United States District Court, E.D. Michigan, Southern Division
LOUIS N. EZENABO, Plaintiff,
CUSTOMS AND BORDER PROTECTION, ET AL., Defendants.
Elizabeth A. Stafford, United States Magistrate Judge
OPINION AND ORDER GRANTING DEFENDANTS' MOTIONTO
GERSHWIN A. DRAIN, UNITED STATES DISTRICT COURT JUDGE
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.
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
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.
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.
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.
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.
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.
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).