District Court USC Declaration Order On Appeal

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District Court USC Declaration Order On Appeal

  1. 1. Case 2:11-cv-03553-AB Document 35 Filed 07/27/12 Page 1 of 9Appeal Filed as Case 12-3670 in the U.S. Court of Appeals, Third Circuit on September 26, 2012. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA GILBERTO ERNESTO EDWARDS, : Plaintiff, : : CIVIL ACTION v. : : NO. 11-3553 TONY BRYSON, et al., : Defendants. : July _26th_, 2012 Anita B. Brody, J. MEMORANDUM Plaintiff Gilberto Ernesto Edwards brings suit against Defendants Tony Bryson, Evangelia Klapakis, Thomas Decker, Orlando Rivera, Perry Rhew, and Janet Napolitano (collectively, “the Government”).1 Edwards seeks a declaratory judgment, pursuant to 8 U.S.C. § 1503(a), that he is a United States citizen. Currently pending before me are the parties’ cross- motions for summary judgment. For the reasons set forth below, I will declare that Edwards is a citizen of the United States. I. BACKGROUND2 Plaintiff Gilberto Ernesto Edwards was born in Panama in 1965. At the time of his birth, Edwards’ parents were married. On August 24, 1977, Edwards was admitted to the United States 1 Tony Bryson is Philadelphia District Director of the U.S. Citizenship and Immigration Services (“USCIS”); Evangelia Klapakis is Director of the Philadelphia Field Office of USCIS; Thomas Decker is Director of the Philadelphia Field Office of U.S. Immigration and Customs Enforcement; Orlando Rivera is Director of the Philadelphia Passport Office of the U.S. Department of State; Perry Rhew is Chief of the Administrative Appeals Office of USCIS; and Janet Napolitano is Secretary of the U.S. Department of Homeland Security. 2 There are no factual disputes in this case. The parties have provided the following undisputed facts. See Undisputed Facts (ECF No. 23). 1
  2. 2. Case 2:11-cv-03553-AB Document 35 Filed 07/27/12 Page 2 of 9as a lawful permanent resident. On May 17, 1978, Edwards’ mother filed a Petition for Support with the Family Court ofthe State of New York seeking financial support from her husband, Edwards’ father. Thepetition listed different home addresses for Edward’s mother and father. On September 5, 1978,the Family Court issued a Temporary Support Order, ordering Edwards’ father to providefinancial support to Edwards’ mother. The Family Court made this support order permanent onOctober 4, 1978. On December 21, 1982, Edwards’ mother naturalized as a U.S. citizen. At the time of hernaturalization, Edwards was seventeen years old and resided with his mother, but not his father.In 1983, Edwards turned eighteen. On September 12, 1984, Edwards’ father naturalized as aU.S. citizen. In 1985, Edwards’ parents divorced. Edwards applied for a passport in 1991. To support his application, Edwards submittedhis mother’s naturalization certificate, his father’s naturalization certificate, and his own birthcertificate. On December 16, 1991, the U.S. Department of State (“Department of State”) issued It was an action beyondEdwards a passport and returned his supporting documentation to him. statutory authority. On December 27, 2000, the United States indicted Edwards for trafficking cocaine. OnMarch 27, 2001, a jury convicted Edwards of conspiring to import more than five kilograms ofcocaine into the United States. On February 13, 2001, during the period between his indictment and conviction, Edwardsfiled an N-600, Application for Certificate of Citizenship with the former Immigration and 2
  3. 3. Case 2:11-cv-03553-AB Document 35 Filed 07/27/12 Page 3 of 9Naturalization Service (“INS”).3 At the time Edwards filed his N-600 application, he had a validpassport. On December 15, 2001, ten months after the filing of his N-600 application, Edwards’passport expired. On August 7, 2008, Edwards filed a second N-600, Application for Certificate ofCitizenship, this time with U.S. Citizenship and Immigration Services (“USCIS”). On August29, 2009, USCIS denied both of Edwards’ N-600 applications. Edwards appealed the denial.On July 29, 2009, the Administrative Appeals Office (“AAO”) remanded Edwards’ case toUSCIS to allow the Department of State to determine whether to revoke Edwards’ passport. On June 15, 2011, USCIS again denied Edwards’ N-600 applications and noted that theDepartment of State could not revoke Edwards’ passport because it had expired in 2001.Edwards again appealed the denial. On July 14, 2011, the AAO upheld USCIS’s denial ofEdwards’ N-600 applications.II. LEGAL STANDARD According to Federal Rule of Civil Procedure 56(a), summary judgment will be granted“if the movant shows that there is no genuine dispute as to any material fact and the movant isentitled to judgment as a matter of law.” There are no disputed facts in this case; the sole issue iswhether, as a matter of law, Edwards is entitled to a declaratory judgment, pursuant to 8 U.S.C. §1503(a), that he is a U.S. citizen. Section 1503(a) provides: 3 “On March 1, 2003, Congress transferred the INSs functions to the Bureau ofImmigration and Customs Enforcement (ICE) and the U.S. Customs and Immigration Service(USCIS) of the United States Department of Homeland Security (DHS).” Biskupski v. Att’y Gen.of U.S., 503 F.3d 274 at 277 n.1 (3d Cir. 2007). 3
  4. 4. Case 2:11-cv-03553-AB Document 35 Filed 07/27/12 Page 4 of 9 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 department or independent agency for a judgment declaring him to be a national of the United States . . . .8 U.S.C. § 1503(a). “A suit under section 1503(a) is not one for judicial review of the agency’saction. Rather, section 1503(a) authorizes a de novo judicial determination of the status of theplaintiff as a United States national.” Richards v. Sec’y of State, Dep’t of State, 752 F.2d 1413,1417 (9th Cir. 1985); see also Delmore v. Brownell, 236 F.2d 598, 601 n.1 (3d Cir. 1956)(explaining that in a suit brought under § 1503(a) the plaintiff is “entitled to a trial de novo”).III. DISCUSSION Edwards contends that he should be declared a U.S. citizen because he possessed a validU.S. passport from December 16, 1991 until December 15, 2001, which he argues is conclusiveproof of his U.S. citizenship. The Government counters that only a valid passport is conclusiveevidence of citizenship, and argues that Edwards’ expired passport does not establish hiscitizenship. Edwards aptly points out that he had a valid passport when he first applied for acertificate of citizenship on February 13, 2001. Thus, if USCIS had rendered a decision onEdwards’ N-600 Application any time prior to December 15, 2001, his passport would still havebeen valid and would have conclusively established his citizenship even from the Government’spoint of view. A plaintiff seeking a declaration of citizenship under § 1503(a) has “the burden ofproving his citizenship by a preponderance of the evidence.” Delmore, 236 F.2d at 600. If aplaintiff establishes her/his prima facie case, then s/he will be declared a U.S. citizen, unless the 4
  5. 5. Case 2:11-cv-03553-AB Document 35 Filed 07/27/12 Page 5 of 9Government can disprove the plaintiff’s citizenship by “clear, unequivocal, and convincingevidence.” Id. (internal quotation marks omitted). In Delmore, the plaintiff claimed he had been born in California; therefore, he was a U.S.citizen. Id. at 599. The plaintiff’s attorney had written a letter to the Bureau of Immigration andNaturalization seeking a determination as to whether he was a citizen. Id. at 599-600. Hereceived a reply to this letter from the Commissioner of Immigration (“Commissioner”), whichstated: “[I]t is the view of this Service in light of the facts submitted and considered, that Mr.Delmore may properly be regarded a native and citizen of the United States.” Id. at 600. Yearslater, the plaintiff filed suit, seeking to be declared a citizen, pursuant to 8 U.S.C. § 1503(a). Id.at 599. The sole evidence that the plaintiff submitted to the district court to prove his status as aU.S. citizen was the reply he received from the Commissioner. Id. at 599-600. Based on thisevidence, the district court declared him to be a U.S. citizen. Id. at 599. On appeal, the Third Circuit acknowledged that the Commissioner’s reply “was not aformal adjudication of citizenship status.” Id. at 600. However, it held that the reply,“nonetheless, was a determination of Delmore’s status” that satisfied the plaintiff’s burden ofproving his citizenship by a preponderance of the evidence Id. The Third Circuit explained:“Once the United States has determined that an individual is a citizen, it should be required todisprove its own determination by clear, unequivocal, and convincing evidence . . . . If theBureau of Immigration and Naturalization erred in making such a determination the remedy mustlie in taking greater care.” Id. (internal quotation marks omitted). The Third Circuit affirmed thedistrict court’s declaration that the plaintiff was a U.S. citizen because there was no clear,unequivocal, and convincing evidence presented to the contrary. Id. at 600-01. 5
  6. 6. Case 2:11-cv-03553-AB Document 35 Filed 07/27/12 Page 6 of 9 Edwards asserts that he is a U.S. citizen based upon his receipt of a valid U.S. passport,issued for the ten-year maximum period authorized by law, from the Department of State. In This statute is in conflict with various Supreme Courtrelevant part, 22 U.S.C. § 2705 provides: Cases and was an Act by Congress of over-legislating. The following documents shall have the same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction: (1) A passport, during its period of validity (if such period is the maximum period authorized by law), issued by the Secretary of State to a citizen of the United States. In Magnuson v. Baker, 911 F.2d 330 (9th Cir. 1990), the Ninth Circuit analyzed § 2705.The Magnuson Court reached the conclusion that the language in the statute mandating thatpassports be given the “same force and effect as proof of United States citizenship as certificatesof naturalization or of citizenship issued by the Attorney General or by a court havingnaturalization jurisdiction,” 22 U.S.C. § 2705, was “a clear instruction from Congress to treatpassports in the same manner as certificates of citizenship or certificates of naturalization in allrespects.” Magnuson, 911 F.3d at 334. In order to determine the effect of § 2705 on a person’s citizenship status, the courtexamined the effect certificates of naturalization and certificates of citizenship had on a person’scitizenship status. Id. at 333. The Magnuson court acknowledged that these documents could beused as conclusive evidence of citizenship because they served as conclusive evidence of thedetermination of the Attorney General or a naturalization court that a person was a citizen. Id.Moreover, the Ninth Circuit recognized that Congress, in making these documents conclusiveevidence of citizenship, had vested the power in the Attorney General and naturalization courts todecide who is a U.S. citizen. Id. Because § 2705 mandates that passports be treated the same as 6
  7. 7. Case 2:11-cv-03553-AB Document 35 Filed 07/27/12 Page 7 of 9certificates of citizenship and certificates of naturalization in all respects, the Ninth Circuitconcluded that “Congress authorized passport holders to use the passport as conclusive proof ofcitizenship.” Id.; see also Matter of Villanueva, 19 I. & N. Dec. 101, 103 (B.I.A. 1984) (“[A]valid United States passport . . . constitutes conclusive proof of such person’s United Statescitizenship.”). Additionally, the Magnuson Court concluded that “[b]y deeming passportsconclusive evidence of citizenship, Congress . . . also granted power to the Secretary of State todetermine who is a citizen.” Id. The parties do not dispute that Edwards possessed a valid U.S. passport issued by theDepartment of State from 1991 to 2001. During its period of validity, Edwards’ passport wasconclusive proof of his status as a U.S. citizen. Although it is now expired, its expiration doesnot alter the fact that the Secretary of State has made the determination that Edwards is a U.S.citizen. While the Government quibbles over whether an expired passport can serve asconclusive proof of citizenship,4 there is no doubt that it is sufficient to establish by apreponderance of the evidence that Edwards is a U.S. citizen. To hold otherwise, would lessenthe import of a passport as compared to that of a certificate of naturalization or a certificate ofcitizenship, which is exactly what § 2705 forbids and Magnuson counsels against. Edwards’passport was never revoked; rather, it naturally expired after its ten-year maximum period ofvalidity authorized by law. Moreover, there is no evidence in the record that Edwardsfraudulently obtained his passport or that anything has occurred in the intervening years sinceEdwards’ passport expired to alter Edwards’ citizenship status. The Government has not 4 It is noteworthy that the Fifth Circuit has held that “expired passports, if taken as true,do establish citizenship.” Hernandez v. Cremer, 913 F.2d 230, 241 (5th Cir. 1990). 7
  8. 8. Case 2:11-cv-03553-AB Document 35 Filed 07/27/12 Page 8 of 9presented clear, unequivocal, and convincing evidence to disprove the Secretary of State’sdetermination that Edwards is a U.S. citizen. If the Secretary of State “erred in making such adetermination the remedy must lie in taking greater care,” Delmore, 236 F.2d at 600, or theGovernment may now pursue the rigorous path to revoke Edwards’ citizenship. However, basedon the evidence before me, I hold that Edwards’ is a United States citizen.5IV. CONCLUSION I declare that Gilberto Ernesto Edwards is a citizen of the United States. However, Irecognize that the only proper Defendant in this matter is Janet Napolitano, Secretary of the U.S.Department of Homeland Security. While a plaintiff may bring an action under 8 U.S.C. §1503(a) if s/he is denied “a right or privilege as a national of the United States . . . by anydepartment or independent agency, or official thereof, upon the ground that he is not a national of 5 Alternatively, Edwards argues that he derived citizenship through his mother’snaturalization under the former 8 U.S.C. § 1432(a)(3) (1990), the statute that both parties agreeapplies to Edwards’ case. In relevant part, § 1432(a) provides that a “child born outside of theUnited States of alien parents . . . becomes a citizen of the United States upon . . . [t]henaturalization of the parent having legal custody of the child when there has been a legalseparation of the parents . . . .” 8 U.S.C. § 1432(a). Edwards asserts that his parents were legallyseparated at the time his mother naturalized; therefore, he derived his citizenship through hismother’s naturalization. The Government contends that Edwards’ did not derive his citizenshipthrough his mother’s naturalization because his parents were not legally separated. I need not reach this argument because I hold that Edwards’ passport is sufficient toestablish by a preponderance of evidence that he is a U.S. citizen. I note, however, that the onlyproof offered by Edwards of his parents legal separation were support orders from the State ofNew York that were issued in response to a Petition for Support filed by Edwards’ mother, whichlisted different addresses for his parents. The Third Circuit has held that “a legal separation forpurposes of § 1432(a) occurs only upon a formal governmental action . . . that, under the laws ofa state or nation having jurisdiction over the marriage, alters the marital relationship of theparties.” Morgan v. Att’y Gen. of U.S., 432 F.3d 226, 234 (3d Cir. 2005). The Second Circuithas held that under the laws of the State of New York, a support order “d[oes] not terminate oralter . . . marital status . . . .” Brissett v. Ashcroft, 363 F.3d 130, 136 (2d Cir. 2004). Thus, it isunlikely that Edwards could succeed with this argument. 8
  9. 9. Case 2:11-cv-03553-AB Document 35 Filed 07/27/12 Page 9 of 9the United States,” such action may only be brought “against the head of such department orindependent agency.” 8 U.S.C. § 1503(a). Janet Napolitano is the only proper Defendant in thismatter because she is the head of the Department of Homeland Security of which USCIS is apart. Therefore, I will grant the Government’s motion for summary judgment and deny Edwards’motion for summary judgment as to Defendants Tony Bryson, Evangelia Klapakis, ThomasDecker, Orlando Rivera, and Perry Rhew. I will grant Edward’s motion for summary judgmentand deny the Government’s motion for summary judgment as to Defendant Janet Napolitano. s/Anita B. Brody ANITA B. BRODY, J. Copies VIA ECF on _______ to: Copies MAILED on _______ to: 9
  10. 10. Links to Cited Cases Added as a Research Aid by Joseph P. Whalen on October 4, 2012Biskupski v. Att’y Gen.of U.S., 503 F. 3d 274 (3d Cir. 2007) 1Richards v. Sec’y of State, Dep’t of State 2, 752 F.2d 1413 (9th Cir. 1985)Delmore v. Brownell, 236 F.2d 598 (3d Cir. 1956)3Magnuson v. Baker, 911 F.2d 330 (9th Cir. 1990)Matter of Villanueva, 19 I&N Dec. 101 (BIA 1984)Hernandez v. Cremer, 913 F.2d 230 (5th Cir. 1990)Morgan v. Att’y Gen. of U.S., 432 F.3d 226 (3d Cir. 2005)Brissett v. Ashcroft, 363 F.3d 130 (2d Cir. 2004)A Pertinent Case that was NOT Cited:Matter of Villanueva 4 makes zero reference to an earlier precedent onpoint;Matter of Rocha, 10 I&N Dec. 770 (BIA 1969) which held: Notwithstanding that respondent acted in good faith and made a full disclosure of all the facts at the time of her application for a United States passport, the erroneous issuance to her of such a passport by an official or the U.S. Government does not bestow citizenship on her when she did not acquire U.S. Citizenship at birth abroad under any statute, and she is deportable as an alien who was excludable at the time of entry.1There are multiple links for most cases, “other” links are noted separately.2 7 FAM 1200 Appendix B3 One of many AAO non-precedential N-600 Decisions4 See essay at: http://www.slideshare.net/BigJoe5/idiocracy-of-matter-of-villanueva Appendix Page 1 of 2
  11. 11. Then there are the old standbys:Claim to USC At Birth Abroad: “The applicable law for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the childs birth.” Chau v. Immigration and Naturalization Service, 247 F.3d 1026, 1029(9th Cir. 2000) (citations omitted).Derivative Citizenship Claim through Parents’ Naturalization: The applicable law for derivative citizenship purposes is "the law in effect at the time the critical events giving rise to eligibility occurred."Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005); accord Jordonv. Attorney General, 424 F.3d 320, 328 (3rd Cir. 2005).Evidentiary Burden and Burden of Proof: "There must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship."Fedorenko v. United States, 449 U.S. 490, 506 (1981).8 C.F.R. § 341.2(c) provides that the burden of proof shall be on theclaimant to establish the claimed citizenship by a preponderance of theevidence. In order to meet this burden, the applicant must submit relevant,probative and credible evidence to establish that the claim is "probablytrue" or "more likely than not." See Matter of E-M-, 20 I&N Dec. 77,79-80(Comm. 1989).A person may only obtain citizenship in strict compliance with the statutoryrequirements imposed by Congress. See INS v. Pangilinan, 486 U.S. 875,884 (1988).Moreover, "it has been universally accepted that the burden is on the alienapplicant to show his eligibility for citizenship in every respect" and thatany doubts concerning citizenship are to be resolved in favor of the UnitedStates. See Berenyi v. District Director, INS5, 385 U. S. 630, 637 (1 967).1st Circuit Decision.5Government’s brief citing to this decision in a somewhat similar case of non-disclosureexcept it was about a criminal conviction rather than Communist Party membership. Appendix Page 2 of 2
  12. 12. http://143.231.180.80/view.xhtml?req=(title:22%20section:2705)%20OR%20(granuleid:uscct-22-2705)&f=treesort&num=0 22 USC 2705: Documentation of citizenshipText contains those laws in effect on January 3, 2012 From Title 22—FOREIGN RELATIONS AND INTERCOURSE CHAPTER 38—DEPARTMENT OF STATE§2705. Documentation of citizenship The following documents shall have the same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction: (1) A passport, during its period of validity (if such period is the maximum period authorized by law), issued by the Secretary of State to a citizen of the United States. (2) The report, designated as a “Report of Birth Abroad of a Citizen of the United States”, issued by a consular officer to document a citizen born abroad. For purposes of this paragraph, the term “consular officer” includes any United States citizen employee of the Department of State who is designated by the Secretary of State to adjudicate nationality abroad pursuant to such regulations as the Secretary may prescribe. (Aug. 1, 1956, ch. 841, title I, §33, as added and renumbered title I, Pub. L. 97–241, title I, §117, title II, §202(a), Aug. 24, 1982, 96 Stat. 279, 282; amended Pub. L. 105–277, div. G, subdiv. B, title XXII, §2222(a), Oct. 21, 1998, 112 Stat. 2681–818.) PRIOR PROVISIONS A prior section 33 of act Aug. 1, 1956, was renumbered section 34 by section 117 of Pub. L. 97–241, and subsequently renumbered, and set out as a Short Title of 1956 Amendment note under section 2651 of this title, prior to repeal by Pub. L. 102–138, title I, §111(1), Oct. 28, 1991, 105 Stat. 654. [Why was it repealed in 1991, and exactly what was repealed?] AMENDMENTS 1998—Par. (2). Pub. L. 105–277 inserted at end “For purposes of this paragraph, the term ‘consular officer’ includes any United States citizen employee of the Department of State who is designated by the Secretary of State to adjudicate nationality abroad pursuant to such regulations as the Secretary may prescribe.” RECORD OF PLACE OF BIRTH FOR TAIWANESE-AMERICANS Pub. L. 103–236, title I, §132, Apr. 30, 1994, 108 Stat. 395, as amended by Pub. L. 103–415, §1(r), Oct. 25, 1994, 108 Stat. 4302, provided that: “For purposes of the registration of birth or certification of nationality or issuance of a passport of a United States citizen born in Taiwan, the Secretary of State shall permit the place of birth to be recorded as Taiwan.”

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