Nuzaira Rahman v. Michael Chertoff, et al

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OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 28(g). Ralph B. Guy , Jr., AUTHORING Circuit Judge; Danny J. Boggs, Circuit Judge and Jeffrey S. Sutton, Circuit Judge.

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Case: 09-3437 Document: 006110677966 Filed: 07/13/2010 Page: 1 N O T RECOMMENDED FOR FULL-TEXT PUBLICATION F ile Name: 10a0419n.06 N o . 09-3437 U N I T E D STATES COURT OF APPEALS F O R THE SIXTH CIRCUIT FILED Jul 13, 2010 LEONARD GREEN, Clerk N U Z A IR A M. RAHMAN, P lain tiff -A p p e llan t, v. J A N E T NAPOLITANO, EMILIO T. GONZALES, a n d MARK B. HANSEN, Defendants-Appellees. O n Appeal from the United S ta te s District Court for the N o rth e rn District of Ohio at C l e v e la n d / B efore: G U Y , BOGGS, and SUTTON, Circuit Judges. P la in tiff Nuzaira Rahman appeals from the R A L P H B. GUY, JR., Circuit Judge. d ism issal of her pro se complaint requesting that the district court adjudicate her application f o r naturalization or remand the matter for adjudication by the United States Citizenship and Im m ig ra tio n Services (USCIS) pursuant to 8 U.S.C. 1447(b).1 The district court dismissed th e 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. P la in tif f claims that it was error for the district court (1) to conclude that 1429 deprived the 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. 1 Case: 09-3437 Document: 006110677966 Filed: 07/13/2010 Page: 2 No. 09-3437 2 d istrict court of jurisdiction under 1447(b); and (2) to reject her plea to vacate the USCIS's s u b s e q u e n t denial of her application for naturalization, the error being either (a) because the d is tric t court's jurisdiction under 1447(b) is exclusive, or (b) because the USCIS was p re c lu d e d from doing so by the limitations of 1429.2 F ind in g that 1429 limits the district court's authority to grant relief under 1447(b), o r determine the USCIS's jurisdiction or authority to act on the delayed application for n a tu ra liz a tio n , we affirm the dismissal of the complaint without prejudice. I. P la in tif f Nuzaira Rahman, a native and citizen of Bangladesh, received Lawful P e rm a n e n t Resident (LPR) status on November 17, 2000. In May 2004, plaintiff applied for n a tu ra liz a tio n as the spouse of a United States citizen.3 Plaintiff was examined for n atura liza tio n on November 26, 2004, and passed all the tests that were administered. More th a n 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 (u n d e r her married name) with several offenses. In January 2007, after her husband was c o n v ic te d at trial of multiple offenses, plaintiff pleaded guilty to one count of furnishing in a c c u ra te information to the Commissioner of Social Security and was sentenced to two ye a rs ' probation. She claims that she believed that this conviction would not result in her 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 2 Plaintiff also has five children who are United States citizens. Case: 09-3437 Document: 006110677966 Filed: 07/13/2010 Page: 3 No. 09-3437 re m o v a l. H o w e v e r, on April 7, 2008, the Department of Homeland Security (DHS) served p lain tiff with a Notice to Appear, which charged her with removability on account of both th a t 2007 conviction and an undisclosed 1998 order of removal that was entered in absentia. A tta c k in g the removal from more than one direction, plaintiff sought to vacate her c o n v ic tio n , tried to halt the removal proceedings, and instituted this action to obtain a d e c is io n on the four-year-old application for naturalization. S p e c if ic a lly, not having appealed her judgment of conviction or filed a 2255 motion, p lain tiff moved to vacate her conviction by filing a petition for writ of error coram nobis in th e district court. That petition was denied, and an appeal is currently pending in this court. P lain tiff also filed unsuccessful motions (1) to terminate the removal proceedings to permit h e r to proceed to a final decision on the application for naturalization, and (2) to stay the rem o v al proceedings so that a motion to reopen the prior in absentia order of removal could b e heard. Although defendants indicate that an evidentiary hearing was held in the removal p ro c e e d in g s on July 27, 2009, it appears that the removal proceedings remain pending at this tim e . T h is action was filed on August 22, 2008, a few months after removal proceedings w e re initiated, invoking the district court's jurisdiction under 1447(b) to hear the matter b e c au s e the USCIS had not acted within 120 days of her examination. On September 3, 2 0 0 8 , before defendants were properly served, the USCIS issued a written decision denying p la in tif f 's application for naturalization. That order referred not only to the pending removal 3 Case: 09-3437 Document: 006110677966 Filed: 07/13/2010 Page: 4 No. 09-3437 4 p ro c e e d in g s, but also to plaintiff's failure to disclose in the application her involvement with c rim in a l activity or the prior order of removal. Defendants moved to dismiss the complaint fo r improper service, which defendants concede was rectified on October 3, 2008. Plaintiff's re sp o n s e to this motion also asked the district court to vacate the recent denial of her a p p lic a tio n for naturalization. P la in t if f moved for summary judgment in her favor, and defendants' response in c lu d e d a motion to dismiss on alternative grounds of mootness and lack of subject matter ju risd ictio n . The district court concluded that it lacked subject matter jurisdiction while re m o v a l proceedings were pending. Denying plaintiff's motion for summary judgment and g ra n tin g defendants' motion to dismiss, the district court dismissed the complaint without p re ju d ic e in an order entered on February 12, 2009. re c o n sid e ra tio n , which was denied. This appeal followed. II. W e review de novo a district court's decision to dismiss for lack of subject matter ju ris d ic tio n under Fed. R. Civ. P. 12(b)(1), except that when a district court inquires into the f a c tu a l basis for jurisdiction the factual findings are reviewed for clear error. See Memphis B io fu e ls , 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 d e p e n d on factual findings, we consider defendants' motion to be a facial attack on ju ris d ic tio n that is to be reviewed de novo. A. S e c tio n s 1447(b) and 1429 Plaintiff filed a motion for Case: 09-3437 Document: 006110677966 Filed: 07/13/2010 Page: 5 No. 09-3437 5 U n til the adoption of what would become 1429, "the usual practice had been `for b o th the [removal] and naturalization processes to proceed along together until either [the] p e titio n e r's [removal] or naturalization ipso facto terminated the possibility of the other o c c u rrin g ." 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 n a tu ra liz a tio n and removal in 1950 by adopting a priority provision declaring, in part, that " n o petition for naturalization shall be finally heard by a naturalization court" while d e p o rta tio n proceedings were pending against the applicant. Ajlani v. Chertoff, 545 F.3d 2 2 9 , 236 (2d Cir. 2008) (quoting Internal Security Act of 1950, Pub. L. No. 81-831, 27, 64 S ta t. 987, 1015, reenacted as INA 318 (codified at 8 U.S.C. 1429)). P r io r to 1990, authority to naturalize an alien was vested in the district courts, and re m o v a l was entirely the province of the Attorney General. Zayed, 368 F.3d at 905. In 1990, w ith the intention of streamlining the process, Congress unified naturalization authority and re m o v a l 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 s o by expressly conferring on the Attorney General the "sole authority to naturalize persons a s 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 h e a r in g before an immigration officer, 8 U.S.C. 1421(c), or to hear the matter on a request b y the applicant if the Attorney General fails to act within 120 days after the examination is c o n d u c te d , 8 U.S.C. 1447(b). The priority provision was also amended to conform to these Case: 09-3437 Document: 006110677966 Filed: 07/13/2010 Page: 6 No. 09-3437 6 c h a n g es such that it now reads, in pertinent part, that "no application for naturalization shall b e considered by the Attorney General if there is pending against the applicant a removal p ro c e e d in g pursuant to a warrant of arrest[.]" 8 U.S.C. 1429 (as amended) (emphasis a d d e d ). Plaintiff relies on this language to argue that 1429 applies only to the Attorney G e n e ra l and not the district court. T h is court's decision in Zayed was one of the first to confront the issue of whether 1 4 2 9 , as amended, restricts the power of the district courts. The question presented in Zayed w a s whether 1429 precluded the district court from reviewing a final administrative denial o f naturalization once removal proceedings had been initiated. 368 F.3d at 903. The g o v e rn m e n t argued, as it does here, that 1429 operated to deprive the district court of s u b je c t matter jurisdiction as long as removal proceedings were pending against the a p p lic a n t. We rejected this contention and held that the effect of 1429 "is to limit the scope o f the court's review and circumscribe the availability of effective remedies, but not to oust th e district court of jurisdiction expressly conferred on it by the very act of Congress that a m e n d e d 1429." Zayed, 368 F.3d at 906. T h a t is, the court held, a district court exercising jurisdiction under 1421(c) may o n ly review those decisions that 1429 would permit the Attorney General to make while re m o v a l proceedings are pending. Id. This would permit a district court to make a threshold d e ter m in a tio n as to whether an application for naturalization was properly denied on the basis o f pending removal proceedings. Id. However, when an application for naturalization is d e n ie d on grounds other than the pendency of removal proceedings, the limitations of 1429 Case: 09-3437 Document: 006110677966 Filed: 07/13/2010 Page: 7 No. 09-3437 7 w o u ld prevent the district court from granting effective relief under 1421(c). Id. Because th e latter was the case in Zayed, the decision to dismiss without prejudice was affirmed. A c c o rd De Lara Bellajaro v. Schiltgen, 378 F.3d 1042, 1047 (9th Cir. 2004).4 B o u n d by the essential holding in Zayed concerning the effect of 1429 in an action u n d e r 1421(c), we conclude, as other courts have, that 1429 similarly limits the scope of th e district court's review and circumscribes the available remedies in an action brought u n d e r 1447(b) when removal proceedings are pending against the applicant. See Ajlani, 5 4 5 F.3d at 238-39; Saba-Bakare v. Chertoff, 507 F.3d 337, 341 (5th Cir. 2007). Section 1 4 4 7 (b ) permits an alien whose application for naturalization has not been determined within 1 2 0 days after examination to apply to the district court for a hearing, and expressly states th a t the district court "has jurisdiction over the matter and may either determine the matter o r remand the matter, with appropriate instructions, to the [USCIS] to determine the matter." W h e n removal proceedings are pending, however, the district court may not compel the U S C IS to grant the delayed application for naturalization, nor remand to the USCIS to c o n sid e r the delayed application. As the Second Circuit held in Ajlani, adopting the re a so n in g of Zayed and Saba-Bakare, "an alien cannot claim a form of relief pursuant to 1 4 4 7 (b ) that is forbidden by 1429." Ajlani, 545 F.3d at 238. T h e re is no basis to conclude that Congress intended to alter the long-standing priority 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. 4 Case: 09-3437 Document: 006110677966 Filed: 07/13/2010 Page: 8 No. 09-3437 8 th a t removal proceedings are to have over naturalization proceedings. As the Second Circuit e x p la in e d in Ajlani: M in d f u l that the animating principle behind 1447(b) relief is the need to protect against executive delay, we conclude that Congress did not co n tem p late judicial orders of naturalization under circumstances where C o n g re ss has called an explicit statutory halt to the executive's ability to give a n y further consideration to an alien's naturalization application until removal p ro c e e d in g s end. Like the Sixth Circuit, we think district court authority to g ra n t naturalization relief while removal proceedings are pending cannot be g re a te r than that of the Attorney General. See Zayed v. United States, 368 F.3d a t 906. To hold otherwise would be to restart the race that Congress attempted to end between naturalization and removal proceedings in the Internal Security A c t 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 p a r tic u la rly inappropriate, i.e., where information belatedly comes to the e x e cu tiv e 's attention indicating not only that an alien's naturalization a p p lic a tio n may have been improvidently granted but also that the alien s h o u ld , 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 a n d 1429 for the district court to undertake [an evaluation of a naturalization application] w h e re Congress has expressly prohibited the Attorney General from doing so." Id. C o n v in ce d that 1429 should be read to restrict the scope of the district court's a u th o rity under 1447(b), as we have held it does for claims under 1421(c), we conclude th a t the district court was not deprived of subject matter jurisdiction. However, because re m o v a l proceedings were (and still are) pending, the district court was precluded from g ra n tin g relief pursuant to 1447(b) by either adjudicating the application for naturalization o r remanding to the USCIS with instructions that it do so. Accordingly, it was not error to d is m is s the plaintiff's 1447(b) claims without prejudice. B. U S C I S ' s Denial of Naturalization Case: 09-3437 Document: 006110677966 Filed: 07/13/2010 Page: 9 No. 09-3437 9 P lain tiff also contends that the district court erred by ignoring her request to vacate th e USCIS's decision denying naturalization after this action was filed. Defendants relied o n that decision in seeking dismissal of the 1447(b) claims as moot, but plaintiff did not req u est leave to amend her complaint to seek review of the denial under 1421(c).5 Rather, p la in tif f 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 d e c is io n on the application for naturalization while removal proceedings were pending. T h e first of these issues--whether 1447(b) grants the district court exclusive or c o n c u r re n t jurisdiction over the pending application for naturalization--is a matter of first im p re ss io n in this circuit. Courts in three other circuits have held that once an action is p rop erly 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. 2 0 0 4 ) (en banc) (reaching different result than the vacated panel decision); Etape v. Chertoff, 4 9 7 F.3d 379, 385, 388 (4th Cir. 2007) (2-1) (abrogating Kia v. INS, 175 F.3d 1014 (4th Cir. 1 9 9 9 ) (Table)); Bustamante v. Napolitano, 582 F.3d 403, 405 (2d Cir. 2009); see also AlM a le k i v. Holder, 558 F.3d 1200, 1205 n.2 (10th Cir. 2009) (declining to answer the q u e stio n , 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 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. 5 Case: 09-3437 Document: 006110677966 Filed: 07/13/2010 Page: 10 No. 09-3437 10 d elayed application for naturalization even after an action has been filed under 1447(b). T h is view is ably articulated by the district court in the now-reversed decision in Bustamante. S e e Bustamante, 533 F. Supp.2d 373, 381 (S.D.N.Y. 2008), rev'd 582 F.3d 403 (2d Cir. 2 0 0 9 ); see also Martinez v. Sec., DHS, 670 F. Supp. 2d 1325, 1329 (M.D. Fla. 2009); H a m d a n v. Chertoff, 626 F. Supp. 2d 1119, 1137-38 (D.N.M. 2007). W e do not reach this question, however, because we find that the district court's au tho rity to examine the USCIS's decision was circumscribed by 1429. Indeed, plaintiff's se c o n d argument calls attention to the limitations of 1429 by arguing that the USCIS did n o t have authority to deny the application for naturalization while removal proceedings were p e n d in g . The cases that address the question of exclusive versus concurrent jurisdiction do n o t offer any guidance, as none of those cases also involved a denial of a delayed application f o r naturalization while removal proceedings were pending. T h is court's decision in Zayed described the effect of 1429, stating that when the a d m in is tra tiv e denial is based on pending removal proceedings, "the district court's de novo re v ie w is limited to a review of that threshold determination." 368 F.3d at 906. Having e x te n d e d application of 1429 to the district court as we have, whether the action is brought u n d e r 1421(c) or 1447(b), we also find that 1429 prevents a district court from granting th e relief requested here--declaration that the USCIS's denial of naturalization was either w ith o u t jurisdiction (because 1447(b) grants the district court exclusive jurisdiction), or w ith o u t authority (because 1429 precluded consideration of the application during the p e n d e n c y of removal proceedings). Completely aside from plaintiff's failure to amend or to Case: 09-3437 Document: 006110677966 Filed: 07/13/2010 Page: 11 No. 09-3437 11 e x h a u st administrative remedies, we find that the district court was precluded from granting th e relief requested while removal proceedings were pending. A c c o rd in g ly, the district court's dismissal of the plaintiff's 1447(b) claims without p re ju d ic e , and without determining the USCIS's jurisdiction or authority to decide the d e l a ye d application for naturalization, is AFFIRMED.

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