Clervrain v. Sessions et al

Filing 16

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted to and including June 16, 2018, in which to show good cause, in writing, why his complaint should not be dismissed. Plaintiff's Motion for Injunctive Relief for an Extr aordinary Remedy 11 , Motion for Leave to Proceed In Forma Pauperis 13 , Motion for Marshal to Effectuate Service 14 , and Motion for Reconsideration 15 are denied. Signed by U.S. Senior District Judge Sam A. Crow on 05/16/18. Mailed to pro se party Manetirony Clervrain by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MANETIRONY CLERVRAIN,
Plaintiff,
v.

CASE NO. 18-3039-SAC

JEFF SESSIONS,
Defendants.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Manetirony Clervrain, a federal prisoner currently being held at Moshannon
Valley Correctional Institution in Philipsburg, Pennsylvania, brings this pro se action pursuant to
8 U.S.C. § 1421(c).1 For the reasons discussed below, Plaintiff is ordered to show cause why his
complaint should not be dismissed.
I. Nature of the Matter before the Court
After filing a 60-page document titled “Memorandum of Law in Support of the Plaintiff’s
Federal Declaratory Judgment Act, Pursuant to 28 U.S.C. § 2201,” the Court issued Plaintiff a
Notice of Deficiency (Doc. 4) ordering him to file a complaint on court forms as required by local
rule. Plaintiff complied and refiled his complaint (Doc. 10). Plaintiff’s initial filing raised

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Plaintiff also invokes jurisdiction pursuant to 28 U.S.C. § 1331(3); 8 U.S.C. §1503; 8 U.S.C. § 1422; 28 U.S.C. §
1651; 5 U.S.C. § 701, 553; 28 U.S.C. § 1367; 8 U.S.C. § 1252; 8 U.S.C. § 1447; and 28 U.S.C. § 1332. However,
his claim is properly brought pursuant to 8 U.S.C. § 1421.

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numerous issues and named numerous defendants. However, he narrowed the issues significantly
in his re-filed complaint. The re-filed complaint, upon which the Court proceeds, challenges the
determination of the U.S. Citizenship and Immigration Services (USCIS) to deny Mr. Clervrain’s
naturalization application and names one defendant, U.S. Attorney General Jeff Sessions.
According to the complaint and attachments (Doc. 10), Plaintiff, a Haitian national, filed
an application for naturalization on August 3, 2007, while living in Florida, and appeared for an
examination of his application on December 9, 2008. After investigation and examination of his
application, USCIS issued a decision on September 14, 2009, denying naturalization. The stated
reason was “poor moral character.” USCIS based its decision on two convictions in Miami for
Driving While License Suspended – Habitual Offender (3rd degree felony). The decision received
by Plaintiff stated, “If you desire to request a review hearing on this decision pursuant to Section
336(a) of the Act, you must file a request for a hearing within 30 Days of the date of this notice.
If no request for hearing is filed within the time allowed, this decision is final.” Doc. 10-1 at 1
(emphasis in original).
Plaintiff filed a request for hearing on January 6, 2017, more than seven (7) years after the
denial.2 At the time, it appears Mr. Clervrain resided in a federal correctional institution in
Mississippi. USCIS rejected the request on August 23, 2017, as improperly filed and found it did
not meet the requirements for a motion to reopen or reconsider. Doc. 10-1 at 5. Plaintiff proceeded
to file this action while residing in the Reeves County Detention Center in Pecos, Texas.

The Court notes, based on attachments to Plaintiff’s motion for injunctive relief, that Plaintiff apparently
resubmitted his application for naturalization two more times, in 2010 and 2013. It appears both applications were
administratively closed when Plaintiff failed to appear for the required examination. However, there is no indication
that he requested a hearing at any point prior to January, 2017.
2

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In his complaint, Plaintiff alleges the actions of USCIS were discriminatory and denied
him due process. He requests trebled compensatory, exemplary, punitive, and nominal damages;
attorney fees and costs; and retroactive declaratory and injunctive relief.
Plaintiff has also filed a motion for injunctive relief (Doc. 11), a third motion for leave to
proceed in forma pauperis (Doc. 13), a motion for marshal to effectuate service (Doc. 14), and a
motion for reconsideration of the Court’s order granting him leave to proceed in forma pauperis
(Doc. 15).
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are
legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that
seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)–
(2).
A court liberally construes a pro se complaint and applies “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition,
the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d
910, 913 (10th Cir. 2006). On the other hand, “when the allegations in a complaint, however true,
could not raise a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 558 (2007).
A pro se litigant’s “conclusory allegations without supporting factual averments are
insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to

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relief’ requires “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint’s “factual
allegations must be enough to raise a right to relief above the speculative level” and “to state a
claim to relief that is plausible on its face.” Id. at 555, 570.
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and
Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the
complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at
1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the
line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in
this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in
a complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to
plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.
Ct. at 1974).
III. Discussion
Plaintiff’s complaint is subject to dismissal because it is untimely and because he failed to
exhaust his administrative remedies, thus depriving this Court of jurisdiction.3
A. Plaintiff’s claim for review of USCIS’s denial is untimely.
28 U.S.C. § 2401(a) provides:

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Plaintiff also filed this action in the wrong venue. It should have been filed in the Western District of Texas, Pecos
Division, because he was housed at a correctional facility in Pecos, Texas, at the time of filing. As far as the Court
can discern, Plaintiff has never resided in Kansas. However, because the action is facially subject to dismissal, the
Court declines to transfer it.

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Except as provided by chapter 71 of title 41, every civil action commenced against
the United States shall be barred unless the complaint is filed within six years after
the right of action first accrues. The action of any person under legal disability or
beyond the seas at the time the claim accrues may be commenced within three years
after the disability ceases.
28 U.S.C. § 2401(a) (emphasis added).
A right of action “first accrues when a plaintiff knows or has reason to know of the injury
that forms the basis of the action.” Leon v. Murphy, 988 F.2d 303, 309 (2d Cir. 1993). In this
case, the right of action accrued when UCSIS’s denial of Plaintiff’s application for naturalization
became final. “[T]wo conditions . . . generally must be satisfied for agency action to be ‘final’
under the APA. ‘First, the action must mark the consummation of the agency’s decisionmaking
process – it must not be of a merely tentative or interlocutory nature. And second, the action must
be one by which rights or obligations have been determined, or from which legal consequences
will flow.’” U.S. Army Corps of Engineers v. Hawkes Co., ___ U.S. ___, 136 S. Ct. 1807, 1813
(2016) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997). Inasmuch as Plaintiff’s claim is
that his naturalization application was improperly denied, his claim accrued at the latest when the
September 14, 2009, decision became final 30 days after he received it; i.e., on or about October
14, 2009.
8 U.S.C. § 1421(c) required Plaintiff to exhaust his administrative remedies prior to seeking
judicial review of the denial of his application for naturalization, and he was required to do so in a
timely manner. See Escaler v. U.S. Citizenship & Immigration Serv., 582 F.3d 288, 292 (2d Cir.
2009); 8 C.F.R. § 336.2(a). Cf. Woodford v. No, 548 U.S. 81, 83-84 (2006) (“filing an untimely
or otherwise procedurally defective administrative grievance or appeal” does not satisfy the
PLRA’s exhaustion requirement); Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir.
2001) (failure to timely exhaust administrative remedies results in a procedural default which

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precludes judicial review of inmate’s claim). If Mr. Clervrain had filed a timely request for an
administrative hearing, then the statute of limitations would not have begun to run until the
resulting decision was issued. However, he did not file a timely hearing request, and “it would be
antithetical to the purpose of statutes of limitations to allow [his] untimely filing to extend [his]
time to seek judicial review of the denial of [his] naturalization application.” Phillips v. Lynch,
No. 15-CV-01514-DRH, ECF No. 14, at 14, Memorandum & Order (E.D.N.Y. June 9, 2016).
Because Plaintiff’s claim accrued on or about October 14, 2009, the filing of this complaint
on February 2, 2018, was untimely. Therefore, the complaint is subject to dismissal.
Under very limited circumstances, a limitation period may be equitably tolled. See Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005). Equitable tolling is available only “when an inmate
diligently pursues his claims and demonstrates that the failure to timely file was caused by
extraordinary circumstances beyond his control.” Id. Plaintiff has made no argument for the
application of equitable tolling, and the Court finds no cause to do so.
B. Plaintiff’s failure to exhaust his administrative remedies deprives the Court of
jurisdiction to review the denial of his naturalization application.
Plaintiff’s claim in this action arises under a specific jurisdictional statute enacted as part
of the Immigration and Naturalization Act, which provides as follows:
A person whose application for naturalization under this subchapter is denied, after
a hearing before an immigration officer, under section 1447(a) of this Title, may
seek review of such denial before the United States district court for the district in
which such person resides in accordance with chapter 7 of Title 5.
8 U.S.C. § 1421(c).
A federal court can only exercise jurisdiction within the bounds of its statutory authority.
Here, the statute provides the Court only has jurisdiction “after a hearing before an immigration
officer under section 1447(a).” 8 U.S.C. § 1421(c). The statute goes on to state, “A Service
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determination denying an application for naturalization shall not be subject to judicial review until
the applicant has exhausted those administrative remedies available under section 336 of the Act.”
8 U.S.C. § 1421(d). The available remedy is a hearing before an independent immigration officer.
8 U.S.C. § 1447(a).
“Section 1421(c), authorizing de novo judicial review of the denial of an application to be
naturalized, requires the exhaustion of administrative remedies prior to seeking that relief.”
Escaler, 582 F.3d at 291. This requirement is “mandatory, and courts are not free to dispense with
[it].” Id.
According to the documents filed by Plaintiff as attachments to his complaint, this
jurisdictional prerequisite is not met. The initial denial of his application occurred on September
14, 2009. As provided in the denial and by regulation, he had thirty (30) days to appeal the denial
by requesting a hearing before an immigration officer. Plaintiff did not request a hearing until
January 6, 2017. His request was denied as untimely.
Because Plaintiff never had an administrative hearing on the denial of his naturalization
application due to his failure to request such hearing in a timely manner, he failed to exhaust his
administrative remedies and this Court is barred from reviewing that denial. See Abiodun v.
Gonzales, 217 F. A’ppx 738, 741 n.4 (10th Cir. 2007) (district court cannot take jurisdiction until
the applicant “exhaust[s] his administrative remedy of appealing the denial to an immigration
officer”); Idahosa v. Bureau of Immigration & Customs Enforcement, 111 F. App’x 293, 294 (5th
Cir. 2004) (where applicant failed to comply with applicable regulations for obtaining
administrative hearing and thus failed to exhaust administrative remedies, “the district court lacked
jurisdiction to review the denial of his application for naturalization”); 8 C.F.R. § 336.9(d)
(requiring administrative exhaustion).

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Moreover, even if Plaintiff could challenge the denial of his naturalization application
almost nine (9) years after the fact, USCIS and this Court can consider Plaintiff’s actions and
convictions that have occurred in the meantime. See 8 U.S.C. § 1448(a) (“An applicant for
naturalization bears the burden of demonstrating that, during the statutorily prescribed period, he
or she has been and continues to be a person of good moral character. This includes the period
between the examination and the administration of the oath of allegiance.”) (emphasis added).
Whether or not multiple convictions for driving without a license amount to “poor moral
character,” his federal conviction in 2011 for attempt and conspiracy to commit mail fraud with a
sentence of 108 months surely does. See 8 C.F.R. § 316.10(b)(2)(v).
III.

Motions
Also before the Court are Plaintiff’s Motion for Injunctive Relief for an Extraordinary

Remedy (Doc. 11), Motion for Leave to Proceed In Forma Pauperis (Doc. 13), Motion for Marshal
to Effectuate Service (Doc. 14), and Motion for Reconsideration (Doc. 15).
A. Motion for Injunctive Relief
Plaintiff filed a 60-page motion with 100 pages of attachments. In that motion, Plaintiff
makes two primary requests. First, he asks the Court to compel USCIS to treat his hearing request
as a motion to reopen and to render a decision on that motion. However, USCIS did in fact treat
the request as a motion to reopen and denied it. See Notice of Decision, Doc. 10-1, at 5 (“USCIS
has reviewed your improperly filed Form N-336 and has determined that it does not meet the
requirements for a motion to reopen or reconsider, because you have failed to provide new facts
to be proved in the reopened proceeding supported by affidavits . . . and you did not establish that
the decision was incorrect based on the evidence of the record at the time of the initial decision.”)

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If Plaintiff is attempting to challenge USCIS’s denial of his motion to reopen, such a claim
is analyzed under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., as a “final
agency decision for which there is no other adequate remedy in court.” 5 U.S.C. § 704. Under the
APA, agency action may only be disturbed if it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law,” or “unsupported by substantial evidence.” 5 U.S.C. §
706(2)(A), (E). An agency decision is arbitrary and capricious “if the agency has relied on factors
which Congress has not intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in view or the product of
agency expertise.” NRDC v. U.S. Envir. Protection Agency, 658 F.3d 200, 215 (2d Cir. 2011).
“An abuse of discretion may be found in those circumstances where the [agency’s] decision
provides no rational explanation, inexplicably departs from established policies, . . . is devoid of
any reasoning, or contains only summary or conclusory statements.” Zhao v. U.S. Dept. of Justice,
265 F.3d 83, 93 (2d Cir. 2011).
USCIS regulations provide that “[i]f an untimely request for hearing meets the requirement
of a motion to reopen as described in 8 C.F.R. 103.5(a)(2) or a motion to reconsider as described
in 8 C.F.R. 103.5(a)(3), the request for hearing must be treated as a motion and a decision must be
made on the merits of the case.” 8 C.F.R. § 336.2. The requirements for a motion to reopen are
as follows:
A motion to reopen must state the new facts to be provided in the reopened
proceeding and be supported by affidavits or other documentary evidence. A
motion to reopen an application or petition denied due to abandonment must be
filed with evidence that the decision was in error because:
(i) The requested evidence was not material to the issue of eligibility;

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(ii) The required initial evidence was submitted with the application or petition, or
the request for initial evidence or additional information or appearance was
complied with during the allotted period; or
(iii) The request for additional information or appearance was sent to an address
other than that on the application, petition, or notice of representation, or that the
applicant or petitioner advised the Service, in writing, of a change of address or
change of representation subsequent to filing and before the Service's request was
sent, and the request did not go to the new address.
8 C.F.R. § 103.5(a)(2). “A motion to reconsider must state the reasons for reconsideration and be
supported by any pertinent precedent decisions to establish that the decision was based on an
incorrect application of law or Service policy. A motion to reconsider a decision on an application
or petition must, when filed, also establish that the decision was incorrect based on the evidence
of record at the time of the initial decision.” 8 C.F.R. § 103.5(a)(3).
Plaintiff does not make any specific argument as to why his untimely hearing request
should have been treated as a motion to reopen or reconsider. The Court cannot find that USCIS’s
decision was plausibly arbitrary, capricious, or an abuse of discretion.
Plaintiff’s second request in his motion is for the Court to grant his naturalization
application. The Court dealt with that request above in considering his complaint. Plaintiff does
add a number of arguments and claims he did not make in his complaint, such as breach of duty
of an immigration officer, inadequate investigation into his moral character by the USCIS, attorney
malpractice, extenuating circumstances that mitigate the criminal conduct on which the USCIS
based its denial, he in fact established good moral character, USCIS intentionally discriminated
against him due to his national origin and/or race, and Plaintiff is a U.S. national. As explained
above, the Court cannot consider these arguments and claims because Plaintiff did not present
them first to the USCIS and because he did not raise them here in a timely manner.
Plaintiff’s motion for injunctive relief (Doc. 11) is denied.

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B. Motion for Leave to Proceed In Forma Pauperis and Motion for Reconsideration
The Court previously granted Plaintiff in forma pauperis status and allowed him to proceed
without paying an initial filing fee. See Doc. 12. The order further stated that he remains required
to pay the full filing fee of $350.00 but may pay it over time. In Docs. 13 and 15, Plaintiff argues
he should not have to pay any filing fee.
28 U.S.C. § 1915 provides that “if a prisoner brings a civil action or files an appeal in forma
pauperis, the prisoner shall be required to pay the full amount of a filing fee.” 28 U.S.C. §
1915(b)(1). The Court is directed to assess and, when funds exist, collect an initial partial filing
fee. Id. After that, the prisoner is required to make monthly payments of 20 percent of the
preceding month’s income credited to his account. 28 U.S.C. § 1915(b)(2).
To the extent Plaintiff is challenging the constitutionality of 28 U.S.C. § 1915, the statute
has been upheld by the Tenth Circuit, as well as numerous other circuit courts. See Shabazz v.
Parsons, 127 F.3d 1246, 1248-49 (10th Cir. 1997); Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997);
Murray v. Dosal, 150 F.3d 814, 819 (8th Cir. 1998); Nicholas v. Tucker, 114 F.3d 17, 21 (2nd Cir.
1997); Roller v. Gunn, 107 F.3d 227, 231-34 (4th Cir. 1997); Hampton v. Hobbs, 106 F.3d 1281,
1283-88 (6th Cir. 1997); Mitchell v. Farcass, 112 F.3d 1483, 1487-89 (11th Cir. 1997); Tucker v.
Branker, 142 F.3d 1294, 1301 (D.C. Cir. 1998). As the court reasoned in Roller,
[r]equiring prisoners to make economic decisions about filing lawsuits does not
deny access to the courts; it merely places the indigent prisoner in a position similar
to that faced by those whose basic costs of living are not paid by the state. Those
living outside of prisons cannot file a lawsuit every time they suffer a real or
imagined slight. Instead, they must weigh the importance of redress before
resorting to the legal system.
Roller, 107 F.3d at 233; Shabazz, 127 F.3d at 1248-49.
Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (Doc. 13) and Motion for
Reconsideration (Doc. 15) are denied.
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C. Motion for Marshal to Effectuate Service
The Court has considered and denies Plaintiff's Motion for Service (Doc. 14). Summons
shall not issue in this case unless and until the complaint survives screening. Once the screening
process is successfully completed, the Court ordinarily orders service sua sponte. As the complaint
has not survived screening, Plaintiff’s motion (Doc. 14) is denied.
IV.

Conclusion
For the reasons stated herein, Plaintiff’s complaint is subject to dismissal under 28 U.S.C.

§§ 1915A(b) and 1915(e)(2)(B) for failure to state a claim upon which relief may be granted.
Plaintiff is therefore required to show good cause why his complaint should not be dismissed. The
failure to file a timely, specific response waives appellate review of both factual and legal
questions. Makin v. Colo. Dept. of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999). Plaintiff is warned
that his failure to file a timely response may result in the complaint being dismissed for the reasons
stated herein without further notice.
IT IS THEREFORE ORDERED that Plaintiff is granted to and including June 16, 2018,
in which to show good cause, in writing, why his complaint should not be dismissed for the reasons
stated herein.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Injunctive Relief for an
Extraordinary Remedy (Doc. 11), Motion for Leave to Proceed In Forma Pauperis (Doc. 13),
Motion for Marshal to Effectuate Service (Doc. 14), and Motion for Reconsideration (Doc. 15) are
DENIED.

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IT IS SO ORDERED.
DATED: This 16th day of May, 2018, at Topeka, Kansas.

s/_Sam A. Crow_____
SAM A. CROW
U.S. Senior District Judge

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