Rodrigues v. Renaud

United States District Court

District of Massachusetts

)

Martinho Tavares Rodrigues, )

)

Plaintiff, )

)

v. )

) Civil Action No.

Ur M. Jaddou, et al., ) 21-10247-NMG

)

Defendants. )

)

)

MEMORANDUM & ORDER

GORTON, J.

This action arises out of the latest of several attempts by

petitioner Martinho Rodrigues (“Rodrigues” or “petitioner”) to

establish his purported United States citizenship. Pending

before the Court is the motion of defendants Ur M. Jaddou

(“Jaddou”), Director of United States Citizenship and

Immigration Services (“USCIS”), Denis Riordan, USCIS District

Director for New England and Alejandro Mayorkas, Secretary of

the Department of Homeland Security, (together, “defendants”) to

dismiss the amended complaint for lack of jurisdiction and

failure to state a claim.1 For the following reasons, the motion

to dismiss will be allowed.

1 Jaddou was appointed as Director of USCIS on August 3, 2021,

and is automatically substituted for Tracy Renaud pursuant to

Fed. R. Civ. P. 25(d).

Rodrigues was born in Cape Verde in 1982. His parents

divorced in 1984 and, in 1987, Rodrigues and his mother

emigrated from Cape Verde to the United States. Rodrigues’s

father was an earlier immigrant to the United States. Both

parents settled in Boston and during his childhood Rodrigues

spent time living with each of his parents at their separate

residences. That arrangement was not, however, reduced to a

formal custody agreement. In 1993, when Rodrigues was 11 years

old, his father became a naturalized United States citizen.

In 2006, Rodrigues was placed in removal proceedings after

a criminal conviction. In those proceedings, Rodrigues argued

that he could not be removed because he had obtained United

States citizenship derivatively through his father. The

Immigration Judge disagreed and held that Rodrigues had not

demonstrated that he was in the sole legal custody of his father

at the time his father was naturalized, a prerequisite for

citizenship under section 321 of the Immigration and

Naturalization Act (“the INA”), 8 U.S.C. § 1432, as then

constituted.2 As a result, Rodrigues was ordered removed to Cape

Verde. Rodrigues appealed that decision, without success, to

the Board of Immigration Appeals (“the BIA”) and then, in 2009,

to the Third Circuit Court of Appeals (“the Third Circuit”). See

2 The INA has since been amended but the amendments do not have

retroactive effect and therefore are of no consequence here.

Rodrigues v. Attorney General, 321 Fed. App’x 166 (3d Cir.

2009).

Meanwhile, in November, 2006, Rodrigues filed an

application for certification of United States citizenship,

known as a Form N-600, with USCIS. See 8 U.S.C. § 1452, 8 C.F.R.

§ 341.1 (providing application process for a certificate of

citizenship). Rodrigues’s Form N-600 was denied in February,

2007, and he did not appeal the denial.

In January, 2019, Rodrigues submitted a second Form N-600

to USCIS, claiming citizenship on the same grounds as he did in

first Form N-600, i.e. derivatively as a result of his father’s

naturalization. USCIS denied the second Form N-600 in April,

2019. Rodrigues appealed the denial to the Administrative

Appeals Office (“AAO”) in May, 2019, and the AAO dismissed that

appeal in August, 2020. He then filed this action in February,

2021, seeking judicial review of the AAO decision pursuant to

the Administrative Procedure Act (“the APA”), 5 U.S.C. § 702 et

seq. Rodrigues amended his complaint in September, 2021, to add

a second theory based upon the INA. Shortly thereafter,

defendants moved to dismiss the amended complaint.

I. Motion to Dismiss

A. Legal Standard

To survive a motion under Fed. R. Civ. P. 12(b)(6), the

subject pleading must contain sufficient factual matter to state

a claim for relief that is actionable as a matter of law and

“plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A claim is facially plausible if, after accepting as

true all non-conclusory factual allegations, the court can draw

the reasonable inference that the defendant is liable for the

misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d

1, 12 (1st Cir. 2011).

When rendering that determination, a court may not look

beyond the facts alleged in the complaint, documents

incorporated by reference therein and facts susceptible to

judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st

Cir. 2011). A court also may not disregard properly pled

factual allegations even if actual proof of those facts is

improbable. Ocasio-Hernandez, 640 F.3d at 12. Rather, the

relevant inquiry focuses on the reasonableness of the inference

of liability that the plaintiff is asking the court to draw. Id.

at 13.

To survive a motion to dismiss for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1), the

petitioner/plaintiff bears the burden of establishing that the

Court has jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S.

555, 561 (1992). If the defendant mounts a “sufficiency

challenge”, the court will assess the sufficiency of the

plaintiff’s jurisdictional allegations by construing the

complaint liberally, treating all well-pled facts as true and

drawing all reasonable inferences in the plaintiff’s favor.

Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir.

2001).

If, however, the defendant advances a “factual challenge”

by controverting the accuracy, rather than the sufficiency, of

the alleged jurisdictional facts, “the plaintiff’s

jurisdictional averments are entitled to no presumptive weight”

and the court will consider the allegations by both parties and

resolve the factual disputes. Id. The court has “broad

authority” in conducting the inquiry and can, in its discretion,

consider extrinsic evidence in determining its own jurisdiction.

Id. at 363-64.

B. Application

Defendants contend that Rodrigues’s claims under the INA

are time-barred and that no relief is available to him under the

APA as a matter of law. Rodrigues responds that jurisdiction

exists and relief is available.

i. Immigration and Naturalization Act Claims

The INA provides that a non-citizen may seek to establish

derivative citizenship either defensively, in response to

removal proceedings, or affirmatively, by submitting a Form N-

600 to USCIS. See Anees v. Napolitano, 972 F. Supp. 2d 140, 143-

44 (D. Mass. 2013). Although Rodrigues has pursued his claim of

citizenship in both affirmative and defensive fashion, this

action concerns the denial of his Form N-600s.

An applicant such as Rodrigues whose Form N-600 is denied

by USCIS may appeal that denial to the AAO. 8 C.F.R. § 103.3.

If the AAO denies the appeal, the applicant can then seek review

in federal district court under the INA. 8 U.S.C. § 1503(a). A

federal action brought under the INA must, in relevant part,

be instituted only within five years after the final

administrative denial of such right or privilege.

Id. Although the First Circuit has yet to address the effect of

the INA’s time bar upon the availability of judicial review of a

second or subsequent Form N-600, other federal courts have held

that the statutory clock begins to run on the date of the final

administrative denial of the first Form N-600. See, e.g. Icaza

v. Schultz, 656 F. Supp. 819, 821 (D.D.C. 1987) (holding denial

of plaintiff’s first passport application was “the final

administrative denial”); Gonzalez v. Limon, 926 F.3d 186, 188

(5th Cir. 2019) (finding successive action filed by plaintiff

time-barred because of the INA’s “implicit limitation to the

initial administrative denial.”); Henry v. Quarantillo, 684 F.

Supp. 2d 298, 307 (E.D.N.Y. 2010) (explaining that the statutory

time bar would be vitiated if applicants were able to file

multiple Form N-600s and measure time from the most recently

filed form).

Here, Rodrigues filed his first Form N-600 in November,

2006, which was finally denied by USCIS in 2007. He did not

appeal that denial. Rodrigues filed a second Form N-600 with

USCIS 12 years later and sought review of its denial in this

court in 2021. Because more than five years passed between the

final administrative denial of his first Form N-600 and the

commencement of this action, Rodrigues is statutorily barred

from seeking review of the AAO’s denial of the second Form N-

600. See 8 U.S.C § 1503(a).

Rodrigues acknowledges that substantial delay but

nevertheless contends that he is entitled to review of the

denial of his second Form N-600 because it is dependent upon new

evidence and separate from his initial removal proceedings,

citing Gonzales, 926 F.3d at 189. That argument avails him

little, however, because he has proffered no new facts in

support of the second Form N-600. Rather, as his pleadings make

clear, Rodrigues filed the second Form N-600

to shine a light on the misapplied Pennsylvania custody

interpretation which then changed the weight of all of his

existing evidence.

Put differently, Rodrigues urges this Court to correct a

purported error of law made by a circuit court of appeals more

than a decade ago. The INA affords no such dispensation.3

ii. Administrative Procedure Act Claims

Rodrigues’s claim for relief under the APA fares no better.

Judicial review is available under the APA only if no other

statute “expressly or impliedly forbids the relief which is

sought” and no other adequate remedy can be judicially obtained.

5 U.S.C. §§ 702, 704. Here, Rodrigues seeks to compel

defendants to consider his second Form N-600 under the custody

law of Massachusetts which, he avers, would vindicate his claim

of derivative citizenship.

No matter how his claims are formatted, they ultimately

seek the same relief: approval of Rodrigues’s second Form N-600

and declaration of his purported United States citizenship. The

INA provides for that remedy and, consequently, Rodrigues cannot

pursue it under the auspices of the APA. See 8 U.S.C. § 1503.

The APA does not “duplicate existing procedures for review of

agency action”, Bowen v. Massachusetts, 487 U.S. 879, 903

(1988), and a legal remedy is not inadequate for the purposes of

3 In any event, the Court doubts its jurisdiction to determine

the immigration status of a plaintiff where, as here, a question

of that status arose in connection with a removal proceeding.

See 8 U.S.C § 1503(a); accord Headley-Ombler v. Holder, 985 F.

Supp. 2d 379, 387 (E.D.N.Y. 2013).

the APA merely because a plaintiff, through a failure in

diligence, has “inadvertently deprived [himself] of the

opportunity to pursue [it]”, Town of Sanford v. United States,

140 F.3d 20, 23 (1st Cir. 1998), see Match-E-Be-Nash-She-Wish

Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 215

(2012).

ORDER

For the foregoing reasons, defendants’ motion to dismiss

(Docket No. 17) is ALLOWED.

So ordered.

_/s/ Nathaniel M. Gorton____

Nathaniel M. Gorton

United States District Judge

Dated: April 29, 2022