Robertson-Dewar v. Mukasey
| Decision Date | 25 February 2009 |
| Docket Number | No. EP-08-CV-323-KC.,EP-08-CV-323-KC. |
| Citation | 599 F.Supp.2d 772 |
| Parties | Chadworth ROBERTSODEWAR, Petitioner, v. Michael MUKASEY, U.S. Attorney General, et al., Respondents. |
| Court | U.S. District Court — Western District of Texas |
Chadworth Robertson-Dewar, El Paso, TX, pro se.
Eduardo R. Castillo, Magdalena G. Jara, Assistant United States Attorneys, Jose J. Tavarez, Special Assistant U.S. Attorney, Immigration and Customs Enforcement, El Paso, TX, for Respondents.
On this day, the Court considered Petitioner's pro se "[Petition for] Writ of Mandamus [U]nder 28 U.S.C. § 1361[,] Motion Pursuant to [] 28 U.S.C. § 2241[, a]nd Complaint for Declaratory Judgment Pursuant to [ ] 28 U.S.C. § 2201" ("Petition") (Doc. No. 5). For the reasons set forth herein, the Petition is hereby DIMISSED without prejudice. Additionally, the United States Citizenship and Immigration Services ("CIS") Decision, dated December 18, 2006, is hereby VACATED as improvidently granted.
The following derives from the Petition, and the exhibits attached thereto; "Respondents' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" ("Respondents' Motion") (Doc. No. 10), and the exhibits attached thereto; Petitioner's "Response to Motion to Dismiss [and] Motion for Summary Judgment" ("Petitioner's Response") (Doc. No. 12); "Respondents' Reply to Petitioner's Response to Respondents' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment" ("Respondents' Reply") (Doc. No. 13); Petitioner's "Summary Judgment Affidavit" ("Petitioner's Affidavit") (Doc. No. 17), and the exhibits attached thereto; Petitioner's "Motion Requesting Leave to Clarify [T]hese Proceedings, Motion Requesting a Clearer or More Definite Statement or, in the [A]lternative, Motion for Judgment on the Pleadings[ ]" ("Petitioner's Motion") (Doc. No. 21); "Respondents' Response to Petitioner's Motion for Judgment on the Pleadings" ("Respondents' Response") (Doc. No. 23), and the exhibits attached thereto; "Petitioner's Reply to Respondents' Response to Petitioner's Motion for Judgment on the Pleadings[ ]" ("Petitioner's Reply") (Doc. No. 25); "Respondents' Supplemental Brief" (Doc. No. 22), and the exhibit attached thereto; and Petitioner's "Supplemental Court Ordered Briefing in Regards to Jurisdiction [and] Response to Respondents' Court Ordered Briefing[ ]" ("Petitioner's Supplemental Brief") (Doc. No. 24), and the exhibits attached thereto.
Petitioner Chadworth Robertson-Dewar was born in Jamaica on June 28, 1980. Pet. 8; Resp't's Mot. 2. Petitioner's father, Owen Dewar, emigrated to the United States after Petitioner's birth and became a United States citizen on October 15, 1993. Pet. 8; Resp't's Mot. 2. Petitioner's mother remained in Jamaica. Pet. 8-9. On February 10, 1993, at the age of twelve, Petitioner entered the United States as a lawful permanent resident. Pet. 9; Resp't's Mot. 2.
On January 10, 1996, when Petitioner was fifteen years old, Petitioner's father submitted an "Application for Certificate of Citizenship" ("Application") on Petitioner's behalf. Pet. 9; Resp't's Resp. 3. The Application remained unadjudicated when, on January 7, 2003, after being convicted of several counts of sexual abuse of children, Petitioner was sentenced by the Court of Common Pleas of Centre County, Pennsylvania. See Resp't's Mot. Exs. A, B.
Petitioner states that, after completing his sentence, he was immediately transferred to the custody of United States Immigration and Customs Enforcement ("ICE"). Pet. 9-10. Respondents only confirm that Petitioner was apprehended by ICE "on or about December 14, 2006," and was served with a Notice to Appear in removal proceedings. Resp't's Mot. 2; see also id. Ex. C at 1-2. The Notice to Appear, superseded by a new Notice on January 4, 2007, charged that Petitioner is subject to removal from the United States as a non-citizen who committed an aggravated felony. See id. Ex. C at 1, 3.
On the date of Petitioner's apprehension, his Application remained unadjudicated; at that point, it had been pending for 3,992 days. However, on December 18, 2006, only three days after Petitioner's apprehension, the CIS issued a Decision denying the Application. Pet. Ex. H-2. The Decision stated that the Application was filed by Petitioner, and explained that it was denied because Petitioner's mother was never a United States citizen. Id. Ex. H-3. The denial concluded that "[Petitioner] did not derive citizenship from the naturalization of [his] father." Id.
Petitioner was soon transferred to a detention facility in Otero County, New Mexico, pending his removal proceedings before the United States Immigration Court, El Paso, Texas ("Immigration Court"). Pet. 11; id. Ex. H-9. On April 26, 2007, Petitioner filed a Motion to Terminate Removal Proceedings with the Immigration Court. Id. Ex. H-9. Petitioner argued that, due to administrative neglect and affirmative misconduct, the CIS should be collaterally estopped from denying his Application and that ICE should thus be estopped from initiating removal proceedings. Id. Ex. H-7 at 1. Additionally, Petitioner claimed that the CIS adjudicated Petitioner's application under the incorrect statute, and therefore denied it for erroneous (and irrelevant) reasons. Id. at 5-6.
On May 4, 2007, the United States Department of Homeland Security ("DHS") filed a "[ ] Non-Opposition to [Petitioner's] Motion for Termination." Resp't's Mot. Ex. E. The Motion stated that Petitioner "facially meets" the requirements for citizenship based on the law "at the time that [Petitioner's] father filed [Petitioner's Application]." Id. However, the DHS "remind[ed Petitioner] that further action is required on his part to complete the citizenship process." Id. (). The Motion further stated that "if [Petitioner] does not ... complet[e] the citizenship process within the next several years, the DHS will re-initiate removal proceedings...." Id. ().
On May 7, 2007, the Immigration Court issued an order terminating Petitioner's removal proceedings without prejudice. Id. Ex. F. Petitioner was subsequently released from custody. Resp't's Mot. 3.
Petitioner states that the Immigration Court's order was the only form of identification provided to him upon his release. Pet. 12. In part because of a lack of identification, Petitioner "was forced to stay in a homeless shelter where he was attacked by a drunken resident, and thereafter under bridges, in abandoned and derelict buildings and occasionally on the couches of acquaintances." Id. at 3. Petitioner was also unable to obtain citizenship. Id. at 13-14.
On September 4, 2007, Petitioner filed an Application to Replace Permanent Resident Card. Id. Exs. H-13, H-14.1 This "prompted [the] CIS to review Petitioner's criminal and immigration case history." Resp't's Mot. 3. At the time of the review, Petitioner had spent less than one year attempting to complete the citizenship process, and the CIS was not aware of any change in Petitioner's criminal history. See id. Ex. G. at 2. Nevertheless, a new Notice to Appear was issued on November 30, 2007. Id. Ex. H.
On the date Petitioner's new Notice to Appear was issued, several members of ICE's Fugitive Operations Team proceeded to Petitioner's last known address, a homeless shelter. Id. Ex. G. at 2. After learning that Petitioner frequented an El Paso public library, three officers initiated surveillance at that library. Id. The officers encountered Petitioner entering the library, arrested him, and transported him for immigration processing. Id. at 2-3. After taking Petitioner into custody, the officers learned that Petitioner had an outstanding warrant, dated November 9, 2007, for failure to register as a sex offender in Texas. Id.2
On August 28, 2008, Petitioner filed his Petition. The Petition reiterates his argument that the Government should be estopped from denying Petitioner's citizenship and initiating removal proceedings because Petitioner's Application was unlawfully delayed before being incorrectly denied. Pet. 1. Petitioner requests that this Court issue a writ of mandamus, pursuant to 28 U.S.C. § 1361, ordering Respondents to properly process Petitioner's Application nunc pro tunc; or declare that Petitioner was a citizen as of 1996, pursuant to 28 U.S.C. § 2201. Id. at 26.
On October 9, 2008, pursuant to this Court's Order, Sept. 3, 2008 (Doc. No. 7), Respondents filed their Motion. Respondents requested that this Court dismiss the instant case for lack of subject matter jurisdiction and failure to state a claim. Resp't's Mot. 4. Respondents stated that because Petitioner has placed his citizenship in issue in his removal proceeding, this Court is precluded from considering his citizenship in a declaratory judgment action. Id. at 4-5. Respondents then argued that this Court lacks habeas corpus jurisdiction because "an alien who claims to have acquired citizenship through derivation must raise the issue before the immigration judge." Id. at 6. Finally, Respondents argued that Petitioner failed to exhaust his administrative remedies. Id. In support of their exhaustion argument, Respondents relied on 8 U.S.C. § 1252(d)(1), which requires administrative exhaustion before a court "may review a final order of removal...." They argued that this provision applies because "Petitioner has been ordered removed." Resp't's Mot. 6. In the same Motion, Respondents also stated that Petitioner's hearing before the Immigration Court was scheduled for October 22, 2008. Id. at 7.
On October 21, 2008, Petitioner filed his Response. Petitioner noted that he had not been ordered removed, as he had not yet had a hearing. Pet'r's Resp. 1. Further, Petitioner argued that he "does not now assert a claim of United States citizenship," but asserts that he would be a citizen but for the Government's...
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