545 F.3d 229 (2nd Cir. 2008), 07-1170, Ajlani v. Chertoff

Docket Nº:07-1170-cv.
Citation:545 F.3d 229
Party Name:Majed AJLANI, Plaintiff-Appellant, v. Michael CHERTOFF, Secretary of Homeland Security, Jonathan R. Scharfen, Acting Director of USCIS, Michael B. Mukasey, Attorney General of the United States, Robert S. Mueller III, Director of Federal Bureau of Investigation, Andrea J. Quarantillo, District Director of the N.Y. USCIS Office,[1] Defendants-Appell
Case Date:October 07, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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545 F.3d 229 (2nd Cir. 2008)

Majed AJLANI, Plaintiff-Appellant,


Michael CHERTOFF, Secretary of Homeland Security, Jonathan R. Scharfen, Acting Director of USCIS, Michael B. Mukasey, Attorney General of the United States, Robert S. Mueller III, Director of Federal Bureau of Investigation, Andrea J. Quarantillo, District Director of the N.Y. USCIS Office, 1 Defendants-Appellees.

No. 07-1170-cv.

United States Court of Appeals, Second Circuit.

October 7, 2008

Argued: Aug. 6, 2008.

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[Copyrighted Material Omitted]

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Scott Bratton, Margaret Wong & Associates Co., LPA, Cleveland, OH, for Plaintiff-Appellant.

Scott Dunn, Assistant United States Attorney (Varuni Nelson, Assistant United States Attorney, counsel), for Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Defendants-Appellees.

Before: RAGGI, WESLEY, and LIVINGSTON, Circuit Judges.

REENA RAGGI, Circuit Judge:

Plaintiff Majed Ajlani appeals from a judgment of dismissal entered on February 12, 2007, in the United States District Court for the Eastern District of New York (Brian M. Cogan, Judge). Pursuant to 8 U.S.C. § 1447(b), Ajlani, a Syrian national, sued for declaratory and injunctive relief to compel his naturalization as a United States citizen and to prohibit his removal from this country. The district court concluded that it lacked jurisdiction to review the propriety of removal proceedings then pending against Ajlani and that the pendency of such proceedings precluded plaintiff from stating a present claim for naturalization relief. Our court has not previously considered whether a district court may afford an alien naturalization relief pursuant to 8 U.S.C. § 1447(b) when pending removal proceedings preclude the Attorney General from considering his naturalization application. See 8 U.S.C. § 1429.2 We now answer that question in the negative and, accordingly, affirm the judgment of dismissal.

I. Background

A. Ajlani's Acquisition of Permanent Resident Status

Majed Ajlani entered the United States as a tourist on August 9, 1987. Overstaying his visa, Ajlani accumulated four convictions over the course of the next thirteen years: in New York, for (1) forgery in 1989, (2) making a false incident report in 1995, and (3) trespass in 2000; and in Kentucky, for (4) credit card fraud in 1989. Nevertheless, on July 16, 1996, Ajlani secured lawful permanent resident status based on his marriage to a United States citizen, a marriage that would subsequently end in divorce.

B. Ajlani's Unsuccessful Efforts to Acquire United States Citizenship

In April 2004, Ajlani filed for United States citizenship, submitting to the requisite initial examination on August 9,2005.3

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See 8 C.F.R. § 335.2(a); see also 8 U.S.C. § 1446(b). On March 27, 2006, his application was granted.

Before Ajlani publicly took the oath of allegiance necessary to become a United States citizen, see id. § 1448, he departed this country and attempted to re-enter through Canada on September 22, 2006. This event apparently prompted border officials to take a closer look at Ajlani's immigration status. Based on his record of prior convictions, United States Citizenship and Immigration Services (“ USCIS" ) served Ajlani with a written notice directing him to appear for removal proceedings in Manhattan on October 10, 2006.4 When Ajlani appeared before an immigration judge on October 10, 2006, to address possible removal, the proceedings were terminated because the government had not filed “ the appropriate documents with the Immigration Court to initiate [Ajlani's] hearing." Notice of Immigration Ct., Oct. 10, 2006; see 8 C.F.R. § § 1003.14(a), 1239.1(a). That same day, in what the district court aptly described as an apparent “ instance of one department failing to communicate with another," other immigration authorities sent Ajlani a notice to appear at a naturalization oath ceremony on October 18, 2006. Ajlani v. Chertoff, No. 06 Civ. 5872, order at 2 (E.D.N.Y. Feb. 8, 2007).

On October 17, 2006, the New York District Director of USCIS issued a “ Motion to Reopen" Ajlani's naturalization proceedings pursuant to 8 C.F.R. § 335.5 (providing for reopening based on receipt of “ derogatory information concerning an applicant whose application has already been granted ... but who has not yet taken the oath of allegiance" ). Thus, when Ajlani appeared at the next day's naturalization ceremony at the federal courthouse in Brooklyn, he was not allowed publicly to take the oath of citizenship. Instead, he was served with the Motion to Reopen, which stated, inter alia, that “ the Service proposes to reconsider the decision to grant your Application for Naturalization" and that, “ [o]nce the review on your case has been completed, your case will be rescheduled for the Naturalization Ceremony." Motion to Reopen, Oct. 17, 2006.

On December 20, 2006, the government formally commenced removal proceedings against Ajlani by filing a notice to appear with the immigration court. See 8 C.F.R. § 1003.14(a) (“ Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service." ); id. § 123 9.1(a) (providing that “ [e]very removal proceeding conducted under section 240 of the [Immigration and Nationality Act of 1952(INA), Pub.L. No. 82-414, § 240, 66 Stat. 163, 204 (codified as amended at 8 U.S.C. § 1229a)] to determine the deportability or inadmissibility of an alien is commenced by the filing of a notice to appear with the immigration court" ). A few days later, on December 26, 2006, the immigration court issued a written notice to Ajlani directing him to appear for a master removal hearing on

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January 23, 2007. At oral argument the parties confirmed that, as a result of a series of adjournments largely attributable to agency docket backlogs, the question of Ajlani's removal remains pending.

C. Proceedings in the District Court

On October 30, 2006, approximately two weeks after Ajlani was excluded from the naturalization oath ceremony and notified of the government's intent to reopen his naturalization application, he commenced this federal action. Ajlani's pro se complaint requested declaratory relief pronouncing defendants' actions in not admitting him to citizenship unlawful on various grounds. He further requested either (a) a writ of mandamus compelling the District Director of USCIS to administer the oath of citizenship, or (b) a judicial administration of that oath. On December 18, 2006, Ajlani also requested that the district court enjoin defendants from removing him from the United States.

Defendants filed an answer to the complaint on December 29, 2006, denying the allegations and asserting that “ [p]etitioner is not entitled to naturalization so long as removal proceedings are pending against him." Answer at 2. On January 10, 2007, defendants responded to plaintiff's motion for injunctive relief, arguing (1) that no such relief was available because the court lacked jurisdiction to hear any cause or claim arising from the Attorney General's decision to commence removal proceedings, and (2) that the pending removal proceedings “ serve[ ] as a basis for dismissing petitioner's petition in its entirety." Letter from Scott Dunn, Assistant U.S. Att'y, to Hon. Brian M. Cogan, U.S. Dist. Judge, at 2-3 (Jan. 10, 2007). In a footnote, the government argued that “ even if the Court were to conclude that it had jurisdiction over petitioner's naturalization application and even if the Court then concluded that it had authority to grant that application despite 8 U.S.C. [§ ] 1429, the Court would still have to deny the application" on the merits. Id. at 3 n. 2. The district court construed defendants' letter as a motion to dismiss and set a briefing schedule.

In opposing dismissal, Ajlani, still proceeding pro se, expanded the relief sued for in his original complaint to include a judicial declaration that the removal proceedings pending against him were “ unconstitutional, discriminatory, without merit[,] and violat[ive of] due process." Ajlani Opp'n to Motion to Dismiss at 4.

On February 8, 2007, the district court granted defendants' motion for dismissal, ruling that (1) to the extent Ajlani challenged defendants' commencement of removal proceedings, the court lacked jurisdiction to review that decision; and (2) to the extent Ajlani sought a judicial order compelling or granting his naturalization, he “ failed to state a claim upon which relief may be granted" in light of the pending removal proceedings. Ajlani v. Chertoff, No. 06 Civ. 5872, order at 2-3.

Ajlani timely appealed the judgment of dismissal.

II. Discussion

A. Standard of Review

We review a judgment of dismissal de novo, whether the judgment is based on a lack of subject matter jurisdiction or the failure to state a claim on which relief can be granted. See Patane v. Clark, 508 F.3d 106, 111 (2d Cir.2007) (failure to state claim); Duamutef v. INS, 386 F.3d 172, 178 (2d Cir.2004) (subject matter jurisdiction).

B. Ajlani's Challenge to Removal

Ajlani submits that, to the extent the dismissal of his complaint was based on the pendency of removal proceedings

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against him, the district court erred in several respects. First, the court should have declared that, even before removal proceedings commenced, Ajlani acquired United States citizenship by virtue of either his completion of the naturalization process on October 18, 2006, or his acquisition of United States nationality because of his demonstrated permanent allegiance to the United States. Second, the court failed to...

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