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Naji Freije v. Hillary Rodham Clinton

November 27, 2012

NAJI FREIJE, PLAINTIFF,
v.
HILLARY RODHAM CLINTON, SECRETARY, UNITED STATES DEPARTMENT OF STATE, DEFENDANT.



The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently pending before the Court, in this immigration action filed pro se by Naji Freije ("Plaintiff") against Secretary of State Hilary Rodham Clinton ("Defendant"), is Defendant's motion to dismiss Plaintiff's Complaint or, in the alternative, to stay this action pending the resolution of a related case. (Dkt. No. 7.) For the reasons set forth below, Defendant's motion to dismiss is granted; Defendant's motion to stay is denied as moot; and Plaintiff's Complaint is dismissed.

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Plaintiff filed his Complaint in this action on June 20, 2011. (Dkt. No. 1.) Generally, liberally construed, Plaintiff's Complaint alleges that Defendant, through her position as Secretary of the United States, wrongfully denied Plaintiff's application for a passport and certificate of identity. (Id.)

More specifically, Plaintiff alleges as follows, in pertinent part. Plaintiff was born in Lebanon on March 17, 1969, to Najibe Fraije. (Id. at ¶ 5.) At the time of Plaintiff's birth, Najibe Fraije had been made to believe that she had lost her United States citizenship for failing to meet the United States' physical-presence retention requirement (imposing on her the duty to live in the United States for a certain period of time). (Id. at ¶¶ 5, 9 & n.1.) Approximately thirty-five years later, on July 29, 2004, Najibe Fraije's United States citizenship was reinstated pursuant to 8 U.S.C. § 1435(d). (Id. at ¶ 6 & n.1.) On October 27, 2005, the United States Department of State released Najibe Fraije's record, which included an Oath of Allegiance stating that "the oath restores U.S. citizenship as of the date of failure to retain." (Id. at ¶ 7.)*fn1 On June 23, 2006, Plaintiff's application for a United States passport was denied in a letter that stated, in pertinent part, that "[t]he restoration of your mother's U.S. citizenship was not retroactive." (Id. at ¶ 9.) On February 4, 2009, Plaintiff was denied a Certificate of Identity for the same reason. (Id. at ¶¶ 12-14.) Because of these denials, Plaintiff remains outside of the United States. (Id. at ¶¶ 13-14.)

Based on these factual allegations, Plaintiff's Complaint asserts the following three claims against Defendant: (1) a claim for a writ of habeas corpus, under 28 U.S.C. § 2241, releasing him from the unlawful custody to which he has been subjected through the inability to travel to the United States (due to Defendant's wrongful denial of his application for a passport and a certificate of identity); (2) a claim for a judgment declaring him to be a national of the United States under 8 U.S.C. § 1503(a); and (3) a claim for a Writ of Mandamus compelling Defendant to issue Plaintiff a certificate of identity under 8 U.S.C. § 1503(b). (Id. at ¶¶ 15-17.)

Familiarity with these claims, and the factual allegations supporting them, is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)

B. Parties' Briefing on Defendant's Motion

Generally, Defendant's motion requests dismissal of Plaintiff's Complaint for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), and/or for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 7.) More specifically, Defendant asserts the following three arguments in favor of dismissal: (1) the Court lacks subject-matter jurisdiction over Plaintiff's first claim (i.e., for habeas corpus relief), because (a) even when construed with the utmost of special liberality, Plaintiff's Complaint has not alleged facts plausibly suggesting a physical restraint on his liberty rising to the level of "custody" within the meaning of 28 U.S.C. § 2241, and (b) in any event, 8 U.S.C. § 1503 would provide an appropriate mechanism for litigating any feasible claims to citizenship; (2) even when construed with the utmost of special liberality, Plaintiff's Complaint has not alleged facts plausibly suggesting either his second or third claim (which each arise under 8 U.S.C. § 1503), because (a) the statute that reinstated Najibe Fraije's United States citizenship (8 U.S.C. § 1435[d])--expressly stated that "[n]othing in this subsection or any other provision of law shall be construed as conferring United States citizenship retroactively upon such person during any period in which such person was not a citizen," and (b) in any event, even if Najibe Fraije's United States' citizenship was retroactively reinstated, the applicable law for transmitting citizenship to a child born abroad when one parent is a United States citizen is the statute that was in effect at the time of the child's birth, and here that statute (former 8 U.S.C. § 1401[a][7]) would not have conferred citizenship to Plaintiff; and (3) to the extent that Plaintiff's third claim is based on the Mandamus Act, that claim is precluded because the Mandamus Act is available only if, inter alia, there is no other adequate remedy available, and here 8 U.S.C. § 1503(c) provides an other adequate remedy. (Dkt. No. 7, Attach. 2, at 10-14 [attaching pages "5" through "9" of Def.'s Memo. of Law].) In the alternative, Defendant argues that a stay is appropriate because the issue of whether Najibe Fraije was a United States citizens at the time of Plaintiff's birth has been raised in the related case of Fraije v. Clinton, 10-CV-0514 (N.D.N.Y). (Id. at 14-15 [attaching pages "9" and "10" of Def.'s Memo. of Law].)

Generally, in a response to Defendant's motion, Plaintiff asserts the following three arguments, in pertinent part: (1) when construed with special liberality, Plaintiff's Complaint (a) alleges a conceivable habeas corpus claim against Defendant because keeping him out of the United States and requiring him to access the courts for a remedy is akin to holding him in custody, (b) alleges a conceivable claim for relief under 8 U.S.C. § 1503 because Najibe Fraije's certified Oath of Allegiance expressly states that "the oath restores U.S. citizenship as of the date of failure to retain," and (c) confers subject-matter jurisdiction on this Court because Plaintiff was in a plane over the Northern District of New York when his agent filed his Complaint in this action; (2) even if the Court renders a finding to the contrary, the proper remedy under the circumstances would be for the Court allow Plaintiff to replead; and (3) the Court should deny Defendant's alternative request to stay this action. (Dkt. No. 8, Attach. 1.)

Generally, in reply to Plaintiff's response, Defendant asserts the following six arguments:

(1) Plaintiff's argument is erroneously premised on the conceivability pleading standard established by Conley v. Gibson, 355 U.S. 41 (1957), rather than the plausibility standard established by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); (2) affording Plaintiff leave to amend his Complaint before dismissing his action is not necessary because any such amendment would be futile, based on the non-actionability of the allegations asserted in his opposition to Defendant's motion; (3) as Defendant previously pointed out in her memorandum of law in chief, habeas jurisdiction is inappropriate because (a) Plaintiff is not physically restrained by Government action and (b) 8 U.S.C. § 1503 would provide an appropriate mechanism for litigating any feasible claims to citizenship; (4) as Defendant previously pointed out in her memorandum of law in chief, there is no mandamus jurisdiction given that 8 U.S.C. § 1503 would provide an adequate remedy; (5) as Defendant previously pointed out in her memorandum of law in chief, even if Najibe Fraije's United States' citizenship was retroactively reinstated, in order to obtain derivative citizenship from her, Plaintiff would have to allege (but has failed to allege) that his mother "was physically present in the United States or its outlying possessions for a period or periods totaling not less than then [10] years, at least five [5] of which were after the age of fourteen years," pursuant to 8 U.S.C. § 1401(a)(7) (1979); and (6) Plaintiff's "constructive[]" presence argument fails because (a) it is unsupported by the case law, and (b) at most, the cases would afford Najibe Fraije only five years of constructive presence rather than the ten years of physical presence required. (Dkt. No. 9, at 4-8 [attaching pages "1" through "5" of Def.'s Reply Memo. of Law].)

II. GOVERNING LEGAL STANDARDS

A. Legal Standard Governing Motion to Dismiss for Lack of Subject-Matter Jurisdiction Pursuant to Fed. R. Civ. P. 12(b)(1)

"It is a fundamental precept that federal courts are courts of limited jurisdiction." Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Generally, a claim may be properly dismissed for lack of subject-matter jurisdiction where a district court lacks constitutional or statutory power to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000). A district court may look to evidence outside of the pleadings when resolving a motion to dismiss for lack of subject-matter jurisdiction. Makarova, 201 F.3d at 113. The plaintiff bears the burden of proving subject-matter jurisdiction by a preponderance of the evidence. Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 [2d Cir. 1996]). When a court evaluates a motion to dismiss for lack of subject-matter ...


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