Al-Harbi v. Kramar, et al.

Filing 26

ORDER granting Defendants' 22 Motion to Dismiss; denying as moot Plaintiff's 18 Motion to Assume Jurisdiction; directing the Clerk to terminate this action. Signed by Judge G Murray Snow on 3/3/11.(REW)

Al-Harbi v. Kramar, et al.

Doc. 26

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Ahmed Al-Harbi, ) ) ) ) ) ) ) ) ) ) ) No. CV-10-600-PHX-GMS ORDER

9 Plaintiff, 10 vs. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Eric H. Holder, Jr., et al., Defendants.

Pending before the Court are Plaintiff's Motion to Assume Jurisdiction (Doc. 18) and Defendants' Motion to Dismiss for Lack of Jurisdiction (Doc. 22). For the reasons stated below, the Court grants the Motion to Dismiss for Lack of Jurisdiction and denies as moot Plaintiff's Motion to Assume Jurisdiction. BACKGROUND On July 14, 2003, Plaintiff Ahmed Al-Harbi ("Al-Harbi") filed an application for naturalization with Citizenship and Immigration Services ("CIS"), a bureau within the Department of Homeland Security. CIS is required to interview each applicant for naturalization. Once the interview takes place, CIS has 120 days to decide whether the applicant will be granted citizenship. 8 U.S.C. §§ 1446­1447. CIS interviewed Al-Harbi on January 27, 2004, but a determination was not made within the 120-day deadline.1

The 120-day period begins to run after the applicant's first interview. See United States v. Hovsepian, 359 F.3d 1144, 1151 (9th Cir. 2004) (en banc).

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On March 8, 2010, Al-Harbi filed suit in this Court, petitioning for writ of mandamus and declaratory judgment under 28 U.S.C. § 1361, 28 U.S.C. § 2201, and 5 U.S.C. § 702. A few months later, Plaintiff amended his Complaint, asserting only his statutory right to judicial intervention pursuant to 8 U.S.C. § 1447(b). Plaintiff requested that we either adjudicate his application de novo or compel CIS to promptly adjudicate it. After the Court accepted jurisdiction pursuant to § 1447(b), Defendants requested that we remand the case to CIS with specific instructions because they were prepared to act on Plaintiff's application, but required a remand order in order to do so. Al-Harbi opposed Defendants' motion, but filed his own cross-motion for limited remand requesting a modified set of instructions based on those proposed by Defendants. Cognizant of the fact that Plaintiff's application had been pending for seven years, the Court, on July 20, 2010, remanded the case with specific instructions to CIS for adjudication of Plaintiff's citizenship application. (Doc. 17). In that Order, the Court instructed CIS to comply with the following instructions: (1) No later than 5 business days from the date of this Order, CIS shall send to Plaintiff an interview Notice and Request for Evidence (RFE), along with any other notice required by law. (2) CIS shall schedule the Re-Interview no later than 20 business days after the day the Interview Notice is sent to Plaintiff. (3) CIS shall adjudicate the application and issue a decision no later than 10 business days after the Re-Interview or 10 business days after the date it receives the documents subject to a RFE, whichever is later. (4) If the application is approved, CIS shall issue an oath ceremony notice to Plaintiff no later than 5 business days after the date a decision is issued. (5) If CIS fails to make a timely decision, Defendants will notify the Court within 5 business days. On July 22, 2010, two days after the Court's remand order, CIS sent Plaintiff an Interview

24 Notice and RFE for two current photographs. Plaintiff was re-interviewed on August 3, 2010, 25 and on that same date, a second RFE was issued, requesting a significant amount of 26 additional documentation related to Al-Harbi's arrest record, including, but not limited to, 27 police reports, pre-sentence reports, plea agreements, court dispositions, driving record, as 28 -2-

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well as copies of his passport and travel documents. On September 2, 2010, Plaintiff submitted his response to the second RFE. Plaintiff alleges that CIS violated the Court's instructions by not including a request for all of the evidence they required as part of the first RFE, and prior to his re-interview. He interprets 8 C.F.R. § 335.3 to so require.2 Additionally, Plaintiff alleges that much of the evidence requested by the second RFE was duplicative of documents he had already provided. As a result, on August 23, 2010, Plaintiff filed a Motion asking the Court to once again assume jurisdiction. On September 17, 2010, ten business days after CIS received the documents subject to the second RFE, and while Plaintiff's Motion was still pending with this Court, CIS issued its decision, denying, without prejudice, Al-Harbi's application pursuant to § 316(a)(3) of the Immigration and Nationality Act for failure to satisfy the good moral character requirement. (Doc. 23, Ex. 1). Defendants now move to dismiss the case for lack of jurisdiction while Plaintiff alleges that this Court retains jurisdiction because of CIS' alleged violation of this Court's July 2010 Order. LEGAL STANDARD It is a fundamental precept that federal courts are courts of limited jurisdiction. Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978). A Rule 12(b)(1) motion to dismiss "for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a `speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). "In resolving a

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8 C.F.R. § 335.3 provides:

(b) Rather than make a determination on the application, the Service officer may continue the initial examination on an application for one reexamination, to afford the applicant an opportunity to overcome deficiencies on the application that may arise during the examination. The officer must inform the applicant in writing of the grounds to be overcome or the evidence to be submitted. -3-

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factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A district court is not limited to considering the allegations in the pleadings so long as the "jurisdictional issue is separable from the merits of [the] case." Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). The Court is "free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). "A dismissal for lack of subject matter jurisdiction is a final judgment." Whisnant v. United States, 400 F.3d 1117, 1180 (9th Cir. 2005). DISCUSSION Once a naturalization application is filed, the CIS employee designated to conduct an examination "shall make a determination as to whether the application should be granted or denied, with reasons therefor." 8 U.S.C. § 1446(d). There are two primary avenues by which applicants can invoke the jurisdiction of a district court in the context of naturalization proceedings. First, if the Service fails to make a determination on the naturalization application within 120 days of the first interview, the applicant can request the district court to take jurisdiction pursuant to 8 U.S.C. § 1447(b). Alternatively, once a denial decision is issued, and after an immigration officer has upheld the denial, the applicant may appeal the decision to a district court pursuant to 8 U.S.C. § 1421(c).3 Plaintiff only seeks to invoke this

Pursuant to 8 U.S.C. § 1447(a), "[i]f after an examination under § 1446 of this title, an application for naturalization is denied, the applicant may request a hearing before an immigration officer." If the examiner upholds the denial on appeal, the applicant may appeal the decision to a district court pursuant to 8 U.S.C. § 1421(c). "Such review shall be de novo, and the [district] 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." 8 U.S.C. § 1421(c). -4-

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Court's jurisdiction pursuant to § 1447(b), and explicitly states that he is not seeking review pursuant to §1421(c). (Doc. 24). In his Amended Complaint, Plaintiff sought jurisdiction pursuant to 8 U.S.C. § 1447(b), which provides that if CIS fails to a make a determination on a naturalization petition within 120 days after the date on which the examination is conducted, "the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter." Specifically, Al-Harbi requested that the Court either adjudicate his application de novo or, in the alternative, compel CIS to promptly adjudicate it. The court to which application is made "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." 8 U.S.C. § 1447(b). In United States v. Hovsepian, the Ninth Circuit held that § 1447(b) gives the district court exclusive jurisdiction over a pending naturalization application when: (1) over 120 days pass from the date of the initial CIS examination; (2) the applicant properly invokes the court's authority; and (3) there are no deportation proceedings pending against the applicant. 359 F.3d 1144, 1164 (9th Cir. 2004) (en banc). When the Court initially assumed exclusive jurisdiction pursuant to § 1447(b), it could have either determined the matter on the merits or remanded, with appropriate instructions, to CIS for adjudication. 8 U.S.C. § 1447(b); Hovsepian, 359 F.3d at 1161. Because Defendants stated that CIS was prepared to act on Plaintiff's application, but that a remand from this Court was needed first, this Court remanded to CIS, with appropriate instructions, on July 20, 2010. (Doc. 17). Hovsepian clarifies that the wording of §1447(b) "shows that Congress intended to vest power to decide languishing naturalization applications in the district court alone, unless the court chooses to `remand the matter' to the INS, with the court's instructions." 359 F.3d at 1160. Nevertheless, when the Court remanded this matter to CIS on July 20, 2010, its jurisdiction over Plaintiff's application ceased. Based on the text of § 1447(b), the context of related statutory provisions, and Congress' policy objectives, the statute does not allow for concurrent jurisdiction. Id. at 1159­1161 ("By providing that the court may `remand the -5-

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matter, with appropriate instructions, to the Service to determine the matter,' § 1447(b) allows the district court to order the INS to adopt the court's fact-finding and conclusions, a hierarchical result that is more consistent with exclusive jurisdiction than with concurrent jurisdiction."). When Plaintiff filed a second Motion to Assume Jurisdiction pursuant to § 1447(b) based on CIS' failure to follow this Court's remand order, neither the second motion nor CIS' alleged failure to abide by the Court's remand order automatically resulted in re-vesting jurisdiction in this Court. Indeed, the Court had not ruled on Plaintiff's Motion to Assume jurisdiction when CIS issued its decision.4 Thus CIS retained the jurisdiction to make a binding determination, which it did, prior to this Court's ruling on Plaintiff's request that this Court retake jurisdiction. In doing so, CIS mooted Plaintiff's motion.5 The significant relief that plaintiff obtained through this litigation was getting his naturalization application adjudicated. Section 1447(b) is "a statutory check on what could otherwise amount to an infinite amount of time available to the government in which to render a decision on the application[.]" Alghamdi v. Ridge, 2006 WL 5670940, *5 (N.D.Fla. Sept. 25, 2006). The Ninth Circuit has noted that "[a] central purpose of [§ 1447(b)] was to reduce the waiting time for naturalization applicants." Hovsepian, 359 F.3d at 1163 (citing H.R.Rep. No. 101-87, at 8 (1989); 135 Cong. Rec. H4539-02, H4542 (1989) (statement of Rep. Morrison)). At the time Al-Harbi filed his Complaint, his naturalization application had been pending for approximately seven years. Plaintiff's action put an end to the delay in processing his application by obtaining a Court order that forced CIS to decide his case in a timely manner. Less than two months after the Court remanded his case to CIS, Al-Harbi was issued a decision. Section § 1447(b) does not provide this Court with jurisdiction to provide any post-decision relief because of an unfavorable decision. Thus, even assuming

CIS issued its decision on Al-Harbi's application 4 days before Al-Harbi filed his reply to the pending Motion to Assume Jurisdiction. Even assuming that the Court retained concurrent jurisdiction for the purpose of enforcing its own order, CIS could issue a final decision on Plaintiff's application until the Court issued an order depriving CIS of jurisdiction. -65

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that CIS did not follow the spirit of this Court's remand order, Plaintiff received the relief he initially sought from this Court, namely compelling CIS to adjudicate his application, prior to this Court resuming jurisdiction. Further, Plaintiff has not alleged any prejudice specifically arising from CIS' alleged failure to follow this Court's order. Once CIS issued its decision, Plaintiff's cause of action became moot because the Court was no longer able to grant effective relief. See GTE California, Inc. v. F.C.C., 39 F.3d 940, 945 (9th Cir. 1994) ("Where events have occurred that prevent us from granting effective relief, we lack jurisdiction and must dismiss the appeal." (quoting Enrico's, Inc. v. Rice, 730 F.2d 1250, 1254 (9th Cir. 1984))); Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir. 1978) (noting that where the activities sought to be enjoined or ordered have already occurred, and the court cannot undo what has already been done, the action is moot). Now that CIS has denied Plaintiff's application for naturalization, he must exhaust his administrative remedies with respect to the denial decision before he may appeal to the district court pursuant to 8 U.S.C. § 1421(c).6 IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss (Doc. 22) pursuant to Federal Rule 12(b)(1) is GRANTED. IT IS FURTHER ORDERED that Plaintiff's Motion to Assume Jurisdiction (Doc. 18) is DENIED as moot. IT IS FURTHER ORDERED that the Clerk of the Court is directed to terminate this action. DATED this 3rd day of March, 2011.

The Court need not independently dismiss Plaintiff's claims against FBI Director Robert S. Mueller because a dismissal for lack of subject matter jurisdiction is a final judgment and, in this case, pertains to all of the named Defendants. -7-

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