Zaranska v. United States Department of Homeland Security

• Decision Date: 10 November 2005
• Docket Number: No. MISC-04-0169 (FB)(JMA).,MISC-04-0169 (FB)(JMA).
• Citation: 400 F.Supp.2d 500
• Parties: Genowefa ZARANSKA, Petitioner, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Tom Ridge as Secretary of United States Department of Homeland Security, United States Citizenship and Immigration Services, and Mary Ann Gantner as District Director, New York District, United States Citizenship and Immigration Services, Respondents.
• Court: U.S. District Court — Eastern District of New York

400 F.Supp.2d 500

Genowefa ZARANSKA, Petitioner, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Tom Ridge as Secretary of United States Department of Homeland Security, United States Citizenship and Immigration Services, and Mary Ann Gantner as District Director, New York District, United States Citizenship and Immigration Services, Respondents.

No. MISC-04-0169 (FB)(JMA).

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

November 10, 2005.

Przemyslaw Jan Bloch, Esq., Brooklyn, NY, for Petitioner.

Roslynn R. Mauskopf, United States Attorney, Eastern District of New York by Scott Dunn, Assistant United States Attorney, Brooklyn, NY, for Respondents.

MEMORANDUM AND ORDER

BLOCK, District Judge.

On June 8, 2004, Petitioner Genowefa Zaranksa ("Zaranska") filed a petition with the Court pursuant to 8 U.S.C. § 1447(b), requesting that the Court adjudicate her application for naturalization or remand the application to the United States Citizenship and Immigration Services (the "CIS") for adjudication. While the petition was sub judice, the CIS denied Zaranska's application for naturalization. The United States Department of Homeland Security ("DHS"), Michael Chertoff¹ as Secretary of the Department of Homeland Security, the CIS, and Mary Ann Gantner as District Director of the CIS (collectively, "respondents"), moved to dismiss Zaranska's petition pursuant to Fed.R.Civ.P. 12(b)(1) on the grounds that (1) it became moot following CIS's denial of her application, and (2) Zaranska has not exhausted her administrative remedies under 8 U.S.C. § 1421(c), which sets forth the process by which an applicant may appeal the CIS's denial of a naturalization application.² Respondents moved in the alternative for summary judgment denying Zaranska's application on the grounds that her prior conviction for assaulting a police officer was a crime of moral turpitude which prevents the requisite finding under 8 U.S.C. § 1427(a) and 8 C.F.R. § 316.10 that she is a person of "good moral character."

The Court referred the matter to Magistrate Judge Azrack for a Report and Recommendation ("R & R") in accordance with 28 U.S.C. § 636(b). On July 18, 2005, Magistrate Judge Azrack issued the R & R, familiarity with which is assumed, concluding that the federal courts have exclusive jurisdiction over naturalization applications pursuant to 8 U.S.C. § 1447(b); therefore, the motion to dismiss should be denied and the matter adjudicated by the Court. Magistrate Judge Azrack further recommended that respondents' motion for summary judgment be denied on the grounds that Zaranska's prior conviction did not involve a crime of moral turpitude and that Zaranska was therefore not ineligible for naturalization on that basis. Respondents filed timely objections to the R & R; therefore, the Court will review de novo those portions of the R & R as to which objections were made. See 28 U.S.C. § 636(b)(1); United States v. Tortora, 30 F.3d 334 (2d Cir.1994). For the reasons set forth below, the Court adopts the R & R.

I.

A. Respondents' Motion to Dismiss

As Magistrate Judge Azrack noted, 8 U.S.C. § 1447(b) provides that if the CIS fails to make a determination on a naturalization application within 120 days following an examination of that applicant under 8 U.S.C. § 1446,

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.

8 U.S.C. § 1447(b). The question of whether district courts have exclusive jurisdiction over a petition filed in district court under § 1447 after expiration of the 120-day period, thereby depriving the CIS of jurisdiction to decide the naturalization application while the petition is pending in the district court, has not been addressed by the Second Circuit. Judge Azrack's determination that a petition filed with a district court under § 1447 strips the CIS of jurisdiction to act upon the petitioner's naturalization application relies primarily on a recent unanimous en banc decision by the Ninth Circuit, United States v. Hovsepian, 359 F.3d 1144 (9th Cir.2004).

Respondents object to Judge Azrack's reliance on the Ninth Circuit's decision, arguing that an unpublished Fourth Circuit decision, an unpublished decision from the Southern District of New York, a published decision from the Northern District of Illinois, and a Second Circuit decision involving the BIA's jurisdiction to reconsider its denial of a claim under the United Nations Convention Against Torture provide more persuasive guidance. Respondents assert that the decision in Hovsepian is flawed because the court misinterprets the Supreme Court's decision in Brock v. Pierce County, 476 U.S. 253, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986), from which the Ninth Circuit derives the principle that Congress demonstrates an intent to strip an agency of jurisdiction where a statute both requires that the agency act within a particular time period and specifies a consequence for failure to comply with the time limit. Respondents also take issue with the Ninth Circuit's determination that the purpose and legislative history of 8 U.S.C. § 1447 support its construction of the statute. Finally, respondents object that once a naturalization application has been denied, 8 U.S.C. § 1421(c) provides the only mechanism for judicial review.

The Court concludes that the Hovsepian decision is well-reasoned, and that Magistrate Judge Azrack's reliance upon it, rather than the cases cited by respondents, was proper. The Ninth Circuit's analysis of the plain language of the statute is persuasive, as is its examination of the statute's purpose and legislative history. The Court also disagrees with respondents' reading of Brock, and finds that Brock's reasoning supports the Ninth Circuit's decision. In Brock, the court found that the statute at issue did not evidence Congress's intent to deprive the agency of jurisdiction because the statute did not specify any consequence for the agency's failure to act within the specified time period, and the court simply declined to interpret Congress's silence to indicate an intent to foreclose the possibility of any action by the agency after expiration of the relevant deadline. The Court agrees with the Ninth Circuit's observation that, in contrast to the statute at issue in Brock, § 1447(b) both requires the CIS to act within a certain period of time and specifies a consequence for failure to comply with the deadline (placing jurisdiction over the naturalization application in the district courts), thereby indicating an intent to strip the agency of jurisdiction.

The cases cited by respondents do not provide persuasive authority to the contrary: the Second Circuit's decision in Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir.2004) involved an entirely different statutory provision than the one at issue here, and the Court concludes that its reasoning is not controlling. Langer v. McElroy, 2002 WL 31789757 (S.D.N.Y. Dec.13, 2002), is also not on point; in Langer the court concluded that analysis under § 1447(b) was not proper because the INS had made a decision on the petitioner's application prior to her filing of a complaint in district court. Id. at *3. Similarly, Chavez v. INS, 844 F.Supp. 1224, 1225 (N.D.Ill.1993), is distinguishable in that the petitioner in Chavez had previously successfully sought a remand from the district court under section 1447(b), and after the INS then proceeded to adjudicate and deny the application, the district court held that the proper avenue for review was under 8 U.S.C. § 1421(c), rather than § 1447(b). Finally, the Court does not find the Fourth Circuit's decision in Kia v. INS, 175 F.3d 1014, 1999 WL 172818 (4th Cir.1999) (table), to be persuasive. Kia was decided prior to Hovsepian, relies on a Ninth Circuit decision that was distinguished and overruled in Hovsepian, and unlike Hovsepian, does not include any detailed analysis of § 1447 or its legislative history. In the only published case located by the Court to address the issue following the Ninth Circuit's decision in Hovsepian, the district court of the District of Columbia agreed with the Ninth Circuit's conclusion that filing a petition in district court pursuant to § 1447(b) strips the CIS of jurisdiction to decide the application. See Castracani v. Chertoff, 377 F.Supp.2d 71, 73-75 (D.D.C.2005).

Finally, respondents' objection that § 1421(c) provides the sole mechanism for review once an application for naturalization has been denied does not affect the Court's conclusion that § 1447 vests the district courts with exclusive jurisdiction. Respondents' assertion may be true where the CIS's denial occurs prior to an applicant's filing of a petition in the district court. Because the Court concludes that the filing of a petition in district court pursuant to § 1447 strips the CIS of jurisdiction, a denial issued by the CIS after the petition is filed cannot have any effect, and § 1421(c) therefore becomes irrelevant to the analysis.

B. Motion for Summary Judgment

Magistrate Judge Azrack also concluded that respondents' motion for summary judgment should be denied because the crime of which Zaranska was convicted is not a crime involving moral turpitude; consequently, Zaranksa is not statutorily ineligible for naturalization.³ Magistrate Judge Azrack further determined that under the rule of lenity set forth in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 384, 160 L.Ed.2d 271, 282 (2004), any doubt as to whether the New York statute under which Zaranksa was convicted involves moral turpitude should be resolved in favor of the petitioner. Respondents object that Magistrate Judge Azrack erred in failing to defer to the immigration authorities' determination of what constitutes a crime of moral turpitude,...