Alzokari et al v. Mayorkas et al

Filing 36

MEMORANDUM and ORDER: The Defendants motion 33 to dismiss the Plaintiffs claims is granted. The Clerk is directed to enter judgment accordingly. Ordered by Judge Frederic Block on 11/26/2024. (MI)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ETAB SHARAF MOHAMED ALZOKARI; KAID
NAGIP ZOKARI; AMAL ALZEWKERI
REDHEWAN; FAYIZ NAGIP ZOKARI,
MEMORANDUM
AND ORDER
Case No. 22-CV-294

Plaintiffs,
-againstALEJANDRO MAYORKAS, Secretary of United
States Department of Homeland Security; UNITED
STATES DEPARTMENT OF HOMELAND
SECURITY; UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES; UR JADDOU,
Director of United States Citizenship and
Immigration Services; KATHY A. BARAN,
Director, California Service Center, United States
Citizenship and Immigration Services; KIRT
THOMPSON, Director, Texas Service Center,
United States Citizenship and Immigration
Services; UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES LONG ISLAND
FIELD OFFICE; ELIZABETH MILLER, Field
Office Director, Long Island Field Office, United
States Citizenship and Immigration Services;
UNITED STATES DEPARTMENT OF STATE;
NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION; NATIONAL PERSONNEL
RECORDS CENTER,
Defendants.
For the Plaintiffs:
JULIE A. GOLDBERG
Goldberg & Associates, P.C.
5586 Broadway, Third Floor
Bronx, NY 10463

For the Defendants:
CHRISTOPHER D. VOLPE
U.S. Attorney’s Office, E.D.N.Y.
271 Cadman Plaza East
Brooklyn, NY 11201
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BLOCK, Senior District Judge:
Plaintiffs Etab Shafaf Mohamed Alzokari (“Etab”), Kaid Nagip Zokari
(“Kaid”), Amal Alzewkeri Redhewan (“Amal”), and Fayiz Nagip Zokari (“Fayiz”)
(collectively, “Plaintiffs”) bring this action against Defendants Alejandro
Mayorkas, Secretary of Department of Homeland Security; U.S. Department of
Homeland Security (“DHS”); U.S. Citizenship and Immigration Services
(“USCIS”); Ur Jaddou, Director of USCIS; Kathy A. Baran, Director, USCIS
California Service Center; Kirt Thompson, Director, USCIS Texas Service Center;
USCIS Long Island Field Office; Elizabeth Miller, Director, USCIS Long Island
Field Office; United States Department of State (“DOS”); National Archives and
Records Administration (“NARA”); and National Personnel Records Center
(collectively, “Defendants”), alleging violations of the U.S. Constitution,
Administrative Procedure Act (“APA”), 5 U.S.C. § 706 et seq., and Immigration
and Nationality Act, 8 U.S.C. § 1503 (“Section 1503”), and seeking declaratory
and injunctive relief. In particular, Plaintiffs ask the Court to declare
unconstitutional Section 1503 of the Immigration and Nationality Act, to vacate
Defendants’ refusal of Plaintiffs’ citizenship applications pursuant to the APA, to
mandate that Defendants fairly adjudicate Plaintiffs’ applications, and to declare
Plaintiffs Kaid and Fayiz citizens.

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Defendants move pursuant to Federal Rules of Civil Procedure 12(b)(1) and
(6) to dismiss Plaintiffs’ Amended Complaint for lack of subject matter jurisdiction
over the APA and Section 1503 allegations, and for failing to state constitutional
claims. For the following reasons, Defendants’ motion is GRANTED.
Background
Plaintiffs Kaid and Fayiz are Yemeni nationals and lawful permanent
residents of the United States. They are brothers, and each claim U.S. citizenship
status derived from their now-deceased father Nagip Ayedh Zokari (“Nagip”). Kaid
and Fayiz, who are currently in removal proceedings, have argued that prior to
their births, Nagip became a naturalized citizen by residing in the U.S. for more
than 10 years.
DHS began removal proceedings after Immigrations and Customs
Enforcement (“ICE”) officers arrested both Kaid and Fayiz, on December 6, 2016.
DHS alleged that the brothers were not citizens of the U.S. and had been convicted
of conspiracy to commit food stamp fraud in the Eastern District of New York,1
thus subjecting them to removal.
In March 2017, both Kaid and Fayiz moved to terminate the removal
proceedings, arguing that they were U.S. citizens. On February 12, 2018, an

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See United States of America v. Fayiz Alzokari, No. 11-CR-258-1 (E.D.N.Y. July 31, 2012);
United States of America v. Kaid Alzokari, No. 11-CR-258-3 (E.D.N.Y. July 31, 2012).

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Immigration Judge denied these motions. The brothers each filed an interlocutory
appeal of this decision. On May 16, 2018, the Board of Immigration Appeals
(“BIA”) declined to hear these interlocutory appeals, noting that the brothers each
would have an opportunity to appeal the Immigration Judge’s final determinations.
These removal proceedings are still ongoing.
Also in March 2017, while these proceedings were underway, Kaid and
Fayiz each filed a Form N-600, Application for Citizenship (“Form N-600
Application”). USCIS denied Kaid’s Form N-600 Application in July 2019, and
denied Fayiz’s in September 2019. Each moved for reconsideration. On Dec. 31,
2019, USCIS denied both motions.
On March 23, 2020, Amal filed an I-130 Petition for Alien Relative (“I-130
Petition”) on behalf of her husband, Fayiz. On March 30, 2020, Etab also filed an
I-130 Petition on behalf of her husband, Kaid. USCIS approved Etab’s I-130
Petition on May 31, 2022, and Amal’s on June 1, 2022.
12(b)(1) Motion
Defendants have moved to dismiss Plaintiffs’ claims under the APA and
Section 1503 for lack of subject matter jurisdiction pursuant to Federal Rule of
Civil Procedure 12(b)(1).
In reviewing a 12(b)(1) motion to dismiss, the Court must “draw all
inferences in favor of Plaintiffs, [who] must prove by a preponderance of the
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evidence that subject matter jurisdiction exists.” Nouritajer v. Jaddou, 18 F. 4th 85,
88 (2d Cir. 2021). In resolving such a motion “a district court . . . may refer to
evidence outside the pleadings.” Makarova v. United States, 201 F.3d 110, 113 (2d
Cir. 2000) (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d
Cir.1986)).
Section 1503 provides that “no action may be instituted in any case if the
issue of [a] person’s status as a national of the United States (1) arose by reason of,
or in connection with any removal proceeding under the provisions of this chapter
or any other act, or (2) is in issue in any such removal proceeding.” 8 U.S.C. §
1503(a). “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 v. Farquharson, 450 Fed. App’x 1, 2 (2d Cir. 2011) (summary order); see
also Headley-Ombler v. Holder, 985 F. Supp. 2d 379, 386 (E.D.N.Y. 2013) (“The
plain meaning of 8 U.S.C. § 1503(a) is clear. A[ non-citizen] who has raised a
nationality claim in a past or pending removal proceeding is barred from bringing a
declaratory judgment action under Section 1503(a).”); Ortega v. Holder, 592 F.3d
738, 743 (7th Cir. 2010) (“[T]he exceptions set forth in subsections (a)(2) and
(a)(1) are designed to protect removal proceedings from judicial interference and

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preserve 8 U.S.C. § 1252 as the exclusive means of challenging a final order of
removal.”).
There is no question that the citizenship of Kaid and Fayiz is “in issue” in an
ongoing removal proceeding. Each raised the citizenship issue in his respective
removal proceeding, and then each appealed the Immigration Judge’s refusal to
terminate his removal proceeding on that basis. The BIA denied these interlocutory
appeals, noting that each brother “will, if he so desires, have an opportunity for
appellate review of the Immigration Judge’s determinations if he is subject to an
adverse order at the conclusion of the Immigration Court proceedings.” See BIA
Decision on Fayiz’s Interlocutory Appeal, ECF No. 33-5; BIA Decision on Kaid’s
Interlocutory Appeal, ECF No. 33-11. By the plain language of Section 1503, the
Court is thus without jurisdiction concerning Plaintiffs’ claims under that statute.
For largely the same reasons, the Court lacks jurisdiction over Plaintiffs’
APA claims. Review under the APA is not available “to the extent that . . . statutes
preclude judicial review.” 5 U.S.C. § 701. Plaintiffs argue the Court nevertheless
may hear their APA claims because Section 1503(a) does not so preclude judicial
review. As explained above, this is not so. The plain language of Section 1503 does
expressly prohibit Plaintiffs from bringing an action in the present circumstances,
where “status as a national . . . is in issue in [a] removal proceeding.” 8 U.S.C. §
1503. The APA cannot provide a jurisdictional hook where the underlying statute
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precludes review. See, e.g., Dussard v. United States, No. 13-CV-4378, 2014 WL
1570212, at *2–3 (S.D.N.Y. Apr. 17, 2014) (citing Ortega, 592 F.3d at 743)
(finding judicial review under the APA unavailable due to Section 1503’s
jurisdictional exceptions).
Additionally, the APA limits judicial review to circumstances in which
“there is no other adequate remedy in a court.” 5 U.S.C. § 704. Here, there are
alternative remedies for Plaintiffs to obtain review of USCIS’s denial of the Form
N-600 Applications that Kaid and Fayiz made during the pendency of their
removal proceedings. For instance, Kaid and Fayiz may appeal the final denial of a
derivative citizenship defense in a removal proceeding to a circuit court. See 8
U.S.C. § 1252(b); see also Mata v. Lynch, 576 U.S. 143, 147 (2015) (noting that an
unfavorable BIA decision may be appealed to a circuit court, as “[t]he INA . . .
gives the courts of appeal jurisdiction to review ‘final order[s] of removal’”
(quoting 8 U.S.C. 1252(a)(1))). At that point the circuit court may itself decide the
nationality claim if there are no genuine issues of material fact in dispute, or, if
there are, transfer the proceeding to a U.S. district court “for a new hearing and a
decision on that claim[.]” 8 U.S.C. § 1252(b)(5)(A)–(B).
Thus, the Court is without jurisdiction over Plaintiffs’ claims under Section
1503 and the APA.

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12(b)(6) Motion
The Plaintiffs have also made constitutional claims, alleging violations of
procedural due process under the Fifth Amendment, the right to petition under the
First Amendment, and separation of powers. Defendants have moved to dismiss
these allegations for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6).
On a Rule 12(b)(6) motion, the Court assumes the complaint’s factual
allegations, but not legal conclusions, to be true. See Pension Ben. Guar. Corp. ex
rel. St. Vincent Cath. Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc.,
712 F.3d 705, 717 (2d Cir. 2013). To survive, the complaint must include sufficient
facts to state a claim to relief that is facially plausible, see Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007), i.e., the plaintiff must plead “factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
Court may also consider any documents attached to the Complaint, see Carlin v.
Davidson Fink LLP, 852 F.3d 207, 212 (2d Cir. 2017), and materials of which
judicial notice may be taken, see Samuels v. Air Transp. Loc. 504, 992 F.2d 12, 15
(2d Cir. 1993).

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Fifth Amendment Claim
The crux of Plaintiffs’ Fifth Amendment claim is that Defendants have
subjected Kaid and Fayiz to a hearing before “illegitimate” decisionmakers—the
Immigration Judge and BIA—that lack authority to decide their citizenship claims.
Plaintiffs complain of a due process violation in that they “are required by
[Section] 1503(a) [to] proceed through the entire removal proceedings process
before they can present their citizenship claim to a court with the authority to hear
their claims.” Am. Comp. ¶ 152, ECF No. 20.
“To establish a violation of due process, a[ non-citizen] must show that she
was denied a full and fair opportunity to present her claims or that the IJ or BIA
otherwise deprived her of fundamental fairness.” Burger v. Gonzales, 498 F.3d 131,
134 (2d Cir. 2007) (internal quotations omitted). The Plaintiffs’ allegations recount
the repeated opportunities Kaid and Fayiz have had to be heard on the issue of their
citizenship before both the Immigration Judge and BIA. See, e.g., Am. Comp. ¶¶
97–100. Plaintiffs will also have the chance to further appeal a final determination
of the Immigration Judge and BIA in the removal proceeding to the Second
Circuit. See 8 U.S.C. § 1252(b)(5)(A)–(B). That the Plaintiffs must complete an
administrative proceeding before obtaining judicial review does not render the
administrative decisionmakers illegitimate or the process unconstitutional. See
United States v. Johnson, 391 F.3d 67, 73 (2d Cir. 2004) (rejecting constitutional
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challenge to INA provisions and explaining the administrative “exhaustion
requirement does not, after all, foreclose or even limit judicial review; the statute
merely requires a[ non-citizen] to pursue his due process objections through the
administrative process before seeking judicial review”).
Plaintiffs have also alleged a procedural due process violation arising from
the Defendants’ failure to produce full copies of all administrative files, and to
instead require them to seek certain records via the Freedom of Information Act.
Plaintiffs assert that “Defendants[’] requirement that Plaintiffs and all Respondents
in removal proceedings file FOIA requests in order to obtain records normally
obtained through civil discovery greatly prejudices Respondents and greatly
heightens the possibility for mistakes in the proceedings.” Am. Comp. ¶ 151.
However, this fails to state a claim, as procedural due process requires notice and
opportunity to be heard, but does not require Plaintiffs be afforded the full breadth
of civil discovery. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (explaining
there is no general constitutional right to discovery); see also Young v. Holder, 462
Fed. App’x 626, 628 (7th Cir. 2012) (noting “the Constitution does not create an
entitlement to discovery” in removal context).
First Amendment Claim
The Plaintiffs next allege that Section 1503 unconstitutionally impinges their
First Amendment right to petition the government by requiring them “to present
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their ‘claim’ ‘against the United States’ to the executive department rather than the
judiciary[.]” Am. Comp. ¶ 175. Plaintiffs’ contentions on this score largely repeat
the allegations purporting to support their Fifth Amendment claim objecting to the
statutory requirement that Plaintiffs proceed before the Immigration Judge and BIA
before they may obtain judicial review. See Am. Comp. ¶¶ 172–77.
A person’s First Amendment petitioning right is violated “where government
officials obstruct legitimate efforts to seek judicial redress.” Friedman v.
Bloomberg, L.P., 884 F.3d 83, 90 (2d Cir. 2017). Plaintiffs have not alleged that the
Defendants have engaged in such obstruction. The Amended Complaint itself
recounts Plaintiffs’ active pursuit of redress in proceedings before the Immigration
Judge and BIA, whose decisions are appealable to the judiciary. See Am. Comp. ¶
152. Plaintiffs’ inability to immediately bring a cause of action to the district court
while removal proceedings are pending under Section 1503 on account of its
jurisdictional limitations does not suffice to make out a violation of their right to
petition. See City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 397 (2d Cir.
2008) (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002) (“The right to
petition exists in the presence of an underlying cause of action and is not violated
by a statute that . . . curtails a category of causes of action.”).

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Separation of Powers Claim
Plaintiffs finally allege that by requiring Plaintiffs to present their claims
“before [an] agency rather than the judiciary, Section 1503 violates the separation
of powers by subverting judicial authority and power.” Am Comp. ¶ 183. Plaintiffs
argue that Section 1503 has stripped the judiciary of its role of policing executive
action by requiring parties to have citizenship claims initially determined by
executive agencies.
This is not sufficient to a state a claim that Section 1503 violates separation
of powers principles. First, as the Amended Complaint makes clear, what Plaintiffs
call an impermissible delegation of judicial authority to the executive branch is an
ordinary administrative exhaustion requirement. A statutory requirement that a
party exhaust administrative channels before seeking judicial review is not only
permitted by separation of powers principles but may in fact promote them. See
City of New York v. Slater, 145 F.3d 568, 570 (2d Cir. 1998) (per curiam) (“In
general, a party is required to exhaust its administrative remedies before seeking
judicial review of an agency decision, ‘in part because of concerns for separation
of powers (i.e., the need to limit judicial interference in the agency process) and the
need to conserve judicial resources.’” (quoting Pavano v. Shalala, 95 F.3d 147, 150
(2d Cir. 1996))).

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Additionally, jurisdiction-stripping provisions of the sort contained in
Section 1503 are plainly permissible and do not violate separations of powers
principles. “[W]hen Congress strips federal courts of jurisdiction, it exercises a
valid legislative power no less than when it lays taxes, coins money, declares war,
or invokes any other power that the Constitution grants it.” See Patchak v. Zinkek
583 U.S. 244, 252–53 (2018); see also Cary v. Curtis, 44 U.S. 236, 245 (1845)
(explaining that to deny Congress’s power to both create and limit federal
jurisdiction would itself undermine separation of powers by “elevat[ing] the
judicial over the legislative”). It was thus permissible for Congress to choose, as it
did, to oust the Court of jurisdiction over Plaintiffs’ citizenship claims while they
are at issue in a removal proceeding. See 8 U.S.C. § 1503(a).
Conclusion
For the foregoing reasons, the Defendants’ motion to dismiss the Plaintiffs’
claims is granted.

SO ORDERED.

_/S/ Frederic Block___________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
November 26, 2024
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