Baysal v. U.S. Attorney General
Filing
22
ORDER granting 9 Motion to Dismiss. Plaintiff's Petition for Adjudication of Naturalization Application is Dismissed without Prejudice. Signed by Judge Herman J. Weber on 8/30/11. (do1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KORAY BAYSAL,
Plaintiff,
v.
Case No. 1:10-cv-696-HJW
ERIC H. HOLDER, JR., et. al.,
Defendants.
ORDER
This matter is before the Court on the plaintiff’s “Petition for Adjudication of
Naturalization Application” (doc. no. 1) and the defendants’ “Motion to Dismiss”
(doc. no. 9) for lack of subject matter jurisdiction and for failure to state a claim for
relief. Plaintiff opposes the motion. Having carefully considered the pleadings, the
parties’ briefs and exhibits, and applicable law, the Court will grant the motion for
failure to state a claim for relief and dismiss without prejudice the plaintiff’s petition
for the following reasons:
I. Facts and Procedural History
Koray Baysal (“plaintiff”) is a citizen of Turkey and a native of Libya. Plaintiff
entered the United States in 2003 and married a U.S. citizen, Christina Callaway.
Plaintiff received “conditional permanent resident” status in the United States on
December 14, 2004. Plaintiff and Ms. Calloway thereafter divorced, and plaintiff
married another woman. The conditions on plaintiff’s permanent resident status
were removed on March 22, 2007. Plaintiff currently resides in Morrow, Ohio.
Plaintiff filed his naturalization application on September 22, 2009, and was
interviewed on January 4, 2010. More than 120 days passed after the interview, and
pursuant to 8 U.S.C. § 1447(b), plaintiff filed on October 8, 2010, a petition seeking
adjudication of his naturalization application by this Court. Plaintiff attached several
documents to his petition, including the filing fee receipt for his naturalization
application, a notice setting his interview for January 4, 2010, and records of his
inquiries as to the status of the application (doc. no. 1-1, Exs. 2, 3, 4).
On November 19, 2010, the United States Citizenship and Immigration
Services (“USCIS”) denied plaintiff’s application for naturalization and initiated
removal proceedings against him for “willfully engaging in a fraudulent marriage
with Christina Callaway for the sole purpose of obtaining an immigration benefit”
(doc. no. 9, Exs. A, B). The removal proceedings commenced when the “Notice to
Appear” at Immigration Court was filed on December 15, 2010. See 8 C.F.R. §§
1003.14(a) and 1239.1(a). The removal proceedings are on-going, with a hearing set
for February 29, 2012 in the Cleveland Immigration Court (doc. no. 17 at 3, fn.2).
On January 19, 2011, the United States Attorney General (“US-AG”) and other
defendants (collectively “defendants”), moved to dismiss plaintiff's petition for lack
of subject matter jurisdiction pursuant to Rule 12(b)(1) and for failure to state a claim
upon which relief may be granted pursuant to Rule 12(b)(6). In their motion, the
defendants assert that 1) the complaint is moot because Baysal has already received
the relief he requested (i.e., consideration of his naturalization application); and 2)
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federal courts may not consider a § 1447(b) petition for adjudication of naturalization
application while removal proceedings are pending against the applicant.
II. Issues Presented
The main issues before the Court are: (1) whether this Court lacks subject
matter jurisdiction over plaintiff’ petition; and (2) whether this court may consider
plaintiff’s petition for adjudication of naturalization while removal proceedings are
pending against him.
III. Standard of Review
A. Subject Matter Jurisdiction under Rule 12(b)(1)
Defendants contend that this Court lacks subject matter jurisdiction over the
petition, and indicate that they are presenting both a “factual” and a “facial”
challenge to this Court's subject matter jurisdiction. The Court of Appeals for the
Sixth Circuit has explained that:
“A Rule 12(b)(1) motion can either attack the claim of
jurisdiction on its face, in which case all allegations of the
plaintiff must be considered as true, or it can attack the
factual basis for jurisdiction, in which case the trial court
must weigh the evidence and the plaintiff bears the burden
of proving that jurisdiction exists.
DXL, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004) (citing RMI Titanium Co. v.
Westinghouse Elec. Corp., 78 F.3d 1125, 1133-35 (6th Cir.1996) and United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir.1994)). When considering a “factual” challenge
under Rule 12(b)(1), courts may consider evidence to determine whether jurisdiction
actually exists, see Nichols v. Muskingum College, 318 F.3d 674, 677 (6th Cir. 2003),
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and plaintiff bears the burden of proving that the court properly has subject matter
jurisdiction. Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005).
A “facial” challenge merely alleges that the plaintiff’s complaint does not
allege a basis for subject matter jurisdiction. Ohio Nat'l Life Ins. Co. v. United States,
922 F.2d 320, 325 (6th Cir. 1990). A facial challenge attacks the sufficiency of the
pleadings, and the trial court takes the allegations of the complaint as true, which
is similar to the Rule 12(b)(6) standard.
Id.;
Gentek Bldg. Products, Inc. v.
Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007).
B. Failure to State a Claim upon which Relief can be Granted under Rule 12(b)(6)
"A party may, by motion, defend against a claim for relief if the claimant fails
to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In order
to withstand a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (quoting Twombly v. Bell Atlantic, 550
U.S. 544, 570 (2007)). However, courts are not required to accept legal conclusions
couched as factual allegations. Twombly, 550 U.S. at 555-56 (citing Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 508, n. 1 (2002)). A complaint’s "[f]actual allegations
must be enough to raise a right to relief above the speculative level." Id. at 555.
IV. Analysis
A. Whether this Court has subject matter jurisdiction over the petition
Plaintiff received a naturalization interview and more than 120 days then
elapsed without a decision by USCIS on his application. Given the delay, plaintiff
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filed a petition for adjudication of his naturalization application in this federal court
pursuant to 8 U.S.C. § 1447(b), which provides:
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.
The statutory language does not expressly indicate that the district court's
jurisdiction is exclusive, but the majority opinion is that the proper filing of a §
1447(b) petition provides the federal court with exclusive jurisdiction over the
petition. See Bustamante v. Napolitano, 582 F.3d 403, 405 (2d Cir. 2009) (“only the
district court has jurisdiction over a naturalization application once an applicant files
a proper Section 1447(b) petition”); Etape v. Chertoff, 497 F.3d 379, 383 (4th Cir.
2007) (same); United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (en banc)
(“Section 1447(b) allows the district court to obtain exclusive jurisdiction over those
naturalization applications on which the INS fails to act within 120 days”); and see,
Lucaj v. Dedvukaj, 749 F.Supp.2d 601 (E.D.Mich. 2010) (upon the filing of the §
1447(b) petition, jurisdiction is vested exclusively in the federal court).
After plaintiff filed his petition in federal court, USCIS denied his application
for naturalization and commenced removal proceedings against him. Defendants
contend that plaintiff’s petition is “moot” because he has received the relief he
requested, i.e. USCIS consideration of his naturalization application (doc. no. 9 at 1).
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Plaintiff asks this Court to grant his naturalization application and give him his oath
of citizenship (doc. no. 1, Request for Relief ¶ 3). Defendants argue that USCIS has
already denied plaintiff’s naturalization petition. The Court need not belabor these
arguments, because even assuming that the Court has subject matter jurisdiction
under 8 U.S.C. § 1447(b), the commencement of removal proceedings against
plaintiff essentially precludes further consideration of plaintiff’s federal petition here.
B. Whether the Pending Removal Proceeding Against Plaintiff Precludes
Consideration of Plaintiff’s Application for Naturalization
The Immigration Act of 1990, at 8 U.S.C. § 1429, provides that “no application
for naturalization shall be considered by the Attorney General if there is pending
against the applicant a removal proceeding. . . ” 8 U.S.C. § 1429 (2006). Pursuant to
8 U.S.C. §1421(a), the exclusive power to naturalize aliens rests with the Attorney
General of the United States through USCIS. Zayed v. United States, 368 F.3d 902,
906 (6th Cir. 2004).
Section 1429 limits the availability of relief for naturalization applicants in
federal court. “[A]lthough § 1429 does not directly strip the district courts of
jurisdiction to review the denial of applications for naturalization while removal
proceedings are pending, the statutory scheme does limit the scope of judicial
review and the availability of meaningful relief.” Zayed, 368 F.3d at 903. The Court
of Appeals for the Sixth Circuit has explained that:
§ 1429 should be read to restrict the scope of the district
court’s authority under § 1447(b), as we have held it does
for claims under § 1421(c), we conclude that the district
court was not deprived of subject matter jurisdiction.
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However, because removal proceedings were (and still
are) pending, the district court was precluded from
granting relief pursuant to § 1447(b) by either adjudicating
the application for naturalization or remanding to the
USCIS with instructions that it do so. Accordingly, it was
not error to dismiss plaintiff’s § 1447(b) claims without
prejudice.
Rahman v. Napolitano, 385 Fed.Appx. 540, 544 (6th Cir. 2010) , cert. denied, 131 S.Ct.
1612 (2011). In other words, removal proceedings have statutory priority over
naturalization proceedings. The procedural facts of Rahman are on point with the
procedural facts of the present case.
Plaintiff attempts to distinguish his case from Rahman by pointing out that he
filed his § 1447 complaint before removal proceedings had commenced. However,
this is a distinction of no importance. As the Court of Appeals for the Sixth Circuit
explained in Zayed, the timing of filing is immaterial under the statute. “Regardless
of when removal proceedings are initiated, the Attorney General may not naturalize
an alien while such proceedings remain pending.” Zayed, 368 F.3d at 907. Like the
complaint in Rahman, plaintiff’s complaint is subject to dismissal without prejudice
for failure to state a claim for which relief can be granted. Very simply, “no relief
may be granted” to plaintiff in light of the provisions of § 1429. Given that removal
proceedings are currently pending against Baysal, § 1429 expressly precludes the
relief he seeks from this Court.
Accordingly, the defendants’ “Motion to Dismiss” (doc. no. 9) is granted for
failure to state a claim for relief; the plaintiff’s “Petition for Adjudication of
Naturalization Application” (doc. no. 1) is dismissed without prejudice.
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IT IS SO ORDERED.
s/Herman J. Weber
Herman J. Weber, Senior Judge
United States District Court
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