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Delice N-600 case USCIS motion to dismiss

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Delice N-600 case USCIS motion to dismiss

  1. 1. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIAALBERTO DELICE, : : Plaintiff, : :v. : CIVIL ACTION NO. 11-4258 :ERIC HOLDER, United States Attorney :General; et al., : : Defendants. : : DEFENDANTS’ MOTION TO DISMISS Federal Defendants1 respectfully move to dismiss this case pursuant to Federal Ruleof Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and Rule 12(b)(6) forfailure to state a claim for which relief can be granted. Plaintiff, Alberto Delice (“Plaintiff”),seeks to raise a claim to derivative citizenship pursuant to the Administrative ProcedureAct and 8 U.S.C. § 1503(a). Because Plaintiff’s claim to citizenship “arose by reason of, or inconnection with [his] removal proceeding under the provisions of [the Immigration andNationality Act]” and “is in issue in [Plaintiff’s] removal proceeding,” Plaintiff cannot raisethis claim in this Court. 8 U.S.C. § 1503(a). Additionally, Plaintiff’s claim brought pursuant 1 Eric Holder, United States Attorney General; Janet Napolitano, Secretary of the U.S.Department of Homeland Security; Alejandro Mayorkas, Director of United StatesCitizenship and Immigration Service (“USCIS”); John Morton, Director, United StatesImmigration and Customs Enforcement (“ICE”); Perry Rhew, Chief of USCIS AdministrativeAppeals Office; Tony Bryson, District Director USCIS Philadelphia District; Kent Frederick,Chief Counsel, United States ICE, Philadelphia District (collectively, “Defendants”).
  2. 2. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 2 of 17to the Mandamus Act and the Declaratory Judgment Act for the return of his biologicalmother’s death certificate is now moot and fails to state a claim for which relief can begranted. Defendants thus respectfully request that their motion be granted and thatPlaintiff’s Complaint (ECF No. 1) be dismissed. A memorandum of law in support of thismotion is attached hereto and incorporated by reference.Dated: October 14, 2011 Respectfully submitted, TONY WEST Assistant Attorney General Civil Division ELIZABETH J. STEVENS Assistant Director District Court Section Office of Immigration Litigation /s/ Gisela A. Westwater _________________ GISELA A. WESTWATER Trial Attorney, District Court Section Office of Immigration Litigation U.S. Department of Justice – Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 532-4174 Facsimile: (202) 532-4393 E-mail: Gisela.Westwater@usdoj.gov Counsel for Defendants 2
  3. 3. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 3 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIAALBERTO DELICE, : : Plaintiff, : :v. : CIVIL ACTION NO. 11-4258 :ERIC HOLDER, United States Attorney :General; et al., : : Defendants. : : DEFENDANTS’ MOTION TO DISMISS In this immigration case, Plaintiff, Alberto Delice (“Plaintiff”), seeks a declarationthat he is a United States citizen and an order mandating the return of his biologicalmother’s death certificate. See generally Compl. (ECF No. 1). Because Plaintiff cannotmaintain either of his claims, Federal Defendants2 respectfully move to dismiss Plaintiff’scomplaint. First, Plaintiff’s claim to citizenship fails for lack of subject-matter jurisdictiongiven that it arose in the course of and in relation to his ongoing removal proceedingsbefore an immigration judge. See 8 U.S.C. § 1503(a). Defendants thus move to dismiss thisclaim pursuant to Federal Rule of Civil Procedure 12(b)(1). Second, Plaintiff’s mandamus 2 Eric Holder, United States Attorney General; Janet Napolitano, Secretary of the U.S.Department of Homeland Security; Alejandro Mayorkas, Director of United StatesCitizenship and Immigration Service (“USCIS”); John Morton, Director, United StatesImmigration and Customs Enforcement (“ICE”); Perry Rhew, Chief of USCIS AdministrativeAppeals Office; Tony Bryson, District Director USCIS Philadelphia District; Kent Frederick,Chief Counsel, United States ICE, Philadelphia District (collectively, “Defendants”).
  4. 4. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 4 of 17claim is moot and fails to state a claim for which this Court can grant relief. Accordingly,Defendants move to dismiss this claim pursuant to Federal Rules of Civil Procedure12(b)(1) and 12(b)(6).I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY A. Plaintiff’s Familial History Plaintiff was born in Haiti on August 5, 1966, to his biological mother, OxaneCharles. Compl. ¶ 1. At the time of his birth, Plaintiff’s biological father, Andre DuquesneDelice, was not married to Plaintiff’s biological mother, but later “recognized [Plaintiff] ashis natural child.” Id. ¶ 2. Some years later, Plaintiff was “officially adopted” by his father’s“then-girlfriend, Marie Emmanuel” on July 4, 1974. Id. ¶ 2. The Haitian government issuedan adoption certificate reflecting Plaintiff’s adoption by Ms. Emmanuel on October 20,1974. Id. Less than a year after Plaintiff’s adoption, Plaintiff’s father naturalized as a UnitedStates citizen on June 20, 1975. Id. ¶ 3. Approximately one year later, Plaintiff’s U.S. citizenfather married Plaintiff’s adoptive mother on June 4, 1976, in Millbourne, Pennsylvania. Id.Plaintiff’s adoptive mother then naturalized as a U.S. citizen on September 27, 1976. Id. Throughout this period, Plaintiff was not in the United States. See id. ¶ 4. Plaintifffirst entered the United States as a lawful permanent resident on April 19, 1979. Id.Plaintiff claims that a few years later his “biological mother, Oxane Charles, died in Haiti onFebruary 12, 1982.” Id. ¶ 5. Plaintiff claims that he “has been a United States citizen sinceat least 1982,” contending that obtained citizenship at the latest at the time of his biologicalmother’s death. See Compl. at Intro. 4
  5. 5. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 5 of 17 B. Plaintiff’s Applications for Certificate of Citizenship. Plaintiff first filed a Form N-600 Application for Certificate of Citizenship (“N-600Application) on April 30, 2002, pursuant to former section 320 of the Immigration andNationality Act (“INA”). Id. ¶¶ 6, 7. Plaintiff claimed U.S. citizenship based upon “hisbiological father [having] naturalized.” Id. ¶ 7. The legacy Immigration and NaturalizationService (“INS”)3 denied Plaintiff’s first N-600 on December 26, 2002, because Plaintiff hadbeen adopted but was “not living with” his adoptive mother “at the time of [her]naturalization.” Id. ¶ 8. Plaintiff does not and cannot allege that he chose to appeal thisdenial, rendering it final thirty (30) days after it was served. See id. at Ex. K (INS Denial,Dec. 26, 2002); see also id. at Ex. Q (USCIS Denial, Aug. 25, 2010). Plaintiff filed a second N-600 Application on August 8, 2005, again under formersection 320 of the INA. Id. ¶ 9. In his second application, Plaintiff claimed derivativecitizenship based upon the naturalization of his biological father and adoptive mother priorto his eighteenth birthday. Id. at Ex. L. USCIS denied this application on September 9, 2008,because “[a]t the time of [Plaintiff’s] adopted Mother’s Naturalization [sic], [Plaintiff] wasnot in her physical custody.” See Compl. at Ex. M (USCIS Decision, Sept. 9, 2008).4 Again,Plaintiff does not and cannot allege that he chose to appeal this denial, rendering it final 3 Effective March 1, 2003, the legacy INS, under the direction of the AttorneyGeneral, ceased to exist and its functions were transferred to the Department of HomelandSecurity. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25,2002). 4Admittedly, USCIS “erred in its acceptance of Plaintiff’s second application,” whichshould have been rejected pursuant to 8 C.F.R. § 341.6. Compl. at Ex. Q (USCIS’s August 25,2010, Denial of Plaintiff’s fourth N-600 Application). 5
  6. 6. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 6 of 17thirty (30) days after it was served. See id.; see also id. at Ex. Q (USCIS Denial, Aug. 25,2010). Plaintiff filed a third N-600 Application on or about September 1, 2009, based onformer INA, § 321 “as amended by P.L. 95-417,” which applies to children obtainingderivative citizenship upon the death of one parent. See id. ¶ 10; see also id. at Ex. O (USCISDenial, Oct. 16, 2009). In connection with this application, Plaintiff submitted a documentfrom République d’Haïti, Ministere de la Culture, “Extract from the Registers of DeathCertificates,” which purported to memorialize the death of Plaintiff’s biological mother in1982. See Declaration of Peggy Lin (“Lin Declaration”), attached hereto as Defs.’ Ex. A, ¶ 3.This N-600 Application was summarily denied on October 16, 2009, pursuant to 8 C.F.R. §341.6. See Compl. at Ex. O. Section 341.6 states, in pertinent part, that “[a]fter anapplication for a Certificate of Citizenship has been denied and the appeal time has run, asecond application submitted by the same individual shall be rejected and the applicantinstructed to submit a motion for reopening or reconsideration in accordance with 8 CFR §103.5.” 8 C.F.R. § 341.6. Finally, “on December 10, 2009, at a hearing in removal proceedings,” Plaintiffstated that he “had new evidence that would establish [his] claim to United Statescitizenship.” See Compl. at Ex. Q (USCIS Denial, Aug. 25, 2010). This “application wastherefore sent to USCIS for a review of [Plaintiff’s] citizenship claim based on the newlydiscovered evidence.” Id.; see also id. ¶ 10. In connection with Plaintiff’s renewed claim tocitizenship in his removal proceedings, or about November 19, 2009, Plaintiff providedgovernment counsel for ICE with a document from République d’Haïti, Ministere de laJustice, entitled “Acte de Deces.” See id. at Intro., ¶ 15; see also Lin Declaration, ¶¶ 13-14. 6
  7. 7. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 7 of 17This document purported to memorialize the death of Plaintiff’s biological mother in 1982.Lin Decl. ¶ 14. This documents is separate and distinct from the death certificate providedto USCIS with Plaintiff’s third N-600 Application. Id. ¶ 16. USCIS issued a decision on themerits, denying Plaintiff’s claim on August 25, 2010. See Compl. at Ex. Q; see also id. ¶ 10. Plaintiff then filed a Form I-290B, Notice of Appeal or Motion, seeking to overturnUSCIS’s August 25, 2010 decision. Id. ¶ 11; see also id. at Ex. P. The USCIS AdministrativeAppeals Office (“AAO”) issued a denial of Plaintiff’s appeal on May 25, 2011. See AAODenial, attached hereto as Defs.’ Ex. B.5 The AAO found that “at the time of his adoptivemother’s naturalization, [Plaintiff] was not residing in the United States pursuant to alawful admission for permanent residence, as is required by former section 321(a)(5) and321(b) of the [INA].” Id. at 3. Additionally, the AAO found that the parental rights ofPlaintiff’s biological mother “were severed upon [Plaintiff’s] adoption in 1974.” Id. at 4.“Therefore, [Plaintiff’s] father’s naturalization alone did not qualify as the naturalization ofa ‘surviving parent’ as contemplated in former section 321(a)(2) of the [INA].” Id. C. Plaintiff’s Removal Proceedings. Plaintiff has twice been placed into removal proceedings. See Compl. ¶ 13. Plaintiffwas first placed in removal proceedings on August 16, 2005.6 Id.; see also id. at Ex. R. Asecond Notice to Appear again placing Plaintiff in removal proceedings was issued on orabout August 4, 2009. Id. at Ex. T. Plaintiff was apparently served with thisNotice to Appear on or about September 2, 2009. Id.; see also id. ¶ 14. Plaintiff’s claim to 5 While not physically attached to Plaintiff’s complaint, the May 25, 2011, AAODenial is incorporated into Plaintiff’s complaint by reference. 6 Defendants are unclear at this time as to why these proceedings did not proceed toconclusion. 7
  8. 8. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 8 of 17United States citizenship has been raised in his latest removal proceedings. See id. ¶ 14(admitting that Plaintiff was released from immigration custody pending determination ofhis U.S. citizenship). Additionally, the death certificate of Plaintiff’s biological mother,which allegedly constituted new evidence in Plaintiff’s removal proceedings, was returnedto Plaintiff’s counsel “in Immigration Court . . . on August 17, 2011.” See Acknowledgementof Receipt, attached hereto as Defs.’ Ex. C. Plaintiff’s removal proceedings remain pending,with a removal hearing scheduled for January 11, 2012. See Notice of Hearing in RemovalProceedings, attached hereto as Defs.’ Ex. D. D. Plaintiff’s Complaint (ECF No. 1). Plaintiff filed his complaint in this Court on June 30, 2011. See ECF No. 1. Plaintiffseeks relief for his claim to United States citizenship pursuant to 8 U.S.C. § 1503(a), theAdministrative Procedures Act (“APA”), 5 U.S.C. §§ 702, 704, et seq.; and the DeclaratoryJudgment Act, 28 U.S.C. §§ 2201, 2202. See Compl. ¶¶ 26-27, 29. Additionally, Plaintiff asksthe Court to order the authentication and return of his biological mother’s death certificatepursuant to the Mandamus Act, 28 U.S.C. § 1361, and the Declaratory Judgment Act, 28U.S.C. §§ 2201, 2202. Id. ¶ 28-29. On August 12, 2011, Defendants moved to extend the time by which they mustrespond to Plaintiff’s complaint by forty-five (45) days, to which Plaintiff’s counselconsented. See ECF No. 5. That same day, the Court granted Defendants’ motion andallowed Defendants until October 14, 2011, to respond. See ECF No. 6. Defendants nowtimely move to dismiss Plaintiff’s complaint pursuant to Federal Rules of Civil Procedure12(b)(1) and 12(b)(6). 8
  9. 9. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 9 of 17II. LEGAL STANDARD A. Federal Rule of Civil Procedure 12(b)(1) When Defendants make a facial challenge to subject-matter jurisdiction, the Courtmust confine its review to the pleadings in a light most favorable to the plaintiff. Mortensenv. First Fed. Sav. & Loan Assn, 549 F.2d 884, 891 (3d Cir.1977). When Defendants challengethe Court’s subject-matter jurisdiction in fact, however, the Court may “make factualfindings, beyond the pleadings, that [are] decisive to determining jurisdiction.” CNA v.United States, 535 F.3d 132, 145 (3d Cir. 2008); see also United States v. Pa. Shipbuilding Co.,473 F.3d 506, 514 (3d Cir. 2007) (factual challenge pursuant to Rule 12(b)(1) allows a“court to review evidence outside the pleadings”). Disputed material facts do not precludethe Court from “evaluating for itself the merits of jurisdictional claims.” Mortensen, 549F.2d at 891. In other words, the Court need not consider disputed jurisdictional facts in alight favorable to Plaintiff. Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 77 (3d Cir. 2003).Ultimately, the burden rests with Plaintiff, as the party asserting jurisdiction, to show thatthe Court has subject-matter jurisdiction to entertain his Complaint. Kokkonen v. GuardianLife Ins. Co., 511 U.S. 375, 377 (1994); Hedges v. United States, 404 F.3d 744, 750 (3d Cir.2005). B. Federal Rule of Civil Procedure 12(b)(6) Fed. R. Civ. P. 12(b)(6) provides for the dismissal of a complaint that fails to state aclaim upon which relief can be granted. When considering a motion to dismiss pursuant toRule 12(b)(6), courts must accept as true all well-pleaded facts and allegations in thecomplaint. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see also Phillips v. County of 9
  10. 10. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 10 of 17Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). Courts need not, however, accept a plaintiff’slegal conclusions. Iqbal, 129 S. Ct. at 1949. “Threadbare recitals of the elements of a causeof action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell AtlanticCorp. v. Twombly, 550 U.S. 544, 555 (2007)). Thus, “only a complaint that states a plausibleclaim for relief survives a motion to dismiss.” Id. at 1950 (citing Twombly, 550 U.S. at 556). When considering a motion pursuant to Rule 12(b)(6), courts “must consider thecomplaint in its entirety, as well as other sources courts ordinarily examine when ruling onRule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaintby reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. MakorIssues & Rights, Ltd., 551 U.S. 308, 322 (2007) (citing 5B Wright & Miller § 1357 (3d ed.2004 & Supp. 2007)); see also Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir.2006); In re Suprema Specialties, Inc. Sec. Litig., 438 F.3d 256, 264 (3d Cir. 2006). Thus, on amotion to dismiss for failure to state a claim upon which relief could be granted, courts mayconsider documents referenced in the complaint even if those documents are not physicallyattached to the complaint. See Pryor v. Nat’l Collegiate Athletic Assn, 288 F.3d 548, 560 (3dCir. 2002).III. ARGUMENT Plaintiff’s complaint is subject to dismissal in its entirety. First, Plaintiff’s claim tocitizenship is not properly before this Court because it is an issue in Plaintiff’s ongoingremoval proceedings. Second, Plaintiff’s mandamus claim for the return of his biologicalmother’s death certificate is now moot. To the extent that Plaintiff contends otherwise, hehas failed to state a claim for which relief can be granted. 10
  11. 11. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 11 of 17 A. 8 U.S.C. § 1503(a) Bars Plaintiff’s Citizenship Claims. Statutory law precludes this Court from exercising subject matter jurisdiction overPlaintiff’s request that he be declared a United States citizen. Congress has specificallyprovided a framework for judicial review of nationality claims raised in removalproceedings. See 8 U.S.C. § 1252(b)(5). Pursuant to the INA, jurisdiction over a question ofcitizenship that arose in removal proceedings may not rest in the district court, with alimited exception not present in this case.7 See 8 U.S.C. § 1252(b)(5); see also 8 U.S.C. §1503(a). Instead, claims to citizenship must be exhausted through removal proceedingsand raised for review through a petition for review (PFR). Plaintiff admittedly raised his claim to citizenship in his removal proceedings.Compl. at Ex. Q (USCIS Denial, Aug. 25, 2010). Indeed, Plaintiff secured his release fromdetention pending those removal proceedings based upon his alleged U.S. citizenship. Id. ¶14. Accordingly, Plaintiff’s claims pursuant to 8 U.S.C. § 1503(a) must be dismissed for lackof subject-matter jurisdiction. Section 1503(a) provides, in pertinent part, If any person who is within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, such person may institute an action under the provisions of section 2201 of title 28 against the head of such 7 Following the adjudication of an individual’s citizenship claims in his removalproceedings, he may raise those claims in a properly filed Petition for Review (“PFR”) in thecourt of appeals. Only if the court of appeals reviewing that PFR determines that the recordpresents a genuine issue of material fact may the issue be considered by a district courtfollowing a transfer pursuant to 8 U.S.C. § 1252(b)(5). See Pierre v. Att’y Gen., 528 F.3d 180,184 (3d Cir. 2008) (en banc) 11
  12. 12. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 12 of 17 department or independent agency for a judgment declaring him to be a national of the United States, except that no such action may be instituted in any case if the issue of such person’s status as a national of the United States (1) arose by reason of, or in connection with any removal proceeding under the provisions of this chapter or any other act, or (2) is in issue in any such removal proceeding.8 U.S.C. § 1503(a) (emphasis added). This language in § 1503(a) is accentuated bycorresponding language in the INA that vests jurisdiction in the court of appeals overnationality claims that were at issue in removal proceedings. Section 1252(b) states “[t]hepetitioner may have such nationality claim decided only as provided in this paragraph.” 8U.S.C. § 1252(b)(5)(C). The exceptions to jurisdiction in Section 1503(a) “are designed to protect removalproceedings from judicial interference and preserve 8 U.S.C. § 1252 as the exclusive meansof challenging a final order of removal.” Ortega v. Holder, 592 F.3d 738, 743 (7th Cir. 2010).In other words, the INA prevents efforts to frustrate removal proceedings by the initiationof collateral action under 8 U.S.C. § 1503(a). This serves the practical purpose of avoidingthe possibility of parallel proceedings reaching different results. Plaintiff has raised his claim to nationality in his removal proceeding. See Compl. ¶14. Indeed, “on December 10, 2009, at a hearing in removal proceedings [Plaintiff] claimed[he] had new evidence that would establish [his] claim to United States citizenship.” Id. atEx. N (USCIS Denial, Aug. 25, 2010). If Plaintiff wishes to pursue his nationality claim, hemust first exhaust his administrative remedies through his removal proceedings. Congressremoved original jurisdiction over nationality claims raised in removal proceedings – andremoval proceedings in general – from district courts. See Massieu v. Reno, 91 F.3d 416,422 (3d Cir. 1996). 12
  13. 13. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 13 of 17 Plaintiff’s removal proceedings remain pending. See Ex. D (Notice of Hearing.)Plaintiff may yet prevail on his citizenship claims in his removal proceedings. If he doesnot, Plaintiff may then appeal to the Board of Immigration Appeals and then, if necessary,file a PFR in the Third Circuit. To allow Plaintiff to simultaneously pursue the same claim indistrict court that he has asserted in his administrative removal proceedings could lead todisparate results and would clearly frustrate both Congress’s intent to avoid such a resultand its efforts to conserve judicial resources. Accordingly, Defendants respectfully movethe Court to dismiss Plaintiff’s claims pursuant to 8 U.S.C. § 1503(a), the APA, and theDeclaratory Judgment Act – all of which seek a declaration of citizenship – for lack ofsubject-matter jurisdiction. Furthermore, Plaintiff cannot maintain his claim under the APA because removalproceedings offer him an adequate remedy for the relief he seeks. The APA provides abasis for jurisdiction only where “there is no other adequate remedy in a court.” 5 U.S.C.§ 704 (emphasis added). This statutory language indicates that “Congress did not intendthe general grant of review in the APA to duplicate existing procedures for review ofagency action.” Bowen v. Massachusetts, 487 U.S. 879, 903 (1988). On the face of theComplaint, Plaintiff has an alternative adequate remedy through removal proceedings anda petition for review. See 8 U.S.C. § 1252(b)(5)Plaintiff may not invoke APA jurisdictionsimply because 8 U.S.C. § 1252(b)(5) precludes him from bringing a claim directly under 8U.S.C. § 1503(a). Instead, it is Congress’ intent that Plaintiff pursue his nationality claim inremoval proceedings and, if he is unsuccessful there, in the appropriate court of appeals,since his claim arose in relation to his removal proceedings. See 8 U.S.C. § 1503(a) (barringdistrict court review when nationality claim “arose by reason of, or in connection with any 13
  14. 14. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 14 of 17removal proceeding); and 8 U.S.C. § 1252(B)(5) (expressly recognizing that nationalityclaims arising in removal proceedings are reviewable on a petition for review in theappropriate court of appeal). Thus, Plaintiff’s APA claim is precluded by an “other adequateremedy in a court.” 5 U.S.C. § 704 See also Shahid Qureshi v. Admin. Appeals Office, 408Fed. Appx. 611, 615 (3d Cir. Pa. 2010) (“[T]he APAs review provisions do not ‘confer[]authority to grant relief if any other statute that grants consent to suit expressly orimpliedly forbids the relief which is sought.’”) (quoting 5 U.S.C. § 702). B. Plaintiff Cannot Maintain His Claims Seeking the Return of His Biological Mother’s Death Certificate. Plaintiff seeks an order to “compel the Defendants and their subordinates tocomplete the authentication of his [biological] mother’s Haitian Death Certificate andreturn that document to him without further unreasonable delay.” Compl. ¶ 49. Plaintifffiled his third N-600 Application on or about September 1, 2009. See id. ¶ 10. Inconnection with that application, Plaintiff submitted a document purporting tomemorialize the death of his biological mother in 1982. See Lin Decl. ¶ 3. This documentwas from République d’Haïti, Ministere de la Culture, and entitled “Extract from theRegisters of Death Certificates.” See Lin Decl., ¶ 3. Plaintiff then submitted a separate and distinct document in the course of hisremoval proceedings to ICE counsel on or about November 19, 2009. See Compl. at Intro.;see also Lin Decl. ¶¶ 13-14. To the best of Defendants’ knowledge, this second deathcertificate was a document from République d’Haïti, Ministere de la Justice entitled “Actede Deces.” The “Acte de Deces” was forwarded by ICE Attorney Jon. Staples to USCIS OfficerLawrence Songwe. See Lin Decl. ¶ 14. To the best of Defendants’ knowledge, the documentfrom République d’Haïti, Ministere de la Justice, entitled “Acte de Deces,” is the only 14
  15. 15. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 15 of 17original Haitian death certificate that Defendants ever had in their possession. See id. ¶¶11, 14, 18. The document entitled “Acte de Deces” was returned to Plaintiff, via counsel, ata hearing in Immigration Court on August 17, 2011. See Ex. C (Acknowledgement ofReceipt). In his Complaint, Plaintiff references only one death certificate, which he providedto ICE on or about November 19, 2009. See Compl. at Intro.; see id. ¶¶ 15, 28-29, 42. Thisdocument was returned to Plaintiff on August 17, 2011. See Ex. C (Acknowledgement ofReceipt). Accordingly, Plaintiff’s claims seeking the return of this document are moot andsubject to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1). “When the issuespresented in a case are no longer ‘live’ or the parties lack a legally cognizable interest in theoutcome, the case becomes moot and the court no longer has subject-matter jurisdiction.”Weiss v. Regal Collections, 385 F.3d 337, 340 (3d Cir. 2004) (citing County of Los Angeles v.Davis, 440 U.S. 625, 631 (1979)). Alternatively, to the extent that Plaintiff contends that his claims seeking the returnof his biological mother’s death certificate are not moot, his complaint fails to state a claimfor which relief can be granted. Plaintiff has failed to allege that he provided an originaldocument on any occasion other than on or about November 19, 2009, when he submittedhis biological mother’s death certificate to ICE counsel. See Compl. at Intro. There is noplausible claim that any of the supporting documentation submitted with Plaintiff’s third N-600 Application were original documents that Defendants have declined to return toPlaintiff. See generally Compl.8 To the extent that the Court may wish to consider this claim further, Defendants do 8not have in their possession any original documents belonging to Plaintiff. See Lin Decl. ¶ 15
  16. 16. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 16 of 17IV. CONCLUSION For the reasons stated above, Defendants respectfully move this Court to dismissthis action in its entirety. First, Plaintiff’s citizenship claims are subject to dismissalpursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction.Second, Plaintiff’s ancillary claims seeking the return of his biological mother’s deathcertificate are moot and subject to dismissal pursuant to Rule 12(b)(1). Alternatively,Plaintiff’s claims seeking the return of his mother’s death certificate are subject to dismissalpursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to a state a claim for whichrelief can be granted.Dated: October 14, 2011 Respectfully submitted, TONY WEST Assistant Attorney General Civil Division ELIZABETH J. STEVENS Assistant Director,District Court Section /s/ Gisela A. Westwater GISELA A. WESTWATER Trial Attorney, District Court Section Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 v: (202) 532-4174 f: (202) 532-4393 E-mail: Gisela.Westwater@usdoj.gov Counsel for Defendants18. The only original document that Defendants previously possessed has been returned toPlaintiff as of August 17, 2011. See Ex. C. Accordingly, the Defendants are unable toproduce any other original documents. 16
  17. 17. Case 2:11-cv-04258-CMR Document 7 Filed 10/14/11 Page 17 of 17 CERTIFICATE OF SERVICE I hereby certify that on this date, I caused a true and correct copy of the foregoingDefendants’ Motion to Dismiss to be served via CM/ECF upon the following: Adam Solow Solow & Isbell LLC 1601 Walnut St., Suite 1523 Philadelphia, Pennsylvania 19102 215-564-1990 Email: adam@solowisbell.com.Dated: October14, 2011 /s/ Gisela A. Westwater GISELA A. WESTWATER Trial Attorney, District Court Section Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 532-4174 Facsimile: (202) 532-4393 E-mail: Gisela.Westwater@usdoj.gov Counsel for Defendants 17

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