Opinion
No. 13cv0384 JAP/LAM
05-10-2013
GONZALO VALDOVINOS-BLANCO, Petitioner, v. UNITED STATES ATTORNEY GENERAL ERIC HOLDER; IMMIGRATION AND CUSTOMS ENFORCEMENT AGENCY ICE, EL PASO;, Respondents.
MEMORANDUM OPINION AND ORDER DISMISSING CASE
THIS MATTER comes before the Court on pro se Petitioner Gonzalo Valdovinos-Blanco's EMERGENCY MOTION FOR WITHOLDING OF REMOVAL/DEPORTATION, filed April 22, 2013 (Doc. 1). Mr. Valdovinos-Blanco did not pay the requisite filing fee, nor has he submitted an application to proceed without prepayment of fees and costs. Because the Court does not have subject-matter jurisdiction to grant or deny his request, the Court will dismiss this case. See FED. R. CIV. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").
"Federal courts are courts of limited jurisdiction, and the presumption is that they lack jurisdiction unless and until a plaintiff pleads sufficient facts to establish it." Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994). "[T]he party pleading jurisdiction must allege in his pleading the facts essential to show jurisdiction." Id. (internal quotation marks omitted).
Valdovinos-Blanco is an illegal alien who has undergone deportation proceedings and who is being held pending deportation in Chaparral, New Mexico. See Doc. 1 at 1-2. The immigration judge has entered an order of deportation and Valdovinos-Blanco has appealed from that Order to the Board of Immigration Appeals ("BIA"), but it is still pending. See id. at 2. Valdovinos-Blanco has filed a civil-rights suit in the Eastern District of California, which also is still pending. See id. at 3, 7 (Ex. 1). Without citing any legal authority, Valdovinos-Blanco requests that the Court order the ICE to "withhold his removal from the United States" until his California civil-rights action "is resolved." Id. at 4. He also states that he cannot "direct his wheelchair on his own; does not have any person to wait for him at any of the ports of entry, . . . making him an easy prey for all existing escalating violence as currently existing in Mexico." Id.
Under 8 U.S.C. § 1231(a)(1)(A), "when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days." An alien may apply for withholding of removal, however, "if he or she can establish a clear probability of persecution in that country on the basis of race, religion, nationality, membership in a particular social group, or political opinion." Elzour v. Ashcroft, 378 F.3d 1143, 1149 (10th Cir. 2004); 8 U.S.C. § 1231(b)(3)(A). "[A]pplications for withholding of removal [] are adjudicated by IJs in removal proceedings. 8 C.F.R. §§ 1208.4(a), 1208.16(a)." Giraldo v. Holder, 654 F.3d 609, 610 (6th Cir. 2011). Under 8 U.S.C. § 1231(f), "[i]f the Attorney General believes that an alien being removed requires personal care because of the alien's mental or physical condition, the Attorney General may employ a suitable person for that purpose who shall accompany and care for the alien until the alien arrives at the final destination." The Court is unaware of any statutory or common-law authority permitting it to intervene in an alien's deportation proceedings to order withholding of removal for any purpose. Valdovinos-Blanco must seek the relief he desires in his removal proceedings.
Valdovinos-Blanco has failed to allege sufficient facts to invoke this Court's subject-matter jurisdiction. The Court must, therefore, dismiss the action under Rule 12(h)(3).
IT IS ORDERED that Valdovinos-Blanco's motion [Doc. 1] is DENIED and his cause of action is DISMISSED without prejudice for lack of subject-matter jurisdiction.
________________
SENIOR UNITED STATES DISTRICT JUDGE