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Gardner v. Barr

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

March 1, 2019

NORMAN GARDENER, [1]Plaintiff,
WILLIAM P. BARR, [2] et al., Defendants.



         This matter is before the Court on defendants' motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction pursuant to Rule 12(h)(3), Fed.R.Civ.P., or, in the alternative, for judgment on the pleadings pursuant to Rule 12(c).[3] Plaintiff has filed a response in opposition and the issues are fully briefed. In addition, the parties appeared for oral argument on February 20, 2019. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

         Plaintiff Norman Gardener, a native of Jamaica and lawful permanent resident of the United States, filed an application for naturalization in September 2015. He attended naturalization interviews in February and April 2016. When two years had passed without a decision on his pending application, plaintiff filed this action pursuant to 8 U.S.C. § 1447(b), [4] in which he asks the Court to either naturalize him or direct the Department of Homeland Security (DHS) to adjudicate his application. Shortly after he filed suit, however, DHS placed plaintiff in removal proceedings. Defendants now seek dismissal arguing, first, that the Court lost jurisdiction when DHS initiated removal proceedings and, second, that even if the Court retains jurisdiction, there is no longer a remedy available to plaintiff.

         I. Background

         Plaintiff, who became a lawful permanent resident of the United States in 1991, has filed two applications for naturalization. He filed his first application on February 5, 1998. At his interview in October 2000, he stated both that he had voted in an election and that he had never falsely represented that he was a citizen of the United States. On July 27, 2001, the Immigration and Naturalization Service (INS) denied plaintiff's naturalization application because he had registered to vote in the City of St. Louis, signing under penalty of perjury a voter's registration card certifying that he was a United States citizen.[5] Decision dated July 27, 2001 [Doc. # 10-1 at 7-8]. INS stated that plaintiff's conduct violated 18 U.S.C. § 1015(f), which proscribes making a false claim of U.S. citizenship in order to vote or register to do so. In addition, plaintiff gave false testimony under oath during his interview when he stated that he had never claimed to be a U.S. citizen. Under INS regulations, a naturalization applicant who gives false testimony for the purpose of obtaining an immigration benefit “will be found to lack good moral character.” Id. (citing 8 C.F.R. Part 316.19(b)(vi)). Nonetheless, plaintiff was informed that the denial of his application was without prejudice to his ability to file a new application on or after October 18, 2005.

         The subject of this lawsuit is plaintiff's second application, filed on September 18, 2015. [Doc. # 10-1 at 15-35]. He appeared for a naturalization interview on February 18, 2016, which was memorialized in a Record of Sworn Statement in Affidavit Form [Doc. # 10-1 at 11-12]. According to this document, plaintiff reported that he had again voted, this time in the 2008 presidential election. In addition, he stated that he had been charged with disturbing the peace and forcible rape, but that the charges had been dismissed. At a second interview on April 25, 2016, plaintiff stated that the last time he voted was in 2001, he had not voted in 2008, and that the prior sworn statement was incorrect. Apr. 25, 2016 Record of Sworn Statement in Affidavit Form [Doc. # 10-1 at 13-14].[6] Plaintiff's insistence that he had not voted in 2008 is consistent with a February 2017 report from the St. Louis City Board of Election Commissioners. This report shows that plaintiff voted in a special election and a general municipal election in 1997, in the November general election in 2000, and in a primary election in March 2001. His voter registration was cancelled in January 2013. [Doc. # 1-7 at 4-7].

         On April 18, 2018, nearly two years after his interview, plaintiff filed this complaint, pursuant to 8 U.S.C. § 1447(b). He asks the Court to compel defendants to adjudicate his application for naturalization within 30 days. On May 25, 2018, DHS issued to plaintiff a notice to appear for removal proceedings in immigration court. [Doc. # 10-1]. The notice alleges that he is removable under 8 U.S.C. § 1227(a)(6) because he voted on November 7, 2000, in violation of 18 U.S.C. § 611. Id. at 2, 4. The notice was served on plaintiff by mail. Id. at 4. A hearing has been set for May 22, 2019. [Doc. # 17-1].

         II. Legal Standards

         The government moves to dismiss for lack of subject-matter jurisdiction or, in the alternative, for judgment on the pleadings. Under Rule 12(b)(1), the movant must successfully challenge the complaint “on its face or on the factual truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citing Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990)). In a facial attack, the court can only consider the “face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6).” Disability Support All. v. Geller Family Ltd. P'ship III, 160 F.Supp.3d 1133, 1136 (D. Minn. 2016). By contrast, “in a factual attack, the court considers matters outside the pleadings, and the non-moving party does not have the benefit of 12(b)(6) safeguards.” Id.

         To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff need not provide specific facts in support of his allegations. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam), but “must include sufficient factual information to provide the ‘grounds' on which the claim rests, and to raise a right to relief above a speculative level.” Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 555 & n.3). The Court accepts as true all of the factual allegations contained in the complaint, even if it appears that “actual proof of those facts is improbable” and reviews the complaint to determine whether its allegations show that the pleader is entitled to relief. Twombly, 550 U.S. at 555-56. “The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, ” however. Iqbal, 556 U.S. at 678-79 (“While legal conclusions can provide the framework for a complaint, they must be supported by factual allegations.”) Finally, courts review the plausibility of a plaintiff's claim “as a whole, not the plausibility of each individual allegation, ” considering only the materials that are “necessarily embraced by the pleadings and exhibits attached to the complaint[.]” Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (citation omitted).

         III. Discussion

         Plaintiff seeks relief in this Court pursuant to 8 U.S.C. § 1447(b), which provides a naturalization applicant with the right to file a petition for hearing in a federal court if USCIS fails to make a determination on a naturalization application within 120 days of completing the applicant's naturalization examination.[7] Defendants argue that, once they placed plaintiff into removal proceedings, the Court was stripped of its jurisdiction under § 1447(b), by operation of another statute - 8 U.S.C. § 1429.[8] Assuming that the Court retains jurisdiction, defendants further argue that the removal process forecloses the possibility of redress for plaintiff's claims and his complaint must be dismissed for failure to state a claim. Plaintiff argues that, by its plain language, § 1429 applies only to the executive branch. Thus, he asserts, the Court's statutory grant of jurisdiction under § 1447(b) remains intact and the Court may consider his naturalization application, regardless of the pending removal proceedings. Alternatively, he argues, § 1429 does not apply because the removal proceedings were initiated by a notice to appear rather than “pursuant to a warrant of arrest.” Finally, he contends that the government is estopped from using the 2000 voter fraud to bar his efforts to obtain naturalization from this Court.

         A. Statutory Framework

         Addressing the parties' arguments requires the Court to examine the interplay between two processes: naturalization and removal, and the changes in the statutes that govern them - § 1447(b) and § 1429. Dilone v. Nielsen, et al., No. PWG-18-1018, 2019 WL 418422, at *3 (D. Md. Feb. 1, 2019).

         In the past, district courts had authority to naturalize, while the authority to deport aliens - now referred to as “removal” - was vested in the Attorney General.[9] De Lara Bellajaro v. Schiltgen, 378 F.3d 1042, 1045 (9th Cir. 2004). It was possible for naturalization and removal proceedings to advance simultaneously, Ajlani v. Chertoff, 545 F.3d 229, 235 (2d Cir. 2008), and because “neither proceeding had priority over the other . . ., an alien could find himself in a race against the government, with the alien pressing the court to grant him citizenship before the government could order his removal from the country, ” Dilone, 2019 WL 418422, at *3 (citing Shomberg v. United States, 348 U.S. 540, 544 (1955)). In 1950, to end this race, Congress enacted 8 U.S.C. § 1429 to provide that “no petition for naturalization shall be finally heard by a naturalization court if there is pending against the petitioner a deportation proceeding.” Bellajaro, 378 F.3d at 1045 (quoting 8 U.S.C. § 1429 (1952) (emphasis added)). This “priority provision” ensures that deportation proceedings take precedence over an alien's attempts to naturalize. See Zayed v. United States, 368 F.3d 902, 905 (6th Cir. 2004); Dilone, 2019 WL 418422, at *3 (citing Shomberg, 348 U.S. at 544).

         In 1990, Congress amended the law to vest naturalization authority solely in the Attorney General. Yith v. Nielsen, 881 F.3d 1155, 1162 (9th Cir. 2018); 8 U.S.C. § 1421(a) (“The sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General.”); Etape v. Chertoff, 497 F.3d 379, 385 (4th Cir. 2007) (in 1990, Congress attempted to streamline the naturalization process to give the Attorney General authority to naturalize a citizen without permission from the district court); Dilone, 2019 WL 418422, at *3 (stating that Congress tried to streamline process and relieve stress on district court dockets). At the same time, Congress amended the priority provision, § 1429, by replacing “a naturalization court” with “the Attorney General.” Yith, 881 F.3d at 1162.

         “At the same time that the 1990 Act refocused the priority provision to limit the Attorney General's newly conferred naturalization authority, the law reserved a measure of naturalization jurisdiction for the courts in two circumstances: denial and delay.” Ajlani, 545 F.3d at 236. Thus, an alien whose application has been denied after agency examination and then on review by an immigration judge[10] may seek review of the denial in the district court. § 1421(c). “Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law.” Id. Section 1447(b), the “delay” provision, authorizes an applicant to petition a district court if USCIS fails to make a determination on a naturalization application within 120 days after it has conducted its examination. Under § 1447(b), the district court has jurisdiction to “determine the matter or remand the matter, with appropriate instructions, to [USCIS] to determine the matter.” § 1447(b). Plaintiff's action here is brought pursuant to § 1447(b).

         B. Effect of Removal Proceedings on Subject-Matter Jurisdiction

          Shortly after plaintiff filed this suit, the government commenced removal proceedings. The government asserts that, by so doing, it has stripped the Court of the jurisdiction granted by § 1447(b). The parties have not cited, and the Court's independent research has not identified, any decisions by the Eighth Circuit Court of Appeals addressing the effect of removal proceedings on a district court's subject matter jurisdiction under § 1447(b). The United States District Court of Maryland extensively addressed this issue in the recent Dilone decision, from which the following discussion borrows.

         Federal courts possess only the powers granted by the Constitution and statute. Dilone, 2019 WL 418422, at *5 (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Hagans v. Lavine, 415 U.S. 528, 538 (1974)). Section 1447(b) “allows an applicant to invoke a federal court's jurisdiction when USCIS has failed to either grant or deny” an application within the 120 days following the applicant's examination. Id. (quoting ยง 1447(b)). Because more than 120 days elapsed between plaintiff's April 2016 examination and the filing of this action, it is undisputed that the Court had ...

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