# Weir v. United States Citizenship and Immigration Service

> District Court, E.D. New York · August 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10310176

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 14, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10310176

## How later opinions describe it (automated extraction)

- affirming district court’s dismissal of Section 1981 and Section 1983 claims against federal officials under Rule 12(b)(6)
- affirming dismissal of due process claim because “due process guarantees only a fair hearing, which [plaintiff] received in full”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x

NICHOLAS WEIR,

Plaintiff, MEMORANDUM & ORDER
19-CV-2223(EK)

-against-

UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, et al.,

Defendants.

------------------------------------x
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310176. Public record. Not legal advice.