Opinion
Case No. 4:20-cv-00055-SMR-CFB
2020-11-24
Lal Rin SANGA, Plaintiff, v. William BARR, U.S. Attorney General; Chad Wolf, Acting Secretary of the Department of Homeland Security; Kenneth T. Cuccinelli, Acting Director of U.S. Citizenship & Immigration Services; David Douglas, District Director of U.S. Citizenship & Immigration Services; and Marta Nickols, Field Office Director of U.S. Citizenship & Immigration Services, Defendants.
Benjamin David Bergmann, Jessica Donels, Brown & Bergmann, L.L.P., Des Moines, IA, for Plaintiff. Kristin Elaine Olson, United States Attorney's Office, Des Moines, IA, for Defendants.
Benjamin David Bergmann, Jessica Donels, Brown & Bergmann, L.L.P., Des Moines, IA, for Plaintiff.
Kristin Elaine Olson, United States Attorney's Office, Des Moines, IA, for Defendants.
ORDER ON DEFENDANTS' MOTION TO DISMISS
STEPHANIE M. ROSE, JUDGE.
Are federal courts deprived of subject matter jurisdiction or otherwise precluded from awarding effective relief to an applicant for naturalization when immigration authorities commence removal proceedings by issuing the alien a "notice to appear," after the agency has initially denied the application but before a final decision has been rendered? Under the circumstances present here, the Court concludes they are not. And because abstaining would mean cutting off the aspiring citizen's statutory right to de novo judicial review of the same issue cited as the basis for his removal, the Court declines to stay these naturalization proceedings. Defendants' Motion to Dismiss, [ECF No. 15], is therefore DENIED.
The parties did not request a hearing on Defendant's motion, and the Court concludes the matter can be resolved without oral argument. See LR 7(c).
I. BACKGROUND
A. Legal Landscape of Federal Immigration Law
Prior to 1990, the two core functions of immigration law—naturalization and removal —lay between two different branches of the federal government. While federal courts had the ultimate authority to naturalize immigrants and grant citizenship, the Executive Branch, acting through the Attorney General, held the sole power to remove them. Ajlani v. Chertoff, 545 F.3d 229, 235 & n.5 (2d Cir. 2008) (citing Immigration and Nationality Act of 1952 ("INA"), Pub. L. No. 82-414, § 310(a), 66 Stat. 163, 239 (June 27, 1952); Naturalization Act of 1906, Pub. L. No. 59-338, §§ 3, 11, 34 Stat. 596, 596, 599 (Sept. 27, 1906)). Without priority given to one over the other, parallel naturalization and removal proceedings would advance simultaneously until a decision in one "ipso facto terminated the possibility of the other occurring," giving rise to what has been described as "a race between the alien to gain citizenship and the Attorney General to deport him." Shomberg v. United States, 348 U.S. 540, 543-44, 75 S.Ct. 509, 99 L.Ed. 624 (1955); see also Zayed v. United States, 368 F.3d 902, 905 n.4 (6th Cir. 2004) ("A person who has been naturalized cannot be removed, and a person who has been removed cannot be naturalized.").
"Section 1429 was enacted in 1952 to put an end to the race." De Lara Bellajaro v. Schiltgen, 378 F.3d 1042, 1045 (9th Cir. 2004). Codified at 8 U.S.C. § 1429 (1952), the updated statute provided that "no petition for naturalization shall be finally heard by a naturalization court if there is pending against the petitioner a deportation proceeding." INA § 318, 66 Stat. at 244. "Thus, from 1950 to 1990, federal law clearly forbade district courts from ruling on naturalization applications while removal proceedings were pending against the alien applicant." Ajlani, 545 F.3d at 236. The effect of this change was generally understood to represent Congress's intent to prioritize removal proceedings over naturalization
proceedings. E.g. Barnes v. Holder, 625 F.3d 801, 806 (4th Cir. 2010) ("For this reason, § 1429 has become known as the INA's 'priority provision.'").
Congress consolidated the power of naturalization and removal in the Executive Branch with the passage of the Immigration Act of 1990 by conferring "sole authority to naturalize persons of the United States on the Attorney General." Pub. L. No. 101-649, § 401(a), 104 Stat. 4978, 5038 (Nov. 29, 1990) (codified at 8 U.S.C. § 1421(a)). Accordingly, the legislative body amended § 1429 "by striking 'finally heard by a naturalization court' and inserting 'considered by the Attorney General.'" Id. § 407(d)(3), 104 Stat. at 5041. The law therefore maintained the priority of removal proceedings, but at the same time it "reserved a measure of naturalization jurisdiction for the courts in two circumstances: denial and delay." Ajlani, 545 F.3d at 236; accord Gonzalez v. Sec. of Dep't of Homeland Sec., 678 F.3d 254, 257 (3d Cir. 2012). Under current law, an applicant seeking naturalization as a United States citizen may seek de novo judicial review of the Attorney General's denial of his or her application with a federal district court. See 8 U.S.C. §§ 1421(c), 1447(a). Similarly, if the Attorney General "fail[s] to make a determination" on the application within 120 days of the required examination, the applicant can ask the district court to either "determine the matter" or "remand the matter, with appropriate instructions, to [immigration authorities] to determine the matter." Id. § 1447(b).
Under the modern version of § 1429, "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 [the INA] or any other Act." An open question exists as to whether, or to what extent, this language also precludes judicial review by a federal district court. See generally Klene v. Napolitano, 697 F.3d 666, 667-68 (7th Cir. 2012) (outlining split of authority). B. Factual Background and Procedural History
In full, 8 U.S.C. § 1429 reads:
Except as otherwise provided in this sub-chapter, no person shall be naturalized unless he has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of this chapter. The burden of proof shall be upon such person to show that he entered the United States lawfully, and the time, place, and manner of such entry into the United States, but in presenting such proof he shall be entitled to the production of his immigrant visa, if any, or of other entry document, if any, and of any other documents and records, not considered by the Attorney General to be confidential, pertaining to such entry, in the custody of the Service. Notwithstanding the provisions of section 405(b), and except as provided in sections 1439 and 1440 of this title no person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act; and 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: Provided, That the findings of the Attorney General in terminating removal proceedings or in canceling the removal of an alien pursuant to the provisions of this chapter, shall not be deemed binding in any way upon the Attorney General with respect to the question of whether such person has established his eligibility for naturalization as required by this subchapter.
In enacting the Homeland Security Act, Congress transferred authority to initiate removal proceedings and adjudicate naturalization applications from the Attorney General to the Secretary of the Department of Homeland Security ("DHS"), and created within that agency the Bureau of Citizenship and Immigration Services, now known as United States Citizenship and Immigration Services ("USCIS"), to further this mission. Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 402(3), 441(2), 451(b)(2), 116 Stat. 2135, 2178, 2192, 2196 (Nov. 25, 2002) (codified at 6 U.S.C. §§ 202(3), 251(2), 271(b)(2)); see 6 U.S.C. § 557 ("With respect to any function by or under [the Homeland Security Act] ... reference in any other Federal law to any department, commission, or agency or any officer or office the functions of which are so transferred shall be deemed to refer to the Secretary, other official, or component of the Department [of Homeland Security] to which such function is so transferred."); see generally Ajlani, 545 F.3d at 231 n.2; De Lara Bellajaro, 378 F.3d at 1043 n.1. References to the Attorney General should necessarily be understood to extend to the immigration authorities to which the power of naturalization and removal has been delegated—the Secretary of DHS acting through USCIS.
Against this backdrop lies the naturalization application of Plaintiff Lal Rin Sanga. Sanga is a Burmese national currently residing in Iowa as a legal permanent resident. [ECF No. 11 ¶ 11]. He entered the United States as a refugee and has been living in the country since his application for refugee status was approved in 2010. See id. ¶¶ 12-13.
Sanga applied to become a naturalized citizen on December 5, 2016, and appeared for his naturalization interview with USCIS on September 21, 2017. Id. ¶ 13; see generally 8 U.S.C. § 1446(a)-(b), (d); 8 C.F.R. §§ 335.1, .2(a). His application for naturalization was denied in this first round of review on February 8, 2018. Id. ¶ 15. Citing alleged discrepancies between information given to immigration officials in his refugee registration paperwork, application to register as a legal permanent resident, and current naturalization application, USCIS asserted Sanga had "willfully misrepresented a material fact" regarding his legal name and family relations in order to "obtain admission to the United States as a refugee for the purpose [of] obtaining an immigration benefit." Id. ¶ 15 (alteration in original); see also [ECF Nos. 15-3 at 2, 4-6; 15-4 at 3].
See 8 U.S.C. § 1427(a) (imposing a "good moral character" requirement for naturalization); 8 C.F.R. §§ 316.2(a)(7), .10(b)(2)(vi) (same); see generally 8 U.S.C. § 1101(f)(6) (excluding from the definition of "a person of good moral character" one who, during the relevant timeframe, "has given false testimony for the purpose of obtaining any benefit" under federal immigration law).
Sanga maintains his representations were not false and that, in any event, he would have still been granted refugee status because any discrepancy is not a material one. See id. ¶¶ 16-17. Seeking to contest the initial determination, Sanga promptly appealed and requested a hearing with an immigration officer. See [ECF No. 15-5 at 2]; see generally 8 U.S.C. § 1447(a); 8 C.F.R. § 336.2. While his request was pending, but before any final administrative decision had been issued, USCIS initiated removal proceedings by issuing Sanga a Form 1-862 "Notice to Appear" on April 25, 2018. See [ECF No. 15-8 at 2-4]. Despite having already commenced removal proceedings, however, the agency continued forward with Sanga's naturalization application and held a hearing reviewing the initial decision on November 22, 2019; Defendant Marta Nickols, acting on behalf of USCIS, issued a final decision on December 13, 2019, denying Sanga's naturalization application on
See generally 8 U.S.C. §§ 1227(a)(1)(A) ("Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable."); cf. id. § 1182(a)(6)(C)(i) ("Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission to into the United States or other benefit provided under [federal immigration law] is inadmissible.").
its merits. [ECF No. 11 ¶ 18]; see also [ECF No. 15-7 at 2-3].
This lawsuit followed. Count I of the First Amended Complaint seeks de novo judicial review of the agency's denial of Sanga's application for naturalization. Id. ¶¶ 27-29. Count II challenges the denial of his application by USCIS under the Administrative Procedure Act ("APA"), claiming the agency's decision is an arbitrary and capricious abuse of discretion not in accordance with the law. Id. ¶¶ 31-32. Sanga also seeks a declaratory judgment from this Court stating he is eligible for naturalization. Id. ¶¶ 34-35.
C. Arguments of the Parties
Defendants moved to dismiss Sanga's complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. [ECF No. 15]. In brief, Defendants contend that the initiation of removal proceedings by USCIS deprives this Court of statutory authority to consider Sanga's application for naturalization under the removal priority provision, 8 U.S.C. § 1429, and renders this Court without subject matter jurisdiction over the case. Even if subject matter jurisdiction exists, Defendants argue Sanga's claim is moot and otherwise fails to state a claim because the Court cannot grant effective relief due to the statutory framework of § 1429. At the very least, they urge, the Court should stay this case pending the resolution of Sanga's removal proceedings to respect the primacy Congress has placed in the Executive Branch's removal authority. Finally, Defendants state Sanga's claim under the APA must be dismissed because that statute does not apply to administrative appeals of naturalization decisions under federal immigration law.
This is actually Defendants' second pre-answer motion to dismiss. See [ECF No. 8]. In response to the first, Sanga timely amended his complaint as a matter of course, see Fed. R. Civ. P. 15(a)(1)(B), and the parties agree that motion is moot. Onyiah v. St. Cloud State Univ., 655 F. Supp. 2d 948, 958 (D. Minn. 2009) ("[A]s a general proposition, if a defendant files a Motion to Dismiss, and the plaintiff later files an Amended Complaint, the amended pleading renders the defendant's Motion to Dismiss moot."). Defendants' original motion is therefore denied.
Sanga responds that § 1429 is not a jurisdictional statute and that the statutory language currently in effect after the 1990 amendments to federal immigration law does not preclude judicial review of his naturalization application, notwithstanding the active removal proceedings against him. His claim is not moot, he contends, and is capable of affording viable relief because a favorable ruling from this Court in the form of a declaratory judgment would definitively and preclusively establish Sanga's lawful status in the United States and entitlement to naturalized citizenship. He argues staying this case would sanction opportunistic procedural maneuvering by federal immigration authorities and deprive Sanga of his statutory right to de novo judicial review of his naturalization application. Sanga does not resist dismissal of his claim brought under the APA. See [ECF No. 16 ¶ 4].
II. STANDARD OF REVIEW
Subject matter jurisdiction presents "a question of justiciability" and considers "the constitutional power of a federal court to resolve a dispute and the wisdom of so doing." Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 934 (8th Cir. 2012) (second quote citing Graden v. Conexant Sys., Inc., 496 F.3d 291, 295 (3d Cir. 2007)). Subject matter jurisdiction over a claim may be challenged "on its face or on the factual truthfulness of its averments." Titus v. Sullivan, 4
F.3d 590, 593 (8th Cir. 1993); see also Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). The burden of establishing that subject matter jurisdiction exists falls on Sanga as the party asserting federal jurisdiction. Midland Psychiatric Assocs., Inc. v. United States, 145 F.3d 1000, 1003 (8th Cir. 1998) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). A federal court must dismiss the action if, at any time, it is determined to lack subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3); see Fed. R. Civ. P. 12(b)(1).
Generally, the Court does not consider matters outside the pleadings in deciding a motion to dismiss under Rule 12. But "documents 'necessarily embraced by the complaint' are not matters outside the pleading." Enervations, Inc. v. Minn. Mining & Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004) (citations omitted). And documents incorporated by reference, items necessarily "integral to the claim," and matters "subject to judicial notice" or of public record may properly be considered in evaluating whether a complaint states a claim for which relief may be granted. 5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed.); see also Harris v. P.A.M. Transport, Inc., 339 F.3d 635, 637 n.4 (8th Cir. 2003) (noting that examining matters outside the pleadings in a factual challenge to subject matter jurisdiction "does not ... convert the 12(b)(1) motion to one for summary judgment").
A complaint is further subject to dismissal if it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6); see also Fed. R. Civ. P. 8(a)(2). To meet this standard, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). When evaluating a motion to dismiss under Rule 12(b)(6), the Court accepts as true the factual allegations in the Complaint, but it need not accept their legal conclusions. See Brown v. Medtronic, Inc., 628 F.3d 451, 459 (8th Cir. 2010). All reasonable inferences are drawn in the plaintiff's favor. Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009).
III. ANALYSIS
The broad question confronting the Court in this case is whether 8 U.S.C. § 1429 renders a federal district court incapable of (or ill-advised in) considering a denied naturalization application under § 1421(c) when the immigration authorities initiate removal proceedings pursuant to a "notice to appear" after the application is initially denied but before USCIS issues a final determination. Subsumed in this question are three inquiries: Does § 1429 deprive federal courts of subject matter jurisdiction? Are effective remedies available to a litigant in parallel naturalization and removal proceedings? Or should courts stay their hand and defer to the executive's removal authority? Without guidance from the United States Court of Appeals for the Eighth Circuit, the Court considers each of these topics in turn.
A. Subject Matter Jurisdiction
Defendants broadly contend 8 U.S.C. § 1429—providing 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"— deprives federal courts of subject matter jurisdiction to consider a naturalization application at all once removal proceedings are initiated against the applicant. The plain text of the law enacted by Congress confirms it does not. But because of the unique procedural posture of this case, the Court's power to review the denial of Sanga's
naturalization application hinges on whether "a removal proceeding pursuant to a warrant of arrest" was pending against him at the time USCIS made its final determination. See 8 U.S.C. § 1429. If it was, then the agency's determination denying Sanga's application, issued after USCIS commenced removal proceedings against him, is without legal force and therefore void, presenting no "denial" before the Court for de novo review. See id. §§ 1421(c), 1447(a). Reaching the unremarkable conclusion that a "notice to appear" is distinct from a "warrant of arrest," the Court determines subject matter jurisdiction is present.
1. "Considered by the Attorney General"
Defendants first assert the INA precludes judicial review of Sanga's naturalization application because § 1421(a) confers "sole authority" to naturalize individuals upon the Attorney General. Because § 1429 prohibits the Attorney General from considering a naturalization application once removal proceedings have been commenced against the applicant, so too does it prevent judicial review under § 1421(c). Citing decisions by the United States Courts of Appeals for the Fourth and Fifth Circuits, they argue that once removal proceedings are initiated against an applicant, § 1429 provides a complete and total bar to judicial review over an application for naturalization. See Barnes v. Holder, 625 F.3d 801 (4th Cir. 2010); Saba-Bakare v. Chertoff, 507 F.3d 337 (5th Cir. 2007).
As an initial matter, important procedural differences diminish the strength of these authorities. Removal proceedings had already been initiated against the applicant in Saba-Bakare by the time he finally applied for naturalization. 507 F.3d at 338-39. Despite the fact that removal proceedings were already pending against the applicant, USCIS proceeded to conduct a naturalization interview and deny the application on its merits. Id. On appeal from the denial of his petition for judicial review, the Fifth Circuit agreed USCIS "has and had no statutory authority to consider [the] naturalization application" in the first place once removal proceedings were underway and noted that the district court "formally remedied this error by vacating the USCIS's denial of [the] naturalization application as improvidently granted." Id. at 340. Because "the initial denial of [the] application ha[d] no continuing legal effect," the court held, "neither it nor the underlying findings of the USCIS" were reviewable under § 1421(c). Id.
Saba-Bakare did not issue a blanket rule that removal proceedings automatically and unequivocally divest federal courts of jurisdiction under § 1421(c), however. Considering § 1447(b) as an alternative basis for jurisdiction, the Fifth Circuit opined such an effort "would be futile" because relief under that section was proper only if there was a "failure" by the agency to make an initial determination on the application. Id. Section 1447(b) "provides a district court with a means of addressing the administrative delay of an application that [USCIS] may consider," the court held, because "§ 1429 does not allow [USCIS] to consider naturalization applications when a removal proceeding is pending." Id.; accord Ajlani, 545 F.3d at 240 ("A 'failure' is generally understood to reference the 'omission of an expected action, occurrence, or performance.' Plainly, an action cannot be 'expected' when it is proscribed by law." (citing Black's Law Dictionary (8th ed. 2004))). But see Yith v. Nielsen, 881 F.3d 1155, 1164 (9th Cir. 2018) ("Under a common-sense usage of the word 'failure,' a person fails to accomplish a requirement even when the failure was caused by the person's self-sabotage or other intentional efforts to make it impossible
to accomplish the goal."). And because removal proceedings were already pending when the naturalization application was filed, it determined there was no "failure" to trigger § 1447(b) review. In this context, the Fifth Circuit logically concluded § 1429 required that the applicant "wait until the termination of the removal proceeding before either a district court or the USCIS entertain[ed] a question regarding his naturalization application." Id.
So too with Barnes. In that case, USCIS had already initiated removal proceedings before the applicant actually advanced his naturalization application with the agency. 625 F.3d at 802. (He had previously withdrawn an earlier, first application.) The Fourth Circuit's decision stemmed from the applicant's motion to terminate removal proceedings against him and compel a determination that he was eligible for naturalization. Id. at 802-03; see generally 8 C.F.R. § 1239.2(f). Considering the immigration judge's denial on appeal, the Fourth Circuit held the applicant, as "an alien in removal proceedings," had "no statutory right to review of his naturalization application" because § 1429 prohibited USCIS from considering it in the first place. Id. at 807. As in Saba-Bakare, it was precisely because § 1429 prohibited the agency from considering a naturalization application filed during removal proceedings that the applicant could not pursue judicial review under § 1421(c). See id. at 806-07; accord Zayed, 368 F.3d at 906. Though their opinions employ broader language, the rulings in Barnes and Saba-Bakare, taken in context, stand for the proposition that an alien already in removal proceedings cannot circumvent that administrative framework to obtain judicial review of his later-filed naturalization application in the absence of a valid agency determination.
In both Barnes and Saba-Bakare, the applicant argued federal district courts continued to possess authority under 8 C.F.R. § 1239.2(f) to make a determination of "prima facie eligibility for naturalization" when "the matter involves exceptionally appealing or humanitarian factors." Pre-1990 amendments to the INA, it was recognized that both immigration authorities and district courts held the power to do so. In re Cruz, 15 I. & N. Dec. 236, 237 (BIA 1975). Discussed below, courts dispute whether this is still the case. See In re Hidalgo, 24 I. & N. Dec. 103, 106 (BIA 2007).
In this light, neither Barnes nor Saba-Bakare are persuasive here. The United States Courts of Appeals for the Second, Third, Sixth, Seventh, Ninth, and Tenth Circuits agree § 1429 does not divest district courts of subject matter jurisdiction when there is a valid final decision by USCIS. Klene, 697 F.3d at 668; Awe v. Napolitano, 494 F. App'x 860, 865 (10th Cir. 2012); Gonzalez, 678 F.3d at 258-59; De Lara Bellajaro, 378 F.3d at 1046-47; Zayed, 368 F.3d at 906; cf. Ajlani, 545 F.3d at 236, 237 n.7.
Indeed, Defendants' arguments in favor of a total bar to judicial review fundamentally ignores the text of § 1429 and "gets statutory interpretation backwards." [ECF No. 16-1 at 9]. Defendants contend the history of federal immigration law leading up to the 1990 amendments demonstrates Congress's intent to implement a per se bar to subject matter jurisdiction any time removal proceedings are pending against an applicant seeking judicial review of his or her naturalization application. The argument goes like this: Prior to 1990, naturalization authority was largely possessed by the judiciary while removal authority lay with the executive. At the time, § 1429 prohibited any "naturalization court" (i.e. federal district court) from finally hearing an application for naturalization if there was at the time a removal proceeding pending against the applicant. Because
there was "no suggestion that Congress intended the priority of removal proceedings over naturalization proceedings to be altered by the 1990 amendments" when the authority to naturalize citizens was ultimately consolidated in the Executive Branch, see Zayed, 368 F.3d at 905-06, it should be presumed that § 1429's jurisdictional bar was intended to remain intact as applied to the courts. As a result, Defendants maintain, § 1429 continues to prohibit district courts from reviewing naturalization applications at any point once removal proceedings are initiated.
But that is not what the statute says. Its plain language—the language adopted by Congress—states only that "no application for naturalization shall be considered by the Attorney General" if there is a removal proceeding pending against the applicant. It makes no mention of federal courts. There is no ambiguity. And despite the persuasive historical context of Defendants' arguments, "[o]nly the written word is the law." Bostock v. Clayton Cty., 590 U.S. 644, 140 S. Ct. 1731, 1737, 207 L.Ed.2d 218 (2020). All other courts to have squarely considered the issue agree the actual text of the statute enacted by Congress does not speak to courts' authority to consider applications for naturalization once removal proceedings have been initiated, only the agency's. Indeed:
Nothing in the text [of § 1421(c)] limits the jurisdiction so conferred to review of denials when there is no removal proceeding pending. By the same token, the text of § 1429—which does constrain consideration of naturalization applications during the pendency of a removal proceeding—clearly applies to the Attorney General. There is no hint in the language of § 1429 that it also applies to the courts.
De Lara Bellajaro, 378 F.3d at 1046; see also, e.g., Gonzalez, 678 F.3d at 258; Zayed, 368 F.3d at 906. In short, Defendants' position attempts to place the legislative history of the statute over its text.
Section 1429 clearly prohibits the agency from considering an application for naturalization, however, "if there is pending against the application a removal proceeding pursuant to a warrant of arrest." (emphasis added). A determination by USCIS under these conditions would be contrary to law and therefore void. Saba-Bakare, 507 F.3d at 340; see Zayed, 368 F.3d at 906 ("A district court ... can review only those decisions that § 1429 permits the Attorney General to make, of course."). This Court is therefore empowered to review Sanga's application only if USCIS's final decision was not issued while removal proceedings "pursuant to a warrant of arrest" were pending against him.
USCIS initiated removal proceedings by issuing Sanga a "notice to appear," not a "warrant of arrest." Jurisdiction in this case therefore turns on whether a "notice to appear" is actually a "warrant of arrest."
2. "Pursuant to a warrant of arrest"
Despite the fact the statute says "warrant of arrest," Defendants contend that because USCIS issued Sanga a Form I-862 Notice to Appear prior to issuing its final determination denying his naturalization application, "a removal proceeding pursuant to a warrant of arrest" was pending against him at the time, voiding the agency's own decision. Defendants point to 8 C.F.R. § 318.1, a regulation promulgated by DHS's predecessor agency providing that "[f]or the purposes of [INA § 318, 8 U.S.C. § 1429], a notice to appear ... shall be regarded as a warrant of arrest." See also 22 Fed. Reg. 99765, 9813 (Dec. 6, 1957). Sanga argues the agency's regulation conflicts with the plain language of § 1429 and ordinary meaning of "warrant of arrest." An agency's interpretation of the statute it administers is evaluated under the principles laid out in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The "Chevron doctrine" follows two steps. In the first, courts employ "traditional tools of statutory construction" to consider "whether Congress has directly spoken to the precise question at issue." Id. at 842, 843, 104 S.Ct. 2778 n.9. If the text of the statute is clear, "that is the end of the matter." Id. at 842-43, 104 S.Ct. 2778. If a statute is ambiguous, however, step two requires courts to "accept the agency's construction of the statute" if it is "reasonable." Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). "In the course of a Chevron analysis, a court must first consider the actual words of the statute," and "[i]f the intent of Congress is clear from the plain language of the statutory provision, that will be the end of the judicial inquiry." Ark. AFL-CIO v. F.C.C., 11 F.3d 1430, 1440 (8th Cir. 1993). In other words, deference to an agency's interpretation of a statute is not appropriate unless, after exhausting all the "traditional tools" of construction, the regulation is genuinely ambiguous. Cf. Kisor v. Wilkie, 588 U.S. 558, 139 S. Ct. 2400, 2415, 204 L.Ed.2d 841 (2019) (quoting Chevron, 467 U.S. at 842-43, 843 n.9, 104 S.Ct. 2778 and affirming the same approach to Auer deference).
In Yith v. Nielsen, 881 F.3d 1155 (9th Cir. 2018), the Ninth Circuit evaluated § 1429 within the two-step Chevron framework to conclude the statute was unambiguous and that removal proceedings commenced pursuant to a "warrant of arrest" were distinct from those opened by the issuance of a "notice to appear." First considering the statutory text, the Ninth Circuit explained the meaning of its language was clear:
According to the dictionary, a "warrant" means "[a] writ directing or authorizing someone to do an act, esp. one directing a law enforcer to make an arrest, a search, or a seizure." The term "arrest" means "[a] seizure or forcible restraint" or "[t]he taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge; specif., the apprehension of someone for the purpose of securing the administration of the law, esp. of bringing that person before a court." And the term "warrant of arrest" means "[a] warrant issued by a disinterested magistrate after a showing of probable cause, directing a law-enforcement officer to arrest and take a person into custody." In other words, the plain meaning of the term "warrant of arrest" is an order authorizing law enforcement to seize and detain a person as necessary for the administration of law.
Id. at 1166 (quoting Black's Law Dictionary (10th ed. 2014)). Linguistically, it is clear that the two terms are not the same.
Beyond the plain meaning of its terms, the INA itself distinguishes between removal proceedings initiated pursuant to a "warrant of arrest" as opposed to a "notice to appear." See id. at 1166-67. Removal proceedings are initiated—with or without the issuance of a "warrant of arrest"—by the hand-delivery of "written notice" that provides "[t]he time and place at which the proceedings will be held" and "[t]he consequences ... of the failure, except under exception circumstances, to appear at such proceedings." 8 U.S.C. § 1229(a) (defining "notice to appear"). That is, the INA presupposes that an alien subject to removal proceedings must appear on his or her own accord. Indeed, 8 U.S.C. § 1226(a) provides that an alien "may be arrested and detained pending a decision on whether the alien is to be
removed from the United States" pursuant to "a warrant issued by the Attorney General," not that the alien must be taken into custody in every instance. (emphasis added). And if the alien is taken into custody, the Attorney General "may continue to detain the arrested alien" or "may release the alien" upon meeting certain conditions. Id. "In short, a 'warrant of arrest' for purposes of § 1429 is a writ issued under § 1226 authorizing law enforcement personnel to arrest and detain an alien pending the results of removal proceedings," whereas "a notice to appear is akin to a summons that provides an alien with specified information regarding removal proceedings; it does not direct law enforcement to arrest and detain the alien." Yith, 881 F.3d at 1166-67. This Court agrees there is no ambiguity; "the 'plain terms' of § 1429 'directly addres[s] the precise question at issue." Id. at 1166; see also Kabura v. McNeer, 448 F. Supp. 3d 1274, 1281-82 (D. Utah 2020).
The Court also observes that even immigration authorities—those that promulgated § 318.1—treat the two as distinct. See 8 C.F.R. § 236.1(b)(1) ("At the time of issuance of the notice to appear, or at any time thereafter and up to the time removal proceedings are completed, the respondent may be arrested and taken into custody under the authority of Form I-200, Warrant of Arrest." (emphasis added)); id. § 236.2(a) ("[T]he notice to appear, and the warrant of arrest, if issued, shall be served in the manner prescribed...." (emphasis added)); see also id. § 236.1(g) ("At the time of issuance of the notice to appear, or any time thereafter and up to the time removal proceedings are completed, and immigration official may issue a Form I-286, Notice of Custody Determination."); cf. id. § 238.1(g) ("At the time of issuance of a Notice of Intent [to Issue a Final Administrative Deportation Order] or at any time thereafter ..., the alien may be arrested and taken into custody under the authority of a Warrant of Arrest ...." (emphasis added)). As the Yith Court points out, "DHS's Form I-200, entitled 'Warrant of Arrest, United States Department of Homeland Security,' is distinct from Form I-862, entitled 'Notice to Appear, United States Department of Homeland Security,'" with the former identifying "'the pendency of ongoing removal proceedings' as sufficient probable cause to arrest an alien, further showing that the forms are not equivalent." 881 F.3d at 1167 n.6. Thus, even if the statute's clarity could be called into question, the interpretation contained in Defendants' regulation could not be considered "reasonable."
Defendants rely on the Seventh Circuit's opposite conclusion in Klene, 697 F.3d at 670, but that court's "final observation" that DHS is empowered to "define its own vocabulary" and "call[ ] its official process a 'notice to appear' and a 'warrant of arrest' at the same time" did not employ Chevron analysis and did not consider the INA's differential treatment of each term. Yith, 881 F.3d at 1168 ("Klene did not use the tools of statutory interpretation to determine whether 'warrant of arrest' has an unambiguous meaning in the context of § 1429.... Rather Klene merely stated, without citation or reasoning, that the word arrest 'does not imply custody even in police parlance (full custodial arrests are a subset of all arrests).'"). And Klene's statement that "all other courts of appeals agree" the two phrases are synonymous glosses over the fact that in no case it cited had the other courts of appeals been presented with the precise issue. Nor can this Court agree that Yith's analysis is "ultimately unworkable." See Gardener v. Barr, Case No. 4:18 CV 620 (JMB), 2019 WL 1001340, at *6 (E.D. Mo. Mar. 1, 2019) (finding a "warrant of arrest" and "notice to appear" to be indistinguishable because a conclusion to the contrary "basically rests on a finding that 'warrant of arrest' has a fixed meaning such that any other agency interpretation would, in effect, be inconsistent with the plain language of the statute"). Statutory construction is an analytical device routinely pulled from the toolbox of federal courts. Unquestioningly accepting an administrative agency's determination of Congressional legislation ignores the judiciary's important duty to interpret the law. See Marbury v. Madison, 5 U.S. 137, 178, 1 Cranch 137, 2 L.Ed. 60 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.").
De Lara Bellajaro, Saba-Bakare, Ajlani, and Awe all involved removal proceedings initiated by the issuance of a "notice to appear." Awe, 494 F. App'x at 862; Ajlani, 545 F.3d at 232; Saba-Bakare, 507 F.3d at 338; De Lara Bellajaro, 378 F.3d at 1044. The same is true of Gonzalez and Klene. Gonzalez, 678 F.3d at 256; see Klene, 697 F.3d at 670 (noting applicant had argued she had never been "arrested" or taken into custody). The Sixth Circuit's opinion in Zayed does not indicate how removal proceedings were initiated. See 368 F.3d at 904. In all except for Klene, the issue of § 1429's applicability to a "warrant of arrest" versus a "notice to appear" did not arise.
In sum, the Court concludes the issuance of a "notice to appear" under the INA does not trigger the statutory prohibition of 8 U.S.C. § 1429 to bar USCIS from considering the naturalization application of an applicant against whom are pending "a removal proceeding pursuant to a warrant of arrest." Because the removal proceedings against Sanga were initiated when he was issued a "notice to appear," and not a "warrant of arrest," USCIS was within its authority to consider the merits of his application and issue a final decision reviewable by this Court under 8 U.S.C. § 1421(c). Subject matter jurisdiction therefore exists, and the Court moves on to the viability of effective relief.
B. Remedies
Defendants alternatively argue that even if § 1429 does not divest the Court of subject matter jurisdiction, Sanga's complaint must be dismissed because the initiation of removal proceedings renders this case moot and without a claim upon which viable relief can be granted. Defendants point to decisions from the Second, Sixth, Ninth, and Tenth Circuits holding that § 1429 does not affect federal courts' jurisdiction over naturalization applications but renders them unable to issue an effective remedy. Compare Awe, 494 F. App'x at 866-67 (holding pending removal proceedings rendered judicial review of naturalization application constitutionally moot) with Ajlani, 545 F.3d at 238-40 (holding pending removal proceedings precluded district court from issuing declaratory relief to establish applicant's eligibility for naturalization under § 1447(b)); De Lara Bellajaro, 378 F.3d at 1046-47 (same under § 1421(c)); Zayed, 368 F.3d at 906 (same under § 1421(c)). Sanga relies on decisions from the Third and Seventh Circuits that have rejected the reasoning of those cases to conclude declaratory relief remains a viable remedy under § 1421(c) even when removal proceedings are pending against the applicant. See Klene, 697 F.3d at 668-69; Gonzalez, 678 F.3d at 260-61. Though they differ in 'outcome, these cases agree that any remedy provided by a district court must be made within the scope of the statute authorizing judicial review.
In Zayed, the earliest of these cases, the Sixth Circuit opined that "[t]he 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 a jurisdiction expressly conferred on it by the very act of Congress that amended § 1429." 368 F.3d at 906 ("A district court that is exercising its § 1421(c) jurisdiction can review only those decision that § 1429 permits [immigration authorities] to make, of course."). The court broadly concluded that "the restraints that § 1429 imposes upon [immigration authorities] prevent a district court from granting effective relief under § 1421(c) so long as removal proceedings
are pending" even though INS had not initiated removal proceedings until after the agency denied the naturalization application and the applicant sought judicial review. Id. at 903-04, 906. Section 1429 barred the Attorney General's "exclusive power to naturalize aliens" while removal proceedings are pending, the court reasoned, so any order from the district court directing the Attorney General to grant the application could not actually result in the alien's naturalization. Id. And because Congress had amended the INA to vest the Attorney General with "sole authority" to naturalize citizens, it further concluded that the district court could not enter an order granting the application without running afoul of § 1429. See id.
In dicta, Zayed also rejected the availability of declaratory relief under the procedure contemplated by 8 C.F.R. § 1239.2(f), even though the applicant had not requested it. See 8 C.F.R. § 1239.2(f) (permitting an immigration judge to terminate removal proceedings upon a determination of prima facie eligibility for naturalization and a showing that "the matter involves exceptionally appealing or humanitarian factors"). Section 1239.2(f) authorized an immigration judge to terminate removal proceedings "for a particular purpose: 'to permit the alien to proceed to a final hearing on a pending application or petition for naturalization,'" the court noted. Zayed, 368 F.3d at 907. Because the applicant had already received a final hearing and agency decision denying her application for naturalization, § 1239.2(f) was inapplicable. Id.
8 C.F.R. § 1239.2(f), in full, provides:
An immigration judge may terminate removal proceedings to permit the alien to proceed to a final hearing on a pending application or petition for naturalization when the alien has established prima facie eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors; in every other case, the removal hearing shall be completed as promptly as possible notwithstanding the pendency of an application for naturalization during any state of the proceedings.
In De Lara Bellajaro, the Ninth Circuit agreed § 1429 did not deprive federal courts of jurisdiction over a naturalization application but restricted the scope of relief available on judicial review. There, however, the applicant pursued naturalization only after immigration authorities had already initiated removal proceedings, and INS denied his application on the ground that the agency was prohibited from considering its merits under § 1429, 378 F.3d at 1044. The district court held, and the Ninth Circuit affirmed, that the court could not approve his naturalization application on its merits to declare he was entitled to naturalization because, after the 1990 amendments to immigration law, federal courts no longer held the authority to consider naturalization applications in the first instance. Id. at 1046. Under § 1421(c), jurisdiction existed for judicial review only of "such" denial by the agency. Id. at 1046-47 (quoting 8 U.S.C. § 1421(c)). And because the agency had denied the application on the grounds that it was procedurally barred from considering its merits under § 1429, the district court could consider that denial, and no more. Id.
Alternatively, the applicant in De Lara Bellajaro argued the district court was empowered outside the confines of § 1421(c) to issue a prima facie determination of his eligibility for naturalization under 8 C.F.R. § 1239.2(f). Id. at 1047. The Board of Immigration and Appeals ("BIA") had previously issued a pre-1990 ruling that held a prima facie eligibility determination could be made by either immigration authorities or a federal court. See In re Cruz, 15 I. & N. Dec. 236, 237
(BIA 1975). The advent of the 1990 amendments, consolidating immigration authority of removal and naturalization in the Executive Branch, prompted the question of whether In re Cruz was still good law and § 1239.2(f) still permitted determinations of prima facie eligibility be made by federal courts. De Lara Bellajaro, 378 F.3d at 1047; see also Zayed, 368 F.3d at 907 n.6. Even assuming federal courts continued to enjoy such authority in the post-1990 immigration regime, the Ninth Circuit held that such a declaration still was not available to the applicant because § 1239.2(f) could not authorize courts to examine anything beyond "such" denial by the agency under § 1421(c). See De Lara Bellajaro, 378 F.3d at 1047 (holding agency regulations and decisions "cannot confer jurisdiction on the federal courts, or enlarge the scope of review, beyond that granted by Congress"). Because the agency had denied the application on procedural grounds, the district court could not issue a declaration on its merits. Id.
Following the 1990 amendments to the INA, BIA has reaffirmed the principle of its decision in In re Cruz but, recognizing that the 1990 amendments to the INA divested federal courts' authority to grant or deny naturalization applications in the first instance and consolidated sole immigration authority in the Executive Branch, held that the termination of removal proceedings pursuant to § 1239.2(f) "require[s] some form of affirmative communication from the DHS prior to terminating proceedings based on [a] pending naturalization application." See In re Hidalgo, 24 I. & N. Dec. 103, 106 (BIA 2007); see also id. at 105 ("[T]he fact that the Federal courts no longer have authority to make decisions as to an alien's prima facie eligibility for citizenship does not undermine Matter of Cruz....").
The Second Circuit's ruling in Ajlani rested on a different procedural posture entirely. There, USCIS reopened the applicant's naturalization application after originally granting it and then commenced removal proceedings against him. 545 F.3d at 232-33. The applicant filed suit in federal court seeking "declaratory relief pronouncing [the agency's] actions in not admitting him to citizenship unlawful," and either a writ of mandamus compelling USCIS to administer his oath of citizenship or judicial administration of that oath. Id. at 233. In evaluating his claim for naturalization relief, the Second Circuit, assuming jurisdiction under § 1447(b) was unaffected by the pending removal proceedings, held that the district court could neither compel the agency to admit him to citizenship nor naturalize him itself. Section 1447(b) did not permit the court to "remand" the naturalization application, "with appropriate instructions, to the [agency] to determine the matter" because § 1429 prohibited the agency from considering the application once removal proceedings were pending. Id. at 238-39. Neither could the court itself "determine the matter": "judicial relief under § 1447(b) arises only in response to an executive branch 'failure to make a determination' on a naturalization application within the prescribed time," and because the agency's consideration of the application was "proscribed by law" under § 1429, there was no "failure" to trigger § 1447(b) review. Id. at 240; accord Saba-Bakare, 507 F.3d at 340.
In Gonzalez, however, the Third Circuit came to a different conclusion when USCIS commenced removal proceedings only after issuing a final decision denying the applicant's naturalization application. On appeal from the applicant's subsequent petition for judicial review under § 1421(c), the Third Circuit held judicial power to issue declaratory relief as a remedy under § 1421(c) extended "notwithstanding whatever role it may play in terminating a removal proceeding under 8 C.F.R. § 1239.2(f)." 678 F.3d at 260. Declaratory
relief was not cut off simply by the pendency of removal proceedings, the court held, because "it affects the record for—but not the priority of—removal proceedings." Id. at 261. "Maintaining the [applicant's] right to [de novo] judicial review of a naturalization denial is consistent with Congressional intent, as evidenced by the creation of § 1421(c)," and "[t]o hold that district courts are precluded from review by § 1429 whenever removal proceedings are pending raises the possibility that review may be cut off by the actions of the [Executive Branch] ... contrary to the intent of Congress." Id. at 260-61. Permitting declaratory relief, rather, "preserv[es] both congressionally mandated goals, a de novo process and the elimination of the race to the courthouse." Id. at 261.
The Tenth Circuit offered a different view in Awe. Though agreeing that § 1429 "does not strip district courts of jurisdiction over petitions regarding naturalization applications," the Tenth Circuit held that "removal proceedings, whether in process at the time a § 1421(c) petition is filed or initiated thereafter, effectively bar federal consideration of § 1421(c) petitions by virtue of § 1429." 494 F. App'x at 865. In that case, USCIS had initiated removal proceedings after it already denied the application and the applicant brought suit in federal court. Rather than rendering the petition unable to state, a claim upon which relief can be granted, as the Sixth and Ninth Circuits had held, the Awe Court rested its conclusion on the doctrine of constitutional mootness. Id. at 865-66. The Tenth Circuit noted that the substantive focus of the applicant's prayer for relief had been a court order directing USCIS to grant his naturalization application, but because § 1429 prohibited agency action during the pendency of removal proceedings, their initiation "constituted a 'change of circumstances' that precluded any 'conclusive' or 'specific relief by the district court," rendering the petition moot. Id. at 866 (citation omitted).
Even if the applicant had requested declaratory relief, the Tenth Circuit opined, "such relief also would succumb to mootness" because "a declaration by the district court that [he] met all the requirements for naturalization could not affect the behavior of [DHS] because § 1429 bars [the agency] from acting." Id. And had the agency commenced removal proceedings after reviewing the naturalization application but before the applicant filed for judicial review, the Tenth Circuit suggested that it would dismiss the naturalization proceeding "under the redressability component of an Article III standing inquiry." See id. at 866 n.8. With no application pending, a prima facie declaration of eligibility under 8 C.F.R. § 1239.2(f) was procedurally unavailable to the applicant as well. Id. at 866-67.
The Tenth Circuit likewise noted, "without expressing an opinion on the matter," BIA's conclusion that, post-1990 passage of § 1421(a), federal courts no longer hold authority to provide declarations of prima facie eligibility because "that power 'lies exclusively with the DHS.'" Awe, 494 F. App'x at 867 n.9 (citing In re Hidalgo, 24 I. & N. Dec. at 105).
The Seventh Circuit has had the most recent say. In Klene, the Seventh Circuit held that jurisdiction existed for judicial review under § 1421(c), the case was not moot, and the district court was capable of providing effective relief to an applicant whose application had been denied on its merits, and had filed suit in federal court, before USCIS initiated removal proceedings against him. 697 F.3d at 667-69. "If the [agency] cannot naturalize an alien after removal proceedings have begun, the court cannot direct [it] to naturalize the alien," the Seventh Circuit agreed. Id. at
668. "But to say that the court cannot order the [agency] to naturalize an alien is not to say that the court cannot act." Id. at 669 (noting "[t]he [S]econd, [S]ixth, and [N]inth circuits neglected the possibility of declaratory relief).
Agreeing with the reasoning employed in Gonzalez, the Seventh Circuit pointed out that a declaratory judgment on the contested issue forming the basis for the applicant's removal proceedings "would bring the removal proceeding to a prompt close, allowing the [agency] to [itself] naturalize the alien" because immigration authorities would be "bound by principles of mutual issue and claim preclusion." See id. The procedural posture of the case made declaratory relief possible, it held, because the agency's earlier act of denying his naturalization application allowed him to seek relief in federal court; had removal proceedings been initiated first—as was the case in Ajlani and De Lara Bellajaro —§ 1429 would have prevented USCIS from rendering a final decision reviewable under § 1421(c). See id. (rejecting the agency's position advocating "to treat the two situations as equivalent and to understand § 1429 as announcing a general policy against multiple proceedings"). And the case was not moot, it held, because "there is undoubtedly a concrete, ongoing controversy between [the applicant] and the agency" regarding the contested issue underlying his naturalization and removal. Id. at 668.
In the absence of guiding authority from the Eighth Circuit, this Court believes the reasoning in Klene and Gonzalez offer the better approach to remedies in naturalization proceedings under the circumstances of this case. Importantly, here the grounds invoked by USCIS for denying Sanga's application for naturalization are the same USCIS alleges as the basis for his removal. Compare [ECF No. 15-4 at 3] (denying naturalization application due to "providing a false name to obtain admission to the United States as a refugee for the purpose of obtaining an immigration benefit") and [ECF No. 15-5 at 3] (same) with [ECF No. 15-8 at 4] (alleging "provid[ing] a false name to obtain refugee status, and adjustment of status to a lawful permanent resident" justifies removal). A declaratory judgment would not direct USCIS or DHS to do anything. At most, such relief would simply affect the record before the immigration judge in removal proceedings. If successful on the merits of his Amended Complaint, a favorable declaratory judgment on the issue of whether Sanga willfully misrepresented a material fact to gain entry to the United States as a refugee would establish that question definitively, bind DHS to that determination, and "bring the removal proceeding to a prompt close, allowing [USCIS] to naturalize" him. Klene, 697 F.3d at 669; see United States v. Stauffer Chem. Co., 464 U.S. 165, 169, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984) (holding mutual defensive collateral estoppel applies against the Government "to preclude relitigation of the same issue already litigated against the same party in another case involving virtually identical facts"). Compare Peprah v. U.S. Citizenship & Immigration Servs., No. 12 CV 02564, 2012 WL 5306849, at *4 (N.D. Ill. Oct. 26, 2012) (finding declaratory relief available "where the grounds for removal are presumably the same as the grounds for the denial of the naturalization application") with Kovacevic v. Duke, Case No. 4:15 CV 1748 CDP, 2017 WL 3421513, at *4 (E.D. Mo. Aug. 9, 2017) (holding declaratory relief inappropriate where removal proceedings hinged on "a different question from whether [the applicant] possess[ed] good moral character" to be eligible for naturalization). Nothing in the Ninth Circuit's decision in De Lara Bellajaro or the Second Circuit's decision in Ajlani is to the contrary. The Ninth Circuit's conclusion that declaratory relief on the merits of an alien's naturalization application is unavailable when immigration authorities deny the application on the grounds that § 1429 barred them from considering it is consistent with § 1421(c)'s text authorizing judicial review on of "such" denial by the agency. See De Lam Bellajaro, 378 F.3d at 1046-47. And aside from arising under a totally different statute, the Second Circuit held only that the district court was not empowered to "determine the matter" of the applicant's naturalization for itself through declaration or mandamus relief because the prerequisite to judicial determination under § 1447(b), a "failure" by the agency to consider the application, could not occur by operation of § 1429. See Ajlani, 545 F.3d at 240. The court's broader language, that "Congress did not contemplate judicial orders of naturalization under circumstances where Congress has called an explicit statutory halt to the executive's ability to give any further consideration to an alien's naturalization application until removal proceedings end," and that "district court authority to grant naturalization relief while removal proceedings are pending cannot be greater than that of the [Executive Branch]," cannot be divorced from this context. See id.
Further, the Sixth Circuit's decision in Zayed did not consider the viability of a declaratory judgment favorably determining factual issues relied on by the agency to deny the naturalization application or the preclusive effect such a proclamation would have on the applicant's pending removal proceedings. Despite recognizing that § 1421(c) authorized district courts to review the same decisions immigration authorities were empowered to make, the court considered only the possibility of relief akin to an injunction ordering the agency to naturalize the applicant—a result clearly prohibited by § 1429. See Zayed, 368 F.3d at 906. And the determination that the Executive Branch's "exclusive power to naturalize aliens" precluded effective relief rested on the false premise that § 1429 broadly affects judicial authority, not just the executive's—a conclusion belied by the text of that statute and rejected by this Court and others.
Neither are the decisions in Zayed and De Lara Bellajaro persuasive with respect to their discussions of declaratory relief in the context of 8 C.F.R. § 1239.2(f), for two reasons. First, Sanga's Amended Complaint does invoke § 1239.2(f) seeking a determination of prima facie eligibility, and his briefs do not argue for declaratory relief to that effect. See [ECF No. 11 ¶ 35] (requesting "a declaratory judgment stating [Sanga] is [eligible] for Naturalization in accordance with INA § 310(c), 8 U.S.C. § 1421(c)"). Second, Sanga would likely not be entitled to a § 1239.2(f) determination, even if permitted from a federal court, because such relief is prescribed for a very specific purpose not relevant here: to allow the applicant to terminate removal proceedings and proceed to a final hearing on a pending naturalization application. Sanga's application has already received a final hearing with USCIS and is no longer pending before the agency.
Nothing about this case is moot, either. Mootness occurs under Eighth Circuit law when, "due to the passage of time or a change in circumstances," a federal court is "prevent[ed] ... from granting effective relief." Arkansas AFL-CIO v. F.C.C., 11 F.3d 1430, 1435 (8th Cir. 1993). Having concluded that declaratory relief is available and would have a preclusive effect on the record of Sanga's removal proceedings, it cannot be said that this case
lacks a "case" or "controversy." See Klene, 697 F.3d at 668.
Importantly, § 1421(c) gives aliens aspiring to become naturalized American citizens the right to independent, de novo review by the federal judiciary. This right in the naturalization process stands in stark contrast to the kind of review available from an adverse decision in removal proceedings, in which appellate review exists only to correct unreasonable interpretation of the law and ensure the agency's decision is supported by substantial evidence—a standard that is heavily deferential to determinations made by USCIS and DHS. See Klene, 697 F.3d at 669; see generally 8 U.S.C. § 1252(b)(4). Rather than intrude on the Executive Branch's authority, the judicial power to award declaratory relief in naturalization proceedings "strikes a balance between the petitioner's right to full judicial review as preserved by § 1421(c) and the priority of removal proceedings enshrined in § 1429." Gonzalez, 678 F.3d at 260. Rejecting the availability of declaratory relief fails to uphold both Congressional goals.
C. Abstention
Though "[t]he existence of overlapping proceedings does not diminish a district court's power," it "does present a question on which the judge should exercise sound discretion." Klene, 697 F.3d at 669; see also 28 U.S.C. § 2201(a) (providing that "[i]n a case of actual controversy within its jurisdiction" a district court "may declare the rights and other legal relations of any interested part" (emphasis added)); Med-Immune, Inc. v. Genentech, Inc., 549 U.S. 118, 136, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (noting the Declaratory Judgment Act vests federal district courts with "unique and substantial discretion in deciding whether to declare the rights of litigants"). Defendants urge the Court to stay this case while Sanga's removal proceedings move forward. But subject matter jurisdiction exists under § 1421(c), and declaratory relief provides Sanga an effective remedy if he is ultimately successful. A stay should go into effect only if the Congressional intent to prioritize removal proceeding over the naturalization process outweighs Sanga's statutory right to judicial review of his application.
Because in this case the reason for denying Sanga's naturalization application is the same as USCIS's basis for seeking his removal, the Court finds a stay inappropriate here. Sanga, as a legal permanent resident seeking naturalization, has a right conferred by Congress to have his application judicially reviewed de novo by a federal court, independent of any determination made by the agency. Declining to proceed with judicial review here, as Defendants urge, would strip Sanga of that right. Although concurrent proceedings might normally present concerns of restarting the race between naturalization and removal proceedings that amendments to the INA were designed to prevent, a fair argument could be made that DHS has already done so here. Given the advantages gained by litigating in a forum more favorable to the agency's determinations, it should come as no surprise that USCIS moved to initiate removal proceedings immediately after its initial review of Sanga's naturalization application. Discretionary authority should not be exercised in such a way so as to favor the Government's procedural maneuvering at the expense of an aspiring citizen's statutory rights. To the contrary, the judiciary's authority under § 1421(c) would be rendered void if the Executive Branch could defeat any application for naturalization simply by initiating removal proceedings. See Gonzalez, 678 F.3d at 260-61 ("To hold that district courts are precluded from review by § 1429 whenever removal proceedings are
pending raises the possibility that review may be cut off by the actions of the Attorney General.").
Unlike instances where an applicant's naturalization and removal proceedings implicate different legal issues or factual determinations, here declaratory judgment can affect—positively or negatively—Sanga's pending removal proceedings. Sanga is entitled to de novo judicial review of the denial of his application and the issue of whether he willfully misrepresented a material fact to gain entry into the United States. Under these circumstances, the Court will exercise its discretion to hear Sanga's naturalization claims.
IV. CONCLUSION
Defendants' Renewed Motion to Dismiss, [ECF No. 15], is GRANTED in part as it relates to Count II of Plaintiff's Amended Complaint. In all other respects, the motion is DENIED. Defendants' original Motion to Dismiss, [ECF No. 8], is DENIED AS MOOT.
IT IS SO ORDERED.