Tankoano v. U.S. Citizenship And Immigration Servs.
| Decision Date | 25 January 2023 |
| Docket Number | Civil Action H-22-2757 |
| Parties | FADEL MARIO TANKOANO, Plaintiff, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
This is a sad case. The plaintiff, Fadel Mario Tankoano, was born in this country. He grew up believing that he was a citizen. The government told him as much when it issued him a passport and accepted five years of his young life as a United States Army volunteer, which is limited to citizens. After all this, the government refused to renew his passport, telling him that he was not a citizen because his parents were here as diplomats when he was born in New York City. Tankoano sued United States Citizenship and Immigration Services (“USCIS”), the Department of State, and various officials, invoking various statutes to establish his citizenship. The government moved for partial dismissal asserting limitations, lack of subject matter jurisdiction and failure to state a claim against all defendants except USCIS.
Based on the pleadings, the motions, the briefs, the record, and the applicable law, the court grants the dismissal of Tankoano's claims under 8 U.S.C. § 1503(a) and 28 U.S.C. § 2201 because Tankoano did not file his case within five years of the final administrative decision denying his passport application. Tankoano's attempts under the Administrative Procedures Act, 5 U.S.C. § 701; the Declaratory Judgment Act, 28 U.S.C. § 2201; the All Writs Act, 28 U.S.C. § 1651; and for a writ of mandamus, 28 U.S.C. § 1361, cannot overcome the agency's determination that he is not a citizen. The parties agreed to dismiss the claims against the individual defendant, Antony Blinken, and against the Department of State. The remaining defendant is USCIS, and the remaining claim relates to Tankoano's application for naturalization pending before USCIS and governed by 8 U.S.C. § 1447(b).
The reasons for these rulings are explained below.
Tankoano was born in New York City in April 1999. His father, Boubacar Tankoano, was then a diplomat at the Permanent Mission of Niger to the United Nations, with diplomatic agentlevel immunity under the United Nations Headquarters Agreement, T.I.A.S. No. 1676, and the Vienna Convention on Diplomatic Relations.
In March 2001, Tankoano's parents executed a U.S. passport application for him, supported by his New York City birth certificate. Not quite three weeks later, the Department of State issued Tankoano a passport. (Docket Entry No. 11-6). That passport expired in March 2006. In August 2015, when Tankoano was 16 years old, he executed a second application for a U.S. passport at the U.S. Embassy in Niamey, Niger, accompanied by his mother and with the written consent of his father. (Docket Entry No. 11-3). After verifying that Tankoano's father had diplomatic agent-level privileges and immunities when Tankoano was born, the Department of State denied his application. The denial notification letter explained:
As a Counselor at the Permanent Mission of Niger to the United Nations from September 14, 1997 to July 16, 2004, Mr. Boubacar Tankoano and accredited family members forming a part of his household, including [his] child, Fadel Mario Tankoano, were accorded full diplomatic immunity under the United Nations Headquarters Agreement, T.I.A.S. No. 1676 and the Vienna Convention on Diplomatic Relations. As such, Fadel Mario Tankoano was born not subject to the jurisdiction of the United States of American and did not acquire U.S. citizenship at birth pursuant to the Fourteenth Amendment to the Constitution.
In May 2017, after reentering the United States, Tankoano filed a third application for a passport in Houston, Texas. (Docket Entry No. 11-7). Tankoano falsely stated that he was born in Houston, Texas (rather than in New York City), and that he had never applied for, or been issued, a U.S. passport. (Id.). In September 2017, after reverifying that Tankoano's birth certificate stated he was born in New York City and that he had diplomatic agent-level privileges and immunities at the time of his birth, the Department of State denied the application for a second time. The Department again stated that Tankoano had not acquired U.S. citizenship at birth. (Docket Entry No. 11-8).
After having received two notices from the Department of State informing Tankoano that he was not a U.S. citizen by birth, he enlisted in the U.S. Armed Forces in April 2018, identifying himself, in apparent good faith, as a U.S. citizen by virtue of birth in the United States. The Army did its own background check and agreed that he was a citizen; it accepted five years of his voluntary service (which required him to be a citizen).
Tankoano executed a fourth application for a U.S. passport at the U.S. Embassy in Seoul, South Korea, in July 2019. (Docket Entry No. 11-9). In March 2020, after verifying for a third time that Tankoano had had diplomatic agent-level privileges and immunities at the time of his birth in New York City, the Department of State denied the application for a third time, again explaining Tankoano did not acquire U.S. citizenship at birth. (Docket Entry No. 11-10). Tankoano then applied for naturalization based on his military service under 8 U.S.C. § 1440, by filing an N-400 with the USCIS in May 2020. In June 2022, the USCIS issued a Notice of Intent to Deny. In August 2022, Tankoano filed this lawsuit, and in September 2022, he responded to the Notice of Intent to Deny. This motion for partial dismissal followed. The court grants the motion, as set out below.
A party may move for dismissal based on the lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. FED. R. CIV. P. 12(B)(1); see also FED. R. CIV. P. 12(H)(3) (“IF THE COURT DETERMINES AT ANY TIME THAT IT LACKS SUBJECT MATTER JURISDICTION, THE COURT MUST DISMISS THE ACTION.”). “IN RULING ON A MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION, A COURT MAY EVALUATE (1) THE COMPLAINT ALONE, (2) THE COMPLAINT SUPPLEMENTED BY UNDISPUTED FACTS EVIDENCED IN THE RECORD, OR (3) THE COMPLAINT SUPPLEMENTED BY UNDISPUTED FACTS PLUS THE COURT'S RESOLUTION OF DISPUTED FACTS.” Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001). The court accepts all factual allegations as true. Id. When determining issues of subject matter jurisdiction, the courts “may consider outside matter attached to a motion to dismiss without first converting it into a motion for summary judgment.” Alabama ex rel. Baxley v. Woody, 473 F.2d 10, 12 (5th Cir. 1973).
The government moves to dismiss Count I of the complaint under Rule 12(b)(1) because Tankoano filed the complaint after the five-year limitations period under 8 U.S.C. § 1503(a) expired. See Cambranis v. Blinken, 994 F.3d 457, 463 (5th Cir. 2021). Under § 1503(a), an individual who claims a denial of a right or privilege of citizenship on the ground that he is not a national of the United States may seek a declaration of citizenship but must do so “within five years after the final administrative denial of the right or privilege.” Garcia v. Freeman, 542 Fed.Appx. 354, 355 (5th Cir. 2013) (per curiam) (quoting reference omitted). Denying a passport application is a denial of a right or privilege of citizenship. See Vazquez v. Blinken, No. 21-40062, 2021 WL 5985059, at *2 (5th Cir. Dec. 16, 2021) (per curiam) ( that five-year limitations clock under 8 U.S.C. § 1503(a) begins to run when a passport is denied and that courts lack jurisdiction after five years have elapsed).
The “limitations period begins to run after the first final administrative denial of the claimed right or privilege, and the limitations period is not reset ‘by means of a follow-on denial.'” Cambranis, 994 F.3d at 463 (quoting Gonzalez v. Limon, 926 F.3d 186, 188 (5th Cir. 2019)). “[W]hen waiver legislation contains a statute of limitations, the limitations provision constitutes a condition on the waiver of sovereign immunity,” and “the terms of [the United States'] waiver of sovereign immunity define the extent of the court's jurisdiction.” United States v. Mottaz, 476 U.S. 834, 841 (1986) (quoting reference omitted). Courts “constru[e] ambiguities in favor of immunity.” United States v. Williams, 514 U.S. 527, 531 (1995).
The Department of State and Secretary of State Antony Blinken first denied Tankoano's passport application in August 2015. A claim under 8 U.S.C. § 1503(a) had to be filed within five years of that denial. Tankoano filed his complaint in August 2022, almost two years after the statute of limitations ended. This lawsuit is time-barred under 8 U.S.C. § 1503(a) unless there is a basis for extending tolling or limitations.
The Declaratory Judgment Act does not independently confer jurisdiction. See Frye v. Anadarko Petroleum Corp., 953 F.3d 285, 293 (5th Cir. 2019) (). “The operation of the Declaratory Judgment Act is procedural only.” Volvo Trucks N. Am., Inc. v. Crescent Ford Truck Sales, Inc., 666 F.3d 932, 938 (5th Cir. 2012) (quoting Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950)). Nor does the Fourteenth Amendment's Citizenship Clause help-it merely defines citizenship and the accompanying governmental limits, not federal court jurisdiction. See Thomas v. Lynch, 796 F.3d 535, 538-40 (5th Cir. 2015).
Federal courts have routinely reviewed challenges to the denial of benefits based on noncitizenship under 8 U.S.C. § 1503....
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