Yeshiwas v. U.S. Citizenship & Immigration Servs.
| Decision Date | 19 September 2013 |
| Docket Number | No. C 12-1719 PJH,C 12-1719 PJH |
| Parties | ADERAW YESHIWAS, Petitioner, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al., Respondent. |
| Court | U.S. District Court — Northern District of California |
The motion of respondents Eric H. Holder, Jr., United States Attorney General, and United States Citizenship and Immigration Services ("USCIS") to dismiss the first amended petition came on for hearing before this court on September 11, 2013. Respondents appeared by their counsel, Stacey Young, and petitioner Aderaw Yeshiwas did not make an appearance. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby DEFERS RULING on the motion to dismiss the first amended petition and requires further briefing on the issues identified below.
Petitioner Aderaw Yeshiwas is an Ethiopian-born United States citizen. The district court for the Northern District of California issued his naturalization certificate on December 1, 1987. First Am. Pet. ¶ 4; Yeshiwas Decl., Ex. A.1 Yeshiwas contends that the birth datestated on his naturalization certificate, i.e., August 25, 1955, is incorrect and that his actual year of birth was 1947.
Yeshiwas alleges that the error in his birth date is rooted in the differences between the Ethiopian calendar and the Gregorian calendar. First Am. Pet. ¶ 5. The error was allegedly made by an administrator at a refugee camp in Gedarif, the Sudan, where Yeshiwas was admitted in 1976 after fleeing the civil war in Ethiopia. Yeshiwas alleges that because the Gedarif camp administrator was aware that the Ethiopian calendar was eight years different from the Gregorian calendar, he added eight years to an Ethiopian refugee's birth date, without verifying the date with the refugee. Yeshiwas Decl. ¶ 4. Thus, when Yeshiwas reported his birth date as 1947, the camp administrator assumed that he gave the Ethiopian date, added eight years to convert the birth year to the Gregorian date, and entered 1955 as Yeshiwas's birth year in the registration record.
After he spent three years in the refugee camp, he was interviewed by the American Resettlement Agency. Yeshiwas alleges that the Agency did not verify his birth date and simply carried the error forward from the refugee camp registration papers. Yeshiwas Decl. ¶ 5. Yeshiwas did not realize there was an error in his birth year until he received his temporary Lawful Permanent Residence card in the Sudan, before leaving for the United States. Id. ¶ 6. He did not think it seemed important at the time, so he decided he would bring it up in the United States. Id.
When Yeshiwas completed his N-400 Application for Naturalization, he listed his August 25, 1947 birth date. During his naturalization interview with USCIS, Yeshiwas verbally mentioned the error in his birth record, but was told that since his other records that were based on the error were presumed to be correct, he could not alter his birth date prior to the naturalization ceremony. Id. ¶ 7. At the time of this interview, Yeshiwas did not have a copy of his Ethiopian birth certificate. The interviewing office manually changed the birth date on his N-400 application and submitted it with the incorrect birth date. Id. Yeshiwas does not have a copy of the N-400 application. Id. He contends that his December 1, 1987 naturalization certificate reflects the incorrect birth date. Id. ¶ 8.Yeshiwas has since obtained a copy of his Ethiopian birth certificate to establish that his birth date was August 25, 1947. Yeshiwas Decl., Ex. B.
On May 2, 2011, Yeshiwas applied for a replacement naturalization document, giving the following explanation for the error:
The Clerical Error happened because of the difference in Ethiopian Calendar and the Gregorian Calendar. There is 8 years difference. This happened in 1976. I was a poletical [sic] refugee in the Sudan. I told my date of birth to Ethiopian translator August 25, 1947[,] and then when the translator gave my age to the camp Administrator, he added 8 years and made my birth date August 25, 1955. That is how the ererror [sic] happened.
Yeshiwas Decl., Ex. D (Form N-265). The USCIS denied the request to change the date of birth to August 25, 1947, citing Title 8, Code of Federal Regulations, Part 338.4(e). That citation appears to be an erroneous reference to Part 338.5(e), which states:
Data change. The correction will not be deemed to be justified where the naturalized person later alleges that the name or date of birth which the applicant stated to be his or her correct name or date of birth at the time of naturalization was not in fact his or her name or date of birth at the time of the naturalization.
8 C.F.R. § 338.5. The USCIS explained that at the time of naturalization, Yeshiwas swore that his date of birth was August 25, 1955, the "same date of birth [that] was entered on your original N-405 [sic] application and verified by you with the interviewing officer at that time." Yeshiwas Decl., Ex. E.
The USCIS denial letter further stated, "Only a U.S. Federal Court with jurisdiction over your naturalization proceedings has the authority to order that an amendment be made to your Certificate of Naturalization." Yeshiwas Decl., Ex. E. The USCIS letter is not dated, but it would have been issued sometime after Yeshiwas submitted his N-565 application on May 2, 2011. Yeshiwas also submits a letter from his doctor dated January 3, 2012, advising him to sort out his actual birth date because it "is important medically." Yeshiwas Decl., Ex. C.
On April 5, 2012, Yeshiwas filed a petition to correct error in his naturalization certificate. On October 24, 2012, he filed a motion for writ of mandamus to change hisnaturalization certificate pursuant to 8 C.F.R. § 338.5. Yeshiwas filed a declination to proceed before a magistrate judge, and the case was reassigned to this court on November 14, 2012.2 On January 2, 2013, the court entered an order finding that Yeshiwas failed to serve the correct respondents pursuant to FRCP 4(i), granted leave to amend the petition to name and serve the proper respondents, and vacated the motion hearing.
On January 16, 2013, Yeshiwas filed a first amended petition naming United States Attorney General Eric H. Holder, Jr. and United States Citizenship and Immigration Services ("USCIS") as respondents. On May 3, 2013, respondents filed the instant motion to dismiss. Yeshiwas filed an opposition to the motion to dismiss on June 17, 2013, and respondents filed a reply on June 28, 2013. Yeshiwas did not appear at the motion hearing, at which the court ordered respondents to file supplemental authority to address more recent authority on the arguments raised in the motion. Respondents timely filed the supplemental brief on September 13, 2013.
Federal courts are courts of limited jurisdiction, possessing only that power authorized by Article III of the United States Constitution and statutes enacted by Congress pursuant thereto. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Thus, federal courts have no power to consider claims for which they lack subject-matter jurisdiction. See Chen-Cheng Wang ex rel. United States v. FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992). The burden of establishing that a cause lies within this limited jurisdiction rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994).
Subject matter jurisdiction is fundamental and cannot be waived. Billingsly v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989). The court is under a continuing duty to dismiss anaction whenever it appears that the court lacks jurisdiction. Id.; see also Spencer Enters., Inc. v. United States, 345 F.3d 683, 687 (9th Cir. 2003); Attorneys Trust v. Videotape Computers Prods., Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).
On a motion to dismiss pursuant to Rule 12(b)(1), the applicable standard turns on the nature of the jurisdictional challenge. A defendant may either challenge jurisdiction on the face of the complaint or provide extrinsic evidence demonstrating lack of jurisdiction on the facts of the case. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Where there is a facial attack on the court's subject matter jurisdiction, the standard is akin to the standard applied in determining a Rule 12(b)(6) motion. That is, the factual allegations are presumed true, and the motion is granted only if the plaintiff does not set forth the elements necessary for subject matter jurisdiction. See Doe v. Schachter, 804 F. Supp. 53, 57 (N.D. Cal. 1992).
After construing the allegations in the light most favorable to the plaintiff, the court may dismiss the complaint only if the claim does not "arise under" federal law or the Constitution, there is no case or controversy, or the cause of action is not described in any jurisdictional statute. See Baker v. Carr, 369 U.S. 186, 198 (1962). The court may grant leave to amend a complaint to remedy jurisdictional allegations that are defective as to form. See Telluride Management Solutions, Inc. v. Telluride Investment Group, 55 F.3d 463, 466 (9th Cir. 1995), rev'd on other grounds, Cunningham v. Hamilton County, 527 U.S. 198 (1999).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). Review is limited to the contents of the complaint. Allarcom Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). To survive a motion to dismiss for failure to state a claim, a complaint generally must satisfy only the minimal notice pleading requirements of Federal Rule of Civil Procedure 8, which requiresthat a complaint include a "short and plain statement of the claim showing that the pleader is...
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