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Xia v. Kerry

United States District Court, D. Columbia.

November 12, 2014

LIHONG XIA, et al., Plaintiffs,
JOHN F. KERRY, U.S. SECRETARY OF STATE, et al., Defendants

Decided: November 10, 2014.

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[Copyrighted Material Omitted]

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For L. XIA, W. LIU, H. CHEN, J. CHEN, H. LUN, H. LI, Plaintiffs: Ning Ye, LEAD ATTORNEY, LAW OFFICE OF NING YE, Flushing, NY; Xiaosheng Huang, HUANG, TANG & MARVIN, LLP, New York, NY.

For JOHN F. KERRY, Secretary of the United States Department of State, In Official Capacity, JEH JOHNSON, Secretary of the United States Department of Homeland Security, In Official Capacity, Defendants: Elianis N. Perez, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Trial Attorney, District Court Section, Washington, DC; Wynne Patrick Kelly, LEAD ATTORNEY, U.S. Attorney's Office, Civil Division, Washington, DC.

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Royce C. Lamberth, United States District Judge.


Plaintiffs Lihong Xia, Hoi Lun Li, We Liu, Jisong Chen, and Hua Chen claim to be naturalized citizens of the United States. Am. Compl. ¶ ¶ 2-3. They allege that the United States Citizenship and Immigration Services (" USCIS" ) and Department of State (" DOS" ) have violated their rights as citizens by unlawfully cancelling their naturalization certificates and revoking their United States passports. Id. at ¶ ¶ 36-37.

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After the criminal investigation of Robert T. Schofield, USCIS determined that plaintiffs' naturalization certificates were obtained illegally and cancelled them pursuant to 8 U.S.C. § 1453. See Am. Compl. ¶ ¶ 24-25; Ex. 1, Donald Monica Decl., ¶ ¶ 7, 3-6. Plaintiffs were given 60 days to refute the decisions in a written statement or request a hearing; they were also notified of their right to be represented by an attorney. See, e.g., Am. Compl. Ex. 9A (Xia's Notice of Intent to Cancel Certificate of Naturalization); ECF. No. 5-1, at 79 (Liu's Notice of Intent to Cancel Certificate of Naturalization). Plaintiff Xia, through her lawyer, did dispute the cancellation and eventually persuaded the USCIS to reopen her case. Am. Compl. Ex. 7 (letter from Xia's attorney to USCIS); Ex. 11. However, her naturalization certificate was ultimately cancelled. Decl. Donald Monica ¶ 3. Plaintiff Liu also requested an interview: He responded to the allegations against him before USCIS officers in an examination where he was represented by counsel. ECF No. 5-1 (Notice of Decision and Order of Cancellation and Surrender). There is no evidence or allegation that any of the other plaintiffs responded to the allegations.

All plaintiffs also had the right to appeal the decisions to cancel their naturalization certificates to the Administrative Appeals Office. See Compl. at Ex. 9A; Mot. Dismiss, Ex. 1 (Decl. of Donald J. Monica); 8 C.F.R. § 342.8. Only Plaintiff Xia appealed her case, and her appeal was dismissed in June of 2014. Pl.'s Memorandum in Opp'n to Def.'s Mot. Dismiss, Ex. 1 (notice of cancellation of certificate). Plaintiff Xia was notified of her right to file a motion to reconsider or a motion to reopen if she believed the Administrative Appeals Office incorrectly applied law or policy or if she sought to present new facts for consideration. Id.

Additionally, DOS revoked the U.S. passports of plaintiffs Lihong Xia and Hoi Lun Li, pursuant to 22 C.F.R. § 51.62(b), on the grounds that their naturalization certificates were canceled.[1] See Mot. Dismiss Ex. 2, Declaration of Jonathan M. Rolbin, ¶ ¶ 3--4. Plaintiffs were not provided hearings, pursuant to 22 C.F.R. § § 51.70-74. ECF No. 5-1, at 35. None of the plaintiffs have renewal passport applications pending with DOS. Decl. of Jonathan Rolbin, ¶ 8.

Plaintiffs bring suit alleging violations of the Due Process Clause of the Fifth Amendment; the Civil Rights Act, 42 U.S.C. § § 1981, 1983; the Immigration and Nationality Act, 8 U.S.C. 1421, 1451(a); and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Am. Compl. ¶ ¶ 62-71. Plaintiffs argue that their naturalization certificates were wrongfully cancelled without sufficient evidence against them. Am. Compl. ¶ ¶ 24-27. As a result of these actions, plaintiffs claim they remain in " a nebulous and stateless limbo" --lacking legal documentation but maintaining U.S. citizenship as a matter of law. Id. ¶ ¶ 19, 30. This " hobbled 'U.S. citizenship'" does not afford them the benefits and privileges of citizenship. Id. ¶ ¶ 21, 31. They claim their rights were violated

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through " an opaque, unilateral administrative proceeding that afforded . . . no meaningful opportunity to respond to the accusations" against them. Id. ¶ ¶ 21, 36-37. Plaintiffs also allege they were so treated because of their Chinese ethnicity and nationality. Id. ¶ ¶ 22-23, 37.

Plaintiffs prayer for relief is slightly unclear. They seek " a preliminary and permanent injunction . . . compelling Defendants and their agents to make a determination . . . of the U.S. Passport renewal applications of Plaintiffs and to notify Plaintiffs that their applications have been granted or denied and, if denied, of the procedures to be followed for the administrative or judicial appeal." Am. Compl. ¶ 73. However, they also ask for a writ " compelling Defendants and their agents to reinstate Plaintiffs' Naturalization Certificates and to reverse Defendant DOS's revocation of their U.S. Passports." Id.

Defendants filed the instant motion to dismiss, arguing that this Court lacks subject-matter jurisdiction over plaintiffs' claims.


A. Legal Standard

Defendants move to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Federal courts are courts of limited jurisdiction. When a party files a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), " the plaintiff[ ] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction." Carney Hosp. Transitional Care Unit v. Leavitt, 549 F.Supp.2d 93, 95 (D.D.C. 2008) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)) (other citation and internal quotation marks omitted) (alterations in original). A court considering a motion to dismiss for lack of jurisdiction must accept the factual allegations in the complaint as true. Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253, 365 U.S.App.D.C. 270 (D.C. Cir. 2005). This " tenet" does not apply to legal conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). When assessing a motion to dismiss under Rule 12(b)(1), a court may consider any undisputed facts in the record, or " the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197, 297 U.S.App.D.C. 406 (D.C. Cir. 1992).

B. Analysis

Plaintiffs allege violations of both federal law (42 U.S.C. § 1983, the INA, and the APA) and the Fifth Amendment of the United States Constitution. Typically, this Court would have jurisdiction over such claims pursuant to 28 U.S.C. § 1331, which grants district courts " jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." However, because defendants here are federal agency officials, they have raised the defense of sovereign immunity. The general principle that the United States cannot be sued without the consent of Congress extends to federal agencies. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994).

" [A] plaintiff must overcome the defense of sovereign immunity in order to establish the jurisdiction necessary to survive a Rule 12(b)(1) motion to dismiss." Jackson v. Bush, 448 F.Supp.2d 198, 200 (D.D.C. 2006) (citing Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575, 358 U.S.App.D.C. 79 (D.C. Cir. 2003)). " A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory

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text, and will not be implied." Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486(1996).

In their reply brief, plaintiffs argue that " [d]efendants have no sovereign immunity," Pl.'s Reply 5, but their explanation is less than clear.[2] Regardless, plaintiffs do assert the Administrative Procedure Act as one basis for this Court's jurisdiction over their claims. Section 702 of the APA waives the federal government's ...

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