Alzokari v. Pompeo

• Decision Date: 13 August 2019
• Docket Number: 19-cv-488 (BMC)
• Parties: Ahmed Ali ALZOKARI, Plaintiff, v. Michael R. POMPEO, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

394 F.Supp.3d 250

Ahmed Ali ALZOKARI, Plaintiff,

v.Michael R. POMPEO, et al., Defendants.

19-cv-488 (BMC)

United States District Court, E.D. New York.

Signed August 13, 2019

Jan H. Brown, Law Offices of Jan H. Brown PC, New York, NY, for Plaintiff.

Joseph Anthony Marutollo, U.S. Attorney's Office, Brooklyn, NY, for Defendants.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

Plaintiff brings this action against the Department of State and various Department of State officials for claims arising from their revocation of plaintiff's passport. Defendants have moved to dismiss.¹ For the reasons below, defendants' motion to dismiss is granted.

BACKGROUND

The following information is taken from the complaint and the administrative record. Plaintiff traveled to the United States Embassy in Yemen to obtain a consular report of birth abroad for Dawood Ahmed Ali Alzokari. Plaintiff claimed that Dawood was plaintiff's son. A consular officer suspected that Dawood was not plaintiff's son in light of their respective ages, among other reasons.

The consular officer referred the case for investigation to a special agent, who interviewed plaintiff in the presence of a fraud investigator who spoke Arabic. After the interview, plaintiff signed a statement (the "Statement") in which plaintiff admitted that Dawood is plaintiff's grandson, not his son, and that plaintiff has smuggled numerous individuals into the United States by claiming them as his children. Plaintiff also admitted that his real name is Ahmed Ahmed Mohamed Albaadani, even though he applied for a passport under the name Ahmed Ali Alzokari, and that he was born "on/about 1948," even though he claimed in his passport application that he was born in 1955.

Plaintiff signed and fingerprinted each page of the Statement, acknowledged that it was read to him in Arabic and that he understood it, and confirmed that the Statement was accurate. The Department of State subsequently revoked plaintiff's passport in light of the false statements of material fact he included in the passport application.

Plaintiff requested and received a hearing on the revocation of his passport. The hearing officer found that the Statement was "extremely detailed;" that plaintiff's argument that he "only used" the name "Albaadani" because it is the name of a clan related to his farm was "unconvincing;" and that plaintiff's affidavit, which he submitted in connection with the hearing, was "not credible," inconsistent, and contained "questionable" assertions that appeared to be false. The hearing officer recommended upholding the decision to revoke plaintiff's passport, and the Deputy Assistant Secretary for Passport Services followed the hearing officer's recommendation.

Plaintiff commenced a federal lawsuit seeking review of the decision to uphold the revocation of plaintiff's passport, but entered into a stipulation dismissing his claims without prejudice when the Department of State agreed to hold a new administrative hearing. At the second hearing, plaintiff claimed that he was suffering from dementia when he signed the Statement; that he was coerced into signing the Statement; and that the Arabic-speaking official at the interview acted as an interpreter but was biased. The hearing officer weighed and evaluated the evidence, rejected all of plaintiff's arguments, and recommended that the decision to revoke plaintiff's passport be upheld.

The Deputy Assistant for Passport Services followed this recommendation and again upheld the decision to revoke plaintiff's passport. Plaintiff then commenced this action alleging violations of the Administrative Procedure Act (the "APA") and the Due Process Clause of the Fifth Amendment. Plaintiff requests his old passport, a new passport, and a declaratory judgment indicating that defendants violated his rights.

DISCUSSION

To survive a motion to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), "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) ). "A claim has facial plausibility when 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, 129 S.Ct. 1937.

"In adjudicating a motion to dismiss, the Court may consider ... facts alleged in the complaint" and, among other information, "facts of which judicial notice may properly be taken...." Abiuso v. Donahoe, 12-cv-1713, 2015 WL 3487130, at *3 (E.D.N.Y. June 3, 2015) (internal quotation marks omitted). "Agency determinations and administrative findings are public records of which a court may properly take judicial notice." Lia v. Saporito, 909 F. Supp. 2d 149, 161 (E.D.N.Y. 2012). "Generally, a court reviewing an agency decision is confined to the administrative record compiled by that agency when it made the decision." Nat'l Audubon Soc. v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997).

Here, the Court takes judicial notice of the administrative record that defendants have filed in this action on March 28, 2019. Since "plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated." Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991). The administrative record shows that plaintiff has failed to state a claim under the APA or the Due Process Clause of the Fifth Amendment.

I. Administrative Procedure Act

Plaintiff claims that defendants violated the APA when they revoked his passport. As an initial matter, the parties disagree about the correct standard for the Court to use in resolving the APA claims. Defendant urges the Court to apply the relevant standards for judicial review of agency decisions under the APA, but plaintiff requests that the Court instead engage in a de novo review of the hearing officer's decisions.

Plaintiff notes that federal appellate courts conduct a de novo review of mixed questions of law and fact when reviewing decisions of a district court or the Board of Immigration Appeals. See Alom v. Whitaker, 910 F.3d 708, 712 (2nd Cir. 2018) ; Man Ferrostaal, Inc. v. M/V Akili, 704 F.3d 77, 82 (2d Cir. 2012). Plaintiff then analogizes the posture of this case to a federal appellate court conducting such a de novo review. But this analogy is inapt, since a district court's review of agency decisions under the APA is constrained by the standards set forth in the APA. Even assuming plaintiff has raised mixed questions of fact and law, when reviewing administrative proceedings under the APA, a district court "will not engage in ... a de novo review." United States v. Dist. Council of New York City, 90-cv-5722, 2015 WL 5916738, at *4 (S.D.N.Y. Oct. 7, 2015) (internal quotation mark omitted). Rather, "[t]he task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court." Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743–44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985).

The relevant standard under the APA authorizes a court to set aside an agency action that is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ...." 5 U.S.C. § 706(2)(A).² An agency decision is arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or" issued a decision that "is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). "Plaintiffs bear the burden of showing, by citation to evidence in the administrative record, that an agency's actions are arbitrary and capricious." Miezgiel v. Holder, 33 F. Supp. 3d 184, 189 (E.D.N.Y. 2014).

"Under the arbitrary-and-capricious standard, judicial review of agency action is necessarily narrow," Islander East Pipeline Co., LLC, v. McCarthy, 525 F.3d 141, 150 (2d Cir. 2008), and the "reviewing court may not itself weigh the evidence or substitute its judgment for that of the agency." Constitution Pipeline Company, LLC v. N.Y. State Dep't of Envtl. Conservation, 868 F.3d 87, 102 (2d Cir. 2017) (internal quotation mark omitted). Rather, "[t]he reviewing court must determine whether the agency has considered the pertinent evidence, examined the relevant factors, and articulated a satisfactory explanation for its action including whether there is a rational connection between the facts found and the choice made." Ru Jun Zhang v. Lynch, 16-cv-4889, 2018 WL 1157756, at *6 (E.D.N.Y. March 1, 2018) (internal quotation marks omitted).³

The decision at issue is the Department of State's revocation of plaintiff's passport pursuant to 8 U.S.C. § 1504(a). That statute provides that "[t]he Secretary of State is authorized to cancel any United States passport or Consular Report of Birth, or certified copy thereof, if it appears that such document was illegally, fraudulently, or erroneously obtained from, or was created through illegality or fraud practiced upon, the Secretary." Under 22 C.F.R. § 51.62(a)(2), the Department of State may revoke a passport when, among other things, "[t]he passport was illegally, fraudulently or erroneously obtained from the Department; or was created through illegality or fraud practiced upon the Department ...." Further,...