Case 5:06-cv-01011-OLG Document 5-1 Filed 01/22/2007 Page 1 of 10

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

THEODOROS GEORGE DIMOPOULOS §

§
Plaintiff §
§
v. § CASE NO. SA-06-CA-1011-OG
§
ALBERT WILEY BLAKEWAY, ACTING §
DISTRICT DIRECTOR FOR THE CITIZENSHIP §
AND IMMIGRATION SERVICES, UNITED §
STATES CITIZENSHIP AND IMMIGRATION §
SERVICES, EMILIO T. GONZALES, DIRECTOR,§
U.S. CITIZENSHIP AND IMMIGRATION §
SERVICES THE DEPARTMENT OF §
HOMELAND SECURITY, MICHAEL §
CHERTOFF, SECRETARY OF THE §
DEPARTMENT OF HOMELAND SECURITY, §
AND ALBERTO GONZALES, ATTORNEY §
GENERAL OF THE UNITED STATES §
§
Defendants §

MOTION TO DISMISS COMPLAINT ON NATURALIZATION APPLICATION

TO THE HONORABLE ORLANDO GARCIA, UNITED STATES DISTRICT JUDGE:

NOW COMES Albert Wiley Blakeway, Acting District Director for the Citizenship and

Immigration Services; United States Citizenship and Immigration Services, the Department of

Homeland Security, Michael Chertoff, Secretary of the Department of Homeland Security, and

Alberto Gonzales, Attorney General; and Emilio T. Gonzales, Director, U.S. Citizenship and

Immigration Services (USCIS), Respondents herein, by and through Johnny Sutton, the Untied States

Attorney for the Western District of Texas, and the undersigned Assistant United States Attorney,

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and move this Court to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject

mater jurisdiction and 12 b(6) for failure to state a claim upon which relief can be granted. In

support of this motion, Respondent would state to the Court as follows:

I. BACKGROUND

Theodoros Dimopoulos, Plaintiff, has asked this Court to evaluate his naturalization

application and order his naturalization pursuant to 8 U.S.C. § 1447(b) because Respondents have

not acted within 120 days since Plaintiff’s examination. Petitioner, at all times prior to his

naturalization, has the burden to show eligibility for citizenship. In this Complaint, Plaintiff has filed

suit in the wrong district, the issues are now moot, and an application for citizenship cannot be

adjudicated when Plaintiff is in removal proceedings. Therefore, this court does not have

jurisdiction to hear Plaintiff’s Complaint.

II. STATEMENT OF FACTS

The Petitioner’s naturalization application (Form N-400) was filed on August 2, 2004. (Exh

1). The Petitioner was examined by USCIS on November 19, 2004, and May 2, 2005, (Exh 1). The

application was denied on November 30, 2006. (Exh 1). On December 5, 2006, Plaintiff appealed

the decision denying his application. (Exh 2). On May 2, 2005, Plaintiff was placed in removal

proceedings. (Complaint, para. 42). Plaintiff remains in removal proceedings, (Complaint, para 46).

Plaintiff is an aggravated felon. (Complaint, para. 45).

III. ARGUMENT

A. Summary of Law - Standards

The Federal Rules of Civil Procedure provide that “[w]henever it appears by suggestion of

the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss

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the action.” Fed. R. Civ. P. 12(h)(3) . The Plaintiff bears the burden of establishing subject matter

jurisdiction. Fed. R. Civ. P. 8(a); see Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994) (party

invoking jurisdiction bears burden of producing necessary facts to establish subject matter

jurisdiction); Richmond, Fredericksburg & Potomac R. Co. v. U.S., 945 F.2d 765, 769 (4th Cir.

1991); Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir. 1977).

As the Supreme Court has recognized, “[t]he responsibility for regulating the relationship

between the United States and our alien visitors has been committed to the political branches of the

Federal Government. Over no conceivable subject is the legislative power of Congress more

complete.” Reno v. Flores, 507 U.S. 292, 305 (1993) (citations and internal quotation marks

omitted); accord Landon v. Plasencia, 459 U.S. 21, 34 (1982) (“The power to regulate immigration

– an attribute of sovereignty essential to the preservation of any nation – has been entrusted by the

Constitution to the political branches.”). Thus, the Supreme Court has repeatedly instructed that

judicial review in immigration matters is narrowly circumscribed. See I.N.S. v. Aguirre-Aguirre, 526

U.S. 415, 425 (1999) (“judicial deference to the Executive Branch is especially appropriate in the

immigration context”); Miller v. Albright, 523 U.S. 420, 434 n.11 (1998) (same); Fiallo v. Bell, 430

U.S. 787, 792 (1977) (same). Specifically, the Court has stated:

Enforcing the immigration laws, and the conditions for residency in this country, is
becoming more difficult. . . . Moreover, the INS is the agency primarily charged by
Congress to implement the public policy underlying these laws. . . . Appropriate
deference must be accorded its decisions.

I.N.S. v. Miranda, 459 U.S. 14, 19 (1982) (citations omitted).

The Administrative Procedures Act (APA) contains a limited waiver of the government’s

sovereign immunity with respect to the review of agency actions. 5 U.S.C. § 702. It is limited in

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nature, as “[a]gency action made reviewable by statute and final agency action for which there is no

other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. In this instance,

plaintiff alleges subject matter jurisdiction both the APA and under 28 U.S.C. § 1331, alleging that

the district court has jurisdiction as a civil action arising under the Constitution and laws of the

United States, to override any jurisdictional limitations of the Immigration and Nationality Act

(INA). Plaintiffs assert that jurisdiction is appropriate under the APA. However, the APA is not to

be interpreted as an implied grant of subject matter jurisdiction to review agency decisions. Califano

v. Sanders, 430 U.S. 99, 107 (1977).

A motion to dismiss should be granted if “it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle him to relief”. See Conley v. Gibson, 355

U.S. 41, 45-46 (1957); Kaiser Aluminum, etc. v. Avondale Shipyards, Inc. 677 F.2d 1045, 1050 (5th

Cir., 1982), cert. denied, 459 U.S. 1105 (1982) (quoted in Capital Parks, Inc. v. Southeastern

Advertising & Sales Sys., Inc., 864 F. Supp. 14, 15 (W.D. Tex. 1993); affirmed, 30 F.3d 627 (5th Cir.

1994)). A court should no grant a motion to dismiss “unless it appears beyond doubt that the

plaintiff can prove o set of facts in support of his claim which would entitle him to relief.” Kaiser

677 F.2d at 1050. Nonetheless, to withstand a motion to dismiss, it is axiomatic that the complaint

must allege facts sufficiently setting forth the essential elements of a cause of action. A motion to

dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide

the merits of the case. Millburn v. United States, 734 F.2d 762 765 (11th Cir. 1984). On a motion

to dismiss, the Court must construe the complaint in the light most favorable to the plaintiff and

accept the factual allegations as true. Fernandez-Montez v. Allied Pilots Assoc., 987 F.2d 278, 284

(5th Cir. 1993). See Capital Parks, Inc. 30 F.3d at 629 (“A court’s decision to dismiss for failure to

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state a claim may be upheld ‘only if it appears that no relief could be granted under any set of facts

that could be proven consistent with the allegations.’ Baton Rouge Bldg. & Constr. Trades Council

AFL-CIO v. Jacobs Constructors, Inc., 804 F.2d 879, 881 (5th Cir. 1986).”) See also O’Quinn v.

Manuel, 773 F.2d 605, 608 (5th Cir. 1985).

The United States Supreme Court has elaborated:

Nothing in Rule 12 (b)(6) confines its sweep to claims of law which are
obviously insupportable. On the contrary, if as a matter of law “it is
clear that no relief could be proved consistent with the allegations,” a
claim must be dismissed, without regard to whether it is based on an
outlandish legal theory or on a close by ultimately unavailing one.
Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 2232 (1989)
(quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229,
2232 (1984)).

Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice

to prevent a motion to dismiss. Jefferson v. Lead Indus. Ass’n., Inc., 106 F.3d 1245, 1250 (5th Cir.

1997); Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994); Fernandez-

Montes, 987 F.2d at 284. This is a rigorous standard, but subsumed within it is the requirement that

a plaintiff state his case with enough clarity to enable the court and the opposing party to determine

whether a claim is alleged. Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989).

B. This Court Does Not Have Jurisdiction to Hear this Petition.

Plaintiff has stated the Court has jurisdiction to hear the Complaint based on 8 U.S.C. § 1447(b)

(Section 336(b) of the Immigration and Nationality Act “INA”). (Complaint para 7). 8 U.S.C. §

1447(b) creates a right of action where the agency has not made a determination within 120 days after

the date of the examination on the Form N-400. Under § 1447 (b) Plaintiff is limited to applying to

the United States district court in the district where applicant resides for a hearing on the matter. 8

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U.S.C. § 1447 (b). Only such court has jurisdiction over the matter. 8 U.S.C. § 1447(b). Plaintiff

resides in Corpus Christi, Texas. (Exh. 1.) No authority is given to file where defendants may reside.

Therefore this Complaint must be filed in the Southern District of Texas.

This matter is now moot. Plaintiff’s complaint states that Defendants have refused to adjudicate

his application for naturalization and asks this court to naturalize him under 8 U.S.C. § 1447 (b). On

November 30, 2006 Respondents denied Plaintiff’s naturalization application. In a naturalization

proceeding, “it has been universally accepted that the burden is on the alien applicant” by a

preponderance of the evidence “to show his eligibility for citizenship in every respect,” including

establishing good moral character. Berenyi v. District Director, 385 U.S. 630, 637 (1967); see also

Lee v. U.S. 480 F.2d 673, 676 (2d Cir. 1973). “No alien has the slightest right to naturalization unless

all statutory requirements are complied with.” U.S. v. Ginsberg, 243 U.S. 472, 475 (1917). Thus, in

reviewing an application for naturalization, there must be strict compliance with all of the

congressionally imposed prerequisites before an applicant may acquire citizenship. Federenko v. U.S.,

449 U.S. 490, 506 (1981). In scrutinizing compliance with the statutory prerequisites, any doubts that

may exist are resolved in favor of the United States and against the applicant. Berenyi, 385 U.S. at

637; U.S. v. Manzi, 276 U.S. 463, 467 (1928). “ The Government has a strong and legitimate interest

in ensuring that only qualified persons are granted citizenship.” Berenyi, at 637.

The United States Supreme Court has held that citizenship has been given to the federal courts “as

a specific function to be performed in strict compliance with the terms of an authorizing statute . . .”

See United States v. Pangilinan, 486 U.S. 875, 884 (1988). The Supreme Court further stated that

“‘(o)nce it has been determined that a person does not qualify for citizenship, ... the district court has

no discretion to ignore the defect and grant citizenship,’” Id., quoting Fedorenko v. United States,

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supra, at 517. In addition, the Supreme Court has held that while a district court has the power to

control procedural matters and cure formal defects, it cannot enlarge upon its powers by supplying

facts and curing an alien’s failure to provide required documentation by “embodying” a fiction in the

proceedings to suggest that the naturalization petition was properly filed. See Maney v. United States,

278 U.S. 17, 23 (1928).

Under Article III, 5 2, of the Constitution, federal courts may adjudicate only “actual, ongoing

cases or controversies”. Deakins v. Monaghan, 484 U.S. 193, 199 (1 988); Iron Arrow Honor Society

v. Heckler, 464 U.S. 67, 72 (1 983); Aetna Life Insurance Co. Of Hartford, Co v. Haworth, 300 U.S.

227, 57 S.Ct. 461 (1937); Alwan v. Ashcroft, 388 F.3d 507, 5 1 (5th Cir. 2004); Saliman v. U.S. 296

F.3d 1237, 1242 (11th Cir. 2002); Arizonans for Official English v. Arizona, 520 U.S. 43, 1117 S.Ct.

1055, 137 L.Ed 2d 170 (1997). The Supreme Court held that for a case or controversy to be

“justiciable” under the Constitution, it must be “extant at all stages of review, not merely at the time

the complaint is filed.” 520 U.S. at 67117 S.Ct at p. 1068, citing Preiser v. Newkirk, 422 U.S. 395,

401, 95 S.Ct. 1330, 1334, 45 L.Ed 2d 272 (1975). The Court of Appeals has held that “[i]f events that

occur subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to give the

plaintiff or appellant meaningful relief, then the case is moot and must be dismissed.” Al Najjar v.

Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001); U.S. v. Alaska, 253 U.S. 113, 40 S.Ct. 448 (1920).

The existence of a live controversy at all stages of litigation, not merely when the complaint is filed,

is necessary for a federal court to exercise its power. Steel v. Thompson, 415 U.S. 452, 459 n. 10

(1974); Sannon v. U.S., 631 F.2d 1247 (5th Cir. 1980). When the question of mootness arises, the

court must resolve it before it can assume jurisdiction. North Carolina v. Rice, 404 U.S. 244, 246

(1971). Since a decision has been made by the agency the matter is moot.

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Plaintiff has other administrative remedies. 8 U.S.C. 1447 (a). Plaintiff has filed an appeal of the

decision to deny his application (Exh. 2). Plaintiff must exhaust his administrative remedies before

a federal court has jurisdiction to hear the matter. Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir. 2000).

(As a matter of jurisdiction, courts may not review the administrative decisions of the INS unless the

appellant has first exhausted ‘all administrative remedies.’”). Plaintiff has failed to exhaust his

administrative remedies and the Complaint must be dismissed.

Finally, Plaintiff is currently in removal proceedings. (Complaint, para. 42, 46). Respondents are

prohibited by statute from approving a naturalization application when removal proceedings are

pending, i.e., “ ... no application for naturalization shall be considered by the Attorney General if there

is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the

provisions of this or any other Act . . .” 8 U.S.C. § 1429. Shamberg v. United States, 348 U.S. 540

(1955). A Texas court has found that when a Plaintiff is in deportation proceedings the court lacks

jurisdiction to hear Plaintiff’s claims for a declaration of naturalization. Mosleh v. INS, 992 F. Supp.

874 (N.D. TX 1998). Plaintiff will have an opportunity to seek relief in his removal proceedings based

on his naturalization or other adjustment of status claims. 8 C.F.R. 1239(f). “As a matter of

jurisdiction, courts may not review the administrative decisions of INS unless the appellant has just

exhausted ‘all administrative remedies.’” Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir. 2000). This

court lacks jurisdiction to consider the Complaint because Plaintiff is in removal proceedings.

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IV. CONCLUSION

For all the above reasons Petitioner’s Complaint should be dismissed for lack of jurisdiction.

Respectfully submitted,

JOHNNY SUTTON
United States Attorney

BY: /s/ Gary L. Anderson

GARY L. ANDERSON
Assistant United States Attorney
601 NW Loop 410, Suite 600
San Antonio, Texas. 78216
Texas State Bar No. 01219000
Tel. No. (210) 384-7365
Fax. No. (210) 384-7312

Attorneys for Respondents

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Respondent’s Motion to Dismiss

Complaint on Naturalization Application was served via the Court’s CM/ECF system on the 22nd day

of January, 2007, address as follows.

Simon M. Azar-Farr
Simon M. Azar-Farr & Assoc.
2313 N. Flores
San Antonio, Texas 78212

/s/ Gary L. Anderson

GARY L. ANDERSON
Assistant United States Attorney

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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

THEODOROS GEORGE DIMOPOULOS §

§
Plaintiff §
§
v. § CASE NO. SA-06-CA-1011-OG
§
ALBERT WILEY BLAKE WAY, ACTING §
DISTRICT DIRECTOR FOR THE CITIZENSHIP §
AND IMMIGRATION SERVICES, UNITED §
STATES CITIZENSHIP AND IMMIGRATION §
SERVICES, EMILIO T. GONZALES, DIRECTOR,§
U.S. CITIZENSHIP AND IMMIGRATION §
SERVICES THE DEPARTMENT OF §
HOMELAND SECURITY, MICHAEL §
CHERTOFF, SECRETARY OF THE §
DEPARTMENT OF HOMELAND SECURITY, §
AND ALBERTO GONZALES, ATTORNEY §
GENERAL OF THE UNITED STATES §
§
Defendants §

ORDER

On this date, the Court having duly considered Respondents’ Motion to Dismiss Complaint on

Naturalization Application and finding the same to be meritorious, it is accordingly GRANTED.

Signed and entered this day of____________________, 2007.

ORLANDO GARCIA
UNITED STATES DISTRICT JUDGE