Etape v. Chertoff

• Decision Date: 02 August 2007
• Docket Number: No. 06-1990.,No. 06-1916.,06-1916.,06-1990.
• Citation: 497 F.3d 379
• Parties: Max Alobwede ETAPE, Plaintiff-Appellant, v. Michael CHERTOFF, Secretary, U.S. Department of Homeland Security, Defendant-Appellee. American Immigration Law Foundation, Amicus Supporting Appellant. Sawsan Abdul Rahim, Plaintiff-Appellant, v. Richard Caterisano, District Director, Baltimore District Office U.S. Citizenship and Immigration Services; Emilo T. Gonzalez, Director, U.S. Citizenship and Immigration Services; Michael Chertoff, Secretary, U.S. Department of Homeland Security; Alberto Gonzales, Attorney General, U.S. Department of Justice, Defendants-Appellees. American Immigration Law Foundation, Amicus Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

497 F.3d 379

Max Alobwede ETAPE, Plaintiff-Appellant, v. Michael CHERTOFF, Secretary, U.S. Department of Homeland Security, Defendant-Appellee.

American Immigration Law Foundation, Amicus Supporting Appellant.

Sawsan Abdul Rahim, Plaintiff-Appellant, v. Richard Caterisano, District Director, Baltimore District Office U.S. Citizenship and Immigration Services; Emilo T. Gonzalez, Director, U.S. Citizenship and Immigration Services; Michael Chertoff, Secretary, U.S. Department of Homeland Security; Alberto Gonzales, Attorney General, U.S. Department of Justice, Defendants-Appellees.

American Immigration Law Foundation, Amicus Supporting Appellant.

No. 06-1916.

No. 06-1990.

United States Court of Appeals, Fourth Circuit.

Argued: May 22, 2007.

Decided: August 2, 2007.

ARGUED:

Thomas A. Elliot, Elliot & Mayock, L.L.P., Washington, DC, for Appellants. Jennifer A. Wright, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellees.

ON BRIEF:

R. Scott Oswald, Nicholas W. Woodfield, Employment Law Group, P.C., Washington, DC, for Appellant Max Alobwede Etape. Rod J. Rosenstein, United States Attorney, Neil R. White, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellees. Mary A. Kenney, Washington, DC, for American Immigration Law Foundation, Amicus Supporting Appellants.

Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge MOTZ wrote the majority opinion, in which Judge SHEDD joined. Senior Judge HAMILTON wrote a dissenting opinion.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

We consider here whether a naturalization applicant's timely filing of a petition in federal court pursuant to 8 U.S.C. § 1447(b) (2000) vests the court with exclusive jurisdiction. In these consolidated cases, after the applicants filed § 1447(b) petitions in the district court, the United States Bureau of Citizenship and Immigration Services (CIS) denied their naturalization applications. The district court then dismissed their § 1447(b) petitions as moot, reasoning that the CIS had retained jurisdiction over the applications even after the § 1447(b) petitions had been filed with the court. Because § 1447(b) vests exclusive jurisdiction in the district court, depriving the CIS of jurisdiction to adjudicate an application unless instructed to do so by the district court, we reverse.

I.

Section 1447(b) provides a naturalization applicant with the right to file a petition for hearing in a federal court if more than 120 days have elapsed since the applicant's naturalization examination and the CIS has failed to make a determination on the application. The statute states:

If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the [CIS] to determine the matter.

8 U.S.C. § 1447(b).

Both Max Alobwede Etape and Sawsan Abdul Rahim filed naturalization applications with the CIS. When more than 120 days elapsed after their examinations and the CIS had failed to make a determination, both availed themselves of the right to petition in federal court under § 1447(b).

On April 2, 2003, Etape filed his naturalization application. On September 9, 2003, he appeared for his initial naturalization examination. On that day, the CIS issued a continuance letter requesting additional documentation from Etape. On October 6, 2003, Etape filed the additional documentation with the CIS and asked the CIS to resume adjudication of his application. On May 23, 2005, after more than 120 days had elapsed (in fact, more than 20 months had passed) since Etape's initial examination and he had not received a determination from the CIS, he filed a petition in the district court pursuant to § 1447(b). On October 18, 2005, before the district court acted on Etape's petition, the CIS denied his naturalization application.

On January 18, 2005, Rahim filed a naturalization application with the CIS. On June 14, 2005, she appeared for her naturalization examination. On February 17, 2006, after more than 120 days had passed without a determination from the CIS, Rahim filed a petition in the district court pursuant to § 1447(b). On February 28, 2006, again before the district court acted on the petition, the CIS denied Rahim's naturalization application.

In each case, the district court concluded that § 1447(b) did not deprive the CIS of jurisdiction over the naturalization applications after the applicants filed their § 1447(b) petitions in federal court. Moreover, the court reasoned that its ability to consider the § 1447(b) petitions depended on the underlying naturalization applications remaining undecided by the CIS. Thus, once the CIS denied the applications in these cases, the district court ruled that the § 1447(b) petitions were moot. Accordingly, the district court dismissed both petitions for lack of jurisdiction.

We have consolidated the cases on appeal, and we review de novo the district court's grant of dismissal under Federal Rule of Civil Procedure 12(b)(1). Hawes v. United States, 409 F.3d 213, 216 (4th Cir.2005).

II.

Only one appellate court has considered in a published opinion whether § 1447(b) vests exclusive jurisdiction in the district court. After an en banc hearing, the Ninth Circuit concluded that § 1447(b) does indeed vest exclusive jurisdiction in the district court, and so prevents the CIS from further action on a naturalization application after a petition has been filed in court, unless the court remands the matter to the CIS. United States v. Hovsepian, 359 F.3d 1144, 1159 (9th Cir.2004) (en banc).¹

The applicants naturally rely heavily on Hovsepian in support of their argument that a district court has exclusive jurisdiction over a naturalization application after an applicant files a proper § 1447(b) petition with the court. The Government, although it did not petition for certiorari in Hovsepian, contends that the Ninth Circuit erred. The Government maintains that § 1447(b) provides the district court and the CIS with concurrent jurisdiction, which permits the CIS to adjudicate an application even while a § 1447(b) petition is pending in district court. The Government further asserts that the district court loses jurisdiction when the CIS makes a determination on a naturalization application.

To resolve this question, we examine the language of the statute, precedent directing the proper interpretation of such language, and the larger statutory context.

A.

1.

As always, we begin with the language of the statute. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). Section 1447(b) instructs that after a proper petition has been filed, a "[district] court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the [CIS] to determine the matter." 8 U.S.C. § 1447(b).

The parties agree that § 1447(b) expressly provides the district court with jurisdiction over a proper petition. The Government contends, however, that the statute only grants the district court jurisdiction concurrent with that of the CIS because, according to the Government, "nothing in the plain language of the statute" divests the CIS of jurisdiction it had before the lapse of 120 days and the filing of the § 1447(b) petition. We cannot agree. Section 1447(b) provides the district court with two options once it has obtained jurisdiction: to "determine the matter," or to "remand the matter, with appropriate instructions, to the [CIS] to determine the matter." Giving these words their "ordinary meaning," as we must, BP Am. Prod. Co. v. Burton, ___ U.S. ___, 127 S.Ct. 638, 643, 166 L.Ed.2d 494 (2006), we can only conclude that a proper § 1447(b) petition vests the district court with exclusive jurisdiction, unless and until the court "remand[s] the matter" to the CIS.

First, although § 1447(b) provides a federal court with "jurisdiction" to "determine the matter," under the Government's view, the district court's power to make this determination can be extinguished if the CIS makes this precise determination first. Indeed, the Government's interpretation of § 1447(b) effectively enables the CIS, an administrative agency, to divest a federal district court of its congressionally authorized jurisdiction.² Nothing in the statute suggests that Congress intended that an agency could subvert Congress' choice to vest the district court with jurisdiction to "determine the matter" once an applicant files a timely § 1447(b) petition. See Hovsepian, 359 F.3d at 1160 ("How can the court `determine the matter' if the [CIS] has the option to `determine the matter,' too, and essentially force the court to accept its view?").³

Even more damaging to the Government's position is the language empowering the district court to "remand the matter, with appropriate instructions, to the [CIS] to determine the matter." The very word "remand" indicates that Congress intended a hierarchy. "`Remand' means `to send back.'" United States v. Lee, 786 F.2d 951, 955 (9th Cir.1986) (citing Black's Law Dictionary 1162 (5th ed.1979) (citing Amalgamated Workers Union of the Virgin Islands v. Hess Oil Virgin Islands Corp., 478 F.2d 540, 542 n. 1 (3d Cir.1973))). When a court remands a case, it sends the case back to the place from which it came "for purposes of having some further action taken" in the tribunal of origin. Lee, 786 F.2d at 955. Accepting the Government's view would ignore this hierarchy established by Congress. Congress would not...