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Marshall v. Swanson

U.S. District Court, District of Minnesota

Marshall v. Swanson

Trial Court Opinion

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                

Evelyn M.,1                           File No. 23-cv-3478 (ECT/ECW)       

     Petitioner,                                                     

v.                                       OPINION AND ORDER                

Trina M. Swanson, Field Office Director,                                  
SP-M Field Office, U.S. Citizenship, and                                  
Immigration  Services  (“USCIS”);  David                                  
Douglas, District Director USCIS, District                                
C32; Ur M. Jaddou, Director of USCIS;                                     
Merrick B. Garland, U.S. Attorney General;                                
and Alejandro Mayorkas, Secretary of U.S.                                 
Department of Homeland Security,                                          

     Respondents.                                                    

Karen Venice Bryan, KB Law Firm, Minnetonka, MN, for Petitioner Evelyn M.   
James Cottrell Graulich, III, U.S. Department of Justice, Washington, D.C., and Lucas B. 
Draisey, U.S. Attorney’s Office, Minneapolis, MN, for Respondents Trina M. Swanson, 
David Douglas, Ur M. Jaddou, Merrick B. Garland, and Alejandro Mayorkas.  


Petitioner  Evelyn  M.  applied  for  permanent  residency  status,  a  precursor  to 
naturalization as a United States citizen, and USCIS2 granted her application in 2012.  
Evelyn then applied for naturalization in 2020.  In reviewing Evelyn’s naturalization 
application, USCIS discovered that Evelyn had failed to disclose important information in 

1    In accordance with District policy, Petitioner is identified by reference to her first 
name and last initial.                                                    
2    USCIS is short for United States Citizenship and Immigration Services.   
her previous permanent-residency application.  As a result of this discovery, USCIS 
determined that Evelyn had willfully misrepresented material facts and had not been 
lawfully admitted to permanent residency.  It denied her naturalization application on these 

grounds.  In this case, Evelyn seeks de novo review of the denial.  She asserts claims under 
the Immigration and Nationality Act’s review provision,
8 U.S.C. § 1421
(c), under the 
Administrative Procedure Act, 5 U.S.C. §§ 701–706, and under the Declaratory Judgment 
Act,
28 U.S.C. § 2201
.                                                    
Respondents seek dismissal of the case under Federal Rules of Civil Procedure 

12(b)(1) and 12(b)(6).  Respondents’ motion will be granted.  Evelyn has not alleged facts 
plausibly showing that Respondents—or any of them—violated the Immigration and 
Nationality Act.  This conclusion dooms Evelyn’s claim under the Declaratory Judgment 
Act.  And there is not subject-matter jurisdiction over her Administrative Procedure Act 
claim.                                                                    

                           I                                         
Before turning to the facts, the scope of the record from which the facts will be 
drawn deserves clarification.  The general rule is that a federal court should not consider 
matters outside the pleadings in resolving a Rule 12(b)(6) motion to dismiss.  See Fed. R. 
Civ. P. 12(d); Zean v. Fairview Health Servs.,
858 F.3d 520, 526
 (8th Cir. 2017).  The same 
rule applies to a so-called “facial” challenge to subject-matter jurisdiction—that is, a 

challenge not supported by extra-pleading materials—which is the type of challenge 
Respondents bring here.  Osborn v. United States,
918 F.2d 724
, 729 n.6 (8th Cir. 1990) 
(noting that, in analyzing a facial challenge, a court “restricts itself to the face of the 
pleadings, and the non-moving party receives the same protections as it would defending 
against a motion brought under Rule 12(b)(6).” (citations omitted)).  Regardless, the law 
is clear that several categories of documents beyond a pleading’s allegations appropriately 

may  be  considered  in  resolving  a  Rule  12(b)(6)  motion  or  a  facial  challenge  to 
subject-matter jurisdiction.  These include “matters incorporated by reference or integral 
to the claim, items subject to judicial notice, matters of public record, orders, items 
appearing  in  the  record  of  the  case,  and  exhibits  attached  to  the  complaint  whose 
authenticity is unquestioned.”  Zean,
858 F.3d at 526
 (citation omitted).   

Between them, Evelyn and Respondents have submitted nine exhibits in connection 
with the motion to dismiss, see ECF Nos. 1-1, 13, 20, and it is appropriate to consider all 
nine exhibits at this stage.  Four exhibits may be considered because they are attached to 
Evelyn’s Petition and Respondents do not dispute these four exhibits’ authenticity.  See 
Zean,
858 F.3d at 526
.  These four exhibits are: (1) Evelyn’s Permanent Resident (or 

“Green”) Card; (2) correspondence from USCIS dated April 28, 2023, denying Evelyn’s 
naturalization application; (3) an affidavit dated August 29, 2023, filed by Evelyn in 
support of her administrative challenge to the denial of her naturalization application; and 
(4) correspondence from USCIS dated October 23, 2023, affirming the decision to deny 
Evelyn’s naturalization application.  See ECF No. 1-1 at 1–12.  Three exhibits may be 

considered because they are incorporated by reference and integral to the claims asserted 
in Evelyn’s Petition.  See Zean,
858 F.3d at 526
.  These three exhibits are: (1) Evelyn’s 
Form I-485 application, ECF No. 13-1; (2) Evelyn’s Form I-360 petition, ECF No. 13-2; 
and (3) the report of a psychological evaluation supporting Evelyn’s permanent-residency 
application, ECF No. 20-3.  See Pet. [ECF No. 1] ¶¶ 2, 24, 28, 45.  The remaining two 
exhibits are USCIS notices provided to Evelyn.  ECF Nos. 20-1, 20-4.3  These documents 
appear to fall in the “matters of public record” category.  See Zean,
858 F.3d at 526
.  The 

bottom line, then, is that the facts will be drawn from the Petition’s allegations and all nine 
documents the parties submitted.                                          
                           II                                        
Petitioner.  Evelyn’s own submissions create some confusion regarding her country 
of origin.  In the Petition, Evelyn alleges she is a citizen and native of Nigeria.  Pet. ¶¶ 11, 

22.  Evelyn’s application materials, however, indicate she is from Uganda.  See ECF No. 
13-1 at 1, ECF No. 13-2 at 2, ECF No. 20-3 at 1–3.  Regardless, Evelyn has held permanent 
resident status in the United States since 2012.  Pet. ¶¶ 1, 22.          
Respondents.  Respondents are five federal officials sued only in their official 
capacities.
Id.
 ¶¶ 12–16.  Trina M. Swanson is the USCIS Saint Paul-Minneapolis Field 

Office Director.  Id. ¶ 12.  Ms. Swanson denied Evelyn’s naturalization application.  Id.  
David  Douglas  is  the  USCIS  District  C32  Director.    Id. ¶ 13.    He  possesses 
decision-making authority with respect to matters alleged in the Petition.  Id.  Ur M. Jaddou 
is the USCIS Director.  Id. ¶ 14.  Alejandro Mayorkas is the Secretary of Homeland 
Security.  Id. ¶ 15.  Merrick Garland is the Attorney General.  Id. ¶ 16.   
Evelyn’s marriage to Steven M.  Evelyn married Steven M., an American citizen, 

on November 26, 2003.  ECF No. 13-2 at 5.  Evelyn and Steven lived together in California 


3    ECF No. 20-2 is duplicative of the affidavit at ECF No. 1-1 at 8–9.  
from then until November 2007.  Id.  It is unclear whether or when Evelyn and Steven 
divorced.  See ECF No. 20-3 at 2 (stating Evelyn was still legally married to Steven as of 
August 2010); ECF No. 1-1 at 8–9 (referring to Steven as Evelyn’s “then-spouse” in 

August 2023, implying she had ceased to be Steven’s spouse at some previous time).   
USCIS’s denial of permanent resident card for Evelyn.  At some point during the 
marriage, Steven filed a Form I-130 Petition for Alien Relative.  Pet. ¶ 28.  If approved, 
the application would have entitled Evelyn to a Permanent Resident (or “Green”) Card.  
See I-130, Petition for Alien Relative, USCIS, https://www.uscis.gov/i-130 (last visited 

May 28, 2024).  USCIS denied the petition in 2009 “for failure to establish that [the] 
marriage was entered into in good faith and not solely for immigration purposes.”  ECF 
No. 1-1 at 5.                                                             
Evelyn’s relationship with Elijah M. in Minnesota.  Steven was abusive, and Evelyn 
occasionally traveled to Minnesota to escape Steven’s abuse.  Pet. ¶ 29; see id. at 12 ¶ 4.  

On one of her Minnesota visits, Evelyn began a sexual relationship with Elijah M.  Id. ¶ 43; 
ECF No. 1-1 at 8.  Evelyn and Elijah had two children together, both born in Minnesota.  
Pet. ¶ 29; ECF No. 1-1 at 5, 8.  The children were born in November 2004 and October 
2007, while Evelyn was married to Steven and purportedly living with him in California.  
ECF No. 1-1 at 5.                                                         

USCIS’s grant of permanent residency to Evelyn.  In September 2010, Evelyn filed 
a Form I-360 Petition for Amerasian, Widow(er), or Special Immigrant.  Id.; Pet. ¶ 22.  
With a Form I-360, noncitizens may petition for lawful status as, among other things, a 
spouse of an abusive United States citizen.  I-360, Petition for Amerasian, Widow(er), or 
Special  Immigrant,  USCIS,  https://www.uscis.gov/i-360  (last  visited  May  28,  2024).  
Significant here, though Evelyn had two children with Elijah when she filed her I-360 
petition, see ECF No. 1-1 at 5, and though the Form I-360 requires a petitioner to list all 

her children, Evelyn did not list her two children with Elijah on her petition.  Id.; ECF No. 
13-2 at 11–13.  USCIS granted Evelyn’s petition.  Pet. ¶ 22.  Evelyn subsequently filed a 
Form I-485 application for an adjustment of status.  See ECF No. 13-1.  As with her I-360 
petition, Evelyn did not list the two children with Elijah on the Form I-485.  ECF No. 13-
1 at 3.  (To be clear, Evelyn listed three children she had adopted, but these did not include 

her two children with Elijah.  See id.)  USCIS approved Evelyn’s I-485 application and 
adjusted her status to that of permanent resident on August 13, 2012.  Pet. ¶ 22; see ECF 
No. 13-1 at 1.                                                            
Evelyn’s naturalization application.  In July 2020, Evelyn filed a Form N-400 
Application for Naturalization with USCIS.  Pet. ¶ 23.  Evelyn listed her two children with 

Elijah on this form.  Id.  On November 18, 2021, Evelyn was interviewed under oath by 
USCIS to determine her eligibility for naturalization.  ECF No. 1-1 at 5.  To qualify for 
naturalization, an applicant must meet several criteria; these include, for example, being at 
least 18 years of age and demonstrating a basic knowledge of United States history and 
government.    Id.  at  4;  see  also
8 C.F.R. § 316.2
(a).    Relevant  here,  another  of  the 

naturalization requirements is to “[b]e lawfully admitted for permanent residence.”  ECF 
No. 1-1 at 4; see also
8 C.F.R. § 316.2
(a)(2).                            
USCIS’s denial of Evelyn’s naturalization application.  On April 28, 2023, USCIS 
determined that Evelyn was “not lawfully admitted for permanent residence” because she 
“concealed and misrepresented materials facts” on her I-360 and I-485 applications.  ECF 
No. 1-1 at 5; Pet. ¶¶ 1–2, 24.  Specifically, USCIS found that Evelyn failed to disclose the 
existence of her two children with Elijah on the I-360, on the I-485, and during her 

psychological interview.  ECF No. 1-1 at 5.  USCIS found that Evelyn had given birth to 
the children in Minnesota, obtained a Minnesota driver’s license, been cited for traffic 
violations around the Twin Cities, and listed addresses in Minneapolis on permit and 
license applications during the period she claimed to be living in California with her 
American husband.
Id.
 at 5–6.  USCIS concluded it therefore “erred in granting [Evelyn] 

adjustment of status to lawful permanent resident” because of the misrepresentations 
regarding her children and residency.  ECF No. 1-1 at 7.  Because Evelyn was not 
“lawfully” admitted as a permanent resident, USCIS concluded, she failed naturalization 
requirements; USCIS denied Evelyn’s N-400 Application for Naturalization on April 28, 
2023.  Id.; Pet. ¶ 25.                                                    

Administrative hearing on USCIS’s denial of Evelyn’s naturalization application.  
On May 25, 2023, Evelyn requested an administrative hearing on the decision to deny her 
naturalization application.  Pet. ¶ 27.  The hearing was held August 30, 2023.
Id. ¶ 28
.  
Evelyn appeared at the hearing and submitted an affidavit attesting that she did not intend 
to conceal or misrepresent information about her children or residency.  Id.; see ECF No. 

1-1 at 8–9.  In the affidavit, Evelyn testified that her counsel prepared the application and 
that Evelyn “signed the application without reviewing it thoroughly,” leading to the 
children’s omission.  ECF No. 1-1 at 8.  On October 23, 2023, USCIS affirmed its decision 
to  deny  naturalization  on  the  same  grounds  as  its  initial  decision—i.e.,  Evelyn’s 
misrepresentations regarding her children and her residency in connection with her I-360 
and I-485 applications.  Pet. ¶ 30; ECF No. 1-1 at 10–12.                 
This case.  Evelyn filed her Petition commencing this case in November 2023.  She 

asserts four claims in the Petition against all Respondents.  In Count I, Evelyn alleges 
Respondents violated the Immigration and Nationality Act.  Pet. ¶¶ 34–46.  In Count II, 
Evelyn alleges Respondents violated the Administrative Procedure Act.
Id.
 ¶¶ 47–54.  In 
Count III, Evelyn seeks declaratory relief under the Declaratory Judgment Act,
28 U.S.C. § 2201
.
Id.
 at 11–12, ¶¶ 1–5.4  In Count IV, Evelyn asserts a claim for costs and attorney 

fees.
Id. at 13
, ¶¶ 6–10.  For relief, Evelyn seeks an order vacating the denial of her 
naturalization  petition  and  an  order  either  granting  her  naturalization  application  or 
remanding the application to USCIS for further proceedings.  Pet. at 13, ¶¶ a–b.  Evelyn 
also requests entry of a preliminary injunction to maintain the status quo until the suit is 
concluded on the merits,
id. at 14
, ¶¶ c–g, though she has filed no motion seeking this relief.   

                          III                                        
                           A                                         
Respondents seek a Rule 12(b)(6) dismissal of Evelyn’s claim under
8 U.S.C. § 1421
(c).  The standards governing this aspect of Respondents’ motion are familiar.  In 
reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court must 
accept as true all factual allegations in the complaint and draw all reasonable inferences in 

the plaintiff’s favor.  Gorog v. Best Buy Co.,
760 F.3d 787, 792
 (8th Cir. 2014) (citation 


4    The Petition’s paragraph numbering restarts on page 11, after ¶ 54.   
omitted).  Although the factual allegations need not be detailed, they must be sufficient to 
“raise a right to relief above the speculative level.”  Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555
 (2007) (citation omitted).  The complaint must “state a claim to relief that is 

plausible on its face.”
Id. at 570
.  “A claim has facial plausibility when the plaintiff pleads 
factual content that allows the court to draw the reasonable inference that the defendant is 
liable for the misconduct alleged.”  Ashcroft v. Iqbal,
556 U.S. 662, 678
 (2009).  “[T]he 
tenet that a court must accept as true all of the allegations contained in a complaint is 
inapplicable to legal conclusions.”  Id.5                                 

                           B                                         
Lawful  admission  to  permanent  residency  is  a  prerequisite  to  naturalization.
8 U.S.C. § 1429
 (“[N]o person shall be naturalized unless [s]he has been lawfully admitted 
to the United States for permanent residence in accordance with all applicable provisions 
of this chapter.”); see also
8 C.F.R. § 316.2
(a)(2) (requiring a citizenship applicant to 


5    Section 1421(c) commands that the district court “shall make its own findings of 
fact  and conclusions of law and shall, at the request of the petitioner, conduct a hearing de 
novo  on  the  application.”    At  least  one  district  court  within  the  Eighth  Circuit  has 
questioned whether these commands preclude a district court from dismissing a § 1421(c) 
petition under Rule 12(b)(6).  See Kulkarni v. Wolf, No. 4:20-00089-CV-RK,
2020 WL 9065826
, at *2 (W.D. Mo. May 28, 2020).  The Second Circuit has answered this question.  
In Chan v. Gantner, that court held that a district court may in appropriate circumstances 
dismiss a § 1421(c) petition short of conducting a bench trial.
464 F.3d 289
, 295–96 (2d 
Cir. 2006).  Other circuit courts of appeals have reached or implicitly endorsed this same 
conclusion.  See Nanje v. Chaves,
836 F.3d 131
, 134–37 (1st Cir. 2016); Abulkhair v. Bush, 
413 Fed. App’x 502, 507 n.4 (3d Cir. 2011); Cernuda v. Neufeld, 307 Fed. App’x 427, 431 
n.2 (11th Cir. 2009); see also Li v. Garland, No. 21-cv-10601 (LJL),
2022 WL 17095250
, 
at  *7  (S.D.N.Y.  Nov.  21,  2022);  Tellado  v.  Garland,  No.  21-21392-CIV-
LENARD/LOUIS,
2021 WL 9440405
, at *3 (S.D. Fla. Aug. 31, 2021).  Based on these 
authorities—particularly  the  Second  Circuit’s  rationale  in  Chan—I  conclude  it  is 
appropriate to entertain Respondents’ dismissal motion.                   
establish that she “[h]as been lawfully admitted as a permanent resident of the United 
States”).  Past admission to permanent residency is not “lawful” if it was not “in substantive 
compliance with the immigration laws.”  Injeti v. U.S. Citizenship & Immigr. Servs.,
737 F.3d 311
, 316 & n.2 (4th Cir. 2013) (collecting cases).  And any alien who has procured 
admission  to  permanent  residency  “by  fraud  or  willfully  misrepresenting  a  material 
fact . . . is inadmissible.”
8 U.S.C. § 1182
(a)(6)(C)(i).                
Here, the Petition’s allegations, considered alongside materials that may properly 
be considered at the motion-to-dismiss stage, are self-defeating in that they establish 

Evelyn willfully misrepresented material facts and was not lawfully admitted to permanent 
residency.  Because the Petition is self-defeating, it does not matter whether Evelyn bore 
the burden to plead her lawful admission, or whether her unlawful admission (or her 
misrepresentations and their consequences) are affirmative defenses that Respondents bear 
the burden to plead and prove.  See Miles v. Simmons Univ.,
514 F. Supp. 3d 1070
, 1075 

(D. Minn. 2021) (“an affirmative defense . . . can only support a dismissal when the 
complaint is ‘self-defeating.’” (citation omitted)).                      
                           1                                         
The  Petition  and  documents  the  Petition  embraces  establish  that  Evelyn 
misrepresented facts on her Form I-485 Application to Register Permanent Residence or 

Adjust Status.  “A misrepresentation is a statement of fact that is untrue or a failure to 
disclose a fact in response to a specific question.”  United States v. Hirani,
824 F.3d 741, 748
 (8th Cir. 2016) (quoting Shipley v. Ark. Blue Cross & Blue Shield,
333 F.3d 898
, 904 
(8th Cir. 2003)).                                                         
The relevant portion of the Form I-485 contains these instructions: “List your 
present spouse and all your children (include adult sons and daughters).  (If you have none, 
write ‘None.’  If addition[al] space is needed, see Page 2 of the instructions.)”  ECF No. 

13-1 at 3 (emphasis added).  In response, Evelyn listed her husband, Steven, and three 
adopted children from Uganda.  Id.  Evelyn did not list her two Minnesota-born children.  
Id.  Evelyn signed the Form on October 27, 2010, id. at 7, when she had a five-year-old 
son and a three-year-old daughter with Elijah, see ECF No. 1-1 at 5.  Evelyn does not 
allege, and nothing in the record suggests, that Evelyn disclosed these two children in some 

other way.  To the contrary, Evelyn acknowledges she failed to disclose the children.  See 
Pet. ¶ 31 (“counsel failed to include her two children on the forms and . . . she signed the 
forms without reviewing it [sic] thoroughly”); id. ¶¶ 44, 53 (describing the failure to 
disclose the children as an “omission.”); see also ECF No. 1-1 at 8–9 (“I am addressing the 
issues  related  to  my  failure  to  disclose  children  born  outside  of  my  marriage,  the 

discrepancy in my declared residence, and the mismatch in my psychology report.”).6   
                           2                                         
The  Petition  and  documents  the  Petition  embraces  establish  that  the 
misrepresentations were willful.  “[A] misrepresentation or concealment is willful if it is 
deliberate  and  voluntary.”    Hirani,
824 F.3d at 747
.    Evelyn  argues  that  her 

misrepresentations were not willful because her counsel prepared the Form I-485, and she 


6    At the hearing on Respondents’ motion, Evelyn argued that an omission is not a 
misrepresentation.  This is not correct.  A “failure to disclose a fact in response to a specific 
question,” i.e., an omission, is a misrepresentation.  Hirani,
824 F.3d at 748
.   
signed it “without reviewing it thoroughly.”  Pet. ¶ 31; ECF No. 1-1 at 8; see Pet’r Mem. 
in Opp’n [ECF No. 19] at 14–16.  This is not persuasive.  “The government is not required 
to  prove  intent  to  deceive,”  and  an  applicant’s  “signature  under  penalty  of 

perjury . . . demonstrates that the misrepresentation was willful.”  Hirani,
824 F.3d at 749
.  
In Hirani, the stakes were high: Mr. Hirani had been naturalized, and the issue before the 
district court was whether to revoke his citizenship due to a willful misrepresentation or 
concealment.
Id. at 745
.  The Eighth Circuit affirmed the district court’s grant of summary 
judgment against Mr. Hirani (stripping him of citizenship) under a higher standard than 

applies here.
Id. at 746
 (noting the “heavy burden of proof in a proceeding to divest a 
naturalized citizen of his citizenship” (citation omitted)).              
Here, the I-485’s signature page reads, “I can read and understand English, and I 
have read and understand each and every question and instruction on this form, as well as 
my answer to each question.”  ECF No. 13-1 at 7.  Evelyn checked the box next to this 

statement, indicating it applied to her.
Id.
  Further, the I-485’s signature page states, “I 
certify, under penalty of perjury under the laws of the United States of America, that the 
information provided with this application [is] all true and correct.  I certify also that I have 
not withheld any information that would affect the outcome of this application.”
Id.
  
Evelyn signed the form despite not listing her two Minnesota-born children.
Id.
  Evelyn’s 

misrepresentations were made on a form signed under penalty of perjury and were therefore 
willful under Hirani.7                                                    

7    Evelyn  cites  non-binding  authorities  to  argue  her  misrepresentations  were  not 
willful.  See Pet’r Mem. in Opp’n at 15–16.  These authorities apply a different willfulness 
                           3                                         
The  Petition  and  documents  the  Petition  embraces  establish  that  the 
misrepresentations were material.  Materiality is a question of law.  Kungys v. United 

States,
485 U.S. 759, 772
 (1988).  “A concealment or misrepresentation is material if it has 
that ‘natural tendency to influence the decisions of the Immigration and Naturalization 
Service.’”8  Hirani,
824 F.3d at 749
 (quoting Kungys,
485 U.S. at 772
).  The test is “whether 
the misrepresentation or concealment had a natural tendency to produce the conclusion that 
the applicant was qualified.”  Kungys, 485 U.S. at 771–72.  A misrepresentation tends to 

influence USCIS “if the true [fact] would predictably have disclosed other facts relevant to 
[the applicant’s] qualifications.”
Id. at 774
.  A misrepresentation is material under
8 U.S.C. § 1182
(a)(6)(C)(i) when it “tends to shut off a line of inquiry that is relevant to the alien’s 
admissibility and that would predictably have disclosed other facts relevant to his eligibility 



standard from the standard the Eighth Circuit applied in Hirani.  Ampe v. Johnson,
157 F. Supp. 3d 1
 (D.D.C. 2016), is a good example.  There, a woman gained permanent-
resident status through marriage, had two children with a man other than her husband, did 
not disclose the children, and was denied naturalization because of the misrepresentation.  
Ampe, 157 F. Supp. at 6–7.  The district court denied a summary judgment motion because 
the government could not “demonstrate that there is no genuine dispute of material fact 
that Petitioner made those misrepresentations with the requisite state of mind.”
Id. at 11
.  
The “state of mind” the court applied “involve[d] conscious wrong or evil purpose . . . or 
at least inexcusable carelessness.”
Id.
  This standard cannot be squared with the Eighth 
Circuit’s  holding  in  Hirani  that  an  applicant’s  “signature  under  penalty  of 
perjury . . . demonstrates that the misrepresentation was willful.”  Hirani,
824 F.3d at 749
.   
8    The Immigration and Naturalization Service (“INS”) was the predecessor agency to 
USCIS, U.S. Customs and Border Protection, and Immigration and Customs Enforcement.  
INS  was  dismantled  by  the  Homeland  Security  Act  of  2002,
6 U.S.C. § 101
,  and 
responsibility for immigration services was reallocated to USCIS.         
for a visa, other documentation, or admission the United States.”  Matter of D-R-,
27 I&N Dec. 105
, 112–13 (B.I.A. 2017).                                           
Courts have held that the failure to disclose children in the context of immigration 

proceedings is material.  See, e.g., Segid v. United States Citizenship & Immigr. Servs., 
No. 1:20-CV-01228-SEB-DML,
2021 WL 4895322
, at *3 (S.D. Ind. Oct. 20, 2021), aff’d,
47 F.4th 545
 (7th Cir. 2022) (“An accurate listing of family members is a significant, 
material part of the consular officer’s review of an immigrant’s case when deciding 
whether a visa application is approved.”); Bijan v. United States Citizenship & Immigr. 

Servs.,
900 F.3d 942, 946
 (7th Cir. 2018) (describing an applicant’s failure to list children 
with whom he had lost contact as a “glaring omission” and affirming denial of citizenship); 
Toribio-Chavez v. Holder,
611 F.3d 57, 60
 (1st Cir. 2010) (denying a petition for review 
after the application was found inadmissible based on his “willfully misrepresenting a 
material fact, specifically by claiming that his marriage . . . was his first and failing to 

identify his children.”).  Here, consistent with these cases, Respondents point out that 
Evelyn’s disclosure of her Minnesota-born children would have led USCIS to inquire 
regarding various matters, including marriage fraud, which in turn would have made 
Evelyn inadmissible.  Resp’ts Mem. in Supp. [ECF No. 12] at 15.  By omitting the children, 
Evelyn indisputably “shut off a line of inquiry” relevant to her admission.9   


9    Evelyn’s  claim  under  the  Declaratory  Judgement  Act  is  based  on  the  same 
allegations as her § 1421(c) claim—i.e., that the denial of her naturalization application 
was contrary to law, and that Evelyn has met all requirements for naturalization.  See Pet. 
at 11–12 ¶¶ 1–5.  The claim seeks no relief that might conceivably be distinct from the 
§ 1421(c) claim.  See id.  In these circumstances, the Declaratory Judgment Act claim 
                          IV                                         
Respondents’ subject-matter-jurisdiction challenge targets Evelyn’s claim under the 
Administrative Procedure Act (or “APA”).  See Pet. ¶¶ 47–54.  A court reviewing a motion 

to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) must first determine 
whether the movant is making a “facial” attack or a “factual” attack.  Branson Label, Inc. 
v. City of Branson,
793 F.3d 910, 914
 (8th Cir. 2015).  Here, Respondents advance a facial 
attack because their challenge accepts the Petition’s allegations as true and depends only 
on materials that may appropriately be considered at the motion-to-dismiss stage.  See Titus 

v. Sullivan,
4 F.3d 590, 593
 (8th Cir. 1993).  Therefore, the same Rule 12(b)(6) standards 
govern Respondents’ Rule 12(b)(1) challenge.  Osborn,
918 F.2d at 729
 n.6 (citations 
omitted).                                                                 
Under the APA, a “person suffering legal wrong because of agency action, or 
adversely affected or aggrieved by agency action within the meaning of a relevant statute, 

is entitled to judicial review thereof.”
5 U.S.C. § 702
.  However, only “final agency action 
for which there is no other adequate remedy in a court [is] subject to judicial review.”
Id.
 
§ 704 (emphasis added).  Where Congress has provided an adequate alternative remedy 
under another statute, the court lacks subject-matter jurisdiction over an APA claim.  Cent. 
Platte Nat. Res. Dist. v. U.S. Dep’t of Agric.,
643 F.3d 1142, 1148
 (8th Cir. 2011).  The 
disputed question here is whether
8 U.S.C. § 1421
(c), under which Evelyn asserts her claim 

in Count I, provides an “adequate remedy” in the relevant sense.          

should be dismissed.  Am. Achievement Corp. v. Jostens, Inc.,
622 F. Supp. 3d 749
, 766 
(D. Minn. 2022).                                                          
The United States District Court for the District of Columbia has held that Congress 
intended
8 U.S.C. § 1421
(c) to be the “exclusive means of not just obtaining judicial review 
of the denial of a naturalization application, but also of claims arising out of or related to a 

denial.”  Miriyeva v. U.S. Citizenship & Immigr. Servs.,
436 F. Supp. 3d 170
, 180–81 
(D.D.C. 2019) (collecting cases), aff’d,
9 F.4th 935
 (D.C. Cir. 2021).  As the Miriyeva court 
noted, “[t]he few courts to have considered the issue . . . have all concluded that § 1421(c) 
provides an adequate remedy for APA and constitutional claims related to the denial of 
naturalization applications.”  Id. at 186 (collecting cases).  Accordingly, the court held that 

“8 U.S.C. § 1421(c) bars plaintiffs from bringing their APA and constitutional claims.”  Id. 
at 179.  It further found that the review provided by § 1421(c) is adequate, particularly due 
to its unique feature in agency law: de novo review.  Id. at 184.         
Citing Miriyeva, courts in this District have found that “Section 1421(c) is the only 
means for judicial review under the INA.”  Alam v. United States Citizenship & Immigr. 

Servs.,
592 F. Supp. 3d 810
, 824 (D. Minn. 2022); see also Abdirahman H. v. United States 
Citizenship & Immigr. Servs., No. 20-cv-2185 (WMW/TNL),
2021 WL 1577680
, at *1 (D. 
Minn. Apr. 22, 2021) (“Title
8, United States Code, Section 1421
(c), is the exclusive means 
to obtain judicial review of the denial of a naturalization application, as well as any claims 
arising out of or related to such denial.”); Hamod v. Kelly, No. 16-cv-1191 (JRT/TNL),
2017 WL 8947276
, at *8 (D. Minn. June 12, 2017) (“The APA does not authorize judicial 
review ‘that adds to the sweeping de novo review’ that [§ 1421(c)] provides.” (citation 
omitted)), report and recommendation adopted sub nom. Hamod v. Duke, No. 16-cv-1191 
(JRT/TNL),
2017 WL 3668762
 (D. Minn. Aug. 24, 2017).  Miriyeva is thorough and well-
reasoned, and it will be followed here.

ORDER

Therefore, based on the foregoing, and on all the files, records, and proceedings 
herein, IT IS ORDERED THAT  Respondents’  Motion  to  Dismiss  [ECF  No.  9]  is 
GRANTED as follows:                                                       
1.   Count II of the Petition is DISMISSED without prejudice for lack of 
subject-matter jurisdiction.                                              

2.   The Petition is in all other respects DISMISSED with prejudice.   
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

Date: May 28, 2024                 s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court

Trial Court Opinion

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                

Evelyn M.,1                           File No. 23-cv-3478 (ECT/ECW)       

     Petitioner,                                                     

v.                                       OPINION AND ORDER                

Trina M. Swanson, Field Office Director,                                  
SP-M Field Office, U.S. Citizenship, and                                  
Immigration  Services  (“USCIS”);  David                                  
Douglas, District Director USCIS, District                                
C32; Ur M. Jaddou, Director of USCIS;                                     
Merrick B. Garland, U.S. Attorney General;                                
and Alejandro Mayorkas, Secretary of U.S.                                 
Department of Homeland Security,                                          

     Respondents.                                                    

Karen Venice Bryan, KB Law Firm, Minnetonka, MN, for Petitioner Evelyn M.   
James Cottrell Graulich, III, U.S. Department of Justice, Washington, D.C., and Lucas B. 
Draisey, U.S. Attorney’s Office, Minneapolis, MN, for Respondents Trina M. Swanson, 
David Douglas, Ur M. Jaddou, Merrick B. Garland, and Alejandro Mayorkas.  


Petitioner  Evelyn  M.  applied  for  permanent  residency  status,  a  precursor  to 
naturalization as a United States citizen, and USCIS2 granted her application in 2012.  
Evelyn then applied for naturalization in 2020.  In reviewing Evelyn’s naturalization 
application, USCIS discovered that Evelyn had failed to disclose important information in 

1    In accordance with District policy, Petitioner is identified by reference to her first 
name and last initial.                                                    
2    USCIS is short for United States Citizenship and Immigration Services.   
her previous permanent-residency application.  As a result of this discovery, USCIS 
determined that Evelyn had willfully misrepresented material facts and had not been 
lawfully admitted to permanent residency.  It denied her naturalization application on these 

grounds.  In this case, Evelyn seeks de novo review of the denial.  She asserts claims under 
the Immigration and Nationality Act’s review provision,
8 U.S.C. § 1421
(c), under the 
Administrative Procedure Act, 5 U.S.C. §§ 701–706, and under the Declaratory Judgment 
Act,
28 U.S.C. § 2201
.                                                    
Respondents seek dismissal of the case under Federal Rules of Civil Procedure 

12(b)(1) and 12(b)(6).  Respondents’ motion will be granted.  Evelyn has not alleged facts 
plausibly showing that Respondents—or any of them—violated the Immigration and 
Nationality Act.  This conclusion dooms Evelyn’s claim under the Declaratory Judgment 
Act.  And there is not subject-matter jurisdiction over her Administrative Procedure Act 
claim.                                                                    

                           I                                         
Before turning to the facts, the scope of the record from which the facts will be 
drawn deserves clarification.  The general rule is that a federal court should not consider 
matters outside the pleadings in resolving a Rule 12(b)(6) motion to dismiss.  See Fed. R. 
Civ. P. 12(d); Zean v. Fairview Health Servs.,
858 F.3d 520, 526
 (8th Cir. 2017).  The same 
rule applies to a so-called “facial” challenge to subject-matter jurisdiction—that is, a 

challenge not supported by extra-pleading materials—which is the type of challenge 
Respondents bring here.  Osborn v. United States,
918 F.2d 724
, 729 n.6 (8th Cir. 1990) 
(noting that, in analyzing a facial challenge, a court “restricts itself to the face of the 
pleadings, and the non-moving party receives the same protections as it would defending 
against a motion brought under Rule 12(b)(6).” (citations omitted)).  Regardless, the law 
is clear that several categories of documents beyond a pleading’s allegations appropriately 

may  be  considered  in  resolving  a  Rule  12(b)(6)  motion  or  a  facial  challenge  to 
subject-matter jurisdiction.  These include “matters incorporated by reference or integral 
to the claim, items subject to judicial notice, matters of public record, orders, items 
appearing  in  the  record  of  the  case,  and  exhibits  attached  to  the  complaint  whose 
authenticity is unquestioned.”  Zean,
858 F.3d at 526
 (citation omitted).   

Between them, Evelyn and Respondents have submitted nine exhibits in connection 
with the motion to dismiss, see ECF Nos. 1-1, 13, 20, and it is appropriate to consider all 
nine exhibits at this stage.  Four exhibits may be considered because they are attached to 
Evelyn’s Petition and Respondents do not dispute these four exhibits’ authenticity.  See 
Zean,
858 F.3d at 526
.  These four exhibits are: (1) Evelyn’s Permanent Resident (or 

“Green”) Card; (2) correspondence from USCIS dated April 28, 2023, denying Evelyn’s 
naturalization application; (3) an affidavit dated August 29, 2023, filed by Evelyn in 
support of her administrative challenge to the denial of her naturalization application; and 
(4) correspondence from USCIS dated October 23, 2023, affirming the decision to deny 
Evelyn’s naturalization application.  See ECF No. 1-1 at 1–12.  Three exhibits may be 

considered because they are incorporated by reference and integral to the claims asserted 
in Evelyn’s Petition.  See Zean,
858 F.3d at 526
.  These three exhibits are: (1) Evelyn’s 
Form I-485 application, ECF No. 13-1; (2) Evelyn’s Form I-360 petition, ECF No. 13-2; 
and (3) the report of a psychological evaluation supporting Evelyn’s permanent-residency 
application, ECF No. 20-3.  See Pet. [ECF No. 1] ¶¶ 2, 24, 28, 45.  The remaining two 
exhibits are USCIS notices provided to Evelyn.  ECF Nos. 20-1, 20-4.3  These documents 
appear to fall in the “matters of public record” category.  See Zean,
858 F.3d at 526
.  The 

bottom line, then, is that the facts will be drawn from the Petition’s allegations and all nine 
documents the parties submitted.                                          
                           II                                        
Petitioner.  Evelyn’s own submissions create some confusion regarding her country 
of origin.  In the Petition, Evelyn alleges she is a citizen and native of Nigeria.  Pet. ¶¶ 11, 

22.  Evelyn’s application materials, however, indicate she is from Uganda.  See ECF No. 
13-1 at 1, ECF No. 13-2 at 2, ECF No. 20-3 at 1–3.  Regardless, Evelyn has held permanent 
resident status in the United States since 2012.  Pet. ¶¶ 1, 22.          
Respondents.  Respondents are five federal officials sued only in their official 
capacities.
Id.
 ¶¶ 12–16.  Trina M. Swanson is the USCIS Saint Paul-Minneapolis Field 

Office Director.  Id. ¶ 12.  Ms. Swanson denied Evelyn’s naturalization application.  Id.  
David  Douglas  is  the  USCIS  District  C32  Director.    Id. ¶ 13.    He  possesses 
decision-making authority with respect to matters alleged in the Petition.  Id.  Ur M. Jaddou 
is the USCIS Director.  Id. ¶ 14.  Alejandro Mayorkas is the Secretary of Homeland 
Security.  Id. ¶ 15.  Merrick Garland is the Attorney General.  Id. ¶ 16.   
Evelyn’s marriage to Steven M.  Evelyn married Steven M., an American citizen, 

on November 26, 2003.  ECF No. 13-2 at 5.  Evelyn and Steven lived together in California 


3    ECF No. 20-2 is duplicative of the affidavit at ECF No. 1-1 at 8–9.  
from then until November 2007.  Id.  It is unclear whether or when Evelyn and Steven 
divorced.  See ECF No. 20-3 at 2 (stating Evelyn was still legally married to Steven as of 
August 2010); ECF No. 1-1 at 8–9 (referring to Steven as Evelyn’s “then-spouse” in 

August 2023, implying she had ceased to be Steven’s spouse at some previous time).   
USCIS’s denial of permanent resident card for Evelyn.  At some point during the 
marriage, Steven filed a Form I-130 Petition for Alien Relative.  Pet. ¶ 28.  If approved, 
the application would have entitled Evelyn to a Permanent Resident (or “Green”) Card.  
See I-130, Petition for Alien Relative, USCIS, https://www.uscis.gov/i-130 (last visited 

May 28, 2024).  USCIS denied the petition in 2009 “for failure to establish that [the] 
marriage was entered into in good faith and not solely for immigration purposes.”  ECF 
No. 1-1 at 5.                                                             
Evelyn’s relationship with Elijah M. in Minnesota.  Steven was abusive, and Evelyn 
occasionally traveled to Minnesota to escape Steven’s abuse.  Pet. ¶ 29; see id. at 12 ¶ 4.  

On one of her Minnesota visits, Evelyn began a sexual relationship with Elijah M.  Id. ¶ 43; 
ECF No. 1-1 at 8.  Evelyn and Elijah had two children together, both born in Minnesota.  
Pet. ¶ 29; ECF No. 1-1 at 5, 8.  The children were born in November 2004 and October 
2007, while Evelyn was married to Steven and purportedly living with him in California.  
ECF No. 1-1 at 5.                                                         

USCIS’s grant of permanent residency to Evelyn.  In September 2010, Evelyn filed 
a Form I-360 Petition for Amerasian, Widow(er), or Special Immigrant.  Id.; Pet. ¶ 22.  
With a Form I-360, noncitizens may petition for lawful status as, among other things, a 
spouse of an abusive United States citizen.  I-360, Petition for Amerasian, Widow(er), or 
Special  Immigrant,  USCIS,  https://www.uscis.gov/i-360  (last  visited  May  28,  2024).  
Significant here, though Evelyn had two children with Elijah when she filed her I-360 
petition, see ECF No. 1-1 at 5, and though the Form I-360 requires a petitioner to list all 

her children, Evelyn did not list her two children with Elijah on her petition.  Id.; ECF No. 
13-2 at 11–13.  USCIS granted Evelyn’s petition.  Pet. ¶ 22.  Evelyn subsequently filed a 
Form I-485 application for an adjustment of status.  See ECF No. 13-1.  As with her I-360 
petition, Evelyn did not list the two children with Elijah on the Form I-485.  ECF No. 13-
1 at 3.  (To be clear, Evelyn listed three children she had adopted, but these did not include 

her two children with Elijah.  See id.)  USCIS approved Evelyn’s I-485 application and 
adjusted her status to that of permanent resident on August 13, 2012.  Pet. ¶ 22; see ECF 
No. 13-1 at 1.                                                            
Evelyn’s naturalization application.  In July 2020, Evelyn filed a Form N-400 
Application for Naturalization with USCIS.  Pet. ¶ 23.  Evelyn listed her two children with 

Elijah on this form.  Id.  On November 18, 2021, Evelyn was interviewed under oath by 
USCIS to determine her eligibility for naturalization.  ECF No. 1-1 at 5.  To qualify for 
naturalization, an applicant must meet several criteria; these include, for example, being at 
least 18 years of age and demonstrating a basic knowledge of United States history and 
government.    Id.  at  4;  see  also
8 C.F.R. § 316.2
(a).    Relevant  here,  another  of  the 

naturalization requirements is to “[b]e lawfully admitted for permanent residence.”  ECF 
No. 1-1 at 4; see also
8 C.F.R. § 316.2
(a)(2).                            
USCIS’s denial of Evelyn’s naturalization application.  On April 28, 2023, USCIS 
determined that Evelyn was “not lawfully admitted for permanent residence” because she 
“concealed and misrepresented materials facts” on her I-360 and I-485 applications.  ECF 
No. 1-1 at 5; Pet. ¶¶ 1–2, 24.  Specifically, USCIS found that Evelyn failed to disclose the 
existence of her two children with Elijah on the I-360, on the I-485, and during her 

psychological interview.  ECF No. 1-1 at 5.  USCIS found that Evelyn had given birth to 
the children in Minnesota, obtained a Minnesota driver’s license, been cited for traffic 
violations around the Twin Cities, and listed addresses in Minneapolis on permit and 
license applications during the period she claimed to be living in California with her 
American husband.
Id.
 at 5–6.  USCIS concluded it therefore “erred in granting [Evelyn] 

adjustment of status to lawful permanent resident” because of the misrepresentations 
regarding her children and residency.  ECF No. 1-1 at 7.  Because Evelyn was not 
“lawfully” admitted as a permanent resident, USCIS concluded, she failed naturalization 
requirements; USCIS denied Evelyn’s N-400 Application for Naturalization on April 28, 
2023.  Id.; Pet. ¶ 25.                                                    

Administrative hearing on USCIS’s denial of Evelyn’s naturalization application.  
On May 25, 2023, Evelyn requested an administrative hearing on the decision to deny her 
naturalization application.  Pet. ¶ 27.  The hearing was held August 30, 2023.
Id. ¶ 28
.  
Evelyn appeared at the hearing and submitted an affidavit attesting that she did not intend 
to conceal or misrepresent information about her children or residency.  Id.; see ECF No. 

1-1 at 8–9.  In the affidavit, Evelyn testified that her counsel prepared the application and 
that Evelyn “signed the application without reviewing it thoroughly,” leading to the 
children’s omission.  ECF No. 1-1 at 8.  On October 23, 2023, USCIS affirmed its decision 
to  deny  naturalization  on  the  same  grounds  as  its  initial  decision—i.e.,  Evelyn’s 
misrepresentations regarding her children and her residency in connection with her I-360 
and I-485 applications.  Pet. ¶ 30; ECF No. 1-1 at 10–12.                 
This case.  Evelyn filed her Petition commencing this case in November 2023.  She 

asserts four claims in the Petition against all Respondents.  In Count I, Evelyn alleges 
Respondents violated the Immigration and Nationality Act.  Pet. ¶¶ 34–46.  In Count II, 
Evelyn alleges Respondents violated the Administrative Procedure Act.
Id.
 ¶¶ 47–54.  In 
Count III, Evelyn seeks declaratory relief under the Declaratory Judgment Act,
28 U.S.C. § 2201
.
Id.
 at 11–12, ¶¶ 1–5.4  In Count IV, Evelyn asserts a claim for costs and attorney 

fees.
Id. at 13
, ¶¶ 6–10.  For relief, Evelyn seeks an order vacating the denial of her 
naturalization  petition  and  an  order  either  granting  her  naturalization  application  or 
remanding the application to USCIS for further proceedings.  Pet. at 13, ¶¶ a–b.  Evelyn 
also requests entry of a preliminary injunction to maintain the status quo until the suit is 
concluded on the merits,
id. at 14
, ¶¶ c–g, though she has filed no motion seeking this relief.   

                          III                                        
                           A                                         
Respondents seek a Rule 12(b)(6) dismissal of Evelyn’s claim under
8 U.S.C. § 1421
(c).  The standards governing this aspect of Respondents’ motion are familiar.  In 
reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court must 
accept as true all factual allegations in the complaint and draw all reasonable inferences in 

the plaintiff’s favor.  Gorog v. Best Buy Co.,
760 F.3d 787, 792
 (8th Cir. 2014) (citation 


4    The Petition’s paragraph numbering restarts on page 11, after ¶ 54.   
omitted).  Although the factual allegations need not be detailed, they must be sufficient to 
“raise a right to relief above the speculative level.”  Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555
 (2007) (citation omitted).  The complaint must “state a claim to relief that is 

plausible on its face.”
Id. at 570
.  “A claim has facial plausibility when the plaintiff pleads 
factual content that allows the court to draw the reasonable inference that the defendant is 
liable for the misconduct alleged.”  Ashcroft v. Iqbal,
556 U.S. 662, 678
 (2009).  “[T]he 
tenet that a court must accept as true all of the allegations contained in a complaint is 
inapplicable to legal conclusions.”  Id.5                                 

                           B                                         
Lawful  admission  to  permanent  residency  is  a  prerequisite  to  naturalization.
8 U.S.C. § 1429
 (“[N]o person shall be naturalized unless [s]he has been lawfully admitted 
to the United States for permanent residence in accordance with all applicable provisions 
of this chapter.”); see also
8 C.F.R. § 316.2
(a)(2) (requiring a citizenship applicant to 


5    Section 1421(c) commands that the district court “shall make its own findings of 
fact  and conclusions of law and shall, at the request of the petitioner, conduct a hearing de 
novo  on  the  application.”    At  least  one  district  court  within  the  Eighth  Circuit  has 
questioned whether these commands preclude a district court from dismissing a § 1421(c) 
petition under Rule 12(b)(6).  See Kulkarni v. Wolf, No. 4:20-00089-CV-RK,
2020 WL 9065826
, at *2 (W.D. Mo. May 28, 2020).  The Second Circuit has answered this question.  
In Chan v. Gantner, that court held that a district court may in appropriate circumstances 
dismiss a § 1421(c) petition short of conducting a bench trial.
464 F.3d 289
, 295–96 (2d 
Cir. 2006).  Other circuit courts of appeals have reached or implicitly endorsed this same 
conclusion.  See Nanje v. Chaves,
836 F.3d 131
, 134–37 (1st Cir. 2016); Abulkhair v. Bush, 
413 Fed. App’x 502, 507 n.4 (3d Cir. 2011); Cernuda v. Neufeld, 307 Fed. App’x 427, 431 
n.2 (11th Cir. 2009); see also Li v. Garland, No. 21-cv-10601 (LJL),
2022 WL 17095250
, 
at  *7  (S.D.N.Y.  Nov.  21,  2022);  Tellado  v.  Garland,  No.  21-21392-CIV-
LENARD/LOUIS,
2021 WL 9440405
, at *3 (S.D. Fla. Aug. 31, 2021).  Based on these 
authorities—particularly  the  Second  Circuit’s  rationale  in  Chan—I  conclude  it  is 
appropriate to entertain Respondents’ dismissal motion.                   
establish that she “[h]as been lawfully admitted as a permanent resident of the United 
States”).  Past admission to permanent residency is not “lawful” if it was not “in substantive 
compliance with the immigration laws.”  Injeti v. U.S. Citizenship & Immigr. Servs.,
737 F.3d 311
, 316 & n.2 (4th Cir. 2013) (collecting cases).  And any alien who has procured 
admission  to  permanent  residency  “by  fraud  or  willfully  misrepresenting  a  material 
fact . . . is inadmissible.”
8 U.S.C. § 1182
(a)(6)(C)(i).                
Here, the Petition’s allegations, considered alongside materials that may properly 
be considered at the motion-to-dismiss stage, are self-defeating in that they establish 

Evelyn willfully misrepresented material facts and was not lawfully admitted to permanent 
residency.  Because the Petition is self-defeating, it does not matter whether Evelyn bore 
the burden to plead her lawful admission, or whether her unlawful admission (or her 
misrepresentations and their consequences) are affirmative defenses that Respondents bear 
the burden to plead and prove.  See Miles v. Simmons Univ.,
514 F. Supp. 3d 1070
, 1075 

(D. Minn. 2021) (“an affirmative defense . . . can only support a dismissal when the 
complaint is ‘self-defeating.’” (citation omitted)).                      
                           1                                         
The  Petition  and  documents  the  Petition  embraces  establish  that  Evelyn 
misrepresented facts on her Form I-485 Application to Register Permanent Residence or 

Adjust Status.  “A misrepresentation is a statement of fact that is untrue or a failure to 
disclose a fact in response to a specific question.”  United States v. Hirani,
824 F.3d 741, 748
 (8th Cir. 2016) (quoting Shipley v. Ark. Blue Cross & Blue Shield,
333 F.3d 898
, 904 
(8th Cir. 2003)).                                                         
The relevant portion of the Form I-485 contains these instructions: “List your 
present spouse and all your children (include adult sons and daughters).  (If you have none, 
write ‘None.’  If addition[al] space is needed, see Page 2 of the instructions.)”  ECF No. 

13-1 at 3 (emphasis added).  In response, Evelyn listed her husband, Steven, and three 
adopted children from Uganda.  Id.  Evelyn did not list her two Minnesota-born children.  
Id.  Evelyn signed the Form on October 27, 2010, id. at 7, when she had a five-year-old 
son and a three-year-old daughter with Elijah, see ECF No. 1-1 at 5.  Evelyn does not 
allege, and nothing in the record suggests, that Evelyn disclosed these two children in some 

other way.  To the contrary, Evelyn acknowledges she failed to disclose the children.  See 
Pet. ¶ 31 (“counsel failed to include her two children on the forms and . . . she signed the 
forms without reviewing it [sic] thoroughly”); id. ¶¶ 44, 53 (describing the failure to 
disclose the children as an “omission.”); see also ECF No. 1-1 at 8–9 (“I am addressing the 
issues  related  to  my  failure  to  disclose  children  born  outside  of  my  marriage,  the 

discrepancy in my declared residence, and the mismatch in my psychology report.”).6   
                           2                                         
The  Petition  and  documents  the  Petition  embraces  establish  that  the 
misrepresentations were willful.  “[A] misrepresentation or concealment is willful if it is 
deliberate  and  voluntary.”    Hirani,
824 F.3d at 747
.    Evelyn  argues  that  her 

misrepresentations were not willful because her counsel prepared the Form I-485, and she 


6    At the hearing on Respondents’ motion, Evelyn argued that an omission is not a 
misrepresentation.  This is not correct.  A “failure to disclose a fact in response to a specific 
question,” i.e., an omission, is a misrepresentation.  Hirani,
824 F.3d at 748
.   
signed it “without reviewing it thoroughly.”  Pet. ¶ 31; ECF No. 1-1 at 8; see Pet’r Mem. 
in Opp’n [ECF No. 19] at 14–16.  This is not persuasive.  “The government is not required 
to  prove  intent  to  deceive,”  and  an  applicant’s  “signature  under  penalty  of 

perjury . . . demonstrates that the misrepresentation was willful.”  Hirani,
824 F.3d at 749
.  
In Hirani, the stakes were high: Mr. Hirani had been naturalized, and the issue before the 
district court was whether to revoke his citizenship due to a willful misrepresentation or 
concealment.
Id. at 745
.  The Eighth Circuit affirmed the district court’s grant of summary 
judgment against Mr. Hirani (stripping him of citizenship) under a higher standard than 

applies here.
Id. at 746
 (noting the “heavy burden of proof in a proceeding to divest a 
naturalized citizen of his citizenship” (citation omitted)).              
Here, the I-485’s signature page reads, “I can read and understand English, and I 
have read and understand each and every question and instruction on this form, as well as 
my answer to each question.”  ECF No. 13-1 at 7.  Evelyn checked the box next to this 

statement, indicating it applied to her.
Id.
  Further, the I-485’s signature page states, “I 
certify, under penalty of perjury under the laws of the United States of America, that the 
information provided with this application [is] all true and correct.  I certify also that I have 
not withheld any information that would affect the outcome of this application.”
Id.
  
Evelyn signed the form despite not listing her two Minnesota-born children.
Id.
  Evelyn’s 

misrepresentations were made on a form signed under penalty of perjury and were therefore 
willful under Hirani.7                                                    

7    Evelyn  cites  non-binding  authorities  to  argue  her  misrepresentations  were  not 
willful.  See Pet’r Mem. in Opp’n at 15–16.  These authorities apply a different willfulness 
                           3                                         
The  Petition  and  documents  the  Petition  embraces  establish  that  the 
misrepresentations were material.  Materiality is a question of law.  Kungys v. United 

States,
485 U.S. 759, 772
 (1988).  “A concealment or misrepresentation is material if it has 
that ‘natural tendency to influence the decisions of the Immigration and Naturalization 
Service.’”8  Hirani,
824 F.3d at 749
 (quoting Kungys,
485 U.S. at 772
).  The test is “whether 
the misrepresentation or concealment had a natural tendency to produce the conclusion that 
the applicant was qualified.”  Kungys, 485 U.S. at 771–72.  A misrepresentation tends to 

influence USCIS “if the true [fact] would predictably have disclosed other facts relevant to 
[the applicant’s] qualifications.”
Id. at 774
.  A misrepresentation is material under
8 U.S.C. § 1182
(a)(6)(C)(i) when it “tends to shut off a line of inquiry that is relevant to the alien’s 
admissibility and that would predictably have disclosed other facts relevant to his eligibility 



standard from the standard the Eighth Circuit applied in Hirani.  Ampe v. Johnson,
157 F. Supp. 3d 1
 (D.D.C. 2016), is a good example.  There, a woman gained permanent-
resident status through marriage, had two children with a man other than her husband, did 
not disclose the children, and was denied naturalization because of the misrepresentation.  
Ampe, 157 F. Supp. at 6–7.  The district court denied a summary judgment motion because 
the government could not “demonstrate that there is no genuine dispute of material fact 
that Petitioner made those misrepresentations with the requisite state of mind.”
Id. at 11
.  
The “state of mind” the court applied “involve[d] conscious wrong or evil purpose . . . or 
at least inexcusable carelessness.”
Id.
  This standard cannot be squared with the Eighth 
Circuit’s  holding  in  Hirani  that  an  applicant’s  “signature  under  penalty  of 
perjury . . . demonstrates that the misrepresentation was willful.”  Hirani,
824 F.3d at 749
.   
8    The Immigration and Naturalization Service (“INS”) was the predecessor agency to 
USCIS, U.S. Customs and Border Protection, and Immigration and Customs Enforcement.  
INS  was  dismantled  by  the  Homeland  Security  Act  of  2002,
6 U.S.C. § 101
,  and 
responsibility for immigration services was reallocated to USCIS.         
for a visa, other documentation, or admission the United States.”  Matter of D-R-,
27 I&N Dec. 105
, 112–13 (B.I.A. 2017).                                           
Courts have held that the failure to disclose children in the context of immigration 

proceedings is material.  See, e.g., Segid v. United States Citizenship & Immigr. Servs., 
No. 1:20-CV-01228-SEB-DML,
2021 WL 4895322
, at *3 (S.D. Ind. Oct. 20, 2021), aff’d,
47 F.4th 545
 (7th Cir. 2022) (“An accurate listing of family members is a significant, 
material part of the consular officer’s review of an immigrant’s case when deciding 
whether a visa application is approved.”); Bijan v. United States Citizenship & Immigr. 

Servs.,
900 F.3d 942, 946
 (7th Cir. 2018) (describing an applicant’s failure to list children 
with whom he had lost contact as a “glaring omission” and affirming denial of citizenship); 
Toribio-Chavez v. Holder,
611 F.3d 57, 60
 (1st Cir. 2010) (denying a petition for review 
after the application was found inadmissible based on his “willfully misrepresenting a 
material fact, specifically by claiming that his marriage . . . was his first and failing to 

identify his children.”).  Here, consistent with these cases, Respondents point out that 
Evelyn’s disclosure of her Minnesota-born children would have led USCIS to inquire 
regarding various matters, including marriage fraud, which in turn would have made 
Evelyn inadmissible.  Resp’ts Mem. in Supp. [ECF No. 12] at 15.  By omitting the children, 
Evelyn indisputably “shut off a line of inquiry” relevant to her admission.9   


9    Evelyn’s  claim  under  the  Declaratory  Judgement  Act  is  based  on  the  same 
allegations as her § 1421(c) claim—i.e., that the denial of her naturalization application 
was contrary to law, and that Evelyn has met all requirements for naturalization.  See Pet. 
at 11–12 ¶¶ 1–5.  The claim seeks no relief that might conceivably be distinct from the 
§ 1421(c) claim.  See id.  In these circumstances, the Declaratory Judgment Act claim 
                          IV                                         
Respondents’ subject-matter-jurisdiction challenge targets Evelyn’s claim under the 
Administrative Procedure Act (or “APA”).  See Pet. ¶¶ 47–54.  A court reviewing a motion 

to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) must first determine 
whether the movant is making a “facial” attack or a “factual” attack.  Branson Label, Inc. 
v. City of Branson,
793 F.3d 910, 914
 (8th Cir. 2015).  Here, Respondents advance a facial 
attack because their challenge accepts the Petition’s allegations as true and depends only 
on materials that may appropriately be considered at the motion-to-dismiss stage.  See Titus 

v. Sullivan,
4 F.3d 590, 593
 (8th Cir. 1993).  Therefore, the same Rule 12(b)(6) standards 
govern Respondents’ Rule 12(b)(1) challenge.  Osborn,
918 F.2d at 729
 n.6 (citations 
omitted).                                                                 
Under the APA, a “person suffering legal wrong because of agency action, or 
adversely affected or aggrieved by agency action within the meaning of a relevant statute, 

is entitled to judicial review thereof.”
5 U.S.C. § 702
.  However, only “final agency action 
for which there is no other adequate remedy in a court [is] subject to judicial review.”
Id.
 
§ 704 (emphasis added).  Where Congress has provided an adequate alternative remedy 
under another statute, the court lacks subject-matter jurisdiction over an APA claim.  Cent. 
Platte Nat. Res. Dist. v. U.S. Dep’t of Agric.,
643 F.3d 1142, 1148
 (8th Cir. 2011).  The 
disputed question here is whether
8 U.S.C. § 1421
(c), under which Evelyn asserts her claim 

in Count I, provides an “adequate remedy” in the relevant sense.          

should be dismissed.  Am. Achievement Corp. v. Jostens, Inc.,
622 F. Supp. 3d 749
, 766 
(D. Minn. 2022).                                                          
The United States District Court for the District of Columbia has held that Congress 
intended
8 U.S.C. § 1421
(c) to be the “exclusive means of not just obtaining judicial review 
of the denial of a naturalization application, but also of claims arising out of or related to a 

denial.”  Miriyeva v. U.S. Citizenship & Immigr. Servs.,
436 F. Supp. 3d 170
, 180–81 
(D.D.C. 2019) (collecting cases), aff’d,
9 F.4th 935
 (D.C. Cir. 2021).  As the Miriyeva court 
noted, “[t]he few courts to have considered the issue . . . have all concluded that § 1421(c) 
provides an adequate remedy for APA and constitutional claims related to the denial of 
naturalization applications.”  Id. at 186 (collecting cases).  Accordingly, the court held that 

“8 U.S.C. § 1421(c) bars plaintiffs from bringing their APA and constitutional claims.”  Id. 
at 179.  It further found that the review provided by § 1421(c) is adequate, particularly due 
to its unique feature in agency law: de novo review.  Id. at 184.         
Citing Miriyeva, courts in this District have found that “Section 1421(c) is the only 
means for judicial review under the INA.”  Alam v. United States Citizenship & Immigr. 

Servs.,
592 F. Supp. 3d 810
, 824 (D. Minn. 2022); see also Abdirahman H. v. United States 
Citizenship & Immigr. Servs., No. 20-cv-2185 (WMW/TNL),
2021 WL 1577680
, at *1 (D. 
Minn. Apr. 22, 2021) (“Title
8, United States Code, Section 1421
(c), is the exclusive means 
to obtain judicial review of the denial of a naturalization application, as well as any claims 
arising out of or related to such denial.”); Hamod v. Kelly, No. 16-cv-1191 (JRT/TNL),
2017 WL 8947276
, at *8 (D. Minn. June 12, 2017) (“The APA does not authorize judicial 
review ‘that adds to the sweeping de novo review’ that [§ 1421(c)] provides.” (citation 
omitted)), report and recommendation adopted sub nom. Hamod v. Duke, No. 16-cv-1191 
(JRT/TNL),
2017 WL 3668762
 (D. Minn. Aug. 24, 2017).  Miriyeva is thorough and well-
reasoned, and it will be followed here.

ORDER

Therefore, based on the foregoing, and on all the files, records, and proceedings 
herein, IT IS ORDERED THAT  Respondents’  Motion  to  Dismiss  [ECF  No.  9]  is 
GRANTED as follows:                                                       
1.   Count II of the Petition is DISMISSED without prejudice for lack of 
subject-matter jurisdiction.                                              

2.   The Petition is in all other respects DISMISSED with prejudice.   
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

Date: May 28, 2024                 s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court

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