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Escobedo-Gonzalez v. Kerry

United States District Court, D. Nevada

October 10, 2017

MARIO ESCOBEDO-GONZALEZ, Plaintiffs,
v.
JOHN KERRY, et al., Defendants.

          AMENDED ORDER [1]

         Presently 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. 33).

         Also 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).

         I. Facts

         On 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.[2] (ECF No. 18-3).

         After 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).

         On 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).

         Plaintiff's 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 No. 13).

         On 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).

         II. Legal Standard

         A 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. ACandS, 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.

         III. Discussion

         A. Plaintiff's motion for reconsideration

         In 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).

         1. 8 U.S.C. § 1252(b)(5)(C)

         First, 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.

         2. Chau v. I.N.S.

         Second, 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 ...


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