Headley-Ombler v. Holder

• Decision Date: 05 December 2013
• Docket Number: No. 12–CV–2631 WFK LB.,12–CV–2631 WFK LB.
• Parties: Rogelio E. HEADLEY–OMBLER, Plaintiff, v. Eric HOLDER, United States Attorney General, Janet Napolitano, Secretary of Homeland Security, and Director of United States Citizenship and Immigration Services of Buffalo, and New York City District of New York, Defendants.
• Court: U.S. District Court — Eastern District of New York

985 F.Supp.2d 379

Rogelio E. HEADLEY–OMBLER, Plaintiff,

v.Eric HOLDER, United States Attorney General, Janet Napolitano, Secretary of Homeland Security, and Director of United States Citizenship and Immigration Services of Buffalo, and New York City District of New York, Defendants.

No. 12–CV–2631 WFK LB.

United States District Court,

E.D. New York.

Dec. 5, 2013.

Rogelio E. Headley–Ombler, Panama City, Panama, pro se.

Michael C. Rakower, Law Office of Michael C. Rakower, P.C., New York, NY, for Plaintiff.

Margaret M. Kolbe, United States Attorneys Office, Brooklyn, NY, for Defendants.

DECISION AND ORDER

WILLIAM F. KUNTZ, II, District Judge.

Rogelio E. Headley–Ombler (“Plaintiff”) commenced this action against Eric Holder, Attorney General of the United States, Janet Napolitano, the Secretary of Homeland Security, and the Director of United States Citizenship and Immigration Services(“USCIS”) ¹ of Buffalo and the New York City District of New York (collectively “Defendants”), seeking judicial review of the denial of his Form N–600 application for a certificate of citizenship, pursuant to 8 U.S.C. § 1421(c), and a declaratory judgment of United States nationality, pursuant to 8 U.S.C. § 1503(a). Defendants move to dismiss Plaintiff's action pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted, respectively. For the reasons stated below, the Court grants Defendants' motion and dismisses this action with prejudice.

BACKGROUND

I. Plaintiff's Personal Background

Plaintiff was born in Panama on September 6, 1970, and was admitted to the United States as a lawful permanent resident in January 1981. A178.² On November 9, 1988—two months after Plaintiff's eighteenth birthday—Plaintiff's mother became a naturalized citizen of the United States. A31. According to Plaintiff, his mother's petition for naturalization was “approved” prior to Plaintiff's eighteenth birthday. Dkt. No. 1 (Compl.) at 4. However, Plaintiff asserts his mother was not scheduled for a naturalization ceremony until after Plaintiff's eighteenth birthday. Id.

In 1991, Plaintiff was convicted of first-degree assault in New York state court and sentenced to an imprisonment term of one-and-one-half to four-and-one-half years. A125–30. That conviction arose from an incident in which Plaintiff shot an individual in the groin. Compl., Ex. 2 (Br. for Resp't, Headley–Ombler v. Holder, ––– U.S. ––––, 131 S.Ct. 71, 178 L.Ed.2d 246 (2010) (No. 09–9804)) (“AG Br.”) at 5.

II. The Removal Proceedings

Based on that conviction, while Plaintiff was serving his sentence, in April 1997, the former Immigration and Naturalization Service (“INS”) placed Plaintiff in removal proceedings and charged him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony. A179–81.

During removal proceedings before an Immigration Judge (“IJ”), Plaintiff claimed to have derived citizenship through his mother's naturalization. A154–55, A162–63, A172–73. The IJ granted Plaintiff two continuances to give Plaintiff time to collect and present evidence substantiating his claim of citizenship. AG Br. at 6. Nevertheless, Plaintiff did not produce any evidence supporting his claim of derivative citizenship. Id. On July 7, 1998, the IJ ordered Plaintiff removed from the United States, determining that he had failed to provide evidence of derivative citizenship and that Plaintiff was not eligible for relief from removal. A139–45. Plaintiff appealed to the Board of Immigration Appeals (“BIA”), again arguing that he derived citizenship through his mother's naturalization. A136–37. On January 28, 1999, the BIA dismissed Plaintiff's appeal, emphasizing Plaintiff's lack of evidence and noting the IJ's “extraordinary amount of patience with [Plaintiff] in regard to” Plaintiff's derivative citizenship defense. A136. The BIA also advised Plaintiff that if he obtained evidence of his derivative citizenship, he could file a motion to reopen with the BIA. A137.

On January 20, 2000, Plaintiff filed a petition for a writ of habeas corpus in the Southern District of New York. Petition for Writ of Habeas Corpus, Headley v. Dep't of Justice, 00 Civ. 392 (S.D.N.Y. Jan. 20, 2000) (Hellerstein, J.), ECF No. 1. Plaintiff and the Government agreed to a stipulated remand to the BIA to determine whether Plaintiff was eligible for relief under former Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c), in light of INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). A131. On May 22, 2002, the BIA remanded Plaintiff's case to the IJ. A133–34. On December 12, 2002, the IJ found Plaintiff was ineligible for Section 212(c) relief and ordered his removal from the United States. A84–85. On May 29, 2003, the BIA dismissed Plaintiff's appeal from the IJ's decision. A186–88. Plaintiff did not make any citizenship claims in these later proceedings before the IJ or the BIA.

On May 18, 2009, Plaintiff filed a motion with the BIA to reopen his case and terminate removal proceedings, again contending he had acquired derivative citizenship when his mother became a naturalized citizen. A34–46. Plaintiff provided a certificate of naturalization showing his mother had been naturalized on November 9, 1988, two months after Plaintiff's eighteenth birthday. A48. Plaintiff argued the Government's administrative delay in processing his mother's naturalization application, such that she was naturalized after he turned eighteen, violated his due process and equal protection rights, and that the Government should be estopped from denying his naturalization application. A40–43. On June 26, 2009, the BIA denied Plaintiff's motion to reopen on timeliness grounds, noting Plaintiff had filed the motion six years after the BIA's original decision. A83 (citing 8 C.F.R. § 1003.2(b)(2), (c)(2) (90–day filing deadline)). Nor was the BIA, after considering Plaintiff's evidence and arguments, persuaded to reopen or reconsider its earlier decision sua sponte. Id.

The Second Circuit denied Plaintiff's petition for review of the BIA's decision as lacking “an arguable basis in law or fact.” See AG Br. at 11. On November 30, 2009, Plaintiff filed a petition for a writ of certiorari with the United States Supreme Court, which was placed on the docket on March 25, 2010. Compl. at 30. In his brief opposing Plaintiff's petition, the Attorney General noted that Plaintiff “is not precluded from applying to United States Citizenship and Immigration Services for a certificate of citizenship.” AG Br. at 19 n. 7. The Supreme Court ultimately denied Plaintiff's petition. See Headley–Ombler v. Holder, ––– U.S. ––––, 131 S.Ct. 71, 178 L.Ed.2d 246 (2010).

III. Plaintiff's Application for a Certificate of Citizenship

On March 21, 2011, Plaintiff filed a Form N–600 application for a certificate of citizenship on the basis of derivative citizenship through his mother's naturalization. A22–31. On August 25, 2011, USCIS denied Plaintiff's application, and Plaintiff acknowledged personal service of the decision on October 14, 2011. A11–18. Plaintiff filed an appeal to the Administrative Appeals Office (“AAO”) on November 7, 2011, but the AAO did not receive the appeal until November 15, 2011. A5, A19–21. On December 2, 2011, the AAO rejected Plaintiff's appeal as untimely. A4–5. On December 28, 2011, USCIS determined that Plaintiff's appeal, if construed as a motion to reopen, would be denied for failure to present new evidence or demonstrate legal error. A7–8.

IV. Plaintiff's Removal and The Instant Action

On November 25, 2011, after Plaintiff completed his criminal sentence, U.S. Immigration and Customs Enforcement (“ICE”) took Plaintiff into custody in order to remove him from the United States based on the IJ's July 7, 1998 order of removal and the BIA's May 29, 2003 dismissal of Plaintiff's appeal. A185. On January 5, 2012, Plaintiff filed the instant action in the Southern District of New York. See Compl. The complaint claims the District Court has jurisdiction, pursuant to 8 U.S.C. § 1421(c), to stay Plaintiff's removal and grant him citizenship. Id. at 3.

On January 25, 2012, Plaintiff was removed from the United States to Panama. A1–3. On March 8, 2012, Chief Judge Preska of the Southern District of New York issued an order construing this action as an action for declaratory judgment of nationality filed pursuant to 8 U.S.C. § 1503(a). Dkt. No. 5 (“Order Directing Affirmation”) at 3–4. On May 24, 2012, Judge Preska transferred this action to this Court based on her determination that venue was proper in the Eastern District of New York. Dkt. No. 9 (“Transfer Order”).

DISCUSSION

I. Standard of Review

A. Motion to Dismiss Under Fed.R.Civ.P. 12(b)(1)

The Court must dismiss a claim for lack of subject matter jurisdiction under Rule 12(b)(1) when it “lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). “[J]urisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998). The party asserting subject matter jurisdiction has the burden of proving its existence by a preponderance of the evidence. Makarova, 201 F.3d at 113. In determining whether subject matter jurisdiction exists, courts are permitted to look to materials outside the pleadings, including affidavits. J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir.2004).

B. Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6)

In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court construes the claims liberally, “accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 ...