Boiko v. Holder et al

Filing 5

ORDER. Plaintiff's Amended Complaint, should she elect to file one, is due on or before 10/9/12, by Judge John L. Kane on 9/27/12. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-2541-JLK-AP
LYNN BOIKO,
Plaintiff,
v.
ERIC HOLDER, Attorney General of the United States,
JANET NAPOLITANO, Secretary for the Department of Homeland Security,
ALEJANDRO MAYORKAS, Director, United States Citizenship and Immigration
Services,
ANDREW LAMBRECHT, Acting Field Office Director for United States Citizenship
and Immigration Services,
ROBERT MATHER, District Director for the Denver USCIS District,
United States Department of Homeland Security,
United States Citizenship and Immigration Services,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
KANE, J.
Plaintiff is a naturalized American citizen frustrated in her attempts to secure a
change of her birth date on her Naturalization Certificate. After tortuous and ill-fated
proceedings before the ever-changing bureaucracies that oversee immigration matters,
Plaintiff filed a Complaint for Declaratory and Injunctive Relief in the district court,
seeking an order requiring Defendants “to issue a corrected Naturalization Certificate
showing Ms. Boiko’s proper date of birth.” Complaint (Doc. 2), filed September 25,

2012. Because the Complaint was filed under the Administrative Procedure Act , the case
was placed on the administrative appeal (AP) docket and assigned to me. I have reviewed
the Complaint, and make the following observations:
•

Plaintiff’s Complaint is in the nature of a petition for an order compelling the
United States Citizenship and Immigration Service (USCIS) to issue her an
amended certificate of naturalization reflecting her correct date of birth.

•

Because the legal and jurisdictional standards governing Plaintiff’s request are
confusing, she has over-named the defendants to her suit and has unnecessarily
couched her request in terms of a challenge to final agency action. Plaintiff is not
really seeking a review of any decision by the USCIS to “deny” her application for
an amended certificate, and appears to concede that the USCIS’s authority under
the regulations she cites (8 C.F.R. §§ 334.16(b) and 338.5) is limited to correcting
clerical errors in naturalization certificates, not granting or “denying” the
substantive change she seeks.

•

I find Plaintiff’s request best analyzed not as one for review of agency action under
APA §§ 702, 706, but a request under APA § 703 or § 704 for a form of
mandatory injunction. Specifically, Plaintiff invokes the district court’s implied
authority under 8 C.F.R. § 334.16(b) to make the evidentiary findings necessary to
authorize the USCIS to do that which it cannot do in the absence of such an order,
i.e., issue a substantive correction of Plaintiff’s naturalization certificate. As
examples of similar cases analyzed this way, the parties are directed to Hussain v.
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U.S. Citizenship and Immigration Services, 541 F. Supp.2d 1082 (D. Minn. 2008)
and In re Chehrazi, 2012 WL 3026537 (N.D. Cal. July 24, 2012)(both exercising
jurisdiction under 8 C.F.R. § 334.16(b) and, by implication, the APA, to hold
evidentiary hearing and granting petition for order directing change).
Based on the foregoing, Plaintiff may wish to AMEND her Complaint to simplify
her claim and, perhaps, avoid redundancies in the naming of defendants. Plaintiff’s
Amended Complaint, should she elect to file one, is due on or before October 9, 2012.
Once service is effected, counsel for Plaintiff and counsel for Defendant(s) are
DIRECTED to CONFER in an effort to resolve any issues they can and prepare a
STATUS REPORT setting forth the parties’ thoughts on how best and most expeditiously
to resolve any disputes of fact. As the Court is apt to say in circumstances such as this,
“Don’t make a federal case out of it.” Once the matter is teed up for resolution on the
merits of Plaintiff’s request, it may be drawn to a merits judge under D.C.COLO.LCiv.R
40.1 or, with the permission of the Chief Judge, retained by this Court for expedited
ruling.
Dated this 27th day of September, 2012, at Denver, Colorado.

s/John L. Kane
SENIOR U.S. DISTRICT JUDGE

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