Grullon v. Barr
| Decision Date | 25 February 2021 |
| Docket Number | Civil No. 3:20-cv-0312 |
| Parties | JOSE W. PENA GRULLON, Plaintiff v. WILLAIM PELHAM BARR, et al., Defendants |
| Court | U.S. District Court — Middle District of Pennsylvania |
(Judge Mariani)
Plaintiff Jose W. Pena Grullon ("Pena Grullon"), at the time of filing of the action, an immigration detainee in the custody of the United States Department of Homeland Security, Immigration and Customs Enforcement ("ICE"), filed this civil action pursuant to 28 U.S.C. § 1447, 28 U.S.C. §§ 1331 and 1336, 5 U.S.C. § 701, 28 U.S.C. § 2201, or, alternatively, the Administrative Procedure Act, § 706(1), or the Constitution, requesting that the district court "take action on his [February 28, 2011] form N-400 Application for Naturalization [based on "Roll Back Date Status"]...in order for [him] to become a Naturalization citizen of the United States."1 (Doc. 1, pp. 1, 3, 4). He is seeking immediate release or, in the alternative, "a constitutionally adequate hearing" on his N-400 Application. (Id. at 6). As he has since been removed from the United States, his request for immediate release is rendered moot.2Our consideration is limited to his request for relief related to his February 28, 2011, N-400 Application.
Presently pending is Defendants' motion to dismiss Pena Grullon's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim. (Doc. 18). For the reasons that follow, Defendants' motion will be granted.
In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, a court must determine whether the motion is a "facial" or "factual" attack. A facial attack considers a claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court. See Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014). "[A] facial attack calls for a district court to apply the same standard of review it would use in considering a motion to dismiss under Rule 12(b)(6), i.e., construing the alleged facts in favor of the nonmoving party." Id. As such, a facial attack "contests the sufficiency of the pleadings." Id. (quoting In re Schering Plough Corp., 678 F.3d 235, 243 (3d Cir. 2012)). A factual attack "is an argument that there is no subject matter jurisdiction because the facts of the case ... do not support the asserted jurisdiction." Id. A factual attack requires a factual dispute that concerns the actual failure of a plaintiff's claims to comport factually with the jurisdictional prerequisites. Id. (alterations inoriginal) (internal citations omitted) (quoting CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008)). The plaintiff bears the burden of demonstrating that the court has subject matter jurisdiction. Schneller ex. rel. Schneller v. Crozer Chester Med. Ctr., 387 F. App'x 289, 292 (3d Cir. 2010) (citing Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993)).
Defendants' motion presents a factual attack upon subject matter jurisdiction over Pena Grullon's claim. (Doc. 14, p. 6).
A complaint must be dismissed under FED. R. CIV P. 12(b)(6), if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plaintiff must aver "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662 (2009).
"Though a complaint 'does not need detailed factual allegations, ... a formulaic recitation of the elements of a cause of action will not do.... DelRio-Mocci v. Connolly Prop. Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (internal citations and quotation marks omitted). A court "take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but ... disregard[s] legal conclusions and threadbare recitals of the elements of acause of action, supported by mere conclusory statements." Ethypharm S.A. France v. Abbott Laboratories, 707 F .3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).
Twombly and Iqbal require [a district court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief. Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).
"[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] -that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks omitted). This "plausibility" determination will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
However, even "if a complaint is subject to Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). "[E]ven when plaintiff does not seek leave to amend his complaint after a defendant moves to dismiss it, unless the district court finds that amendment would be inequitable or futile, the court mustinform the plaintiff that he or she has leave to amend the complaint within a set period of time. Id.
Pena Grullon, a native and citizen of the Dominican Republic, alleges that he is a Lawful Permanent Resident who is challenging his removal proceedings in good faith. (Doc. 1, p. 5). He asserts that the "United States Citizenship and Immigration Services" ("USCIS") initially delayed, and then wrongfully denied his N-400 Application for Naturalization, filed on February 24(sic), 2011. (Doc. 1, pp. 11-13, 15). He states that he (Id. at p. 18). In light of evidence presented, he requests that this Court approve his N-400 Application and apply the "Roll Back Date." (Id. at pp. 3, 18).
In his February 28, 2011 naturalization application, Pena Grullon disclosed that he had been arrested and convicted of various criminal offenses, including a June 4, 1997 arrest in Bronx, New York, for Stolen Property, an August 1, 1997 arrest in New York, New York, for Public Intoxication, and a May 5, 2008 arrest in New York, New York, for StolenProperty. (Doc 1-1, pp. 16, 55). An Immigration Officer interviewed him on June 13, 2011, at which time he successfully passed the English-Writing and History and Government tests. (Id. at pp. 18-22). At some point during the interview, USCIS requested additional information and documents related to a December 30, 1994 arrest. (Id. at p. 24). An Immigration Officer re-interviewed him on December 1, 2011, and requested documents related to a December 20, 1994 arrest. (Id. at p. 40). He had a third interview on January 23, 2012, and a fourth interview on June 1, 2012; at each interview, he received requests for evidence related to the December 30, 1994 arrest. (Id. at pp. 43, 45). At his June 1, 2012 interview, USCIS requested his entire record of all convictions, even if expunged. (Doc. 1, p. 12; Doc. 1-1, pp. 80-98).
On November 27, 2012, USCIS informed him that his application was in process and he would be notified of the decision via mail. (Doc. 1, p. 12, Doc. 1-1, p. 102). He inquired about the status of his application on May 8, 2013, June 21, 2013 and August 26, 2013, but received no response from USCIS. (Doc. 1, p. 12). During that time, per USCIS's requests, he renewed his fingerprints (which expire if the application is not adjudicated within fifteen months) on April 20, 2011, December 24, 2012, and January 23, 2013. (Doc. 1, p. 12; Doc. 1-1, pp. 48-66).
On July 22, 2013, Pena Grullon filed a Mandamus action in the United States District Court for the Southern District of New York seeking to compel USCIS to adjudicate his naturalization application. See Grullon v. Holder, et al. No. 1:13-CV-05065 (SD NY Aug.23, 2013).4 Pena Grullon's counsel's voluntarily withdrew the action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) on September 13, 2013.
The mandamus action prompted USCIS to review his naturalization application. That review revealed that the December 30, 1994 arrest for which USCIS had been seeking documentation, was another individual, not Pena Grullon, and, that Pena Grullon had been arrested on May 8, 2013, for Theft of Government Property, Conspiracy and Theft of Government Property, and Aggravated Identity Theft. On August 26, 2013, USCIS requested disposition records related to the arrest. (Doc. 20-1, p. 3). On September 23, 2013, his attorney personally submitted a copy of a sealed criminal complaint filed in the United States District Court for the Southern District of New York. (Id. at p. 5).
USCIS denied his Application for Naturalization, Form 400, on October 3, 2013, stating that he "did not submit...
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