The opinion of the court was delivered by: Trager, J.
Plaintiff seeks a declaratory judgment under 8 U.S.C. § 1503(a) that he has acquired derivative citizenship through his father's naturalization, pursuant to Immigration and Nationality Act ("INA") § 321(a)(3), as previously codified at 8 U.S.C. § 1432(a)(3).*fn1 Defendants move to dismiss the complaint and, alternatively, for summary judgment, arguing (1) the action is untimely; (2) plaintiff has failed to exhaust administrative remedies; (3) the action is barred by res judicata; and (4) plaintiff fails on the merits of his citizenship claim. Plaintiff cross-moves for summary judgment. For the reasons stated below, plaintiff is likely time-barred from bringing this action. However, even if plaintiff's claim were timely, his evidence does not establish a claim to derivative citizenship and, therefore, summary judgment is granted in favor of the defendants.
a. Henry's History in the United States
Plaintiff Leroy Henry was born in Jamaica on October 29, 1959. Pl. Ex. A. His parents, also natives of Jamaica, cohabitated in Jamaica from 1953 to 1966, but were never formally married. Pl. Ex. B at ¶ 4; Compl. ¶ 16. In 1967, both of plaintiff's parents immigrated to the United States, leaving Henry with his grandmother in Jamaica. Pl. Ex. B at ¶ 5; Compl. ¶ 17-18. In 1970, at the age of 11, Henry entered the United States as a lawful resident alien and began residing with his mother. Def. Ex. D; Pl. Ex. B at ¶ 6. However, the parties dispute whether plaintiff thereafter lived with his mother or father from 1971 to 1977, at the time of his eighteenth birthday. Each of Henry's parents has submitted an affidavit stating that Henry was in the sole custody of his father during this period. Pl. Ex. B at ¶ 6-7; Pl. Ex. C at ¶ 3. But as the defendants point out, Henry's father's application for citizenship in 1972 did not list Henry as his child. Def. Ex. E. In contrast, Henry's mother's application for citizenship in 1978 listed Henry as her child and stated that he was living with her. Def. Ex. G. On November 21, 1972, when Henry was thirteen, his father was naturalized as a United States citizen. Def. Ex. F; Pl. Ex. J. His mother was naturalized on October 3, 1978, when Henry was nineteen. Def. Ex. H.
Beginning at age nineteen, Henry accumulated a series of criminal convictions. In February of 1979, plaintiff was convicted of robbery, abduction and use of a firearm in Virginia. Def. Ex. I at 1. In June of 1980, Henry was convicted of attempted criminal possession of a weapon in the third degree and was sentenced in New York to two to four years imprisonment as a second felony offender. Id. at 2. In 1996, plaintiff was found guilty of violating a number of federal criminal statutes, including conspiracy to commit mail fraud and interstate transportation of stolen vehicles, for which he was sentenced to forty-one months in prison. Def. Ex. J.
b. Previous Attempts to Obtain Derivative Citizenship
On April 23, 1999, while incarcerated, plaintiff filed an N-600 application for citizenship ("N-600") with the Immigration and Naturalization Service ("INS"), claiming to have derived citizenship from his father's 1972 naturalization.*fn2 Ex. K; Compl. ¶ 22. On August 17, 1999, the INS denied the N-600 on the grounds that plaintiff's parents had not been "legally separated," and that Henry had not been in his father's legal custody, as required by section 321(a)(3) of the INA. Def. Ex. L; Compl. ¶ 22.
Two days later, on August 19, 1999 - one day before his anticipated release from prison - the INS initiated removal proceedings against plaintiff on account of his conviction as an aggravated felon, in accordance with 8 U.S.C. § 1227(a)(2)(A)(iii). Def. Ex. M; Compl. ¶ 23. In his proceedings, plaintiff argued that removal was improper because he had acquired derivative citizenship from his father's naturalization. Def. Ex. O. However, the Immigration Judge ("IJ") determined that plaintiff had not acquired citizenship because his parents had not been "legally separated," and that plaintiff was a removable alien due to his felony conviction. Id. On May 25, 2000, the Board of Immigration Appeals ("BIA") affirmed the IJ's decision. Id.; Compl. ¶ 23.
While removal proceedings were ongoing, and after an unsuccessful appeal of plaintiff's N-600 denial to the Administrative Appeals Office ("AAO"), plaintiff and his father filed an amended complaint in this Court against the Attorney General on January 4, 2000.*fn3 See Am. Compl. for a Declaratory J., Henry v. Reno, No. 99-cv-7914 (Trager, J.), attached as Def. Ex. N. This complaint sought a declaration, under § 1503(a), that plaintiff's N-600 had been incorrectly decided, that plaintiff was a citizen and that plaintiff's deportation should be enjoined. Id.; Compl. ¶ 24. Plaintiff later abandoned the citizenship claim, and instead argued that section 321 of the INA, requiring a legal separation and legal custody by the naturalized parent as prerequisites to derivative citizenship acquisition, violated the Equal Protection Clause of the Constitution. Henry v. Reno, No. 99-CV-7914, at 1 (E.D.N.Y. Aug. 6, 2002) ("Henry I"), attached as Def. Ex. P; Compl. ¶ 24. The complaint was dismissed on August 6, 2002, upon a determination that INA section 321 did not discriminate on the basis of sex in Henry's case, where his mother and father were unwed but he was legitimate under Jamaican law. In that event, our law requires each parent to obtain citizenship before the child's eighteenth birthday in order for derivative citizenship to attach. Id. at 3-4. Somewhat ironically, if Henry had not been legitimate under Jamaican law, our laws would have allowed Henry's mother to automatically transfer citizenship to Henry if she had obtained citizenship before his eighteenth birthday, but would not have allowed such a transfer to occur through his father. Id.
On August 22, 2002, a few weeks after Henry I was dismissed, the INS removed plaintiff to Jamaica. Compl. ¶ 25. On February 6, 2006, plaintiff was arrested for illegally reentering the United States, leading the INS, on February 22, 2006, to reinstate plaintiff's prior removal order of August 22, 2002. Def. Ex. R; Compl. ¶ 26. While in detention pending his second removal, plaintiff filed another action on March 8, 2007, again seeking a declaration of citizenship under 8 U.S.C. § 1503(a). See Henry v. Mukasey, No. 07-cv-01005, 2007 WL 4555894, at *1 (E.D.N.Y. Dec. 19, 2007) ("Henry II"), attached as Def. Ex. Z at 1.; see also Compl. for Declaratory J. in Henry II, attached as Def. Ex. T.
While Henry II was pending before this Court, plaintiff filed a second N-600 (the "second N-600") with United States Citizenship and Immigration Services ("USCIS") on October 17, 2007.*fn4 Def. Ex. X; Compl. ¶ 28. This second N-600 was accompanied by an order from the Resident Magistrate's Court in Jamaica declaring that, according to Jamaican law, Henry's parents had a common law marriage and were legally separated in 1966, pursuant to the Maintenance Act of 2005. Def. Ex. V ("the Magistrate's Order"); Compl. ¶ 28. At this point, the plaintiff asked this Court to dismiss Henry II while the USCIS processed the second N-600. See Henry II, at *1. In a memorandum and order dated December 19, 2007, Henry II was dismissed with prejudice because 8 U.S.C. § 1503(a)'s five-year statute of limitations barred the claim, but the question of whether a new § 1503(a) action would be possible based on the outcome of the second N-600 was not reached. Id. at *2-3.
USCIS denied the second N-600 on December 19, 2007 on the ground that plaintiff's parents had not obtained a legal separation. Def. Ex. Y at 2-3; Compl. ¶ 29. Plaintiff appealed this decision to the AAO, which upheld USCIS's determination on March 14, 2008, finding that the Magistrate's Order did not establish that plaintiff's parents had obtained a legal separation before his eighteenth birthday. Def. Ex. aa at 2-4; Compl. ¶ 30. On April 25, 2008, plaintiff filed the instant action based on the denial of his second N-600.
On May 6, 2008, plaintiff pled guilty to one count of passport application fraud, per 18 U.S.C. § 1542, in connection with actions he took to try to secure his illegal re-entry into the United States in 2006. United States v. Henry, No. 06-cr-185 (S.D.N.Y. May 6, 2008), attached as Def. Ex. dd. Plaintiff was sentenced to a period of time already served, id., and was removed to Jamaica on June 14, 2008. Def. Ex. ee.
Plaintiff's current declaratory action, filed under 8 U.S.C. § 1503(a), seeks (1) a declaration of United States citizenship; (2) a declaration that plaintiff's second N-600 denial is invalid as a matter of law; (3) an order compelling USCIS to approve plaintiff's second N-600 application; and (4) any other relief deemed "just and proper." Compl. ¶ 32-49. Defendants have moved to dismiss the complaint or, in the alternative, for summary judgment. Plaintiff has cross-moved for summary judgment.
Since the commencement of this action, the government has established that the Magistrate's Order was at least improperly executed, if not fraudulent. Def. Ex. bb. For obvious reasons, plaintiff no longer relies on this document. However, plaintiff has submitted a new Consent Order from a Jamaican court containing substantially the same facts. Pl. Ex. K ("the Consent Order") (dated July 29, 2008). Specifically, the Consent Order states that plaintiff's parents had a common law marriage between 1953 and 1966 and have been separated since 1966. Id. Plaintiff has also submitted a legal opinion letter from his counsel in Jamaica regarding common law marriage and separation. Pl. Ex. L ("the Legal Opinion Letter").
(1) Subject Matter Jurisdiction
Although neither party raises the issue, plaintiff's complaint presents serious questions about the subject matter jurisdiction of this Court.*fn5 Because federal courts have an independent obligation to ascertain subject matter jurisdiction, the issue must be considered sua sponte. Fed. R. Civ. Pro. 12(h)(3); see, e.g., United Republic Ins. Co. v. Chase Manhattan Bank, 315 F.3d 168, 170-71 (2d Cir. 2003) (subject matter jurisdiction should be treated as a threshold issue, not simply addressed when raised by one of the parties).
a. Pathways to Claim Derivative Citizenship
An alien may make a derivative citizenship claim to the courts in two ways. First, he may raise the claim as a defense to removal proceedings before an IJ, and appeal any negative decision to the BIA. After exhausting this claim administratively, he may sue only in the circuit courts under 8 U.S.C. § 1252(b) for review of the citizenship claim. See 8 U.S.C. § 1252(b)(5) ...