Yith v. Nielsen

Citation881 F.3d 1155
Decision Date07 February 2018
Docket NumberNo. 16-15858,16-15858
Parties Seanlim YITH; Seak Leang Yith, Plaintiffs-Appellants, v. Kirstjen NIELSEN, in her Capacity as Secretary for Department of Homeland Security; Leon Rodriguez, in his Capacity as Assistant Secretary for Department of Homeland Security and Director for Citizenship and Immigration Services; Mari-Carmen Jordan, in her Capacity as District Director for Department of Homeland Security and Director for Citizenship and Immigration Services; Jonathan Crawford, in his Capacity as Director of the Fresno Sub-Office of Citizenship and Immigration Services; Jefferson B. Sessions III, Attorney General, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Bruce Leichty (argued), Bruce Leichty PC, Escondido, California, for Plaintiffs-Appellants.

Timothy M. Belsan (argued), Senior Litigation Counsel; Jeffrey S. Robins, Assistant Director; William C. Peachey, Director; Audrey B. Hemesath, Assistant United States Attorney; Phillip A. Talbert, United States Attorney; District Court Section, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Before: Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit Judges, and John D. Bates,* District Judge.

IKUTA, Circuit Judge

Seanlim and Seak Leang Yith appeal from the district court's dismissal of their complaint requesting adjudication of their naturalization applications pursuant to 8 U.S.C. § 1447(b). Relying on 8 U.S.C. § 1429, the district court concluded that the Yiths were precluded from obtaining any relief because they were concurrently in removal proceedings. See 8 U.S.C. § 1429 (providing that "no 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 issued under the provisions of this chapter or any other Act"). The court therefore dismissed their complaint for failure to state a claim. We reverse, because the limitation imposed by § 1429 applies only to the executive branch's adjudication of naturalization applications, and only when removal proceedings are pending pursuant to an arrest warrant, neither of which is applicable here.

I

We begin by providing the relevant legal framework. In 2002, Congress transferred the functions of the Immigration and Naturalization Service to the Department of Homeland Security (DHS), and transferred the function of adjudicating naturalization petitions to the United States Citizenship and Immigration Services (USCIS), a component of DHS. 6 U.S.C. §§ 202(3), 251(2), 271(b)(2). As a result, although 8 U.S.C. § 1421(a) states that "[t]he sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General," courts interpret this reference, as well as references to the Attorney General in 8 U.S.C. §§ 1421, 1429, 1445, and 1447, as referring to the authority of the USCIS. See Hernandez de Anderson v. Gonzales , 497 F.3d 927, 933 (9th Cir. 2007) (noting transfer of authority).

A person seeking naturalization must file an application with the USCIS. A USCIS employee is designated to "conduct examinations upon applications for naturalization," including taking testimony, administering oaths, and requiring the attendance and testimony of witnesses. 8 U.S.C. § 1446(b). After such an examination, the USCIS employee must "make a determination as to whether the application should be granted or denied, with reasons therefor." Id. § 1446(d). If the application for naturalization is denied following the USCIS employee's examination under § 1446, "the applicant may request a hearing before an immigration officer." Id. § 1447(a).

Once applicants have exhausted administrative remedies, they may appeal to a district court. The statutes provide for an appeal in two distinct circumstances. See United States v. Hovsepian , 359 F.3d 1144, 1162–63 (9th Cir. 2004). First, if a USCIS employee fails to make a determination "as to whether the application should be granted or denied" pursuant to § 1446(d)"before the end of the 120-day period after the date on which the examination is conducted," then the applicant "may apply to the United States district court for the district in which the applicant resides for a hearing on the matter," 8 U.S.C. § 1447(b).1 The district court "has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the [USCIS] to determine the matter." Id. Second, if the applicant had a hearing before an immigration officer pursuant to § 1447(a), and the immigration officer denied the application, the applicant "may seek review of such denial" before a district court. Id. § 1421(c).2 "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." Id.

Certain applicants are not eligible for naturalization. First, neither the USCIS nor the district court may naturalize a person "against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act." Id. § 1429.3 Second, the USCIS may not consider an application for naturalization "if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act." Id.

II

We now turn to the facts of this case. Seanlim and Seak Leang Yith are siblings and citizens of Cambodia who were admitted as lawful permanent residents in March 2006, based on approved immigrant visa petitions filed by their stepmother, Sarin Meas, a U.S. citizen. Seanlim Yith filed an application for naturalization with USCIS in February 2011, and Seak Yith filed an application in December 2012. Both siblings were scheduled to appear for naturalization examinations in June 2013, but the USCIS cancelled the interviews and did not reschedule them. In 2014, the Yiths repeatedly contacted the USCIS regarding the status of their application; they were told that the adjudication was "delayed" or that their cases were "pending," but that the USCIS could not determine when the review process for their applications would be completed.

The Yiths subsequently filed a complaint in district court, seeking to compel the USCIS to adjudicate their applications. While the government's motion to dismiss was pending, the USCIS scheduled the examination for the Yiths' naturalization applications. The parties stipulated to hold the court proceedings in abeyance pending the USCIS examination.

The examinations took place as scheduled on March 10, 2015. For the first time, the USCIS told the Yiths that their stepmother, whose petition had been the basis for legal permanent resident status, had testified that her marriage to their father was fraudulent, and therefore they had been ineligible for a visa when they entered the United States. After the examination, the USCIS issued notices of intent to deny the Yiths' applications. The notices stated that the Yiths were not eligible for naturalization because they had not been lawfully admitted for permanent residence. The deadline for issuing a final decision on the Yiths' application was July 8, 2015, the 120th day after the examination. Instead, on July 7, 2015, the USCIS issued notices to appear, thus commencing removal proceedings.

Returning to district court, the Yiths moved to amend their original complaint and the government filed a new motion to dismiss. According to the government, 8 U.S.C. § 1429 precluded a court from considering a naturalization application when the applicant had been placed in removal proceedings. Therefore, the government argued, either the district court lacked subject matter jurisdiction over the complaint or the Yiths failed to state a claim upon which relief could be granted.

The district court dismissed the Yiths' complaint without prejudice on the ground that it failed to state a claim. Relying on § 1429 and the Second Circuit's decision in Ajlani v. Chertoff , 545 F.3d 229 (2d Cir. 2008), the court held that it could not adjudicate the Yiths' naturalization applications or order the USCIS to adjudicate them while removal proceedings remained pending. The court stated that the Yiths could refile their complaint if removal proceedings concluded in the Yiths' favor.

The Yiths timely appealed. We review the dismissal of a complaint for failure to state a claim de novo. Morrison v. Peterson , 809 F.3d 1059, 1064 (9th Cir. 2015). Because the USCIS did not issue final decisions on the Yiths' naturalization applications within 120 days after their examinations, the district court had jurisdiction to adjudicate their naturalization applications under 8 U.S.C. § 1447(b) and correctly rejected the government's argument that the commencement of removal proceedings stripped the district court of subject matter jurisdiction. Cf. De Lara Bellajaro v. Schiltgen , 378 F.3d 1042, 1046 (9th Cir. 2004) (holding that commencement of removal proceedings does not affect a district court's jurisdiction to review an immigration officer's denial of a naturalization application under § 1421(c) ).4 We have jurisdiction under 28 U.S.C. § 1291.

III

On appeal, the Yiths argue that the district court erred in dismissing their complaint for failure to state a claim. They contend that § 1429 does not apply for two reasons: (1) it prevents only the executive branch, not the federal courts, from adjudicating naturalization applications; and (2) it applies only if "a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act" is pending against the applicant. We examine these arguments in turn.

A

We begin by considering the language in § 1429 that "no application for naturalization...

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