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Ezenabo v. Customs and Border Protection

United States District Court, E.D. Michigan, Southern Division

May 15, 2019

LOUIS N. EZENABO, Plaintiff,
v.
CUSTOMS AND BORDER PROTECTION, ET AL., Defendants.

          Elizabeth A. Stafford, United States Magistrate Judge

          OPINION AND ORDER GRANTING DEFENDANTS' MOTIONTO DISMISS [#8]

          GERSHWIN A. DRAIN, UNITED STATES DISTRICT COURT JUDGE

         I. Introduction

         Plaintiff Louis Ezenabo, a Nigerian national, filed this Petition for a Writ of Mandamus seeking a court order requiring Immigration and Customs Enforcement (“ICE”) to facilitate his return to the United States, so that he can attend his immigration removal proceedings in person. Dkt. No. 1. Defendants move to dismiss Plaintiff's Writ for a lack of subject matter jurisdiction. Dkt. No. 8.

         Present before the Court is Defendants' Motion to Dismiss [#8]. The Court will decide the matter on the briefs and without a hearing. See E.D. Mich. LR 7.1(f)(2). For the reasons set forth below, the Court will GRANT the Motion [#8].

         II. Background

         Plaintiff is a Nigerian national who came to the United States in 1999 on an F-1 student visa. Dkt. No. 1, p. 5 (Pg. ID 5). He became a conditional lawful permanent resident on August 23, 2001. Id. at p. 6 (Pg. ID 6). After graduating from college, Plaintiff went on to attend Western Michigan University Law School, where he graduated with his Juris Doctor degree. Id. at p. 5 (Pg. ID 5). While in the United States, Plaintiff met and married his current wife, who is a United States citizen. Id. The couple have three young children, all who reside with Plaintiff's wife in Michigan. Id.

         On September 29, 2015, Plaintiff was removed from the United States to Nigeria due to the termination of his conditional permanent residency status. Id. at pp. 6-7 (Pg. ID 6-7). However, the Board of Immigration Appeals (“BIA”) reopened his case on January 4, 2016 based on an I-130 relative petition that Plaintiff's wife filed on his behalf. Id. at p. 7; Dkt. No. 12-2. Plaintiff will now have a hearing before the immigration court in Detroit, Michigan on July 16, 2019, at which time the court will consider Plaintiff's application for adjustment of status and determine whether he is removable. See Dkt. No. 12-5.

         As it stands, Plaintiff cannot enter into the United States to attend his hearing unless he obtains the proper documentation from ICE. Dkt. No. 1, p. 8 (Pg. ID 8). ICE maintains that Plaintiff's physical appearance at the hearing is not necessary. Id. Plaintiff therefore files this Writ of Mandamus seeking a court order requiring ICE to facilitate his return to the United States.

         III. Legal Standard

         Federal Rule of Civil Procedure 12(b)(1) authorizes a party to challenge the court's jurisdiction over the subject matter of a complaint. See Fed. R. Civ. P. 12(b)(1). Jurisdictional challenges fall into two categories: (1) facial attacks, and (2) factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack is a challenge to the sufficiency of the pleading, while a factual attack is a challenge to the actual existence of subject matter jurisdiction. Id.

         When analyzing a facial attack, “the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party.” Id. In contrast, when considering a factual attack, there is no presumption of truthfulness, “and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Id.

         Ultimately, the plaintiff bears the burden of demonstrating the existence of subject matter jurisdiction. Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). Where “a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).

         IV. ...


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