Assem Abulkhair v. George Bush ( 2011 )


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  •                                                      NOT PRECEDENTIAL
    
                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________
    
                                        No. 10-2812
                                        ___________
    
                                   ASSEM ABULKHAIR,
                                                 Appellant
    
                                              v.
    
     GEORGE W. BUSH, President of the United States, individually and in his capacity as
     President of the United States of America; MICHAEL B. MUKASEY, individually and
        in his capacity as Attorney General of the United States; MICHAEL CHERTOFF,
     individually and his capacity as Secretary, Department of Homeland Security; UNITED
       STATES CITIZENSHIP AND IMMIGRATION SERVICES; JOHN THOMPSON,
       individually and in his capacity as District Director U.S. Citizenship & Immigration
        Services; EMILIO GONZALEZ, individually and in his capacity as Director U.S.
    Citizenship & Immigration Services; ROBERT S. MUELLER, III, individually and in his
           capacity as Director, Federal Bureau of Investigation; MICHAEL HAYDEN,
             individually and in his capacity as Director, Central Intelligence Agency;
                              THE UNITED STATES OF AMERICA
                            ____________________________________
    
                       On Appeal from the United States District Court
                                  for the District of New Jersey
                                  (D.C. Civil No. 08-cv-05410)
                       District Judge: Honorable Dennis M. Cavanaugh
                         ____________________________________
    
                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      January 20, 2011
    
              Before: AMBRO, HARDIMAN and STAPLETON, Circuit Judges
    
                               (Opinion filed: February 9, 2011)
                                             _________
    
                                             OPINION
                                             _________
    
    PER CURIAM
    
           Assem Abulkhair, proceeding pro se, appeals from the district court‟s order
    
    granting the defendants‟ motions for summary judgment and to dismiss his amended
    
    complaint. We will affirm.
    
                                                  I.
    
           Abulkhair is a native and citizen of Egypt who entered the United States as a
    
    visitor in 1987. Effective February 13, 1997, he was granted status as a Lawful
    
    Permanent Resident. He filed a Form N-400 Application for Naturalization on
    
    November 29, 2001. Eligibility for naturalization requires the applicant to demonstrate
    
    that he or she has: (1) resided continuously in the United States for at least five years
    
    after being lawfully admitted for permanent residence; (2) maintained physical presence
    
    for at least half of the five years immediately preceding the application date; (3) resided
    
    in the United States from the date of the application to the time of admission to
    
    citizenship, and (4) established and maintained good moral character. 8 U.S.C. §
    
    1427(a).
    
           Abulkhair‟s application stated that he had resided in Paterson, New Jersey, from
    
    October 1989 through March 20, 2000, and that he resided in Passaic, New Jersey, from
    
    March 2000 through the date of the application. He asserted that that he had been
    
                                                  2
    employed with PPI/Time Zero from December 28, 2000 through July 23, 2001, and that
    
    he was employed at Passaic Employment Services from May 2002 through the date of the
    
    application. He also stated that the only time he has traveled outside the United States
    
    was from December 9, 1998 through February 17, 1999, when he visited family in Egypt.
    
           The United States Citizenship and Immigration Services (“USCIS”) interviewed
    
    Abulkhair on October 16, 2002. It did not, however, adjudicate his application at that
    
    time. Rather, it requested that Abulkhair provide the following documentation: (1) his
    
    Egyptian passport or an affidavit from the Egyptian Consulate stating that it had retained
    
    the passport, as he had asserted during his interview; (2) his original United States Re-
    
    Entry Permit; (3) proof of residence since 1996; (4) police/arrest records; and (5) original
    
    or certified court disposition records. The request form noted that photocopies of the
    
    requested documents were not acceptable, and that the “non-existence or other
    
    unavailability of required evidence creates a presumption of ineligibility.” It also stated
    
    that if the requested documents could not be obtained, the applicant “must demonstrate
    
    this and submit secondary evidence, such as church or school records, pertinent to the
    
    facts at issue. If secondary evidence . . . cannot be obtained, the applicant . . . must
    
    demonstrate [this] . . . and submit two or more affidavits, sworn to or affirmed by persons
    
    who are not parties to the petition who have direct personal knowledge. . . . [A]ffidavits
    
    must overcome the unavailability of both primary and secondary evidence.”
    
           In a November 6, 2002 letter to the USCIS, Abulkhair stated that he was
    
    attempting to comply with the document requests, submitting: (1) a letter that he had sent
                                                   3
    to the Egyptian Consulate; (2) a partial copy of his expired Egyptian passport; (3) an
    
    affidavit (prepared by him) stating that the original Re-Entry Permit “no longer
    
    exist[ed];” (4) a letter from the Municipal Court of Garfield, New Jersey regarding 1991
    
    and 1992 court proceedings; and (5) copies of additional court proceedings.
    
           On December 31, 2002, the USCIS denied Abulkhair‟s application, determining
    
    that he was ineligible for naturalization because he had failed to submit proof of his
    
    continuous residence and presence in the United States during the previous five years and
    
    because he had failed to prosecute the application by not providing the required
    
    documentation. Thereafter, Abulkhair requested an administrative hearing pursuant to 8
    
    U.S.C. § 1447(a).
    
           On July 18, 2003, at Abulkhair‟s subsequent interview, the USCIS requested that,
    
    within thirty days, he submit “proof that he had paid income taxes to the IRS from 1996
    
    to 2001 (I-1722)” and “copies of cancelled checks from 1996 to the present.” The
    
    request form stated that his application could not be acted upon until he submitted the
    
    requested documentation. Abulkhair did not, however, fully comply with the request. It
    
    appears that he did submit some documents indicating that he filed income tax returns for
    
    at least part of the relevant time period. He also submitted copies of cancelled checks
    
    made out to a utility company and a copy of a 2003 gas bill for service at a Passaic, New
    
    Jersey address. All of these documents listed Abulkhair‟s address as a Post Office Box in
    
    Clifton, New Jersey.
    
           In the following years, Abulkhair made several requests to the USCIS for updates
                                                 4
    as to the status of his application. The USCIS responded that his application could not be
    
    adjudicated due to outstanding security/background checks. Then, on September 15,
    
    2008, the USCIS issued a final denial of Abulkhair‟s application for naturalization. It
    
    found that his application was deficient for the following reasons: (1) he failed to provide
    
    a passport or re-entry permit showing his travel outside the United States; (2) he failed to
    
    properly respond to USCIS‟s request for income tax information; and (3) the file showed
    
    that he did not provide original or certified court dispositions for his arrests.
    
           Abulkhair then filed a complaint in the United States District Court for the District
    
    of New Jersey pursuant to 8 U.S.C. § 1447(b) challenging the USCIS‟s delay in
    
    adjudicating his application. On December 19, 2008, the district court dismissed the
    
    complaint, determining, among other things, that his claims regarding the delay in
    
    adjudication were moot.1 Abulkhair thereafter filed a motion for reconsideration,
    
    informing the district court that he was seeking judicial review of the denial of his
    
    application pursuant to 8 U.S.C. § 1421(c). The district court granted the motion and
    
           1
             We note that, to the extent that Abulkhair attempts to claim that the delay in
    processing his application for naturalization violated 8 U.S.C. § 1447, the district court
    correctly determined that any such claim is moot. (See D.N.J. Civ. No. 08-cv-5410, Dkt.
    No. 3 (Dec. 19, 2008).) The statute gives the district court jurisdiction over an
    application for naturalization if the USCIS fails to make a determination on the
    application within a certain time period. 8 U.S.C. § 1447(b). The district court “may
    either determine the matter or remand the matter, with appropriate instructions, to the
    [USCIS] to determine the matter.” Id. Here, the USCIS‟s determination of Abulkhair‟s
    application, while untimely, occurred before Abulkhair filed his complaint in the district
    court. Accordingly, a live controversy concerning the determination of the application—
    the subject matter of Section 1447—did not exist and the claim was moot. See Int’l Bhd.
    of Boilermakers v. Kelly, 
    815 F.2d 912
    , 915 (3d Cir. 1987) (explaining the live
    controversy requirement).
                                                   5
    reopened the case.
    
           On May 14, 2009, Abulkhair filed an amended complaint seeking monetary
    
    damages for alleged violations of his constitutional rights, as well as review of the
    
    USCIS‟s denial of his application for naturalization. All of his claims are premised on
    
    his assertion that his application was denied because he is a “Moslem living in the U.S.”
    
    The defendants filed a motion to dismiss as to Abulkhair‟s claims for monetary damages
    
    as well as a motion for summary judgment as to his claim regarding the decision to deny
    
    his application. The district court granted the defendants‟ motions. Abulkhair now
    
    appeals.
    
                                                  II.
    
           We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
    
    over the district court‟s decisions on motions to dismiss under Federal Rules of Civil
    
    Procedure 12(b)(1) and (6), and for summary judgment under Federal Rule of Civil
    
    Procedure 56. See, e.g., Gould Elecs. Inc. v. United States, 
    220 F.3d 169
    , 176 (3d Cir.
    
    2000); DiGiacomo v. Teamsters Trust Pension Fund, 
    420 F.3d 220
    , 222 n.4 (3d Cir.
    
    2005); Kehm Oil Co. v. Texaco, Inc., 
    537 F.3d 290
    , 293 (3d Cir. 2008).
    
           A.     Dismissal under Federal Rule of Civil Procedure 12(b)(1)
    
           Abulkhair seeks monetary damages from the United States, the USCIS, and the
    
    individual federal defendants in their official capacities for violating his constitutional
    
    rights by denying his naturalization application, allegedly due to his religion. The district
    
    court appropriately considered, and then rejected, the Federal Tort Claims Act (“FTCA”)
                                                  6
    as providing a cause of action for this assertion. The FTCA provides a limited exception
    
    to the United States‟ immunity from suit for certain tort claims. See 28 U.S.C. §§
    
    1346(b), 2671-80. However, to proceed on an FTCA claim in federal court, the claimant
    
    “shall have first presented the claim to the appropriate Federal agency.” 28 U.S.C. §
    
    2675(a). Failing to follow this procedure deprives federal courts of subject matter
    
    jurisdiction. White-Squire v. USPS, 
    592 F.3d 453
    , 456-58 (3d Cir. 2010). Additionally,
    
    because the FTCA is a waiver of sovereign immunity by the United States, its
    
    requirements are strictly construed. Id. at 456. The defendants moved to dismiss
    
    Abulkhair‟s FTCA claim based on, among other things, his failure to exhaust
    
    administrative remedies.
    
           We agree that Abulkhair‟s claim, to the extent that it implicated the FTCA, was
    
    properly dismissed under Rule 12(b)(1). Abulkhair has not filed an administrative tort
    
    claim with the USCIS, or any federal agency, and therefore did not exhaust his
    
    administrative remedies before filing suit.2
    
           B.     Dismissal under Federal Rule of Civil Procedure 12(b)(6)
    
           Abulkhair also named officials in their individual capacities as defendants,
    
    asserting that they violated his constitutional rights pursuant to a policy of discriminating
    
    against Muslims who apply for naturalization. The district court appropriately considered
    
    
           2
            Abulkhair‟s argument that he was not required to exhaust his administrative
    remedies is meritless. Because we affirm based on the Abulkhair‟s failure to exhaust his
    administrative remedies, we do not consider the other bases for the district court‟s
    dismissal of this claim.
                                                   7
    these assertions as claims brought under Bivens v. Six Unknown Agents of Federal
    
    Bureau of Narcotics, 
    403 U.S. 388
     (1971). Bivens allows a plaintiff to bring a claim
    
    against federal officers acting under color of law for violations of that individual‟s
    
    constitutional rights. Id. at 397. However, “[b]ecause vicarious liability is inapplicable
    
    to Bivens and § 1983 suits, a plaintiff must plead that each Government-official
    
    defendant, through the official‟s own individual actions, has violated the Constitution.”
    
    Ashcroft v. Iqbal, 
    129 S. Ct. 1937
    , 1948 (2009).
    
           The defendants moved to dismiss Abulkhair‟s Bivens claims based on, among
    
    other things, his failure to allege any facts that the named federal defendants were
    
    personally involved in the alleged violations of his constitutional rights. We agree with
    
    the district court that Abulkhair failed to sufficiently plead a claim against any defendant
    
    under Bivens.
    
           “To survive a motion to dismiss, a complaint must contain sufficient factual
    
    matter, accepted as true, „to state a claim to relief that is plausible on its face.‟” Id. at
    
    1949 (citing Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 570 (2007)). “Threadbare recitals
    
    of the elements of a cause of action, supported by mere conclusory statements, do not
    
    suffice.” Id. Further, to state a Bivens claim based on alleged unconstitutional
    
    discrimination, the petitioner “must plead sufficient factual matter to show that [a
    
    defendant] adopted and implemented the . . . policies at issue not for a neutral . . . reason
    
    but for the purpose of discriminating on account of race, religion, or national origin.” Id.
    
    at 1948-49.
                                                    8
           Abulkhair did not make specific claims against any of the named defendants.3
    
    Rather, reading the complaint liberally, he appears to be asserting that the defendants
    
    adopted an unconstitutional policy of discrimination against Muslim applicants for
    
    naturalization. As in Iqbal, Abulkhair‟s conclusory assertions against the federal officials
    
    have not “nudged [his] claims of invidious discrimination across the line from
    
    conceivable to plausible,” so as to be entitled to a presumption of truth, as is required to
    
    survive a motion to dismiss. Id. at 1950-51 (internal quotations omitted) (alteration in
    
    original). Accordingly, the district court appropriately dismissed these claims under Rule
    
    12(b)(6).
    
           C.     Summary Judgment under Federal Rule of Civil Procedure 56(c)
    
           Abulkhair also appeals from the district court‟s decision granting the defendants‟
    
    motion for summary judgment as to his claim that the USCIS erred by denying his
    
    application for naturalization. See 8 U.S.C. § 1421(c).4 Under Section 1421(c), the
    
    
           3
             The individual federal defendants are: George W. Bush, former President of the
    United States; Michael Mukasey, former Attorney General of the United States; Michael
    Chertoff, former Secretary of the Department of Homeland Security; Robert S. Mueller,
    III, Director of the Federal Bureau of Investigation; Michael V. Hayden, former Director
    of the Central Intelligence Agency; Emilio T. Gonzalez, former director of the USCIS;
    and John Thompson, District Director of the USCIS, Newark Service Center.
           4
             Section 1421(c) also requires the district court, “at the request of the petitioner,
    [to] conduct a hearing de novo.” Abulkhair contends that this precludes the district court
    from deciding the case on a Rule 56 motion for summary judgment without oral
    argument. However, the Federal Rules of Civil Procedure “apply to proceedings for
    admission to citizenship to the extent that the practice in those proceedings is not set forth
    in federal statutes and has previously conformed to the practice in civil actions.” Fed. R.
    Civ. P. 81(a)(3). The Second Circuit has noted that application of the Federal Rules of
                                                  9
    district court is required to review the denial of naturalization de novo and to “make its
    
    own findings of fact and conclusions of law.” Summary judgment is appropriate when
    
    there are no genuine issues of material fact and the movant is entitled to judgment as a
    
    matter of law. Fed. R. Civ. P. 56(c).
    
           An applicant for naturalization has the burden of establishing “by a preponderance
    
    of the evidence that he or she meets all of the requirements for naturalization.” 8 C.F.R.
    
    § 316.2(b). “[T]here must be strict compliance with all the congressionally imposed
    
    prerequisites to the acquisition of citizenship.” Fedorenko v. United States, 
    449 U.S. 490
    , 506 (1981). Upon filing an application for naturalization, the USCIS conducts a
    
    background investigation, including a review of all pertinent immigration and police
    
    records. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1. Next, the applicant is interviewed and is
    
    also subject to an “examination” that may include testimony of witnesses in addition to
    
    the applicant and production of relevant books, papers, and documents. 8 U.S.C. §
    
    1446(b). Upon completion of the examination and all background checks, the USCIS
    
    adjudicates the application. Here, the USCIS denied Abulkhair‟s application because he
    
    failed to demonstrate proof of presence/residence and because he failed to prosecute his
    
    application.
    
    
    
    Civil Procedure is “the norm under the current naturalization provision … and was the
    norm under the prior law.” Chan v. Gantner, 
    464 F.3d 289
    , 296 (2d Cir. 2006) (citations
    omitted). It then determined that the Rule 56 process provides the “the hearing required
    by section 1421(c).” Id. at 295-96. We agree. Under the circumstances of this case, the
    district court did not err by failing to hold oral argument before deciding the summary
    judgment motion.
                                                 10
           As stated above, Abulkhair was required to establish that he had resided
    
    continuously in the United States for five years after being lawfully admitted for
    
    permanent residence, and that he had maintained “physical presence” in the United States
    
    for half of the five years immediately preceding the application date. See 8 U.S.C. §
    
    1427(a). Accordingly, he had to establish residence and presence in the United States
    
    from February 1997 through November 2001. The term “residence,” for purposes of
    
    determining eligibility for naturalization, is the same as the applicant‟s “domicile, or
    
    principal actual dwelling place, without regard to … intent.” 8 C.F.R. § 316.5(a); see
    
    also 8 U.S.C. § 1101(a)(33).
    
           Abulkhair‟s application stated that he resided in Paterson, New Jersey, from
    
    October 1, 1989 to March 20, 2000, and that he has resided in Passaic, New Jersey, from
    
    March 20, 2000 to the date of the application. In response to the USCIS‟s requests for
    
    documents, he provided some cancelled checks, a copy of a 2003 gas bill, some
    
    indication that he had filed some federal income tax returns, and various other
    
    documents. However, as the district court determined, these documents did little to
    
    establish that Abulkhair actually resided in Paterson or Passaic because every document
    
    listed his mailing address as a Post Office Box in Clifton, New Jersey. It was thus not
    
    error for the district court to conclude that Abulkhair had not met his burden of
    
    establishing that he met the continuous residence/physical presence requirements.
    
    Further, even if Abulkhair was unable to obtain the documents that the USCIS requested,
    
    there is no indication that he attempted to follow the procedures as outlined by the USCIS
                                                 11
    for submitting secondary documents or affidavits to “overcome the unavailability of both
    
    primary and secondary evidence.”
    
           For the foregoing reasons, the district court appropriately granted the defendants‟
    
    motions to dismiss and for summary judgment. We will affirm the judgment of the
    
    district court.5
    
    
    
    
           5
            We have considered Abulkhair‟s remaining arguments and have determined that
    they lack sufficient merit.
                                                12