Miriyeva v. U.S. Citizenship & Immigration Servs.
Decision Date | 21 December 2019 |
Docket Number | Civil Action No. 19-3351 (ESH) |
Citation | 436 F.Supp.3d 170 |
Parties | Gunay MIRIYEVA, et al., Plaintiffs, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants. |
Court | U.S. District Court — District of Columbia |
Douglas W. Baruch, Kayla M.S. Kaplan, Neaha P. Raol, Jennifer M. Wollenberg, Morgan, Lewis & Bockius LLP, Washington, DC, for Plaintiffs.
Brian J. Field, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.
Before the Court is yet another case involving immigrants who enlisted in the Unites States military as part of the MAVNI program.1 These plaintiffs, Gunay Miriyeva, Ann Tum, Siddhi Kulkarni, and Bipin Kadel, are seeking naturalization under 8 U.S.C. § 1440, which provides an expedited path to naturalization based on military service during certain periods of military hostilities. Their applications have been denied by United States Citizen and Immigration Services ("USCIS") on the ground that they do not meet the statutory requirements for naturalization under 8 U.S.C. § 1440(a) because their "uncharacterized" discharges mean that they were not "separated under honorable conditions." Plaintiffs claim that the USCIS "policy" that led to the denial of their applications violates the Administrative Procedure Act ("APA"), 5 U.S.C. § 551, et seq. , and the United States Constitution. Defendants, USCIS and its Director, Kenneth Cuccinelli, have moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Because the Court agrees with defendants that 8 U.S.C. § 1421 precludes the current action, their motion to dismiss for lack of jurisdiction will be granted.
Section 329 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1440, provides an expedited path to citizenship based on service in the United States Armed Forces during certain periods of military hostilities. In relevant part, it provides:
8 U.S.C. § 1440 (emphasis added).
"The sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General." 8 U.S.C. § 1421(a). USCIS is the agency designated to make naturalization decisions with respect to applicants pursuing naturalization under 8 U.S.C. § 1440.2 See 6 U.S.C. § 271(b)(2). An application for naturalization is first decided by a USCIS examining immigration officer. See 8 U.S.C. § 1446(d). If the application is denied, the applicant may request a hearing before another immigration officer. 8 U.S.C. § 1447(a) ; see also 8 C.F.R. § 336.2(a) (); USCIS Form N-336 ("Request for Hearing on a Decision in Naturalization Proceedings Under Section 336"3 ). "Upon receipt of a timely request for a hearing, USCIS will schedule a review hearing, within a reasonable period of time not to exceed 180 days from the date upon which the appeal is filed." 8 C.F.R. § 336.2(b).4
If a naturalization application is denied by the USCIS hearing officer, § 1421(c) provides for judicial review of that denial:
8 U.S.C. § 1421(c).
Pursuant to § 1440, a former service member seeking naturalization must have been "separated from such service ... under honorable conditions." 8 U.S.C. § 1440(a). With respect to this requirement, the USCIS Policy Manual states:
USCIS Policy Manual, Vol. 12, Part I, Chapter 3.
The Army gives four different types of discharges: honorable, general (under honorable conditions), under other than honorable conditions, and uncharacterized. During the first 180 days of active military service, a service member is considered by the Army to be in "entry-level status." See Department of Defense Instruction ("DoDI") 1332.14, at 55; Army Regulation ("AR") 135-178, at 103. If discharged while in entry-level status, the Army classifies the discharge as "uncharacterized." AR 135-178, ¶ 2-11 (); see also DoDI 1332.14 at Enclosure 4, 3c.5 Alternatively, if a servicemember is discharged after he or she is no longer "entry-level," the Army characterizes the discharge as either honorable, general (under honorable conditions), or under other than honorable conditions. AR 135-178, at 103. The characterization of a discharge appears on the servicemember's discharge form (Form DD-214, Certificate of Release or Discharge from Active Duty). (See, e.g. , Compl. ¶ 44.)
Each plaintiff served in the United States Army and has applied for naturalization pursuant to 8 U.S.C. § 1440.
Miriyeva currently resides in San Diego, California. She enlisted in the Army's Selected Reserve of the Ready Reserve in 2016. Her naturalization application was initially approved on October 4, 2018. But then she was discharged on December 21, 2018, for medical reasons, and because she had served fewer than 180 days of "active" duty, she received an "entry-level" or "uncharacterized" discharge. Following her discharge, USCIS revoked its approval of her naturalization application on the ground that an "uncharacterized" discharge is not a separation "under honorable conditions." Miriyeva has filed an N-336 form requesting an administrative hearing pursuant to 8 U.S.C. 1447(a). As of December 11, 2019, her administrative appeal was still pending.
Tum currently resides in Richmond, Kentucky. She enlisted in the Army's Selected Reserve of the Ready Reserve in 2016. She was discharged on February 19, 2019, for medical reasons, and because she had served less than 180 days, she received an "entry-level" or "uncharacterized" discharge. USCIS then denied her naturalization application on the ground that an "uncharacterized" discharge is not a separation "under honorable conditions." Tum filed an N-336 form requesting an administrative hearing pursuant to 8 U.S.C. 1447(a). The hearing took place on November 21, 2019, but as of December 11, 2019, there had been no decision.
Kulkarni currently resides in Warrensburg, Missouri. She enlisted in the Army on January 22, 2016. She was discharged on December 7, 2018, for medical reasons. Her discharge form indicated that her discharge was "uncharacterized."6 USCIS denied her naturalization application on the ground that an "uncharacterized" discharge is not a separation "under honorable conditions." Kulkarni filed an N-336 form requesting an administrative hearing pursuant to 8 U.S.C. 1447(a). Her administrative appeal was denied on October 17, 2019. As of December 21, 2019, she had not sought judicial review pursuant to 8 U.S.C. § 1421(c).
Kadel currently resides in Houston, Texas. He enlisted in the Army on July 24, 2015. He was discharged on August 4, 2017, with an effective date of July 24, 2017. Because he had served fewer than 180 days, his discharge was "uncharacterized." USCIS denied his naturalization application on the ground that an "uncharacterized" discharge is not a separation "under honorable conditions." Pursuant to 8 U.S.C. 1447(a), Kadel filed an N-336 requesting a hearing. As of December 11, 2019, his appeal was still pending.7
USCIS has offered virtually the same explanation in each case for its conclusion that an "uncharacterized" discharge does not constitute a...
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