Ortega v. Holder

• Decision Date: 15 January 2010
• Docket Number: No. 08-3642.,08-3642.
• Citation: 592 F.3d 738
• Parties: Angie ORTEGA, Plaintiff-Appellant, v. Eric H. HOLDER, Jr., Attorney General of the United States, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

592 F.3d 738

Angie ORTEGA, Plaintiff-Appellant, v. Eric H. HOLDER, Jr., Attorney General of the United States, et al., Defendants-Appellees.

No. 08-3642.

United States Court of Appeals, Seventh Circuit.

Argued April 15, 2009.

Decided January 15, 2010.

James A. Morsch (argued), Butler, Rubin, Saltarelli & Boyd, Chicago, IL, for Plaintiff-Appellant.

Sheila M. McNulty, Office of the United States Attorney, Chicago, IL, Christopher W. Dempsey (argued), Deparment of Justice, Washington, DC, for Defendants-Appellees.

Before FLAUM, RIPPLE and SYKES, Circuit Judges.

RIPPLE, Circuit Judge.

Angie Ortega brought this action for a declaration of nationality pursuant to 8 U.S.C. § 1503(a). The Government moved to dismiss the complaint for lack of subject matter jurisdiction. The district court granted the motion, and Ms. Ortega appealed. For the reasons set forth in the following opinion, we reverse the judgment of the district court and remand for further proceedings.

I BACKGROUND

The Government commenced removal proceedings against Ms. Ortega in September 2001; during the proceedings, Ms. Ortega claimed as a defense her status as a national of the United States. On April 12, 2002, while removal proceedings were pending, Ms. Ortega filed a Form N-600 Application for Certificate of Citizenship. The Chicago office of the former Immigration and Naturalization Service ("INS") denied the application twelve days later, without a hearing. Ms. Ortega appealed the denial of her application to the Office of Administrative Appeals ("AAO").

On May 7, 2002—the day after Ms. Ortega filed her administrative appeal with the AAO—the Immigration Judge ("IJ") terminated the removal proceedings with prejudice. The IJ determined that she had "established that she acquired U.S. Citizenship through her [United States citizen] father Alfredo Ortega pursuant to 301(g)" of the Immigration and Nationality Act. R.1, Ex. 2. The Government did not appeal the IJ's decision.

On February 28, 2003, the AAO denied Ms. Ortega's administrative appeal with respect to her application for a certificate of citizenship. On March 28, 2003, Ms. Ortega's counsel filed a motion to reconsider and to reopen with the AAO, which brought to the AAO's attention the evidence presented to, and ruling of, the IJ. The AAO, however, returned Ms. Ortega's fee and motion on April 14, 2003, and directed her to submit her request to the local district office that made the original decision. Ms. Ortega re-filed her motion with the local district office on April 22, 2003; with this motion, she included a letter explaining that she originally had submitted her filing within the thirty-day window provided in 8 C.F.R. § 103.5, but mistakenly had sent it directly to the AAO.

Over four years later, on August 17, 2007, the AAO denied Ms. Ortega's motion as untimely. See R.14, Ex. C. In rejecting Ms. Ortega's motion, the AAO first noted the requirement, under 8 C.F.R. § 103.5, to file a motion within thirty days. It then observed that, "[b]y the applicant's counsel's own admission, the instant motion was sent erroneously to the AAO on March 28, 2003, and was not properly filed with the Chicago district office until April 23, 2003, almost two months after the issuance of the AAO's decision." R.79. The AAO determined that the motion Ms. Ortega had filed was not a motion to reopen; according to the AAO, the motion did not state new facts to be proved because the proceedings before the Immigration Court predated the AAO's decision in this matter. The AAO continued, stating:

The instant motion is instead, at best, a motion to reconsider. A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision. Whereas 8 C.F.R. § 103.5(a)(1)(i) provides that a late motion to reopen may be excused in the discretion of CIS where it is demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner, the regulations do not provide any discretion to accept an untimely motion to reconsider. As the instant motion constitutes, at best, a motion to reconsider, the AAO cannot consider whether the delay in filing it was reasonable or beyond the applicant's control. The motion must therefore be rejected as untimely.

R.14, Ex. C at 2 (citations omitted).

Ms. Ortega then instituted this action in the United States District Court for the Northern District of Illinois on February 22, 2008. The complaint sought a declaration of nationality pursuant to 8 U.S.C. § 1503(a), which is set out in its entirety in the following discussion. The Government moved to dismiss the action on the ground that the court was without jurisdiction to grant relief under § 1503(a). See R. 11 at 3. It argued that,

[s]ince the Plaintiff first asserted her claim to citizenship during her removal proceedings, her status as a national arose "by reason of, or in connection with" removal proceedings. Thus, under the plain language of the statute, th[e District] Court d[id] not have jurisdiction to consider Plaintiff's claim of citizenship in this case.

Id. at 3 (quoting 8 U.S.C. § 1503(a)).

The district court granted the Government's motion. Relying on the decision of the Court of Appeals for the Fifth Circuit in Rios-Valenzuela v. Department of Homeland Security, 506 F.3d 393 (5th Cir. 2007), the district court held that Ms. Ortega had raised her claim of citizenship in removal proceedings prior to the time that she filed her application for citizenship. Consequently, "the issue of plaintiff's citizenship `arose by reason of, or in connection with' her removal proceeding." R.25 at 3 (quoting 8 U.S.C. § 1503(a)).

Ms. Ortega timely appealed.

II DISCUSSION

Our disposition of Ms. Ortega's appeal depends upon the meaning of 8 U.S.C. § 1503(a). Therefore we start, as we must, with the language of the statute. See Autry v. Nw. Premium Servs., Inc., 144 F.3d 1037, 1040 (7th Cir.1998) (observing that the "starting point in any case involving the meaning of a statute[ ] is the language of the statute itself" (internal quotation marks and citations omitted)). Section 1503(a) of Title 8 states:

If any person who is within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, such person may institute an action under the provisions of section 2201 of Title 28 against the head of such department or independent agency for a judgment declaring him to be a national of the United States, except that no such action may be instituted in any case if the issue of such person's status as a national of the United States (1) arose by reason of, or in connection with any removal proceeding under the provisions of this chapter or any other act, or (2) is in issue in any such removal proceeding. An action under this subsection may be instituted only within five years after the final administrative denial of such right or privilege and shall be filed in the district court of the United States for the district in which such person resides or claims a residence, and jurisdiction over such officials in such cases is conferred upon those courts.

8 U.S.C. § 1503(a) (emphasis added).

A.

The Government maintains that the "plain meaning" of § 1503(a)(1) requires dismissal of Ms. Ortega's claim. It first observes that it was "[o]nly upon initiation of removal proceedings" that Ms. Ortega "assert[ed] citizenship." Appellee's Br. 5. "Accordingly," the Government concludes, "it is beyond question that Ortega's status `arose by reason of, or in connection with [her] removal proceeding.'" Id.

The Government also notes that its position finds support in case law, specifically the Fifth Circuit's decision in Rios-Valenzuela, 506 F.3d 393. In that case, Rios, like Ms. Ortega, had filed an application for citizenship while removal proceedings were still pending. As in Ms. Ortega's case, Rios's application was denied by the District Director. And in both cases, after removal proceedings were terminated, the AAO denied the petitioners' appeals of the denial of their applications. When Rios subsequently instituted an action under § 1503(a), the district court dismissed the complaint for lack of jurisdiction, and the Fifth Circuit affirmed. The Fifth Circuit concluded that the "text of the statute" supported the Government's position that the district court lacked jurisdiction. Id. at 398. It explained that

"[t]he exception applies to claims of nationality raised in removal proceedings." It is the context of how the particular issue of citizenship arose rather than the mere timing of events that determines the applicability of § 1503(a)(1). The exception precludes jurisdiction over Rios's citizenship claim because his claim "arose by reason of, or in connection with" his removal proceeding: the issue of Rios's citizenship that forms the basis of his claim here originates, at the least, in connection with the removal proceedings.

The N-600 application process is, as Rios argues, a proceeding separate from the removal proceedings. But § 1503(a)(1) does not apply depending on whether the proceedings are separate; rather, it applies when the particular citizenship issue "arose" in the removal proceeding. That is, the exception focuses on the proceeding in which the particular claim to citizenship originates, not the proceeding in which it is being pursued.

Id. (footnote omitted; quoting Said v. Eddy, 87 F.Supp.2d 937, 941 (D.Alaska 2000); emphasis added).

The Government does not believe that its interpretation of §...