Awe v. Napolitano et al

Filing 14

OPINION AND ORDER by Judge Terence Kern ; dismissing/terminating case (terminates case) ; granting 7 Motion to Dismiss for Lack of Jurisdiction (vah, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
AHMED AWE,
Plaintiff,
vs.
JANET NAPOLITANO, Secretary, U.S.
Department of Homeland Security; EMILIO
GONZALEZ, Director, U.S. Citizenship and
Immigration Services, and JOSE OLIVARES,
Field Office Director, USCIS,
Defendants.

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OPINION AND ORDER
Before the Court is Defendants’ Motion to Dismiss (Doc. 7).
I.

Background
Plaintiff Ahmed Awe (“Awe”) has been a lawful permanent resident of the United States

since November 21, 1968. On July 11, 1976, when Awe was eighteen years old, he was arrested for
burglary and received a deferred two-year sentence. Approximately two and a half years later, on
February 4, 1978, Awe was arrested for “drunkenness.” This charge was later dismissed. On
September 16, 1983, Awe was arrested for possession of marijuana with intent to distribute,
possession of cocaine, and maintenance of a house where drugs were kept/sold. Awe entered a
guilty plea to these charges and was sentenced to three years imprisonment. Two months later, Awe
was arrested for unlawfully possessing a controlled drug, but this charge was dismissed. Awe
subsequently received a pardon from the Governor of Oklahoma for the offenses carrying prison
time.
On June 27, 2007, Awe filed an Application for Naturalization (Form N-400)
(“Application”) on the basis that he had been a lawful permanent resident of the United States for

more than five years and was otherwise eligible for naturalization. Awe appeared for examination
on the Application on June 17, 2008. During the examination, Awe alleges that he disclosed his
1983 arrest for drug charges and provided a Tulsa Police Department Criminal History letter, which
showed the arrests prior to 1983. On August 28, 2009, Awe received notice that he was ineligible
for naturalization because of his arrest record and his purported failure to disclose his arrests as a
teenager.
Awe filed a Request for Hearing on a Decision in Naturalization Proceedings (Form N-336),
seeking review of the denial of his bid for naturalization before the United States Citizenship and
Immigration Services (“USCIS”). On January 26, 2010, USCIS upheld its original decision to deny
Awe’s Application, citing “poor moral character” and his prior arrest record as the basis for the
denial. On May 20, 2010, Awe filed a Petition for Review of Denial of Naturalization Application
(“Petition”) before this Court pursuant to 8 U.S.C. 1421(c), requesting a de novo hearing on his
Application and that the Court remand the matter to Defendants with an instruction to grant the
Application. (Pet. §§ II, VI.) Awe maintains his Application should be granted because he “is a
person of good moral character within the meaning of 8 U.S.C. § 1427[,] is otherwise eligible for
naturalization[,] has not been arrested or charged with any offense during the statutory period[,] [and
his Application] cannot be denied solely on the basis of his criminal record from 1983 (and before).”
(Pet. § V, ¶ 20.)
On August 27, 2010, approximately three months after Awe filed his Petition, the United
States Department of Homeland Security issued a Notice to Appear, and Awe was placed in removal
proceedings. (See Notice to Appear, Ex. 1 to Defs.’ Mot. to Dismiss.) Specifically, the Notice to
Appear states that Awe is “subject to removal from the United States” pursuant to the following:

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Section 237(a)(2)(B)(I) of the Immigration and Nationality Act, as amended, in that,
at any time after admission, you have been convicted of a violation of (or a
conspiracy or attempt to violate) any law or regulation of a State, the United States,
or a foreign county relating to a controlled substance (as defined in Section 102 of
the Controlled Substances Act, 21 U.S.C. 802), other than a single offense involving
possession for one’s own use of 30 grams or less of marijuana.
(Id. at 2.) Defendants now seek to dismiss Awe’s Petition pursuant to Federal Rule of Civil
Procedure 12(b)(1) (“Rule 12(b)(1)”), arguing that the filing of removal proceedings against Awe
divested this Court of jurisdiction to hear Awe’s Petition. Alternatively, Defendants move to
dismiss Awe’s Petition pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) for
failure to state a claim because this Court cannot provide effective relief to Awe.
II.

Motion to Dismiss Standards
Federal courts are courts of limited jurisdiction and may exercise jurisdiction only when

specifically authorized to do so. Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994). “A court
lacking jurisdiction must dismiss the cause at any stage of the proceedings in which it becomes
apparent that jurisdiction is lacking.” Scheideman v. Shawnee County Bd. of County Comm’rs, 895
F. Supp. 279, 280 (D. Kan. 1995). The party seeking to invoke a federal court’s jurisdiction sustains
the burden of establishing that such jurisdiction is proper. Winnebago Tribe of Neb. v. Kline, 297
F. Supp. 2d 1291, 1299 (D. Kan. 2004). When federal jurisdiction is challenged, plaintiff bears the
burden of showing why the case should not be dismissed. Id.
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take one
of two forms. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). “First, a
moving party may make a facial attack on the complaint’s allegations as to the existence of subject
matter jurisdiction.” Id. “In reviewing a facial attack, the district court must accept the allegations

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in the complaint as true.” Id. “Second, a party may go beyond allegations contained in the
complaint and challenge the facts upon which subject matter jurisdiction is based.” Id. In reviewing
a factual attack, a court “may not presume the truthfulness of the complaint’s factual allegations,
[but] has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to
resolve disputed jurisdictional facts.’” Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).
In the instant case, Defendants’ Rule 12(b)(1) motion does not challenge the facts as alleged in the
Petition and therefore represents a facial attack to Plaintiff’s Petition. See Rahman v. Napolitano,
No. 09-3437, 2010 WL 2777271, at *2 (6th Cir. July 13, 2010) (construing defendants’ Rule
12(b)(1) motion to dismiss, which argued petition should be dismissed pending removal
proceedings, as facial attack).
In considering a motion to dismiss under Rule 12(b)(6), a court must determine whether the
plaintiff has stated a claim upon which relief may be granted. The inquiry is “whether the complaint
contains ‘enough facts to state a claim to relief that is plausible on its face.’” Ridge at Red Hawk,
LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544)). In order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must “‘nudge [ ]
[his] claims across the line from conceivable to plausible.’” Schneider, 493 F.3d at 1177 (quoting
Twombly, 550 U.S. at 570). Thus, “the mere metaphysical possibility that some plaintiff could prove
some set of facts in support of the pleaded claims is insufficient; the complaint must give the court
reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these
claims.” Schneider, 493 F.3d at 1177.
The Tenth Circuit has interpreted “plausibility,” the term used by the Supreme Court in
Twombly, to “refer to the scope of the allegations in a complaint” rather than to mean “likely to be

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true.” Robbins v. Okla. ex rel. Okla. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008).
Thus, “if [allegations] are so general that they encompass a wide swath of conduct, much of it
innocent, then the plaintiffs have not nudged their claims across the line from conceivable to
plausible.” Id. (internal quotations omitted). “The allegations must be enough that, if assumed to
be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Id. “This requirement
of plausibility serves not only to weed out claims that do not (in the absence of additional
allegations) have a reasonable prospect of success, but also to inform the defendants of the actual
grounds of the claim against them.” Id. at 1248. In addition, the Tenth Circuit has stated that “the
degree of specificity necessary to establish plausibility and fair notice, and therefore the need to
include sufficient factual allegations, depends on context,” and that whether a defendant receives
fair notice “depends on the type of case.” Id.
III.

Relevant Law Regarding Naturalization and Removal
“Before 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.” Ajlani v. Chertoff, 545 F.3d 229,
235 (2d Cir. 2008) (internal citations omitted). This system made it possible for naturalization and
removal proceedings to proceed simultaneously, which would sometimes give rise to a race
“between the alien to gain citizenship and the Attorney General to deport him.” Id. (citing
Shomberg v. United States, 348 U.S. 540, 544 (1955)). In 1990, however, Congress amended the
Immigration and Nationality Act (“INA”) so to “unif[y] naturalization and removal authority in the
executive.” Ajlani, 545 F.3d at 236. Specifically, Congress gave the Attorney General the “sole
authority to naturalize persons as citizens of the United States.” 8 U.S.C. § 1421(a). Congress

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limited the Attorney General’s authority in 8 U.S.C. § 1429 (“Section 1429”), however, which
provides in relevant part:
[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
proceedings pursuant to a warrant of arrest issued under the provisions of this
chapter or any other Act. . . .
8 U.S.C. § 1429.
The 1990 amendments also reserved “a measure of naturalization jurisdiction for the courts
in two circumstances: denial and delay.” Ajlani, 545 F.3d at 236. Pursuant to 8 U.S.C. § 1421(c)
(“Section 1421”), which forms the basis for Awe’s Petition,
A person whose application for naturalization under this subchapter is denied, after
a hearing before an immigration officer under section 1447(a) of this Title, may seek
review of such denial before the United States district court for the district in which
such person resides in accordance with chapter 7 of title 5. Such review shall be de
novo, and the court shall make its own findings of fact and conclusions of law and
shall, at the request of the petitioner, conduct a hearing de novo on the application.
Similarly, if “there is a failure to make a determination” on the naturalization application within 120
days after the applicant’s required examination, the alien can ask the district court “for a hearing on
the matter.” 8 U.S.C. § 1447(b) (“Section 1447(b)”). The district court may then “either determine
the matter or remand the matter.” Id.
Defendants cite Section 1429 in support of their Motion to Dismiss, arguing that it mandates
dismissal of Awe’s Petition because (1) the filing of removal proceedings divested this Court of
jurisdiction to hear Plaintiff’s Petition, and (2) the Court cannot grant effective relief to Plaintiff
because it cannot order the Attorney General to do something which is precluded by the mandate
of Section 1429. Awe objects, first citing this Court’s authority to review naturalization decisions

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under Section 1421(c). Awe additionally contends that Section 1429 fails to explicitly divest this
Court of jurisdiction, as it only states that the “Attorney General” is unable to consider an
application for naturalization during the pendency of removal proceedings. Finally, Awe argues that
when, like here, the removal proceedings are initiated after a petition is filed, the district court
retains all authority and jurisdiction to grant the requested relief.
IV.

Discussion
The issue before the Court is whether Section 1429, which limits the Attorney General’s

power to consider naturalization petitions during the pendency of removal proceedings, similarly
limits a district court’s jurisdiction to review naturalization petitions and/or leaves a petitioner
without any effective remedy from the district court. The Tenth Circuit has yet to address this
specific issue, and the Court must therefore look to other circuits for guidance. In so doing, it
becomes apparent that there exists a split in authority, as courts confronted with this issue have
adopted one of two prevailing views. Some district court decisions, which are relied upon by Awe,
have rejected the arguments advanced by Defendants and held that Section 1429 precludes only the
Attorney General from considering a petition for naturalization by an alien against whom removal
proceedings are pending and does nothing to affect the district court’s jurisdiction or remedies
available to it. See Gonzalez v. Napolitano, 684 F. Supp. 2d 555, 560-63 (D.N.J. 2010); Kestelboym
v. Chertoff, 538 F. Supp. 2d 813, 818 (D.N.J. 2008); Grewal v. Ashcroft, 301 F. Supp. 2d 692, 69597 (N.D. Ohio 2004); Saad v. Barrows, No. 03-1342, 2004 WL 1359165, at *5-6 (N.D. Tex. June
16, 2004); Ngwana v. Attorney Gen., 40 F. Supp. 2d 319, 321-22 (D. Md. 1999). These courts
generally rely on the plain language of Section 1429 and reason that if Section 1429 divested district
courts of authority to review denials of naturalization applications, the Immigration and

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Naturalization Service (“INS”) could effectively circumvent judicial review of naturalization
applications by initiating removal proceedings. See Gonzalez, 684 F. Supp. 2d at 560-61;
Kestelboym, 538 F. Supp. 2d at 818; Grewal, 301 F. Supp. 2d at 696-97; Ngwana, 40 F. Supp. 2d
at 321-22.
In contrast, the Second, Fifth, and Sixth Circuits have dismissed petitions seeking review
of a naturalization decision when removal proceedings are pending, holding that said proceedings
limit the court’s review pursuant to Section 1421 or Section 1427 and circumscribe the availability
of effective remedies. See Ajlani, 545 F.3d at 239-241 (holding that the priority afforded removal
proceedings by Section 1429 limits the courts’ authority to grant naturalization pursuant to Section
1421 or Section 1427) (“[W]e think district court authority to grant naturalization relief while
removal proceedings are pending cannot be greater than that of the Attorney General.”) (finding that
district court properly dismissed plaintiff’s request for review of naturalization application for failure
to state a claim); Saba-Bakare v. Chertoff, 507 F.3d 337, 340 (5th Cir. 2007) (stating that “[Section
1429] requires that [plaintiff] wait until the termination of the removal proceeding before either a
district court or the USCIS entertains a question regarding his naturalization application”) (affirming
district court’s dismissal of petition seeking de novo review of naturalization application pursuant
to Section 1421(c)); Zayed v. United States, 368 F.3d 902, 906-07 (6th Cir. 2004) (“The effect of
[Section 1429], in our view, is to limit the scope of the court’s review and circumscribe the
availability of effective remedies, but not to oust the district court of jurisdiction.”) (“[T]he restraints
that [Section 1429] imposes upon the Attorney General prevent a district court from granting relief
under [Section1421(c)] so long as removal proceedings are pending.”) (affirming district court’s
dismissal of plaintiff’s petition for review of naturalization application); see also De Lara Bellajaro

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v. Schiltgen, 378 F.3d 1042, 1048 (9th Cir. 2004) (citing Zayed with approval); see also Rahman,
2010 WL 2777271, at *543 n. 4 (following Zayed and noting that district court opinions going other
way are “against the weight of appellate authority”).
The Court agrees with this appellate authority. While the text of Section 1429 does not
explicitly divest this court of jurisdiction during the pendency of removal proceedings, see 8 U.S.C.
§ 1429 (stating “no application for naturalization shall be considered by the Attorney General if
there is pending against the applicant a removal proceedings”); Zayed, 368 F.3d at 906 (finding that
Section 1429 “simply has no bearing on the district court’s jurisdiction to review the administrative
denial of a naturalization application of an alien against whom removal proceedings have been
initiated”), it necessarily “circumscribes the availability of effective remedies,” Zayed, 368 F.3d at
906. Specifically, even if the Court were to conduct a de novo review of the decision to deny Awe’s
naturalization application, and even if the Court were to determine that the decision was in error, the
Court cannot grant Awe the relief he seeks. “The exclusive power to naturalize aliens rests with the
Attorney General, . . . and [Section 1429] bars the use of that power while removal proceedings are
pending.” Id. (additionally noting the “district court could not properly have entered an order
granting the application without reference to the Attorney General [since] Congress . . . decided that
it would be the Attorney General who should have ‘sole authority to naturalize persons’”) (citing
8 U.S.C. § 1421(a)). Therefore, because Section 1429 precludes the Attorney General from granting
naturalization to Awe due to the pending removal proceedings, Awe cannot currently secure such
relief from this Court. Ajlani, 545 F.3d at 238 (noting same); see Zayed, 368 F.3d at 906 n.5
(questioning holding in Ngwana, 40 F. Supp. 2d at 322, where district court ordered INS to grant

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application for naturalization despite removal proceedings, by stating “[w]e are something of a loss
. . . to understand how judicial fiat can overcome the statutory bar of [Section 1429]”).
Further, the Court is not persuaded by Awe’s argument that the timing of the removal
proceedings, which were initiated after he filed suit in this Court, necessitates rejection of
Defendants’ Motion to Dismiss. While the Court notes Awe’s concern that under the current
statutory regime, the Government might initiate removal proceedings simply to obstruct judicial
consideration of naturalization applications, this concern is most appropriately addressed to
Congress, and not this Court. See Saba-Bakare, 507 F.3d at 341 (noting that equitable concerns
regarding statutory framework governing immigration and naturalization should be addressed to
Congress).

Further, both the Sixth and Fifth Circuits dismissed petitions under similar

circumstances – namely, where the removal proceedings were initiated after the plaintiff filed for
relief in district court. See Zayed, 368 F.3d at 904, 907 (removal proceedings commenced a “few
weeks” after plaintiff filed petition for review with district court) (“Regardless of when removal
proceedings are initiated, the Attorney General may not naturalize an alien while such proceedings
remain pending.”); Ajlani, 545 F.3d at 232, 238 (noting that, like in Zayed, removal proceedings
were initiated after plaintiff filed for judicial relief) (plaintiff filed suit on October 30, 2006 and
removal proceedings formally commenced on December 20, 2006) (finding that district court could
not grant relief to plaintiff pending said removal proceedings).
Therefore, for the reasons outlined herein, the Court finds that Awe’s petition is subject to
dismissal without prejudice for failure to state a claim upon which relief can be granted.1 Zayed,

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Because the Court finds that Section 1429 does nothing to divest this Court of its
jurisdiction, the Court finds dismissal appropriate under Rule 12(b)(6), and not Rule 12(b)(1).
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368 F.3d at 906-07 (“We believe that the dismissal [without prejudice] of [plaintiff’s] petition for
review must be affirmed. The fact that the statute precludes the relief sought requires this result.”);
Ajlani, 545 F.3d at 241 (affirming dismissal for failure to state a claim upon which relief could be
granted).
V.

Conclusion
For the reasons outlined herein, Defendants’ Motion to Dismiss (Doc. 7) is GRANTED and

this matter is dismissed without prejudice. A Judgment of Dismissal will be issued forthwith.
IT IS SO ORDERED this 6th day of September, 2011.

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