Belegrinos v. United States

PETER BELEGRINOS, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

18-CV-1934 (JPO)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

May 6, 2019

OPINION AND ORDER

J. PAUL OETKEN, District Judge:

Plaintiff Peter Belegrinos has brought this pro se action against the United States ("the Government") to obtain a declaration that he has lost his United States citizenship and an order directing that he be deported from the United States to Greece. (Dkt. No. 20 ("AC") at 16.) The Government has moved to dismiss Belegrinos's operative Amended Complaint. (Dkt. No. 24.) For the reasons that follow, the motion to dismiss is granted.

I. Background

The following factual allegations are taken from Belegrinos's Amended Complaint and exhibits attached thereto, and are assumed to be true for the purposes of deciding the instant motion.

Belegrinos is a citizen of the United States by birth. (AC ¶ 40.) In 2006, he moved to Greece and applied for Greek citizenship, with the intention of renouncing his U.S. citizenship. (AC. ¶ 42.) His naturalization application was approved by Greece, and he became a Greek citizen on March 9, 2006. (AC ¶ 44.)

In July 2012, however, Belegrinos was extradited to the United States from Holland on a New York state criminal charge of attempted sexual abuse in the first degree. (AC ¶¶ 56, 60; Ex. D.¹) In November 2012, he pleaded guilty to the charge and was sentenced to a two-year term of imprisonment and a five-year term of parole. (AC ¶ 60; Ex. N.) After the completion of his prison term, his parole expired on February 15, 2018. (Id.) Belegrinos alleges that he is not able to leave the United States due to restrictions placed by a Strict and Intensive Supervision and Treatment Order ("SIST Order") issued under the New York Mental Hygiene Law, N.Y. Mental Hyg. Law, § 10.11. (AC ¶ 30; Ex. OO.)

In early 2014, Belegrinos, through his counsel Robinson Iglesias, requested a certificate of loss of nationality ("CLN") from the United States Department of State ("State Department"). (AC ¶ 8; Ex. W.) In a letter dated March 21, 2014, Belegrinos admitted that he "did not follow the formalities required by the Immigration and Nationality Act in 2006 by appearing in person before a U.S. consular or diplomatic officer, in a foreign country, and signing an oath of renunciation," but he requested that the State Department "consider his voluntary action to apply for Greek citizenship with the intention of relinquishing his U.S. citizenship along with the documents attached [to the letter] as basis for granting his loss of U.S. nationality." (Ex. W at 93.²) In support of his position, Belegrinos attached, among other documents, a "Request for Determination of Possible Loss of United States Citizenship" ("Form DS-4079") (Ex. W at 95-99) and a "Statement of Understanding Concerning the Consequences and Ramifications of Renunciation or Relinquishment of U.S. Nationality" ("Form DS-4081") (Ex. W at 101-02).

On April 21, 2014, a State Department official wrote back to Iglesias, informing him that, to comply with the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101-1537, the StateDepartment could not approve Belegrinos's CLN application until it had received a "written opinion of a consular or diplomatic officer assigned to a U.S. embassy or consulate abroad" that Belegrinos had voluntarily expatriated himself. (Ex. Z.) Therefore, the State Department official returned Belegrinos's application materials and recommended that he make an appointment with a U.S. embassy or consulate abroad. (Id.) Iglesias relayed the State Department's response to Belegrinos and advised him that he would request reconsideration but that Belegrinos would in any event be able to make the expatriation request at a U.S. consulate office following his release from New York state custody. (Ex. AA.)

Thereafter, Iglesias wrote another letter dated July 24, 2014, to the State Department inquiring into Belegrinos's expatriation. (See Ex. BB.) In response, another State Department official told Iglesias that the State Department did not have any record of Belegrinos's expatriation, and that Belegrinos should contact U.S. Citizenship and Immigration Services ("USCIS") if he intended to "renounc[e] his citizenship in the United States pursuant to INA Section 349(a)(6)," the statutory vehicle for renouncing one's citizenship from within the United States. (Id.; see also AC ¶¶ 14-16.)

Three years later, Belegrinos made another request—this time to USCIS—to renounce his U.S. citizenship pursuant to Section 349(a)(6). (See Ex. NN (referencing Belegrinos's April 28, 2017 request to renounce his U.S. citizenship).) After interviewing Belegrinos, USCIS requested that he produce documents demonstrating that he was not prohibited by any court or government restrictions from leaving the United States. (Id.) Belegrinos does not allege whetherhe has provided the requested documents to USCIS. USCIS has not yet rendered a decision on Belegrinos's expatriation application. (Dkt. No. 30 at 227.)³

On March 1, 2018, Belegrinos brought this pro se action against the Government, seeking a declaration that he is not a citizen of the United States and an order that he be expeditiously removed from the United States to Greece. The Government moved to dismiss Belegrinos's Complaint on July 13, 2018. (Dkt. No. 12.) In response, Belegrinos filed an Amended Complaint, which mooted the Government's motion to dismiss. (Dkt. Nos. 20, 31.) Thereafter, the Government filed a new motion to dismiss the Amended Complaint for lack of subject-matter jurisdiction and for failure to state a claim. (Dkt. No. 24.) The briefing is now complete, and this motion is ripe for resolution. (See Dkt. Nos. 25, 30, 35.)

II. Legal Standard

A district court must dismiss a claim for lack of subject matter jurisdiction if it "lacks the statutory or constitutional power to adjudicate it." Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008)); see also Fed. R. Civ. P. 12(b)(1). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

To survive a motion to dismiss for failure to state a claim, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S.544, 570 (2007). A claim is facially plausible when a plaintiff pleads facts that would allow "the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must "accept[] as true the factual allegations in the complaint and draw[] all inferences in the plaintiff's favor." Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006) (quoting Scutti Enters., LLC v. Park Place Entm't Corp., 322 F.3d 211, 214 (2d Cir. 2003)). "A complaint is . . . deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are 'integral' to the complaint." Sierra Club v. Con-Strux, LLC, 911 F.3d 85, 88 (2d Cir. 2018) (quoting L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011)). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.

A complaint filed by a pro se litigant "must be construed liberally to raise the strongest arguments it suggests." Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013) (brackets and internal quotation marks omitted). "Nonetheless, a complaint must contain 'factual allegations sufficient to raise a right to relief above the speculative level,' including 'an allegation regarding [each] element necessary to obtain relief.'" Haughton v. Clinton, No. 15 Civ. 1160, 2015 WL 9244398, at *1 (S.D.N.Y. Dec. 17, 2015) (alteration in original) (quoting Blanc v. Capital One Bank, No. 13 Civ. 7209, 2015 WL 3919409, at *2 (S.D.N.Y. June 24, 2015)).

III. Discussion

Belegrinos seeks a declaration that he is not a citizen of the United States and an order that he be expeditiously removed from the United States to Greece. (AC ¶ 79.) Consistent with this Court's duty to liberally construe and interpret a pro se litigant's submissions "to raise thestrongest arguments that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006), the Court reads Belegrinos's submissions as asserting claims under the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. As such, the Court first lays out the statutory and regulatory framework for expatriation. Then the Court addresses Belegrinos's request for a writ of mandamus. Finally, the Court discusses Belegrinos's APA challenges.

A. Statutory and Regulatory Framework for Expatriation

Section 349 of the INA provides that "a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any [one] of [seven specified] acts with the intention of relinquishing United States nationality," id. § 1481(a). Subsections (a)(1) through (a)(7) codify these seven acts. See id. § 1481(a)(1)-(a)(7). Belegrinos's attempts to petition the State Department here arose under subsection (a)(1), which provides that an individual "shall lose his nationality by voluntarily[,] . . . [and] with the intention of relinquishing United States nationality[,] . . . obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years." Id. § 1481(a)(1). Furthermore, the expatriation act under subsection (a)(1) has to be...