Raya v. Clinton

• Decision Date: 09 April 2010
• Docket Number: Civil Action No. 7:09CV00169.
• Citation: 703 F.Supp.2d 569
• Parties: Amany Mohamed RAYA, Plaintiff,v.Hillary Rodham CLINTON, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

703 F.Supp.2d 569

Amany Mohamed RAYA, Plaintiff,v.Hillary Rodham CLINTON, et al., Defendants.

Civil Action No. 7:09CV00169.

United States District Court,

W.D. Virginia,

Roanoke Division.

April 9, 2010.

Christine Lockhart Poarch, The Poarch Law Firm, PC, Salem, VA, Christopher K. Kowalczuk, Chris K. Kowalczuk, Attorney-at-Law, Roanoke, VA, for Plaintiff.

Jeffrey S. Robins, Department of Justice-District Court Section, Washington, DC, Sara Bugbee Winn, United States Attorneys Office, Roanoke, VA, for Defendants.

MEMORANDUM OPINION

GLEN E. CONRAD, District Judge.

In this action for declaratory and mandamus relief, the plaintiff, Amany Mohamed Raya, seeks an order declaring her to be a citizen of the United States, and thus, a United States national, and an order requiring the Department of State to issue her a United States passport. The case is presently before the court on the defendants' motion to dismiss and alternative motion for summary judgment. For the reasons that follow, the defendants' motion to dismiss will be granted in part and denied in part, and the defendants' motion for summary judgment will be granted.

Background

The plaintiff was born on October 9, 1981 at Walter Reed Army Medical Center in Washington, D.C. to Mohamed Aly Mohamed Raya (the plaintiff's father) and Nabila Salama (the plaintiff's mother). At the time of the plaintiff's birth, the plaintiff's father was a citizen of the Arab Republic of Egypt. Approximately two years before the plaintiff was born, the plaintiff's father was appointed by the Egyptian government to a diplomatic position with the Egyptian Embassy in Washington, D.C.

In her complaint, the plaintiff alleges that her father's diplomatic visa expired five months prior to her birth, and that his duties as an attaché to the Egyptian Embassy expired four months before she was born. The plaintiff further alleges that her father resided in Egypt on the date of her birth, where he was serving in the Egyptian armed forces, and that her mother was an Egyptian national illegally present in the United States on an expired diplomatic visa.

On June 1, 2004, the plaintiff applied for a United States passport. Her application was denied by the New Orleans Passport Agency for the United States Department of State in May of 2005. By letter dated May 4, 2005, the Regional Director of the New Orleans Passport Agency explained as follows:

It is a well-established principle that children born in the United States to individuals accredited to the United States in a capacity which entitles them to diplomatic privileges and immunities are not born subject to the jurisdiction of the United States and do not benefit from the Fourteenth Amendment's citizenship provision.

Our records indicate that your father, Mohamed Raya, was appointed as Administrative Attache at the Embassy of the Arab Republic of Egypt on June 12, 1979 and that he continued in such capacity until December 13, 1981. You were born on October 9, 1981 in Washington, D.C. Because your father enjoyed privileges and immunities at the time of your birth, you were not born subject to the jurisdiction of the United States. Therefore, you did not acquire U.S. citizenship under the provisions of the Fourteenth Amendment by virtue of your birth in Washington, D.C. and you are not entitled to a U.S. passport.

(Compl. Ex. 5).

The plaintiff presently resides in Roanoke, Virginia. She filed the instant action on May 12, 2009 against Hillary Rodham Clinton, Secretary, United States Department of State; Gladys Boluda, Acting Chief, Office of Protocol; Janice L. Jacobs, Assistant Secretary, Bureau of Consular Affairs; and Brenda Sprague, Deputy Assistant Secretary, United States Passport Services. In her complaint, the plaintiff asserts the following claims: (1) that she was born subject to the jurisdiction of the United States, and thus, that the denial of her passport application violated her rights under the Fourteenth Amendment (Count I); (2) that she should be declared a United States national, pursuant to 8 U.S.C. § 1503 ¹ (Count II); (3) that she should be declared as having been born subject to the jurisdiction of the United States, pursuant to 28 U.S.C. § 2201 (Count III); (4) that the denial of her application for a passport violated the Administrative Procedure Act (Count IV); and (5) that she is entitled to a writ of mandamus compelling the Department of State to issue a passport, pursuant to 28 U.S.C. § 1361 (Count V).

On February 5, 2010, the defendants filed a motion to dismiss and alternative motion for summary judgment. In their motion, the defendants argue that Counts I, II, and III of the plaintiff's complaint should be dismissed for lack of subject matter jurisdiction, and that Counts IV and V should be dismissed for failure to state a claim upon which relief may be granted. Alternatively, the defendants argue that they are entitled to summary judgment with respect to Counts I, II, and III.

The court held a hearing on the defendants' motion on March 15, 2010. The matter has been fully briefed and is now ripe for review.

Standards of Review

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a court may grant a motion to dismiss for “lack of jurisdiction over the subject matter.” Fed.R.Civ.P. 12(b)(1). When deciding a Rule 12(b)(1) motion, “the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” The party asserting subject matter jurisdiction has the burden of proving that the court has jurisdiction over the case. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982).

“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ ” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,” a pleading that merely offers “labels and conclusions,” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, an award of summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). For a party's evidence to raise a genuine issue of material fact to avoid summary judgment, it must be “such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party. Terry's Floor Fashions, Inc. v. Burlington Indus., Inc., 763 F.2d 604, 610 (4th Cir.1985).

Discussion

I. Motion to Dismiss

For purposes of their motion to dismiss for lack of subject matter jurisdiction, the defendants have proffered evidence indicating that the United States Department of Homeland Security issued the plaintiff a notice to appear in February of 2008, which advised her that she is subject to removal under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an alien who applied for admission to the United States without documentation. The notice also alleged that the plaintiff is subject to removal under 8 U.S.C. § 1182(a)(9)(B)(i)(I) because she has been unlawfully present in the United States for more than one year. During subsequent removal proceedings before an immigration judge, the plaintiff moved to terminate the proceedings on the basis that she is a United States citizen by birth. On October 28, 2008, the immigration judge issued a written opinion finding that the plaintiff is not a United States citizen, because her father was in diplomatic status on the date that she was born. On November 19, 2008, after the plaintiff appeared for an individual hearing and declined to request further review, the immigration judge ordered that the plaintiff be removed to Egypt pursuant to the charges in the notice to appear. The plaintiff did not appeal the immigration judge's decision.

Because the plaintiff raised the issue of her nationality in her motion to terminate the removal proceedings, the defendants argue that Counts I, II, and III should be dismissed for lack of subject matter jurisdiction. The defendants' argument is premised on provisions contained in two federal statutes, 8 U.S.C. § 1252(b)(5) and 8 U.S.C. § 1503(a).

Section 1252 of Title 8 governs judicial review of orders of removal. 8 U.S.C. § 1252. Section 1252(a)(5) provides that “a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal....” 8 U.S.C. § 1252(a)(5). The statute further provides that “[i]f the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court [of appeals] shall decide the nationality claim.” 8 U.S.C. § 1252(b)(5). It is only if the court of appeals finds that a genuine issue of material fact does exist with respect to the petitioner's...