Lefsih v. Wolf
| Decision Date | 14 August 2020 |
| Docket Number | NO. 5:20-CV-150-FL,5:20-CV-150-FL |
| Citation | 479 F.Supp.3d 241 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Hemza Menade LEFSIH, Plaintiff, v. Chad F. WOLF, in his official capacity as Acting Secretary of the Department of Homeland Security; Kenneth Thomas Cuccinelli, II, in his official capacity as Acting Director of the United States Citizenship and Immigration Services; and Vernette Thompson in her official capacity as Acting Field Office Director for the Raleigh-Durham Field Office of USCIS, Defendants. |
Charles Davidson Swift, Kathryn H. Brady, Christina A. Jump, Constitutional Law Center for Muslims in America (CLCMA), Richardson, TX, Edward B. Davis, Bell, Davis & Pitt, P.A., Charlotte, NC, Kevin G. Williams, Bell, Davis & Pitt, P.A., Winston-Salem, NC, for Plaintiff.
Sharon C. Wilson, United States Attorney's Office, Raleigh, NC, William Chang, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.
This matter comes before the court on defendants’ motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (DE 28). The issues raised have been fully briefed, and in this posture are ripe for ruling. For the reasons that follow, defendants’ motion is granted in part and denied in part.
Plaintiff commenced this action against defendants in the United States District Court for the District of Columbia on November 22, 2019. With leave of court, plaintiff amended his complaint on February 11, 2020,1 alleging 1) request for de novo hearing pursuant to 8 U.S.C. § 1421(c) ; 2) violation of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., and implementing regulations; 3) violation of pertinent service of process regulations under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. ; 4) violation of the Fifth Amendment to the United States Constitution; and 5) estoppel. On April 1, 2020, the district court granted defendants’ motion to transfer the case to this district. Defendants filed the instant motion to dismiss on May 15, 2020.
The facts alleged in the amended complaint may be summarized as follows. Plaintiff, an Algerian national, was allowed to immigrate to this country through the United States Citizenship and Immigration Services ("USCIS") Diversity Immigrant Visa Program. (Am. Compl. (DE 35) ¶¶ 8–11). Plaintiff subsequently sought United States citizenship by submitting an Application for Naturalization ("Form N-400"), to USCIS after residing in the United States as a lawful permanent resident for the requisite amount of time. (Id. ¶ 12). Plaintiff completed the application on his own answering each of the questions to the best of his ability and based on his understanding of the questions. (Id. ¶ 13).
Question 23 of Form N-400 asked whether plaintiff had "EVER been arrested, cited, or detained, by any law enforcement officer (including any immigration official or any official of the U.S. armed forces) for any reason?" (Id. ¶ 14). Plaintiff answered this question "No," when he had in fact been cited approximately 10 times by law enforcement officers in North Carolina for traffic infractions related to his operation of a taxicab.2 (Id. ¶¶ 15–17). Plaintiff asserts that the USCIS officer never inquired about any citations during the citizenship interview on November 30, 2015, but that he did not believe traffic citations were covered by question 23. (Id. ¶ 18). USCIS approved plaintiff's application on November 30, 2015, and scheduled him for an oath ceremony on December 14, 2015. (Id. ¶¶ 19–20).
On December 7, 2015, USCIS de-scheduled plaintiff's oath ceremony. (Id. ¶ 21). The next day, Homeland Security Investigations ("HSI") and Federal Bureau of Investigations ("FBI") agents interviewed plaintiff at his residence regarding his response of "No" to question 23 on his Form N-400. (Id. ¶ 22). Plaintiff explained that he answered "No" because he did not understand question 23 to include citations since he had not been detained by law enforcement but acknowledged after explanation from the agents that his answer to question 23 should have been "Yes." (Id. ¶¶ 23–24). The agents told plaintiff it was too late to make any changes to his Form N-400 and arrested him on December 11, 2015, for making false statements in an immigration application in violation of 18 U.S.C. § 1015(a). (Id. ¶¶ 25–26). Three days later, in discussing plaintiff's naturalization application with an Immigration and Customs Enforcement ("ICE") official, a USCIS officer explained question 23 as follows:
(Id. ¶¶ 27–28; Email Correspondence (DE 35-1) at 1).
On December 17, 2015, USCIS issued a notice re-opening the previously approved application of naturalization on its own initiative, and sent a notice of intent to deny ("NOID") plaintiff's naturalization application to plaintiff's residence. (Am. Compl. (DE 35) ¶ 29). The NOID explained that the intended denial was based on derogatory information received after the approval based on plaintiff's failure to disclose his traffic tickets in response to question 23 and allowed plaintiff 33 days for a response before USCIS rendered a decision. (Id. ¶¶ 30–31). Plaintiff alleges that USCIS mailed the NOID to his residence when it knew or should have known he was in federal custody, and that doing so violated federal law. (Id. ¶¶ 32–36). Since plaintiff did not receive the NOID, he was unable to respond within the required 33 day deadline. (Id. ¶ 37).
On January 5, 2016, the grand jury returned a true bill of indictment against plaintiff in this court for knowingly making false statements under oath related to his Form N-400 application, and knowingly making a false statement as to a material fact at the in-person USCIS interview. (Id. ¶ 39). On January 21, 2016, USCIS issued its decision denying plaintiff's application for failing to demonstrate good moral character based upon the charges against him for false statements. (Id. ¶ 40). Similar to the NOID, plaintiff was given 30 days to file a Form N-336 Request for Hearing challenging the denial of his re-opened Form N-400, and the decision was mailed to plaintiff's home residence. (Id. ¶¶ 41–42). Plaintiff again alleges that USCIS mailed its decision to his residence when it knew or should have known he was in federal custody violated federal law. (Id. ¶¶ 43–46).
On April 12, 2016, the grand jury returned a superseding bill of indictment against plaintiff. (Id. ¶ 47). Plaintiff's trial began April 27, 2016, and resulted in a guilty verdict against plaintiff on all counts. (Id. ¶¶ 49, 56). Plaintiff was sentenced to time served on June 2, 2016, and plaintiff appealed his conviction to the United States Court of Appeals for the Fourth Circuit. (Id. ¶¶ 58–60). Although plaintiff's criminal appeal remained pending, the United States Marshal Service transferred plaintiff into ICE custody for removal proceedings. (Id. ¶ 61).
ICE detained plaintiff in an immigration facility in Jena, Louisiana, rather than an ICE facility nearer to Raleigh. (Id. ¶ 62). The Department of Homeland Security ("DHS") served on plaintiff notice to appear for removal proceedings dated June 3, 2016. (Id. ¶¶ 63–64). On June 29, 2016, plaintiff requested an immigration bond with the immigration court in Oakdale, Louisiana. (Id. ¶ 65). The immigration judge denied plaintiff's request for a bond, holding that plaintiff was subject to mandatory detention for committing fraud, even though those convictions had been appealed. (Id. ¶¶ 66–70). On November 14, 2016, the immigration judge held a master calendar hearing and sustained charges of removability against plaintiff based solely on the judgment in the criminal proceeding in this district. (Id. ¶ 71). On January 4, 2017, the immigration judge issued a final order of removal as to plaintiff. (Id. ¶ 73). Plaintiff timely appealed, but his appeal was dismissed by the Board of Immigration Appeals ("BIA") on June 15, 2017. (Id. ¶¶ 74–75).
On August 14, 2017, the Fourth Circuit vacated the judgment entered by this court against plaintiff, holding that the presiding judge's comments at trial were improper and denied plaintiff the opportunity for a fair and impartial trial, and that the presiding judge's jury instructions were insufficient to cure the error. (Id. ¶¶ 76–77; see id. ¶¶ 50–55). Following the Fourth Circuit's decision, the Office of Immigration Litigation filed a motion with the BIA to remand the case to immigration court, and the immigration judge administratively closed the prior order of removal against plaintiff on February 8, 2018. (Id. ¶¶ 78–82).
On May 7, 2018, plaintiff's criminal case in this district was retried. (Id. ¶ 84). The jury found plaintiff not guilty on all counts, and the court entered a judgment of acquittal. (Id. ¶¶ 84–85). Plaintiff's Form N-400 remains denied based on purported immigration fraud, despite his acquittal of all criminal charges which served as the basis for his denial. (Id. ¶ 86).
A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter jurisdiction. Such motion may either 1) assert the complaint fails to state facts...
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