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Habiby Sayed v. Erich Holder

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 23, 2013

HABIBY SAYED,
PETITIONER,
v.
ERICH HOLDER, RESPONDENT.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Petitioner, a prisoner proceeding pro se, has initiated this civil action. Petitioner states that he entered the United Sates on an temporary visa which then expired. Upon expiration of the temporary visa petitioner sought asylum, claiming that he would face death at the hands of the Taliban if he was returned to his native Afghanistan where he worked with the U.S. Army. From petitioner's filings, which consist of two hand-written letters to the court, it appears that petitioner is currently in immigration custody and that his case is set to be heard by an administrative law judge on January 22, 2013.

Pursuant to 8 U.S.C. § 1252(a)(5), a petition for review filed in the appropriate federal court of appeals is the exclusive means of challenging an order of removal. See Martinez v. Napolitano, ___ F.3d. ___, 2012 WL 5995444 (9th Cir. 2012). In Martinez, the alien challenged the procedures and substance of the determination that he was ineligible for asylum and affirmed an order of removal. See id. The court affirmed the district court's dismissal of Martinez civil action for lack of jurisdiction based on § 1252(a)(5)'s exclusivity provision.

In addition to the forgoing jurisdictional problem, it also appears that any judicial action, wherever commenced, would be premature given that petitioner's administrative hearing has yet to occur. Petitioner will be directed to show cause why this action should not be dismissed, without prejudice, for lack of jurisdiction and as premature. Petitioner is cautioned that the failure to respond to this order within the time provided may result in the dismissal of the action, both for the reasons stated above, as well as for lack of prosecution and failure to comply with court rules and orders. See Local Rule 110.

Accordingly, IT IS HEREBY ORDERED that petitioner shall show cause in writing, within 30 days of the date of this order, why this action should not be dismissed.

20130123

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