Drevalera v. The U.S. Immigration & Naturalization Service

N.D. California

Drevalera v. The U.S. Immigration & Naturalization Service

DecidedJanuary 25, 2021

Docket3:20-cv-04493

StatusUnknown

This text of Drevalera v. The U.S. Immigration & Naturalization Service (Drevalera v. The U.S. Immigration & Naturalization Service) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Drevalera v. The U.S. Immigration & Naturalization Service, (N.D. Cal. 2021).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TATYANA EVGENIEVNA Case No. 20-cv-04493-JD DREVALEVA, 8 Plaintiff, ORDER REVOKING PLAINTIFF’S 9 IFP STATUS v. 10 THE U.S. IMMIGRATION & 11 NATURALIZATION SERVICE, Defendant. 12

13 In Tatyana Drevaleva’s pending appeal, the Ninth Circuit made a limited referral back to 14 this Court to determine whether a prior grant of in forma pauperis status should continue, or 15 whether the appeal is frivolous or taken in bad faith. Dkt. No. 13. 16 An indigent party who cannot afford the expense of pursuing an appeal may file a motion 17 for leave to proceed in forma pauperis. Fed. R. App. P. 24(a); 28 U.S.C. § 1915(a)(1). Pursuant 18 to Federal Rule of Appellate Procedure 24(a), “a party to a district-court action who desires to 19 appeal in forma pauperis must file a motion in the district court.” The party must attach an 20 affidavit that (1) shows in detail “the party’s inability to pay or to give security for fees and costs,” 21 (2) “claims an entitlement to redress,” and (3) “states the issues that the party intends to present on 22 appeal.” Fed. R. App. P. 24(a)(1). But even if a party provides proof of indigence, “[a]n appeal 23 may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good 24 faith.” 28 U.S.C. § 1915(a)(3). An appeal is in “good faith” where it seeks review of any issue 25 that is “non-frivolous.” Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). An 26 issue is “frivolous” if it has “no arguable basis in fact or law.” See O’Loughlin v. Doe, 920 F.2d 27 614, 617 (9th Cir. 1990). 1 The appeal is frivolous. Drevaleva’s complaint seeks to compel the United States 2 || Citizenship and Immigration Services to posthumously grant permanent residency to Valentina 3 Volkova, an individual who moved to the United States from Ukraine and died before her Green 4 || Card interview. Dkt. No. 1. But Drevaleva, who was a friend of Volkova’s, cannot plausibly 5 allege that she meets the requirements for the extraordinary remedy of mandamus relief. See Dkt. 6 No. 8 at 2 (citing Lowry v. Barnhart, 329 F.3d 1019, 1021 (9th Cir. 2003); Patel v. Reno, 134 F.3d 7 || 929, 931 (9th Cir. 1998)). Drevaleva’s Article III standing for this action is also highly 8 questionable. 9 Plaintiff's action has no arguable basis in fact or law, and her in forma pauperis status is 10 || consequently revoked. The Clerk is requested to forward this order to the Ninth Circuit in Case 11 No. 20-17522. 12 IT IS SO ORDERED. 13 Dated: January 25, 2021 14 15 JAMES/PONATO = 16 United fates District Judge

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TATYANA EVGENIEVNA Case No. 20-cv-04493-JD DREVALEVA, 8 Plaintiff, ORDER REVOKING PLAINTIFF’S 9 IFP STATUS v. 10 THE U.S. IMMIGRATION & 11 NATURALIZATION SERVICE, Defendant. 12

13 In Tatyana Drevaleva’s pending appeal, the Ninth Circuit made a limited referral back to 14 this Court to determine whether a prior grant of in forma pauperis status should continue, or 15 whether the appeal is frivolous or taken in bad faith. Dkt. No. 13. 16 An indigent party who cannot afford the expense of pursuing an appeal may file a motion 17 for leave to proceed in forma pauperis. Fed. R. App. P. 24(a); 28 U.S.C. § 1915(a)(1). Pursuant 18 to Federal Rule of Appellate Procedure 24(a), “a party to a district-court action who desires to 19 appeal in forma pauperis must file a motion in the district court.” The party must attach an 20 affidavit that (1) shows in detail “the party’s inability to pay or to give security for fees and costs,” 21 (2) “claims an entitlement to redress,” and (3) “states the issues that the party intends to present on 22 appeal.” Fed. R. App. P. 24(a)(1). But even if a party provides proof of indigence, “[a]n appeal 23 may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good 24 faith.” 28 U.S.C. § 1915(a)(3). An appeal is in “good faith” where it seeks review of any issue 25 that is “non-frivolous.” Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). An 26 issue is “frivolous” if it has “no arguable basis in fact or law.” See O’Loughlin v. Doe, 920 F.2d 27 614, 617 (9th Cir. 1990). 1 The appeal is frivolous. Drevaleva’s complaint seeks to compel the United States 2 || Citizenship and Immigration Services to posthumously grant permanent residency to Valentina 3 Volkova, an individual who moved to the United States from Ukraine and died before her Green 4 || Card interview. Dkt. No. 1. But Drevaleva, who was a friend of Volkova’s, cannot plausibly 5 allege that she meets the requirements for the extraordinary remedy of mandamus relief. See Dkt. 6 No. 8 at 2 (citing Lowry v. Barnhart, 329 F.3d 1019, 1021 (9th Cir. 2003); Patel v. Reno, 134 F.3d 7 || 929, 931 (9th Cir. 1998)). Drevaleva’s Article III standing for this action is also highly 8 questionable. 9 Plaintiff's action has no arguable basis in fact or law, and her in forma pauperis status is 10 || consequently revoked. The Clerk is requested to forward this order to the Ninth Circuit in Case 11 No. 20-17522. 12 IT IS SO ORDERED. 13 Dated: January 25, 2021 14 15 JAMES/PONATO = 16 United fates District Judge

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