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Castillo v. Kerry

United States District Court, S.D. Texas, Brownsville Division

April 7, 2017

JOSE CRUZ CASTILLO, Plaintiff,
v.
JOHN F. KERRY, et al., Defendants.

          ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Rolando Olvera United States District Judge

         This case arises from the government's motion to dismiss Jose Cruz Castillo's (hereafter "Plaintiff) "Complaint for Declaratory and Injunctive Relief (Docket No. 1) under 28 U.S.C. §1331 (federal question) and 8 U.S.C. §1503 (denial of rights and privileges as a U.S. Citizen). Currently before the court is the Magistrate Judge's "Report and Recommendations, " (Docket No. 16) recommending this Court grant "Defendant's Motion to Dismiss" (Docket No. 7). After a de novo review of the file, the Magistrate Judge's "Report and Recommendation" is ADOPTED.

         I. FACTUAL BACKGROUND [1]

         Plaintiffs Complaint states he was born in Houston, Texas, November 3 1989. Fearing Plaintiff would not receive adequate medical treatment, his parents returned to Mexico without registering Plaintiffs birth in the U.S.; the family remained in Mexico until returning to the U.S. in December 1992. Thereafter, Plaintiff was baptized in Houston, Texas, July 20, 1994. Plaintiffs birth was later registered in Texas in 1994. Plaintiffs parents have resided in Texas since December 1992.

         Plaintiff applied for a U.S. Passport in 2008, which was denied August 5, 2009. A second application was filed January 31, 2012; said second application was denied August 23, 2012. Each passport application listed Plaintiffs permanent address as 156 Milgray Lane, Calera, Alabama. Records from the University of Alabama-Birmingham (UAB) demonstrate Plaintiff applied to the university listing the same Calera, Alabama mailing address as the permanent address listed in both his 2008 and 2012 passport applications.

         After graduating from UAB, Plaintiff moved to Brownsville, Texas in 2014; but returned to Alabama in July 2016. However, Plaintiff filed this case August 2, 2016 in Brownsville, Texas. Plaintiffs complaint was in response to the most recent denial of his U.S. Passport application dated August 23, 2012. Plaintiff returned to Alabama after filing the instant action, and again applied to UAB November 4, 2016, using the same Calera, Alabama address as listed in both passport applications.

         II. PROCEDURAL HISTORY

         Defendants filed a motion to dismiss October 17, 2016. Docket No. 7. Plaintiff filed a response to the motion to dismiss November 22, 2016. Docket No. 11. Defendants filed a reply in support of the motion to dismiss December 6, 2016. Docket No. 14. The Magistrate Judge submitted his "Report and Recommendations" (Docket No. 16) December 20, 2016; the magistrate court granted Defendant's motion to dismiss, and held the court lacked jurisdiction over Plaintiff, based upon the conclusion that Plaintiff is a resident solely of the state of Alabama. Plaintiff filed "Objections to Report and Recommendations" (Docket No. 19) January 16, 2017.

         The Court notes Plaintiff filed objections to the "Report and Recommendations" January 16, 2017, alleging facts different than those stated either in the original complaint and/or response to the motion to dismiss. Docket No. 19. However, the Court will exercise wide discretion in considering the evidence in its ruling. See Freeman v. County of Bexar, 142 F.3d 848, 852 (5th Cir. 1998)) (employing several factors in deciding whether to accept additional evidence, including: (1) the moving party's reasons for not originally submitting the evidence; (2) the importance of the omitted evidence to the moving party's case; (3) whether the evidence was previously available to the non-moving party; and (4) the likelihood of unfair prejudice to the non-moving party if the evidence is accepted).

         III. DISCUSSION

         Before reaching the merits of the instant motion, the Court rules the United States of America is not a proper party; a person may institute an action only "against the head of such department or independent agency" that denies a right or a privilege to a person claiming to be a national of the United States. 8 U.S.C. § 1503(a). Accordingly, the Court DISMISSES the United States of America as a defendant.

         Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Under Federal Rule of Civil Procedure 12(b)(1), a court must dismiss a claim where it lacks subject matter jurisdiction to hear the claim. The burden of proof is on "the party asserting jurisdiction." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001.) Upon review, the court may look to: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the courts resolution of disputed facts." Id. (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)). "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted).

         a. The Court lacks jurisdiction under 8 U.S.C. § 1503(a)

         A person may challenge an agency's denial of a claimed right or privilege as a U.S. citizen under 8 U.S.C. § 1503. The administrative remedy at ...


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