Nuzaira Rahman v. Janet Napolitano ( 2010 )


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                               File Name: 10a0419n.06
    
                                                No. 09-3437                                      FILED
                                                                                              Jul 13, 2010
                                                                                       LEONARD GREEN, Clerk
                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
    
    
    NUZAIRA M. RAHMAN,
    
            Plaintiff-Appellant,
    
                    v.                                                    On Appeal from the United
                                                                          States District Court for the
    JANET NAPOLITANO, EMILIO T. GONZALES,                                 Northern District of Ohio at
    and MARK B. HANSEN,                                                   Cleveland
    
            Defendants-Appellees.
    
    
    
    
                                                                   /
    
    Before:         GUY, BOGGS, and SUTTON, Circuit Judges.
    
            RALPH B. GUY, JR., Circuit Judge.               Plaintiff Nuzaira Rahman appeals from the
    
    dismissal of her pro se complaint requesting that the district court adjudicate her application
    
    for naturalization or remand the matter for adjudication by the United States Citizenship and
    
    Immigration Services (USCIS) pursuant to 8 U.S.C. § 1447(b).1 The district court dismissed
    
    the complaint without prejudice in reliance on 8 U.S.C. § 1429, which restricts the authority
    
    to consider an application for naturalization while removal proceedings are pending.
    
    Plaintiff claims that it was error for the district court (1) to conclude that § 1429 deprived the
    
    
            1
             Pursuant to Fed. R. App. P. 43(c)(2), Janet Napolitano, Secretary of the Department of Homeland
    Security (DHS), is automatically substituted for her predecessor Michael Chertoff.
    No. 09-3437                                                                                            2
    
    district court of jurisdiction under § 1447(b); and (2) to reject her plea to vacate the USCIS’s
    
    subsequent denial of her application for naturalization, the error being either (a) because the
    
    district court’s jurisdiction under § 1447(b) is exclusive, or (b) because the USCIS was
    
    precluded from doing so by the limitations of § 1429.2
    
            Finding that § 1429 limits the district court’s authority to grant relief under § 1447(b),
    
    or determine the USCIS’s jurisdiction or authority to act on the delayed application for
    
    naturalization, we affirm the dismissal of the complaint without prejudice.
    
                                                            I.
    
            Plaintiff Nuzaira Rahman, a native and citizen of Bangladesh, received Lawful
    
    Permanent Resident (LPR) status on November 17, 2000. In May 2004, plaintiff applied for
    
    naturalization as the spouse of a United States citizen.3                      Plaintiff was examined for
    
    naturalization on November 26, 2004, and passed all the tests that were administered. More
    
    than 120 days passed without decision on the application for naturalization.
    
            In April 2005, a federal indictment charged plaintiff’s husband Abrar U. Haque (and
    
    a number of others) with various offenses. Plaintiff was charged in the same indictment
    
    (under her married name) with several offenses. In January 2007, after her husband was
    
    convicted at trial of multiple offenses, plaintiff pleaded guilty to one count of furnishing
    
    inaccurate information to the Commissioner of Social Security and was sentenced to two
    
    years’ probation. She claims that she believed that this conviction would not result in her
    
    
           2
             The Ohio Affiliate of the Council on American-Islamic Relations filed an amicus curiae brief in
    support of plaintiff’s contention that § 1447(b) grants exclusive jurisdiction to the district courts.
            3
                Plaintiff also has five children who are United States citizens.
    No. 09-3437                                                                                  3
    
    removal.
    
            However, on April 7, 2008, the Department of Homeland Security (DHS) served
    
    plaintiff with a Notice to Appear, which charged her with removability on account of both
    
    that 2007 conviction and an undisclosed 1998 order of removal that was entered in absentia.
    
    Attacking the removal from more than one direction, plaintiff sought to vacate her
    
    conviction, tried to halt the removal proceedings, and instituted this action to obtain a
    
    decision on the four-year-old application for naturalization.
    
            Specifically, not having appealed her judgment of conviction or filed a § 2255 motion,
    
    plaintiff moved to vacate her conviction by filing a petition for writ of error coram nobis in
    
    the district court. That petition was denied, and an appeal is currently pending in this court.
    
    Plaintiff also filed unsuccessful motions (1) to terminate the removal proceedings to permit
    
    her to proceed to a final decision on the application for naturalization, and (2) to stay the
    
    removal proceedings so that a motion to reopen the prior in absentia order of removal could
    
    be heard. Although defendants indicate that an evidentiary hearing was held in the removal
    
    proceedings on July 27, 2009, it appears that the removal proceedings remain pending at this
    
    time.
    
            This action was filed on August 22, 2008, a few months after removal proceedings
    
    were initiated, invoking the district court’s jurisdiction under § 1447(b) to hear the matter
    
    because the USCIS had not acted within 120 days of her examination. On September 3,
    
    2008, before defendants were properly served, the USCIS issued a written decision denying
    
    plaintiff’s application for naturalization. That order referred not only to the pending removal
    No. 09-3437                                                                                   4
    
    proceedings, but also to plaintiff’s failure to disclose in the application her involvement with
    
    criminal activity or the prior order of removal. Defendants moved to dismiss the complaint
    
    for improper service, which defendants concede was rectified on October 3, 2008. Plaintiff’s
    
    response to this motion also asked the district court to vacate the recent denial of her
    
    application for naturalization.
    
           Plaintiff moved for summary judgment in her favor, and defendants’ response
    
    included a motion to dismiss on alternative grounds of mootness and lack of subject matter
    
    jurisdiction. The district court concluded that it lacked subject matter jurisdiction while
    
    removal proceedings were pending. Denying plaintiff’s motion for summary judgment and
    
    granting defendants’ motion to dismiss, the district court dismissed the complaint without
    
    prejudice in an order entered on February 12, 2009.             Plaintiff filed a motion for
    
    reconsideration, which was denied. This appeal followed.
    
                                                   II.
    
           We review de novo a district court’s decision to dismiss for lack of subject matter
    
    jurisdiction under Fed. R. Civ. P. 12(b)(1), except that when a district court inquires into the
    
    factual basis for jurisdiction the factual findings are reviewed for clear error. See Memphis
    
    Biofuels, LLC v. Chickasaw Nation Indus., Inc., 
    585 F.3d 917
    , 919 (6th Cir. 2009); Abbott
    
    v. Michigan, 
    474 F.3d 324
    , 328 (6th Cir. 2007). Since the decision in this case did not
    
    depend on factual findings, we consider defendants’ motion to be a facial attack on
    
    jurisdiction that is to be reviewed de novo.
    
    A.     Sections 1447(b) and 1429
    No. 09-3437                                                                                 5
    
           Until the adoption of what would become § 1429, “the usual practice had been ‘for
    
    both the [removal] and naturalization processes to proceed along together until either [the]
    
    petitioner’s [removal] or naturalization ipso facto terminated the possibility of the other
    
    occurring.” Zayed v. United States, 
    368 F.3d 902
    , 905 (6th Cir. 2004) (quoting Shomberg
    
    v. United States, 
    348 U.S. 540
    , 543 (1955)). Congress put an end to the race between
    
    naturalization and removal in 1950 by adopting a priority provision declaring, in part, that
    
    “no petition for naturalization shall be finally heard by a naturalization court” while
    
    deportation proceedings were pending against the applicant. Ajlani v. Chertoff, 
    545 F.3d 229
    , 236 (2d Cir. 2008) (quoting Internal Security Act of 1950, Pub. L. No. 81-831, § 27, 64
    
    Stat. 987, 1015, reenacted as INA § 318 (codified at 8 U.S.C. § 1429)).
    
           Prior to 1990, authority to naturalize an alien was vested in the district courts, and
    
    removal was entirely the province of the Attorney General. Zayed, 368 F.3d at 905. In 1990,
    
    with the intention of streamlining the process, Congress unified naturalization authority and
    
    removal authority in the Attorney General (as delegated to the USCIS and DHS). See Etape
    
    v. Chertoff, 
    497 F.3d 379
    , 386 (4th Cir. 2007) (discussing 1990 amendments). Congress did
    
    so by expressly conferring on the Attorney General the “sole authority to naturalize persons
    
    as citizens of the United States.” 8 U.S.C. § 1421(a). At the same time, Congress preserved
    
    the district courts’ power to review the denial of an application for naturalization after a
    
    hearing before an immigration officer, 8 U.S.C. § 1421(c), or to hear the matter on a request
    
    by the applicant if the Attorney General fails to act within 120 days after the examination is
    
    conducted, 8 U.S.C. § 1447(b). The priority provision was also amended to conform to these
    No. 09-3437                                                                                   6
    
    changes such that it now reads, in pertinent part, that “no application for naturalization shall
    
    be considered by the Attorney General if there is pending against the applicant a removal
    
    proceeding pursuant to a warrant of arrest[.]” 8 U.S.C. § 1429 (as amended) (emphasis
    
    added). Plaintiff relies on this language to argue that § 1429 applies only to the Attorney
    
    General and not the district court.
    
           This court’s decision in Zayed was one of the first to confront the issue of whether §
    
    1429, as amended, restricts the power of the district courts. The question presented in Zayed
    
    was whether § 1429 precluded the district court from reviewing a final administrative denial
    
    of naturalization once removal proceedings had been initiated. 368 F.3d at 903. The
    
    government argued, as it does here, that § 1429 operated to deprive the district court of
    
    subject matter jurisdiction as long as removal proceedings were pending against the
    
    applicant. We rejected this contention and held that the effect of § 1429 “is to limit the scope
    
    of the court’s review and circumscribe the availability of effective remedies, but not to oust
    
    the district court of jurisdiction expressly conferred on it by the very act of Congress that
    
    amended § 1429.” Zayed, 368 F.3d at 906.
    
           That is, the court held, a district court exercising jurisdiction under § 1421(c) may
    
    only review those decisions that § 1429 would permit the Attorney General to make while
    
    removal proceedings are pending. Id. This would permit a district court to make a threshold
    
    determination as to whether an application for naturalization was properly denied on the basis
    
    of pending removal proceedings. Id. However, when an application for naturalization is
    
    denied on grounds other than the pendency of removal proceedings, the limitations of § 1429
    No. 09-3437                                                                                                7
    
    would prevent the district court from granting effective relief under § 1421(c). Id. Because
    
    the latter was the case in Zayed, the decision to dismiss without prejudice was affirmed.
    
    Accord De Lara Bellajaro v. Schiltgen, 
    378 F.3d 1042
    , 1047 (9th Cir. 2004).4
    
            Bound by the essential holding in Zayed concerning the effect of § 1429 in an action
    
    under § 1421(c), we conclude, as other courts have, that § 1429 similarly limits the scope of
    
    the district court’s review and circumscribes the available remedies in an action brought
    
    under § 1447(b) when removal proceedings are pending against the applicant. See Ajlani,
    
    545 F.3d at 238-39; Saba-Bakare v. Chertoff, 
    507 F.3d 337
    , 341 (5th Cir. 2007). Section
    
    1447(b) permits an alien whose application for naturalization has not been determined within
    
    120 days after examination to apply to the district court for a hearing, and expressly states
    
    that the district court “has jurisdiction over the matter and may either determine the matter
    
    or remand the matter, with appropriate instructions, to the [USCIS] to determine the matter.”
    
    When removal proceedings are pending, however, the district court may not compel the
    
    USCIS to grant the delayed application for naturalization, nor remand to the USCIS to
    
    consider the delayed application. As the Second Circuit held in Ajlani, adopting the
    
    reasoning of Zayed and Saba-Bakare, “an alien cannot claim a form of relief pursuant to §
    
    1447(b) that is forbidden by § 1429.” Ajlani, 545 F.3d at 238.
    
            There is no basis to conclude that Congress intended to alter the long-standing priority
    
    
            4
             Plaintiff relies on a few district court decisions at odds with the holding in Zayed to argue that §
    1429 should not be read to apply to the district court. See, e.g., Gonzalez v. Napolitano, 
    684 F. Supp. 2d 555
     (D. N.J. 2010); Kestelboym v. Chertoff, 
    538 F. Supp. 2d 813
    , 818 (D.N.J. 2008); Ngwana v. Attorney
    Gen., 
    40 F. Supp. 2d 319
    , 321 (D. Md. 1999). This view is against the weight of appellate authority (as the
    court in Gonzalez conceded), and we may not adopt it to the extent that it is inconsistent with the decision
    in Zayed.
    No. 09-3437                                                                                  8
    
    that removal proceedings are to have over naturalization proceedings. As the Second Circuit
    
    explained in Ajlani:
    
                  Mindful that the animating principle behind § 1447(b) relief is the need
           to protect against executive delay, we conclude that Congress did not
           contemplate judicial orders of naturalization under circumstances where
           Congress has called an explicit statutory halt to the executive’s ability to give
           any further consideration to an alien’s naturalization application until removal
           proceedings end. Like the Sixth Circuit, we think district court authority to
           grant naturalization relief while removal proceedings are pending cannot be
           greater than that of the Attorney General. See Zayed v. United States, 368 F.3d
           at 906. To hold otherwise would be to restart the race that Congress attempted
           to end between naturalization and removal proceedings in the Internal Security
           Act of 1950 and various successor statutes, see Shomberg v. United States, 348
           U.S. at 544, 
    75 S. Ct. 509
    , in circumstances where that race would appear
           particularly inappropriate, i.e., where information belatedly comes to the
           executive’s attention indicating not only that an alien’s naturalization
           application may have been improvidently granted but also that the alien
           should, in fact, be removed from the United States.
    
    Id. at 240. We agree that “it would seem to work against the framework set forth in §§ 1447
    
    and 1429 for the district court to undertake [an evaluation of a naturalization application]
    
    where Congress has expressly prohibited the Attorney General from doing so.” Id.
    
           Convinced that § 1429 should be read to restrict the scope of the district court’s
    
    authority under § 1447(b), as we have held it does for claims under § 1421(c), we conclude
    
    that the district court was not deprived of subject matter jurisdiction. However, because
    
    removal proceedings were (and still are) pending, the district court was precluded from
    
    granting relief pursuant to § 1447(b) by either adjudicating the application for naturalization
    
    or remanding to the USCIS with instructions that it do so. Accordingly, it was not error to
    
    dismiss the plaintiff’s § 1447(b) claims without prejudice.
    
    B.     USCIS’s Denial of Naturalization
    No. 09-3437                                                                                               9
    
            Plaintiff also contends that the district court erred by ignoring her request to vacate
    
    the USCIS’s decision denying naturalization after this action was filed. Defendants relied
    
    on that decision in seeking dismissal of the § 1447(b) claims as moot, but plaintiff did not
    
    request leave to amend her complaint to seek review of the denial under § 1421(c).5 Rather,
    
    plaintiff urged the district court to declare the intervening decision to be without effect either
    
    (1) because the district court had exclusive jurisdiction once the complaint was filed under
    
    § 1447(b), or (2) because the limitations of § 1429 precluded the USCIS from making a
    
    decision on the application for naturalization while removal proceedings were pending.
    
            The first of these issues—whether § 1447(b) grants the district court exclusive or
    
    concurrent jurisdiction over the pending application for naturalization—is a matter of first
    
    impression in this circuit. Courts in three other circuits have held that once an action is
    
    properly filed under § 1447(b), the district court’s jurisdiction is exclusive and the USCIS
    
    is stripped of jurisdiction. See United States v. Hovsepian, 
    359 F.3d 1144
    , 1159 (9th Cir.
    
    2004) (en banc) (reaching different result than the vacated panel decision); Etape v. Chertoff,
    
    
    497 F.3d 379
    , 385, 388 (4th Cir. 2007) (2-1) (abrogating Kia v. INS, 
    175 F.3d 1014
     (4th Cir.
    
    1999) (Table)); Bustamante v. Napolitano, 
    582 F.3d 403
    , 405 (2d Cir. 2009); see also Al-
    
    Maleki v. Holder, 
    558 F.3d 1200
    , 1205 n.2 (10th Cir. 2009) (declining to answer the
    
    question, but noting the persuasive reasoning of Hovsepian and Etape). Defendants urge us
    
    to follow the contrary view, which holds that the USCIS has concurrent jurisdiction over a
    
    
            5
              Plaintiff’s failure to amend the complaint would be the least of the hurdles facing a request for
    review under § 1421(c), as judicial review of a denial of naturalization is authorized only “after a hearing
    before an immigration officer” under § 1447(a). 8 U.S.C. § 1421(c); see also 8 C.F.R. § 336.9(d). There
    is no indication that plaintiff exhausted her administrative remedies with respect to the USCIS’s decision.
    No. 09-3437                                                                                 10
    
    delayed application for naturalization even after an action has been filed under § 1447(b).
    
    This view is ably articulated by the district court in the now-reversed decision in Bustamante.
    
    See Bustamante, 
    533 F. Supp. 2d 373
    , 381 (S.D.N.Y. 2008), rev’d 
    582 F.3d 403
     (2d Cir.
    
    2009); see also Martinez v. Sec., DHS, 
    670 F. Supp. 2d 1325
    , 1329 (M.D. Fla. 2009);
    
    Hamdan v. Chertoff, 
    626 F. Supp. 2d 1119
    , 1137-38 (D.N.M. 2007).
    
           We do not reach this question, however, because we find that the district court’s
    
    authority to examine the USCIS’s decision was circumscribed by § 1429. Indeed, plaintiff’s
    
    second argument calls attention to the limitations of § 1429 by arguing that the USCIS did
    
    not have authority to deny the application for naturalization while removal proceedings were
    
    pending. The cases that address the question of exclusive versus concurrent jurisdiction do
    
    not offer any guidance, as none of those cases also involved a denial of a delayed application
    
    for naturalization while removal proceedings were pending.
    
           This court’s decision in Zayed described the effect of § 1429, stating that when the
    
    administrative denial is based on pending removal proceedings, “the district court’s de novo
    
    review is limited to a review of that threshold determination.” 368 F.3d at 906. Having
    
    extended application of § 1429 to the district court as we have, whether the action is brought
    
    under § 1421(c) or § 1447(b), we also find that § 1429 prevents a district court from granting
    
    the relief requested here—declaration that the USCIS’s denial of naturalization was either
    
    without jurisdiction (because § 1447(b) grants the district court exclusive jurisdiction), or
    
    without authority (because § 1429 precluded consideration of the application during the
    
    pendency of removal proceedings). Completely aside from plaintiff’s failure to amend or to
    No. 09-3437                                                                                11
    
    exhaust administrative remedies, we find that the district court was precluded from granting
    
    the relief requested while removal proceedings were pending.
    
           Accordingly, the district court’s dismissal of the plaintiff’s § 1447(b) claims without
    
    prejudice, and without determining the USCIS’s jurisdiction or authority to decide the
    
    delayed application for naturalization, is AFFIRMED.