Awe v. Napolitano No 11-5134 (10th Cir 8-20-12) and earlier case


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Awe v. Napolitano No 11-5134 (10th Cir 8-20-12) and earlier case

  1. 1. FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT August 20, 2012 Elisabeth A. Shumaker Clerk of CourtAHMED AWE, Plaintiff-Appellant,v. No. 11-5134 (D.C. No. 4:10-CV-00323-TCK-FHM)JANET NAPOLITANO, Secretary, U.S. (N.D. Okla.)Department of Homeland Security;EMILIO GONZALEZ, Director, U.S.Citizenship and Immigration Services;JOSE OLIVARES, Field Office Director,USCIS, Defendants-Appellees. ORDER AND JUDGMENT*Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,Circuit Judge. Ahmed Awe appeals from the district court’s dismissal of a petition he filedunder 8 U.S.C. § 1421(c) seeking review of the denial of his naturalizationapplication. Shortly after he filed his petition, he was placed in removal proceedings.* After examining the briefs and appellate record, this panel has determinedunanimously to grant the parties’ request for a decision on the briefs without oralargument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is thereforeordered submitted without oral argument. This order and judgment is not bindingprecedent, except under the doctrines of law of the case, res judicata, and collateralestoppel. It may be cited, however, for its persuasive value consistent withFed. R. App. P. 32.1 and 10th Cir. R. 32.1.
  2. 2. The district court concluded that it had jurisdiction over the petition under § 1421(c)but that Mr. Awe failed to state a claim upon which relief can be granted. The courtreasoned that once removal proceedings were initiated against Mr. Awe, 8 U.S.C.§ 1429 barred agency consideration of his naturalization application and so precludedthe court from granting him any effective relief on his § 1421(c) petition. We agreewith the district court that it had statutory jurisdiction and that § 1429 precludes anyeffective judicial relief, but we affirm its dismissal on an alternate ground—constitutional mootness. In our view, the fact that the district court could not grantMr. Awe any effective relief shows that the initiation of removal proceedings mootedhis petition. Accordingly, we vacate the district court’s dismissal order and remandwith instructions to dismiss without prejudice for lack of jurisdiction.I. Background Mr. Awe is a native and citizen of Belize. He has been a lawful permanentresident of the United States since 1968. In 1976, at age eighteen, he was convictedof burglary. In 1978, he was arrested for “drunkenness,” and the charges weredismissed. In 1983, he pleaded guilty to possession of marijuana with intent todistribute, possession of cocaine, and maintaining a house where drugs were kept orsold. He received a suspended sentenced of three years’ imprisonment and wasfined. Two months later he was arrested for unlawfully possessing a controlled drug,but the charge was dismissed. In 2006, the Governor of Oklahoma pardoned him forhis 1983 conviction. -2-
  3. 3. In 2007, Mr. Awe filed an application for naturalization. The United StatesCustoms and Immigration Services (USCIS) denied his application based on itsconclusion that, despite his pardon, he was amenable to removal proceedings basedon his 1983 conviction. The USCIS also noted that Mr. Awe had not disclosed all ofhis arrests. Mr. Awe filed a request for rehearing. The USCIS denied that request onJanuary 26, 2010, on the ground that, pardon notwithstanding, his 1983 convictionappeared to place him in the class of removable aliens, and therefore he did not havethe good moral character for naturalization that 8 U.S.C. § 1427(a) requires.1 On May 20, 2010, Mr. Awe filed a petition for review of the denial of hisnaturalization application in the district court pursuant to § 1421(c).2 He claimed thatUSCIS erred in denying his application on the basis of his aged criminal history andmistakenly found that he failed to disclose all of his arrests. He asked the court to(1) exercise jurisdiction, (2) conduct a de novo hearing, (3) remand the matter to the1 In denying the request for rehearing, the USCIS stated that a pardon is relevantonly to certain grounds for removal listed in 8 U.S.C. § 1229(a)(2)(A)(vi), none ofwhich applied to Mr. Awe. 12272 8 U.S.C. § 1421(c) provides: A person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of title 5. Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application. -3-
  4. 4. agency with instructions to grant his naturalization application, (4) award himattorney fees and costs, and (5) grant him further relief deemed just and proper. On August 27, 2010, Mr. Awe was placed in removal proceedings when hereceived a notice to appear, which charged him with removability based on his 1983drug-trafficking conviction. Thereafter, defendants filed a motion to dismiss for lackof jurisdiction and for failure to state a claim upon which relief can be granted.Defendants argued that the initiation of removal proceedings precluded the courtfrom granting relief because § 1429 provides, in relevant part, that “no applicationfor naturalization shall be considered by the Attorney General if there is pendingagainst the applicant a removal proceeding.”3 The court ruled that § 1429 did not strip it of jurisdiction because the statutereferred only to the Attorney General. However, it concluded that because § 1429precluded the Attorney General from granting Mr. Awe’s naturalization application3 The statutory reference to the Attorney General is a legal artifact. “In 2002,Congress transferred authority (1) to commence removal proceedings and (2) toadjudicate applications for naturalization from the Attorney General to the Secretaryof the Department of Homeland Security.” Ajlani v. Chertoff, 545 F.3d 229, 231 n.2(2d Cir. 2008). That transfer took effect March 1, 2003. Batalova v. Ashcroft,355 F.3d 1246, 1248 n.1 (10th Cir. 2004). Consequently, the term “AttorneyGeneral” in § 1429 now means the “Secretary of Homeland Security.” See 6 U.S.C.§ 557 (“With respect to any function transferred by or under this chapter [principallyenacted by the Homeland Security Act of 2002] . . . and exercised on or after theeffective date of this chapter, reference in any other Federal law to any department,commission, or agency or any officer or office the functions of which are sotransferred shall be deemed to refer to the Secretary [of Homeland Security], otherofficial, or component of the Department [of Homeland Security] to which suchfunction is so transferred.”). Thank you, 10th Circuit! -4-
  5. 5. while removal proceedings were pending, the court could not grant Mr. Awe therelief he sought—remand to the agency with instructions to naturalize him.Therefore, the court dismissed the petition without prejudice under Federal Rule ofCivil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.This appeal followed.II. Discussion Before we can review the district court’s dismissal under Rule 12(b)(6), wemust examine whether this case satisfies the jurisdictional requirements of Article IIIof the Constitution. We may consider such issues for the first time on appeal, seeDias v. City & Cnty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009), and regardlessof the fact that the parties have not raised them, Tandy v. City of Wichita, 380 F.3d1277, 1290 n.15 (10th Cir. 2004). “The mootness doctrine relates to both theconstitutional case or controversy requirement of Article III, as well as the prudentialconsiderations underlying justiciability.” Jordan v. Sosa, 654 F.3d 1012, 1023(10th Cir. 2011) (alterations and internal quotation marks omitted). We areconcerned here with constitutional mootness, and our review is de novo, 1023 n.14. Several circuits that have considered the effect of § 1429 on federal districtcourt jurisdiction over petitions regarding naturalization have concluded that § 1429does not strip jurisdiction, agreeing that the plain terms of the statute prohibit onlythe Attorney General (now the Secretary of Homeland Security, see note 3, supra) -5-
  6. 6. from considering a naturalization application when removal proceedings are pendingagainst an alien. See Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254,258 (3d Cir. 2012); Bellajaro v. Schiltgen, 378 F.3d 1042, 1046 (9th Cir. 2004);Zayed v. United States, 368 F.3d 902, 906 (6th Cir. 2004). The Second and FifthCircuits have not decided the jurisdictional issue but instead have assumed that§ 1429 does not divest the district court of jurisdiction over a petition filed under8 U.S.C. § 1447(b), which grants jurisdiction to the district courts over petitions forreview when the agency takes more than 120 days to issue a determination on anaturalization application.4 See Ajlani v. Chertoff, 545 F.3d 229, 237-38 & n.7(2d Cir. 2008); Saba-Bakare v. Chertoff, 507 F.3d 337, 340 (5th Cir. 2007).5 Of these circuits, four—the Second, Fifth, Sixth, and Ninth—have held that§ 1429 nonetheless precludes district courts from granting relief if removalproceedings are pending, although none expressly rested its disposition on any4 Section 1447(b), titled “Request for hearing before district court,” provides: If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.5 Although Ajlani and, in relevant part, Saba-Bakare involved jurisdiction under§ 1447(b) rather than § 1421(c), we consider their analysis relevant to the question ofwhat effect § 1429 has on judicial review under § 1421(c). -6-
  7. 7. constitutional jurisdictional concern. The Sixth Circuit was the first circuit toaddress the issue, concluding in Zayed v. United States that “the restraints that § 1429imposes on the Attorney General prevent a district court from granting effectiverelief under § 1421(c) so long as removal proceedings are pending.” 368 F.3d at 906.Because “the exclusive power to naturalize aliens rests with the Attorney General”and “§ 1429 bars the use of that power while removal proceedings are pending,” thecourt concluded that “the district court could not properly have ordered the AttorneyGeneral to grant Ms. Zayed’s application for naturalization.” Id. The court alsoconsidered whether any request for declaratory relief that Ms. Zayed might havemade regarding her prima facie eligibility for naturalization might be relevant to amotion to terminate removal proceedings under 8 C.F.R. § 1239.2(f). The courtconcluded that such a request “might well have been a vain act,” id., recognizing that,although the regulation permits an immigration judge to terminate removalproceedings in order “to permit the alien to proceed to a final hearing on a pendingapplication or petition for naturalization,” 8 C.F.R. § 1239.2(f), Ms. Zayed had“already had a final hearing on her application.” Zayed, 368 F.3d at 907. The Ninth Circuit was the next circuit to address the issue. In Bellajaro v.Schiltgen, the agency denied a naturalization application on the ground that removalproceedings were pending. 378 F.3d at 1046. The Ninth Circuit concluded thatunder § 1429, the district court could review that basis for the denial, which wasindisputably correct, but § 1429 precluded the district court from reviewing the -7-
  8. 8. merits of the application and determining in the first instance whether Mr. Bellajarowas entitled to naturalization. Id. The court also rejected the argument that thedistrict court could declare him “eligible for naturalization but for the pendency ofremoval proceedings” in order to “buttress a request that he would like to renewbefore the agency to terminate removal proceedings [under 8 C.F.R. § 1239.2(f)] sothat his application for naturalization may be considered on the merits.” Id. at 1047(emphasis omitted). The court concluded that even though a decision by the Board ofImmigration Appeals (BIA) permitted prima facie eligibility for naturalization to beestablished by a judicial declaration, see In re Cruz, 15 I. & N. Dec. 236, 237(BIA 1975), the BIA could not “confer jurisdiction on federal courts, or enlarge thescope of review, beyond that granted by Congress.” Bellajaro, 378 F.3d at 1046. The Fifth Circuit was next to consider this issue. In Saba-Bakare v. Chertoff,the Fifth Circuit reasoned that invoking jurisdiction under §1447(b) “would be futile”because § 1429 requires an alien to “wait until the termination of the removalproceeding before either a district court or the USCIS entertains a question regarding[a] naturalization application.” 507 F.3d at 340. The court also noted that in light ofa 1990 amendment to § 1421 that moved the sole authority to naturalize aliens fromthe federal courts to the Attorney General, the BIA’s earlier decision in “Matter ofCruz indicates that only an affirmative communication from the USCIS may establishprima facie eligibility.” Id. at 341. Hence, the court said, Cruz provided no basis for -8-
  9. 9. a declaratory judgment by the district court as to Mr. Saba-Bakare’s prima facieeligibility for naturalization. Id. Following on these cases, the Second Circuit took up the issue in Ajlani v.Chertoff, concluding that Mr. Ajlani failed to state a claim for relief under § 1447(b)because § 1429 prohibited the district court from remanding the matter to the agencywith “appropriate” instructions “to admit Ajlani to citizenship in advance of thecompletion of . . . removal proceedings.” 545 F.3d at 239. The court furtherdetermined that, under § 1447(b), the district court could not issue an order ofnaturalization in lieu of the agency because “Congress did not contemplate judicialorders of naturalization under circumstances where Congress has called an explicitstatutory halt to the executive’s ability to give any further consideration to an alien’snaturalization application until removal proceedings end.” Id. at 240.6 The only circuit to reach a contrary conclusion is the Third Circuit inGonzalez v. Secretary of Department of Homeland Security, a case that was decidedduring the briefing of this appeal. In Gonzalez, the court concluded that § 1429 does6 The Fourth Circuit appears aligned with the Second, Fifth, Sixth, and NinthCircuits on the preclusive effect § 1429 has on judicial review, although its viewappears in a different context and is likely dictum. Interpreting 8 C.F.R. § 1239.2(f),the Fourth Circuit concluded that the Department of Homeland Security (DHS) hassole authority to determine prima facie eligibility for naturalization under§ 1239.2(f). Barnes v. Holder, 625 F.3d 801, 806 (4th Cir. 2010). The court rejectedan argument that this interpretation of the regulation deprived the alien of his right tojudicial review under § 1421(c). Id. Citing Zayed and Bellajaro, the court stated thatunder § 1429, “an alien in removal proceedings does not have a right to have hisapplication adjudicated [by the agency],” and therefore “he cannot possibly have aright to have the adjudication judicially reviewed.” Id. at 806-07. -9-
  10. 10. not preclude district courts from granting declaratory relief regarding the denial of anaturalization application. 678 F.3d at 259-61. The Third Circuit reasoned that“[d]eclaratory relief strikes a balance between the petitioner’s right to full judicialreview as preserved by § 1421(c) and the priority of removal proceedings enshrinedin § 1429.” Id. at 260. The court also opined that [d]eclaratory relief, in the form of a judgment regarding the lawfulness of the denial of naturalization, permits the alien a day in court, as required by § 1421(c), while not upsetting the priority of removal over naturalization established in § 1429 because it affects the record for— but not the priority of—removal proceedings, thereby preserving both congressionally mandated goals, a de novo review process and the elimination of the race to the courthouse.Id. at 261. We agree with the shared conclusion of the Third, Sixth, and Ninth Circuitsthat § 1429 does not strip district courts of jurisdiction over petitions regardingnaturalization applications. Plainly, the statutory prohibition refers only to theAttorney General (read: the Secretary of Homeland Security). We also agree with themajority view of the Second, Fifth, Sixth, and Ninth Circuits that removalproceedings, whether in process at the time a § 1421(c) petition is filed or initiatedthereafter, effectively bar federal consideration of § 1421(c) petitions by virtue of§ 1429.7 However, our conclusion as applied to Mr. Awe rests on the doctrine of7 Because only a § 1421 petition is at issue here, any statements we might makeabout § 1447(b) petitions would be dicta. We therefore confine our ensuingdiscussion to the § 1421 petition at issue in this case. - 10 -
  11. 11. constitutional mootness, not whether there has been a failure to state a claim uponwhich relief can be granted.8 As we aptly summarized in Jordan v. Sosa, the doctrine of constitutionalmootness requires that a “controversy must remain alive at the trial and appellatestages of the litigation.” 654 F.3d at 1024 (internal quotation marks omitted). Thefocus is on “whether conclusive relief may still be conferred by the court despite thelapse of time and any change of circumstances that may have occurred since thecommencement of the action.” Id. (internal quotation marks omitted). To avoidmootness, a case must be “amenable to specific relief.” Id. (emphasis and internalquotation marks omitted). The initiation of removal proceedings against Mr. Awe rendered his § 1421(c)petition moot. A ruling by the district court ordering the USCIS to grant Mr. Awe’snaturalization application, which was the substantive focus of his prayer for relief,would be ineffective because of § 1429’s prohibition on agency action during thependency of removal proceedings. Thus, the initiation of removal proceedingsconstituted a “change of circumstances” that precluded any “conclusive” or “specificrelief” by the district court. Id.8 We likely would reach the same conclusion if Mr. Awe had filed his petitionafter the initiation of removal proceedings, as was the case in Bellajaro,Saba-Bakare, and Gonzalez, but under the redressability component of an Article IIIstanding inquiry, not constitutional mootness. See Tandy, 380 F.3d at 1283 (listingelements of standing, including that “it is likely, as opposed to merely speculative,that [a plaintiff’s] injury will be redressed by the relief requested”). - 11 -
  12. 12. Furthermore, on these facts, we do not discern the applicability of anyrecognized exceptions which would preclude our determination that the case is moot.This is not an instance where defendants have voluntarily ceased the offendingconduct. See id. at 1037 (describing voluntary-cessation exception to mootness).Nor is it one where defendants’ challenged conduct is capable of repetition yet wouldevade review. That exception to mootness, which is used only “in exceptionalsituations,” id. at 1035 (internal quotation marks omitted), requires its proponent toshow, “outside of the class-action context,” that “the challenged action was in itsduration too short to be fully litigated prior to its cessation or expiration” and that“there is a reasonable expectation that the same complaining party will be subjectedto the same action again.” Id. at 1035 (brackets and internal quotation marksomitted). The reason Mr. Awe’s § 1421(c) petition is moot is because of the effect§ 1429 has on the agency’s ability to consider his naturalization application, notbecause of any durational characteristic of defendants’ action. And although he did not ask for declaratory relief, such relief also wouldsuccumb to mootness. “[W]here a plaintiff seeks a declaratory judgment against hisopponent, he must assert a claim for relief that, if granted, would affect the behaviorof the particular parties listed in his complaint.” Id. at 1025. Plainly, a declarationby the district court that Mr. Awe met all the requirements for naturalization couldnot affect the behavior of the Secretary of Homeland Security because § 1429 barsher from acting. And to the extent Mr. Awe might seek a judicial declaration as to - 12 -
  13. 13. his prima facie eligibility for naturalization for purposes of terminating his removalproceedings under 8 C.F.R. § 1239.2(f), his case is procedurally analogous to Zayed:he has no pending naturalization application, so the regulation does not afford a basisfor an immigration judge to terminate removal proceedings. See Zayed, 368 F.3dat 906-07. Hence, a declaration regarding prima facie eligibility would not ultimatelyaffect the behavior of any of the parties listed in Mr. Awe’s complaint.9 Finally, to the extent Mr. Awe suggests that the Secretary of HomelandSecurity can avoid judicial review under § 1421(c) by initiating removal proceedingsafter the denial of a naturalization application, we are not at liberty to cast asidejurisdictional requirements of the Constitution or the statutory bar of § 1429. Thisconcern is appropriately addressed to Congress. See Saba-Bakare, 507 F.3d at 341(stating that equitable concerns regarding statutory framework of naturalization andimmigration proceedings “should be addressed to Congress”).9 We note, without expressing an opinion on the matter, the BIA’s post-Cruzconclusion that, in light of the passage of § 1421(a) in 1990, federal courts no longerhave authority to provide declarations of prima facie eligibility; that power “liesexclusively with the DHS.” In re Hidalgo, 24 I. & N. Dec. 103, 105-06 (BIA 2007). - 13 -
  14. 14. III. Conclusion The judgment of the district court is VACATED, and the matter is REMANDED with instructions to dismiss the action without prejudice for lack of jurisdiction. Entered for the Court8 USC §1227. Deportable aliens(a) Classes of deportable aliens(2) Criminal offenses(A) General crimes Jerome A. Holmes. Circuit JudgeThese can be pardoned:.(i) Crimes of moral turpitude(ii) Multiple [CIMT] criminal convictions(iii) Aggravated felony(iv) High speed flight.(vi) Waiver authorizedClauses (i), (ii), (iii), and (iv) shall not apply in thecase of an alien with respect to a criminal conviction ifthe alien subsequent to the criminal conviction hasbeen granted a full and unconditional pardon bythe President of the United States or by theGovernor of any of the several States..Yes, a controlled substance and/or drug traffickingcrime might also be an aggravated felony, a CIMT, orone of "multiple CIMT convictions" BUT it has non-waivable separate bases for removal all by itself! - 14 -
  15. 15. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMAAHMED AWE, ) ) Plaintiff, ) )vs. ) Case No. 10-CV-323-TCK-FHM )JANET NAPOLITANO, Secretary, U.S. )Department of Homeland Security; EMILIO )GONZALEZ, Director, U.S. Citizenship and )Immigration Services, and JOSE OLIVARES, )Field Office Director, USCIS, ) ) Defendants. ) OPINION AND ORDER Before the Court is Defendants’ Motion to Dismiss (Doc. 7).I. Background Plaintiff Ahmed Awe (“Awe”) has been a lawful permanent resident of the United Statessince November 21, 1968. On July 11, 1976, when Awe was eighteen years old, he was arrested forburglary and received a deferred two-year sentence. Approximately two and a half years later, onFebruary 4, 1978, Awe was arrested for “drunkenness.” This charge was later dismissed. OnSeptember 16, 1983, Awe was arrested for possession of marijuana with intent to distribute,possession of cocaine, and maintenance of a house where drugs were kept/sold. Awe entered aguilty plea to these charges and was sentenced to three years imprisonment. Two months later, Awewas arrested for unlawfully possessing a controlled drug, but this charge was dismissed. Awesubsequently received a pardon from the Governor of Oklahoma for the offenses carrying prisontime. On June 27, 2007, Awe filed an Application for Naturalization (Form N-400)(“Application”) on the basis that he had been a lawful permanent resident of the United States for
  16. 16. more than five years and was otherwise eligible for naturalization. Awe appeared for examinationon the Application on June 17, 2008. During the examination, Awe alleges that he disclosed his1983 arrest for drug charges and provided a Tulsa Police Department Criminal History letter, whichshowed the arrests prior to 1983. On August 28, 2009, Awe received notice that he was ineligiblefor naturalization because of his arrest record and his purported failure to disclose his arrests as ateenager. Awe filed a Request for Hearing on a Decision in Naturalization Proceedings (Form N-336),seeking review of the denial of his bid for naturalization before the United States Citizenship andImmigration Services (“USCIS”). On January 26, 2010, USCIS upheld its original decision to denyAwe’s Application, citing “poor moral character” and his prior arrest record as the basis for thedenial. On May 20, 2010, Awe filed a Petition for Review of Denial of Naturalization Application(“Petition”) before this Court pursuant to 8 U.S.C. 1421(c), requesting a de novo hearing on hisApplication and that the Court remand the matter to Defendants with an instruction to grant theApplication. (Pet. §§ II, VI.) Awe maintains his Application should be granted because he “is aperson of good moral character within the meaning of 8 U.S.C. § 1427[,] is otherwise eligible fornaturalization[,] has not been arrested or charged with any offense during the statutory period[,] [andhis Application] cannot be denied solely on the basis of his criminal record from 1983 (and before).”(Pet. § V, ¶ 20.) On August 27, 2010, approximately three months after Awe filed his Petition, the UnitedStates Department of Homeland Security issued a Notice to Appear, and Awe was placed in removalproceedings. (See Notice to Appear, Ex. 1 to Defs.’ Mot. to Dismiss.) Specifically, the Notice toAppear states that Awe is “subject to removal from the United States” pursuant to the following: 2
  17. 17. Section 237(a)(2)(B)(I) of the Immigration and Nationality Act, as amended, in that, at any time after admission, you have been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign county relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 802), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.(Id. at 2.) Defendants now seek to dismiss Awe’s Petition pursuant to Federal Rule of CivilProcedure 12(b)(1) (“Rule 12(b)(1)”), arguing that the filing of removal proceedings against Awedivested this Court of jurisdiction to hear Awe’s Petition. Alternatively, Defendants move todismiss Awe’s Petition pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) forfailure to state a claim because this Court cannot provide effective relief to Awe.II. Motion to Dismiss Standards Federal courts are courts of limited jurisdiction and may exercise jurisdiction only whenspecifically authorized to do so. Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994). “A courtlacking jurisdiction must dismiss the cause at any stage of the proceedings in which it becomesapparent that jurisdiction is lacking.” Scheideman v. Shawnee County Bd. of County Comm’rs, 895F. Supp. 279, 280 (D. Kan. 1995). The party seeking to invoke a federal court’s jurisdiction sustainsthe burden of establishing that such jurisdiction is proper. Winnebago Tribe of Neb. v. Kline, 297F. Supp. 2d 1291, 1299 (D. Kan. 2004). When federal jurisdiction is challenged, plaintiff bears theburden of showing why the case should not be dismissed. Id. Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take oneof two forms. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). “First, amoving party may make a facial attack on the complaint’s allegations as to the existence of subjectmatter jurisdiction.” Id. “In reviewing a facial attack, the district court must accept the allegations 3
  18. 18. in the complaint as true.” Id. “Second, a party may go beyond allegations contained in thecomplaint and challenge the facts upon which subject matter jurisdiction is based.” Id. In reviewinga factual attack, a court “may not presume the truthfulness of the complaint’s factual allegations,[but] has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing toresolve disputed jurisdictional facts.’” Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).In the instant case, Defendants’ Rule 12(b)(1) motion does not challenge the facts as alleged in thePetition and therefore represents a facial attack to Plaintiff’s Petition. See Rahman v. Napolitano,No. 09-3437, 2010 WL 2777271, at *2 (6th Cir. July 13, 2010) (construing defendants’ Rule12(b)(1) motion to dismiss, which argued petition should be dismissed pending removalproceedings, as facial attack). In considering a motion to dismiss under Rule 12(b)(6), a court must determine whether theplaintiff has stated a claim upon which relief may be granted. The inquiry is “whether the complaintcontains ‘enough facts to state a claim to relief that is plausible on its face.’” Ridge at Red Hawk,LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly,550 U.S. 544)). In order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must “‘nudge [ ][his] claims across the line from conceivable to plausible.’” Schneider, 493 F.3d at 1177 (quotingTwombly, 550 U.S. at 570). Thus, “the mere metaphysical possibility that some plaintiff could provesome set of facts in support of the pleaded claims is insufficient; the complaint must give the courtreason to believe that this plaintiff has a reasonable likelihood of mustering factual support for theseclaims.” Schneider, 493 F.3d at 1177. The Tenth Circuit has interpreted “plausibility,” the term used by the Supreme Court inTwombly, to “refer to the scope of the allegations in a complaint” rather than to mean “likely to be 4
  19. 19. true.” Robbins v. Okla. ex rel. Okla. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008).Thus, “if [allegations] are so general that they encompass a wide swath of conduct, much of itinnocent, then the plaintiffs have not nudged their claims across the line from conceivable toplausible.” Id. (internal quotations omitted). “The allegations must be enough that, if assumed tobe true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Id. “This requirementof plausibility serves not only to weed out claims that do not (in the absence of additionalallegations) have a reasonable prospect of success, but also to inform the defendants of the actualgrounds of the claim against them.” Id. at 1248. In addition, the Tenth Circuit has stated that “thedegree of specificity necessary to establish plausibility and fair notice, and therefore the need toinclude sufficient factual allegations, depends on context,” and that whether a defendant receivesfair notice “depends on the type of case.” Id.III. Relevant Law Regarding Naturalization and Removal “Before 1990, naturalization authority and removal authority were vested in differentbranches of government, with naturalization being the province of the courts and removal theprovince of the executive acting through the Attorney General.” Ajlani v. Chertoff, 545 F.3d 229,235 (2d Cir. 2008) (internal citations omitted). This system made it possible for naturalization andremoval proceedings to proceed simultaneously, which would sometimes give rise to a race“between the alien to gain citizenship and the Attorney General to deport him.” Id. (citingShomberg v. United States, 348 U.S. 540, 544 (1955)). In 1990, however, Congress amended theImmigration and Nationality Act (“INA”) so to “unif[y] naturalization and removal authority in theexecutive.” Ajlani, 545 F.3d at 236. Specifically, Congress gave the Attorney General the “soleauthority to naturalize persons as citizens of the United States.” 8 U.S.C. § 1421(a). Congress 5
  20. 20. limited the Attorney General’s authority in 8 U.S.C. § 1429 (“Section 1429”), however, whichprovides in relevant part: [N]o person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act; and no application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceedings pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act. . . .8 U.S.C. § 1429. The 1990 amendments also reserved “a measure of naturalization jurisdiction for the courtsin two circumstances: denial and delay.” Ajlani, 545 F.3d at 236. Pursuant to 8 U.S.C. § 1421(c)(“Section 1421”), which forms the basis for Awe’s Petition, A person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of title 5. Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application.Similarly, if “there is a failure to make a determination” on the naturalization application within 120days after the applicant’s required examination, the alien can ask the district court “for a hearing onthe matter.” 8 U.S.C. § 1447(b) (“Section 1447(b)”). The district court may then “either determinethe matter or remand the matter.” Id. Defendants cite Section 1429 in support of their Motion to Dismiss, arguing that it mandatesdismissal of Awe’s Petition because (1) the filing of removal proceedings divested this Court ofjurisdiction to hear Plaintiff’s Petition, and (2) the Court cannot grant effective relief to Plaintiffbecause it cannot order the Attorney General to do something which is precluded by the mandateof Section 1429. Awe objects, first citing this Court’s authority to review naturalization decisions 6
  21. 21. under Section 1421(c). Awe additionally contends that Section 1429 fails to explicitly divest thisCourt of jurisdiction, as it only states that the “Attorney General” is unable to consider anapplication for naturalization during the pendency of removal proceedings. Finally, Awe argues thatwhen, like here, the removal proceedings are initiated after a petition is filed, the district courtretains all authority and jurisdiction to grant the requested relief.IV. Discussion The issue before the Court is whether Section 1429, which limits the Attorney General’spower to consider naturalization petitions during the pendency of removal proceedings, similarlylimits a district court’s jurisdiction to review naturalization petitions and/or leaves a petitionerwithout any effective remedy from the district court. The Tenth Circuit has yet to address thisspecific issue, and the Court must therefore look to other circuits for guidance. In so doing, itbecomes apparent that there exists a split in authority, as courts confronted with this issue haveadopted one of two prevailing views. Some district court decisions, which are relied upon by Awe,have rejected the arguments advanced by Defendants and held that Section 1429 precludes only theAttorney General from considering a petition for naturalization by an alien against whom removalproceedings are pending and does nothing to affect the district court’s jurisdiction or remediesavailable to it. See Gonzalez v. Napolitano, 684 F. Supp. 2d 555, 560-63 (D.N.J. 2010); Kestelboymv. Chertoff, 538 F. Supp. 2d 813, 818 (D.N.J. 2008); Grewal v. Ashcroft, 301 F. Supp. 2d 692, 695-97 (N.D. Ohio 2004); Saad v. Barrows, No. 03-1342, 2004 WL 1359165, at *5-6 (N.D. Tex. June16, 2004); Ngwana v. Attorney Gen., 40 F. Supp. 2d 319, 321-22 (D. Md. 1999). These courtsgenerally rely on the plain language of Section 1429 and reason that if Section 1429 divested districtcourts of authority to review denials of naturalization applications, the Immigration and 7
  22. 22. Naturalization Service (“INS”) could effectively circumvent judicial review of naturalizationapplications by initiating removal proceedings. See Gonzalez, 684 F. Supp. 2d at 560-61;Kestelboym, 538 F. Supp. 2d at 818; Grewal, 301 F. Supp. 2d at 696-97; Ngwana, 40 F. Supp. 2dat 321-22. In contrast, the Second, Fifth, and Sixth Circuits have dismissed petitions seeking reviewof a naturalization decision when removal proceedings are pending, holding that said proceedingslimit the court’s review pursuant to Section 1421 or Section 1427 and circumscribe the availabilityof effective remedies. See Ajlani, 545 F.3d at 239-241 (holding that the priority afforded removalproceedings by Section 1429 limits the courts’ authority to grant naturalization pursuant to Section1421 or Section 1427) (“[W]e think district court authority to grant naturalization relief whileremoval proceedings are pending cannot be greater than that of the Attorney General.”) (finding thatdistrict court properly dismissed plaintiff’s request for review of naturalization application for failureto state a claim); Saba-Bakare v. Chertoff, 507 F.3d 337, 340 (5th Cir. 2007) (stating that “[Section1429] requires that [plaintiff] wait until the termination of the removal proceeding before either adistrict court or the USCIS entertains a question regarding his naturalization application”) (affirmingdistrict court’s dismissal of petition seeking de novo review of naturalization application pursuantto Section 1421(c)); Zayed v. United States, 368 F.3d 902, 906-07 (6th Cir. 2004) (“The effect of[Section 1429], in our view, is to limit the scope of the court’s review and circumscribe theavailability of effective remedies, but not to oust the district court of jurisdiction.”) (“[T]he restraintsthat [Section 1429] imposes upon the Attorney General prevent a district court from granting reliefunder [Section1421(c)] so long as removal proceedings are pending.”) (affirming district court’sdismissal of plaintiff’s petition for review of naturalization application); see also De Lara Bellajaro 8
  23. 23. v. Schiltgen, 378 F.3d 1042, 1048 (9th Cir. 2004) (citing Zayed with approval); see also Rahman,2010 WL 2777271, at *543 n. 4 (following Zayed and noting that district court opinions going otherway are “against the weight of appellate authority”). The Court agrees with this appellate authority. While the text of Section 1429 does notexplicitly divest this court of jurisdiction during the pendency of removal proceedings, see 8 U.S.C.§ 1429 (stating “no application for naturalization shall be considered by the Attorney General ifthere is pending against the applicant a removal proceedings”); Zayed, 368 F.3d at 906 (finding thatSection 1429 “simply has no bearing on the district court’s jurisdiction to review the administrativedenial of a naturalization application of an alien against whom removal proceedings have beeninitiated”), it necessarily “circumscribes the availability of effective remedies,” Zayed, 368 F.3d at906. Specifically, even if the Court were to conduct a de novo review of the decision to deny Awe’snaturalization application, and even if the Court were to determine that the decision was in error, theCourt cannot grant Awe the relief he seeks. “The exclusive power to naturalize aliens rests with theAttorney General, . . . and [Section 1429] bars the use of that power while removal proceedings arepending.” Id. (additionally noting the “district court could not properly have entered an ordergranting the application without reference to the Attorney General [since] Congress . . . decided thatit would be the Attorney General who should have ‘sole authority to naturalize persons’”) (citing8 U.S.C. § 1421(a)). Therefore, because Section 1429 precludes the Attorney General from grantingnaturalization to Awe due to the pending removal proceedings, Awe cannot currently secure suchrelief from this Court. Ajlani, 545 F.3d at 238 (noting same); see Zayed, 368 F.3d at 906 n.5(questioning holding in Ngwana, 40 F. Supp. 2d at 322, where district court ordered INS to grant 9
  24. 24. application for naturalization despite removal proceedings, by stating “[w]e are something of a loss. . . to understand how judicial fiat can overcome the statutory bar of [Section 1429]”). Further, the Court is not persuaded by Awe’s argument that the timing of the removalproceedings, which were initiated after he filed suit in this Court, necessitates rejection ofDefendants’ Motion to Dismiss. While the Court notes Awe’s concern that under the currentstatutory regime, the Government might initiate removal proceedings simply to obstruct judicialconsideration of naturalization applications, this concern is most appropriately addressed toCongress, and not this Court. See Saba-Bakare, 507 F.3d at 341 (noting that equitable concernsregarding statutory framework governing immigration and naturalization should be addressed toCongress). Further, both the Sixth and Fifth Circuits dismissed petitions under similarcircumstances – namely, where the removal proceedings were initiated after the plaintiff filed forrelief in district court. See Zayed, 368 F.3d at 904, 907 (removal proceedings commenced a “fewweeks” after plaintiff filed petition for review with district court) (“Regardless of when removalproceedings are initiated, the Attorney General may not naturalize an alien while such proceedingsremain pending.”); Ajlani, 545 F.3d at 232, 238 (noting that, like in Zayed, removal proceedingswere initiated after plaintiff filed for judicial relief) (plaintiff filed suit on October 30, 2006 andremoval proceedings formally commenced on December 20, 2006) (finding that district court couldnot grant relief to plaintiff pending said removal proceedings). Therefore, for the reasons outlined herein, the Court finds that Awe’s petition is subject todismissal without prejudice for failure to state a claim upon which relief can be granted.1 Zayed, 1 Because the Court finds that Section 1429 does nothing to divest this Court of itsjurisdiction, the Court finds dismissal appropriate under Rule 12(b)(6), and not Rule 12(b)(1). 10
  25. 25. 368 F.3d at 906-07 (“We believe that the dismissal [without prejudice] of [plaintiff’s] petition forreview must be affirmed. The fact that the statute precludes the relief sought requires this result.”);Ajlani, 545 F.3d at 241 (affirming dismissal for failure to state a claim upon which relief could begranted).V. Conclusion For the reasons outlined herein, Defendants’ Motion to Dismiss (Doc. 7) is GRANTED andthis matter is dismissed without prejudice. A Judgment of Dismissal will be issued forthwith. IT IS SO ORDERED this 6th day of September, 2011. 11