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Habiby Sayed v. Erich Holder

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


March 6, 2013

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

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

FINDINGS AND RECOMMENDATIONS

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 was set to be heard by an administrative law judge on January 22, 2013.

On January 24, 2013, the court directed petitioner to show cause why this action should not be dismissed for lack of jurisdiction. The court stated:

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.

Petitioner has not filed a response within the time provided to do so and the court finds that dismissal of the action for the reasons stated above is appropriate.

Based on the foregoing, the undersigned recommends that this action be summarily dismissed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20130306

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