Saleh v. Pompeo

• Decision Date: 25 June 2019
• Docket Number: 17-CV-4574 (NGG) (CLP)
• Citation: 393 F.Supp.3d 172
• Parties: Arafat Ali SALEH, Plaintiff, v. Michael R. POMPEO, Secretary of State, United States Department of State, National Passport Center, and United States Customs and Border Protection, Defendants.
• Court: U.S. District Court — Eastern District of New York

393 F.Supp.3d 172

Arafat Ali SALEH, Plaintiff,

v.Michael R. POMPEO, Secretary of State, United States Department of State, National Passport Center, and United States Customs and Border Protection, Defendants.

17-CV-4574 (NGG) (CLP)

United States District Court, E.D. New York.

Signed June 25, 2019

Filed June 26, 2019

Julie A. Goldberg, Pro Hac Vice, Goldberg & Associates, Bronx, NY, for Plaintiff.

Farzin Franklin Amanat, Layaliza K. Soloveichik, Farzin Franklin Amanat, United States Attorneys Office, Eastern District of New York, Brooklyn, NY, for Defendants.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Arafat Ali Saleh brings this action against Secretary of State Rex Tillerson,¹ the United States Department of State ("State Department"), the National Passport Center, and United States Customs and Border Protection ("CBP") (collectively, "Defendants" or "the Government"). Plaintiff alleges that Defendants violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 555 and 5 U.S.C. § 701 et seq. by revoking his passport arbitrarily and capriciously. (Am. Compl. (Dkt. 25) at 1-2, 6-7.)

Before the court are Defendants' motion to dismiss Plaintiff's amended complaint, Defendants' motion to strike the declaration of Plaintiff's attorney, Julie A. Goldberg, Esq., and Plaintiff's request to compel production of the full administrative record. (Mot. to Dismiss ("Mot.") (Dkt. 37); Mot. to Strike (Dkt. 41); Pl. Req. for Admin. R. (Dkt. 26).) The court referred Defendants' and Plaintiff's motions to Magistrate Judge Cheryl L. Pollak, who issued a report and recommendation ("R & R") advising that Defendants' motion to dismiss and Defendants' motion to strike be denied and that Defendants be ordered to produce the entire administrative record to Plaintiff within two weeks of any order adopting this R & R. (R & R (Dkt. 47) at 1-2, 10, 20-22.)

Defendants timely objected to Judge Pollak's recommendation that the motion to dismiss Plaintiff's amended complaint be denied. (Defs. Objs. (Dkt. 50).) For the following reasons, the R & R is ADOPTED IN FULL. Accordingly, Defendants' motion to dismiss Plaintiff's amended complaint and Defendants' motion to strike the declaration of Julie A. Goldberg, Esq. are DENIED, and the court DIRECTS Defendants to produce the entire administrative record to Plaintiff within two weeks.

I. BACKGROUND

The R & R clearly sets forth the background of this case (R & R at 2-5), and the parties have not objected to Judge Pollak's statement of facts and procedural history. Therefore, the court adopts the R & R in this respect and offers the following summary for context. See Dong v. Miller, 16-CV-5836 (NGG), 2018 WL 1445573, at *2 (E.D.N.Y. March 23, 2018) (adopting an R & R's statement of facts because the parties had not objected to it).

A. Facts

Saleh was born in Yemen on June 11, 1983. (R & R at 2.) His father, Ali Nagi Saleh, came to the United States in 1969 and was naturalized as a citizen in 1975. (Id. ) Beginning in 1998, Saleh filed several applications for a U.S. passport where he claimed U.S. citizenship based on § 301(g) of the Immigration and Nationality Act ("INA"). (Id. ) Section 301(g) of the INA, as applicable at the time of Saleh's birth, conferred U.S. citizenship to applicants born abroad to a U.S. citizen parent married to a non-U.S. citizen if the applicant demonstrated that their U.S. citizen parent was physically present in the United States for ten years, five after attaining the age of fourteen, prior to the applicant's birth. (Id.; Sept. 27, 2017 State Dep't Letter (Dkt. 37-2).) Saleh's first three passport applications were denied on the ground that he had failed to demonstrate his father's physical presence in the United States for the required period of time prior to his birth. (R & R at 2.) Saleh re-applied for a passport for the fourth time on or about August 4, 2010. (Id. ) The U.S. embassy in Yemen subsequently approved Saleh's August 2010 passport application and issued Saleh a U.S. passport. (Id. ) That same day, the U.S. embassy also issued U.S. passports to Saleh's older and younger brothers. (Id. at 3)

From 2010 until 2015, Saleh used his U.S. passport without incident and travelled to the United States twice. (Id. ) It was not until a third time, when Saleh attempted to enter the United States on October 19, 2015, that a CBP officer at Abu Dhabi International Airport in the United Arab Emirates confiscated Saleh's U.S. passport. (Id. ) Saleh alleges that he was given no explanation as to why the officer confiscated his passport, but when he arrived in the United States the next day, Saleh contends that CBP apologized for "wrongly" taking his passport. (Id. ) Saleh's confiscated passport was never returned to him, and a new passport was never issued. (Id. ) As a result, Saleh filed an application for a replacement passport; in response, the State Department requested additional evidence in support of his claim to citizenship. (Id. ) Saleh claimed that he could not provide all of the requested information because certain documents had been retained by the United States Embassy in Sana'a, Yemen. (Id. ) Thereafter, Saleh filed the present lawsuit. (Id. )

Defendants claim that the State Department discovered that Saleh's passport had been erroneously issued during an evaluation of an application submitted to U.S. Citizenship and Immigration Services ("USCIS") by Saleh's brother in the spring of 2014. (Id. ) Defendants claim that the State Department "attempted to notify Saleh of the revocation but may not have succeeded." (Id. )

Following the filing of this action, Saleh received a letter from the State Department, dated September 27, 2017 ("the State Department Letter"), indicating that his passport had been revoked pursuant to § 51.62(a)(2) of Title 22 of the Code of Federal Regulations ("C.F.R.") because it had been erroneously issued. (Id. at 3-4.) The letter further informed Saleh that:

A review of your application shows that your father did not have sufficient physical presence in the United States prior to your birth to transmit citizenship to you through section 301(g) of the INA. As part of a 1988 application for a Consular Report of Birth Abroad, your father submitted a sworn "Affidavit of Residence and Paternity" to the Department. This affidavit showed your father was present in the United States for only nine years prior to your birth. Because your U.S. citizen father did not satisfy the physical presence requirement, and because there is no evidence that your mother naturalized as a U.S. citizen prior to your birth, you are not qualified to claim U.S. citizenship under the provisions of the INA set forth above. As there is no evidence that you lawfully acquired U.S. citizenship, you are not entitled to a U.S. passport and the passport you received previously should not have been issued.

(Sept. 27, 2017 State Dep't Letter.) Moreover, the letter stated that Saleh had "a right to a hearing under Sections 51.70 through 51.74 of Title 22 of the U.S. Code of Federal Regulations," and that he could "re-apply for a U.S. passport should [he] obtain evidence establishing [his] claim to U.S. citizenship." (Id. )

Plaintiff argues that he is entitled to judicial review of his passport revocation under the APA. (Am. Compl. at 1-2, 6-7.) Defendants contend that Plaintiff's only recourse to contest his passport revocation is to seek a judgement declaring him to be a national of the United States pursuant to 8 U.S.C. § 1503(a), as discussed below. (Mot. at 3.)

B. Procedural History

Plaintiff filed his complaint with this court on August 3, 2017. (Compl. (Dkt. 1).) After receiving leave to amend, Plaintiff filed an amended complaint on April 30, 2018. (Am. Compl.)

On May 2, 2018, Plaintiff filed a letter to request an order compelling production of the administrative record. (Pl. Req. for Admin. R.) On May 2, 2018, this court referred Plaintiff's request to Magistrate Judge Cheryl L. Pollak pursuant to 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a). (May 2, 2018 Order.) On May 4, 2018, Defendants filed a letter in response to Plaintiff's administrative record production request. (Defs. Resp. in Opp'n to Pl. Req. for Admin. R. (Dkt. 27).)

On June 18, 2018, Defendants filed a motion to dismiss the amended complaint for lack of subject matter jurisdiction. (Mot.) Along with the motion to dismiss, Defendants submitted the declaration of F. Franklin Amanat² and certain selected documents from the administrative record, including the State Department Letter informing plaintiff of his passport revocation. (May 18, 2018 Amanat Decl.; Sept. 27, 2017 State Dep't Letter.)

On June 18, 2018, Plaintiff filed a response in opposition to Defendants' motion to dismiss and included the declaration of Julie A. Goldberg, Esq. (the "Goldberg Declaration") (Pl. Resp. in Opp'n to Defs. Mot. to Dismiss (Dkt. 38); June 9, 2018 Goldberg Decl. (Dkt. 38-1).) On June 18, 2018, Defendants filed their reply in support of their motion to dismiss and a motion to strike the Goldberg Declaration. (Defs. Reply in Supp. Of Mot. to Dismiss (Dkt. 40); Mot. to Strike.) On July 3, 2018, Plaintiff filed a response in opposition to Defendants' motion to strike. (Pl. Resp. in Opp'n to Defs. Mot. to Strike (Dkt. 43).)

On January 16, 2019, this court referred Defendants motion to dismiss to Magistrate Judge Cheryl L. Pollak for an R & R pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1) and Defendants motion to strike pursuant to 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a). (January 16, 2019 Order.) Judge Pollak issued her R & R on March 6, 2019, recommending that Defendants motion to strike and Defendants motion to dismiss be denied. (R & R at 1-2.) Judge Pollak further recommended that Defendants be ordered to produce the entire administrative record to Plaintiff within two weeks of any order adopting the R & R. (Id. ) On ...