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Kabura v. McNeer

United States District Court, D. Utah

July 11, 2018

EVARISTE KABURA, Petitioner,
v.
LAURA MCNEER et al., Respondents.

          MEMORANDUM DECISION & ORDER

          CLARK WADDOUPS UNITED STATES DISTRICT JUDGE.

         Before 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)[1] 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.

         Background[2]

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.)

         After 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 appear.

         Analysis

         The 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 1447(b) states:

If there is a failure to make a determination under section 1446[3]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.

         Therefore, 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.

         Respondents 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.”[4] 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 cases).

         In 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)).

         Although 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).

         Mr. 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).”[5]

         Mr. 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 ...


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