Hua v. Holder et al

Filing 22

ORDER denying 14 Motion to Dismiss Complaint as Moot, or in the Alternative, Remand to the Agency for Adjudication of Plaintiff's Application for Naturalization. This matter will be set for a hearing on the merits.(certified copy mailed to appropriate judicial district court). Signed by Judge James J. Brady on 10/30/2012. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
THUONG HONG HUA
CIVIL ACTION
VERSUS
NO. 12-172-JJB
ERIC HOLDER, ATTORNEY GENERAL
OF THE UNITED STATES, ET. AL.
RULING ON DEFENDANTS’ MOTION TO DISMISS COMPLAINT AS MOOT
OR, IN THE ALTERNATIVE, REMAND TO THE AGENCY FOR
ADJUDICATION OF PLAINTIFF’S APPLICATION FOR NATURALIZATION

This matter is before the Court on Defendants’ Motion to Dismiss
Complaint as Moot, or in the Alternative, Remand to the Agency for Adjudication
of Plaintiff’s Application for Naturalization. (Doc. 14). Plaintiff has filed an
opposition (Doc. 17), to which Defendants have filed a reply. (Doc. 21). Oral
argument is not necessary. The Court’s jurisdiction exists pursuant to 8 U.S.C. §
1447(b), 28 U.S.C. § 1361, 28 U.S.C. § 1331, 28 U.S.C. § 2201, and 5 U.S.C. §
701. For the reasons herein, the Court DENIES Defendant’s motion to dismiss
complaint as moot. The Court further DENIES Defendant’s motion in the
alternative to remand to the agency for adjudication. This matter will be set for a
hearing on the merits.
I.
Plaintiff Thuong Hong Hua (“Hua”) is a lawful permanent resident of the
United States who wishes to be naturalized by this Court pursuant to Section
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336(b) of the Immigration and Nationality Act. 8 U.S.C. § 1447(b). Hua filed his
application for naturalization to the United States Citizenship and Immigration
Services (“USCIS”) on or about June 29, 2010. On December 21, 2010, USCIS
conducted Hua’s naturalization interview. On March 25, 2012, Hua filed a petition
for naturalization pursuant to 8 U.S.C. § 1447(b). On May 23, 2012, USCIS
denied Hua’s application because Hua pled guilty to an aggravated felony in
Pima County, Arizona for Theft by Control and/or by Controlling Stolen Property.
According to USCIS, Hua was sentenced to at least 1 year imprisonment, but the
sentence was suspended and Hua was placed on probation. A conviction of an
aggravated felony renders an applicant permanently ineligible for naturalization.
Hua alleges that he was not convicted of an aggravated felony. (Doc. 17-1). In
support of this claim, Hua attached a letter from the Pima County Superior Court
stating that Criminal Case No. CR98-806239 was dismissed in 1999. (Doc. 17-3).
However, the Defendants, in their reply brief, attached the records that USCIS
received showing that Hua was convicted of a felony in Cause No. CR65337 in
Pima County, Arizona for Theft by Control and/or By Controlling Stolen Property
(Doc. 21-1).
II.
In Defendants’ motion to dismiss, Defendants argue that this Court should
dismiss for lack of subject matter jurisdiction. (Doc. 14-1). Defendants point to 8
U.S.C. § 1447(b), which provides
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If there is a failure to make a determination under
section 1446 of this title before the end of the 120-day
period after the date on which the examination is
conducted under 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). The Defendants argue that the agency and the district court
retain concurrent jurisdiction, and Hua’s petition is moot because the agency has
rendered a decision. (Doc. 14-1). However, if the district court has exclusive
jurisdiction, then the agency did not have authority to render a decision. The
Defendants acknowledge that there is a split in authority concerning the district
court’s jurisdiction under Section 1447(b). Defendants cite three appellate court
decisions that have found that 8 U.S.C. § 1447(b) confers exclusive jurisdiction
on the district court and five district court decisions1 that have found that 8 U.S.C.
§ 1447(b) confers concurrent jurisdiction. However, as the Plaintiff points out in
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Although Defendants cited seven cases, one case found that jurisdiction was
exclusive. See Martinez v. Secretary, Dep’t. of Homeland Sec., 2009 WL
3806153, *2 (M.D. Fla. 2009) (finding that “once a district court acquires
jurisdiction, that jurisdiction is exclusive.”). Another case dismissed the complaint
as moot because upon reconsideration, the plaintiff was granted naturalization.
See Kochary v. Dep’t. of Homeland Sec., 2009 WL 211045 (M.D. Tenn. 2009).
Therefore, the Court will not consider these two cases.

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his opposition, these cases2 relied on the reasoning in other district court cases
that were subsequently overturned by the appellate courts. (Doc. 17-1 at 5).
2

Defendants cite Hamden v. Chertoff, 2009 WL 3150416 (E.D. Okla. 2009), Ali v.
Henning, 2009 WL 1507685 (D. Minn. 2009), Xie v. Mukasey, 575 F.Supp. 2d
963 (E.D. Wis. 2008), Al-Saleh v. Gonzalez, 2007 WL 990145 (D. Utah 2007),
and Perry v. Gonzalez, 472 F.Supp.2d 623 (D.N.J. 2007) to support their position
that Section 1447(b) confers concurrent jurisdiction. However, these cases rely
on district court cases that have been overturned or on dissenting opinions.
As a threshold matter, although the Defendants cite Hamden, the Defendants’
citation is incorrect. The matter is actually Hamdan v. Chertoff is 626 F.Supp.2d
1119 (D.N.M. 2007). In Hamdan, the court agreed with the dissenting opinion in
Etape, but concluded that it was “reluctant to read into the statute language that
divests the federal court of jurisdiction it certainly had” and that the “statute
indicates that the Court can decide the matter or remand to USCIS with
instructions.” Hamdan v. Chertoff, 626 F.Supp.2d 1119, 1138 (D.N.M. 2007).
However, if the Defendants meant to cite Kremmer v. Gonzalez, 2009 WL
3150416 (E.D. Okla. 2009), that court found that Section 1447(b) does not confer
exclusive jurisdiction on the district courts. However, that court noted that there
was a split in authority, citing the Hovsepian and Etape decisions and also citing
district court cases that were subsequently overturned by appellate decisions.
In Ali v. Henning, the court relied on the district court decision in Bustamante,
which was overturned by the Second Circuit. Ali v. Henning, 2009 WL 1507685
*1 (D. Minn. 2009). Similarly, in Xie v. Mukasey, the court relied on the reasoning
of the Bustamante district court case and Perry v. Gonzalez to find that there is
concurrent jurisdiction. Xie v. Mukasey, 575 F.Supp.2d 963, 964 (E.D. Wis.
2008). Perry v. Gonzalez relied on the district court decision in Etape, which was
overturned by the Fourth Circuit. Perry v. Gonzalez, 472 F.Supp. 2d 623 (D.N.J.
2007). Finally, in Al-Saleh, the court cited Perry in support of its conclusion that
the USCIS retained jurisdiction. Al-Saleh v. Gonzalez, 2007 WL 990145 *2 (D.
Utah 2007).

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In Bustamante v. Napolitano, the United States Court of Appeals for the
Second Circuit found that 8 U.S.C. § 1447(b) confers exclusive jurisdiction on the
district courts “determine a naturalization application when, after USCIS has
failed to adjudicate the application within 120 days of the initial examination, the
applicant files a Section 1447(b) action.” Bustamante v. Napolitano, 582 F.3d
403, 404 (2nd Cir. 2009). The Second Circuit explained that the district court’s
jurisdiction “vests with a naturalization applicant’s petition for a hearing in the
absence of a timely decision by USCIS.” Id. at 406. However, if the applicant
does not file a Section 1447(b) petition after the 120 day period has elapsed,
USCIS retains jurisdiction until the applicant files the petition, if at all. Id.
In Etape v. Chertoff, the United States Court of Appeals for the Fourth
Circuit also found that a Section 1447(b) petition “vests the district court with
exclusive jurisdiction, unless and until the court ‘remand[s] the matter’ to the
[USCIS].” Etape v. Chertoff, 497 F.2d 379, 383 (4th Cir. 2007). Similarly, the
United States Court of Appeals for the Ninth Circuit found that a Section 1447(b)
petition vests exclusive jurisdiction in the district courts. U.S. v. Hovsepian, 359
F.3d 1144 (9th Cir. 2004).
Although the United States Court of Appeals for the Fifth Circuit has not
rule directly on this matter, the Fifth Circuit has cited the reasoning of Etape and
Hovsepian favorably in reaching a decision on a related matter. Walji v.
Gonzalez, 500 F.3d 432, 438 (5th Cir. 2007). In Walji, the Fifth Circuit stated that
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two circuit courts “considering a related question – whether an applicant’s suit
under § 1447(b) deprives [USCIS] of jurisdiction over the application – concluded
without analysis that where the INS had not acted within 120 days of the
applicants’ initial interviews, upon the applicants’ filing suit the district court took
exclusive jurisdiction over their naturalization applications.” Id.
III.
Therefore, the Court finds that once an applicant files a Section 1447(b)
petition after the 120 day period elapses, the district courts have jurisdiction to
either determine the matter or remand the matter to the USCIS3. Accordingly, the
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The Court does not find the Defendants’ arguments concerning the plain
language of the statute, the legislative history and congressional policy to be
persuasive. Defendants argue that the plain language of the statute does not
deprive USCIS of jurisdiction and the Court should not write in “exclusive” into
the text. Defendants also argue that the legislative history shows that Congress
removed the word “exclusive” from this section, which Defendants argue reflects
Congressional intent that USCIS retain jurisdiction. Finally, Defendants argue
that concurrent jurisdiction expedites review of naturalization petitions, and to find
otherwise would defeat congressional policy.
The Court has considered these arguments and has determined that they lack
merit because they either rely on effectively overruled cases or do not consider
alternative explanations. For instance, while Congress did delete the word
“exclusive” from the original statute, the Bustamante court addressed this issue,
finding that the “earlier version suggests that the district court would only have
one option – to decide the naturalization application.” Bustamante, 582 F.3d at
407 n.4. By removing “exclusive,” this “gives USCIS additional time to consider
the application, and the possibility that the application will be remanded for
USCIS . . . to render a decision.” Id.
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Defendants’ Motion to Dismiss Complaint as Moot, or in the Alternative, Remand
to the Agency for Adjudication of Plaintiff’s Application for Naturalization is
DENIED. (Doc. 14). This matter will be set for a hearing on the merits.
Signed in Baton Rouge, Louisiana on October 30th, 2012.






JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

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