Omar v. Holder
| Decision Date | 23 November 2010 |
| Docket Number | Case No. 2:10–CV–119. |
| Citation | 756 F.Supp.2d 887 |
| Parties | Anwer OMAR, Plaintiff,v.Eric HOLDER, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION TEXT STARTS HERE
Christopher R. Yates, United States Attorney's Office, Columbus, OH, Nicole Prairie, Washington, DC, for Defendants.Rateb M. Khasawneh, Rasul & Khasawneh Co. LPA, Columbus, OH, for Plaintiff.
This matter is before the Court on the Defendants' Motion to Dismiss for Lack of Jurisdiction (D.E. 4). For the reasons that follow, the motion is denied. Additionally, the decision of the United States Citizenship and Immigration Services, dated March 28, 2010, denying the naturalization application of Anwer Omar, is vacated as ultra vires.
Plaintiff Anwer Omar brings this action for mandamus and declaratory relief in which he seeks a judicial determination of his naturalization application and a declaration that he is entitled to be naturalized. The Defendants in this action are Eric Holder, Attorney General, United States Department of Justice; Janet Napolitano, Secretary, Department of Homeland Security; Alejandro Mayorkas, Director, United States Citizenship and Immigration Services; Mark Hansen, District Director, United States Citizenship and Immigration Services; and Robert S. Mueller, III, Director, Federal Bureau of Investigation. Plaintiff seeks relief under the Immigration and Nationality Act, 8 U.S.C. § 1447(b), the Administrative Procedures Act, 5 U.S.C. § 701, et seq., the Mandamus Act, 28 U.S.C. § 1361, and the Declaratory Judgment Act, 28 U.S.C. § 2201, et seq. Plaintiff invokes this Court's federal question jurisdiction under 28 U.S.C. § 1331.
Plaintiff is a citizen of Jordan. It is undisputed that he became a lawful permanent resident of the United States on May 20, 2004, based upon his marriage to United States citizen Donna Frazier.1 (Attach. to Form N–335 (“N–335 Attachment”) at 1, attached as Ex. 1 to Pl.'s Resp. to Mot. to Dismiss, D.E. 5). On March 2, 2009, Plaintiff filed an Application for Naturalization, Form N–400, with the United States Citizenship and Immigration Services (“CIS”). (N–335 Attachment, at 2, ¶ 2.) In accordance with Section 316(A) of the Immigration and Nationality Act (“INA”), Plaintiff appeared before a CIS officer on June 29, 2009 for an examination of Plaintiff's Application for Naturalization. (N–335 Attachment, at 1, ¶ 1.) According to Plaintiff, he “satisfied all of the respective requirements, responded truthfully to all questions, and provided all requested information to the USCIS officer who conducted the examination.” (Compl. ¶ 16.) Plaintiff also avers that he passed the required language, history, and civics tests at that time. (Compl. ¶ 16.)
As of February 11, 2010, when CIS had taken no further action on his naturalization application, Plaintiff initiated this case as authorized by 8 U.S.C. § 1447(b). During the pendency of this suit, on February 16, 2010, CIS issued a Request for Evidence requiring Plaintiff to provide documentation of his irrevocable divorce from his first wife, Ebtisam Qatoum. (“N–335 Attachment” at 2.) Plaintiff provided the requested information on March 12, 2010. Id. The CIS interpreted the documentation provided by Plaintiff as evidence that his first marriage had not been terminated before he married his second wife and that he had therefore given false testimony to the CIS by declaring otherwise under oath at his naturalization examination and on his application forms for both naturalization and permanent residency. Id. Accordingly, the CIS found that Plaintiff lacked good moral character and denied his naturalization application on that basis on March 29, 2010. Id. Two days later, on March 31, 2010, CIS issued a Notice to Appear (“NTA”) informing Plaintiff that he was subject to removal and that he was required to appear before the Immigration Court at a date and time to be set. (Notice to Appear, attached as Exhibit 2 to Pl.'s Resp. to Mot. to Dismiss, D.E. 5.)
Defendants move for dismissal for lack of subject-matter jurisdiction based on mootness. Plaintiff filed a response in opposition, contending that the case continues to present a live controversy. In their reply brief, Defendants assert the following additional grounds for dismissal: (1) lack of subject-matter jurisdiction, under Rule 12(b)(1), for failure to exhaust administrative remedies; and (2) and failure to state a claim upon which can be granted under Rule 12(b)(6), predicated on the pendency of removal proceedings. Plaintiff did not file a sur-reply or seek leave to do so to address Defendant's additional grounds for dismissal.
When considering a motion to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a court must apply one of two standards, depending on the nature of the defendant's challenge. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir.2004). If the challenge is directed to the factual basis for jurisdiction, the court must weigh the evidence presented, and the plaintiff bears the burden of proving that a basis for subject-matter jurisdiction exists. Id. If, however, the defendant asserts a facial challenge the court's subject-matter jurisdiction, the court must, in effect, resolve the motion on the same standard as a Rule 12(b)(6) motion, treating all of the facts alleged in the complaint as true. Id.
As for Defendants' challenge to the merits of the complaint, Federal Rule of Civil Procedure 12(b)(6) requires dismissal if the complaint fails to state a claim upon which relief can be granted. While Rule 8(a)(2) requires a pleading to contain a “short and plain statement of the claim showing that the pleader is entitled to relief,” in order “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, –––U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Defendants filed their motion to dismiss for lack of subject-matter jurisdiction on the ground of mootness. Federal courts are courts of limited jurisdiction. United States v. Paull, 551 F.3d 516, 533 (6th Cir.2009). Without jurisdiction defined by the Constitution and granted by statute, federal courts lack the power to adjudicate claims. Id.
Regarding mootness, “Article III of the Constitution limits federal courts to the adjudication of actual, ongoing controversies between litigants.” Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988). To remain live, a case or controversy must be “extant at all stages of review, not merely at the time the complaint was filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). “[W]hen the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome[,] a case is moot [,]” and a federal court has no constitutional authority to resolve the issues that it presents. Ford v. Wilder, 469 F.3d 500, 504 (6th Cir.2006). In evaluating mootness, a court must determine “whether the relief sought would, if granted, make a difference to the legal interests of the parties ....” McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 458 (6th Cir.1997) (en banc) (internal citation and quotation marks omitted).
In the case at bar, the Defendants contend that the complaint is moot because Plaintiff received all of the relief to which he was entitled under § 1447(b) when his naturalization application was decided by CIS on March 28, 2010. This contention rests on the assumption that CIS retained the necessary authority and jurisdiction to decide the application. In his response, Plaintiff argues that the filing of his § 1447(b) petition vested the district court with exclusive jurisdiction to adjudicate Plaintiff's naturalization application. He claims that, because CIS did not retain concurrent jurisdiction, the agency lacked authority to deny the application. The question of mootness in this case thus turns upon whether § 1447(b) vests the district court with exclusive or concurrent jurisdiction.
Title 8 U.S.C. § 1447(b) provides as follows:
(b) Request for hearing before district court
If there is a failure to make a determination under section 1446 of this title before the end of the 120–day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.
The statutory language does not expressly state whether, upon a petitioner's proper filing of a § 1447 petition, a district court's jurisdiction is exclusive of or concurrent with agency jurisdiction.
Although the United States Court of Appeals for the Sixth Circuit has not decided this issue ( see Rahman v. Napolitano, 385 Fed.Appx. 540, 545 (6th Cir.2010) ()), the circuit courts that have done so have held that the proper filing of a § 1447(b) suit vests the court with exclusive jurisdiction over the matter. See Bustamante v. Napolitano, 582 F.3d 403, 405 (2d Cir.2009) (); Etape v. Chertoff, 497 F.3d 379, 383 (4th Cir.2007) (); United States v. Hovsepian, 359 F.3d 1144 (9th Cir.2004) (...
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