In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3642

ANGIE ORTEGA,

Plaintiff-Appellant,

v.

ERIC H. HOLDER, 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.

ARGUED APRIL 15, 2009—DECIDED JANUARY 15, 2010

Before FLAUM, RIPPLE and SYKES, Circuit Judges.

RIPPLE, 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 appealed. 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 proceedings, 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 Naturalization 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 applicant’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 determined 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 proceedings 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 application 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 excused in the discretion of CIS where it is demonstrated 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 Government 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 District] 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 connection 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 department or independent agency for a judgment declaring 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] citizenship.” 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 petitioners’ 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 jurisdiction, 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 precludes jurisdiction over Rios’s citizenship claim

because his claim “arose by reason of, or in connection 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 separate; rather, it applies when the particular citizenship 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 interpretation 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 citizenship. According to the Government, once the removal proceedings—during which the plaintiff raised a claim of

citizenship—have terminated, any future action for a

declaration of citizenship would not “arise” from those removal 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 jurisdiction. 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 proceeding. So long as a citizenship claim finds its

genesis outside of the context of removal proceedings, 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 judgment.” This narrower reading is consistent with

the concern that the federal courts not be used as

tools to frustrate and interfere with removal proceedings.

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 enactments 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 individuals, 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 guaranteed 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 proceedings 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 Government’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 Congress’s effort to channel all appeals from removal proceedings—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 petitioner 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 proceedings, 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 obtaining 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 accurate. 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, including 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 discretion, an untimely motion to reopen “where it is demonstrated 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 nonremovable) 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

Given this authority, the AAO’s determination that Ms. 1

Ortega’s motion is “at best” a motion to reconsider is problematic. 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 attention 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.

statute of limitations under 28 U.S.C. § 2255). Although 1

such an individual still must rely on the agency’s discretion 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 quotation 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
No. 08-3642 17

See 8 C.F.R. § 341.6 (“After an application for a Certificate of 2

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.”).

arose as a result of or in connection with her removal proceedings. 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; this action, in essence, would 2

have separated her administrative action from her

prior removal proceedings and eliminated the jurisdictional 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 discussed 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
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 Government’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. 

REVERSED AND REMANDED

1-15-10