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Henry v. Mukasey

December 19, 2007

LEROY HENRY PLAINTIFF,
v.
MICHAEL MUKASEY, AS ATTORNEY GENERAL OF THE UNITED STATES, AND UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES DEFENDANTS.



The opinion of the court was delivered by: Trager, J

MEMORANDUM AND ORDER

On March 8, 2007, plaintiff, Leroy Henry ("Henry" or "Leroy"), brought this action seeking a declaratory judgment of citizenship pursuant to Section 360(a) of the Immigration and Nationality Act, 8 U.S.C. § 1503(a) ("Section 360(a)"). On July 2, 2007, the government moved to dismiss Henry's action on the grounds that (1) it is barred by the doctrine of res judicata; (2) it is untimely; and (3) Henry fails to meet the statutory requirements for citizenship.

On November 1, 2007, while the government's motion to dismiss was pending, Henry voluntarily asked the court to dismiss his action because he recently filed a new application for citizenship with United States Citizenship and Immigration Services("CIS"). In his request, however, Henry specified that he wanted the court to dismiss his action without prejudice, leaving him free, should the CIS deny his application, to seek judicial review of that denial in this court. The government agrees with Henry that his action should be dismissed, but has asked this court to dismiss it with prejudice because the action is untimely. Thus, the only issue before the court is whether to dismiss Henry's Section 360(a) action with or without prejudice.

For the reasons set forth below, the action is dismissed with prejudice.

Background

Many of the following facts are irrelevant to the disposition of this case, but they are provided as background to Henry's Section 360(a) action.

On October 22, 1959, Leroy Henry was born to Lena Sharpe and Delroy Henry in Jamaica. In 1961, Delroy Henry relocated to the United States, leaving Leroy in Jamaica under Lena Sharpe's supervision. In 1967, Lena Sharpe relocated to the United States, leaving Leroy in Jamaica under his paternal grandmother's supervision. On or around February 2, 1970, Leroy Henry applied for a visa as a child of Lena Sharpe, a lawful permanent resident of the United States, and on April 19, 1970, Leroy Henry immigrated to the United States.

During his time in the United States, Leroy Henry has been convicted of several crimes. First, on February 14, 1979, he was convicted in Virginia for robbery, simple abduction, and use of a firearm. Then, in 1990, he was convicted in New York for attempted criminal possession of a weapon in the third degree, and sentenced to a term of two to four years' imprisonment as a second felony offender. And again, on July 1, 1996, in the United States District Court for the Southern District of New York, Leroy was convicted of two counts of mail fraud, one count of conspiracy to commit mail fraud, and interstate transportation of stolen vehicles, for which he was sentenced to forty-one months' imprisonment.

On April 23, 1999, Leroy Henry applied to the Immigration and Naturalization Service ("INS")(predecessor to CIS) for United States citizenship, claiming to have derived automatic citizenship through the naturalization of his father, Delroy Henry. The INS denied his application on August 17, 1999. On or around August 19, 1999, Leroy Henry was placed in removal proceedings and charged as an aggravated felon based on his July 1996 federal conviction. On May 25, 2000, after the Board of Immigration Appeals confirmed the INS's denial of his citizenship application, Leroy Henry became subject to an administratively final removal order.

On December 2, 1999, while Leroy Henry's removal proceedings were pending, Leroy's father, Delroy Henry, filed a complaint in this court seeking, inter alia, a declaration that Leroy was a United States citizen based on equal protection grounds. This court dismissed Delroy Henry's action on August 6, 2002. Henry v. Reno, No. 99-cv-7914 (E.D.N.Y. August 6, 2002). No appeal was taken from this order.

On August 22, 2002, Leroy Henry was removed from the United States back to Jamaica.

More than three years later, on February 9, 2006, Leroy was arrested for being in the United States illegally and is currently under indictment in the United States District Court for the Southern District of New York.

This action for a declaratory judgment of citizenship followed on March 8, 2007. On November 1, 2007, however, Henry informed the court that he had filed a new application with CIS based on newly discovered evidence, and that ...


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