Allen v. US Department of Homeland Security et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Bert John Allen, III
v. 	Case No. 21-cv-155-JL
U.S. Dep’t of Homeland Security et al.
REPORT AND RECOMMENDATION
Bert John Allen, who is proceeding pro se, filed a
complaint in Rockingham Superior Court. 	The defendants removed
Mr. Allen’s complaint to this court under 28 U.S.C. § 1442(a)(1)
and now move to dismiss it for lack of subject matter
jurisdiction. 	For the reasons that follow, it is recommended
that the district judge grant defendants’ motion and dismiss Mr.
Allen’s suit, rendering Mr. Allen’s remaining motions moot (Doc.
Nos. 17-20).
Standard of Review
Under Federal Rule of Civil Procedure 12(b)(1), when
considering a motion to dismiss for lack of subject matter
jurisdiction, the court accepts the complaint’s well-pled
allegations as true but, where necessary, also considers
evidence submitted by the parties. 	Reyes-Colon v. United
States, 974 F.3d 56, 59 (1st Cir. 2020); Mahon v. United States,
742 F.3d 11, 14 (1st Cir. 2014). 	The court liberally construes
filings and pleadings by pro se parties, and the court has done
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its best to “intuit the correct cause of action” based on the
facts and theories alleged in Mr. Allen’s complaint. 	See Ahmed
v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997); Tierney v.
Town of Framingham, 292 F. Supp. 3d 534, 540-41 (D. Mass. 2018).
Although the court provides a liberal construction of the
pleadings, it cannot credit “bald assertions . . . or
problematic suppositions.” Gagliardi v. Sullivan, 513 F.3d 301,
305 (1st Cir. 2008). 	Moreover, a party’s pro se status does not
excuse him from complying within procedural and substantive law.
See Ahmed, 118 F.3d at 890.
Background
A. 	Complaint
Mr. Allen initially filed this complaint in Rockingham
Superior Court. 	The complaint names the United States
Department of Homeland Security (“DHS”), United States
Citizenship and Immigration Services (“USCIS”) and Laura
Zuchowski, Director of the Vermont Service Center, as
defendants. 	The complaint states that it seeks “[t]o enforce
medical privacy laws and benefits to the state of new
Hampshire,” “[t]o stop a summarily stopping of benefits done to
my wife and family,” “to stop her ability to testify against her
abusers, and the abusers of my self,” “[a]nd hiding of rape of
my self in Singapore that made them drop me in Singapore just
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one month before I saw my wife.” 	Doc. 1-2 at 3. 	It states that
“[t]he US department of justice hiding a case from the courts,
and attorney general of state of newhampshire. The white washing
of my affidavit lists case they hiding she director is Zuchowski
she is hiding a lot of crimes under DHS case no 20-CV-6692
central district Transnational gang crimes covered by executive
order sighed by are president. of California USA plaintiff v.
mylife.com 20-CV-6692.” 	Id. 	The complaint quotes what appears
to be a press release about a civil suit involving a website
called “mylife.com.”
The complaint continues in this fashion. 	It notes that Mr.
Allen is sick and needs surgery to correct a heart condition and
that his wife needs new teeth “so she could eat and look pretty
again.” Id. at 6. 	The complaint states that the “actions of the
agency have abused me and my wife.” 	It is suggested that Mr.
Allen requires an approved Form I-130 from USCIS to obtain his
surgery. 	The complaint concludes:
TRIAL 	REQUEST 	REQUEST 	AND 	OF 	ACTION 	WITH 	ATTORNEY
GENERAL 	request 	of 	convention 	against 	torture 	actions
the 	papers 	where 	used 	made 	pia 	take 	a 	lost 	of 	MERIT 	so
are 	baby 	was 	publicly 	cane 	whipped 	til 	she 	dropped 	it.
I 	had 	gone 	to 	Thailand 	13,14 	October 	2017 	to 	pick-up
documents for I-130 5 months later the junta took it out
on pia we lost are child. Because of private paperwork.
From newhampshire that the agency where not to have. 	I
am 	looking 	for 	help 	from 	attorney 	general 	of
newhampshire so immigration and DHS will stop. What they
created with mylife.com that they going to take all money
away 	for 	us 	victims. 	A 	100 	million, 	I 	have 	persons
removing 	records 	and 	selling 	them 	to 	the 	gangs 	this 	is
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a new union doing this. The director white washs my lists
of 	affdavids 	of 	the 	case 	for 	3 	years 	for 	imgration 	and
DHS. Help they are hurting my wife every week and family
members.
Id. at 8.
B. 	Affidavit of Allison Dersch
In support of its motion to dismiss under Rule 12(b)(1),
the defendants submitted the affidavit of Allison Dersch, who is
a supervisory immigration services officer with USCIS and works
at the Vermont Service Center, which adjudicates I-130
immigration petitions. 	She avers that in November 2017, John
Bert Allen III filed an I-130 petition, which allows United
States citizens and lawful permanent residents to obtain visas
for individuals with a qualifying relationship to the
petitioner, 1 on behalf of Piyanut Thongkhaeng. USCIS issued a
notice of intent to deny the petition in March 2019, and it
notified Mr. Allen that the petition had “potential issues”
under the Adam Walsh Child Protection and Safety Act, meaning
that Mr. Allen appeared to have a criminal history that includes
certain offenses against minors. 	See doc. 11-1 at 2-3. 2 	USCIS
1 See 8 C.F.R. §§ 204.1(a)(1) (“Petitions may be filed for
an alien’s classification as an immediate relative . . . based
on a qualifying relationship to a citizen or lawful permanent
resident of the United States.”), 204.2 (detailing the
qualifying relationships and requirements).
2 Citing Ms. Dersch’s affidavit, the defendants state in
their motion to dismiss that Allen was convicted in Maine in
October 2000 of unlawful sexual conduct against a victim under
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denied Mr. Allen’s I-130 petition in July 2019. 	Mr. Allen
appealed the denial to the Board of Immigration Appeals, which
remanded the petition in June 2020 for further action. 	Mr.
Allen then filed this suit in December 2020. 	After Mr. Allen
filed this suit, USCIS issued a second notice of intent to deny
to Mr. Allen in July 2020 and denied the petition in May 2021.
Discussion
The defendants contend that, construing Mr. Allen’s
complaint liberally, his claim is that “USCIS erred in denying
his Form I-130, Petition for Alien relative to allow his wife’s
entry into the United States.” Doc. 11 at 1. 	The defendants
assert that the court lacks jurisdiction over Mr. Allen’s
complaint because the Secretary of Homeland Security has
unreviewable discretion to deny I-130 petitions when the
petitioner has been convicted of a specified offense. 	Mr. Allen
filed an objection, which rehashes the allegations made in his
complaint, accuses Ms. Dersch of being a white supremacist and
counsel for the defendants of “white washing,” and provides
commentary about immigration policy issues and Mr. Allen’s
health.
13 years old. 	Ms. Dersch, however, does not identify the crime
for which Mr. Allen was convicted in her affidavit.
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A. 	Jurisdiction
Under the Immigration and Nationality Act, “any citizen of
the United States claiming that an alien is entitled to
classification [as] . . . an immediate relative” can “file [an
I-130] petition” to secure the noncitizen’s entry. 	8 U.S.C.
§ 1154(a)(1)(A)(i); see also 8 C.F.R. §§ 204.1(a)(1), 204.2. 	An
exception, however, exists for an I-130 petitioner who has been
convicted of a “specified offense against a minor”; under that
exception, the I-130 petition must be denied unless the
Secretary of Homeland Security in their “sole and unreviewable
discretion, determines that the [petitioner] poses no risk to
the alien.” 8 U.S.C. § 1154(a)(1)(A)(viii)(I); see also 34
U.S.C. § 20911 (defining “specified offense against a minor”).
Ms. Dersch’s affidavit establishes that Mr. Allen’s I-130
petition was rejected under § 1154(a)(1)(A)(viii)(I).
Therefore, the court lacks subject matter jurisdiction to hear
Mr. Allen’s challenge to the Secretary’s denial of his I-130
petition. 	See, e.g., Roland v. United States Citizen and
Immigration Services, 850 F.3d 625, 629 (4th Cir. 2017); Privett
v. Sec’y Dep’t of Homeland Sec., 865 F.3d 375, 381 (6th Cir.
2017); Bremer v. Johnson, 834 F.3d 925, 930 (8th Cir. 2016).
B. Other Claims
Mr. Allen may have intended, as he suggests in his
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objection, to assert other claims against the defendants besides
challenging the outcome of his I-130 petition. 	However, where
the court cannot make any sense out of an incoherent complaint,
even after construing it liberally and in the light most
favorable to plaintiff, the complaint should be dismissed as
frivolous. 	See Gonzalez v. United States, 257 F.3d 31, 37 (1st
Cir. 2001). 	Indeed, Mr. Allen’s complaint is too incoherent to
determine what, exactly, any other claims he seeks to raise
would be about or how they would implicate any actions of the
defendants unrelated to the denial of Mr. Allen’s I-130
petition, which, as just discussed, the court lacks jurisdiction
to address. 	Therefore, to the extent Mr. Allen sought to raise
any other claims, they should be dismissed as frivolous. 	See
id. (stating that complaint can be dismissed as frivolous if
“the allegations contained in the complaint, taken in the light
most favorable to the plaintiff, are patently meritless and
beyond all hope of redemption”); see also Mallard v. United
States District Court, 490 U.S. 296, 307-08 (1989) (noting that
district courts have authority to dismiss frivolous or malicious
lawsuits even without specific statutory authorization).
Conclusion
For the foregoing reasons, it is recommended that the
district judge grant the defendants’ motion to dismiss for lack
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of jurisdiction (Doc. No. 11), dismiss the complaint, deny all
of the remaining pending motions (Doc. Nos. 17-20) without
prejudice as moot, and direct that judgment be entered and that
the case be closed. 	Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. 	See Fed. R. Civ. P. 72(b)(2). 	The fourteen-day
period may be extended upon motion. 	Failure to file specific
written objections to the Report and Recommendation within the
specified time waives the right to appeal the district court’s
order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016); Fed. R. Civ. P. 72(b)(2).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
August 5, 2021
cc: 	Bert John Allen III, pro se
Terry L. Ollila, Esq.
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