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Ortega v. Holder

November 5, 2010

ANGIE ORTEGA, PLAINTIFF,
v.
ERIC HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, AND ALEJANDRO MAYORKAS, DIRECTOR OF THE BUREAU OF U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Judge Blanche M. Manning

MEMORANDUM AND ORDER

Plaintiff Angie Ortega has filed suit against Eric Holder, Attorney General of the United States, and Alejandro Mayorkas, Director of the Bureau of U.S. Citizenship and Immigration Services*fn1 , seeking a declaration that she is a U.S. citizen.

The court assumes familiarity with the facts of this case and its procedural history, but provides this brief background for context. This court granted the government's motion to dismiss on the ground that the court lacked jurisdiction based on certain language in the Immigration Nationality Act, 8 U.S.C. § 1503(a)(1). The Seventh Circuit concluded, as did this court, that because the "citizenship claim that Ms. Ortega pursued in her original application for a certificate of citizenship arose as a result of or in connection with her removal proceedings," the statute "prevents her from challenging the administrative denial of that application by way of a declaratory judgment action." See Ortega v. Holder, 592 F.3d 738, 746 (7th Cir. 2010). However, the Seventh Circuit noted that on its review of the administrative file, the plaintiff had filed a motion to reconsider or reopen after the Office of Administrative Appeals denied her appeal and "after her removal proceedings had been terminated." Id. (emphasis in original). Thus, the Seventh Circuit found that "this action . . . separated her administrative action from her prior removal proceedings and eliminated the jurisdictional bar to any court action created by way of § 1503(a)(1)." Id. It then remanded the case for further proceedings.

The plaintiff has filed a motion for summary judgment on the ground that the issue of her U.S. citizenship was already determined at the removal hearing by the immigration judge ("IJ"). For the reasons stated below, the motion is granted.

Facts

Ortega, who currently lives in Chicago, was born in Mexico. Her father was a United States citizen and her mother was a citizen of Mexico at the time Ortega was born. On September 25, 2001, the INS moved to deport Ortega. On May 7, 2002, an IJ convened a removal hearing to decide whether Ortega should be removed. At the conclusion of the removal hearing, the IJ found that Ortega "established that she acquired U.S. citizenship through her U.S.C. [United States citizen] father Alfredo Ortega pursuant to 301(g) of the" Immigration and Nationality Act. The IJ then terminated the removal proceeding, and the government did not appeal the IJ's decision.

During this period, Ortega applied to the INS for a Certificate of Citizenship on April 12, 2002. On April 24, 2002, the INS denied her application without interviewing her or holding a hearing. On May 6, 2002, Ortega appealed the INS' denial to the Office of Administrative Appeals ("AAO"), which denied the administrative appeal on February 28, 2003. On April 22, 2003, Ortega filed a motion with the AAO asking it to reconsider its February 28, 2003, denial of her administrative appeal. Over four years later, on August 17, 2007, the AAO denied her motion to reconsider, and the plaintiff filed the instant case "to obtain a binding declaration from the District Court that she is a United States citizen."

Analysis

Ortega moves for summary judgment on the ground that the earlier decision by the Immigration Judge constitutes collateral estoppel such that this court is bound by it. The government responds that the removal proceedings have no bearing on this case as judicial review in this matter is de novo. It further argues that collateral estoppel does not apply here and even if it did, the plaintiff has not satisfied the elements of collateral estoppel.

Before discussing the merits, the court notes that the government failed to properly respond to certain of the plaintiff's statements of fact. Specifically, under Local Rule 56.1 the party opposing summary judgment must provide a "response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." L.R. 56.1(b)(3)(B). "An answer that does not deny the allegations in the numbered paragraph with citations to supporting evidence in the record constitutes an admission." Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868, 871 (7th Cir. 2000)(citations and internal quotation marks omitted).

Here, while most of the facts are undisputed, the government attempts to state its disagreement with two of the plaintiff's statements of facts. Specifically, the plaintiff's statement of fact number 14 provides in relevant part that "Angie's motion [for reconsideration with the AAO] noted the Immigration Judge's finding that she is a United States citizen." The government responds that "Defendants do not dispute SOF ¶ 14, except to aver that the Immigration Judge did not find that Ortega is a United States citizen. Rather, he terminated Ortega's removal proceedings after finding that the government did not meet its burden of proving alienage by clear and convincing evidence." However, the government does not point to any portion of the record in support of its statement that the IJ did not find Ortega is a U.S. citizen but instead terminated the removal proceedings after finding that the government did not meet its burden.

Similarly, the plaintiff's statement of fact number 20 states that "[a]t the conclusion of the removal hearing, the Immigration Judge found that Angie 'established that she acquired U.S. citizenship through her U.S.C. [United States Citizen] father Alfredo Ortega pursuant to 301(g) of the' Immigration and Nationality Act." The government responded that "Defendants do dispute SOF ¶ 20, except to aver that the Immigration Judge terminated Ortega's removal proceedings based on Ortega's defense of citizenship, but made no findings or declaration as to Ortega's citizenship status." While the government states that it does not dispute that the IJ stated that Ortega "established that she acquired U.S. citizenship through her U.S.C. [U.S. Citizen father]," it then contradictorily states that the IJ "made no findings or declaration as to Ortega's citizenship status."

Given that the government does not dispute the plaintiff's statements of fact paragraphs 14 and 20, they are admitted for purposes of this summary judgment motion.

A. Does the de novo standard of review preclude a finding of collateral estoppel?

The government first asserts that because 8 U.S.C. ยง 1503, the statute under which the plaintiff seeks relief, authorizes de novo review of an agency action, the plaintiff's removal proceedings "have no bearing on this case." Government's Opposition to Plaintiff's Motion for Summary Judgment at 4, Dkt. #61. The government goes on to argue, without citation to authority, that because the standard of review is de novo, the court owes no deference to the IJ's decision. But collateral estoppel is not about deference, it is about whether a ...


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