Francois v. U. S. Citizenship & Immigration Servs.
| Decision Date | 04 August 2021 |
| Docket Number | CV-21-00071-PHX-JAT |
| Parties | Sabina Carol Francois, Petitioner, v. United States Citizenship and Immigration Services, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
Pending before the Court is Defendant United States Citizenship and Immigration Services' (“the government”) Motion for Summary Judgment and Motion to Dismiss. (Doc. 9). Plaintiff Sabina Carol Francois has responded (Doc. 14), the government has replied (Doc. 15), and the Court now rules.
Plaintiff is a citizen of Trinidad and Tobago. (Doc. 1 at 3; Doc. 10 at 1). She entered the United States in 1983 as a B-2 nonimmigrant visitor. (Id.). In February 1992 Plaintiff married a United States citizen, Randolph Barclay. (Doc. 1 at 3; Doc. 10-3 at 4[1]). In March 1993, Barclay filed a spousal visa petition (Form I-130), and Plaintiff filed an application to adjust her status to that of a lawful permanent resident (Form I-485) with the Immigration and Naturalization Service (INS). (Doc. 10-3 at 4).
INS requested that Plaintiff produce her Form I-94 and passport to prove legal entry. (Id. at 5). Plaintiff asserted to INS that her Form I-94 and passport had been stolen, and she attempted to establish that she lawfully entered the United States by submitting affidavits. (Id.). The INS, however, deemed the affidavits insufficient because they did not clearly establish the date of her entry. (Id.).
Accordingly the INS advised Francois and Barclay to withdraw their pending documents and to request an immigrant visa through a U.S. consulate overseas. (Id.). In July 1993, Barclay withdrew the first spousal visa petition, and Plaintiff withdrew her first adjustment of status application. (Id.). In July 1994, Barclay filed a new spousal visa petition, which the INS approved in August 1994. (Doc. 10-5 at 4). In December 1994, Plaintiff filed a second application to adjust her status. (Id. at 5). In May 1995, the INS interviewed Plaintiff and Barclay regarding the second adjustment application. (Id.).
In September 2000, the INS determined that Plaintiff married Barclay to evade immigration laws. (Id.). Consequently, the INS issued Barclay a notice of intent to revoke the approved second spousal visa petition and later revoked the petition under 8 U.S.C. § 1154(c). (Doc. 10-3 at 5). In July 2001, the INS denied Plaintiff's second application to adjust her status. Plaintiff and Barclay later divorced. (Id.).
Plaintiff subsequently married a second United States citizen, James Earl Voice. (Doc. 1-2 at 4). Voice filed a spousal visa petition for Plaintiff with the United States Citizenship and Immigration Services (USCIS)[2] in October 2006, and Plaintiff filed a third adjustment application the same day. (Id.). In July 2007, the USCIS denied Voice's petition under § 1154(c) and, consequently, denied Plaintiff's third adjustment application. (Id.). In October 2009, the Board of Immigration Appeals (BIA) vacated the denial because the USCIS had failed to issue Voice a Notice of Intent to Deny before it denied his petition, and the BIA remanded the matter to the USCIS for further action. (Id.). In August 2010, the USCIS issued a new decision again denying Voice's spousal visa petition under § 1154(c). (Id.).
While proceedings related to Voice's petition were ongoing, Plaintiff filed a separate application for naturalization (Form N-400) in July 2009, which the USCIS ultimately rejected. Francois v. United States, No. CV-16-02936-PHX-BSB, 2017 WL 467976, at *2 (D. Ariz. Feb. 3, 2017).
After the USCIS denied Voice's spousal visa petition in August 2010, Immigration and Customs Enforcement (ICE) issued a Notice to Appear against Plaintiff in February 2011, initiating removal proceedings against her. (Doc. 1-2 at 4). In December 2012, an Immigration Judge (IJ) found that Plaintiff was not a lawful permanent resident and was removable from the United States.[3] (Id.).
In September 2013, Plaintiff filed an action in this Court, challenging the denial of Barclay's second spousal visa petition and Plaintiff's second and third adjustment of status applications. Francois v. Johnson, No. CV-13-01964-PHX-PGR, 2014 WL 1613932 (D. Ariz. Apr. 22, 2014). Plaintiff also sought an order “compelling USCIS to register her status as a lawful permanent resident.” Id. at *3. The Court dismissed Plaintiffs claims for lack of subject matter jurisdiction and failure to state a claim, and in June 2016, the Ninth Circuit affirmed on jurisdictional grounds. Francois v. Johnson, 667 Fed.Appx. 630 (9th Cir. 2016).
In August 2016, Plaintiff filed a second action in this Court, “which challenge[d] the same government actions and [sought] the same relief as the First Action, but allege[d] a negligence action under the [Federal Tort Claims Act] in place of the previously dismissed APA and declaratory relief claims.” United States, 2017 WL 467976, at *1 (citation omitted). The Court dismissed the second action for lack of subject matter jurisdiction in February 2017. Id. Plaintiff did not appeal.
On January 3, 2019, Plaintiff filed another application for naturalization (the “Second N-400 Application”), which the USCIS denied on February 5, 2020. (Doc. 1-2 at 4). Plaintiff administratively appealed, and after a hearing, the USCIS upheld the denial of the Second N-400 Application on December 31, 2020 (the “Final Order”). (Doc. 1-2). The USCIS concluded that Plaintiff failed to demonstrate that she had been a lawful permanent resident for at least five years immediately preceding the date of filing the naturalization application. (Id. at 3, 6). Relying on Janjua v. Neufeld, 933 F.3d 1061 (9th Cir. 2019), the USCIS noted that an IJ had already determined that Plaintiff was not a lawful permanent resident and that the USCIS could not make a finding to the contrary. (Id. at 6).
On January 15, 2021, Plaintiff filed the instant action, challenging the denial of Second N-400 Application under 8 U.S.C. § 1421(c) and requesting de novo review of the Final Order. (Doc. 1). Plaintiff requests that the Court, “[h]old unlawful and set aside USCIS's denial of her naturalization application as not warranted by the facts and not in accordance with law, ” “[d]eclare that she is prima facie eligible for naturalization, ” and “[g]rant naturalization to her.” (Doc. 1 at 6).
The government's first argues that the Court lacks subject matter jurisdiction over this case. The Court disagrees.
Under Federal Rule of Civil Procedure (“Rule”) 12(b)(1), a court must dismiss an action if the court lacks jurisdiction over the subject matter of the suit. The party invoking federal jurisdiction bears the burden of establishing that such jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986). The Court presumes a lack of jurisdiction until the party asserting federal jurisdiction proves otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989); Kashkool v. Chertoff, 553 F.Supp.2d 1131, 1134 (D. Ariz. 2008). In determining whether it has subject matter jurisdiction, a court is not limited to the allegations in the complaint. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Rather, the court may look beyond the complaint to extrinsic evidence, without converting the motion to dismiss to a motion for summary judgment, and it need not assume the truth of the complaint's allegations. Id.
Here, the basis for the Court's jurisdiction is apparent. As the government acknowledges, 8 U.S.C § 1421(c) provides that a “person whose application for naturalization under this subchapter is denied . . . may seek review of such denial before the United States district court for the district in which such person resides . . . .” “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.
The government, however, argues that the Court lacks jurisdiction to “overturn[] the IJ's decision that she is not an LPR.” (Doc. 9 at 8). The government correctly notes that under the REAL ID Act, district courts have no role in reviewing immigration judges' determinations. They are instead subject to challenge only in the BIA followed by petition of review to the court of appeals. See 8 U.S.C. § 1252(a)(5). But the Ninth Circuit has recognized that “Section 1421(c) plainly confers jurisdiction to review the denial of an application for naturalization on district courts, ” and “[n]othing in the text limits the jurisdiction so conferred to review of denials when there is no removal proceeding pending.” De Lara Bellajaro v. Schiltgen, 378 F.3d 1042, 1046 (9th Cir. 2004), as amended (Sept. 1, 2004).[4]
Resisting this conclusion, the government points to Plaintiff's prior district court cases that were dismissed for lack of jurisdiction, one of which was affirmed on appeal, and argues that the Court should dismiss the instant case as well. But Plaintiff's prior cases involved challenges to the denial of Plaintiff's adjustment of status applications as opposed to a naturalization petition. Challenges to decisions regarding adjustment of status applications are explicitly prohibited by 8 U.S.C. § 1252(a)(2)(B)(i) (“Notwithstanding any other provision of law (statutory or nonstatutory), . . . no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under [8 U.S.C. §] 1255.”).[5] In this case, the Court is not faced with an explicit jurisdictional bar to review adjustment of status...
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