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holding that the plaintiff's case was moot even though the Immigration and Naturalization Service (the "INS") failed to reach a decision within the statutory 120 day period because the INS did reach a decision prior to the court's adjudication
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00 Civ. 2741 (RWS)
December 13, 2002
MICHAEL P. DiRAIMONDO, ESQ., DiRAIMONDO MASI, New York, NY, for Plaintiff.
JAMES B. COMEY, United States Attorney for the Southern District of New York, F. JAMES LOPREST, JR., ESQ., Assistant US Attorney, New York, NY, for Defendants.
OPINION
Plaintiff Katerina Langer ("Langer") has moved for default judgment against defendants the Immigration and Naturalization Service ("INS") and Edward McElroy, District Director of the New York District of the INS (collectively the "Government") pursuant to Rule 55 of the Federal Rules of Civil Procedure, and the Government has cross-moved to dismiss Langer's complaint pursuant to Fed.R.Civ.P. 12(b)(1). For the following reasons, the Government's cross-motion is granted, and Langer's motion is denied.
Facts
As befits a motion to dismiss, the following allegations arise from Langer's complaint and the conferences before the Court and do not constitute findings of fact.
Langer, the wife of an American lawyer stationed in Russia, filed an application with the INS to become a naturalized citizen of the United States on December 4, 1997 pursuant to § 319(b) of the Immigration and Naturalization Act of 1952, as amended ("INA"), 8 U.S.C. § 1430(b).
On October 21, 1998, Langer was examined by an INS officer in connection with her application for naturalization. Thereafter the INS approved her application, pursuant to 8 C.F.R. § 335.3(a) (2001), and directed her to appear at a ceremony scheduled for February 18, 2000, in order to be administered the statutorily-required oath of allegiance, 8 U.S.C. § 1448(a), and to be admitted to naturalized citizenship in the United States.
Langer failed to appear at her February 18, 2000 ceremony. The INS thereafter directed her to appear at an oath ceremony scheduled for March 24, 2000. Langer also failed to appear at that ceremony. According to Langer's counsel, the error in notification was the responsibility of the INS.
On March 29, 2000, the INS mailed Langer a notice that it had reopened its previous approval of her naturalization, pursuant to 8 C.F.R. § 335.5 (2001), because of her failure to attend the oath ceremonies. The notice also informed Langer that she had fifteen days in which to respond to the notice and explain why her application should not be denied on the basis of her failure to attend either of the two oath ceremonies. Langer did not respond to this notice, which her counsel maintained was improperly directed. It has been suggested that some of the difficulties with which Langer has been presented have resulted from an early confrontation between an examiner and her counsel.
Procedural Posture
Claiming that INS had failed to adjudicate her naturalization application in a timely manner, Langer commenced this action on April 10, 2000, seeking, inter alia, an order compelling the Government to grant or deny her naturalization application.
On May 2, 2000, the INS District Director issued a decision denying Langer's application for lack of prosecution because she failed to appear at either of the naturalization ceremonies.
Langer next filed an untimely appeal from the decision. The INS accepted the appeal and requested her appearance before an INS examiner. Langer failed to appear for that or two later rescheduled hearings.
At the time the Government filed its cross-motion at issue here, a hearing had been rescheduled for May 16, 2002.
By letter dated November 14, 2001, Langer moved for default judgment against the Government, claiming that the Government had failed to appear for a previously-scheduled Court conference. The Government claims that it had no notice of the conference.
On May 14, 2002, the Government filed its cross-motion. After a series of failed attempts at oral argument, a hearing was held on November 20, 2002. In response to Langer's arguments that Section 336(b) applies during the pendency of an appeal, the Government submitted a further letter at the Court's request on November 27, 2002, and the motion was considered fully submitted at that time.
Discussion I. This Court Lacks Subject Matter Jurisdiction
Congress is given power by the Constitution "to establish a Uniform Rule of Naturalization." Art. I., § 8, cl. 4. In the Immigration Act of 1990, Pub.L. No. 101-649, Title IV, 104 Stat. 4978, 5038-48 (Nov. 29, 1990), Congress removed naturalization from the court and vested the Attorney General with "sole authority to naturalize persons as citizens of the United States." 8 U.S.C. § 1421(a).
The administrative naturalization process is generally divided into five stages. First, the applicant must submit complete application materials to the INS. 8 U.S.C. § 1445(a); 8 C.F.R. § 316.2, 316.4, 334.1, 334.2 (2000). The next stage consists of an investigation into the applicant's background. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1, 335.2 (2000). The applicant next undergoes testing with respect to statutory requirements of English proficiency and knowledge of the history and government of the United States. 8 U.S.C. § 1423(a); 8 C.F.R. Pt. 312 (2000). Next, the applicant is examined under oath by an INS naturalization officer who will, except in limited cases, either grant or deny the application within 120 days of the interview. 8 C.F.R. § 316.14 335.2 (2000). If the INS grants the application, the applicant will move to the final stage, which involves an "oath ceremony," at which she must reaffirm her prior answers and swear allegiance to the United States. 8 U.S.C. § 1448; 8 C.F.R. § 310.3 Part 337 (2000).
Judicial review in immigration matters is narrowly circumscribed. INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) ("we have recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context"); INS v. Miranda, 459 U.S. 14, 19 (1982) ("Appropriate deference must be accorded [the INS's] decisions."); Zhang v. Slattery, 55 F.3d 732, 748 (2d Cir. 1995) ("it is not the role of the federal courts to administer the executive branch" in immigration matters). The immigration statutes create two specific points at which a district court may intervene in the naturalization process. First, if the INS fails to render a decision upon an application within 120 days of the applicants' naturalization examination, the applicant may apply to the district court for the district where he resides to conduct a de novo hearing on the application, and the court may then either determine the matter for itself or remand to the INS with instructions. 8 U.S.C. § 1447(b); 8 C.F.R. § 310.5 (2000). Second, if the INS denies a naturalization application — and that denial has been confirmed after an administrative appeal, consisting of a hearing before a senior naturalization officer — the disappointed applicant may seek de novo judicial review of the denial in the United States district court for the district in which she resides. INA Section 310(c), 8 U.S.C. § 1421(c).
The first situation is not present in this case. On October 21, 1998, Langer was examined by an INS officer in connection with her application for naturalization, and the INS thereafter approved her application. All of this took place before Langer even filed her complaint. While the INS may have taken more than the 120 days to make its decision, it eventually did make such a determination and thus jurisdiction cannot be based on this premise. E.g., Bahet v. Ashcroft, 01 Civ. 9334 (CM), 2002 WL 971712, at *1-2 (S.D.N.Y. April 10, 2002) (dismissing complaint challenging denial of naturalization as moot); Lawal v. U.S. INS, No. 94 Civ. 4606 (CSH), 1996 WL 384917, at *2 (S.D.N.Y. March 30, 1996) (dismissing case because "[t]he only relief that the complaint sought was a judicial order that the INS act. The INS has acted."); see also Kia v. U.S. INS, 175 F.3d 1014, 1999 WL 172818, at *1 (4th Cir. March 30, 1999) (per curiam) ("the INS's denial of naturalization shortly after Kia filed suit mooted the case and deprived the court of jurisdiction").
Langer argued for the first time at oral argument that Section 336(b) should apply where the INS takes longer than 120 days to act upon an administrative appeal of the denial of an application. The plain language of Section 336(b), however, reveals that jurisdiction lies only during any potential time lag between the fourth and fifth steps of the process. As one commentator noted:
The Immigration Act of 1990 . . . provides no remedy if the INS fails to schedule an administrative hearing requested by [a naturalization] applicant on the denial of his or her application. Nor is there a remedy for the INS's failure to render a decision in an administrative appeal of a denial.
7 C. Gordon, S. Mailman, S. Yale-Loehr, Immigration Law and Procedure, § 96.07[3][a], at 96-23 (rev. ed. 2000). Although this apparent loophole in the statute is troubling, it is unfortunately a matter to be addressed to the United States Congress rather than the district courts that are required to follow its diktats. As a result of this loophole, this Court lacks subject matter jurisdiction under INA Section 336(b).
Further, because Langer's administrative review is not yet completed, Langer cannot yet seek redress pursuant to Section § 310(c).
As discussed in court and in the Government's papers, Langer is not without other options. Langer can file a new and better-supported naturalization application. Further, she can pursue her administrative appeal with more zeal than has thus far been shown in this action.
Conclusion
Despite every effort to accomplish what should have been a straightforward process, Langer has met a series of administrative difficulties, not of her own making according to her counsel. It is with regret that because of the foregoing reasons and the lack of subject matter jurisdiction over this complaint that the Government's cross-motion must be granted.