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Boggiano v. Holder

February 16, 2010


The opinion of the court was delivered by: Freda L. Wolfson, U.S.D.J.

WOLFSON, United States District Judge


Presently before the Court is Defendants' (collectively, "the Government's") Motion to Dismiss Plaintiff's complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), for lack of subject matter jurisdiction. Having been denied a Certificate of Citizenship from the Department of Homeland Security, Plaintiff seeks review of that determination in this Court by way of declaratory judgment pursuant to 8 U.S.C. § 1503(a). For the following reasons, the Court concludes that it does not have subject matter jurisdiction to hear his claim.


Plaintiff filed this suit seeking declaratory relief under 8 U.S.C. § 1503.*fn1 This court must determine its jurisdiction, or lack thereof, at the outset. "A federal court can only exercise that power granted to it by Article III of the Constitution and by the statutes enacted pursuant to Article III." In re Orthopedic "Bone Screw" Products Liability Litigation, 132 F.3d 152, 155 (3d Cir. 1997). As is appropriate on a motion to dismiss for lack of subject matter jurisdiction, the Court accepts as true all material allegations set forth in Plaintiff's Complaint.*fn2 See Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 296 (3d Cir. 2003).

A. Facts and Procedural History

Plaintiff was born in Peru in 1973. His mother and father divorced in 1982, and custody was granted to his mother.*fn3 Compl. at 2; Compl., Exh. A. Plaintiff's mother has never resided in the United States, but has resided continuously in Peru. Compl. at 2. In 1984, Plaintiff's mother obtained an order from the Family Court of Callao, Peru documenting her grant of permission to her son allowing him to travel to the United States along with his paternal grandmother. Id.; Pl. Opp., Exh. D. The order was silent as to whether Plaintiff's mother was permitting him to permanently reside in the United States with his father.*fn4 Plaintiff immigrated to the United States that year, 1984, as a lawful permanent resident. Compl. at 2.

While Plaintiff was still a minor, and living in the U.S., his father became a naturalized citizen in 1989. Certificate of Naturalization, Compl., Exh. D. On this basis, Plaintiff contends that he automatically became a U.S. citizen under the governing immigration laws at that time.*fn5

Pl. Opp. Br. at 3. Under former 8 U.S.C. § 1432, the statute in effect at the time of Plaintiff's father's naturalization, a minor child of a naturalized parent automatically becomes a citizen, provided the parent has legal custody of the child. See Minasyan v. Gonzales, 401 F.3d 1069, 1075 n.10 (9th Cir. 2005).*fn6 Plaintiff acknowledges, however, that the divorce decree granted his mother legal custody of him in 1982.*fn7

Having been convicted of a federal crime on July 6, 2007, the Department of Homeland Security instituted removal proceedings against Plaintiff in September of that year. Compl. at 3. He was then held in custody by Immigration and Customs Enforcement. While his removal proceedings were pending, Plaintiff was advised by former counsel of his claim to derivative citizenship pursuant to 8 U.S.C. § 1432. He then filed an application for a Certificate of Citizenship (Form N-600). Id. A Certificate of Citizenship documents derivative citizenship status based on citizen parentage. See Department of Homeland Security, Application for Certificate of Citizenship at (visited Jan. 15, 2010).

Plaintiff's application for a Certificate was denied on January 18, 2008. See Denial of N-600 Application at Compl., Exh. G. Shortly after the denial, on February 8, 2008, Plaintiff's mother executed a notarized letter stating that, in 1984, she "granted the WHOLE LEGAL CUSTODY of . . . CARLO FERNANDO PEDEMONTE BOGGIANO, to his father ...." Pl. Opp., Exh. D. While Plaintiff's mother's signature is notarized by the Ministry of Foreign Relations of Peru, the Ministry "legalized [her signature] WITHOUT JUDGING THE CONTENTS OF THE LETTER." Id. Plaintiff then filed a timely appeal of the Certificate denial to the Administrative Appeals Unit ("AAU") of the United States Citizenship and Immigration Services.

Meanwhile, the removal proceedings against Plaintiff proceeded. Id. As a defense to the removal proceedings, he argued before the Immigration Judge ("IJ") that he was a U.S. citizen and, therefore, "not subject to detention . . . nor subject to removal from the United States ...." Compl. at 2. Agreeing with Plaintiff, the Immigration Judge ordered that he be released from custody. Id. at 4.*fn8 The Department of Homeland Security did not appeal the Immigration Judge's decision. Id.

On March 5, 2009, Plaintiff's appeal of the denial of his Certificate application was denied by the AAU. Id. The AAU denied his application because Plaintiff had not provided proof that his father obtained legal custody of him while he (Plaintiff) was still a minor. See AAU Denial dated Mar. 5, 2009 at 3, Pl. Opp., Exh G. Under the law in effect at the time, Plaintiff had to demonstrate that his naturalized parent obtained legal-not simply physical- custody in order to be entitled to derivative citizenship. It does not appear from the AAU's decision that the February 8, 2008 letter from Plaintiff's mother was considered. After Plaintiff's application was denied, he brought suit in this court, to challenge that denial. He seeks to clarify the "legal limbo" created by the conflicting IJ and AAU decisions.

B. Certificates of Citizenship

For the sake of clarity, I provide the following legal background relating to Certificates of Citizenship and citizenship-based claims. A Certificate of Citizenship provides documentation for persons who obtain citizenship derivatively. See 8 U.S.C. § 1452*fn9 ; 7 C. Gordon, et al., IMMIGRATION LAW & PROC. § 99.04 (Rev. ed. 1999) (hereinafter " -IMMIG. LAW & PROC. § -"). It does not confer citizenship, but only "furnishes evidence of [one's] citizenship status previously vested." 7 IMMIGRATION LAW & PROC. § 99.04 (citing 8 U.S.C. § 1453; INS Interp. 341.2(a)(8)). Applying for a Certificate is optional-a person who has derived citizenship is not obligated to apply for one. Rather, in the event proof of citizenship is ever required, the person may furnish independent proof of his status. See 7 IMMIG. LAW & PROC. § 99.04[2].

A party seeking a Certificate of Citizenship files a N-600 form with the U.S. Citizenship and Immigration Services ("USCIS") office. See 8 C.F.R. ยง 341.1(a). The application is reviewed by a district director of USCIS and then, if denied, may be appealed to the AAU. Once the AAU renders a decision on the application, the denial is final. 8 C.F.R. ...

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