Tran v. Holder et al

Filing 55

ORDER denying 33 respondent's Motion to Dismiss as moot. Signed by Judge Frederick J Martone on 11/9/2011.(KAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Phuong Dien Dang Tran,
Petitioner,

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vs.

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Eric H. Holder, Jr., et al,
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Respondents.
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No. CV-10-1906-PHX-FJM
ORDER

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The court now has before it respondents’ motion to dismiss (doc. 33), petitioner’s
response (doc. 35), and respondents’ reply (doc. 48).

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Petitioner entered the United States on November 16, 1992 as a refugee from

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Vietnam. On November 18, 1992, he adjusted his status to lawful permanent resident. On

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September 20, 2000, he pled guilty to aggravated assault, a class 3 felony. Although the

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crime carried a presumptive sentence of 3.5 years, and a minimum sentence of 2.5 years,

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petitioner was sentenced to probation for three years, with the condition that he be

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incarcerated in the county jail for one month.

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On March 9, 2009, petitioner filed an N-400 naturalization application. On August

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8, 2009, the Citizenship and Immigration Services (“CIS”) denied the petition because

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petitioner failed to establish good moral character. On May 7, 2010, CIS denied petitioner’s

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appeal, concluding that his conviction for an aggravated felony made him ineligible to

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naturalize. On September 7, 2010, petitioner petitioned this court for de novo review of

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CIS’s decision denying his naturalization application, arguing that because he was not

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sentenced to one year or more in prison, his aggravated assault conviction did not render him

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ineligible for naturalization.

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On April 25, 2011, we granted respondents’ motion to remand this case to CIS for
further review of petitioner’s naturalization application.

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On May 17, 2011, Customs and Border Patrol (“CBP”) issued a Notice to Appear

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(“NTA”) and charged petitioner as removable under the Immigration and Naturalization Act,

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8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien who has been convicted of a crime involving

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moral turpitude. Removal proceedings commence with the filing of the NTA under 8 C.F.R.

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§ 1239.1(a). On May 31, 2011, CIS again denied petitioner’s naturalization application, this

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time pursuant to 8 U.S.C. § 1429, because removal proceedings were pending against

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petitioner.

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Under 8 U.S.C. § 1429, “no application for naturalization shall be considered by the

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Attorney General if there is pending against the applicant a removal proceeding.” Similarly,

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when the administrative denial of an application for naturalization is based on § 1429,

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judicial review is limited to that determination. Bellajaro v. Schiltgen, 378 F.3d 1042, 1043,

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1047 (9th Cir. 2004). This is the basis of respondent’s motion to dismiss. Petitioner argues

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that he does not seek review of the denial of his naturalization application based on § 1429.

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Rather, he seeks review of the May 7, 2010 decision denying his application because he was

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convicted of an aggravated felony, making him statutorily ineligible for naturalization.

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Motion to Dismiss, ex. 5.

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At our Rule 16 scheduling conference, we entered an order pursuant to the All Writs

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Act, 28 U.S.C. § 1651, enjoining the government from prosecuting the removal proceeding

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while the case before us was pending (doc. 41). We were concerned that the government

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behaved badly when it simultaneously asked us to remand for reconsideration and then

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initiated removal proceedings instead.

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Nevertheless, on motion of the government, the Immigration Judge entered an order

This was a stay, not an order to dismiss.

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administratively closing the removal proceeding (doc. 53). The government filed an ex parte

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memorandum under seal (doc. 47) attempting to explain what otherwise appeared to be bad

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faith on the part of the government. While the ex parte memorandum may adequately

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address the concerns of bad faith, it does little to explain how the CIS, the CBP, and the

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Department of Justice could be operating at cross purposes, or why the DOJ assumes it is

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subject to the direction of its client, notwithstanding its representations to this court.

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In the motion to dismiss now before us (doc. 33), the government argues that this case

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must be dismissed because of the pending removal proceeding. However, because the

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removal proceeding is no longer pending, the government’s motion to dismiss on that basis

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is moot.

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IT IS ORDERED DENYING respondents’ motion to dismiss as moot (doc. 33).

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DATED this 9th day of November, 2011.

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