     Case: 17-40944      Document: 00514987059     Page: 1   Date Filed: 06/07/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit


                                    No. 17-40944                         FILED
                                                                      June 7, 2019
                                                                    Lyle W. Cayce
DOLORES MARGARITA GONZALEZ,                                              Clerk

                      Plaintiff - Appellant

v.

NORMA A. LIMON, Harlingen Field Office Director, Citizenship and
Immigration; UNITED STATES OF AMERICA,

                      Defendants - Appellees




                Appeal from the United States District Court
                     for the Southern District of Texas


Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      The United States Citizenship and Immigration Service (USCIS) denied
Dolores Margarita Gonzalez a certificate of citizenship, first in 2008, then
again in 2016. Gonzalez challenged only the agency’s 2016 denial. The
Government argues Gonzalez’s challenge is untimely, that the relevant five-
year limitations period runs from the first of her denials. Finding Gonzalez’s
action untimely, we affirm the district court’s dismissal of her claim.
                                          I.
      Gonzalez was born in 1962 in Tamaulipas, Mexico to an American father
and a Mexican mother. Her parents were not married at the time, but entered
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a putative marriage in 1972. In 1983, Gonzalez filed an application for a
certificate of citizenship with the Immigration and Naturalization Service
(INS). In 1984, INS determined that Gonzalez was legitimated when her
parents were married, and that she thereby acquired United States citizenship
through her father. The agency issued Gonzalez a certificate of citizenship.
      In 1991, however, INS notified Gonzalez it intended to cancel the
certificate of citizenship issued seven years earlier. In the intervening years,
INS had discovered that Gonzalez’s father “had an unterminated marriage
when he married [her] mother . . . rendering the [latter] marriage . . . invalid,”
such that Gonzalez was not legitimated. The agency provided an opportunity
for Gonzalez to rebut the finding, but she did not respond. Gonzalez claims she
never received the 1991 letter.
      No action was taken for fifteen years. Then, in 2006, INS’s successor
agency, USCIS, issued an order for the surrender and cancellation of
Gonzalez’s certificate of citizenship. Gonzalez surrendered her certificate and
immediately filed a motion for reconsideration with the agency. In this motion,
Gonzalez argued the cancellation was procedurally defective: she had not
received INS’s 1991 letter and therefore was denied an opportunity to contest
its findings. She also argued she had been properly legitimated under the
applicable Mexican law as the child of parents who entered a putative marriage
in good faith. On September 2, 2008, USCIS determined that its cancellation
decision was proper, and dismissed Gonzalez’s motion (the “2008 Denial”).
Gonzalez did not pursue an administrative appeal.
      On May 28, 2014, Gonzalez filed a new motion with USCIS, advancing a
new basis for the reconsideration of USCIS’s decision, namely that she had
been legitimated by her father’s sworn acknowledgement of paternity.
Gonzalez attached evidence in support of this argument: Social Security
records indicating the receipt of benefits as her father’s recognized daughter
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                                  No. 17-40944
and a copy of a certificate of United States citizenship issued to her sister in
2013. On November 14, 2014, USCIS determined that Gonzalez’s evidence
failed to establish that she had been legitimated, and dismissed the motion.
Gonzalez pursued an administrative appeal, and on January 29, 2016, the
Administrative Appeals Office affirmed the agency’s refusal to reopen her case
(“the 2016 Denial”).
      On April 5, 2017, Gonzalez filed the instant action against the USCIS
Harlingen Field Office Director as well as the United States (collectively “the
Government”) in the Southern District of Texas. Gonzalez alleged that, by
cancelling her certificate of citizenship and refusing to reconsider that decision,
USCIS unlawfully denied her a right or privilege claimed as a national of the
United States. She sought a declaration of her citizenship under 8 U.S.C. §
1503(a), as well as an injunction “enjoining [USCIS] from not re-issuing” her
certificate of citizenship.
      The Government moved to dismiss the action for lack of subject-matter
jurisdiction, arguing the suit was barred by Section 1503(a)’s limitations
provision because Gonzalez failed to bring her claim within five years of the
2008 Denial—the 2016 Denial did not restart the limitations clock. In addition,
Gonzalez failed to exhaust administrative remedies with respect to the 2008
Denial.
      The district court granted the Government’s motion and dismissed
Gonzalez’s action for lack of jurisdiction. Finding the text of the statute “silent
on whether the statute of limitation commences after the first or the most
recent final administrative denial,” the district court held that Section 1503(a)
includes an implicit limitation to the initial administrative denial. In the
absence of such a limitation, Gonzalez could restart the limitations period by
prompting duplicative denials—the “five-year requirement [would be]
meaningless.” The initial denial was the 2008 Denial, “[t]hus the five-year
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statute of limitations period commenced in 2008, and expired in 2013.” The
2016 Denial did “not modify the expiration of the five-year statute of
limitations.” Additionally, the district court held that Gonzalez failed to
exhaust administrative remedies with respect to the 2008 Denial. This appeal
followed. 1
                                            II.
       “Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute, which is not to be expanded by
judicial decree.” 2 We review jurisdictional issues de novo. 3 The court “must
presume that a suit lies outside [its] limited jurisdiction, and the burden of
establishing federal jurisdiction rests on the party seeking the federal forum.” 4
The court asks whether the plaintiff has carried her burden “to allege a
plausible set of facts establishing jurisdiction.” 5
       We must consider whether there is jurisdiction over Gonzalez’s claim.
Gonzalez alleges that under Section 1503(a), she is entitled to a declaration of
United States citizenship to remedy USCIS’s unlawful denial of a right or
privilege claimed as a United States national. Her claim raises a question of
federal law, 6 however, an action brought under Section 1503(a) must comply
with further jurisdictional requirements. Specifically, it “may be instituted




       1Gonzalez mentions that while this case was pending, she filed a new action, also in
the Southern District of Texas, “challenging the recent denial of her application for a U.S.
passport” under the Administrative Procedure Act.
      2 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations

omitted).
      3 Physician Hosps. of Am. v. Sebelius, 691 F.3d 649, 652 (5th Cir. 2012).
      4 Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
      5 Physician Hosps. of Am., 691 F.3d at 652.
      6 28 U.S.C. § 1331 (2012).



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only within five years after the final administrative denial of such right or
privilege.” 7
       The Government does not dispute that, formally, Gonzalez seeks a
declaration of nationality in connection with the 2016 Denial. Indeed, the
complaint alleges Gonzalez “has been denied a right or privilege claimed as a
national of the United States . . . by virtue of the decision of the Harlingen
Field Office Director cancelling her Certificate of Citizenship, and refusal to
reconsider that decision. This became a final agency action on January 29,
2016, when the AAO affirmed that decision.” Although it mentions both a
“cancell[ation]” and a “refusal to reconsider,” the complaint is directed at the
2016 Denial, with respect to which the parties agree Gonzalez exhausted
administrative remedies. The only dispute is whether Section 1503(a) permits
Gonzalez to seek a declaration in connection with the 2016 Denial given
USCIS’s prior denial in 2008.
       The Government argues we cannot interpret Section 1503(a) to allow
plaintiffs to “restart the clock” by means of a follow-on denial. The Government
argues that the Third, Seventh, and Eleventh Circuits, and more than one
district court have held that claims like Gonzalez’s are barred. 8 Henry v.
Quarantillo 9 comprehensively encapsulates the reasoning in these decisions.
Leroy Henry filed a N-600 application for citizenship, claiming citizenship
derived from his father’s naturalization; this application was denied in 1999. 10
In 2007, Henry filed a second N-600 application, making the same claim for


       78 U.S.C. § 1503(a). Additionally, a plaintiff must exhaust administrative remedies.
Rios-Valenzuela v. Dep’t of Homeland Sec., 506 F.3d 393, 397 n.4 (5th Cir. 2007).
      8 See Heuer v. U.S. Sec’y of State, 20 F.3d 424, 426–27 (11th Cir. 1994) (per curiam);

Bensky v. Powell, 391 F.3d 894, 897–98 (7th Cir. 2004); Whitehead v. Haig, 794 F.2d 115,
119–20 (3d Cir. 1986); Icaza v. Shultz, 656 F. Supp. 819, 821–23 (D.D.C. 1987).
      9 684 F. Supp. 2d 298 (E.D.N.Y. 2010).
      10 Id. at 300.



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citizenship, but attaching new evidence; USCIS denied this application too. 11
When in 2008 Henry filed a declaratory action under Section 1503(a), the court
found it untimely: Section 1503(a)’s reference to “the final administrative
denial” referred to the earliest of the denials. 12 While, “[s]tanding alone, [the
statute] might appear to indicate that any ‘final administrative denial,’
irrespective of whether another denial has occurred before it, counts,” 13 such
an approach would allow “an individual . . . indefinitely [to] prolong the period
. . . by continuing to file applications.” 14 “[T]he limitations period established
by Congress in section . . . 1503(a) would be empty of meaning.” 15 Henry’s
inclusion of new evidence with his second N-600 application made no
difference, because this evidence did not render the second process in any way
“qualitatively different” from the first. 16 Henry read Section 1503(a)’s reference
to “‘the final administrative denial’ to mean ‘the first final administrative
denial.’” 17 The concern in this line of cases is the want of finality attending
tolerance of repetitious challenges following duplicative denials. The
Government argues this case is in all relevant parts identical to Henry.
       Gonzalez, on the other hand, would have us resolve this case on the plain
meaning of the statutory text, construed liberally as a remedial statute. 18 She
points out that the statute includes no reference to a first or follow-on



      11  Id. at 301.
      12  Id. at 307–08.
       13 Id. at 306.
       14 Id. at 307 (quoting Icaza, 656 F. Supp. at 822–23).
       15 Id. (quoting Icaza, 656 F. Supp. at 823).
       16 Id.
       17 Id. (emphasis added).
       18 Gonzalez also argues that, because she did not exhaust administrative remedies in

2008, there was no cause of action and so no limitation period ran at all. This argument is
premised on the unsupported assumption that Section 1503’s limitations period only applies
where the plaintiff has developed a cause of action challenging the “final administrative
denial.”

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decision—only “the final administrative denial” from which the plaintiff’s
action arises. Section 1503(a)’s first sentence authorizes the district court to
adjudicate a claim by “any person who is within the United States” where the
plaintiff “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.” 19 Its last sentence 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.” 20 Gonzalez in effect contends that, in setting a limitations
period, Congress had no concern with the finality of administrative decisions
and with foreclosing opportunistic pleading via duplicative denials.
      We cannot agree with Gonzalez’s reading of the statute. While the text
is silent regarding duplicative denials, in defining a limitations period,
Congress expressed its interest in finality. Implicitly authorizing a series of
duplicative claims would frustrate that interest. Section 1503(a)’s reference to
“the final administrative denial” means the first final administrative denial.
                                         III.
      AFFIRMED.




      19   8 U.S.C. § 1503(a).
      20   Id.
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