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NOW COMES Albert Wiley Blakeway, Acting District Director for the Citizenship and
Immigration Services; United States Citizenship and Immigration Services, the Department of
Homeland Security, Michael Chertoff, Secretary of the Department of Homeland Security, and
Alberto Gonzales, Attorney General; and Emilio T. Gonzales, Director, U.S. Citizenship and
Immigration Services (USCIS), Respondents herein, by and through Johnny Sutton, the Untied States
Attorney for the Western District of Texas, and the undersigned Assistant United States Attorney,
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and move this Court to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject
mater jurisdiction and 12 b(6) for failure to state a claim upon which relief can be granted. In
I. BACKGROUND
Theodoros Dimopoulos, Plaintiff, has asked this Court to evaluate his naturalization
application and order his naturalization pursuant to 8 U.S.C. § 1447(b) because Respondents have
not acted within 120 days since Plaintiff’s examination. Petitioner, at all times prior to his
naturalization, has the burden to show eligibility for citizenship. In this Complaint, Plaintiff has filed
suit in the wrong district, the issues are now moot, and an application for citizenship cannot be
adjudicated when Plaintiff is in removal proceedings. Therefore, this court does not have
The Petitioner’s naturalization application (Form N-400) was filed on August 2, 2004. (Exh
1). The Petitioner was examined by USCIS on November 19, 2004, and May 2, 2005, (Exh 1). The
application was denied on November 30, 2006. (Exh 1). On December 5, 2006, Plaintiff appealed
the decision denying his application. (Exh 2). On May 2, 2005, Plaintiff was placed in removal
proceedings. (Complaint, para. 42). Plaintiff remains in removal proceedings, (Complaint, para 46).
III. ARGUMENT
The Federal Rules of Civil Procedure provide that “[w]henever it appears by suggestion of
the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss
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the action.” Fed. R. Civ. P. 12(h)(3) . The Plaintiff bears the burden of establishing subject matter
jurisdiction. Fed. R. Civ. P. 8(a); see Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994) (party
invoking jurisdiction bears burden of producing necessary facts to establish subject matter
jurisdiction); Richmond, Fredericksburg & Potomac R. Co. v. U.S., 945 F.2d 765, 769 (4th Cir.
1991); Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir. 1977).
As the Supreme Court has recognized, “[t]he responsibility for regulating the relationship
between the United States and our alien visitors has been committed to the political branches of the
Federal Government. Over no conceivable subject is the legislative power of Congress more
complete.” Reno v. Flores, 507 U.S. 292, 305 (1993) (citations and internal quotation marks
omitted); accord Landon v. Plasencia, 459 U.S. 21, 34 (1982) (“The power to regulate immigration
– an attribute of sovereignty essential to the preservation of any nation – has been entrusted by the
Constitution to the political branches.”). Thus, the Supreme Court has repeatedly instructed that
judicial review in immigration matters is narrowly circumscribed. See I.N.S. v. Aguirre-Aguirre, 526
U.S. 415, 425 (1999) (“judicial deference to the Executive Branch is especially appropriate in the
immigration context”); Miller v. Albright, 523 U.S. 420, 434 n.11 (1998) (same); Fiallo v. Bell, 430
U.S. 787, 792 (1977) (same). Specifically, the Court has stated:
Enforcing the immigration laws, and the conditions for residency in this country, is
becoming more difficult. . . . Moreover, the INS is the agency primarily charged by
Congress to implement the public policy underlying these laws. . . . Appropriate
deference must be accorded its decisions.
The Administrative Procedures Act (APA) contains a limited waiver of the government’s
sovereign immunity with respect to the review of agency actions. 5 U.S.C. § 702. It is limited in
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nature, as “[a]gency action made reviewable by statute and final agency action for which there is no
other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. In this instance,
plaintiff alleges subject matter jurisdiction both the APA and under 28 U.S.C. § 1331, alleging that
the district court has jurisdiction as a civil action arising under the Constitution and laws of the
United States, to override any jurisdictional limitations of the Immigration and Nationality Act
(INA). Plaintiffs assert that jurisdiction is appropriate under the APA. However, the APA is not to
be interpreted as an implied grant of subject matter jurisdiction to review agency decisions. Califano
A motion to dismiss should be granted if “it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief”. See Conley v. Gibson, 355
U.S. 41, 45-46 (1957); Kaiser Aluminum, etc. v. Avondale Shipyards, Inc. 677 F.2d 1045, 1050 (5th
Cir., 1982), cert. denied, 459 U.S. 1105 (1982) (quoted in Capital Parks, Inc. v. Southeastern
Advertising & Sales Sys., Inc., 864 F. Supp. 14, 15 (W.D. Tex. 1993); affirmed, 30 F.3d 627 (5th Cir.
1994)). A court should no grant a motion to dismiss “unless it appears beyond doubt that the
plaintiff can prove o set of facts in support of his claim which would entitle him to relief.” Kaiser
677 F.2d at 1050. Nonetheless, to withstand a motion to dismiss, it is axiomatic that the complaint
must allege facts sufficiently setting forth the essential elements of a cause of action. A motion to
dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide
the merits of the case. Millburn v. United States, 734 F.2d 762 765 (11th Cir. 1984). On a motion
to dismiss, the Court must construe the complaint in the light most favorable to the plaintiff and
accept the factual allegations as true. Fernandez-Montez v. Allied Pilots Assoc., 987 F.2d 278, 284
(5th Cir. 1993). See Capital Parks, Inc. 30 F.3d at 629 (“A court’s decision to dismiss for failure to
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state a claim may be upheld ‘only if it appears that no relief could be granted under any set of facts
that could be proven consistent with the allegations.’ Baton Rouge Bldg. & Constr. Trades Council
AFL-CIO v. Jacobs Constructors, Inc., 804 F.2d 879, 881 (5th Cir. 1986).”) See also O’Quinn v.
Nothing in Rule 12 (b)(6) confines its sweep to claims of law which are
obviously insupportable. On the contrary, if as a matter of law “it is
clear that no relief could be proved consistent with the allegations,” a
claim must be dismissed, without regard to whether it is based on an
outlandish legal theory or on a close by ultimately unavailing one.
Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 2232 (1989)
(quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229,
2232 (1984)).
Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice
to prevent a motion to dismiss. Jefferson v. Lead Indus. Ass’n., Inc., 106 F.3d 1245, 1250 (5th Cir.
1997); Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994); Fernandez-
Montes, 987 F.2d at 284. This is a rigorous standard, but subsumed within it is the requirement that
a plaintiff state his case with enough clarity to enable the court and the opposing party to determine
whether a claim is alleged. Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989).
Plaintiff has stated the Court has jurisdiction to hear the Complaint based on 8 U.S.C. § 1447(b)
(Section 336(b) of the Immigration and Nationality Act “INA”). (Complaint para 7). 8 U.S.C. §
1447(b) creates a right of action where the agency has not made a determination within 120 days after
the date of the examination on the Form N-400. Under § 1447 (b) Plaintiff is limited to applying to
the United States district court in the district where applicant resides for a hearing on the matter. 8
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U.S.C. § 1447 (b). Only such court has jurisdiction over the matter. 8 U.S.C. § 1447(b). Plaintiff
resides in Corpus Christi, Texas. (Exh. 1.) No authority is given to file where defendants may reside.
This matter is now moot. Plaintiff’s complaint states that Defendants have refused to adjudicate
his application for naturalization and asks this court to naturalize him under 8 U.S.C. § 1447 (b). On
proceeding, “it has been universally accepted that the burden is on the alien applicant” by a
preponderance of the evidence “to show his eligibility for citizenship in every respect,” including
establishing good moral character. Berenyi v. District Director, 385 U.S. 630, 637 (1967); see also
Lee v. U.S. 480 F.2d 673, 676 (2d Cir. 1973). “No alien has the slightest right to naturalization unless
all statutory requirements are complied with.” U.S. v. Ginsberg, 243 U.S. 472, 475 (1917). Thus, in
reviewing an application for naturalization, there must be strict compliance with all of the
congressionally imposed prerequisites before an applicant may acquire citizenship. Federenko v. U.S.,
449 U.S. 490, 506 (1981). In scrutinizing compliance with the statutory prerequisites, any doubts that
may exist are resolved in favor of the United States and against the applicant. Berenyi, 385 U.S. at
637; U.S. v. Manzi, 276 U.S. 463, 467 (1928). “ The Government has a strong and legitimate interest
in ensuring that only qualified persons are granted citizenship.” Berenyi, at 637.
The United States Supreme Court has held that citizenship has been given to the federal courts “as
a specific function to be performed in strict compliance with the terms of an authorizing statute . . .”
See United States v. Pangilinan, 486 U.S. 875, 884 (1988). The Supreme Court further stated that
“‘(o)nce it has been determined that a person does not qualify for citizenship, ... the district court has
no discretion to ignore the defect and grant citizenship,’” Id., quoting Fedorenko v. United States,
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supra, at 517. In addition, the Supreme Court has held that while a district court has the power to
control procedural matters and cure formal defects, it cannot enlarge upon its powers by supplying
facts and curing an alien’s failure to provide required documentation by “embodying” a fiction in the
proceedings to suggest that the naturalization petition was properly filed. See Maney v. United States,
Under Article III, 5 2, of the Constitution, federal courts may adjudicate only “actual, ongoing
cases or controversies”. Deakins v. Monaghan, 484 U.S. 193, 199 (1 988); Iron Arrow Honor Society
v. Heckler, 464 U.S. 67, 72 (1 983); Aetna Life Insurance Co. Of Hartford, Co v. Haworth, 300 U.S.
227, 57 S.Ct. 461 (1937); Alwan v. Ashcroft, 388 F.3d 507, 5 1 (5th Cir. 2004); Saliman v. U.S. 296
F.3d 1237, 1242 (11th Cir. 2002); Arizonans for Official English v. Arizona, 520 U.S. 43, 1117 S.Ct.
1055, 137 L.Ed 2d 170 (1997). The Supreme Court held that for a case or controversy to be
“justiciable” under the Constitution, it must be “extant at all stages of review, not merely at the time
the complaint is filed.” 520 U.S. at 67117 S.Ct at p. 1068, citing Preiser v. Newkirk, 422 U.S. 395,
401, 95 S.Ct. 1330, 1334, 45 L.Ed 2d 272 (1975). The Court of Appeals has held that “[i]f events that
occur subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to give the
plaintiff or appellant meaningful relief, then the case is moot and must be dismissed.” Al Najjar v.
Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001); U.S. v. Alaska, 253 U.S. 113, 40 S.Ct. 448 (1920).
The existence of a live controversy at all stages of litigation, not merely when the complaint is filed,
is necessary for a federal court to exercise its power. Steel v. Thompson, 415 U.S. 452, 459 n. 10
(1974); Sannon v. U.S., 631 F.2d 1247 (5th Cir. 1980). When the question of mootness arises, the
court must resolve it before it can assume jurisdiction. North Carolina v. Rice, 404 U.S. 244, 246
(1971). Since a decision has been made by the agency the matter is moot.
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Plaintiff has other administrative remedies. 8 U.S.C. 1447 (a). Plaintiff has filed an appeal of the
decision to deny his application (Exh. 2). Plaintiff must exhaust his administrative remedies before
a federal court has jurisdiction to hear the matter. Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir. 2000).
(As a matter of jurisdiction, courts may not review the administrative decisions of the INS unless the
appellant has first exhausted ‘all administrative remedies.’”). Plaintiff has failed to exhaust his
Finally, Plaintiff is currently in removal proceedings. (Complaint, para. 42, 46). Respondents are
prohibited by statute from approving a naturalization application when removal proceedings are
pending, i.e., “ ... no application for naturalization shall be considered by the Attorney General if there
is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the
provisions of this or any other Act . . .” 8 U.S.C. § 1429. Shamberg v. United States, 348 U.S. 540
(1955). A Texas court has found that when a Plaintiff is in deportation proceedings the court lacks
jurisdiction to hear Plaintiff’s claims for a declaration of naturalization. Mosleh v. INS, 992 F. Supp.
874 (N.D. TX 1998). Plaintiff will have an opportunity to seek relief in his removal proceedings based
on his naturalization or other adjustment of status claims. 8 C.F.R. 1239(f). “As a matter of
jurisdiction, courts may not review the administrative decisions of INS unless the appellant has just
exhausted ‘all administrative remedies.’” Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir. 2000). This
court lacks jurisdiction to consider the Complaint because Plaintiff is in removal proceedings.
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IV. CONCLUSION
For all the above reasons Petitioner’s Complaint should be dismissed for lack of jurisdiction.
Respectfully submitted,
JOHNNY SUTTON
United States Attorney
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Respondent’s Motion to Dismiss
Complaint on Naturalization Application was served via the Court’s CM/ECF system on the 22nd day
Simon M. Azar-Farr
Simon M. Azar-Farr & Assoc.
2313 N. Flores
San Antonio, Texas 78212
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ORDER
On this date, the Court having duly considered Respondents’ Motion to Dismiss Complaint on
ORLANDO GARCIA
UNITED STATES DISTRICT JUDGE