The opinion of the court was delivered by: William W. Caldwell United States District Judge
The pro se petitioner, Phuc Huu Nguyen, filed this action as a petition for a writ of habeas corpus and as a complaint for declaratory relief authorized by 8 U.S.C. § 1503(a). Petitioner has also filed a motion for a writ of mandamus.
Petitioner, a permanent resident alien, is a citizen of Vietnam who came to the United States in 1975 when he was about one year old. He is under a final order of removal to his native country for having committed aggravated felonies, and he has filed all three forms of relief seeking to establish that he is a citizen of the United States. In his traverse, he asserts that he is at least a national of the United States.
The magistrate judge has filed a report stating that Petitioner is not a citizen or a national, and that he has no claim to being a citizen. He therefore recommends that Petitioner's claims for relief should either be dismissed or denied.
We are considering objections to the report made by both Petitioner and Respondents. Petitioner objects that the government should be estopped from denying he is a citizen because of its affirmative misconduct in not ruling on his father's 1984 application for Petitioner's derivative citizenship. The Respondents object to the magistrate judge's assertion of subject-matter jurisdiction over the declaratory judgment action, but otherwise agrees with the magistrate judge's analysis on the merits.
After review of the file, the court concludes as follows. First, we lack jurisdiction under 8 U.S.C. § 1503(a) over the declaratory judgment action because of an exception in section 1503(a)(1) barring jurisdiction of such actions when the issue of citizenship arose "by reason of" removal proceedings. Second, we lack jurisdiction under section 2241 because while Petitioner carefully avoids a specific request that we vacate his removal order, he is essentially seeking such relief, and we lack jurisdiction to entertain section 2241 petitions that challenge removal orders. Third, because Petitioner's claim to citizenship lacks merit in any event, we will deny the claim for mandamus relief. Finally, Petitioner is not a national of the United States.
The magistrate judge's report sets forth the factual background of this case. We repeat such facts as are necessary to our discussion.
A. The Court Lacks Jurisdiction Under 8 U.S.C. § 1503(a)
Over Petitioner's Citizenship Claim Because the Claim Arose by Reason of His Removal Proceedings Invoking our jurisdiction under 8 U.S.C. § 1503(a), Plaintiff seeks a declaratory judgment that he is a citizen of the United States derivatively from his father, who was naturalized in 1984. Section 1503(a) confers jurisdiction on the federal district courts to entertain declaratory judgment actions that a person is a national (or citizen) of the United States. There are two exceptions to jurisdiction, one in subsection 1503(a)(1) and the other in subsection 1503(a)(2). We deal here with subsection 1503(a)(1). In pertinent part, section 1503(a) provides as follows:
(a) Proceedings for declaration of United States nationality
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 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 ...