Spaulding v. Mayorkas

• Decision Date: 18 May 2010
• Docket Number: No. 3:09CV1624 (MRK).,3:09CV1624 (MRK).
• Court: U.S. District Court — District of Connecticut
• Parties: Marlon SPAULDING, Plaintiff, v. Alejandro MAYORKAS and Brian Figeroux, Defendants.

725 F.Supp.2d 303

Marlon SPAULDING, Plaintiff,

v.Alejandro MAYORKAS and Brian Figeroux, Defendants.

No. 3:09CV1624 (MRK).

United States District Court,D. Connecticut.

May 18, 2010.

Marlon Spaulding, Otisville, NY, pro se.

RULING AND ORDER

MARK R. KRAVITZ, District Judge.

This case reveals once more, as the Second Circuit recently described it, “the exceptionally poor quality of representation often provided by attorneys retained by aliens as they attempt to negotiate the complexities of our immigration law.” United States v. Cerna, 603 F.3d 32, 35-36 (2d Cir.2010). Plaintiff Marlon Spaulding, incarcerated and currently proceeding pro se and in forma pauperis, has filed suit against Defendant Alejandro Mayorkas, Director of the United States Citizenship and Immigration Services (“CIS”). Mr. Spaulding seeks judicial review of CIS's denial of his Application for a Certificate of Citizenship. See Am. Compl. [doc. # 9]. Mr. Mayorkas has moved under Rule 12(b)(1) of the Federal Rules of Civil Procedure for an order of dismissal, arguing that this Court lacks subject matter jurisdiction to review the agency decision because Mr. Spaulding did not exhaust his administrative remedies, as required by 8 U.S.C. § 1503(a). See Def.'s Mot. to Dismiss [doc. # 16]. Mr. Spaulding concedes that he did not appeal CIS's initial denial of his Application for a Certificate of Citizenship, but he says that this is because the attorney he paid to file the appeal, Defendant Brian Figeroux-who waived service of process, but who has not yet appeared to defend this action-inexplicably failed to do so. See Am. Compl. [doc. # 9]. For the reasons explained below, the Court concludes that Mr. Spaulding's failure to exhaust means that this Court lacks subject matter jurisdiction, and therefore Defendant Mayorkas's Motion to Dismiss [doc. # 16] is granted. Accordingly, Mr. Spaulding's claim against Mr. Mayorkas is dismissed, but without prejudice to Mr. Spaulding re-filing this action after he has exhausted his administrative remedies by filing a motion to reopen with CIS. Mr. Spaulding's claim against Mr. Figeroux remains, at least for the time being.

I.

The following facts are taken from the Amended Complaint [doc # 9] and related filings; ¹ unless other indicated, they have not been disputed. Mr. Spaulding, a native of Jamaica, entered the United States as a lawful permanent resident (“LPR”) in July 1987 at the age of 11. He arrived with his mother, Jennifer Spaulding, and his 9 year-old brother, Omar, both of whom were also LPRs. On January 7, 1994-when Mr. Spaulding was 17 and his brother was 15-Jennifer Spaulding became a naturalized citizen of this country. A number of years later, in September 2005, Ms. Spaulding hired attorney Brian Figeroux of the Brooklyn law firm Figeroux & Associates to file Applications for Certificates of Citizenship ² on behalf of her two sons. The applications requested that CIS recognize that Marlon and Omar had derived United States citizenship through the naturalization of their mother while they were still minors. In October 2005, Mr. Figeroux filed virtually-identical applications for the two brothers-who, after all, had virtually identical circumstances. See Ex. A to Am. Compl. [doc. # 9]. From that point forward, however, the brothers' attempts at securing U.S. citizenship diverged.

By late December 2005, Omar Spaulding had received his Certificate of U.S. Citizenship, meaning that CIS had determined that he was entitled to derivative citizenship on the basis of his mother's naturalization. See Ex. A to Am. Compl. [doc. # 9]; see also 8 U.S.C. § 1432 repealed by the Child Citizenship Act (“CCA”) of 2000, Pub.L. 106-395, Title I, § 103(a), Oct. 30, 2000, 114 Stat. 1632, codified at 8 U.S.C. § 1431. ³ However, it was not until receiving a letter dated July 19, 2006 that Marlon Spaulding was notified that his application for a certificate of derivative citizenship had been denied. See CIS Notice of Decision, Ex. B to Am. Compl. [doc. # 9]. The Notice of Decision-which was also sent to Mr. Figeroux-stated that Mr. Spaulding could appeal the decision, but that he had to do so within 33 days or else the decision would become final. See id. at 1. Enclosed with the letter was the appropriate form for noticing an appeal to the Administrative Appeals Office (AAO). Less than three weeks later, Jennifer Spaulding returned to the offices of Figeroux & Associates, paying Brian Figeroux $750 to appeal the adverse determination of Marlon Spaulding's application. See Customer Receipt dated Aug. 8, 2006 and Aff. of Jennifer Spaulding, Ex. C to Am. Compl. [doc. # 9]; Letter dated July 19, 2009 from Jennifer Spaulding, Ex. B to Pl.'s Resp. to Def.'s Mot. to Dismiss [doc. # 22].

Despite being paid to do so, however, Mr. Figeroux never filed the appeal. Worse, he apparently did not inform Mr. Spaulding of this fact for some eighteen months-and even then, only when confronted by Ms. Spaulding. See Am. Compl. [doc. # 9] at 5 (“After a year and a half of call and calling the office of Figeroux [&] Associates, my mother finally confronted a representative of [Brian Figeroux's] law office only to be informed no appeal has been filed, and she was not given back the fee of $750.00”); Decl. of Ethan Enzer, Field Office Director of the Hartford, Conn. office for CIS, Ex. D to Mem. in Supp. of Def.'s Mot. to Dismiss [doc. # 16] ¶ 3 (“A review of the record, relevant databases, and the records of the Administrative Appeals Office indicates that no appeal [of the denial of Mr. Spaulding's Application for Certificate of Citizenship] has ever been filed.”).

Meanwhile, on April 21, 2006, Mr. Spaulding pleaded guilty before Judge Stefan Underhill of this Court to one count of conspiracy to possess with the intent to distribute and to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846. See Plea Agreement, United States v. Marlon Spaulding, No. 05CR239 (D.Conn. Apr. 21, 2006). After accepting his plea, Judge Underhill ordered the U.S. Probation Office to prepare a Presentence Investigation and Report. See 18 U.S.C. § 3552(a); Fed. R.Crim. Proc. 32(c)-(d). That Report apparently indicated that Mr. Spaulding was a non-citizen, to which Mr. Spaulding, through his criminal defense attorney, objected. See Def. Marlon Spaulding's Mem. in Aid of Sentencing, No. 05CR239 (D.Conn. July 17, 2007) at 3 (“Defendant insists that he is a citizen of the United States despite certain contentions to the contrary and the assertion in ... the Presentence Report”). Judge Underhill ultimately sentenced Mr. Spaulding on July 25, 2007 to the mandatory minimum sentence of 120 months imprisonment. See Judgment in a Crim. Case, No. 05CR239 (D.Conn. July 25, 2007); see also Order, United States v. Spaulding, No. 07-3252-cr (2d Cir. Oct. 15, 2008) (dismissing Mr. Spaulding's appeal of his sentence as barred by the waiver of appellate rights contained in his plea agreement). Mr. Spaulding is currently serving that sentence in the Federal Correctional Institution in Otisville, New York; he is projected to complete his sentence in May 2014. See Ex. E to Def.'s Resp. to Apr. 9, 2010 Order [doc. # 27].

Mr. Spaulding filed the case currently before the Court on or about March 10, 2009 in the United States District Court for the Southern District of New York. See Spaulding v. Neufeld, No. 09cv5694 (S.D.N.Y.). In his original complaint, Mr. Spaulding named as a defendant only Donald Neufeld, the now-former Director of CIS, ⁴ and requested as relief the grant of a Certificate of Citizenship. See Compl. [doc. # 8]. On June 22, 2009, Chief Judge Loretta Preska of the Southern District of New York granted Mr. Spaulding's motion to proceed in forma pauperis, but ordered him to file an amended complaint with additional facts from which she could determine: (1) where venue is appropriate; and (2) whether Mr. Spaulding had exhausted his administrative remedies. See Order, Spaulding v. Neufeld, No. 09cv5694 (S.D.N.Y. June 22, 2009).

Mr. Spaulding filed his Amended Complaint on or about August 2, 2009. See Am. Compl. [doc. # 9]. Among other changes, it explained the circumstances recited above regarding why he had not appealed the initial denial of his application; indicated that his pre-incarceration residence was in Danbury, Connecticut; and added Brian Figeroux as a defendant, requesting as relief from him a formal letter of apology and reimbursement of the $750 Mr. Figeroux was paid to file Mr. Spaulding's appeal. See id. Chief Judge Preska then transferred the case to this Court under 28 U.S.C. § 1406(a) based on Mr. Spaulding's pre-incarceration residence in this District. See Order dated Sept. 29, 2009 [doc. # 7].

Thereafter, on February 4, 2010, Defendant Mayorkas filed the now-pending Motion to Dismiss, arguing that the Court lacks subject matter jurisdiction due to Mr. Spaulding's admitted failure to exhaust his administrative remedies. See Mot. to Dismiss [doc. # 16]. Mr. Mayorkas also argues that Mr. Spaulding has not met the requirements under Yang v. Gonzales, 478 F.3d 133, 142 (2d Cir.2007) and Lozada v. INS, 857 F.2d 10 (1st Cir.1988) for asserting an ineffective assistance of counsel claim, principally because he has not filed a complaint with any disciplinary authority for Mr. Figeroux's failure to file the appeal on Mr. Spaulding's behalf. See Def.'s Mem. in Supp. of Mot. to Dismiss [doc. # 16] at 10-11. Finally, Mr. Mayorkas argues that even if this Court has jurisdiction, Mr. Spaulding has not demonstrated that he is entitled to a Certificate of Citizenship under the law governing his application, the now-repealed 8 U.S.C. § 1432. Mr. Spaulding's principal argument in opposition is to assert that the fact that his brother, Omar, was granted a Certificate of Citizenship under identical circumstances demonstrates that he, too, is entitled to a Certificate. See Pl.'s Resp. to Mot. to Dismiss [doc. # 22]. In reply...