Keane v. Velarde

1

HELENE PATRICIA KEANE, et al., Plaintiffs, v. BARBARA Q. VELARDE, Chief, USCIS Office of Administrative Appeals, et al., Defendants.

No. 21-cv-8257 (LJL)

United States District Court, S.D. New York

August 19, 2022

OPINION AND ORDER

LEWIS J. LIMAN, United States District Judge:

Defendants Barbara Q. Velarde, Chief, United States Citizenship and Immigration Services (“USCIS”) Office of Administrative Appeals; Adam N. Bergeron, Field Office Director, USCIS Providence Field Office; Phyllis Coven District Director, USCIS New York District Office; and Ken Cuccinelli,^[1] Acting Director, USCIS (collectively “Defendants”) move to dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. No. 33. Plaintiffs Helene Patricia Keane, Tara Michelle Keane, Daniel Daskalakis, and Jason Daskalakis (collectively “Plaintiffs”)^[2] brought this mandamus action to compel Defendants to issue certificates of citizenship to Daniel Daskalakis and Jason Daskalakis under Section 322 of the Immigration and Nationality Act (“INA”), 8 U.S.C § 1433. Dkt. No. 1.

For the following reasons, the motion to dismiss is granted.

BACKGROUND

The following facts are accepted as true for purposes of this motion only.

Tara Keane (“Tara”) is a United States citizen residing in Ireland and is the mother of Jason Daskalakis (“Jason”) and Daniel Daskalakis (“Daniel”). Dkt. No. 1 (“Compl.”) ¶ 2. Jason and Daniel were born in Greece on March 8 1993 and May 8, 1995, respectively. Dkt. Nos. 1-1, 1-2.

On August 17, 1998, Tara applied for naturalization on behalf of Jason and Daniel, who were then five years old and three years old, respectively, by submitting N-600 applications to the legacy Immigration and Naturalization Service (“INS”), which is now the USCIS. Compl. ¶¶ 2-4, 12; see also Dkt. Nos. 1-1, 1-2. The applications were submitted pursuant to Section 322 of the INA, 8 U.S.C. § 1433, which governs the naturalization of children born abroad to U.S. citizens.

Because Tara did not have the required physical presence in the United States under the statute, she sought to use the physical presence of her mother Helene Keane (“Helene”)-i.e., the grandmother of Jason and Daniel; Helene is a United States citizen residing in Connecticut. Compl. ¶¶ 1, 12.

On December 23, 1999 and again on August 6, 2001, the New York office of the INS requested additional evidence of Helene's physical presence and the original birth certificates of Daniel and Jason. Id. ¶ 13.

On September 10, 2001, Helene hand-delivered the requested documentation to the INS office in New York, but the INS did not accept the documentation and instructed Helene to mail the documents instead. Id. ¶ 14. Helene mailed the documentation that day from the Church Street Post Office, which is about two blocks from the World Trade Center. Id.; see also Dkt. No. 1-3. The documentation, however, never made it to the respective INS files for Jason and Daniel. Compl. ¶ 15.

On March 5, 2002, the INS denied the N-600 applications of Jason and Daniel, stating that the applicants had failed to respond to the requests for additional evidence. Id. ¶¶ 3-4, 16; see also Dkt. Nos. 1-4, 1-5.

Tara on behalf of Jason and Daniel, timely appealed the denials to the agency's Office of Administrative Appeals and submitted the previously provided evidence requested by the INS and the proof of mailing. Compl. ¶¶ 3-4, 17. The INS office in New York date stamped the appeals on April 3, 2002. Id. ¶ 17; see also Dkt. Nos. 1-6, 1-7.

After receiving the timely appeals, the agency mishandled the files and failed to act on the appeals. Compl. ¶ 18.

Jason turned eighteen on March 8, 2011, and Daniel turned eighteen on May 8, 2013.

On June 11, 2019, after having received no response from the agency for seventeen years, Plaintiffs submitted new appeals. Id. ¶ 19; see also Dkt. Nos. 1-8, 1-9.

On October 11, 2019, the USCIS office in Providence, Rhode Island considered Daniel's 2019 appeal and denied Daniel's application because Daniel was no longer under the age of eighteen. Compl. ¶ 20; see also Dkt. No. 1-10. Because Daniel was no longer under the age of eighteen, the decision did “not reach the issues of whether [he] resided outside of the United States in the legal and physical custody of [his] U.S. citizen mother, or whether [his] maternal grandmother met the physical presence requirements set forth” in the statute. Dkt. No. 1-10 at 2. Daniel appealed, and on May 21, 2020, the Administration Appeals Office of USCIS (“AAO”) denied the appeal. Compl. ¶ 21; see also Dkt. No. 1-11. That same day, the AAO also adjudicated Daniel's original appeal.^[3] Compl. ¶ 21.

As of the date of the complaint in this case, Jason's two appeals were pending.^[4] Id. ¶ 22.

PROCEDURAL HISTORY

The complaint in this case was originally filed in the United States District Court for the District of Connecticut on July 14, 2020. Dkt. No. 1. The complaint brings causes of action for mandamus pursuant to 28 U.S.C. § 1361; for violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 555(b); and for equitable estoppel. Compl. ¶¶ 23-30. Plaintiffs seek an order requiring USCIS to issue certificates of citizenship to Jason and Daniel nunc pro tunc.

On September 18, 2020, Defendants moved, pursuant to Federal Rule of Civil Procedure 12(b)(1), to dismiss plaintiff Helene for lack of standing and moved, pursuant to Federal Rule of Civil Procedure 12(b)(3), to dismiss for improper venue or, in the alternative, to transfer the case. Dkt. Nos. 13, 14. On April 8, 2021, Defendants moved, pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), to dismiss the action for lack of subject matter jurisdiction and for failure to state a claim. Dkt. No. 20.

On September 17, 2021, Judge Bolden of the District of Connecticut granted the motion to dismiss Helene for lack of standing, denied the motion to dismiss for improper venue, and granted the motion to transfer the case to the United States District Court for the Southern District of New York. Dkt. No. 23. Judge Bolden also denied without prejudice to renewal Defendants' motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. Dkt. No. 24. The case was transferred to this Court on October 6, 2021. Dkt. No. 25.

On December 7, 2021, Defendants renewed their motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. Dkt. No. 33. Plaintiffs filed a memorandum of law in opposition to the motion on December 22, 2021. Dkt. No. 35. Defendants replied on March 11, 2022. Dkt. No. 41. The Court held oral argument on the motion on August 11, 2022.

LEGAL STANDARD

A court properly dismisses a claim for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) when it “lacks the statutory or constitutional power to adjudicate it.” Cortlandt St. Recovery Corp. v Hellas Telecomms., S.A.R.L., 790 F.3d 411, 41617 (2d Cir. 2015). “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). “A motion to dismiss for lack of subject matter jurisdiction may ‘raise a facial challenge based on the pleadings, or a factual challenge based on extrinsic evidence.'” U.S. Airlines Pilots Ass'n ex rel. Cleary v. U.S. Airways, Inc., 859 F.Supp.2d 283, 296 (E.D.N.Y. 2012) (quoting Guadagno v. Wallack Ader Levithan Assocs., 932 F.Supp. 94, 95 (S.D.N.Y. 1996)). Where the defendant challenges the legal sufficiency of a complaint's allegations, the court must treat all factual allegations as true and draw reasonable inferences in favor of the complaining party. Robinson v. Gov't of Malay., 269 F.3d 133, 140 (2d Cir. 2001). However, where the jurisdictional challenge is fact-based, the defendant may “proffer[] evidence beyond the [p]leading,” and the plaintiff “will need to come forward with evidence of [its] own to controvert that presented by the defendant ‘if the affidavits submitted on a 12(b) motion . . . reveal the existence of factual problems' in the assertion of jurisdiction.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016) (quoting Exch. Nat'l Bank of Chi. v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir. 1976)). In that case, “no presumptive truthfulness attaches to the complaint's jurisdictional allegations,” and “the burden is on the plaintiff to satisfy the Court, as fact-finder, of the jurisdictional facts.” Guadagno, 932 F.Supp. at 95.

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must include “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). A complaint must offer more than “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement” in order to survive dismissal. Twombly, 550 U.S. at 555, 557. The ultimate question is whether “[a] claim has facial plausibility, [i.e.,] the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Put another way, the plausibility requirement “calls for enough fact to raise a reasonable expectation that discovery will reveal evidence [supporting the claim].” Twombly, 550 U.S. at 556; see...