IMMIG Kestelboym v. Chertoff Def Reconsider

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United States Department of JusticeUnited States AttorneyDistrict of New JerseyCivil Division

970 Broad Street, Suite 700 General Tel: 973.645.2700Newark, New Jersey 07102 Direct Tel: 973.645.2892

Fax:: 973.297.2010e-mail: [email protected]

ELECTRONICALLY FILED31 March 2008

The Honorable Joseph A. Greenaway, Jr., U.S.D.J.United States District CourtUnited States Post Office & CourthouseFederal SquareNewark, 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 CivilRule 7.1(i) permits a party to set forth concisely the matter or controlling decision that the partybelieves the judge has overlooked in support of a motion for reconsideration. The courts in thisdistrict have emphasized repeatedly that the motion of reconsideration invites counsel to draw thecourt's attention to decision which counsel believes the court may have overlooked, not thoseoverlooked 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 isimproperly 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 UnitedStates'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 thematter should be dismissed, because it is unripe only. After the United States had reviewed thestatutory and administrative scheme and the case law, the United States advised the Court that theThird 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 thatthere was subject matter jurisdiction, it therefore only scrupulously asserted, "this Court mustdismiss the instant petition without prejudice, because it is, at a minimum, unripe." SeeDef.'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 thismatter, which explored the interplay between Sections 1421 and 1429, and determined that theDistrict Court had subject matter jurisdiction. Id. at 906. However, based on the statutory andadministrative scheme and consistent with the case law, the United States novelly argued that theDistrict Court should dismiss the complaint, because it was unripe only. SeeDef.'s Mot. Letter Br. atp. 2. The United States therefore concluded that "this Court should dismiss the amended complaintwithout prejudice while the removal proceedings are pending, because the amended complaint isunripe." Id. at p. 3.

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


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Concerned that plaintiff had misconstrued defendant's argument about subject matterjurisdiction, in its reply, the United States in its preliminary statement, again reiterated its unripenessposition. SeeDef. Reply Br. at p. 1. The United States maintained in the reply brief, "Defendantscrupulously argued in its initial brief that this Court should dismiss the matter as unripe. Defendantprovided a footnote citation to a Third Circuit opinion wherein the Court of Appeals ponderedwhether the District Court even had subject matter jurisdiction. However, defendants' explicitlyconcluded that '[t]his Court should dismiss the amended complaint without prejudice while theremoval proceedings are pending, because the amended complaint is unripe. SeeDef.'s Letter Br. atpp. 2-3." SeeDef. 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 isconcurrent jurisdiction, again citing to Zayed, the Court should dismiss the unripe matter to advancethe 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 argumentof 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 submissionsdemonstrate this to be true. Furthermore, contrary to the Court's assertion, the United States restedits authority on Rule 12 as well as Zayed, for the repeated assertion that while there may be subjectmatter jurisdiction, the matter should be dismissed as unripe. Aside from this, the United Statessubmits that ripeness is not truly rooted in any rule, but in prudential considerations, as the ThirdCircuit 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 ripenessdoctrine to Rule 12(b)(1), which is the Rule this Court attached to the United States's submission. SeeFord Motor Credit Co. v. Chiorasso, 529 F. Supp.2d 535, 539-40 (D.N.J. 2008). Aside from the citationto 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. SeeKestelboym, 2008 WL 68398 at *1-6. However, the United States plainly had recognized and concededthat point. The United States's only argument was that the Court should dismiss the matter asunripe. 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 furtherthat this Court should dismiss the amended complaint without prejudice because of unripeness as amatter prudence, because of the pending removal proceedings. In support thereof, consistent withthe position of the United States, this Court in its opinion has agreed that the priority provision isdesigned to prevent a race between the immigrant and the Attorney General and that the overhaulof the naturalization process was designed to shift from judicial to administrative naturalizationproceedings. See Kestelboym, 2008 WL 68398 at *3. Moreover, consistent with the United States'sposition, this Court has agreed that the Court has concurrent jurisdiction. The United States neversuggested, as the Court has understood the United States's argument, that the Attorney Generalcould avoid the Court's jurisdiction, id. at *5, rather it conceded the Court's jurisdiction and onlysuggested that prudentially this Court should dismiss the immigrant's complaint. However, the Courtdid not reach the United States's ripeness argument. In this way, should this Court reconsider andagree, the immigrant, under the proper circumstances, would still have the opportunity to bring the



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As provided in the reply brief, the removal proceeding hearing is scheduled for 161

May 2008; this is 11 days after the return date of this motion.

complaint at the right time. This is the soundest course for the reasons already set forth by this1

Court; it avoids a race by the litigants, advances the legislative priority given to administrativenaturalization proceedings, and advances the sound administration of justice by avoiding duplicativelitigation 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 publishedopinion and reissue an opinion properly reciting the United States's argument, that is, that while theCourt does indeed have concurrent jurisdiction, the complaint prudentially should be dismissedbecause it is unripe only.

Sincerely,

CHRISTOPHER J. CHRISTIEUnited States Attorney

/S/ Jafer AftabBy: JAFER AFTAB

Assistant United States Attorney


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IMMIG Kestelboym v. Chertoff Def Reconsider