Akpan v. Cissna

• Citation: 288 F.Supp.3d 155
• Decision Date: 22 January 2018
• Docket Number: Civil Action No. 17–0252 (DLF)
• Parties: Benedict AKPAN, Plaintiff, v. L. Francis CISSNA, Director, United States Citizenship and Immigration Services, Gregory Richardson, Director, Texas Service Center, and Conrad Zaragoza, Field Office Director, Baltimore District Office, Defendants.
• Court: U.S. District Court — District of Columbia

288 F.Supp.3d 155

Benedict AKPAN, Plaintiff,

v.L. Francis CISSNA, Director, United States Citizenship and Immigration Services,¹ Gregory Richardson, Director, Texas Service Center, and Conrad Zaragoza, Field Office Director, Baltimore District Office, Defendants.

Civil Action No. 17–0252 (DLF)

United States District Court, District of Columbia.

Signed January 22, 2018

James Coogan Montana, Law Office of James Montana, Arlington, VA, for Plaintiff.

Scott Leeson Sroka, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District Judge

In this action, Plaintiff Benedict Akpan ("Akpan") petitions this Court to amend his certificate of naturalization or compel the United States Citizenship and Immigration Services ("USCIS") to amend the certificate. Before the Court is the Defendants' Motion to Dismiss Plaintiff's Petition. Dkt. 10. For the reasons that follow, the Court will grant the motion.

I. BACKGROUND

Akpan is a naturalized U.S. citizen who claims to have been born on October 1, 1951, in Ekpene Ukim, Nigeria, although his Nigerian passport and U.S. naturalization certificate indicate that his date of birth is October 1, 1956. Pl.'s Pet. to Amend Certificate of Naturalization ("Pet.") ¶¶ 8, 10, Dkt. 1. According to Akpan, his Nigerian passport reflects an incorrect date of birth because a family member, who is no longer alive, made a mistake when submitting Akpan's application for a Nigerian passport. Id. ¶¶ 8–9; see also Pet. Ex. 3, Affidavit of Benedict Edet Akpan ("Aff.") ¶¶ 5, 9. Akpan claims that he continued to assert the allegedly incorrect birthdate on his 1995 U.S. naturalization application because he thought that his application was required to have the same date of birth that was listed on his Nigerian passport. Pet. ¶ 14. Although a full discussion of the facts alleged in Akpan's petition is not necessary to resolve this motion, some factual background is helpful to understand his claims.

In 1980, Akpan applied for a non-immigrant student visa to study in the United States. Aff. ¶ 7. He also obtained—via a now-deceased family member—a Nigerian passport with an allegedly incorrect date of birth. Pet. ¶ 9; Aff. ¶ 9. According to Akpan, he provided his correct date of birth on his student visa application, and prior to his student visa interview, he alerted U.S. consular officials to the error on his Nigerian passport. Aff. ¶¶ 7–10. Akpan claims, however, that U.S. consular officials instructed him to accept a student visa with the incorrect date of birth, travel to the United States on an incorrect Nigerian passport, and fix the error when he returned to Nigeria after the expiration of his non-immigrant student visa. Id. ¶ 10. As a result, Akpan traveled to the United States on a student visa that reflected that he was 24 years old, rather than 29 years old as he now claims to have been at the time. See id. ¶¶ 2, 10. In the United States, Akpan attended West Virginia State College and later transferred to Howard University. Id. ¶ 2.

After completing his studies in the United States, Akpan did not return to Nigeria immediately. Instead, he remained in the United States without lawful immigration status from 1986 to 1988. Pet. ¶ 12. At some point between 1986 and 1988, Akpan initiated proceedings to become a permanent resident of the United States. See id. ¶ 12; Aff. ¶ 3. During that application process, he provided the date of birth listed on his Nigerian passport. Pet. Ex. 2, ¶ 3. Akpan was granted lawful permanent residency in 1988. Pet. ¶ 13. After becoming a permanent resident, Akpan returned to Nigeria but did not correct the alleged error on his passport. See Pet. Ex. 2, ¶ 3.

In the 1990s, Akpan applied to become a naturalized citizen of the United States using the same allegedly incorrect birthdate: October 1, 1956. Akpan claims that he continued to use that date of birth because "he thought that his Naturalization application was required to have the same date of birth that was listed on his Nigerian passport." Pet. ¶ 14. Akpan's application for citizenship was successful, and in 1995, USCIS's predecessor, the Immigration and Naturalization Service, issued Akpan a naturalization certificate with the same allegedly incorrect date of birth. Id. ¶ 15 & Ex. 5.

In 2014, nearly twenty years after Akpan become a naturalized citizen, he took his first official step to correct the alleged birthdate error on his naturalization certificate. He submitted a Form N–565 (Application for Replacement Naturalization Document) to USCIS, requesting that USCIS issue him an amended naturalization certificate with a different date of birth: October 1, 1951, which would make him 66 years old today. Pet. Ex. 2. In a letter dated July 8, 2015, USCIS denied Akpan's request for an amended naturalization certificate. Pet. ¶¶ 16–18 & Ex. 9.

USCIS's denial is the subject of this action, which Akpan brought on February 7, 2017 against USCIS officials in their official capacities: the Director of USCIS, the Director of the Texas Service Center, and the Field Office Director of the Baltimore District Office (together, the "Defendants"). Pet. ¶¶ 3–5. Akpan's petition requests that the Court amend his certificate of naturalization or compel USCIS to amend the certificate. Id. ¶¶ 1, 6. To establish his actual date of birth, Akpan has attached as exhibits to his petition his own declaration and affidavit, a baptismal certificate, various school certificates, and an affidavit from a third party. See Pet. Exs. 2–3, 4–8.

On July 28, 2017, Defendants moved to dismiss Akpan's petition for lack of jurisdiction, under Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6). Defs.' Mot. to Dismiss at 1, Dkt. 10.

II. LEGAL STANDARDS

Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss an action or claim when the court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion for dismissal under Rule 12(b)(1)"presents a threshold challenge to the court's jurisdiction." Haase v. Sessions , 835 F.2d 902, 906 (D.C. Cir. 1987). Federal district courts are courts of limited jurisdiction, and it is "presumed that a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Thus, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. Moran v. U.S. Capitol Police Bd. , 820 F.Supp.2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ).

"When ruling on a Rule 12(b)(1) motion, the court must treat the plaintiff's factual allegations as true and afford the plaintiff the benefit of all inferences that can be derived from the facts alleged." Jeong Seon Han v. Lynch , 223 F.Supp.3d 95, 103 (D.D.C. 2016) (internal quotation marks and citation omitted). Those factual allegations, however, receive "closer scrutiny" than they would in the Rule 12(b)(6) context. Id. Also, unlike when evaluating a Rule 12(b)(6) motion, a court may consider documents outside the pleadings to evaluate whether it has jurisdiction. See Jerome Stevens Pharm., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005). If the court determines that it lacks jurisdiction, the court must dismiss the claim or action. Fed. R. Civ. P. 12(b)(1), 12(h)(3).

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint "must contain 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Although "detailed factual allegations" are not required, a plaintiff must provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation," id. , and must "raise a right to relief above the speculative level," Twombly , 550 U.S. at 555, 127 S.Ct. 1955. To state a facially plausible claim, the plaintiff must plead "factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. A complaint alleging "facts [that] are ‘merely consistent with’ a defendant's liability ... ‘stops short of the line between possibility and plausibility of entitlement to relief.’ " Id. (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ).

When evaluating a Rule 12(b)(6) motion, the court "must construe the complaint in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged." Hettinga v. United States , 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks omitted). Conclusory allegations, however, are not entitled to an assumption of truth, and even allegations pleaded with factual support need only be accepted insofar as "they plausibly give rise to an entitlement to relief." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. Along with the allegations within the four corners of the complaint, the court can consider "any documents either attached to or incorporated in the complaint and matters of which [it] may take judicial notice." EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C. Cir. 1997).

III. ANALYSIS

A. The Immigration Act of 1990 and 8 C.F.R. § 334.16

Akpan's "Petition to Amend Certificate of Naturalization" requests that this Court amend—or compel USCIS to amend—Akpan's certificate of naturalization. Pet. ¶¶ 1, 6, prayer for relief. The petition asserts that this Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331 and 8 C.F.R. § 334.16, which purportedly "has been held to provide Federal District Courts with original jurisdiction...