United States District Court, D. Nevada
before the court is plaintiff's motion to reconsider and
request for oral argument. (ECF No. 28). The government
responded (ECF No. 30) to which plaintiff replied (ECF No.
before the court is the government's motion to reconsider
(ECF No. 32). The plaintiff responded (ECF No. 34) to which
the government replied (ECF No. 39).
January 23, 1987, the United States Department of Justice,
through the Immigration and Nationalization Service
(“INS”), began removal proceedings against Mario
Escobedo-Gonzalez (“plaintiff”). (ECF No. 13).
The INS argued that plaintiff was born in Mexico and not in
Cameron County, Texas, as reported in his birth certificate.
(ECF No. 13). The INS claims it received evidence that the
midwife who signed plaintiff's birth certificate was not
actually present during his birth. (ECF No. 18-3). However,
the immigration judge ruled in plaintiff's favor, finding
that INS failed to satisfy its burden to prove, by clear and
convincing evidence, that he was a deportable foreign
national. (ECF No. 18-3).
this ruling, plaintiff applied for a passport with the
Department of State (“DOS”). (ECF No. 13). DOS
approved plaintiff's application and issued him a
passport on July 21, 1995. (ECF No. 18-4). Plaintiff applied
to renew his passport on March 28, 2005, and DOS issued his
renewal on April 13, 2005. (ECF No. 18-4).
April 7, 2015, plaintiff applied for his second passport
renewal. (ECF No. 18-4). On May 7, 2015, DOS requested
plaintiff's certified birth certificate to prove his
citizenship because, as DOS claims, evidence had surfaced
that the midwife who signed his birth certificate was not
present at his birth. (ECF No. 18). Plaintiff, through
counsel, responded with a letter and attached the immigration
judge's opinion which, plaintiff submitted, had resolved
the issues with which DOS was concerned. (ECF No. 18-5). DOS
responded with an additional letter again requesting
plaintiff's birth certificate, or other documentation to
prove that plaintiff was born in the United States. (ECF No.
18-5). Plaintiff did not respond. (ECF No. 18-5). Two months
later, DOS denied plaintiff's renewal request because
plaintiff did not provide his birth certificate, and because
DOS did not believe that plaintiff had proven his citizenship
by a preponderance of the evidence. (ECF No. 18-5).
amended complaint alleges that DOS wrongfully denied his
passport renewal and asks this court to declare him a United
States citizen pursuant to this court's authority to do
so under 8 U.S.C. § 1503 and 28 U.S.C § 2201. (ECF
April 20, 2017, the court denied plaintiff's motion for
summary judgment. (ECF No. 26). Plaintiff subsequently filed
a motion for reconsideration and request for oral argument.
(ECF No. 28). Government filed a cross-motion for
reconsideration. (ECF No. 32).
motion for reconsideration “should not be granted,
absent highly unusual circumstances.” Kona Enters.,
Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
2000). “Reconsideration is appropriate if the district
court (1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law.” School Dist. No. 1J v. AC and S,
Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); LR 59-1. A
motion for reconsideration “may not be used to raise
arguments . . .for the first time when they could reasonably
have been raised earlier in litigation.” Kona
Enters., Inc., 229 F.3d at 890.
Plaintiff's motion for reconsideration
plaintiff's motion for reconsideration, he raises the
following five arguments: (1) “8 U.S.C. §
1252(b)(5)(C) does not apply to the plaintiff”; (2)
“the Chau v. I.N.S. case does not apply to the
facts of this case”; (3) 8 U.S.C. § 1452(a) does
not apply to plaintiff; (4) “issue preclusion is fully
applicable”; and (5) the court should reverse its order
(ECF No. 26) based on newly discovered evidence. (ECF Nos.
28, 33 at 3-7).
8 U.S.C. § 1252(b)(5)(C)
plaintiff asserts that “this court's reliance on 8
U.S.C. 1252 is completely misplaced because § 1252 deals
with orders of removal and plaintiff never received an order
of removal.” (ECF No. 28 at 3). However, the court
merely discussed § 1252 as one way, not the only way,
that a “party can raise a defense of
citizenship.” (ECF No. 26 at 7). This is was not
“clear error” that would justify a motion for
reconsideration. See Kona Enters., Inc., 229 F.3d at
890. Moreover, even if plaintiff were correct, this point
alone would not earn him summary judgment.
Chau v. I.N.S.
plaintiff asserts that the court erroneously quoted or cited
Chau v. I.N.S., 247 F.3d 1026 (9th Cir. 2001) for
part of its holding. (ECF No. 28 at 4). But the court did not
quote Chau, it quoted Rios-Valenzuela v.
Dep't of Homeland Sec., 506 F.3d 393, 396-97 (5th
Cir. 2007), and simply noted that Rios-Valenzuela
cites Chau after the sentence that this court
quoted. (ECF No. 26 at 7) (“Rios-Valenzuela .
. . (citing Chau, 247, F.3d at 1027-28)”).
Rios-Valenzuela simply cites Chau in a
footnote at the end of the quote that this court included in