Leu v. Beers et al

Filing 18

ORDER Granting Respondents' 16 Unopposed Motion to Dismiss by Judge Richard A Jones. (CL)

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HONORABLE RICHARD A. JONES 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 HUNG TIEN LEU, Petitioner, 10 CASE NO. C13-1979RAJ v. 11 12 JEH JOHNSON, 1 in his capacity as Secretary of Homeland Security, et al., 13 ORDER DISMISSING CASE Respondents. 14 This matter comes before the court on Respondents’ motion to dismiss this action. 15 16 17 18 Petitioner did not oppose the motion. For the reasons stated below, the court GRANTS the motion (Dkt. # 16) and directs the clerk to DISMISS this action and enter judgment for Respondents. Petitioner wants the court to decide whether he should be naturalized as a citizen 19 20 21 of the United States. He cites only two sources of authority for the court to naturalize him: 8 U.S.C. § 1447(b) and 28 U.S.C. § 1361. Respondents have demonstrated that 8 U.S.C. § 1447(b) is inapplicable in this 22 23 24 25 26 27 28 case. That statute applies when the government “fail[s] to make a determination [on a naturalization application] under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted”, in which case “the 1 The court substitutes Secretary Johnson for his predecessor, in accordance with Federal Rule of Civil Procedure 25(d). ORDER – 1 1 applicant may apply to the United States district court for the district in which the 2 applicant resides for a hearing on the matter.” 8 U.S.C. § 1447(b). Here, Petitioner does 3 not dispute that Respondents made a determination on his naturalization application; they 4 denied it. Thereafter, he invoked 8 U.S.C. § 1447(a) to request a hearing before an 5 immigration officer. 8 U.S.C. § 1447(a) (“If, after an examination under section 1446 of 6 this title, an application for naturalization is denied, the applicant may request a hearing 7 before an immigration officer.”). For that reason, § 1447(b) is inapplicable. Another 8 statute, 8 U.S.C. § 1421(c), allows a person “whose application for naturalization under 9 this title is denied[] after a hearing before an immigration officer under [8 U.S.C. 10 § 1447(a)]” to review that denial via the Administrative Procedures Act. But Petitioner 11 did not mention § 1421(c) or the Administrative Procedures Act in his complaint, and the 12 court assumes from his silence that he does not wish to invoke either statute. 13 Respondents have submitted evidence that Petitioner is currently in removal 14 proceedings. Although Petitioner has appeared before an immigration officer regarding 15 his naturalization petition, Respondents are withholding a decision on the naturalization 16 pending the completion of his removal proceedings. At the time Petitioner filed his 17 complaint, Respondents had yet to commence removal proceedings in an immigration 18 court. Respondents now present evidence that they have done so, and Petitioner presents 19 no argument to the contrary. Petitioner also does not contest that Respondents have 20 authority, in accordance with 8 U.S.C. § 1429, to decline to decide his administrative 21 hearing on the denial of his naturalization petition until his removal proceedings are 22 resolved. See Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 970 (9th Cir. 2004) (“The 23 natural reading of this statute is that removal proceedings and final removal orders are to 24 take precedence over naturalization applications.”). The court thus has no basis, on this 25 record, to conclude that it could grant mandamus relief via 28 U.S.C. § 1361. 26 27 28 ORDER – 2 1 2 3 For these reasons, the court GRANTS Respondents’ unopposed motion to dismiss. Dkt. # 16. The clerk shall DISMISS this action and enter judgment for Respondents. DATED this 19th day of May, 2014. 4 6 A 7 The Honorable Richard A. Jones United States District Court Judge 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER – 3

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