Opinion
14 CV 822 (KAM) (LB)
03-10-2014
ROYMER TEJEDA, Petitioner, v. ERIC H. HOLDER, JR., Respondent.
ORDER
MATSUMOTO, United States District Judge:
On January 27, 2014, pro se petitioner Roymer Tejeda, who is currently incarcerated at the Rivers Correctional Institution in Winton, North Carolina, commenced this action to seek a declaration of his United States nationality in order to participate in programs at Rivers Correctional Institution. The Court grants petitioner's request to proceed in forma pauperis but orders petitioner to file an affirmation within 30 days of the date of this order as set forth below.
Section 1503(a) provides that an action seeking a declaration of United States nationality "shall be filed in the district court of the United States for the district in which such person resides or claims a residence." 8 U.S.C. § 1503(a). Here, petitioner currently resides in his place of incarceration: Winton, North Carolina. But petitioner does not state where he was domiciled before his incarceration or allege that he claims a residence in any of the counties within the Eastern District of New York (e.g., Kings, Queens, Richmond, Nassau or Suffolk counties).
The Court declines to transfer this action at this time as it is unclear whether it could have been filed in the Eastern District of North Carolina (where Rivers Correctional Institution in Hertford County, North Carolina, is located) because petitioner does not allege that he resides or claims a residence there for any reason other than his incarceration. See 28 U.S.C. § 1406(a) (district court may transfer case filed in the wrong district to any district in which it could have been brought). In addition, any district court would lack jurisdiction to grant petitioner a declaration of citizenship if the question of petitioner's nationality is "in issue" in a pending removal proceeding. See 8 U.S.C. § 1503(a). Although petitioner is "waiting to be deported," (Petition at 1), he alleges that he acquired citizenship through his father who was naturalized on September 29, 2000.
Section 1503 of Title 8 vests a district court with jurisdiction to grant a declaration of citizenship to any person who "claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency . . . upon the ground that he is not a national of the United States," except if "the issue of such person's status as a national of the United States (1) arose by reason of, or in connection with any removal proceeding . . . or (2) is in issue in any such removal proceeding."
Conclusion
The Court orders petitioner to file an affirmation under penalty of perjury that states his place of residence prior to his incarceration and provides the status of any removal proceedings filed against him. The court further orders petitioner to provide the dates for his place of residence before his incarceration and for any removal proceedings commenced against him. The affirmation must be filed within 30 days from the date of this Order and shall be titled "Affirmation" and include this docket number, 14 CV 822 (KAM) (LB). If petitioner fails to file an affirmation within 30 days from the entry of this Order, the action shall be dismissed without prejudice and judgment shall enter. 28 U.S.C. § 1915A; 1915(e)(2)(B). All further proceedings shall be stayed for 30 days from the entry of this Order.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The clerk of court is respectfully requested to mail a copy of this order to petitioner and note service on the docket.
SO ORDERED.
__________
Kiyo A. Matsumoto
United States District Judge
Dated: March 10, 2014
Brooklyn, New York