The opinion of the court was delivered by: Chief Judge Kane
Before the Court is Petitioner Dardar Paye's "Amended Petition for Determination of Citizenship by Derivation; to Adjudicate a Naturalization Application, and for Determination of Non Citizen National Status." (Doc. No. 25.) Respondents have filed two separate motions to dismiss. (Doc. Nos. 26, 42.) Both motions seek dismissal of the petition for want of subject matter jurisdiction. For the reasons that follow, the Court will grant the motions.
Petitioner Dardar Paye was born in Liberia on January 7, 1978. (Doc. No. 25 ¶ 10.) He lawfully entered the United States with his mother on July 6, 1991, at the age of thirteen. (Id. ¶ 10.) Paye's mother became a naturalized United States citizen on October 25, 1994. (Id. ¶ 12.) In 1995, when Paye was seventeen, his mother submitted an I-130 alien relative petition and an I-485 application for lawful permanent residence on Paye's behalf. (Id. ¶¶ 12, 14.) Though the I- 485 petition was granted on March 15, 1996, Paye was over the age of eighteen by that time, which prevented him from becoming a citizen through derivation. (Id.¶¶ 17, 19.)
Paye enlisted in the United States Army on May 21, 1998. (Id. ¶ 25(a).) Paye served honorably, including two overseas deployments, received multiple service medals, and was honorably discharged. (Id. ¶¶ 27-29.) Following his service in the United States Army, Paye joined the New Jersey National Guard and Army Reserves, from which he was also honorably discharged on October 11, 2002. (Id. ¶ 29.) Paye was never informed of his right under Immigration and Naturalization Act ("INA") § 328 to naturalize within six months of completion of his service in the army. (Id. ¶ 30.)
On August 27, 2004, Paye was convicted and sentenced in federal court to 41 months imprisonment for using false records in a gun transaction, unlicensed dealing in firearms, and traveling for the purpose of unlicensed dealing in firearms. (Doc. No. 30 ¶¶ 3-4.) In 2005, Paye was sentenced to three years imprisonment in New Jersey state court for possession of marijuana with intent to distribute within 500 feet of a public park. (Id. ¶¶ 5-6.)
On October 6, 2005, the United States Citizenship and Immigration Services ("USCIS") issued a Notice to Appear, placing Paye in removal proceedings. (Id. ¶ 8.) During his removal proceedings, in May 2008, Paye filed an N-400 application for naturalization, but Paye's application was denied on December 8, 2008, due to his past criminal convictions. (Doc. No. 25 ¶¶ 31-32.) On June 12, 2008, also during the removal proceedings, Paye filed an N-600 application for citizenship with the USCIS, but the petition was denied on September 10, 2008. Paye appealed the decision, but the decision was affirmed on March 18, 2009. (Id. ¶¶ 20-22.)
Paye appealed the USCIS decisions to the Third Circuit Court of Appeals; however, the briefing schedule in that matter has been stayed pending resolution of this action. (Doc. No. 30 ¶ 63.)
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a complaint for lack of jurisdiction over the subject matter. Motions brought under Rule 12(b)(1) may present either a facial or factual challenge to the Court's subject matter jurisdiction. In reviewing a facial challenge under Rule 12(b)(1), the standards relevant to Rule 12(b)(6) apply. In this regard, the Court must accept all factual allegations in the complaint as true, and the Court may only consider the complaint and documents referenced in or attached to the complaint. Gould Elec. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). In reviewing a factual challenge to the Court's subject matter jurisdiction, the Court is not confined to the allegations of the complaint, and the presumption of truthfulness does not attach to the allegations in the complaint. Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Instead, the Court may consider evidence outside the pleadings, including affidavits, depositions and testimony, to resolve any factual issues bearing on jurisdiction. Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997). Once the Court's subject matter jurisdiction over a complaint is challenged, Plaintiff bears the burden of proving that jurisdiction exists. Mortensen, 549 F.2d at 891.
Paye argues that the Court should find that he is a naturalized citizen for one of three reasons: 1) though he was eligible for and filed for lawful permanent resident status prior to his eighteenth birthday, the Immigration and Nationality Service ("INS")*fn1 did not grant the application until after Paye obtained the age of majority, preventing him from obtaining derivative citizenship through his mother; 2) he is entitled to citizenship pursuant to INA § 328 because he honorably served in the army and was never told that he must file for citizenship within six months of discharge; and 3) he served overseas in the army, pledging allegiance to the United States and thus became a national. Respondents Napolitano, Aytes, Monica, and Klapakis argue that the Court does not have jurisdiction to determine Paye's citizenship claims and must dismiss the case. Alternatively, Respondents argue that summary judgment on the citizenship should be granted in their favor because Paye is not entitled to citizenship even upon consideration of the above arguments. Respondents Gates and Shinseki filed a separate motion to dismiss for lack of subject matter jurisdiction. For the reasons that follow, the Court agrees with Respondents that it lacks subject matter jurisdiction to consider Paye's claims.
A. Jurisdiction Under 8 U.S.C. § 1503(a)
Respondents first argue that the Court lacks jurisdiction over the petition because Paye initially brought his claim for citizenship during removal proceedings. In support of this argument, Respondents point to 8 U.S.C. § 1503(a), though Paye does not mention this statute as a basis for jurisdiction in his petition. Section 1503(a) allows a petitioner to seek a judicial ...