United States District Court, W.D. Missouri, Western Division
ORDER DENYING MOTION TO DISMISS AND STAYING THE CASE
PENDING THE COMPLETION OF REMOVAL PROCEEDINGS
KAYS, JUDGE UNITED STATES DISTRICT COURT.
case arises from Petitioner Milton Miller's allegations
that the United States Citizenship and Immigration Services
(“USCIS” or “the agency”) wrongfully
denied his application for naturalization. Now before the
Court is Respondent Kevin K. McAleenan, Acting Secretary of
the Department of Homeland Security's (“DHS”)
and Respondent Michelle Perry, Director of the Kansas City
USCIS Field Office's motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1), (6) (Doc. 6).
Petitioner did not respond to the motion.
claim this Court is without jurisdiction to hear the case or,
alternatively, that Petitioner has failed to state a claim
upon which relief may be granted. Because the removal
proceedings take priority over naturalization appeals but do
not deprive the Court of jurisdiction or demand dismissal,
the motion is DENIED and the case is STAYED pending the
outcome of the removal proceedings.
2016, Petitioner applied for naturalization. The USCIS denied
his application in January 2017 because he failed to
establish the requisite “good moral character”
due to a prior conviction (Doc. 1-2). Petitioner then filed a
request for a hearing with the Kansas City USCIS Field
Office. On September 25, 2018, the Kansas City USCIS Field
Office conducted an appeal hearing. Two days later, USCIS
issued a final decision denying Petitioner's
naturalization application because of his “lack of good
moral character and lack of reformation of character with
regards to following the laws of the United States”
timely filed this request for de novo judicial review of his
naturalization denial pursuant to 8 U.S.C. § 1421(c).
During the pendency of this litigation, USCIS placed
Petitioner into removal proceedings.
seek dismissal under either Rule 12(b)(1) or 12(b)(6) of the
Federal Rules of Civil Procedure. A motion to dismiss under
12(b)(1) challenges the Court's subject matter
jurisdiction. To survive a motion to dismiss for lack of
subject matter jurisdiction, the party asserting jurisdiction
has the burden of proving jurisdiction. VS Ltd.
P'ship v. Dep't of Hous. & Urban Dev., 235
F.3d 1109, 1112 (8th Cir. 2000) (citation omitted). It is the
threshold requirement that must be assured in every federal
motion under 12(b)(1) challenges the district court's
ability to hear the case at all, a motion under Rule 12(b)(6)
tests the legal sufficiency of the complaint. A complaint may
be dismissed if it fails “to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6). To avoid
dismissal, a complaint must include “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). In reviewing the complaint, the court construes it
liberally and draws all reasonable inferences from the facts
in the plaintiff's favor. Monson v. Drug Enf't
Admin., 589 F.3d 952, 961 (8th Cir. 2009).
agency is granted the sole authority to
naturalize persons as citizens of the United States. 8 U.S.C.
§ 1421(a). District courts, however, can review
naturalization denials pursuant to 8 U.S.C. § 1421(c),
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.
relief provided to the petitioner under § 1421(c) is an
instruction to the agency to naturalize the petitioner.
Zayed v. United States, 368 F.3d 902, 906 (6th Cir.
2004) (finding that the district has no authority to
naturalize the petitioner, only to direct the agency to do
removal proceedings have been initiated, however, the
agency's power to naturalize is limited by § 1429,
which provides that “no application for naturalization
shall be considered by the [agency] if there is pending
against the applicant a removal proceeding.” 8 U.S.C.
§ 1429. In effect, this provision ensures that ...