Miriyeva v. U.S. Citizenship & Immigration Servs.

Decision Date21 March 2022
Docket Number20-CV-2496 JLS (BGS)
CourtU.S. District Court — Southern District of California
PartiesGUNAY MIRIYEVA, Plaintiff, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES; KENNETH T. CUCCINELLI, Senior Official Performing the Duties of the Director of USCIS; and MAXIM MELISSA, San Diego Field Office Director, USCIS, Defendants.



Presently before the Court is Defendants U.S. Citizenship and Immigration Services (USCIS), Kenneth T Cuccinelli, and Maxim Melissa's (collectively Defendants) Motion to Dismiss for Failure to State a Claim or Alternatively for Summary Judgment (“Mot., ” ECF No. 12) as well as Defendants' Request for Judicial Notice in support of the same. Plaintiff Gunay Miriyeva filed an Opposition to the Motion (“Opp'n, ” ECF No. 17), and Defendants filed a Reply in support of the Motion (“Reply, ” ECF No. 18). The Court decides the matter on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1). See generally ECF No. 19. The Court does not convert Defendants' Motion to a motion for summary judgment, but instead decides the Motion to Dismiss based on the Request for Judicial Notice, Plaintiff's Complaint (“Compl., ” ECF No. 1), and the documents incorporated by reference into the Complaint. Having carefully reviewed the Complaint, the Parties' arguments, and the relevant law, the Court GRANTS Defendants' Request for Judicial Notice and GRANTS IN PART and DENIES IN PART Defendants' Motion to Dismiss, as follows.


Plaintiff, an Azerbaijan citizen, came to the United States on an F-1 student visa as a graduate student in August 2013. Compl. ¶ 47. In general, enlistees in the United States Armed Forces must be either United States citizens or lawful permanent residents. 10 U.S.C. § 504(b). However, Plaintiff enlisted in the Army's Selected Reserve of the Ready Reserve on March 14, 2016, through the Military Accessions Vital to the National Interest (“MAVNI”) program. Compl. ¶¶ 48-49, 51. For foreign nationals with critical foreign language skills or specialized medical training, the MAVNI program provides a path to citizenship for service in the military during designated periods of hostility.[2] 10 U.S.C. § 504(b)(2). The Army assigned Plaintiff to the Selected Reserve's Delayed Training Program (“DTP”). Compl. ¶ 52.

In March 2018, while awaiting a favorable Military Service Suitability Determination (“MSSD”) and completion of background investigations to begin active-duty service, Plaintiff applied for naturalization pursuant to 8 U.S.C. § 1440. Id. ¶ 55. Plaintiff's application included Form N-426, which is titled Request for Certification of Military or Naval Service. Id. ¶¶ 53, 95; see also Ex. 1, ECF No. 1-2. On January 18, 2018, the Army certified Plaintiff's Form N-426, indicating that Plaintiff “is currently serving honorably” in the Army and that Plaintiff was not separated from military service. Compl. ¶ 53; see also Ex. 1. Plaintiff's naturalization application was initially approved on October 4, 2018; however, the USCIS did not administer the oath of citizenship at that time. Compl. ¶¶ 55-56. Plaintiff entered active-duty status on November 5, 2018, when she began her basic training. Id. ¶ 60. Plaintiff was discharged from the Army for medical reasons on December 21, 2018, and the Army issued her a DD Form 214, Certificate of Release or Discharge from Active Duty (“DD-214”). Id. Plaintiff served fewer than 180 days of “active” duty, and as a result she received an “entry-level” or “uncharacterized” discharge on her DD-214. Id. ¶¶ 61-62.

The Army subsequently certified a second Form N-426 for Plaintiff on January 11, 2019, which indicated that Plaintiff “is currently serving honorably” and represented that she was not separated from service.[3] Id. ¶ 73; Ex. 4, ECF No. 1-5. On April 23, 2019, the Army certified a third Form N-426 to USCIS, which provided that Plaintiff separated from service on December 21, 2018, and that she served honorably for her period of military service; however, the certifying officer left the “discharge type” question blank. Compl. ¶ 77; Ex. 6, ECF No. 1-7. On June 6, 2019, USCIS notified Plaintiff of its intent to reopen Plaintiff's application for naturalization, and USCIS simultaneously revoked its prior approval of her naturalization application on the grounds that an “uncharacterized” discharge is not a separation “under honorable conditions” as required under 8 U.S.C. § 1440. Compl. ¶ 81; Ex. 7, ECF No. 1-8. On July 11, 2019, USCIS denied Plaintiff's naturalization application after finding “there is no indication that the Army determined [Plaintiff's] separation was ‘under honorable conditions.' Compl. ¶ 84; Ex. 8, ECF No. 1-9.

Beginning in May 2017, while Plaintiff was serving in the Army's Selected Reserve and adjudicating her naturalization application, four cases were filed in federal court involving immigrants who enlisted in the Unites States military as part of the MAVNI program and sought naturalization under 8 U.S.C. § 1440. See Nia v. DHS, No. 17-cv-0998 (PLF) (D.D.C.); Kirwa v. Dep't of Defense, No. 17-cv-01793 (PLF) (D.D.C.); Calixto v. Dep't of the Army, 18-cv-01551 (PLF) (D.D.C.); Miriyeva v. USCIS, No. 19-cv-3351 (ESH) (D.D.C.). These cases raise challenges to certain USCIS, Department of Defense (DoD), and Army policies pertaining to MAVNI naturalizations and purported discharge actions. Compl. ¶ 73 n.4. In Calixto, the Army included Plaintiff on a list of MAVNI soldiers whose discharges from the Army were not properly effectuated. See Id. ¶¶ 85-86. Based the Army's inclusion of Plaintiff on the Calixto list, USCIS again reopened Plaintiff's naturalization application on July 11, 2019. See Id. Because the Army reported that Plaintiff had not been separated, USCIS could not deny her naturalization application based on “separation from military service without honorable discharge.” Id. Based on this information, USCIS approved Plaintiff's naturalization application for the second time. Id. ¶ 88. USCIS subsequently submitted a status report in Nio indicating that Plaintiff was erroneously included on the Calixto list because her DD-214 indicated a final discharge. Id. ¶ 89. After this correction, USCIS again denied Plaintiff's application. Id. ¶ 92(j).

On August 16, 2019, Plaintiff appealed USCIS's denial of her naturalization application, submitting a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings. Compl. ¶ 94; Ex. 11, ECF No. 1-12. On September 2, 2020, the Army provided Plaintiff with a fourth Form N-426. Compl. ¶¶ 94, 98; Ex. 9, ECF No. 1-10. The fourth Form N-426 has additional instructions under the “Character of Service” section that the other Form N-426s did not include. Compare Ex. 9 at 4, with Ex. 6 at 3. This version of the form further required Plaintiff to “provide copies of [her] DD Form 214 or NGB Form 22 that include the character of service upon separation from service[.] Ex. 9 at 4. The “Characterization of Service” section of the fourth Form N-426 indicated that Plaintiff “served honorably, ” and under “Separation Information” indicated that Plaintiff is separated and classified her “discharge type” as “Honorable” out of two options, “Honorable” or “Other.” Id.

On November 24, 2020, USCIS reaffirmed its decision to deny Plaintiff's naturalization application. Compl. ¶ 101; Ex. 11, ECF No. 1-12. USCIS stated that because Plaintiff's DD-214 “reflects [she] received an ‘uncharacterized' discharge from the U.S. Armed Forces . . . [she has] not met [her] burden to prove by a preponderance of the evidence that [she] meet[s] all the requirements for naturalization, namely the requirement of separation under honorable conditions.” Ex. 11 at 2. USCIS found Plaintiff's fourth certified Form N-426 [did] not overcome the ‘uncharacterized' designation on [Plaintiff's] ¶ 214 because DoD, per [DoD Instruction (“DoDI”)] 1336.01, treats the DD 214 as ‘the authoritative source of information required for the administration of State and Federal laws applicable to personnel who have been discharged . . . while on active duty.' Compl. ¶ 101; Ex. 11.

On December 23, 2020, Plaintiff filed this action under 8 U.S.C. § 1421(c) seeking judicial review of USCIS's determination that she is ineligible to naturalize based on her “uncharacterized” discharge. Plaintiff named the USCIS; Ken Cuccinelli, the Senior Official Performing the Duties of Director of USCIS; and Melissa Maxim, San Diego Field Office Director of USCIS, as defendants. Compl. ¶¶ 33-35. Plaintiff's Complaint alleges that USCIS has a policy of treating a “character of service” designation of “uncharacterized” on an applicant's DD-214 as an absolute bar to military naturalization contrary to federal law (the “Policy”), and that USCIS incorrectly denied her naturalization application on this basis. Id. ¶¶ 3-4, 19. Plaintiff's Complaint asserts six claims: (1) Count I seeks judicial review of USCIS's determination under 8 U.S.C. § 1421(c); (2) Count II asserts violations of the Administrative Procedure Act (“APA”); (3) Count III seeks equitable estoppel; (4) Count IV alleges Constitutional violations under the Uniform Rule of Naturalization and the Due Process Clause of the Fifth Amendment; (5) Count V seeks a declaratory judgment; and (6) Count VI seeks injunctive relief.


As an initial matter, Defendants request that the Court take judicial notice of six exhibits: (A) the district court's July 31, 2019 order in Calixto; (B) the Army's August 7, 2019 status report in Calixto; (C) USCIS's ...

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