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Abdu Saleh, Beneficiary of A Visa Petition Filed By Tehetena v. Eric H. Holder

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


April 1, 2013

ABDU SALEH, BENEFICIARY OF A VISA PETITION FILED BY TEHETENA DAGNA TEKLEWOLD, PETITIONERS,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.

Agency No. A203-078-380

Nevada Federal District Court

REPLY TO PETITIONERS OPPOSITION TO RESPONDENT'S MOTION TO DISMISS

I. INTRODUCTION

On December 14, 2012, Respondent moved the Court to dismiss this petition for review because neither Abdu Saleh nor Tehetena Dagna Teklewold ("Petitioners") were the subject of a final order of removal. After Petitioners filed no response to that motion, the Court entered an order on January 30, 2013, directing Petitioners to either respond within 14 days or move for voluntary dismissal, and to indicate, in any response, whether transfer to an appropriate district court is warranted under 28 U.S.C. § 1631. Petitioners submitted a late- filed response on February 14, 2013.

II. ARGUMENT

Petitioners' Response Does Not Address this Court's Lack of Jurisdiction to Review the Denial of a Decision on a Visa Appeal in the First Instance As set forth in Respondent's motion to dismiss, section 242 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252 (2006), vests this Court with jurisdiction to review final orders of removal. See INA § 242(a)(1), 8 U.S.C. § 1252(a)(1); Calcano-Martinez v. INS, 533 U.S. 348, 350 (2001). Although Petitioners correctly argue that the INA does not foreclose review of the denial of an appeal of a visa petition, like the decision by the Board of Immigration Appeals in this case, that decision is not a final order of removal subject to this Court's review in the first instance. Petitioners do not endeavor to address this forum's lack of jurisdiction to entertain their claims as a matter of first Rather, as noted in Respondent's motion to dismiss, judicial review of the denial of an appeal of a visa petition is available in the first instance in the United States District Court under the Administrative Procedures Act. See, e.g., Rijal v. U.S. Citizenship & Immigration Servs.,772 F. Supp. 2d 1339, 1344 (W.D. Wash. 2011) (citing 5 U.S.C. §§ 701-706). Because Petitioners are not seeking review of a final order of removal, the Court lacks jurisdiction to entertain this petition for Petitioners' Request for Transfer

Although Respondent takes no position on Petitioners' request for transfer to United States District Court for the District of Nevada, Respondent notes that Petitioners remain responsible for complying with all filing, notice, and service of process requirements, including naming the proper parties, applicable in any district court case challenging the denial of a visa petition.

WHEREFORE, for the reasons set forth in Respondent's motion to dismiss and above, the Court should dismiss this petition for review for lack of Respectfully submitted,

STUART F. DELERY Principal Deputy Assistant Attorney General Civil Division JAMES A. HUNOLT Senior Litigation Counsel

s/David Schor

DAVID SCHOR Trial Attorney Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 305-7190 Fax: (202) 616-4975 Dated: February 19, 2013 David.Schor@usdoj.gov

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on February 19, 2013, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

s/David Schor DAVID SCHOR Trial Attorney Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 305-7190 Fax: (202) 616-4975 Dated: February 19, 2013 David.Schor@usdoj.gov

20130401

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