Linarez-Andrade v. Holder et al

Filing 22

ORDER: Respondents' Motion to Dismiss 14 is allowed. Petition 1 is denied. Petitioner's Emergency Motion for Stay of Deportation 19 is denied as moot. The Clerk of the Court is directed to enter a judgment dismissing this proceeding. Signed on 1/15/2014 by Chief Judge Ann L. Aiken. (gw)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
RICARDO LINAREZ-ANDRADE (.a.k.a.
Ricardo Linares-Andrade),
3:13-cv-01073-AA

Petitioner,

v.

ORDER

ERIC HOLDER, et al.,
Respondents.
AIKEN, District Judge.
Petitioner filed a "Petition for hearing on determination
of Naturalization Application" pursuant to INA Section 336(b)
and Title 8 U.S.C. 1447 (b).

Alternatively, petitioner alleges

that his application has already been adjudicated and seeks
relief pursuant to Title 28
Act"),

and

Title

5

U.S.C.

U.S.C.
§§

§

1361,

551-706

the

(the "Mandamus
Administrative

Procedures Act.
Respondent moves

to dismiss

for

lack of

jurisdiction

(#15).
The relevant facts are as follows: Plaintiff is a citizen
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of Mexico who became a lawful permanent resident of the United
States in 1996.

Certified Administrative Record ("CAR", p. 5.

Plaintiff filed an Application for Naturalization (Form N-400)
on July 5, 2005. Id.

Plaintiff was convicted of racketeering

on April 7, 2008 and sentenced to 24 months imprisonment.
Plaintiff

was

ordered

removed

by

an

Immigration

Judg

Id.

on

November 4, 2008, and he was removed on November 8, 2008.
The United States Citizenship and Immigration Service
(USCIS)

denied

December

28,

plaintiff's

2009.

plaintiff's last

Id.

at

naturalization
4.

The

application

decision

was

sent

on
to

known address but returned with "no mail

receptacle, return to sender." Id. at 6. The record indicats
that the decision was also sent to petitioner's counsel at the
time . I d. at 4 .
On April 30, 2013, petitioner made a telephone inquiry to

users

about the status of his N-400.

He was sent another copy

of the denial at the address given with the inquiry but it was
returned "no such number, unable to forward." Id. at 3.
Petitioner alleges in his petition that the court has
jurisdiction over his application for naturalization under 8

u.s.c.

1447 (b).

However,

in his opposition to respondents'

motion to dismiss, petitioner acknowledges that§ 1447(b) does
not provide a proper jurisdictional basis because the
has

already

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adjudicated

his

naturalization

users

application.

Petitioner contends that the court has jurisdiction under 8
U.S.C.

§

1421(c).

Title 8 U.S.C.

§

1421© provides:

A person whose application for naturalization under
this subchapter is denied, after a hearing before
an immigration officer under section 144 7 (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 shall, at the request of the petitioner,
conduct a hearing de novo on the application.
Thus

district

court

jurisdiction

over

naturalization

applications is specifically limited to applications which
have

been

officer"

denied
under

8

"after

a

hearing

U.S.C.

§

before

1447 (a).

This

an

immigration

hearing

is

an

administrative appeal of naturalization applications initially
denied by USCIS.

See, 8 U.S.C.

§

1447(a). Plaintiff has not

filed a request for such a hearing.
This court lacks jurisdiction over the petition because
an administrative appeal hearing is a prerequisite to district
court jurisdiction under 8 U.S.C.
v. Hov3sepian,

307 F. 3d 922,

932

1421©. See, United States

§

(9th Cir.

Aparicio v. Blakeway, 302 F.3d 437, 440
Respondents'

Motion

Petitioner Petition (#1)

to

Dismiss

is denied.

2002) ;

see also,

(5th Cir. 2002).
(#14)

is

allowed.

Petitioner's Emergency

Motion for Stay of Deportation (#19) is denied as moot.

The

Clerk of the Court is directed to enter a judgment dismissing

3 - ORDER

this proceeding.

DATED this

day~"'
Ann Aiken
United State District Judge

4 - ORDER