Iqbal v. Sec'y U.S. Dep't of Homeland Sec.

• Decision Date: 06 June 2016
• Docket Number: 1:15-CV-00650 EAW
• Citation: 190 F.Supp.3d 322
• Parties: Ghazanfar Iqbal, Plaintiff, v. Secretary U.S. Department of Homeland Security; Director U.S. Department of Homeland Security U.S. Citizenship and Immigration Services; Director, Vermont Service Center, U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services; Attorney General of the United States, U.S. Department of Justice; United States Attorney for the Western District of New York, Defendants.
• Court: U.S. District Court — Western District of New York

190 F.Supp.3d 322

Ghazanfar Iqbal, Plaintiff,

v.Secretary U.S. Department of Homeland Security; Director U.S. Department of Homeland Security U.S. Citizenship and Immigration Services; Director, Vermont Service Center, U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services; Attorney General of the United States, U.S. Department of Justice; United States Attorney for the Western District of New York, Defendants.

1:15-CV-00650 EAW

United States District Court, W.D. New York.

Signed June 6, 2016

Ghazanfar Iqbal, Buffalo, NY, pro se.

Gail Y. Mitchell, U.S. Attorney's Office, Buffalo, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

This case presents somewhat of a procedural quagmire for the pro se plaintiff Ghazanfar Iqbal ("Plaintiff"), who has been attempting to become a naturalized citizen since September 2009. Plaintiff's initial application was denied on March 1, 2011, and Plaintiff promptly filed an administrative appeal with United States Citizenship and Immigration Services ("USCIS"). Frustrated that after many years a decision had not been made with respect to his administrative appeal, Plaintiff commenced this litigation on July 21, 2015. Within a matter of weeks thereafter, USCIS reached a decision denying Plaintiff's administrative appeal, but it has delayed issuing that determination because of the pending litigation. In the meantime, Defendants filed a motion to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1) on the ground that this Court lacks subject matter jurisdiction over the complaint because USCIS has not yet issued its final decision, and because none of the other grounds for challenging USCIS's handling of this matter are present. As explained in further detail below, Defendants' motion to dismiss must be granted as the Court lacks subject matter jurisdiction, even though in all likelihood the parties will be right back before this Court in short order, once USCIS issues its final decision.

FACTUAL BACKGROUND

According to Plaintiff, he has been a permanent resident of the United States since 1997. (Dkt. 1 at 5). He has been together with his wife, who is a United States citizen, since 1996, and they have four children together, all of whom are citizens of the United States. (Dkt. 1 at 5, 8-11). Plaintiff is educated, with a bachelor's degree in engineering, and in 2001, he formed a business called IMPEXcom Inc., working as its president from 2001 through 2006. (Dkt. 1 at 5). IMPEXcom Inc. ceased its operation in Texas in 2006. (Dkt. 1 at 5).

On September 14, 2009, Plaintiff filed an Application for Naturalization, Form N-400, as permitted by the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. ("INA"). Plaintiff applied pursuant to 8 U.S.C. § 1427 and he was interviewed on December 8, 2010. (Dkt. 1 at 5; Dkt. 5–2 at 13; Dkt. 5–3 at 2). On March 1, 2011, Plaintiff's application was denied on the grounds that he had failed to disclose past due taxes. (Dkt. 1 at 5; Dkt. 5–3 at 4-8). In denying Plaintiff's application, USCIS cited to the requirement in 8 U.S.C. § 1427(a) that an applicant "during all the periods referred to in this subsection has been and still is a person of good moral character," and the explanation in 8 U.S.C. § 1101(f) that "[n]o person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was ... (6) one who has given false testimony for the purpose of obtaining any benefits under this chapter." (Dkt. 5–3 at 5-6).

According to USCIS, during Plaintiff's December 2010 interview, he answered negatively to a series of questions concerning taxes and providing false information during immigration processes,¹ despite the existence of a Certificate of Account Status issued by the Texas Comptroller of Public Accountants from November 18, 2009, stating that IMPEXcom Inc. "is not in good standing as it has not satisfied all franchise tax requirements." (Dkt. 5–3 at 6). According to USCIS's denial letter, USCIS asked Plaintiff about the information in the certificate and Plaintiff maintained that he had paid all taxes that were due, but then he requested more time to resolve the matter. (Dkt. 5–3 at 7). Thereafter, Plaintiff provided USCIS with documents allegedly acknowledging that he had failed to file the proper tax forms for IMPEXcom Inc. and showing that he had subsequently filed the necessary tax paperwork after his interview. (Dkt. 5–3 at 7). In light of the foregoing, USCIS concluded that Plaintiff gave false testimony concerning his past due taxes, and it also concluded that there remained an outstanding question as to whether Plaintiff had properly fulfilled all state tax requirements and paid all taxes owed. (Dkt. 5–3 at 7). Accordingly, on March 1, 2011, USCIS denied Plaintiff's application for naturalization. (Dkt. 5–3 at 4, 7).

On March 30, 2011, Plaintiff filed a Form N-366 to administratively challenge USCIS's decision, pursuant to 8 U.S.C. § 1447(a). (Dkt. 1 at 5). Plaintiff attended two interviews in relation to his § 1447(a) administrative appeal, on March 13, 2012, and April 9, 2015. (Dkt. 1 at 6).

As noted above, within a matter of weeks after commencement of this litigation, USCIS made a final determination on Plaintiff's § 1447(a) administrative appeal, but has delayed issuing its determination until the agency's jurisdiction to do so is confirmed by the Court. (Dkt. 6 at 7).² USCIS's final determination affirms the denial of Plaintiff's application, but vacates the original reason for denial, concluding that the initial reasons for denying Plaintiff's application were "incorrect and incomplete." (Dkt. 5–3 at 14). Nonetheless, USCIS maintains that Plaintiff provided false testimony, albeit with respect to his employment and involvement with others' immigration papers, rather than taxes. (Dkt. 5–3 at 14-15). Plaintiff allegedly did not disclose in his initial application for naturalization that he had owned a halal meat store, Kohinoor, from 2003 to 2005. (Dkt. 9 at 4-5; Dkt. 5–3 at 14-15). Plaintiff also, according to USCIS's final determination, signed immigration documents for an H1-B visa applicant who never came to the United States, and for the man from whom he had bought Kohinoor. (Dkt. 5–3 at 15). Concluding that it was unreasonable for Plaintiff to have simply forgotten his previous ownership of Kohinoor during his initial interview, and to have been unaware of signing immigration papers as part of the Kohinoor transaction, as Plaintiff claimed, USCIS is prepared to issue a final decision denying Plaintiff's application to become a naturalized citizen. (Dkt. 5–3 at 15).

DISCUSSION

I. Standard of Review

"A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova v. United States , 201 F.3d 110, 113 (2d Cir.2000). "When considering a motion to dismiss for lack of subject matter jurisdiction ..., a court must accept as true all material factual allegations in the complaint." Shipping Fin. Servs. Corp. v. Drakos , 140 F.3d 129, 131 (2d Cir.1998). However, "jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Morrison v. Nat'l Austl. Bank Ltd. , 547 F.3d 167, 170 (2d Cir.2008) (citation omitted). "Indeed, a challenge to the jurisdictional elements of a plaintiff's claim allows the Court ‘to weigh the evidence and satisfy itself as to the existence of its power to hear the case.’ " Celestine v. Mt. Vernon Neighborhood Health Ctr. , 289 F.Supp.2d 392, 399 (S.D.N.Y.2003) (citation omitted), aff'd , 403 F.3d 76 (2d Cir.2005). "The court may consider affidavits and other materials beyond the pleadings but cannot ‘rely on conclusory or hearsay statements contained in the affidavits.’ " Young v. United States , No. 12–CV–2342 (ARR)(SG), 2014 WL 1153911, at *6 (E.D.N.Y. Mar. 20, 2014) (quoting J.S. ex rel. N.S. v. Attica Cent. Sch. , 386 F.3d 107, 110 (2d Cir.2004) ). See Luckett v. Bure , 290 F.3d 493. 497 (2d Cir.2002) ("[T]he district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.").

In addition, "[i]t is well settled that pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read ‘to raise the strongest arguments that they suggest.’ " Green v. United States , 260 F.3d 78, 83 (2d Cir.2001) (citation omitted); see also Hemphill v. New York , 380 F.3d 680, 687 (2d Cir.2004) ("It is well-established that ‘when [a] plaintiff proceeds pro se ... a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations.’ ") (alteration in original) (citation omitted). Moreover, "a pro se litigant should be afforded every reasonable opportunity to demonstrate that he has a valid claim." Satchell v. Dilworth , 745 F.2d 781, 785 (2d Cir.1984).

II. Subject Matter Jurisdiction in Naturalization Application Proceedings

"The sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General." 8 U.S.C. § 1421. However, "[t]here are three avenues of judicial review." Escaler v. U.S. Citizenship and Immigration Servs. , 582 F.3d 288, 290–91 (2d Cir.2009).

"First, if an application for naturalization is not acted upon within 120 days of the naturalization examination, an applicant can seek a hearing in a district court, which may determine the application or remand it to [USCIS] with instructions." Id. at 291 ; see Bustamante v. Napolitano , 582 F.3d 403, 410 (2d Cir.2009) (noting that district courts have jurisdiction over naturalization applications when USCIS "fails to decide an application in a timely fashion"). This first avenue of review, where an...