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Clervrain v. Sessions

United States District Court, D. Kansas

January 23, 2019

MANETIRONY CLERVRAIN, Plaintiff,
v.
JEFF SESSIONS, et al., Defendants.

          MEMORANDUM AND ORDER

          SAM A. CROW U.S. Senior District Judge

         This matter was dismissed by the Court on October 5, 2018. Since that date, Plaintiff has filed fourteen (14) motions and a Notice of Appeal. Each of Plaintiff's pending motions is listed and considered below. The motions cover a range of topics, are difficult to decipher, and are largely repetitive. Several could be construed as motions for relief from judgment. However, Mr. Clervrain's filing in this closed case of motions attempting to add claims or defendants, motions asking to be transferred to home confinement, motions for computer access, and demands for a jury trial are ineffectual. Unless and until the case has been reopened, no motion other than a motion for relief from judgment is appropriate.

         Plaintiff's Complaint challenged the determination of the U.S. Citizenship and Immigration Services (USCIS) to deny Mr. Clervrain's naturalization application. The Complaint was dismissed because it was filed out of time and because Plaintiff failed to exhaust his administrative remedies prior to filing as required by 8 U.S.C. § 1421(c). See Memorandum and Order and Order to Show Cause, ECF No. 16; and Memorandum and Order, ECF No. 25.

         Having reviewed and considered all of Plaintiff's post-dismissal motions, the Court finds Plaintiff has raised no proper grounds for relief from the judgment. He has not explained why the Court was wrong to find that this action was not filed within the period of limitations or wrong to find that he did not follow the proper administrative procedures and exhaust his remedies. Plaintiff's requests for relief from judgment are therefore denied, as further discussed below.

         Motion for Consideration and Additional Evidence (ECF No. 28)

         Plaintiff asks the Court to review all claims in this case because he has met the requirements to be a “U.S. National” under 28 U.S.C. § 1601 and 8 U.S.C. § 1436, and because the Court has not considered his “apartheid claim.” He wants the Court to order him transferred to a halfway house because he was not convicted of an aggravated felony as defined by 8 U.S.C. § 1101(a)(43). Plaintiff also argues he has met all requirements to become a naturalized citizen and is improperly classified as an alien and detainable. He argues he does not qualify for mandatory deportation and asks the Court to order ICE not to deport him.

         Because this motion was filed within 28 days of the entry of judgment, the Court construes it as a motion to alter or amend a judgment under Rule 59(e). Rule 59(e) provides the Court may reconsider a final decision if the moving party can establish (1) an intervening change in the controlling law; (2) the availability of new evidence that could not have been obtained previously through the exercise of due diligence; or (3) the need to correct clear error or prevent manifest injustice. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

         Plaintiff does not claim there has been an intervening change in the controlling law or that there is new evidence available. Hence, Plaintiff must establish that the judgment was clearly erroneous or resulted in manifest injustice. This he does not do. None of Plaintiff's arguments address the reasons for the Court's dismissal of this action.

         However, Plaintiff does argue that the Court did not consider his claim that he is a U.S. national before dismissing the case. Upon reviewing the Complaint (ECF No. 10), it appears Plaintiff arguably did raise this claim (see Count III, ECF No. 10 at 5). Therefore, the Court will consider it now.

Plaintiff brought this claim pursuant to 8 U.S.C. § 1503. The statute provides as follows:
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.

8 U.S.C. § 1503(a).

         A national of the United States is “(A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.” 8 U.S.C. § 1101(22). A person can be a U.S. national either at birth (see 8 U.S.C. § 1401, et seq.) or through naturalization (see 8 U.S.C. § 1421, et seq.).

         Plaintiff does not explain either in this motion or in his Complaint why he believes he has met the requirements to be a U.S. national. He does argue in ECF No. 29 that because he signed an oath of allegiance on December 9, 2008, during his naturalization interview (see ECF No. 1-1 at 14), he is a U.S. national. This argument has been rejected by the Tenth Circuit. The Tenth Circuit has found that “[s]igning an oath during the application process does not satisfy the ‘public ceremony' requirement of 8 U.S.C. § 1448 (“A person who has applied for naturalization shall, in order to be and before being admitted to citizenship, take in a public ceremony before the Attorney General or a court with jurisdiction under section 1421(b) of this title an oath....”).” Abiodun v. Gonzales, 461 F.3d 1210, 1216 (10th Cir. 2006), citing see Tovar-Alvarez v. U.S. Att'y Gen., 427 F.3d 1350, 1353 (11th Cir. 2005) (rejecting an identical claim because petitioner “failed to show that he has taken the oath of allegiance during a public ceremony”); Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 972 (9th Cir. 2003) (filing an application for naturalization in which an oath of allegiance is signed does not make the applicant a United States national). Hence, Plaintiff's argument that he is a U.S. national because he signed a naturalization application containing an oath of allegiance fails to state a claim.

         However, even if Plaintiff had adequately stated a claim, the Court is prohibited from considering it. A person can generally pursue a nationality claim in two ways:

First, if the person is in removal proceedings he can claim his status as a national as a defense. If the immigration judge rejects the defense and orders removal, the person can, after properly exhausting administrative channels, petition the court of appeals for the judicial district in which the immigration judge completed the removal proceedings under 8 U.S.C. § 1252(b) for review of the final order of removal, including for review of the nationality claim. See 8 U.S.C. § 1252(b)(5)(A) and (B); see also Omolo v. Gonzales, 452 F.3d 404, 407 (5th Cir.2006) (court of appeals had exclusive jurisdiction to review and determine whether petitioner was a national by construing habeas petition that was transferred from district court as petition for review).
Second, a person can affirmatively seek proof of nationality by filing an application for a certificate of non-citizen national status with the Secretary of State under 8 U.S.C. § 1452(b). Following an adverse administrative appeal, the person can seek a judicial declaration of citizenship in the federal district courts, unless the issue of the person's status as a national “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. 8 U.S.C. § 1503(a).

Yam-Pech v. Holder, No. 13-CV-02885-WJM, 2014 WL 183822, at *3 (D. Colo. Jan. 16, 2014).

         Plaintiff has not followed either of these avenues and does not have a right to an initial determination by this Court of whether he is a national of the United States. See Clemons v. I.N.S., 16 F.3d 415 (Table), 1994 WL 18035, *1 (10th Cir. 1994). He must first exhaust his administrative remedies. Id., citing see 8 U.S.C. 1105a(c); cf. Perez-Rodriguez v. INS, 3 F.3d 1074, 1080 (7th Cir. 1993)(court lacked jurisdiction over petitioner's claim because, by neglecting to present his claim to the agency, petitioner failed to exhaust his administrative remedies); Castaneda-Suarez v. INS, 993 F.2d 142, 145 (7th Cir. 1993)(allowing agency to address claims initially avoids premature interference with agency's processes and, by permitting the parties and courts benefit of agency's expertise, provides for compilation of record adequate for judicial review); Xiao v. Barr, 979 F.2d 151, 153 (9th Cir. 1992)(Congress intentionally denied judicial review to alien who did not take advantage of right to administrative remedies). See also Ortega v. Holder, 592 F.3d 738, 744 (7th Cir. 2010) (an individual can establish nationality pursuant to § 1503 once an administrative application for a certificate of citizenship has been denied); Nelson v. United States, 107 Fed.Appx. 469, 470-71 (6th Cir. 2004) (§ 1503(a) requires a final administrative denial before a declaratory judgment action may be instituted).

         Finally, Plaintiff's argument that the Court did not consider his apartheid claim is premised on an inaccuracy. Plaintiff did not make an “apartheid claim” in the Complaint. See ECF No. 10. To add claims or parties following dismissal, Plaintiff must first move to reopen the case under 59(e) or 60(b), which he arguably has done; such motion must be granted; and then he must file a motion for leave to amend under Rule 15(b), with the proposed Amended Complaint attached. Here, the Court denies all of Plaintiff's motions to reconsider, so Plaintiff should not waste his time on a motion for leave to amend or on preparing an Amended Complaint.

         Plaintiff's motion is denied.

         Motion for Failures and Considerations (ECF No. 29)

         Plaintiff first asks the Court to issue a declaratory judgment pursuant to 8 U.S.C. § 1503 after making a de novo determination of Plaintiff's status, finding that he is a U.S. national. This request is addressed above and denied.

         Plaintiff further argues the Court's dismissal of this action is inconsistent with Congressional intent, USCIS's action is “in plain [contradiction] of statutory mandate” (ECF No. 29 at 2) and the agency is “engaged in the unlawful naturalization proceeding in violation of 8 U.S.C. 1422” (id. at 3). These arguments do not demonstrate that the Court's judgment finding his naturalization claim was untimely and finding Plaintiff failed to exhaust his administrative remedies was clearly erroneous or resulted in manifest injustice. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

         In addition, Plaintiff claims USCIS's denial of his naturalization application “has nothing to do with the case because the plaintiff pledge allegiance on December 9, 2008, which make his current status ‘in limbo'” (at 3-4). This seems to refer to his argument that he is a U.S. national, which is considered and rejected above.

         Plaintiff also argues the Court should have transferred the issue of his nationality claim to the Court of Appeals and cites 8 U.S.C. § 1252(b)(5). ECF No. 29 at 4. The statute cited by Plaintiff provides that actions for judicial review of removal orders must be filed in the Court of Appeals. 8 U.S.C. § 1252(a)(5). Plaintiff does not state in his Complaint that he is challenging an order of removal, nor does he attach such an order. See ECF No. 10. Plaintiff cites Paragraph (b)(5) of the statute, which states that if the petitioner seeking review in the Court of Appeals of a removal order claims to be a U.S. national and a genuine issue of material fact exists, the Court of Appeals should transfer the proceeding to ...


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