Vo v. Tritten et al

Filing 25

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Motion to Dismiss 11 is GRANTED, and Vo's Complaint 1 is DISMISSED without prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by The Hon. Paul A. Magnuson on 01/26/2017. (LLM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Lien Kim Vo,

Case No. 16-cv-3059 (PAM/BRT)

Plaintiff,
v.
MEMORANDUM AND ORDER
Leslie D. Tritten, David
Douglas, Jeh C. Johnson,
and Loretta Lynch
Defendants.

This matter is before the Court on Defendants’ Motion to Dismiss.

For the

following reasons, the Motion is granted.
BACKGROUND
Plaintiff Lien Kim Vo immigrated to the United States from Vietnam on a K-1,
fiancée visa and married her now ex-husband in Minnesota on June 23, 2003. (Compl.
(Docket No. 1) ¶ 8; Compl. Ex. 4.) Vo is a Lawful Permanent Resident (“LPR”) of the
United States. (Compl. ¶ 14.)

On November 11, 2011, Vo applied for United States

citizenship. (Id. ¶ 19.)
On September 16, 2016, Vo filed this lawsuit against the Department of Homeland
Security (“DHS”) District Director for the District of Minnesota, Leslie Tritten, United
States Citizenship and Immigration Services (“USCIS”) District Director Central Region,
David Douglas, Secretary of the DHS Jeh Johnson, and United States Attorney General
Loretta Lynch (collectively, the “Defendants”). Count 1 alleges that Defendants have

refused to adjudicate her naturalization application. Count 2 alleges that Defendants
violated the Administrative Procedure Act (“APA”) by failing to complete a background
check and timely adjudicate Vo’s naturalization application. Counts 3 and 4 are both
titled “Defendants’ refusal to present certain documents to Plaintiff” and allege that
Defendants withheld documents from Vo that claim her marriage was a sham.
DISCUSSION
To survive a motion to dismiss for failure to state a claim, a complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed. R. Civ. P. 12(b)(6). A claim
bears facial plausibility when it allows the Court “to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. When evaluating a motion to
dismiss, the Court must accept factual allegations as true, Gomez v. Wells Fargo Bank,
N.A., 676 F.3d 655, 660 (8th Cir. 2012), but it need not give effect to those that simply
assert legal conclusions, McAdams v. McCord, 584 F.3d 1111, 1113 (8th Cir. 2009).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements,” are insufficient to support a claim. Iqbal, 556 U.S. at 678.
A.

Counts 1 and 2
Counts 1 and 2 allege that Defendants refused to adjudicate Vo’s naturalization

application. That is false. USCIS denied Vo’s naturalization application on August 26,
2016, almost a month before Vo filed this lawsuit. Vo even attached the USCIS decision
denying her naturalization application to her Complaint.
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(Compl. Ex. 7.)

Because

USCIS adjudicated and denied her naturalization application, Counts 1 and 2 are moot.
Vo concedes this. (Pl.’s Opp’n Mem. (Docket No. 16) at 2.) These claims are therefore
dismissed.
B.

Counts 3 and 4
Counts 3 and 4 are titled “Defendants’ refusal to present certain documents to

Plaintiff.” Essentially, both Counts assert that Defendants withheld documents from Vo
that claimed her marriage was a sham, and that were used against her in the naturalization
application process. But Vo does not cite any statute or regulation in her Complaint that
requires Defendants to present documents to someone applying for citizenship.
Defendants construe Counts 3 and 4 as claims that they violated 8 C.F.R.
§ 103.2(b)(16)(i), which requires USCIS to advise a naturalization applicant about
information that would harm their chances of becoming a citizen and allow the applicant
to rebut that information. Vo seems to concur that this is the claim she is bringing. (Pl.’s
Opp’n Mem. at 4-5.) But § 103.2(b)(16)(i) does not require USCIS provide an applicant
with documents regarding their naturalization application. Section § 103.2(b)(16)(i) only
requires that the applicant “be advised” of any derogatory information regarding their
application and be “offered an opportunity” to rebut that information.

8 C.F.R.

§ 103.2(b)(16)(i); see also Mangwiro v. Johnson, 554 F. App’x 255, 256 (5th Cir. 2014).
Vo fails to plead that she was not advised of the information that her marriage was a
sham and precluded from offering rebuttal information. (See generally Compl.) In fact,
USCIS did provide Vo with an opportunity to rebut the allegations that her marriage was
a sham. (Compl. Ex. 7.)
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Vo argues that she states a claim upon which relief may be granted under 8 U.S.C.
§ 1421(c). Section 1421(c) allows a person who has had their naturalization application
denied to seek judicial review. Vo completely failed to raise this issue in her Complaint.
Instead, she raised it for the first time in her opposition memorandum. But a plaintiff
may not amend a complaint through a memorandum or brief. See Thomas v. United
Steelworkers Local 1938, 743 F.3d 1134, 1140 (8th Cir. 2014); see also Fed. R. Civ. P.
15. She therefore fails to state a claim upon which relief may be granted.
Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss
(Docket No. 11) is GRANTED and Vo’s Complaint (Docket No. 1) is DISMISSED
without prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: January 26, 2017

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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