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Jigneshi J. Jariwala v. Janet Napolitano

April 4, 2011

JIGNESHI J. JARIWALA,
PLAINTIFF,
v.
JANET NAPOLITANO, SECRETARY FOR THE DEPARTMENT OF HOMELAND SECURITY, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITHOUT PREJUDICE

(re: docket # 12)

Plaintiff Jigneshi Jariwala ("Plaintiff") brings suit to compel the United States Citizenship and Immigration Services ("USCIS") to accept jurisdiction and adjudicate his application for 19 adjustment of status to lawful permanent resident. Defendants move to dismiss for lack of subject 20 matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Plaintiff has not filed an opposition.

Pursuant to Local Civil Rule 7-1(b), the Court concludes that this motion is appropriate for 22 determination without oral argument and vacates the April 7, 2011 motion hearing. For the reasons 23 discussed below, Defendants' motion to dismiss is GRANTED WITHOUT PREJUDICE. 24

I. BACKGROUND Plaintiff, a native citizen of India, applied for asylum on October 13, 1992. The application was denied and an order to show cause ("OSC") as to why he should not be deported for entering 27 the United States without inspection was issued on March 9, 1994. Compl. ¶ 11. Plaintiff also 28 filed a second application with the asylum office under the name of Jingesh Mehta. Id. at ¶ 15. An OSC in connection with the Mehta file was issued on November 17, 1994. Id. 3

Judge ("IJ") issued an order of deportation. Id. at ¶ 13. Plaintiff also failed to appear for an April 6 ¶ 15 n.1.

were consolidated and remanded to the Board of Immigration Appeals ("Board") for consideration 10 of actions necessary for clarification of Plaintiff's identity. Id. In the Mehta case, the Board concluded that Jingesh Mehta was the Plaintiff's true identity, denied reopening of the proceedings, and upheld the IJ's finding of deportation. Id. at ¶ 18. The Board also denied Plaintiff's motion to 13 reconsider. Id. In the Jariwala case, the Board terminated proceedings as moot in light of the 14 determination in the Mehta case regarding Plaintiff's true identity. Id. at ¶ 20. Petitions for review 15 were again filed in both cases. The petition in the Jariwala case was voluntarily dismissed, while 16 the petition in the Mehta case was denied by the Ninth Circuit on October 8, 2010.

U.S. citizen the following year. Id. Plaintiff twice filed an application for adjustment of status to 20 lawful permanent resident with the USCIS based upon his marriage to a U.S. citizen. Id. at ¶ 28. Plaintiff had been placed in deportation proceedings. See Exh. D, attached to Compl.

mandating USCIS to accept jurisdiction and adjudicate Plaintiff's application for adjustment of 25 status. Defendants have moved to dismiss for lack of jurisdiction.

under 28 U.S.C. § 1331. Califano v. Sanders, 430 U.S. 99, 107 (1977). Rule 12(b)(1) of the Plaintiff did not respond to either OSC. After Plaintiff failed to appear for a November 20, 1995 hearing on the merits of his asylum application regarding the Jariwala file, the Immigration 25, 1996 hearing regarding the Mehta file, and was likewise ordered deported in absentia. Id. at

Plaintiff filed petitions for review with the Ninth Circuit. Id. at ¶¶ 16-17. These petitions

During this time, Plaintiff married his wife Angelina Jariwala in 1997. Id. at. ΒΆ 2. Angelina Jariwala was a permanent resident of the United States at the time of their marriage, but became a USCIC, however, responded that it lacked jurisdiction over the adjustment application because Plaintiff ...


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