Mhanna v. U.S. Dep't Of Homeland Sec. Citizenship
Decision Date | 13 December 2010 |
Docket Number | Civil No. 10-292 (JRT/LIB) |
Parties | ASSAF MHANNA and TAMMY MHANNA, Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY CITIZENSHIP AND IMMIGRATION SERVICES; SHARON DOOLEY; UNKNOWN AND UNNAMED U.S. DEPARTMENT OF HOMELAND SECURITY CITIZENSHIP AND IMMIGRATION SERVICES OFFICIAL identified only as "RAH;" ALEJANDRO MAYORKAS; JANET NAPOLITANO; ERIC J. HOLDER; U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, and SCOTT BANIECKE, Defendants. |
Court | U.S. District Court — District of Minnesota |
Rachel M. Engebretson and Phillip F. Fishman, FISHMAN, BINSFELD & BACHMEIER, P.A., 8011 34th Avenue South, Suite 245, Bloomington, MN 55425, for plaintiffs.
Friedrich A. P. Siekert, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, 600 United States Courthouse, 300 South Fourth Street, Minneapolis, MN 55415; and Craig W. Kuhn and Elizabeth J. Stevens, UNITED STATES DEPARTMENT OF JUSTICE, P.O. Box 868, Ben Franklin Station, Washington, D.C. 20044, for defendants.
This case concerns an ongoing struggle between Assaf Mhanna, a citizen and native of Lebanon, and United States immigration authorities over Mr. Mhanna's statusin the United States. He brings this lawsuit with his spouse, Tammy Mhanna, who is a United States citizen. Because this Court does not have jurisdiction to hear the Mhannas' multiple claims, the Court will grant the defendants' motion to dismiss the case.
On February 1, 2010, plaintiffs/petitioners Assaf Mhanna and Tammy Mhanna (collectively, "plaintiffs") brought this action against the defendants/respondents United States Department of Homeland Security, Citizenship and Immigration Services ("USCIS"); Sharon Dooley, the Field Office Director of the St. Paul Field office of the USCIS; an unknown USCIS official identified as "RAH;" Alejandro Mayorkas, Director of USCIS; Janet Napolitano, Secretary of the Department of Homeland Security; Eric J. Holder, United States Attorney General; the U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement ("ICE"); and Scott Baniecke, Field Office Director of the ICE St. Paul Field Office (collectively, "defendants"). (Compl., Docket No. 1.) The case is now before the Court on defendants' response to United States Magistrate Judge Raymond L. Erickson's Order to Show Cause and defendants' motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim.
Assaf Mhanna ("Mhanna") is a citizen and native of Lebanon. (Compl. ¶ 5, Docket No. 1.) Tammy Mhanna is his spouse and a U.S. Citizen. (Id. ¶ 13.)
A. Mhanna's Entry on December 8, 1998
Mhanna was first paroled into the United States on or about December 8, 1998, at the Point of Entry in Nogales, Arizona. (Id. ¶ 16.) Upon Mhanna's inspection at entry, an officer of the Immigration and Naturalization Service1 ("INS") completed a Form I-213, Record of Deportable/Inadmissible Alien. (Mot. to Reopen & Reconsider Ex. 2, Engebretson Aff. Ex. E, Docket No. 4.) It includes the following narrative:
Subject arrived this date afoot from Mexico seeking admission as[ ] a citizen of the United States. Subject stated to the primary officer, [Immigration Inspector] Stephen Hathaway, he was an American. Hathaway asked the subject a few more questions whereupon the subject admitted his true nationality. He was escorted to INS secondary.
In secondary inspection a sworn statement was taken by [Special Operations Immigration Inspector] J. Dayhoff. In the statement the subject admitted his nationality. He further stated he travelled [sic] from Beirut to Amsterdam to Mexico City to Hermosillo. He stated he has friends in Hermosillo which [sic] are also from Lebanon. The subject then stated he came from Lebanon to the United States because he is Christian and can not live in Lebanon because it is a Muslim country.
The subject was advised he would be held in INS custody pending a decision on his claim of fear to return to his country. He was given and acknowledged receipt of form M-444. He appears inadmissible per [§] 212(a)(6)(C)(ii) [of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(ii) 2] and transferred to the Florence detention facility to await his hearing.
(Id.) Dayhoffs Form I-867A, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act, records Mhanna's sworn statement on December 8, 1998. (Id.) In relevant part, it states:
Mhanna reviewed and signed the record, indicating that it is "a full, true and correct record of [his] interrogation." (Id.)
On December 23, 1998, Mhanna had a credible-fear interview during which he was represented by counsel and assisted by an Arabic language interpreter. (Id.) The purpose of the interview was "to determine whether [Mhanna] ha[s] a fear of persecution or harm in [his] home country." (Id.) The Asylum Pre-Screening Officer who conducted the credible fear interview found that Mhanna's testimony was credible and that Mhanna had a credible basis for fear of persecution in his home country on account of religion and political opinion. (Id.) The officer found that Mhanna has "a significant possibility thathe... could establish eligibility for asylum." (Id.) The officer's notes indicate that Mhanna offered the following information about his inspection on December 8, 1998:
(Id.)
The INS subsequently released Mhanna from detention and paroled him into the United States, and on December 15, 1999, Mhanna filed an application for asylum, withholding of removal, and relief under the Convention Against Torture. (Resp. to Dec. 2, 2009 Req. for Initial Evidence at 1, Mot. to Reopen & Reconsider Ex. 2, Engebretson Aff. Ex. E, Docket No. 4; In re Mouhanna, 3 No. A77393085, Slip Op. at 2, Mot. to Reopen & Reconsider Ex. 4, Engebretson Aff. Ex. E, Docket No. 4.) His asylum application was referred to the Immigration Court. (In re Mouhanna, Slip Op. at 2.) On March 14, 2001, Mhanna was served with a Notice to Appear in Removal Proceedings. (Compl. ¶ 17, Docket No. 1.)
In January 2002, an Immigration Judge ("IJ") held a hearing on Mhanna's application. (Jan. 31, 2002 Tr., Mot. to Reopen & Reconsider Ex. 3, Engebretson Aff. Ex. E, Docket No. 4.) Mhanna's attorney questioned him about the events of December 8, 1998:
....
(Id. at 15-18.) On cross-examination, Mhanna testified as follows:
(Id. at 30-31.)
On February 1, 2002, Immigration Judge ("IJ") Anna Ho issued a written order denying Mhanna's application for asylum, withholding of removal, and relief under the Convention Against Torture. (In re Mouhanna, Slip Op. at 29.) The IJ also...
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