Ibarra Pena v. Kirstjen Nielson

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
HILARIO MELQUIADES IBARRA PENA 	§
§
Petitioner, 	§
§
VS. 	§ 	CIVIL ACTION NO. 7:17-00322
§
MARKWAYNE MULLIN1 	§
SECRETARY OF THE DEPARTMENT OF 	§
HOMELAND SECURITY 	§
§
Respondent. 	§
REPORT AND RECOMMENDATION
Petitioner, Hilario Melquiades Ibarra Pena, proceeding through counsel, initiated this
action by filing Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive
Relief on August 24, 2017. (Dkt. No. 1). Generally, Petitioner sought to be recognized as, and to
enjoy the benefits of being, a U.S. Citizen, pursuing such relief under the Administrative Procedure
Act, the Declaratory Judgment Act, and 8 U.S.C. § 1503. 	(See generally, id.). 	Ultimately, this
Court issued a Report and Recommendation on August 8, 2024, concluding that Petitioner failed
to meet his burden of establishing that he was entitled to derivative citizenship through his father.
(Dkt. No. 34 at 1).
After Petitioner filed a Notice of Appeal on November 15, 2024 (Dkt. No. 41), the Fifth
Circuit remanded the case to the District Court on December 10, 2025, for “a full consideration of
jurisdiction and a full explanation of the district court’s current chief judge’s determination.” (Dkt.
1 Markwayne Mullin has recently succeeded Kristi Noem as the U.S. Secretary of Homeland Security.
Under Rule 25(d) of the Federal Rules of Civil Procedure, Mullin is automatically substituted as a party.
The Clerk’s Office will so be advised to update the civil docket.
United States District Court
Southern District of Texas
ENTERED
June 12, 2026
Nathan Ochsner, Clerk
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No. 46 at 2). This matter was subsequently referred to the undersigned magistrate judge for report
and recommendation pursuant to 28 U.S.C. § 636(b) and LR 72. Petitioner filed Plaintiff’s Motion
and Memorandum Regarding Jurisdiction (“Petitioner’s Memo”) on March 4, 2026. (See Dkt. No.
49). Respondent responded with Defendant’s Response to Plaintiff’s Motion and Memorandum
Regarding Jurisdiction (“Respondent’s Motion”), filed on April 27, 2026, seeking dismissal for
lack of jurisdiction. (See Dkt. No. 50).
After careful review of the record and relevant law, the undersigned concludes that the
Court has jurisdiction over the matter and therefore recommends Respondent’s Motion (Dkt. No.
50) be DENIED. A full explanation as requested by the Court of Appeals follows.
I. 	BACKGROUND
A. 	Factual Background
Petitioner claims he is a derivative United States citizen through his father. (Dkt. No. 1 at
2). Petitioner was born in Reynosa, Tamaulipas, Mexico on October 31, 1972. (Id.). Petitioner
alleges his father is a United States citizen by virtue of his birth in Bryan, Texas on December 16,
1928. (Id.). Petitioner’s father resided in the United States from the time he was born until he was
about seven years old. (Id. at 3). Thereafter, he returned to the United States in early 1943 and
continued living in the United States until his death in 2003. 	(Id.). At the time of his Original
Petition, Petitioner resided in Mission, Texas. (Id. at 2). Petitioner first filed an N-600 application
for citizenship on September 3, 1998, which was subsequently denied on March 6, 2000. 	(Id.).
Petitioner filed a second N-600 application in 2007, but it was treated as a motion to reopen and
was also denied. 	(Id.). 	On March 4, 2016, Petitioner filed a motion to reopen and reconsider,
which was denied on July 8, 2016. (Id.). The latter decision was appealed to the Administrative
Appeals Office on July 26, 2016, but the appeal was dismissed on January 27, 2017. (Id.).
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Petitioner was apparently ordered removed from the United States to Mexico by an
Immigration Court in 2000. 	(Dkt. No. 10 at 2). 	On December 30, 1998, Petitioner was served
with a Notice to Appear. (Id.). On October 7, 1999, the immigration judge issued a final order in
Petitioner’s removal proceedings, ordering Petitioner removed from the United States after finding
that Petitioner was not a citizen of the United States and was an aggravated felon. (Id. at 2-3). On
March 21, 2000, a Warrant of Removal/Deportation was issued against Petitioner “stating he was
subject to removal from the United States based on a final order by an immigration judge in
removal proceedings.” (Id. at 3). Petitioner allegedly waived his right to an appeal, and “there is
no indication in the Court records or Plaintiff’s A-File that Plaintiff appealed the removal order to
the BIA, nor is there any indication that Plaintiff challenged the removal order by filing a petition
for review.” (Id.).
B. 	Procedural Background
Petitioner filed his Petition for Writ of Habeas Corpus and Complaint for Declaratory and
Injunctive Relief on August 24, 2017. (Dkt. No. 1). Petitioner claimed the Department’s policy
and decision resulted in Petitioner being unable to obtain a certificate of citizenship, violating his
rights to due process and equal protection. (Id. at 4). Petitioner claimed he was being denied a
vital resource and right that he requires to travel, work, access affordable medical care, and
maintain contact with family members outside of the United States. (Id.). Petitioner argued that
because he is unable to travel freely and participate in programs available only to United States
citizens because of the denial of his N-600 application, “this constitutes unlawful custody
cognizable in habeas corpus under 28 U.S.C. § 2241.” (Id. at 5). Petitioner sought a declaration
that he is a United States citizen under 8 U.S.C. § 1503. (Id.). Further, Petitioner sought review
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of “the adverse agency action, denying his application for citizenship, under the Administrative
Procedure Act.” (Id.).
Respondent filed Defendant’s Partial Motion to Dismiss and Subject Thereto Answer to
Plaintiff’s Petition for Declaratory and Injunctive Relief on January 11, 2018. 	(Dkt. No. 10).
Respondent argued that the Court lacked jurisdiction because Petitioner was “not ‘in custody,’ nor
was he in custody at any relevant time alleged in his Petition.” (Id. at 4). Specifically, “any alleged
restrictions on Plaintiff’s liberty that may arise as a result of the denial of his application for
certificate of citizenship do not, and cannot rise to the level of custody within the meaning of
section 2241.” (Id. at 5). Respondent further argued that a challenge to any future detention is too
speculative to give rise to a case or controversy, and that all members of the public share in the
restraint to international travel without a passport. (Id. at 6). Similarly, Respondent alleged that
the Court still lacked jurisdiction because international travel is not a fundamental right. (Id. at 7).
Then Respondent argued that Petitioner’s claim was barred by the REAL ID Act because
Section 1252(a)(5) “divested district courts of jurisdiction over removal orders and designated the
courts of appeals as the sole forums for such challenges via petitions for review.” (Dkt. No. 10 at
7-8). Respondent further explained that “Plaintiff has failed to state a claim under the APA because
he has an adequate remedy available to him under 8 U.S.C. § 1252[,]” and the issue of his
citizenship was considered by an immigration court and he did not exhaust his proper
administrative channels by appealing the IJ’s decision to the Board of Immigration Appeals or by
filing a petition for review with the court of appeals. (Id. at 8-9). Because his claim of citizenship
was inextricably linked to his final order of removal, the proper procedure was through the petition
for review process or through a new petition. (Id. at 10-11).
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Finaly Respondent explained that only the Department of Homeland Security and
Harlingen USCIS Field Office Director Norma Limon were proper respondents, and the Court
should dismiss Jeff Sessions, Attorney General, Rex Tillerson, Secretary, Department of State and
the United States of America. (Dkt. No. 10 at 11).
Petitioner filed Petitioner’s Response to Partial Motion to Dismiss on February 1, 2018.
(Dkt. No. 12). Therein, Petitioner claimed that, per the Parties discussion, Petitioner would consent
to “dismissal of all causes of action, and the related Defendants, with the exception of his
declaratory judgment action brought under 8 U.S.C. § 1503(a), and Defendants Kirstjen Nielsen,
Secretary of the Department of Homeland Security, and Norma Limon, Field Office Director,
Harlingen, Texas.” (Id. at 1).
On March 7, 2018, during the initial pretrial conference before the Honorable District Court
Judge Hinojosa and without objection, the District Court granted the Partial Motion to Dismiss
and ordered Petitioner to file an amended complaint. (See Dkt. Entry, Dated March 7, 2018).
Petitioner filed Plaintiff’s First Amended Petition on March 12, 2018. 	(Dkt. No. 15).
Therein, Petitioner reasserted the same facts, but narrowed his claim, seeking a declaratory
judgment that Petitioner was denied rights and privileges claimed as a national of the United States
within the meaning of 8 U.S.C. § 1503. (Id. at 2-3).
Respondent filed Defendant’s Motion to Dismiss Plaintiff’s First Amended Petition on July
25, 2018. (Dkt. No. 16). Therein, Respondent maintained that Petitioner’s citizenship claims were
precluded by 8 U.S.C. § 1252. (Id. at 4). Respondent explained that if “Plaintiff believed he was
a United Citizen and the IJ’s ruling was in error, Plaintiff was required to exhaust his administrative
remedies by appealing the IJ’s decision to the BIA and then filing a petition for review with the
appropriate court of appeals.” (Id. at 6). As for Petitioner’s § 1503(a) claim, Respondent claimed
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that the proper means for judicial review is the appropriate court of appeals under Section 1252(b).
(Id. at 7). 	Specifically, “plaintiff can file a motion to reopen his removal proceedings and if
unsuccessful before the IJ or the BIA, plaintiff can petition a court of appeals to review the
jurisdictional issue on direct appeal.” 	(Id. at 9). 	Finally, Respondent argued that Petitioner’s §
1503(a) claim was barred by the applicable statute of limitations. (Id. at 9-10).
Petitioner filed Response to Defendant’s Motion to Dismiss on October 5, 2018. (Dkt. No.
23). Petitioner argued that his claim is not precluded by § 1252 because the statute provides that
“notwithstanding any other provision of law … a petition for review field [sic] with an appropriate
court of appeals in accordance with this section shall be the sole and exclusive means for judicial
review of an order of removal entered or issued under any provision of this chapter, except as
provided in subsection (e) …” (Id. at 2-3). Petitioner explained that his claim is not a review of
an order of removal, because only aliens are subject to deportation and Petitioner is a United States
citizen from birth. 	(Id. at 3). 	Further, Petitioner claimed that the exceptions in § 1503 do not
preclude the Court’s review because his removal order in 1999 became final so his “subsequent
motion to reopen his citizenship application, which serves as the basis of this declaratory relief,
filed on March 4, 2016 that was dismissed on January 27, 2017 is not arising out of or in connection
with any removal proceedings[,]” and, likewise, because he did not raise citizenship as a defense
during the removal proceedings. (Id. at 4).
The District Court held a pretrial conference on October 23, 2018. (See Dkt. Entry, Dated
October 23, 2018). There, the District Court heard arguments regarding the Motion to Dismiss
and ultimately denied the Motion. (Id.).
On March 21, 2019, the Parties took part in a bench trial before the District Court. There,
Petitioner’s Counsel claimed it was undisputed that Petitioner’s father was born in the United
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States and that he lived in the United States from 1928 to 1932. (Dkt. No. 44 at 5:3-11).2 Counsel
further claimed it was undisputed that Petitioner’s father moved to Mexico in 1932, and at some
point, possibly began working as a laborer in the United States. (Id. at 5:14-17). However, what
was apparently disputed is the time Petitioner’s father spent in the United States after 1932. (Id.
at 5:12-13).
Petitioner called one witness3 to testify: Maria Elva Pena (“Petitioner’s Mother”). (Dkt.
No. 44 at 6:16-25, 10:13-14). 	Petitioner’s Mother testified that she was married to Petitioner’s
father, Melquiades Ibarra (“Petitioner’s Father”), in 1974. (Id. at 11:2-9). Petitioner’s Mother met
Petitioner’s Father in Monterrey, Mexico, around 1968. 	(Id. at 11:14-19). 	Petitioner’s Mother
began living with Petitioner’s Father in Reynosa, Mexico in 1969. 	(Id. at 12:1-7). 	Petitioner’s
Mother claimed Petitioner’s Father generally lived with her in Mexico on the weekends, and during
the week worked with his sister on a farm, at the ranch La Coma, and later in La Grulla, Texas.
(Id. at 12:23-13:9). Petitioner’s Father apparently had a social security card that he acquired when
they started to work on their papers “around seventy something.” (Id. at 14:21-25). Petitioner’s
Father “got his citizenship, got his social security number so papers could be prepared for us[,]”
in about 1971. (Id. at 15:9-11, 16:6). Petitioner’s Mother and Petitioner’s Father lived together in
Mexico in an apartment or small home from 1969 to 1972. (Id. at 19:14-21). In 1969, Petitioner’s
Mother further explained that Petitioner’s Father only came home during the week if there was
rain or there was no work. (Id. at 22:5-10). However, Petitioner’s Mother clarified that most of
2 Docket Entry No. 44 is a transcript from the Bench Trial held on March 21, 2019, before the Honorable
Judge Hinojosa.
3 Petitioner additionally admitted an affidavit of Susana Ibarra Angulo, Petitioner’s Father’s younger sister
(Petitioner’s aunt), and “passport, biographical page for Suzanna Angulo’s husband and her children.”
(Dkt. No. 44 at 29:8-10; see Dkt. No. 28). Angulo claimed Petitioner’s Father moved in with them in 1963
in the United States and continued living there until 1974. (Id. at 2; Ex. No. 1).
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the time was spent in the United States from 1969 to 1972. (Id. at 25:7-10). Petitioner’s Mother
further testified that Petitioner’s Father would come home “[s]ome days in the week[.]” 	(Id. at
22:20-23). 	Petitioner’s Father never arranged legal status in Mexico. 	(Id. at 23:15-19).
Petitioner’s Father never got a driver’s license in Mexico but had one in Texas. (Id. at 24:17-22).
Petitioner’s Father indicated that he voted in the United States. 	(Id. at 26:6-8). 	Petitioner’s
Counsel ultimately argued that from 1963 to 1972 Petitioner’s Father was physically present in the
United States for at least six years, satisfying the ten-year requirement. 	(Id. at 38:2-5). 	The
Government countered that “the amount of evidence that has been presented is insufficient to show
that [Petitioner’s Father] was in the United States for six years after he turned 14.” (Id. at 39:20-
23). 	Simply put, “[t]here’s just really nothing that is tying him down in the United States and,
furthermore, in the United States for a significant period of time or significant period of time in a
row.” (Id. at 46:5-8). The court answered that “there actually is—the only evidence presented was
that he was here. I don’t have any evidence that he wasn’t other than possibly on weekends for a
period of time prior to this Plaintiff being born that he may have not spent the whole time in the
United States.” (Id. at 51:2-6). The court noted that it would make findings of fact and conclusions
of law and read them on April 9, 2019. (Id. at 51:7-10).
On April 8, 2019, Judge Hinojosa cancelled the April 9, 2019, hearing and rescheduled for
June 12, 2019. 	(See Dkt. Entry, Dated April 8, 2019; Dkt. No. 29). 	On June 12, 2019, Judge
Hinojosa cancelled the June 12 hearing and rescheduled it for August 14, 2019. (See Dkt. Entry,
Dated June 12, 2019; Dkt. No. 30). On August 13, 2019, Judge Hinojosa cancelled the August 14
hearing and rescheduled it for December 17, 2019. (See Dkt. Entry, Dated August 13, 2019; Dkt.
No. 31). On December 16, 2019, Judge Hinojosa cancelled the December 16 hearing until further
notice. (See Dkt. Entry, Dated December 16, 2019).
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On April 8, 2024, the case was reassigned to the Honorable Chief District Court Judge
Randy Crane by agreement. (See Dkt. Entry, Dated April 8, 2024). At a status conference on June
4, 2024, the Government agreed to have the District Court issue a ruling on the transcript of the
bench trial by Judge Hinojosa, and Chief Judge Crane notified the Parties that the matter would be
referred to the undersigned for report and recommendation. (See Dkt. Entry, Dated June 4, 2024).
On August 8, 2024, this Court issued the Report and Recommendation. (See Dkt. No. 34).
The Court found that the sworn testimony of Petitioner’s Mother, along with the statements in the
affidavit of Petitioner’s Father’s younger sister to be credible, concluding that Petitioner’s Father
was physically present in the United States for approximately five days a week during the four-
year span from 1969 to 1972. (Id. at 2). The Court found that subject matter jurisdiction existed
under 8 U.S.C. § 1503(a) pursuant to 28 U.S.C. § 1331. (Id. at 5). The undersigned further found
that “with insufficient testimony and unsubstantiated affidavit, Plaintiff has failed to establish that
his father was physically present in the United States for a total of ten years prior to Plaintiff’s
birth, and five years of which were after Plaintiff’s father turned the age of fourteen.” (Id. at 7).
Thus, the Court concluded that Petitioner is not a United States citizen. (Id.).
Petitioner filed objections to the Report and Recommendation on September 27, 2024. (See
Dkt. No. 36). First, Petitioner objected that the Court erred in calculating the physical presence of
Petitioner’s father in the United States. 	(Id. at 2). 	Next, Petitioner claimed the Court erred in
concluding that the affidavits and testimony were insufficient to corroborate that Petitioner’s father
was in the United States from 1963 to 1969. (Id.). Then, Petitioner “calculates that from 1963 to
1972 even if Plaintiff’s father was absent about 60 days a year that time frame in addition to the
time from 1928-1932 is more than ten years of presence.” (Id.).
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The 	District 	Court 	overruled 	Petitioner’s 	objections 	and 	adopted 	the 	Report 	and
Recommendation in its entirety on October 4, 2024. (Dkt. No. 37).
Petitioner filed a Notice of Appeal on November 15, 2024. (Dkt. No. 41). On December
10, 2025, the Fifth Circuit issued an Order remanding the case back to the District Court. (Dkt.
No. 46). Of particular pertinence, the Fifth Circuit stated4:
… Some time ago, before the original district court judge handling this case, the
government moved to dismiss, arguing in part that the issue of appellant’s
citizenship arose in his prior removal and triggered 8 U.S.C. § 1503(a)(1), which
thus precluded the district court’s jurisdiction. 	The appellant countered that his
citizenship claim did not arise out of his removal proceedings, nor did he raise
citizenship arguments in those proceedings. However, the appellant conceded that
he had “admitted to the allegations, on the [1998] Notice to Appear … declaring
him to not be a citizen or national of the United States.” The original judge of the
district court on this case denied the government’s motion at a pretrial conference,
however, the judge did not explain the reasoning for keeping the case. Neither party
raises this jurisdictional issue on appeal. Because there is a question of the district
court’s jurisdiction, and the current district judge on the case is a different judge, IT
IS ORDERED that the case should be REMANDED to the district court for a full
consideration of jurisdiction and a full explanation of the district court’s chief
judge’s determination. …
(Dkt. No. 46 at 1) (emphasis added).
4 To best adhere to the Fifth Circuit’s mandate, the Court concludes that the scope of its consideration should
be restricted to a discussion of jurisdiction. However, upon further review of the record by the undersigned
magistrate judge and to further clarify the justification of the decision for the District Court now presiding
over this matter, the undersigned submits there is sufficient evidence to satisfy the preponderance of the
evidence standard and justify the finding of citizenship. See United States v. Cervantes-Nava, 281 F.3d
501, 503 n.2 (5th Cir. 2002); Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir. 1990). The undersigned failed
to appropriately consider that Petitioner’s father’s presence in the United States was sufficiently
corroborated going back to 1963 based on the affidavit of Petitioner’s Aunt. (Cf. Dkt. No. 34 at 3, 7). In
particular, during that time period, the work at the ranches in South Texas was similar to work outlined by
the testimony of Petitioner’s Mother. Over that time, it can be reasonably concluded that similar to the time
period for 1969 to 1972, Plaintiff’s father worked for five days a week at the ranch during the time period.
(Cf. Dkt. No. 34 at 2). Considering the time period in totality from 1963 to 1972, there is sufficient evidence
to conclude that Plaintiff’s father resided in the United States during the nine years before his birth in 1972
after turning fourteen. Such a finding would meet the last requirement necessary to grant U.S. Citizenship
to Petitioner per applicable Immigration and Nationality Act, § 301(a)(7) (1972). (Id. at 5, 11).
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Petitioner filed Plaintiff’s Memo on March 4, 2026. 	(Dkt. No. 49). 	Respondent filed
Defendant’s Motion on April 27, 2026. (Dkt. No. 50). Petitioner never filed a reply.5
Pending before the Court is Respondent’s Motion (Dkt. No. 49) and a determination on
jurisdiction.
II. 	SUMMARY OF THE PLEADINGS
A. 	Petitioner’s Memo
Petitioner filed Petitioner’s Memo on March 4, 2026. (See Dkt. No. 49). Petitioner claims
this Court has jurisdiction. 	Petitioner claims that his “status as a national of the United States
never arose by reason of, or in connection with any removal proceeding” and is not “in issue in
any such removal proceeding” and, thus, the jurisdictional limitation contained in 8 U.S.C. §
1503(a) is not a bar to his lawsuit, nor does it deprive this Court of jurisdiction to decide the case.
(Id. at 9). Petitioner contends that his “removal proceeding has come and gone and the issue of
[Petitioner’s] citizenship is not pending in any removal proceeding.” 	(Id. at 10). 	Petitioner
contends his claim of citizenship “arose” when he filed his Application for a Certificate of
Citizenship in 1998 and he was not deported by removal until March 29, 2000. (Id.). While his
Application for a Certificate of Citizenship process was finally resolved on January 27, 2017,
Petitioner argues the jurisdictional exception in § 1503(a) is not a bar to Petitioner’s claims. (Id.).
As such, Petitioner asks the Court to conclude that it has jurisdiction under 8 U.S.C. § 1503(a) to
consider the claims raised in this case. (Id. at 11).
5 The Court permitted Petitioner to file a reply to Respondent’s response by May 11, 2026. (See Dkt. No.
48). However, Petitioner failed to file a reply by said deadline.
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B. 	Respondent’s Motion
Respondent filed Respondent’s Motion on April 27, 2026.6 (See Dkt. No. 50). Respondent
claims this Court lacks jurisdiction to consider the case. (See generally, id.). First, Respondent
argues the case should be “dismissed in its entirety under 8 U.S.C. § 1252(a)(5) because the issue
of Plaintiff’s citizenship was considered by an immigration court which ordered his removal in
January 2003—and Plaintiff did not exhaust his proper administrative channels by appealing to
the Board of Immigration Appeals or by filing a petition for review with the court of appeals.” (Id.
at 3). Respondent claims that, “[i]n the absence of evidence that Plaintiff has challenged his final
removal order by filing a petition for review, the issue is whether Plaintiff’s instant petition seeking
a declaration of United States citizenship seeks ‘judicial review of an order of removal’ as that
term is used in 8 U.S.C. § 1252(a)(5).” (Id. at 4). Respondent suggests “there is little doubt that
Plaintiff’s Complaint seeking a declaration of United States citizenship is inextricably linked to
his final order of removal both because an alienage determination is a necessary prerequisite to a
final order of removal, and because a declaration of citizenship would necessarily render Plaintiff’s
removal order a legal nullity.” (Id. at 5). Respondent explains that citizenship may be raised as a
defense in removal proceedings, and that if Petitioner believed he was a citizen and the
Immigration Judge’s ruling was in error, Petitioner was required to exhaust his administrative
remedies by appealing the decision to the BIA and then filing a petition for review with the
appropriate court of appeals. 	(Id. at 6). 	Thus, “because Plaintiff was ordered removed in his
removal proceedings and did not exhaust his administrative remedies, Plaintiff’s Section 1503(a)
claims must be dismissed.” (Id.).
6 Defendant’s Motion is nearly identical to the Motion to Dismiss the Amended Complaint filed on July 25,
2018. (Compare Dkt. No. 50, with Dkt. No. 16).
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Next, Respondent argues that the actual text of Section 1503(a) precludes Petitioner from
asserting a claim. 	(Dkt. No. 50 at 7). 	Respondent claims Petitioner must follow the statutory
regimen, namely he “can file a motion to reopen his removal proceedings and if unsuccessful
before the IJ or BIA, plaintiff can petition a court of appeals to review the jurisdictional issue on
direct appeal.” (Id. at 9). Because Petitioner has not done so, Respondent contends the Court lacks
jurisdiction over his Complaint. (Id.).
Finally, Respondent argues that Petitioner’s claim is barred by the applicable statute of
limitations. (Dkt. No. 50 at 9). Specifically, Respondent contends that a § 1503(a) claim may only
be instituted within five years after the final administrative denial of the right or privilege, and
“Plaintiff does not dispute that his denied application for a certificate of citizenship in 2000 was a
‘final administrative denial’ within the meaning of 8 U.S.C. § 1503(a).” (Id.). Thus, Respondent
concludes Petitioner’s claim is barred by the statute of limitations. (Id.).
C. 	Hearing
The Court held a status conference on May 21, 2026. 	(See Dkt. Entry, Dated May 21,
2026). While the Court provided the opportunity, the Parties had no additional arguments. (Id.).
III. 	APPLICABLE LAW/ANALYSIS
A. 	Legal Standard
1. 	Rule 12(b)(1)
“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 Miss., Inc.
v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6
Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). “Lack of subject matter jurisdiction may be
found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by
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undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts
plus the court’s resolution of disputed facts.” Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001) (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)). “The
burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Id.
(citing McDaniel v. United States, 899 F.Supp. 305, 307 (E.D. Tex. 1995)). 	Dismissal on
jurisdictional grounds alone is not on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th
Cir. 1977).
B. 	Petitioner’s Claims
1. 	8 U.S.C. § 1252
Respondent claims Petitioner’s claims are precluded by 8 U.S.C. § 1252, because “the issue
of Plaintiff’s citizenship was considered by an immigration court which ordered his removal in
January 2003—and Plaintiff did not exhaust his proper administrative channels7 by appealing to
the Board of Immigration Appeals or by filing a petition for review with the court of appeals.”
(Dkt. No. 50 at 3). If Petitioner failed to challenge his final removal order by filing a petition for
review, Respondent contends, “the issue is whether Plaintiff’s instant petition seeking a declaration
of United States citizenship seeks ‘judicial review of an order of removal’ as that term is used in 8
U.S.C. § 1252(a)(5).” (Id. at 4).
Respondent thus challenges the interpretation of the critical verbiage, “judicial review of
an order of removal.” (Dkt. No. 50 at 4). Respondent claims that § 1252(a)(5) encompasses both
“direct” and “indirect” challenges. (Id. (citing Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir.
7 Respondent suggests that if “Plaintiff believed he was a United States citizen and the IJ’s ruling was in
error, Plaintiff was required to exhaust his administrative remedies by appealing the IJ’s decision to the
BIA and then filing a petition for review with the appropriate court of appeals (i.e., the 5th Circuit Court of
Appeals) if the BIA affirmed the IJ’s denial decision.” (Dkt. No. 50 at 6).
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2011))). Respondent suggests that the “test for whether a claim seeks review of an order of removal
is whether the substance of the relief sought by the plaintiff is ‘inextricably linked’ to the final
order.” 	(Id.). 	Similarly, Respondent points to the Second Circuit, who interpreted Delgado to
instruct that courts look to “‘the substance of the relief that a plaintiff is seeking’ in order to
determine whether a claim seeks review of a removal order.” Singh v. USCIS, 878 F.3d 441, 445-
46 (2d Cir. 2017). 	The court there found that if the petitioner succeeded in becoming a lawful
permanent resident, his pending removal order would be rendered a legal nullity. 	Id. 	Here, in
comparison, Respondent concludes “there is little doubt that Plaintiff’s Complaint seeking a
declaration of United States citizenship is inextricably linked to his final order of removal both
because an alienage determination is a necessary prerequisite to a final order of removal, and
because a declaration of citizenship would necessarily render Plaintiff’s removal order a legal
nullity.” (Id. at 5).
On May 11, 2005, “Congress passed the Real ID Act, Pub. L. No. 109-13, 119 Stat. 231,
and amended the jurisdictional provisions of the Immigration and Nationality Act.” 	Omolo v.
Gonzales, 452 F.3d 404, 407 (5th Cir. 2006). 	Specifically, “[t]he Act divested district courts of
jurisdiction over removal orders and designated the courts of appeals as the sole forums for such
challenges via petitions for review.” Id. (citing 8 U.S.C. § 1252(a)(5)).
The relevant language of § 1252 reads as follows:
(5) E XCLUSIVE MEANS OF REVIEW
Notwithstanding any other provision of law (statutory or nonstatutory), including
section 2241 or title 28, or any other habeas corpus provision, and sections 1361
and 1651 of such title, a petition for review filed with an appropriate court of
appeals in accordance with this section shall be the sole and exclusive means for
judicial review of an order of removal entered or issued under any provision of this
chapter, except as provided in subsection (e). …
8 U.S.C. § 1252(a)(5) (emphasis added).
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The Fifth Circuit has explained that “‘[w]hen a claim by an alien, however it is framed,
challenges the procedure and substance of an agency determination that is inextricably linked to
the order of removal,’ the federal district court lacks subject-matter jurisdiction.” 	Duarte v.
Mayorkas, 27 F.4th 1044, 1054-55 (5th Cir. 2022) (citing Martinez v. Napolitano, 704 F.3d 620,
623 (9th Cir. 2012)). “The distinction between an independent claim and one that is ‘inextricably
linked’ to a removal or deportation order ‘will turn on the substance of the relief that a plaintiff is
seeking.’” 	Id. 	In Duarte, “[e]ach of the Appellants filed actions in federal district court
challenging USCIS’s closure of their cases as arbitrary, capricious, and contrary to law in violation
of the APA, 5 U.S.C. § 706(2)(A)[,]” asking that USCIS be ordered to adjudicate their claims. Id.
at 1050. The Government responded that “if the court ordered USCIS to adjudicate Appellants’
applications for adjustment of status and USCIS then granted the applications, it would render the
Appellants’ outstanding deportation orders unenforceable, meaning the relief the Appellants
sought was ‘inextricably linked’ to the validity of their deportation orders.” Id. Appellants argued
that “their complaints are not indirect challenges to their outstanding deportation orders because
granting the relief they seek would not prevent their orders from being executed in the future or
require a determination as to their validity.” Id. at 1052.
The court found that an order compelling USCIS to grant the Appellants’ applications for
adjustment of status “would effectively nullify their outstanding deportation orders,” which would
be barred under 8 U.S.C. § 1252. 	Id. at 1055. 	The Panel further found, however, that “the
Appellants do not seek review of a decision that could invalidate their removal orders, but rather
USCIS’s determination that it lacked discretion to make such a decision in the first place.” 	Id.
Petitioner here similarly does not directly challenge a removal order. 	(Dkt. No. 49 at 9). And,
unlike in Duarte, Petitioner does not have an active removal order, as the Warrant of
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Removal/Deportation was executed on March 29, 2000, long before his second Form N-600
application in 2007 and motion to reopen and reconsider the denial of his Application for a
Certificate of Citizenship in 2016. (Id. at 4; Dkt. No. 1-1 at 3).
The case of Guajardo-Garcia v. Sessions is instructive. 	No. 7:17-CV-279, 2017 WL
5633326 (S.D. Tex. Nov. 16, 2017). In Guajardo-Garcia, the petitioner was served with a notice
to appear before an immigration court in February of 2003 “because of his conviction of an
aggravated felony and also because he was not a U.S. citizen or national[,]” and was subsequently
ordered removed on March 28, 2003. Guajardo-Garcia, 2017 WL 5633326, at *1. The petitioner
abandoned the previously asserted citizenship defense. 	Id. 	The petitioner then filed an N-600
Application for Certificate of Citizenship on October 23, 2015, which was denied on July 28, 2016.
Id. The petitioner appealed the denial and the appeal was ultimately dismissed. Id. The petitioner
then filed a petition with the District Court seeking, in part, a declaration of citizenship. Id. The
respondents argued that petitioner’s claims were jurisdictionally barred by 8 U.S.C. § 1252(a)(5)
because the issue of petitioner’s citizenship was fully adjudicated by the immigration court and he
did not exhaust the administrative channels. Id. at *2.
There, the court concluded that the petitioner was “pursuing a claim of citizenship and not
challenging a removal order pursuant to § 1252(a)(5).” 	Id. at *3. 	The court explained that “a
person may generally pursue a claim of citizenship in two ways: first, a person may claim
citizenship defensively in a removal proceeding; and second, a person may affirmatively seek
proof of citizenship by filing an N-600, Application for Citizenship, with the USCIS pursuant to 8
U.S.C. § 1452(a).” Id. (citing Rios-Valenzuela v. Dep’t of Homeland Sec., 506 F.3d 393, 396-97
(5th Cir. 2007)). 	The court noted that “[o]nly a person claiming to be a citizen in removal
proceedings must seek judicial review of his citizenship claim under § 1252(b).” Id. And, because
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the petitioner did not defensively claim citizenship in the removal proceedings, he was not required
to exhaust the administrative channels under § 1252(b). Id. Thus, the court found that the issue
of the petitioner’s citizenship was not fully adjudicated by the immigration court that ordered his
removal. Id. In sum, the court determined that the petitioner did not challenge a removal order
and his claims were not jurisdictionally barred. Id.
Here, like in Guajardo-Garcia, Petitioner’s removal was based on the fact that he was a
convicted felon, he was not a citizen or national of the United States, and was a citizen or national
of Mexico.8 (See Dkt. No. 49 at 2-4; Dkt. No. 50-1 at 5-6, 7; Ex. No. 1). While the petitioner in
Guajardo-Garcia initially raised citizenship as a defense in the removal proceedings and
subsequently abandoned it, Petitioner here never raised citizenship as a defense during his removal
proceedings. 	Guajardo-Garcia, 2017 WL 5633326, at *3. 	Thus, the Court finds that, like in
Guajardo-Garcia, Petitioner’s claim of citizenship was not fully adjudicated by an immigration
court in his removal proceedings and he was not required to exhaust channels under § 1252(b). Id.
Likewise, Petitioner seeks only a declaration of citizenship under 8 U.S.C. § 1503 and does not
directly challenge a removal order. (Dkt. No. 49 at 9-11). Therefore, the undersigned believes this
argument fails and § 1252(a)(5) does not abduct the Court’s jurisdiction.
8 In the Notice to Appear, it was alleged that Petitioner was not a citizen or national of the United States,
that he was a native of Mexico and a citizen of Mexico, that he entered the United States on or about October
17,1980, near Hidalgo, Texas, and that on July 2, 1998, he was convicted for the offense of possession with
intent to distribute 45 kilograms of marijuana, in the Southern District of Texas, in violation of 21 U.S.C.
§ 841(a)(1). 	(Dkt. No. 50-1 at 5-6; Ex. No. 1). 	The “Record of Deportable/Inadmissible Alien” form
indicates:
SUBJECT IS A NATIVE AND CITIZEN OF MEXICO BY BIRTH AND
CLAIMS LAST ENTRY AS ABOVE. 	SUBJECT ENCOUNTERED THIS DATE AT
BSCC, INTERSTATE UNIT. SUBJECT WAS CONVITED OF POSSESSION WITH
INTENT TO DISTRIBUTE, 45 KILOGRAMS OF MARIJUANA. 	SUBJECT HAS
BEEN SENTENCED TO SERVE 21 MONTHS AND HAS A PROJECTED RELEASE
OF 3/29/2000.
(Dkt. No. 50-1 at 7; Ex. No. 1).
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2. 	8 U.S.C. § 1503
Respondent claims Section 1503(a) precludes Petitioner from asserting a Section 1503(a)
claim, specifically focusing on the exception in § 1503(a)(1). 	(Dkt. No. 50 at 7). 	Respondent
suggests that “[a]ll removal proceedings necessarily require the determination of citizenship.” (Id.
at 8). Thus, Petitioner may not “circumvent the statutory regimen for review of his citizenship
when he has been placed in removal proceedings.” (Id.). Instead, Petitioner can file a motion to
reopen his removal proceedings and if unsuccessful before the IJ and BIA, Petitioner can petition
a court of appeals to review the jurisdictional issue on direct appeal. 	(Id. at 9). 	Respondent
concludes that because Petitioner has failed to do so, the Court lacks jurisdiction over his
complaint. (Id.).
Section 1503 provides:
(a) PROCEEDINGS FOR DECLARATION OF UNITED S TATES NATIONALITY
If any person who is within the United States claims a right or privilege as a national
of the United States and is denied such right or privilege by any department or
independent agency, or official thereof, upon the ground that he is not a national of
the United States, such person may institute an action under the provisions of
section 2201 of title 28 against the head of such department or independent agency
for a judgment declaring him to be a national of the United States, except that no
such action may be instituted in any case if the issue of such person’s status as a
national of the United States (1) arose by reason of, or in connection with any
removal proceeding under the provisions of this chapter or any other act, or (2) is
in issue in any such removal proceeding. …
8 U.S.C. § 1503(a) (emphasis added).
Both Parties cite Rios-Valenzuela as governing authority. (Dkt. No. 49 at 9; Dkt. No. 50 at
7). 	In Rios-Valenzuela, the INS granted the petitioner a green card,9 but he was subsequently
9 The District Court noted that in “1975, Petitioner’s mother applied for Lawful Permanent Resident status
for Petitioner and Petitioner moved to the United States.” Rios-Valenzuela v. Dep’t of Homeland Sec., No.
EP-05-CA-0389-FM, 2006 WL 897710, at *1 (W.D. Tex. Mar. 30, 2006).
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deported because of a conviction for a drug crime. Rios-Valenzuela, 506 F.3d at 395-96. In 2003,
the petitioner returned, claiming to be a U.S. citizen, and in 2004 he was placed in removal
proceedings and charged with illegal reentry. Id. at 396. At this point, the petitioner realized he
may have a real claim to citizenship and filed a Form N-600, Application for Citizenship. Id. The
application was denied, and the Government dropped the charges. Id. While appeal of the first
denial was pending, the petitioner filed a second N-600. Id. The petitioner then defended against
removal in the proceedings by arguing he was a citizen, and the immigration judge terminated the
removal proceedings without prejudice. Id. The petitioner’s appeal was rejected, and he filed suit
in the district court, “seeking a declaratory judgment that he is a citizen, having exhausted his
administration remedies by filing the first N-600 and appealing its denial.” Id. The district court
granted a motion to dismiss for lack of jurisdiction and, while the petitioner appealed, removal
proceedings were re-instituted against him, in which he, again, asserted citizenship as a defense.
Id.
The court first analyzed the problem under § 1503(a)(2), which inhibits the courts review
if the issue of citizenship is in issue in any removal proceedings. Rios-Valenzuela, 506 F.3d at 397.
The court noted that “if there are no removal proceedings pending when a declaratory judgment
action is brought, there is nothing for the claimant to circumvent[,]” and, having found that
petitioner had no pending removal proceedings at the time he brought the § 1503 action, the
jurisdictional barricade in § 1503(a)(2) was not implicated. Id. at 397-98. The court then moved
on to the exception delineated in § 1503(a)(1), concluding that “[i]t is the context of how the
particular issue of citizenship arose rather than the mere timing of events that determines the
applicability of § 1503(a)(1).” Id. at 398. In other words, “the exception focuses on the proceeding
in which the particular claim to citizenship originates, not the proceeding in which it is being
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pursued.” Id. In resolving the lyrical tug-of-war, the court adopted the analysis of the district court
in Alaska:
The text of the statute does not support such a conclusion. If the exceptions apply
only while a removal proceeding is still pending, then the first exception would be
superfluous since the second exception covers instances where the removal
proceeding is still pending. The past tense “arose” used in the first exception also
indicates that this provision applies to concluded removal proceedings.
Id. (citing Said v. Eddy, 87 F.Supp.2d 937, 941 (D. Alaska 2000)) (footnoted omitted). 	To
ameliorate any prospective concerns, the court qualified that they “do not read the exception as
forever hanging an albatross around the neck of those who first raise citizenship as a defense in a
removal proceeding.” Id. at 399. In doing so, the court concluded: “So long as a citizenship claim
finds its genesis outside of the context of removal proceedings, the exception is no bar to
jurisdiction; thus, for example, once removal proceedings have run their full course and
terminated, any future citizenship claim would not arise in these removal proceedings.” 	Id.
(footnote omitted). The court ultimately held that the “exception precludes jurisdiction over [the
petitioner’s] citizenship claim because his claim ‘arose by reason of, or in connection with’ his
removal proceeding: the issue of [the petitioner’s] citizenship that forms the basis of his claim here
originates, at the least, in connection with the removal proceedings.” Id. at 398.
Respondent cites several additional cases in support of their position. (Dkt. No. 50 at 7-9).
However, the Court identifies distinguishing characteristics in most of them. 	In Telemaque v.
Holder, the plaintiff pursued a declaration that he was a United States citizen after the removal
proceedings had been initiated but before any order of removal was issued. 	Telemaque, 450 F.
App’x 417, 418 (5th Cir. 2011) (unpublished); (see Dkt. No. 50 at 7-8). Here, Petitioner’s removal
proceedings had concluded and he was deported. (Dkt. No. 49 at 3-5). In Ortega v. Holder, the
petitioner only asserted citizenship upon the initiation of removal proceedings, filing the
application for citizenship while removal proceedings were still pending while, here, Petitioner
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filed a first N-600 application before removal proceedings were instituted, then the application
was denied, he was ordered removed, he was actually deported, and then filed a second N-600
application years later. Ortega, 592 F.3d 738, 742 (7th Cir. 2010); (Dkt. No. 49 at 2-6).
In the Eastern District Court of New York’s view, “the inquiry is straightforward—if an
alien has previously raised nationality as a defense during removal proceedings, that alien is then
barred from later bringing a Section 1503(a) claim, because ‘the issue of such person’s status as a
national of the United States’ will have necessarily arisen ‘by reason of’ or ‘in connection with’
the past removal proceedings, no matter how long ago those proceedings terminated.” Headley-
Ombler v. Holder, 985 F.Supp.2d 379, 387 (E.D.N.Y. 2013) (citation omitted). 	It appears
uncontroverted Petitioner never asserted citizenship as a defense during his removal proceedings.
Respondent 	claims 	“[a]ll 	removal 	proceedings 	necessarily 	require 	the 	determination 	of
citizenship.” (Dkt. No. 50 at 8). This overinclusive logic would confiscate relief from any person
claiming citizenship who has ever been subject to removal proceedings, irrespective of context or
elapsed time. 	This stretches the statute beyond recognition and creates friction with the Fifth
Circuit’s § 1503(a) analysis. See Rios-Valenzuela, 506 F.3d at 399 (declining to read the language
to mean that “jurisdiction under § 1503(a) is always precluded when citizenship first arises in a
removal proceeding[.]”).
In Abundis v. Tillerson, however, the plaintiff was twice ordered removed and once charged
with illegal re-entry before filing an application for a United States passport. Abundis, No. 1:16-
cv-00196, 2018 WL 7365217, at *1 (S.D. Tex. Jan. 25, 2018); (Dkt. No. 50 at 8). 	The court
emphasized that the plaintiff did not assert citizenship as a defense in the removal proceedings and
concluded that “his current citizenship claim under § 1503, years after he was ordered removed
and served time for his re-entry offense, finds its genesis outside the context of the prior removal
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proceedings in which he did not challenge the status of his citizenship.” 	Id. at *3 (citing Rios-
Valenzuela, 506 F.3d at 399) (emphasis in original). 	The Court finds the reasoning of Abundis
persuasive.
Petitioner cites several cases that guide the Court’s review. 	(Dkt. No. 49 at 10); see
Sandoval Lopez v. Pompeo, No. 1:17-cv-00137, 2020 WL 13413216, at *2-4 (S.D. Tex. May 21,
2020) (finding jurisdiction under § 1503(a) where the plaintiff did not explicitly assert citizenship
as a defense in his removal proceedings, so his citizenship arose under his passport application);
Henry v. Quarantillo, 684 F.Supp.2d 298, 305 (E.D.N.Y. 2010) (“Because this second N-600 was
filed well after removal proceedings had terminated, and because its denial constitutes the type of
federal action that may form the basis of a § 1503(a) claim, denial of this N-600 serves as ‘the
interposition of such other federal action’ that ‘take[s] plaintiff’s case out of exception (1) to
subsection 1503(a).’”) (citing Said, 87 F.Supp.2d at 943) (alteration in original); Said, 87
F.Supp.2d at 943 (“If a resident’s citizenship claim has been denied and there is no removal
proceeding involved, the resident can bring a declaratory action in federal district court.”).
This synopsis may read as a longwinded rigamarole, but such a diligent review is necessary
for the Court’s conclusion10 that Petitioner’s claim to citizenship “never arose by reason of or in
10 In the Remand Order, the Fifth Circuit highlighted that “appellant conceded that he had ‘admitted to the
allegations, on the [1998] Notice to Appear …declaring him to not be a citizen or national of the United
States.’” (Dkt. No. 46 at 2). This concern appears to reference Plaintiff’s Response to Defendant’s Motion
to Dismiss the Amended Petition: “As he possessed a Lawful Permanent Resident Status the Plaintiff
admitted to the allegations, on the Notice to Appear dated November 24, 1998, declaring him not to be a
citizen or national of the United States and a native and citizen of Mexico.” (Dkt. No. 23 at 4). In support
of this assertion, Petitioner cites to Docket Entry No. 16, Exhibit 1, Page 000005. (Id.). However, Docket
Entry No. 16 is Defendant’s Motion to Dismiss Plaintiff’s First Amended Petition, which does not have
any Exhibits attached. (See Dkt. No. 16). Rather, Docket Entry No. 17 contains Exhibit 1 as an attachment.
(See Dkt. No. 17). The referenced Exhibit appears to be the Notice to Appear, alleging that Petitioner is
not a citizen of the United States, that he is a native or citizen of Mexico, that he entered the United States
on or about October 17, 1980, at or near Hidalgo, Texas, and that Petitioner was convicted on a drug charge.
(Dkt. No. 17 at 6-7; Ex. No. 1). The first page (Page 000005) appears to be signed by the “IRP Director.”
(Dkt. No. 17 at 6; Ex. No. 1). The second page (Page 000006) appears to display Petitioner’s signature, or
what may reasonably be interpreted as being Petitioner’s signature, once, under the note “To expedite a
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connection with any removal proceeding[,]” and “finds its genesis outside of the context of
removal proceedings[.]” 	8 U.S.C. § 1503(a)(1); Rios-Valenzuela, 506 F.3d at 399. 	Petitioner’s
removal proceedings and subsequent deportations have come and gone. 	Petitioner was ordered
removed on March 21, 2000, and deported at El Paso, Texas on March 29, 2000. (Dkt. No. 49 at
4). 	Petitioner filed an N-600 application in 1998 before the removal proceedings, which was
denied in 2000 after he was deported. (Id. at 3-4). Petitioner then filed a second N-600 years later,
in 2007, which was interpreted as a motion to reopen and was subsequently denied. 	(Id. at 5).
After being denied, Petitioner filed a motion to reopen and reconsider the denial in 2016, which
was likewise denied. (Id.). Petitioner then filed an appeal with the Administrative Appeals Office,
which was dismissed in 2017, before ultimately filing a petition with the District Court seeking a
declaration of citizenship under § 1503. (Id.). As Petitioner never asserted citizenship as a defense
in his removal proceedings, the issue of his claim to citizenship did not arise during his removal
proceedings. 	Instead, the issue of Petitioner’s citizenship arose either during his first N-600
application in 1998, or his second N-600 application (interpreted as a motion to reopen) in 2007.
Petitioner therefore is not challenging a removal order, either directly or indirectly, and the “Court
considers that the removal proceedings against [Petitioner] had run their full course and terminated
before [Petitioner] made a claim for citizenship in this Court such that the claim ‘finds its genesis
outside of the context of removal proceedings.’” 	Guajardo-Garcia, 2017 WL 5633326, at *8
(citing Rios-Valenzuela, 506 F.3d at 399); see Trevino-Garcia v. Pompeo, No. 1:17-cv-00100, 2018
determination in my case, I request an immediate hearing. I waive my right to have a 10-day period prior
to appearing before an immigration judge.” (Dkt. No. 17 at 7; Ex. No. 1). A second signature appears in a
box titled “Certificate of Service”. (Id.). The Court does not interpret this to be an admission of non-
citizenship or to the allegations contained within the Notice to Appear, nor does Respondent argue as much.
Rather, this document appears to be an opportunity to expedite the lengthy, convoluted process. In any
event, the undersigned finds this distinction immaterial as the Court’s analysis focuses on the fact that
Petitioner did not affirmatively raise citizenship as a defense and the credits to his removal proceedings
finished rolling long before the filing of this Petition.
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WL 11476546, at *3 (S.D. Tex. May 15, 2018) (“Plaintiff did not present a claim for derivative
citizenship claim in connection with, or as a result of his 2003 removal from the United States
because ‘[he] was unaware of his U.S. Citizenship, and did not raise it [as a defense] in [his] 2003
removal proceedings.”) (alterations in original); Abundis, 2018 WL 7365217, at *3 (“Thus, this
Court finds that no removal proceedings are currently pending and Demetrio is not challenging the
result of his previous removal proceedings for which he has already served time and was
deported.”) (footnote omitted); Chavarria v. Pompeo, 387 F.Supp.3d 753, 759 (S.D. Tex. 2019)
(finding “that the issue of the status of his citizenship arose months before he received the NTA[,]”
so “the issue of his citizenship status did not arise because of or in connection with a removal
proceeding[.]”).
Therefore, the Court concludes that Petitioner’s claim escapes § 1503(a)(1)’s exclusionary
provision unscathed, and the Court properly exercised jurisdiction over his claim.
3. 	Statute of Limitations
Respondent claims that Petitioner’s claim is barred by the applicable statute of limitations.
(Dkt. No. 50 at 9). 	Specifically, “Plaintiff does not dispute that his denied application for a
certificate of citizenship in 2000 was a ‘final administrative denial’ within the meaning of 8 U.S.C.
§ 1503(a).” (Id.).
Section 1503 provides that “[a]n action under this subsection may be instituted only within
five years after the final administrative denial of such right or privilege …” 8 U.S.C. § 1503(a)(2).
However, the Statute does not address which administrative denial activates the timer for purposes
of this litigation. This is of particular significance in Petitioner’s case, where he may have a final
administrative denial in 2000 (likely barred by the statute of limitations) and a second final
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administrative denial in 2017 (potentially ripe for review). 	(See Dkt. No. 1-1 at 3; Ex. No. A).
Whether Petitioner’s claim is reviewable thus turns on resolution of this issue.
Like in 2018, Respondent cites Henry v. Quarantillo and Icaza v. Shultz for the persuasive
proposition that the statutory clock begins to run with the first administrative denial. (Dkt. No. 50
at 9-10; Dkt. No. 16 at 10-11); see Henry, 684 F.Supp.2d at 306 (“[C]ourts have routinely treated
only the first final administrative denial as relevant for statute of limitations purposes.”); Icaza,
656 F.Supp. 819, 823 (D.D.C. 1987) (“It is illogical to commence the running of the limitations
period from the time of the latest in a series of passport applications.”). 	As of the time of
Respondent’s 2018 filing, it appears that the Fifth Circuit had not yet addressed the issue.
In 2019, the Fifth Circuit spoke on the matter. In Gonzalez v. Limon, “[t]he United States
Citizenship and Immigration Service (USCIS) denied Dolores Margarita Gonzalez a certificate of
citizenship, first in 2008, then again in 2016.” 926 F.3d 186, 187 (5th Cir. 2019). There, Gonzalez
challenged only the 2016 decision. Id. The Government argued that the court “cannot interpret
Section 1503(a) to allow plaintiffs to ‘restart the clock’ by means of a follow-on denial.” Id. at
189. After reviewing the position of sister Circuit Courts, the court noted that the “concern in this
line of cases is the want of finality attending tolerance of repetitious challenges following
duplicative denials.” Id. The court warned that “[i]mplicitly authorizing a series of duplicative
claims would frustrate [the interest in finality].” 	Id. 	Ultimately, the court clearly concluded:
“Section 1503(a)’s reference to ‘the final administrative denial’ means the first final administrative
denial.” Id. Significantly, the court dismissed the case for want of jurisdiction. Id. at 188. Though
1503(a)’s time-hurdle was purportedly a jurisdictional bar, this was apparently not so.
Subsequent Fifth Circuit opinions further compounded the misconception that the
limitation is jurisdictional in nature. See Flores v. Hartnett, No. 21-50139, 2022 WL 101978, at
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*3 (5th Cir. Jan. 10, 2022) (per curiam) (“We stated that ‘an action brought under Section 1503(a)
must comply with … jurisdictional requirements,’ including the five-year statute of limitations
period that begins to run after a final administrative denial as well as the exhaustion of
administrative remedies.”) (alteration in original) (quoting Gonzalez, 926 F.3d at 188); Cambranis
v. Blinken, 994 F.3d 457, 463 (5th Cir. 2021) (“But the person must bring the [§ 1503(a)] action
‘within five years after the final administrative denial of such right of privilege,’ otherwise the
district court lacks subject-matter jurisdiction to hear the claim.”) (citation omitted) (quoting 8
U.S.C. § 1503(a)) (citing Gonzalez, 926 F.3d at 188)).
The Fifth Circuit has now clarified that “our statement in Gonzalez regarding the time bar
was dictum.” Villegas v. Noem, 149 F.4th 554, 563 (5th Cir. 2025). In Villegas, the Fifth Circuit
explained that “[w]e merely assumed, without holding, that the time bar itself was jurisdictional.
We did not give the issue ‘the full and careful consideration of the court.’” Villegas, 149 F.4th at
564 (emphasis in original) (citing Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 772 (5th Cir.
2004)). Such a decision, dismissing for lack of jurisdiction when some threshold fact has not been
established, is characterized by the court as a “drive-by jurisdictional ruling[,]” which receives no
precedential effect. Id. Thus, the court undertook to challenge the statutory phrasing anew. Under
the “clear statement test” the court emphasized that “[n]o aspect of the jurisdictional clause clearly
refers back to the five-year time bar[,]” which “does not amount to a clear statement that the time
bar itself is jurisdictional.” Id. at 566. After dissecting the statutory language and perusing the
relevant cross section of precedent, the Fifth Circuit concluded that “[t]he time bar is therefore a
nonjurisdictional claims-processing rule[.]” Id. at 568.
Therefore, the limitation itself is not a bar to the Court’s jurisdiction.
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CONCLUSION
After a “full consideration of jurisdiction” the undersigned believes the Court appropriately
exercised jurisdiction over the matter and accordingly recommends Respondent’s Motion (Dkt.
No. 50) be DENIED.
Notice to the Parties
The Clerk shall send copies of this Report and Recommendation to Plaintiff, who has
fourteen (14) days after receipt thereof to file written objections pursuant to 28 U.S.C. §
636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure. Failure to file timely written
objections shall bar an aggrieved party from receiving a de novo review by the District Court on
an issue covered in this Memorandum and, except upon grounds of plain error, from attacking on
appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District
Court.
The Clerk shall provide copies of this Report to Petitioner and counsel for Respondent.
DONE at McAllen, Texas, on 12th day of June 2026.
_____________________________________
Juan F. Alanis
United States Magistrate Judge
Case 7:17-cv-00322 Document 53 Filed 06/12/26 in TXSD Page 28 of 28