Opinion
No. C 09-4837 MHP.
February 16, 2010
MEMORANDUM ORDER Re: Defendant's Motion to Dismiss
In October 2009, petitioner Salvador Robles Lopez filed a petition for de novo review of the Attorney General's denial of petitioner's naturalization application. Now before the court is the Attorney General's motion to dismiss the petition for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
Petitioner entered the United States in approximately October 1984. Docket No. 8, Exh. 1 (Notice of Removal Proceedings) at 1. He was convicted of possession for sale of a controlled substance in violation of California law. Id. After his conviction, petitioner applied for naturalization. His application for naturalization was denied by the Attorney General on the grounds that, despite reformation of character, the prior conviction created a statutory bar to good moral character and naturalization. See Docket No. 1, Exh. 1 (N-336 Review Decision) at 2. Based on this past conviction, removal proceedings against petitioner are pending. Petitioner now seeks judicial review of the decision denying his naturalization application and an order mandating that the Attorney General grant naturalization. The Attorney General argues that this court is statutorily prohibited from providing relief to petitioner pursuant to 8 U.S.C. section 1429 ("[N]o 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").
Petitioner has conceded, see Docket No. 10 (Opp.) at 1, that the legal question at issue on the present motion is the same as the one recently decided by this court in Castaneda v. Holder, No. 09-3177, 2009 WL 4282810, at *3 (N.D. Cal. Nov. 25, 2009) (Patel, J.). Although the district court has jurisdiction to review a naturalization decision by the Attorney General, the district court cannot, while removal proceedings are pending, provide effective relief to an applicant denied naturalization. See id. at 3-6. Accordingly, defendant's motion to dismiss the complaint is GRANTED without prejudice to renewal by petitioner should such renewal be warranted by law and desired by petitioner following the conclusion of his removal proceedings. The instant action is DISMISSED.
IT IS SO ORDERED.