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Tesfay v. Holder

United States District Court, D. Nevada

April 26, 2013

YETBAREK YOHANNES TESFAY, Petitioner,
v.
ERIC HOLDER, et al., Respondents

For Yetbarek Yohannes Tesfay, Plaintiff: Seth L Reszko, Reza Athari & Associates, PLLC., Las Vegas, NV.

For Eric H. Holder, Jr., Defendant: Carlos A Gonzalez, LEAD ATTORNEY, U.S. Attorney's Office, Las Vegas, NV; Jeffrey S Robins, LEAD ATTORNEY, Dept. of Justice, Office of Immigration Litigation, Washington, DC; Jeffery S. Robins, Office of Immigration Litigation, U.S. Department of Justice Civil Division, Washington, DC.

For Alejandro Mayorkas, John Kramar, Janet Napolitano, U.S. Attorney Daniel G. Bogden, Defendants: Jeffrey S Robins, LEAD ATTORNEY, Dept. of Justice, Office of Immigration Litigation, Washington, DC; Carlos A Gonzalez, U.S. Attorney's Office, Las Vegas, NV; Jeffery S. Robins, Office of Immigration Litigation, U.S. Department of Justice Civil Division, Washington, DC.

OPINION

Page 1064

ORDER

PHILIP M. PRO, United States District Judge.

Presently before this Court is Petitioner Yetbarek Yohannes Tesfay's (" Tesfay" ) Motion for Order Amending Naturalization Certificate (Doc. #19), filed on January 11, 2013. Respondents Eric Holder, Alejandro Mayorkas, John Kramer, and Janet Napolitano (" Respondents" ) filed a Response (Doc. #20) on February 14, 2013. Tesfay filed a Reply (Doc. #21) on March 14, 2013.

I. BACKGROUND

Tesfay alleges he was born in Eritrea on January 12, 1948. (Compl. (Doc. #1) at 2.) Due to civil unrest in Eritrea, Tesfay fled from Eritrea to Sudan in 1965. (Id.) Upon entering Sudan, Tesfay alleges the Sudanese Interior Minister incorrectly recorded his date of birth as October 1, 1955. (Id.) However, Tesfay was unable to correct the birth date recorded on the documents he obtained in Sudan. (Id.)

Tesfay eventually relocated to the United States and in 2004 applied for naturalization through the United States Department of Homeland Security's Citizenship and Immigration Services (" USCIS" ). (Id.) Tesfay requested a copy of his birth certificate from Eritrea in December 2008. (Id.) Tesfay was naturalized on August 14, 2009, but he did not receive a copy of his Eritrea birth certificate until January 2010. (Id.) Therefore, during the application process, Tesfay relied on the documents he obtained from the Sudanese Interior Minister, as it was the only documentation Tesfay possessed to establish his identity and place of birth. (Id.) Accordingly, the date of birth recorded on Tesfay's Certificate of Naturalization is October 1, 1955, and not January 12, 1948, which is the date reflected in Tesfay's Eritrean birth certificate. (Id.)

Shortly after receiving a copy of his Eritrean birth certificate, Tesfay sought to legally change the birth date on his United States identification documents to January 12, 1948. (Id.) Tesfay did not file an Application for a Replacement Naturalization

Page 1065

(" Form N-565" ) with USCIS or otherwise communicate to USCIS that the date of birth on his Certificate of Naturalization was incorrect. (Pl.'s Reply to Resp. of a Mot. (Doc. #21) at 2.) Rather, Tesfay alleges an agency other than USCIS informed him that he needed to obtain a court order to change the date of birth on his identification documents. [1] (Id.) Accordingly, Tesfay filed a Petition to Amend his Birth Certificate in the Eighth Judicial District Court of Clark County, Nevada. (Compl. (Doc. #1) at 2.) The state court granted Tesfay an Order to Amend, finding that Tesfay's " true birth date is January 12, 1948." (Id. at 2-3; Ex. E.) After receiving the order, Tesfay attempted to correct the birth date on his Certificate of Naturalization, but discovered he needed a federal court order to change the date of birth on his Certificate of Naturalization. (Id. at 3.)

Therefore, Tesfay filed a Petition with this Court requesting an order amending his Certificate of Naturalization. (Id. at 1.) Respondents thereafter filed a Notice advising the Court that 8 C.F.R. § 334.16, the regulation Tesfay argues gives this Court jurisdiction, had been repealed since Tesfay filed his Petition. (Notice of Supplemental Authority & Briefing Schedule (Doc. #10) at 2-6.) Respondents also requested a briefing schedule for dispositive motions. (Id. at 6.) The Magistrate Judge held a hearing at which both parties agreed the record did not need to be supplemented. (Mins. of Proceedings (Doc. ...


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