Borski v. Lynch et al

Filing 27

OPINION AND ORDER denying 9 Motion for Preliminary Injunction, granting 15 Motion to Dismiss for Lack of Jurisdiction, dismissing without prejudice Plaintiff's claims under § 1447(b) and the Mandamus Act for lack of jurisdiction, dismissing without prejudice Plaintiff's equitable estoppel claim for failure to state a claim. Entered by Judge Raymond P. Moore on 3/27/2017. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore

Case No. 16-cv-00924-RM
PETR BORSKI,,
Plaintiff,
v.
LORETTA E. LYNCH, et al.,
Defendants.
______________________________________________________________________________
OPINION AND ORDER
______________________________________________________________________________
On June 27, 2016, plaintiff Petr Borski (“plaintiff”) filed an Amended Petition for Writ of
Mandamus (“the mandamus petition”) against various U.S. government officials (collectively,
“defendants”), seeking relief so as to, inter alia, compel the U.S. Citizenship and Immigration
Services (“CIS”) to explain why it had not made a determination on plaintiff’s application for
naturalization, compel CIS to render such a determination, and declare that plaintiff had a bone fide
marriage. (ECF No. 14.) Plaintiff seeks relief under the Mandamus Act, 28 U.S.C. § 1361, the
Administrative Procedures Act, 5 U.S.C. §§ 701, et seq. (“the APA”), and the Declaratory Judgment
Act, 28 U.S.C. § 2201, et seq. (Id.)
One day later, defendants filed a motion to dismiss the mandamus petition (“the motion to
dismiss”), pursuant to Fed.R.Civ.P. 12(b)(1) (“Rule 12(b)(1)”) and Fed.R.Civ.P. 12(b)(6)
(“Rule 12(b)(6)”). (ECF No. 15.) Plaintiff has responded in opposition to the motion to dismiss
(ECF No. 22), and defendant has filed a reply (ECF No. 23). Also pending before the Court is

plaintiff’s motion for preliminary injunction (ECF No. 9), to which defendants have responded (ECF
No. 16).
I.

Legal Standards
Motions to dismiss for lack of subject matter jurisdiction take two principal forms: (1) a

facial attack, or (2) a factual attack on the allegations in the complaint. Holt v. United States, 46
F.3d 1000, 1002 (10th Cir. 1995). Here, defendants present a factual attack on the mandamus
petition (ECF No. 15 at 3), and thus, the Court need not presume the truthfulness of the mandamus
petition’s factual allegations and may consider affidavits and other documents, see Holt, 46 F.3d
at 1002. That being said, as far as the Court can discern, defendants do not challenge the factual
allegations of the mandamus petition itself, but, instead, wish to contribute additional facts related
to a notice to appear issued to plaintiff. (See ECF No. 15 at 3.) Given that plaintiff does not dispute
that the notice to appear was issued (see ECF No. 22 at 19), the Court observes no problem with
adding the fact of the issuance of the notice to appear to the facts alleged in the mandamus petition.
In evaluating a motion to dismiss under Rule 12(b)(6), a court must accept as true all wellpleaded factual allegations in the complaint, view those allegations in the light most favorable to the
non-moving party, and draw all reasonable inferences in the plaintiff’s favor. Brokers’ Choice of
America, Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135-36 (10th Cir. 2014); Mink v. Knox, 613
F.3d 995, 1000 (10th Cir. 2010). In the complaint, the plaintiff must allege a “plausible” entitlement
to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556, 127 S.Ct. 1955 (2007).
Conclusory allegations are insufficient. Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009).
A complaint warrants dismissal if it fails “in toto to render [plaintiff’s] entitlement to relief
plausible.” Twombly, 550 U.S. at 569 n.14.
2

II.

Factual Background
Plaintiff is a citizen and national of the Czech Republic. (ECF No. 14 at ¶ 16.) Plaintiff was

inspected and admitted to the United States on a visitor visa on September 8, 2004. (Id. at ¶ 17.)
On July 22, 2005, plaintiff married Michelle Edwards (“Michelle”). (Id. at ¶ 18.) Three years after
their marriage, Michelle submitted an I-130 application, requesting defendants recognize the marital
relationship between plaintiff and Michelle. (Id. at ¶ 19.) At the same time, plaintiff submitted an
I-485 application to adjust his status to that of a lawful permanent resident. (Id. at ¶ 20.) On August
14, 2009, plaintiff and Michelle attended an interview with respect to the I-130 and I-485
applications. (Id. at ¶ 21.) Defendants found that plaintiff and Michelle had a bone fide marriage,
and plaintiff met all other requirements to adjust his lawful permanent resident status. (Id. at ¶ 22.)
Plaintiff’s has been a lawful permanent resident since August 14, 2009. (Id. at ¶ 23.)
On July 21, 2014, plaintiff submitted an application for naturalization. (Id. at ¶ 25.) On
March 23, 2015, plaintiff was ordered to appear for an examination at the Denver Field Office. (Id.
at ¶ 27.) During the examination, plaintiff was given tests on English, U.S. history, and U.S.
government, which he passed. (Id. at ¶ 30.) On the date of the examination, plaintiff was informed
that a decision could not be made on his application at that time. (Id. at ¶ 31.) Around May 5, 2016,
defendants contacted plaintiff’s former spouse, Michelle, and inquired about her relationship with
plaintiff. (Id. at ¶ 32.)1 Around June 1, 2016, defendants again contacted Michelle and inquired
about her relationship with plaintiff. (Id. at ¶ 33.)

1

Despite its obvious importance to the factual background of this case, plaintiff failed to state, in
the factual background section of the mandamus petition, when his marriage to Michelle ended. (See
generally ECF No. 14 at 4-6.) That fact was only provided in plaintiff’s response to the motion to dismiss,
where plaintiff asserted simply that, after a “rough patch,” Michelle and plaintiff ended their marriage
in 2012. (See ECF No. 22 at 3.)

3

On June 14, 2016, CIS issued a notice to appear (“NTA”) to plaintiff, notifying him that he
was removable under the Immigration and Nationality Act (“the INA”). (ECF No. 15-1.) On June
23, 2016, plaintiff was placed in removal proceedings. (ECF No. 15-2 at 1.) On June 24, 2016, CIS
sent plaintiff a letter, notifying him that it was unable to make a decision on his application for
naturalization because he had been placed in removal proceedings. The letter stated that, if
plaintiff’s removal proceedings were terminated by an Immigration Judge, plaintiff could submit a
copy of the termination order and a written request to CIS in order to continue adjudication of the
application for naturalization. (Id.) To date, no decision has been rendered on plaintiff’s application
for naturalization. (ECF No. 14 at ¶ 34.)
III.

Discussion
Defendants argue that the mandamus petition should be dismissed for the following reasons:

(1) this Court lacks jurisdiction because the case is constitutionally moot; (2) even if the case is not
constitutionally moot, plaintiff’s claims are not ripe; (3) even if the case is not constitutionally moot,
plaintiff’s claims are implausible; and (4) to the extent plaintiff challenges CIS’ commencement of
removal proceedings, this Court lacks subject matter jurisdiction. (See generally ECF No. 15.) The
Court turns first to the jurisdictional mootness challenge.
A.

Jurisdiction and Mootness

Defendants’ argument runs as follows. Although an applicant for naturalization may move
for a hearing on his application if a decision is not rendered within 120 days of examination, no such
application can be considered by the Attorney General if there is pending against the applicant a
removal proceeding. (ECF No. 15 at 5-6 (citing 8 U.S.C. § 1447(b) (“§ 1447(b)”), 8 U.S.C. § 1429
(“§ 1429”))). Defendants cite the Tenth Circuit Court of Appeals’ unpublished decision in Awe v.
4

Napolitano, 494 F. App’x 860, 866 (10th Cir. 2012). (ECF No. 15 at 7.) Given Awe’s relevance to
this case, the Court discusses it below.
As an initial matter, it is necessary to note that Awe did not involve the specific issue present
here: specifically, whether § 1447(b) is mooted by § 1429. In Awe, the Tenth Circuit was presented
with whether § 1421(c) was mooted by § 1429. See Awe, 494 F. App’x at 865-866. Section 1421(c)
gives an alien a right to an independent judicial decision following the denial of an application for
naturalization. See 8 U.S.C. § 1421(c). That is obviously not at issue here given that plaintiff’s
application for naturalization has not yet been determined. Nevertheless, the discussion in Awe
between the interplay of § 1421(c) and § 1429 is still helpful and relevant to the issue presented here.
In that case, a lawful permanent resident, Awe, filed an application for naturalization, and
CIS denied the same. Awe, 494 F. App’x at 862. Awe filed a petition for review, pursuant to
§ 1421(c) in a district court, and then, subsequently, was placed in removal proceedings. Id. The
Tenth Circuit first concluded that § 1429 “does not strip district courts of jurisdiction over petitions
regarding naturalization applications.” Id. at 865. The Tenth Circuit then concluded that, by virtue
of § 1429, removal proceedings “effectively bar federal consideration of § 1421(c) petitions”.
Unlike other circuit courts of appeal, the Tenth Circuit based this conclusion upon the doctrine of
constitutional mootness. Id. In clear language, the Tenth Circuit stated that “[t]he initiation of
removal proceedings against Mr. Awe rendered his § 1421(c) petition moot.” Id. at 866. The Circuit
explained that the initiation of removal proceedings constituted a “change of circumstances,”
precluding conclusive or specific relief, thus, bringing into play the constitutional mootness doctrine.
Id. (quotation omitted). The Tenth Circuit also stated that it did not discern the applicability of any

5

recognized exception to the mootness doctrine, as the case did not involve the defendants voluntarily
ceasing the offending conduct or conduct that was capable of repetition. Id.
The Tenth Circuit further concluded that any request for declaratory relief would be moot.
Id. More specifically, the Circuit explained that declaratory relief must affect the behavior of the
parties. The Circuit concluded that any declaration that Awe met the requirements for naturalization
could not affect the behavior of the defendants because § 1429 barred them from acting. Id. The
Circuit concluded that any declaration that Awe was prima facie eligible for naturalization for
purposes of terminating his removal proceeding under 8 C.F.R. § 1239.2(f) (“§ 12392(f)”) was also
moot because there was no pending naturalization application. Id. at 866-867.
Defendants also cite two out-of-circuit cases; both of which involved the interplay of
§ 1447(b) and § 1429. (See ECF No. 15 at 7-8.) In no particular order, in Saba-Bakare v. Chertoff,
507 F.3d 337 (2007), the Fifth Circuit Court of Appeals concluded that, even if jurisdiction existed
under § 1447(b) to review a naturalization application, invoking such jurisdiction would be “futile.”
Id. at 340. More specifically, the Fifth Circuit explained that § 1447(b) only provides a district court
with a means of addressing an administrative delay for a naturalization application that the Attorney
General may consider. The Fifth Circuit further explained that § 1429 does not allow the Attorney
General to consider any naturalization application when a removal proceeding is pending. Thus,
under § 1447(b), a district court could determine the matter or remand for CIS to determine the same,
but, in either instance, any determination would be controlled by § 1429, and that provision requires
an applicant to wait until the termination of removal proceedings. Id. The Fifth Circuit also rejected
the applicant’s contention that jurisdiction existed to issue a declaratory judgment as to his prima
facie eligibility for naturalization. Id. at 340-341. Specifically, the Fifth Circuit concluded that,

6

because, in 1990, the U.S. Congress removed authority from district courts to naturalize aliens and
gave such authority exclusively to the Attorney General, only the Attorney General had authority to
declare an alien prima facie eligible for naturalization. Id. at 341. As a result, the Fifth Circuit
affirmed the district court’s dismissal of the case for lack of subject matter jurisdiction. Id. at 342.
Next, in Ajlani v. Chertoff, 545 F.3d 229 (2d Cir. 2008), the Second Circuit Court of Appeals,
in assuming that the applicant satisfied § 1447(b)’s jurisdictional requirement, concluded that § 1429
“does not permit an alien to state a claim for [ ] relief under § 1447(b) while removal proceedings
are pending against him.” Id. at 237-238. The Second Circuit further explained that § 1447(b)
authorizes a district court to remand a matter “with appropriate instructions,” and instructing CIS
to admit an alien to citizenship in advance of the completion of removal proceedings could not be
an appropriate instruction in light of § 1429. Id. at 238-239 (emphasis omitted). The Second Circuit
also concluded that a district court itself could not admit an alien to citizenship because, in part, such
a court’s authority to grant naturalization relief cannot be greater than that of the Attorney General.
Id. at 239-240. As a result, the Second Circuit affirmed the district court’s dismissal of a claim
under § 1447(b) for failure to state a claim upon which naturalization relief could be granted. Id.
at 241. The Second Circuit also identified no error in the district court not holding the claim in
abeyance pending the conclusion of removal proceedings because the district court did not foreclose
the possibility of refiling if removal proceedings were resolved favorably for the applicant. Id.
Understandably, plaintiff relies upon different cases. Again, in no particular order, plaintiff
cites Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254 (3d Cir. 2012). (ECF No. 22 at 1617.) Gonzalez is procedurally different to the other cases relied upon by the parties in that the case
reached summary judgment, and the district court ruled de novo on the merits of the denial of the

7

applicant’s naturalization application, which itself had been denied on the merits. See Gonzalez, 678
F.3d at 255-256. Because the naturalization application was denied, Gonzalez also involved the
interplay of § 1421(c) and § 1429, rather than § 1447(b). Id. at 258.
As pertinent to the issues here, the Third Circuit concluded that § 1429 did not foreclose
judicial review under § 1421(c) of the denial of a naturalization application, and district courts may
issue a declaratory judgment regarding the lawfulness of such a denial. Id. With respect to
jurisdiction, the Third Circuit distinguished its case, explaining that, unlike a denial of a
naturalization application pursuant to § 1429, the petitioner’s application was denied on the merits,
and thus, jurisdiction was appropriate. Id at 258-259. With respect to declaratory relief, the Third
Circuit found it to be appropriate because it “strikes a balance between the petitioner’s right to full
judicial review as preserved by § 1421(c) and the priority of removal proceedings enshrined in
§ 1429.” Id. at 260.
Next, plaintiff cites Klene v. Napolitano, 697 F.3d 666 (7th Cir. 2012). (ECF No. 22
at 17-18.) Klene again involved the interplay of § 1421(c) and § 1429. Klene, 697 F.3d at 667.
More important for this Court, the Seventh Circuit Court of Appeals in Klene clearly stated its
disagreement with the conclusion reached by the Tenth Circuit in Awe with respect to constitutional
mootness. Id. at 668. Thus, as far as the Court is concerned, the persuasive force of Klene, at least
with respect to the interplay of § 1421(c) and § 1429, is diminished, irrespective of Awe’s nonprecedential status. Nevertheless, in Klene, the Seventh Circuit concluded that a district court has
jurisdiction under § 1421(c) to review the denial of a naturalization application, irrespective of a
pending removal proceeding, and a court may enter a declaratory judgment in an alien’s favor,
including a judgment that a marriage was bona fide. Id. at 668-669. The Seventh Circuit explained

8

that it was possible to allow declaratory relief because the Attorney General had acted on the
petitioner’s application before commencing removal proceedings. Id. at 669. The Seventh Circuit
further explained that, “[i]f the application for naturalization had been pending when the removal
proceedings began, then the Attorney General would not have made a final decision and § 1421(c)
would not have allowed Klene to ask the district court for relief.” Id. at 669.
Plaintiff also cites Martinez v. Johnson, 104 F. Supp. 3d 835 (W.D. Tex. 2015). (ECF No. 22
at 17.) In Martinez, the court, first, found that § 1447(b) vested exclusive jurisdiction in district
courts to adjudicate a naturalization application once a § 1447(b) action is initiated. Martinez, 104
F. Supp. 3d at 839. Next, turning to the effect of § 1429 on the petitioner’s § 1447(b) action, the
district court interpreted the Fifth Circuit’s decision in Saba-Bakare as not completely divesting
courts of jurisdiction over such an action, but, instead, requiring “patience” from an applicant while
removal proceedings were pending. Id. at 841. Finally, the district court, in considering what
remedy was available to the petitioner, found appropriate staying the case until the outcome of the
removal proceeding was determined. Id. at 843.2
Upon this canvas, the Court paints. To begin, it is important to note the difference between
an action under § 1421(c) and one under § 1447(b) because this difference is important and, in part,
results in where the Court eventually ends up. As the Seventh Circuit explained in Klene, an action
under § 1421(c) “gives the alien a right to an independent (‘de novo’) judicial decision,” with respect
to his application for naturalization. Klene, 697 F.3d at 669. Section 1447(b) provides no such
thing. Instead, upon a proper showing of delay, § 1447(b) allows a petitioner to seek judicial help,
2

Plaintiff also cites Ampe v. Johnson, 157 F. Supp. 3d 1 (D.D.C. 2016). (ECF No. 22 at 18.)
However, plaintiff fails to explain how that case is relevant to whether § 1429 prevents this Court from
hearing his § 1447(b) claim, or to any other relevant issue (see id.), and, based upon its own review, the
Court can discern how it is relevant. Therefore, the Court does not address it any further.

9

via a hearing, in removing the delay, with the court either determining the matter or remanding the
matter to CIS to determine “with appropriate instructions.” See 8 U.S.C. § 1447(b). In other words,
a petitioner in a § 1447(b) proceeding does not have a right to an independent de novo judicial
decision. Further, as the Second Circuit explained in Ajlani, the instances when a court should
determine itself the matter of an applicant’s naturalization should be reserved “for those rare
circumstances in which CIS unnecessarily delays the adjudication of an application.” Ajlani, 545
F.3d at 240 (emphasis in original, ellipsis and quotation omitted).
This understanding of the difference between § 1421(c) and § 1447(b) proceedings shapes
the Court’s findings. First, something that may not be undisputed, but should be, this Court has
subject matter jurisdiction over plaintiff’s § 1447(b) proceeding3. The Tenth Circuit reached the
same conclusion in Awe, and, although that involved a § 1421(c) proceeding, the Circuit’s language
covers all petitions regarding naturalization applications. See Awe, 494 F. App’x at 865 (“§1429
does not strip district courts of jurisdiction over petitions regarding naturalization applications.”).
In any event, even if Awe does not reach so far, independently, the Court finds that § 1429 does not
strip jurisdiction from a properly filed § 1447(b) action. The statutory language is clear that this
Court has jurisdiction over such an action. 8 U.S.C. § 1447(b) (“Such court has jurisdiction over
the matter and may determine the matter or remand the matter, with appropriate instructions to [CIS]
to determine the matter.”) (emphasis added).

3

Although there is no claim alleged in the mandamus petition, in their motion-to-dismiss papers,
the parties create an issue over whether this Court has subject matter jurisdiction with respect to the
commencement of removal proceedings against plaintiff. (See ECF No. 15 at 12-13; ECF No. 22 at 26-27.)
To put the parties’ minds at rest, apart from not being a pled claim, the Court has no subject matter
jurisdiction over any hypothetical claim of this ilk in light of 8 U.S.C. § 1252(g), which strips courts of
jurisdiction to hear any claim arising from the decision to commence removal proceedings. Plaintiff’s
arguments to the contrary simply ignore this clear statutory language.

10

Second, in light of Awe, the Court believes the next necessary step to address is whether
plaintiff’s § 1447(b) proceeding is constitutionally moot. In other words, whether plaintiff’s case
is amenable to specific relief or would affect the behavior of defendants. See Awe, 494 F. App’x
at 866-867. Plaintiff asks the Court for the following substantive relief: ordering CIS to explain why
a decision has not been reached on his application for naturalization;4 ordering CIS to render a
decision on plaintiff’s application for naturalization; and declaring plaintiff and Michelle’s former
marriage to have been bona fide.5 (ECF No. 14 at 13.)
As to ordering CIS to render a decision on plaintiff’s application for naturalization, § 1429
clearly prohibits the Court from ordering this relief. To repeat, § 1429 provides that “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”. 8 U.S.C. § 1429 (emphasis added). There is simply nothing more to say
with respect to that request for relief.
The request for this Court to declare that plaintiff and Michelle’s former marriage was bona
fide is a different matter, but the result is ultimately the same. Notably, § 1447(b) does not allow
the Court to provide this type of declaratory relief. That provision provides that a court may either
determine the matter or remand the matter with appropriate instructions. 8 U.S.C. § 1447(b).

4

The Court considers this request for relief to be moot for the simple reason that defendants have
provided plaintiff with a reason for why his application for naturalization has not been decided: § 1429
prevents CIS from further considering the application. (See ECF No. 15-2.) Therefore, the Court does not
further address this request for relief.
5

Plaintiff also asks this Court to estop defendants from challenging the validity of plaintiff’s former
marriage. (ECF No. 14 at 13.) However, that request for relief is not premised upon § 1447(b), but on
principles of equity. (See id. at 11-12). As such, the Court does not address it in this part of its discussion,
but addresses it infra.

11

Plaintiff does not ask this Court to determine his naturalization application, and, even if he did, the
Court would decline to do so. As the Second Circuit observed in Ajlani, there are only narrow
circumstances when a district court should undertake to decide a naturalization application itself;
specifically, those circumstances where CIS “unnecessarily delays” the adjudication of an
application. Ajlani, 545 F.3d at 240 (emphasis in original, quotation omitted). Like in Ajlani, here,
the delay, at least the current delay, is due to Congress calling an explicit halt to CIS’ ability to
further consider plaintiff’s application for naturalization. See id. Thus, the Court would not find the
circumstances here appropriate to determine plaintiff’s matter itself.
This leaves remanding the matter with appropriate instructions, which begs the question can
the Court declare that plaintiff’s former marriage was bona fide as part of the process of remanding
and instructing. The Court thinks not. Assuming, hypothetically, that § 1429 was not at play here,
if the Court made such a declaration and then remanded plaintiff’s matter, effectively, the Court
would be determining plaintiff’s matter itself rather than remanding to CIS to do so. In other words,
based upon the facts before the Court, the only issue that may be left to resolve in plaintiff’s
naturalization proceeding is whether his former marriage was bona fide. If the Court were to make
a declaration as to that issue, there would be nothing left for CIS to determine, thus, obviating the
need to remand the matter to CIS in the first place. Thus, to do so, would effectively write out part
of the remedial language from § 1447(b).

In addition, the Court does not construe the

language—“with appropriate instructions”—as allowing the Court to make findings and issue a
declaratory judgment with respect to plaintiff’s naturalization matter. Those would not be
instructions, but orders.6 Finally, as the Second Circuit explained in Ajlani, if the Court did remand,
6

It is not necessary to resolve the extent of what “appropriate instructions” a court may give CIS.
Whatever that phrase may mean it does not include issuing a declaratory judgment that a marriage is bona

12

the Court could not appropriately instruct CIS to determine plaintiff’s matter because § 1429
prohibits CIS from doing so. See Ajlani,545 F.3d at 238-239.
As such, § 1447(b) does not provide the Court with the capacity to issue the declaratory
judgment plaintiff seeks. In terms of constitutional mootness, the Court, thus, does not find that
plaintiff’s § 1447(b) action is amenable to specific relief or will affect the behavior of the parties.
Even if the Court could theoretically issue the declaratory judgment plaintiff seeks, the Court would
still not find that such a judgment would affect the behavior of the parties. With respect to what
affect such a judgment would have on plaintiff’s application for naturalization, it would be nil
because, as explained, CIS is not currently permitted to make any further determination as to the
same under § 1429.
There is one other potential avenue for plaintiff, assuming the Court could issue a declaratory
judgment: termination of plaintiff’s removal proceeding under § 1239.2(f). That provision, from
plaintiff’s perspective, has the benefit of removing the road block preventing further consideration
of his application for naturalization. See 8 C.F.R. § 1239.2(f). In Awe, the Tenth Circuit was able
to cast aside this provision because there was no pending naturalization application. Awe, 494 F.
App’x at 866. That is not the situation here. However, the Court still does not believe that
§ 1239.2(f) would necessarily affect the behavior of the parties, even if the Court could issue the
declaratory judgment plaintiff seeks.

fide or not. To offer an example of what is appropriate, though, the Court imagines “appropriate
instructions” to mean instructing CIS to promptly resolve an application for naturalization. See Manzoor v.
Chertoff, 472 F. Supp. 2d 801, 810 (E.D. Va. 2007) (citing cases, and remanding to determine a
naturalization application within 120 days of the court’s opinion); Shalabi v. Gonzales, 2006 WL 3032413,
at *6 (E.D. Mo. Oct. 23, 2006) (remanding to resolve “as expeditiously as possible”).

13

Section 1239.2(f) provides that a removal proceeding may be terminated by an immigration
judge “when the alien has established prima facie eligibility for naturalization and the matter
involves exceptionally appealing or humanitarian factors.” As such, two things have to happen. An
alien must establish prima facie eligibility for naturalization. Here, although the Court believes,
based upon the record, that the status of plaintiff’s former marriage may be determinative of
plaintiff’s eligibility for naturalization, that is not necessarily the case. Even if it were, there is still
a second step an alien must establish: that his matter involves exceptionally appealing or
humanitarian factors. The Court is not asked, nor would it be able, to resolve that issue. An
Immigration Judge would be in a far better position that this Court to determine whether appealing
or humanitarian factors exist. Thus, even if the Court were to declare plaintiff’s former marriage to
be bona fide, such a declaration would not necessarily affect the behavior of the parties. See Awe,
494 F. App’x at 866 (explaining that a plaintiff must assert a claim that would affect the behavior
of the parties).
Accordingly, the Court finds plaintiff’s § 1447(b) claims to be constitutionally moot. The
Court also finds that no recognized exception to the mootness doctrine applies here. As the Tenth
Circuit explained in Awe,7 the two exceptions are (1) when the defendant voluntarily ceases its
offending conduct, and (2) when the challenged conduct is capable of repetition yet would evade
review. Awe, 494 F. App’x at 866. Here, the first scenario is not present because defendants have
not voluntarily ceased their offending conduct; plaintiff’s application for naturalization is still
delayed. The second scenario is also not present. Plaintiff asserts that exception does apply because

7

As such, the Court finds plaintiff’s repeated assertions in his response (see ECF No. 22 at 15-16),
that the Tenth Circuit did not address exceptions to mootness in Awe, to be misleading, disingenuous, or
both.

14

he may have to submit another § 1447(b) suit if CIS does not timely decide his application for
naturalization in the future. (See ECF No. 22 at 20.) That statement may turn out to be accurate, i.e.,
plaintiff may have to re-file another § 1447(b) suit in the future, but the legal conclusion plaintiff
draws from that is not accurate. In other words, should plaintiff’s removal proceedings be
terminated, and should plaintiff re-file his § 1447(b) petition, then that petition will be reviewed by
a district court on the merits because there will be no removal proceeding standing in the way. Thus,
the re-filed § 1447(b) suit would not evade review.
As stated, plaintiff cites Gonzalez and Klene, and argues that the Court should follow their
approach. The Court disagrees. Importantly, those cases involve § 1421(c), not § 1447(b).8 Careful
reading of them both reflects that the relief provided in those cases was the direct result of not only
§ 1421(c), but also the fact that the naturalization applications had been denied on the merits.
Notably, both the Third and Seventh Circuits explained that declaratory relief was necessary in order
“to strike[] a balance between the petitioner’s right to full judicial review as preserved by § 1421(c)
and the priority of removal proceedings enshrined in § 1429.” Gonzalez, 678 F.3d at 260 (emphasis
added); see also Klene, 697 F.3d at 669 (“This approach preserves the alien’s entitlement under
§ 1421(c) to an independent judicial decision while respecting the limit that § 1429 places on the
Attorney General’s powers.”). As already explained, no such full judicial review of a plaintiff’s
application for naturalization is at issue here; not least because CIS has not rendered a decision, and
thus, there is nothing to review. All there could be to do, at best, is to remand the matter with
appropriate instructions so that CIS can make a determination. As such, there is no balancing for
the Court to do here, creating the need for declaratory relief. For that simple reason, although Klene
8

Interestingly, plaintiff finds much fault with Awe for being a § 1421(c) case (see ECF No. 22
at 15-16), but no such fault with Klene and Gonzales for being the same type of case.

15

and Gonzalez may make a good case for allowing declaratory relief in the context of a § 1421(c)
proceeding involving an application denied on the merits (keeping in mind the contrary position
taken in Awe), the reasons articulated in those cases for such relief does not apply with anything
close to equal force in a § 1447(b) proceeding such as the one here.
On a final note as to the mootness of plaintiff’s § 1447(b) action, as explained, plaintiff must
show that the action is “amenable to specific relief.” See Awe, 494 F. App’x at 866. As further
explained, this action is not amenable to the specific relief that plaintiff seeks. That is not to say,
however, that in no circumstance could a § 1447(b) action not be amenable to specific relief. For
example, in one of the other cases plaintiff cites, Martinez, the district court stayed a § 1447(b) case,
finding that such relief was appropriate under the statute. This Court does not necessarily disagree
with such an approach. Nonetheless, ordering a stay may not be that different to dismissing a case
without prejudice with leave to re-file should a removal proceeding be terminated in a petitioner’s
favor, see Ajlani, 545 F.3d at 241 (identifying no error in not staying a § 1447(b) claim because the
Second Circuit did not understand the district court to have foreclosed the possibility of refiling if
removal proceedings were resolved favorably to the petitioner), which is precisely what the Court
will be doing in this case.
In sum, the Court finds that plaintiff’s claims relying upon § 1447(b) are constitutionally
moot, and thus, those claims are DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.
B.

Equitable Estoppel

The Court considers plaintiff’s equitable estoppel claim (Claim 4) to be distinct from,
although related to, his claims premised upon § 1447(b).9 In other words, the Court does not find
9

By that, the Court means, although plaintiff brings claims under the APA and the Declaratory
Judgment Act, those statutes are not an independent basis for jurisdiction, instead, jurisdiction must be

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plaintiff’s equitable estoppel claim to be constitutionally moot, not least because defendants do not
make any such argument. (See generally ECF No. 15.) Thus, the Court will address the merits of
the claim.
In the mandamus petition, plaintiff cites Kowalczyk v. I.N.S., 245 F.3d 1143 (10th Cir. 2001),
for the parameters of such a claim. (ECF No. 14 at ¶ 64.) In that case, the Tenth Circuit stated that
the elements of estoppel against a private party are: “(1) the party to be estopped must know the
facts; (2) the party to be estopped must intend that his conduct will be acted upon or must so act that
the party asserting the estoppel has the right to believe that it was so intended; (3) the party asserting
the estoppel must be ignorant of the true facts; and (4) the party asserting the estoppel must rely on
the other party’s conduct to his injury.” Kowalczyk, 245 F.3d at 1149 (quotation omitted). In
addition, when facing the government, a party must show some type of “affirmative misconduct”.
Id. Moreover, in the immigration context, estoppel against the government “has a particularly high
bar.” Id. at 1150. Fundamentally, “[e]quitable estoppel allows one party to prevent another from
taking a legal position inconsistent with an earlier statement or action that places his adversary at a
disadvantage.” Id. at 1149.
Here, plaintiff has not alleged a plausible claim that reaches the “particularly high bar” for
estoppel against the government in the immigration context. Plaintiff focuses his estoppel claim on

established under some other basis, such as § 1447(b). See Devon Energy Prod. Co., L.P. v. Mosaic Potash
Carlsbad, Inc., 693 F.3d 1195, 1202 (10th Cir. 2012) (the Declaratory Judgment Act); Hamilton v.
Gonzales, 485 F.3d 564, 568-569 (10th Cir. 2007) (the APA). With respect to the Mandamus Act, to the
extent it provides an independent source of jurisdiction, to establish jurisdiction thereunder, plaintiff must
show that defendants owe a duty to perform an act that is “ministerial, clearly defined and peremptory.” See
Rios v. Zagler, 398 F.3d 1202, 1206-07 (10th Cir. 2005). Here, although § 1447(b) may allow an applicant
to petition a court when a decision on his application for naturalization has not been made within 120 days,
§ 1447(b) does not require that CIS render a decision within 120 days. Moreover, any such a decision is
not ministerial, and, as this case shows, rendering a decision is circumscribed by § 1429.

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an alleged inconsistent position defendants have taken: whether plaintiff’s former marriage was bona
fide. (ECF No. 14 at ¶¶ 68-70.) Plaintiff asserts that defendants intend to “relitigate” this issue,
which allegedly was decided when plaintiff successfully applied for a visa. (Id. at ¶¶ 66, 69-70.)
There are a host of problems with these allegations, as well as allegations plaintiff does not make.
With respect to the former, the status of plaintiff’s former marriage has never been litigated;
it was adjudicated as bona fide by CIS with respect to plaintiff’ visa application, but that is it. And,
as plaintiff alleges, that adjudication was based upon evidence plaintiff and Michelle provided at the
time. (See id. at ¶ 68.) Apparently, plaintiff wishes CIS to be stuck in an evidentiary vacuum dating
back to plaintiff’s visa application, but plaintiff provides no explanation in law or reason why this
should be the case, especially given that, as plaintiff alleges, facts have changed since his visa was
approved—namely, plaintiff and Michelle are no longer married. (See id. at ¶ 32.) Their separation
may or may not be entirely innocuous, but that is for CIS to investigate, not ignore. Therefore, the
Court does not find that defendants have taken an inconsistent legal position by investigating
plaintiff’s former marriage for purposes of his application for naturalization.
With respect to missing allegations, there are no facts alleged in the mandamus petition with
respect to any of the actual elements of an estoppel claim. Plaintiff does not allege what facts
defendants knew.10 See Kowalczyk, 245 F.3d at 1149. Plaintiff does not allege that defendants
intended their conduct to be acted upon.11 See id. Plaintiff does not allege what facts he was

10

In light of the Court’s discussion supra, defendants could hardly be said to have known of the
end of plaintiff’s marriage when plaintiff’s visa application was approved before that event.
11

Although defendants may have intended plaintiff to act upon the approval of his visa application,
by becoming a legal permanent resident, it can hardly be said that defendants intended plaintiff to act upon
anything related to his application for naturalization, given that the naturalization application was filed after
plaintiff’s visa was approved.

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ignorant.12 See id. Plaintiff does not allege what conduct he relied upon to his injury.13 See id. And,
plaintiff also fails to plausibly allege any affirmative misconduct on defendants’ part. See id. In his
response to the motion to dismiss, plaintiff attempts to paint a picture of misconduct (see ECF No.
22 at 25), but all that plaintiff alleges in the mandamus petition is that defendants contacted Michelle
in May 2016 about her relationship with plaintiff, and then contacted her again one month later (see
ECF No. 14 at ¶ 32-33). Contrary to the speculation plaintiff engages (see ECF No. 22 at 25), it is
simply not plausible that defendants are investigating plaintiff’s former marriage for any reason other
than as part of their responsibilities related to plaintiff’s application for naturalization, rather than
to somehow punish plaintiff for filing the mandamus petition.
As a result, the Court finds that plaintiff has not alleged a plausible claim of equitable
estoppel against defendants. Thus, that claim is DISMISSED WITHOUT PREJUDICE for failure
to state a claim. For the same reasons, plaintiff’s motion for a preliminary injunction (ECF No. 9),
which seeks to enjoin defendants from investigating the validity of plaintiff’s former marriage, is
DENIED.14
IV.

Conclusion
For the reasons discussed herein, the Court GRANTS the motion to dismiss (ECF No. 15)

as follows:

12

Plaintiff may have been ignorant that his marriage would end or that the ending of his marriage
might jeopardize his application for naturalization, but so were defendants.
13

For example, plaintiff fails to allege how he was injured by his visa being approved or his
marriage being adjudicated bona fide for purposes of the visa.
14

The Court adds that the motion for preliminary injunction, which is nominally premised upon a
theory of res judicata, shows no chance of success on the merits, given that res judicata requires a final
judgment on the merits in an earlier action, and there is no allegation in the mandamus petition of a final
judgment being entered, or even that the parties participated, in an earlier action.

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1.

Plaintiff’s claims under § 1447(b) and the Mandamus Act are DISMISSED
WITHOUT PREJUDICE for lack of jurisdiction. To the extent plaintiff’s removal
proceedings are terminated in his favor, this Opinion should not be construed as
preventing plaintiff from re-filing his claims under § 1447(b); and

2.

Plaintiff’s equitable estoppel claim is DISMISSED WITHOUT PREJUDICE for
failure to state a claim.

Plaintiff’s motion for a preliminary injunction (ECF No. 9) is DENIED.
The Clerk is instructed to CLOSE this case.

SO ORDERED.
DATED this 27th day of March, 2017.

BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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