Londono-Daza v. Samuel

Filing 5

ORDER adopting re 2 Report and Recommendations. Therefore, as the Court lacks subject matter jurisdiction, this case is Dismissed without prejudice and this civil action is Closed. Signed by Judge Dudley H. Bowen on 12/20/12. (cmr)

O IGINAL
R

i ; i Lj : ;
U.S.
DISTRIC
I Ciji_;iiT
AI,IGUSTA
DiV.
IN THE UNITED STATESDISTRICTCOURT
DISTRICTOF GEORGIA
FORTHE SOUTHERN
DUBLIN DIVISION

CLERK
t) t.

LUIS LONDONO.DAZA,
Petitioner,

cv 312-098
CHARLESSAMUEL,BOPDirector,
Respondent.

ORD ER

with the Magistrate
After a careful,de novoreviewof tlle file, the Courtconcurs
("R&R"), to whichobjections
havebeenfiled (doc.
ReportandRecommendation
Judge's
petitionfor a "Declaration
that
of
Judge
recommended the instant
no. 4). The Magistrate
Pursuant 8 U.S.C. 1503
to
under U.S.C.$ 2201"
28
ofNationality Citizenship
or
Judgrnent
$
for
be dismissed lack of subjectmatterjurisdiction. (Doc. no. 3.) In particular,the
failure to
Magistrate
Judgefound that the Court lackedjurisdictiondue to Petitioner's
Judge
foundin the R&R that
rernedies. at a.) TheMagistrate
exhaust
administrative
Gd.
judicial review of a denialof an
Petitioner
had given no indicationthat he was seeking
("DHS") and
Security
initiated
with theDepartment Homeland
of
application citizenship
for
Appeals
Unit ("AAU"), asrequired 8 U.S.C.$ 1503.
by
appealed
through Administrative
the
(Id. at 2-3.) TheMagistrate
was
ofdenial
Judge foundthatPetitioner notseekingreview
also
Petitioner
explicitlystated
claimin aranovalproceeding,
because
ofa derivative
citizenship
Petitioner
proceeding hispetition.(Id. at 3-4.) In his objections,
in
hewasnot in a removal

requirement, ifhe did not,thathe is not subject
or,
that
alleges hedid fulfiII theexhaustion
objections
lack
the
no.4.) Uponconsideration, CourtfindsthatPetitioner's
toit. (Seedoc.
merit.
a
with the DHS, andhe attaches
Petitioner
first alleges he "filed documents"
that
(See
that
doc.no. 4, Ex. A.) Thenoticestates
Filing" thathereceived.
noticeof"Rejected
was rejectedbecause"[t]he
Petitioner's"Motion to Cancel RernovalProceedings"
not
does
not
of
case."(ld.) Petitioner
Courtdoes havea record [Petitioner's]
Immigration
that
for
of
with the DHS. Thus,
or
state show,however, he applied a certificate citizenship
with the
in
allegations his objections he"hled documents"
that
evenin light ofPetitioner's
has
no
to
from theMagistrate
Judge's
findingthathe
DHS,Petitioner offered reason depart
for
with theDHS, or that
reviewof thedenialofan application citizenship
wasnot seeking
failedto appeal denial
the
ofsuchanapplication
the
through AAU. SeeToddPetitionerhad
x7-8(D.N.J.
(finding
Apr. 19,2007)
v.
U.S.
Murgas Samuels,2007 Dist.LEXIS29642,at
that petitionerwho only allegedthat he had "sent two lettersto the Immigrationand
no
had
his
Services" received response not exhausted administrative
and
Naturalization
because
remedies,
"[p]etitionerdoesnot show that he has applied for a certificateof
by
with the CIS [Citizenship Immigration
and
citizenship filing a FormN-600application
was
determination respect [p]etitioner's
with
to
and
Servicesl" there thus"no administrative
for
claim of citizenship this Courtto review. . . .")
Petitioner
in
to
Next, asnotedearlier,
stated his petitionthat he wasnot subject a
to
removalproceeding.(Scgdoc. no. 1, p. 2.) To that end,the exhibit he attaches his
Court as of
beforethe Immigration
states
that he did not havea casepending
objections

that
however, he
appears allege,
to
12,2012.(Seg
doc.no.4, Ex. A.) Petitioner
September
and
will be subjectto removalat the end of his currentterm of incarceration, he cites8
judicialreviewof orders rernoval.(See at 2-5.) In any
id.
of
whichgovems
U.S.C.$ 1252,
to
that
is
for
of
assuming thesake argument Petitioner or hasbeensubject a rernoval
event,
in
he
proceeding, still hasnot shownthat he madea claim of derivativecitizenship his
2d
v.
whichwasdenied.SeeHenrisuez Ashcroft,269 F. Supp. 106,
removalproceedings
his
Petitionerhas not shown that he exhausted
108 (E.D.N.Y. 2003). Furthermore,
("BIA").
of
Appeals
remedies,
namelyby
appealing theBoard Immigration
to
adminiskative
of
held,however, exhaustion
that
CircuitCourtofAppealshasaffirmatively
The Eleventh
v.
is
requirement. Sundar
remedies
under$ 1252(d)(1) ajurisdictional
administrative
$99
(llth Cir.2003)
("[W]elackjurisdiction consider
claims
that
1323
to
INS,328F.3d1320,
v.
havenot beenraisedbeforethe BIA.") (citing Femandez-Bemal Att'y Gen. 25'7F.3d'
,
n.
1304,131'/ l3 (11thCir.2001)).
Finally, evenif the exhaustion
requirement beenfulfilled or did not apply,'
had
not
should seek
still
reviewbefore appropriate
the
UnitedStates
CourtofAppeals,
Petitioner
see
F.
at
Henriouez,269 Supp.2d 108(citing8 U.S.C. 1252(b)(5)); also
thisCourt. See
$
v.
No.
2008
at*2
Douelas Mukase]', 2:08-CV-272-FtM-99DNF, WL 388973'7, (M.D.Fla.
'Petitioner
in
citescases arenotbindingauthority thisCircuitfor theproposition
that
requirement $ 1252doesnot applyto a person
in
subject a removal
to
that the exhaustion
who
claimof UnitedStates
proceeding makes "non-frivolous"
a
citizenship. Minasyan
$e9
(9thCil2005);see
F.3d
\074-75
also
Moussa INS,302F.3d823,
v.
v. Gonzales,401 1069,
whether
that
hadjurisdiction determine
to
825(8thCir. 2002)(concluding CourtofAppeals
petitioner analienin orderto determine
was
whether 1252(d)(1)
required to exhaust).
him
$
citedby Petitioner not involve aliensin federalcustody. Even if
do
Notably,the cases
however, explained
infra,his claim is still not
werenot required exhaust,
to
as
Petitioner
properly
beforethis Court.

that
detemination
is
asking thisCourtmakea factual
Aug.20,2008)("Petitioner essentially
proper
Petitioner's
course
ofactionis to raisehis derivative
citizenship.
asto his derivative
proceedings, if appropriate, anyappeals
and,
file
claim in thecunent[removal]
citizenship
of the immigrationjudge's decision,prior to filing a review of such decisionin the
Courtof Appeals.").
appropriate
UnitedStates
objections OVERRULED. Accordingly,the Reportand
are
Thus, Petitioner's
Judgeis ADOPTED as the opinion of the Courl.
of
Recommendation the Magistrate
Therefore,as the Court lacks subjectmatterjurisdiction, this caseis DISMISSED
WITHOUT PREJUDICE,andthis civil actionis CLOSED.

DISTRICTJUDG