McLeary v. (INS) Currently DHS office of U.S.C.I.S.
Filing
13
ORDER: Respondents Motion to Dismiss, or Alternatively for Summary Judgment (11-CV-6075, Dkt. #7) and Motion to Dismiss for Failure to State a Claim and for Lack of Jurisdiction (11-CV-6275, Dkt. #5) are granted. The Petitions (11-CV-6075, Dkt. #1 & 11-CV-6275, Dkt. #1) are dismissed without prejudice. Petitioners Motion for an Order to Show Cause (11-CV-6075, Dkt. #15) is dismissed with prejudice. Because Petitioner has failed to make a substantial showing of the denial of a constitutional righ t, the Court declines to issue a certificate of appealability. The Clerk of the Court is directed to enter judgment for Respondent in 11-CV-6075(MAT) and in 11-CV-6275(MAT), and to close both cases. *CLERK TO FOLLOW UP*. Signed by Hon. Michael A. Telesca on 3/21/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ASTON R. McLEARY,
Petitioner,
No. 11-CV-6075(MAT)
DECISION AND ORDER
-vsUNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES (U.S.C.I.S.),
Respondent.
ASTON R. McLEARY,
Petitioner,
-vs-
No. 11-CV-6275(MAT)
DECISION AND ORDER
(INS) Currently DHS office of
U.S.C.I.S.,
Respondent.
I.
Introduction
Petitioner pro se Aston R. McLeary (“McLeary” or “Petitioner”)
has instituted the above-captioned proceedings in District Court.
At the time he filed the petitions, he was an alien under a final
order of removal based upon his conviction of an offense qualifying
as an “aggravated felony” for purposes of the INA, and he was in
custody of Department of Homeland Security/Immigrations and Customs
Enforcement (“DHS/ICE”). Accordingly, the petitions were deemed to
be brought under the authority of 28 U.S.C. § 2241. However, the
petitions did not seek McLeary’s release from custody of DHS/ICE.
Instead,
they
challenged
the
denial
of
his
application
for
naturalization
by
United
States
Citizenship
and
Immigration
Services (“USCIS”).
In the first petition filed February 9, 2011, McLeary v.
United States Citizenship and Immigration Services, No. 11-CV6075(DGL)(MWP) (W.D.N.Y.) (“11-CV-6075”), Petitioner seeks relief
under 8 U.S.C. § 1447(b) which permits an individual who has filed
a naturalization application, has been the subject of a completed
“examination” pursuant to 8 U.S.C. § 1446, and who has not timely
received a determination on his application, to “apply to the
United
States
district
court
for
the
district
in
which
the
applicant resides for a hearing on the matter.” 8 U.S.C. § 1447(b).
In the second proceeding filed June 1, 2011, McLeary v. (INS)
Currently
DHS
(W.D.N.Y.)
office
of
U.S.C.I.S.,
(“11-CV-6275”),
relief–judicial
review
naturalization.
Both
of
cases
No.
Petitioner
his
denied
have
been
11-CV-6275(DGL)(MWP)
seeks
N-400
the
same
application
transferred
to
for
the
undersigned.
II.
Factual Background and Procedural History1
A.
Removal Proceedings
Petitioner is a native and citizen of Jamaica and a lawful
permanent resident of the United States. He was admitted to this
country at New York, New York, on or about April 26, 1963.
1
The record citations in the Factual Background and Procedural History are
from documents submitted in 11-CV-6075.
-2-
(Respondent’s Exhibit (“Resp’t Ex.”) 1, Declaration of Michele
Morris, ¶4 (“Morris Decl.”); Resp’t Ex. 1-F at 3.
On April 5, 2006, McLeary was convicted in Schenectady County
Court, in Schenectady, New York, for burglary in the third degree
(N.Y. Penal Law § 140.20), a class D nonviolent felony. McLeary was
sentenced to a term of incarceration of one year, and served 245
days in prison. Morris Decl., ¶14; Resp’t Ex. 1-D at 1-2.
On August 21, 2008, McLeary was placed in removal proceedings
and charged with being subject to removal from the United States as
an alien who has been convicted of a controlled substance offense;
as an alien who has been convicted of an aggravated felony,
relating to a theft offense or burglary; and as an alien who has
been convicted of two crimes involving moral turpitude. Morris
Decl., ¶15.
On March 18, 2009, an immigration judge (“IJ”) ordered
McLeary removed from the United States to either England or Jamaica
pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii),
because of his conviction in 2006 which constituted a “removable
aggravated felony” as defined under INA § 101(a)(43)(G), 8 U.S.C.
§ 1101(a)(43)(G). Morris Decl., ¶16, Resp’t Ex. 1-A. In addition,
the IJ determined that McLeary did not meet his burden of proving
by clear and convincing evidence that he was either a citizen or a
national of the United States. McLeary could not obtain derivative
citizenship from his father, who had naturalized after he had
attained eighteen years of age. McLeary’s service and registration
-3-
in the United States military, alone, was insufficient to convey
nationality. Resp’t Ex. 1-G at 10-11.
McLeary
appealed
his
removability
before
the
Board
of
Immigration Appeals (“BIA”) and filed a motion to reopen. On
June 29, 2009, the BIA dismissed his appeal and denied his motion
to reopen. Morris Decl., ¶¶ 16-17; Resp’t Ex. 1-G at 1-6. While his
petition for review was pending in the Second Circuit, see Section
II.D, infra, McLeary filed a motion to reconsider and motion for
stay of removal with the BIA, which was denied on August 13, 2009.
The motion to reconsider was denied on November 20, 2009. Resp’t
Ex. 3 at 1-3. McLeary also filed a motion to reconsider with the
BIA which was denied on July 14, 2010. Resp’t Ex. 3 at 4-5. He then
filed a motion to reopen proceedings with the BIA, which was denied
on October 5, 2010. Id. at 6-7.
E.
Petitioner’s Application for Naturalization
McLeary filed an N-400 application for naturalization on
April 19, 2010, with USCIS, on the basis of qualifying military
service. Morris Decl., ¶18; Resp’t Ex. 1-A. at 3. Although McLeary
passed the English, history, and government tests, his application
was denied on September 29, 2010, on six separate grounds. See
Morris Decl., ¶18; Resp’t Ex. 1-A.
First,
McLeary
was
not
eligible
pursuant
to
INA
§
329,
8 U.S.C. § 1440, which allows for the naturalization of qualified
military personnel, because he was discharged from the United
States Air Force “Under Other Than Honorable Conditions.” Morris
Decl., ¶18; Resp’t Exs. 1-A at 2-3, 1-E at 2,8.
-4-
Second, USCIS found him ineligible to naturalize under INA
§ 316(a) since his 2006 conviction for burglary in the third
degree, an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C.
§ 1101(a)(43)(G), permanently precludes him from establishing good
moral character for naturalization purposes. Morris Decl., ¶18;
Resp’t Ex. 1-A at 6.
Third, USCIS found that under 8 C.F.R. § 316.10(b)(2)(i), this
same burglary constituted a crime involving moral turpitude, other
than a purely political offense, during the statutory period, and
therefore precluded McLeary him from naturalizing.
Fourth, because McLeary was confined to a penal institution
for more than 180 days for the third degree burglary conviction
during
the
relevant
statutory
period,
he
was
ineligible
to
naturalize pursuant to 8 C.F.R. § 316.10(b)(2)(v).
Fifth, USCIS found that McLeary was unable to prove good moral
character as required by INA § 316(a)(3), 8 U.S.C. § 1427(a)(3),
since he had been arrested “at least 18 times and convicted of
multiple criminal offenses” such as burglary, third degree assault,
second degree harassment, second degree criminal use of drug
paraphernalia, second degree criminal impersonation, and second
degree aggravated unlicensed use of a motor vehicle.2 This conduct
was found by USCIS to preclude a determination of “good moral
character.” See 8 C.F.R. § 316.10(a)(2). See Resp’t Exs. 1-B at 3,
1-A at 6.
2
See Respondent’s Statement Of Material Facts As To Which There Is No
Genuine Issue To Be Tried, ¶¶ 9-11 (Dkt. #8).
-5-
Sixth,
USCIS
determined
that
because
McLeary
had
an
outstanding final order of removal against him, and since he was
not otherwise eligible under INA § 329, 8 U.S.C. § 1440 , a statute
that relaxes the naturalization requirements for persons who have
served in the United States military on active-duty status during
wartime, he was ineligible to naturalize under INA § 318, 8 U.S.C.
§ 1429. Resp’t Ex. 1-A at 7.
Pursuant to INA § 336, 8 U.S.C. § 1447, McLeary appealed
USCIS’s denial of his application for naturalization. Morris Decl.,
¶20. On February 4, 2011, USCIS denied McLeary’s appeal. Id.;
Resp’t Ex. 1-B.
On July 21, 2010, McLeary filed an application for certificate
of citizenship, Form N-600, pursuant to INA § 321. Morris Decl.,
¶19; Resp’t Ex. 1-F. McLeary was interviewed by a USCIS immigration
services officer on that same date. During the interview for the
Form N-600 application, McLeary was asked to read and sign a copy
of the Oath of Allegiance, which appears on the duplicate copy of
the Certificate of Citizenship. This is normal procedure in the
Buffalo, New York District Office for all Form N-600 applications
in which the applicant is over the age of fourteen. The signing of
this
document
does
not
automatically
grant
United
States
citizenship to the signee, unless the Form N-600 application is
approved. Morris Decl., ¶19.
USCIS denied McLeary’s N-600 application pursuant to INA
§§ 301(g), 320, 321 and 322 on August 23, 2010. Morris Decl., ¶19;
Resp’t Ex. 1-F. McLeary did not appeal this denial. Id.
-6-
On October 12, 2010, McLeary filed a Request for a Hearing on
a Decision in Naturalization Proceedings (Form N-336) pursuant to
INA § 336. McLeary was interviewed on January 25, 2011, by USCIS
with respect to that application, which was denied on February 4,
2011. Morris Decl., ¶20; Resp’t Ex. 1-B.
D.
The Petitions for Review in the Second Circuit
Prior to and during the pendency of his proceedings in this
Court, McLeary has filed a number of petitions for review in the
Second
No.
Circuit
09-2836-ag
Court
(2d
of
Cir.
Appeals.
Nov.
30,
See
2009);
McLeary
v.
McLeary
Holder,
v.
Holder,
09-5056-ag (2d Cir. Jun 17, 2010); McLeary v. Holder, 10-2896-ag
(2d Cir. Jan. 25, 2011);
June 24, 2011);
McLeary v. Holder, 11-0565-ag (2d Cir.
McLeary v. Holder, 11-217 (2d Cir. June 24, 2011);
McLeary v. Holder, 10-4108 (2d Cir. June 24, 2011); McLeary v.
Holder, 11-2047-ag
purposes,
the
(2d
Second
Cir.
Nov.
Circuit’s
3, 2011).
decision
in
For
this
Court’s
11-2047-ag
is
of
particular relevance, as discussed below in Section III.B. In that
order, the Second Circuit dismissed McLeary’s petition for review
based upon lack of jurisdiction to review the challenged BIA order
because it no longer constituted a final order of removal.
E.
The Habeas Petitions in District Court
1.
McLeary v. Herron, et al., 10-CV-6068
McLeary filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 in this Court on February 8, 2010, McLeary v.
Herron,
et
al.,
10-CV-6068(MAT)
-7-
(W.D.N.Y.),
challenging
his
detention in the custody of DHS/ICE. During the pendency of 10-CV6068, Schenectady County Court vacated the judgment of conviction
on
the
third
degree
burglary
charge
based
upon
ineffective
assistance of trial counsel, and allowed McLeary to plead guilty to
one count of misdemeanor criminal trespass and receive time served.
See
Transcript of August 18, 2011 Hearing in Schenectady County
Court (“8/18/11
Tr.”)
at 6
(11-CV-6075,
Dkt.
#14);
see also
Supplemental Affidavit of Gail Mitchell, Esq. & Exhibits (11-CV6075, Dkt. #13-1). The third degree burglary conviction, a class D
non-violent
felony,
was
accordingly
reduced
to
a
class
A
misdemeanor, criminal trespass (N.Y. Penal Law § 140.15(1)), in
full satisfaction of the indictment. 8/18/11 Tr. at 6-7. Petitioner
received
time
served,
which
was
eight
months.
Id.
at
7.
On
September 23, 2011, this Court dismissed the petition in 10-CV-6068
as moot based upon McLeary’s release from Respondent’s custody on
a $1,500-bond on September 1, 2011.
2.
McLeary v. USCIS, 11-CV-6075
Meanwhile, on February 16, 2011, McLeary filed case number 11CV-6075, seeking a writ of mandamus under 8 U.S.C. § 1447(b).
Specifically, McLeary requested that the Court “take jurisdiction”
over
his
denied
N-400
application
for
naturalization
and
“independently adjudicate the application.” Petition (“Pet.”), ¶¶3,
4 (11-CV-6075, Dkt. #1). The proceeding was characterized as a
habeas petition under 28 U.S.C. § 2241 because it was brought by an
individual in federal custody. At the time, McLeary was in custody
of DHS/ICE pending his deportation.
-8-
3.
McLeary v. (INS) Currently
U.S.C.I.S., 11-CV-6275
DHS
office
of
On June 1, 2011, McLeary filed a third petition with this
Court, again seeking judicial review of USCIS’s denial of his N-400
application for naturalization. McLeary v. (INS) Currently DHS
office of U.S.C.I.S., No. 11-CV-6275-DGL-MWP (W.D.N.Y.). McLearly
states
that
he
seeks
relief
under
8
C.F.R.
§
336.9(b),
the
implementing regulations of 8 U.S.C. § 1421(c). Petitioner also
requests a stay of removal while the Court considers his petition.
The
proceeding
was
characterized
as
a
habeas
petition
under
28 U.S.C. § 2241 because it was brought while McLeary was in
custody of DHS/ICE. Presently pending in 11-CV-6275 is Respondent’s
Motion to Dismiss, or Alternatively for Summary Judgment (11-CV6275, Dkt. #5).
4.
Pending Motions in 11-CV-6075 and 11-CV-6275
Respondent filed a Motion to Dismiss, or Alternatively for
Summary Judgment (11-CV-6075, Dkt. ##7, 8, 9, 10) on April 21,
2011, seeking dismissal of the petition based upon for lack of
subject matter jurisdiction and for failure to state a claim upon
which relief can be granted; or, in the alternative, for summary
judgment in favor of Respondent because there are no genuine issues
of material fact. McLeary filed two responsive pleadings (11-CV6075, Dkt. ##11, 12). The Government filed a Memorandum in Support
(11-CV-6075, Dkt. #13) of their Motion to Dismiss.
On August 25, 2011, Petitioner filed a “Motion for an Order to
Show Cause” (11-CV-6075, Dkt. #15).
-9-
The Government filed another
Memorandum in Support (11-CV-6075, Dkt. #16) of the Motion to
Dismiss.
In 11-CV-6275, the Government filed a Motion to Dismiss for
Failure to State a Claim and for Lack of Jurisdiction (11-CV-6275,
Dkt. #5) on July 7, 2011. Pursuant to the Court’s directive,
Petitioner responded to the Government’s Motion to Dismiss (11-CV6275, Dkt. #7) on August 9, 2011. The Government submitted a Reply
(11-CV-6275, Dkt. #7) to correct what it described as “factual and
legal errors” in McLeary’s August 9, 2011 submission.
The Government’s Motions to Dismiss, or in the Alternative for
Summary Judgment (“the Motions to Dismiss”) in both cases are fully
briefed and ready for decision. For the reasons that follow, the
Motions to Dismiss are granted, and the petitions are dismissed.
Petitioner’s
Motion
for
an
Order
to
Show
Cause
likewise
is
dismissed.
III. Petitioner’s Naturalization Claim
A.
Jurisdiction
Until 1990, “naturalization authority and removal authority
were
vested
in
different
branches
of
government,
with
naturalization being the province of the courts and removal the
province of the executive acting through the Attorney General.”
Ailani v. Chertoff, 545 F.3d 229, 235 (2d Cir. 2008). With the
passage of the, “Congress substantially reformed the naturalization
process[,]” Perriello v. Napolitano, 579 F.3d 135, 139 (2d Cir.
2009), establishing “that ‘[t]he sole authority to naturalize
-10-
persons as citizens of the United States is conferred upon the
Attorney General.’” Id. (citing 8 U.S.C. § 1421(a)).
Notwithstanding the ultimate authority of the Attorney General
to decide applications for naturalization, “statutory standards
governing
naturalization, and
naturalization
decisions
by
the
[US]CIS (acting for the Attorney General) are subject to judicial
review.” Escaler v. United States Citizenship & Immigr. Servs., 582
F.3d 288, 289–90 (2d Cir. 2009); see also Perriello, 579 F.3d at
140 n.5 (noting that Immigration Act of 1990 (“IMMACT”), Pub. L.
No. 101–649, 104 Stat. 4978 (Nov. 29, 2009), “preserved a role for
federal courts in the naturalization process”).
Under IMMACT, “[t]here are three avenues of judicial review”
of a naturalization claim. Escaler, 582 F.3d at 290–91.
First, if an application for naturalization is not acted
upon within 120 days of the naturalization examination,
an applicant can seek a hearing in a district court,
which may determine the application or remand it to the
CIS with instructions. 8 U.S.C. § 1447(b). Second, if an
application is denied after completion of the available
administrative review procedures, the applicant is able
to seek review of the denial in a district court. 8
U.S.C. § 1421(c). The court is empowered to conduct a de
novo review, making “its own findings of fact and
conclusions of law,” and may conduct a hearing de novo.
Id. Third, in extreme cases, mandamus relief may be
available under [28] U.S.C. § 1361 for a failure to
perform a clear, nondiscretionary duty. Heckler v.
Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622
(1984).
Escaler, 582 F.3d at 291. Thus, this Court may properly exercise
jurisdiction over McLeary’s naturalization claim, and Respondent
does not contend otherwise.
-11-
B.
The Effect of the Reopening of Removal Proceedings on the
Court’s Ability to Adjudicate the Naturalization Claim
After McLeary’s conviction for third degree burglary was
vacated on August 18, 2011, he no longer stood convicted of an
“aggravated felony”, which was the basis for ordering him removed.
Accordingly, on August 31, 2011, ICE filed a motion to reopen
removal proceedings against McLeary on the basis that he instead is
removable under INA § 237(a)(2)(A)(ii) for having committed two
crimes
involving
Memorandum
of
moral
Law
turpitude.
(“Resp’t
Supp.
Respondent’s
Mem.”)
at
3
Supplemental
(11-CV-6075,
Dkt. #16).
This motion apparently has been granted. On November 3, 2011,
in McLeary v. Holder, 11-2047-ag, the Second Circuit dismissed
McLeary’s petition for, inter alia, review of the BIA’s denial of
his motion to reopen, noting that “that there is no longer a final
order of removal in Petitioner’s proceedings because the BIA
reopened those proceedings and remanded to an Immigration Judge for
a new decision.” McLeary v. Holder, 11-2047-ag (2d Cir. Nov. 3,
2011). Respondent argues that the reopening of removal proceedings
divests this Court of jurisdiction over McLeary’s application for
naturalization. Resp’t Supp. Mem. at 3 (noting that if the BIA
reopens removal proceedings against McLeary, “the District Court
will no longer have jurisdiction over McLeary’s application for
naturalization”)
(citing
INA
§
318,
8
U.S.C.
§
1429
(“[N]o
application for naturalization shall be considered by the Attorney
-12-
General if
there
is pending
against the
applicant
a
removal
proceeding . . . .”).
The Second Circuit addressed this question in Ajlani v.
Chertoff, 545 F.3d 229 (2d Cir. 2008), and joined with the other
circuit courts to have considered the issue in holding that “an
alien cannot claim a form of relief pursuant to § 1447(b) that is
forbidden by § 1429.” Id. at 238 (citing, inter alia, Zayed v.
United States, 368 F.3d 902, 906 (6th
Cir. 2004)). Title 8 U.S.C.
§ 1429,3 the Second Circuit explained, “clearly prohibits the
Attorney
General
from
making
a
final
determination
on
naturalization while a removal proceeding is pending against the
applicant[,]” and “does not permit an alien to state a claim for
such relief under § 1447(b) while removal proceedings are pending
against him.” Ajlani, 545 F.3d at 238. Although 8 U.S.C. § 1429
does not deprive a district court of its statutorily-appointed
jurisdiction in naturalization matters, it “‘limit[s] the scope of
the
court’s
review’
and
‘circumscribe[s]
the
availability
of
effective remedies[.]’” Id. (quoting Zayed, 368 F.3d at 906). Thus,
once removal proceedings are commenced against an alien, the
district court cannot compel the Attorney General ‘to grant [the
3
Section 1429, known as “the priority provision” of the INA, reads,
subject to various provisos not applicable in this case, as follows:
[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. . . .
8 U.S.C. § 1429.
-13-
alien’s] application for naturalization,’ because ‘the statutory
bar of § 1429’ cannot be overcome by ‘judicial fiat.’” Id. (quoting
Zayed, 368 F.3d at 906 & n. 5). Thus, “to the extent Ajlani sued
for an order [under 8 U.S.C. § 1447(b)] compelling defendants to
admit him to citizenship, the district court could not grant such
relief.” Id. at 239.
In Ajlani, as in McLeary’s case, removal proceedings were
initiated after the plaintiff filed for judicial relief on his
naturalization claim. As in Ajlani, relief under 8 U.S.C. § 1447(b)
is foreclosed due to the pendency of removal proceedings against
McLeary. While removal proceedings are pending against McLeary,
this Court cannot, consistent with § 1429, appropriately instruct
USCIS to admit him to citizenship in advance of the completion of
those removal proceedings. 545 F.3d at 239.
Furthermore, the Second Circuit has held that a district court
cannot itself admit a plaintiff to citizenship while removal
proceedings are pending against him or her. See Ajlani, 545 F.3d at
239-40 (holding that the priority afforded removal proceedings by
§
1429
limits
naturalization
Saba-Bakare
v.
the
pursuant
district
to
Chertoff,
§
courts’
1421(c)
507
F.3d
authority
or
§
337,
to
1447(b))
340
grant
(citing
(5th
Cir.
2007)(discussing § 1447(b)); Bellajaro v. Schiltgen, 378 F.3d 1042,
1046-45 (9th Cir. 2004)(discussing § 1421(c)); Zayed v. United
States, 368 F.3d at 905-06.
A district court’s authority to grant
naturalization under § 1421(c) could not be greater than that of
the Attorney General, to whom Congress had granted “‘sole authority
-14-
to naturalize persons’” in the first instance. Zayed, 368 F.3d at
905-06 (quoting 8 U.S.C. § 1421(a)). “If § 1429 would preclude the
Attorney General from granting naturalization to an alien because
of pending removal proceedings, an alien could not secure that
relief from a district court pursuant to § 1421(c).” Ajlani, 545
F.3d at 239 (citing Zayed, 368 F.3d at 906). Due to the operation
of § 1429's priority provision, McLeary cannot state a claim upon
which relief may be granted under 8 U.S.C. § 1421(c).
Finally, McLeary cannot avail himself of mandamus relief under
28
U.S.C.
1361,
the
third
means
of
judicial
review
of
naturalization decisions, Escaler, 582 F.3d at 290-91. Mandamus
relief would only be available if McLeary could “show a ‘“clear and
indisputable” right’ to its issuance.” Id. at 292 (quoting Miller
v. French, 530 U.S. 327, 339 (2000) (quotation omitted)).
however,
the
Attorney
General
is
statutorily
precluded
Here,
from
naturalizing McLeary because he is the subject of pending removal
proceedings, see 8 U.S.C. § 1429. This Court cannot order the
Attorney General to undertake an act which it is legally enjoined
from doing.
In light of 8 U.S.C. § 1429's priority provision, the pendency
of removal proceedings precludes McLeary from stating a claim for
relief under 8 U.S.C. § 1447(b) in the form of an order either
compelling USCIS to admit McLeary to United States citizenship, or
directly granting his naturalization. See Ajlani, 545 F.3d at 241.
McLeary is also precluded from stating a claim for relief under
8 U.S.C. § 1421(c) in the form of this Court conducting a de novo
-15-
review of McLeary’s naturalization claim. See Moya de Leon v.
Napolitano, No. 10 Civ. 6176(DLC), 2011 WL 1990876, at *3 n.2
(S.D.N.Y. May 23, 2011) (stating that “Ajlani does not suggest a
basis
to
distinguish
between
cases
brought
under
these
two
provisions [i.e., § 1447(b) and § 1421(c)]”). Finally, McLeary is
precluded from stating a claim under 28 U.S.C. § 1361 for a writ of
mandamus against USCIS. See Neris-Maria v. Quarantillo, 09 CIV. 625
PAC
THK,
2009
WL
7809000,
at
*4-5
(S.D.N.Y.
Dec.
16,
2009)
(“[M]andamus relief would only be available if the Attorney General
had a ‘clear, nondiscretionary duty’ to naturalize Petitioner. See
[Escaler, 582 F.3d at 292]. Here, however, the opposite is true:
the Attorney General may not naturalize any alien who is the
subject of pending removal proceedings or a final order of removal,
see 8 U.S.C. § 1429, and, thus, he was barred from approving
Petitioner’s application because he was the subject of removal
proceedings.”).
IV.
28 U.S.C. § 2241 and McLeary’s Collateral Challenge To His
Underlying State Court Conviction For Third Degree Burglary
Respondent has interpreted McLeary’s papers as asserting a
collateral challenge to his conviction for third degree burglary
under New York Penal Law § 140.20, while McLeary contends that he
is no way challenging that burglary conviction. This issue has been
rendered moot by the Schenectady County Court’s vacatur of the
burglary conviction following McLeary’s successful C.P.L. § 440.10
motion alleging ineffective assistance of trial counsel. See, e.g.,
Delgado
v.
Duncan,
No.
02-CV-4929,
-16-
2003
WL
23185682,
at
*5
(E.D.N.Y. Nov. 4, 2003) (“Petitioner claims that his conviction for
seventh degree criminal possession of a controlled substance should
be dismissed as an inclusory concurrent count. Petitioner received
relief on this claim from the Appellate Division, which vacated his
conviction
of
this
crime
and
dismissed
the
count
from
the
indictment. The claim as raised in this habeas proceeding is denied
as moot.”).
V.
Stay Of Removal
McLeary also has requested a stay of removal. Because there
currently there is no final order of removal against McLeary, this
contention is moot. Accordingly, his request for a stay of removal
is denied.
VI.
Motion for Order to Show Cause
McLeary has filed a Motion for an Order to Show Cause under 28
U.S.C. § 2243, requesting immediate release from custody and a
decision from this Court on his citizenship claim. As an initial
matter, McLeary has never been in the custody of USCIS, and he did
not
name
DHS/ICE
as
a
party
to
11-CV-6075
or
11-CV-6275.
Regardless, the request for release for custody has been mooted by
McLeary’s discharge to supervised release. With regard to the
branch of his Motion for an Order to Show Cause demanding a
decision regarding his naturalization application, that is denied
for the reasons discussed in Section III, supra.
VII. Conclusion
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For the foregoing reasons, Respondent’s Motion to Dismiss, or
Alternatively for Summary Judgment (11-CV-6075, Dkt. #7) and Motion
to
Dismiss
for
Failure
to
State
a
Claim
and
for
Lack
of
Jurisdiction (11-CV-6275, Dkt. #5) are granted. The Petitions (11CV-6075, Dkt. #1 & 11-CV-6275, Dkt. #1) are dismissed without
prejudice. See Ajlani v. Chertoff, 545 F.3d at 241 (finding no
error in district court’s dismissal of petition for judicial review
of naturalization application rather than holding it in abeyance
pending completion of removal proceedings; stating that it did “not
understand the district court to have foreclosed the possibility of
refiling if removal proceedings are resolved favorably to Ajlani”).
Petitioner’s Motion for an Order to Show Cause (11-CV-6075,
Dkt. #15) is dismissed with prejudice.
Because Petitioner has failed to make a substantial showing of
the denial of a constitutional right, the Court declines to issue
a certificate of appealability. See 28 U.S.C. § 2253(c)(2).
The Clerk of the Court is directed to enter judgment for
Respondent in McLeary v. United States Citizenship and Immigration
Services, No. 11-CV-6075(MAT) and in McLeary v. (INS) Currently DHS
office of U.S.C.I.S., No. 11-CV-6275(MAT), and close both cases.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
___________________________________
MICHAEL A. TELESCA
United States District Judge
DATED:
March 21, 2012
Rochester, New York
-18-
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