Sluss v. U.S. Citizenship & Immigration Servs.

• Decision Date: 20 October 2012
• Docket Number: Civ. Action No. 12–0417(ESH).
• Citation: 899 F.Supp.2d 37
• Parties: Matthew David SLUSS, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES et al., Defendants.
• Court: U.S. District Court — District of Columbia

899 F.Supp.2d 37

Matthew David SLUSS, Plaintiff,

v.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES et al., Defendants.

Civ. Action No. 12–0417(ESH).

United States District Court, District of Columbia.

Oct. 20, 2012.

Matthew David Sluss, Petersburg, VA, pro se.

Wynne Patrick Kelly, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

In this action brought pro se, plaintiff, a federal prisoner, seeks to compel the United States Citizenship and Immigration Services (“USCIS”) or the Department of State (“State Department”) “to issue ... a Certificate of Loss of Nationality pursuant to 8 U.S.C. [§ ]1481(a)(2)” or “to act upon [his] multiple additional requests for expatriation under [§ ]1481(a)(6), being that at the time of [his] request, the United States was in a qualifying state of war as per the statute.” (Am. Compl. [Dkt. # 11] at 1–2.) Plaintiff purports to sue under the “the Administrative Procedures Act, 5 U.S.C. [§ ] 700 et seq.” (Compl. [Dkt. # 1] at 1.) ¹Since plaintiff seeks to compel agency action, the Court construed the complaint as an action for relief under 28 U.S.C. § 1361 and directed the defendants to show cause why a writ of mandamus should not issue. Order (Jun. 13, 2012) [Dkt. # 8].

Defendants move to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (Defs.' Mot. to Dismiss Pl.'s Am. Complaint [Dkt. # 14].) Since the USCIS has now performed its ministerial duty with regard to plaintiff's request to renounce his citizenship under § 1481(a)(6), the Court will grant defendants' motion to dismiss the mandamus claim as moot. In addition, the Court finds that plaintiff has stated no claim under the APA and, therefore, will dismiss the case.

BACKGROUND

The facts as alleged in plaintiff's complaint and supported by the attachments (“Attach.”) are as follows. On September 7, 2010, plaintiff “officially renounced his citizenship by taking an oath while in Toronto, Ontario, Canada ... at a Services Canada Government Center ... and receiv[ing] his Canadian SIN (social insurance number).” (Compl. at 2 & Attach. A.) On September 15, 2010, before he could relocate to Toronto, plaintiff “was subjected to a search and arrest warrents [sic]. [He] has been since incarcerated[ ]” in the United States.² (Compl. at 2.)

On July 8, 2011, plaintiff “sent an affidavit [and] separate request for expatriation” to the USCIS, stating that he is “a dual citizen of the United States and Canada[,]” who is renouncing his U.S. citizenship “[p]ursuant to 8 U.S.C. § 1481(a)(6)....” (Attach. B.) Thereafter, plaintiff received an unsigned letter dated July 25, 2011, from the State Department advising him that “one can only renounce one's U.S. citizenship pursuant to Section 359(a)(5) of the Immigration and Nationality Act [“INA”] before a U.S. diplomatic or consular office at a U.S. embassy or consulate abroad[,]” and that questions about renouncing “one's U.S. citizenship pursuant to Section 349(a)(6) ... must be directed to USCIS.” (Attach. C.) On August 3, 2011, plaintiff “responded” to the State Department's letter and “again” sought to renounce his citizenship under § 1481(a)(6) in a letter to USCIS. (Compl. at 2 & Attach. D). When he received no response from either agency, plaintiff wrote both agencies on October 16, 2011, and again on February 13, 2012, “[w]hile preparing the case-in-chief....” ( Id. & Attachs. E, F.)

Plaintiff filed this civil action on March 19, 2012, from a correctional facility in Baltimore, Maryland. By letter of July 12, 2012, USCIS advised plaintiff that it could not proceed on his request “at this time” because a person renouncing his U.S. citizenship “while present in the United States [must] appear for an interview in person at a designated USCIS office.” (Defs. Ex. 2.) USCIS informed plaintiff that it “will not interview potential renunciants by phone or video link, and will not travel to prisons or jails to conduct renunciation interviews,” but that he was free to resubmit his renunciation request and evidence showing that he has “satisfied all the legal requirements for renunciation” after his release from prison. ( Id.)

ANALYSIS

I. LEGAL FRAMEWORK

United States law provides that a U.S. national “shall lose his nationality by voluntarily performing” any of a number of expatriating acts “with the intention of relinquishing United States nationality.” 8 U.S.C. § 1481(a). When a U.S. national performs an expatriating act, he is “presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.” Weber v. U.S. Dep't of State, Civ. No. 12–0532, 885 F.Supp.2d 46, 50, 2012 WL 3024751, at *3 (D.D.C. July 25, 2012) (quoting 8 U.S.C. § 1481(b)) (citing Lozada Colon v. U.S. Dep't of State, 2 F.Supp.2d 43, 45 (D.D.C.1998) (“expatriation depends not only on the performance of an expatriating act, but also upon a finding that the individual performed such act ‘voluntarily’ and ‘with the intention of relinquishing United States nationality’ ”)).

In addition, “[w]henever a ... consular officer of the United States has reason to believe that a person while in a foreign state has lost his United States nationality,” that officer “shall certify the facts upon which such belief is based to the Department of State, in writing, under regulations prescribed by the Secretary of State,” and “if the report of the ... consular officer is approved by the Secretary of State,” then a CLN shall be issued. 8 U.S.C. § 1501. “The State Department has issued regulations to implement 8 U.S.C. §§ 1481 and 1501 that (1) prescribe the ‘form’ of formal renunciations of nationality before consular officers and (2) prescribe regulations under which consular officers certify the facts that form the basis for the belief that a person abroad has lost his U.S. nationality.” Weber, 885 F.Supp.2d at 51, 2012 WL 3024751, at *3.

Although plaintiff states in his affidavit accompanying his renunciation request that he performed the expatriating act of declaring his allegiance to Canada, see8 U.S.C. § 1481(a)(2), he seeks from the instant complaint an order to compel defendants to act on his alleged renunciation of citizenship under § 1481(a)(6) of the INA which states:

A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by ... making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense.... ³

8 U.S.C. § 1481(a)(6). Defendants argue first that plaintiff's mandamus claim fails because the act he seeks to compel from the State Department—issuing a CLN—is discretionary and next that plaintiff's claim is moot since the USCIS has responded to his request for renunciation under subsection (a)(6). They are correct on both points.

II. MANDAMUS

This Court has “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. The minimum requirements for a writ of mandamus to issue are: (1) that the plaintiff has a clear and indisputable right to relief, (2) that the defendant has a clear, nondiscretionary duty to act, and (3) that the plaintiff has exhausted all other avenues of relief and has no other adequate remedy available to him. Power v. Barnhart, 292 F.3d 781, 784 (D.C.Cir.2002); Bond v. U.S. Dep't of Justice, 828 F.Supp.2d 60, 75 (D.D.C.2011). Even if the plaintiff overcomes these hurdles, whether mandamus relief should issue is discretionary, In re Cheney, 406 F.3d 723, 729 (D.C.Cir.2005), and typically there must be some “compelling equitable grounds” for mandamus to issue. Nat'l Shooting Sports Found. v. Jones, 840 F.Supp.2d 310, 323 (D.D.C.2012) (citations and quotation marks omitted). Mandamus is “a drastic remedy, to be invoked only in extraordinary circumstances,” and only with “great caution.” Banks v. Off. of Senate Sergeant–At–Arms and Doorkeeper of U.S. Senate, 471 F.3d 1341, 1349–50 (D.C.Cir.2006) (internal quotation marks and citations omitted). In particular, “writs of mandamus compelling agency action are ‘hardly ever granted.’ ” Bond, 828 F.Supp.2d at 75 (quoting Cheney, 406 F.3d at 729).

This Court recently denied mandamus relief to an applicant seeking a CLN after finding that the Secretary's decision to issue a CLN is a discretionary act. Weber, 885 F.Supp.2d at 52–53, 2012 WL 3024751, at *4. Nothing in this case compels a different result. Furthermore, since the USCIS has performed the only ministerial duty owed plaintiff by responding to his request to renounce his citizenship, a fact plaintiff concedes, Pl.'s Opp'n [Dkt. # 17] at 2, 4, the Court has no further function to perform and, therefore, will dismiss the mandamus claim as moot. See accord Schnitzler v. U.S., 863 F.Supp.2d 1, 3 (D.D.C.2012) (“To the extent that defendant Homeland Security had a ministerial duty to act on the plaintiff's application to renounce his citizenship, which is also the relief the plaintiff seeks from the complaint, it has done so.”) (citations omitted).

III. ADMINISTRATIVE PROCEDURE ACT

The provisions of the APA relevant to plaintiff's claim are those that direct the reviewing court to “compel agency action unlawfully withheld,” 5 U.S.C. § 706(1), and “hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §...