Headley-Ombler v. Holder et al
Filing
28
DECISION AND ORDER: Defendants' 24 Motion to Dismiss is GRANTED. All claims against Defendants are dismissed with prejudice. The Clerk is directed to enter judgment for Defendants in accordance with this Decision and Order and to close the case. So Ordered by Judge William F. Kuntz, II on 12/5/2013. (c/m to pro se) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------){
ROGELIO E. HEADLEY-OMBLER,
Plaintiff,
DECISION AND ORDER
12-CV-2631 (WFK)(LB)
-againstERIC HOLDER, United States Attorney General,
JANET N APO LIT ANO, Secretary of Homeland
Security, and DIRECTOR of United States
Citizenship and Immigration Services of Buffalo,
and New York City District of New York,
Defendants.
---------------------------------------------------------------){
WILLIAM F. KUNTZ, II, United States District Judge
Rogelio E. Headley-Ombler ("Plaintiff') commenced this action against Eric Holder,
Attorney General of the United States, Janet Napolitano, the Secretary of Homeland Security,
and the Director of United States Citizenship and Immigration Services ("USCIS") 1 of Buffalo
and the New York City District of New York (collectively "Defendants"), seeking judicial
review of the denial of his Form N-600 application for a certificate of citizenship, pursuant to 8
U.S.C. § 142l(c), and a declaratory judgment of United States nationality, pursuant to 8 U.S.C. §
1503(a). Defendants move to dismiss Plaintiffs action pursuant to Federal Rules of Civil
Procedure 12(b)(l) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim
upon which relief may be granted, respectively. For the reasons stated below, the Court grants
Defendants' motion and dismisses this action with prejudice.
1 USCIS is a government agency with local offices across the world. About Us, U.S. CITIZENSHIP AND
IMMIGRATION SERVICES, www.uscis.gov/About_Us.
BACKGROUND
I.
Plaintiff's Personal Background
Plaintiff was born in Panama on September 6, 1970, and was admitted to the United
States as a lawful permanent resident in January 1981. Al 78. 2 On November 9, 1988-two
months after Plaintiffs eighteenth birthday-Plaintiffs mother became a naturalized citizen of
the United States. A3 l. According to Plaintiff, his mother's petition for naturalization was
"approved" prior to Plaintiffs eighteenth birthday. Dkt. No. 1 (Compl.) at 4. However, Plaintiff
asserts his mother was not scheduled for a naturalization ceremony until after Plaintiffs
eighteenth birthday. Id.
In 1991, Plaintiff was convicted of first-degree assault in New York state court and
sentenced to an imprisonment term of one-and-one-half to four-and-one-half years. Al25-30.
That conviction arose from an incident in which Plaintiff shot an individual in the groin.
Compl., Ex. 2 (Br. for Resp't, Headley-Ombler v. Holder, 131 S.Ct. 71 (2010) (No. 09-9804))
("AG Br.") at 5.
II.
The Removal Proceedings
Based on that conviction, , while Plaintiff wa~ serving his sentence, in April 1997, the
former Immigration and Naturalization Service ("INS") placed Plaintiff in removal proceedings
and charged him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of
an aggravated felony. A 179-81.
During removal proceedings before an Immigration Judge ("IJ"), Plaintiff claimed to
have derived citizenship through his mother's naturalization. Al54-55, Al62-63, Al 72-73.
The' IJ granted Plaintiff two continuances to give Plaintiff time to collect and present evidence
2
Citations to the administrative record of Plaintiffs immigration history, as maintained by the Department of
Homeland Security, USCIS, are denoted by reference to the Declaration of Assistant U.S. Attorney Margaret Kolbe,
paginated AOO I to A202.
2
substantiating his claim of citizenship. AG Br. at 6. Nevertheless, Plaintiff did not produce any
evidence supporting his claim of derivative citizenship. Id On July 7, 1998, the IJ ordered
Plaintiff removed from the United States, determining that he had failed to provide evidence of
derivative citizenship and that Plaintiff was not eligible for relief from removal. A139-45.
Plaintiff appealed to the Board of Immigration Appeals ("BIA"), again arguing that he derived
citizenship through his mother's naturalization. A136-37. On January 28, 1999, the BIA
dismissed Plaintiffs appeal, emphasizing Plaintiffs lack of evidence and noting the IJ's
"extraordinary amount of patience with [Plaintiff] in regard to" Plaintiffs derivative citizenship
defense. A136. The BIA also advised Plaintiff that ifhe obtained evidence of his derivative
citizenship, he could file a motion to reopen with the BIA. A 13 7.
On January 20, 2000, Plaintiff filed a petition for a writ of habeas corpus in the Southern
District of New York. Petition for Writ of Habeas Corpus, Headley v. Dep 't ofJustice, 00 Civ.
392 (S.D.N.Y. Jan. 20, 2000) (Hellerstein, J.), ECF No. 1. Plaintiff and the Government agreed
to a stipulated remand to the BIA to determine whether Plaintiff was eligible for relief under
former Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § l 182(c), in light of
JNSv. St. Cyr, 533 U.S. 289 (2001). Al31. On May 22, 2002, the BIA remanded Plaintiffs
case to the IJ. Al33-34. On December 12, 2002, the IJ found Plaintiff was ineligible for
Section 212(c) relief and ordered his removal from the United States. A84-85. On May 29,
2003, the BIA dismissed Plaintiffs appeal from the IJ's decision. Al 86-88. Plaintiff did not
make any citizenship claims in these later proceedings before the IJ or the BIA.
On May 18, 2009, Plaintiff filed a motion with the BIA to reopen his case and terminate
removal proceedings, again contending he had acquired derivative citizenship when his mother
became a naturalized citizen. A34-46. Plaintiff provided a certificate of naturalization showing
3
his mother had been naturalized on November 9, 1988, two months after Plaintiffs eighteenth
birthday. A48. Plaintiff argued the Government's administrative delay in processing his
mother's naturalization application, such that she was naturalized after he turned eighteen,
violated his due process and equal protection rights, and that the Government should be estopped
from denying his naturalization application. A40-43. On June 26, 2009, the BIA denied
Plaintiffs motion to reopen on timeliness grounds, noting Plaintiff had filed the motion six years
after the BIA's original decision. A83 (citing 8 C.F.R. § 1003.2(b)(2), (c)(2) (90-day filing
deadline)). Nor was the BIA, after considering Plaintiffs evidence and arguments, persuaded to
reopen or reconsider its earlier decision sua sponte. Id.
The Second Circuit denied Plaintiffs petition for review of the BIA's decision as lacking
"an arguable basis in law or fact." See AG Br. at 11. On November 30, 2009, Plaintiff filed a
petition for a writ of certiorari with the United States Supreme Court, which was placed on the
docket on March 25, 2010. Compl. at 30. In his brief opposing Plaintiffs petition, the Attorney
General noted that Plaintiff "is not precluded from applying to United States Citizenship and
Immigration Services for a certificate of citizenship." AG Br. at 19 n.7. The Supreme Court
ultimately denied Plaintiffs petition. See Headley-Ombler v. Holder, No. 09-9804, 131 S.Ct. 71
(Oct. 4, 2010).
III.
Plaintiff's Application for a Certificate of Citizenship
On March 21, 2011, Plaintiff filed a Form N-600 application for a certificate of
citizenship on the basis of derivative citizenship through his mother's naturalization. A22-31.
On August 25, 2011, USCIS denied Plaintiffs application, and Plaintiff acknowledged personal
service of the decision on October 14, 2011. Al 1-18. Plaintiff filed an appeal to the
Administrative Appeals Office ("AAO") on November 7, 2011, but the AAO did not receive the
4
appeal until November 15, 2011. A5, A19-21. On December 2, 2011, the AAO rejected
Plaintiff's appeal as untimely. A4-5. On December 28, 2011, USCIS determined that Plaintiff's
appeal, if construed as a motion to reopen, would be denied for failure to present new evidence
or demonstrate legal error. A 7-8.
IV.
Plaintiff's Removal and The Instant Action
On November 25, 2011, after Plaintiff completed his criminal sentence, U.S. Immigration
and Customs Enforcement ("ICE") took Plaintiff into custody in order to remove him from the
United States based on the IJ's July 7, 1998 order ofremoval and the BIA's May 29, 2003
dismissal of Plaintiff's appeal. A185. On January 5, 2012, Plaintiff filed the instant action in the
Southern District of New York. See Compl. The complaint claims the District Court has
jurisdiction, pursuant to 8 U.S.C. § 1421(c), to stay Plaintiff's removal and grant him citizenship.
Id. at3.
On January 25, 2012, Plaintiff was removed from the United States to Panama. Al-3.
On March 8, 2012, Chief Judge Preska of the Southern District ofNew York issued an order
construing this action as an action for declaratory judgment of nationality filed pursuant to 8
U.S.C. § 1503(a). Dkt. No. 5 ("Order Directing Affirmation") at 3--4. On May 24, 2012, Judge
Preska transferred this action to this Court based on her determination that venue was proper in
the Eastern District of New York. Dkt. No. 9 ("Transfer Order").
DISCUSSION
I.
Standard of Review
A. Motion to Dismiss Under Fed. R. Civ. P. 12(b)(l)
The Court must dismiss a claim for lack of subject matter jurisdiction under Rule
12(b)(l) when it "lacks the statutory or constitutional power to adjudicate it." Makarova v.
5
United States, 201F.3d110, 113 (2d Cir. 2000). "[J]urisdiction must be shown affirmatively,
and that showing is not made by drawing from the pleadings inferences favorable to the party
asserting it." Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). The party
asserting subject matter jurisdiction has the burden of proving its existence by a preponderance
of the evidence. Makarova, 201 F.3d at 113. In determining whether subject matter jurisdiction
exists, courts are permitted to look to materials outside the pleadings, including affidavits. JS.
ex rel. NS. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).
B. Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6)
In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court construes the
claims liberally, "accepting all factual allegations in the complaint as true, and drawing all
reasonable inferences in the plaintiffs favor." Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2002). To survive a motion to dismiss, each claim must set forth sufficient factual
allegations, accepted as true, "to state a claim to relief that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The Court need not credit "legal conclusions" in a claim, or
"threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678)
(internal quotations and alteration omitted).
When determining the sufficiency of a claim under Rule l 2(b)( 6), the Court may consider
only the allegations on the face of a pleading. Nevertheless, "[ d]ocuments that are attached to
the complaint or incorporated in it by reference are deemed part of the pleading and may be
considered." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). The Court may consider
documents outside of the pleading if the documents are integral to the pleading or subject to
judicial notice. Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 156 (2d Cir.
6
2006); see also Int'! Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.
1995) ("The complaint is deemed to include any written instrument attached to it as an exhibit or
any statements or documents incorporated in it by reference.") (internal editing omitted).
II.
Derivative Citizenship
Pursuant to Section 321 of the INA, codified at 8 U.S.C. § 1432, an individual born
abroad, to alien parents, who reached age eighteen before the enactment of the Child Citizenship
Act of2000 on February 27, 2001, 3 may derive United States citizenship through the
naturalization of a parent or parents where the following conditions have been met:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents
is deceased; or
(3) The naturalization of the parent having legal custody of the
child when there has been a legal separation of the parents or the
naturalization of the mother if the child was born out of wedlock and the
paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is under the
age of eighteen years; and
(5) Such child is residing in the United States pursuant to a lawful
admission for permanent residence at the time of the naturalization of the
parent last naturalized under clause ( 1) of this subsection, or the parent
naturalized under clause (2) or (3) of this subsection, or thereafter begins
to reside permanently in the United States while under the age of eighteen
years.
8 U.S.C. § 1432(a), repealed by Child Citizenship Act of2000, Pub. L. 106-395, 114 Stat. 1632.
3
Congress enacted the Child Citizenship Act of2000 to "streamline automatic citizenship for children born abroad
... at least one of whose parents subsequently naturalized as a United States citizen." In re Rodriguez-Tejedor, 23 I.
& N. Dec. 153, 156-57 (BIA 2001) (quoting H.R. Rep. No. 106-852, at 4 (2000)) (internal quotation marks
omitted). The Act repealed 8 U.S.C. § 1432 and replaced 8 U.S.C. § 1431 with "a more generous provision." Id at
156. The revised provisions do not apply to Petitioner because he was over the age of eighteen when the Act took
effect. Id at 163 ("[l]fan individual ... is over 18 years of age during the validity of the statute now in effect
[which entered into effect on February 27, 2001], he cannot meet the material conditions for automatic
citizenship.").
7
III.
Pathways to Claim Derivative Citizenship
An alien generally may assert a derivative citizenship claim in two ways. First, if the
alien is in removal proceedings, he can claim citizenship as a defense. See Henry v. Quarantillo,
684 F. Supp. 2d 298, 302 (E.D.N.Y. 2010) (Trager, J.), ajj"d, 414 F. App'x 363 (2d Cir. 2011).
If the IJ rejects the defense and orders removal, the alien may, after properly exhausting
administrative remedies, file a petition for review of the citizenship claim "with the court of
appeals for the judicial circuit in which the immigration judge completed the proceedings." 8
u.s.c. § 1252(b)(2).
Alternatively, an alien "may proceed administratively by filing an N-600 application with
USCIS and then may appeal any negative decision to the AAO." Henry, 684 F. Supp. 2d at 302.
"If the application is denied and all administrative appeals exhausted, the applicant may seek
judicial review in a district court" pursuant to 8 U.S.C. § 1503(a). Boyd v. Immigration &
Customs Enforcement, 344 F. Supp. 2d 869, 872 (E.D.N.Y. 2004) (Gershon, J.) (citing 8 U.S.C.
§ 1503).
Section 1503(a) of Title 8 vests a district court with jurisdiction to grant a
declaration of citizenship to any person who claims a right or privilege as a
national of the United States and is denied such right or privilege by any
department or independent agency upon the ground that he is not a national of the
United States, except if the issue of such person's status as a national of the
United States (I) arose by reason of, or in connection with any removal
proceeding or (2) is in issue in any such removal proceeding.
Wilks v. Farquharson, 450 F. App'x 1, 2 (2d Cir. 2011) (internal quotation marks and editing
omitted).
In this case, Plaintiff filed his complaint pursuant to 8 U.S.C. § 142l(c). Section 1421(c)
is the provision providing for judicial review where "an application for naturalization under this
subchapter is denied." 8 U.S.C. § 1421(c). Plaintiff seeks review of denial of an application for
8
a certificate of citizenship, not an application for naturalization. Therefore, despite Plaintiffs
citation, Section 1421(c) does not apply. See Dkt. No. 5 ("Order Directing Affirmation") at 3.
Furthermore, because Plaintiffs application was not filed as a defense to a removal proceeding,
Section 1252(b)(5) also does not apply. However, though not specifically invoked by Plaintiff, 8
U.S.C. § 1503(a) potentially provides the Court with jurisdiction over this matter. See id. at 3
(construing Plaintiffs complaint as an action for declaratory judgment of nationality filed
pursuant to 8 U.S.C. § 1503(a)). At issue is whether Plaintiffs declaratory judgment action is
precluded by the first jurisdictional exception to Section 1503(a) relief, triggered where a
plaintiffs citizenship status "arose by reason of, or in connection with any removal proceeding."
8 U.S.C. § 1503(a)(l). The second jurisdictional exception-where a plaintiffs status as a
citizen is "in issue in any such removal proceeding"--does not apply here because Plaintiffs
status is not currently in issue in a pending removal proceeding. See Rios-Valenzuela v. Dep 't of
Homeland Sec., 506 F.3d 393, 397-98 (5th Cir. 2007).
IV.
The Court Lacks Subject Matter Jurisdiction Over Plaintiff's Declaratory
Judgment Action
A. The Plain Meaning of Section 1503(a)
Defendants argue Plaintiff is barred from bringing this declaratory judgment action
because "the issue of Plaintiffs nationality status 'arose by reason of and 'in connection with' a
removal proceeding, and was, in fact, 'in issue' in such proceeding." Defs.' Mem. of Law in
Supp. of Defs.' Mot. to Dismiss ("Defs.' Br.") at 6. Specifically, Defendants point out that
Plaintiff claimed derivative citizenship through his mother as a defense to the removal
proceedings that concluded with the IJ' s July 7, 1998 order of removal and the BIA' s January 28,
1999 dismissal of Plaintiffs appeal. Although Plaintiff did not claim derivative citizenship in
his 2000 habeas petition or the ensuing immigration court proceedings in 2002 and 2003,
9
Plaintiff did raise the same argument when he filed a motion with the BIA in 2009 to reopen his
case-a motion that was later denied by the BIA and led to a denial of certiorari by the Supreme
Court. Defendants contend "the mere fact that plaintiff had the opportunity to litigate his
nationality claim in a removal proceeding" should trigger the first jurisdictional exception of
Section 1503(a), precluding Plaintiff from bringing the present action. Defs.' Br. at 7.
Neither the Supreme Court nor the Second Circuit has addressed whether Section
1503(a)'s first jurisdictional exception, which bars an action for a declaration of citizenship
where "the issue of such person's status as a national of the United States arose by reason of, or
in connection with any removal proceeding," precludes an action such as the one at issue here. 8
U.S.C. § 1503(a)(l). For the reasons that follow, this Court concludes that it lacks subject matter
jurisdiction over Plaintiffs declaratory judgment action.
The Court's conclusion begins with the plain meaning of 8 U.S.C. § 1503(a). "Statutory
analysis necessarily begins with the plain meaning of a law's text and, absent ambiguity, will
generally end there." United States v. Shellef, 718 F.3d 94, 102 (2d Cir. 2013) (citations
omitted). "In conducting such an analysis, [the court will] review the statutory text, considering
the ordinary or natural meaning of the words chosen by Congress, as well as the placement and
purpose of those words in the statutory scheme." Cruz-Miguel v. Holder, 650 F.3d 189, 195 (2d
Cir. 2011) (citations omitted). The statute's structure also matters, for the "meaning of a word or
phrase cannot be determined in isolation, but must be drawn from the context in which it is
used." In re Sept. 11 Prop. Damage Litig., 650 F.3d 145, 155 (2d Cir. 2011) (citations and
internal editing omitted).
The plain meaning of 8 U.S.C. § 1503(a) is clear. An alien who has raised a nationality
claim in a past or pending removal proceeding is barred from bringing a declaratory judgment
10
action under Section 1503(a). The second jurisdictional exception applies to pending removal
proceedings. "By its plain language,§ 1503(a)(2) bars a district court from reviewing an
administrative decision denying a non-citizen's claim of citizenship if the question of that
person's nationality is 'in issue' in a pending removal proceeding." Wilks, 450 F. App'x at 3
(district court had no jurisdiction to hear declaratory judgment action brought while removal
proceedings were ongoing); see also Rios-Valenzuela, 506 F.3d at 397 ("a purported citizen may
not initiate or begin a declaratory judgment action to establish his citizenship if it is already
being litigated in a removal proceeding"). Hence, an alien who raises a citizenship defense
during removal proceedings, files an N-600 application for citizenship, and receives an adverse
decision from the USCIS and AAO, is prohibited from bringing a Section 1503(a) action while
removal proceedings are still pending.
The first jurisdictional exception, which prohibits a Section 1503(a) action where an
individual's "status as a national of the United States ... arose by reason of, or in connection
with any removal proceeding," applies to removal proceedings that have already concluded. 8
U.S.C. § 1503(a)(l); see Rios-Valenzuela, 506 F.3d at 398 ("If the exceptions apply only while a
removal proceeding is still pending, then the first exception would be superfluous since the
second exception covers instances where the removal proceeding is still pending. The past tense
'arose' used in the first exception also indicates that this provision applies to concluded removal
proceedings.") (quoting Saidv. Eddy, 87 F. Supp. 2d 937, 941 (D. Alaska 2000) (Holland, J.)).
4
The issue here is when the issue of nationality "[arises] by reason of, or in connection with any
removal proceeding." 8 U.S.C. § 1503(a)(l). In this Court's view, the inquiry is
4
In light of this straightforward interpretation, the Fifth Circuit's statement in Rios-Valenzuela that "once removal
proceedings have run their full course and terminated, any future citizenship claim would not arise in those removal
proceedings" is confusing and internally inconsistent. 506 F.3d at 399. The hypothetical situation described by the
Rios-Valenzuela court is precisely the situation contemplated by the first jurisdictional exception.
11
straightforward-if an alien has previously raised nationality as a defense during removal
proceedings, that alien is then barred from later bringing a Section 1503(a) claim, because "the
issue of such person's status as a national of the United States" will have necessarily arisen "by
reason of' or "in connection with" the past removal proceedings, no matter how long ago those
proceedings terminated. Id.
Section l 503(a) does not define the phrases "arose," "by reason of," or "in connection
with." Where there is no statutory definition of a term, the Court must "give it its ordinary
meaning." United States v. Santos, 553 U.S. 507, 511 (2008). Although federal courts have not
endeavored to define these terms in the context of this statute, the courts have recognized their
ordinary meanings in the context of other statutes. To "arise" is defined as "to come into being,"
"to come about," "to become apparent in such a way as to demand attention," "to come into being
or notice." TRW Inc. v. Andrews, 534 U.S. 19, 32 (2001) (citing Webster's Third New
International Dictionary 117 (1966) and Black's Law Dictionary 138 (rev. 4th ed. 1968)). "By
reason of' simply means "because of." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009)
(quoting 1 Webster's Third New International Dictionary 194 (1966)). The phrase "in connection
with," by contrast, has a broader meaning and does not imply a causal connection. Empire
HealthChoice Assur. Inc. v. McVeigh, 396 F.3d 136, 157 (2d Cir. 2005); see also United States v.
Loney, 219 F.3d 281, 284 (3d Cir. 2000) ("in connection with" denotes a "wide range of
•
relationships"); United States v. Wyatt, 102 F .3d 241, 24 7 (7th Cir. 1996) ("the meaning of the
phrase 'in connection with' should be construed expansively"); United States v. Thompson, 32
F.3d 1, 7 (1st Cir. 1994) ("[T]he phrase 'in connection with' should be interpreted broadly .... ").
Taking these definitions together, the phrase "arose by reason of, or in connection with
any removal proceeding" erects a strict jurisdictional bar to a Section l 503(a) action whenever
12
an alien has raised a nationality defense during removal proceedings. For instance, if an alien
were to bring a Section 1503(a) action one week after a final administrative order of removal,
following proceedings wherein that alien raised a nationality defense, the issue of that alien's
status as a national would clearly have come about "by reason of' the past removal proceedings.
In such a scenario, the Section 1503(a) action would be a naked attempt to relitigate the
citizenship issue, triggered by the administrative removal order. Likewise, had several years
passed in the hypothetical above, the alien would still be barred from bringing a Section 1503(a)
action because the nationality issue previously arose "in connection with" the past removal
proceedings, a broad phrase that precludes even Section 1503(a) actions not brought to directly
or immediately challenge a past removal order. Therefore, an alien who raises the issue of
citizenship during removal proceedings, whether those removal proceedings are pending or
terminated, is barred from later bringing a Section 1503(a) declaratory judgment action,
regardless of how much time has passed between any conclusion ofremoval proceedings and the
initiation of the Section 1503(a) action. Accordingly, the Court lacks jurisdiction over Plaintiffs
Section 1503(a) action because he had raised derivative citizenship as a defense during the
removal proceedings that terminated in May 2003.
B. Interpretations of Other Courts
Several courts have raised concerns that this reading of Section 1503(a)'s jurisdictional
bar would unduly restrict a plaintiffs right to pursue a citizenship claim. In particular, the late
Judge Trager of the Eastern District of New York held in Henry v. Quarantillo that this reading
would go "too far in restricting removed persons from ever having a further opportunity to
present their claims to eligibility for the 'most precious right' of United States citizenship," as it
"would mean that a plaintiff would be forever foreclosed from bringing a § 1503(a) action, even
13
after his removal proceedings had terminated, if his citizenship was put in issue in those removal
proceedings." Henry, 684 F. Supp. 2d at 303-04 (quoting Kennedy v. Mendoza-Martinez, 372
U.S. 144, 159 (1963)); see also Rios-Valenzuela, 506 F.3d at 399 ("[W]e do not read the
exception as forever hanging an albatross around the neck of those who first raise citizenship as a
defense in a removal proceeding."); Anees, 2013 WL 5366070, at *3 (it would be an "absurd
result" to "forever restrict[] an additional application for citizenship once an initial removal
proceeding terminated") (citing Henry, 684 F. Supp. 2d at 304).
Instead, Judge Trager concluded "there is a delicate balance to determining when a§
1503(a) claim to citizenship, made after citizenship was placed in issue in removal proceedings,
is far enough removed from those proceedings so as not to have arisen 'in connection with'
them." Henry, 684 F. Supp. 2d. at 304. In arriving at this standard, Judge Trager cited a Fifth
Circuit decision, which stated in dicta that "[s]o long as a citizenship claim finds its genesis
outside of the context ofremoval proceedings, the exception is no bar to jurisdiction; thus, for
example, once removal proceedings have run their full course and terminated, any future
citizenship claim would not arise in those removal proceedings." Id. (quoting Rios-Valenzuela v.
Dep 't of Homeland Sec., 506 F.3d 393, 399 (5th Cir. 2007)). In addition, Judge Trager relied on
dicta from Said v. Eddy, see id. at 304-05, where the district court rejected a Section 1503(a)
action because it was based directly on the plaintiffs terminated removal proceedings, see Said,
87 F. Supp. 2d at 941. However, the Said court noted that a future action was possible: "When
and if plaintiff is at some future time denied a right or privilege of a United States national by a
department, agency, or official of the United States, she will be entitled to bring an action as
authorized by Section 1503; and the interposition of such other federal action will take plaintiffs
case out of exception (1) to subsection 1503(a)." 87 F. Supp. 2d at 943.
14
Relying on these statements by the Fifth Circuit and the District of Alaska, Judge Trager
held the plaintiff in Henry was not barred from bringing his declaratory judgment action because
"after [the plaintiff's] removal, he alleged a new, independent denial of a right or privilege of
nationality that forms the basis of his current§ 1503(a) action." 684 F. Supp. 2d at 305.
Specifically, Judge Trager held that because the plaintiff filed his second N-600 application,
"well after removal proceedings had terminated, and because its denial constitutes the type of
federal action that may form the basis of a§ 1503(a) claim, denial of this N-600 serves as 'the
interposition of such other federal action' that 'take[s] plaintiff's case out of exception (1) to
subsection 1503(a). "' Id. (quoting Said, 87 F. Supp. 2d at 943). As such, Judge Trager found he
had subject matter jurisdiction to consider the plaintiff's derivative citizenship claim and then
proceeded to the merits of that claim. Id.
This Court respectfully disagrees with the reasoning of Henry and the authority cited
therein. Citizenship is indeed "a most precious right." Kennedy, 372 U.S.at 159. However,
Congress has nearly plenary power to control the means by which aliens obtain citizenship, and
the Court is not at liberty to stray from the plain meaning of duly enacted immigration statutes.
U.S. Const. art. I, § 8 ("The Congress shall have power ... [t]o establish an uniform Rule of
Naturalization."); Fiallo v. Bell, 430 U.S. 787, 792 (1977) ("This Court has repeatedly
emphasized that 'over no conceivable subject is the legislative power of Congress more complete
than it is over' the admission of aliens."). As explained below, the Court's interpretation of
Section 1503(a) is consistent with the statutory framework erected by Congress while preserving
an alien's right to seek a judicial determination of his or her nationality.
15
Congress has enacted a statutory framework that carefully delineates when and how an
alien may challenge removal proceedings and assert claims of citizenship. As the Seventh
Circuit explained in Ortega v. Holder:
[Section 1503(a)'s jurisdictional exceptions] are designed to protect removal
proceedings from judicial interference and preserve 8 U.S.C. § 1252 as the
exclusive means of challenging a final order of removal. A party may not
frustrate the Government's effort to remove him by instituting an action under 8
U.S.C. § 1503(a) while proceedings are ongoing. Similarly, a party may not use §
1503(a) to frustrate Congress's effort to channel all appeals from removal
proceedings-including those in which the alien raised claims of nationalitythrough 8 U.S.C. § 1252.
592 F.3d 738, 743-44 (7th Cir. 2010). This Court will not subvert Congress's clearly expressed
will that removal proceedings may only be challenged through appeal under 8 U.S.C. § 1252.
Furthermore, this Court's interpretation of Section 1503(a) does not undermine an alien's
ability to obtain a judicial determination of the nationality issue. "Congress established a
specific procedure for reviewing claims of nationality raised in the context of removal
proceedings." Ortega, 592 F.3d at 744. Under 8 U.S.C. § 1252(b)(2), if an IJ rejects an alien's
citizenship defense and orders removal, the alien may, after properly exhausting administrative
remedies, file a petition for review of the citizenship claim "with the court of appeals for the
judicial circuit in which the immigration judge completed the proceedings." 8 U.S.C. §
1252(b)(2). "If the petitioner claims to be a national of the United States and the court of appeals
finds from the pleadings and affidavits that no genuine issue of material fact about the
petitioner's nationality is presented, the court shall decide the nationality claim." Id. at§
1252(b)(5)(A). If the court of appeals instead finds that a "genuine issue of material fact about
the petitioner's nationality is presented," the court will "transfer the proceeding to the district
court of the United States for the judicial district in which the petitioner resides for a new hearing
on the nationality claim and a decision on that claim as if an action had been brought in the
16
district court under section 2201 of Title 28." Id. at§ 1252(b)(5)(B). "Thus, an individual
whose claim of nationality is rejected in the context of removal proceedings, and whose claim
also involves a genuine and material factual dispute, is provided the same mechanism for redress
set forth in 8 U.S.C. § 1503(a)-a declaratory judgment action." Ortega, 592 F.3d at 744.
Therefore, as the Seventh Circuit concluded in Ortega, "ifthe question of nationality first arises
in the context of a removal proceeding, the person must pursue his claims through those
proceedings, culminating either with a declaration or denial of nationality." Id.
In any event, even under the reasoning of Henry, Rios-Valenzuela, and Said, Plaintiffs
nationality claim arose by reason of or in connection with his long-since terminated removal
proceedings. According to the Rios-Valenzuela court, it is "the context of how the particular
issue of citizenship arose rather than the mere timing of events that determines the applicability
of§ 1503(a)(l )." 506 F.3d at 398. When Plaintiff filed the Form N-600 application on March
21, 2011, he was still incarcerated and had not yet been removed. His application came on the
heels of a failed attempt to reopen his case and terminate removal proceedings. That application
was denied by USCIS on August 25, 2011. Plaintiff filed the instant action on January 5, 2012,
just days after the failure of his administrative appeal and while Plaintiff was being held in ICE
custody in preparation for his removal. His complaint raises the same evidence and arguments
considered by the IJ, the BIA, the USCIS, and the AAO. Under these circumstances, there can
be no doubt that Plaintiffs Section 1503(a) action was a last-ditch attempt to forestall removal,
and the citizenship claim asserted therein thus directly arose "by reason of' and "in connection
with" the past removal proceedings. Therefore, the Court lacks jurisdiction over Plaintiffs
Section 1503(a) action, even under the reasoning of the Henry, Rios-Valenzuela, and Said courts.
17
CONCLUSION
For the reasons stated above, Defendants' motion to dismiss is GRANTED. All claims
against Defendants are dismissed with prejudice. The Clerk is directed to enter judgment for
Defendants in accordance with this Decision and Order and to close the case.
SO ORDERED
Dated:
Brooklyn, New York
December 5, 2013
s/William F. Kuntz, II
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United States District J
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