Nordheim v. EOIR

Background

Odin Nordheim, representing himself and proceeding without paying filing fees, sought an order requiring the Executive Office for Immigration Review (EOIR) and identified federal officials to expedite his immigration-court proceedings and adjudicate his asylum application. His claims invoked the Administrative Procedure Act, the Mandamus Act, and the Due Process Clause of the Fifth Amendment. The operative third amended complaint challenged delays in scheduling his removal proceedings, including the alleged deferral of his first master calendar hearing for nearly three years.

The court also considered Nordheim’s second amended complaint, third amended complaint, two motions to expedite, a motion for miscellaneous relief, a motion for reconsideration, and a motion to appear in person at the initial case management conference. The court first determined that the third amended complaint was properly filed under Federal Rule of Civil Procedure 15(a)(1)(B), even though the court had not separately granted leave for a third amendment, and accepted it as the operative complaint.

Jurisdiction ruling

Because Nordheim was proceeding without paying filing fees, the court screened the third amended complaint under 28 U.S.C. § 1915. The court applied 8 U.S.C. § 1252(b)(9), which channels judicial review of questions arising from removal proceedings into review of a final removal order rather than permitting those claims to proceed in a district court.

The court concluded that Nordheim’s claims fell within the category involving the process by which his removability would be decided. His request to speed up the asylum decision was tied to his request to expedite the removal proceedings, and his allegations about scheduling challenged that process. The court also concluded that any claims concerning access to documents or sealed filings in the immigration court were tied to the removal proceedings and therefore outside the district court’s jurisdiction.

The court distinguished cases involving asylum applications still under the jurisdiction of U.S. Citizenship and Immigration Services because Nordheim’s application had been referred to EOIR and he was in removal proceedings. The court stated that claims related to those proceedings could be raised through the review process after the proceedings were complete, including review by the Board of Immigration Appeals and then a petition for review in the Ninth Circuit.

Disposition

The court held that no amendment could cure the jurisdictional defect while Nordheim’s removal proceedings remained pending. It therefore screened and dismissed the third amended complaint with prejudice for lack of subject matter jurisdiction. It dismissed the second amended complaint as moot, denied all pending motions, directed the clerk to terminate the action, and ordered the case closed.