Mhanna v. U.S. Dep't Of Homeland Sec. Citizenship

• Decision Date: 13 December 2010
• Docket Number: Civil No. 10-292 (JRT/LIB)
• Parties: ASSAF MHANNA and TAMMY MHANNA, Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY CITIZENSHIP AND IMMIGRATION SERVICES; SHARON DOOLEY; UNKNOWN AND UNNAMED U.S. DEPARTMENT OF HOMELAND SECURITY CITIZENSHIP AND IMMIGRATION SERVICES OFFICIAL identified only as "RAH;" ALEJANDRO MAYORKAS; JANET NAPOLITANO; ERIC J. HOLDER; U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, and SCOTT BANIECKE, Defendants.
• Court: U.S. District Court — District of Minnesota

ASSAF MHANNA and TAMMY MHANNA, Plaintiffs,

v. U.S. DEPARTMENT OF HOMELAND SECURITY CITIZENSHIP AND IMMIGRATION SERVICES;SHARON DOOLEY; UNKNOWN AND UNNAMED U.S. DEPARTMENT OF HOMELAND SECURITYCITIZENSHIP AND IMMIGRATION SERVICES OFFICIAL identified only as "RAH;"ALEJANDRO MAYORKAS; JANET NAPOLITANO; ERIC J. HOLDER; U.S. DEPARTMENT OF HOMELANDSECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, and SCOTT BANIECKE, Defendants.

Civil No. 10-292 (JRT/LIB)

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Dated: December 13, 2010

MEMORANDUM OPINION AND ORDER

Rachel M. Engebretson and Phillip F. Fishman, FISHMAN, BINSFELD & BACHMEIER, P.A., 8011 34th Avenue South, Suite 245, Bloomington, MN 55425, for plaintiffs.

Friedrich A. P. Siekert, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, 600 United States Courthouse, 300 South Fourth Street, Minneapolis, MN 55415; and Craig W. Kuhn and Elizabeth J. Stevens, UNITED STATES DEPARTMENT OF JUSTICE, P.O. Box 868, Ben Franklin Station, Washington, D.C. 20044, for defendants.

This case concerns an ongoing struggle between Assaf Mhanna, a citizen and native of Lebanon, and United States immigration authorities over Mr. Mhanna's statusin the United States. He brings this lawsuit with his spouse, Tammy Mhanna, who is a United States citizen. Because this Court does not have jurisdiction to hear the Mhannas' multiple claims, the Court will grant the defendants' motion to dismiss the case.

On February 1, 2010, plaintiffs/petitioners Assaf Mhanna and Tammy Mhanna (collectively, "plaintiffs") brought this action against the defendants/respondents United States Department of Homeland Security, Citizenship and Immigration Services ("USCIS"); Sharon Dooley, the Field Office Director of the St. Paul Field office of the USCIS; an unknown USCIS official identified as "RAH;" Alejandro Mayorkas, Director of USCIS; Janet Napolitano, Secretary of the Department of Homeland Security; Eric J. Holder, United States Attorney General; the U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement ("ICE"); and Scott Baniecke, Field Office Director of the ICE St. Paul Field Office (collectively, "defendants"). (Compl., Docket No. 1.) The case is now before the Court on defendants' response to United States Magistrate Judge Raymond L. Erickson's Order to Show Cause and defendants' motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim.

BACKGROUND

Assaf Mhanna ("Mhanna") is a citizen and native of Lebanon. (Compl. ¶ 5, Docket No. 1.) Tammy Mhanna is his spouse and a U.S. Citizen. (Id. ¶ 13.)

A. Mhanna's Entry on December 8, 1998

Mhanna was first paroled into the United States on or about December 8, 1998, at the Point of Entry in Nogales, Arizona. (Id. ¶ 16.) Upon Mhanna's inspection at entry, an officer of the Immigration and Naturalization Service¹ ("INS") completed a Form I-213, Record of Deportable/Inadmissible Alien. (Mot. to Reopen & Reconsider Ex. 2, Engebretson Aff. Ex. E, Docket No. 4.) It includes the following narrative:

Subject arrived this date afoot from Mexico seeking admission as[ ] a citizen of the United States. Subject stated to the primary officer, [Immigration Inspector] Stephen Hathaway, he was an American. Hathaway asked the subject a few more questions whereupon the subject admitted his true nationality. He was escorted to INS secondary.

In secondary inspection a sworn statement was taken by [Special Operations Immigration Inspector] J. Dayhoff. In the statement the subject admitted his nationality. He further stated he travelled [sic] from Beirut to Amsterdam to Mexico City to Hermosillo. He stated he has friends in Hermosillo which [sic] are also from Lebanon. The subject then stated he came from Lebanon to the United States because he is Christian and can not live in Lebanon because it is a Muslim country.

The subject was advised he would be held in INS custody pending a decision on his claim of fear to return to his country. He was given and acknowledged receipt of form M-444. He appears inadmissible per [§] 212(a)(6)(C)(ii) [of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(ii) ²] and transferred to the Florence detention facility to await his hearing.

(Id.) Dayhoffs Form I-867A, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act, records Mhanna's sworn statement on December 8, 1998. (Id.) In relevant part, it states:

Q: Is there any way possible you could be a citizen of the United States?

A: No.

Q: What documents did you show the first inspector you saw in order to enter the United States?

A: No. I told him I was an American citizen.

Mhanna reviewed and signed the record, indicating that it is "a full, true and correct record of [his] interrogation." (Id.)

On December 23, 1998, Mhanna had a credible-fear interview during which he was represented by counsel and assisted by an Arabic language interpreter. (Id.) The purpose of the interview was "to determine whether [Mhanna] ha[s] a fear of persecution or harm in [his] home country." (Id.) The Asylum Pre-Screening Officer who conducted the credible fear interview found that Mhanna's testimony was credible and that Mhanna had a credible basis for fear of persecution in his home country on account of religion and political opinion. (Id.) The officer found that Mhanna has "a significant possibility thathe... could establish eligibility for asylum." (Id.) The officer's notes indicate that Mhanna offered the following information about his inspection on December 8, 1998:

Q: At any time did [you] use a different name or pretend to be someone else[?]

A: No, this is the [first] time I came to the States, [and I] told them at the border I was a U.S. Citizen[.]

Q: Why[?]

A: I don't know but I thought I could say this.

(Id.)

B. Mhanna's Asylum Proceedings and Immediate Relative Immigrant Visa Petition

The INS subsequently released Mhanna from detention and paroled him into the United States, and on December 15, 1999, Mhanna filed an application for asylum, withholding of removal, and relief under the Convention Against Torture. (Resp. to Dec. 2, 2009 Req. for Initial Evidence at 1, Mot. to Reopen & Reconsider Ex. 2, Engebretson Aff. Ex. E, Docket No. 4; In re Mouhanna, ³ No. A77393085, Slip Op. at 2, Mot. to Reopen & Reconsider Ex. 4, Engebretson Aff. Ex. E, Docket No. 4.) His asylum application was referred to the Immigration Court. (In re Mouhanna, Slip Op. at 2.) On March 14, 2001, Mhanna was served with a Notice to Appear in Removal Proceedings. (Compl. ¶ 17, Docket No. 1.)

In January 2002, an Immigration Judge ("IJ") held a hearing on Mhanna's application. (Jan. 31, 2002 Tr., Mot. to Reopen & Reconsider Ex. 3, Engebretson Aff. Ex. E, Docket No. 4.) Mhanna's attorney questioned him about the events of December 8, 1998:

Q: Okay. Now, let's turn to your coming to the United States. When you came to the border at Nogales, did you go to border crossing with INS inspectors?

A: I entered from a big door that you get to the United States.

Q: Okay. And did you come up to the border on foot?

A: Yes, walking.

Q: All right. And when you came into the INS checkpoint there, were there other people in line with you?

A: There was a line in front of me and I stood in the line.

Q: All right. And when you first spoke to the INS inspector, what language did he speak to you?

A: There was a policeman standing, he spoke to me in English.

Q: Okay. And did he ask you for your documents?

A: He asked me for I.D. and I told him I didn't have any.

Q: Okay. Did you tell him you are a citizen of the United States?

A: He was asking a lot of people in front of me, so I told him yes.

Q: Okay. Did you later tell the officer that you were not from the United States?

A: Right away I told him.

Q: Did you tell the officer where you were from?

A: Yes, I told him where I'm from.

Q: Where did you say?

A: I told him I am from Lebanon and I came from Lebanon.

....

Q: At the time he asked you if you were a citizen, did you know the meaning of that word in English?

A: No.

Q: Did you have any intent to falsely claim U.S. citizenship?

A: No, because I told him right away afterwards when I understood the question that I wasn't, I was Lebanese.

(Id. at 15-18.) On cross-examination, Mhanna testified as follows:

Q: And now, you were standing in a line to enter the United States, and did you have a document that authorized you to come in the United States?

A: No.

Q: Okay. So, you told the inspector that you were a United States citizen?

A: He asked me and at that I didn't know what, what, what he meant, what the question meant, so I told him, I thought that's what he want, what I'm supposed to say.

Q: You thought you were supposed to say you were a United States citizen?

A: I didn't understand the question.

Q: Now, sir, when you first saw the first immigration inspector when you were trying to come into the United States, what did he say to you?

A: He asked me for I.D.

Q: Okay. What did you show him?

A: I told him I don't have I.D.

Q: What did he ask you next?

A: He asked me if I, if I'm American, I didn't understand the question, and that is the reason I answered, I answered yes.

Q: Okay. Well, why did you-did you use the words American?

A: No, I answered yes, because I didn't understand.

Q: You didn't understand what you were being asked?

A: No, I didn't understand what I was being asked.

Q: And how is it that after being asked several times, you figured out that you should say you were Lebanese?

A: When he took me aside, it was about two minutes later, and he asked me where I came from, and I understood that I was supposed to tell him I came from Lebanon, and that's what I told him.

Q: Okay.

A: I didn't understand, I didn't understand the word citizenship at that time.

(Id. at 30-31.)

On February 1, 2002, Immigration Judge ("IJ") Anna Ho issued a written order denying Mhanna's application for asylum, withholding of removal, and relief under the Convention Against Torture. (In re Mouhanna, Slip Op. at 29.) The IJ also...