United States District Court, E.D. Pennsylvania
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
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.
Dessouki, a French citizen, came to the United States with
his mother on a nonimmigrant visitor's visa in
1983. Although he applied, he never became a
lawful permanent resident.
1986, Dessouki's mother became a lawful permanent
resident based on her marriage to a United States
citizen. Two years later in 1988, his mother filed
a petition for an alien relative (I-130) on his
behalf. On July 31, 1989, Dessouki was
“granted indefinite parole into the United States for
humanitarian reasons.” The I-130 petition was approved
on August 9, 1989. 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]
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. The United States contends
that he withdrew the I-485 application in July 1990,
acknowledging that he was not eligible for
adjustment. According to Dessouki, the United States
Immigration and Naturalization Service (INS) failed to
adjudicate it. In any event, he did not receive lawful
permanent resident status.
and his father left the United States in 1994 but he
“was paroled for the purpose of seeking adjustment of
status.” 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. 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
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. 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. One month later in July 2007,
Dessouki appealed the denial to the Administrative Appeals
Office (AAO). The AAO, which for some inexplicable
reason did not receive the appeal until 2016, upheld the
denial on February 1, 2017.
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. Because DHS did not appeal the
decision, Dessouki was released from custody in May 2008.
years later, on April 20 2010, DHS moved to reopen the
removal proceedings pursuant to a change in applicable
law. Dessouki did not respond to the motion.
Instead, he filed a second N-600 application claiming
derivative citizenship on April 28, 2010. On May 20,
2010, removal proceedings were reinstated as
unopposed. Then in July 2011, his second N-600
application was denied. 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.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
April 4, 2014, Dessouki was apprehended by DHS and ordered
removed from the United States. He did not appeal the
removal order and was removed on March 6, 2015. 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
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).
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
January 2017, Dessouki filed a motion to reopen his removal
proceedings which was denied. 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. In this
action, Dessouki seeks a declaration that he is a U.S.
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).
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).
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. § ...