Rodeles v. United States Citizenship and Immigration Services et al
Filing
13
Opinion and Order: Defendant's Motion to Remand Case to Agency 8 is Granted. This matter is remanded to the United States Citizenship and Immigration Services with instructions to adjudicate the plaintiff's application for naturalization at the conclusion of plaintiff's removal proceedings. Signed on February 1, 2008 by Judge Ann L. Aiken. (cp) Modified on 12/13/2008 (rmm).
Rodeles v. United States Citizenship and Immigration Services et al
Doc. 13
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Roberto PARRA RODELES, Plaintiff,
Civ. No. 07-1345-AA
OPINION AND ORDER
United States Citizenship and Immigration Services, William D. McNamee, Portland District Director and Emilio Gonzalez, Director; Department of Homeland Security, Michael Chertoff, Secretary; and Department of Justice, Alberto Gonzales, United States Attorney General; Defendants. Nicole H. Nelson Philip J. Smith Nelson Smith, LLP 208 S First Avenue, Suite 360 W Portland, Oregon 97204 Attorneys f o r plaintiff
Karin J. Immergut James E. Cox, Jr United States Attorney's Office District of Oregon 1000 S.W. Third Avenue, Suite 600 Portland, OR 97204-2902 Attorneys for defendants
.
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AIKEN, Judge :
In September 2007, plaintiff filed suit alleging that
defendants, all sued in their official capacities, failed to adjudicate his application for naturalization within
the
statutorily required 120-day time frame.
Plaintiff requests that
this court assume jurisdiction and adjudicate his naturalization
application pursuant to 8 U.S.C.
§
1447(b).
Defendants move for remand of this action to the United States Citizenship
&
Immigration Services ("USCIS"), arguing that this
court should exercise its discretion to remand the matter with instructions to determine plaintiff's application for
naturalization within thirty days of remand.
FACTUAL BACKGROUND
As alleged in his complaint, plaintiff, Roberto Parra Rodeles,
is a citizen of Mexico who resides in the United States.
He was
admitted as a lawful permanent resident of the United States on December 1, 1990. On July 26, 1996, plaintiff pled guilty to the unlawful possession of a firearm in Multnomah County. On May 30, 2004,
plaintiff was arrested for driving under the influence.
On
May
19,
2006,
plaintiff
filed
an
application
for
naturalization with USCIS. On October 16, 2006, plaintiff appeared at USCIS offices in Portland, Oregon, for an initial interview in relation to his application.
2
At the interview, immigration
- OPINION AND ORDER
officials requested that plaintiff submit additional documentation regarding his 1996 conviction. information on November 13, 2006.
On September 7, 2007, plaintiff received a Notice to Appear
Plaintiff timely submitted this
for removal proceedings from Immigration and Customs Enforcement ("ICE").
ICE seeks removal of plaintiff based on his 1996
a
conviction for unlawful possession of
firearm.
Removal
proceedings were formally initiated when ICE filed the Notice to Appear with the immigration court on September 27, 2007.
On September 10, 2007, plaintiff filed suit requesting that
this court assume jurisdiction and make a determination on his application tor naturalization. Plaintiff alleges that, pursuant
to 8 U.S.C. 5§ 1429 and 1447(b), this court is the proper and only
forum available to adjudicate his application pending removal
proceedings against him.
DISCUSSION
Plaintiff seeks de novo review of his application fox naturalization pursuant to 8 U.S.C.
§
2447(b).
Under
§
1447(b), a
district court may assume jurisdiction over a naturalization application when USCIS has failed to .adjudicate the application within 120 days after conducting an examination of the applicant. After a plaintiff applies to the district court for a hearing, the court may make a determination on the matter, or it may remand with appropriate instructions to USCIS.
3 8 U.S.C. 5 1447(bJ.
- OPINION AND ORDER
Defendants argue that the court should exercise its discretion to remand this matter to USCIS for two reasons. First, defendants argue that Congress intended that USCIS adjudicate applications for naturalization in the first instance. Second, defendants maintain that Congress intended for removal proceedings to take precedence over naturalization proceedings, an intent that would be frustrated
if this court were to adjudicate plaintiff's application for
naturalization while removal proceedings are pending against him. Until 1990, United States district courts were vested with exclusive jurisdiction to adjudicate naturalization applications and to naturalize aliens as citizens of the United States. See 8 U. S.C. SS 1101 (a)(24), 1421 (a) (repealed 1991). When Congress
, enacted the Immigration Act of 1990 ("IMMACT") the naturalization
process ceased to be judicial in nature and became primarily an administrative procedure.
4978.
Pub. L. No. 101-649,
§
401, 104 Stat.
Reflecting this shift, the statute now reads, " [tlhe sole
authority to naturalize persons as citizens of the United States is conferred upon the Attorney General."
8 U.S.C. S 1421(a).
Vesting authority over naturalization proceedings with the Attorney General - and now the Secretary of the Department of Homeland Security - was intended to reduce the burden on courts and increase the speed and efficiency with which qualified applicants could obtain citizenship. 1144, 1163 19th Cir. United States v. Hovse~ian, 359 F.3d Pursuant to this streamlined
2004).
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- OPINION
AND ORDER
administrative
process,
USCIS
is
solely
responsible
for
adjudicating naturalization applications, including conducting preliminary investigations, administering examinations, and
ultimately making determinations to grant or deny citizenship to applicants. See 8 U.S.C.
If USCIS
§
1446.
issues an initial denial of a naturalization applicant may request a hearing before
application, the
a
supervisory USCIS officer for purposes of administrative review.
8 C.F.R. S 336.2.
District courts may assume jurisdiction to
conduct de novo review of applications that have been denied pursuant to the administrative review process. 8 U.S.C. S 1421 (c).
In this case, USCIS has not made a final determination on
plaintiff's application for naturalization filed on May 19, 2006. Although plaintiff correctly posits that
S
1 4 4 7 (b)
vests
jurisdiction over naturalization applications with district courts when USCIS has failed to make a determination within 120 days, the court's authority under these circumstances is discretionary, and
I may remand the matter back to USCIS.
statutory scheme reflects congressional
Indeed, the current intent that
USCIS
adjudicate naturalization applications in the first instance. See
De Lara Bellajaro v. Schiltaen, 378 F.3d 1042, 1046-47 (9th C i r .
2004). If plaintiff's application is ultimately denied by USCIS,
plaintiff may seek the district court's jurisdiction to review the denial.
8 U.S.C.
§
l42Itc).
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- O P I N I O N AND ORDER
Notwithstanding congressional intent, plaintiff argues that remand is not appropriate here because USCIS may not adjudicate plaintiff's naturalization application while removal proceedings are pending against him.
See 8
U.S.C.
5 1429
(''
[N]o 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 while
§
...
").
Plaintiff argues that
USCIS
1429 restricts the
jurisdiction of
in
such
situations, it does not similarly limit the jurisdiction of district courts under 5 1447{b). Therefore, plaintiff argues that not only is this court authorized to adjudicate his naturalization application, it is the only forum available to make such a determination. For the reasons set forth below, I find that the district court's exercise of jurisdiction over plaintiff's naturalization application is not appropriate while removal proceedings are pending against him, plaintiff's argument.
and I am not inclined to agree with
First, as the Ninth Circuit Court of Appeals stated in
Perdomo-Padilla v. Ashcroft, "[tlhe natural reading of [ S 14291 is that removal proceedings and final removal orders are to take precedence over naturalization applications. " (9th Cir. 2003).
333 F. 3d 964, 970
The recognized intent of 5 1429 - prioritizing
removal proceedings over naturalization - would be subjugated if
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district courts were to make determinations on naturalization applications while removal proceedings are pending.
v.
U.S.C,I.S.,
See also Zhai
1 share
2004 WL 1960195 (N.D. Cal. Sept. 3, 2 0 0 4 ) . expressed
by
the
concern
the
Ninth
Circuit
that
making
naturalization determinations while removal proceedings are pending could result in an unjustifiable race between USCIS removal
proceedings and district court adjudication of naturalization applications. See Bellaiaro, 378 F.3d at 1045 (citing Shomberu v. United States, 348 U.S. 540, 544 ( 1 9 5 5 ) )
.
Further, as defendants argue, the Ninth Circuit Court of Appeals has implied that remand is the appropriate action for district courts to take pursuant ta 5 1447(b) while removal proceedings are pending.
See
Hovse~ian, 359 F . 3 d
at
1165
("Regardless of the reasons f.or failing to file the charging papers, the fact remains that no removal proceedings were 'pending' against [the applicants] when the district court naturalized them. Thus, S 1429 did not bar the district court from considering their naturalization applications."). Finally, in cases where USCIS has issued an initial denial of
an application for naturalization based on
§
1429, the scope of
district court review is limited to the reason fox "such denial." Bellaiaro, 378 F.3d at 1046-47; see also Zaved v. United States,
368 F.3d 902, 906 (6th Cir. 2004).
Therefore, the district court
may not conduct a de novo determination when USCIS has not issued
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AND ORDER
a final decision on the merits of the application due to the pendency of removal proceedings. Even though, unlike Bellaiaro,
USCIS has not denied plaintiff's naturalization application under
§
1429, I am not persuaded that de novo review of his application
is proper pending removal proceedings.
Plaintiff makes a valid point that remand with instructions to adjudicate his application for naturalization within thirty days would be futile, because USCIS cannot adjudicate his application while removal proceedings are pending against him. However,
defendant argues that remand with the instruction to adjudicate within thirty days is not the only order available to this court, Alternatively, defendants request that the court instruct USCIS to make a determination on plaintiff's naturalization application
after removal proceedings have concluded, an instruction this court
is inclined to give under the circumstances. For the reasons set forth above, I find that de novo review of plaintff f ts naturalization application under 5 1 4 4 7 (b) is not appropriate while removal proceedings have commenced and are pending under S 1429. Accordingly, I exercise my discretion to
remand this matter to USCIS with instructions.
CONCLUSION
Defendants' Motion to Remand (doc. 8) is GRANTED. This matter is remanded to the United States Citizenship
&
Immigration Services
with instructions to adjudicate the plaintiff's application for
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- O P I N I O N AND
ORDER
naturalization proceedings.
at
the
conclusion
of
plaintiff's
removal
I T I S SO ORDERED.
Dated this
day of February, 2008.
Ann A i k e n United States District Judge
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- O P I N I O N AND ORDER
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