                    Case: 12-12990          Date Filed: 12/11/2012   Page: 1 of 8

                                                                        [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-12990
                                        Non-Argument Calendar
                                      ________________________

                            D.C. Docket No. 6:11-cv-01244-GAP-KRS



MARKO MILAKOVICH,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellant,

                                                  versus

USCIS - ORLANDO,
MARGARET IGLESIAS,
individually,
PAULINE MCGAHEY,
individually,

llllllllllllllllllllllllllllllllllllllll                                Defendants-Appellees.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (December 11, 2012)
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Before MARCUS, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Marko Milakovich, proceeding pro se, appeals the district court’s grant of the

defendants’ motion to dismiss for lack of jurisdiction and failure to state a claim, in

an action alleging violations of the Fifth and Fourteenth Amendments, various

provisions of the Immigration and Nationality Act (“INA”), and 18 U.S.C. § 242. On

appeal, Milakovich argues that: (1) the district court incorrectly concluded that it

lacked jurisdiction over: (a) his claim that the U.S. Citizenship and Immigration

Services (“USCIS”) violated his and his foreign-born, adopted sons’ due process

rights by failing to process Forms I-600 that he filed on behalf of his sons; (b) his

request for a grant of citizenship to his sons, under 8 U.S.C. §§ 1401, 1431, and 1449;

(c) his request for a grant of “all lost Social Security benefits” resulting from

improper USCIS actions; and (d) his alternative request for a grant of legal permanent

resident (“LPR”) status to his sons, under 8 U.S.C. § 1255; and (2) the district court

improperly dismissed his claim against two USCIS employees under Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and

erroneously failed to give him an opportunity to repair any deficiencies in his pro se

pleadings. After careful review, we affirm.




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       When evaluating a district court’s conclusions on a motion to dismiss for lack

of subject matter jurisdiction, we review the district court’s legal conclusions de novo

and its factual findings for clear error. Zinni v. ER Solutions, Inc., 692 F.3d 1162,

1166 (11th Cir. 2012). We review de novo a dismissal for failure to state a claim,

accepting the allegations in the complaint as true and construing them in the light

most favorable to the plaintiff. Lanfear v. Home Depot, Inc., 679 F.3d 1267, 1275

(11th Cir. 2012). Although pro se briefs are to be liberally construed, a pro se litigant

who offers no substantive argument on an issue in his initial brief abandons that issue

on appeal. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).1 We may

affirm on any ground that appears in the record, whether or not it was relied upon or

considered by the district court. Lanfear, 679 F.3d at 1275. A complaint is subject

to dismissal for failure to state a claim if it does not state a plausible claim for relief

on its face. Id. The allegations in the complaint must be enough to raise a right to

relief above the speculative level, on the assumption that all allegations in the

complaint are true. Id.

       First, we are unpersuaded by Milakovich’s argument that the district court

erred in dismissing his claims against the USCIS. In order for a person to be deemed


       1
          As a result, Milakovich has abandoned any claims he raised before the district court but
failed to raise on appeal, including those under the Administrative Procedure Act. See Timson,
518 F.3d at 874.

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a U.S. citizen at birth under § 1401, the person must have been (a) born either in the

United States or to at least one U.S. citizen; or (b) found in the United States while

under the age of five. 8 U.S.C. § 1401. In order for a child adopted by a U.S. citizen

parent to automatically acquire citizenship under § 1431, the child must be admitted

as an LPR. 8 U.S.C. § 1431(a)(3), (b). Section 1449 identifies the information that

should be included in a certificate of naturalization. 8 U.S.C. § 1449. The status of

an alien admitted into the United States may be adjusted to that of an LPR by the

Attorney General, at his discretion. 8 U.S.C. § 1255(a). With the exception of

decisions related to applications for asylum, federal courts lack jurisdiction to review

a decision or action of the Attorney General or the Secretary of Homeland Security,

the authority for which is specified to be in the discretion of either official. See 8

U.S.C. § 1252(a)(2)(B); see also 8 U.S.C. § 1158(a). Finally, § 242 is a criminal

statute that provides no basis for civil remedies. See Hanna v. Home Ins. Co., 281

F.2d 298, 303 (5th Cir. 1960);2 see also Otero v. U.S. Att’y Gen., 832 F.2d 141, 141

(11th Cir. 1987) (holding that a private citizen has no judicially cognizable interest

in the prosecution or non-prosecution of another).




       2
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.

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      To begin with, regardless of whether the district court had jurisdiction over

Milakovich’s claims under §§ 1401, 1431, and 1449, he failed to state a claim under

any of those statutes. His sons were not born either in the United States or to at least

one U.S. citizen; nor were they found in the United States while under the age of five.

Accordingly, Milakovich failed to show that his sons were U.S. citizens under §

1401. See 8 U.S.C. § 1401; Lanfear, 679 F.3d at 1275. Because his sons were not

LPRs, Milakovich failed to show that his sons were eligible for automatically

acquired citizenship under § 1431. See 8 U.S.C. § 1431(a)(3), (b). Because his sons

had not yet received certificates of naturalization, he failed to establish a right to

relief under § 1449. See 8 U.S.C. § 1449.

      The district court also properly dismissed Milakovich’s claim under § 1255,

because the authority to grant an adjustment to LPR status is vested in the Attorney

General, and federal courts lack jurisdiction to review this discretionary

determination. See 8 U.S.C. §§ 1252(a)(2)(B), 1255(a). Because he alleged no facts

establishing that his sons were eligible for social security benefits that were denied

to them, the district court also properly denied relief on this claim. See Lanfear, 679

F.3d at 1275.

      To the extent that Milakovich sought relief under § 242, that statute is a

criminal statute that provides no basis for civil remedies. See Otero, 832 F.2d at 141;

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Hanna, 281 F.2d at 303. Similarly, Milakovich has identified no authority for the

proposition that the defendants’ alleged violations of 20 C.F.R. § 416.1618 or the

USCIS Adjudicator’s Field Manual provide a basis for judicially cognizable relief.

Finally, to the extent that Milakovich sought relief with respect to the handling of his

sons’ I-600 applications, he has alleged no facts suggesting that, had the defendants

processed the applications more quickly, he or his sons would have received benefits

to which they were constitutionally entitled, and he does not dispute that he was no

longer entitled to file the applications after his sons arrived in the United States.

      Next, we reject Milakovich’s claim that the district court erred in dismissing

his Bivens cause of action. Bivens allows for a claim against a federal agent who,

while acting under color of federal law, has violated the constitutional rights of an

individual. See Hardison v. Cohen, 375 F.3d 1262, 1264 (11th Cir. 2004).

      A party may amend its pleading once as a matter of course within 21 days after

serving it, or, if the pleading is one to which a responsive pleading is required, 21

days after the earlier of service of a responsive pleading or of a motion under

Fed.R.Civ.P. 12(b), (e), or (f). Fed.R.Civ.P. 15(a)(1). In all other cases, a party may

amend its pleading only with the opposing party’s written consent or the court’s

leave, which should be freely given if the underlying facts or circumstances relied

upon by a plaintiff may be a proper subject of relief. See Fed.R.Civ.P. 15(a)(2); Hall

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v. United Ins. Co. of Am., 367 F.3d 1255, 1262 (11th Cir. 2004). A party ordinarily

must be given at least one opportunity to amend before the district court dismisses the

complaint. Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005). A district

court need not, however, allow an amendment where it would be futile, i.e., where the

complaint as amended would still be subject to dismissal. Hall, 367 F.3d at 1262-63.

      In this case, Milakovich has not alleged facts sufficient to establish that either

individual defendant violated his or his sons’ constitutional rights. As we’ve

discussed above, he does not dispute that he was not entitled to file I-600 applications

after his sons arrived in the United States, and he has failed to explain how any delay

in processing the applications while he was overseas violated his or his sons’

constitutional rights. To the extent that he sought relief for the defendants’ alleged

failure to inform him of “corrective measures,” this claim is refuted by his own

admission that, after he and his sons arrived in the United States, he was instructed

to file additional forms, but declined to do so.

      Milakovich’s argument that the district court should not have dismissed his

Bivens claims without giving him another opportunity to repair deficiencies in his pro

se pleadings in a third amended complaint is meritless. He has not indicated how he

would have cured the remaining deficiencies in his complaint, had he been permitted




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to do so, and nothing in the record suggests that another amendment would not have

been futile. See Hall, 367 F.3d at 1262-63.

      AFFIRMED.




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