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Dessouki v. Kelly

United States District Court, E.D. Pennsylvania

May 9, 2018

ADEL DESSOUKI, A 029 635 695
v.
JOHN F. KELLY, Secretary, U.S. Department of Homeland Security, JEFFREY SESSIONS, U.S. Attorney General, JAMES MCCARMENT, Acting Director, United States Citizenship and Immigration Services and JOHN CARRINGTOHN, Acting District Director, United States Citizenship and Immigration Services Philadelphia District Office

          MEMORANDUM OPINION

          SAVAGE, J.

         After he was indicted for illegal reentry after deportation, Adel Dessouki filed this action under 8 U.S.C. § 1503(a) seeking a declaration that he derived United States citizenship from his father who is a naturalized citizen. Moving to dismiss for lack of subject matter jurisdiction, the defendants contend that the statute prohibits the district court from determining Dessouki's citizenship because he raised citizenship as a defense during removal proceedings.

         Because Dessouki's claim of citizenship arose out of and was an issue in removal proceedings, he may not bring an action in district court to declare him a United States national under § 1503(a). Therefore, we shall grant the motion to dismiss for lack of jurisdiction.

         Background

         Adel Dessouki, a French citizen, came to the United States with his mother on a nonimmigrant visitor's visa in 1983.[1] Although he applied, he never became a lawful permanent resident.

         In 1986, Dessouki's mother became a lawful permanent resident based on her marriage to a United States citizen.[2] Two years later in 1988, his mother filed a petition for an alien relative (I-130) on his behalf.[3] On July 31, 1989, Dessouki was “granted indefinite parole into the United States for humanitarian reasons.”[4] The I-130 petition was approved on August 9, 1989.[5] Just days before the I-130 petition approval, Dessouki had returned to France, but was “paroled back into the United States on September 27, 1989, to pursue adjustment of [his] status.”[6]

         In May 1990, Dessouki filed an application to register for permanent residence or adjust his status (I-485) pursuant to his mother's approved I-130 petition.[7] The United States contends that he withdrew the I-485 application in July 1990, acknowledging that he was not eligible for adjustment.[8] According to Dessouki, the United States Immigration and Naturalization Service (INS) failed to adjudicate it.[9] In any event, he did not receive lawful permanent resident status.

         Dessouki and his father left the United States in 1994 but he “was paroled for the purpose[] of seeking adjustment of status.”[10] In February 1994, his father filed another I-130 application on his behalf. Although his father's I-130 petition was approved in June 1994, Dessouki's related I-485 application seeking lawful permanent residence was rejected, due to an improper filing fee.[11] His father became a citizen in 1998. Although Dessouki remained in the United States under his indefinite parolee status, he never became a lawful permanent resident.[12]

         On December 15, 2006, while he was serving a state prison sentence in Pennsylvania on a drug trafficking conviction, the Department of Homeland Security (DHS) opened removal proceedings against him. Two and a half months later, on February 27, 2007, Dessouki filed an application for a certificate of citizenship (N-600) with United States Citizenship and Immigration Services (USCIS) to prevent his removal.[13] In his N-600 application, he alleged for the first time that he derived citizenship when his father naturalized as a citizen in 1998. USCIS denied his N-600 application in June 2007.[14] One month later in July 2007, Dessouki appealed the denial to the Administrative Appeals Office (AAO).[15] The AAO, which for some inexplicable reason did not receive the appeal until 2016, upheld the denial on February 1, 2017.[16]

         In the meantime, in 2008, Dessouki filed a motion to terminate removal proceedings, claiming he met the statutory requirements for derivative citizenship. The immigration judge granted his motion, finding that the government had failed to prove alienage.[17] Because DHS did not appeal the decision, Dessouki was released from custody in May 2008.

         Two years later, on April 20 2010, DHS moved to reopen the removal proceedings pursuant to a change in applicable law.[18] Dessouki did not respond to the motion. Instead, he filed a second N-600 application claiming derivative citizenship on April 28, 2010.[19] On May 20, 2010, removal proceedings were reinstated as unopposed.[20] Then in July 2011, his second N-600 application was denied.[21] On October 11, 2011, Dessouki moved to terminate the removal proceedings, arguing that res judicata precluded further proceedings and that he qualified as a derivative citizen.[22]The immigration judge denied his motion in January 2013, explaining that Dessouki “failed to demonstrate his eligibility to derive citizenship through the naturalization of his father.”[23]

         On April 4, 2014, Dessouki was apprehended by DHS and ordered removed from the United States.[24] He did not appeal the removal order and was removed on March 6, 2015.[25] Sometime later, he returned to the United States. On October 13, 2016, he was charged with illegal reentry after deportation. His criminal case has been stayed pending disposition of this case.

         The second immigration judge agreed with DHS and denied Dessouki's motion to terminate removal proceedings because he failed to meet the statutory requirement for derivative citizenship under former 8 U.S.C. § 1432. See Compl., Ex. Q, Denial of Mot. to Terminate Removal Proceedings, Jan. 31, 2013 (Doc. No. 4-17).

         The Nwozuzu decision has since been reversed. Nwozuzu v. Holder, 726 F.3d 323 (2d Cir. 2013). While this may impact Dessouki's current Third Circuit appeal from the BIA upholding his removal, our analysis of whether § 1503(a) bars district court review remains unaffected.

         In January 2017, Dessouki filed a motion to reopen his removal proceedings which was denied.[26] On February 1, 2017, the AAO upheld the denial of his first N-600 application and simultaneously noted that Dessouki “did not appeal the denial” of his second N-600 application.[27] In this action, Dessouki seeks a declaration that he is a U.S. citizen.

         Standard of Review

         In their Rule 12(b)(1) motion, the defendants make a facial challenge to subject matter jurisdiction. They do not dispute the allegations in the complaint. They argue that the allegations demonstrate that Dessouki raised citizenship as a defense during removal proceedings, thus precluding district court review under 8 U.S.C. § 1503(a).

         Because the issue before us is a legal question, we consider only the allegations in the complaint and the attached documents. Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014) (citation omitted). We accept the allegations as true and construe them in the light most favorable to the plaintiff to determine if he has sufficiently alleged a basis for subject matter jurisdiction. See Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citations omitted); see also U.S. ex rel. Atkinson v. PA. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007).

         Analysis

         A person may assert citizenship by operation of law in one of two ways. He can claim citizenship as a defense in removal proceedings or he can file an application for citizenship (form N-600) with USCIS under 8 U.S.C. § ...


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