Weir v. United States Citizenship and Immigration Service

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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NICHOLAS WEIR,

Plaintiff, MEMORANDUM & ORDER

19-CV-2223(EK)

-against-

UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES, et al.,

Defendants.

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ERIC KOMITEE, United States District Judge:

This action arises from plaintiff Nicholas Weir’s

application for naturalization as a United States citizen. U.S.

Citizenship and Immigration Services (“USCIS”) denied Weir’s

application on the ground that he declined to take the standard

oath of allegiance to the United States and did not qualify for

a modified oath. In response, Weir brought this suit against

USCIS. He also sued two individuals, Thomas Cioppa (a former

New York District Director of USCIS) and “I. Bolivar” (an

Immigration Services Officer) — both in their official and

individual capacities. Weir is proceeding pro se.

The amended complaint begins with a list of twenty-one

bullet points, each apparently intended to name a cause of

action. A separate set of factual allegations follows, but the

complaint does not specify which defendants are the subject of

which claims, or which facts are pled in support of which. Some

of the listed causes of action are recognizable (e.g., 42 U.S.C.

§ 1983, the Administrative Procedure Act, and the Federal Tort

Claims Act). Others are not (e.g., “Tort doctrine of

Alternative Liability” and “Negligent Indivisible Harm Caused by

Separate Tortfeasors”). Nevertheless, given Weir’s pro se

status, the Court reads the complaint to make the strongest

arguments that it suggests in support of any colorable claims.

Weir seeks money damages and injunctive relief — specifically,

an order requiring USCIS to administer the modified oath.

The defendants now move to dismiss all claims. They

assert that the Court lacks jurisdiction over Weir’s FTCA and

civil rights claims due to the government’s sovereign immunity.

Accordingly, they seek dismissal of those claims under Federal

Rule of Civil Procedure 12(b)(1). They also seek dismissal of

those claims — and all others, excluding the APA claims — under

Rule 12(b)(6). Lastly, they ask for summary judgment on the APA

claims based on the administrative record compiled before the

agency.

For the following reasons, the amended complaint is

dismissed in its entirety pursuant to Rules 12(b)(6) and 56.1

1 Weir has moved to disqualify the undersigned judge from this matter,

alleging, among other things, that the Court has “conspiratorial[ly] delayed”

the resolution of this case. ECF No. 88 at 1. A federal judge “shall

disqualify himself in any proceeding in which his impartiality might

Background

The following facts are taken from the amended

complaint, ECF No. 47, and the Certified Administrative Record

(“CAR”) filed by the government in November 2022. See ECF No.

94. The complaint’s allegations are presumed to be true at this

stage. See In re NYSE Specialists Sec. Litig., 503 F.3d 89, 91

(2d Cir. 2007). Moreover, as discussed below, the Court

considers the administrative record for purposes of the summary

judgment motion.

Weir obtained conditional permanent resident status in

2013 as the spouse of a U.S. citizen. CAR 20–21. In January of

2017, he submitted a Form N-400 Application for Naturalization.

Id. at 47. USCIS’s Long Island Field Office received this

application later that month. Id. at 21.

In the application, Weir indicated that he was not

willing to take the “full” oath of allegiance. See id. at 46.

Pursuant to the Immigration and Nationality Act, an applicant

reasonably be questioned” or where the judge “has a personal bias or

prejudice concerning a party.” 28 U.S.C. § 455(a), (b)(1). That standard is

not met here. Indeed, “judicial rulings alone almost never constitute a

valid basis for a bias or partiality [disqualification] motion.” Liteky v.

United States, 510 U.S. 540, 555 (1994). Moreover, a claim of “inordinate”

delay, without more, does “not constitut[e] a legal basis for recusal.”

Aguinda v. Texaco, Inc., 139 F. Supp. 2d 438, 440 (S.D.N.Y. 2000); see also

United States v. Moritz, 112 F.3d 506 (2d Cir. 1997) (unpublished table

decision) (rejecting defendant’s argument “that the district court’s delay in

its disposition is, in itself, enough to warrant recusal”). Weir uses the

word “conspiratorial” but does not describe the contours of any alleged

conspiracy. Accordingly, the motion for disqualification is denied.

for naturalization must generally affirm that when required by

law, he will (a) “bear arms on behalf of the United States,” (b)

“perform noncombatant service in the Armed Forces,” or (c)

“perform work of national importance under civilian direction.”

8 U.S.C. § 1448(a). To qualify for a modified oath — one that

omits clauses (a) and (b) — the applicant must show by “clear

and convincing evidence to the satisfaction of the Attorney

General” that he is opposed to those activities based on his

“religious training and belief,” id., or “a deeply held moral or

ethical code.” USCIS Policy Manual, Vol. 12, Part J, Ch. 3. In

response to several questions relating to the oath, Weir

registered his opposition to bearing arms or serving in a

noncombatant role in the military, but not to performing

civilian work of national importance. See CAR 46. He stated in

an addendum to the application that his “belief system restricts

[him] from affirming” that he would perform any military service

— in combat or otherwise. Id. at 27.

On September 28, 2017, Weir appeared for an interview

to determine his eligibility for naturalization. Id. at 21.

Tracking the standard oath, Immigration Services Officer Clanton

asked Weir if he would be willing to bear arms on behalf of the

United States, or to perform noncombatant services in the Armed

Forces, when federal law required. Id.; Am. Compl. ¶ 6. On the

form provided to him, Weir crossed out the clauses of the oath

relating to military service, but not the clause regarding the

performance of civilian service — consistent with his answers on

the application. CAR 50. Following the interview, Clanton gave

Weir a supplemental application form (titled “N-400 Request for

Evidence”). The form instructed Weir to explain in detail:

(1) the nature of his personal beliefs that precluded him from

bearing arms, and (2) how serving in even a noncombatant role

would violate those beliefs. Id. at 29. In response, Weir

declared:

Without going into too much details [sic] of my

overall belief system, maintaining a moral character

is one aspect of my belief system. Another component

of my belief system is to have utter free-will in any

actions I am engaging in. These two and a few others

restrict me from affirming to the clauses to bear arms

on behalf of the United States and to perform

noncombatant service in the U.S. armed forces when

required by law. My belief system does not stem from

any particular religious training. Nonetheless, my

belief system is deeply held and it is used as a

guidance for my life choices. . . . I will assist as

best as I can in the midst of a national crisis within

the confines of my belief system.

Id. at 25.

This explanation failed to persuade USCIS that Weir

was entitled to a modified oath. The agency denied his

application in a decision issued on October 21, 2017. Id. at

20–22. That decision explained that Weir “did not establish

that [his] unwillingness is based on religious training and

belief or a deeply held moral or ethical code.” Id. at 22.

USCIS therefore deemed him to be “ineligible for

naturalization,” but explained that he could file a Form N-336

“Request for a Hearing on a Decision in Naturalization

Proceedings” — effectively, an administrative appeal — if he

believed he could “overcome the grounds for this denial.” Id.2

Weir later sought that hearing. On February 1, 2018,

he submitted a Form N-336, see CAR 1; on it, he argued that the

information he had already provided was sufficient to qualify

for the modified oath. See id. at 10–19.3 Referring back to his

prior statement, Weir wrote the following:

I noted that my belief system is personal. In the denial

statement, this fact was noted as though my belief system

cannot be personal (self-contemplation). This is false.

My belief system does not have to stemmed [sic] from any

religious origin or training. My belief system must be

“sincere, meaningful, and deeply held.” I have expressed

this on more than one occasions [sic]. My belief system is

not based on or “include essentially political,

sociological, or philosophical views.[”] I was opened to

questioning by the officer for transparency. Nonetheless,

I recently came across the following statement. According

to USCIS policy, “an officer must not question the validity

of what an applicant believes or the existence or truth of

the concepts in which the applicant believes.”

2 Pursuant to 8 C.F.R. § 336.2, within thirty days of a denial, the

applicant “may request a hearing” “with an officer other than the officer who

conducted the original examination or who rendered” the denial. The

reviewing officer “may, in his or her discretion, conduct a full de novo

hearing or may utilize a less formal review procedure.” Id. § 336.2(b).

During the review, the second officer “may receive new evidence” and take

additional testimony. Id.

3 Although Weir signed the application on October 31, 2017, see id. at

14, USCIS reports that he did not submit it until February of 2018 — beyond

the thirty-day window provided by 8 C.F.R. § 336.2. See id. at 1. In the

complaint, Weir alleges that the form “was mailed in within the required time

period but was return[ed] a few times before finally being accepted in early

February.” Am. Compl. ¶ 9. In any event, the agency does not dispute that

the filing was timely; that issue is therefore not before the Court.

CAR 12. USCIS granted Weir a hearing, which occurred on August

29, 2018. Id. at 1. Weir testified, but USCIS determined that

he had (once again) “failed to adequately explain in detail the

philosophy” that would preclude him from taking an oath to serve

any role in the U.S. military. Id.4

Despite that determination, USCIS — in its discretion

— offered Weir an additional opportunity to explain his views.

Although the regulation requires only that the agency hold “a

hearing,” 8 C.F.R. § 336.2(b), USCIS scheduled a second hearing

for April 5, 2019. CAR 1, 3. The agency sent him a letter

dated February 27, 2019 to notify him of the interview date.

Id.5 Weir did not attend this extra session, CAR 1; he alleges

that he never received the letter. Am. Compl. ¶ 18. He says,

however, that he received a voicemail from Bolivar on February

27 stating that “she needed him to come in for another

interview,” but she “did not state an interview date.” Id. On

April 17, USCIS reaffirmed its decision to deny Weir’s

application for naturalization. CAR 1. The agency reached this

conclusion following a “complete review” of Weir’s file,

including the documentation he submitted, his statements at his

4 The administrative record does not include a transcript, or any other

documentation, of this hearing.

5 While the regulation refers to a “hearing,” 8 C.F.R. § 336.2(b), the

parties appear to use the words “hearing” and “interview” interchangeably in

this context.

naturalization interview, and his testimony at the subsequent

review hearing. Id.

Discussion

A. Administrative Procedure Act Claims

Weir’s complaint does not articulate how,

specifically, he believes USCIS violated the Administrative

Procedure Act. Nevertheless, the Court construes the complaint

to raise two APA claims.

1. Unlawful Delay

At one point in his complaint, Weir accuses USCIS of

“continued delay” in adjudicating his I-751, N-400, and N-336

applications. Am. Compl. ¶ 15. The APA authorizes a federal

court to “compel agency action unlawfully withheld or

unreasonably delayed.” 5 U.S.C. § 706(1). This claim is moot,

however, because USCIS has now adjudicated all three

applications. See CAR 1, 20, 65.6 Thus, no relief remains

available on this claim: there is no need to compel agency

action that has already been taken, see Bibicheff v. Holder,

55 F. Supp. 3d 254, 261 (E.D.N.Y. 2014), and the APA does not

provide for monetary relief. See Am. C.L. Union v. Clapper,

785 F.3d 787, 803 (2d Cir. 2015) (APA “waives sovereign immunity

6 USCIS approved Weir’s I-751 application in October of 2017, before

Weir commenced this action. See id. at 65. USCIS then issued a final

decision on Weir’s N-400 application and N-336 appeal the day after Weir

filed this suit. See id. at 1.

for suits against the United States for relief other than money

damages”).7

2. Abuse of Discretion

Weir goes on to argue that USCIS “erroneously denied”

his naturalization application “without any substantial reason

in fact and law solely because [he] requested a modified oath of

allegiance.” Am. Compl. ¶ 6. In support of this argument, Weir

alleges that the agency failed to follow its own Policy Manual’s

procedures relating to a request for a modified oath. See id.

¶¶ 19–25.8

Under the APA, a court may set aside an agency action

if the action is “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A);

Nat. Res. Def. Council v. EPA, 658 F.3d 200, 215 (2d Cir. 2011).

Agency decisions are arbitrary and capricious if, among other

things, the agency “relied on factors which Congress has not

intended it to consider” or “offered an explanation for its

decision that runs counter to the evidence before the agency.”

7 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

8 The Manual does not give rise to any cognizable rights; its purpose is

to assist immigration officers in performing their duties. See USCIS Policy

Manual, “About the Policy Manual”; cf. Schweiker v. Hansen, 450 U.S. 785, 789

(1981) (Social Security Act claims manual is handbook for internal use with

“no legal force,” and agents’ failure to follow procedure prescribed by

manual does not provide basis for estoppel against government).

Alzokari v. Pompeo, 973 F.3d 65, 70 (2d Cir. 2020). Relatedly,

an agency abuses its discretion when it issues a decision “made

without a rational explanation,” or “inexplicably” departs from

its own “established policies.” Pillay v. I.N.S., 45 F.3d 14,

17 (2d Cir. 1995) (per curiam). Weir fails to establish an APA

violation.

The Court’s review of an APA claim is “narrow and

deferential” and limited to the administrative record. Kakar v.

U.S. Citizenship & Immigr. Servs., 29 F.4th 129, 132 (2d Cir.

2022). In the end, “so long as the agency examines the relevant

data and has set out a satisfactory explanation including a

rational connection between the facts found and the choice made,

a reviewing court will uphold the agency action, even a decision

that is not perfectly clear, provided the agency’s path to its

conclusion may reasonably be discerned.” Karpova v. Snow,

497 F.3d 262, 268 (2d Cir. 2007).9

When “an APA-based challenge to an agency’s action

presents a pure question of law,” such as whether an agency has

acted arbitrarily and capriciously, summary judgment under Rule

9 An APA action may be brought only “against the United States, the

agency by its official title, or the appropriate officer responsible for the

contested agency action.” Brezler v. Mills, 220 F. Supp. 3d 303, 306 n.1

(E.D.N.Y. 2016). Here, the final agency actions at issue — USCIS’s decisions

on Weir’s N-400 application and N-336 appeal — were issued by Thomas Cioppa,

then the New York District Director of USCIS, acting on behalf of the

agency’s director. Accordingly, Cioppa and USCIS are the only proper

defendants to Weir’s APA claims. E.g., id. (dismissing claim against

improper APA defendants).

56 is generally the appropriate rubric under which to address

the claim. Aleutian Cap. Partners, LLC v. Scalia, 975 F.3d 220,

229 (2d Cir. 2020); see also Am. Bioscience, Inc. v. Thompson,

269 F.3d 1077, 1083–84 (D.C. Cir. 2001). In that context, the

district court’s task is to decide the APA claim(s) based on the

administrative record “compiled by [the] agency when it made the

decision” at issue. Clifford v. U.S. Coast Guard, 915 F. Supp.

2d 299, 307 (E.D.N.Y.), aff’d, 548 F. App’x 23 (2d Cir. 2013).

In the Immigration and Nationality Act, Congress

directed USCIS to consider the “religious training and belief”

of an applicant for a modified oath. 8 U.S.C. § 1448(a). The

statute defines that term as an “individual’s belief in a

relation to a Supreme Being involving duties superior to those

arising from any human relation.” Id. Congress cautioned,

however, that the term “does not include essentially political,

sociological, or philosophical views or a merely personal moral

code.” Id. When addressing the phrase “religious training and

belief” in a different statute, the Supreme Court held that it

includes a “sincere and meaningful belief which occupies in the

life of its possessor a place parallel to that filled by

[religion].” Welsh v. United States, 398 U.S. 333, 339 (1970)

(addressing exemptions from military service under the Universal

Military Training and Service Act); see also United States v.

Seeger, 380 U.S. 163, 165–66 (1965). USCIS has applied that

interpretation to the Immigration and Nationality Act, see USCIS

Policy Manual, Vol. 12, Part J, Ch. 3 n.2 (citing Welsh and

Seeger), as have several lower courts. See, e.g., Rafferty v.

United States, 477 F.2d 531, 533 (5th Cir. 1973); In re Thomsen,

324 F. Supp. 1205, 1209–10 (N.D. Ga. 1971).

Based on these directives, the USCIS Policy Manual

requires an applicant seeking the modified oath to establish

that: (1) he is opposed to bearing arms or performing other

service in the U.S. military; (2) the objection is grounded in

his religious principles or “other belief systems similar to

traditional religion or a deeply held moral or ethical code”;

and (3) his “beliefs are sincere, meaningful, and deeply held.”

USCIS Policy Manual, Vol. 12, Part J, Ch. 3. The applicant need

not belong to a specific religious denomination or follow a

certain theology, but he “must have a sincere and meaningful

belief that has a place in [his] life that is equivalent to that

of a religious belief.” Id. Ultimately, the applicant bears

the burden of proving his eligibility for the modified oath by

clear and convincing evidence. Id.

The Manual, which is publicly available,10 lists

certain types of evidence relevant to the depth and duration of

10 USCIS Policy Manual, https://www.uscis.gov/policy-manual.

the beliefs at issue. It calls for consideration of the

following in determining eligibility for a modified oath:

 General pattern of pertinent conduct and experiences;

 Nature of applicant’s objection and principles on which

objection is based;

 Training in the home or a religious organization;

 Participation in religious or other similar activities;

and

 Whether the applicant gained his or her ethical or moral

beliefs through training, study, self-contemplation, or

other activities comparable to formulating traditional

religious beliefs in the home or through a religious

organization.

Id.

The administrative record reveals no suggestion that

USCIS acted arbitrarily or abused its discretion in applying

these standards to Weir’s application. Simply put, Weir’s

submission in response to the agency’s Request for Evidence form

did not provide the agency with the necessary basis to alter the

oath. The form instructed him to “[e]xplain how [his] beliefs

came about and where they are rooted from,” and “how performing

a non combatant role in the military would violate these

beliefs.” CAR 29. The instructions twice directed him to

provide “detailed” information. Id. Despite those directives,

Weir prefaced his statement by stating that he would not be

“going into too much details.” Id. at 25. He then proceeded to

say virtually nothing specific about his moral beliefs

concerning warfare or service in a non-combatant role. Weir did

state that his belief system prioritizes “moral character” and

obligates him to “have utter free-will in any actions.” Id.

But the reference to moral character is highly general, while

the need for “utter free-will” could be read to conflict with

many obligations of the citizenry, including those contained in

the oath. Weir’s statement thus stands in contrast to the one

considered by the Second Circuit and later the Supreme Court in

Seeger, supra, by way of example.11

11 Seeger’s initial letter to the Selective Service was “not lengthy.”

326 F.2d 846, 848 (2d Cir. 1964). Still, he communicated the following:

I am bound to declare myself unwilling to participate in any

violent military conflict, or in activities made in preparation

for such an undertaking. My decision arises from what I believe

to be considerations of validity from the standpoint of the

welfare of humanity and the preservation of the democratic values

which we in the United States are struggling to maintain. I have

concluded that war, from the practical standpoint, is futile and

self-defeating, and that from the more important moral

standpoint, it is unethical.

Id. (emphasis added). According to the Second Circuit’s opinion, Seeger said

more:

“It is our moral responsibility,” he wrote, “to search for a way

to maintain the recognition of the dignity and worth of the

individual, the faith in reason, freedom, and individuality, and

the opportunity to improve life for which democracy stands.” In

language which underscored the ethical foundation of his faith,

he decried “the tremendous spiritual price that man pays for his

willingness to resort to the mass destruction of human life to

perpetrate his ideals.” “I cannot,” Seeger insisted,

“participate in actions which betray the cause of freedom and

humanity. Experience with the past indicates that our armament

policy will lead to war, and war, with its indiscriminate

crushing of human personality, cannot preserve moral values . . .

. To resort to immoral means is not to preserve or vindicate

moral values, but only to become collaborators in destroying all

moral life among men.”

Id. at 848–49 (emphases added).

Further, while Weir stated that his belief system

“originated in 2009” and “has been gradually developing since,”

CAR 25, he proffered no evidence that he has engaged in any

conduct pertinent to those beliefs, received any training that

gave rise to them, or participated in any activities comparable

to religious worship, such as self-contemplation or study. In

other words, he pointed to no outward manifestation of his

beliefs that would tend to show the centrality of those beliefs

in his life. The agency could reasonably have expected that a

deeply held belief system would give rise to some such conduct

or history, but Weir identified none.12

Weir’s subsequent submission on Form N-336 offered

even fewer details. There, he merely offered a series of

conclusory statements — legal conclusions, by and large, couched

as factual assertions. These include Weir’s assertions that he

had “established and passed the three-part test to qualify for

[a] modification”; that his beliefs are “sincere, meaningful,

and deeply held”; and that they are “not based on . . .

essentially political, sociological, or philosophical views.”

12 Weir clearly received notice that he needed to describe the nature

of, and foundation for, his beliefs in detail. As noted above, the agency’s

Request for Evidence explicitly instructed Weir to provide “detailed”

information about his beliefs. Id. at 29. Moreover, in Weir’s request for a

hearing on the denial of his application, he directly quoted several

provisions of the Manual, including from the “Evidence Establishing

Eligibility” section. See id. at 12.

Id. Once again, Weir pointed to no evidence of any conduct

flowing from his beliefs.

In this Court, Weir raises two contentions in support

of his argument that the defendants failed to comply with the

Manual’s requirements. First, he contends that Officer Bolivar

“frivolously question[ed] the existence of his belief system,”

Am. Compl. ¶ 25, in violation of the Manual’s prohibition on

questioning “the validity of what an applicant believes or the

existence or truth of the concepts in which the applicant

believes.” Id. ¶ 21 (quoting USCIS Policy Manual, Vol. 12, Part

J, Ch. 3). But Weir points to no particular question that

disputed the wisdom (as opposed to the genuine nature) of Weir’s

beliefs. To the extent that Bolivar’s questions addressed the

evidentiary factors set forth in the Manual, they were not

“frivolous” and they were not a detour from the prescribed

inquiry. Indeed, the Manual expressly invites the reviewing

officer to “ask an applicant questions” about those factors to

assist the officer in determining whether the applicant

qualifies for modification. USCIS Policy Manual, Vol. 12, Part

J, Ch. 3. Bolivar was authorized to probe the origins,

contours, and outward manifestations of those beliefs, and the

record reflects no evidence that she did anything beyond that.

Second, Weir invokes the N-336 decision’s reference to

his belief system as a “philosophy” as evidence of the

defendants’ improper devaluation of his beliefs. Am. Compl.

¶ 18. But USCIS gave Weir several opportunities to explain his

beliefs in detail and demonstrate his eligibility for the

modified oath. For the reasons discussed above, however, the

agency reasonably concluded that he had not proffered sufficient

evidence to prove that his belief system was a deeply held moral

or ethical code. Thus, Weir has identified no basis to conclude

that USCIS acted in an arbitrary or capricious manner or abused

its discretion.

B. Constitutional Claims

Weir also invokes the First, Seventh, Thirteenth, and

Fourteenth Amendments. Again, he does not explain the basis for

these claims, and none can survive the defendants’ motion to

dismiss. For the following reasons, these claims are dismissed

against all defendants under Rule 12(b)(6).

1. First Amendment

Weir fails to allege a First Amendment violation

against any of the defendants. The First Amendment “mandates

governmental neutrality between religion and religion, and

between religion and nonreligion.” McCreary Cnty. v. Am. C.L.

Union of Ky., 545 U.S. 844, 860 (2005). Weir does not invoke

religion (or atheism) as a basis for relief; indeed, he does not

invoke any particular clause of the First Amendment at all. As

discussed above, Weir asserts that Officer Bolivar improperly

questioned the “existence” of his belief system, Am. Compl.

¶ 25, but he provides no additional details bearing on this

accusation. Moreover, he takes issue with USCIS’s labeling of

his “belief system” as a “philosophy.” Id. ¶ 18. To survive a

motion to dismiss under Rule 12(b)(6), Weir must allege

sufficient factual matter, accepted as true, to “state a claim

to relief that is plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). His threadbare allegations do not

meet this standard, even affording him the “special solicitude”

due a pro se litigant. Tracy v. Freshwater, 623 F.3d 90, 101

(2d Cir. 2010). Therefore, his First Amendment claim must be

dismissed under Rule 12(b)(6).

2. Due Process

Weir’s complaint lists the Fourteenth Amendment in his

litany of legal authorities, and he argues that he “never

receive[d]” the letter that USCIS mailed on February 27, 2019

directing him to return for a second interview with Officer

Bolivar regarding his naturalization application. Am. Compl.

¶ 18; CAR 1, 3. On that basis, and because the “actions of the

Federal Government and its officers are beyond the purview of

the [Fourteenth] Amendment,” District of Columbia v. Carter,

409 U.S. 418, 424 (1973), I construe the complaint to allege a

due process claim under the Fifth Amendment.

A procedural due process claim requires proof of

(1) the deprivation of a liberty or property interest

(2) without due process. See Bryant v. N.Y. State Educ. Dep’t,

692 F.3d 202, 218 (2d Cir. 2012). As set forth below, Weir has

failed to plead a colorable due process violation because he has

not established either element.

A person seeking citizenship has no constitutionally

protected property interest in obtaining relief that resides

within USCIS’s discretion. See Krasniqi v. Holder, 316 F. App’x

7, 8 (2d Cir. 2009) (“Krasniqi did not have a constitutionally

protected liberty or property interest in a grant of adjustment

of status because it is a discretionary form of relief.”); see

also Yuen Jin v. Mukasey, 538 F.3d 143, 156–57 (2d Cir. 2008);

Islam v. Barr, 394 F. Supp. 3d 279, 286 (E.D.N.Y. 2019). And

the agency clearly exercises discretion as to requests for a

modified oath. Under the Immigration and Nationality Act, an

applicant for a modified oath must prove his eligibility by

“clear and convincing evidence to the satisfaction of the

Attorney General.” 8 U.S.C. § 1448(a) (emphasis added). The

Second Circuit has held that when a statute requires an

applicant to establish eligibility for relief to “the

satisfaction of the Attorney General,” such a statute

“specifically render[s]” the determination at issue “to be

within the agency’s discretion.” Ruiz v. Mukasey, 552 F.3d 269,

275 (2d Cir. 2009). Thus, pursuant to Section 1448(a), the

decision to grant a modified oath is discretionary; Weir

therefore has no property interest in obtaining a modification.

In any event, Weir received notice and a hearing — the

same process that he would have received if he had such a

property interest. In connection with his naturalization

application, he interviewed with Officer Clanton regarding his

eligibility for citizenship. See Am. Compl. ¶¶ 5-6. Then, with

respect to his request for a review of the denial of that

application, he again interviewed with a USCIS officer — this

time with Officer Bolivar. See id. ¶ 9. In other words, Weir

had two in-person opportunities to make his case to the agency

that he met the qualifications for naturalization. This

satisfied the agency’s due-process obligations. In Yuen Jin,

for example, the Court of Appeals held that (a) the petitioner

had no liberty or property interest in the immigration relief

sought, and, in the alternative, that (b) the agency had

provided all the process that would have been due anyway. See

538 F.3d at 156-57. The same is true here.

Finally, although Weir also suggests that he did not

receive a fair hearing with respect to his applications, see Am.

Compl. ¶¶ 18, 25, he has not adequately alleged any improper

conduct by USCIS or its officers — for the reasons discussed in

the context of the APA claims. See supra Section II.A.; see

also Tsirelman v. Daines, 794 F.3d 310, 317 (2d Cir. 2015)

(affirming dismissal of due process claim because “due process

guarantees only a fair hearing, which [plaintiff] received in

full”).13

C. Civil Rights Claims

Weir also asserts claims under Sections 1981, 1983,

1985, and 1986 of Title 42. The claims under Sections 1981 and

1983 must be dismissed because those provisions “apply only to

state actors, not federal officials.” Dotson v. Griesa,

398 F.3d 156, 162 (2d Cir. 2005). Moreover, for a plaintiff to

state a Section 1985 claim for conspiracy to deprive him of the

equal protection of the laws, he must allege “some racial, or

13 Weir’s claims under the Seventh and Thirteenth Amendments also fail.

While he demands a jury trial, see Am. Compl. ¶ 33, he otherwise does not

raise any Seventh Amendment issue. To receive a jury trial, he must

demonstrate a genuine dispute of material fact on one of his other claims,

and he has not done so. See Sullivan v. Maha, 834 F. App’x 619, 620 n.1

(2d Cir. 2020) (rejecting argument that disposition of claims prior to trial

violated plaintiff’s right to a jury trial). Thus, to the extent that Weir

asserts a Seventh Amendment claim, that claim is dismissed pursuant to Rule

12(b)(6). Further, he makes no claim that the defendants detained him in any

way in violation of the Thirteenth Amendment’s ban on involuntary servitude.

Therefore, to the extent that he asserts a Thirteenth Amendment claim, that

claim is also dismissed under Rule 12(b)(6).

perhaps otherwise class-based, invidiously discriminatory animus

behind the conspirators’ action.” United Bhd. of Carpenters &

Joiners of Am., Loc. 610 v. Scott, 463 U.S. 825, 834 (1983).

While Weir alleges that he is “of dark complexion (Black) and

born in Jamaica,” Am. Compl. ¶ 32, he makes no specific

allegation that the defendants conspired to violate his civil

rights because of any racial or class-based discriminatory

animus. Accordingly, this claim cannot proceed. See Leon v.

Murphy, 988 F.2d 303, 311 (2d Cir. 1993) (“A complaint

containing only conclusory, vague, or general allegations of

conspiracy to deprive a person of constitutional rights cannot

withstand a motion to dismiss.”); see also Young v. Suffolk

Cnty., 705 F. Supp. 2d 183, 208 (E.D.N.Y. 2010) (dismissing

Section 1985 claim for failure to allege invidious

discrimination).

Section 1986 provides a cause of action against those

who “neglect to prevent” a violation described in Section 1985.

Because liability under Section 1985 is a prerequisite to a

claim under Section 1986, Weir’s Section 1986 claim fails as

well. See Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir.

2000) (affirming dismissal of Section 1986 claim based on

failure to plead predicate claim under Section 1985).

For the foregoing reasons, Weir’s civil rights claims

are dismissed under Rule 12(b)(6).14

D. Federal Tort Claims Act

Lastly, Weir’s complaint can be read to allege claims

under the Federal Tort Claims Act. These claims must be

dismissed under Rule 12(b)(6) because Weir cannot maintain an

FTCA claim against any of the defendants. The FTCA does not

permit actions against individuals. 28 U.S.C. § 2679(d)(1).

Nor is USCIS a proper party to an FTCA claim because the FTCA

“precludes tort suits against federal agencies. The only proper

federal institutional defendant in such an action is the United

States.” Rivera v. United States, 928 F.2d 592, 609 (2d Cir.

1991).

14 The defendants have moved, in the alternative, to dismiss Weir’s

Section 1981 and Section 1983 claims — as well as the APA claims against

Bolivar and the FTCA claims against all defendants — under Rule 12(b)(1) on

the basis that one or more of the defendants are not subject to suit under

the relevant statute. Such pleading deficiencies are properly resolved,

however, under Rule 12(b)(6). See, e.g., Dotson, 398 F.3d at 162 (affirming

district court’s dismissal of Section 1981 and Section 1983 claims against

federal officials under Rule 12(b)(6)); Lee v. Hughes, 145 F.3d 1272, 1277

n.6 (11th Cir. 1998) (holding that dismissal of Section 1981 claim against

federal defendant should have been under Rule 12(b)(6) rather than Rule

12(b)(1)); Bibicheff, 55 F. Supp. 3d at 266 (dismissing Section 1983 claim

against federal officers for failure to state a claim).

As the Supreme Court has observed, “[s]ubject matter jurisdiction in

federal-question cases is sometimes erroneously conflated with a plaintiff’s

need and ability to prove the defendant bound by the federal law asserted as

the predicate for relief — a merits-related determination.” Arbaugh v. Y&H

Corp., 546 U.S. 500, 511 (2006); see also Main St. Legal Servs., Inc. v.

Nat’l Sec. Council, 811 F.3d 542, 566–67 (2d Cir. 2016). These claims are

properly dismissed for failure to state a claim.

Even if Weir had sued the United States, his tort

claims would not be cognizable under the FTCA. “The FTCA does

not extend to conduct governed exclusively by federal law, or to

conduct of a governmental nature or function, that has no

analogous liability in the law of torts.” Akutowicz v. United

States, 859 F.2d 1122, 1125 (2d Cir. 1988). Weir does not name

any analogous tort here, and the Second Circuit’s decision in

Akutowicz precludes FTCA liability in the context of citizenship

adjudications. Holding that there was no private analog in tort

for the revocation of citizenship, the court explained that

“quasi-adjudicative action by an agency of the federal

government is action of the type that private persons could not

engage in and hence could not be liable for under local law.”

Id. at 1125–26. That reasoning applies with equal force here.15

Conclusion

For the foregoing reasons, the defendants are awarded

summary judgment on Weir’s APA claims under Rule 56, and the

15 The Court has considered Weir’s remaining arguments as to all claims

and concludes that they lack merit. Weir has also filed several other

motions, including a motion for judgment on the pleadings on his APA claims,

ECF No. 58; a motion to bifurcate review of the APA claims from his other

claims, ECF No. 59; and a motion for sanctions against defense counsel, ECF

No. 64. Weir’s motions for judgment on the pleadings and to bifurcate review

seek the same relief: a decision on his APA claims. See ECF Nos. 58, 59.

Because this order resolves those claims, those motions are now moot.

Moreover, Weir’s sanctions motion was filed together with a motion to compel

discovery, see ECF No. 64, in violation of Rule 11(c)(2), which provides that

“[a] motion for sanctions must be made separately from any other motion.”

The sanctions motion is therefore denied. The Court finds Weir’s remaining

motions to be without merit, or moot, and denies those as well.

remaining claims are dismissed with prejudice under Rule

12(b)(6). The Clerk of Court is respectfully directed to enter

judgment and to close this case.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United States District Judge

Dated: August 14, 2023

Brooklyn, New York