Opinion
2:22-cv-01470-SAL-MGB
03-30-2023
Sunday Quincy Usoh, Petitoner, v. U.S.C.I.S., et. al., Respondents.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Petitioner Sunday Quincy Usoh (“Petitioner”), a federal prisoner proceeding pro se and in forma pauperis, brings this action challenging Respondent the United States Citizenship and Immigration Services' (“USCIS”) denial of his Application for Naturalization (“Form N-400”).On February 2, 2023, Respondents filed a Motion to Dismiss. (Dkt. No. 40.) Pursuant to Local Rule 73.02(B)(2), D.S.C., all pretrial matters in this action are referred to a United States Magistrate Judge for consideration. For the reasons set forth herein, the undersigned recommends granting Respondents' Motion.
Petitioner originally brought this action as a habeas petition, and he later clarified that he intended to bring a petition for judicial review of the denial of his Form N-400. (Dkt. Nos. 1; 12.)
BACKGROUND
Petitioner filed an Amended Petition on August 19, 2022, confirming that he is challenging the denial of his Application for Naturalization pursuant to 8 U.S.C. §§ 1421(c), 1447(b). (Dkt. No. 12.) He later supplemented that Amended Petition on October 7, 2022, articulating several additional claims challenging his naturalization process. (Dkt. No. 23.) More specifically, the Amended Petition alleges that on October 22, 2014, “after passing a background check by the FBI,” Petitioner completed an interview at the USCIS El Paso Field Office and was “deemed eligible for naturalization pending final approval within 120 days.” (Dkt. No. 12 at 2; Dkt. No. 12.) According to the Amended Petition, Respondent R. Rodriguez (“Rodriguez”) is the USCIS officer who conducted Petitioner's naturalization interview and who was required to properly process the results. (Dkt. No. 23 at 3.) After waiting over 120 days without a final decision, Petitioner visited the “immigration office” in Irving, Texas “to inquire about [his] citizenship status.” (Dkt. No. 1-2.) According to Petitioner, the “female immigration officer . . . said there was nothing wrong with [his] citizenship, [and there was] no excuse for their delay.” (Id.)
Any further references to the Amended Petition herein encompass Dkt. Nos. 12, 12-2-12-17, and 23.
In late 2015, Petitioner was arrested for conspiracy to defraud the government with respect to claims in violation of 18 U.S.C. § 286.He pleaded guilty on June 29, 2017, and was sentenced to ninety-six months' imprisonment on July 2, 2017. Several days later, USCIS apparently denied Petitioner's Form N-400 based on his criminal conviction. (Dkt. No. 12 at 2.) Petitioner claims that he did not receive notice of this decision until May 28, 2019, in response to a Freedom of Information Act (“FOIA”) request. (Id.)
The undersigned takes judicial notice of the records filed in Case No. 5:15-cr-00664-2 (S.D. Tex. June 29, 2017). See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (noting that a federal court may take judicial notice of the contents of its own records, as well as those public records of other courts); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); see also Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009) (noting that the court may also take judicial notice of factual information located in postings on government web sites).
Among other things, the Immigration and Nationality Act requires naturalization applicants to demonstrate that they “ha[ve] been and still [are] a person of good moral character” for the five-year period immediately preceding the filing of the application and continuing “up to the time of admission to citizenship” when the oath of allegiance is administered. 8 U.S.C. § 1427(a); 8 C.F.R. § 316.10(a)(1). A noncitizen who commits “a crime involving moral turpitude . . . or an attempt or conspiracy to commit such a crime” during the statutory period cannot demonstrate good moral character. 8 U.S.C. §§ 1101(f)(3), 1182(a)(2)(A); 8 C.F.R. § 316.10(b)(2)(i). Also, a noncitizen who “at any time has been convicted of an aggravated felony” is barred from establishing good moral character. 8 U.S.C. § 1101(f)(8).
“Since learning that the N-400 application was denied,” Petitioner claims that he “has been trying to understand the process and means by which to challenge the USCIS's decision to deny the application.” (Id.) He therefore brings this Amended Petition pursuant to 8 U.S.C. §§ 1421(c), 1447(b), asking that this Court “provide relief by any means, as [he] is entitled to an award of citizenship.” (Id.) In support, Petitioner argues that “[t]he only issue that prevented [his] naturalization was the USCIS's failure to timely conduct the public oath.” (Id.) See 8 C.F.R. § 335.5 (stating that “[a]n alien who has not taken the oath in a public ceremony remains a noncitizen.”). Despite having completed all other requirements for naturalization, Petitioner contends that USCIS “failed to administer the public oath, then three years later denied [his] N-400 application based on arrest that transpired well after [he] should have been naturalized.” (Id. at 23.) In other words, “[a]bsent the USCIS's delay, [Petitioner] would have taken the oath and become a naturalized citizen well before his 2015 arrest and would now remain a naturalized citizen.” (Id. at 3.) Petitioner claims that USCIS's failure to adjudicate his naturalization application within a reasonable time violated the Administrative Procedure Act and deprived him of his due process rights. (Id. at 3-4.)
Petitioner alleges that Respondent Rodriguez “failed to properly file the results of [Petitioner's] naturalization interview and secure a public oath ceremony, which improperly prevented [Petitioner's] citizenship.” (Dkt. No. 23 at 4.) Petitioner alleges that Respondent Mendoza Jaddou (“Jaddou”), the USCIS Field Office Director, failed to, inter alia, “ensure compliance of his officers' adherence to proper procedures and the rule of law, . . . which improperly deprived [Petitioner] of the ability to become a naturalized citizen and deprived the [Petitioner] of Due Process.” (Id.) Finally, Petitioner alleges that Jaddou and Respondent Alejandro Mayorkas, the Secretary of Department of Homeland Security, “failed to ensure compliance with naturalization proceedings conforming to the dictates of due process, thus depriving the [Petitioner] of the same” and that their conduct “constitutes the claim of negligence under the Federal Tort Claims Act.” (Id.)
Based on these allegations, the undersigned liberally construes the Amended Petition as raising claims pursuant to 8 U.S.C. §§ 1421(c), 1447(b); the Due Process Clause; the Administrative Procedure Act (“APA”); and the Federal Tort Claims Act (“FTCA”). On February 2, 2023, Respondents filed a Motion to Dismiss. (Dkt. No. 40.) On February 3, 2023, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 41.) Petitioner filed a response in opposition on March 7, 2023 (Dkt. No. 49), to which Respondents replied on March 14, 2023 (Dkt. No. 50). Respondents' motion is ready for review.
STANDARDS
Respondents seek dismissal of this action under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) should be granted “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (internal quotation marks and citation omitted). The plaintiff bears the burden of proving that subject matter jurisdiction exists. Piney Run Preservation Ass'n v. County Commissioners of Carroll County, Maryland, 523 F.3d 453, 459 (4th Cir. 2008). When considering a Rule 12(b)(1) motion, the Court should “regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Evans, 166 F.3d at 647 (internal quotation marks and citation omitted).
On a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are ‘enough to raise a right to relief above the speculative level.'” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party.” Stansbury v. McDonald's Corp., 36 Fed.Appx. 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)).
Because Petitioner is representing himself, these standards must be applied while liberally construing her filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
DISCUSSION
Respondents argue, inter alia, that Petitioner's claims brought pursuant to 8 U.S.C. §§ 1421(c), 1447(b); the APA; and the FTCA fail for lack of subject matter jurisdiction. Respondents further argue that the Court should not extend Bivens to Petitioner's claims of due process violations. The undersigned considers Petitioner's claims, below.
A. Claims Under 8 U.S.C. §§ 1421(c), 1447(b)
The Amended Petition seeks relief pursuant to 8 U.S.C. § 1447(b). (Dkt. No. 12 at 1.) “Section 1447(b) provides a naturalization applicant with the right to file a petition for hearing in a federal court if more than 120 days have elapsed since the applicant's naturalization examination and the [USCIS] has failed to make a determination on the application.” Etape v. Chertoff, 497 F.3d 379, 381 (4th Cir. 2007) (emphasis added). “In actions brought under 8 U.S.C. § 1447(b) to compel a decision on a naturalization application after an unreasonable delay, the only effective relief that a court can provide is a decision on the application itself.” Ranjha v. Dep't of Homeland Sec., No. 1:11-cv-131 LMB-TRJ, 2011 WL 2311866, at *4 (E.D. Va. June 7, 2011).
Here, Respondents argue that because USCIS denied Petitioner's naturalization application on July 10, 2017, there is no effective relief that the Court can grant pursuant to § 1447(b), and this claim is therefore moot. (Dkt. No. 40 at 12-13; Dkt. No. 40-1.) In response, Petitioner continues to insist that because USCIS failed to issue a decision on his citizenship within 120 days of his examination, he appropriately sought relief in federal court under § 1447(b). (Dkt. No. 49 at 5.) Because USCIS issued a decision on Petitioner's naturalization application well before Petitioner filed the instant petition, there is no effective relief the Court can grant under § 1447(b). See, e.g., Iqbal v. Sec'y U.S. Dep't of Homeland Sec., 190 F.Supp.3d 322, 328 (W.D.N.Y. 2016) (“The plain language of Section 1447(b) makes clear that a plaintiff can only seek a hearing in a district court if USCIS has not made a determination regarding his naturalized application.” (quoting Iqbal v. Holder, 2010 WL 769316, at *2 (E.D.N.Y. March 4, 2010) (emphasis in original)); Al Hamati v. Gonzalez, 2010 WL 623716, at *3 (E.D. Mo. Feb. 18, 2010) (“The problem with Plaintiff's attempt to base jurisdiction on § 1447(b) is that CIS denied his N-400 in February 2004, more than five years before he filed his Complaint. While it is true that CIS issued that ruling more than 120 days after the examination-in fact, it took over a year-a petitioner for naturalization does not retain the right to bring an action under § 1447(b) after CIS has acted on the application.”).
Accordingly, the undersigned recommends Petitioner's claim under 8 U.S.C. § 1447(b) be dismissed as moot. See Ranjha, 2011 WL 2311866, at *4 (“[O]nce the USCIS has issued a final decision on an alien's application, there is no longer any continuing injury for a court to redress. . . . In this case, the USCIS has already adjudicated-and denied-Ranjha's naturalization application, meaning that his § 1447(b) claim is now moot.”).
The Amended Petition also seeks relief pursuant to 8 U.S.C. § 1421(c). (Dkt. No. 12 at 1.) Under § 1421(c), “[a] person whose application for naturalization . . . is denied . . . may seek review of such denial before the United States District Court for the district in which such person resides,” but only “after a hearing before an immigration officer under § 1447(a) of this Title.” 8 U.S.C. § 1421(c). According to regulations, the request for a hearing under § 1447(a) must be filed with USCIS “within thirty days after the applicant receives the notice of denial,” and “[u]pon receipt of a timely request for a hearing, USCIS will schedule a review hearing, within a reasonable period of time not to exceed 180 days from the date upon which the appeal is filed.” 8 C.F.R. § 336.2(a), (b). At that hearing, “[t]he reviewing officer [has] the authority and discretion to review the application for naturalization, to examine the applicant, and either to affirm the findings and determination of the original examining officer or to re-determine the original decision in whole or in part.” Id. § 336.2(b). Ultimately, the reviewing officer must issue a new decision that either “affirm[s] the findings and determination of the original examining officer or [] re-determine[s] the original decision in whole or in part.” Id.
“As courts have consistently held, ‘[§ ] 1421(c) . . . requires the exhaustion of administrative remedies prior to seeking [ ] relief” in federal court; that “requirement is ‘mandatory, and courts are not free to dispense with it.'” Ranjha, 2011 WL 2311866, at *6 (quoting Escaler v. USCIS, 582 F.3d 288, 292 (2d Cir. 2009)). “This exhaustion requirement serves as a limitation on Congress's waiver of the federal government's sovereign immunity in actions challenging the denial of naturalization, and as such, an alien's failure to exhaust the mandatory administrative appeal process deprives a federal district court of jurisdiction to review a naturalization denial.” Id.
Here, Respondents argue that because Petitioner does not allege he has applied for, or received, the required hearing before an immigration officer, his claim under § 1421(c) is barred. (Dkt. No. 40 at 13-14.) In response, Petitioner asserts that he “has already exhausted all administrative remedies.” (Dkt. No. 49 at 6.) Petitioner explains that USCIS mailed the N-400 application denial to Petitioner's “last known address in their records” and that this letter was returned as undeliverable “due to unknown address.” (Id. at 7.) Petitioner asserts that after he discovered his naturalization application was denied in 2019, he sent USCIS a series of letters “in order to see if there is a time frame to appeal to the denial of his naturalization application.” (Id.) According to Petitioner, his delay in reaching out to USCIS “was their own fault” because USCIS should have taken appropriate steps to contact Petitioner when the denial letter was originally returned. (Id.)
To the extent Petitioner is arguing that the exhaustion requirement is futile here, such an argument is unavailing. While the Fourth Circuit has not directly considered this issue, courts in this circuit have found that “because Congress has mandated that a naturalization applicant must exhaust his administrative remedies before seeking judicial review, it is not appropriate for a court to ‘read futility or other exceptions' into § 1421(c).” Abuirshaid v. Johnson, 155 F.Supp.3d 611, 616 (E.D. Va. 2015) (“[P]laintiff is not entitled to judicial review of his naturalization application process at this juncture because there can be no futility exception where, as here, Congress has expressly established an administrative exhaustion requirement.”); see also Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (refusing to read a futility exception into the exhaustion requirement set forth in 42 U.S.C. § 1997e)); Lefsih v. Wolf, No. 5:20-cv-150-FL, 2020 WL 4735341 (E.D. N.C. Aug. 14, 2020) (dismissing claim for de novo hearing under § 1421(c) where plaintiff failed to exhaust his administrative remedies; finding that the exhaustion requirement is mandatory).
In sum, there is no allegation Petitioner ever sought an administrative hearing or that an administrative hearing was denied to him following a request for such hearing. Because Petitioner has not exhausted his administrative remedies, the undersigned recommends Petitioner's claim under 8 U.S.C. § 1421(c) be dismissed for lack of subject matter jurisdiction. See, e.g., Escaler, 582 F.3d at 292 (“When, as here [in the context of § 1421(c)], the exhaustion requirement is established by statute . . . the requirement is “mandatory, and courts are not free to dispense with [it].”); Huang v. Secretary, 468 Fed. App'x. 932, 935 (11th Cir. 2012) (“This requirement is a statutory exhaustion requirement, and the district court was not authorized to read an exception, including one based on futility or the USCIS's actions, into that requirement.”).
B. APA Claim
The Amended Petition alleges that USCIS's failure to adjudicate his naturalization application within a reasonable time violated the APA. (Dkt. No. 12 at 3.) The APA permits judicial review of agency action “unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Here, Respondents note that it is not “clear whether his APA claim directly challenges his naturalization denial or whether he challenges the agency's failure to grant naturalization and administer the oath of allegiance prior to his disqualifying crime.” (Dkt. No. 40 at 16.) Respondents argue that to the extent Petitioner's APA claim is based on USCIS's failure to administer the oath of allegiance, this claim fails because, inter alia, it is not a final agency action subject to APA review. (Id.) Respondents also argue that to the extent his APA claim is based on the denial of his naturalization application or delay in adjudicating that application, APA review is barred because Congress has created adequate alternative remedies for either claim. (Id. at 19.) Notably, Petitioner does not respond to any of these arguments in his response brief. Rather, he briefly contends that “[u]nder the APA, USCIS was required to timely finalize the naturalization application process.” (Dkt. No. 49 at 4.)
As an initial matter, to the extent Petitioner challenges USCIS's failure to administer the oath of allegiance prior to his disqualifying crime, this does not constitute a final administrative action within the meaning of 5 U.S.C. § 704. See Huang v. Napolitano, 2011 WL 772755, at *3 (S.D. Fla. Feb. 28, 2011) (“Federal jurisdiction is lacking when the administrative action is not “final” within the meaning of 5 U.S.C. 704.”). Section 704 provides that “agency 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. For an agency action to be considered final it must: (1) “mark the consummation of the agency's decisionmaking process” and (2) the action is “one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 178 (1997) (internal quotation marks omitted). As Respondents argue, “USCIS's decision not to naturalize Petitioner-while his application was pending and before he became ineligible- . . . was not the agency's final word on the matter.” (Dkt. No. 40 at 17.) Accordingly, the Court does not have any jurisdiction to consider an APA claim based on USCIS's failure to administer the oath of allegiance prior to Petitioner's disqualifying crime.
Likewise, the Court lacks jurisdiction to consider an APA claim based on the denial of Petitioner's naturalization application or delay in adjudicating that application.Courts routinely dismiss APA claims for lack of subject matter jurisdiction where a remedy exists under § 1421(c) or § 1447(b), finding that the specific grants of jurisdiction in these statutes trump the more general grant of subject matter jurisdiction provided in the APA. See Danilov v. Aguirre, 370 F.Supp.2d 441, 445 (E.D. Va. 2005) (“[I]t is well settled that general grants of jurisdiction may not be relied upon to expand a very specific statute that either grants or limits jurisdiction. It follows therefore that plaintiff's invocation of [this] general grant[] of subject matter jurisdiction [under the APA] is to no avail and that this matter is controlled by the specific grant of subject matter jurisdiction set forth in 8 U.S.C. § 1447(b).”); see also Saleh v. Barr, 2021 WL 638219, at *2 (W.D.N.Y. Feb. 18, 2021) (“Petitioners' APA claims seek review of the denial of their naturalization applications, but § 1421(c) provides an adequate avenue to seek precisely the same relief.”).
Notably, at least one court has found that because of the administrative appeals process, the USCIS's denial of a naturalization application also does not amount to a “'consummation of the agency's decisionmaking process' from which any legal consequences will flow.'” Huang, 2011 WL 772755, at *3. Respondents, however, state that “USCIS's decision denying Petitioner's naturalization application marks the consummation of its decisionmaking process.” (Dkt. No. 40 at 17.) Accordingly, the undersigned considers Respondents' alternative arguments for dismissal of the APA claim.
Here, Petitioner's failure to exhaust his administrative remedies under § 1421(c) does not negate the finding that this matter is controlled by the specific grant of subject matter jurisdiction set forth in § 1421(c). Miriyeva v. U.S. Citizenship & Immigration Servs., 436 F.Supp.3d 170, 178 n.11 (D.D.C. 2019) (“Courts are unanimous in holding that § 1421(c) is the sole means of seeking judicial review of the actual denial of a naturalization application.” (collecting cases)); Hamod v. Kelly, 2017 WL 8947276, at *8 (D. Minn. June 12, 2017) (dismissing claim under § 1421(c) because plaintiffs failed to exhaust their administrative remedies and rejecting futility argument; further dismissing APA claim stating “[b]ecause Congress has already provided Hamod and Al-Saadoon with an adequate remedy under § 1421(c), they cannot seek review of the denial of their applications for naturalization under the APA”); adopted sub nom. Hamod v. Duke, 2017 WL 3668762 (D. Minn. Aug. 24, 2017).
Based on the foregoing, the undersigned recommends this Court lacks subject matter jurisdiction to consider Plaintiff's APA claim and it should be dismissed.
C. FTCA Claim
The Amended Petition alleges that Respondents Jaddou and Mayorkas “failed to ensure compliance with naturalization proceedings conforming to the dictates of due process, thus depriving the [Petitioner] of the same” and that their conduct “constitutes the claim of negligence under the Federal Tort Claims Act.” (Dkt. No. 23 at 4.)
Under the FTCA, the United States is liable for “injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting under the scope of [his or her] office or employment.” 28 U.S.C. § 1346(b)(1). The FTCA “requires that before an action may be commenced in court, the claimant must ‘present' h[er] claim to the appropriate administrative agency.” Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994) (quoting 28 U.S.C. § 2675). The FTCA requires further that the “claim be ‘presented' to the appropriate agency within two years after the claim accrues.” Id. (quoting 28 U.S.C. § 2401(b)). “[T]he requirement of filing an administrative claim is jurisdictional and may not be waived.” Id. (quoting Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986)). To meet exhaustion requirements, the claim presented to the agency must “(1) [be] sufficient to enable the agency to investigate and (2) place[ ] a ‘sum certain' value on [the] claim.” Id. at 517. “The sum-certain requirement is one of substantial importance, and even courts liberally construing the presentment requirement under the FTCA require that the claimant place a certain value on the claim.” Id.
Here, Respondents argue that Petitioner's FTCA claim fails for lack of subject matter jurisdiction because he failed to exhaust his administrative remedies. More specifically, Respondents assert that there is no allegation that Petitioner ever submitted a Standard Form 95 or otherwise submitted the requisite written notification. (Dkt. No. 40 at 21.) Respondents acknowledge a letter attached to the Amended Petition dated March 21, 2015, in which Petitioner sought clarification of his citizenship status from USCIS. (Dkt. No. 12-4.) Respondents contend this letter is insufficient for exhaustion purposes because it does not contain the required “sum certain.” (Id.) Respondents further note that the Amended Petition seeks only equitable relief, which is not available under the FTCA. (Id.) Petitioner does not respond to any of these arguments in his response brief or otherwise acknowledge his FTCA claim. (Dkt. No. 49.)
Upon careful review, there is no allegation or evidence that Petitioner specified to USCIS the sum certain of his alleged damages. Notably, it is unclear what such damages would be given that Petitioner only asks for equitable relief in this action in the form of a grant of citizenship. (Dkt. No. 23 at 5.) Because Petitioner failed to provide USCIS the required notice of his complaint pursuant to the FTCA, the undersigned recommends this claim be dismissed. See Blake v. United States, No. 21-cv-321, 2021 WL 4974906, at *3 (D. Md. Oct. 26, 2021) (“This Court has routinely dismissed FTCA claims for failing to exhaust administrative remedies by failing to specify a sum certain.”) (collecting cases).
D. Bivens Claim
Finally, the Amended Petition alleges that the individual Respondents deprived Petitioner of due process through their alleged actions in preventing Petitioner's citizenship. (Dkt. No. 23 at 4.) The undersigned has construed this as a constitutional claim pursuant to Bivens. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the United States Supreme Court established a cause of action under the United States Constitution against federal officials in their individual capacities for the violation of federal constitutional rights. See Carlson v. Green, 446 U.S. 14, 18 (1980); Holly v. Scott, 434 F.3d 287, 289 (4th Cir.), cert. denied, 547 U.S. 1168 (2006). “Bivens is the case establishing, as a general proposition, that victims of a constitutional violation perpetrated by a federal actor may sue the offender for damages in federal court despite the absence of explicit statutory authorization for such suits.” Warren v. Drew, No. 3:10-cv-2086-MBS, 2010 WL 5300940, at *2 (D.S.C. Nov. 18, 2010), adopted by, 2010 WL 5313563 (D.S.C. Dec. 20, 2010) (internal citations omitted).
A Bivens claim is analogous to a claim brought against state officials under 42 U.S.C. § 1983, and case precedent pertaining to § 1983 claims generally applies to Bivens actions. Harlow v. Fitzgerald, 457 U.S. 800, 814-20, n.30 (1982); Farmer v. Brennan, 511 U.S. 825, 839 (1994).
Here, Respondents argue that a new Bivens remedy should not be implied as to Petitioner's due process claims. (Dkt. No. 40 at 25-29.) Petitioner does not offer any argument on this issue in his response brief. (Dkt. No. 49.) As an initial matter, Petitioner cannot bring suit against Respondents in their official capacities under Bivens. Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (“[A] Bivens action does not lie against . . . officials in their official capacity....”); Estate of Riopedre v. United States, 2015 WL 505584 (D.S.C. Feb. 6, 2015) (“Bivens claims for damages are not actionable against the United States, federal agencies, or public officials acting in their official capacities”); Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996), cert. denied, 519 U.S. 1150 (1997) (same). Thus, the analysis below considers whether Petitioner's due process claims can proceed against Respondents in their individual capacities.
In Bivens, the Supreme Court “recognized for the first time an implied right of action for damages against federal officers alleged to have violated a citizen's constitutional rights.” Hernandez v. Mesa, 137 S.Ct. 2003, 2006, 198 L.Ed.2d 625 (2017). Specifically, the Bivens Court found, in the absence of statutory authority, an action for damages for individuals injured by federal officers who violated the Fourth Amendment's prohibition against unreasonable searches and seizures. Bivens, 407 U.S. at 397.
Since the ruling in Bivens, the Supreme Court has recognized implied causes of action against federal actors in only two additional situations. In Davis v. Passman, the Court provided an implied remedy under the Fifth Amendment's Due Process Clause for gender discrimination in the employment context. 442 U.S. 228 (1979). In Carlson v. Green, the Court further expanded Bivens under the Eighth Amendment's Cruel and Unusual Punishments Clause for failure to provide adequate medical treatment to a prisoner. 446 U.S. 14 (1980). “These three cases-Bivens, Davis, and Carlson-represent the only instances in which the Court has approved an implied damages remedy under the Constitution itself.” Ziglar v. Abbasi, 137 S.Ct. 1843, 1855, 198 L.Ed.2d 290 (2017).
The U.S. Supreme Court's decision in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), reemphasized the limited circumstances under which an individual may bring an implied cause of action against a federal official by clarifying that any expansion of Bivens outside of the three cases described above “is now a ‘disfavored' judicial activity.” Id. at 1857. In keeping with this narrow application, the Ziglar Court set forth a rigorous test for recognizing a new “implied cause of action” for a constitutional violation by a federal actor. First, the court must determine whether the plaintiff seeks to extend Bivens to a new context by evaluating whether the case is “different in a meaningful way from previous Bivens cases.” Id. at 1859. If the plaintiff's claim presents a new Bivens context, the court must then evaluate whether any “special factors counsel[] hesitation” in recognizing a new remedy “in the absence of affirmative action by Congress.” Id. at 1857. In the recent decision, Egbert v. Boule, the Supreme Court instructed that “[i] there are alternative remedial structures in place, ‘that alone,' like any special factor, is reason enough to ‘limit the power of the Judiciary to infer a new Bivens cause of action.'” Egbert v. Boule, 213 L.Ed.2d 54, 142 S.Ct. 1793, 1804 (2022) (quoting Ziglar, 137 S.Ct. at 1858).
Here, the Bivens remedy should not be extended because, through the Immigration and Nationality Act (“INA”), Congress has established two remedies for individuals seeking judicial review of their naturalization applications. See 8 U.S.C. §§ 1421(c), 1447(b). The existence of these alternative remedial structures “is reason enough to ‘limit the power of the Judiciary to infer a new Bivens cause of action.” Egbert, 142 S.Ct. at 1804 (quoting Ziglar, 137 S.Ct. at 1858); see also Dyer v. Smith, 56 F.4th 271, 279 (4th Cir. 2022) (“An alternative remedy weighs against recognizing a new Bivens claim even if it is less effective than the damages that would be available under Bivens and is not expressly identified by Congress as an alternative remedy.”).
Because Congress has already set out the remedial scheme that it considers appropriate in this context, the undersigned recommends the Court decline to extend Bivens here and dismiss Petitioner's due process claims. See Omoniyi v. Dep't of Homeland Sec., 2012 WL 892197, at *10 (S.D.N.Y. Mar. 13, 2012) (“In this case, in particular, Bivens relief should not be extended, as, through the INA, Congress has specifically legislated in the area at issue, and has crafted a comprehensive scheme that expressly dictates the type of recourse that is available to individuals who are denied naturalization.”); see also Gray v. Plauger, No. 22-cv-77, 2023 WL 2410852, at *7 (D. Md. Mar. 8, 2023) (“Here, the administrative grievance procedure was available to Gray, yet he failed to utilize it. The existence of this alternative remedial scheme counsels against extension of Bivens to Gray's excessive force and due process claims.”).
E. Remaining Issues
In his response brief, Petitioner alleges for the first time that Respondents violated the Accardi doctrine because “the agency failed to follow its own procedures and regulations.” (Dkt. No. 49 at 3.) The Accardi Doctrine provides that when an agency fails to follow its own procedures or regulations, that agency's actions are generally invalid. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954). Petitioner also devotes a significant portion of his response brief to disclaiming any involvement in criminal activity and attacking the validity of his conviction. (Id. at 9-13.) As an initial matter, Petitioner did not raise any of these arguments in his Amended Petition, and the Court therefore need not consider them here. Regardless, these claims should not proceed in this action.
With respect to Petitioner's Accardi claim, he appears to assert USCIS violated 8 C.F.R. § 335.3, which states that “[a] decision to grant or deny the [naturalization] application shall be made at the time of the initial examination or within 120-days after the date of the [naturalization interview].” (Dkt. No. 49 at 5.) To the extent such a claim has merit, it is moot. The only relief to which Petitioner would be entitled were he to prevail on that claim has already occurred-the USCIS has adjudicated Petitioner's naturalization application. Esposito v. S.C. Coastal Council, 939 F.2d 165, 171 (4th Cir. 1991) (“We have no jurisdiction over a claim on which no effective relief can be granted.”); see also Xiteng Liu v. U.S. Citizenship & Immigr. Servs., Texas Serv. Ctr., 317 Fed.Appx. 361, 362 (4th Cir. 2009) (dismissing claim as moot where plaintiff sought an order compelling the USCIS to extend his optional practical training (“OPT”); “The decision from which Liu originally sought relief was essentially withdrawn by the USCIS when it granted Liu OPT. Thus, his claim was moot. The district court did not have the authority to compel the USCIS to modify the decision to grant OPT beyond what was authorized by regulation.”); Lallave v. Martinez, 2022 WL 7578794, at *11 (E.D.N.Y. Oct. 13, 2022) (“Petitioner's Accardi claim is now moot, ‘as the only relief to which she would be entitled were she to prevail on that claim'-to compel the BOP award her credit-has been ordered as to her First Step Act claim.”).
As for Petitioner's claims concerning the validity of his conviction, such arguments would be more appropriately considered in a petition for habeas relief. Further, it appears these arguments are barred by the doctrine of collateral estoppel, given that the Fifth Circuit has already determined Petitioner knowingly and voluntarily signed his plea agreement. Case No. 5:15-cr-00664-2, Dkt. Nos. 165; 166 (S.D. Tex. April 5, 2018); see In re Microsoft Corp. Antitrust Litig., 355 F.3d 322, 326 (4th Cir. 2004) (“Applying collateral estoppel ‘forecloses the relitigation of issues of fact or law that are identical to issues which have been actually determined and necessarily decided in prior litigation in which the party against whom [collateral estoppel] is asserted had a full and fair opportunity to litigate.'” (quoting Sedlack v. Braswell Servs. Group, Inc., 134 F.3d 219, 224 (4th Cir. 1998)).
Based on the foregoing, the undersigned recommends this action be dismissed in its entirety. More specifically, the undersigned recommends the Court lacks subject matter jurisdiction to consider Petitioner's claims pursuant to 8 U.S.C. §§ 1421(c), 1447(b); the APA; and the FTCA. The undersigned further recommends that this Court decline to extend Bivens to Petitioner's claims of due process violations.
Having recommended dismissal on the above grounds, the undersigned does not consider Respondents' remaining arguments for the dismissal of Petitioner's claims in this action.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that Respondents' Motion to Dismiss (Dkt. No. 40) be GRANTED.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).