In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3642
A NGIE O RTEGA,
Plaintiff-Appellant,
v.
E RIC H. H OLDER, JR., Attorney
General of the United States,
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cv-01121—Blanche M. Manning, Judge.
A RGUED A PRIL 15, 2009—D ECIDED JANUARY 15, 2010
Before F LAUM, R IPPLE and SYKES, Circuit Judges.
R IPPLE, Circuit Judge. Angie Ortega brought this action
for a declaration of nationality pursuant to 8 U.S.C.
§ 1503(a). The Government moved to dismiss the
complaint for lack of subject matter jurisdiction. The
district court granted the motion, and Ms. Ortega ap-
pealed. For the reasons set forth in the following opinion,
2 No. 08-3642
we reverse the judgment of the district court and remand
for further proceedings.
I
BACKGROUND
The Government commenced removal proceedings
against Ms. Ortega in September 2001; during the pro-
ceedings, Ms. Ortega claimed as a defense her status as a
national of the United States. On April 12, 2002, while
removal proceedings were pending, Ms. Ortega filed a
Form N-600 Application for Certificate of Citizenship. The
Chicago office of the former Immigration and Naturaliza-
tion Service (“INS”) denied the application twelve days
later, without a hearing. Ms. Ortega appealed the denial of
her application to the Office of Administrative Appeals
(“AAO”).
On May 7, 2002—the day after Ms. Ortega filed her
administrative appeal with the AAO—the Immigration
Judge (“IJ”) terminated the removal proceedings with
prejudice. The IJ determined that she had “established
that she acquired U.S. Citizenship through her [United
States citizen] father Alfredo Ortega pursuant to 301(g)” of
the Immigration and Nationality Act. R.1, Ex. 2. The
Government did not appeal the IJ’s decision.
On February 28, 2003, the AAO denied Ms. Ortega’s
administrative appeal with respect to her application for a
certificate of citizenship. On March 28, 2003, Ms. Ortega’s
counsel filed a motion to reconsider and to reopen with
the AAO, which brought to the AAO’s attention the
evidence presented to, and ruling of, the IJ. The AAO,
No. 08-3642 3
however, returned Ms. Ortega’s fee and motion on
April 14, 2003, and directed her to submit her request to
the local district office that made the original decision.
Ms. Ortega re-filed her motion with the local district
office on April 22, 2003; with this motion, she included a
letter explaining that she originally had submitted her
filing within the thirty-day window provided in 8 C.F.R.
§ 103.5, but mistakenly had sent it directly to the AAO.
Over four years later, on August 17, 2007, the AAO
denied Ms. Ortega’s motion as untimely. See R.14, Ex. C. In
rejecting Ms. Ortega’s motion, the AAO first noted the
requirement, under 8 C.F.R. § 103.5, to file a motion
within thirty days. It then observed that, “[b]y the appli-
cant’s counsel’s own admission, the instant motion
was sent erroneously to the AAO on March 28, 2003, and
was not properly filed with the Chicago district office
until April 23, 2003, almost two months after the
issuance of the AAO’s decision.” R.79. The AAO deter-
mined that the motion Ms. Ortega had filed was not a
motion to reopen; according to the AAO, the motion did
not state new facts to be proved because the pro-
ceedings before the Immigration Court predated the
AAO’s decision in this matter. The AAO continued,
stating:
The instant motion is instead, at best, a motion to
reconsider. A motion to reconsider must state the
reasons for reconsideration and be supported by
any pertinent precedent decisions to establish
that the decision was based on an incorrect ap-
plication of law or policy. A motion to reconsider
a decision on an application or petition must, when
4 No. 08-3642
filed, also establish that the decision was incorrect
based on the evidence of record at the time of the
initial decision. Whereas 8 C.F.R. § 103.5(a)(1)(i)
provides that a late motion to reopen may be ex-
cused in the discretion of CIS where it is demon-
strated that the delay was reasonable and was
beyond the control of the applicant or petitioner,
the regulations do not provide any discretion to
accept an untimely motion to reconsider. As the
instant motion constitutes, at best, a motion to
reconsider, the AAO cannot consider whether the
delay in filing it was reasonable or beyond the
applicant’s control. The motion must therefore
be rejected as untimely.
R.14, Ex. C at 2 (citations omitted).
Ms. Ortega then instituted this action in the United
States District Court for the Northern District of Illinois on
February 22, 2008. The complaint sought a declaration of
nationality pursuant to 8 U.S.C. § 1503(a), which is set
out in its entirety in the following discussion. The Gov-
ernment moved to dismiss the action on the ground that
the court was without jurisdiction to grant relief under
§ 1503(a). See R.11 at 3. It argued that,
[s]ince the Plaintiff first asserted her claim to
citizenship during her removal proceedings, her
status as a national arose “by reason of, or in
connection with” removal proceedings. Thus,
under the plain language of the statute, th[e Dis-
trict] Court d[id] not have jurisdiction to consider
Plaintiff’s claim of citizenship in this case.
Id. at 3 (quoting 8 U.S.C. § 1503(a)).
No. 08-3642 5
The district court granted the Government’s motion.
Relying on the decision of the Court of Appeals for the
Fifth Circuit in Rios-Valenzuela v. Department of Homeland
Security, 506 F.3d 393 (5th Cir. 2008), the district court held
that Ms. Ortega had raised her claim of citizenship in
removal proceedings prior to the time that she filed her
application for citizenship. Consequently, “the issue
of plaintiff’s citizenship ‘arose by reason of, or in connec-
tion with’ her removal proceeding.” R.25 at 3 (quoting
8 U.S.C. § 1503(a)).
Ms. Ortega timely appealed.
II
DISCUSSION
Our disposition of Ms. Ortega’s appeal depends upon
the meaning of 8 U.S.C. § 1503(a). Therefore we start, as
we must, with the language of the statute. See Autry v.
Nw. Premium Servs., Inc., 144 F.3d 1037, 1040 (7th Cir.
1998) (observing that the “starting point in any case
involving the meaning of a statute[] is the language of
the statute itself” (internal quotation marks and citations
omitted)). Section 1503(a) of Title 8 states:
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
6 No. 08-3642
2201 of Title 28 against the head of such depart-
ment or independent agency for a judgment de-
claring 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. An action under this
subsection may be instituted only within five
years after the final administrative denial of such
right or privilege and shall be filed in the district
court of the United States for the district in which
such person resides or claims a residence, and
jurisdiction over such officials in such cases is
conferred upon those courts.
8 U.S.C. § 1503(a) (emphasis added).
A.
The Government maintains that the “plain meaning” of
§ 1503(a)(1) requires dismissal of Ms. Ortega’s claim. It
first observes that it was “[o]nly upon initiation of
removal proceedings” that Ms. Ortega “assert[ed] citizen-
ship.” Appellee’s Br. 5. “Accordingly,” the Government
concludes, “it is beyond question that Ortega’s status
‘arose by reason of, or in connection with [her] removal
proceeding.’ ” Id.
The Government also notes that its position finds
support in case law, specifically the Fifth Circuit’s decision
No. 08-3642 7
in Rios-Valenzuela, 506 F.3d 393. In that case, Rios, like
Ms. Ortega, had filed an application for citizenship
while removal proceedings were still pending. As in
Ms. Ortega’s case, Rios’s application was denied by
the District Director. And in both cases, after removal
proceedings were terminated, the AAO denied the peti-
tioners’ appeals of the denial of their applications. When
Rios subsequently instituted an action under § 1503(a), the
district court dismissed the complaint for lack of juris-
diction, and the Fifth Circuit affirmed. The Fifth Circuit
concluded that the “text of the statute” supported the
Government’s position that the district court lacked
jurisdiction. Id. at 398. It explained that
“[t]he exception applies to claims of nationality
raised in removal proceedings.” It 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). The exception pre-
cludes jurisdiction over Rios’s citizenship claim
because his claim “arose by reason of, or in connec-
tion with” his removal proceeding: the issue of
Rios’s citizenship that forms the basis of his claim
here originates, at the least, in connection with
the removal proceedings.
The N-600 application process is, as Rios
argues, a proceeding separate from the removal
proceedings. But § 1503(a)(1) does not apply
depending on whether the proceedings are sepa-
rate; rather, it applies when the particular citizen-
ship issue “arose” in the removal proceeding. That
8 No. 08-3642
is, the exception focuses on the proceeding in which the
particular claim to citizenship originates, not the
proceeding in which it is being pursued.
Id. (footnote omitted; quoting Said v. Eddy, 87 F. Supp. 2d
937, 941 (D. Alaska 2000); emphasis added).
The Government does not believe that its interpreta-
tion of § 1503(a) forever bars an individual, who first
raises a claim of citizenship in the context of
removal, from obtaining a judicial declaration of citizen-
ship. According to the Government, once the removal pro-
ceedings—during which the plaintiff raised a claim of
citizenship—have terminated, any future action for a
declaration of citizenship would not “arise” from those re-
moval proceedings. Appellee’s Br. 11. After the termination
of those initial proceedings, therefore, the individual
could re-file his application for a certificate of citizenship
and, if denied, could institute an action under § 1503(a)
without encountering a statutory bar to jurisdic-
tion. Again, the Government turns to Rios-Valenzuela to
support its position. In Rios-Valenzuela, the court rejected
Rios’s claim that the Government’s “construction of the
exception means that jurisdiction under § 1503(a) is
always precluded when citizenship first arises in a
removal proceeding”; it explained:
[W]e 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 pro-
ceeding. So long as a citizenship claim finds its
genesis outside of the context of removal pro-
ceedings, the exception is no bar to jurisdiction;
No. 08-3642 9
thus, for example, once removal proceedings
have run their full course and terminated, any
future citizenship claim would not arise in those
removal proceedings. The Government concedes
this, explaining that “[i]f Rios-Valenzuela were
to again apply for citizenship at some future time,
when no removal proceedings have been initiated,
and the claim is denied, then, according to Said,
he would have a right to seek declaratory judg-
ment.” This narrower reading is consistent with
the concern that the federal courts not be used as
tools to frustrate and interfere with removal pro-
ceedings.
Rios-Valenzuela, 506 F.3d at 399.
B.
1. Statutory structure and language
Our efforts to discern § 1503(a)(1)’s meaning must start,
of course, with the words that Congress employed. We
shall give the words of a statute their “ordinary meaning
unless the context counsels otherwise.” United States v.
Webber, 536 F.3d 584, 593 (7th Cir. 2008) (citing McCarthy
v. Bronson, 500 U.S. 136, 139 (1991)). If the plain wording
of the statute is clear, our work is at an end. See id. (citing
BedRoc, Ltd. v. United States, 541 U.S. 176, 183 (2004) (noting
that the task of statutory interpretation “ends there [if]
the text is unambiguous”)). However, in interpreting
the wording of a statute, we must consider not only the
words of the statute, but also the statute’s structure:
10 No. 08-3642
“Context, not just literal text, will often lead a court to
Congress’ intent in respect to a particular statute.” Id.
(quoting City of Rancho Palos Verdes v. Abrams, 544 U.S.
113, 127 (2005) (Breyer, J., concurring)). Similarly, we
must take into account the relationship of the statute to
other provisions of the code. Congress does not legislate
in a vacuum. We must assume that Congress is cognizant
of other statutory provisions and expects its new enact-
ments to work in harmony with existing provisions.
We begin with the opening sentence of § 1503(a), which
states in relevant part: “If any person . . . 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, . . . 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 . . . declaring him to be a national of the United
States.” 8 U.S.C. § 1503(a). Thus, § 1503(a) first provides in-
dividuals, who have been denied a benefit of citizenship,
with a means of challenging the adverse administrative
action in court. Specifically, the individual may bring
a declaratory judgment action under 28 U.S.C. § 2201.
The right to bring such an action, however, is not guaran-
teed to every individual who has been aggrieved by an
agency action. The language of the statute continues:
“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
No. 08-3642 11
removal proceeding.” 8 U.S.C. § 1503(a). Taking the
exceptions in reverse order, an individual may not
institute a § 1503(a) action if nationality is “in issue,” that
is, being disputed, in an ongoing removal proceeding.
Additionally, an individual may not institute a § 1503(a)
action if “the issue of nationality,” that is, the parties’
dispute concerning nationality, arose by reason of or in
connection with a removal proceeding.
Taken together, the exceptions set forth in subsections
(a)(2) and (a)(1) are designed to protect removal pro-
ceedings from judicial interference and preserve 8 U.S.C.
§ 1252 as the exclusive means of challenging a final
order of removal. A party may not frustrate the Gov-
ernment’s effort to remove him by instituting an action
under 8 U.S.C. § 1503(a) while proceedings are ongoing.
Similarly, a party may not use § 1503(a) to frustrate Con-
gress’s effort to channel all appeals from removal pro-
ceedings—including those in which the alien raised
claims of nationality—through 8 U.S.C. § 1252.
When we look to the detailed procedure that Congress
instituted for review of removal proceedings, it is even
more clear that the jurisdictional exception in § 1503(a)
was directed only at those individuals whose claims of
nationality were being or had been litigated fully in
removal proceedings. First, Congress channeled all
appeals from final orders of removal to the courts of
appeals by way of 8 U.S.C. § 1252(a)(5). Second, Congress
established a specific procedure for reviewing claims of
nationality raised in the context of removal proceedings.
Section 1252(b)(5)(B) of Title 8 provides:
12 No. 08-3642
If the petitioner claims to be a national of the
United States and the court of appeals finds that a
genuine issue of material fact about the petitioner’s
nationality is presented, the court shall transfer
the proceeding to the district court of the United
States for the judicial district in which the peti-
tioner resides for a new hearing on the nationality
claim and a decision on that claim as if an action
had been brought in the district court under 2201 of
Title 28.
Id. (emphasis added). Thus, an individual whose claim
of nationality is rejected in the context of removal pro-
ceedings, and whose claim also involves a genuine and
material factual dispute, is provided the same mechanism
for redress set forth in 8 U.S.C. § 1503(a)—a declaratory
judgment action.
In sum, the language of § 1503(a)(1), read within the
context of § 1503(a) and also read in conjunction with
related provisions of Title 8, makes it clear that Congress
intended individuals to pursue one of two routes to
establish claims for nationality. Generally, a person may
file an administrative application for a certificate of
citizenship, which, if denied, could be pursued by way
of an action under 8 U.S.C. § 1503(a). However, if the
question of nationality first arises in the context of a
removal proceeding, the person must pursue his claims
through those proceedings, culminating either with a
declaration or denial of nationality.
No. 08-3642 13
2. The Operation of the Statutory Scheme
In enacting § 1503(a), Congress focused on the need to
protect the smooth operation of removal proceedings. It
also provided, however, that any individual whose
claim of citizenship was not recognized in administrative
proceedings eventually could seek an adjudication from
the district court on that claim. However, this statutory
scheme, while satisfying Congress’s primary focus of
protecting removal proceedings, did not anticipate the
possibility that an individual in removal proceedings,
whose claim of citizenship was accepted by the IJ,
would not be able to obtain complete relief through the
removal route. If an IJ were to credit an individual’s
defense of citizenship and, therefore, were to lift the
threat of removal, the individual would not obtain a
final order of removal—a prerequisite for pursuing
review under 8 U.S.C. § 1252 and, consequently, for
obtaining a judicial declaration of that citizenship. There
certainly is nothing in the language of the statute or in
the legislative history of § 1503(a) that would justify the
conclusion that Congress meant to leave an individual,
with more than a colorable claim of nationality, in legal
limbo—able to remain in this Country, but without any
means of establishing her nationality. Congress’s
solicitude in providing all others with a means of ob-
taining a certificate of citizenship either through the
general application process or through the removal
process evinces Congress’s concern that individuals be
able to settle, definitively, the issue of citizenship. Indeed,
it would be disrespectful to impute to Congress a desire
to leave someone in Ms. Ortega’s situation permanently
out in the cold.
14 No. 08-3642
Because Congress gave no explicit statutory direction
and because there is nothing in the statute to lead us to
conclude that Congress desired individuals like
Ms. Ortega to be without any remedy, we believe that the
appropriate course—and one suggested by both the
Government and the Fifth Circuit—is simply to have
her begin the process of establishing her nationality
anew. At oral argument, the Government assured us that
there was no impediment to Ms. Ortega’s filing a new
application for citizenship. It explicitly repeated that
assertion in its supplemental submission.
The Government’s representation is not totally accu-
rate. The regulations do not prohibit a second application
for citizenship; however, as we read them, they do limit the
circumstances under which a second application will be
considered. With respect to denial of an application for a
certificate of citizenship, the regulations provide:
If it is the decision of the district director to deny
the application for a Certificate of Citizenship, the
applicant shall be furnished the reasons for denial
and advised of the right to appeal in accordance
with the provisions of 8 CFR 103.3(a). After an
application for a Certificate of Citizenship has
been denied and the appeal time has run, a
second application submitted by the same individual
shall be rejected and the applicant instructed to
submit a motion for reopening or reconsideration in
accordance with 8 CFR 103.5. The motion shall be
accompanied by the rejected application and the
fee specified in 8 CFR 103.7 reduced by the amount
No. 08-3642 15
of the fee paid with the rejected application. A
decision shall be issued with notification of appeal
rights in all Certificate of Citizenship cases, in-
cluding any case denied due to the applicant’s
failure to prosecute the application.
8 C.F.R. § 341.6 (emphasis added). For its part, 8 C.F.R.
§ 103.5 provides that motions to reconsider must
“establish that the decision was based on an incorrect
application of law or Service policy,” 8 C.F.R. § 103.5(a)(3),
and must be made within thirty days of the decision
that the motion seeks to reconsider, id. § 103.5(a)(1)(i).
Motions to reopen must state “new facts to be provided
in the reopened proceedings,” id. § 103.5(a)(2), and must
be made within thirty days, id. § 103.5(a)(1)(i); however,
the immigration authorities may excuse, in their discre-
tion, an untimely motion to reopen “where it is demon-
strated that the delay was reasonable and was beyond
the control of the applicant or petitioner,” id.
We believe that an individual, such as Ms. Ortega, who
is armed with an order of an IJ terminating removal
proceedings in her favor, certainly will make at least a
prima facie showing that both her change of status (as non-
removable) and the termination of removal proceedings
constitute new facts for purposes of a motion to reopen.
Cf. Johnson v. United States, 544 U.S. 295, 302 (2005) (holding
that the vacatur of an underlying state-court judgment is
a fact, the discovery of which triggers the running of the
16 No. 08-3642
statute of limitations under 28 U.S.C. § 2255). 1 Although
such an individual still must rely on the agency’s discre-
tion to reopen such proceedings, we have to believe
that the agency will exercise this discretion judiciously
and with an eye to accomplishing Congress’s purpose in
enacting § 1503(a) and § 1252(b). See FCC v. Schreiber, 381
U.S. 279, 296 (1965) (noting “the presumption to which
administrative agencies are entitled—that they will act
properly and according to law”); Rhoa-Zamora v. INS, 971
F.2d 26, 34 (7th Cir. 1992) (observing that “agency action
is entitled to a presumption of regularity” (internal quota-
tion marks and citations omitted)).
3. Application to Ms. Ortega
The citizenship claim that Ms. Ortega pursued in her
original application for a certificate of citizenship
1
Given this authority, the AAO’s determination that Ms.
Ortega’s motion is “at best” a motion to reconsider is problem-
atic. R.14, Ex. C at 2. According to the Government’s own
submission, whether an individual is in removal proceedings
at the time she files a N-600 application is a jurisdictional fact
for purposes of 8 U.S.C. § 1503, that is, the termination of
proceedings is a fact bearing on the applicant’s eligibility for
ultimate relief in the district court. It follows, therefore, that
the applicant’s effort to bring this fact to the agency’s atten-
tion should be characterized as a motion to reopen—the
mechanism by which an individual brings new facts before
the agency—as opposed to a motion to reconsider, which is
focused on errors of law.
No. 08-3642 17
arose as a result of or in connection with her removal pro-
ceedings. Thus, § 1503(a)(1) prevents her from challenging
the administrative denial of that application by way of
a declaratory judgment action. Instead, Ms. Ortega was
required to re-file her application as a motion to reopen
or a motion to reconsider;2 this action, in essence, would
have separated her administrative action from her
prior removal proceedings and eliminated the jurisdic-
tional bar to any court action created by way of
§ 1503(a)(1).
On further review of Ms. Ortega’s administrative file,
however, we have ascertained that Ms. Ortega in fact
has accomplished this necessary step. As we have dis-
cussed in some detail, 8 C.F.R. § 341.6 requires that any
subsequent application for citizenship be filed as a
motion to reconsider or to reopen. In this case, Ms. Ortega
did file a motion to reconsider or to reopen after the
AAO denied her appeal and after her removal proceedings
had been terminated. Indeed, her motion for reopening or
reconsideration explicitly alerted the AAO to the fact
that removal proceedings had been terminated in her
favor. The filing of this motion, by the Government’s
concession and consistent with the Fifth Circuit’s decision
in Rios-Valenzuela, removed the “albatross” of the prior
2
See 8 C.F.R. § 341.6 (“After an application for a Certificate of
Citizenship has been denied and the appeal time has run, a
second application submitted by the same individual shall
be rejected and the applicant instructed to submit a motion
for reopening or reconsideration in accordance with 8 CFR
103.5.”).
18 No. 08-3642
removal proceedings from Ms. Ortega’s neck and took
her outside of the exception set forth in § 1503(a)(1).
Because Ms. Ortega’s motion to reopen or reconsider
is, by the Government’s own regulation, the correct
substitute for a second application for a certificate of
citizenship, Ms. Ortega’s motion satisfied the Govern-
ment’s requirement that she reinstitute an administrative
action after the termination of removal proceedings.
Having done so, and having been denied administrative
relief, there is no longer a jurisdictional impediment to
her instituting a declaratory judgment action under
§ 1503(a) because the action that she is challenging is not
tainted by its connection to removal proceedings.
Conclusion
For the foregoing reasons, the judgment of the district
court dismissing Ms. Ortega’s complaint for lack of subject
matter jurisdiction is reversed, and the case is remanded
for further proceedings.
R EVERSED AND R EMANDED
1-15-10