Yanita Kuzova v. Usdhs, Citizenship & Imm. Svc ( 2017 )

FILED
NOT FOR PUBLICATION
APR 12 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YANITA KUZOVA; YAVOR KUZOV, No. 14-16984
Plaintiffs-Appellants, D.C. No.
2:10-cv-01711-JAD-GWF
v.
U.S. DEPARTMENT OF HOMELAND MEMORANDUM*
SECURITY, U.S. CITIZENSHIP AND
IMMIGRATION SERVICES; LOLA
PARACUA; JEFFERSON B. SESSIONS
III, Attorney General; JANET
NAPOLITANO; ALEJANDRO
MAYORKAS; ROBERT MULLER;
UNITED STATES OF AMERICA,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted April 4, 2017
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: EBEL,** M. SMITH, and N.R. SMITH, Circuit Judges.
Yanita Kuzova and Yavor Kuzov filed a complaint under 8 U.S.C.
§ 1447(b), requesting, among other things, that the district court adjudicate each of
their applications for naturalization. The district court dismissed their claims as
moot or unexhausted. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. The district court properly dismissed Counts 1 and 2—Kuzova’s request for
adjudication under 8 U.S.C. § 1447(b) and request for a writ of mandamus—as
moot. In December 2013, the district court remanded Kuzova’s application for
naturalization back to the United States Citizenship and Immigration Service
(“USCIS”). The USCIS adjudicated her application. Thus, there is no remaining
relief Kuzova can obtain under § 1447(b).1 See Nome Eskimo Cmty. v. Babbitt, 67
F.3d 813, 815 (9th Cir. 1995).
**
The Honorable David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
1
Kuzova’s claims do not meet any of the exceptions to the mootness
doctrine. See Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1173–74 (9th
Cir. 2002). These claims are not capable of repetition. Id. And voluntary
cessation is not applicable, because the government did not change any policy in
response to litigation. See Rosebrock v. Mathis, 745 F.3d 963, 971–72 (9th Cir.
2014). Rather, the government adjudicated the claims as directed by the district
court’s remand under 8 U.S.C. § 1447(b).
2
Kuzova asserts the district court abused its discretion in remanding the
adjudication back to the USCIS. We disagree. First, the district court is authorized
to remand under § 1447(b). Although the district court must provide the USCIS
“with appropriate instructions” upon remand, it need not make findings of fact
prior to remand. See 8 U.S.C. § 1447(b). Second, the fact that the USCIS may
have administratively closed Kuzova’s application in October 2012 is not relevant
to the district court’s remand. There is no evidence that the government gained
any tactical advantage by administratively closing the application in October 2012
(which it previously closed in December 2010). Further, even if the USCIS acted
improperly by administratively closing the application, any action it took would
have been unenforceable. See United States v. Hovsepian, 359 F.3d 1144,
1160–61 (9th Cir. 2004) (en banc). The district court had exclusive jurisdiction
over this case from January 2011 to December 2013 (when it remanded the
naturalization issue to the USCIS). See id. Lastly, the record does not suggest that
the administrative closure affected the remanded proceedings. If there were any
allegations of wrongdoing in the USCIS’s adjudication of Kuzova’s naturalization
application, she should have raised those allegations in the appeal of the USCIS’s
December 2013 decision. See 8 U.S.C. § 1447(a); 8 C.F.R. § 336.2(b).
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2. The district court properly dismissed Counts 2 and 7—Kuzov’s request for a
writ of mandamus and request for a declaration of rights—as moot. Kuzov became
a naturalized citizen through his military service under 8 U.S.C. § 1440.
Therefore, there was no form of relief the district court could provide. See Nome
Eskimo Cmty., 67 F.3d at 815. Although Kuzov argues that citizenship granted
under § 1440 is somehow less desirable than citizenship granted under 8 U.S.C.
§ 1427, we know of no differences in a person’s rights based upon which route was
used to obtain citizenship.2 We acknowledge that both statutes provide bases for
denaturalization; however, the record does not evince any real potential for
Kuzov’s denaturalization.3
3. The district court properly dismissed Count 3—Appellants’ request for
injunctive and declaratory relief based on the government’s unreasonable delay and
2
Kuzov asserts that the I-130 petition he filed on behalf of his mother was
denied based on his failure to obtain citizenship under § 1427. This premise is
based on a misunderstanding of the I-130 petition process. Kuzov’s mother’s
I-130 petition was revoked not because of his citizenship through § 1440 but rather
based on allegations that she committed marriage fraud. See 8 C.F.R. § 205.2(a).
3
First, Kuzov’s underlying immigration status is irrelevant to naturalization
based on military service. See 8 U.S.C. § 1440. Second, although Kuzov raised in
oral argument for the first time that he could have lost his citizenship if he was
dishonorably discharged within five years of his naturalization, this event did not
occur. Kuzov’s counsel represented that Kuzov is still enlisted in the military, and
the record establishes that he has been a naturalized citizen for over five years.
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actions in violation of the APA—as moot. Kuzov argues his claim is not moot
because he still has an outstanding naturalization application. Kuzova argues her
claim is not moot because her application was improperly administratively closed.
We disagree with Appellants. Both Appellants’ applications have been
adjudicated. Although Appellants are dissatisfied with the results, there is no
further relief available. See Nome Eskimo Cmty., 67 F.3d at 815.
4. The district court properly dismissed Count 4, wherein Kuzova requested
“declaratory and injunctive relief in the form of finding” that the government’s
removal proceedings did not “prevent [the district court] from determining [her]
naturalization matter.” Kuzova asserts the district court misconstrued her
allegation, because Count 4 alleged “a cause of action for abuse of process under
Nevada state law,” and she sought declaratory and injunctive relief “for those
tortious abuse of process[s] and violations of procedural and substantive due
process.” Count 4 does not include state law claims. Nevertheless, to the extent
that Kuzova made allegations challenging the removal proceedings, the district
court correctly found that it lacked jurisdiction to review the Department of
Homeland Security’s removal proceedings. To the extent she was arguing the
removal proceedings should not preclude the district court from adjudicating her
naturalization application, it did not. Removal proceedings were terminated in
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June 2012. The district court then chose to remand the naturalization application to
the USCIS. Thus, the district court can provide no further relief. See Nome
Eskimo Cmty., 67 F.3d at 815.
5. The district court properly dismissed Count 5, wherein Appellants alleged
due process violations for the USCIS’s failure to timely adjudicate their
naturalization applications because of their mother’s underlying removal
proceedings. The district court concluded that Kuzov’s claim was moot, and
Kuzova’s claim was moot or needed to be exhausted in separate administrative
proceedings. We agree. Appellants assert that the USCIS should have provided
written notice of the reasons for the alleged delay and should have provided a
mechanism for rebutting the allegations of marriage fraud. Kuzov’s claim was
mooted when he obtained citizenship through naturalization. Kuzova’s claim was
either moot or subject to administrative exhaustion, because (1) her application was
adjudicated, and (2) the mechanism for rebutting the allegations of her mother’s
marriage fraud was to appeal the USCIS’s December 2013 decision denying her
naturalization application.
6. The district court properly dismissed Count 6, wherein Kuzova requested a
declaration of rights. Rather than deciding Kuzova’s naturalization application in
the first instance, the district court remanded the matter for adjudication before the
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USCIS. Although Kuzova raises multiple claims of misconduct by the
government, the district court properly adjudicated the matter under § 1447(b)
when it remanded to the USCIS. Thus, the district court did not abuse its
discretion when it concluded that alternative remedies exist for Kuzova with regard
to any remaining allegations. Kuzova could have raised the alleged abuse of
process claims in her appeal from the USCIS’s December 2013 decision.
AFFIRMED.
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