1 The Clerk is directed to amend the official caption to conform with the caption above.

11-2621-cvGulotti v. Holder, et al..

UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or afterJanuary 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and thisCourt’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a partymust cite either the Federal Appendix or an electronic database (with the notation “summary order”).A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the DanielP. Moynihan United States Courthouse, 500 Pearl Street in the City of New York, on the 3rd day of July,two thousand twelve.

PRESENT:

RALPH K. WINTER,JOSÉ A. CABRANES,SUSAN L. CARNEY,

Circuit Judges_____________________________________

ILIA GULOTTI & GARY STERN,

Plaintiffs-Appellants,

v. 11-2621-cv

ERIC H. HOLDER, JR., United States AttorneyGeneral, JANET NAPOLITANO, Secretary, Departmentof Homeland Security, ALEJANDRO MAYORKAS,Director, United States Citizenship & ImmigrationServices, ANDREA QUARANTILLO, District Director,New York District Office, United States Citizenship& Immigration Services, PERRY RHEW, Chief,Administrative Appeals Office, United StatesCitizenship & Immigration Services,

Defendants-Appellees.1

2

FOR PLAINTIFF-APPELLANT: ELYSSA N. WILLIAMS, Formica, P.C., New Haven,CT.

FOR DEFENDANTS-APPELLEES: CHRISTOPHER CONNOLLY, Assistant United StatesAttorney (Jeffrey Oestericher, Assistant United StatesAttorney, on the brief) for Preet Bharara, United StatesAttorney for the Southern District of New York,New York, NY.

Appeal from a judgment of the United States District Court for Southern District of NewYork (Alvin K. Hellerstein, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,AND DECREED that the judgment of the District Court is AFFIRMED.

Plaintiffs-appellants Ilia Gulotti and Gary Stern (collectively, “plaintiffs”) appeal from a finaljudgment of the District Court, entered on May 11, 2011, denying their motion for summaryjudgment, granting defendants-appellees’ (the “Government’s”) cross-motion for summaryjudgment, and dismissing the plaintiffs’ petition for a writ of mandamus directing the Governmentto grant Gulotti’s application for a certificate of citizenship nunc pro tunc.

I.

Stern and Gulotti are father and daughter. Stern is a native of Switzerland who became anaturalized citizen of the United States through his U.S.-citizen father in 2000. Gulotti was born inSwitzerland in 1990. Stern and Gulotti’s mother were never married, but Stern has joint custodyover Gulotti pursuant to an agreement approved by the Swiss Board of Guardianship in 2006. InAugust 2007, when Gulotti was seventeen years old, Stern filed an N-600K application for acertificate of citizenship on Gulotti’s behalf.

The statute governing applications for citizenship by children of U.S. citizens born andresiding outside the United States provides that the Attorney General shall issue a certificate ofcitizenship to an applicant upon proof that the following criteria have been met:

(1) At least one parent . . . is a citizen of the United States, whether bybirth or naturalization.

(2) The United States citizen parent –

(A) has . . . been physically present in the United States or itsoutlying possessions for a period or periods totaling not less than fiveyears, at least two of which were after attaining the age of fourteenyears; . . .

2 The District Court went on, in dicta, to express doubt that an application filed when a childis under eighteen could be denied merely by virtue of the fact that CIS delayed adjudication of theapplication until after the child turned eighteen.

3

(3) The child is under the age of eighteen years.

(4) The child is residing outside of the United States in the legal andphysical custody of the applicant . . . .

(5) The child is temporarily present in the United States pursuant to alawful admission, and is maintaining such lawful status.

INA § 322(a), 8 U.S.C. § 1433(a).

At the time her application for citizenship was filed, Gulotti was seventeen years old.However, by the time the Bureau of Citizenship and Immigration Services (“CIS”) adjudicated theapplication, Gulotti had turned eighteen. CIS therefore denied the application, holding that, in orderto be eligible for a certificate of citizenship under INA § 322(a), a child “must have taken andsubscribed to the oath of allegiance required by this Act before she reache[s] the age of eighteen.”Plaintiffs appealed that determination to the CIS Administrative Appeals Office (“AAO”), arguingthat it was only as a result of CIS’s delays that the application was not adjudicated prior to Gulotti’sturning eighteen. The AAO dismissed the appeal, finding that § 322(a) requires that a “citizenshipapplication be filed, adjudicated, and approved with the oath of allegiance administered before thechild’s 18th birthday.”

Plaintiffs then filed a petition for a writ of mandamus in the District Court, requesting thatthe court order CIS to approve the application. Plaintiffs and the Government filed cross motionsfor summary judgment on the issue of whether Gulotti satisfies the criteria of INA § 322(a). TheDistrict Court granted summary judgment in favor of the Government, and denied the petition for awrit of mandamus, holding that, irrespective of the age issue, Gulotti did not satisfy therequirements of INA § 322(a) because she was not “temporarily present in the United Statespursuant to a lawful admission” either at the time her application was filed, or any time during thependency of the application.2 Plaintiffs timely appealed.

II.

“We review de novo a district court’s ruling on cross-motions for summary judgment, ineach case construing the evidence in the light most favorable to the non-moving party.” Novella v.Westchester Cnty., 661 F.3d 128, 139 (2d Cir. 2011) (internal quotation marks omitted). “Summaryjudgment is appropriate where there exists no genuine issue of material fact and, based on theundisputed facts, the moving party is entitled to judgment as a matter of law.” Id. (internal quotationmarks omitted).

4

“The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to providea remedy for a plaintiff . . . only if the defendant owes him a clear nondiscretionary duty.” Heckler v.Ringer, 466 U.S. 602, 616 (1984) (emphasis added). “A party who seeks a writ of mandamus mustshow a ‘clear and indisputable right’ to its issuance.” Escaler v. U.S. Citizenship & Immigration Servs.,582 F.3d 288, 292 (2d Cir. 2009) (quoting Miller v. French, 530 U.S. 327, 339 (2000)). The plaintiffs inthis case have not met their burden of showing a “clear and indisputable right” to the issuance of thewrit.

As the District Court observed, § 322(a)(5) expressly provides that the Attorney Generalshall grant an application for a certificate of citizenship if, inter alia, the applicant “is” lawfully presentin the United States and “is” maintaining lawful status. The statute is somewhat ambiguous withrespect to the point in time at which an applicant must be “temporarily present in the United Statespursuant to a lawful admission.” Id. § 322(a)(5); 8 U.S.C. § 1433(a)(5). The plaintiffs argue thatGulotti could have satisfied this requirement by lawfully entering the United States and being“present” at the time of her citizenship interview. The Government maintains that the requirementmust be satisfied at the time the application is filed.

In support of its interpretation, the Government notes that the general rule is that anapplicant for an immigration benefit “must establish that he or she is eligible for the requestedbenefit at the time of filing the benefit request and must continue to be eligible throughadjudication.” 8 C.F.R. § 103.2(b)(1). We note as well that, not long after § 322(a) was amended aspart of the Child Citizenship Act of 2000, Pub. L. 106-395, 114 Stat. 1631 (2000), the agencypublished a notice in the Federal Register stating that “a foreign-born child who resides outside theUnited States must be lawfully admitted to the United States and maintain such lawful status until theapplication for certificate of citizenship is approved.” 66 Fed. Reg. 32138, 32139 (2001).

Our task in this appeal is only to determine whether the plaintiffs have shown a “clear andindisputable right” to the issuance of the extraordinary writ of mandamus directing the agency togrant their N-600 application. In light of the authority cited above, it cannot be said that Gulotti hasa clear and indisputable right to have her application granted. This is particularly true given theplaintiffs’ concession that Gulotti was not present in the United States at any time during thependency of her application. Accordingly, without resolving the question of precisely when, and forhow long, an applicant must be present in the United States to satisfy § 322(a)(5), we affirm thejudgment of the District Court denying the petition for a writ of mandamus.

However, recognizing that future cases may turn on the resolution of this question, weencourage the Agency to provide clear instructions to applicants on how to comply with § 322(a)(5).Such Agency guidance would facilitate claims processing and reduce the need for judicial review.

5

CONCLUSION

We have considered all of the plaintiffs’ arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the District Court.

FOR THE COURT,Catherine O’Hagan Wolfe, Clerk of Court

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------------------- J(

ILIA GULOTTI and GARY STERN,

Plaintiffs, ORDER DENYING MOTION FOR SUMMARY

-against- JUDGMENT, GRANTING CROSS-MOTION, AND

ERIC HOLDER, JR., JANET NAPOLITANO, DISMISSING CASE MICHAEL A YTES, ANDREA QUARANTILLO, and PERRYRHEW, 10 Civ. 4715 (AKH)

Defendants.

--------------------------------------------------------------------- J(

ALVIN K. HELLERSTEIN, U.S.DJ.:

Plaintiffs Ilia Gulotti and Gary Stem filed a petition for a writ of mandamus in

this Court, seeking an order to compel Defendants to grant Gulotti's N-600K Application for

Citizenship nunc pro tunc. Plaintiffs thereafter filed a motion for summary judgment, and

Defendants filed a cross-motion for summary judgment seeking dismissal of the petition.

Plaintiffs' motion for summary judgment is denied, Defendants' motion is granted, and the

petition is dismissed.

Stem and Gulotti are father and daughter. Stem was born in Switzerland, where it

appears he now lives, but obtained United States citizenship through his father in 2000. On

August 17,2007, Stem filed an N-600K application for citizenship for Gulotti with the United

States Department of Homeland Security, Citizenship and Immigration Services; at the time,

Gulotti was 17 years old. Like Stem, Gulotti was born in Switzerland, where it appears she has

always resided. Stem and Gulotti have not provided any evidence that Gulotti has ever been

lawfully present in the United States.

After filing the N-600K application form, Stem wrote several letters to the New

York district office for Citizenship and Immigration Services, inquiring as to the status of the

1

Case 1:10-cv-04715-AKH Document 31 Filed 05/06/11 Page 1 of 4

application. In May 2008, Stern flew to the United States and visited the district office,

obtaining an application number for Gulotti. The following month, Citizenship and Immigration

Services provided Stern and Gulotti with a notice of her interview. It appears the interview did

not go forward, however, because the district office had provided Stern with the wrong

application number for Gulotti.

In April 2009, Stern visited the New York district office again. On this visit, the

district office provided Stern with the correct application number for Gulotti. One week later,

however, Citizenship and Immigration Services denied the application because Gulotti had

reached the age of 18. Stern and Gulotti filed an administrative appeal in the New York district

office, which affirmed the denial of the application on the grounds that Gulotti was 18 years old

at the time the application was adjudicated. Plaintiffs thereafter filed a petition for a writ of

mandamus, arguing that Gulotti satisfies the criteria necessary for approval of the application and

that Citizenship and Immigration Services had ignored the plain text of the governing statute,

8 U.S.c.§ 1433(a), in denying the application.

The motion and cross-motion for summary judgment point up the same question,

whether Gulotti satisfies the statutory criteria for obtaining approval ofher N-600K application.

I consider the evidence set forth by each party and determine whether it is sufficient to satisfy the

criteria, treating each motion on its own merits and drawing construing all the facts and factual

inferences against the moving party. Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir.

2001). If either party makes out a primafacie case for summary judgment, the other side must

be able to show facts suggesting a genuine issue of material fact exists. Harlen Assocs. V. Vill.

of Mineola, 273 F.3d 494,499 (2d Cir. 2001). To grant a petition for a writ of mandamus, I must

2

Case 1:10-cv-04715-AKH Document 31 Filed 05/06/11 Page 2 of 4

find that Citizenship and Immigration Services has clearly abused its discretion in denying the

application. In re The City of New York, 607 F.3d 923, 932 (2d Cir. 2010).

Plaintiffs plainly are not entitled to the issuance of a writ. The statutory criteria

that an applicant must satisfy to obtain approval of an N-600K citizenship application are set

forth in 8 U.S.C. § 1433(a), which states in relevant part:

A parent who is a citizen of the United States (or, if the citizen parent has died during the preceding 5 years, a citizen grandparent or citizen legal guardian) may apply for naturalization on behalf of a child born outside of the United States who has not acquired citizenship automatically under section 1431 of this title. The Attorney General shall issue a certificate of citizenship to such applicant upon proof, to the satisfaction of the Attorney General, that the following conditions have been fulfilled:

(3) The child is under the age of eighteen years.

(5) The child is temporarily present in the United States pursuant to a lawful admission, and is maintaining such lawful status.

In this case, there is no evidence suggesting that Gulotti is, or ever has been, "temporarily

present in the United States pursuant to a lawful admission," or that she is or ever has maintained

such lawful status. Id. § 1433(a)(5). Plaintiffs do not contend otherwise. Instead, they argue

that Gulotti may satisfy subsection (a)(5) by coming to the United States at some future time,

including the time when Citizenship and Immigration Services renders a decision on her N-600K

Application Form. That argument is squarely foreclosed by the text of the statute, which

provides that the Attorney General shall grant the application ifthe applicant "is" lawfully

present and "is" maintaining lawful status. Id. Though the statute is not entirely clear about the

3

Case 1:10-cv-04715-AKH Document 31 Filed 05/06/11 Page 3 of 4

point in time when the applicant must be present, the most natural reading is that applicants may

obtain approval of their N-600K applications if they are lawfully present in the United States

during the pendency of the application process. Gulotti concedes she cannot satisfy this

requirement, for she has never been lawfully present in the United States.

Plaintiffs argue that mandamus is appropriate because Citizenship and

Immigration Services took unfair advantage of subsection (a)(3): the agency received the N­

600K application when Gulotti was 17, but waited until she was 18 and then denied the

application because was no longer a minor. I doubt that the agency may take advantage of its

own delay to prejudice an applicant who files a timely application but turns 18 after filing it.

Indeed, allowing the agency to interpret the 8 U.S.C. § 1433(a)(3) in this way injects an

unacceptable degree of arbitrariness into the application process. But, though I doubt the

agency's reason for denying the application is sustainable, it is clear that the agency did not

clearly abuse its discretion in denying the application because Plaintiffs cannot satisfy subsection

(a)(5). Accordingly, I am constrained to find that Plaintiffs have not made a satisfactory

showing of entitlement to a writ of mandamus, and further that Defendants have shown, on

undisputed facts, that summary judgment in their favor is appropriate.

Plaintiffs' motion for summary judgment is denied, Defendants' cross-motion is

granted, and the petition is dismissed. The Clerk shall terminate the motions (Doc. Nos. 20 and

23) and close the case.

SO ORDERED.

Dated: May61 New York, New York

~~LS;.::---ALVIN K. HELLERSTEIN United States District Judge

4

Case 1:10-cv-04715-AKH Document 31 Filed 05/06/11 Page 4 of 4

d

-

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

GULOTII, ILIA (A88 781 880) and STERN, GARY

Plaintiffs,

v.

ERIC H. HOLDER, JR. United States Attorney General

JANET NAPOLITANO Secretary of DHS

MICHAEL AYTES Deputy Director of U. S. Citizenship and Immigration Services

ANDREA aUARANTILLO District Director, New York District Office USCIS

PERRYRHEW Chief. Administrative Appeals Office, USCIS

) ) ) Civil Action No. ) 10 Civ 4715 (AKH) ) ) ) ) ) ) ) June 20,2011 ) ) } ) )

Defendants. ) ) .-( .r::-

0-

--------------------------------------) NOTICE OF APPEAL

Pursuant to Federal Rules of Appellate Procedure, Rule 4(a)(1 )(B), notice is

hereby given that Plaintiff-Appellants, Ilia Gulotti and Gary Stern, in the above-named

case, respectfully appeal to the United States Court of Appeals for the Second Circuit

from the final judgment of the United States District Court for the Southern District of

New York. The Plaintiff-Appellants take an appeal of the Order Denying Motion for

Summary Judgment, Granting Cross-Motion, and Dismissing Case issued by the

Honorable Alvin K. Hellerstein on or about May 6, 2011.

~~_._c_"_'_'_'

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RESPECTFULLY SUBMITIED, For the Plaintiffs,

----~/~~------------­Glenn l. Formica Attorney for Petitioner 900 Chapel Street, Suite 1200 New Haven, Connecticut 06510 (t) (203) 789-8456 (f) (203) 787-6766

Case: 11-2621 Document: 1-1 Page: 1 06/28/2011 327607 8

CERTIFICATION

I hereby certify that on June 20, 2011, a copy of the foregoing was served by mail on the Defendants to this action,

Christopher Connolly Assistant United States Attorney U.S. Department of Justice United States Attorney Southern District of New York 86 Chambers Street New York, New York 10007

___ /S/ ________________ _

Glenn L. Formica

2

Case: 11-2621 Document: 1-1 Page: 2 06/28/2011 327607 8

FILE:

IN RE:

U.S. Department of Elomeland Security U.S Cltizensh~p and Immlgrat~on Serwces Office of Admznzstratzve Appeals M S 2090 Washington, DC 20529-2090

8:' L: let& (. - U. S. Citizenship

: >iG{:, and Immigration 7fiv'L,7) ,'I-,

Office: NEW YORK, NY Date:

Applicant:

NOV 1 7 m

APPLICATION: Application for Certificate of Citizenship under Section 322 of the Immigration and Nationality Act; 8 U.S.C. 5 1433.

ON BEHALF OF APPLICANT:

SELF-REPRESENTED

INSTRUCTIONS:

This is the decision of the Administrative Appeals Office in your case. All documents have been returned to the office that originally decided your case. Any further inquiry must be made to that office.

If you believe the law was inappropriately applied or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. fj 103.5 for the specific requirements. All motions must be submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 103.5(a)(l)(i).

/ Chief, Administrative Appeals Office

DISCUSSION: The application was denied by the District Director, New York, New York, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.

The record reflects that the applicant was born on July 19, 1990 in Switzerland. The applicant's f a t h e r , was born'& Switzerland but acquired U.S. citizenship at birth through a U.S. citizen parent. The applicant presently seeks a certificate of citizenship claiming that she derived U.S. citizenship through her father pursuant to section 322 of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 1433.

The district director denied the application finding that the applicant was over the age of 18 years and therefore ineligible for citizenship under section 322 of the Act, 8 U.S.C. tj 1433. On appeal, the applicant, through her father, claims that her application was unreasonably delayed and mishandled and that she should not be penalized for the administrative delay. See Applicant's Appeal Statement.

The AAO first notes that the Child Citizenship Act of 2000 (CCA), which took effect on February 27, 2001, amended sections 320 and 322 of the Act, and repealed section 321 of the Act. The provisions of the CCA are not retroactive, and the amended provisions of section 320 and 322 of the Act apply only to persons who were not yet 18 years old as of February 27, 2001. See CCA tj 104. The applicant's 1 8 ' ~ birthday was on July 19, 2008. Because the applicant was under the age of 18 on February 27, 2001, she is eligible for the benefits of the amended Act. See Matter of Rodriguez- Tejedor, 23 I&N Dec. 153 (BIA 2001).

Section 322 of the Act, 8 U.S.C. tj 1433, applies to children born and residing outside of the United States, and provides that:

(a) A parent who is a citizen of the United States may apply for naturalization on behalf of a child born outside of the United States who has not acquired citizenship automatically under section 320. The Attorney General shall issue a certificate of citizenship to such applicant upon proof, to the satisfaction of the Attorney General, that the following conditions have been fulfilled:

(1) At least one parent is a citizen of the United States, whether by birth or naturalization.

(2) The United States citizen parent--

(A) has been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years; or

(B) has a citizen parent who has been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.

(3) The child is under the age of eighteen years.

(4) The child is residing outside of the United States in the legal and physical custody of the applicant [citizen parent] (or, if the citizen parent is deceased, an individual who does not object to the application).

(5) The child is temporarily present in the United States pursuant to a lawful admission, and is maintaining such lawful status.

(b) Upon approval of the application (which may be filed from abroad) and, except as provided in the last sentence of section 337(a), upon taking and subscribing before an officer of the Service within the United States to the oath of allegiance required by this Act of an applicant for naturalization, the child shall become a citizen of the United States and shall be furnished by the Attorney General with a certificate of citizenship.

The record in this case reflects that the applicant reached the age of 18 on July 19, 2008. Section 322(a)(3) of the Act, 8 U.S.C. 8 1433(a)(3) and the regulations promulgated thereunder, at 8 C.F.R. 5 322.2(a)(3), require that a certificate of citizenship application be filed, adjudicated, and approved with the oath of allegiance administered before the child's 18 '~ birthday. The AAO therefore finds that the applicant is ineligible for citizenship under the cited provision because she is already 18.

The AAO notes that the applicant filed her application on or about September 17, 2007, less than a year before her 18th birthday. The applicant claims, however, that her application should have been expedited further and adjudicated prior to her 18"' birthday. She therefore suggests that her citizenship claim should be granted on the basis of estoppel or some other equitable theory. The AAO is without authority to entertain equitable claims. The AAO, like the Board of Immigration Appeals, is "without authority to apply the doctrine of equitable estoppel against the Service so as to preclude it from undertaking a lawful course of action that it is empowered to pursue by statute and regulation." Matter of Hernandez-Puente, 20 I&N Dec. 335, 338 (BIA 1991). The jurisdiction of the AAO is limited to that authority specifically granted through the regulations at Volume 8 of the Code of Federal Regulations (8 C.F.R.) section 103.l(f)(3)(iii) (as in effect on Feb. 28, 2003) and subsequent amendments. The applicant is now over the age of 18, and therefore statutorily ineligible to acquire U.S. citizenship under section 322 of the Act.

The requirements for citizenship, as set forth in the Act, are statutorily mandated by Congress, and U.S. Citizenship and Immigration Services (USCIS) lacks statutory authority to issue a certificate of citizenship when an applicant fails to meet the relevant statutory provisions set forth in the Act. A person may only obtain citizenship in strict compliance with the statutory requirements imposed by Congress. INS v. Pangilinan, 486 U.S. 875, 885 (1988). Even courts may not use their equitable powers to grant citizenship, and any doubts concerning citizenship are to be resolved in favor of the United States. Id. at 883-84; see also United States v. Manzi, 276 U.S. 463, 467 (1928) (stating that "citizenship is a high privilege, and when doubts exist concerning a grant of it ... they should be resolved in favor of the United States and against the claimant1'). Moreover, "it has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect." Berenyi v. District Director, INS, 385 U.S. 630, 637 (1 967).

8 C.F.R. tj 341.2(c) provides that the burden of proof shall be on the claimant to establish the claimed citizenship by a preponderance of the evidence. In order to meet this burden, the applicant must submit relevant, probative and credible evidence to establish that the claim is "probably true" or "more likely than not." Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). As noted above, the applicant is statutorily ineligible to obtain a certificate of citizenship under section 322 of the Act, 8 U.S.C. tj 1433, because she is over the age of 18 years. Thus, the applicant has failed to meet her burden of proof and her appeal will be dismissed.

ORDER: The appeal is dismissed.