                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              SEP 27 2019
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


AYNEALEM GEBRESLASIE,                             No.   17-17076

              Plaintiff-Appellant,                D.C. No.
                                                  2:17-cv-00272-APG-PAL
 v.

UNITED STATES CITIZENSHIP AND                     MEMORANDUM*
IMMIGRATION SERVICES; et al.,

              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 subject-

matter jurisdiction was lacking. See id.

         AFFIRMED.


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                                                                          FILED
Gebreslasie v. USCIS, No. 17-17076                                        SEP 27 2019
                                                                     MOLLY C. DWYER, CLERK
O’SCANNLAIN, Circuit Judge, concurring:                                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.




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