AYNEALEM GEBRESLASIE V. USCIS, No. 17-17076 (9th Cir. 2019)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS SEP 27 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT AYNEALEM GEBRESLASIE, Plaintiff-Appellant, No. 17-17076 D.C. No. 2:17-cv-00272-APG-PAL v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; et al., MEMORANDUM* Defendants-Appellees. Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding Argued and Submitted February 12, 2019 San Francisco, California Before: SCHROEDER, O’SCANNLAIN, and RAWLINSON, Circuit Judges. Aynealem Gebreslasie challenges the district court’s dismissal of his case for lack of subject-matter jurisdiction. Gebreslasie specifically argues that the district court erred in concluding that 8 U.S.C. § 1252(g) withdrew subject-matter * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. jurisdiction over his claim. We disagree and affirm the judgment of the district court. The plaintiff’s cause of action was predicated on the agency’s failure to commence removal proceedings. In Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 487 (1999), the United States Supreme Court explicitly held that the Attorney General’s “decision to commence proceedings . . . falls squarely within § 1252(g).” (internal quotation marks omitted). The Court also noted that § 1252(g) applies to “claims arising from all past, pending, or future . . . removal proceedings.” Id. (emphasis added). Because the plaintiff seeks to invoke a future removal proceeding, the Supreme Court’s language clearly encompasses his claim. See id.; see also Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 599 (9th Cir. 2002) (“We construe § 1252(g) . . . to include not only a decision . . . whether to commence, but also when to commence a proceeding.”) (citation omitted) (emphases in the original). We concluded in Jimenez-Angeles that “§ 1252(g) removes our jurisdiction to decide Jimenez-Angeles’ individual claim that the INS was obligated immediately to initiate deportation proceedings against her.” Id. The same is true in this case and the district court correctly concluded that subjectmatter jurisdiction was lacking. See id. AFFIRMED. 2 FILED Gebreslasie v. USCIS, No. 17-17076 SEP 27 2019 O’SCANNLAIN, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I concur in the result, but with respect I am unable to concur in the holding that 8 U.S.C. § 1252(g) withdrew subject-matter jurisdiction over Gebreslasie’s claim. Instead, I would affirm the district court’s dismissal of Gebreslasie’s case because the complaint fails to state a claim. I Gebreslasie argues that the district court erred in concluding that 8 U.S.C. § 1252(g) withdrew subject-matter jurisdiction over his claim. I agree. Section 1252(g) “applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999). Thus, the statute “does not bar review of the actions that occurred prior to any decision to ‘commence proceedings,’ if any, against [an alien].” Kwai Fun Wong v. United States, 373 F.3d 952, 965 (9th Cir. 2004). Here, Gebreslasie claims that the government’s failure to commence proceedings is unlawful, and such inaction is—by definition—“prior to any decision to ‘commence proceedings.’” Id. The district court therefore had jurisdiction to consider Gebreslasie’s claim, and its conclusion to the contrary was error. II Nevertheless, I would affirm the district court’s dismissal of Gebreslasie’s case if the complaint fails to state a claim. Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 254 (2010); Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014). Relevant here, Gebreslasie’s complaint alleges that the failure to initiate removal proceedings (1) violated the Due Process Clause; (2) violated the Administrative Procedure Act (“APA”), see 5 U.S.C. §§ 701 et seq.; and (3) warranted the issuance of a writ of mandamus, see 28 U.S.C. § 1361. Each claim fails. First, the Due Process Clause does not establish a right to compel the government to initiate removal proceedings because, at the very least, such decision is “committed to the [agency’s] discretion.” Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1091 (9th Cir. 2010), overruled in part on other grounds by Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc). Second, Gebreslasie’s APA claim fails because he did not allege a reviewable “final agency action.” 5 U.S.C. § 704. The failure to initiate proceedings is not itself an “action . . . by which rights or obligations have been determined, or [one] from which legal consequences flow.” Bennett v. Spear, 520 U.S. 154, 178 (1997) (internal quotation marks omitted). Third, the request for a writ of mandamus fails because Gebreslasie cannot show that “the defendant official’s duty [to initiate removal proceedings] is ministerial, and so plainly prescribed as to be free from 2 doubt.” Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994) (internal quotation marks omitted). For the foregoing reasons, I would affirm the district court’s dismissal of Gebreslasie’s case for failure to state a claim. 3

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