Martinez v. State of Oregon, No. 3:2009cv00007 - Document 5 (D. Or. 2009)
Court Description: Opinion and Order. The Court DENIES Martinez's Amended Petition for Hardship Status Consideration (#4) and DISMISSES this matter without prejudice to Petitioner's right to submit his request to the Attorney General of the United States. Signed on 4/1/09 by Judge Anna J. Brown. (ljl)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ALEJANDRO MARTINEZ, Petitioner, 09-CV-07-BR OPINION AND ORDER v. STATE OF OREGON and ATTORNEY GENERAL of the UNITED STATES, Respondents. ALEJANDRO MARTINEZ 16099344 SRCI 777 Stanton Blvd. Ontario, OR 97914 Petitioner, Pro Se BROWN, Judge. This matter comes before the Court on Alejandro Martinez's Amended Petition for Hardship Status Consideration (#4) under 8 U.S.C. § 1186a. 1 - For the reasons that follow, the Court DENIES OPINION AND ORDER Martinez's Amended Petition and DISMISSES this matter without prejudice to Petitioner's right to submit his request to the Attorney General of the United States. BACKGROUND On January 5, 2009, Martinez filed a Petition for Hardship Status Consideration under 8 U.S.C. § 1186a. On January 14, 2009, the Court issued an Order to Show Cause why this matter should not be dismissed for lack of subjectmatter jurisdiction. The Court noted petitions and requests for hardship waiver under § 1186a must be submitted to the Attorney General of the United States as required by § 1186a(c)(1) and (c)(4) rather than to the United States District Court. The Court, therefore, indicated Martinez's Petition appeared to be defective and advised it would dismiss the matter unless Martinez cured those defects. On February 12, 2009, Martinez filed an Amended Petition in response to the Court's January 14, 2009, Order. The Court construes Martinez's Amended Petition as a Response to the Court's Order to Show Cause. DISCUSSION Martinez filed his Petition pursuant to 8 U.S.C. § 1186a. Section 1186a governs the process by which an 2 - OPINION AND ORDER alien who marries a U.S. citizen obtains permanent residence status on a conditional basis by virtue of that marriage, and the procedures by which an alien may have the conditional basis of that status removed. Under this section, an alien may become a permanent resident after two years by jointly filing with the alien's citizen spouse a petition for removal of the conditional basis. Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1142 (9th Cir. 2005)(citing § 1186a(c)(1)). "[T]he alien may seek a statutory waiver of the joint filing requirement" under certain circumstances, which is referred to as a "hardship waiver." (citing § 1186a(c)(4)). Id. As noted, however, both petitions and requests for hardship waiver under § 1186a must be submitted to the Attorney General of the United States. (c)(4). § 1186a(c)(1), See also Oropeza-Wong, 406 F.3d at 1141-42 (request for hardship waiver must be made to Attorney General). Martinez appears to attempt to cure the defects in his Petition by substituting the Attorney General as the defendant, which is insufficient to cure the defects because petitions and requests for hardship waiver must be submitted to the Attorney General of the United States. Martinez has done so. The record does not reflect Even if Martinez had submitted such a petition to the Attorney General and was appealing a final order denying a petition or a request for hardship waiver under § 1186a, such an appeal is exclusive to the appropriate court of appeals or, in this case, the Ninth Circuit. 3 - OPINION AND ORDER See 8 U.S.C. § 1252(a)(5). See also Oropeza-Wong, 406 F.3d at 1143 n.6 (final order denying request for hardship waiver reviewed by Ninth Circuit). The Court, therefore, concludes it does not have subjectmatter jurisdiction over this matter. CONCLUSION For these reasons, the Court DENIES Martinez's Amended Petition for Hardship Status Consideration (#4) and DISMISSES this matter without prejudice to Petitioner's right to submit his request to the Attorney General of the United States. IT IS SO ORDERED. DATED this 1st day of April, 2009. /s/ Anna J. Brown ___________________________ ANNA J. BROWN United States District Judge 4 - OPINION AND ORDER
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