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Sluss v. United States Citizenship and Immigration Services

United States District Court, District of Columbia

October 20, 2012

Matthew David SLUSS, Plaintiff,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES et al., Defendants.

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Matthew David Sluss, Petersburg, VA, pro se.

Wynne Patrick Kelly, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

In this action brought pro se, plaintiff, a federal prisoner, seeks to compel the United States Citizenship and Immigration Services (" USCIS" ) or the Department of State (" State Department" ) " to issue ... a Certificate of Loss of Nationality pursuant to 8 U.S.C. [§ ]1481(a)(2)" or " to act upon [his] multiple additional requests for expatriation under [§ ]1481(a)(6), being that at the time of [his] request, the United States was in a qualifying state of war as per the statute." (Am. Compl. [Dkt. # 11] at 1-2.) Plaintiff purports to sue under the " the Administrative Procedures Act, 5 U.S.C. [§ ] 700 et seq." (Compl. [Dkt. # 1] at 1.) [1]

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Since plaintiff seeks to compel agency action, the Court construed the complaint as an action for relief under 28 U.S.C. § 1361 and directed the defendants to show cause why a writ of mandamus should not issue. Order (Jun. 13, 2012) [Dkt. # 8].

Defendants move to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (Defs.' Mot. to Dismiss Pl.'s Am. Complaint [Dkt. # 14].) Since the USCIS has now performed its ministerial duty with regard to plaintiff's request to renounce his citizenship under § 1481(a)(6), the Court will grant defendants' motion to dismiss the mandamus claim as moot. In addition, the Court finds that plaintiff has stated no claim under the APA and, therefore, will dismiss the case.

BACKGROUND

The facts as alleged in plaintiff's complaint and supported by the attachments (" Attach." ) are as follows. On September 7, 2010, plaintiff " officially renounced his citizenship by taking an oath while in Toronto, Ontario, Canada ... at a Services Canada Government Center ... and receiv[ing] his Canadian SIN (social insurance number)." (Compl. at 2 & Attach. A.) On September 15, 2010, before he could relocate to Toronto, plaintiff " was subjected to a search and arrest warrents [sic]. [He] has been since incarcerated[ ]" in the United States.[2] (Compl. at 2.)

On July 8, 2011, plaintiff " sent an affidavit [and] separate request for expatriation" to the USCIS, stating that he is " a dual citizen of the United States and Canada[,]" who is renouncing his U.S. citizenship " [p]ursuant to 8 U.S.C. § 1481(a)(6)...." (Attach. B.) Thereafter, plaintiff received an unsigned letter dated July 25, 2011, from the State Department advising him that " one can only renounce one's U.S. citizenship pursuant to Section 359(a)(5) of the Immigration and Nationality Act [" INA" ] before a U.S. diplomatic or consular office at a U.S. embassy or consulate abroad[,]" and that questions about renouncing " one's U.S. citizenship pursuant to Section 349(a)(6) ... must be directed to USCIS." (Attach. C.) On August 3, 2011, plaintiff " responded" to the State Department's letter and " again" sought to renounce his citizenship under § 1481(a)(6) in a letter to USCIS. (Compl. at 2 & Attach. D). When he received no response from either agency, plaintiff wrote both agencies on October 16, 2011, and again on February 13, 2012, " [w]hile preparing the case-in-chief...." ( Id. & Attachs. E, F.)

Plaintiff filed this civil action on March 19, 2012, from a correctional facility in Baltimore, Maryland. By letter of July 12, 2012, USCIS advised plaintiff that it could not proceed on his request " at this time" because a person renouncing his U.S. citizenship " while present in the United States [must] appear for an interview in person at a designated USCIS office." (Defs. Ex. 2.) USCIS informed plaintiff that it " will not interview potential renunciants by phone or video link, and will not travel to prisons or jails to conduct renunciation interviews," but that he was free to resubmit his renunciation request and evidence showing that he has " satisfied all the legal requirements for renunciation" after his release from prison. ( Id. )

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ANALYSIS


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