument. In this way, should this Court reconsider and
agree, the immigrant, under the proper circumstances, would still have the opportunity to bring the
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complaint at the right time.1 This is the soundest course for the reasons already set forth by this
Court; it avoids a race by the litigants, advances the legislative priority given to administrative
naturalization proceedings, and advances the sound administration of justice by avoiding duplicative
litigation as already set forth by the United States in its prior submissions to this Court.

For these reasons, we respectfully submit that this Court should reconsider its published
opinion and reissue an opinion properly reciting the United States's argument, that is, that while the
Court does indeed have concurrent jurisdiction, the complaint prudentially should be dismissed
because it is unripe only.

Sincerely,

CHRISTOPHER J. CHRISTIE
United States Attorney

/S/ Jafer Aftab

By: JAFER AFTAB
Assistant United States Attorney

1
As provided in the reply brief, the removal proceeding hearing is scheduled for 16
May 2008; this is 11 days after the return date of this motion.