Gonzalez v. Napolitano, Civil Action No. 2:09-03426.

• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
• Citation: 684 F. Supp.2d 555
• Docket Number: Civil Action No. 2:09-03426.
• Parties: Jose GONZALEZ, Petitioner, v. Janet NAPOLITANO, Secretary of the Department of Homeland Security, et al., Respondents.
• Decision Date: 15 January 2010

684 F.Supp.2d 555

Jose GONZALEZ, Petitioner,
v.
Janet NAPOLITANO, Secretary of the Department of Homeland Security, et al., Respondents.

Civil Action No. 2:09-03426.

United States District Court, D. New Jersey.

January 15, 2010.

684 F. Supp.2d 556

James Vincent Scarlata, Newark, NJ, for Petitioner.

Sherease Rosalyn Pratt, U.S. Department of Justice, Washington, DC, for Respondents.

OPINION

WILLIAM J. MARTINI, District Judge.

MEMORANDUM OPINION¹ I. INTRODUCTION

Petitioner's Petition for Review of the Administrative Denial of Application for Naturalization (the "Petition") was filed on July 10, 2009. (Doc. No. 1.)

On September 15, 2009, the Respondents filed a Motion to Dismiss for Lack of Jurisdiction Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (the "Motion" or "Opening Brief). (Doc. No. 5.) The Motion has been fully briefed. See Opposition Brief, (Doc. No. 7); Reply Brief, (Doc. No. 8); Petitioner's Sur-Reply, (Doc. No. 14).

Having considered the parties' filings, federal constitutional and statutory law and regulations, case law, and persuasive scholarly authority, the Court, for the reasons elaborated below, will DENY the Motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Jose Gonzalez was born in Panama and is a citizen of Spain. He married a U.S. citizen. His wife filed a petition for the adjustment of his status on his behalf and he was granted Lawful Permanent Resident status based on that application.

684 F. Supp.2d 557

He was subsequently divorced, and, thereafter, filed a petition for naturalization. The United States Citizenship and Immigration Services ("USCIS") denied his application during 2007 on the grounds that he (allegedly) made false statements in regard to his prior marriage. He subsequently appealed this decision and exhausted available administrative remedies,² when USCIS denied his administrative appeal on June 12, 2009 on the merits. On June 24, 2009, USCIS served a notice to appear ("NTA") on Petitioner. The NTA charges that Petitioner is removable pursuant to 8 U.S.C. § 1227(a)(1)(B). Furthermore, on June 24, 2009, the NTA was referred to the Immigration Court in Newark, New Jersey. On July 10, 2009, and pursuant to 8 U.S.C. § 1421(c). Petitioner timely sought de novo judicial review of the USCIS's June 12, 2009 denial of his application for naturalization.

It is the Respondents' contention that this Court lacks subject matter jurisdiction to review the agency's denial of the naturalization petition when, as here, removal proceedings are pending against the Petitioner. Second, it is also the Respondents' position that, even if the Court has jurisdiction over the subject matter, this Court cannot grant any relief on these facts. The Respondents characterize such a result as failure to state a claim upon which relief may be granted, although it would seem that the gravamen of the Respondents' argument is that Petitioner's cause of action lacks the possibility of redress, and therefore Petitioner's case cannot meet the elements of Article III standing.³ Petitioner rejects both of the Respondents' contentions.

III. STANDARD OF REVIEW

The Respondents' motion to dismiss is brought pursuant to the provisions of Fed.R.Civ.P. 12(b)(1) (dismissal based on lack of subject matter jurisdiction). In adjudicating a Rule 12(b)(1) motion, "a court reviews only whether the allegations on the face of the complaint, taken as true, allege facts sufficient to invoke the jurisdiction of the district court." Common Cause of Penn. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir.2009). "The parties invoking the federal courts' jurisdiction, bear the burden of establishing their standing." Common Cause of Penn., 558 F.3d at 257.

"Accordingly, unlike a Rule 12(b)(6) motion, consideration of a Rule 12(b)(1) jurisdiction-type motion need not be limited; conflicting written and oral evidence may be considered and a court may decide for itself the factual issues which determine jurisdiction. When resolving a factual challenge, the court may consult materials outside the pleadings...." Koronthaly v. L'Oreal USA, Inc., Civil Action No. 07-5588, 2008 WL 2938045, at *2 (D.N.J. July 29, 2008) (citations omitted).

Respondents' Motion is also brought pursuant to Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief

684 F. Supp.2d 558

can be granted. The moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir.2005), and dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The facts alleged must be sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. This requirement "calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of necessary elements of the plaintiffs cause of action. Id. Furthermore, in order satisfy federal pleading requirements, the plaintiff must "provide the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.2008) (brackets and quotations marks omitted) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).

In considering a Rule 12(b)(6) motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263 (3d Cir.2007). The court may also consider "undisputedly authentic documents that a defendant attaches as an exhibit to a motion to dismiss if the plaintiffs claims are based on the attached documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). Generally, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994).

IV. ANALYSIS

Three statutory provisions are key to adjudicating this case.

First, 8 U.S.C. § 1421(a) provides: "Authority in Attorney General. The sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General." Id. (emphasis added).

Second, 8 U.S.C. § 1421(c) provides: "Judicial review. A person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of title 5. 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."

Third, 8 U.S.C. § 1429 provides: "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...." Id. (emphasis added).

The NTA, which initiates removal proceedings, is a warrant of arrest pursuant to 8 C.F.R. § 318.1. Under Section 1429, it follows that the Attorney General (the "AG") may not "consider" such a person's "application for naturalization." Moreover, Congress has lodged in the AG the "sole" authority to naturalize persons. 8

684 F. Supp.2d 559

U.S.C. § 1421(a). On this basis, Respondents argue that if the AG may not naturalize a person in the midst of removal proceedings, i.e., a person such as the Petitioner, and if the AG is the exclusive authority who may do so because the AG has "sole" authority to naturalize persons, then this Court has no authority to do so. From which it seems to follow that this Court cannot order the AG to naturalize Petitioner. If this Court cannot grant relief, if it cannot neither naturalize Petitioner nor order the AG to do so, then Motion must be granted, and the Petition dismissed.

Petitioner relies on Section 1421(c) which grants this Court jurisdiction of timely filed petitions to review final⁴ administrative denials of applications for naturalization. It is not contested that Petitioner filed an administrative application for naturalization; it was finally reviewed by USCIS, and that his petition for judicial review was timely filed. Petitioner argues that no statute expressly divests this Court of jurisdiction under Section 1421 or otherwise. And therefore the Court should proceed to the merits of his petition.

The purported conflict between Sections 1421 and 1429 has divided federal courts since Congress, by statute, took authority to naturalize persons away from the federal courts, which had in times past functioned as immigration courts, and vested the power to naturalize persons in the AG. See Immigration Act of 1990 ("IMMACT"), Pub. L. No. 101-649, § 401, 104 Stat. 4978. In regard to the conflict between the two provisions, the Third Circuit has expressly reserved on this question. See Apokarina v. Ashcroft, 232 F.Supp.2d 414 (E.D.Pa. 2002) (Robreno, J.), remanded by, 93 Fed. Appx. 469 (3d Cir.2004) (Ambro, J.). The United States District Court for the District of New Jersey, that is, this Court, has expressly...