Tesfay v. Holder et al

Filing 22

ORDER Denying 19 Motion for Order Amending Naturalization Certificate. The 1 Petition to Amend Certificate of Naturalization is DISMISSED for lack of subject matter jurisdiction. Signed by Judge Philip M. Pro on 4/26/2013. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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YETBAREK YOHANNES TESFAY,
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Petitioner,
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v.
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ERIC HOLDER, et al.,
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Respondents.
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2:11-CV-01545-PMP-VCF

ORDER

Presently before this Court is Petitioner Yetbarek Yohannes Tesfay’s (“Tesfay”)

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Motion for Order Amending Naturalization Certificate (Doc. #19), filed on January 11,

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2013. Respondents Eric Holder, Alejandro Mayorkas, John Kramer, and Janet Napolitano

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(“Respondents”) filed a Response (Doc. #20) on February 14, 2013. Tesfay filed a Reply

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(Doc. #21) on March 14, 2013.

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I. BACKGROUND

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Tesfay alleges he was born in Eritrea on January 12, 1948. (Compl. (Doc. #1)

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at 2.) Due to civil unrest in Eritrea, Tesfay fled from Eritrea to Sudan in 1965. (Id.) Upon

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entering Sudan, Tesfay alleges the Sudanese Interior Minister incorrectly recorded his date

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of birth as October 1, 1955. (Id.) However, Tesfay was unable to correct the birth date

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recorded on the documents he obtained in Sudan. (Id.)

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Tesfay eventually relocated to the United States and in 2004 applied for

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naturalization through the United States Department of Homeland Security’s Citizenship

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and Immigration Services (“USCIS”). (Id.) Tesfay requested a copy of his birth

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certificate from Eritrea in December 2008. (Id.) Tesfay was naturalized on August 14,

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2009, but he did not receive a copy of his Eritrea birth certificate until January 2010. (Id.)

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Therefore, during the application process, Tesfay relied on the documents he obtained from

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the Sudanese Interior Minister, as it was the only documentation Tesfay possessed to

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establish his identity and place of birth. (Id.) Accordingly, the date of birth recorded on

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Tesfay’s Certificate of Naturalization is October 1, 1955, and not January 12, 1948, which

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is the date reflected in Tesfay’s Eritrean birth certificate. (Id.)

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Shortly after receiving a copy of his Eritrean birth certificate, Tesfay sought to

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legally change the birth date on his United States identification documents to January 12,

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1948. (Id.) Tesfay did not file an Application for a Replacement Naturalization (“Form

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N-565”) with USCIS or otherwise communicate to USCIS that the date of birth on his

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Certificate of Naturalization was incorrect. (Pl.’s Reply to Resp. of a Mot. (Doc. #21) at 2.)

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Rather, Tesfay alleges an agency other than USCIS informed him that he needed to obtain

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a court order to change the date of birth on his identification documents.1 (Id.)

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Accordingly, Tesfay filed a Petition to Amend his Birth Certificate in the Eighth Judicial

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District Court of Clark County, Nevada. (Compl. (Doc. #1) at 2.) The state court granted

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Tesfay an Order to Amend, finding that Tesfay’s “true birth date is January 12, 1948.” (Id.

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at 2-3; Ex. E.) After receiving the order, Tesfay attempted to correct the birth date on his

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Certificate of Naturalization, but discovered he needed a federal court order to change the

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date of birth on his Certificate of Naturalization. (Id. at 3.)
Therefore, Tesfay filed a Petition with this Court requesting an order amending

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his Certificate of Naturalization. (Id. at 1.) Respondents thereafter filed a Notice advising

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the Court that 8 C.F.R. § 334.16, the regulation Tesfay argues gives this Court jurisdiction,

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had been repealed since Tesfay filed his Petition. (Notice of Supplemental Authority &

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It is not clear whether an employee of the United States Postal Service or the Department of
Motor Vehicles informed Tesfay that he needed a court order. It is clear, however, that Tesfay did not
obtain this information from USCIS.
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Briefing Schedule (Doc. #10) at 2-6.) Respondents also requested a briefing schedule for

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dispositive motions. (Id. at 6.) The Magistrate Judge held a hearing at which both parties

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agreed the record did not need to be supplemented. (Mins. of Proceedings (Doc. #18).)

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Accordingly, the Magistrate Judge issued a briefing schedule, under which the parties filed

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the Motion, Response, and Reply now before the Court. (Id.)

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II. DISCUSSION

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At issue is whether this Court has jurisdiction to amend the date of birth on

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Tesfay’s Certificate of Naturalization. Tesfay argues that this Court has jurisdiction under

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8 C.F.R. § 334.16 to order USCIS to amend the date of birth on Tesfay’s Certificate of

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Naturalization. Respondents contend that this Court should dismiss Tesfay’s Petition for

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lack of subject matter jurisdiction because only a federal statute, not a federal regulation,

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can confer jurisdiction on a district court. Respondents further argue that this Court can

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review agency action under the Administrative Procedure Act (“APA”), but there is no

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USCIS action to review here because Tesfay has failed to pursue any administrative

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remedies. Furthermore, Respondents argue that Tesfay’s pleadings fail to state a claim as a

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matter of law under Federal Rule of Civil Procedure 12(c). In his reply, Tesfay maintains

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that § 334.16 is a valid basis for jurisdiction as other district courts have relied on § 334.16

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to amend naturalization certificates that USCIS issued after 1991. Tesfay further replies

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that he is not required to exhaust administrative remedies under the APA because doing so

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would be futile under the governing regulations.

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A. Subject Matter Jurisdiction Under 8 C.F.R. § 334.16

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A court must dismiss an action if it determines at any time that it lacks subject

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matter jurisdiction. Fed. R. Civ. P. 12(h)(3). “A party invoking the federal court’s

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jurisdiction has the burden of proving the actual existence of subject matter jurisdiction.”

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Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). The party challenging subject

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matter jurisdiction may assert a facial or a factual jurisdictional attack. Safe Air for
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Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, like the one

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here, the “challenger asserts that the allegations contained in [the] complaint are insufficient

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on their face to invoke federal jurisdiction.” Id.

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Only the Constitution and Congress can confer subject matter jurisdiction on a

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federal court. Opera Plaza Residential Parcel Homeowners Ass’n v. Hoang, 376 F.3d 831,

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837 (9th Cir. 2004); see also Lanza v. Ashcroft, 389 F.3d 917, 930 (9th Cir. 2004)

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(explaining that federal courts are courts of limited jurisdiction and “possess only that

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power authorized by Constitution and [Congress]”) (quotation omitted). The executive or

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its administrative agencies do not have the authority to confer jurisdiction on the courts.

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See Hoang, 376 F.3d at 837 (holding that a “regulation promulgated by an administrative

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agency such as the FCC cannot by itself, in the absence of congressional authorization,

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confer subject matter jurisdiction on federal courts”). Thus, to establish federal jurisdiction

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in the absence of constitutional authority, a party must rely on a federal statute. Id.

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Prior to 1990, Congress granted courts the statutory authority to review petitions

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for naturalization and to naturalize persons as citizens of the United States. 8 U.S.C. § 1421

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(1990). Through the Immigration Act of 1990 (“IMMACT”), Congress transferred all

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statutory authority to naturalize persons as citizens from the judiciary to the Attorney

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General. Immigration Act of 1990, Pub. L. No. 101-649, § 401, 104 Stat. 4978 (1990)

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(codified at 8 U.S.C § 1421(a)). Accordingly, IMMACT eliminated the judiciary’s

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naturalization authority present under the preceding naturalization system. Administrative

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Naturalization, 56 Fed. Reg. 50475-01, 50475 (Oct. 7, 1991). Under the new system,

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Congress vested in the Attorney General the sole authority to review applications for

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citizenship and to issue certificates of naturalization. Id. Congress also authorized the

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Attorney General to review pre-IMMACT, judicially ordered naturalizations. See

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Immigration Act of 1990, § 407 (codified at 8 U.S.C. § 1451(h)) (“Nothing contained in

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this section shall be regarded as limiting, denying, or restricting the power of the Attorney
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General to correct, reopen, alter, modify, or vacate an order naturalizing the person.”).
In response to IMMACT, the former Immigration and Naturalization Service

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(“INS”), now USCIS, updated its regulations to codify IMMACT’s transfer of

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naturalization authority from the judiciary to the executive. Administrative Naturalization,

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56 Fed. Reg. at 50475. Specifically, INS updated all regulations that referenced petitions

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for naturalization because “IMMACT specifically [provided] that no new petitions for

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naturalization may be filed under the judicial naturalization system after October 1, 1991.”

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Id. at 50475, 50478. INS also re-wrote 8 C.F.R. § 334.16 “to eliminate the concept of

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[judicial] petitioning used under the preceding” naturalization system. Id. at 50478.

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However, the amended version of § 334.16 maintained the courts’ ability to review and

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amend petitions for naturalization if the petition was still pending or if the court had

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previously taken final action on the petition. 8 C.F.R. § 334.16(a)-(b); see also Matter of

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Shrewsbury, 77 F.3d 490, 1996 WL 64988, at *1 (9th Cir. Feb. 12, 1996) (unpublished)

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(recognizing that courts had jurisdiction to amend pre-1991 naturalization orders).

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In 2011, USCIS repealed § 334.16 as obsolete and expired. See Immigration

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Benefits Business Transformation, 76 Fed. Reg. 53764, 53768-69 (Aug. 29, 2011)

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(effective Nov. 28, 2011). USCIS explained that § 334.16 was obsolete because it pertained

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to petitions for naturalization filed before IMMACT’s effective date. Id. at 53769. USCIS

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concluded those petitions were under the courts’ jurisdiction only until the IMMACT’s

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effective date of October 1, 1991. Id.

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Here, Tesfay bears the burden of establishing subject matter jurisdiction. Tesfay

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relies on § 334.16 to establish such jurisdiction. However, under IMMACT, Congress

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shifted the statutory authority to naturalize persons as citizens from the courts to the

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executive. Thus, although § 334.16 permitted courts to review and amend petitions for

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naturalization filed before IMMACT’s effective date, it could not grant courts jurisdiction

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to amend post-IMMACT certificates of naturalization. USCIS issued Tesfay his Certificate
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of Naturalization in 2009, after IMMACT’s transfer of jurisdiction over naturalization from

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the judiciary to the executive. Consequently, § 334.16 does not provide this Court with

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subject matter jurisdiction to amend Tesfay’s Certificate of Naturalization.

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B. Subject Matter Jurisdiction Under the APA

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Respondents argue this Court also lacks subject matter jurisdiction under the

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APA because Tesfay has failed to exhaust administrative remedies. Respondents argue

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Tesfay was required to first petition USCIS to correct his Certificate of Naturalization and

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his failure to do so means there is nothing for this Court to review under the APA. Tesfay

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replies that he was not required to pursue administrative remedies with USCIS because

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pursuing such remedies would be futile.

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Although the parties agree the Court has jurisdiction to review USCIS’s actions

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under the APA, federal courts have a continuing and “independent obligation to determine

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whether subject matter jurisdiction exists, even in the absence of a challenge from any

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party.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). There is no judicial review of

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agency actions in immigration proceedings under the APA. See Ardestani v. I.N.S., 502

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U.S. 129, 133 (1991) (stating that “Congress intended the provisions of the Immigration and

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Nationality Act . . . to supplant the APA in immigration proceedings” and thus,

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“immigration proceedings . . . are not governed by the APA”); see also Moreno v. Bureau

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of Citizenship & Immigration Servs., 185 F. App’x 688, 689 (9th Cir. 2006) (holding that

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the district court lacked subject matter jurisdiction under the APA to order Immigration

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Services to grant the petitioner’s application for a replacement alien registration card

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because the “Supreme Court has made it clear that the APA does not apply to immigration

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proceedings”). Accordingly, because “a petition to amend an immigration document falls

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within the context of an immigration proceeding,” judicial review of such a petition is not

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proper under the APA. Malineni v. USCIS, 2013 WL 466204, at *3 (E.D. Mich. Feb. 7,

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2013).
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Here, Tesfay cannot rely on the APA to establish subject matter jurisdiction

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because the APA does not apply to immigration proceedings and therefore, judicial review

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of agency action in the immigration context is improper under the APA. The APA does not

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afford this Court with the power to amend the birth date on Tesfay’s Certificate of

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Naturalization and Tesfay therefore has not met his burden of demonstrating this Court’s

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subject matter jurisdiction.

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III. CONCLUSION

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IT IS THEREFORE ORDERED that Petitioner Yetbarek Yohannes Tesfay’s
Motion for Order Amending Naturalization Certificate (Doc. #19) is hereby DENIED.
IT IS FURTHER ORDERED that Petitioner Yetbarek Yohannes Tesfay’s

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Petition to Amend Certificate of Naturalization (Doc. #1) is hereby DISMISSED for lack of

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subject matter jurisdiction.

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DATED: April 26, 2013
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PHILIP M. PRO
United States District Judge

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