United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. Senior District Judge
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.
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.
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
for Consideration and Additional Evidence (ECF No.
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
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).
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.
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
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).
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.).
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
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. §
Yam-Pech v. Holder, No. 13-CV-02885-WJM, 2014 WL
183822, at *3 (D. Colo. Jan. 16, 2014).
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).
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
motion is denied.
for Failures and Considerations (ECF No. 29)
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.
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).
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
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 ...