IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-2541-JLK LYNN BOIKO,

Plaintiff, v. ERIC HOLDER, Attorney General of the United States, JANET NAPOLITANO, Secretary for the Department of Homeland Security, ALEJANDRO MAYORKAS, Director, United States Citizenship and Immigration Services, ANDREW LAMBRECHT, Acting Field Office Director for United States Citizenship and Immigration Services, ROBERT MATHER, District Director for the Denver USCIS District, United States Department of Homeland Security, United States Citizenship and Immigration Services,

Defendants. _____________________________________________________________________

ORDER DENYING MOTION TO DISMISS _____________________________________________________________________ KANE, J.

Plaintiff Lynn Boiko is a naturalized United States Citizen who seeks to have her

certificate of naturalization reissued to reflect her true birth date. Defendant Department of

Homeland Security, Citizenship & Immigration Services (“CIS”) moves to dismiss per FRCP

12(b)(1), arguing this Court lacks jurisdiction to order her certificate amended. Doc. 15. I

disagree with Defendant, finding jurisdiction proper under FRCP 60(b), and therefore DENY

Defendant’s Motion.

Factual Background1

Mrs. Boiko was born Vuong Van Lan on June 7, 1959, in Hai Chau, Da Nang, Vietnam.

In 1975, Mrs. Boiko’s mother sent Mrs. Boiko and two of Mrs. Boiko’s siblings abroad, fearing

1 The following facts, presented as true, are taken from the Petition to Amend, Doc. 8.

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for their safety because the Vietnamese Communist government had taken Mrs. Boiko’s father

into custody for his entrepreneurial pursuits. As Mrs. Boiko entered the United States via Hong

Kong in 1978, a family friend advised her that she would be more likely to obtain refugee status

if she were younger and accordingly told an immigration officer that Mrs. Boiko was born in

1962. Mrs. Boiko’s parents were not with her to refute the proffered date of birth and she had no

documents suggesting to the contrary. Removed from her native land, Mrs. Boiko’s focus was

on trying to learn the language and customs of her new country and recovering from the trauma

she had just suffered.

Mrs. Boiko became a naturalized United States citizen on May 1, 1985, legally changing

her name at that time to adopt the English spelling Lynn Van Wang, but neglecting to modify her

listed date of birth. Shortly after naturalization, Mrs. Boiko’s parents sent her a number of

documents, including a notice from the Embassy of the United States of America, Bangkok,

Thailand. The notice indicated that the government believed some of her siblings had entered

the United States using the wrong names and wrong dates of birth and directed the siblings to

show proof of having corrected their Alien files. Acknowledging upon receipt of these

documents that her information also was incorrect, Mrs. Boiko went forthwith to the Denver CIS

office. The office personnel provided no assistance and the unsatisfactory visit launched Mrs.

Boiko into serial disappointment as she continually and unsuccessfully attempted to get her

naturalization certificate to reflect her true date of birth. Mrs. Boiko spent several frustrating and

confusing years shuffling back and forth between CIS and the courts in the years that followed

up to the present.

Discussion

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Until October 1, 1991, federal district courts issued naturalization orders. See 8

C.F.R. § 310.4(a). The Immigration Act of 1990 transferred the power to naturalize from the

judiciary to the executive branch, but nowhere in this shift did the Immigration Act eradicate

a court’s essential authority to deal with orders it issued under the prior scheme. See

Immigration Act of 1990, Pub.L. No. 101–649, § 401(a), 104 Stat. 5038 (Nov. 29, 1990).2

Thus, we have jurisdiction to amend naturalization certificates that this court issued before

October 1991, as is the case here.

The pre-1991 version of the statute, 8 U.S.C. § 1451(i) (1990) explicitly sets forth

our power to amend naturalization certificates as follows:

(i) Power of court to correct, reopen, alter, modify or vacate judgment or decree

Nothing contained in this section shall be regarded as limiting, denying, or

restricting the power of any naturalization court, by or in which a person has been

naturalized, to correct, reopen, alter, modify, or vacate its judgment or decree

naturalizing such person, during the term of such court or within the time

prescribed by the rules of procedure or statutes governing the jurisdiction of the

court to take such action.

Thus, under § 1451(i), a naturalization court has the “inherent authority to set aside

judgments for any reason cognizable under Federal Rule of Civil Procedure 60.” Magnuson

v. Baker, 911 F.2d 330, 335 n. 11 (9th Cir.1990); see also McKenzie U.S. Citizenship and

Immigration Services, Dist. Director, 2012 WL 5954193, at *1 n.2 (W.D.Okla. Nov. 28, 2 Even were the statute not manifestly clear in granting this Court’s jurisdiction, I would endeavor to find a reasonable legal interpretation making it so. As Judge Learned Hand wrote almost a century ago, “No one wants gratuitously to impose upon naturalization proceedings that technical spirit which easily follows a literal application of so detailed a statute, and which results in vexatious disappointment, and in needless irritation, to a defenseless class of persons necessarily left to the guidance of officials, except in so far as the courts may mitigate the rigors of their interpretation.” In re Denny, 240 F. 845, 846 (S.D.N.Y.1917).

Case 1:12-cv-02541-JLK Document 19 Filed 02/26/13 USDC Colorado Page 3 of 5

2012)(“Because prior to 1990, the order naturalizing an individual was a court order, a court

would have jurisdiction to amend a pre–1990 certificate of naturalization (naturalization

order) pursuant to Federal Rule of Civil Procedure 60.”)

Having more than satisfied myself that this Court has jurisdiction, the only matter to

decide is whether Plaintiff has satisfied the timeliness requirements of Rule 60 (b). Motions

made per FRCP 60(b)(1)-(3) must be made “no more than a year after the entry of judgment or

order or the date of the proceeding.” None of the other grounds for providing relief under Rule

60(b), however, have a firm deadline; the only qualification is that such requests be made within

a “reasonable” time.

Here, I find Plaintiff did make her request within a reasonable time. As substantiated by

voluminous exhibits, Mrs. Bioko repeatedly tried to correct the information on her naturalization

certificate, attempting to remedy her predicament in any venue she thought possible, whether

court or agency. Moreover, the balance of equity in this case favors relief. Defendant itself

characterizes Mrs. Bokio’s plight as “unfortunate,” Doc. 17 at 3, and offers only the length of

time between Mrs. Boiko’s current petition and her naturalization date to conclusorily state that

Mrs. Boiko’s request is unreasonable. Defendant does not dispute that Mrs. Boiko's allegedly

correct birth date, which is supported by her Vietnamese birth certificate, is her actual birth date,

nor does it argue that it faces any prejudice from having to change Mrs. Boiko's birth date on her

records. In fact, the government, and the public at large, would appear to benefit from having the

most accurate vital statistics records possible. Thus, in light of the absence of any prejudice to

Defendant, the public interest in having accurate records on vital statistics, and the burden on

Plaintiff from having inconsistent records regarding key personal information that is fundamental

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to proof of identity and eligibility for such things as Social Security benefits, I conclude that the

circumstances of this case justify relief under FRCP 60(b)(6).

Conclusion

For the foregoing reasons, Defendant’s Motion to Dismiss, Doc. 15, is DENIED.

DATED: February 26, 2013 BY THE COURT: /s/John L.Kane U.S. Senior District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-2541-JLK-AP

LYNN BOIKO,

Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, CITIZENSHIP & IMMIGRATION SERVICES,

Defendants.

ORDER

Per the parties’ joint motion and stipulation, Doc. 20, and for good cause shown,

the Court hereby amends Plaintiff’s certificate of naturalization to indicate that Plaintiff

was born on June 7, 1958, and orders the United States Citizenship and Immigration

Services to issue a replacement certificate of naturalization to reflect that amendment.

Upon this Court’s receipt of proof that such a replacement certificate of

naturalization has been issued by the United States Citizenship and Immigration

Services to Plaintiff, the Court will dismiss the case with prejudice with each side to pay

its own attorney fees and costs.

Dated: March 13, 2013 BY THE COURT:

/s/ John L. Kane U.S. Senior District Judge

Case 1:12-cv-02541-JLK Document 21 Filed 03/13/13 USDC Colorado Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-2541-JLK-AP

LYNN BOIKO,

Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, CITIZENSHIP & IMMIGRATION SERVICES,

Defendants.

ORDER

Having received notice, Doc. 22-1, that on March 15, 2013, the United States Citizenship

and Naturalization Service issued a replacement Certificate of Naturalization with a date of birth

reflecting the amendment made by the Court to show that Lynn Van Boiko was born on June 7,

1958, the above captioned matter is DISMISSED WITH PREJUIDICE with each side to pay its

own attorney fees and costs.

DATED: March 18, 2013 BY THE COURT:

/s/John L. Kane U.S. Senior District Judge

Case 1:12-cv-02541-JLK Document 23 Filed 03/18/13 USDC Colorado Page 1 of 1

(b)(6)

MATTER OF A-S-A-

Non-Precedent Decision of the Administrative Appeals Office

DATE: FEB. 12, 2016

APPEAL OF NEBRASKA SERVICE CENTER DECISION

APPLICATION: FORM N-565, APPLICATION FOR REPLACEMENT NATURALIZATION I CITIZENSHIP DOCUMENT

The Applicant, a native of Ethiopia and a naturalized citizen of the United States, seeks a replacement Naturalization document. See Immigration and Nationality Act (the Act) § 338, 8 U.S.C. § 1449. The Director, Nebraska Service Center, denied the application. The matter is now before us on appeal. The appeal will be dismissed.

The Applicant seeks to have his Certificate of Naturalization corrected to reflect a change in his date of birth from

On February 26, 2015, the Director reviewed the Applicant's record and determined that a correction to his Certificate of Naturalization was not justified. Specifically, the Director noted that the Applicant had claimed the date of birth on the certificate at the time of naturalization. The Form N-565, Application for Replacement Naturalization/Citizenship Document, was denied accordingly.

On appeal, the Applicant requests that his Certificate ofNaturalization be changed to conform to his correct date of birth. In support, the Applicant submits a copy of a June 17, 2014, U.S. Citizenship and Immigration Services (USCIS) Policy Alert, a printout from the USCIS policy manual, and an Order denying a motion to dismiss in a U.S. District Court for the case.

Section 338 of the Act provides the statutory authority relating to the contents of a Certificate of Naturalization. In addition, the regulations regarding the execution and issuance of Certificates of Naturalization are contained in 8 C.F.R. § 338.5, and provide, in part, that:

(a) Application. Whenever a Certificate of Naturalization has been delivered which does not conform to the facts shown on the application for naturalization, or a clerical error was made in preparing the certificate, an application for issuance of a corrected certificate may be filed, without fee, in accordance with the form instructions.

* * *

(e) Data change. The correction will not be deemed to be justified where the naturalized

(b)(6)

Matter of A-S-A-

person later alleges that the name or date of birth which the applicant stated to be his or her correct name or date of birth at the time of naturalization was not in fact his or her name or date of birth at the time of the naturalization.

Based on the evidence in the record, the Applicant has not established that his Certificate of Naturalization, which states that his date of birth is contains clerical errors attributable to USCIS. Here, the birth date on the Applicant's Certificate ofNaturalization conforms to the birth date stated in his Application to File Petition for Naturalization (Form N-400). Additionally, we observe that the record contains other documents with the date of birth, including: the Applicant's Petition for Naturalization (Form N-405); the Applicant's Form I-590, Registration for Classification as Refugee; two Forms I-90, Application by Lawful Permanent Resident for New Alien Registration Receipt Card; the Applicant's Form I-131, Application for Issuance of Permit to Reenter the United States; the Applicant's Permit to Reenter the United States; and two Forms G-325A, Biographic Information.

We acknowledge that the record includes a baptismal certificate showing the Applicant's date of birth to be and a birth certificate registered in the Administrative Zone of Ethiopia on January 2, 2013.

However, because the Applicant acknowledged his birth date as on his naturalization application and there was no clerical error in the preparation of the Applicant's certificate, USCIS has no authority to change the Applicant's Certificate of Naturalization. See 8 C.P.R. § 338.5.

On appeal, the Applicant, through counsel, submits a USCIS Policy Alert memorandum, PA-2014-006, dated June 17, 2014, regarding changes to dates of birth and names on certificates of citizenship. We note that this particular memorandum applies to certificates of citizenship, and not to certificates of naturalization. We also note that the policy memorandum states that the date of birth on certificates of citizenship can be changed if a U.S. state court order recognizes the new date of birth; in this particular case, the Applicant has not presented any evidence that a U.S . state court recognized the change in his date of birth.

In addition, the Applicant, through counsel, submits a copy of an unpublished decision by the U.S. District Court for the in which the court held that the certificate of naturalization for the plaintiff be reissued to reflect her true date of birth. First, we note that we are not bound by unpublished decisions. Second, even if this case were binding, the Applicant does not reside within the jurisdiction of the U.S. District Court for the And finally, in the Boiko case, a U.S. district court ordered the change of the date of birth on the certificate of naturalization. In this particular case, there is no court order, thus we are bound by the regulation at 8 C.P.R. § 338.5.

In application proceedings, it is the Applicant's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.

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Matter of A-S-A-

ORDER: The appeal is dismissed.

Cite as Matter of A-S-A-, ID# 15167 (AAO Feb. 12, 2016)

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