Summary
directing USCIS to issue an amended certificate of naturalization when there was no indication of fraud and petitioner provided "numerous" documents attesting to her correct birth date
Summary of this case from Kato v. U.S. Citizenship & Immigration Servs.Opinion
Case No. 12-13367
01-14-2013
ROSE HANNA HAMAMA, Petitioner, v. U.S. CITIZENSHIP & IMMIGRATION SERVICES, Respondent,
HON. GEORGE CARAM STEEH
ORDER GRANTING PETITION TO CHANGE DATE OF BIRTH
ON CERTIFICATE OF NATURALIZATION (DOC. # 1) AND
DENYING RESPONDENT'S MOTION TO DISMISS (DOC. # 9)
Petitioner Rose Hanna Hamama has filed a petition with this court requesting a change of birth date on her Certificate of Naturalization, issued in 1968 with an erroneous birth date (September 14, 1934 rather than September 14, 1930). Hamama alleges generally that this error creates inconsistency among her records, and specifically that it prevents her from renewing her driver's license under new state rules for driver's license renewals requiring consistency among government records. She asserts that this court may correct the error under the Federal Rules of Civil Procedure. She alleges that she has had no success in her requests to the U.S. Citizenship and Immigration Services (USCIS) for an amendment. Respondent has filed a motion to dismiss, also addressed below.
Hamama cites 8 C.F.R. § 334.16 in her petition as authority for making the change. The government makes various arguments in support of dismissal of the petition, including the repeal of the regulation cited by Hamama and a lack of subject matter jurisdiction due to Hamama's lack of citation to statutory authority. Respondent's motion to dismiss then asserts this request can be viewed only as an untimely "request to amend the court-issued certificate of naturalization under Federal Rule of Civil Procedure 60(b)," and that no exceptional circumstances exist for the amendment as prescribed by that section of Rule 60.
This issue was discussed in the unpublished case of Shrewsbury v. INS, 77 F.3d 490 (9th Cir. 1996). The Immigration and Naturalization Act of 1990 (INA) transferred authority from the judiciary to the Attorney General to naturalize new citizens. Before its enactment, district courts had jurisdiction to naturalize citizens and authority, pursuant to federal statute, to amend naturalization orders. See 8 U.S.C. § 1451(I) (1990). As in Shrewsbury, where the order naturalizing the petitioner was issued prior to 1990, and thus described by the Ninth Circuit as a court order the district court could amend, the order in this case was also a court order, and may be amended by this court. Shrewsbury, 77 F.3d 490; see also McKenzie v. USCIS, 2012 WL 5954193 at *2, FN2 (W.D. Okla. 2012). This court may also order such amendment under Fed. R. Civ. P. 60(a), which generally allows for correction of an order's clerical mistakes or a mistake arising from oversight or omission. In the estimation of this court, correction of the certificate's erroneous birth date (where the naturalization application was no doubt one of several documents in the record at the time of naturalization, listing an inconsistent birth date, which was then inadvertently copied to the certificate) is properly catalogued under that Rule, which has no time limitation.
The court notes that unlike the Shrewsbury case, where the petitioner "sought amendment in order to correct a deliberate falsehood," there is no such issue here. Moreover, there is no real dispute over the petitioner's actual birth date in this case. While the government notes there is a lack of precision in describing how the incorrect 1934 birth date was included in the application for naturalization back in the early 1960s (i.e. who typed it in), the government does not seriously contest the fact that Ms. Hamama's actual birth date is September 14, 1930. Ms. Hamama has attached numerous other documents to her petition, as well as an affidavit and those of relatives, attesting to her actual date of birth, none of which is challenged by the government.
For these reasons, and under this authority, the court hereby GRANTS the petition to amend Rose Hanna Hamama's certificate of naturalization. The USCIS shall issue an amended certificate of naturalization stating that petitioner Rose Hanna Hamama's date of birth is September 14, 1930.
IT IS SO ORDERED.
______________________
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 14, 2013, by electronic and/or ordinary mail.