United States District Court, D. Utah
MEMORANDUM DECISION & ORDER
WADDOUPS UNITED STATES DISTRICT JUDGE.
the court is Respondents' Motion to Dismiss. (ECF No.
10.) Petitioner Kabura filed this action under 8 U.S.C.
§ 1447(b), which gives the court authority to decide a
petitioner's application to naturalize as a citizen or to
instruct the United States Citizenship and Immigration
Service to do so if 120 days have passed since the petitioner
submitted his or her application and USCIS has made no
determination. Respondents argue that 8 U.S.C. § 1429
limits the court's authority under § 1447(b) by
prohibiting the Attorney General (now USCIS) from considering
an application for naturalization if there are removal
proceedings pending against the petitioner, when read in
conjunction with 8 U.S.C. § 1421(a), which vests
authority to naturalize citizens exclusively in USCIS. Having
fully considered the briefing, hearing oral argument, and
being otherwise fully informed, the court GRANTS
Respondents' Motion for the reasons stated herein.
The facts material to the Motion are undisputed. Mr. Kabura
applied for naturalization in August 2016 (Application for
Naturalization 20, ECF No. 2-1.), and he had an examination
on the application on December 21, 2016. (Respondents Motion
2, ECF No. 10). He successfully passed the requirements for
English, U.S. History, and U.S. Government, and met the
requirements for continuous presence within the United
States. (Complaint, ¶ 5, ECF No. 2.) USCIS then sent Mr.
Kabura a Notice to Appear, notifying him he was subject to
removal on July 28, 2017. (Notice to Appear, ECF No. 10-1.)
The notice cited Mr. Kabura's 2010 violation of a
state-issued protective order as the basis for his removal.
(Id.) The notice stated that he was subject to
removal under § 237(a)(2)(E)(ii) of the Immigration and
Nationality Act because it has been determined that he had
“engaged in conduct in violation of [a protective]
order that involves protection against credible threats of
violence, repeated harassments, or bodily injury to the
person . . . for whom the protection order was issued.”
(Id.) The assertion was based on Mr. Kabura's
conviction in 2010 on a state misdemeanor charge. The factual
support stated in the Presentence Report was that Mr. Kabura
had attempted several times to call his ex-wife, but only
talked to her one time. (Presentence Report 2-3, ECF No.
2-6.) The calls were found to be in violation of temporary
provisions of the protective order, pending final
determination of the ex-wife's motion. (Id. at
3.) There were no reports of injury or property damage.
(Id.) The Presentence Report contains no support for
a finding of threats or harassment, other than the several
attempted telephone calls. (Id.) The ex-wife failed
to appear at the hearing for a protective order, and the case
was dismissed. (Id.) Nevertheless, the state
proceeded on the misdemeanor charge, and Mr. Kabura was
convicted and sentenced to probation, which he successfully
completed. He disclosed the conviction in his Application for
Naturalization. (Application 15 & 23, ECF No. 2-1.)
USCIS failed to act on the application for more than 220
days, Mr. Kabura filed this action on August 3, 2017.
(Complaint, ECF No. 1.) Respondents moved for dismissal under
Federal Rule of Civil Procedure 12(b)(1) on October 23, 2017,
arguing the action is barred by its filing of the notice to
question before the court is whether 8 U.S.C. § 1429
deprives the court of the jurisdiction that Congress
conferred on it through 8 U.S.C. § 1447(b). Section
If there is a failure to make a determination under section
1446of 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.
according to the plain language of § 1447(b), because
Mr. Kabura filed his petition for this court to review his
naturalization application 120 days after the date of his
examination, this court acquired jurisdiction to consider his
application or remand it to USCIS with instructions for the
agency to do the same.
argue, however, that the court was stripped of its
jurisdiction when ICE filed its notice to appear in the
immigration court because of § 1429. Section 1429 states
in relevant 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 issued under the provisions
of this chapter or any other Act.” Respondents contend
that the prohibition against the Attorney General extends to
the court because “[t]he sole authority to naturalize
persons as citizens of the United States is conferred upon
the Attorney General.” 8 U.S.C. § 1421(a). There is
limited case law in this area, and courts considering the
relationship between § 1447(b) and § 1429 have
considered case law related to § 1421(c), which permits
district court review after denial of a naturalization
application. See, e.g., Klene v.
Napolitano, 697 F.3d 666 (7th Cir. 2012) (cataloguing
Awe v. Napolitano, 494 Fed.Appx. 860');">494 Fed.Appx. 860 (10th Cir.
2012) (unpublished), the Tenth Circuit Court of Appeals
considered the effect of removal proceedings on a §
1421(c) petition for review and concluded that, while §
1421(c) confers jurisdiction on the district court to review
an application previously denied by USCIS, § 1429
deprived the district court of the ability to “grant
[petitioner] any effective relief.” Id. at
861, 865. The court determined the case should be dismissed
without prejudice on constitutional mootness grounds because
even if the district court reviewed the decision by USCIS on
petitioner's application and concluded that it should
have been granted, USCIS did not have authority to naturalize
the petitioner. Id. at 865-66. The court concluded a
petition for judicial review is not “‘amenable to
specific relief'” where a removal proceeding is
pending. Id. (quoting Jordan v. Sosa, 654
F.3d 1012, 1024 (10th Cir. 2011)).
the Awe court did not address the effect of its
conclusion on cases under § 1447(b) because doing so
would be dicta, 494 Fed.Appx. at 865 n.7, at least two
district courts in the Tenth Circuit have applied
Awe's reasoning to § 1447(b) petitions.
See Singh v. Sessions, No. 2:17-cv-36, 2018 WL
486749 (D. Utah Jan. 18, 2018) (relying on Awe in
concluding a petition under § 1447(b) was
constitutionally moot); Borski v. Lynch, No.
16-cv-924, 2017 WL 1153997 (D. Colo. March 27, 2017)
(dismissing the petitioner's action to compel USCIS to
explain its delay in considering the petitioner's
naturalization application and to render such a decision
because the court could take no action that “would
affect the behavior of the parties”). And other circuit
courts have similarly concluded that district courts should
dismiss a petition under § 1447(b) if the petitioner is
subject to removal proceedings, though they have not gone so
far as to determine the cases were constitutionally moot.
See Saba-Bakare v. Chertoff, 507 F.3d 337 (5th Cir.
2007) (concluding that subject matter jurisdiction did not
exist under § 1447(b) because removal proceedings had
already begun); Ajlani v. Chertoff, 545 F.3d 229 (2d
Cir. 2008) (determining § 1421(a) meant the district
court considering a naturalization application under §
1447(b) could have no more authority than the Attorney
General who was barred from acting on a such an application
while removal proceedings were pending).
Kabura argues that his case differs from those cases,
however, because in addition to asking the court to instruct
the agency to act on his petition, he has also asked the
court to retain jurisdiction and decide the matter for
itself. He argues that § 1429 may prevent the court from
remanding to USCIS, because doing so would require subsequent
conduct by the agency in violation of § 1429, but that
§ 1429 only refers to the Attorney General and has no
effect on the court's ability to decide the matter for
itself. He states, “Section 1429 places no such limits
on an Article III court's judicial review independently
conferred on it under 8 U.S.C. § 1447(b).”
Kabura relies on Gonzalez v. Secretary of Department of
Homeland Security, 678 F.3d 254 (3d Cir. 2012), in which
the Third Circuit held that, while a district court could not
instruct the Attorney General to grant an application for
naturalization, it could enter declaratory judgment that the
application should be granted. In Gonzalez, USCIS
had denied petitioner's application for naturalization
because he provided false information, and subsequent to the
denial, USCIS initiated removal proceedings. Id. at
256. The issue before the court was whether “§
1429 forecloses judicial review pursuant to § 1421(c)
whenever removal proceeding is pending.” Id.
at 258. The Third Circuit was persuaded by the Ninth
Circuit's conclusion that there is “‘no
textual basis for concluding that jurisdiction vested in
district courts by § 1421(c) is divested by §
1429.'” Id. (quoting De Lara Bellajaro
v. Schiltgen, 378 F.3d 1042, 1046 (9th Cir. 2004)). The
Third Circuit then concluded that, because the Attorney
General had ruled on the merits of the petitioner's
application, the district court had jurisdiction to review
that denial and could grant declaratory judgment if it
concluded that USCIS's decision merited reversal.
Id. Declaratory judgment was a ...