Ramos Funez v. Sessions

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MARCO ANTONIO RAMOS FUNEZ,

No. 6:18-cv-06413-MAT

Petitioner, DECISION AND ORDER

-vs-

JEFFERSON B. SESSIONS, Attorney

General of the United States; CARMEN

WHALING, Field Office Director for

Detention and Removal, Buffalo Field

Office, Bureau of Immigration and

Customs Enforcement; DEPARTMENT OF

HOMELAND SECURITY; and EDWARD NEWMAN,

Assistant Field Office Director,

Buffalo Federal Detention Facility

Respondents.

I. Introduction

Proceeding pro se, Marco Antonio Ramos Funez (“Ramos Funez” or

“Petitioner”) commenced this habeas proceeding on February 12,

2018, pursuant to 28 U.S.C. § 2241 (“Section 2241”) against the

respondents (hereinafter, “the Government”)1 challenging his

continued detention in the custody of the United States Department

of Homeland Security (“DHS”), Immigration and Customs Enforcement

(“ICE”). For the reasons discussed below, the request for a writ of

habeas corpus is denied, and the Petition (Docket No. 1) is

dismissed without prejudice.

1

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Attorney

General William P. Barr is automatically substituted for former Attorney General

Jefferson B. Sessions.

II. Factual Background and Procedural History

Ramos Funez, a native and citizen of Honduras, initially

entered the United States on or about December 12, 1970, when he

was an infant; his status was that of a lawful permanent resident.

On or about September 4, 2007, he was paroled into the

United States at or near Miami, Florida, as a returning lawful

permanent resident.

Ramos Funez has several criminal convictions which he incurred

in 2005 (Sexual Abuse in the Second Degree (New York Penal Law

(“PL”) § 130.60(2)), 2012 (Attempted Conspiracy in the Fourth

Degree (PL §§ 110.00/105.10(1)), and 2015 (Grand Larceny in the

Second Degree (PL § 155.40(1)). He was placed in immigration

removal proceedings by a Notice to Appear (“NTA”), dated July 29,

2010, which was served on him on April 17, 2012.* The NTA charged

Congress has conferred upon immigration judges the authority to conduct

removal proceedings under INA § 240, 8 U.S.C. § 1229a. See INA § 101 (b) (4), 8

U.S.C. § 1101(b) (4); see also INA § 240(a) (1), 8 U.S.C. § 1229a(a) (1). “The

regulations governing initiation of these removal proceedings provide that

‘[e]very removal proceeding conducted under [$ 1229a] . . . is commenced by the

filing of a notice to appear with the immigration court.’” Reyes-Almendarez v.

U.S. Atty. Gen., 593 F. App’x 929, 936 (llth Cir. 2014) (unpublished opn.)

(quoting 8 C.F.R. §$ 1239.1(a); ellipsis in original). “In addition, the rules of

procedure for immigration courts state that ‘[j]Jurisdiction vests, and

proceedings before an [IJ] commence, when a charging document is filed with the

Immigration Court by [DHS].’” Id. (quoting 8 C.F.R. § 1003.14(a) (located within

a subpart entitled “Immigration Court—Rules of Procedure”); alterations in

original). The rules further state that “‘[t]he charging document must include

a certificate showing service on the opposing party pursuant to § 1003.325 which

indicates the Immigration Court in which the charging document is filed.’” Id.

(quoting 8 C.F.R. § 1003.14(a); citing 8 C.F.R.§ 1003.13 (defining “charging

document” to include a NTA and “filing” as the “actual receipt of a document by

the appropriate Immigration Court”)); see also id. n.5 (“Section 1003.32 □□□

requires ‘[a] certification showing service . . . on a date certain [to]

accompany any filing with the [IJ] unless service is made on the record during

the hearing.’”) (quoting 8 C.F.R. § 1003.32(a); alterations and ellipsis in

original). Here, it is unclear when the NTA was filed with the immigration court.

The copy of the NTA submitted by the Government contains a stamp reading,

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him, pursuant to Immigration and Nationality Act (“INA”)

212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i), as an arriving alien

who had been convicted of a crime of moral turpitude.

On or about January 15, 2011, Ramos Funez submitted an

Application for Certificate of Citizenship (N-600) to U.S.

Citizenship and Immigration Services (“USCIS”) which was denied by

USCIS on January 30, 2012. During its investigation, USCIS

determined that Ramos Funez did not qualify for benefits under INA

§ 320 because he was over 18 years-old on February 27, 2001, the

date the law took effect.3 USCIS further determined that Ramos

“Exhibit #1 Jun 22, 2012 Margaret R. Reichenberg, Immigration Judge.” Docket No.

8-2, p. 28 of 62. Given that proof of service must accompany filing of the NTA

unless service is made in immigration court (which was not the case here), the

Court finds that removal proceedings could not have commenced prior to April 17,

2012, the date on which Ramos Funez acknowledged service of the NTA.

3

USCIS was referring to the Child Citizenship Act of 2000 (“CCA”), Pub. L.

No. 106–395, 114 Stat. 1631, which “revised the manner in which children of

non-citizens born outside the United States are eligible to become U.S.

citizens.” Gomez-Diaz v. Ashcroft, 324 F.3d 913, 915–16 (7th Cir. 2003). The CCA

amended INA § 320 “to grant automatic United States citizenship to children who

are born outside of the United States when all three of the following conditions

have been fulfilled:

(1) At least one parent of the child is a citizen of the United

States, whether by birth or naturalization.

(2) The child is under the age of eighteen years.

(3) The child is residing in the United States in the legal and

physical custody of the citizen parent pursuant to a lawful

admission for permanent residence.

Gomez-Diaz, 324 F.3d at 915-16 (quoting 8 U.S.C. § 1431(a)). “Section 104 of the

new law provided that this amendment ‘shall take effect 120 days after the date

of the enactment of this Act and shall apply to individuals who satisfy the

requirements of section 320 . . . of the Immigration and Nationality Act, as in

effect on such effective date.’” Id. (quoting 2000 Acts. Pub.L. 106-395, Title

I, § 104, Oct. 30, 2000, 114 Stat. 1633). Since the CCA was signed by President

Clinton on October 30, 2000, the amendments to INA § 320 became effective on

February 27, 2001. Id.

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Funez did not qualify for benefits under former INA § 3214 because

the statute required that both parents be naturalized before an

applicant turned 18 years-old, and only Ramos Funez’s mother became

a U.S. citizen before he reached age 18.

On January 7, 2013, an immigration judge (“IJ”)

administratively closed Ramos Funez’s case because he was in state

custody in Nassau County, New York pursuant to pending criminal

charges.5

On August 31, 2016, DHS moved the immigration court to

re-calendar Ramos Funez’s removal proceedings and change venue to

the Ulster Correctional Facility in Napanoch, New York, where he

was incarcerated. A copy of this motion was served on Ramos Funez

and his attorney, Peter Bark, Esq. Both motions were granted and

Ramos Funez’s immigration removal proceedings were re-opened on

September 20, 2016.

Ramos Funez was served with Additional Charges of

Inadmissibility/Deportability on January 11, 2017. In particular,

he was charged with being subject to removal pursuant to INA

4 “This section was repealed by the Child Citizenship Act of 2000[,]

§ 103, Pub. L. 106–395, 114 Stat. 1631, 1632.” Nwozuzu v. Holder, 726 F.3d

323, 325 n.1 (2d Cir. 2013).

5

Petitioner had been convicted by guilty plea of Attempted Conspiracy in the

Fourth Degree (PL §§ 110.00/105.10(1)) on April 13, 2012, and was serving a

one-year sentence. After his sentence was completed, he was arrested again and

convicted following a jury trial, on January 7, 2015, of Grand Larceny in the

Second Degree (PL § 155.40(1)). For this conviction, he received a sentence of

two to six years’ imprisonment. The conviction was affirmed on direct appeal by

the Appellate Division, First Department, of New York State Supreme Court.

-4-

212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B), as an alien who has been

convicted of two or more offenses for which the aggregate sentences

to confinement actually imposed were five years or more, in

addition to the charge set forth in the original NTA.

Following a hearing on October 24, 2017, an IJ concluded that

the immigration court lacked jurisdiction to set bond because Ramos

Funez was classified as an arriving alien. He appealed the decision

to the Board of Immigration Appeals (“BIA”) which dismissed the

appeal on March 12, 2018.

On April 13, 2018, an IJ determined that no good cause for a

further continuance of the removal proceedings was demonstrated

since Ramos Funez’s claim of derivative citizenship was denied by

USCIS and there was insufficient evidence that this initial denial

was ever appealed. The IJ determined that Ramos Funez had withdrawn

his applications for asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”). Finally, the IJ

ordered Ramos Funez removed from the United States pursuant to INA

§ 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an

arriving alien who had been convicted of a crime of moral

turpitude; and pursuant to INA § 212(a)(2)(B), 8 U.S.C.

§ 1182(a)(2)(B), as an alien who has been convicted of two or more

offenses for which the aggregate sentences to confinement actually

imposed were five years or more. See Docket No. 8-2, Exhibit

(“Ex.”) A, pp. 2-6.

-5-

Ramos Funez appealed the IJ’s decision to the BIA, raising

several grounds for reversal. By decision (Docket No. 16-2) dated

December 7, 2018, the BIA dismissed Ramos Funez’s claim that INA

§ 320 and former INA § 321, 8 U.S.C. §§ 1431, 1432,6 governing the

award of derivative citizenship, are unconstitutional because

immigration judges do not have the authority to rule on the

constitutionality of statutes. However, the BIA determined that the

record must be remanded to immigration court so that the IJ could

“complete a written decision in a manner that clearly separates it

from the transcript of the proceedings.” Docket No. 16-2, p. 2. The

BIA noted while the IJ sustained the charges under INA § 212 based

on Ramos Funez’s “prior admissions,” he did not render findings on

what Ramos Funez actually admitted. Id. The IJ also failed to make

factual findings to support his determination that Ramos Funez’s

motion to terminate the proceedings was untimely. In addition,

although the IJ purported to deny Ramos Funez’s motion to change

6 Former INA § 321(a), 8 U.S.C. § 1432(a) provided in pertinent part

that

[a] child born outside of the United States of alien parents . . .

becomes a citizen of the United States upon fulfillment of the

following conditions:

(1) The naturalization of both parents; . . .

. . . and if

(4) Such naturalization takes place while such child is under the

age of eighteen years; and

(5) Such child is residing in the United States pursuant to a

lawful admission for permanent residence at the time of the

naturalization of the parent last naturalized ... or thereafter

begins to reside permanently in the United States while under the

age of eighteen years.

8 U.S.C. § 1432(a) (1994) (repealed 2000); see generally Nwozuzu v. Holder, 726

F.3d 323, 325 (2d Cir. 2013) (discussing legislative history). “This section was

repealed by the Child Citizenship Act of 2000 § 103, Pub. L. 106–395, 114 Stat.

1631, 1632.” Nwozuzu, 726 F.3d at 325 n.1.

-6-

venue for “the reasons as set forth . . . previously in the court

file,” the colloquy between the parties and the IJ was insufficient

to provide the necessary findings of fact and legal analysis to

permit appellate review. Id. (citation omitted). In the absence of

a complete written decision, the BIA declined to address the

remaining appellate arguments raised by Ramos Funez. The BIA

remanded the record to the IJ for further proceedings, including

the issuance of a complete written decision.

During the pendency of his appeal to the BIA, Ramos Funez

filed the instant habeas petition asserting that DHS’s detention of

him under 8 U.S.C. § 1231(a)(6) is “illegal/unlawful because he is

a derivative citizen of the United States.” Petition (Docket No. 1)

(“Pet.”) ¶ 29; see also id. ¶¶ 28-68. Ramos Funez asserts that he

enjoys derivative United States citizenship through his mother’s

naturalization, which allegedly occurred when he was under

8 years-old. He contends that under the CCA, which amended INA

§§ 320 and 332 and repealed INA § 321, he is qualified in all

respects for derivative citizenship. Alternatively, he contends if

the CCA is not applied to him, and his claim is analyzed under

former INA § 321, the latter statute is unconstitutional as applied

because it violates the Equal Protection Clause.

As his second claim for habeas relief, Ramos Funez asserts

that, as “a derivative citizen of the United States, [he] was

deprived of his right to due process when, on April 13, 2018,

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during a merits hearing, the Assistant Chief Counsel (“ACC”) [for

DHS] refused to accept his Motion to Terminate which was partially

based on his citizenship and a copy of his N-600[,]” on the grounds

that it was untimely. Pet. ¶ 69. Ramos Funez asserts that the IJ

erroneously agreed with the ACC and ordered Ramos Funez removed

without any discussion on his citizenship or motion to terminate.

By doing so, Ramos Funez argues, “the IJ failed to confer upon

Petitioner his rights to due process and equal protection under the

constitution.” Pet. ¶ 69.

The Government filed a Motion to Dismiss (Docket No. 8) with

Exhibits (Docket Nos. 8-1 to 8-3) and a Memorandum of Law (Docket

No. 9) arguing that this Court lacks jurisdiction to consider

Petitioner’s claim of derivative citizenship and that, in any

event, Petitioner is not a derivative U.S. citizen under the Child

Citizenship Act of 2000 (“CCA”), which repealed 8 U.S.C. § 1432.

The Government also contends that the weight of the precedent holds

that former § INA is not unconstitutional.

Ramos Funez filed a Response (Docket No. 13), reasserting that

this Court is the proper venue for deciding the issues raised by

his Petition. He also alleges he was not served with a motion to

reopen his immigration removal proceedings. Docket No. 13, p. 3. In

addition, he asserts arguments regarding issues as to which the BIA

determined that remand to the IJ was warranted for further

proceedings, e.g., the IJ’s failure to consider his motion to

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terminate the proceedings and denial of his motion for a

continuance to allow him to retain counsel. See Docket No. 13, pp.

4-9. Ramos Funez provides extensive argument regarding his

derivative citizenship claim and his claims that former INA § 321

violates the Equal Protection Clause of the Fourteenth Amendment in

that it “discriminates against mothers of otherwise qualified

children when said mothers are married and made the choice to

remain faithful to their marriage vows,” the otherwise qualified

children of such mothers, and the fathers of those children. Docket

No. 13, pp. 9-28.

The Government filed a Reply (Docket No. 16) arguing that

Petitioner cannot establish jurisdiction over his Petition under

28 U.S.C. § 2241 and that binding Second Circuit precedent holds

that former INA § 321 is constitutional.

The Motion to Dismiss was submitted without oral argument. For

the reasons discussed below, it is granted, and the Petition is

dismissed without prejudice.

III. Rule 12(b)(1) Standard

Rule 12(b)(1) provides that “[e]very defense to a claim for

relief in any pleading must be asserted in the responsive pleading

if one is required[,]” “[b]ut a party may assert” the defense of

lack of subject-matter jurisdiction” by motion. Fed. R. Civ.

P. 12(b)(1). In the context of such a motion, the party seeking to

invoke the Court’s jurisdiction bears the burden of proving that

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subject matter jurisdiction exists. Robinson v. Overseas Military

Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994). “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).

“In reviewing a facial attack to the court’s jurisdiction,

[the Court] draw[s] all facts—which [it] assume[s] to be true

unless contradicted by more specific allegations or documentary

evidence—from the complaint and the exhibits attached thereto.”

Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir.

2011). To the extent a Rule 12(b)(1) motion places jurisdictional

facts in dispute, the Court may consider evidence outside the

pleadings. Id.

IV. Discussion

A. Claim One of the Petition: Entitlement to Derivative

Citizenship Under the CCA and Unconstitutionality of

Former INA § 321

1. Overview of the Parties’ Arguments

Petitioner contends that he is entitled to bring an action for

declaratory judgment under 8 U.S.C. § 1503(a) in this Court to

litigate his claim of derivative citizenship, which is based on two

theories: the current CCA, enacted on February 27, 2001, which

amended INA §§ 320 and 322 and repealed INA § 321, applies to his

claim and leads to a favorable result; and former INA § 321 is

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unconstitutional as applied to his claim. The Government responds

that the Court lacks subject matter jurisdiction under 8 U.S.C.

§ 1503(a) and that Petitioner’s only judicial recourse regarding

his citizenship claim is in the Second Circuit pursuant to 8 U.S.C.

§ 1252(b). In the alternative, the Government argues, Petitioner

does not meet the criteria for derivative citizenship, and former

INA § 321 is constitutional.

2. Citizenship Applications and the Availability of a

Declaratory Judgment Action Under 8 U.S.C.

§ 1503(a)

In general, there are two routes by which a person may pursue

a citizenship claim—defensively and affirmatively. Rios-Valenzuela

v. Dep’t of Homeland Sec., 506 F.3d 393, 396–97 (5th Cir. 2007);

see also Ortega v. Holder, 592 F.3d 738, 744 (7th Cir. 2010)

(“[T]he language of [8 U.S.C.] § 1503(a)(1), read within the

context of [8 U.S.C.] § 1503(a) and also read in conjunction with

related provisions of Title 8, makes it clear that Congress

intended individuals to pursue one of two routes to establish

claims for nationality.”).

First, if the person is in removal proceedings, he can claim

citizenship as a defense. Rios-Valenzuela, 506 F.3d at 396-96. If

the defense is unsuccessful, and the IJ orders removal, the

immigrant can appeal the decision to the BIA. 8 C.F.R. § 1003.1(b).

If the BIA denies the appeal, the person may bring a petition for

review with the appropriate federal circuit court of appeals.

-11-

8 U.S.C. § 1252(a)(5). The circuit court of appeals can issue a

decision on the citizenship claim or can transfer the case to a

district court if there is a genuine issue of material fact as to

the individual’s nationality. 8 U.S.C. § 1252(b)(5). If, on the

other hand, the IJ accepts the citizenship defense, the removal

proceedings are terminated without deciding citizenship.

Rios-Valenzuela, 506 F.3d at 396–97 & n.3 (citing Ng Fung Ho v.

White, 259 U.S. 276, 284 (1922) (“Jurisdiction in the executive to

order deportation exists only if the person arrested is an alien.

The claim of citizenship is thus a denial of an essential

jurisdictional fact.”); Chau v. INS, 247 F.3d 1026, 1027–28

(9th Cir. 2001)).

Second, a person can affirmatively seek a certificate of

citizenship by filing with USCIS a Form N–600, Application for

Citizenship. 8 U.S.C. § 1452(a); 8 C.F.R. § 341.1. If the

application is denied, he can appeal to the Administrative Appeals

Office (“AAO”) under 8 C.F.R. §§ 341.6, 103.3(a). If the AAO

affirms USCIS’s denial, the person will be deemed to have exhausted

his administrative remedies and may file an action for a

declaratory judgment in a United States district court under

8 U.S.C. § 1503(a), which provides as follows:

If any person who is within the United States claims a

right or privilege as a national of the United States and

is denied such right or privilege by any department or

independent agency, or official thereof, upon the ground

that he is not a national of the United States, such

person may institute an action under the provisions of

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section 2201 of Title 28 against the head of such

department or independent agency for a judgment declaring

him to be a national of the United States, except that no

such action may be instituted in any case if the issue of

such person’s status as a national of the United States

(1) arose by reason of, or in connection with any removal

proceeding under the provisions of this chapter or any

other act, or (2) is in issue in any such removal

proceeding.

8 U.S.C. § 1503(a) (emphasis supplied).

With regard to the first limitation on jurisdiction, which

applies when the applicant’s citizenship status “arose by reason

of, or in connection with a removal proceeding[,]” 8 U.S.C.

§ 1503(a)(1), the court must look at “the context of how the

particular issue of citizenship arose rather than the mere timing

of events. . . .” Rios–Valenzuela v. Dep’t of Homeland Sec., 506

F.3d 393, 398 (5th Cir. 2007). If “a citizenship claim finds its

genesis outside of the context of removal proceedings, the

exception is no bar to jurisdiction[.]” Id. at 399 (footnote

omitted). As an example, the Fifth Circuit explained, “once removal

proceedings have run their full course and terminated, any future

citizenship claim would not arise in those removal proceedings.”

Id. (footnote omitted); see also id. at 398 (affirming district

court’s ruling that citizenship claim arose in connection with

removal proceedings where petitioner did not file his N–600

application before the commencement of removal proceedings and,

“[a]s a challenge to his removal, during those removal proceedings

[the petitioner] claimed that he was a United States Citizen”).

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“The few courts that have dealt with . . . [the second

limitation in] section [1503(a)(2)]” including the Second Circuit

in an unpublished decision, “have given its language a natural and

plain meaning: where a removal proceeding is pending, and

citizenship is at issue, the district court cannot hear the

matter.” Anees v. Napolitano, 972 F. Supp.2d 140, 145–46 (D. Mass.

2013) (citing Wilks v. Farquharson, 450 F. App’x 1, 2–3 (2d Cir.

2011) (unpublished opn.); Seal v. Holder, No. C12–181–TSZ–BAT, 2012

WL 2881256, at *2 (W.D. Wash. May 31, 2012); Patino v. Chertoff,

595 F. Supp.2d 310, 313–14 (S.D.N.Y. 2009); Hutchinson v. Mukasey,

No. 07CV–10716, 2007 WL 4323006, at *2–*3 (S.D.N.Y. Dec. 10,

2007)).

3. The Procedural History of Ramos Funez’s Citizenship

Claim

Originally, Ramos Funez proceeded the affirmative route

insofar as he filed an N-600 with USCIS on January 15, 2011. This

filing occurred after the commencement of his removal proceedings

sometime on or after April 17, 2012. See supra, note 2. He argues

that USCIS improperly denied his N-600 application and therefore he

may bring an action for a declaratory judgment under 8 U.S.C.

§ 1503(a). Ramos Funez also asserted citizenship as a defense to

removal. In particular, he argued in his Motion to Terminate

removal proceedings that he was entitled to derivative citizenship.

The Government contends that Ramos Funez is not entitled to

utilize 8 U.S.C. § 1503(a) because his claim of derivative

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citizenship is “at issue in removal proceedings” that are currently

pending. Docket No. 9, pp. 4-5 (citing United States v. Buscemi,

2004 U.S. Dist. LEXIS 27134 (W.D.N.Y. May 21, 2004); Henrieuz v.

Ashcroft, 269 F. Supp.2d 106, 108 (E.D.N.Y. 2003); Omolo v.

Gonzales, 452 F.3d 404, 406-07 (5th Cir. 2006); Iasu v. Chertoff,

426 F. Supp.2d 1124, 1127 (S.D. Cal. 2006)). The Government

contends that any further legal challenge may only be brought in

the Second Circuit pursuant to 8 U.S.C. § 1252(b)(2). Docket

No. 16, p. 4.

4. Whether Jurisdiction Is Precluded Under 8 U.S.C.

§ 1503(a)(1) or (a)(2)

“The first jurisdictional exception, which prohibits a Section

1503(a) action where an individual’s “status as a national of the

United States . . . arose by reason of, or in connection with any

removal proceeding,’ applies to removal proceedings that have

already concluded.” Headley-Ombler v. Holder, 985 F. Supp.2d 379,

386 (E.D.N.Y. 2013) (quoting 8 U.S.C. § 1503(a)(1); citing

Rios–Valenzuela, 506 F.3d at 398 (“If the exceptions [in Section

1503(a)] apply only while a removal proceeding is still pending,

then the first exception would be superfluous since the second

exception covers instances where the removal proceeding is still

pending. The past tense ‘arose’ used in the first exception also

indicates that this provision applies to concluded removal

proceedings.”) (quoting Said v. Eddy, 87 F. Supp.2d 937, 941

(D. Alaska 2000)). Here, Ramos Funez’s removal proceeding is still

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pending, and 8 U.S.C. § 1503(a)(1) does not operate, at this time,

as a jurisdictional bar.

The Court turns next to the second restriction set forth in

Section 1503(a)(2), which is intended to “prevent[ ] judicial

interference with an on-going proceeding in an immigration court,

and serves to preserve [8 U.S.C.] § 1252 as the exclusive route to

appeal an unfavorable removal decision.” Anees v. Napolitano, 972

F. Supp.2d 140, 145–46 (D. Mass. 2013) (citing Phuc Huu Nguyen v.

USCIS, No. 1:CV–09–2211, 2010 WL 3521910, *3–5 (M.D. Pa. Aug. 31,

2010)).

In Wilks, the Second Circuit observed that “[b]y its plain

language, § 1503(a)(2) bars a district court from reviewing an

administrative decision denying a non-citizen’s claim of

citizenship if the question of that person’s nationality is ‘in

issue’ in a pending removal proceeding.” Wilks, 450 F. App’x at 3.

The petitioner in Wilks filed his complaint seeking declaratory

relief in district court during the pendency of his removal

proceeding in immigration court. “[B]ecause he challenged his

removal on the basis that he was a United States citizen, his

status as a United States national was clearly ‘in issue’ in his

removal proceedings.” Id. The Second Circuit concluded that

8 U.S.C. § 1503(a)(2) “thus deprived the district court of subject

matter jurisdiction to consider [his] claim.” Id. (citing Ortega v.

Holder, 592 F.3d 738, 743 (7th Cir. 2010) (interpreting 8 U.S.C.

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§ 1503(a) (2) as providing that “an individual may not institute a

§ 1503(a) action if nationality is ‘in issue,’ that is, being

disputed, in an ongoing removal proceeding”)).

In the present case, Ramos Funez’s citizenship is clearly “‘in

issue,’ that is, being disputed, in an ongoing removal proceeding,”

Ortega, 592 F.3d at 743. Ramos Funez, however, asserts that he

“never made an application for citizenship, nor was any denial of

a claim to citizenship issued by the immigration court in any legal

proceeding.” Docket No. 13, p. 9. Ramos Funez also asserts in the

Petition that he suffered a due process violation when “[t]he

Immigration Judge . . . ordered Petitioner removed without any

discussion on his citizenship or motion to terminate.” Pet. I 69.

Further, in his Reply (Docket No. 13), Ramos Funez admits that he

placed his citizenship “in issue” in his removal proceedings by

asserting it in his Motion to Terminate. See id. at 4 (“The IJ

never considered Petitioner’s claim to derivative citizenship. What

he did do was reject as untimely Petitioner’s Motion to Terminate

Proceedings, See Ex. X [Docket No. 13-1]’, wherein he asserted, for

the first and only time in these proceedings, his claim to

derivative citizenship.”). Cf£., e.g., Akhuemokhan v. Holder,

No. 112-CV-1181 JFB, 2013 WL 6913170, at *2 & n.6 (E.D.N.Y.

In the Motion to Terminate Proceedings, counsel for Ramos Funez argued,

inter alia, that he qualifies for derivative citizenship under the CCA through

his mother’s naturalization and requested that the removal proceedings be

terminated. See Docket No. 13-1, pp. 1-7. Counsel also argued that former INA §

321 is unconstitutional and should not be applied to Ramos Funez. See id.

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Dec. 30, 2013) (finding “no question” that the citizenship issue

“arose in connection with the removal proceeding against” the

petitioner where DHS claimed that the petitioner was not a United

States citizen, and petitioner asserted his citizenship as a

defense to removal by twice moving to terminate the proceedings on

the basis that he derived citizenship through his mother).

Furthermore, the BIA has remanded the record to the IJ for

reconsideration of all of Ramos Funez’s claims except his challenge

to the constitutionality of former INA § 321, which the IJ does not

have jurisdiction to consider in the first instance. Ramos Funez’s

citizenship is clearly “in issue” in the pending removal

proceedings.

For the foregoing reasons, the Court concludes that the

jurisdictional limitation in 8 U.S.C. § 1503(a)(2) applies because

Ramos Funez’s citizenship is “in issue” in a pending removal

proceeding. See, e.g., Lainez v. Osuna, No. 17 CIV. 2278 (HBP),

2018 WL 1274896, at *5 (S.D.N.Y. Mar. 8, 2018) (finding no

jurisdiction where, “throughout his removal proceedings, plaintiff

has asserted the defense that he was a United States citizen,

clearly putting his status ‘at issue’ in the proceedings”). Ramos

Funez has not borne his burden of establishing that this Court has

subject matter jurisdiction over his claim that he is entitled to

derivative citizenship under the applicable statutory scheme.

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5. Failure to Exhaust Administrative Remedies

Even if neither of the jurisdiction-precluding clauses in

8 U.S.C. § 1503(a) were applicable here, the Court nevertheless

finds that it does not have subject matter jurisdiction over Ramos

Funez’s citizenship claims because he has not established that he

exhausted his administrative remedies by appealing USCIS’s denial

of his N-600 to the AAO. “Section 1503(a) expressly requires ‘a

final administrative denial’ prior to the initiation of a

declaratory judgment action.” Pessoa v. Holder, No. 10 CIV. 1387

SHS, 2011 WL 2471206, at *4 (S.D.N.Y. June 21, 2011) (quoting

8 U.S.C. § 1503(a)). Upon rejection of an N-600 application for

citizenship by the USCIS, an individual must appeal USCIS’s

decision to the AAO within thirty days if he intends to seek

judicial review. “Only after a certificate of citizenship is denied

following this administrative procedure does the district court

have jurisdiction to determine citizenship.” Barham v.

United States, No. CR 96-543, 1999 WL 1092560, at *2 (E.D.N.Y.

Nov. 30, 1999) (Weinstein, D.J.) (citing 8 U.S.C. § 1503(a)); see

also Juste v. Sec’y United States Dep’t of State, 697 F. App’x 130,

131 (3d Cir. 2017) (per curiam) (unpublished opn.) (“In light of

Juste’s failure to exhaust his administrative remedies [with USCIS

and AAO], the District Court correctly concluded that it lacked

jurisdiction to consider the case.”).

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Ramos Funez has not alleged that he appealed USCIS’s denial of

his N-600 application and therefore has failed to demonstrate the

requisite exhaustion of administrative remedies. See Lainez, 2018

WL 1274896, at *4 (no subject matter jurisdiction over declaratory

judgment action brought under 8 U.S.C. § 1503(a) where the

“[p]laintiff does not allege—and there is no evidence in the record

to suggest—that he ever appealed the USCIS’s N-600 decision to the

AAO”); Henriquez v. Ashcroft, 269 F. Supp.2d 106, 108 (E.D.N.Y.

2003) (alien failed to exhaust administrative remedies prior to

seeking review by district court of Immigration and Naturalization

Service’s denial of his application for derivative citizenship;

petitioner’s letter to court indicating intent to appeal did not,

in absence of adverse decision on that appeal from Administrative

Appeals Unit, satisfy the exhaustion requirement).

6. Assuming 28 U.S.C. § 2241 Permits Jurisdiction in

This Case, the Court Declines to Assume

Jurisdiction

Ramos Funez asserts that Section 2241 provides an independent

basis for this Court to exercise subject matter jurisdiction over

his citizenship claim; the Government contends that he is

incorrect, and that the only avenue available to a petitioner who

unsuccessfully challenges his lack citizenship in a removal

proceeding is a petition for review before the appropriate circuit

court of appeals under 8 U.S.C. § 1252(b). See Docket No. 16, p. 4.

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Section 2241 grants this Court jurisdiction to hear habeas

corpus petitions from aliens claiming they are held “in violation

of the Constitution or laws or treaties of the United States.”

28 U.S.C. § 2241(c)(3); Zadvydas v. Davis, 533 U.S. 678, 687 (2001)

(citing 28 U.S.C. § 2241(c)(3)). Section 1252 of the INA, as

amended by the REAL ID Act, Pub.L. No. 109-13, Div. B, 199 Stat.

§ 231 (May 11, 2005), provides that the exclusive method for

obtaining judicial review of “a final order of removal” is through

filing a petition for review in the court of appeals. Flores–Torres

v. Mukasey, 548 F.3d 708, 712 n. 6 (9th Cir. 2008) (citing 8 U.S.C.

§ 1252(a)(2), § 1252(a)(5), § 1252(b)(9)). In other words, the REAL

ID Act “strips district courts of jurisdiction to hear habeas

petitions challenging final orders of deportation. . . .” De Ping

Wang v. Dep’t of Homeland Sec., 484 F.3d 615, 615-16 (2d Cir.

2007).

Title 8 U.S.C., § 1252(b), explains that:

With respect to review of an order of removal

. . . the following requirements apply:

. . . .

(5) Treatment of nationality claims

(A) Court determination if no issue of fact

If the petitioner claims to be a national of

the United States and the court of appeals

finds from the pleadings and affidavits that

no genuine issue of material fact about the

petitioner’s nationality is presented, the

court shall decide the nationality claim.

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(B) Transfer if issue of fact

If the petitioner claims to be a national of

the United States and the court of appeals

finds that a genuine issue of material fact

about the petitioner’s nationality is

presented, the court shall transfer the

proceeding to the district court of the United

States for the judicial district in which the

petitioner resides for a new hearing on the

nationality claim and a decision on that claim

as if an action had been brought in the

district court under section 2201 of Title 28.

(C) Limitation on determination

The petitioner may have such nationality claim

decided only as provided in this paragraph.

8 U.S.C. § 1252(b) (emphasis added). Here, however, there is no

final order of removal; rather, Ramos Funez’s removal proceedings

are ongoing. Ramos Funez cannot, as a practical matter, challenge

a non-existent final order of removal, and 8 U.S.C. § 1252(a)(5)

does not apply. To the extent that the Government asserts that this

section bars Ramos Funez from proceeding under Section 2241 in

district court, this argument is rejected.

In fact, there is authority from the Ninth and Third Circuits

supporting Ramos Funez’s position. See Flores–Torres, 548 F.3d at

712 n. 6 (9th Cir. 2008) (noting that 8 U.S.C. § 1252(b)(9) “does

not provide a ‘clear statement’ foreclosing habeas review” under

28 U.S.C. § 2241 of a challenge to immigration detention based on

pre-final-removal-order claim of citizenship) (citations omitted);

Olopade v. Attorney Gen. of U.S., 565 F. App’x 71, 73–74 (3d Cir.

2014) (unpublished opn.) (citing Flores-Torres with approval). In

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Flores-Torres, an immigrant argued, through a writ of habeas corpus

under Section 2241, that his detention was unlawful because he was

a United States citizen. 548 F.3d at 710. The government argued

that the district court lacked jurisdiction to consider the

petitioner’s citizenship claim in light of section 8 U.S.C.

§ 1252(b)(5)(B), contending that this section set forth the

exclusive means for considering citizenship claims in removal

proceedings. See Flores-Torres, 548 F.3d at 710-11.

The Ninth Circuit rejected the government’s contention,

drawing a distinction between habeas petitions that challenge

detention based on citizenship and those that challenge an alien’s

removal based on citizenship. See 548 F.3d at 711 (“Section 1252(b)

by its terms, however, applies only to citizenship claims raised in

connection with ‘review of an order of removal.’ 8 U.S.C.

§ 1252(b). . . . Torres’s habeas petition. . . does not challenge

any final order of removal, but challenges his detention prior to

the issuance of any such order.”). The Ninth Circuit explained that

within this context, a petitioner’s detention challenge based on a

citizenship claim should be considered separate from a pending

removal proceedings and may proceed without implicating 8 U.S.C.

§ 1252(b). Flores-Torres, 548 F.3d at 711-12. Accordingly, the

Ninth Circuit concluded that the district court had jurisdiction

under Section 2241 to consider the detainee’s citizenship claim as

a basis for challenging his detention. See id. at 713 (“We hold

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that Torres does not have to wait until his removal proceedings are

completed and a final removal order is issued before he can secure

habeas review of his citizenship claim and of his contention that

he may not be detained under the INA.”).°

While Flores-Torres stands for the proposition that this Court

may exercise jurisdiction pursuant to Section 2241 over the

citizenship claim raised by Ramos Funez, it cannot be read as

mandating that it do so. See Pianka v. Rosa, No. CV142179PHXDGCMHB,

2016 WL 7383333, at *2 (D. Ariz. Oct. 13, 2016) (‘“Flores-Torres

does not require the Court to exercise jurisdiction over

Petitioner’s claim-the Court can exercise its discretion to decline

jurisdiction and require prudential exhaustion before reaching the

merits.”) (citing, inter alia, Puga v. Chertoff, 488 F.3d 812, 815

(9th Cir. 2007)), report and recommendation adopted, No.

CV-14-02179-PHX-DGC, 2016 WL 7372909 (D. Ariz. Dec. 20, 2016). “A

habeas petitioner must normally exhaust administrative remedies

before seeking federal court intervention.” Michalski v. Decker,

279 F. Supp.3d 487, 495 (S.D.N.Y. 2018) (citing Monestime v.

Reilly, 704 F. Supp.2d 453, 456 (S.D.N.Y¥. 2010) (further citations

Several days after issuance of the Ninth Circuit’s remand order, the BIA

affirmed the IJ’s decision ordering Flores-Torres removed, and the citizenship

claim came before the Ninth Circuit in a petition for review. Finding material

issues of fact as to whether the petitioner was a United States citizen, the

Ninth Circuit transferred the issue of citizenship to the district court pursuant

to 8 U.S.C. 1252 (b) (5) (B) for a hearing and decision on the nationality claim.

Section 1252 (5) (B) directs that a nationality claim should be decided as if

it had been brought as a request for a declaratory judgment under 28 U.S.C.

§ 2201. Thus, while the district court ultimately decided the citizenship issue,

it did not do so by exercising jurisdiction under Section 2241. See Flores-Torres

v. Holder, 680 F. Supp.2d 1099, 1101 (N.D. Cal. 2009).

-2?4-

omitted)). While Section 2241 does not include a statutory

exhaustion requirement, courts have generally required exhaustion

as a “‘prudential matter.’” Michalski, 279 F. Supp.3d at 495

(quoting Paz Nativi v. Shanahan, No. 16-CV-8496(JPO), 2017 WL

281751, at *1 (S.D.N.Y. Jan. 23, 2017) (citing Araujo–Cortes v.

Shanahan, 35 F. Supp.3d 533, 538 (S.D.N.Y. 2014); Howell v. INS,

72 F.3d 288, 291 (2d Cir. 1995) (“Under the doctrine of exhaustion

of administrative remedies, ‘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.’”)

(quoting Guitard v. U.S. Sec’y of Navy, 967 F.2d 737, 740 (2d Cir.

1992))).

“[I]f an exhaustion requirement is judicially imposed instead

of statutorily imposed, a number of exceptions apply that allow

courts to excuse a party’s failure to exhaust administrative

remedies[:] . . . (1) available remedies provide no genuine

opportunity for adequate relief; (2) irreparable injury may occur

without immediate judicial relief; (3) administrative appeal would

be futile; and (4) in certain instances a plaintiff has raised a

substantial constitutional question.” Beharry v. Ashcroft, 329 F.3d

51, 62 (2d Cir. 2003), as amended (July 24, 2003) (quotation

omitted).

With regard to Ramos Funez’s claim that he is entitled to

derivative citizenship as a matter of statute, the Court will

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refrain from exercising jurisdiction over it and will require

administrative exhaustion as a prudential matter. Pianka v. Rosa,

2016 WL 7383333, at *2 (citations omitted). Here, Ramos Funez’s

“citizenship claim is directly intertwined with his removal

proceedings.” Id. Recently, the BIA remanded the record to the IJ

for further proceedings on all of Ramos Funez’s claims save the

constitutional challenge to former INA § 321. The record before

this Court, in comparison, is undeveloped. Moreover, Ramos Funez

has counsel in the removal proceedings, while he is unrepresented

in this matter. Id. Furthermore, if the IJ rules adversely to Ramos

Funez and the BIA affirms, he could then file a petition for review

in the Second Circuit. Should that court find genuine issues of

material fact about his nationality, it would then refer the case

to the district court for a new hearing on the nationality claim.

See 8 U.S.C. § 1252(b)(5)(B). Thus, Petitioner will not be

deprived of due process if this Court declines to determine the

merits of his statutory citizenship claim. Pianka v. Rosa, 2016 WL

7383333, at *3. The Court therefore will dismiss the statutory

derivative citizenship claim as unexhausted; however, the dismissal

will be without prejudice.

With regard to his claim that former INA § 321 is

unconstitutional, the Court recognizes that the BIA has dismissed

this claim because the IJ does not have authority to consider the

constitutionality of immigration statutes. Indeed, under its

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governing precedent, the BIA has no authority to consider

constitutional arguments asserted by an immigrant. See In Re

Rodriguez-Carrillo, 22 1. & N. Dec. 1031, 1035 (BIA 1999)

(“[N]either the Immigration Judge nor this Board may rule on the

constitutionality of the statutes that we administer.”) (citation

omitted); see also Michalski, 279 F. Supp.3d at 496 (citing In Re:

Omar Mejia Rojas, 2014 WL 1120179, at *1 (DCBABR Jan. 31, 2014)

(unpublished opn.)).

While the Second Circuit has recognized the presentation of a

“substantial constitutional question,” Beharry, 329 F.3d at 62, as

one of the exceptions to the prudential exhaustion requirement, the

Court finds that several factors counsel against reviewing the

merits of the constitutional question at this time. A recent Second

Circuit case which the Government argues requires rejection of

Ramos Funez’s constitutional is presently before the Supreme Court

on a petition for a writ of certiorari. See Gonzalez-Reyes v.

Whitaker, 757 F. App’x 21, 26 (2d Cir. 2018) (unpublished opn.},

pet. for cert. filed, No. 18-9633 (U.S. May 16, 2019). Given that

the law is in arguably in flux on this issue, the Court concludes

that it is one that should be addressed by the Second Circuit in

the first instance via a petition for review. The Court also notes

that if Ramos Funez files a petition for review with the Circuit,

he is more likely to have representation. This in turn will allow

a more robust development of the issues and arguments than is the

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case here, where Ramos Funez is pro se. Therefore, the Court will

dismiss the constitutional claim regarding former INA § 321 as

unexhausted, but the dismissal will be without prejudice.

B. Claim Two: Denial of Due Process at the Merits Hearing

Petitioner contends that he was denied due process at the

merits hearing because the IJ denied his Motion to Terminate on the

grounds that it was untimely and did not discuss his citizenship

arguments or other grounds for termination of the removal

proceedings. It appears that this claim has been rendered moot by

developments in his immigration case following the filing of his

Petition, namely, the decision of the BIA remanding the record to

the IJ for further administrative proceedings. In particular, the

BIA has directed the IJ to make findings of fact as to why the IJ

found that the Motion to Terminate was untimely. See, e.g.,

Chapdelaine v. Comm’r, U.S. Parole Comm’n, No. 01 CIV.7364 FM, 2002

WL 31115545, at *5 (S.D.N.Y. Sept. 24, 2002) (“If an officer or

agency performs the duty allegedly owed to the petitioner after a

petition for a writ of mandamus has been filed, the petition

becomes moot.”) (citing Barrett v. United States, 105 F.3d 793, 794

(2d Cir. 1996); other citation omitted).

In the alternative, to the extent Ramos Funez is seeking to

have this Court adjudicate the citizenship claim that the IJ

allegedly failed to consider, the Court finds that it lacks subject

matter jurisdiction to do so for the reasons stated previously.

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Therefore, in the alternative, the second claim in the Petition is

dismissed without prejudice.

V. Conclusion

For the foregoing reasons, the Government’s Motion to Dismiss

(Docket No. 9) is granted, and the Petition (Docket No. 1) is

dismissed without prejudice. The Clerk of Court is directed to

close this case.

SO ORDERED.

S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA

United States District Judge

Dated: September 17, 2019

Rochester, New York.

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