Lainez v. Osuna

ROGER A. LAINEZ, Plaintiff, v. JUAN P. OSUNA, ET AL., Defendants.

17 Civ. 2278 (HBP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 8, 2018

OPINION AND ORDER

PITMAN, United States Magistrate Judge:

I. Introduction

By notice of motion dated July 18, 2017 (Docket Item ("D.I.") 18), defendants move to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction. All parties have consented to my exercising plenary jurisdiction in this matter pursuant to 28 U.S.C. § 636(c). For all the reasons set forth below, defendants' motion is granted.

II. Facts

A. Background

Roger A. Lainez ("plaintiff") is a citizen of El Salvador. He immigrated to the United States in 1979 at the age of eight with his mother as a lawful permanent resident (Plaintiff's Complaint, dated Mar. 29, 2017 (D.I. 1) ("Compl.") ¶ 5; Transcript of Removal Proceedings before the Honorable Roger Sagerman Immigration Judge, dated Aug. 1, 2017 (D.I. 29-1) ("Removal Trans.") at 97). Plaintiff's mother became a naturalized citizen in 1985 prior to plaintiff's eighteenth birthday (Removal Trans. at 98). Plaintiff has not had any contact with his father in several years; his father did, however, sign his birth certificate admitting paternity and is a lawful permanent resident of the United States (Removal Trans. at 98). Plaintiff's parents were never married (Removal Trans. at 99).

Plaintiff was convicted of multiple aggravated felonies since arriving in the United States. On January 21, 1998, plaintiff was convicted of attempted robbery in the first degree, in violation of New York Penal Law Sections 100 and 160.15 (Notice to Appear, dated Jun. 24, 2009, annexed to Compl. (D.I. 1) ("NTA") at 3). Thereafter, he was convicted on April 24, 2009 of two counts of robbery in the first degree and two counts of burglary in the first degree, in violation of New York Penal Law Sections 160.15(3), 160.15(4), 140.30(3) and 140.30(4) (NTA at 3). Plaintiff is currently serving an aggregate 12-year jail sentence for the 2009 convictions (Removal Trans. at 14).

B. Plaintiff's Removal Hearing

On June 24, 2009, United States Immigration and Customs Enforcement ("ICE") commenced removal proceedings against plaintiff by serving him with the NTA. The NTA charged that plaintiff was removable from the United States on the basis of his prior criminal convictions pursuant to Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."). Plaintiff appeared before The Honorable Roger Sagerman, Immigration Judge, nine times between December 10, 2009 and May 9, 2012. During several of those appearances, plaintiff asserted a citizenship defense, arguing that he was entitled to derivative citizenship because his mother was naturalized prior to his eighteenth birthday (Removal Trans. at 25, 31, 39). Plaintiff also applied for deferral of removal pursuant to Article III of the United Nations Convention Against Torture ("CAT") (Removal Trans. at 39).

In support of his claim of citizenship, plaintiff relied on Section 321 of the INA, 8 U.S.C. § 1432(a), repealed byChild Citizenship Act of 2000, INA § 320, 8 U.S.C. § 1431(a),¹ which permits an alien child born out of wedlock to obtain derivative citizenship from naturalized parents where, prior to his eighteenth birthday, (1) the child resided in the United States pursuant to a lawful admission for permanent residence, (2) the child's mother was naturalized and (3) the child was never legitimized by his father. If an out of wedlock child's father had legitimized him, both parents were required to be naturalized prior to the child's eighteenth birthday in order for the child to obtain derivative citizenship. See INA § 321. As Judge Sagerman pointed out in plaintiff's removal proceedings, plaintiff was not entitled to derivative citizenship under INA § 321 because his father had legitimized him by signing his birth certificate and his father was never naturalized (Removal Trans. at 25).

On May 12, 2009, Judge Sagerman issued an oral decision finding that plaintiff was not entitled to derivative citizenshipunder INA § 321, and rejecting plaintiff's CAT claim, noting that plaintiff had failed to "establish it is more likely than not that he would be tortured . . . if removed from the United States" (Removal Trans. at 99, 105). Judge Sagerman issued an order of removal and advised plaintiff of his appellate rights (Removal Trans. at 107). Judge Sagerman also provided plaintiff with a written copy of the removal order and necessary forms to take an appeal (Removal Trans. at 106, 107). There is nothing in the record indicating that plaintiff ever filed an appeal with the Board of Immigration Appeals ("BIA"), and plaintiff's order of removal became final on June 8, 2012.

C. Plaintiff's N-600 Application

When plaintiff raised his derivative citizenship defense during removal proceedings, the Department of Homeland Security ("DHS") provided plaintiff with an N-600 application for citizenship on August 3, 2011 (Removal Trans. at 46). Judge Sagerman provided a second application to plaintiff on February 15, 2012 (Removal Trans. at 57, 58). The plaintiff submitted his N-600 application to United States Citizenship and Immigration Services ("USCIS") on March 12, 2012, but it was rejected ten days later because plaintiff had failed to pay the necessary fee(Rejection Notice of N-600, dated Mar. 22, 2012, annexed to Compl. (D.I. 1) ("Rej. Notice") at 1). Plaintiff submitted another N-600 application on May 2, 2012 with the appropriate fee waiver application (Receipt Notice of N-600, dated May 14, 2012, annexed to Compl. (D.I. 1)).

USCIS denied plaintiff's N-600 application on September 14, 2013 for the same reasons given by Judge Sagerman: plaintiff was not eligible to receive derivative citizenship under INA § 321 because his father had legitimized him, but was never himself naturalized (N-600 Decision at 1-2). The decision denying plaintiff's N-600 application informed plaintiff he could appeal USCIS's ruling directly to the Administrative Appeals Office ("AAO") within thirty days (N-600 Decision at 2). Nothing in the record indicates plaintiff ever filed an appeal with the AAO.

D. Plaintiff's Current Action

Plaintiff commenced this action pro se on March 29, 2017 (Compl.). Construing the complaint broadly, plaintiff seeks (1) a declaratory judgment that he is a United States citizen; (2) an injunction to stay Judge Sagerman's May 9, 2012 removal order; (3) a declaration that Judge Sagerman's and USCIS's rejection of plaintiff's derivative citizenship claim was arbi-trary and capricious under the Administrative Procedure Act ("APA") and (4) a writ of mandamus compelling USCIS to adjudicate plaintiff's N-600 application (Compl.).

Defendants seek, dismissal of plaintiff's complaint for lack of subject-matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Plaintiff submitted a one-page response to defendants' motion, repeating his request for a declaration of his citizenship, 'but failing to respond to any of defendants' jurisdictional arguments (Rebuttal to Respondent's Memorandum, dated Jan. 17, 2018 (D.I. 41) at 1).

III. Analysis

A. Applicable Legal Principles

1. Rule 12(b)(1)

"It is a fundamental precept that federal courts are courts of limited jurisdiction." Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Federal courts, other than the United States Supreme Court, have only the subject-matter jurisdiction that Congress confers upon them. "[S]ubject-matter jurisdiction cannot be waived and the issue can be raised at any time in the course of litigation." Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 786 (2d Cir. 1994), citingFed.R.Civ.P. 12(h)(3). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In ruling on a motion to dismiss for lack of subject-matter jurisdiction, a court "may consider affidavits and other materials beyond the pleadings." J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004); accord Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002); Makarova v. United States, supra, 201 F.3d at 113. The party asserting subject-matter jurisdiction bears the burden of proving that it exists. Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010); Makarova v. United States, supra, 201 F.3d at 113; United Food & Commercial Workers Union v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994)

2. Federal Jurisdiction over Citizenship Claims

The federal court's jurisdiction over claims for citizenship is extremely limited. There are only two situations in which an individual may seek judicial review of a derivative citizenship claim.

A claim of derivative citizenship may be subject to judicial determination when an individual asserts citizenship as a defense in removal proceedings before an immigration judge ("IJ"). Rios-Valenzuela v. Dep't of Homeland Sec., 506 F.3d 393, 396 (5th Cir. 2007); see also Pessoa v. Holder, 10 Civ. 1387 (SHS), 2011 WL 2471206 at *3 (S.D.N.Y. Jun. 21, 2011) (Stein, D.J.). If the IJ rejects the defense and orders removal, the person may appeal the IJ's decision to the BIA within thirty days. 8 U.S.C. § 1252(b)(1); Ruiz-Martinez v. Mukasey, 516 F.3d 102, 119 (2d Cir. 2008); Pessoa v. Holder, supra, 2011 WL 2471206 at *3; Boyd v. Immigration & Customs Enforcement, 344 F. Supp. 2d 869, 872 (E.D.N.Y. 2004). If the BIA also rejects the citizenship claim, the aggrieved individual may then file a petition for review of the 'citizenship claim in "the court of appeals for the judicial circuit in which the immigration judge completed the proceedings." 8 U.S.C. §§ 1252(b)(2), (b)(5); Esseadi v. U.S....