IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 40166 Summary Calendar

VERONICA MARTINEZ DE ESPARZA , P etitioner

- Appellant

v. JOHN KERRY, Secretary of State; UNITED STATES OF AMERICA , Respondents

- Appellee s

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:12

- CV

- 24

Before KING, BARKSDALE, and HIGGINSON, Circuit Judges. PER CURIAM: * Veronica Martinez de Esparza applied for a Unit ed States passport in June
2008. After t he Department of State (DOS) denied her application , in 2009 Martinez filed this action under 8 U.S.C. § 1503(a), which provides for declaratory relief from a final agency determination denying any right or privilege as a national of the United States , upon grounds of citizenship. In November 2012, DOS det ermined Martinez met her burden of proof to establish her United States citizenship and issued her a passport. As a result, DOS moved to dismiss this

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

## FILED December 9, 2013 Lyle W. Cayce Clerk Case: 13-40166 Document: 00512464607 Page: 1 Date Filed: 12/09/2013

### No. 13

- 40166

action on the ground s that the issuance of the passport mooted Martinez’ claim for a d eclaration of citiz enship under § 1503(a)

. Martinez challenges the district court’s granting the dismissal motion

. Martinez contends the district court erred in concluding her action was moot because DOS issued her a passport

. She contends that DOS and B order
P atrol A gents have the authority to revoke or confiscate a passport without prior notice or hearing. F or that reason, she maintains she has a concrete interest in obtaining a declaration of citizenship under § 1503(a), which will not expire and can only be rescind ed or modified pursuant to Federal Rule of Civil Procedure 60. Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction is reviewed de novo

. E.g. , Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001). Martinez bears the burden of proof to show jurisdiction exists. Id

.

“ An individual who claims a denial of a right or privilege as a national by any department or independent agency may seek a declaration of citizenship under § 1503(a). ” Garcia v. Fre eman, No. 12

- 41458, 2013 WL 5670856, at *1 (5th Cir. 18 Oct. 2013) (citation omitted); 8 U.S.C. § 1503(a). A ction s under § 1503(a) “may be instituted only within five years after the final administrative denial of such right or privilege”. Garcia , 2013 WL 5670856, at *1 (quoting 8 U.S.C. § 1503(a)(2) (emphasis added) ) (citation omitted). “The requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness).” Id . (quoting Moore v. Hosemann , 59 1 F.3d 741, 744 (5th Cir. 2009) )

. “Generally, any set of circumstances that eliminates [the] actual controversy after the commencement of a lawsuit renders that action moot.” Id . (In her reply brief, Martinez concedes she is not a sserting that an exception to the mootness doctrine applies.)

“ A district court does not have jurisdiction to review claims under § 1503(a) where plaintiff has not been denied a right or privilege as a national of the United States pursuant to a final administrative determination. ” Id. (citation s omitted).



### 2 Case: 13-40166 Document: 00512464607 Page: 2 Date Filed: 12/09/2013

### No. 13

- 40166

Martinez has not shown she was denied a right o r privilege as a United States national as a result of DOS’ decision to issue her a passport because it may be used as evidence of her citizenship duri ng its period of validity

. Id . (citations omitted )

. Martinez ’ contention that she still has a concrete interest in obtaining a declaration of citizenship fails for the same reason the plaintiff’s contention in Garcia failed. “[E] ssentially , she seeks an advisory opinion that could be used in the event an official challenges her citizenship in the future ”

. Id

. DOS issued Martinez a United States passport, and , therefore, she has not been denied a right or privilege of a United States national. AFFIRMED.



### 3 Case: 13-40166 Document: 00512464607 Page: 3 Date Filed: 12/09/2013