The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court on the Motion of Respondents, the United States Department of Homeland Security, Andrea J. Quarantillo, and George O. Robinson, to Dismiss the Petition as an action for declaratory relief barred by 8 U.S.C. § 1503. The Court finds as follows:
1. Pursuant to 8 U.S.C. § 1503 and 28 U.S.C. § 2201, under certain circumstances individuals may bring actions in federal court seeking declarations that they are nationals of the United States:
If any person who is within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, such person may institute an action under the provisions of section 2201 of Title 28 against the head of such department or independent agency for a judgment declaring him to be a national of the United States, except that no such action may be instituted in any case if the issue of such person's status as a national of the United States (1) arose by reason of, or in connection with any removal proceeding under the provisions of this chapter or any other act, or (2) is in issue in any such removal proceeding. An action under this subsection may be instituted only within five years after the final administrative denial of such right or privilege and shall be filed in the district court of the United States for the district in which such person resides or claims a residence, and jurisdiction over such officials in such cases is conferred upon those courts.
2. The Government has filed a motion to dismiss arguing that Bueno may not institute this action because the issue of his status as a national arose in connection with a removal proceeding. See id.
3. The Court shall deny this motion to dismiss because it appears that the issue of Bueno's status did not arise in connection with any removal proceeding. Rather, it appears that the government commenced a removal proceeding subsequent to Bueno instituting this action.*fn1 Further, there is no indication that Bueno's status is currently "in issue in any removal proceeding." Id.
4. As the docket in this case reflects, Bueno filed this action on September 28, 2006. The Government asserts that Bueno came into the custody of the Bureau of Immigration Customs and Enforcement ("BICE") approximately two weeks later, on October 12, 2006, and that he was ordered removed December 6, 2006.
5. The government has provided no transcript of a removal proceeding nor any evidence that any removal proceeding in which Bueno's nationality would be an issue was pending at the time the action was "instituted," September 28, 2006. Although the Government correctly points out that Bueno may challenge his removal order by appeal to the Board of Immigration Appeals for the Immigration Court that entered the order, he is not required to do so to proceed with this declaratory action in this Court, pursuant to 8 U.S.C. § 1503(a), so long as the Court would not be interfering with a pending proceeding in which his nationality is "in issue." Therefore, the Court shall deny the motion to dismiss because Petitioner was not barred from instituting this action under 8 U.S.C. § 1503.
6. In this action, Bueno asserts that he is a citizen because he was a minor when his mother attained citizenship in 1993. See 8 U.S.C. § 1432(a) (repealed). He has provided the Court with her certificate of naturalization.
7. Former 8 U.S.C. § 1432(a) generally provided for derivative citizenship of alien children upon their alien parents' naturalization if certain statutory conditions were met. This statute was in effect when Bueno was born, when he entered the United States, and when his mother naturalized, and it thus controls his claim for derivative citizenship. Morgan v. U.S. Attorney General, 432 F.3d 226, 230 (3d Cir. 2005).
8. The statute provided in relevant part that: A child born outside of the United States of alien parents . . . becomes a citizen of the United States upon fulfillment of the following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the ...