Yith et al v. Johnson et al

Filing 50

MEMORANDUM DECISION and ORDER GRANTING 36 Defendants' Motion to Dismiss and DENYING 32 Plaintiffs' Motion to Amend signed by District Judge Lawrence J. O'Neill on 1/8/2016. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SEANLIM YITH and SEAK LEANG
YITH,
Plaintiffs,

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v.
JEH JOHNSON, et al.,

Case No. 1:14-CV-01875-LJO-SKO

MEMORANDUM DECISION AND ORDER
GRANTING DEFENDANTS’ MOTION TO
DISMISS AND DENYING PLAINTIFFS’
MOTION TO AMEND.

Defendants.
(Docs. 32, 36)

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INTRODUCTION

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Before the Court in the above-styled and numbered cause of action are (1) a motion to

20 dismiss, filed on September 9, 2015, by Defendants Jeh Johson, in his capacity as Secretary for the
21 United States Department of Homeland Security (“DHS”), Leon Rodriguez, in his capacity as
22 Assistant Secretary for the DHS and Director for United States Citizenship and Immigration Services
23 (“USCIS”), Mari-Carmen Jordan, in her capacity as Assistant Secretary for USCIS responsible for the
24 Sacramento field office and the Fresno sub-office, Jonathan Crawford, in his capacity as the Field
25 Office Director for the Fresno sub-office of USCIS (collectively, “DHS Defendants”), and Loretta
26 Lynch, in her capacity as Attorney General of the United States and Secretary of the United States
27 Department of Justice (collectively, “Defendants” or “the Government”) (Doc. 36), opposed by
28 Plaintiffs Seanlim Yith and Seak Leang Yith (Doc. 41); and (2) a motion to amend, filed on August

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20, 2015, by Plaintiffs (Doc. 32), opposed by Defendants (Doc. 37). The motions are appropriate

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for resolution without oral argument. See Local Rule 230(g). Having considered the record in this

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case, the parties’ briefing, and the relevant law, the Court will GRANT Defendants’ motion and

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dismiss this case without prejudice, and will DENY Plaintiffs’ motion to amend.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs are siblings and citizens of Cambodia. Doc. 1 (Complaint) ¶¶ 2-6, 8. Both

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Plaintiffs currently reside in Fresno County, and were residents of Fresno County at all times

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relevant to this action. Id. ¶ 2, 5. Plaintiffs entered the United States on or about March 26, 2006.

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Id. ¶¶ 18, 49. They obtained lawful permanent resident (“LPR”) status in the United States, on or

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about April 3, 2006, through their father, Neth Yith. Id. ¶¶ 4, 7. Plaintiffs’ LPR status will expire

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sometime in 2016. Id. ¶¶ 78, 97.

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On or about February 4, 2011, Seanlim filed a Form N-400, Application for Naturalization

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with USCIS. Id. ¶ 2. Seanlim’s naturalization interview was initially scheduled for July 20, 2011,

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but was cancelled due to “unforeseen circumstances.” Id. ¶¶ 19, 20. On or about December 21,

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2012, Seak Leang filed a Form N-400, Application for Naturalization with USCIS. Id. ¶ 5. Seak

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Leang’s interview was initially scheduled for June 20, 2013, but was also cancelled on account of

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“unforeseen circumstances.” Id. ¶¶ 50-51.

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On or about February 20, 2014, Plaintiffs first contacted USCIS through their attorney to

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inquire about the status of their applications. Id. ¶ 80. They received no response from USCIS until

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April 2014, and were only then told that the adjudication of their applications was “delayed.” Id.

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On May 15, 2014, a USCIS officer emailed Plaintiffs that their cases were “pending” and that a

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“small percentage of cases involving unresolved issues that may result in adjudication delays,” and

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that “[USCIS] [is] unable to determine at this time when the review process will be completed.” Id.

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¶ 86. The email continued, “We understand that your clients may be frustrated . . . However,

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USCIS must balance individual inconvenience against broader issues of public safety and national

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security.” Id. Thereafter, Plaintiffs periodically requested information regarding the status of their

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naturalization applications, but were “rebuffed” every time, and USCIS did not provide any time

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frame as to when their applications might be adjudicated. Id. ¶ 88.
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On October 9, 2014, Plaintiffs again contacted USCIS through their attorney. Id. ¶ 89. They

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received a response on October 24, 2014, in which Defendant Crawford advised Plaintiffs through a

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subordinate, “I do not have an update. Your clients’ cases are both actively pending with USCIS.

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Please refer back to my May 15, 2014 e-mail as to possible reasons. For these very same reasons

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we are unable to determine when the review process for the naturalization applications will be

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completed.” Id.

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On November 25, 2014, Plaintiffs filed the original complaint in this case, over three years

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after Seanlim filed her naturalization application and nearly two years after Seak Leang filed his

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application. Doc. 1. Plaintiffs cited 8 U.S.C. § 1447(b), which authorizes naturalization applicants

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to apply to the relevant district court for a hearing if there is a failure to make a determination 120

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days after a naturalization “examination” occurs. Id., at 2. Plaintiffs alleged that DHS Defendants

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declined to interview them because DHS Defendants had conducted an “examination” of them in

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their absence, and “did not wish to be held accountable to federal law requiring [DHS Defendants]

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to adjudicate a citizenship application within 120 days after examination.” Id. ¶¶ 21, 52. Plaintiffs

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additionally alleged that DHS Defendants delayed the adjudication of their naturalization

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applications because one or more persons who assisted their father in obtaining his LPR status was

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affiliated with former USCIS official Billy Nelms, who has since been prosecuted by the United

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States Department of Justice for bribery and witness-tampering with regard to certain applications

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made by Cambodian citizens, or to Nelms’ wife Sokhon, who is of Cambodian origin. Id. ¶¶ 35, 45,

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66, 70. Plaintiffs claim that the investigation of the United States government into possible

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misconduct by any member of their family began at the same time as the government’s

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investigation of Billy Nelms, and was connected to the unexplained cancellation of their

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naturalization interviews. Id. ¶ 37.

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Moreover, Plaintiffs alleged that they are eligible for naturalization and that they have done

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everything required of them to obtain adjudication from USCIS on their naturalization applications.

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Id. ¶¶ 34, 65. Plaintiffs argued that even if they were found to have committed misconduct with

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regard to their LPR status, that it is unreasonable for Defendants not to have completed the

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investigation of Plaintiffs. Id. ¶¶ 46, 71. With regard to Defendant Lynch1, Plaintiffs claimed that

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the Department of Justice has “borne the responsibility for and have in fact exercised the

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responsibility for conducting whatever investigation of [Plaintiffs] was deemed necessary such that,

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after examination, [they] could either be approved or disapproved as a candidate for United States

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citizenship.” Id. ¶ 30, 61. For these reasons, the complaint requests that the Court order the DHS

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Defendants complete adjudication of their naturalization applications in a certain time frame, and

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for Defendant Lynch to cooperate to that end, or that the Court exercise its own jurisdiction to

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adjudicate their naturalization applications (claims one and two). Id. at 20-21. In the alternative, the

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complaint requests that the Court issue a writ of mandamus to DHS Defendants and Defendant

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Lynch requiring adjudication of their naturalization applications (claims three and four). Id., at 20-

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21. Plaintiffs also seek attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.

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§ 2412(d). Id., at 22.
Defendants filed their first motion to dismiss on February 13, 2015, arguing that because

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Plaintiffs had not yet been “examined” within the meaning of 8 U.S.C. § 1447(b), there was no

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basis for invoking this Court’s jurisdiction. Doc. 19, at 5. However, on February 24, 2015, USCIS

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issued interview notices in connection to Plaintiffs’ naturalization applications, scheduling their

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interviews for March 10, 2015. Doc. 23. In light of this development, on March 2, 2015, the parties

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stipulated to hold the matter in abeyance, and to file status reports by May 1, 2015. Id.
Plaintiffs’ interviews took place as scheduled. Doc. 27, at 3. At their respective interviews,

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Plaintiffs, accompanied by counsel, confirmed that they had never met their U.S. citizen step-

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mother Sarin Meas, who had petitioned for them to enter the United States, and whose relationship

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to them forms the basis of their status in the United States. Doc. 36-1, at 3, 7; Doc. 39, at 1.

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Additionally, Plaintiffs were told, ostensibly for the first time, that in 2011, the DHS had obtained

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an adverse statement from Ms. Meas. Doc. 42, at 6. Plaintiffs and counsel were not shown the

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actual statement at the time of the interview. Id. The interviewing officer told Plaintiffs that they

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The original complaint named Eric Holder as a Defendant in this case. Doc. 1 ¶ 14. Pursuant to Federal Rule of Civil
Procedure 25(d), the Court terminated Eric Holder and substituted Loretta Lynch as a Defendant. Doc. 46.

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were otherwise eligible for naturalization “but for the fact that USCIS believed that the marriage

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leading to their qualifying relationship was a sham.” Id.

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On March 24, 2015, USCIS issued notices of intent to deny Plaintiffs’ naturalization

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interviews. Doc. 26, at 1. According to these notices, USCIS intended to deny Plaintiffs’

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applications on the grounds that they are ineligible for naturalization under section 316 of the

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Immigration and Nationality Act (“INA”). Doc. 36-1, at 3, 7. Specifically, the notices alleged that

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the marriage between Plaintiffs’ father and Ms. Meas “was entered into for the sole purpose of

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granting [Plaintiffs’ father] an immigration benefit,” which under the law, is “invalid from its

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inception and cannot under any circumstances be the basis of a step-relationship under [INA

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§ 101(b)(1)(B)].” Id. Furthermore, the notices quoted a sworn statement taken from Ms. Meas by a

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DHS official, dated September 6, 2011, which reads in its entirety as follows:

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I admit that I married Yith Neth in Fresno, CA for the soul [sic] purpose to get his
permanent residency. I was young at the time and my parents pressured me into marrying
him. I’ve never lived with him and I met him through my father [sic] previous boss at CB
Market. The owner asked my father to ask me if I can marry him. We went to fresno [sic]
and got a marriage license. He paid my parents $6000.00 at that time. The next time I saw
him, I was told to drive to Santa Ana Immigration office. We were interviewed by a male
officer and he told me that he knows and feels this marriage is a fraud. He explained the
consequences and I decided not to go through with the process. That was the last time that I
was with Yith Neth. So, he left to Fresno that same day. We did not have no kind of
contacts [sic] whatsoever ever since. I don’t remember signing any petitions to allow his
childrens [sic] to come to the U.S. I remember signing some immigration forms, but I don’t
remember which paper. I admit that it was a fake marriage from day 1. And I regret it. I
don’t know any immigration offices or if Yith Neth knew any. I’ve never met Yith [sic]
children and it was never the intentions [sic] for them to live with me.

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Id. Plaintiffs responded to those notices on April 24, 2015, arguing that Ms. Meas’s statement is

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insufficient to demonstrate their ineligibility for naturalization. Doc. 27, at 2; Doc. 39-1. To allow

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USCIS time to review Plaintiffs’ responses and issue a decision, the parties stipulated to hold the

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matter in abeyance for an additional sixty days, and file status reports on or by June 30, 2015. Id.

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On June 30, 2015, Plaintiffs and Defendants filed separate status reports. Docs. 27, 29.

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Plaintiffs indicated that they intended to seek leave to amend or supplement their complaint. Doc.

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27, at 4. Defendants indicated that USCIS anticipated adjudicating Plaintiffs’ applications before

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July 8, 2015, 120 days after Plaintiffs were interviewed, and the date that the district court’s
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jurisdiction under 8 U.S.C. § 1447(b) could properly be invoked. Doc. 29, at 2.
On July 24, 2015, the Court ordered Defendants to notify the Court as to whether Plaintiffs’

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naturalization applications had been adjudicated. Doc. 30. On July 31, 2015, Defendants filed a

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notice of administrative action to inform the Court that USCIS had initiated removal proceedings

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against Plaintiffs. Doc. 31.

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On August 20, 2015, Plaintiffs filed a motion to amend their original complaint, arguing

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that because USCIS scheduled and held interviews for Plaintiffs on March 10, 2015, some of the

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allegations in the initial complaint are now outdated and need to be modified or eliminated. Doc.

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32. Defendants opposed this motion. Doc. 37. Because of this motion, the Court administratively

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terminated Defendants’ first motion to dismiss. Doc. 35.
On September 9, 2015, Defendants filed the pending motion to dismiss, citing three grounds

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for dismissal. Doc. 36. First, Defendants contend that the Court should dismiss this action, because

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under their interpretation of 8 U.S.C. § 1429, the initiation of removal proceedings against Plaintiffs

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divests this Court of subject matter jurisdiction. Id., at 6-8. Second, Defendants argue the case is

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now moot because of the pending removal proceedings. Id., at 8. Finally, Defendants argue the

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complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6) because the

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pendency of removal proceedings against Plaintiffs renders the Court unable to provide Plaintiffs

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with the relief they have requested. Id., at 9-10. Defendants attached to their motion copies of the

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Forms I-862, Notices to Appear (“NTA”), dated July 7, 2015, issued to each respective Plaintiff,

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purporting to place both Plaintiffs in removal proceedings under section 240 of the INA. Doc. 36-2.

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Plaintiffs filed an opposition to Defendants’ motion on September 23, 2015. Doc. 41. They

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first argue that Defendants’ motion should be denied because the motion is addressed only to the

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original complaint, and that their motion to amend reveals “fatal flaws” in Defendants’ motion. Id.,

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at 8. Plaintiffs additionally contend the NTAs issued to them are not “warrants of arrest” within the

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meaning of 8 U.S.C. § 1429, and that the NTAs do not preclude the adjudication of Plaintiffs’

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naturalization applications. Id., at 20-22.

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On November 17, 2015, the Court ordered that Defendants submit evidence that Plaintiffs’
NTAs have been filed with the Immigration Court, thereby officially commencing removal
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proceedings against Plaintiffs pursuant to 8 C.F.R. § 1239.1. Doc. 44. Defendants filed this

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evidence on November 20, 2015. Doc. 45. Defendants filed copies of NTAs bearing a “received”

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stamp, indicating that Seanlim’s NTA was filed at the San Francisco Immigration Court on July 28,

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2015, and that Seak Leang’s NTA was filed at the San Francisco Immigration Court on August 3,

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2015. Id., Attachment A. Moreover, Defendants filed a copy of the Notice of Hearing in Removal

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Proceedings, dated November 19, 2015, directing Plaintiffs to appear for a master calendar removal

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hearing at the San Francisco Immigration Court on June 8, 2016. Id., Attachment B. Plaintiffs filed

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a response on November 30, 2015. Doc. 47.
II.

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MOTION TO DISMISS

A. Legal Standard

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1. Federal Court Jurisdiction

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Federal courts are “courts of limited jurisdiction.” Owen Equip. & Erection Co. v. Kroger,

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437 U.S. 365, 374 (1978). They possess only the power authorized by Article III of the United

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States Constitution and statutes enacted by Congress pursuant thereto. See Bender v. Williamsport

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Area Sch. Dist., 475 U.S. 534, 541-42 (1986).

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A federal court is presumed to lack subject matter jurisdiction in a particular case unless the

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contrary affirmatively appears. Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69

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(9th Cir. 1981). Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action due to

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“lack of subject matter jurisdiction.” Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden

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of proving the existence of the court’s subject matter jurisdiction. Kokkonen v. Guardian Life Ins.

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Co. of Am., 511 U.S. 375, 377 (1994). “If the court determines at any time that it lacks subject-

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matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).

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A challenge to subject matter jurisdiction may be facial or factual. White v. Lee, 227 F.3d

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1214, 1242 (9th Cir. 2000). As explained in Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038

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(9th Cir. 2004):

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In a facial attack, the challenger asserts that the allegations contained in a complaint are
insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the
challenger disputes the truth of the allegations that, by themselves, would otherwise invoke
federal jurisdiction.
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The present motion is a facial attack, because Defendants “[contend] that the allegations of

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jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of

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jurisdiction.” See Beco Dairy Automation, Inc. v. Global Tech Sys., Inc., __ F. Supp. 3d __, 2015

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WL 2185121, at *4 (E.D. Cal. May 8, 2015) (internal citation and quotation omitted). In a facial

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attack, “the plaintiff is entitled to safeguards similar to those applicable when a 12(b)(6) motion is

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made.” Id. “The factual allegations of the complaint are presumed to be true, and the motion is

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granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Id.;

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see also Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (“[I]n reviewing a Rule 12(b)(1)

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motion to dismiss for lack of jurisdiction, we take the allegations in the plaintiff’s complaint as

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true.”).
Also embedded in Article III’s limitations on federal court jurisdiction is the doctrine of

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mootness. See Burke v. Barnes, 479 U.S. 361, 363 (1987). A case becomes moot when the issues

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presented are no longer “live” or the parties lack a legally cognizable interest in the outcome of the

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litigation. Powell v. McCormack, 395 U.S. 486, 496 (1969). That is, if events subsequent to the

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filing of the case can solve the parties' dispute, the court must dismiss the case as moot, because the

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court does not have constitutional authority to decide moot cases. Pitts v. Terrible Herbst, Inc., 653

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F.3d 1081, 1086–87 (9th Cir.2011).

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2. Failure to State a Claim

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A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is a challenge to

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the sufficiency of the allegations set forth in the complaint. A 12(b)(6) dismissal is proper where

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there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under

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a cognizable legal theory.” Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In

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considering a motion to dismiss for failure to state a claim, the court generally accepts as true the

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allegations in the complaint, construes the pleading in the light most favorable to the party opposing

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the motion, and resolves all doubts in the pleader’s favor. Lazy Y. Ranch LTD v. Behrens, 546 F.3d

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580, 588 (9th Cir. 2008).

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To survive a 12(b)(6) motion to dismiss, the plaintiffs must allege “enough facts to state a

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claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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“A claim has facial plausibility when the Plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability

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requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

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Id. (quoting Twombly, 550 U.S. at 556). “While a complaint attacked by a Rule 12(b)(6) motion to

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dismiss does not need detailed factual allegations, a Plaintiff’s obligation to provide the ‘grounds’

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of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

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the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations

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omitted). Thus, “bare assertions . . . amount[ing] to nothing more than a ‘formulaic recitation of the

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elements’ . . . are not entitled to be assumed true.” Iqbal, 556 U.S. at 681. “[T]o be entitled to the

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presumption of truth, allegations in a complaint . . . may not simply recite the elements of a cause

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of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable

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the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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In practice, “a complaint . . . must contain either direct or inferential allegations respecting all the

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material elements necessary to sustain recovery under some viable legal theory.” Twombly, 550

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U.S. at 562; see also Starr, 652 F.3d at 1216 (“the factual allegations that are taken as true must

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plausibly suggest an entitlement to relief”). To the extent that the pleadings can be cured by the

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allegation of additional facts, a plaintiff should be afforded leave to amend. Cook, Perkiss and

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Liehe, Inc. v. Northern California Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990)

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(citations omitted).

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B. Discussion

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1. Judicial Review of Naturalization Cases

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Following the direction of other federal courts that have considered scenarios similar to the

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case at bar, the Court first examines the relevant statutes and developments in immigration law

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before turning to the issues presented in Defendants’ motion. See e.g., De Lara Bellajaro v.

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Schiltgen, 378 F.3d 1042, 1045 (9th Cir. 2004); Gonzalez v. Secretary of Dept. of Homeland Sec.,

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678 F.3d 243, 257-58 (3d Cir. 2012); Ajlani v. Chertoff, 545 F.3d 229, 235-36 (2d Cir. 2008);

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Zayed v. United States, 368 F.3d 902, 905 (6th Cir. 2004); Lau v. Holder, 880 F. Supp. 2d 276, 280
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(D. Mass. 2012); Lucaj v. Dedvukaj, 749 F. Supp. 2d 601 (E.D. Mich. 2010). These cases uniformly

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include an explanation of the Immigration Act of 1990, which shaped the jurisdictional framework

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under which this case must be analyzed. See id.
Prior to 1990, the authority to naturalize individuals seeking United States citizenship was

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vested in the Judiciary2, while the authority to remove individuals found to have violated this

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country’s immigration laws was vested in the Executive Branch, through the Attorney General. De

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Lara Bellajaro, 378 F.3d at 1045; Ajlani, 545 F.3d at 229; Zayed, 368 F.3d at 905. As a result,

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because the law did not specify a hierarchy between naturalization and removal proceedings, and

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the two processes were mutually exclusive, it was possible to give rise to what the Supreme Court

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deemed “a race between the alien to gain citizenship and the Attorney General to deport him.”

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Shomberg v. United States, 348 U.S. 540, 544 (1955). “[B]oth the deportation and naturalization

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processes [could] proceed along together until either petitioner’s deportation or naturalization ipso

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facto terminated the possibility of the other occurring.” Id. at 534. This dilemma prompted

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Congress to enact § 1429, which provided that “no petition for naturalization shall be finally heard

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by a naturalization court if there is pending against the petitioner a deportation proceeding . . .” 8

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U.S.C. § 1429 (1952). “Thus, from 1950 to 1990, federal law clearly forbade district courts from

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ruling on naturalization applications while removal proceedings were pending against the alien

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applicant.” Ajlani, 545 F.3d at 236. Courts, including the Ninth Circuit, have interpreted § 1429 as

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indicative of congressional intent that removal proceedings and final removal orders are to take

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precedence over naturalization applications. De Lara Bellajaro, 378 F.3d at 1045-46; Perdomo-

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Padilla v. Ashcroft¸ 333 F.3d 964, 970 (9th Cir. 2003); see also Gonzalez, 678 F.3d at 259; Zayed,

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368 F.3d at 905 (“the history of the Immigration Act [of 1990] does suggest that Congress intended

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removal proceedings to have priority over naturalization proceedings”); Ngwana v. Attorney

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General of the United States, 40 F. Supp. 2d 319, 320 (D. Md. 1999).
The Immigration Act of 1990 abrogated the authority of district courts to naturalize non-

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citizens and conferred the “sole authority to naturalize persons as citizens of the United States” on

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In 1988, 8 U.S.C. § 1421 provided, in relevant part, “[e]xclusive jurisdiction to naturalize persons as citizens of the
United States is conferred upon . . . District courts of the United States . . .”

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the Attorney General. Immigration Act of 1990, Pub. L. No. 101-649, (codified at 8 U.S.C.

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§ 1421(a)) (emphasis added). Accordingly, Congress conformed 8 U.S.C. § 1429 to reflect this

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change, and to read as follows:

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[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 proceeding pursuant to a warrant
of arrest issued under the provisions of this chapter or any other Act.

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8 U.S.C. § 1429 (1990). That district courts no longer have jurisdiction to grant or deny

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naturalization applications in the first instance has been acknowledged by the Ninth Circuit in

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Hernandez de Anderson v. Gonzales, 497 F.3d 927, 932-33 (9th Cir. 2007), overruled on other

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grounds by Cardenas-Delgado v. Holder, 720 F.3d 1111, 1118 (9th Cir. 2013), and De Lara

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Bellajaro,378 F.3d at 1046; see also Gonzalez, 678 F.3d at 257-58 (describing the Immigration Act

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of 1990’s effect on district court jurisdiction over naturalization applications).

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However, the Immigration Act of 1990 did reserve for district courts jurisdiction to review

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naturalization cases under two circumstances: denial and delay. Ajlani, 545 F.3d at 236; Lucaj, at

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608. If a naturalization application is denied, 8 U.S.C. §1421(c) permits the applicant to seek a de

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novo review of this denial in district court. De Lara Bellajaro, 378 F.3d at 1046. Relevant here, if

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there is a delay in a naturalization adjudication, §1447(b) permits the applicant to seek relief in

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district court. Ajlani, 545 F.3d at 237-38. Specifically, §1447(b) provides:

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If there is a failure to make a determination under section 1446 of this title [on a
naturalization application] before the end of the 120-day period after the date on which the
examination is conducted through 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.
8 U.S.C. § 1447(b) (1990).
In 2003, the former Immigration and Naturalization Service, under the Attorney General,

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was dissolved, and many of its functions were absorbed by a new agency, the Department of

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Homeland Security (“DHS”), which is headed by the Secretary of Homeland Security. See

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Homeland Security Act of 2002, Pub. L. 107-296, §§ 402(3), 441(2), 451(b)(2), 116 Stat. 2135,
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2178, 2192, 2196 (codified at 6 U.S.C. §§ 202(3), 251(2), 271(b)(2)). DHS houses a sub-agency,

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USCIS, which, inter alia, adjudicates naturalization applications. 8 U.S.C. § 271(b)(2); Lucaj, 749

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F. Supp. 2d at 607; see also Matter of Hidalgo, 24 I&N Dec. 103, 105-06 (BIA 2007) (the

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“jurisdiction to determine an alien’s eligibility for naturalization ... now lies exclusively with the

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DHS”). Thus, although 8 U.S.C. § 1429 continues to read that “no application for naturalization

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shall be considered by the Attorney General,” because USCIS now has authority over naturalization

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applications, courts have interpreted 8 U.S.C. §1429 as precluding USCIS from adjudicating

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naturalization applications while removal proceedings are pending, despite the statutory text of 8

9

U.S.C. §1429 not reflecting these changes in removal and naturalization proceedings. See, e.g.,

10

Hernandez de Anderson, 497 F.3d at 933 (noting that the authority to naturalize persons as United

11

States citizens was transferred from the Attorney General to the DHS); Saba-Bakare v. Chertoff,

12

507 F.3d 337, 339 (5th Cir. 2007) (“8 U.S.C. § 1429 precludes consideration by the USCIS once

13

removal proceedings have begun”); Ajlani, 545 F.3d at 231 n.2 (“our references throughout this

14

opinion to the authority of the ‘Attorney General’ in the areas of naturalization and removal should

15

be understood to extend to his statutory successor as well as to those immigration agencies to which

16

these officials have delegated some of this authority”); Robertson-Dewar v. Mukasey, 599 F. Supp.

17

2d 772, 782-83 (W.D. Texas 2009) (“The CIS may not consider a [naturalization] application when

18

removal proceedings are pending”). However, the Attorney General, through its sub-agency the

19

Executive Office for Immigration Review, continues to retain authority over removal proceedings.

20

8 U.S.C. § 1252(a)(2)(B) & (g) (2015); Reno v. American-Arab Anti-Discrimination Comm., 525

21

U.S. 471, 487 (1999).

22

2. Plaintiffs are in Removal Proceedings

23

As a preliminary matter, the Court notes that Defendants’ supplemental filing, dated

24

November 20, 2015, unequivocally establishes that Plaintiffs are in removal proceedings. Doc. 45.

25

8 C.F.R. § 1239.1(a) provides that “[e]very removal proceeding conducted under section 240 of the

26

Act to determine the deportability or inadmissibility of an alien is commenced by the filing of a

27

notice to appear with the immigration court.” Defendants submitted evidence that the NTAs issued

28

to both Seanlim and Seak Leang have been filed with the San Francisco Immigration Court, as both
12

1

documents bear a “received” stamp. Id., Attachment A. In their response to Defendants’ filing,

2

Plaintiffs argue that the evidence is insufficient because Defendants have not produced “any papers

3

showing that there has ever been a court filing of a Notice to Appear addressed to Seak Leang

4

Yith.” Doc. 47, at 5 (emphasis in original). However, under the regulations, all that is required to

5

commence removal proceedings is the filing of the NTA with the immigration court. See 8 C.F.R.

6

§ 1239.1; 8 C.F.R. § 1003.14(a) (“Jurisdiction vests and proceedings before an Immigration Judge

7

commence, when a charging document is filed with the Immigration Court by the Service.”).

8

Moreover, Defendants’ second attachment, a Notice of Hearing regarding both Plaintiffs informing

9

them of a master calendar hearing before the San Francisco Immigration Court on June 8, 2016, is

10

further evidence that removal proceedings are ongoing against Plaintiffs. See Doc. 45, Attachment

11

B. Accordingly, the Court may now proceed to the merits of Defendants’ motion, which hinges

12

upon on the fact that Plaintiffs are currently in removal proceedings. See Doc. 36.

13

3. Subject Matter Jurisdiction

14

Defendants first argue that under § 1429, this Court lacks subject matter jurisdiction because

15

Plaintiffs are in removal proceedings. Id., at 7-9. However, the Ninth Circuit’s position on the

16

statutory framework surrounding judicial review of naturalization proceedings, clearly set forth in

17

De Lara Bellajaro, determined that district courts do retain subject matter jurisdiction over

18

naturalization applications in spite of pending removal proceedings and the effect of 8 U.S.C.

19

§1429. 378 F.3d at 1045-47. Accordingly, the Court finds that Defendants’ first argument has been

20

squarely foreclosed by De Lara Bellajaro.3

21

In De Lara Bellajaro, the Ninth Circuit was confronted with the issue of how the provision

22

for judicial review in § 1421(c) for a naturalization denial was affected by the initiation of removal

23
24
25
26
27
28

3

The Ninth Circuit’s rejection of Defendants’ argument has also been adopted by this District in a case substantially
similar to this case, Maxwell v. Holder, 2015 WL 2358698 (E.D.Cal May 15,2015), report and recommendation adopted
in full, Maxwell v. Holder, 2015 WL 4478115 (E.D. Cal July 21, 2015). Notably, Defendants cited Maxwell in support of
their alternative argument that this case should be dismissed for failure to state a claim. Doc. 36, at 10. Defendants have
nevertheless have attempted to advance a legal argument that has been rejected by not only the Ninth Circuit and the
Eastern District, but several other appellate and district courts. Gonzalez, 678 F.3d at 258; Klene, 697 F.3d at 668-69;
Zayed, 368 F.3d at 906; Martinez, 2015 WL 234528 at *5-6. The Court cautions Defendants’ counsel, who was also the
attorney of record in Maxwell, that under Federal Rule of Civil Procedure 11(b), an attorney must certify that “the claims,
defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument by extending,
modifying, or reversing existing law or for establishing new law” (emphasis added). Defendants have not done so in this
case. The Court has limited time and fewer resources to consider legal arguments that are unwarranted by existing law.

13

1

proceedings against the applicant and the language of § 1429 stating that “no application for

2

naturalization shall be considered by the Attorney General” during the pendency of removal

3

proceedings. 378 F.3d at 1046. De Lara Bellajaro adopted the Sixth Circuit’s holding that § 1429

4

“[limits] the scope of review and the relief available,” but does not “[strip] district courts of

5

jurisdiction solely because removal proceedings are pending.” 378 F.3d at 1046 (citing Zayed, 368

6

F.3d 902). This finding was based the statutory language, as § 1421(c) “plainly confers jurisdiction

7

to review the denial of an application for naturalization on district courts,” and “[n]othing in the

8

text limits the jurisdiction so conferred to review of denials when there is no removal proceeding

9

pending.” Id. “By the same token, the text of §1429—which does constrain consideration of

10

naturalization applications during the pendency of a removal proceeding—clearly applies to the

11

Attorney General. There is no hint in the language of § 1429 that it also applies to the courts.” Id.

12

The court then found that there was “no textual basis for concluding that jurisdiction vested in

13

district courts by § 1421(c) is divested by § 1429.” Id.

14

Here, the relevant statute is § 1447(b), which like §1421(c), is a clear grant of jurisdiction to

15

the district court. United States v. Hovsepian, 359 F.3d 1144, 1159-61 (9th Cir. 2004); accord

16

Klene, 697 F.3d at 668 (“Congress has authorized district courts to decide whether aliens are

17

entitled to naturalization. No more is necessary for subject matter jurisdiction”). Section 1447(b)

18

applies in the event of a failure to make a determination on a naturalization application 120 days

19

after the naturalization examination is conducted. Id. In Hovsepian, the Ninth Circuit stated that

20

under § 1447(b), USCIS is required to “make a decision regarding a naturalization application

21

within 120 days of the [USCIS]’s initial interview of the applicant,” and moreover, that the statute

22

“specifies a consequence for failure to meet that deadline, namely, that the district court gains

23

jurisdiction over the matter (upon the applicant’s request).” Id., at 1161. Hovsepian holds that both

24

§ 1421(c) and § 1447(b) give district courts the “final word” on naturalization applications that are

25

either denied or delayed by USCIS, and that the district court’s determination on the issue need not

26

defer to the agency’s findings or conclusions. Id. For this reason, the Court is not persuaded by

27

Defendants’ arguments that De Lara Bellajaro permits the Court only a “limited—and sole—slice”

28

of jurisdiction to review naturalization denials, and that § 1447(b) is merely a “mechanism to avoid
14

1

delay,” not “an additional grant of jurisdiction beyond the statutory bar of §1429.” Doc. 36, at 8

2

(citing Hovsepian, 359 F.3d at 1162). In relying on De Lara Bellajaro in this manner, Defendants

3

have neglected to consider the full extent of the holding in Hovsepian, which broadly construed the

4

grant of jurisdiction conferred to district courts under § 1447(b). 359 F.3d at 1162-63. The Court

5

does not only have jurisdiction to review naturalization denials, but also has jurisdiction over

6

delayed applications. See id. In this case, Defendants have already conceded that the 120-day

7

adjudicatory period was triggered when USCIS interviewed Plaintiffs on March 10, 2015. Doc. 36,

8

at 7. Because more than 120 days have passed since Plaintiffs’ interview on March 10, 2015 and

9

there has not yet been a determination on their applications, the Court now has exclusive

10

jurisdiction over Plaintiffs’ naturalization applications. See Hovsepian, 359 F.3d at 1159-61.
Moreover, pursuant to the principles set forth in De Lara Bellajaro, § 1429 does not strip

11
12

the Court of the jurisdiction conferred by § 1447(b). See 378 F.3d at 1046; see also Klene, 697 F.3d

13

at 669 (“[§1429] tells the Attorney General to put an application aside once removal proceedings

14

begin; it does not issue a similar directive to a court”). Like § 1421(c), nothing in the text of

15

§ 1447(b) “limits the jurisdiction so conferred” to the authority of district courts to hear cases of

16

naturalization applicants who have experienced a delay of longer than 120 days following their

17

interviews only when there are no removal proceedings pending against them. See id. As § 1421(c)

18

and §1447(b) are the statutory bases for judicial review of naturalization applications, the Court is

19

persuaded that De Lara Bellajaro’s analysis of §1421(c) also applies to §1447(b), and there is no

20

authority to suggest that the jurisdictional framework would be different for one section, and not the

21

other. Maxwell v. Holder, 2015 WL 2358698, at *4 (E.D. Cal May 15, 2015) report and

22

recommendation adopted in full, Maxwell v. Holder, 2015 WL 4478115 (E.D. Cal July 21, 2015);

23

see also Hovsepian, 359 F.3d at 1162 (“. . .§1421(c) requires the district court to undertake the

24

same analysis that it must make under § 1447(b). . .”) (emphasis in original). Thus, § 1429 and the

25

pendency of removal proceedings do not divest this Court of subject matter jurisdiction over

26

Plaintiffs’ case, and the motion to dismiss will not be granted on that basis. See id.; De Lara

27

Bellajaro, 378 F.3d at 1046.

28

//
15

1

4. Mootness

2

Defendants next argue that the case is moot4 because § 1429 precludes the Court from

3

naturalizing Plaintiffs or instructing USCIS to naturalize Plaintiffs, and Plaintiffs “no longer

4

maintain any ‘legally cognizable interest in the outcome’ of this case.” Doc. 36, at 9 (citing Murphy

5

v. Hunt, 455 U.S. 478, 481 (1982)). “A claim is considered moot if it has lost its character as a

6

present, live controversy, and if no effective relief can be granted due to subsequent developments.”

7

Cockcroft v. Kirkland, 548 F. Supp. 2d 767, 778 (N.D. Cal. 2008) (citing Flast v. Cohen, 392 U.S.

8

83, 95 (1968)). The Court will only dismiss a case as moot if “it is impossible . . . to grant any

9

effectual relief whatever to the prevailing party.” See Knox v. Serv. Employees, 132 S.Ct. 2277,

10

2287 (2012) (internal quotation marks omitted).
The Court finds that this case involves a “concrete, ongoing controversy” between Plaintiffs

11
12

and USCIS about the bona fides of the marriage between their father and Ms. Meas, which a

13

USCIS official has acknowledged is the only barrier to their eligibility to naturalize. See Klene, 697

14

F.3d at 668. This factual dispute, in turn, appears to be entwined with USCIS’s failure to adjudicate

15

Plaintiffs’ naturalization application in a timely manner, enabling Plaintiffs to invoke this Court’s

16

jurisdiction under § 1447(b). See Maxwell, 2015 WL 2358698 at *4. Although the initiation of

17

removal proceedings against Plaintiffs prevents any consideration of their naturalization

18

applications at this time, the removal proceedings “do not necessarily mean that [Plaintiffs] will be

19

adjudicated removable and thus ineligible for naturalization.” See id. “While removal (or a

20

removability finding) would undoubtedly moot this case by rendering [Plaintiffs] ineligible for

21

naturalization, relief under § 1447(b) will be available if removal proceedings are resolved in

22

[Plaintiffs’] favor.” Id. Because at this time, there has been no such finding as to Plaintiffs’

23

removability that permanently precludes the Court from affording effective relief under § 1447(b),

24

and because it may be possible for removal proceedings to conclude in Plaintiffs’ favor, the Court

25

declines to dismiss this case on the ground of mootness. See Chafin v. Chafin, 133 S.Ct. 1017, 1023

26

(2013) (“As long as the parties have a concrete interest, however small, in the outcome of the

27

4

28

Defendants additionally assert that Plaintiffs lack standing and appear to conflate standing and mootness. Doc. 37, at 6.
However, because their motion makes no legal argument with regard to standing, the Court will not address standing in
this order.

16

1

litigation, the case is not moot”) (internal citations omitted).

2

5. Failure to State a Claim

3

Defendants’ final argument is that the Court should dismiss this case under Federal Rule of

4

Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Doc. 36, at 9.

5

Their argument is premised upon the preclusive effect that §1429 has on the ability for this Court to

6

grant Plaintiffs the relief they seek while removal proceedings are ongoing against them. Id., at 10

7

(citing Maxwell, 2015 WL 2358698 at *4).
Although there is no binding precedent that directly controls the facts presented in this case,

8
9

the Court finds that the reasoning behind Defendants’ final argument is supported by the Second

10

Circuit’s decision in Ajlani, 545 F.3d at 229, which specifically addressed how § 1429 affects a

11

district court’s jurisdiction under § 1447(b). In Ajlani, the petitioner sought to compel USCIS to

12

naturalize him, but the court held that “[§1429] does not permit an alien to state a claim for such

13

relief under § 1447(b) while removal proceedings are pending against him.” 545 F.3d at 238. This

14

holding was grounded in a plain reading of the statutory text of § 1429, which clearly prohibits the

15

Attorney General5 from making a final determination on naturalization while a removal proceeding

16

is pending against the applicant.” Id. While there is no such language directed towards district

17

courts in the text of § 1429, Ajlani found that § 1429 effectively limits a district court’s authority to

18

grant naturalization pursuant to § 1447(b) when removal proceedings are pending. Id., at 239. It is

19

well-established that §1447(b) gives district courts the jurisdiction to “determine” a naturalization

20

matter or remand the matter to USCIS. Hovsepian, 359 F.3d at 1161. Nevertheless, a district court’s

21

authority to grant naturalization under § 1447(b) “could not be greater than that of the Attorney

22

General, to whom Congress has granted ‘sole authority to naturalize persons’ in the first instance.”

23

Ajlani, 545 F.3d at 239 (quoting Zayed, 368 F.3d at 906). Accordingly, if §1429 precludes the

24

Attorney General from granting naturalization to a non-citizen on account of pending removal

25

proceedings, the said non-citizen cannot secure that relief from a district court pursuant to

26
27
28

5

As discussed above, USCIS, not the Attorney General, now has the sole authority to naturalize. 8 U.S.C. § 271(b)(2).
The text of § 1429 has not yet been amended to reflect this change. 8 U.S.C. § 1429 (2015). Although courts have
generally acknowledged that §1429 now applies to USCIS, many of the cases analyzing the statute pre-date the creation
of USCIS and therefore refer to the Attorney General in their analysis. Thus, while the Court is cognizant that USCIS now
adjudicates naturalization, the Court will also refer to the Attorney General in this section for the sake of consistency.

17

1

§ 1447(b). See id. The court then noted that “nothing in the language of §1447(b) requires the

2

conclusion that a district court may properly naturalize an applicant when the Attorney General is

3

statutorily precluded under § 1429 from doing so.” Id. at 240. Accordingly, Ajlani concluded that

4

“[a]s much as the statutory framework permits district courts under § 1447(b) to evaluate

5

naturalization applications where USCIS improperly neglects to do so, it would seem to work

6

against the framework set forth in §§ 1447 and 1429 for the district court to undertake such an

7

evaluation where Congress has expressly prohibited the Attorney General from doing so.” Id. To

8

permit a district court to consider a naturalization application while removal proceedings were

9

pending would run counter to congressional intent that prioritizes removal proceedings over

10

naturalization proceedings and would re-commence the race that Congress sought to end through

11

passing § 1429. See id. (citing Shomberg, 348 U.S. at 544).
Plaintiffs’ opposition does not persuade the Court that it may grant any relief while removal

12
13

proceedings are pending. In their opposition6, Plaintiffs argue that Ajlani was wrongly decided

14

because it largely relies on decisions that analyzed § 1421(c), instead of § 1447(b). However, while

15

Ajlani does indeed rely on § 1421(c) cases, the holding in Ajlani was based upon the panel’s

16

independent analysis of the statutory text of § 1447(b) and the congressional intent behind

17

§ 1429—which is ultimately the reason that this Court finds Ajlani persuasive here. 545 F.3d at

18

240. Plaintiffs further urge the Court to heed Ajlani’s dicta, which acknowledged that the possibility

19

that its holding might “allow the executive to initiate removal proceedings to obstruct judicial

20

consideration of naturalization applications.” Doc. 41, at 18-19 (citing Ajlani, 545 F.3d at 240).

21

Plaintiffs argue that they have pleaded facts sufficient to establish that DHS Defendants have been

22

“obstructive” in this case. Id., at 19. Nevertheless, the Court agrees with the panel in Ajlani, which

23

opined that such claims of abuse are “appropriately addressed on a case-by-case basis through

24

litigation to terminate unwarranted removal proceedings.” 545 F.3d at 241 (citing Ali v. Mukasey,

25

524 F.3d 145, 147-50 (2d Cir. 2008)).

26
27
28

6

Plaintiffs’ opposition also argues that the Court should deny the pending motion to dismiss because this motion is
addressed to their original complaint and that their motion to amend, filed prior to the instant motion to dismiss,
establishes the Court’s subject matter jurisdiction over this case. Doc. 41, at 8-9. However, the Court has already
established that this case should not be dismissed on the basis of subject matter jurisdiction.

18

Finally, Plaintiffs argue that § 1429 “only makes reference to a subset of removal

1
2

proceedings, those commenced ‘pursuant to an arrest warrant,’” and that the NTAs issued to them

3

do not constitute “arrest warrants” within the meaning of §1429.7 Doc. 41, at 20-23; Doc. 47, at 5-

4

6. They further argue that 8 C.F.R. § 318.1, which states that “a notice to appear. . . shall be

5

regarded as a warrant of arrest,” is ultra vires and unenforceable, and that this langue is “necessarily

6

inconsistent with the plain meaning” of § 1429 “because the regulation expands the class created by

7

the statute of a limited class of removal proceedings where the ‘Attorney General’ may no longer

8

act, into a universe of all removal proceedings.” Id. This argument is rejected. Courts have

9

uniformly held that an NTA initiating removal proceedings is a “warrant of arrest” for the purposes

10

of §1429. Klene, 697 F.3d at 670; Gonzalez v. Napolitano, 684 F. Supp. 2d 555, 558 (D.N.J. 2010);

11

Peprah v. U.S. Citizenship and Immigration Servs., 2012 WL 5306849, at *3 n.2 (N.D. Ill. 2012);

12

Zhai v. U.S. Citizenship and Immigration Servs., 2004 WL 1960195, at *2 n.4 (N.D. Cal. 2004).
For these reasons, the Court is compelled to dismiss Plaintiffs’ case for failure to state a

13
14

claim. Like the petitioner in Ajlani, Plaintiffs have requested that the Court order USCIS to

15

adjudicate their naturalization applications or that the Court itself adjudicate the applications. Doc.

16

1, at 20-21. Section 1429 precludes the Court from doing either while Plaintiffs are in removal

17

proceedings. Ajlani, 434 F.3d at 240. According to the Notice of Hearing in Defendants’ November

18

17, 2015 filing, Plaintiffs are scheduled for their first removal hearing on June 8, 2016. Doc. 45,

19

Attachment B. Plaintiffs’ counsel has stated that “the typical timetable for [removal proceedings] is

20

that individual hearings are scheduled for 2-3 years after the ‘master calendar’ (preliminary)

21

hearings.” Doc. 33, at 4. Thus, the Court is mindful that Plaintiffs’ removal proceedings may take

22

7

23
24
25
26
27
28

In support of their argument, Plaintiffs contend that an NTA cannot be considered a “warrant of arrest” because an arrest
“is necessarily custodial in the sense that it entails the prerogative of the sovereign to take the subject of the warrant into
involuntary custody, while a ‘notice to appear’ launching removal proceeding requires only that the person appear before
a hearing.” Doc. 41, at 22. The Seventh Circuit addressed the custodial connotation of the term “warrant of arrest” as it
relates to a notice to appear issued in the immigration context in Klene, as follows:
[T]he agency has issued a regulation providing that a “notice to appear” in a removal proceeding sould be treated
as a “warrant of arrest” too. 8 C.F.R. § 318.1. An agency can’t rewrite statutory terms, but it can define its own
vocabulary. Since “arrest” does not imply custody even in police parlance (full custodial arrests are a subject of
all arrests), there’s no logical problem with an agency calling its official process a “notice to appear” and a
“warrant of arrest at the same time, without needing to issue two separate documents. On this, at least, all other
courts of appeal agree, and we join them.
697 F.3d at 670.

19

1

years to resolve, and while they are pending, the Court may not grant them the relief they have

2

requested. Ajlani, 545 F.3d at 240. Accordingly, the Court finds that dismissal of this case is

3

appropriate. See id. In line with Maxwell, the dismissal shall be “without prejudice to refiling if and

4

when removal proceedings conclude in Plaintiffs’ favor.” 2015 WL 2358698 at *6.
III.

5
6
7

MOTION TO AMEND

A. Legal Standard
Under Federal Rule of Civil Procedure 15(a)(2), “a party may amend its pleading only with

8

the opposing party’s written consent or the court’s leave. The court should freely give leave when

9

justice so requires.” Here, as Defendants oppose Plaintiffs’ motion to amend (Doc. 37), the Court’s

10

leave is required.

11

In the Ninth Circuit, a district court’s discretion to grant leave “is to be applied with extreme

12

liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). That is

13

not to say, however, that leave should be given automatically. Jackson v. Bank of Hawaii, 902 F.2d

14

1385, 1387 (9th Cir. 1990); see also Foman v. Davis, 371 U.S. 178, 182 (1962). The purpose of

15

Rule 15(a)(2) is “to facilitate decision on the merits, rather than on the pleadings or technicalities.”

16

Chudacoff v. Univ. Med. Ctr. Of S. Nev., 649 F.3d 1143, 1152 (9th Cir. 2011). Nevertheless, the

17

“general rule that parties are allowed to amend their pleadings . . . does not extend to cases in which

18

any amendment would be an exercise in futility or where the amended complaint would also be

19

subject to dismissal.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir.1998)

20

(citations omitted). “Futility alone can justify a court’s refusal to grant leave to amend.” Novak v.

21

United States, 795 F.3d 1012, 1020 (9th Cir. 2015) (citing Bonin v. Calderon, 59 F.3d 815, 845 (9th

22

Cir. 1995).

23

B. Discussion

24

Plaintiffs’ motion to amend is essentially two-pronged. The first part of the motion seeks

25

leave to file an amended complaint that “update[s] the claims for relief stated in their first two

26

causes of action,” in light of the fact that their naturalization interviews took place subsequent to

27

the filing of their initial complaint, and requests that the Court adjudicate their applications under

28

§ 1447(b) now that more than 120 days have passed since their interviews occurred. Doc. 32, at 620

1

7; Doc. 34, at 15-16. The second part argues that Plaintiffs should be declared the prevailing parties

2

on the third and fourth claims for relief in their original complaint for the purpose of their request

3

for attorneys’ fees under EAJA, because they claim that DHS Defendants scheduled their

4

naturalization interviews as a result of this suit being filed. Doc. 32, at 7; Doc. 34, 18-22.

5

Defendants oppose the motion to amend in its entirety. Doc. 37.

6

1. 1447(b)

7

Plaintiffs’ motion to amend advances the same arguments contained in their opposition to

8

Defendants’ motion to dismiss—namely, that this Court has subject matter jurisdiction

9

notwithstanding § 1429, and that because more than120 days have elapsed since Plaintiffs were

10

“examined” for the purposes of § 1447(b), the Court now has the authority to adjudicate their

11

naturalization applications. Doc. 34, at 5-13. The Court also notes that the motion to amend, despite

12

purporting to request new forms of relief, actually contains substantially the same requests as the

13

original complaint—namely, that the Court adjudicate their naturalization applications. Doc. 33, at

14

21-22.

15

The Court has already determined that the pendency of removal proceedings against

16

Plaintiffs precludes the Court from granting Plaintiffs the relief that they sought in the original

17

complaint under § 1447(b). To reiterate, the Court may not adjudicate Plaintiffs’ naturalization

18

applications or order USCIS to do so while removal proceedings are pending against Plaintiffs.

19

Ajlani, 545 F.3d at 239. Therefore, for the same reason the Court granted Defendants’ motion to

20

dismiss for failure to state a claim, the Court must now deny this portion of Plaintiffs’ motion to

21

amend as futile. See Novak, 795 F.3d at 1020.

22

2. EAJA

23

Under EAJA, a court shall award fees and other expenses incurred by the “prevailing party”

24

in any civil action brought by or against the United States, unless the court finds that the position of

25

the United States was substantially justified or that special circumstances make an award unjust. 28

26

U.S.C. § 2412(d)(1)(A). The party seeking an award of fees and other expenses must submit an

27

application showing that it is a prevailing party and state the “amount sought, including an itemized

28

statement from any attorney or expert witness representing or appearing on behalf of the party
21

1

stating the actual time expended and the rate at which fees and other expenses were computed.”

2

Hassine v. Johnson, 53 F. Supp. 3d 1297, 1300-01 (E.D. Cal. 2014) (quoting 28 U.S.C.

3

§ 2412(d)(1)(A)).

4

Here, Plaintiffs’ motion to amend requests a “ruling which is one element that would

5

ultimately have to be established for an EAJA award, namely that they were the prevailing parties

6

on the third or fourth claims for relief” because they seek to “preserve the right to prove their

7

entitlement to fees based on their initial third and fourth Claims for Relief.” Doc. 45, at 17, 21.

8

Defendants oppose this request, arguing that Plaintiffs have not established that they are “prevailing

9

parties.” Doc. 37, at 2-3. However, a motion to amend is not the proper forum in which to make

10

these arguments. In this case, as discussed above, there is no non-futile cause of action that would

11

warrant amendment. The proper mechanism is, therefore, a post-judgment motion for fees under the

12

EAJA. See Hassine, 53 F. Supp. 3d. at 1300-01; see also 28 U.S.C. § 2412(d)(1)(B). At this time,

13

the Court expresses no opinion as to the merits of Plaintiffs’ argument or Defendants’ opposition,

14

and declines to address the issue as to whether Plaintiffs may be deemed “prevailing parties” for the

15

purposes of EAJA. To respond otherwise would be for this Court to provide an advisory opinion,

16

which it declines to do.

17
18

CONCLUSION AND ORDERS
The Court is sympathetic to the long delays in the naturalization process—delays that are

19

unfortunately, not uncommon. See, e.g. Aljabri v. Holder, 745 F.3d 816, 817 (7th Cir. 2014) (nine

20

years); Wu v. Rodriguez, ___F. Supp. 3d____, 2015 WL 5000254, at *2 (S.D. Ohio 2015)

21

(seventeen months); Hassine, 53 F. Supp. 3d. at 1299-1300 (three years); Lucaj, 749 F. Supp. 2d at

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603-04 (fourteen years); Al-Mohammed v. U.S. Citizenship and Immigration Servs., 2007 WL

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2004866, at *4 (E.D. Mich. 2007) (four years). While mindful that Defendants have valid concerns

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about national security and administering this country’s process for the admission of individuals

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seeking to naturalize in an orderly and legal manner, the Court is nevertheless troubled and

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disappointed by the Government’s actions and inactions in failing to be timely and forthright with

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Plaintiffs as to the Government’s suspicions about the relationship between Plaintiffs’ father and

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Ms. Meas. It is undisputed in the pleadings and briefs before this Court that the Government began
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1

to question the lawfulness and status of each Plaintiff as early as 2011, yet did not inform Plaintiffs

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of their suspicions until March 10, 2015, and only after this lawsuit had commenced. The

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Government has provided no explanation for the protracted inaction and refusal to explain from

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when they discovered a perceived discrepancy in Plaintiffs’ immigration statuses. The

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Government’s evasive responses to Plaintiffs’ inquiries, and their failure to disclose this

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information to Plaintiffs for four years is insensitive at best. Doc. 42. The federal government of the

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United States should not only be held to a high standard to carry out its duties with integrity, but

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should hold itself to such a high standard. The facts and reasons that were available to the

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Government have not changed since the initial inquiry by Plaintiffs. Nothing about those facts or

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reasons explains either the secrecy or the delay, and that delay caused unnecessary emotional

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trauma to Plaintiffs, as well as wasted legal fees and costs to file the instant case. The Government

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can and should do better than it did in this factual scenario.

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For these reasons:

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1. Defendants’ Motion to Dismiss (Doc. 36) is GRANTED and Plaintiffs’ Complaint

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(Doc. 1) is DISMISSED WITHOUT PREJUDICE;
2. Plaintiffs’ Motion to Amend (Doc. 32) is DENIED.
IT IS SO ORDERED
Dated: January 8, 2016
/s/ Lawrence J. O’Neill
United States District Judge

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