Zhu v. US Citizenship and Immigration Services et al

Filing 19

ORDER denying 7 Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim, without prejudice. The Court therefore vacates USCIS's 4 June 2012 decision and remands Zhu's naturalization application to USCIS for further proceedings once Zhu' s removal proceedings have concluded. This case is closed. Signed by Judge D. P. Marshall Jr. on 7/23/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PLAINTIFF

CHENG YAO ZHU
No. 4:12-cv-618-DPM

v.

UNITED STATES CITIZENSHIP
AND IMMIGRATIONS SERVICES et al.

DEFENDANTS

ORDER
1.

Zhu is trying to become a U.S. citizen but his naturalization

application is in limbo. Before U.S. Citizenship and Immigration Services
decided Zhu' s application, Immigration and Customs Enforcement started
removal proceedings against him, saying he lied about his reasons for moving
to the United States. NQ 8-1. The removal proceedings divested USCIS of
jurisdiction over Zhu' s naturalization application. 8 U.S.C. § 1429. In what
all the parties agree was a misstep, USCIS, despite having no authority,
denied Zhu's naturalization application on the merits in Dece1nber 2010.
N!! 9-1. Zhu appealed the denial, which USCIS affirmed in June 2012. N!! 9-2.

Zhu petitions this Court for review. The basis of USCIS' s decision haunts the
case. Did the agency conclude that it had no jurisdiction on the naturalization
issue until removal was resolved or that Zhu' s effort to become a citizen failed
on the merits? USCIS moves to dismiss for various reasons, N!! 7, mostly

because it says this Court lacks jurisdiction to review Zhu' s application.
Alternatively, USCrS says that this Court can provide Zhu no relief in light of
the pending removal proceedings. Ibid.
2. USCIS' s June 2012 appeal decision is a perplexing read. NQ 9-2. It
began by thanking Zhu for requesting a hearing.

Then it provided a

summary conclusion: After a thorough review of the record, users reaffirms
II

the decision to deny your Form N-400 for the following reason(s)." NQ 9-2

at 1. Next, there was a bold heading "Statement of Facts and Analysis
Including Ground(s) for Reaffirming Denial." Ibid. Then USCIS gave two
detailed paragraphs about the evidence and the merits- everything about
Zhu' s allegedly fraudulent paperwork, the facts about his work and
residence, and the testimony and proof at the appeal hearing.
In the next paragraph, USCIS announced its decision.
After a complete review of the information provided on your
Form N-400, Application for Naturalization, the documents
submitted in support of your application and request for hearing,
and the testimony you provided during your naturalization
interview and your N-336 review hearing, USCIS reaffirms the
decision to deny your Form N-400.
Ibid.

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But USCIS then acknowledged, in the very next sentence, its lack of
jurisdiction over the merits of Zhu' s application because of the pending
removal proceedings.
USCIS has determined that you were placed in retnoval
proceedings before an Immigration Judge of the Executive Office
for Immigration Review and have a court date set for October 17,
2012 in Memphis, Tetmessee. Under INA 318, no person may be
naturalized if there is a removal order· currently pending.

Ibid.
The penultimate paragraph directs Zhu to this Court for further review.
This decision constitutes a final administrative denial of your
naturalization application. You may request judicial review of
this final determination by filing a petition for review in the
United States District Court having jurisdiction over your place
of residence. You must file a petition within 120 days of the date
of this notice.
Ibid.

3. Everyone agrees that once removal proceedings began, USCIS had
no jurisdiction over the merits of Zhu's application. 8 U.S.C. § 1429. USCIS
says that its denial on appeal didn't address the merits, but properly
dismissed the claim for lack of jurisdiction under§ 1429. But the USCIS

·This is an error; there was no removal order-only removal
proceedings- against Zhu.
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decision is ambiguous at best. It twice denoted the decision as final, made
after a review of all the available evidence. It directed Zhu to come to this
Court for further relief. Nothing suggested that users intended to revisit
Zhu' s application after removal proceedings ended. At the same time, users
invoked the pending removal proceedings, which had created the bar against
a final naturalization decision.
4. This Court has jurisdiction over Zhu's petition for review. 8 U.S.C.
§ 1421 (c). Whether this jurisdiction ends at considering if § 1429 was
properly applied or extends to the merits of Zhu' s application is just too
murky. This Court cannot meaningfully exercise judicial review in the
circumstances. Given the uncertainty surrounding the USCIS decision, the
common sense solution is to send the matter back to

users.

The agency

needs to clarify its position on Zhu' s application. A remand for clarification
is within this Court's power on de novo review under§ 1421(c). The Court
acknowledges that

users

can't take any action until Zhu's removal

proceedings are resolved. Okay. The same situation would exist if users
had denied Zhu' s appeal only for lack of jurisdiction under § 1429. The
Court therefore vacates USCIS's 4 June 2012 decision and remands Zhu's

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naturalization application to USCIS for further proceedings once Zhu' s
removal proceedings have concluded. USCIS's motion is denied on the
merits to the extent it challenges this Court's jurisdiction to take any action
in the circumstances and is otherwise denied without prejudice.

So Ordered.

v

D.P. Marshall Jr.
United States District Judge
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