Nsinano v. Sessions, Case No. 5:17–cv–00094–VBF (GJS)

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
Citation236 F.Supp.3d 1133
Decision Date21 February 2017
Docket NumberCase No. 5:17–cv–00094–VBF (GJS)
Parties Jason Sinagwana NSINANO, Petitioner, v. Jefferson Beauregard SESSIONS III (Attorney General of the United States), Respondent.

236 F.Supp.3d 1133

Jason Sinagwana NSINANO, Petitioner,
v.
Jefferson Beauregard SESSIONS III (Attorney General of the United States), Respondent.

Case No. 5:17–cv–00094–VBF (GJS)

United States District Court, C.D. California.

Signed February 21, 2017


236 F.Supp.3d 1135

Jason Sinagwana Nsinano Adelanto, CA pro se.

Assistant 2241–194 US Attorney LA–CV, AUSA—Office of US Attorney, Los Angeles, CA, OIL–DCS Trial Attorney, Office of Immigration Litigation District Court Section, Washington, DC, for Respondent.

AMENDED ORDER

Dismissing the Section 2241 Habeas Corpus Petition With Prejudice for Lack of Subject–Matter Jurisdiction;

Directing Entry of Separate Judgment

VALERIE BAKER FAIRBANK, Senior United States District Judge

Jason Sinagwana Nsinano ("petitioner") is a federal immigration detainee being housed in a privately operated federal prison in Adelanto, California. Proceeding pro se , petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 ("petition") against the United States Attorney General1 on January 19, 2017. See Case Management / Electronic Case Filing System Document ("Doc") 1. On February 1, 2017, Petitioner filed exhibits in support of the petition (Doc 4). For the reasons that follow, the Court will dismiss this habeas petition with prejudice due to an irremediable lack of subject-matter jurisdiction. The Court will then enter final judgment in favor of the respondent Attorney General accordingly.

Petitioner's removal proceedings are ongoing and Petitioner has applied for asylum in the United States. Petitioner states that he is eligible for "U" nonimmigrant ("U visa") classification because he was the victim of identity theft by another prisoner while being housed at the Adelanto facility. He contends he is qualified for such classification because identify theft is a qualifying crime under 8 U.S.C. § 1101(a)(15)(U). The Petition thus challenges petitioner's continued detention by the Department of Homeland Security's U.S. Immigrations and Customs Enforcement agency ("ICE")

236 F.Supp.3d 1136

following the alleged crime. The Petition names as respondent the Attorney General of the United States.

"Federal courts are courts of limited jurisdiction, and parties may not expand that jurisdiction by waiver or consent." Herklotz v. Parkinson , 848 F.3d 894, 897, 2017 WL 586466, *2 (9th Cir. 2017) (Berzon, Nguyen, N.D. Ohio D.J. Zouhary ) (citing Matheson v. Progressive Specialty Ins. Co. , 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam)). Accordingly, federal subject-matter jurisdiction must exist at the time an action is commenced,see Morongo Band of Mission Indians v. California State Bd. of Equalization , 858 F.2d 1376, 1380 (9th Cir. 1988) (internal citations omitted).

Because subject-matter jurisdiction concerns the authority of the court to hear a particular case or controversy, it is a threshold issue that may be raised at any time and by any party. Fed. R. Civ. P. 12(b)(1). Even where neither party contests subject-matter jurisdiction, the Court is bound to raise the issue sua sponte if the existence of such jurisdiction is even "questionable", and must dismiss the case if no subject-matter jurisdiction exists.See Fed. R. Civ. P. 12(h)(3) ; Gilder v. PGA Tour, Inc. , 936 F.2d 417, 421 (9th Cir. 1991) (internal citation omitted).

Petitioner seeks a U Visa in order to be recognized as a nonimmigrant under 8 U.S.C. § 1101(a)(15)(U). A petitioner may be considered a nonimmigrant under this section where the Secretary of Homeland Security determines that:

(1) "the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in [ 8 U.S.C. § 1101(a)(15)(U)(iii) (referred to as "clause (iii)") ]";

(2) "the alien...possesses information concerning criminal activity described in clause (iii)";

(3) "the alien...has been helpful...to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity described in clause (iii)"; and

(4) "the criminal activity described in clause (iii) violated the laws of the United States...."

Title 8 U.S.C. § 1101(a)(15)(U).

Clause (iii) of Title 8's "U–Visa" provision states that

the criminal activity referred to in this clause is that involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; stalking; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; fraud in foreign labor contracting (as defined in section 1351 of Title 18); or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes; ....

Id. The DHS's immigration regulations set out the petitioning procedures for a U Visa. See 8 C.F.R. § 214.14 subsec. c ("Application procedures for U nonimmigrant status"). The regulations state that U.S. Citizenship and Immigration Services ("USCIS") has "sole jurisdiction over all

236 F.Supp.3d 1137

petitions for U nonimmigrant status." 8 C.F.R. § 214.14(c)(1).

The U–Visa regulations also explain that "USCIS will determine, in its sole discretion, the evidentiary value of previously or concurrently submitted evidence...." 8 C.F.R. § 214.14(c)(4) ("Evidentiary standards and burdens of proof"). Thus, U Visas are "committed to USCIS' discretion by law" and "the applicable statutes do not mandate a particular outcome or confer any established or protected interest in the grant of a ‘U’ visa." See Catholic Charities CYO v. Chertoff , 622 F.Supp.2d 865, 880 (N.D. Cal. 2008), aff'd 368 Fed.Appx. 750 (9th Cir. 2010). Petitioners may appeal a denial of a U Visa to the USCIS Administrative Appeals Office. 8 C.F.R. § 214.14(c)(5)(ii).

A petitioner may not submit an "U" visa application without first obtaining a law enforcement certification from a federal, state, or local law enforcement official, prosecutor, judge, or other federal, state, or local authority investigating the criminal activity described in § 1101(a)(15)(U)(iii), above, stating that the alien "has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of" such criminal activity. See 8 U.S.C. § 1184(p)(1). The certification may also be provided by a DHS official whose ability to provide such certification is not limited to information concerning immigration violations. Id.

Nsinano's petition asks the Court to determine that he is eligible for U nonimmigrant status and compel issuance of a law-enforcement certification stating he was the victim of identity theft. The Court does not have jurisdiction to decide this issue or to grant the requested relief.

First, the Court does not have jurisdiction to address the Petition because it challenges an exercise of discretion by the USCIS.See United States v. Cisneros–Rodriguez , 813 F.3d 748, 767 (9th Cir. 2015) (referring to "discretionary forms of relief, such as waivers of...

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6 cases
  • Perez v. Wolf
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 22, 2019
    ..."any federal court that has exercised jurisdiction over questions of a Petitioner’s eligibility for a U-Visa." Nsinano v. Sessions , 236 F. Supp. 3d 1133, 1137 (C.D. Cal. 2017). Although Mr. Perez provided a number of cases generally supporting judicial review under the APA, he did not offe......
  • Perez v. Duke
    • United States
    • U.S. District Court — Western District of Washington
    • December 26, 2017
    ..."any federal court that has exercised jurisdiction over questions of a Petitioner's eligibility for a U-Visa." Nsinano v. Sessions, 236 F. Supp. 3d 1133, 1137 (N.D. Cal. 2017). Although Mr. Perez provided a number of cases generally supporting judicial review under the APA, he did not offer......
  • Palacios-Bernal v. Barr
    • United States
    • U.S. District Court — Central District of California
    • October 22, 2019
    ...on due process grounds). Dismissal with prejudice of this habeas action, therefore, is appropriate. See Nsinano v. Sessions, 236 F. Supp. 3d 1133, 1139 (C.D. Cal. Feb. 17, 2017) ("Dismissal of claims for which section 1252(g) strips subject-matter jurisdiction, must be with prejudice, becau......
  • United States v. Valverde-Rumbo
    • United States
    • U.S. District Court — Northern District of California
    • September 6, 2017
    ...is being helpful, or is likely to be helpful in the investigation or prosecution of' such criminal activity. Nsinano v. Sessions, 236 F. Supp. 3d 1133, 1137 (C.D. Cal. 2017) (quoting 8 U.S.C. § 1184(p)(1)). Where the U Visa applicant was a child under the age of sixteen at the time of the q......
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