Mundo-Violante v. Kerry

180 F.Supp.3d 442

Ublester Mundo-Violante, Plaintiff,

v.John F. Kerry, Secretary of State, et al., Defendants.

Civil Action No. 5:15-cv-00064

United States District Court, W.D. Virginia, Roanoke Division.

Signed April 18, 2016

Ublester Mundo-Violante, Loretto, PA, pro se.

Thomas L. Eckert, United States Attorneys Office, Roanoke, VA, for Defendants.

MEMORANDUM OPINION

Elizabeth K. Dillon, United States District Judge

Plaintiff Ublester Mundo-Violante, proceeding pro se , has filed a verified petition asking the court for a declaratory judgment that he is a United States citizen. His suit names as defendants John F. Kerry, Secretary of State, and Jeh Johnson, Secretary of the Department of Homeland Security. In support of his request, Mundo-Violante cites two statutes—8 U.S.C. § 1503(a), which sets forth the process for obtaining a declaration of United States citizenship, and the Declaratory Judgment Act, 28 U.S.C. § 2201.

The court ordered that defendants be served, and they have now filed a joint motion to dismiss and for summary judgment, raising various challenges to the viability of Mundo-Violante's petition. Defendants first seek dismissal under Federal Rule of Civil Procedure 12(b)(1), on the ground that this court lacks jurisdiction over Mundo-Violante's petition, both because he has failed to exhaust his administrative remedies and because “[t]he Court has no authority to award citizenship to [Mundo-Violante].” (Mot. to Dismiss 1, Dkt. No. 14.) Defendants also claim that they are entitled to summary judgment because Mundo-Violante does not meet the statutory requirements for citizenship.

In support of their motion, defendants filed declarations from employees of the United States Citizenship and Immigration Services (USCIS). The declarations either contain documents related to Mundo-Violante's prior attempts to establish United States citizenship or testimony that there is an absence of such documents (such as internal appeals from Mundo-Violante or his adoptive mother, who separately petitioned for citizenship on his behalf). (Dkt. Nos. 15–1 to 15–7.)

The court provided Mundo-Violante with the notice required by Roseboro v. Garrison , 528 F.2d 309 (4th Cir.1975), but Mundo-Violante did not file a response to the motion to dismiss and for summary judgment. (Dkt. No. 16). Instead, he filed separate motions to strike each of the declarations attached to the motion. (Dkt. Nos. 19–24.) Each of the motions to strike raises identical arguments, but is directed toward a different declaration. Defendants have filed a response in opposition to the motions to strike. (Dkt. No. 26.)

For the reasons discussed herein, the court will deny the motions to strike. The court further advises Mundo-Violante that his motions to strike are not responsive to defendants' motion, and he has therefore failed to respond timely to that motion. He will be required, therefore, to show cause as to why the motion to dismiss and for summary judgment should not be granted. If he fails to respond within 21 days, this case may be dismissed because of his failure to prosecute it.

I. BACKGROUND

Mundo-Violante, who was born in Mexico in 1983, was adopted shortly before his 16th birthday by both his adult brother, a non-United States citizen, and his brother's wife, a United States citizen. At the time he filed his petition in this case, he was 32 years old and stated he had lived in the United States continuously for more than 20 years. He claims that he is therefore eligible for United States citizenship, that he has provided proof of that citizenship, and that he has “exhausted all of his administrative remedies.” (Pet. 1–3, Dkt. No. 2.)¹

Attached to Mundo-Violante's petition are various exhibits, including the order of adoption, a Virginia birth certificate issued to him afterward, and what appears to be a form appealing the denial of his citizenship application, although there is no indication that it was sent to, or received by, USCIS. (Pet. Exs. A–B, Dkt. No. 2–1.) While his petition states that several documents or prior court decisions found him to be “a national of the United States of America,” none of the documents he references contain such a declaration. The court thus does not credit his averments that those documents declare him to be a national, because where there is a “conflict between the bare allegations of the complaint and any exhibit attached [to the complaint], ... the exhibit prevails.” S. Walk at Broadlands Homeowner's Ass'n v. Open B and at Broadlands, LLC , 713 F.3d 175, 182 (4th Cir.2013).

Mundo-Violante does not cite to the Child Citizenship Act of 2000 (CCA), 8 U.S.C. § 1431, but it appears that his claim for citizenship relies on the CCA. In relevant part, the CCA allows an adopted child to claim citizenship through a citizen parent if he meets certain requirements. First, to be an adoptive child, he must have been legally adopted while under the age of 16 and resided in the legal custody of the adoptive parent for at least two years. 8 U.S.C. § 1431(b). Then, he must also: (1) have at least one United States citizen parent; (2) be under 18 years of age as of the date the CCA went into effect; and (3) be residing in the United States in the legal and physical custody of the citizen parent as lawfully admitted for permanent residence . Id. § 1431(a) (emphasis added). The emphasized term is defined in the Immigration and Nationality Act (INA) as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” 8 U.S.C § 1101(a)(20).

Defendants' motion contains five declarations from Michael Horvath and one from Jessica Dumas, both USCIS employees, nearly all of which include documentation or statements pertaining to Mundo-Violante's prior attempts to obtain citizenship. Those documents reflect that Mundo-Violante filed a Form N-600, Application for Certificate of Citizenship, in February 2013. (Defs.' Mem. in Supp. of Mot. to Dismiss, Ex. 2 at 2–8, Dkt. No. 15–2.) That application was denied on September 6, 2013, because Mundo-Violante failed to show that he was ever a lawful permanent resident of the United States, and thus failed to satisfy all of the requirements of the CCA. (Id. at 7–8; id. , Ex. 3 at 2–3, Dkt. No. 15–3.) The denial letter explains that Mundo-Violante entered the United States without inspection on May 10, 1996, and that he was “never granted lawful permanent resident status.” (Id. , Ex. 3 at 3.) Notably, nothing in Mundo-Violante's N-600 Form shows otherwise. In fact, where the application asked how and when he became a permanent lawful resident, he responded “unknown.” (Id ., Ex. 2 at 3.)

Mundo-Violante was notified of his right to appeal the denial to the Administrative Appeals Office (AAO), by filing a Form I-290B within 30 days and paying a $630 filing fee. (Id. , Ex. 3.) The denial letter explained that the form could be sent to the Pittsburgh USCIS office. (Id. ) There is no record of him having ever appealed, according to the affidavits submitted by defendants.² (Id. , Ex. 4, Dkt. No. 15–4.) For example, Horvath states that, based on his personal review of both Mundo-Violante's alien registration file and USCIS electronic records, there is no record of Mundo-Violante's “ever filing with the Pittsburgh Field Office or any other USCIS office a Form I-290B to appeal” the denial of his N-600. (Defs.' Mem., Ex. 4, ¶ 4.) Likewise, Jessica Dumas, who is the Chief of Staff for USCIS's AAO, avers that, based on her review of the AAO's records, the office “has no record of Mr. Mundo-Violante ever filing a Form I-290B to appeal the Pittsburgh denial of his N-600.” (Id. , Ex. 5, ¶¶ 1, 4, Dkt. No. 15–5.)

In his petition, Mundo-Violante details his attempts to exhaust as follows:

• On or before September 6, 2013, he applied to INS for official citizenship documentation, which was refused.

• On or before September 6, 2013, he made an “application to appeal the ‘INS' failure by its want of hearing. This application for review also went unanswered and non-responsive.”

• On or before September 6, 2013, he applied to “the Office of the State Department and Secretary of State for official citizenship documentation,” but did not obtain any certificate of citizenship.

• On or before August 18, 2014, he applied to this court seeking citizenship, but his filing was construed as a petition under 28 U.S.C. § 2241 and denied for want of jurisdiction.³

(Pet. 4.)

II. DISCUSSION

A. Plaintiff's Motions to Strike

Because Mundo-Violante seeks to strike affidavits submitted in support of both a Rule 12(b)(1) and a summary judgment motion, the court discusses what types of documents may generally be considered in those contexts. The first part of defendants' motion is brought pursuant to Rule 12(b)(1), which challenges the court's subject-matter jurisdiction over plaintiff's claim. The plaintiff bears the burden of establishing that subject-matter jurisdiction exists. Evans v. B.F. Perkins Co. , 166 F.3d 642, 647 (4th Cir.1999).

The Fourth Circuit has recognized that there are two distinct ways in which a defendant can challenge subject-matter jurisdiction. Kerns v. United States , 585 F.3d 187, 192 (4th Cir.2009). The first is to make a facial challenge, by contending “that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based.” Kerns , 585 F.3d at 192 (quoting Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir.1982) ). “In that situation, the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Id.

The second way is to assert, as defendants do here, “that the jurisdictional allegations of the complaint [are] not true.” Id. (quoting Adams, 697 F.2d at 1219 ). Where this type of challenge is made, “[a] trial court may then go beyond the allegations of the...