Opinion
00 Civ. 8735 (SAS)
June 12, 2001
Andrea Canela Petitioner pro se.
F. James Loprest, Jr., Special Assistant United States Attorney For Respondents.
OPINION AND ORDER
Pro se petitioner Andrea Canela has brought a petition for a writ of habeas corpus ("Petition") seeking an order reversing a decision by the Immigration and Naturalization Service ("INS") denying her request to become a naturalized citizen of the United States. Respondents now move to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1), for summary judgment pursuant to Rule 56(c), or, in the alternative, to transfer venue to the Eastern District of New York pursuant to Rule 12(b)(3) and 28 U.S.C. § 1406(a). For the reasons set forth below, respondents' motion to dismiss for lack of subject matter jurisdiction is granted.
I. LEGAL STANDARD
In deciding a motion under Rule 12(b)(1), all material factual allegations in the complaint must be taken as true. See Atlantic Mut. Ins. Co. v. Balfour MacLaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). Despite this rule, "argumentative inferences may not be drawn in favor of the non-moving party." Id. In fact, "where jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings." LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999). If, on the other hand, the complaint lacks a material fact necessary to satisfy subject matter jurisdiction, the case must be dismissed. See John B. Hull. Inc. v. Waterbury Petroleum Prods. Inc., 588 F.2d 24, 27 (2d Cir. 1978).
II. FACTUAL BACKGROUND
Petitioner is a 78-year old resident of Corona, Queens and a native and citizen of the Dominican Republic. See Petition at 2; see also Application for Naturalization ("Application"), Exhibit A to Respondents' Notice of Motion ("Ex. A to Resp. Notice of Motion") at 9. On October 30, 1988, petitioner was admitted into the United States as a lawful, permanent resident. See Immigrant Visa and Alien Registration ("Card"), Ex. A to Resp. Notice of Motion at 14 (INS inspector's date stamp and notations regarding admission to the U.S.).
On November 22, 1998, petitioner filed an application with the INS to become a naturalized citizen of the United States, pursuant to sections 310 and 316 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1421, 1427. See Petition at 2; see also 3/6/01 Declaration of Assistant U.S. Attorney F. James Loprest. On May 22, 1998, petitioner was interviewed by an INS naturalization officer in preparation for the naturalization examination. See Interview Letter, Ex. A to Resp. Notice of Motion at 8. During the naturalization hearing, petitioner was unable to demonstrate the requisite proficiency in the English language. See Interview Form, Ex. A to Resp. Notice of Motion at 7. In petitioner's next naturalization interview on September 12, 1998, she once again failed to demonstrate the requisite proficiency in the English language.See Notice of Action, Ex. A to Resp. Notice of Motion at 6. On June 25, 1999, the District Director of the INS's New York District Office denied petitioner's naturalization application. See Decision, Ex. A to Resp. Notice of Motion at 5.
Petitioner appealed the INS decision. See Request for Hearing, Ex. A to Resp. Notice of Motion at 2-4. Along with her appeal, petitioner submitted a statement from Jose Vasquez, who indicated that although petitioner wanted to become a United States citizen, "[s]he doe[s] not know how to write or read." See Request for Hearing, Ex. A to Resp. Notice of Motion at 2.
Mr. Vasquez, ostensibly a friend of petitioner, is the individual who filed petitioner's citizenship papers for her. See Request for Hearing, Ex. A to Resp. Notice of Motion at 3.
On September 21, 2000, the INS District Director issued a final decision, again denying petitioner's naturalization application. See Decision on Review of Denial ("Dec. of
Review"), Ex. A to Resp. Notice of Motion at 1. The basis for this decision follows:
Unable to demonstrate the ability to comply with the requirements of section 312 or the act in that [Petitioner was] unable to speak or demonstrate comprehension in the English language, or pass a government and history examination.
Dec. on Review, Ex. A to Resp. Notice of Motion at 1. Section 312 of the INA requires naturalization applicants to demonstrate both "an understanding of the English language" and "a knowledge and understanding of the fundamentals of the history and of the principles and form of government of the United States." 8 U.S.C. § 1423(a)(1)(2). The Decision also informed petitioner that she had the right to seek review of the decision in the district court in which she resides. See 8 U.S.C. § 1421(c).
Although it appears petitioner is not incarcerated or under an order of removal, on November 2, 2000, she filed this petition pursuant to 28 U.S.C. § 2241 seeking to overturn the INS's denial of her application to become a naturalized citizen. See Petition.
III. DISCUSSION
As set forth in Rule 8(a), a pleading must be "(1) a short and plain statement of the grounds upon which the court's jurisdiction depends, . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks." Fed.R.Civ.P. 8(a). These liberal pleading rules exist "to avoid decisions on the merits [based] on pleading technicalities." In re Credit Indus. Corp., 366 F.2d 402, 411 (2d Cir. 1966). Furthermore, pro se pleadings must be held to "less stringent standards than formal proceedings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520(1972). Thus, petitioner's claims are ordinarily entitled to the most flexible and generous interpretation. Nonetheless, because petitioner has filed a petition for a writ of habeas corpus, the flexibility that is ordinarily accorded to a pro se pleading is not appropriate. See Adams v. U.S. ex rel. McCain, 317 U.S. 269, 274(1942) ("Mere convenience cannot justify use of the writ [of habeas corpus] as a substitute for an appeal."). Therefore, even if petitioner has a valid appeal or claim for relief with respect to the decision of the INS, that appeal cannot be brought by way of a petition for habeas corpus.
A. The Jurisdictional Requirements of 28 U.S.C. § 2241
Respondents contend that petitioner fails to satisfy the jurisdictional requirements of 28 U.S.C. § 2241(c) because she was not "in custody" at the time the petition was filed. See Respondents' Memorandum of Law ("Resp. Mem.") at 9. That section provides:
The writ of habeas shall not extend to a prisoner unless —
(1) He is in custody under or by color of the authority of the United States of is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and domiciled herein is in custody for an act done or omitted under any alleged right, title, authority, privilege or exemption claimed under the commission, under any sanction of any foreign state or under color thereof, the validity and effect of which depend upon the law of nations; or
(5) It is necessary to bring him into court to testify or for trial.28 U.S.C. § 2241(c)(1)-(5). Petitioner nowhere alleges that she is or was held in custody by the authority of the United States or any agent thereof, that any such custody is the result of an act that would satisfy 28 U.S.C. § 2241(c)(4), or that such custody is unconstitutional. Thus, petitioner has failed to satisfy the jurisdictional requirements of 28 U.S.C. § 2241(c).
Petitioner has also failed to satisfy another requirement of 28 U.S.C. § 2241(a) that she bring suit "within [her] respective jurisdiction." 28 U.S.C. § 2241(a). Because petitioner is a resident of Queens, which is located in the Eastern District of New York, any action by petitioner should have been brought there. Because the requirements for bringing a writ of habeas corpus under 28 U.S.C. § 2241 have not been met, there is no subject matter jurisdiction. See John B. Hull, 588 F.2d at 27.
Petitioner may bring a petition pursuant to 8 U.S.C. § 1421(c) to appeal the INS's decision to deny her citizenship. Any such petition must be filed in the Eastern District of New York. See 8 U.S.C. § 1421(c) and 28 U.S.C. § 112(c). It should be further noted that the English proficiency requirement "shall not apply to any person who, on the date of the filing of the person's application for naturalization . . . is over fifty-five years of age and had been living in the United States for periods totaling at least fifteen years subsequent to a lawful admission for permanent residence." 8 U.S.C. § 1423(b)(2)(B). While petitioner may soon be eligible for this exemption, she must still have "a knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States." 8 U.S.C. § 1423(a)(2).
IV. CONCLUSION
For the foregoing reasons, respondents' motion to dismiss the petition for lack of subject matter jurisdiction is granted. Because petitioner has failed to make a substantial showing that she was denied a constitutional right, this Court will not issue a certificate of appealability. See Lucidore v. New York State Division of Parole, 209 F.3d 107, 112 (2d Cir. 2000) (holding that substantial showing exists where (i) the issues involved in the case are debatable among jurists of reason, or (ii) a court could resolve the issues in a different manner, or (iii) the questions are adequate to deserve encouragement to proceed further), cert. denied, 121 S.Ct. 175 (2000). The Clerk of the Court is directed to close this case.
SO ORDERED: