Singh v. Lynch et al

Filing 32

MEMORANDUM DECISION AND ORDER-The Court having considered Respondents' Motion to Dismiss (ECF No. 18) and good cause appearing, the Motion is granted. Accordingly, Mr. Singh's Petition for Review of Denial of Application for Naturalization is dismissed without prejudice for lack of jurisdiction. Signed by Judge David Sam on 1/18/18. (jmr)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
**********************************************************
SARBJIT SINGH,

)
Petitioner,

Case No. 2:17-cv-00036 DS

)

vs.

)

JEFFERSON B. SESSIONS III,
et al.,

MEMORANDUM DECISION
AND ORDER

)
)

Respondents.
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I. INTRODUCTION
Sarbjit Singh has filed a Petition for Review of Denial of Application for
Naturalization under 8 U.S.C. § 1421(c).1 In it he challenges the Department of Homeland
Security United States Citizenship and Immigration Services’ (“USCIS”) denial of his
naturalization application (Form N-400) based on its finding that he was not lawfully
admitted because his birth certificate and the death certificate of his prior wife in India,
submitted at the time of his admission, were determined by USCIS to be fraudulent.
Mr. Singh requests that the Court remand this matter to USCIS and order it to
process his naturalization application without regard to whether his admission to

Section 1421(c) provides:
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.
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permanent residence was lawful at the time. Alternatively, he request that the Court: (1)
find that he meets the requirements of naturalization, (2) approve his naturalization, (3)
administer the oath, and/or (4) order Respondents to schedule an oath ceremony within
thirty days, and issue him a naturalization certificate.
Respondents move to dismiss the Petition for a number of reasons, including
jurisdictional mootness. For the reasons that follow, Respondents’ Motion to Dismiss is
granted for lack of jurisdiction.
II. FACTUAL BACKGROUND
Mr. Singh is a native and citizen of India. He entered the United States at El Paso,
Texas on May 27, 1996. On March 3, 1997 he applied for asylum which later was denied
because his claims about persecution in India were found not credible.

While in

immigration proceedings, Mr. Singh met and married Diana Ramirez. They were married
on January 22, 2001. On February 28, 2001, Diana Ramirez, a U.S. Citizen, filed an I-130
alien relative petition with the USCIS on Petitioner’s behalf. Petitioner concurrently filed
a Form I-485 application to register permanent residence or adjust status. The parties
submitted with those filings a death certificate for Mr. Singh’s former spouse in India,
Sukhwinder Kaur, to establish his legal ability to marry his current spouse Diana Ramirez,
and Mr. Singh’s Indian birth certificate.
The USCIS granted the I-130 petition for alien relative on December 28, 2005. On
February 10, 2006, the immigration judge in Mr. Singh’s immigration proceedings granted
his I-485 application to register permanent residence or adjust status.
On March 1, 2006. fewer than 30 days later, Mr. Singh filed for divorce. The divorce
became final on January 19, 2007. And on February 25, 2007, Mr. Singh married his third
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wife, Kiran. He filed an I-130 petition for alien relative on behalf of his new wife Kiran,
along with a copy of her birth certificate. In connection with that filing, USCIS renewed its
attempts to authenticate all documentation submitted by Mr. Singh. In a letter dated July
28, 2008, the Indian government responded that Mr. Singh’s birth certificate was
fraudulent. And on August 11, 2011, USCIS was informed by the Indian government that
the death certificate provided for Mr. Singh’s former spouse also was fraudulent.
The USCIS subsequently determined the Mr. Singh had procured his I-130 petition
for alien relative, filed by Diana Ramirez, through fraud, and that because he was never
lawfully adjusted to permanent resident status due to fraud, he was statutorily ineligible to
naturalize.
On October 8, 2015, the USCIS formally denied Mr. Singh’s naturalization
application, and reaffirmed its denial on September 15, 2016.
Mr. Singh filed his Petition in this court on January 12, 2017. And on June 13, 2017,
the USCIS placed him in removal proceedings based on its finding that he procured his
admission through fraud.
III . DISCUSSION
Resolution of this matter requires an examination of the interplay among three
statutory provisions, 8 U.S.C. §§ 1421(a) & (c) and 1429. Section 1421(a) confers upon
the Attorney General, now USCIS2, the “sole authority” to naturalize individuals. As

Although 8 U.S.C. §§ 1421 and 1429 continue to refer to the “Attorney General”,
the Homeland Security Act of 2002 transferred authority for adjudicating naturalization
applications from the Commissioner of the legacy Immigration and Naturalization Service,
formerly a component of the Department of Justice, to the Director, USCIS, a component
of the Department of Homeland Security. Pub. L. No. 107-296 § 451(b), 116 Stat. 2192-95
(2002).
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previously noted, section 1421(c) grants the right of judicial review to individuals whose
naturalization applications have been denied after a hearing before an immigration officer.
And section 1429 prevents the attorney general from deciding a naturalization application
while a removal proceeding is ongoing.3
After examining the pleadings and the relevant case authority, the Court is
persuaded by an unpublished decision by the Tenth Circuit that this matter must be
dismissed because it does not satisfy the jurisdictional requirements of Article III of the
Constitution. See Awe v. Napolitano, 494 Fed. Appx. 860 (10th Cir. 2012) (dismissing for
lack of Article III jurisdiction plaintiff’s challenge to the denial of his naturalization
application because the district court could no longer grant effective relief under 8 U.S.C.
§ 1429).
In Awe, petitioner, a lawful permanent resident, filed a naturalization application
which was denied by the USCIS. Mr. Awe filed a petition for review in the district court
under § 1421(c) and was subsequently placed in removal proceedings. On appeal the
Tenth Circuit agreed with the district court that it had statutory jurisdiction and that § 1429
precludes any effective judicial relief. However, it affirmed the district court’s dismissal on
the alternate ground of constitutional mootness, rather than for failure to state a claim upon
which relief can be granted. The judgment of the district court was vacated and the matter
remanded with instructions to dismiss without prejudice for lack of jurisdiction.

“[N]o application of naturalization shall be considered by the Attorney General if
there is pending against the applicant a removal proceeding pursuant to a warrant of arrest
....” 8 U.S.C. § 1429.
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This Court adopts the analysis of the Awe Court which, after surveying the state of
relevant law, opined as follows.
We agree with the shared conclusion of the Third, Sixth, and Ninth
Circuits that § 1429 does not strip district courts of jurisdiction over
petitions regarding naturalization applications. Plainly, the statutory
prohibition refers only to the Attorney General (read: the Secretary of
Homeland Security). We also agree with the majority view of the Second,
Fifth, Sixth, and Ninth Circuits that removal proceedings, whether in
process at the time a § 1421(c) petition is filed or initiated thereafter,
effectively bar federal consideration of § 1421(c) petitions by virtue of
§ 1429. However, our conclusion as applied to Mr. Awe rests on the
doctrine of constitutional mootness, not whether there has been a failure
to state a claim upon which relief can be granted.
As we aptly summarized in Jordan v. Sosa, the doctrine of constitutional
mootness requires that a “controversy must remain alive at the trial and
appellate stages of the litigation.” 654 F. 3d at 1024 (internal quotation
marks omitted). The focus is on “whether conclusive relief may still be
conferred by the court despite the lapse of time and any change of
circumstances that may have occurred since the commencement of the
action.” Id. (internal quotation marks omitted). To avoid mootness, a case
must be “amenable to specific relief.” Id. (emphasis and internal
quotation marks omitted).
The initiation of removal proceedings against Mr. Awe rendered
his § 1421(c) petition moot. A ruling by the district court ordering the
USCIS to grant Mr. Awe’s naturalization application, which was the
substantive focus of his prayer for relief, would be ineffective because
of § 1429's prohibition on agency action during the pendency of
removal proceedings. Thus, the initiation of removal proceedings
constituted a “change of circumstances” that precluded any “conclusive” or
“specific relief” by the district court. Id.
Furthermore, on these facts, we do not discern the applicability of any
recognized exceptions which would preclude our determination that the case
is moot. This is not an instance where defendants have voluntarily ceased
the offending conduct. ... Nor is it one where defendants’ challenged
conduct is capable of repetition yet would evade review. ...
And although he did not ask for declaratory relief, such relief also
would succumb to mootness. “[W]here a plaintiff seeks a declaratory
judgment against his opponent, he must assert a claim for relief that, if
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granted, would affect the behavior of the particular parties listed in his
complaint.” Id. at 1025. Plainly, a declaration by the district court that Mr.
Awe met all the requirements for naturalization could not affect the
behavior of the Secretary of Homeland Security because § 1429 bars
her from acting. ...
Finally, to the extent Mr. Awe suggests that the Secretary of Homeland
Security can avoid judicial review under § 1421(c) by initiating removal
proceedings after the denial of a naturalization application, we are not at
liberty to cast aside jurisdictional requirements of the Constitution or the
statutory bar of § 1429. This concern is appropriately addressed to
Congress.

Awe v. Napolitano, 494 Fed. Appx. at 865-867 (emphasis added).
As noted, Mr. Singh requests that the Court remand this matter to USCIS and order
it to process his naturalization application without regard to whether his admission to
permanent residence was lawful at the time. Because removal proceedings have
commenced, USCIS cannot grant Petitioner the specific relief he seeks due to the statutory
bar of § 1429.

Consequently, any such order by this Court would be ineffective and,

therefore, renders his request moot.
Petitioner, in the alternative, requests that the Court: (1) find that he meets the
requirements of naturalization, (2) approve his naturalization, (3) administer the oath, and
naturalize him, and/or (4) order Respondents to schedule an oath ceremony within thirty
days, and issue him a naturalization certificate.

Mr. Singh’s alternative request for

declaratory relief is similarly moot. The sole authority to naturalize persons as citizens lies

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with USCIS. 8 U.S.C. § 1421(a).4 Further, as the Awe Court noted, declaratory relief must
affect the behavior of the parties. Mr. Singh, in essence, seeks the Court’s declaration that
he meets the requirements for naturalization and to approve his naturalization. Any such
declaration, or other similar decree, from this Court regarding Mr. Singh’s naturalization
status, cannot affect the behavior of Respondents because § 1429 bars them from acting.
And just as was observed in Awe, none of the exceptions to mootness apply here
IV. CONCLUSION
The Court having considered Respondents’ Motion to Dismiss (ECF No. 18) and
good cause appearing, the Motion is granted. Accordingly, Mr. Singh’s Petition for Review
of Denial of Application for Naturalization is dismissed without prejudice for lack of
jurisdiction.
IT IS SO ORDERED.
Dated this 18th day of January, 2018
BY THE COURT:

DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT

See also McKenzie v. U.S. Citizenship & Immigration Servs., Dist. Director, 761
F.3d 1149, 1153 (10th Cir. 2014) (citations omitted), cert. denied, 136 S. Ct. 970 (2015)):
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The Immigration Act, however, amended § 1421(a) to transfer authority over
naturalization from the judiciary to the Attorney General. ... Through
delegation, the Attorney General’s authority over naturalization now is
exercised by USCIS. ... The Act declares that “[n]o court shall have
jurisdiction, under [repealed § 1421(a)], to naturalize a person unless a
petition for naturalization with respect to that person has been filed with the
court before October 1, 1991.”
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