IMMIG Kestelboym v. Chertoff Order on Reconsider

8/14/2019 IMMIG Kestelboym v. Chertoff Order on Reconsider

1/5

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

____________________________________

:

ELENA KESTELBOYM, ::

Plaintiff, :

:

v. :

:

MICHAEL CHERTOFF, Secretary, :

Department of Homeland Security; :

RUSSELL OWEN, District Director, :

United States Citizenship and Customs :

Enforcement [sic]; UNITED STATES :

CITIZENSHIP AND IMMIGRATION :SERVICES, :

:

Defendants. :

____________________________________:

Civil Action No. 07-857 (JAG)

ORDER

This matter comes before this Court on the motion of Defendants Michael Chertoff,

Russell Owen, and the United States Citizenship and Immigration Services (collectively

Defendants), for reconsideration of this Courts March 13, 2008 Opinion and Order, denying

Defendants motion to dismiss for lack of subject matter jurisdiction, pursuant to FED.R.CIV.P.

12(b)(1).

I. BACKGROUND

This Court stated the facts relevant to the pending motion in its March 13, 2008 Opinion.

See Kestelboym v. Chertoff, No. 07-857, 2008 U.S. Dist. LEXIS 20529, *2-5 (D.N.J. Mar. 13,

2008). This Court will not repeat those facts; however, this Court will provide a brief procedural

history.

On August 2, 2004, Plaintiff filed an N-400 application for naturalization, pursuant to

319(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1430(a) (1990). (Am.

Case 2:07-cv-00857-JAG-MCA Document 22 Filed 06/19/2008 Page 1 of 5


2/5

2

Compl. 24.) The United States Citizenship and Immigration Services (USCIS) denied

Plaintiffs naturalization application, as well as Plaintiffs request for a hearing. (Id. at 25-27.)

As a result of this denial, Plaintiff filed a complaint in this Court, on February 21, 2007, seeking

a de novo review of the denial of her naturalization application, pursuant to 310(c) of the INA,

8 U.S.C. 1421(c) (1990).

On May 8, 2007, USCIS issued a removal notice to Plaintiff, and subsequently filed a

motion to dismiss Plaintiffs Complaint. (See generally, Mot. to Dismiss.) This Court,

construing the motion as one to dismiss for lack of subject matter jurisdiction, denied the Motion

to Dismiss. Kestelboym, 2008 U.S. Dist. LEXIS 20529, at *15-16.

On March 31, 2008, USCIS filed a Motion for Reconsideration, arguing that [t]his Court

did not address the United Statess only argument, that this matter should be dismissed because

it is unripe, and for that reason, its motion should be granted. (See Mot. for Recons. 2.)

II. STANDARD OF REVIEW

A motion to reconsider, pursuant to FED.R.CIV.P. 59(e) and L.CIV.R. 7.1(i), is an

extremely limited procedural vehicle, and requests pursuant to these rules are to be granted

sparingly. P. Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161 F. Supp. 2d 349, 353

(D.N.J. 1992) (citing Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986)). The Third

Circuit has held that the purpose of a motion to reconsider is to correct manifest errors of law or

fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d

Cir. 1985), cert. denied, 476 U.S. 1171 (1986).

A court may grant a motion to reconsider only if the moving party shows either: (1) an

intervening change in the controlling law; (2) the existence of new evidence that was not



3/5

3

available when the court issued its order; or (3) the need to correct a clear error of law or fact or

to prevent manifest injustice. See N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194,

1218 (3d Cir. 1995). To satisfy its burden, the moving party must show dispositive factual

matters or controlling decisions of law that were brought to the courts attention but not

considered. P. Schoenfeld Asset Mgmt. LLC, 161 F. Supp. 2d at 353; see also Pelham v. United

States, 661 F. Supp. 1063, 1065 (D.N.J. 1987). The motion may not be used to re-litigate old

matters or argue new matters that could have been raised before the original decision was

reached. P. Schoenfeld Asset Mgmt., L.L.C., 161 F. Supp. 2d at 352. A party seeking

reconsideration must show more than a disagreement with the Courts decision, and

recapitulation of the cases and argument considered by the court before rendering its original

decision fails to carry the moving partys burden. Id. (quoting G-69 v. Degnan, 748 F. Supp.

274, 275 (D.N.J. 1990) (internal citations omitted)).

The proper ground for granting a motion to reconsider, therefore, is that the matters or

decisions overlooked, if considered by the court, might reasonably have altered the result

reached. G-69, 748 F. Supp. at 275 (quoting N.Y. Guardian Mortgagee Corp. v. Cleland, 473

F. Supp. 409, 420 (S.D.N.Y. 1979)).

III. ANALYSIS

Defendants argue that this Court failed to comprehend the crux of their argument

adequately. They state that the gist of the argument is that Plaintiffs claim is unripe because

removal proceedings are pending. (Mot. for Recons. 2.) Defendants claim that this particular

position is novel, and therefore, it was not possible to cite to case law in support of such

theory. (Id.)



4/5

It is curious that Defendants attempt to craft an argument suggesting that Plaintiffs1

claims are unripe when her Complaint was filed prior to the institution of removal proceedings.

In fact, Plaintiffs Complaint was filed on February 21, 2007, while Defendants initiated removal

proceedings on May 8, 2007, over a year after Plaintiffs naturalization application was denied,

and six months after her request for a hearing was denied, but just six days before Defendants

answer to Plaintiffs Complaint was due.

4

Although Defendants may be correct in arguing that the theory that a case must be ripe for

adjudication has not been applied to the particular facts before this Court, ripeness is not an

inherently novel issue, whether in this context or otherwise. See 15 JAMES WM.MOORE,

MOORES FEDERAL PRACTICE 101.70[1], 101.73[1] (3d ed. 2007) (stating that [t]he question

of ripeness goes to whether the district court has subject matter jurisdiction and that [t]he

question of ripeness, like other challenges to a courts subject matter jurisdiction, is treated as a

motion to dismiss under Rule 12(b)(1)). However, Defendants fail to cite any precedent at any

level of federal jurisprudence, or any analogous legal theories that shed light on the theory

espoused. This Court perceived then, and perceives now, that it has subject matter jurisdiction

over Plaintiffs Complaint, and that the claims are ripe.

A person whose application for naturalization under this title is denied, after a

hearing before an immigration officer under section 1447(a) of this Title, may seek

review of such denial before the United States district court for the district in which

such person resides. . . . Such review shall be de novo, and the court shall make its

own findings of fact and conclusions of law and shall, at the request of the petitioner,

conduct a hearing de novo on the application.

8 U.S.C. 1421(c). Plaintiffs application for naturalization, as well as her request for a hearing

before an immigration officer, was denied. (Am. Compl. 24-27.) Accordingly, Plaintiffs

claim is properly before this Court. See 15 JAMES WM.MOORE, MOORES FEDERAL PRACTICE1

101.70[2] (stating that [t]he ripeness doctrine concerns the timing of the suit. It asks whether

the case has been brought at a point so early that it is not yet clear whether a real dispute to be



5/5

5

resolved exists between the parties.).

For the reasons stated above and good cause appearing,

IT IS on this 17 day of June, 2008th

ORDERED that Defendants Motion for Reconsideration is DENIED; and it is further

ORDERED that a copy of this Order be served on all parties within seven (7) days of the

date of entry of this Order.

S/Joseph A. Greenaway, Jr.JOSEPH A. GREENAWAY, JR., U.S.D.J.


Documents

IMMIG Kestelboym v. Chertoff Order on Reconsider