DENIS R. HURLEY, District Judge.
Petitioner Fay Phillips ("Phillips" or "Petitioner") commenced this action pursuant to 5 U.S.C. § 701 et seq. and 8 U.S.C. § 1421(c) seeking, inter alia, an order that her naturalization application be granted, and that the United States Citizenship and Immigration Service ("USCIS") erred in denying her naturalization petition and in rejecting her Form N-336. Presently before the Court is Respondents' motion, pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss for lack of jurisdiction. For the reasons set forth below, the motion is granted.
The following background is taken from the petition ("Pet."), as supplemented by the Certified Copy of Administrative File ("AF").
Phillips is a citizen and native of Jamaica
According to the petition, the following events then occurred:
Pet. at ¶¶ 17-19. None of these interactions are documented in the Administrative File. Phillips asserts that she "only failed to file her Form-336 within the proscribed time because of the misrepresentation made by the supervising naturalization officer who told her that her birth certificate had been accepted and that she would receive a date to be sworn in." (Pet. ¶ 20.) She did file a request for an administrative hearing (Form N-336) on July 14, 2014, which she claims "contained new facts and should have been treated as a motion to reopen." (Pet. at ¶ 21.) That request was denied on November 22, 2014 as improperly filed. (AF at 1-2; Pet. at ¶ 5.) The instant petition was filed on March 23, 2015. In it, Philips maintains she "displayed due diligence in visiting the Garden City office numerous times and filing numerous complaints in order to complete her naturalization process." (Pet. ¶ 21.)
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "The party invoking federal jurisdiction bears the burden of proving facts to establish that jurisdiction." Linardos v. Fortuna, 157 F.3d 945, 947 (2d Cir. 1998). "In resolving a motion to dismiss for lack of subject matter jurisdiction, the Court may consider affidavits and other materials beyond the pleadings to resolve jurisdictional questions." Cunningham v. Bank of New York Mellon, N.A., 2015 WL 4101839, * 1 (E.D.N.Y. July 8, 2015) (citing Morrison v. Nat'l Australia Bank, Ltd., 547 F.3d 167, 170 (2d Cir. 2008)).
In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action, a court should "draw all reasonable inferences in Plaintiff[`s] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief." Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted). The plausibility standard is guided by two principles. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); accord Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).
First, the principle that a court must accept all allegations as true is inapplicable to legal conclusions. Thus, "threadbare recitals of the elements of a cause of action supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Although "legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679. A plaintiff must provide facts sufficient to allow each named defendant to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery. See Twombly, 550 U.S. at 555.
Second, only complaints that state a "plausible claim for relief" can survive a motion to dismiss. Iqbal, 556 U.S. at 679. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a `probability requirement,' but asks for more than a sheer possibility that defendant acted unlawfully. Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line' between possibility and plausibility of `entitlement to relief.'" Id. at 678 (quoting Twombly, 550 U.S. at 556-57) (internal citations omitted); see In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007). Determining whether a complaint plausibly states a claim for relief is "a context specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679; accord Harris, 572 F.3d at 72.
"In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration `to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Disc. Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)); see Weiss v. Village of Sag Harbor, 762 F.Supp. 560, 567 (E.D.N.Y. 2011) (in deciding a motion to dismiss a court is entitled to consider, inter alia, "documents `integral' to the complaint and relied upon in it, even if not attached or incorporated by reference" and "documents or information contained in defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint"). A document may be considered on a motion to dismiss where the plaintiff has "reli[ed] on the terms and effect of [the] document in drafting the complaint." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (emphasis omitted). Such reliance "is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough." Id.; see Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006) (integral documents may include documents partially quoted in complaint or on which plaintiff relied in drafting complaint).
Prior to addressing the parties' argument, it is useful to describe briefly the statutory context of the naturalization process.
Sections 1427 and 1429 of Title 8 provide that "[n]o person . . . shall be naturalized unless," inter alia, (I) he has been lawfully admitted to the United States for permanent residence, and thereafter "resided continuously . . . within the United States for at least five years"; (ii) he has "resided continuously within the United States from the date of application [for naturalization] up to the time of admission to citizenship;" and (iii) during these statutory periods, he "has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States." 8 U.S.C. §§ 1427(a), 1429.
An alien seeking naturalization must first file with USCIS an application on Form N-400. See 8 U.S.C. § 1445(a); 8 C.F.R. § 316.4(a). USCIS then conducts an examination of the alien's application to determine, inter alia, whether the application meets the residency requirements. 8 U.S.C. § 1446(b). During the examination, USCIS (I) must obtain the results of an FBI background check on the applicant, and (ii) may issue subpoenas for documents and testimony from the applicant and third parties who may possess pertinent information. Id. Ultimately, USCIS "shall make a determination as to whether the application should be granted or denied, with reasons therefor." 8 U.S.C. § 1446(d); 8 C.F.R. §§ 335.3(a), 336.1.
If USCIS denies a naturalization application on an initial determination, the applicant may, within 30 days of the determination, request another hearing. 8 U.S.C. § 1447(a); see also 8 C.F.R. §§ 316.14(b)(2); 336.2(a). This hearing serves as an administrative appeal of USCIS's initial determination and, as such, must be conducted by an independent officer, who may "receive new evidence or take such additional evidence as [he] may [deem] relevant to the applicant's eligibility for naturalization." Id. The applicant has the right to introduce new evidence in support of his application and in opposition to the findings made in USCIS's initial determination. Id. Ultimately, the USCIS hearing officer must issue a new decision that either "affirm[s] the findings and determination of the original examining officer or re-determine[s] the original decision in whole or in part." Id.
An applicant is entitled to judicial review at two specific points during the naturalization application process: (1) if USCIS "fail[s] to make a determination" as to the initial decision "before the end of the 120-day period after the date on which the examination is conducted," the applicant may file a petition in federal district court, 8 U.S.C. § 1447(b); and (2) if after an administrative appeal hearing, USCIS affirms its initial determination to deny a naturalization application, the applicant may seek judicial review of that denial in an appropriate district court, which will engage in de novo review of USCIS's denial. 8 U.S.C. § 1421(c).
Respondents maintain that this Court lacks subject matter jurisdiction to review the denial of petitioner's naturalization application because (1) her claim accrued in 2000 when her naturalization application was denied and this action was not commenced within six years of that accrual as required by 28 U.S.C. §2401(a)
In response, Petitioner argues that the Court has subject matter jurisdiction to review the denial of her application because 28 U.S.C. § 2401(a) is a claims-processing rule and not a jurisdictional rule, and further that the six year statute of limitations is subject to equitable tolling; alternatively, she maintains that her cause of action accrued when her form N-336 was denied in 2014 and therefore her petition was timely filed. Finally, she asserts that USCIS erred in failing to treat her Form N-336 as a motion to reopen because her "application was denied as a result of USCIS error and contrary to existing law and regulations. . . ." Pet.'s Opp. at 14.
In their reply, Respondents do not address whether 28 U.S.C. 2401(a) is jurisdictional.
The first issue to be addressed is whether 28 U.S.C. 2401(a) is a jurisdictional rule or a claims-processing rule. If it is a jurisdictional rule then the motion to dismiss is properly analyzed under Fed. R. Civ. P. 12(b)(1) and equitable tolling is not applicable. If it is a claims processing rule then the motion should be analyzed under Fed. R. Civ. P. 12(b)(6) and Petitioner's claim is subject to equitable tolling.
28 U.S.C. 2401(a) provides:
28 U.S.C. § 2401(a).
The Supreme Court has reiterated a number of times over the past several years that "a rule should not be referred to as jurisdictional unless it governs a court's adjudicatory capacity, that is its subject matter or personal jurisdiction." Henderson v. Shinseki, ___ U.S. ___, 131 S.Ct. 1197, 1202 (2011). As "the distinction between jurisdictional and claims-processing rules can be confusing," Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010), in identifying whether a statutory term is jurisdictional, the following rule has been established:
Sebelius v. Auburn Reg'l Med. Ctr., ___ U.S. ___, 133 S.Ct. 817, 824 (2013) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006). In applying this rule, a court's "jurisdictional analysis must focus on the legal character of the requirement, which [a court] discerns by looking to the condition's text, context, and relevant historical treatment." Reed Elsevier, 559 U.S. at 166.
The Supreme Court has "made plain that most time bars are nonjurisidictional." United States v. Wong, ___ U.S. ___, 135 S. Ct.1625, 1632 (2015) As that Court recently stated:
Id. (internal quotation marks and citations omitted).
Indeed in Wong, the Supreme Court held that the neighboring statute of limitations found in 28 U.S.C. § 2401(b) is not jurisdictional. Id. at 1632-37. The Court reasoned that the statute "does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts." Id. at 1633. Additionally, because a section separate and apart from § 2401(b) confers power on federal district courts to hear FTCA claims, "[t]reating § 2401(b)'s time bars as jurisdictional would thus disregard the structural divide built into the statute." Id.
Although the Second Circuit has not directly addressed whether 28 U.S.C. § 2401(a) is jurisdictional, Bertin v. United States, 478 F.3d 489 (2d Cir. 2007), provides support for the conclusion that it may not be legitimately so categorized. In that case the Circuit upheld the dismissal of a Rule 41(g) motion for return of property as time barred because it was filed well beyond the six-year statute of limitations period in 28 U.S.C. 2401(a) and "even the most generous tolling arguably available" could not preserve the claim. Id. at 493-94 & n.3.
In rejecting equitable tolling in the case before it, the Bertin Court noted that it had "previously held that equitable tolling may be available for actions against the government. 473 F.3d at 494, n.3 (citing Long v. Frank, 22 F.3d 54, 58 (2d Cir.1994) and Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)). Moreover, the Bertin Court noted that equitable tolling "may toll the catch-all statute of limitations, 28 U.S.C. § 2401(a)." 478 F.3d at 494, n.3 (quoting Polanco v. U.S. Drug Enforcement Admin., 158 F.3d 647, 655 (2d Cir. 1998)). As tolling would be unavailable if § 2401(a) were jurisdictional, see Wong, 135 S. Ct. at 1638, Bertin supports treating § 2401(a) as a claims processing rule.
The Sixth Circuit, subsequent to Wong, addressed the issue in Herr v. U.S. Forest Serv., 803 F.3d 809 (6th Cir. 2015) and concluded that §2401(a) is not jurisdictional. In addition, prior to Wong, the Ninth Circuit in Cedars-Sinai Medical Center v. Shalala, 125 F.3d 765, 770 (9TH Cir. 1997) held §2401(a) is not jurisdictional. This Court adopts the reasoning of the Herr and the Cedar-Sinai Courts and concludes that §2401(a) does not limit a federal court's subject matter jurisdiction. The statute makes no mention of jurisdiction. Rather, it "reads like an ordinary, run of the mill statute of limitation," Wong, 135 S.Ct. 1633, especially given that it contains a provision for tolling for persons under a "legal disability" or "beyond the seas."
As the statute of limitations in 28 U.S.C. § 2401(a) is non-jurisdictional, Respondents' motion to dismiss on the grounds this action was not commenced within six (6) years of accrual is properly analyzed under Rule 12(b)(6), not Rule 12(b)(1). Moreover, as the statute of limitation is not jurisdictional, it is subject to equitable tolling. See Wong, 135 S. Ct. at 1638.
The next issue to be addressed is when Petitioner's claim concerning the denial of her naturalization application accrued so as to determine whether her claim was filed within the limitations period.
Respondents assert that Petitioner's claim accrued when she became aware of the April 28, 2000 decision denying her naturalization application, or at the latest when that decision became final after she failed to file a request for a hearing within 30 days of its receipt. Resps.'s Reply at 3. Petitioner replies that the instant action was timely filed as her "cause of action accrued on November 22, 2014, at the time USCIS rejected the Petitioner's Form N-336, because this is when she was able to seek review by this Court. As Respondents argue. . . the Petitioner cannot bring suit in District Court until there is a final decision on her N-336" and the denial of her Form N-336 advised her it was a final denial of her application and she could seek review in a district court. Pet.'s Opp. at 12.
A right of action "first accrues when a plaintiff knows or has reason to know of the injury that forms the basis of the action." Leon v. Murphy, 988 F.2d 303, 309 (2d Cir. 1993) (internal quotation marks and citation omitted). Here, that point occurred when Respondents' challenged decision became final. "[T]wo conditions . . . must generally be satisfied for agency action to be `final' under the APA. `First the action must mark the consummation of the agency's decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which the rights or obligations have been determined, or from which legal consequences will flow.'" U.S. Army Corps of Engineers v. Hawkes Co., ___ S. Ct. ___, 2016 WL 3041052, at *5 (May 31, 2016) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)); accord Dalton v. Specter, 511 U.S. 462, 470 (1994) (In determining whether an agency action is sufficiently final to trigger the running of the statute of limitations, the "core question" is "whether the agency has completed its decision-making process, and whether the result of that process is one that will directly affect the parties.") (internal quotations marks omitted). Inasmuch as Petitioner's claim is that her naturalization application was improperly denied (because she in fact timely provided a copy of her birth certificate and/or because a copy was already in her file), her claim accrued, at the latest when the April 28, 2000 Decision became final 30 days after she received it, i.e., on or about June 1, 2000.
8 U.S.C. § 1421(c) required Petitioner to exhaust her administrative remedies prior to seeking judicial review of the denial of her application, Escaler v. U.S. Citizenship & Immigration Serv., 582 F.3d 288, 292 (2d Cir. 2009), and she was required to exhaust those remedies in a timely manner, i.e., within the thirty days provided for in 8 C.F.R. § 336.2(a). Cf. Woodford v. No, 548 U.S. 81, 83-84 (2006) ("filing an untimely or otherwise procedurally defective administrative grievance or appeal" does not satisfy the PLRA's exhaustion requirement); Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001) (failure to timely exhaust administrative remedies results in a procedural default which precludes judicial review of inmate's claim). Had she timely filed her form N-336, then the statute of limitations would not have begun to run until the resulting decision after hearing. She did not file a timely Form N-336 and it would be antithetical to the purpose of statutes of limitations to allow her untimely filing to extend her time to seek judicial review of the denial of her naturalization application.
As Petitioner's claim accrued in or about June 1, 2000, the filing of this petition on March 23, 2015 was untimely unless the statute of limitations was tolled.
Having concluded that petitioner did not file her claim for review of denial of her naturalization application within six years of its accrual, the question becomes whether she has plausibly asserted a claim for equitable tolling. It is to that issue the Court now turns.
"Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Mottahedeh v. United States, 794 F.3d 347, 352 (2d Cir. 2015) (citations omitted); Phillips v. Generations Family Health Ctr., 723 F.3d 144, 150 (2d Cir. 2013) ("To qualify for [equitable tolling,] the [plaintiff] must establish that extraordinary circumstances prevented him from filing his [claim] on time, and that he acted with reasonable diligence throughout the period he seeks to toll.") (citations omitted).
The instant petition was filed nearly fifteen years after the issuance of the denial of Phillips' naturalization application; in other words to avoid the time bar on her claim she needs to plausibly assert that the statute of limitations should be tolled for more than 8 years and nine months. Given the absence of any date specific information concerning, inter alia, when she "returned numerous times to inquire about her naturalization application" and when she was "[e]ventually . . . informed by an employee of the Service that her case had been closed," (Pet. at ¶ 19), the petition fails to plausibility assert that Phillips is entitled to equitable tolling. Neither does Phillips' Request for a Hearing (Form 336) provide any date specific information. (See AF at 008). The closet it comes is the statement, "The last time going to the office in Garden City office (sic) was a few years ago when an INS worker checked the computer, he informed me that my case has been closed with no further information." (Id.) No explanation is given as to why Petitioner then delayed "a few years" to file for a hearing. That delay in and of itself it fatal to Petitioner's equitable tolling claim as "equitable tolling requires a party to pass with reasonable diligence through the period it seeks to have tolled." Iavorski v. U.S. Immigration and Naturalization Serv., 232 F.3d 124,134 (2d Cir. 2000) (internal quotation marks omitted).
While in other circumstances permission to amend the petition might be order, it is not in this case given the Court's conclusion, in the following section, that Phillips' failure to exhaust administrative remedies deprives this Court of jurisdiction to review the denial of her naturalization petition.
Generally, "a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself." Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir. 2003) (internal quotation marks omitted). Requiring the exhaustion of administrative remedies "protect[s] the authority of administrative agencies, limit[s] interference in agency affairs, and promot[es] judicial efficiency by resolving potential issues and developing the factual record." Id. Administrative exhaustion can be either "statutorily or judicially imposed" and as the Second Circuit has stated "the distinction between the two exhaustion requirements can be `pivotal'" as "statutory exhaustion requirements are mandatory, while the judicial (common-law) exhaustion doctrine is discretionary and includes a number of exceptions." Id.
"Section 1421(c), authorizing de novo judicial review of the denial of an application to be naturalized, requires the exhaustion of administrative remedies prior to seeking that relief." Escaler, 582 F.3d at 291 (citing 8 U.S.C. § 1421(c)). Moreover, "[w]hen, as here, the exhaustion requirement is established by statute—in this case, the interaction of Section 1421(a), which vests the attorney general with sole authority in naturalization matters, with Section 1421(c)—the requirement is `mandatory, and courts are not free to dispense with [it].'" Id. (quoting Bastek v. Fed. Crop Ins. Co., 145 F.3d 90, 94 (2d Cir. 1998)). "[P]roper exhaustion demands compliance with an agency's deadlines and other central procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of proceedings." Woodward v. NO, 548 U.S. 81, 90-91 (2006). Phillips' failure to timely request a hearing before an immigration officer bars judicial review of the denial of her naturalization application as the Court lacks subject matter jurisdiction. See Ortiz v. Chertoff, 2009 WL 2486007, * 4 (S.D.N.Y. Aug. 14, 2009); Kyung Sook Oh v. Keisler, 2009 WL 3711540, * 2-4 (E.D.N.Y. Oct. 8, 2009).
Phillip's reliance on Martinez-Rodriguez v. U.S. Dept. of Homeland Security, 2009 WL 3241533 (S.D.N.Y. 2009) for the proposition that her failure to request a hearing within 30 days of the denial of her naturalization does not deprive this Court of jurisdiction is misplaced. The issue before that court was whether the failure to seek judicial review with the 120 days set forth in the USCIS's regulations deprived the court of subject matter jurisdiction. That question is distinct from the question in this case which is whether Petitioner's failure to timely exhaust her administrative remedies by filing a request for a hearing within 30 days of her receipt of the denial of her application deprives this Court of jurisdiction to review that denial. As discussed above, this Court holds that that failure does so deprive this Court of jurisdiction.
Respondent also seeks dismissal of Petitioner challenge to USCIS's determination that the Form N-336 did not meet the requirements for a motion to reopen or reconsider.
USCIS regulations provide that "[i]f an untimely request for hearing meets the requirement of a motion to reopen as described in 8 C.F.R. 103.5(a)(2) or a motion to reconsider as described in 8 C.F.R. 103.5(a)(3), the request for hearing must be treated as a motion and a decision must be made on the merits of the case." 8 C.F.R. § 336.2. The requirements for a motion to reopen are as follows:
8 C.F.R. § 103.5(a)(2). "A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on application or petition, must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision." Id. at § 103.5(a)(3).
Petitioner argues that her untimely Form N-336 should have been treated as a motion to reopen because (1) she submitted her birth certificate as requested; (2) the birth certificate was already in her file; (3) her birth certificate was not required according to a Policy Memorandum dated June 3, 2013, and therefore was not material to her eligibility. Pet.'s Mem. in Opp. at 14-16. Respondents counter that as permissive forms of relief over which immigration authorities have broad discretion, the decision regarding a motion to reopen will not be disturbed if a satisfactory explanation is given for the agency's decision and here such an explanation has been given, to wit: petitioner's failure to support her request with documentary evidence. Resp.'s Rep. Mem. at 8.
The assertions that her birth certificate was already in her USCIS file and that her birth certificate was not required or material to her eligibility
Petitioner's claim is appropriately analyzed under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., as a "final agency decision for which there is no other adequate remedy in court." 5 U.S.C. § 704.
The agency's decision that Petitioner's Form N-336 did not meet the requirements for a motion to reopen is not plausibly arbitrary, capricious, or an abuse of discretion. Petitioner did not submit any documentary evidence to support her assertion that she timely complied with the request for her birth certificate. Given the amount of time that has passed since she allegedly submitted the birth certificate and the difficulty in trying to confirm her recitation of events that happened fifteen years ago, USCIS was within its discretion to require documentary evidence to support Petitioner's belated claim.
Respondents' motion to dismiss is granted.
