United States District Court, D. Minnesota
MEMORANDUM AND ORDER
A. MAGNUSON UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Defendants' Motion to
Dismiss. For the following reasons, the Motion is granted.
Lien Kim Vo immigrated to the United States from Vietnam on a
K-1, fiancée visa and married her now ex-husband in
Minnesota on June 23, 2003. (Compl. (Docket No. 1) ¶ 8;
Compl. Ex. 4.) Vo is a Lawful Permanent Resident
(“LPR”) of the United States. (Compl. ¶ 14.)
On November 11, 2011, Vo applied for United States
citizenship. (Id. ¶ 19.)
September 16, 2016, Vo filed this lawsuit against the
Department of Homeland Security (“DHS”) District
Director for the District of Minnesota, Leslie Tritten,
United States Citizenship and Immigration Services
(“USCIS”) District Director Central Region, David
Douglas, Secretary of the DHS Jeh Johnson, and United States
Attorney General Loretta Lynch (collectively, the
“Defendants”). Count 1 alleges that Defendants
have refused to adjudicate her naturalization application.
Count 2 alleges that Defendants violated the Administrative
Procedure Act (“APA”) by failing to complete a
background check and timely adjudicate Vo's
naturalization application. Counts 3 and 4 are both titled
“Defendants' refusal to present certain documents
to Plaintiff” and allege that Defendants withheld
documents from Vo that claim her marriage was a sham.
survive a motion to dismiss for failure to state a claim, a
complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see
also Fed.R.Civ.P. 12(b)(6). A claim bears facial
plausibility when it allows the Court “to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. When evaluating a
motion to dismiss, the Court must accept factual allegations
as true, Gomez v. Wells Fargo Bank, N.A., 676 F.3d
655, 660 (8th Cir. 2012), but it need not give effect to
those that simply assert legal conclusions, McAdams v.
McCord, 584 F.3d 1111, 1113 (8th Cir. 2009).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, ” are
insufficient to support a claim. Iqbal, 556 U.S. at
Counts 1 and 2
1 and 2 allege that Defendants refused to adjudicate Vo's
naturalization application. That is false. USCIS denied
Vo's naturalization application on August 26, 2016,
almost a month before Vo filed this lawsuit. Vo even attached
the USCIS decision denying her naturalization application to
her Complaint. (Compl. Ex. 7.) Because USCIS adjudicated and
denied her naturalization application, Counts 1 and 2 are
moot. Vo concedes this. (Pl.'s Opp'n Mem. (Docket No.
16) at 2.) These claims are therefore dismissed.
Counts 3 and 4
3 and 4 are titled “Defendants' refusal to present
certain documents to Plaintiff.” Essentially, both
Counts assert that Defendants withheld documents from Vo that
claimed her marriage was a sham, and that were used against
her in the naturalization application process. But Vo does
not cite any statute or regulation in her Complaint that
requires Defendants to present documents to someone applying
construe Counts 3 and 4 as claims that they violated 8 C.F.R.
§ 103.2(b)(16)(i), which requires USCIS to advise a
naturalization applicant about information that would harm
their chances of becoming a citizen and allow the applicant
to rebut that information. Vo seems to concur that this is
the claim she is bringing. (Pl.'s Opp'n Mem. at 4-5.)
But § 103.2(b)(16)(i) does not require USCIS provide an
applicant with documents regarding their naturalization
application. Section § 103.2(b)(16)(i) only requires
that the applicant “be advised” of any derogatory
information regarding their application and be “offered
an opportunity” to rebut that information. 8 C.F.R.
§ 103.2(b)(16)(i); see also Mangwiro v.
Johnson, 554 F. App'x 255, 256 (5th Cir. 2014). Vo
fails to plead that she was not advised of the information
that her marriage was a sham and precluded from offering
rebuttal information. (See generally Compl.) In
fact, USCIS did provide Vo with an opportunity to rebut the
allegations that her marriage was a sham. (Compl. Ex. 7.)
argues that she states a claim upon which relief may be
granted under 8 U.S.C. § 1421(c). Section 1421(c) allows
a person who has had their naturalization application denied
to seek judicial review. Vo completely failed to raise this
issue in her Complaint. Instead, she raised it for the first
time in her opposition memorandum. But a plaintiff may not
amend a complaint through a memorandum or brief. See
Thomas v. United Steelworkers Local 1938, 743 F.3d 1134,
1140 (8th Cir. 2014); see also Fed.R.Civ.P. 15. She
therefore fails to state a claim upon which relief may be
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss
(Docket No. 11) is GRANTED and Vo's Complaint ...