Adesida v. Tritten et al

Filing 29

ORDER granting in part 14 Motion to Dismiss or Stay the Case. (Written Opinion) Signed by Judge David S. Doty on 4/26/2021. (DLO)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CIVIL NO. 20-1593 (DSD/TNL)
Adedayo Adesida,
Plaintiff,
ORDER

v.
Leslie Tritten Field Office Director,
U.S. Citizenship and Immigration
Services, Minneapolis, MN, and
Ken Cuccinelli, Senior Official
Performing the Duties of the Director,
U.S. Citizenship and Immigration
Services, Washington, D.C.,
Defendants.

Marc Prokosch, Esq. and Prokosch Law LLC, 1700 West Highway
36, Suite 570, Roseville, MN 55113, counsel for plaintiff.
Friedrich A. P. Siekert, United States Attorney’s Office, 300
South 4th Street, Suite 600, Minneapolis, MN 55415, counsel
for defendants.
This matter is before the court upon the motion to dismiss or
stay the case by defendants Leslie Tritten and Ken Cuccinelli.
Based on a review of the file, record, and proceedings herein, and
for the following reasons, the motion is granted in part.

BACKGROUND
This

dispute

arises

out

of

a

delayed

determination

plaintiff Adedayo Adesida’s naturalization application.
is

a

lawful

permanent

resident

of

the

United

of

Adesida

States

and

naturalization applicant.

Compl. ¶ 4.

Tritten, named here in her

official capacity, is the Director of the Minneapolis Field Office
of the United States Department of Homeland Security, Citizenship
and Immigration Services (USCIS). Id. ¶ 5. Cuccinelli, also named
in his official capacity, is the Senior Official Performing the
Duties of the Director of USCIS. 1

Id. ¶ 6.

Adesida is a citizen of Nigeria and was admitted to the United
States on or about April 23, 2013, as a DV-2, derivative spouse of
a diversity lottery winner.

Id. ¶ 7.

On or about February 14,

2018, Adesida filed an N-400, Application for Naturalization under
8 U.S.C. § 1427.
other

Id.

requirements

interviewed him.

Adesida passed his naturalization exams and

and,

Id.

as to his application.

on

or

about

February

4,

2019,

USCIS

USCIS has not yet issued a final decision
Id.

On June 18, 2020, the Department of Homeland Security (DHS)
served Adesida with a notice to appear in immigration court for
removal proceedings.

Harrison Decl. Ex. B.

The notice states

that Adesida did not list one of his children on his diversity
visa registration. Id. The immigration court received the removal
proceedings on June 23, and the case was docketed on July 6.
Ex. D.

Id.

On August 3, the immigration court provided a notice of

hearing to Adesida.

Adesida Ex., ECF No. 22-2.

On August 7, DHS

The court will refer to defendants collectively as
USCIS unless a finer distinction is required.
1

2

served Adesida with another notice to appear.

Harrison Decl. Ex.

C.
Adesida commenced this action on July 17, 2020, asserting
that

the

USCIS

has

unreasonably

failed

to

issue

a

timely

determination with respect to his naturalization application.

He

specifically alleges that USCIS has violated 8 U.S.C. § 1447(b)
and 8 C.F.R. § 335.3(a), because his interview was more than 120
days ago, and USCIS has failed to act as required.
16.

Compl. ¶¶ 10,

Adesida alleges that he has exhausted all administrative

remedies and asks the court to either grant his application or to
order USCIS to adjudicate his application within fourteen days.
Id. at 6-7.

USCIS now moves to dismiss the complaint or to stay

the case pending removal proceedings.

DISCUSSION
I.

Standard of Review
A court must dismiss an action over which it lacks subject-

matter jurisdiction.

Fed. R. Civ. P. 12(h)(3).

In a facial

challenge under Rule 12(b)(1), the court accepts the factual
allegations in the pleadings as true and views the facts in the
light most favorable to the nonmoving party.

See Hastings v.

Wilson, 516 F.3d 1055, 1058 (8th Cir. 2008); see also Osborn v.
United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990) (“[T]he
nonmoving party receives the same protections [for facial attacks

3

under Rule 12(b)(1)] as it would defending against a motion brought
under Rule 12(b)(6).”) (citation omitted).

By contrast, in a

factual challenge, “no presumptive truthfulness attaches to the
plaintiff’s allegations,” and plaintiff has the burden to prove
that jurisdiction exists by a preponderance of the evidence.
Osborn,

918

F.2d

at

730

(internal

quotations

omitted).

Accordingly, the court may look to evidence outside of the record
to satisfy itself of its jurisdiction to hear the case.

See Deuser

v. Vecera, 139 F.3d 1190, 1192 n.3 (8th Cir. 1998).
II.

Jurisdiction
If a naturalization application is denied or delayed, the

applicant may seek judicial review within a federal district court.
8 U.S.C. §§ 1421(c), 1447(a)-(b).

Specific to this case, “[i]f

there is a failure to make a determination” on a naturalization
application within 120 days after the applicant’s interview, “the
applicant may apply to the United States district court ... for a
hearing on the matter.”

Id. § 1447(b).

The district court “has

jurisdiction over the matter and may either determine the matter
or remand the matter” to the USCIS for determination.

Id.

Under

8 U.S.C. § 1429, however, “no application for a 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 ....”

4

At issue here is whether the court is divested of subject
matter jurisdiction over a naturalization application when removal
proceedings are instituted against the applicant.

The Eighth

Circuit has not yet addressed this question, 2 and circuits courts
are

split

about

whether

jurisdiction under § 1429.

district

courts

are

stripped

of

See Klene v. Napolitano, 697 F.3d 666,

667–68 (7th Cir. 2012) (detailing circuit split).

USCIS argues

that § 1429 divests the court of subject matter jurisdiction
because there are pending removal proceedings.
that

§

1429

§ 1447(b).

does

not

affect

the

court’s

Adesida argues

jurisdiction

under

The court agrees with Adesida.

Federal courts have limited jurisdiction and “possess only
that power authorized by Constitution and statute ....”

Kokkonen

v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(internal citations omitted).

To determine whether a statute is

jurisdictional, the United States Supreme Court has adopted a
“readily administrable bright line” rule: whether “there is any
clear

indication

jurisdictional.”

that

Congress

wanted

the

rule

to

be

Henderson ex rel. Henderson v. Shinseki, 562

U.S. 428, 435–36 (2011) (internal quotations omitted) (citing

Adesida argues that Haroun v. United States Department of
Homeland Security, 929 F.3d 1007 (8th Cir. 2019), conclusively
answered this question.
Haroun did not address the interplay
between 8 U.S.C. §§ 1429 and 1447(b) and is inapposite. Id. at
1012.
2

5

Arbaugh v. Y&H Corp., 546 U.S. 500, 515–16 (2006)).

Here, there

is no question that § 1447(b) is a jurisdictional statute that
gives

the

court

naturalization

the

power

application.

to
See

consider
8.

Adesida’s

U.S.C.

§

delayed

1447(b)

(“[The

district] court has jurisdiction over the matter ....”).
The

court

cannot

similarly

jurisdictional statute, however.

conclude

that

§

1429

is

a

“When Congress decides to strip

the courts of subject-matter jurisdiction in a particular area, it
speaks clearly.”

Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845,

852 (7th Cir. 2012) (en banc).

Section 1429 makes no direct

reference to the courts or the courts’ jurisdiction.
§ 1429.

See 8 U.S.C.

Instead, the statute limits “[w]hat the Attorney General

may do” while removal proceedings are pending, without addressing
the court’s power to hear a case.

Klene, 697 F.3d at 668; see

also Gardener v. Barr, No. 4:18 CV 620 (JMB), 2019 WL 1001340, at
*4 (E.D. Mo. Mar. 1, 2019) (finding that § 1429 does affect the
court’s jurisdiction); Dilone v. Nielsen, 358 F. Supp. 3d 490, 501
(D. Md. 2019) (same).
The court’s conclusion is consistent with circuit courts that
have addressed the interplay between §§ 1429 and 1447(b).

See

Yith v. Nielsen, 881 F.3d 1155, 1161 (9th Cir. 2018) (Ҥ 1429
restricts only the Attorney General” and does not divest the
district court of jurisdiction); Rahman v. Napolitano, 385 F. App’x
540, 544 (6th Cir. 2010) (holding that district courts are not

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deprived of jurisdiction under § 1429 but are precluded from
granting relief).

A majority of other circuit courts have reached

similar conclusions regarding the jurisdictional effect of § 1429
when an applicant appeals a denial under § 1421(c).

See Gonzalez

v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254, 258–59 (3d Cir.
2012)

(holding

that

courts

have

jurisdiction

and

can

grant

declaratory relief); Zayed v. United States, 368 F.3d 902, 906
(6th Cir. 2004) (holding that courts have jurisdiction but § 1429
prevents them from affording requested relief); Klene, 697 F.3d at
668–69 (7th Cir. 2012) (same); Bellajaro v. Schiltgen, 378 F.3d
1042, 1046 (9th Cir. 2004), as amended (Sept. 1, 2004) (“[W]e see
no

textual

basis

for

concluding

that

jurisdiction

vested

in

district courts by § 1421(c) is divested by § 1429.”); Awe v.
Napolitano, 494 F. App’x 860, 865 (10th Cir. 2012) (“[Section]
1429 does not strip district courts of jurisdiction over petitions
regarding naturalization applications.”). But see Saba-Bakare v.
Chertoff, 507 F.3d 337, 340 (5th Cir. 2007) (concluding that the
court does not have subject matter jurisdiction pending removal
proceedings under § 1429).
Because § 1429 is not a jurisdictional statute that divests
the court of its subject matter jurisdiction under § 1447(b), the
court has subject matter jurisdiction over Adesida’s petition.

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III. Relief
USCIS argues that Adesida’s petition should be dismissed
because the court cannot grant his requested relief given the
pending removal proceedings.

Adesida responds that the court may

determine the naturalization application under § 1447(b), despite
pending removal proceedings.

Under the circumstances presented,

the court concludes that the most appropriate action is to stay
the case.
As explained above, § 1447(b) grants the court jurisdiction
to either (1) “determine the matter” or (2) “remand the matter,
with appropriate instructions” for USCIS to determine.
1429

bars

USCIS

from

considering

naturalization

Section

applications

during removal proceedings, and, therefore, a remand for USCIS to
determine the application is inappropriate.

See 8 U.S.C. 1429;

Klene, 697 F.3d at 668 (“If the Attorney General cannot naturalize
an alien after removal proceedings have begun, the court cannot
direct the Attorney General to naturalize the alien.

Judges must

not order agencies to ignore constitutionally valid statutes.”);
Ajlani v. Chertoff, 545 F.3d 229, 238–39 (2d Cir. 2008) (holding
that district court cannot instruct an agency to determine the
application during removal proceedings under § 1429); Zayed, 368
F.3d at 906 (same).
This leaves the question of whether the court may – or should
– determine Adesida’s naturalization application.

8

Circuit courts

are also split regarding this question.

See Dilone, 358 F. Supp.

3d at 498–99 (detailing circuit split).

A majority of circuit

courts agree that § 1429’s limitation on the Attorney General
precludes district courts from making a determination on the
application, but there is no consensus if other remedies, such as
declaratory relief, are available.

Compare, e.g., Ajlani, 545

F.3d at 240 (2d Cir. 2008) (holding that district courts cannot
grant any relief while removal proceedings are pending under §§
1447(b) and 1429), with Gonzalez, 678 F.3d at 260–61 (holding that
§ 1429 does not preclude the court from granting declaratory
relief).

But see Yith, 881 F.3d at 1165 (holding that § 1429 only

applies to the Attorney General and does not prevent the court
from granting full relief under § 1447(b)).
Even if the court could issue declaratory relief, it believes
the better course is to stay the matter pending completion of the
ongoing removal proceedings.

As the Seventh Circuit explained,

“[t]he existence of overlapping proceedings does not diminish a
district court’s power but does present a question on which the
judge should exercise sound discretion.”

Klene, 697 F.3d at 669.

If

requested

the

court

were

to

grant

Adesida’s

relief,

that

decision would directly affect the removal proceedings and would
invite the question “whether a multi-track course of litigation is
the best way to resolve the dispute.”

Id.

In the exercise of

sound discretion, courts may stay cases pending the outcome of the

9

removal proceeding – regardless of the available remedies under §
1429.

See, e.g., Gardener, 2019 WL 1001340, at *5; Dilone, 358 F.

Supp. 3d at 504; see also Klene, 697 F.3d at 668 (“If some other
pending proceeding must be completed before a court can resolve
the merits, usually the court should stay the suit rather than
dismiss it.”).

Staying this case pending removal proceedings is

the prudent course of action.
First,

Congress

naturalization
(explaining

prioritized

applications.

that

Congress

removal

Zayed,
intended

proceedings

368
to

F.3d

at

prioritize

over
905-06

removal

proceedings over naturalization applications); Ajlani, 545 F.3d at
240

(explaining

that

allowing

petitioner

to

proceed

on

the

naturalization application would restart the race between removal
and naturalization Congress sought to end).
congressional

intent,

courts

routinely

stay

Consistent with
naturalization

proceedings to give priority to removal proceedings.

See Dilone,

358 F. Supp. 3d at 504-05 (staying the case to prioritize the
conclusion of removal proceedings); Gardener, 2019 WL 1001340, at
*5 (same); Eisa v. United States Citizenship & Immigration Servs.,
No. 05-cv-773, 2005 WL 8164569, at *3 (D. Minn. Dec. 23, 2005),
report and recommendation adopted, No. 05-cv-773, 2006 WL 8445001
(D. Minn. Jan. 31, 2006) (remanding to USCIS and staying the case
until after removal proceedings).

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Second,

there

may

be

factual

determinations

made

during

removal proceedings that could bear on the merits of Adesida’s
application.

See, e.g., Ajlani, 545 F.3d at 240 (suggesting that

information

regarding

the

sufficiency

of

petitioner’s

naturalization application may need to be addressed in removal
proceedings); Dilone 358 F. Supp. 3d at 503-04 (noting that factual
findings in removal proceedings may impact applicant’s burden to
establish

the

“good

moral

character”

requirement

for

naturalization).
As a result, the most appropriate action at this time is to
stay the case pending the outcome of removal proceedings.

The

court retains its subject matter jurisdiction over this matter,
and it will address Adesida’s § 1447(b) claims after the conclusion
of his removal proceedings.

CONCLUSION
Accordingly, IT IS HEREBY ORDERED, that:
1.

The motion to dismiss or to stay the case [ECF No. 14]

is granted in part; and
2.

This matter is stayed until further order of the court.

Dated: April 26, 2021
s/David S. Doty
David S. Doty, Judge
United States District Court

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