Weldeabzghi v. Janssen et al

Filing 79

MEMORANDUM, OPINION, AND ORDER: The Government's Motion to Dismiss the Amended Petition 19 is DENIED; Petitioner's Motion to Amend Naturalization Order and Further Amend Petition 39 , Joint Motion 49 , and Motion to Further Amend Petiti on 58 are DENIED AS MOOT; and the parties are directed to contact Magistrate Judge Rau within ten days and schedule a Rule 16 conference to set a schedule of limited discovery consistent with this Order. (Written Opinion) Signed by Judge Susan Richard Nelson on 02/27/2013. (jmf)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Case No. 11-cv-03087 (SRN/SER)
In re Matter of:
Mebrahtu Yakob Weldeabzghi,
Petitioner.

MEMORANDUM OPINION AND
ORDER

P. Chinedu Nwaneri, Nwaneri Law Firm, PLLC, 4655 Nicols Road, Suite 106, Eagan,
Minnesota 55122, for Petitioner.
David W. Fuller, United States Attorney’s Office, 300 South Fourth Street, Suite 600,
Minneapolis, Minnesota 55415, for Respondent.

SUSAN RICHARD NELSON, United States District Court Judge
This matter is before the Court on Mebrahtu Yakob Weldeabzghi’s (“Petitioner”)
Amended Petition for an order requiring the United States Citizenship and Immigration
Service (“USCIS”) to issue him an amended certificate of naturalization. [Doc. No. 17.]
Petitioner’s certificate of naturalization now bears the birthdate of December 11, 1963.
(Id. at 3.) He seeks an amended certificate bearing what he alleges is his true birthdate of
December 11, 1953. (Id.) The Government has filed a Motion to Dismiss the Amended
Petition [Doc. No. 19] and Petitioner has filed a Motion to Amend Naturalization Order
and Further Amend Petition, [Doc. No. 39], a Motion to Amend Naturalization Order and
a Motion to Order USCIS to Amend Petitioner’s Certificate of Naturalization Nunc Pro
Tunc, [Doc. No. 49], and Motion to Further Amend Petition. [Doc. No. 58.] For the
reasons set forth below, the Court determines that it has jurisdiction to amend Petitioner’s
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certificate of naturalization and will allow the parties to conduct limited discovery on
Petitioner’s birthdate.
I.

BACKGROUND
Petitioner was born in Eritrea. (Am. Pet. ¶ 1 [Doc. No. 17].) He was imprisoned

from 1989 to 1991 by the government of Ethiopia and from 1992 to 1994 by the
government of Eritrea. (Id. ¶ 21.) He claims to have been severely tortured during both
imprisonments. (Id. ¶ 22.) Petitioner “believes that he was imprisoned because he
worked as a small merchant and was suspected of supplying materials to an opposition
party.” (Id. ¶ 23.)
While Petitioner was imprisoned in 1994, his family members “organized to
secure [his] release from detention.” (Id. ¶ 25.) They obtained an Eritrean identity card
and passport for Petitioner, which stated incorrectly that his birthdate was December 11,
1963. (Id.) Petitioner’s family members “subsequently secured [his] release from jail
and, within a few days, [he] left Eritrea for the United States” using the passport with the
incorrect year of birth. (Id. ¶¶ 26–27.)
Petitioner arrived in the United States in August 1994 and his Eritrean passport
was his “main identity document.” (Id. ¶ 28.) Upon arrival, he applied for asylum. (Id. ¶
29.) Government agencies in the United States “adapted [sic] [Petitioner’s] biographic
information from the Passport and stated [his] date of birth as December 11, 1963 . . .
instead of December 11, 1953.” (Id. ¶ 30.)
On October 9, 2002, Petitioner was naturalized as a United States citizen and was
issued a certificate of naturalization. (Id. ¶ 31; see also Gov’t Ex. A [Doc. No. 22].)
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During the interview with USCIS before Petitioner became a naturalized citizen,
Petitioner was asked by a USCIS official if he wanted to change his name and Petitioner
responded that he did not want to change his name, but rather “wanted to change his date
of birth because it bears the wrong year.” (Am. Pet. ¶ 32 [Doc. No. 17].) The USCIS
official requested documentation from Petitioner regarding his birthdate and, when
Petitioner informed the USCIS official he did not possess any, he was told that he must
“obtain relevant documentation from his country of birth before he could apply to change
his date of birth.” (Id.)
Petitioner was unable to get documentation regarding his birthdate from Eritrea
while he was in the United States. (Id. ¶ 35.) In 2008, Petitioner travelled to Eritrea after
he deemed it safe again for him to visit the country. (Id. ¶¶ 33–34.) He made an
application to an Eritrean court to enter an order regarding his correct birthdate. (Id. ¶
37.) On June 30, 2009, the Eritrean court entered an order stating that Petitioner’s correct
birthdate is December 11, 1953. (Id.; see also Pet’r’s Aff. ¶ 15, Ex. A [Doc. No. 11].)
Pursuant to the Eritrean court’s order, on February 10, 2010, the Municipality of
Asmara’s Public Registration Office issued Petitioner a certificate of birth bearing a
birthdate of December 11, 1953. (Am. Pet. ¶ 38 [Doc. No. 17]; Pet’r’s Aff. ¶ 16, Ex. B
[Doc. No. 11].)
Once Petitioner returned to the United States, he presented his certificate of birth
to the appropriate government agencies. (Am. Pet. ¶ 39–40 [Doc. No. 17].) Petitioner
then submitted an application to Hennepin County District Court to have his birthdate
changed. (Id. ¶ 41.) He participated in an evidentiary hearing before the Hennepin
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County District Court on April 7, 2011, which resulted in an order from the court
granting his request to change his birthdate. (Id.; see also Pet’r’s Aff. ¶ 25, Ex. E [Doc.
No. 11].) Petitioner provided his Certificate of Birth to the Minnesota Division of Motor
Vehicles (“DMV”), which provided him a new driver’s license bearing a birthdate of
December 11, 1953. (Am. Pet. ¶ 39 [Doc. No. 17].)
Petitioner then applied with the Social Security Administration (“SSA”) to change
his birthdate and SSA informed Petitioner that he must first change it with USCIS. (Id. ¶
42; see also Pet’r’s Aff. ¶ 26.) As a result, on April 20, 2011, Petitioner submitted to
USCIS a Department of Homeland Security (“DHS”) Form N-565 “Application for
Replacement Naturalization/Citizenship Document” to change his birthdate from
December 11, 1963 to December 11, 1953. (Am. Pet. ¶ 42 [Doc. No. 17]; Gov’t Ex. B
[Doc. No. 22].) Petitioner provided a copy of the Hennepin County District Court order
with his DHS Form N-565. (Id.)
USCIS sent Petitioner a Request for Evidence (“RFE”) on July 28, 2011,
indicating that he had not submitted sufficient documentation with his application.
(Gov’t Ex. C [Doc. No. 22].) The RFE stated,
Please submit a clear and legible copy of a recent photo identity document
showing your picture, name, and date of birth. Such a document can be a
clear and legible copy of the identity page from your passport, a clear and
legible copy of a current driver’s license, or another type of photo ID with
the same information. The identity document must clearly show your
photograph and identity information.
(Id.) The RFE also noted that “[t]he State of Minnesota District Court does not have
authority to amend your date of birth in matters of your naturalization. Only a U.S.
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Federal Court, with jurisdiction over your naturalization proceedings, has the authority
to order that an amendment be made to your Certificate of Naturalization.” (Id.)
(emphasis added.)
Petitioner filed a Petition to Amend Certificate of Naturalization to Reflect Correct
Date of Birth in this Court on October 19, 2011. (Pet. [Doc. No. 1].) The Government
filed a Motion to Dismiss the Petition on December 23, 2011. (Mot. to Dismiss Pet.
[Doc. No. 5].) Subsequently, the parties entered into a Stipulation whereby the
Government agreed to withdraw its Motion to Dismiss and Petitioner was provided an
opportunity to file an amended Petition, which the Court approved on March 2, 2012.
(Am. Stip. [Doc. No. 15]; Order dated March 2, 2012 [Doc. No. 16].)
Petitioner filed an Amended Petition on March 10, 2012, and the Government
filed a Motion to Dismiss the Amended Petition on March 26, 2012. (Am. Pet. [Doc. No.
17]; Mot. to Dismiss [Doc. No. 19].) The Court scheduled a hearing on the
Government’s Motion to Dismiss the Amended Petition on August 23, 2012. [Doc. No.
31.] On the day of the hearing, Petitioner filed a Motion to Amend Naturalization Order
and Further Amend Petition. [Doc. No. 39.] The Court took the Government’s Motion
to Dismiss under advisement and required Petitioner to schedule an additional hearing on
his Motion to Amend to provide the Government an opportunity to respond to the
Motion. [Doc. No. 45.]
Petitioner filed a Motion to Amend Naturalization Order and Further Amend
Petition on August 23, 2012. [Doc. No. 39.] On September 12, 2012, Petitioner filed a
Motion to Amend Naturalization Order and a Motion to Order USCIS to Amend
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Petitioner’s Certificate of Naturalization Nunc Pro Tunc. [Doc. No. 49.] Petitioner refers
to this as his “Joint Motion.” (See Mem. in Opp’n to Mot. for Extension at 2 [Doc. No.
63].) Petitioner has stated that the “joint motion is intended to amend or supersede [his]
earlier Motion to Amend Naturalization Order and Further Amend Petition [Docket No.
39].” 1 (Id.) Petitioner filed another Motion to Further Amend Petition on September 13,
2012. [Doc. No. 58.]
On October 20, 2012, USCIS denied Petitioner’s request to amend his birthdate.
(Pet’r’s Supp. Decl. ¶ 3, Ex. G [Doc. Nos. 74–75].) USCIS explained that Petitioner had
“failed to establish that a clerical error was made in preparing the certificate [of
naturalization] or that [Petitioner’s] date of birth does not conform to the facts as shown
on [his] original application for naturalization.” (Id.) The Court held a hearing on
Petitioner’s pending Motions to Amend on November 1, 2012 and took the Motions
under advisement. [Doc. No. 78.]
II.

DISCUSSION
A.

Standard of Review

The Government asks the Court to dismiss the Complaint for lack of subject
matter jurisdiction under Rule 12(b)(1). [Doc. No. 19.] Because the Government
questions the Court’s jurisdiction, the Court is “free to weigh the evidence and satisfy
itself as to the existence of its power to hear the case.” Osborn v. United States, 918 F.2d
1

Because Petitioner has made clear that his Joint Motion was intended to supersede
his earlier Motion to Amend Naturalization Order and Further Amend Petition, the Court
denies Petitioner’s Motion to Amend Naturalization Order and Further Amend Petition
[Doc. No. 39] as moot.
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724, 730 (8th Cir. 1990) (citation omitted). “In short, no presumptive truthfulness
attaches to the plaintiff’s allegations, and the existence of disputed material facts will not
preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id.
When evaluating a motion to dismiss under Rule 12(b)(6), the Court assumes the
facts in the Complaint to be true and construes all reasonable inferences from those facts
in the light most favorable to Plaintiff. Morton v. Becker, 793 F.2d 185, 187 (8th Cir.
1986). However, the Court need not accept as true wholly conclusory allegations, Hanten
v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal
conclusions Plaintiffs draw from the facts pled. Westcott v. City of Omaha, 901 F.2d
1486, 1488 (8th Cir. 1990).
To survive a motion to dismiss, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). Although a complaint need not contain “detailed factual allegations,” it must
contain facts with enough specificity “to raise a right to relief above the speculative
level.” Id. at 555. As the United States Supreme Court recently stated, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,”
will not pass muster under Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). In sum, this standard “calls for enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence of [the claim].” Twombly,
550 U.S. at 556. A court may consider the complaint, matters of public record, orders,
materials embraced by the complaint, and exhibits attached to the complaint in deciding a

7

motion to dismiss under Rule 12(b)(6). Porous Media Corp. v. Pall Corp., 186 F.3d
1077, 1079 (8th Cir. 1999).
B.

The Court’s Jurisdiction

Petitioner maintains that this Court has jurisdiction over this matter pursuant to the
now repealed statute previously codified at 8 C.F.R. § 334.16(b). (Am. Pet. ¶ 2 [Doc. No.
17].) He contends that the regulation allows for the amendment of a non-clerical error on
a naturalization certificate. (Pet’r’s Opp’n Mem. to Gov’t’s Mot. to Dismiss at 10 [Doc.
No. 33].) Section 334.16(b) provided:
Whenever an application is made to the court to amend a petition for
naturalization after final action thereon has been taken by the court, a copy
of the application shall be served upon the district director having
administrative jurisdiction over the territory in which the court is located, in
the manner and within the time provided by the rules of court in which
application is made. No objection shall be made to the amendment of a
petition for naturalization after the petitioner for naturalization has been
admitted to citizenship if the motion or application is to correct a clerical
error arising from oversight or omission. A representative of the Service
may appear at the hearing upon such application and be heard in favor of or
in opposition thereto. When the court orders the petition amended, the
clerk of court shall transmit a copy of the order to the district director for
inclusion in the Service file.
8 C.F.R. § 334.16(b) (2010). Although 8 C.F.R. § 334.16(b) specifically gave federal
courts the power to order amendments to petitions for naturalization, courts have also
used this regulation to make amendments to certificates of naturalization. Hussain v.
USCIS, 541 F. Supp. 2d 1082, 1085 (D. Minn. 2008) (Schiltz, J.) (noting that while §
334.16(b) “on its face gives courts the power to amend petitions for naturalization” it also
“implicitly gives the Court the power to order USCIS to issue [a petitioner] an amended
certificate of naturalization”); Kouanchao v. USCIS, 358 F. Supp. 2d 837, 839–40 (D.
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Minn. 2005) (Davis, J.) (stating that “[w]hile the [USCIS] regulations may not permit it
to administratively amend the birthdate on a Certificate of Naturalization in the absence
of a clerical error . . . this Court has the power to order such an amendment”) (citations
omitted); see also Khan v. USCIS, No. 2:11-cv-00811, 2011 U.S. Dist. LEXIS 67697, at
*2 (D. Nev. June 23, 2011) (“Although 8 C.F.R. § 334.16(b) specifically gives federal
courts the power to order amendments to petitions for naturalization, courts also use this
regulation to make amendments to certificates of naturalization.”) (emphasis in original
and citations omitted); In re Lee, No. C 06-80150-MISC MJJ, 2007 WL 926501, at *2
(N.D. Cal. Mar. 26, 2007) (same); Nguyen v. DHS, No. 1:06-MC-118, 2007 WL
2156649, at *3 (N.D.N.Y. July 25, 2007) (same); Varghai v. INS, 932 F. Supp. 1245,
1246 (D. Or. 1996) (same).
Until 1990, federal courts had exclusive jurisdiction to naturalize non-citizens.
Lashkariani v. USCIS, No. 3:11-cv-00733, 2012 WL 3615460, at *2 (D. Nev. Aug. 21,
2012) (citations omitted). In 1990, however, Congress extensively modified United
States Immigration law by transferring the power to naturalize citizens from the district
courts to the executive branch. Administrative Naturalization, 56 Fed. Reg. 50475-01,
50475 (Oct. 7, 1991) (codified in scattered section of 8 C.F.R); see also 8 U.S.C. §
1421(a) (“The sole authority to naturalize persons as citizens of the United States is
conferred upon the Attorney General.”). 2

2

Under the Homeland Security Act, the power to naturalize non-citizens has been
transferred to the DHS, who in turn, delegated it to USCIS. See 8 C.F.R. § 310.1.
9

Section 334.16(b) was “traditionally interpreted to apply only to naturalization
petitions issued by courts before 1990.” Lashkariani, 2012 WL 3615460, at *2. A recent
line of cases, however, has interpreted 8 C.F.R. § 334.16(b) to apply to both pre-1990
court ordered naturalization documents as well as post-1990 agency-issued naturalization
certificates. See id. (citations omitted). For example, in Hussain, the petitioner sought to
amend his certificate of naturalization which bore an incorrect birthdate. 541 F. Supp. 2d
at 1083. Although the petitioner was naturalized in 1995, the Court found that it had
jurisdiction under 8 C.F.R. § 334.16(b) to amend his agency-issued naturalization
certificate to reflect his correct birthdate. Id. at 1085.
Similarly, in Lashkariani, the petitioner was naturalized on June 4, 2001 and her
naturalization certificate listed an incorrect birthdate. 2012 WL 3615460, at *1. The
petitioner filed a Form N-565 “Application for Replacement Naturalization/Citizenship
Document,” which USCIS denied. Id. at *1. USCIS explained that it “does not have
authority to change a date of birth” when the originally printed date of birth is not the
result of clerical error. Id. at 2. USCIS also stated that “[o]nly a U.S. Federal District
Court having jurisdiction over [petitioner’s] Naturalization proceeding has the authority
to order a change in date of birth.” Id. The petitioner then filed a petition for a writ of
mandamus to amend her naturalization certificate. Id. The District of Nevada
determined that even though petitioner was naturalized after 1990, it had “original
jurisdiction over [p]etitioner’s petition to amend her date of birth under 8 C.F.R. §
334.16(b).” Id. at *3.

10

Other courts have also recognized that they possess jurisdiction to amend a post1990 agency-issued naturalization certificate. For example, in Binh Quang Le v. USCIS,
the Northern District of California determined that it had jurisdiction to amend a
certificate of naturalization issued in 1991 by USCIS. No. C11-01871, 2011 WL
3678909, at *1 (N.D. Cal. Aug. 22, 2011). Similarly, in Nguyen v. DHS, the Northern
District of New York granted a petitioner’s request to change her birthdate on her agency
issued naturalization certificate approximately fifteen years after she was naturalized in
1990 (after the Immigration Act took effect). No 1:06-MC-118, 2007 WL 2156649, at *1
(N.D.N.Y. July 25, 2007).
As in Hussain, Lashkariani, Bin Quang Le, and Nguyen, Petitioner seeks an
amendment to his agency-issued certificate of naturalization to bear his correct birthdate.
Like the petitioners in each of these cases, Petitioner here filed his petition before the
effective date of § 334.16(b)’s repeal on November 28, 2011. Petitioner filed an
“Application for Replacement Naturalization/Citizenship Document,” Form N-565, with
USCIS in April 2011 and his original petition in this Court in October 2011. [Doc. No.
1.] “Regulations have been deemed applicable as long as they were in effect when the
events that they affect occurred.” See Lashkariani, 2012 WL 3615460, at *3 n.2 (citing
Reeb v. Thomas, 636 F.3d 1224, 1225 n.1 (9th Cir. 1982); Garcia v. Andrus, 692 F.2d 89,
92 n.4 (9th Cir. 1982); Perotti v. Holt, 483 F. App’x 272, 274 (7th Cir. 2012)). 3

3

The Government cites FirstCom, Inc. v. Quest Corp., 555 F.3d 669, 676 (8th Cir.
2009) in support of its argument that Petitioner cannot establish jurisdiction under
§ 334.16(b) because it was repealed on November 28, 2011. The Court finds that
Firstcom is distinguishable, however, because in that case the statute underlying the
11

Accordingly, the Court agrees with the holdings of Hussain, Lashkariani, Bin Quang Le,
and Nguyen that § 334.16(b), while it was in effect, granted jurisdiction to federal courts
to order amendments to agency-issued certificates of naturalization. The Court notes,
however, that its holding does not create jurisdiction over future petitions to amend nonclerical errors filed under § 334.16(b) after it was repealed on November 28, 2011. 4
C.

Statute of Limitations

The Government argues that Petitioner’s amended petition is barred by the statute
of limitations contained in 28 U.S.C. § 2401(a). (Gov’t Mem. in Supp. of Mot. to
Dismiss at 3–7 [Doc. No. 21].) Section 2401(a) is a general statute of limitations for suits
against the government, which provides that “every civil action commenced against the
United States shall be barred unless the complaint is filed within six years after the right

plaintiff’s claim expired “more than three months before [the plaintiff] filed its
complaint.” Id.
4

The Government also argues that the Court should dismiss Petitioner’s Amended
Petition under Federal Rule of Civil Procedure 12(b)(6) because 8 C.F.R. § 334.16(b)
does not allow the Court “to amend Petitioner’s naturalization certificate at this time to
reflect a different date of birth.” (Gov’t’s Mem. in Supp. of Mot. to Dismiss at 9–13
[Doc. No. 21].) Because the Court has determined that § 334.16(b) provides it the
authority to order amendments to agency-issued certificates of naturalization, the Court
denies the Government’s Rule 12(b)(6) motion. Additionally, Petitioner alternatively
argues that the Court possesses jurisdiction over his Amended Petition under the
Administrative Procedure Act and the Full Faith and Credit Clause of the United States
Constitution. (Pet’r’s Mem. in Opp’n to Gov’t’s Mot. to Dismiss at 6–12 [Doc. No. 33].)
Petitioner has also filed Motions to Amend his Petition to assert jurisdiction pursuant to
Federal Rule of Civil Procedure 60, the Nunc Pro Tunc principle, and the inherent
jurisdiction of this Court. (Joint Motion [Doc. No. 49]; Motion to Further Amend [Doc.
No. 58].) Because the Court has determined that it possesses jurisdiction over this action
under 8 C.F.R. § 334.16(b), the Court need not address Petitioner’s alternative bases for
jurisdiction. Accordingly, the Court denies Petitioner’s Motions to Amend as moot.
12

of action first accrues.” A “claim against [the] United States first accrues ‘on the date
when all the events have occurred which fix the liability of the Government and entitle
the claimant to institute an action.’” Izaak Walton League of Am., Inc. v. Kimbell, 558
F.3d 751, 759 (8th Cir. 2009) (citations omitted). Thus, a plaintiff’s claim “accrues” for
purposes of § 2401(a) when the plaintiff “either knew, or in the exercise of reasonable
diligence should have known, that [he or she] had a claim.” Id. (citations omitted).
The Eighth Circuit has held that “[b]ecause suits against the government are
subject to equitable tolling, compliance with this limitations period is not a jurisdictional
prerequisite to suing the government.” Krueger v. Saiki, 19 F.3d 1285, 1286 (8th Cir.
1994) (citing Schmidt v. United States, 933 F.2d 639, 640 (8th Cir.1991)); see also Irwin
v. Dep’t of Veterans Affairs., 498 U.S. 89, 95–96 (1990) (“We therefore hold that the
same rebuttable presumption of equitable tolling applicable to suits against private
defendants should also apply in suits against the United States.”); Bertin v. United States,
478 F.3d 489, 494 n.3 (2d Cir. 2007) (“[E]quitable tolling may be available for actions
against the federal government . . . and may toll the catch-all statute of limitation, 28
U.S.C. § 2401(a).”) (citations omitted); Clymore v. United States, 217 F.3d 370, 374 (5th
Cir. 2000) (“We hold, therefore, that the doctrine of equitable tolling has potential
application in suits, like this one, that are governed by the statute of limitations codified
at 28 U.S.C. § 2401(a).”). The Government bears the burden of proving, as an
affirmative defense, that Petitioner failed to comply with the limitations period. Krueger,
19 F.3d at 1286; Slaaten v. United States, 990 F.2d 1038, 1043 n.5 (8th Cir. 1993).

13

Because statutes of limitations protect “important interests of certainty, accuracy,
and repose, equitable tolling ‘is an exception to the rule, and should therefore be used
only in exceptional circumstances.’” Motley v. United States, 295 F.3d 820, 824 (8th
Cir. 2002) (citations omitted). “The party who is claiming the benefit of an exception to
the operation of a statute of limitations bears the burden of showing that he is entitled to
it.” Wollman v. Gross, 637 F.2d 544, 549 (8th Cir. 1980), cert. denied, 454 U.S. 893
(1981). “Generally, a litigant seeking equitable tolling bears the burden of establishing
two elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Johnson v. Hobbs, 678 F.3d 607, 610 (8th
Cir. 2012) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
The Government relies on a non-binding, unpublished Central District of
California case, Udengwu v. Holder, in support of its argument that Petitioner’s action is
barred by § 2401(a). No. 10-cv-01819, slip. op. at 3–4 (C.D. Cal. Jan. 13, 2012). In
Udengwu, the petitioner sought to amend his certificate of naturalization to correct the
birthdate listed. Id. at 1. The court determined that petitioner’s request was barred by the
statute of limitations stating that “[a]lthough it is true that Defendants have identified no
cases holding that § 2401(a) does apply, the statute’s plain language . . . on its face
encompasses Plaintiff’s action.” Id. at 3–4.
The Court finds the analysis in Udengwu unavailing. The Court notes that 8
C.F.R. § 334.16(b), the basis for which it has determined it has jurisdiction over this
action, does not contain a time limitation for making a request to amend a certificate of
naturalization. Moreover, this Court has declined to apply the statute of limitations
14

contained in 28 U.S.C. § 2401 on numerous occasions in analogous situations where
petitioners seek to amend their dates of birth on certificates of naturalization pursuant to
§ 334.16(b). For example, in Kouanchao, this Court granted a petitioner’s request to
change her birthdate on her naturalization certificate even though she waited
approximately twenty-one years after she was naturalized to file a petition with the Court.
358 F. Supp. 2d at 842. The Court stated that “[a]lthough it would have been preferable
for [petitioner] to have . . . corrected the mistake at an earlier time, the passage of time
does not bar her application.” Id. Similarly, in Hussain, the petitioner learned that his
birthdate on his naturalization certificate was incorrect approximately nine years before
he filed a petition in this Court. 541 F. Supp. 2d at 1084. This Court granted petitioner’s
request to amend his naturalization certificate to change his date of birth. Id. at 1091.
Likewise, in In re Nguyen, this Court concluded that “[a]lthough it would have been
preferable for Petitioner to have corrected the mistake at an earlier time, the passage of
[twenty-seven years] . . . does not bar his application.” No. 05-MC-61, 2006 WL
2860814, at *3 (D. Minn. Oct. 4, 2006) (Tunheim, J.).
Other courts have concluded that requests to amend naturalization certificates
pursuant to § 334.16(b) are not subject to a statute of limitations. In Nguyen, the
Northern District of New York granted a petitioner’s request to change the birthdate on
his certificate of naturalization even though the petitioner knew that it had been incorrect
when issued in 1990—over six years before filing his petition. 2007 WL 2156649, at *1.
Additionally, the Western District of Tennessee determined in Pyun v. Jarina, that even
though the petitioner “candidly admit[ed] that he could have taken steps much sooner to
15

correct his date of birth on his Certificate of Naturalization . . . the lengthy passage of
[over thirty-four years] alone does not preclude a petitioner from seeking an
amendment.” No. 07-2817-P, 2009 WL 1636272, at *4 (W.D. Ten. June 11, 2009)
(citations omitted). Accordingly, the Court determines that Petitioner’s Amended
Petition is not barred by § 2401(a).
Moreover, even if the Court were to conclude that the statute of limitations
contained in § 2401 applied, Petitioner would be entitled to equitable tolling. Petitioner
came to the United States in 1994 seeking asylum after being imprisoned in Eritrea from
1989 to 1991 and 1992 to 1994. (Am. Pet. ¶¶ 21, 28 [Doc. No. 17].) After securing his
release from detention, Petitioner’s family members obtained an Eritrean identity card
and passport for him to use to leave the country, which incorrectly stated that his
birthdate was December 11, 1963. (Id. ¶ 25.) After arriving in the United States and
applying for asylum, government agencies “adapted [sic] [Petitioner’s] biographic
information from the Passport and stated [his] date of birth as December 11, 1963 . . .
instead of December 11, 1953.” (Id. ¶ 30.)
When Petitioner was in the process of applying for citizenship, he interviewed
with USCIS and told the officer he “wanted to change his date of birth because it bears
the wrong year.” (Id. ¶ 32.) The officer responded that Petitioner would need to “obtain
relevant documentation from his country of birth.” (Id.) Petitioner was unable to obtain
documentation from Eritrea while he was in the United States, but determined in 2008
that it was safe for him to return to his home country. (Id. ¶¶ 33–34.) While there,
Petitioner applied to an Eritrean court to enter an order regarding his correct date of birth,
16

which was granted on June 30, 2009. (Id.) The Municipality of Asmara’s Public
Registration Office issued Petitioner a Certificate of Birth bearing his actual birth date on
February 10, 2010. (Id. ¶ 38.)
Petitioner then submitted an application to Hennepin County District Court to
have his birthdate changed. (Id. ¶ 41.) After participating in an evidentiary hearing, the
court granted his request to change his birthdate on April 2011. (Id.) Petitioner then
applied with SSA to change his birthdate and was informed he must first change it with
USCIS. (Id. ¶ 42.) Petitioner then submitted an “Application for Replacement
Naturalization/Citizenship Document,” Form N-565, to USCIS on April 20, 2011 along
with a copy of the Hennepin County District Court order. (Id. ¶ 42; Gov’t Ex. A [Doc.
No. 22].) USCIS responded by sending Petitioner an RFE on July 28, 2011, stating that
“[t]he State of Minnesota District Court does not have authority to amend your date of
birth in matters of your naturalization. Only a U.S. Federal Court, with jurisdiction over
your naturalization proceedings, has the authority to order that an amendment be made to
your Certificate of Naturalization.” (Gov’t Ex. C [Doc. No. 22].) After receiving the
RFE from USCIS, Petitioner filed a Petition to Amend Certificate of Naturalization to
Reflect Correct Date of Birth on October 19, 2011. (Pet. [Doc. No. 1].)
The facts above demonstrate that Petitioner has acted diligently to amend his
birthdate on his certificate of naturalization. It was USCIS who informed Petitioner that
he would need to obtain documentation from his home country to correct his birthdate on
his naturalization certificate. After travelling to Eritrea to obtain the necessary
documentation and receiving an order from Hennepin County District Court granting his
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request, USCIS told Petitioner to pursue his claim in United States federal court—and
then contested the federal court’s jurisdiction over his claim. Additionally, extraordinary
circumstances prohibited Petitioner from resolving this issue sooner as it was not safe for
him to return to Eritrea to obtain the relevant documentation—as evidenced by
Petitioner’s application for asylum in the United States. The Court therefore finds that, if
the statute of limitations contained in § 2401 were to apply to Petitioner’s Amended
Petition, it would be subject to equitable tolling and Petitioner could nonetheless pursue
his claim.
C.

Petitioner’s Request to Amend His Date of Birth on His Naturalization
Certificate

The burden is on the petitioner to demonstrate by clear and convincing evidence
that the birthdate on his certificate of naturalization is incorrect. Hussain, 541 F. Supp.
2d at 1087. In addition, the petitioner must present reliable evidence supporting the
correct birthdate. Id. As the Court explained in Hussain,
The Court understands why a petitioner should be required to prove by
clear and convincing evidence that the date of birth appearing on an
existing certificate is inaccurate before USCIS is ordered to issue an
amended certificate. Certificates of naturalization are important documents
—official documents on which governmental and private entities rely—and
requests to alter a birth date on such important documents should not be
treated lightly. One who seeks to have an existing certificate torn up and
replaced with a new certificate should thus bear a heavy burden. But once
the petitioner meets that burden—once the petitioner proves, by clear and
convincing evidence, that the date of birth on his certificate [is] incorrect—
then it makes less sense to require clear and convincing evidence of the
accuracy of the date of birth proposed for the amended certificate.
After all, someone applying for permanent residence in the United States or
for United States citizenship does not have to provide clear and convincing
evidence of his or her date of birth. Moreover, in cases such as this . . . it
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may be much easier for the petitioner to prove that the birth date on his
certificate is incorrect than to prove that the replacement date that he
proposes is correct. It may be that the latter is—and can never be anything
but—a good-faith approximation.
In the Court’s view, then, once a petitioner has proven by clear and
convincing evidence that the date of birth appearing on his certificate of
naturalization is incorrect, the USCIS should be ordered to issue an
amended certificate with the date of birth proposed by the petitioner as long
as the petitioner submits reliable evidence of the accuracy of that proposed
date.
Id. at 1090 (emphasis in original). Even if a petitioner is able to satisfy both of these
requirements, the court may nevertheless deny the petition if there is evidence that “the
petitioner acted fraudulently or in bad faith either when he or she initially provided the
incorrect birth date to immigration authorities or when he or she later sought to amend
the certificate of naturalization.” Id. at 1087.
The Government has requested that, if the Court were to consider the question of
Petitioner’s actual birthdate on the merits, that it be allowed to conduct limited discovery.
(Gov’t’s Resp. to Mots. to Amend at 9 n.5 [Doc. No. 71].) Specifically, the Government
requests the ability to propound limited document requests and conduct limited
depositions. (Id.) The Court agrees with the Government that limited discovery is
warranted and directs the parties within ten days of the date of this Order to schedule a
Rule 16 conference with Magistrate Judge Rau to set a schedule of limited discovery
consistent with this Order.
III.

ORDER

Based on the foregoing, all the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
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1.

The Government’s Motion to Dismiss the Amended Petition [Doc. No. 19] is
DENIED;

2.

Petitioner’s Motion to Amend Naturalization Order and Further Amend
Petition [Doc. No. 39], Joint Motion [Doc. No. 49], and Motion to Further
Amend Petition [Doc. No. 58] are DENIED AS MOOT; and

3.

The parties are directed to contact Magistrate Judge Rau within ten days and
schedule a Rule 16 conference to set a schedule of limited discovery
consistent with this Order.

Dated: February 27, 2013

s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

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