Rahman v. Napolitano, 09-3437
| Decision Date | 13 July 2010 |
| Docket Number | No. 09-3437,09-3437 |
| Parties | NUZAIRA M. RAHMAN, Plaintiff-Appellant, v. JANET NAPOLITANO, EMILIO T. GONZALES, and MARK B. HANSEN, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
On Appeal from the United States District Court for the Northern District of Ohio at Cleveland
Before: GUY, BOGGS, and SUTTON, Circuit Judges.
Plaintiff Nuzaira Rahman appeals from the dismissal of her pro se complaint requesting that the district court adjudicate her application for naturalization or remand the matter for adjudication by the United States Citizenship and Immigration Services (USCIS) pursuant to 8 U.S.C. § 1447(b).1 The district court dismissed the complaint without prejudice in reliance on 8 U.S.C. § 1429, which restricts the authority to consider an application for naturalization while removal proceedings are pending. Plaintiff claims that it was error for the district court (1) to conclude that § 1429 deprived thedistrict court ofjurisdiction under § 1447(b); and (2) to reject her plea to vacate the USCIS's subsequent denial of her application for naturalization, the error being either (a) because the district court's jurisdiction under § 1447(b) is exclusive, or (b) because the USCIS was precluded from doing so by the limitations of § 1429.2
Finding that § 1429 limits the district court's authority to grant relief under § 1447(b), or determine the USCIS's jurisdiction or authority to act on the delayed application for naturalization, we affirm the dismissal of the complaint without prejudice.
Plaintiff Nuzaira Rahman, a native and citizen of Bangladesh, received Lawful Permanent Resident (LPR) status on November 17, 2000. In May 2004, plaintiff applied for naturalization as the spouse of a United States citizen.3 Plaintiff was examined for naturalization on November 26, 2004, and passed all the tests that were administered. More than 120 days passed without decision on the application for naturalization.
In April 2005, a federal indictment charged plaintiff's husband Abrar U. Haque (and a number of others) with various offenses. Plaintiff was charged in the same indictment (under her married name) with several offenses. In January 2007, after her husband was convicted at trial of multiple offenses, plaintiff pleaded guilty to one count of furnishing inaccurate information to the Commissioner of Social Security and was sentenced to two years' probation. She claims that she believed that this conviction would not result in herremoval.
However, on April 7, 2008, the Department of Homeland Security (DHS) served plaintiff with a Notice to Appear, which charged her with removability on account of both that 2007 conviction and an undisclosed 1998 order of removal that was entered in absentia. Attacking the removal from more than one direction, plaintiff sought to vacate her conviction, tried to halt the removal proceedings, and instituted this action to obtain a decision on the four-year-old application for naturalization.
Specifically, not having appealed her judgment of conviction or filed a § 2255 motion, plaintiff moved to vacate her conviction by filing a petition for writ of error coram nobis in the district court. That petition was denied, and an appeal is currently pending in this court. Plaintiff also filed unsuccessful motions (1) to terminate the removal proceedings to permit her to proceed to a final decision on the application for naturalization, and (2) to stay the removal proceedings so that a motion to reopen the prior in absentia order of removal could be heard. Although defendants indicate that an evidentiary hearing was held in the removal proceedings on July 27, 2009, it appears that the removal proceedings remain pending at this time.
This action was filed on August 22, 2008, a few months after removal proceedings were initiated, invoking the district court's jurisdiction under § 1447(b) to hear the matter because the USCIS had not acted within 120 days of her examination. On September 3, 2008, before defendants were properly served, the USCIS issued a written decision denying plaintiff's application for naturalization. That order referred not only to the pending removalproceedings, but also to plaintiff's failure to disclose in the application her involvement with criminal activity or the prior order of removal. Defendants moved to dismiss the complaint for improper service, which defendants concede was rectified on October 3, 2008. Plaintiff's response to this motion also asked the district court to vacate the recent denial of her application for naturalization.
Plaintiff moved for summary judgment in her favor, and defendants' response included a motion to dismiss on alternative grounds of mootness and lack of subject matter jurisdiction. The district court concluded that it lacked subject matter jurisdiction while removal proceedings were pending. Denying plaintiff's motion for summary judgment and granting defendants' motion to dismiss, the district court dismissed the complaint without prejudice in an order entered on February 12, 2009. Plaintiff filed a motion for reconsideration, which was denied. This appeal followed.
We review de novo a district court's decision to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), except that when a district court inquires into the factual basis for jurisdiction the factual findings are reviewed for clear error. See Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917, 919 (6th Cir. 2009); Abbott v. Michigan, 474 F.3d 324, 328 (6th Cir. 2007). Since the decision in this case did not depend on factual findings, we consider defendants' motion to be a facial attack on jurisdiction that is to be reviewed de novo.
Until the adoption of what would become § 1429, "the usual practice had been 'for both the [removal] and naturalization processes to proceed along together until either [the] petitioner's [removal] or naturalization ipso facto terminated the possibility of the other occurring." Zayed v. United States, 368 F.3d 902, 905 (6th Cir. 2004) (quoting Shomberg v. United States, 348 U.S. 540, 543 (1955)). Congress put an end to the race between naturalization and removal in 1950 by adopting a priority provision declaring, in part, that "no petition for naturalization shall be finally heard by a naturalization court" while deportation proceedings were pending against the applicant. Ajlani v. Chertoff, 545 F.3d 229, 236 (2d Cir. 2008) ().
Prior to 1990, authority to naturalize an alien was vested in the district courts, and removal was entirely the province of the Attorney General. Zayed, 368 F.3d at 905. In 1990, with the intention of streamlining the process, Congress unified naturalization authority and removal authority in the Attorney General (as delegated to the USCIS and DHS). See Etape v. Chertoff, 497 F.3d 379, 386 (4th Cir. 2007) (discussing 1990 amendments). Congress did so by expressly conferring on the Attorney General the "sole authority to naturalize persons as citizens of the United States." 8 U.S.C. § 1421(a). At the same time, Congress preserved the district courts' power to review the denial of an application for naturalization after a hearing before an immigration officer, 8 U.S.C. § 1421(c), or to hear the matter on a request by the applicant if the Attorney General fails to act within 120 days after the examination is conducted, 8 U.S.C. § 1447(b). The priority provision was also amended to conform to thesechanges such that it now reads, in pertinent part, that "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[.]" 8 U.S.C. § 1429 (as amended) (emphasis added). Plaintiff relies on this language to argue that § 1429 applies only to the Attorney General and not the district court.
This court's decision in Zayed was one of the first to confront the issue of whether § 1429, as amended, restricts the power of the district courts. The question presented in Zayed was whether § 1429 precluded the district court from reviewing a final administrative denial of naturalization once removal proceedings had been initiated. 368 F.3d at 903. The government argued, as it does here, that § 1429 operated to deprive the district court of subject matter jurisdiction as long as removal proceedings were pending against the applicant. We rejected this contention and held that the effect of § 1429 "is to limit the scope of the court's review and circumscribe the availability of effective remedies, but not to oust the district court of jurisdiction expressly conferred on it by the very act of Congress that amended § 1429." Zayed, 368 F.3d at 906.
That is, the court held, a district court exercising jurisdiction under § 1421(c) may only review those decisions that § 1429 would permit the Attorney General to make while removal proceedings are pending. Id. This would permit a district court to make a threshold determination as to whether an application for naturalization was properly denied on the basis of pending removal proceedings. Id. However, when an application for naturalization is denied on grounds other than the pendency of removal proceedings, the limitations of § 1429would prevent the district court from granting effective relief under § 1421(c). Id. Because the latter was the case in Zayed, the decision to dismiss without prejudice was affirmed. Accord De Lara Bellajaro v. Schiltgen, 378 F.3d 1042, 1047 (9th Cir. 2004).4
Bound by the essential holding in Zayed concerning the effect of § 1429 in an action under § 1421(c), we conclude, as other courts have, that § 1429 similarly limits the scope of the district court...
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