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Sze v. Johnson

United States District Court, District of Columbia

March 24, 2016

KWOK SZE, Plaintiff
v.
JEH JOHNSON, et al., Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE

In an attempt to renounce his United States citizenship pursuant to 8 U.S.C. § 1481(a)(6), Plaintiff, proceeding pro se, filed this action under the Administrative Procedures Act, 5 U.S.C. §§ 701-706, and the Mandamus Act, 28 U.S.C. § 1361, also alleging violations of his Fifth Amendment due process rights. Plaintiff names as defendants three federal officials (“collectively, the “DHS Defendants”)-Jeh Johnson, Secretary of the Department of Homeland Security (“DHS”), Leon Rodriguez, Director of the United States Citizenship and Immigration Services (“USCIS”), and Felicia Colvin, Field Office Supervisor, USCIS-and one state official-Anthony J. Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision.

Presently before the Court is DHS Defendants’ [15] Motion to Dismiss Plaintiff’s Complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1), (6), and (7). Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, the Court GRANTS DHS Defendants’ [15] Motion to Dismiss.

Additionally, the Court finds that it lacks personal jurisdiction over Defendant Anthony J. Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision. Accordingly, the Court shall DENY Plaintiff’s Motions for Default Judgment against Defendant Anthony J. Annucci. The Court shall dismiss this case in its entirety.

I. BACKGROUND

For the purposes of the motions before the Court, the Court accepts as true the well-pleaded allegations in Plaintiff’s Complaint. The Court does “not accept as true, however, the plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). The Court recites the principal facts pertaining to the issues raised in the pending motions, reserving further presentation of the facts for the discussion of the individual issues below.

Plaintiff was born in Hong Kong and became a naturalized U.S. citizen in November 1996. USCIS 2.[2] During the time period relevant to this proceeding, Plaintiff has been, and is currently, incarcerated in a New York state correctional facility. USCIS 3.

On April 11, 2011, Plaintiff sent to the Attorney General a letter, containing his “application to renounce [his] U.S. citizenship” on U.S. soil, on the basis that the United States was in a “state of war, ” pursuant to 8 U.S.C. § 1481(a)(6). See USCIS 26; Compl., Ex. A. Upon receiving Plaintiff’s letter, the Department of Justice (“DOJ”) forwarded it to Janet Napolitano, then-Secretary of Homeland Security, and noted that Plaintiff’s request appeared to fall within DHS’s jurisdiction. See USCIS 25; Compl., Ex. B. USCIS, a component of DHS, responded to Plaintiff’s request by letter dated May 20, 2011. See USCIS 27-28; Compl., Ex. C. USCIS informed Plaintiff that he “may only renounce U.S. citizenship through procedures established by the U.S. Department of State.” USCIS 27; Compl., Ex. C. USCIS cited-apparently in error-8 U.S.C. § 1481(a)(5), which permits a citizen to relinquish U.S. citizenship by “making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, ” if certain conditions are met. USCIS 27, Compl., Ex. C.

Plaintiff responded to USCIS by letter dated May 24, 2011 and again by letter dated June 28, 2011. See USCIS 29, 41; Compl., Ex. D. Plaintiff re-affirmed that he sought to renounce his citizenship on U.S. soil under Subsection (a)(6), rather than by appearing at a U.S. embassy or consulate in a foreign country pursuant to Subsection (a)(5). USCIS 29, 41; Compl., Ex. D.

It appears that the next communication between Plaintiff and USCIS was by letters dated March 18 and April 10, 2014, when Plaintiff again sought to renounce his citizenship under Subsection (a)(6). See USCIS 30-36; Compl., Ex. E, F. In his March 2014 letter, Plaintiff claimed that USCIS’ prior response had not addressed the merits of his request under Subsection (a)(6) and that he was “exercis[ing] [his] right” to renounce his citizenship. See USCIS 31, 32; Compl., Ex E.

USCIS responded by letter dated April 15, 2014. See USCIS 37-38; Compl., Ex. G. In that letter, USCIS indicated that USCIS could not proceed with his request, and that to “renounce U.S. citizenship while present in the United States, a person must appear for an interview in person at a designated USCIS office.” USCIS 37; Compl., Ex. G. USCIS also stated that “USCIS will not interview potential renunciants by phone or video link, and will not travel to prisons or jails to conduct renunciation interviews.” USCIS 37; Compl., Ex. G. USCIS advised Plaintiff that upon completion of his term of incarceration, Plaintiff could resubmit his renunciation request and submit evidence to show that he had satisfied the legal requirements of renunciation. USCIS 37; Compl., Ex. G.

Plaintiff sought to administratively appeal USCIS’s determination. See USCIS 13-24. USCIS returned Plaintiff’s notice of appeal, informing Plaintiff that no appeal was available. See USCIS 1.

On February 5, 2015, Plaintiff filed this action. Invoking the Mandamus Act and the APA, Plaintiff seeks to “appeal[] the denial of his request to renounce his United States Citizenship because USCIS incorrectly applied the wrong law to Plaintiff’s application.” Compl. at 2. Plaintiff also alleges “standing under the Fifth Amendment of the United States Constitution because he has been denied procedural due process in not being able to [exercise] his statutorily granted right under 8 U.S.C. 1481(a)(6) to renounce his citizenship.” Compl. ¶ 9. Plaintiff also alleges in his Complaint that the New York State Department of Corrections and Community Supervision informed Plaintiff that “it would not transport [Plaintiff] to a USCIS facility for purposes of an interview to renounce his citizenship despite [Plaintiff]’s offer to pay for secure transport.” Compl. ¶ 18.

Plaintiff seeks relief in the form of a “declaration that [Plaintiff] has formally, voluntarily, and intentionally renounced his United States citizenship, or in the alternative that USCIS must process [Plaintiff]’s renunciation, and issue the certificate of loss of [nationality].” Compl. at 6 ¶ A. Plaintiff also seeks (1) an order requiring the New York State Department of Corrections and Community Supervision to provide Plaintiff secure transport to a USCIS field office or, in the alternative, (2) an order requiring USCIS to schedule a jail visit by USCIS officials to conduct a renunciation interview. Compl. at 6 ¶ C.

On May 26, 2015, the DHS Defendants filed a Motion to Dismiss Plaintiff’s Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), (6), and (7) for the following reasons: (1) Plaintiff’s claims under the Mandamus Act are moot, as USCIS has already afforded Plaintiff all of the relief he is entitled to under the Act; (2) Plaintiff’s APA claims challenge agency action permitted by statute and otherwise committed to agency discretion by law; (3) Plaintiff’s Due Process claim fails to identify a protected liberty or property interest; and (4) Plaintiff fails to invoke this Court’s jurisdiction over Defendant Annucci, a party whom the DHS Defendants deem to be a necessary party in this dispute, and therefore, complete relief cannot be provided.

As discussed below, the Court agrees that Plaintiff’s claims under the Mandamus Act are moot and must be dismissed under Rule 12(b)(1), and that Plaintiff’s APA and Due Process claims fail to state a claim under Rule 12(b)(6). Accordingly, the Court finds it unnecessary to consider whether to dismiss the case under Rule 12(b)(7) on the basis that Plaintiff failed to join a party under Rule 19. The Court does find, however, that it lacks personal jurisdiction over Defendant Annucci, and that Plaintiff’s claims as to Defendant Annucci must be dismissed.

II. LEGAL STANDARD

A. Motion to Dismiss for Lack of Subject-Matter ...


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