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Kovacevic v. Duke

United States District Court, E.D. Missouri, Eastern Division

August 9, 2017

AMER KOVACEVIC, Petitioner,
v.
ELAINE C. DUKE, ET AL., [1] Respondents.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE

         Petitioner Amer Kovacevic seeks judicial review of a decision by the Department of Homeland Security's United States Citizenship and Immigration Services (USCIS). The USCIS denied Kovacevic's naturalization application on the grounds that he failed to demonstrate that he was a person of good moral character. More than a year after Kovacevic filed his petition in this case, the Department of Homeland Security issued a Notice to Appear, effectively initiating proceedings to remove Kovacevic from the United States. Respondents now move to dismiss Kovacevic's petition before this court, arguing that because a removal proceeding is pending against Kovacevic, the court is divested of its jurisdiction pursuant to 8 U.S.C. § 1429. Respondents further argue that even if jurisdiction exists, Kovacevic fails to state a claim for relief and I should grant respondents' motion for judgment on the pleadings. Kovacevic contends that § 1429 does not deprive this Court of jurisdiction and argues the Court may provide him with effective relief by rendering a declaratory judgment that he is entitled to obtain citizenship.

         I conclude that § 1429 does not divest this court of jurisdiction to conduct a de novo review of the USCIS's denial of Kovacevic's petition for naturalization. However, because of the pending removal proceedings, § 1429 prevents me from instructing the Attorney General to naturalize Kovacevic' the relief requested in his petition. A declaratory judgment at this time would not constitute effective or appropriate relief because the grounds for Kovacevic's removal are distinct from the grounds upon which he was denied naturalization. I therefore decline to exercise my discretion to provide relief at this time. I will not dismiss the case, however, but will stay it until the outcome of Kovacevic's removal proceedings is determined.

         Background

         Petitioner Kovacevic arrived in the United States in 1999 as a derivative refugee from Bosnia and was accorded lawful permanent resident status. After living in the United States for almost five years, he was convicted of assault in the third degree for assaulting a teacher at the Missouri School for the Deaf. Kovacevic was also convicted in 2006 of sexual misconduct and in 2012 of domestic assault.

         In 2014, Kovacevic applied to become a United States citizen. The USCIS denied his application, concluding that he failed to show the requisite good moral character because of these convictions. Kovacevic filed a Request for Hearing to challenge the denial of his application and submitted additional evidence to attempt to establish his good moral character. On review, USCIS affirmed the denial and found that even considering the additional evidence, Kovacevic did not possess the required good moral character.

         Kovacevic filed this lawsuit on November 24, 2015, pursuant to 8 U.S.C. § 1421(c), seeking the Court's de novo review of the denial of his naturalization application. On April 14, 2017, the Department of Homeland Security (“DHS”) Immigration and Customs Enforcement (“ICE”) initiated removal proceedings against him by filing a Notice to Appear with the Immigration Court, charging him as removable for committing a crime involving moral turpitude within five years of admission. Respondents now move to dismiss Kovacevic's petition for lack of subject-matter jurisdiction or, alternatively, for failure to state a claim. Specifically, respondents argue that once removal proceedings were initiated, this Court was divested of subject-matter jurisdiction pursuant to § 1429. Respondents also argue the Court can no longer grant Kovacevic effective relief as removal proceedings are pending.

         Sections 1421(c) and 1429

         The Attorney General is granted the sole authority to naturalize persons as citizens of the United States. 8 U.S.C. § 1421(a). Congress empowered the district courts to review the Attorney General's naturalization decisions in § 1421(c), which provides:

A person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of title 5. Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application.

8 U.S.C. § 1421(c). Any relief by a court under section 1421(c) is an instruction to the Attorney General (now the Secretary of Homeland Security)[2] to naturalize the petitioner. Zayed v. United States, 368 F.3d 902, 906 (6th Cir. 2004). Once removal proceedings have been initiated against an alien, however, the Attorney General's power to naturalize or consider the application for naturalization is limited by 8 U.S.C. § 1429, which provides as follows:

[N]o 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 ....

8 U.S.C. ยง ...


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