Dweidary v. City of Cincinnati

• Decision Date: 07 October 2014
• Docket Number: Case No. 1:13-cv-911
• Parties: MOHAMMAD-MUAWYEH MOHAMMAD-YAHYA DWEIDARY, Plaintiff, v. CITY OF CINCINNATI, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

MOHAMMAD-MUAWYEH MOHAMMAD-YAHYA DWEIDARY, Plaintiff,
v.
CITY OF CINCINNATI, et al., Defendants.

Case No. 1:13-cv-911

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

October 7, 2014

Black, J.
Litkovitz, M.J.

REPORT AND RECOMMENDATION

Plaintiff, a Syrian national seeking to become a citizen of the United States, filed a pro se civil complaint against the City of Cincinnati and the United States Immigration and Naturalization Services (INS)¹ alleging employment discrimination and other violations of federal law. (Doc. 3). Upon sua sponte review of the complaint under 28 U.S.C. § 1915(e)(2)(B), plaintiff's claims against the City of Cincinnati and his employment discrimination claim against the federal defendant were dismissed. (Doc. 5). Plaintiff subsequently filed an amended complaint requesting that the Court compel the INS to allow plaintiff to take the oath of citizenship. (Doc. 14). This matter is now before the Court on the federal defendant's motion to dismiss plaintiff's remaining claims for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted (Doc. 15) and plaintiff's response in opposition to defendant's motion. (Doc. 18).²

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I. Motion to Dismiss

A. Allegations of the complaint (Doc. 3)

Plaintiff makes the following allegations in his complaint³: Plaintiff came to the United States on a "student visa" in May of 1971. (Doc. 3 at 3). Plaintiff received a Master's Degree in economics in 1973 from Portland State University and another Master's Degree in economics from the University of Cincinnati after attending school there from 1973 to 1974. (Id.). On July 5, 1973, plaintiff became a "permanent resident" of the United States. (Id.).

Approximately five years after becoming a permanent resident, "right after the date of July 5, 1978, plaintiff submitted an application for naturalization together with the required fees and supporting documentation. (Id. at 5). Plaintiff waited two years for the INS to act on his application and made over 100 phone calls and paid over 100 visits to the INS office to inquire about his application, but he did not receive a "positive answer." (Id.). "Later in years" plaintiff submitted another application for naturalization and was given an interview in relation to his application. (Id. at 5, 7). Plaintiff received a pre-typed form stating he had "passed" the naturalization interview on March 19, 2001. (Id. at 7). Although plaintiff has made countless "visits and telephone calls" since that time, the INS has not scheduled plaintiff to take the oath of citizenship. (Id.). plaintiff's case has been pending for 40 years, which he asserts is "unfair." Id. Plaintiff claims that the INS should be compelled to administer the oath of citizenship or deport plaintiff provided there is a "good reason" to do so. (Id.). Plaintiff also maintains that any "good reason" the INS may have had to deport him at one point in time has been obviated by the INS's inaction on his applications. (Id. at 9).

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B. Defendant's motion to dismiss (Doc. 15)

Defendant moves to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 15). Defendant contends the Court lacks subject matter jurisdiction over this case because plaintiff failed to exhaust his administrative remedies before seeking judicial review in this Court. Defendant asserts that on June 16, 1980 and August 7, 2002, the INS denied two applications for naturalization filed by plaintiff; however, the complaint includes no allegation that plaintiff sought an administrative hearing on either denial as required under 8 U.S.C. § 1447(a). (Id. at 3-4; Exhs. 1-3). Defendant therefore contends that plaintiff's complaint must be dismissed pursuant to 8 U.S.C. §§ 1447(a), 1421(c) and 8 C.F.R. § 336.9(d) for failure to exhaust administrative remedies. (Id.). Defendant further contends that the complaint must be dismissed as moot pursuant to Fed. R. Civ. P. 12(b)(1) because plaintiff has received all the relief he seeks, i.e., full adjudication of his applications for naturalization. (Id. at 4-6).

Defendant has attached to the motion to dismiss the Declaration of Helaine Tasch, Field Office Director of the Cincinnati Field Office of the USCIS, Department of Homeland Security, and exhibits which Ms. Tasch identifies as copies of the original records contained in plaintiff's file with the INS and USCIS. (Doc. 15, Exhs. 1-3, Tasch Deck, ¶ 5).⁴ The first document is a "Petition for Naturalization," which was denied on June 16, 1980. (Id., Exh. 1).

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The second document is an August 7, 2002 "Decision" on an application for naturalization which was filed by plaintiff on November 7, 2000. (Id., Exh. 2). The Decision includes the following "Explanation" of the denial of the application: Plaintiff indicated on the application his absences from the United States since July 5, 1973, the date he became a permanent resident, and he confirmed those absences when he appeared for a scheduled examination as to his eligibility for naturalization on March 19, 2001. The record did not support plaintiff's account of his absences. The record showed that plaintiff was "granted lawful permanent resident status as the spouse of . . . a United States citizen" on July 5, 1973, and he filed an application to file a petition for naturalization on May 15, 1978. On June 16, 1980, the application was denied for lack of prosecution. It was later established that plaintiff's marriage was a "sham, entered solely for the purpose of circumventing the immigration laws"; on March 6, 1979, deportation proceedings were initiated against plaintiff; and in February 1980, he was requested to appear before an immigration judge but failed to appear. On March 10, 1980 plaintiff filed an application for a permit to reenter the United States and claimed he had just returned to the United States on March 1, 1980, and planned to return to Saudi Arabia on March 11, 1980, to continue his employment with the "Binladen Brothers" because he had been unable to find employment in the United States. He listed two years as his intended length of stay and requested that his reentry permit be mailed to the United States Consulate in Jeddah, Saudi Arabia. Plaintiff filed an application for a new "green card" (Form I-90) on March 11, 1980, claiming his card had been lost or stolen and he listed no absences from the United States of one year or longer. He requested that his new card be mailed to the United States Consulate in Jeddah, Saudi Arabia. Plaintiff departed the United States on or about March 11, 1980. His applications filed on March 10 and 11, 1980, were denied. Plaintiff filed an appeal of the denial

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from his application for a reentry permit in April 1981 from Saudi Arabia, but the appeal was denied. Plaintiff applied for and was granted a nonimmigrant B1/B2 visitor's visa at the United States Consulate in Damascus, Syria on May 3, 1999, which would have required that plaintiff prove to a consular officer that he intended to seek entry into the United States consistent with the purposes of the visa classification for a temporary period and that he had a residence in Syria he did not intend to abandon. There is no evidence on file that plaintiff resided in the United States from March 11, 1980 to June 16, 1999. In August 1999, based on information plaintiff provided, an application to replace a green card filed by plaintiff was approved but the approval was erroneous as plaintiff had "long since abandoned [his] status as a permanent resident" when he departed the United States on or about March 11, 1980, and in August 1999 he was in the United States as a "nonimmigrant, not a lawfully admitted permanent resident." Plaintiff reaffirmed that he had abandoned his lawful permanent resident alien status by applying for and being issued a nonimmigrant visa for pleasure on May 3, 1999, and giving false testimony to the United States Consulate on that date when he applied for and was granted the B1/B2 visa. Plaintiff also knowingly and willfully gave false testimony during his scheduled examination on March 19, 2001, when he answered "no" to the question of whether he had ever given false testimony for the purpose of obtaining any immigration benefit.

The Decision advised plaintiff in conclusion that his 2000 application for naturalization was denied because he failed to meet the necessary requirements listed in 8 C.F.R. § 316.2, specifically:

You are statutorily ineligible for naturalization as you have not been lawfully admitted as a permanent resident of the United States, and on May 3, 1999, and on March 19, 2001, you knowingly and willfully gave false testimony. You have not met your burden of demonstrating that during the statutory period you have been and continue to be a person of good moral character.

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(Id.) (emphasis in original). Plaintiff was informed in the Decision that in order to have a hearing to review the denial of his application, "you must file a request for hearing within 30 Days of the date of this notice" or the decision would become final, and plaintiff was advised of how to request a hearing. (Doc. 15, Exh. 2) (emphasis in original). Ms. Tasch states in her Declaration that there are no pending administrative appeals for either of plaintiff's requests for...