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Maxwell v. Sessions

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Jun 15, 2018
No. 15-16520 (9th Cir. Jun. 15, 2018)

Opinion

No. 15-16520

06-15-2018

VALENTINA S. MAXWELL, Plaintiff-Appellant, v. JEFFERSON B. SESSIONS III, Attorney General; et al., Defendants-Appellees.


NOT FOR PUBLICATION

D.C. No. 2:14-cv-02772-TLN-AC MEMORANDUM Appeal from the United States District Court for the Eastern District of California
Troy L. Nunley, District Judge, Presiding Submitted June 12, 2018 San Francisco, California Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). --------

Valentina S. Maxwell, a native and citizen of Russia, appeals pro se from the district court's dismissal of her complaint under 8 U.S.C. § 1447(b) requesting a hearing on her naturalization application, for failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal of a complaint for failure to state a claim. Yith v. Nielsen, 881 F.3d 1155, 1161 (9th Cir. 2018). We reverse.

The district court erred in dismissing Maxwell's complaint for failure to state a claim, where the language of 8 U.S.C. § 1429 only bars the Attorney General, and not the district court, from considering a naturalization application when there is a removal proceeding pending against the applicant, and where Maxwell was not in removal proceedings pursuant to a "warrant of arrest," but pursuant to a notice to appear. See 8 U.S.C. § 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."); Yith, 881 F.3d at 1165, 1168 (the statutory language of 8 U.S.C. § 1429 applies only to the Attorney General, not the district court, and thus the district court is not prevented from granting relief under 8 U.S.C. § 1447(b); § 1429 is inapplicable to applicants in proceedings pursuant to a notice to appear, which is different from a "warrant of arrest"). Accordingly, we reverse the district court and remand for further proceedings consistent with this decision.

REVERSED and REMANDED.


Summaries of

Maxwell v. Sessions

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Jun 15, 2018
No. 15-16520 (9th Cir. Jun. 15, 2018)
Case details for

Maxwell v. Sessions

Case Details

Full title:VALENTINA S. MAXWELL, Plaintiff-Appellant, v. JEFFERSON B. SESSIONS III…

Court:UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Date published: Jun 15, 2018

Citations

No. 15-16520 (9th Cir. Jun. 15, 2018)