Kennedy v. United States Citizenship & Immigration Servs.
| Decision Date | 18 May 2012 |
| Docket Number | Case No. 5:11 -cv-02407-EJD |
| Parties | RICHARD KENNEDY, Petitioner, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, DISTRICT DIRECTOR, Respondent. |
| Court | U.S. District Court — Northern District of California |
Presently before the Court is a petition filed by Petitioner, Richard Kennedy. On his Certificate of Naturalization, Petitioner seeks relief to amend both his name and date of birth. See Pet., ¶ 1-3, Docket Item No. 1. Respondent moves the Court to dismiss Petitioner's request to amend his name for lack of subject matter jurisdiction. Respondent also seeks summary judgment denying Petitioner's request to amend his date of birth. See, Motion Brief, Docket Item No. 20. Petitioner has not submitted written opposition to Respondent's brief. His Petition, however, does provide grounds, which if proven, support the relief sought. Consistent with Supreme Court authority, and given that the Petitioner appears Pro Se, those grounds have been construed liberally. See, Haines v. Kerner, 404 U.S. 519, 520-21(1972).
Having reviewed the relevant portions of the record - including the Petition and the Respondent's brief - the Court grants the Respondent's motions for dismissal and summary judgment.
Petitioner's birth name was Van Thanh Nguyen. See, CAR092-94.1 He states that he was born on January 1, 1952. See, Pet., at ¶ III(a). To avoid being drafted into the Vietnamese army, Petitioner states that he told "Vietnamese authorities his birth date was January 1, 1955 making him ineligible for the draft." Id., at ¶ III(b)
Petitioner entered the United States on October 22, 1975. He listed his name as Van Thanh Nguyen and his date of birth as January 1, 1955 on his application to enter the United States. See,CAR 092-094. On September 21, 1978 he further listed his birth date as January 1, 1955 when he applied for permanent residency. See, CAR 078-80. The same birth date was listed when he applied for citizenship on July 14, 1982. See, CAR 073-76. On July 5, 1984, the United States District Court for the Northern District of California naturalized Petitioner. See, Pet., at ¶ III(c); CAR 064. At that time, the court issued a decree granting Petitioner's petition for a name change from Van Thanh Nguyen to Richard Kennedy. See, CAR 065. The decree was made pursuant to 8 U.S.C. § 1447(e). His Certificate of Naturalization now bears the name, Richard Kennedy - a name he assented to, and chose "based on the names of two previous U.S. Presidents." Id., at ¶ III(c).
On October 13, 1992 Petitioner claims that he sought and obtained an order adjusting his date of birth in Santa Clara County Superior Court. The order gives the adjusted date of birth as January 1, 1952. Id., at Pet. ¶ III(a) and Ex. B, ('Order to Adjust Birth Record'). He claims that he sought this order upon "learning of his official birth date" in 1992. Id. at Ex. B; CAR 027-28.
On March 17, 2006 Petitioner filed an N-565 form seeking a replacement for his Certificate of Naturalization. On this document - filed fourteen years after obtaining the state court order regarding his adjusted birth date - Petitioner again listed his date of birth as January 1, 1955. See, CAR 060. On September 20, 2010 Petitioner filed a second N-565 form seeking to amend the date of birth of his Certificate of Naturalization to January 1, 1952. On November 12, 2010, the request was denied. Later, that same month, he appealed the denial of his application. See, CAR 032.
On January 3, 2011 Petitioner made a further attempt to change his date of birth by filing another N-565 form. This application sought the same relief as the September 20 application. Again, only a change of date of birth was sought. See, Pet., at ¶ III(d); CAR 015-16. On February 14, 2011 the District Director of the USCIS Nebraska Service Center denied this second application with the appeal being denied on March 24, 2011. See, Pet., at ¶ III(d); CAR 002-10.
On May 17, 2011 Petitioner filed the present Petition before the Court. The Petition seeks amendment to date of birth and, for the first time, change to his name on the Certificate of Naturalization. See, Pet., at ¶ III(a). On November 15, 2011 motion to dismiss for lack of jurisdiction and motion for summary judgment were filed by the Respondent. On February 7, 2012 this Court granted an order providing that both motions be determined without oral argument.
Respondent summarized the two issues that are before the Court. Minor modifications have been made as follows:
A. Whether the Court possesses subject matter jurisdiction to order Respondent to amend the name on the Certificate of Naturalization of Petitioner, Richard Kennedy, to his native born name, Van Thanh Nguyen? If not, does Rule 12(b)(1) of the Federal Rules of Civil Procedure require the Court to dismiss the portion of the Petition seeking this relief?
B. Whether Petitioner has met his burden of proof to show his entitlement to an amended Certificate of Naturalization that bears a different date of birth to that presently inscribed on the record? If not, does Rule 56 of the Federal Rules of Civil Procedure require the Court to issue summary judgment denying the portion of the Petition seeking this relief?
Before engaging the analysis, it is worth noting that entangled within these motions for determination is the spectre of immigration law - an area of law described as "notoriously intricate" and "second only to the Internal Revenue Code in complexity." Castro-O'Ryan v. U.S. Dep't of Immigration and Naturalization, 847 F.2d 1307, 1312 (9th Cir.1988). Amongst other reasons - including the fact that it presents an issue of first impression in the Northern District of California - close attention has been given to the disposition of this case and the relevant law that applies in the naturalization context.
Respondent moves to dismiss the Petition based on lack of subject matter jurisdiction. Pursuant to 12(b)(1) Fed. R. Civ. P., the Court may dismiss an action for lack of subject matter where the court has neither constitutional, nor statutory basis for a determination. See, Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004).
Rule 12(b)(1) motions may challenge jurisdiction facially or factually. Id. Id. It is the plaintiff who bears the burden of proving the existence of subject matter jurisdiction. See, Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996).
If the Court determines that it lacks subject matter jurisdiction, the Court must dismiss the action pursuant to Fed. R. Civ. P. 12(h)(3).
Respondent's argument is based on the theory that this Court is without jurisdiction to amend Petitioner's name on his naturalization record because the Immigration and Nationality Act only permits a federal court to grant name changes for persons when they take their oath for naturalization. Respondent relies on 8 U.S.C. § 1447(e) to support its position. Relevantly, that section provides: "It shall be lawful at the time and as a part of the administration by a court of the oath of allegiance under section 337(a) for the court, in its discretion, upon the bona fide prayer of the applicant included in an appropriate petition to the court, to make a decree changing the name of said person, and the certificate of naturalization shall be issued in accordance therewith." 8 U.S.C. § 1447(e). (emphasis added)
Respondent asserts that since the Act uses the words "at the time," it was the intention of Congress to limit the time of a decree, to change the name of a person, to the time at which the naturalization took place. Respondent contends that the Court lacks subject matter jurisdiction tomake the amendment to reflect Petitioner's native born name, Van Thanh Nguyen. As the Court understands Respondent's argument, its position is that the Court is without subject matter jurisdiction in all cases that involve name change after a person's naturalization.
In support of its position, Respondent places heavy reliance on the case, In re Chan, 426 F. Supp. 680, 681 (S.D.N.Y. 1976) ('Chan'). In that case, the court found in favor of the government because the Court was "unwilling to alter the name which appeared on [the petitioner's] papers" after naturalization. Id. The court provided little explanation for its decision other than pointing to 8 U.S.C. § 1447(f) in footnotes.2 Relevantly, in 1976, that provision was framed in language similar to its present provision. That is, "it shall be lawful at the time and as a part of the naturalization of any person, for the court, in its discretion...to make a decree changing the name of said person." Based on 8 U.S.C. § 1447(f), the Chan court refused to grant the amendment in favor of the petitioner.
Here, factual similarities exist between Chan and the instant case. In Chan, the petitioner sought to change his name after naturalization from Woodrow Wilson to Chan Chung. In this case, Petitioner seeks to change his name after naturalization from Richard Kennedy to Van Thanh Nguyen. Given these similarities, Respondent submits that the Court should find - as the court did in Chan - that it lacks subject matter jurisdiction to issue an amended naturalization certificate.
The Court, however, is guarded in hastening a determination on jurisdiction in accordance with Respondent's submission. W...
To continue reading
Request your trial