Lezzar v. Hamilton et al
Filing
26
OPINION AND ORDER OF PARTIAL DISMISSAL granting 14 Motion to Dismiss; granting 14 Motion to Dismiss for Failure to State a Claim. Pltf's claims under the APA and Mandamas Act are DISMISSED for subject matter jurisdiction; Pltf's civil rights claims are DISMISSED for failure to state a claim. Plaintiff's 17 motion for leave to amend is DENIED. Pltf's claim for de novo review of the USCIS' denial of his application for naturalization shall proceed.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KIRAM EDDINE LEZZAR,
§
§
Plaintiff,
§
VS.
§
§
1
SANDRA HEATHMAN, Houston
§ CIVIL ACTION NO. 4:11-CV-4168
District Director, United States §
Citizenship and Immigration
§
Services; ALEJANDRO MAYORKAS,
§
Director, United States
§
Citizenship and Immigration
§
Services; JANET NAPOLITANO,
Secretary of the Department of §
Homeland Security; ERIC H.
§
HOLDER, JR., Attorney General of §
the United States, UNITED STATES §
CITIZENSHIP and IMMIGRATION
§
SERVICES; and UNITED STATES
DEPARTMENT OF HOMELAND SECURITY, §
§
§
Defendants.
§
§
§
§
§
§
OPINION AND ORDER OF PARTIAL DISMISSAL
Pending before the Court in the above referenced petition
for
de
Lezzar’s
novo
review
N–400
of
the
Application
denial
for
of
Plaintiff
Naturalization
Kiram
Eddine
pursuant
to
Section 301(c) of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1421(c), and the Administrative Procedure Act (“APA”),
5 U.S.C. §§ 500 et seq., inter alia, are two motions:
1
(1)
Plaintiff originally named Ricky Hamilton as District Director, but Sandra
Heathman currently holds the office.
1 / 33
Defendants’ Partial Motion to Dismiss pursuant to Fed. R. Civ.
P. 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6)
for failure to state a claim for which relief may be granted
(instrument #14); and (2) Plaintiff’s motion for leave to amend
pleadings pursuant to Fed. R. Civ. P. 15(a)(#17).
Plaintiff is a native and citizen of Algeria, a geologist,
and
a
lawful
permanent
August 13, 2003.
resident
of
the
United
Original Complaint, #1 at ¶11.
States
since
On April 30,
2009 he filed a Form N–400 Application for Naturalization with
the
United
States
Citizenship
and
Immigration
Services
(“USCIS”), which was denied on January 11, 2011 for failure to
establish that he was “a person of good moral character and for
failing
to
establish
United States.”2
attachment
to
the
Constitution
of
the
#1 at ¶¶12, 14-15; Decision, #17, Ex. A. Tab
2
The general naturalization statute, 8 U.S.C. § 1427(a)(1)(3), states in relevant part,
No person, . . . shall be naturalized unless such
applicant, (1) immediately preceding the date of
filing his application for naturalization has resided
continuously,
after
being
lawfully
admitted
for
permanent residence, within the United States for at
least five years . . ., (2) has resided continuously
within the United States from the date of application
up to the time of admission to citizenship, and (3)
during all periods referred to in this subsection has
been and still is a person of good moral character,
attached to the principles of the Constitution of the
United States, and well disposed to the good order and
happiness of the United States.
See also 8 C.F.R. § 316.2(a)(7)(requiring for eligibility for
2 / 33
1.3
Specifically
the
USCIS
determined
that
Plaintiff
was
ineligible for naturalization because (1) in his Application for
Adjustment of Status, Form I-485, on February 6, 2002 he failed
to
list
the
Islamic
Society
of
New
York,
N.Y.
among
the
organizations of which he was a member; (2) despite the above
omission, in response to the question “have you ever given false
or misleading information to any U.S. Government official while
applying for any immigration benefit . . . ,” he marked “no”;
and (3) he participated (a) in a protest march in Syracuse, New
York around 2003-04 and (b) in a demonstration in Houston around
2009-10
to
subsequently
support
Zoubir
arrested
for
Bouchiki,
a
immigration
former
Imam
violations
who
and
was
removed
from the United States, and community member Dr. Rafel Dhafir,
who was arrested and convicted on 59 counts of violation federal
regulations
and
Decision, #17-1.
is
currently
serving
a
22-year
sentence.
On February 8, 2011 Plaintiff filed a Form N–
naturalization that an alien applicant “[f]or all relevant time
periods under this paragraph, has been and continues to be a
person of good moral character, attached to the principles of
the Constitution of the United States, and favorably disposed
toward the good order and happiness of the United States.”
Where the applicant’s spouse is a United States citizen, as
allegedly in the case with Plaintiff’s wife according to his
proposed Amended Petition (#17-1, ¶ 2, “He is married to Farida
Lezzar, a U.S. citizen . . . .”), the required period of
residence is shortened to three years. 8 U.S.C. § 1430(a).
3
Plaintiff submitted a copy of the USCIS’s Decision with
his proposed amended complaint.
3 / 33
336
Request
for
Hearing
on
a
Decision
in
Naturalization
Proceeding, which on August 5, 2011 was also denied, and the
USCIS’s earlier determination, affirmed.
Plaintiff
then
filed
this
suit,
#1 at ¶¶16-17.
which,
in
addition
to
challenging the denial of his Application for Naturalization by
the USCIS under 8 U.S.C. § 1421(c), claimed violations of the
APA,4 the Due Process Clause of the Fifth Amendment in the denial
of a meaningful opportunity to be heard, the Equal Protection
Clause of the Fourteenth Amendment in Defendants’ failure to
explain why they had naturalized and continued to naturalize
other
similarly
situated
aliens,5 violations
of
42
U.S.C.
§§
1983, 1985(3),6 and 1986; he also seeks relief under the Mandamus
4
The Original Complaint seeks judicial review to hold
unlawful and set aside USCIS’ findings and conclusions regarding
his application because it acted in an arbitrary and capricious
fashion, abused its discretion, violated the law, acted contrary
to the rights, privileges, powers, privileges, immunities and
freedoms guaranteed by the federal Constitution, failed to
follow proper procedures, issued findings or decisions not
supported by substantial evidence, and reached conclusions that
are not accurate or meritorious. #1, ¶25.
5
In the body of his complaint he asserts violations of his
First Amendment right to freedom of speech, to peaceably
assemble and to petition the government for change, and includes
them under his Count for civil rights violations of § 1983-1986.
#1, ¶ 40.
6
Plaintiff alleges that “[o]n January 11, 2011, Defendants
conspired
to
illegally
deny
Plaintiff’s
application
for
naturalization on the grounds that he lacked the requisite ‘good
moral character, attachment to the principles of the U.S.
Constitution, and favorable disposition ‘toward the good order
and happiness’ of the U.S.” #1, ¶ 14.
4 / 33
Act, 28 U.S.C. § 1361.
Standards of Review
“When
filed
in
a
motion
to
conjunction
dismiss
with
for
other
lack
Rule
of
12
jurisdiction
motions,
the
‘is
court
should consider the Rule 12(b)(1) jurisdictional attack before
addressing any attack on the merits.”
Crenshaw-Logal v. City of
Abilene, Texas, 2011 WL 3363872, *1 (5th Cir. 2011), quoting
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); see
also Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d
(5th
Cir.
Mar.
15,
2011);
Fed.
R.
Civ.
P.
757, 762
12(h)(3).
If
a
complaint could be dismissed for both lack of jurisdiction and
for failure to state a claim, “ the court should dismiss only on
the
jurisdictional
ground
under
[Rule]
12(b)(1),
without
reaching the question of failure to state a claim under [Rule]
12(b)(6).”
Crenshaw-Logal, 2011 WL 3363872, *1, quoting Hitt v.
City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).
behind
this
practice
are
to
preclude
courts
The reasons
from
issuing
advisory opinions and barring courts without jurisdiction “‘from
prematurely dismissing a case with prejudice.’”.
Id., citing
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101
(1998), and Ramming, 281 F.3d at 161.
Rule 12(b)(1) allows a party to move for dismissal of an
action
for
lack
of
subject
matter
jurisdiction.
The
party
asserting that subject matter exists, here the plaintiff, must
5 / 33
bear the burden of proof for a 12(b)(1) motion.
F.3d at 161.
Ramming, 281
In reviewing a motion under 12(b)(1) the court may
consider (1) the complaint alone; (2) the complaint supplemented
by
undisputed
complaint
facts
evidenced
supplemented
by
in
the
undisputed
resolution of disputed facts.
record;
facts
plus
or
the
(3)
the
court’s
Williamson v. Tucker, 645 F.2d
404, 413 (5th Cir. 1981).
A motion to dismiss for lack of subject matter jurisdiction
under
Rule
12(b)(1)
is
characterized
as
either
a
“facial”
attack, i.e., the allegations in the complaint are insufficient
to invoke federal jurisdiction, or as a “factual” attack, i.e.,
the
facts
in
the
complaint
jurisdiction are questioned.
supporting
subject
matter
In re Blue Water Endeavors, LLC,
Bankr. No. 08-10466, Adv. No. 10-1015, 2011 WL 52525, *3 (E.D.
Tex. Jan. 6, 2011), citing Rodriguez v. Texas Comm’n of Arts,
992 F. Supp. 876, 878-79 (N.D. Tex. 1998), aff’d, 199 F.3d 279
(5th Cir. 2000).
A facial attack happens when a defendant files
a Rule 12(b)(1) motion without accompanying evidence.
v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
Paterson
In a facial
attack, allegations in the complaint are taken as true.
Water,
Blue
2011 WL 52525 at *3, citing Saraw Partnership v. United
States, 67 F.3d 567, 569 (5th Cir. 1995).
If
it
is
a
factual
attack,
the
Court
may
consider
any
evidence (affidavits, testimony, documents, etc.) submitted by
6 / 33
the parties that is relevant to the issue of jurisdiction.
Id.,
citing Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir.
1989).
A defendant making a factual attack on a complaint may
provide
supporting
testimony
or
other
admissible
Patterson v. Weinberger, 644 F.3d 521, 523 (5th Cir.
evidence.
1981).
affidavits,
The plaintiff, to satisfy its burden of proof, may also
submit evidence to show by a preponderance of the evidence that
subject
matter
jurisdiction
exists.
Id.
The
court’s
consideration of such matters outside the pleadings does not
convert the motion to one for summary judgment under Rule 56(c).
Robinson, 2008 WL 4692392 at *10, citing Garcia, 104 F.3d at
1261.
“Unlike
determined
upon
in
the
a
facial
basis
of
attack
where
allegations
of
jurisdiction
the
is
complaint,
accepted as true[,] when a factual attack is made upon federal
jurisdiction,
no
presumption
of
truthfulness
attaches
to
the
plaintiffs’ jurisdictional allegations, and the court is free to
weigh the evidence and satisfy itself as to the existence of its
power to hear the case.
In a factual attack, the plaintiffs
have the burden of proving that federal jurisdiction does in
fact exist.”
Evans v. Tubbe, 657 F.2d 661, 663 (5th Cir. 1981).
In resolving a factual attack on subject matter jurisdiction
under Rule 12(b)(1), the district court, which does not address
the merits of the suit,7 has significant authority “‘to weigh the
7
7 / 33
As the court explained in Taylor v. Dam, 244 F. Supp. 2d
evidence and satisfy itself as to the existence of its power to
hear the case.’”
4692392,
*10
Robinson v. Paulson, No. H-06-4083, 2008 WL
(S.D.
Tex.
Oct.
22,
2008),
quoting
Garcia
v.
Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997),
and citing Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir.
1986).
Here Defendants’ subject-matter-jurisdiction challenge in
its partial motion to dismiss is a facial attack.
Relating
to
Defendants’
challenge
to
the
adequacy
of
Plaintiff’s pleading, Federal Rule of Civil Procedure 8(a)(2)
provides,
“A
pleading
that
states
a
claim
for
relief
must
contain . . . a short and plain statement of the claim showing
that the pleader is entitled to relief.”
When a district court
747, 753 (S.D. Tex. 2003),
It is well settled that “a district court has broader
power to decide its own right to hear the case than it
has when the merits of the case are reached.”
[Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.).
cert. denied, 454 U.S. 897 (1981).]
“Jurisdictional
issues are for the court--not the jury--to decide,
whether they hinge on legal or factual determinations.
Id.
To determine whether jurisdiction exists, the
court will generally resolve any factual disputes from
the pleadings and the affidavits submitted by the
parties. See Espinoza v. Missouri Pac. R.R. Co., 754
The court may
F.2d 1247, 1248 n.1 (5th Cir. 1985).
also conduct an evidentiary hearing and “may hear
conflicting written and oral evidence and decide for
itself
the
factual
issues
which
determine
jurisdiction.”
Williamson, 645 F.2d at 413; see
Menchaca v. Chrysler Credit Corp.,613 F.2d 507, 511-12
(5th Cir.), cert. denied, 449 U.S. 953 . . . (1980).
8 / 33
reviews
a
12(b)(6),
motion
it
to
must
dismiss
construe
pursuant
the
to
complaint
Fed.
in
R.
Civ.
P.
favor
of
the
plaintiff and take all well-pleaded facts as true. Randall D.
Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011),
citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009).
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, . . . a
plaintiff’s
obligation
‘entitle[ment]
to
to
relief’
provide
the
requires
more
‘grounds’
than
of
his
labels
and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do . . . .”
Twombly,
127
S.
Ct.
1955,
1964-65
Bell Atlantic Corp. v.
(2007)(citations
omitted).
“Factual allegations must be enough to raise a right to relief
above the speculative level.”
Id. at 1965, citing 5 C. Wright &
A. Miller, Federal Practice and Procedure § 1216, pp. 235-236
(3d ed. 2004)(“[T]he pleading must contain something more . . .
than . . .
[of]
a
a statement of facts that merely creates a suspicion
legally
cognizable
right
of
action”).
“Twombly
jettisoned the minimum notice pleading requirement of Conley v.
Gibson, 355 U.S. 41 . . . (1957)[“a complaint should not be
dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his
claim
which
would
entitle
him
to
relief”],
and
instead
required that a complaint allege enough facts to state a claim
9 / 33
that is plausible on its face.”
St. Germain v. Howard,556 F.3d
261, 263 n.2 (5th Cir. 2009), citing In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007)(“To survive a Rule
12(b)(6) motion to dismiss, the plaintiff must plead ‘enough
facts
to
state
a
claim
to
relief
that
is
plausible
face.’”), citing Twombly, 127 S. Ct. at 1974).
on
its
“‘A claim has
facial plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.’”
Montoya v. FedEx Ground
Package System, Inc., 614 F.3d 145, 148 (5th Cir. 2010), quoting
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940 (2009).
Dismissal is
appropriate when the plaintiff fails to allege “‘enough facts to
state a claim to relief that is plausible on its face’” and
therefore
fails
to
speculative level.’”
“‘raise
a
right
to
relief
above
the
Montoya, 614 F.3d at 148, quoting Twombly,
550 U.S. at 555, 570.
In
Ashcroft
v.
Iqbal,
129
S.
Ct.
at
1940,
the
Supreme
Court, applying the Twombly plausibility standard to a Bivens
claim
of
unconstitutional
discrimination
and
a
defense
of
qualified immunity for government official, observed that two
principles inform the Twombly opinion: (1) “the tenet that a
court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” . . . Rule 8
”does not unlock the doors of discovery for a plaintiff armed
10 / 33
with nothing more than conclusions.”; and (2) “only a complaint
that states a plausible claim for relief survives a motion to
dismiss,”
that
a
determination
requires
the
involving
reviewing
court
experience and common sense.”
elements
of
a
cause
of
“a
context-specific
to
draw
its
judicial
“[T]hreadbare recitals of the
action,
supported
by
statements do not suffice” under Rule 12(b).
at 1949.
on
task
mere
conclusory
Iqbal, 129 S. Ct.
The plaintiff must plead specific facts, not merely
conclusory allegations, to avoid dismissal.
Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) “Dismissal
is
proper
if
the
complaint
lacks
an
allegation
regarding
required element necessary to obtain relief . . . .“
a
Rios v.
City of Del Rio, Texas, 444 F.3d 417, 421 (5th Cir. 2006), cert.
denied, 549 U.S. 825 (2006).
As noted, on a Rule 12(b)(6) review, although generally the
court may not look beyond the pleadings, the Court may examine
the
complaint,
documents
documents
attached
complaint
refers
to
and
attached
to
the
complaint,
the
motion
to
dismiss
which
are
central
to
claim(s), as well as matters of public record.
to
the
which
and
the
plaintiff’s
Lone Star Fund V
(U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
2010), citing Collins, 224 F.3d at 498-99; Cinel v. Connick, 15
F.3d 1338, 1341, 1343 n.6 (5th Cir. 1994).
See also United
States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336
11 / 33
F.3d 375, 379 (5th Cir. 2003)(“the court may consider . . .
matters
of
which
judicial
notice
may
be
taken”).
Taking
judicial notice of public records directly relevant to the issue
in dispute is proper on a Rule 12(b)(6) review and does not
transform the motion into one for summary judgment.
Funk v.
Stryker Corp., 631 F.3d 777, 780 (5th Cir. Jan. 25, 2011).
“A
judicially noticed fact must be one not subject to reasonable
dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of
accurate
and
ready
accuracy
cannot
determination
reasonably
be
by
resort
questioned.”
to
sources
Fed.
R.
whose
Evid.
201(b).
Dismissal under Federal Rule of Civil Procedure 12(b)(6) is
“appropriate when a defendant attacks the complaint because it
fails to state a legally cognizable claim.”
Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied sub nom.
Cloud v. United States, 536 U.S. 960 (2002), cited for that
proposition in Baisden v. I’m Ready Productions, No. Civ. A. H08-0451, 2008 WL 2118170, *2 (S.D. Tex. May 16, 2008).
See also
ASARCO LLC v. Americas Min. Corp., 382 B.R. 49, 57 (S.D. Tex.
2007)(“Dismissal “‘can be based either on a lack of a cognizable
legal theory or the absence of sufficient facts alleged under a
cognizable legal theory.’” [citation omitted]), reconsidered in
other part, 396 B.R. 278 (S.D. Tex. 2008).
12 / 33
Federal Rule of Civil Procedure 15(a) provides in relevant
part,
A party may amend the party’s pleading once as a
matter of course at any time before a responsive
pleading is served or, if the pleading is one to which
no responsive pleading is permitted and the action has
not been placed upon the trial calendar, the party may
so amend it at any time within 20 days after it is
served.
Otherwise a party may amend the party’s
pleading only by leave of court or by written consent
of the adverse party; and leave shall be freely given
when justice so requires.
A court has discretion in deciding whether to grant leave to
amend.
Foman v. Davis, 371 U.S. 178, 181 (1962).
Since the
language of the rule “‘evinces a bias in favor of granting leave
to amend,” the court must find a “substantial reason” to deny
such a request.
Ambulatory Infusion Therapy Specialists, Inc.
v. Aetna Life Ins. Co., Civ. A. No. H-05-4389, 2006 WL 2521411,
*3 (S.D. Tex. Aug. 29, 2006), quoting Smith v. EMC Corp., 393
F.3d 590, 595 (5th Cir. 2004), and Mayeaux v. La. Health Serv. &
Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004). Factors for the
court to consider in determining whether a substantial reason to
deny a motion for leave to amend include “undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure
to
cure
deficiencies
by
amendments
previously
allowed,
undue
prejudice to the opposing party, and futility of amendment.”
Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993).
The
court should deny leave to amend if it determines that “the
proposed
13 / 33
change
clearly
is
frivolous
or
advances
a
claim
or
defense that is legally insufficient on its face . . . .”
6
Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Proc. § 1487 (2d ed. 1990).
Defendants’ Partial Motion to Dismiss (#14) and Reply (#24)
Defendants
Sandra
Heathman,
Houston
District
Director
of
USCIS, Alejandro Mayorkas, Director of USCIS, Janet Napolitano,
Secretary of the Department of Homeland Security (“DHS”), Eric
H. Holder, Attorney General of the United States, DHS, and USCIS
explain the process of seeking naturalization.
The Secretary of
the Department of Homeland Security, currently Janet Napolitano,
has the “sole authority to naturalize persons as citizens of the
United States . . . .“
8 U.S.C. § 1421(a),8 and USCIS is charged
with adjudicating applications for nationalization on the her
behalf.
To become a naturalized citizen, an applicant first
submits an application for naturalization on Form N–400 and the
requisite fee.
background
8 U.S.C. § 1445(a); 8 C.F.R. § 334.2(a).
check
of
the
applicant
is
performed,
Then a
including
a
criminal investigation by the Federal Bureau of Investigation
8
The statute actually states that the Attorney General has
the sole authority, but in 2002 Congress transferred that
authority to the Secretary of the Department of Homeland
Security, effective March 1, 2003.
See, e.g., Awe v.
Napolitano, No. 11-5134, 2012 WL 3553721, *2 (10th Cir. Aug. 20,
2012), citing Ajlani v. Chertoff, 545 F.3d 229, 232 n.2 (2d Cir.
2008); Batalova v. Ashcroft, 355 F.3d 1246, 1248 n.1 (10th Cir.
2004).
Homeland Security Act of 2002, Pub. L. 107-296, 116
Stat. 2135 (2002).
14 / 33
(“FBI”).
8
U.S.C.
335.2(b);
Pub.
L.
§
1446(a);
No.
8
C.F.R.
111
105-119,
§§
335.1,
Stat.
335.2(a),
2440,
2448-49
(1997)(“adjudication of naturalization cannot occur until USCIS
has
received
confirmation
from
the
FBI
background check has been completed”).
a
personal
follows.
337.9.
examination/interview
8
U.S.C.
§§
1446(a),
of
that
a
full
criminal
If the applicant passes,
the
applicant
1446(B);
8
C.F.R.
by
§§
USCIS
337.1,
If his application is denied, the applicant must exhaust
his administrative remedies by requesting a hearing before an
immigration
officer
under
8
U.S.C.
§
1447(a).
If
the
application is still denied, the person may seek de novo review
in the United States District Court in the district in which he
resides.
8
U.S.C.
§
1421(c);
8
C.F.R.
§
336.9(d).
This
judicial review of a naturalization denial is not limited to the
administrative record, but can be based on facts established in
and found by the district court in its de novo review.
v. Blakeway, 302 F.3d 437, 445 (5th Cir. 2002).
Aparicio
If no decision
has been made on the application within 120 days after the USCIS
interview, the applicant may also apply to the federal district
court in which he resides for a hearing, and the court may
either determine the matter or remand it with instructions.
U.S.C. § 1447(b); 8 C.F.R. § 335.2(a).9
9
8
If the application is
Since
1990
when
Congress
removed
naturalization
jurisdiction from the district courts and gave the Attorney
15 / 33
granted after the person-to-person interview, the applicant is
administered an oath of allegiance and is then deemed “a citizen
of the United States.”
8 C.F.R. §§ 337.1, 337.9.
The alien has the burden of establishing his eligibility
for naturalization in every respect, not merely in response to
the
reasons
identified
in
an
administrative
denial,
doubts must be resolved in favor of the United States.
and
all
Berenyi
v. District Director, INS, 385 U.S. 630, 637 (1967); Gonzalez v.
Chertoff, Misc. No. H-07-0700, 2008 WL 1836685, *2 (S.D. Tex.
Apr. 22, 2008).
Defendants
first
assert
that
8
U.S.C.
§
1421(c)
is
the
exclusive judicial remedy to challenge a denied naturalization
application.
Section 1421(c) provides,
A person whose application for naturalization under
this subchapter is denied, after a hearing before an
immigration officer under section 1447(a) of this
Title, may seek review of such denial before the
United States district court for the district in which
such person resides in accordance with chapter 7 of
title 5. Such review shall be de novo, and the court
shall make its own findings of fact and conclusions of
law and shall, at the request of the petitioner,
General (and since then the Department of Homeland Security) the
exclusive ability to naturalize aliens, the only two points in
the process in which the district court has the right to
intervene
are
(1)
when
USCIS
denies
an
naturalization
application and the denial has been affirmed on administrative
review under 8 U.S.C. § 1421(c); and (2) when an applicant for
naturalization has been interviewed by the USCIS and more that
120 days elapse without the issuance of a decision under 8
U.S.C. § 1447(b). See, e.g., Ogunfuye v. Acosta, 210 Fed. Appx.
364, 366 (5th Cir. Dec. 13, 2006).
16 / 33
conduct a hearing de novo on the application.
Section 1421(d) states, “A person may only be naturalized as a
citizen
of
the
United
States
in
the
manner
and
under
the
conditions prescribed in this subchapter and not otherwise.”
Even though § 1421(c) is the only express provision for
judicial review of a denial of a naturalization application,
Plaintiff nevertheless seeks review under the APA, too.
Because
§ 1421(c) provides an adequate remedy in court,10 jurisdiction to
review the denial of Plaintiff’s Application for Naturalization
under
the
Defendants.
APA
and
the
Mandamus
Act
is
precluded,
maintain
It is well settled that the APA, 5 U.S.C. § 554,11
does not provide an explicit or implied grant of subject matter
jurisdiction permitting federal judicial review of agency action
10
The Court observes that the APA, 5 U.S.C. § 704, limits
judicial review to where “there is no other adequate remedy in a
court.”
“When Congress enacted the APA to provide a general
authorization for review of an agency action in the district
courts, it did not intend that general grant of jurisdiction to
duplicate
the
previously
established
special
statutory
procedures
relating
to
specific
agencies.”
Bowen
v.
Massachusetts, 487 U.S. 879, 903 (1988).
Plaintiff’s remedy
under 8 U.S.C. § 1421(c) requires dismissal of his APA claim
with prejudice.
See, e.g., Khawaja v. Mueller, Civ. A. No. H11-3603, 2012 WL 1857849, *6 (S.D. Tex. May 21, 2012), citing
Bowen, 487 U.S. at 903, and Escaler v. U.S. Citizenship &
Immigration
Services,
582
F.3d
288,
291[n.1]
(2d
Cir.
2009)(rejecting claim that the APA might augment “the sweeping
de novo review provided by Section 1421(c).”).
11
Plaintiff also cites § 555, but
for a person appearing before an agency
of or access to transcripts, reports,
i.e., matters not at issue here so it is
17 / 33
it provides for counsel
or entitlement to copies
agency subpoenas, etc.,
inapplicable.
and thus does not apply to immigration adjudications.
Califano
v. Sanders, 430 U.S. 99, 104-06 (1977)(“the better view is that
the APA is not to be interpreted as an implied grant of subjectmatter
jurisdiction
U.S.C.
§
1331
to
review
“confer[s]
agency
actions”).
jurisdiction
on
Instead
28
courts
to
federal
review agency action, regardless of whether the APA of its own
force may serve as a jurisdictional predicate.”
Id. at 105.
See Staacke v. U.S. Secretary of Labor, 841 F.2d 278, 282 (9th
Cir.
1988)(the
jurisdictional
reviewing
basis;
agency
established.”),
Moreover,
APA
5
“does
it
only
action
citing
U.S.C.
not
prescribes
once
Califano,
§
provide
an
the
standards
jurisdiction
430
554(a)(1)
U.S.
states
at
independent
is
otherwise
106-07
that
for
&
the
n.6.
APA’s
adjudication procedures do not apply to “a matter subject to a
subsequent trial of the law and the facts de novo in a court,”12
as is the case under
denial
of
an
§ 1421(c), so the APA does not apply to
application
for
naturalization.
Nor
is
there
jurisdiction under the APA, 5 U.S.C. §§ 702 et seq., because §
702
states
that
it
does
not
“affect[]
other
limitations
on
judicial review . . . or confer[] authority to grant relief if
any
other
statute
that
grants
consent
impliedly forbids the relief is sought.”
12
to
suit
expressly
or
The judicial review
See, e.g., Arwady Hand Trucks Sales, Inc. v. Vander Werf,
507 F. Supp. 2d 754, 760 (S.D. Tex. 2007).
18 / 33
authorized under § 702 is limited by 5 U.S.C. § 704 to “final
agency actions for which there is no other adequate remedy in a
court.”
grounds
Nor is review available under 5 U.S.C. § 706 on the
that
the
decision
was
arbitrary,
capricious,
and
an
abuse of discretion, not in accordance with the law, or contrary
to a constitutional right, power, privilege or immunity, because
review
under
§
706
is
limited
to
the
administrative
record,
while review under 8 U.S.C. § 1421(c) is de novo and not for the
purpose
of
reviewing
the
recommendation
of
the
agency.
Application of Murra, 178 F.2d 670, 672 (7th Cir, 1949).
The
United States Supreme Court has opined, “[T]he power to make
someone a citizen of the United States has not been conferred
upon
the
federal
courts
.
.
applicable equitable powers.
.
as
one
of
their
generally
Rather, it has been given them as
a specific function to be performed in strict compliance with
the terms of an authorizing statute, which says that ‘[a] person
may be naturalized . . . in the manner and under the conditions
prescribed in this subchapter, and not otherwise.’”
I.N.S. v.
Pangilinan,
added
486
U.S.
875,
883-84
(1988)(emphasis
Supreme Court), quoting 8 U.S. 1421(d).
political
obtain
rights
them
Congress.”
Second
19 / 33
only
as
a
upon
member
terms
of
this
and
by
“An alien who seeks
Nation
conditions
can
rightfully
specified
by
Id. at 884.
Defendants
also
contend
that
there
is
no
jurisdiction
for
adequate review.
mandamus
relief
because
§
1421(c)
provides
Mandamus relief, an extraordinary remedy, is
only available if the plaintiff proves that (1) he lacks another
adequate remedy and has exhausted all other avenues of relief;
(2) the defendant owes him a clear, nondiscretionary duty to
act; and (3) he has a clear right to the relief sought.
v. Fechtel, 150 F.3d 486, 487 (5th Cir. 1998).
has
relief
available
under
8
U.S.C.
§
Davis
Plaintiff here
1421(c)
and
it
is
ongoing.13
Third, regarding Plaintiff’s due process cause of action,
Defendants highlight Article I, § 8, cl. 4 of the United States
Constitution, which states, “Congress shall have [the] Power . .
. [t]o establish an uniform Rule of Naturalization.”
who
seeks
political
rights
as
a
member
of
this
“An alien
Nation
can
rightfully obtain them only upon terms and conditions specified
by Congress.”
(1917).14
United States v. Ginsberg, 243 U.S. 472, 474
“There
is
no
protected
liberty
interest
in
13
This Court also notes that an applicant has no “clear
right” to naturalization because the USCIS has discretion to
grant or deny an application, although USCIS must process the
application within a reasonable time.
Ayyub v. Blakeway, Civ.
A. No. SA-10-CV-149-XR, 2010 WL 3221700, *3 (W.D. Tex. Aug. 13,
2010); Alkenani v. Barrows, 356 F. Supp. 2d 652 (N.D. Tex.
2005).
14
In their combined reply brief (#24 at pp. 1-2),
Defendants quote from Tutun v. United States, 270 U.S. 568, 578
(1926):
20 / 33
naturalization
beyond
statute” in § 1421(c).
585 (D. Mass. 2007).
but
it
is
not
Plaintiff’s
due
a
that
which
Congress
has
provided
by
Morgovsky v. DHS, 517 F. Supp. 2d 581,
“This may be a denial of desired process,
denial
process
of
due
claim,
process.”
brought
Id.
under
at
the
586.
Fifth
Amendment, should be dismissed because review under 8 U.S.C. §
1421(c), in providing for de novo review, exceeds that required
to meet due process and affords him a meaningful opportunity to
be heard.15
In Aparicio, 302 F.3d at 447, the Fifth Circuit
opined about the review provided under § 1421(c),
The review afforded them by section 1421(c) is de novo
with the district court considering evidence brought
before it and making its own findings of fact and
conclusions of law. See 8 U.S.C. § 1421(c). Congress
The opportunity to become a citizen of the United
States is said to be merely a privilege, and not a
right.
It is true that the Constitution does not
confer upon aliens the right to naturalization.
Article 1, § 8, cl. 4.
The opportunity having been
conferred by the Naturalization Act, there is a
statutory right in the alien to submit his petition
and evidence to a court, to have that tribunal pass
upon
them,
and,
if
the
requisite
facts
are
established, to receive the certificate. . . . There
is no “right to naturalization unless all statutory
requirements are complied with.”
[Ginsberg, 243 U.S.
at 475.]
15
To state a viable due process claim under the Fifth
Amendment, a plaintiff must first identify a protected liberty
or property interest and then show that the government deprived
him of that interest without due process. Kasica v. U.S. Dept.
of Homeland Security, Citizenship and Immigration Services, 660
F. Supp. 2d 277, 281 (D. Conn. 2009), citing Board of Regents of
State Colleges v. Roth, 408 U.S. 564, 571 (1971).
21 / 33
has therefore afforded the appellants a complete and
wholly adequate review, greatly in excess of the
review found acceptable in [Reno v. Catholic Social
Services, Inc., 509 U.S. 43 (1993)].
We also note
that the applicants here are not fighting to gain or
keep their permanent resident status through the onetime-only SAW [Special Agricultural Worker, see 8
U.S.C. § 1160] program, but merely seek to be
naturalized.
Nothing prevents an applicant denied
naturalization
from
filing
another
application.
Finally, while the possible delays in the system may
be frustrating, a delay of some 120 days--or much
longer--does not render the appeal so inadequate as to
allow the plaintiffs to escape Congress’ intended
review process.
See id. at 445 (“Judicial review of naturalization denials is
always available and is de novo, and is not limited to any
administrative record but rather may be on facts established in
and found by the district court de novo.”).
USCIS,
660
F.
“[d]istrict
Supp.
courts
2d
277,
have
281
(D.
plenary
See also Kasica v.
Conn.
2009)(Because
authority
to
review
naturalization proceedings, so long as an unsuccessful applicant
first
exhausts
his
or
her
remedies,”
the
court
rejected
the
applicant’s claim that she was deprived of her liberty interest
in
receiving
Defendants
a
also
fair
hearing
contend
that
regarding
Plaintiff
naturalization).
has
not
adequately
pleaded a due process claim because he has failed to identify
any
protected
property
or
liberty
interest
of
which
he
was
deprived, nor has he alleged that the review under § 1421(c) was
22 / 33
insufficient for due process.16
Fourth,
because
the
equal
Plaintiff
is
protection
claim
challenging
an
must
act
of
be
the
dismissed
federal
government and the Fourteenth Amendment applies only to state
action.
Boyd v. United States, 861 F.2d 106, 107-08 (5th Cir.
1997)(affirming dismissal of Fourteenth Amendment claim because
it
“applies
to
the
states,
not
to
the
federal
government”);
Timmer v. Michigan Dep’t of Commerce, 104 F.3d 833, 839 (6th Cir.
1997)(“the Fourteenth Amendment applies only to state action”).
Plaintiff’s claims under 42 U.S.C. § 1983 also fail because
the statute applies only to state officers acting under color of
state law and provides no cause of action against the United
States, its agencies, or federal employees regardless of their
capacities.
See, e.g., FDIC v. Meyer, 510 U.S. 471, 475 (1994);
Resident Council of Allen Parkway Village v. HUD, 980 F.2d 1043,
1053 (5th Cir. 1993), cert. denied, 510 U.S. 820 (1993); Boyd v.
United States, 861 F.2d 106, 10708 (5th Cir. 1988).17
16
This Court notes that a district court in Florida has
expressly held that because there is no fundamental right to
naturalize, a plaintiff cannot maintain a substantive due
process claim based on a denial of an application for
naturalization.
Campos v. I.N.S., 32 F. Supp. 2d 1337 1347-48
(S.D. Fla. 2998)
17
Defendants here are named only in their supervisory
capacities.
This Court would point out that Plaintiff has not
stated a claim against the Defendant federal officials under
Bivens v. Six Unknown Named agents of Federal Bureau of
Narcotics, 403 U.S. 388, 397 (1971)(allowing a claim against
23 / 33
The claims under 42 U.S.C. §§ 1985(3) and 1986 also fail
because they are barred by sovereign immunity and because an
allegation of race-based conspiracy or animus is required, but
is lacking here.
To state a § 1985(3) claim,18 a plaintiff must
federal officers acting under color of law for violations of an
individual’s
constitutional
rights).
“Because
vicarious
liability is inapplicable to Bivens and § 1983 suits, a
plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution.”
Iqbal, 129 S. Ct. at 1948.
Plaintiff has not
alleged any facts showing that the federal defendants were
personally involved in violating any constitutional rights of
Plaintiff.
See, e.g., Abulkhair v. Bush, 413 Fed. Appx. 502,
506-07 (3d Cir. Feb. 9, 2011)(in an action
asserting wrongful
denial of plaintiff’s application for naturalization based on
his Muslim beliefs, panel dismissed Bivens claim under Rule
12(b)(6) for failure to allege specific claims against named
defendants), cert. denied, 131 S. Ct. 2884 (2011).
Besides
personal involvement the only other basis on which the Fifth
Circuit has recognized an exception to the prohibition of
respondeat superior liability under Bivens is when the official
“implements a policy so deficient that the policy itself acts as
a deprivation of constitutional rights.”
Cronn v. Buffington,
th
Cir. 1998).
Plaintiff has not alleged
150 F.3d 538, 544 (5
such a policy, no less facts showing a deficient policy.
See
also Harvey v. Turnbo, Nos. 94-101810, 94-10439, 1994 WL 499746,
*3 (5th Cir. Tex. Aug. 24, 1994), quoting Thompkins v. Belt, 828
F.2d
298,
304
(5th
Cir.
1987)(“the
existence
of
a
constitutionally deficient policy cannot be inferred from a
single wrongful act”).
Furthermore the Supreme Court has held that a Bivens action
cannot be brought against a federal agency. FDIC v. Meyer, 510
U.S. 471, 484-86 (1994), cited for that proposition in Moore v.
United States Dep’t of Agriculture, 55 F.3d 991, 995 (5th Cir,
1995).
18
To state a claim under § 1985(3), a plaintiff must allege
(1) a conspiracy involving two or more persons, (2) for the
purpose of depriving, directly or indirectly, a person or class
of persons of the equal protection of the laws, and (3) an act
in furtherance of the conspiracy, which (4) causes injury to a
person or property, or a deprivation of any right or privilege
24 / 33
assert that the conspirators were motivated by racial animus.
Newsome v. EEOC, 301 F.3d 227, 232 (5th Cir. 2002); Bryan v. City
of Madison, Miss., 213 F.3d 267, 276 (5th Cir. 2000).19
no such allegation here.
There is
Plaintiff’s conspiracy claim must also
be dismissed because Defendants are part of the same entity and
thus incapable of conspiring with themselves for purposes of §
1985(3).
Benningfield v. City of Houston, 213 F.3d 267, 276 (5th
Cir. 2000); World of Faith World Outreach Center Church, Inc. v.
Sawyer, 90 F.3d 118, 124 (5th Cir. 1996).
Because Plaintiff has
no claim under § 1985(3), his derivative claim under § 198620
also fails because it requires a viable conspiracy claim under §
of a citizen of the United States. Hillard v. Ferguson, 30 F.3d
649, 652-53 (5th Cir. 1994).
The Fifth Circuit requires that a plaintiff pleading claims
for conspiracy under § 1985(3) must allege that it was motivated
by racial animus.
Deubert v. Gulf Federal Savings Bank, 820
F.2d 754, 757 (5th Cir. 1987); Lockett v. New Orleans City, 607
F.3d 992, 1002 (5th Cir.), cert. denied, 131 S. Ct. 507 (2010).
Moreover
the
plaintiff
must
plead
more
than
conclusory
allegations of conspiracy; he must allege with specificity the
operative facts on which the claim is based and that the
defendants agreed to commit an illegal act.
Young v. Biggers,
th
938 F.2d 565, 569 (5 Cir. 1991); Arsenaux v. Roberts, 726 F.2d
1022, 1023-24 (5th Cir. 1982).
19
See also Wong v. Stripling, 881 F.2d 200, 202 (5th Cir.
1989).
20
Section 1986 provides, “Every person who, having
knowledge that any of the wrongs conspired to be done, and
mentioned in section 1985 of this title are about to be
committed, and having power to prevent or aid in preventing the
commission of the same, neglects or refuses so to do, if such
wrongful act be committed, shall be liable to the party injured
. . . .”
25 / 33
1985(c) as a predicate.
Galloway v. Louisiana, 817 F.2d 1154,
1159 n.2 (5th Cir. 1987).21
Finally, insist Defendants, the USCIS is the only proper
defendant in a cause of action under 8 U.S.C. § 1421(c), so
claims against the other Defendants must be dismissed.
Amin v.
INS, No. 4:09-cv-623-A, 2010 WL 2034802, *1 n.1 (N.D. Tex. May
21,
2010)(“The
applicable
regulations
require
a
petition
for
review to be brought against the “Immigration and Naturalization
Service” (“INS”).
abolished
and
8 C.F.R. § 336.9(b) (2009).
replaced
by
the
United
In 2003, INS was
States
Citizenship
and
Immigration Services (‘USCIS’).”), citing Mahmoud v. Gonzales,
485 F.3d 175, 177 n.1 (1st Cir. 2007)(“In 2003, the functions of
the former INS were transferred to the newly formed Department
of Homeland Security . . . .”); Kaur v. Chertoff, 489 F. Supp.
2d 52, 55 n.5 (D.D.C. 2007).
Plaintiff’s Response (#17)
Plaintiff disagrees with all the arguments in Defendants’
partial
motion
to
dismiss
and
insists
he
may
bring
all
its
claims in addition to the one for judicial review under 8 U.S.C.
§ 1421(c).
Plaintiff argues that his APA, mandamus, and due
process causes of action are not challenging USCIS’s decision to
deny his N–400 or its decision in his N–336 proceedings, but
21
See also Bryan v. City of Madison, Miss., 213 F.3d 267,
276 (5 Cir. 2000).
th
26 / 33
instead attack Defendants’ erroneous interpretations and their
arbitrary
and
capricious
processes
in
his
administrative
proceedings.
Court’s Decision
This Court agrees with Defendants that as a matter of law
it has no subject matter jurisdiction over Plaintiff’s purported
challenge to the denial of his application for naturalization
under the APA and the Mandamus Act, so his claims under these
statutes must be dismissed under Rule 12(b)(1).
Plaintiff’s due process claim must be brought under the
Fifth
Amendment,
not
the
Fourteenth,
federal, not state, actors.
since
Defendants
are
Nevertheless Plaintiff has not and
cannot establish a liberty interest for his due process claim
because § 1421(c) provides him with a meaningful opportunity to
be heard, a de novo review over which this Court has plenary
authority.
Aparicio, 302 F.3d at 447; Kasica, 660 F. Supp. 2d
at 281.
Furthermore, as Defendants have shown, as a matter of law
an equal protection claim under the Fourteenth Amendment applies
only
to
state
actors
and
state
action,
not
to
the
federal
government.
Moreover
Plaintiff
violations
27 / 33
has
the
Court
failed
under
42
also
agrees
to
state
a
U.S.C.
§§
1983,
with
claim
Defendants
for
1985(c)
civil
and
that
rights
1986.
As
discussed
applies
above,
to
the
state
Section
official
1983
acting
fails
under
because
color
the
of
statute
state
law.
Because Defendants are named only in their official capacities,
there is no Bivens claim stated because Plaintiffs have failed
to plead any facts that might support a Bivens claim against
Defendants in their individual capacities.
397.
Bivens, 403 U.S. at
Federal sovereign immunity bars claims brought against the
federal
government
under
§§
1985(3)
and
1986.
Affiliated
Professional Home Health Care Agency v. Shalala, 164 F.3d 282,
286 (5th Cir. 1999)(“This Court has long recognized that suits
against
the
United
States
brought
under
the
statutes are barred by sovereign immunity.”).
to
allege
racial
discrimination
as
under § 1985(3).
animus
the
or
any
motivation
other
for
civil
Plaintiff fails
invidious
the
rights
alleged
class-bsed
conspiracy
Horaist v. Doctor’s Hosp. of Opelousas, 255
F.3d 261, 271 (5th Cir. 2001)(“‘In this circuit we require an
allegation of a race-based conspiracy’ to present a claim under
§ 1985(3).”), quoting Bryan v. City of Madison, 213 F.3d 267,
276
(5th
Cir.
2000),
cert.
denied,
531
U.S.
1145
(2001).
Moreover the proper Defendants are officials of USCIS, a single
legal
entity
and
government
agency
itself for purposes of § 1985(3).
649,
653
(5th Cir.
1994)(”Under
unable
to
conspire
with
Hilliard v. Ferguson, 30 F.3d
the
intracorporate
conspiracy
doctrine, alleged concerted action by employees or officials of
28 / 33
the same entity or organization cannot constitute a conspiracy
for purposes of § 1985); Jackson v. Signh, Civ. A. No. H-062920, 2007 WL 2818322, *11 (S.D. Tex. Sept. 25, 2007)(“Because a
unit of government and its employees are deemed to constitute a
single legal entity, governmental entities and their employees
cannot conspire among themselfs for purposes of § 1985(3).”);
Crutcher-Sanchez v. County of Dakota, 687 F.3d 979, 987 (8th Cir.
2012)22
Moreover the operative facts of an alleged conspiracy
under § 1985(3) must be pled with specificity, but are not here.
Holdiness v. Stroud, 808 F.2d 417, 424 (5th Cir. 1987); Phillips
v. United Parcel Service, 2011 WL 2680725, *12 (N.D. Tex. June
21,
2011)(conclusory
allegations
insufficient).
Because
liability under § 1986 is derivative of liability under § 1985
and because Plaintiff has failed to state a claim under § 1985,
the § 1986 claim must also be dismissed.
Chapman v. United
States, Civ. A. No. 4:06-CV-426-Y, 2006 WL3831227, *2 (N.D. Tex.
Dec. 27, 2006)(“Because Chapman has not stated a claim under §
22
An exception to this rule recognized in Crutcher-Sanchez
is when the government agents conspire by acting beyond the
scope of their authority or for their own benefit. 687 F.3d at
987.
The panel opined, “‘A plaintiff who pleads only that the
government actor ‘acted in the course and scope of ‘[his]
employment’
fail[s]
to
demonstrate
the
existence
of
a
conspiracy.’”
Id.
Such is the case here.
See also
Benningfield v. City Of Houston, 157 F.3d 369, 379 (5th Cir.
1998)(recognizing same possible exception, but dismissing claim
for
failure
to
show
class-based
animus
motivating
the
conspiracy).
29 / 33
1985, there can be no claim under § 1986.”), citing Grimes v.
Smith, 776 F.2d 159, 1263 n.4 (7th Cir. 1985); Galloway v. State
of Louisiana, 817 F.2d 1154, 1159 n.2 (5th Cir. 1987)(because §
1986 provides a cause of action against “[e]very person who,
having knowledge that any of the wrongs conspired to be done,
and mentioned in section 1985 . . . are about to be committed,
and having power to prevent or aid . . . neglects or refuses so
to do,” without a claim under § 1985 plaintiff cannot sustain a
claim under § 1986).
As
noted
earlier,
although
Plaintiff
requests
discovery
before the Court rules on the partial motion to dismiss, he is
not
entitled
to
discovery
under Rule 12(b)(6).
until
he
states
a
plausible
claim
Iqbal, 129 S. Ct. at 1949 (Rule 8 ”does
not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions.”).
He has failed to do so under
these causes of action.
Plaintiff further moves the court to grant him leave to
amend
and
purportedly
attaches
contains
a
draft
excerpts
of
his
from
proposed
the
pleading
administrative
that
record
that he maintains support his additional causes of action and
seeks
joinder
of
defendants
other
than
USCIS.
Because
this
Court agrees as a matter of law with the arguments made by
Defendants in their partial motion to dismiss all claims except
that under 8 U.S.C. § 1421(c) and because the proposed amended
30 / 33
complaint merely regurgitates the same claims as the original
complaint, the Court denies the motion for leave to amend for
failure to cure deficiencies and futility.
Corp., 3 F.3d at 139.
Wimm v. Jack Eckerd
For the reasons indicated above regarding
the original complaint, Plaintiff’s proposed amended complaint
again “advances . . . claim[s] that [are] legally insufficient
on [their] face . . . .”
6 Charles A. Wright, et al., Federal
Practice and Proc. § 1487.
The Court concurs with Defendants that as a matter of law
Plaintiff’s sole recourse for judicial review of the denial of
his application for naturalization is under the exclusive remedy
of 8 U.S.C. § 1421(c).
8 U.S.C. § 1421(d).
Moreover, the Court
finds that Plaintiff has exhausted his administrative remedies
for purpose of the review under § 1421(c).
Regarding proper defendants to this suit under 8 U.S.C. §
1421(c), following the 2002 transfer of authority to adjudicate
applications for naturalization from the Attorney General of the
United
States
to
the
Secretary
of
Homeland
Security,
the
Secretary of Homeland Security, and thus officials of USCIS in
their
official
capacity,
are
the
proper
defendants.
Awe
v.
Napolitano, 2013 WL 3553721, at *2 n.3, citing 6 U.S.C. § 557
(“With
respect
to
any
function
transferred
by
or
under
this
chapter [principally enacted by the Homeland Security Act of
2002] . . . and exercised on or after the effective date of this
31 / 33
chapter, reference in any other Federal law to any department,
commission, or agency or any officer or office the functions of
which
are
so
[of
Secretary
transferred
Homeland
shall
be
Security],
deemed
or
to
refer
the
official,
other
to
or
component of the Department of Homeland Security] to which such
function
is
so
transferred.”).
Under
Federal
Rule
of
Civil
Procedure 25(d) Secretary of Homeland Security Janet Napolitano
should automatically be substituted for Attorney General Eric
Holder.
Thus Defendant Eric Holder, Attorney General of the
United States, is dismissed.
Accordingly, for the reasons stated above, the Court grants
Defendants’ partial motions to dismiss (#14) as follows.
The
Court
ORDERS
Mandamus
that
Act
Plaintiff’s
are
claims
DISMISSED
for
jurisdiction under Rule 12(b)(1).
under
lack
the
of
APA
and
subject
the
matter
The Court further
ORDERS that Plaintiff’s civil rights claims under 42 U.S.C.
§§ 1983, 1985(3) and 1986, and for violation of due process
under
the
Fifth
Amendment
under
the
Fourteenth
and
violation
Amendment
state a claim under Rule 12(b)(6).
are
of
DISMISSED
equal
for
protection
failure
to
Finally, the Court
ORDERS that Plaintiff’s motion for leave to amend (#17) is
DENIED for failure to cure deficiencies in the proposed pleading
and as futile.
32 / 33
Plaintiff’s
review
of
the
claim
under
USCIS’
8
U.S.C.
denial
of
§
1421(c)
his
for
de
novo
application
for
naturalization shall proceed.
SIGNED at Houston, Texas, this 11th day of October, 2012.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
33 / 33
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