Xia v. Kerry , 145 F. Supp. 3d 68 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
——_.E-————_:_———————_—.____§;
‘ LIHONG XIA, et al. ,
Plaintiffs,
v, No. 1:14-cv-00057-RCL
JOHN F. KERRY, US. Secretary of State,
et (11.,
Defendants.
:MEMORANDIIM OPINIONS]
This matter comes before the Court on the plaintiffs’ Motion for Leave to File Amended
Complaint [24]. Upon consideration of the record and applicable legal standards, the plaintiffs’
motion will be DENIED.
I. BACKGROUND
Plaintiffs brought suit against John F. Kerry, Secretary of State, and J eh C. Johnson,
Secretary of the Department of Homeland Security (“Defendants”), in January 2014.1 Compl. 1.
The plaintiffs alleged violations of the Due Process Clause of the Fifih Amendment; the Civil
Rights Act (“CRA”), 42 U.S.C. §§ 1981, 1983; the Immigration and Nationality Act (“INA”), 8
U.S.C. §§ 1421, 1451(a); and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.
Am. Compl. 1111 62—71.
This Court dismissed the plaintiffs’ claims sua sponte in November 2014 for failure to
state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 19. Namely, the
Court found that three of the four plaintiffs’ Fifth Amendment, INA, and APA claims failed
because only Xia had administratively exhausted her claim. ECF No. 18 at 14—15. The Court
1 The Court only provides facts essential to the present motion.
1
also found that the complaint failed to state a claim under the Fifth Amendment because it did
not describe “what additional procedures plaintiffs believe[d] they were guaranteed pursuant to
the Due Process Clause.” Id. at 11.
Additionally, the Court determined that the plaintiffs did not adequately state a cause of
action under the CM, 42 U.S.C. §§ 1981, 1983, because they failed to allege that the defendants
acted “under color of state law.” See id. at 12—13 (noting that these sections of the CRA are
inapplicable to actions against “federal defendants acting under color of federal law”). The
complaint also failed to state a claim under the INA §§ 1421 and 1451(a) because, in sum, these
statutes did not apply to the provided facts. Id at 14.
Finally, the plaintiffs did not adequately plead specific violations of the APA. They made
broad claims that their passports were arbitrarily revoked and did not explain how this revocation
was arbitrary or what process they were denied when their naturalization certificates were
cancelled. 1d. at 15. Furthermore, the Court determined that “[e]ven if plaintiffs had adequately
pleaded specific violations of the APA, plaintiff Xia likely would be precluded from such a claim
because she ha[d] an alternate judicial remedy available to her.” Id at 14.
This “alternate judicial remedy” available to Xia is § 1503 of the INA. See id. at 16
(“[O]nly plaintiff Xia has administratively exhausted her claims, and therefore is entitled to bring
a claim under Section 1503.”). As asserted by the Court, “At the heart of Xia’s claim is her
desire to be recognized as a United States citizen: to be afforded due process and obtain a lawful
passport and Naturalization Certificate. This seems to be exactly the opportunity Section 1503
offers her.” Id. (internal citations omitted). “Section 1503 permits citizens to have an Article III
court adjudge their citizenship de novo if it is questioned. A successful adjudication would
permit Xia to obtain the relevant paperwork.” Id at 16—17.
The Court also noted that courts must generally give plaintiffs an opportunity to amend
their complaint following a sua sponte dismissal of their claims. Id at 8. Thus, though the Court
dismissed the plaintiffs’ complaint, it identified an opportunity for plaintiff Xia to move to file an
amended complaint, presumably based on § 1503.
The plaintiffs filed a motion for reconsideration [21] of the dismissal, which the Court
denied because the dismissal was not a “final judgment.” ECF No. 23 at 1. In this memorandum,
the Court once again reminded the plaintiffs that they could request leave to file an amended
complaint. See id. at 2 (“[P]laintiffs are permitted to seek to file an amended complaint in an
attempt to satisfy the requirements of T wombly and Iqbal. Of course, this motion must be
accompanied by a proposed amended complaint that plaintiff’ s [sic] will seek to file, giving
defendants an opportunity to oppose”).
In April 2015, the plaintiffs filed a motion for leave to file an amended complaint. ECF
No. 24. The proposed amended complaint once again requests relief under the Fifth Amendment,
the CRA, the INA, and the APA, but it also adds a claim under § 1447 of the INA and explicitly
invokes § 1503 of the INA, as recommended by the Court. ECF No. 24—1.
Defendants oppose the plaintiffs’ motion for leave to amend on multiple grounds. In
short, the defendants argue that the plaintiffs’ amended complaint “does not remedy the fatal
flaws of their original complaint.” Id. at 10. Additionally, the defendants assert that this Court is
the incorrect venue for plaintiff Xia’s § 1503 claim.
The Court must now determine whether the plaintiffs should be granted leave to file their
proposed amended complaint in light of these challenges.
II. LEGAL STANDARDS
A. Leave to Amend
Courts should grant leave to amend a complaint under Federal Rule of Civil Procedure
15(a) “when justice so requires.” Fed. R. Civ. P. 15(a)(2); Nattah v. Bush, 541 F. Supp. 2d 223,
229 (D.D.C. 2008). It is within a court’s discretion to deny leave to amend, however, for
“sufficient reason,” such as undue delay, bad faith, dilatory motive, failure to cure deficiencies
by previous amendments, or fiitility of the amendment. Firestone v. Firestone, 76 F.3d 1205,
1208 (DC. Cir. 1996) (citing Foman v.‘Davis, 371 US. 178, 182 (1962)); see also Willoughby v.
Potomac Elec. Power Co., 100 F .3d 999, 1003 (DC. Cir. 1996) (finding that the district court
did not abuse its discretion when it denied leave to amend because the amended complaint would
have been futile). A motion to amend is considered futile “if the proposed claim would not
Ltd. v. Ludwig, 82 F.3d 1085, 1099 (DC. Cir.
survive a motion to dismiss.” James
1996) (citing Foman, 371 US. at 181—82).
B. Venue
“If the district in which the action is brought is not a proper venue, then that district court
may either dismiss, ‘or if it be in the interest of justice, transfer such case to any district or
division in which it could have been brought.” Roman-Salgado v. Holder, 730 F. Supp. 2d 129(D.D.C. 2010) (quoting 28 U.S.C. § 1406(a)). Though transfer is typically favorable, it is within
the sound discretion of the court to determine whether dismissal or transfer is “in the interest of
justice.” Roman-Salgado, 730 F. Supp. at 129 (citing Naartex Consulting Corp. v. Watt, 722 F.2d
779, 789 (DC. Cir. 1983)). “Because it is the plaintiff” s obligation to institute the action in a
permissible forum, the plaintiff usually bears the burden of establishing that venue is proper.”
Freeman v. Fallin, 254 F. Supp. 2d 52, 56 (D.D.C. 2003).
Section 1503 of the INA includes a specific venue provision, stating that actions under
this subsection “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. § 15‘03(a). This requirement of § 1503
overrides the general venue provisions of federal law. See Roinan-Salgado, 730 F. Supp. 2d at
129 (citing 28 U.S.C. § 1391(e) (stating that the general venue rules of federal courts listed
control “except as otherwise provided by law”)); see also Frank v. Brownell, 149 F. Supp. 928,
931 (D.D.C. 1957) (“As to the exclusiveness of the venue provision of [8 U.S.C. § 1503(a)], I
find little ground for debate, absent waiver”).
Accordingly, actions under § 1503 must be brought in the district where the plaintiff
resides. 8 U.S.C. § 1503 (a). Where the plaintiff resides-for the purpose of venue determination is
based on where she resided when the action was initiated. See North v. Rooney, No. 03-1811
(JBS), 2003 WL 21432590, at *4 (D. N.J. June 18, 2003) (“Under these facts, the Court likely
has subject matter jurisdiction over this matter pursuant to § 1503(a). Venue is proper in the
District of New Jersey because of plaintiff’ s residency at F.C.I. F airton at the time of filing the
' Complaint through today”).
III. APPLICATION
A. Deficiencies Repeated in the Amended Complaint
i. Lack of Administrative Exhaustion
Though the plaintiffs claim in their amended complaint that “[n]o administrative
remedies under the U. S. Constitution, the Immigration and Naturalization Act (“INA”) and the
Administrative Procedure Act (“APA”) remain to be exhausted that would not be fiitile or would
provide the relief sought in this complaint,” they neither explain why the plaintiffs—other than
Xia—failed to appeal the USCIS’s decisions, nor why these appeals would have been futile. Am.
Comp]. 1] 81; see ECF No. 18 at 10 (stating that, in this case, “[t]here is no ‘certainty of an
adverse decision or indications that pursuit of administrative remedies would be clearly
useless.”’ (quoting Cost v. Soc. Sec. Admin, 770 F. Supp. 2d 45, 50 (D.D.C. 2011))).. The
amended complaint also asserts that plaintiff Liu “has exhausted his administrative remedies and,
for his losses, has no adequate remedy at law” but does not explain how his failure to appeal the
decision does not amount to a failure to exhaust his administrative remedies. Am. Compl. 11 91.
Additionally, plaintiffs do not demonstrate what “exceptional circumstances” present in
this case mandate waiver of the exhaustion requirement. See ECF No. 18 at 9 (“Thus, ‘[t]he
3”
exhaustion requirement may be waived in only the most exceptional circumstances. (quoting
Ly v. US. Postal Serv., 775 F. Supp. 2d 9, 12 (D.D.C. 2011))). Consequently, three-quarters of
the plaintiffs have not resolved the exhaustion deficiencies plaguing their Fifih Amendment,
INA, and APA claims.
ii. Vagueness of Due Process Claim
Plaintiffs’ amended complaint also fails to clearly state “what sort of process is due”
under the Fifth Amendment. See id. at 11 (stating this as a requirement for due process claims)
(quoting Elkins v. Dist. of Columbia, 93 F.3d 861, 869 (DC. Cir. 1996)). The amended
complaint once again makes vague allegations that the plaintiffs were denied “due process of law
such as hearings in any administrative procedures or an open court.” Am. Compl. 1] 96; see ECF
No. 18 at 11 (“While plaintiffs make the vague allegation that they were denied ‘hearings in any
administrative procedures and or [sic] an open court,’ their filings demonstrate that in fact
plaintiffs were provided with process that included hearings and the right to appeal.” (internal
citation omitted)). Consequently, all four of the plaintiffs’ Fifih Amendment claims fail in this
respect and would not survive a motion to dismiss.
iii. Failure of CRA Claims to Allege Acts Conducted Under Color of State Law
Though the Court specifically criticized the plaintiffs’ failure to allege acts conducted
“under color of state law” in their prior complaint, the plaintiffs’ amended complaint still claims
that the defendants acted merely “under color of law.” Am. Compl. ‘fl‘fl 80, 97, 102; ECF No. 18
at 12—13. Sections 1981 and 1983 of the CRA do “not apply to federal defendants acting under
color of federal law.” ECF No. 18 at 12—13. Because the plaintiffs’ amended CRA claims are
still lacking this “essential element,” they also would not survive a subsequent motion to dismiss.
iv. Further Shortcomings 0f INA and APA Claims
In addition to three of the plaintiffs’ lack of administrative exhaustion, the plaintiffs’
amended complaint also neglects to explain how §§ 1421, 1447(b), and 1451(a) of the INA apply
to the provided facts. See 8 U.S.C. § 1421 (providing judicial review where an application for
naturalization is denied); id § 1447(b) (allowing a court to review a naturalization application if
the Attorney General fails to make a determination on the application); id. § 1451(a) (granting
the Attorney General power to revoke a certificate of naturalization). The amended complaint
still does not articulate how defendants’ actions violate these provisions.
The amended complaint also fails to state factual allegations demonstrating how the APA_
was violated. Like their previous complaint, “plaintiffs do not explain what process they were
denied when their naturalization certificates were cancelled, especially when plaintiffs were
provided with hearings and a right to appeal.” ECF No. 18 at 15. Additionally, plaintiff Xia still
has an alternative judicial remedy available to her—§ 1503 of the INA—which precludes her
claims under the APA. Id. The plaintiffs explicitly invoke § 1503 in their amended complaint,
but this remedy is only available to Xia, due to the other plaintiffs’ failure to exhaust.
In sum, the plaintiffs have failed to cure inadequacies present in their previous complaint
that led this Court to dismiss their claims under Rule 12(b)(6). Thus, granting the plaintiffs leave
to amend their complaint would inevitably prove futile with respect to their restated claims under
the Fifih Amendment, the APA, the CRA, and the INA, as well as their added INA § 1447 claim.
This leads the Court to its final necessary determination: whether plaintiff Xia’s newly stated
§ 1503 claim would survive a motion to dismiss and therefore make plaintiffs’ filing of the
amended complaint a worthwhile exercise.
B. Improper Venue for § 1503 Claim
Plaintiffs’ amended complaint repeatedly states that Xia is a resident of New Jersey. Am.
Compl. 11'” 7, 75. Consequently, the only proper venue for her § 1503 claim is in the US. District
Court for the District of New Jersey. 18 U.S.C. § 1503 (a). Though the plaintiffs respond to the
defendants’ venue challenge with the assertion that “[a]t the time of accrual of the triggering
issue, and at the time of their naturalization, [the plaintiffs] all appear to be the residents of the
District of Columbia or physically residing in the Greater Washington DC areas,” this statement
is unsubstantiated and, more importantly, is irrelevant to the Court’s venue analysis. Pl. ’s Reply
to Def’s Opp. 12. Where Xia resided “at the time of accrual of the triggering issue”——as
described by the plaintiffs—is immaterial to determination of the proper venue for this claim.
In spite of the plaintiffs’ contention that “improper venue is never a sufficient grounds for
pretrial dismissal,” this simply is not the case. 1d.; see 28 U.S.C. § 1406(a) (“The district court of
a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if
it be in the interest of justice, transfer such case to any district or division in which it could have
been brought.” (emphasis added)). Thus, granting leave to amend the complaint with respect to
plaintiff Xia’s INA § 1503 claim would also be futile because the District of Columbia is the
incorrect venue, and consequently, the claim would be dismissed by this Court.
In conclusion, because the plaintiffs’ proposed amended complaint fails to rectify the
previous complaint’s inadequacies, and this Court is the improper venue for plaintiff Xia’s
§ 1503 action, allowing leave to file the amended complaint would prove fiitile because the
amended complaint would not survive a subsequent motion to dismiss. Accordingly, this Court
will deny plaintiffs’ motion for leave to file an amended complaint. Plaintiff Xia may file a
complaint in the District of New Jersey, her place of residence, under 1503 of the INA if she so
desires.
IV. CONCLUSION
For the foregoing reasons, the plaintiffs’ motion for leave to file an amended complaint
will be DENIED. A separate order consistent with this Memorandum Opinion shall issue this
date_.,_
; C._LAI\/IBERTI:I
United States District Judge
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