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Kestelboym v. Chertoff

March 13, 2008


The opinion of the court was delivered by: Greenaway, Jr., U.S.D.J.



This matter comes before this Court on the motion of Defendants Michael Chertoff, Russell Owen, and the United States Citizenship and Immigration Services (collectively "Defendants"), to dismiss the Complaint for lack of subject matter jurisdiction, pursuant to FED. R. CIV. P. 12(b)(1).*fn1 For the reasons set forth below, Defendants' motion is denied.


Plaintiff Elena Kestelboym ("Plaintiff"), a native of the Soviet Union, legally entered the United States on August 4, 1991 as a tourist. (Am. Compl. ¶¶ 4, 12.) On April 1, 1994, Plaintiff married Sergey Faybushovich in New York. (Id. at ¶ 13.) After their marriage, Mr. Faybushovich submitted an I-140 petition for lawful permanent residence on Plaintiff's behalf.*fn2

(Id. at ¶ 14.) In 1996, before Mr. Faybushovich's petition was approved, Plaintiff separated from her husband. (Id. at ¶ 15.) Later, Mr. Faybushovich's petition was approved, and on February 20, 1997, Plaintiff submitted an I-485 application to adjust her status. (Id. at ¶ 14.)

After Plaintiff separated from her husband, she began dating Igor Kestelboym. (Id. at ¶ 16.) Plaintiff gave birth to Mr. Kestelboym's first child in 1998, and his second child in 1999. (Id.) While she was five months pregnant with her second child, "Plaintiff was interviewed by an officer with the Immigration and Naturalization Service" ("INS")*fn3 with respect to her permanent resident application. (Id. at ¶ 18.) Mr. Faybushovich accompanied Plaintiff to the interview. (Id. at 19.)

Plaintiff claims that she told the INS officer, during her interview, that she had separated from Mr. Faybushovich, and that Mr. Faybushovich was not the father of her children. (Id. at ¶ 19.) On December 10, 1999, Plaintiff's lawful permanent residence application was approved. (Id. at ¶ 21.) On May 1, 2000, Plaintiff's divorce from Mr. Faybushovich became final, and on September 17, 2000, Plaintiff married Mr. Kestelboym. (Id. at ¶¶ 22-23.)

On August 2, 2004, Plaintiff filed an N-400 application for naturalization, pursuant to § 319(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1430(a) (1990). (Id. at ¶ 24.) The United States Citizenship and Immigration Services ("USCIS") denied Plaintiff's naturalization application for lack of good moral character on March 28, 2006. (Id. at 25.) USCIS alleges that Plaintiff failed "to disclose to the interviewing adjustment of status officer that she had two children by a man other than [her] petitioning husband." (Id.) Plaintiff disputes that she made any misrepresentations, and filed a Request for Hearing, pursuant to § 336 of the INA, 8 U.S.C. § 1447 (1990). (Id. at ¶ 26.) On October 30, 2006, USCIS denied Plaintiff's Request for Hearing, stating that Plaintiff had lied under oath. (Id. at ¶ 27.) USCIS claims that during Plaintiff's N-336 appeal interview, she signed a sworn false statement indicating that she had never lied to an immigration officer or failed to disclose the truth. (Id.)

On February 21, 2007, Plaintiff filed a complaint in this Court seeking a de novo review of the denial of her naturalization application, pursuant to § 310(c) of the INA, 8 U.S.C. § 1421(c) (1990). On May 8, 2007, six days before Defendants' answer was due, USCIS issued a Notice to Appear to Plaintiff. The Notice stated that Plaintiff was removable from the United States for procuring her permanent resident status "by fraud or by willfully misrepresenting a material fact" because she "'deliberately misrepresented to the Service that she and her United States Citizen petitioning husband were living together' and that she 'deliberately withheld the fact that [she] had [two children by] another man . . . . '" (Pl.'s Br. in Opp'n to Mot. to Dismiss 6) (internal citation omitted).

Thereafter, Defendants filed a motion to dismiss Plaintiff's Complaint. Defendants claim that, pursuant to 8 U.S.C. § 1429 (1990), because a removal proceeding is pending, this Court does not have jurisdiction over Plaintiff's Complaint. Plaintiff counters and states that § 1429 does not impose any restriction on subject matter jurisdiction. Plaintiff argues that if such restrictions were permitted, USCIS could effectively circumvent the congressionally mandated de novo judicial review of naturalization decisions simply by initiating removal proceedings.


Motions to dismiss for lack of subject matter jurisdiction, pursuant to FED. R. CIV. P. 12(b)(1), may be raised at any time. See 2 JAMES WM. MOORE, MOORE'S FEDERAL PRACTICE § 12.30[1] (3d ed. 2007). Rule 12(b)(1) challenges are either facial or factual attacks. See id. at § 12.30[4]. "A facial attack questions the sufficiency of the pleading," and "[i]n reviewing a facial attack, a trial court accepts the allegations in the complaint as true." Id. However, "when a court reviews a complaint under a factual attack, the allegations have no presumptive truthfulness, and the court that must weigh the evidence has discretion to allow affidavits, documents, and even a limited evidentiary hearing to resolve disputed jurisdictional facts." Id.; see also Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977) (stating that "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims."). In short, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Mortensen, 549F.2d at 891; see also Carpet Group Int'l v. Oriental Rug Imps. Ass'n, 227 F.3d 62, 69 (3d Cir. 2000). "The [trial] [c]court must be careful, however, not to allow its consideration of jurisdiction to spill over into a determination of the merits of the case, and thus must tread lightly in its consideration of the facts concerning jurisdiction." Dugan v. Coastal Indus., Inc., 96 F. Supp. 2d 481, 483 (E.D. Pa. 2000).

"[T]he plaintiff will have the burden of proof that jurisdiction does in fact exist," Mortensen, 549 F.2d at 891, and must not only demonstrate that a controversy existed at the time it filed suit, but that it continues to exist throughout the litigation, Spectronics Corp. v. H.B. Fuller Co., Inc., 940 F.2d 631, 635 (Fed. Cir. 1991), abrogated on other ...

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