Nuzaira Rahman v. Janet Napolitano , 385 F. App'x 540 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
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.