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Mashiri v. Department of Education

United States Court of Appeals, Ninth Circuit

March 14, 2013

Asil Mashiri, Plaintiff-Appellant,
v.
Department of Education; Department of Homeland Security; United States Citizenship and Immigration Services; Arne Duncan; William J. Taggart; Janet A. Napolitano; Michael Aytes; F. Gerard Heinauer, Defendants-Appellees.

Argued and Submitted November 8, 2012

Amended May 30, 2013

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding D.C. No. 3:09-cv-01877-WQH-AJB

Asil Mashiri, pro se, San Diego, California, for Plaintiff-Appellant.

Raven M. Norris, Assistant U.S. Attorney, San Diego, California, for Defendants-Appellees.

Before: Alfred T. Goodwin and Diarmuid F. O'Scannlain, Circuit Judges, and Jack Zouhary, District Judge. [*]

SUMMARY [**]

Immigration

The panel ordered amended its original March 14, 2013 opinion, published at 709 F.3d 1299, in immigrant Asil Mashiri's appeal of the district court's denial of his mandamus petition seeking to compel the Department of Education to issue him a Stafford Loan.

In the original and amended opinions, the panel affirmed the denial of mandamus, holding that although Mashiri's petition fell within the scope of the sue-and-be-sued clause in 20 U.S.C. § 1082(a)(2), the anti-injunction clause in that subsection barred his suit for declaratory relief. In the amended opinion, the panel deleted a paragraph stating that Mashiri's asylum application would not show that he was in the United States for a non-temporary purpose as required by 20 U.S.C. § 1091(a)(5). The panel replaced the deleted text with a statement that the panel would not address whether an alien who properly demonstrates that he is an asylum applicant is eligible for a Federal Family Education Loan Program loan, because Mashiri did not properly raise his argument that his asylum application demonstrated eligibility for a loan.

The opinion filed March 14, 2013, and appearing at 709 F.3d 1299, is amended as follows:

On Opinion page 1304, delete the following text:

[But even so, Mashiri's asylum application would not show that he was in the U.S. for a non-temporary purpose, as § 1091(a)(5) requires. Ninth Circuit case law states:
The status of asylum applicants and its duration can hardly be described as fixed, or permanent . . . . [T]hey are best described as inchoate . . . .
. . . . A residence is temporary when the alien's continued presence is solely dependent upon the possibility of having his application for asylum acted upon favorably. Aliens who have official authorization to remain indefinitely until their status changes reside permanently; asylum applicants who merely participate in a process that gives rise to the possibility of such an authorization reside temporarily . . . .

Sudomir v. McMahon, 767 F.2d 1456, 1462 (9th Cir. 1985) (emphasis added) (footnote omitted).]

On Opinion page 1304, replace the deleted text with the following text:

[Because Mashiri did not properly raise his argument that his asylum application demonstrates his eligibility for FFELP loans, we do not address whether an alien who properly demonstrates that he ...


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