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Bazouzi v. Johnson

United States District Court, N.D. California

May 1, 2015

ROGETTE BAZOUZI, Plaintiff,
v.
JEH JOHNSON, et al., Defendants.

ORDER GRANTING PETITION TO AMEND A NATURALIZATION CERTIFICATE Re: ECF Nos. 5, 12, 14

JON S. TIGAR, District Judge.

Currently before the Court is Petitioner Rogette Bazouzi's Petition to Amend Naturalization Certificate. ECF No. 1. Respondents Jeh Johnson, Secretary of the United States Department of Homeland Security and Leon Rodriguez, the Director of the United States Citizenship and Immigration Services ("Respondents"), have moved to dismiss the petition for lack of jurisdiction. ECF No. 5. Petitioner has opposed the motion and moved for summary judgment in favor of her petition. ECF No. 12. Respondents have in turn moved to stay Petitioner's motion for summary judgment pending the Court's ruling on the motion to dismiss. ECF No. 14.

I. Background

Petitioner was born in Jaffa, Palestine. ECF No. 1, Declaration of Rogette Bazouzi ("Bazouzi Decl.") at ¶ 1. Petitioner lived in Jaffa throughout her childhood and remembers hiding in her basement during the bombings that began the 1948 war for independence of Israel. Id. at ¶ 2. To flee the violence in Palestine, Petitioner's parents took her aboard "a schooner with no known destination." Id. That boat docked in Port Said, Egypt, where officers lined up the passengers onboard and questioned them regarding their names and dates of birth before they disembarked. Id. Petitioner's parents were illiterate and responded that Petitioner's birthdate was not known, but offered a particular historical event "as a possible indication of" Petitioner's birth date, which officers then designated as March 16, 1942. Id. Petitioner used that date going forward on all her identification documents. Id. at ¶ 3.

Decades later, when Petitioner immigrated to the United States in October of 1976 via a Form I-130 immigrant visa petition filed on behalf of her husband Elias Bazouzi, she listed her birthdate as March 16, 1942. Id. at ¶ 1.

In 1991, Petitioner's mother passed away in California. Id. at ¶ 5. Petitioner was her mother's only child and was responsible for sorting through all of her mother's belongings upon her death. Id. During this process, Petitioner found a certificate with her name and "the location and date of [her] birth, " which listed that date as March 4, 1940. Id. Upon finding the certificate, Petitioner "searched for ways to address" the fact that all of her identifying documents contained an incorrect date. Id. at ¶ 6. Petitioner corrected her birthdate with the Social Security Administration and believed such correction "was all that really needed to be done since [her] Social Security Number affected all [her] other U.S. identity documents." Id. Petitioner only learned that this was not true when she recently set to change the date of birth on her driver's license and was told that she could not because her naturalization certificate indicated she was born in 1942. Id.

Petitioner's husband was recently diagnosed with cancer and Petitioner has observed throughout his chemotherapy that "doctors, hospitals, health insurance companies, and others" often ask him for his birth date. Id. at ¶ 7. Petitioner fears that, if hospitalized, she could be accused of stealing another individual's identity as a result of the discrepancies between her identification documents. Id. Moreover, Petitioner fears that the conflict between her identification documents could potentially cause complications for her children after she passes away. Id.

II. Jurisdiction

Respondents have moved to dismiss the petition for lack of subject matter jurisdiction. ECF No. 5. Petitioner states that "[j]urisdiction over the subject matter of this action is conferred on this Court by 8 C.F.R. § 3316 and the prior 8 U.S.C. § 1451(i)."

The Ninth Circuit has concluded that, pursuant to section 1451(i), district courts have jurisdiction to amend naturalization orders issued prior to the enactment of the Immigration and Naturalization Act of 1990. Matter of Shrewsbury, 77 F.3d 490, 1996 WL 64988 at *1 (9th Cir. 1996).[1] Before the 1990 Act, "district courts had jurisdiction to naturalize citizens and also had statutory authority to amend naturalization orders." Id. Although in the 1990 Act "Congress transferred the authority to naturalize citizens from the judiciary to the Attorney General, " courts retained "jurisdiction under the prior statute to amend" court orders of naturalization that predated the 1990 Act. Id. (citing 8 U.S.C. § 1451(i)); see also McKenzie v. USCIS, 761 F.3d 1149, 1153 (10th Cir. 2014).

Petitioner was naturalized by the United States District Court for the Northern District of California on February 16, 1982, prior to the effective date of the 1990 Act. The Court therefore possesses subject matter jurisdiction over this petition.

III. Legal Standard and Motion to Dismiss for Lack Of Jurisdiction

The parties dispute what legal standard should govern the resolution of Petitioner's application to amend her naturalization certificate. Petitioner argues that the Court should follow a line of cases in this District granting amendment in cases where "petitioners provided unequivocal evidence as to the true dates of birth and that there was no evidence of fraud or prejudice to the government." Binh Quang Le, 2011 WL 3678909, at *2; see also In re Lee, 2007 WL 926501, at *2-3. Respondents argue that the Court should instead resolve the petition under Federal Rule of Civil Procedure 60, which governs requests for "Relief from a Judgment or Order." ECF No. 5 at 4-5 (citing Magnuson v. Baker, 911 F.2d 330, 335 n. 11 (9th Cir. 1990)). Because Respondents argue that Petitioner cannot show she is entitled to relief under Rule 60, they ask the Court to dismiss the petition for lack of jurisdiction.

Although not cited by Respondents, one court in this District has applied Rule 60 in the context of petitions to amend the date of birth on a naturalization certificate. Yeshiwas v. U.S. Citizenship & Immigration Servs., No. C 12-1719 PJH, 2013 WL 5289061, at *7 (N.D. Cal. Sept. 19, 2013). That court looked to the Ninth Circuit's decision in Magnuson, which it read as recognizing "Rule 60(b) as the appropriate procedural vehicle for setting aside a naturalization order pursuant to former 8 U.S.C. § 1451(i) under the prior version of the Immigration and Nationality Act." Id. The Yeshiwas court acknowledged that the Ninth Circuit in Shrewsbury "recognized the court's inherent authority under that statute to amend its own naturalization orders issued prior to 1990, without necessarily requiring that a motion be brought under Rule 60, " but ...


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