Alzokari v. Mayorkas

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

ETAB SHARAF MOHAMED ALZOKARI; KAID

NAGIP ZOKARI; AMAL ALZEWKERI

REDHEWAN; FAYIZ NAGIP ZOKARI,

MEMORANDUM

Plaintiffs,

AND ORDER

Case No. 22-CV-294

-against-

ALEJANDRO MAYORKAS, Secretary of United

States Department of Homeland Security; UNITED

STATES DEPARTMENT OF HOMELAND

SECURITY; UNITED STATES CITIZENSHIP

AND IMMIGRATION SERVICES; UR JADDOU,

Director of United States Citizenship and

Immigration Services; KATHY A. BARAN,

Director, California Service Center, United States

Citizenship and Immigration Services; KIRT

THOMPSON, Director, Texas Service Center,

United States Citizenship and Immigration

Services; UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES LONG ISLAND

FIELD OFFICE; ELIZABETH MILLER, Field

Office Director, Long Island Field Office, United

States Citizenship and Immigration Services;

UNITED STATES DEPARTMENT OF STATE;

NATIONAL ARCHIVES AND RECORDS

ADMINISTRATION; NATIONAL PERSONNEL

RECORDS CENTER,

Defendants.

For the Plaintiffs: For the Defendants:

JULIE A. GOLDBERG CHRISTOPHER D. VOLPE

Goldberg & Associates, P.C. U.S. Attorney’s Office, E.D.N.Y.

5586 Broadway, Third Floor 271 Cadman Plaza East

Bronx, NY 10463 Brooklyn, NY 11201

BLOCK, Senior District Judge:

Plaintiffs Etab Shafaf Mohamed Alzokari (“Etab”), Kaid Nagip Zokari

(“Kaid”), Amal Alzewkeri Redhewan (“Amal”), and Fayiz Nagip Zokari (“Fayiz”)

(collectively, “Plaintiffs”) bring this action against Defendants Alejandro

Mayorkas, Secretary of Department of Homeland Security; U.S. Department of

Homeland Security (“DHS”); U.S. Citizenship and Immigration Services

(“USCIS”); Ur Jaddou, Director of USCIS; Kathy A. Baran, Director, USCIS

California Service Center; Kirt Thompson, Director, USCIS Texas Service Center;

USCIS Long Island Field Office; Elizabeth Miller, Director, USCIS Long Island

Field Office; United States Department of State (“DOS”); National Archives and

Records Administration (“NARA”); and National Personnel Records Center

(collectively, “Defendants”), alleging violations of the U.S. Constitution,

Administrative Procedure Act (“APA”), 5 U.S.C. § 706 et seq., and Immigration

and Nationality Act, 8 U.S.C. § 1503 (“Section 1503”), and seeking declaratory

and injunctive relief. In particular, Plaintiffs ask the Court to declare

unconstitutional Section 1503 of the Immigration and Nationality Act, to vacate

Defendants’ refusal of Plaintiffs’ citizenship applications pursuant to the APA, to

mandate that Defendants fairly adjudicate Plaintiffs’ applications, and to declare

Plaintiffs Kaid and Fayiz citizens.

Defendants move pursuant to Federal Rules of Civil Procedure 12(b)(1) and

(6) to dismiss Plaintiffs’ Amended Complaint for lack of subject matter jurisdiction

over the APA and Section 1503 allegations, and for failing to state constitutional

claims. For the following reasons, Defendants’ motion is GRANTED.

Background

Plaintiffs Kaid and Fayiz are Yemeni nationals and lawful permanent

residents of the United States. They are brothers, and each claim U.S. citizenship

status derived from their now-deceased father Nagip Ayedh Zokari (“Nagip”). Kaid

and Fayiz, who are currently in removal proceedings, have argued that prior to

their births, Nagip became a naturalized citizen by residing in the U.S. for more

than 10 years.

DHS began removal proceedings after Immigrations and Customs

Enforcement (“ICE”) officers arrested both Kaid and Fayiz, on December 6, 2016.

DHS alleged that the brothers were not citizens of the U.S. and had been convicted

of conspiracy to commit food stamp fraud in the Eastern District of New York,1

thus subjecting them to removal.

In March 2017, both Kaid and Fayiz moved to terminate the removal

proceedings, arguing that they were U.S. citizens. On February 12, 2018, an

1 See United States of America v. Fayiz Alzokari, No. 11-CR-258-1 (E.D.N.Y. July 31, 2012);

United States of America v. Kaid Alzokari, No. 11-CR-258-3 (E.D.N.Y. July 31, 2012).

Immigration Judge denied these motions. The brothers each filed an interlocutory

appeal of this decision. On May 16, 2018, the Board of Immigration Appeals

(“BIA”) declined to hear these interlocutory appeals, noting that the brothers each

would have an opportunity to appeal the Immigration Judge’s final determinations.

These removal proceedings are still ongoing.

Also in March 2017, while these proceedings were underway, Kaid and

Fayiz each filed a Form N-600, Application for Citizenship (“Form N-600

Application”). USCIS denied Kaid’s Form N-600 Application in July 2019, and

denied Fayiz’s in September 2019. Each moved for reconsideration. On Dec. 31,

2019, USCIS denied both motions.

On March 23, 2020, Amal filed an I-130 Petition for Alien Relative (“I-130

Petition”) on behalf of her husband, Fayiz. On March 30, 2020, Etab also filed an

I-130 Petition on behalf of her husband, Kaid. USCIS approved Etab’s I-130

Petition on May 31, 2022, and Amal’s on June 1, 2022.

12(b)(1) Motion

Defendants have moved to dismiss Plaintiffs’ claims under the APA and

Section 1503 for lack of subject matter jurisdiction pursuant to Federal Rule of

Civil Procedure 12(b)(1).

In reviewing a 12(b)(1) motion to dismiss, the Court must “draw all

inferences in favor of Plaintiffs, [who] must prove by a preponderance of the

evidence that subject matter jurisdiction exists.” Nouritajer v. Jaddou, 18 F. 4th 85,

88 (2d Cir. 2021). In resolving such a motion “a district court . . . may refer to

evidence outside the pleadings.” Makarova v. United States, 201 F.3d 110, 113 (2d

Cir. 2000) (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d

Cir.1986)).

Section 1503 provides that “no action may be instituted in any case if the

issue of [a] 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). “By 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 v. Farquharson, 450 Fed. App’x 1, 2 (2d Cir. 2011) (summary order); see

also Headley-Ombler v. Holder, 985 F. Supp. 2d 379, 386 (E.D.N.Y. 2013) (“The

plain meaning of 8 U.S.C. § 1503(a) is clear. A[ non-citizen] who has raised a

nationality claim in a past or pending removal proceeding is barred from bringing a

declaratory judgment action under Section 1503(a).”); Ortega v. Holder, 592 F.3d

738, 743 (7th Cir. 2010) (“[T]he exceptions set forth in subsections (a)(2) and

(a)(1) are designed to protect removal proceedings from judicial interference and

preserve 8 U.S.C. § 1252 as the exclusive means of challenging a final order of

removal.”).

There is no question that the citizenship of Kaid and Fayiz is “in issue” in an

ongoing removal proceeding. Each raised the citizenship issue in his respective

removal proceeding, and then each appealed the Immigration Judge’s refusal to

terminate his removal proceeding on that basis. The BIA denied these interlocutory

appeals, noting that each brother “will, if he so desires, have an opportunity for

appellate review of the Immigration Judge’s determinations if he is subject to an

adverse order at the conclusion of the Immigration Court proceedings.” See BIA

Decision on Fayiz’s Interlocutory Appeal, ECF No. 33-5; BIA Decision on Kaid’s

Interlocutory Appeal, ECF No. 33-11. By the plain language of Section 1503, the

Court is thus without jurisdiction concerning Plaintiffs’ claims under that statute.

For largely the same reasons, the Court lacks jurisdiction over Plaintiffs’

APA claims. Review under the APA is not available “to the extent that . . . statutes

preclude judicial review.” 5 U.S.C. § 701. Plaintiffs argue the Court nevertheless

may hear their APA claims because Section 1503(a) does not so preclude judicial

review. As explained above, this is not so. The plain language of Section 1503 does

expressly prohibit Plaintiffs from bringing an action in the present circumstances,

where “status as a national . . . is in issue in [a] removal proceeding.” 8 U.S.C. §

1503. The APA cannot provide a jurisdictional hook where the underlying statute

precludes review. See, e.g., Dussard v. United States, No. 13-CV-4378, 2014 WL

1570212, at *2–3 (S.D.N.Y. Apr. 17, 2014) (citing Ortega, 592 F.3d at 743)

(finding judicial review under the APA unavailable due to Section 1503’s

jurisdictional exceptions).

Additionally, the APA limits judicial review to circumstances in which

“there is no other adequate remedy in a court.” 5 U.S.C. § 704. Here, there are

alternative remedies for Plaintiffs to obtain review of USCIS’s denial of the Form

N-600 Applications that Kaid and Fayiz made during the pendency of their

removal proceedings. For instance, Kaid and Fayiz may appeal the final denial of a

derivative citizenship defense in a removal proceeding to a circuit court. See 8

U.S.C. § 1252(b); see also Mata v. Lynch, 576 U.S. 143, 147 (2015) (noting that an

unfavorable BIA decision may be appealed to a circuit court, as “[t]he INA . . .

gives the courts of appeal jurisdiction to review ‘final order[s] of removal’”

(quoting 8 U.S.C. 1252(a)(1))). At that point the circuit court may itself decide the

nationality claim if there are no genuine issues of material fact in dispute, or, if

there are, transfer the proceeding to a U.S. district court “for a new hearing and a

decision on that claim[.]” 8 U.S.C. § 1252(b)(5)(A)–(B).

Thus, the Court is without jurisdiction over Plaintiffs’ claims under Section

1503 and the APA.

12(b)(6) Motion

The Plaintiffs have also made constitutional claims, alleging violations of

procedural due process under the Fifth Amendment, the right to petition under the

First Amendment, and separation of powers. Defendants have moved to dismiss

these allegations for failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6).

On a Rule 12(b)(6) motion, the Court assumes the complaint’s factual

allegations, but not legal conclusions, to be true. See Pension Ben. Guar. Corp. ex

rel. St. Vincent Cath. Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc.,

712 F.3d 705, 717 (2d Cir. 2013). To survive, the complaint must include sufficient

facts to state a claim to relief that is facially plausible, see Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007), i.e., the plaintiff must plead “factual content

that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The

Court may also consider any documents attached to the Complaint, see Carlin v.

Davidson Fink LLP, 852 F.3d 207, 212 (2d Cir. 2017), and materials of which

judicial notice may be taken, see Samuels v. Air Transp. Loc. 504, 992 F.2d 12, 15

(2d Cir. 1993).

Fifth Amendment Claim

The crux of Plaintiffs’ Fifth Amendment claim is that Defendants have

subjected Kaid and Fayiz to a hearing before “illegitimate” decisionmakers—the

Immigration Judge and BIA—that lack authority to decide their citizenship claims.

Plaintiffs complain of a due process violation in that they “are required by

[Section] 1503(a) [to] proceed through the entire removal proceedings process

before they can present their citizenship claim to a court with the authority to hear

their claims.” Am. Comp. ¶ 152, ECF No. 20.

“To establish a violation of due process, a[ non-citizen] must show that she

was denied a full and fair opportunity to present her claims or that the IJ or BIA

otherwise deprived her of fundamental fairness.” Burger v. Gonzales, 498 F.3d 131,

134 (2d Cir. 2007) (internal quotations omitted). The Plaintiffs’ allegations recount

the repeated opportunities Kaid and Fayiz have had to be heard on the issue of their

citizenship before both the Immigration Judge and BIA. See, e.g., Am. Comp. ¶¶

97–100. Plaintiffs will also have the chance to further appeal a final determination

of the Immigration Judge and BIA in the removal proceeding to the Second

Circuit. See 8 U.S.C. § 1252(b)(5)(A)–(B). That the Plaintiffs must complete an

administrative proceeding before obtaining judicial review does not render the

administrative decisionmakers illegitimate or the process unconstitutional. See

United States v. Johnson, 391 F.3d 67, 73 (2d Cir. 2004) (rejecting constitutional

challenge to INA provisions and explaining the administrative “exhaustion

requirement does not, after all, foreclose or even limit judicial review; the statute

merely requires a[ non-citizen] to pursue his due process objections through the

administrative process before seeking judicial review”).

Plaintiffs have also alleged a procedural due process violation arising from

the Defendants’ failure to produce full copies of all administrative files, and to

instead require them to seek certain records via the Freedom of Information Act.

Plaintiffs assert that “Defendants[’] requirement that Plaintiffs and all Respondents

in removal proceedings file FOIA requests in order to obtain records normally

obtained through civil discovery greatly prejudices Respondents and greatly

heightens the possibility for mistakes in the proceedings.” Am. Comp. ¶ 151.

However, this fails to state a claim, as procedural due process requires notice and

opportunity to be heard, but does not require Plaintiffs be afforded the full breadth

of civil discovery. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (explaining

there is no general constitutional right to discovery); see also Young v. Holder, 462

Fed. App’x 626, 628 (7th Cir. 2012) (noting “the Constitution does not create an

entitlement to discovery” in removal context).

First Amendment Claim

The Plaintiffs next allege that Section 1503 unconstitutionally impinges their

First Amendment right to petition the government by requiring them “to present

their ‘claim’ ‘against the United States’ to the executive department rather than the

judiciary[.]” Am. Comp. ¶ 175. Plaintiffs’ contentions on this score largely repeat

the allegations purporting to support their Fifth Amendment claim objecting to the

statutory requirement that Plaintiffs proceed before the Immigration Judge and BIA

before they may obtain judicial review. See Am. Comp. ¶¶ 172–77.

A person’s First Amendment petitioning right is violated “where government

officials obstruct legitimate efforts to seek judicial redress.” Friedman v.

Bloomberg, L.P., 884 F.3d 83, 90 (2d Cir. 2017). Plaintiffs have not alleged that the

Defendants have engaged in such obstruction. The Amended Complaint itself

recounts Plaintiffs’ active pursuit of redress in proceedings before the Immigration

Judge and BIA, whose decisions are appealable to the judiciary. See Am. Comp. ¶

152. Plaintiffs’ inability to immediately bring a cause of action to the district court

while removal proceedings are pending under Section 1503 on account of its

jurisdictional limitations does not suffice to make out a violation of their right to

petition. See City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 397 (2d Cir.

2008) (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002) (“The right to

petition exists in the presence of an underlying cause of action and is not violated

by a statute that . . . curtails a category of causes of action.”).

Separation of Powers Claim

Plaintiffs finally allege that by requiring Plaintiffs to present their claims

“before [an] agency rather than the judiciary, Section 1503 violates the separation

of powers by subverting judicial authority and power.” Am Comp. ¶ 183. Plaintiffs

argue that Section 1503 has stripped the judiciary of its role of policing executive

action by requiring parties to have citizenship claims initially determined by

executive agencies.

This is not sufficient to a state a claim that Section 1503 violates separation

of powers principles. First, as the Amended Complaint makes clear, what Plaintiffs

call an impermissible delegation of judicial authority to the executive branch is an

ordinary administrative exhaustion requirement. A statutory requirement that a

party exhaust administrative channels before seeking judicial review is not only

permitted by separation of powers principles but may in fact promote them. See

City of New York v. Slater, 145 F.3d 568, 570 (2d Cir. 1998) (per curiam) (“In

general, a party is required to exhaust its administrative remedies before seeking

judicial review of an agency decision, ‘in part because of concerns for separation

of powers (i.e., the need to limit judicial interference in the agency process) and the

need to conserve judicial resources.’” (quoting Pavano v. Shalala, 95 F.3d 147, 150

(2d Cir. 1996))).

Additionally, jurisdiction-stripping provisions of the sort contained in

Section 1503 are plainly permissible and do not violate separations of powers

principles. “[W]hen Congress strips federal courts of jurisdiction, it exercises a

valid legislative power no less than when it lays taxes, coins money, declares war,

or invokes any other power that the Constitution grants it.” See Patchak v. Zinkek

583 U.S. 244, 252–53 (2018); see also Cary v. Curtis, 44 U.S. 236, 245 (1845)

(explaining that to deny Congress’s power to both create and limit federal

jurisdiction would itself undermine separation of powers by “elevat[ing] the

judicial over the legislative”). It was thus permissible for Congress to choose, as it

did, to oust the Court of jurisdiction over Plaintiffs’ citizenship claims while they

are at issue in a removal proceeding. See 8 U.S.C. § 1503(a).

Conclusion

For the foregoing reasons, the Defendants’ motion to dismiss the Plaintiffs’

claims is granted.

SO ORDERED.

_/S/ Frederic Block___________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

November 26, 2024