Opinion
CIVIL 1:22-CV-1651
10-24-2022
BILLY G. ASEMANI, Plaintiff, v. U.S.D.H.S., Defendants.
Rambo, Judge.
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge.
I. Factual Background
This case comes before us for a legally mandated screening review. The plaintiff, Billy Asemani, is an inmate housed in state custody in Maryland, and has filed a pleading styled as a petition for writ of mandamus. (Doc. 1). While the meaning of this two page petition is somewhat obscure, it appears that Asemani seeks to challenge an immigration removal order that was entered against him by an immigration judge in 2004. Yet while he seeks to challenge this order, apparently on the grounds that Asemani believes that he is a citizen of the United States, Asemani concedes that he took no action in 2004 to further litigate this claim.
Asemani's claims of citizenship are a familiar refrain in other litigation pursued by this prolific pro se litigant. However, these claims have been repeatedly rebuffed by the courts. As one court has aptly observed:
Plaintiff has not established that he has standing to sue . . . because he is not a citizen of the United States, nor has he otherwise established that he [is] a national of the United States. In fact, numerous courts and the Bureau of Immigration Appeals have refused to consider plaintiff a United States national. See, e.g., Asemani v. Fallahian-Khuzestani & Nayerri, No. 1:07cv663 (D. Md. Apr. 4, 2007) (holding that plaintiff did not qualify as a United States national for the purpose of suing various Iranian individuals and entities under the ATA); Asemani v. The Government of Islamic Republic of Iran, No.1:07cv1615 (D. Md. June 26, 2006) (same); Asemani v. Ali F allahian-Khuzestani, 1:06cv568 (D. Md. Mar. 13, 2006) (same); Asemani v. Rice, No. 04-1622, 2005 WL 1903560, at *2 (D.D.C. July 12, 2005) (holding that plaintiff was statutorily barred from bringing suit because the Bureau of Immigration Appeals concluded that plaintiff was not a United States national, and noting that an Immigration Judge ordered Asemani removed from the United States to Iran); see also Asemani v. Fallahia-Khuzestani, No. 06-7086 (D.C. Cir. May 24, 2007) (affirming district court's conclusion that Asemani was precluded from bringing ATA claims because he failed to raise them in his previous civil action arising from the same circumstances); Asemani v. Atty Gen. of the United States, 140 Fed.Appx. 368 (3d Cir. 2005) (refusing to consider whether Asemani is a United States national because Asemani failed to properly exhaust his claims).Billy G. Asemani, a/k/a Ghafour Asemani, Plaintiff, v. The (Gov't of) Islamic Republic of Iran, et al., Defendants., No. 1:07CV693 (CMH/BRP), 2007 WL 9658003, at *2 (E.D. Va. Aug. 3, 2007), affd in part, dismissed in part sub nom. Asemani v. Gov't of Islamic Republic of Iran, 299 Fed.Appx. 291 (4th Cir. 2008).
Along with this mandamus petition, Asemani filed a document which he characterizes as a motion for leave to proceed in forma pauperis. (Doc. 1-4). While we would grant this request, for the reasons set forth below, this petition should be dismissed.
II. Discussion
A. Screening of Pro Se Complaints-Standard of Review
This court has an on-going statutory obligation to conduct a preliminary review of pro se complaints brought by plaintiffs given leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B)(ii). Specifically, we are obliged to review the complaint to determine whether any claims are frivolous, malicious, or fail to state a claim upon which relief may be granted. This statutory text mirrors the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
With respect to this benchmark standard for the legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)], and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937 (2009), pleading standards
have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id., at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 679. According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id., at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id., at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In
other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.' ”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S.Ct. 1861 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1950).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that “[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment”). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the Federal Rule of Civil Procedure which defines what a complaint should say and provides that:
(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.Fed. R. Civ. P. 8(a).
Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se plaintiff's complaint must recite factual allegations which are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action.
Judged against these legal guideposts, for the reasons set forth below it is recommended that this case be dismissed.
B. This Complaint Fails to State a Claim Upon Which Relief May Be Granted.
In this case, Asemani has filed a document, styled as a petition for writ of mandamus, which invites us to set aside an eighteen year old immigration removal order and declare Asemani a United States citizen. We should decline this invitation for at least two reasons.
First, Asemani has not demonstrated that he can meet the exacting showing needed to secure mandamus relief. A petition for writ of mandamus is an ancient form of common law judicial relief, a request for a court order compelling a public official to perform some legally-mandated duty. The power of federal courts to issue writs of mandamus is now defined in a federal statute, 28 U.S.C. § 1361, which provides that: “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361.
Writs of mandamus compelling government officials to take specific actions, are extraordinary forms of relief, which must comply with demanding legal standards. Thus, it is well-settled that “[t]he writ is a drastic remedy that ‘is seldom issued and its use is discouraged.' ” In re Patenaude, 210 F.3d 135, 140 (3d Cir. 2000) (quoting Lusardi v. Lechner, 855 F.2d 1062, 1069 (3d Cir. 1988)). Accordingly, as a general rule:
There are two prerequisites to issuing a writ of mandamus. [Petitioners] must show that (1) they have no other adequate means to attain their desired relief; and (2) their right to the writ is clear and indisputable. See In re Patenaude, 210 F.3d 135, 141 (3d Cir.2000); Aerosource, Inc. v. Slater, 142 F.3d 572, 582 (3d. 1988).Hinkel v. England, 349 F.3d 162, 164 (3d Cir. 2003).
Moreover, “[m]andamus is an extraordinary remedy that can only be granted where a legal duty ‘is positively commanded and so plainly prescribed as to be free from doubt.'” Appalachian States Low-Level Radioactive Waste Comm'n v. O'Leary, 93 F.3d 103, 112 (3d Cir.1996) (quoting Harmon Cove Condominium Ass'n, Inc. v. Marsh, 815 F.2d 949, 951 (3d Cir.1987)); see Ararat v. District Director, ICE, 176 F. App'x. 343 (3d Cir. 2006). Therefore:
Mandamus “is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) (discussing the common-law writ of mandamus, as codified in 28 U.S.C. § 1361). See also Stehney, 101 F.3d at 934 (mandamus relief is a drastic remedy only to be invoked in extraordinary circumstances).Stanley v. Hogsten 277 F. App'x. 180, 181(3d Cir. 2008).
As one court has aptly observed when describing the precise and exacting standards which must be met when a petitioner invokes the writ of mandamus:
The remedy of mandamus “is a drastic one, to be invoked only in extraordinary circumstances.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, (1980). Only “exceptional circumstances amounting to a judicial ‘usurpation of power' ” will justify issuance of the writ. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (quoting Will v. United States, 389 U.S. 90, 95(1967)); see also In re Leeds, 951 F.2d 1323, 1323 (D.C. Cir. 1991). Mandamus is available only if: “(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff.” In re Medicare Reimbursement Litigation, 414 F.3d 7, 10 (D.C. Cir. 2005) (quoting Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002)); see also Banks v. Office of Senate Sergeant-At-Arms and Doorkeeper of the United States Senate, 471 F.3d 1341, 1350 (D.C. Cir. 2006) (concluding that the extraordinary remedy of mandamus need not issue in a case arising under the Congressional Accountability Act where the issue could be addressed by an appeal from a final judgment). The party seeking mandamus “has the burden of showing that ‘its right to issuance of the writ is clear and indisputable.' ” Power v. Barnhart, 292 F.3d at 784 (quoting Northern States Power Co. v. U.S. Dep't of Energy, 128 F.3d 754, 758 (D.C. Cir. 1997)). Where the action petitioner seeks to compel is discretionary, petitioner has no clear right to relief and mandamus therefore is not an appropriate remedy. See, e.g., Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013,
80 L.Ed.2d 622 (1984); Weber v. United States, 209 F.3d at 760 (“[M]andamus is proper only when an agency has a clearly established duty to act.”).Carson v. U.S. Office of Special Counsel, 534 F.Supp.2d 103, 105 (D.D.C.2008). On this score, it is well-settled that decisions to grant or deny immigration removal orders are not the type of clear and non-discretionary actions which are amenable to resolution through a writ of mandamus. Quite the contrary, courts have repeatedly refused to assert mandamus jurisdiction to alter, amend or revoke immigration removal orders like the order pending against Asemani. See e.g., Merritt v. United States Immigr. & Customs Enft, 737 Fed.Appx. 66, 67 (3d Cir. 2018); Monteiro v. Att'y Gen. of U.S., 261 Fed.Appx. 368, 369 (3d Cir. 2008).
Moreover, and more fundamentally, Asemani errs when he suggests that we have any jurisdiction whatsoever to consider his belated nationality claims, or any ability to review and revisit the merits of his eighteen year old removal order. We do not. As we have previously explained:
This issue was addressed by the United States Court of Appeals for the Third Circuit in Jordon v. Attorney General of the United States, 424 F.3d 320 (3d Cir.2005). In Jordon, the appellate court held that, under the REAL ID Act, such claims could not be brought [to the district court] by habeas corpus petitions but rather must be presented to the court of appeals. As the court of appeals observed:
Several provisions of 8 U.S.C. § 1252 (both pre- and postREAL ID Act) make the courts of appeals, not district courts, the first and often last judicial arbiter of nationality claims .... The REAL ID Act, which became law just days after argument in this case on May 11, 2005, allows us to
avoid the dense thicket of habeas jurisdiction over nationality claims. The REAL ID Act amended 8 U.S .C. § 1252 in several pertinent respects. First and foremost, it made petitions for review filed with the court of appeals the “sole and exclusive means for judicial review of” most orders of removal, including the order of removal at issue here. See 8 U.S.C. § 1252(a)(5) (1999 & Supp. 2005); Bonhometre v. Gonzales, 414 F.3d 442, 445 (3d Cir. 2005). In so doing, the Act expressly eliminated district courts' habeas jurisdiction over removal orders. Id.; see also Kamara v. Attorney General of the United States, 420 F.3d 202, 208 (3d Cir. 2005). At the same time, the Act also enlarged our jurisdiction, stating that none of its provisions “which limit [ ] or eliminate [ ] judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.” 8 U.S.C. § 1252(a)(2)(D) (2005); Bonhometre, 414 F.3d at 445. We have explained that this amendment evidences Congress's “intent to restore judicial review of constitutional claims and questions of law presented in petitions for review of final removal orders. This now permits all aliens, including criminal aliens, to obtain review of constitutional claims and questions of law upon filing of a petition for review with an appropriate court of appeals.” Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005).Jordon v. Attorney General of United States, 424 F.3d 320, 326-27 (3d Cir. 2005). See, e.g., Chuva v. Attorney General, 424 Fed.Appx. 176 (3d Cir. 2011) (district court properly dismissed habeas corpus petition which raised derivative citizenship claim, in favor of REAL ID Act review by court of appeals); Perez v. Attorney General, 391 Fed.Appx. 1000 (3d Cir. 2010) (appellate court review of derivative citizenship claim); Rodrigues v. Attorney General, 321 Fed.Appx. 166 (3d Cir. 2009) (same). Faustov v. Napolitano, No. 1:13-CV-1018, 2013 WL 3474766, at *6-7 (M.D. Pa. July 10, 2013).
Simply put, since it is well-settled that “[s]everal provisions of 8 U.S.C. § 1252 (both pre- and post-REAL ID Act) make the courts of appeals, not district courts, the first and often last judicial arbiter of nationality claims[,]” id., we lack jurisdiction to hear Asemani's latest claim of citizenship. Therefore this case should be dismissed.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the plaintiff's complaint be dismissed.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall
witnesses or recommit the matter to the magistrate judge with instructions.