United States District Court, D. Maryland, Southern Division
W. GRIMM UNITED STATES DISTRICT JUDGE
Dilone wants to become a U.S. citizen. He applied for
naturalization through the ordinary channels in December
2016, but after waiting nearly a year and a half for the
Department of Homeland Security ("DHS") to render a
decision, he opted to seek recourse in the courts. His suit
urges this Court to exercise its authority under 8 U.S.C.
§ 1447(b), either by adjudicating the application itself
or by ordering DHS to approve it.
who include the Secretary of Homeland Security, do not deny
that the Court had jurisdiction over Mr. Dilone's
Complaint when he first filed it in April 2018. They contend,
though, that the case became unsustainable soon afterward,
when the agency placed Mr. Dilone into removal proceedings.
Their legal argument, in brief, is that 8 U.S.C. § 1429
prevents both the agency and the courts from considering a
naturalization application while removal proceedings are
Section 1429 very clearly precludes DHS from acting on a
naturalization application while the applicant is facing
removal, but it does not say anything about the courts.
Because I decline to construe a statute in a manner that
conflicts with its unambiguous terms, see Yith v.
Nielsen, 881 F.3d 1155, 1161 (9th Cir. 2018), I conclude
that this Court has jurisdiction over Mr. Dilone's
Complaint and has the authority to grant the relief he seeks.
allowing this case to proceed while removal proceedings
remain ongoing would depart from a longstanding policy of
giving such proceedings "priority" over the
naturalization process. See Zayed v. United States,
368 F.3d 902, 905 (6th Cir. 2004). As it is not at all clear
to me that Congress intended to upend this policy, I am
staying this case to allow the removal proceedings to run
their course, while retaining authority to reopen the case in
the event that those proceedings are not completed in a
timely manner. To assist me in monitoring the progress of the
removal proceedings, and to ensure that the government
pursues its removal case in a non-dilatory fashion, I will
require it to provide me with status reports every 45 days,
commencing the date of this memorandum opinion and order.
facts of this case are undisputed and do not require much
elaboration. The suit began with four plaintiffs - all lawful
permanent residents of the United States - seeking to compel
a decision on their long-pending applications for American
citizenship. See Compl. ¶¶ 1-2, ECF No. 1.
Three of the plaintiffs moved for a voluntary dismissal of
their claims after U.S. Citizenship and Immigration Services
("USCIS") agreed to adjudicate their applications
within 30 days. See ECF No. 7. The Court granted
their motion, see ECF No. 8, leaving Mr. Dilone as
the sole remaining plaintiff.
Dilone, a native of the Dominican Republic, became a lawful
permanent resident of the United States on October 30, 1992,
at the age of 16. Compl. ¶ 9, ECF No. 1. He applied for
naturalization in December 2016. Id. ¶ 10.
USCIS agents interviewed him on May 17, 2017, at the
agency's district field office in Baltimore. Id.
¶ 11. When the interview was over, the agents informed
him that he had passed the English and civics tests but that
they were not prepared at that time to make a decision about
his application. Id. ¶ 12.
hundred and twenty-eight days later, still waiting for the
agency to issue a decision, Mr. Dilone filed this federal
lawsuit. The Complaint, which named Homeland Security
Secretary Kirstjen Nielsen and other federal officials as
defendants,  framed the suit as a mandamus action under
28 U.S.C. § 1361 to compel federal officers to uphold
their duty to adjudicate his Form N-400 application for
naturalization. See Id. ¶ 6. It further
asserted that the Court had jurisdiction over the
naturalization proceedings under 8 U.S.C. § 1447(b)
because USCIS had failed to render a decision within 120 days
of Mr. Dilone's examination. See 8 U.S.C. §
1447(b). This provision, where properly invoked, empowers a
district court to "determine the matter or remand the
matter, with appropriate instructions," to USCIS.
24, 2018 - right around the time USCIS agreed to process the
other three plaintiffs' naturalization applications in
exchange for a voluntary dismissal of their claims - DHS
agents served Mr. Dilone with a notice to appear for removal
proceedings in immigration court. See Notice to
Appear, ECF No. 12-2. The notice alleged he was removable
because of his criminal record, which included a 1996
conviction in a Virginia circuit court for grand larceny and
possession of burglary tools and a 2000 conviction in
Maryland district court for conspiracy to commit theft (less
than $300). See Id. at 5. The notice categorized
these offenses as "crimes involving moral
turpitude" and deemed him removable under 8 U.S.C.
§ l227(a)(2)(A)(i) and § l227(a)(2)(A)(ii). See
Dilone was released from DHS custody on a $5, 000 bond on
June 6, 2018. ECF No. 8. Two days later, Defendants asked
this Court for leave to file a motion to dismiss the
Complaint. Id. Its ensuing motion argued that the
initiation of removal proceedings stripped the Court of any
jurisdiction it might have had under § 1447(b).
See Mot. to Dismiss 1-2, ECF No. 12. Defendants
reasoned that § 1447(b) was no longer applicable because
a different statutory provision, 8 U.S.C. § 1429,
precludes the Attorney General from considering a
naturalization application while removal proceedings are
pending against the applicant. Section 1429 does not
expressly bar a court from reviewing the application
under these circumstances, but Defendants argued that
allowing a court to do what DHS cannot would defeat the
purpose of § 1429, which was to prevent aliens from
evading deportation by seeking and obtaining citizenship
before removal proceedings have run their course.
See Defs.' Mem. 9-11, ECF No. 12-1. Defendants
contend that even if § 1429 does not deprive the Court
of jurisdiction, it leaves the Court powerless to accord any
relief under the circumstances.
Motion to Dismiss has been fully briefed. See ECF
Nos. 12, 13, 14. No hearing is necessary. See Loc.
seek a dismissal under either Rule 12(b)(1) or 12(b)(6) of
the Federal Rules of Civil Procedure. A 12(b)(1) motion
challenges the district court's subject matter
jurisdiction, asserting, in effect, that the plaintiff lacks
any "right to be in the district court at all."
Holloway v. Pagan River Dockside Seafood, Inc., 669
F.3d 448, 452 (4th Cir. 2012). The burden of establishing the
court's subject matter jurisdiction rests with the
plaintiff. Evans v. B.F. Perkins Co., 166 F.3d 642,
647 (4th Cir. 1999). The district court should grant the
12(b)(1) motion "only if the material jurisdictional
facts are not in dispute and the moving party is entitled to
prevail as a matter of law." Balfour Beatty
Infrastructure, Inc. v. Mayor & City Council of
Bait, 855 F.3d 247, 251 (4th Cir. 2017) (quoting
Evans, 166 F.3d at 647).
12(b)(6) motion, by contrast, "tests the
sufficiency" of the plaintiffs complaint. Vance v.
CHF Int'l, 914 F.Supp.2d 669, 677 (D. Md. 2012).
Under Rule 8(a)(2), the complaint must contain "a short
and plain statement of the claim showing that the pleader is
entitled to relief." Fed.R.Civ.P. 8(a)(2). Beyond that,
the Supreme Court has held that claims for relief must be
"plausible," specifying that "[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice."
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
"A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id. at 663.
motion raises three distinct issues for this Court to decide.
First, does the Court have subject matter jurisdiction over
Mr. Dilone's claim? Second, assuming jurisdiction does
exist, is the claim redressable? And finally, assuming the
claim survives the motion to dismiss, how should this case
three questions are closely related. To answer any of them,
it is necessary to examine the interplay between two
processes: naturalization and removal. As the laws that
govern these processes have evolved over time, some history
would seem to be in order.
the primary responsibility for deciding who may become a U.S.
citizen and who is to be removed from the country is
centralized in the executive branch. By statute, the
"sole authority to naturalize persons as citizens of the
United States" rests with the Secretary of Homeland
Security. 8 U.S.C. § 1421(a); 6 U.S.C. §
557. Removal proceedings, meanwhile, are conducted by
immigration judges appointed by the Attorney General. See
Id. §§ l229a(a)(1), 1101(b)(4). To the extent
that courts may concern themselves with these matters, their
role is mainly to provide judicial review of the executive
agency's actions. See Id. § 1421(c)
(authorizing an applicant for naturalization to seek judicial
review of a decision denying his application); id.
§ 1252(a)(1) (authorizing judicial review of a final
order of removal).
not always this way, though. For much of the twentieth
century, responsibility for removal and naturalization was
split between the judicial and executive branches. While the
Attorney General wielded authority over deportations, courts
played the "pre-eminent role in the naturalization
process," bearing the ultimate responsibility for
deciding whether to grant or deny an alien's petition for
naturalization. United States v. Ali, 757 F.Supp.
710, 712 (W.D. Va. 1991). The courts did not make these
determinations in isolation, of course, but rather considered
input from the U.S. Department of Justice, whose agents
"conducted the preliminary investigation and examination
of applicants and made recommendations to the district
court." Ajlani v. Chertoff, 545 F.3d 229, 236
n.5 (2d Cir. 2008).
aspect of this division of labor that came to be seen as
problematic was that neither proceeding had priority over the
other. Consequently, 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. See Shomberg v. United
States, 348 U.S. 540, 544 (1955). Congress put an end to
these races in 1950, amending the immigration laws to provide
in relevant part: "[N]o petition for naturalization
shall be finally heard by a naturalization court if there is
pending against the petitioner a deportation proceeding
pursuant to a warrant of arrest issued under the provisions
of this or any other Act. . .." Internal Security Act of
1950, Pub. L. No. 81-831, § 27, 64 Stat. 987, 1015
(1950). The Supreme Court characterized this
provision as a "priority provision," because it
ensured that deportation proceedings would take precedence
over an alien's attempts to naturalize.
Shomberg, 348 U.S. at 544.
priority provision remained intact until 1990, when Congress
sought to address an altogether different problem with
naturalization proceedings - specifically, the stress they
were putting on district courts' dockets. See Etape
v. Chertoff, 497 F.3d 379, 386 (4th Cir. 2007). To
streamline the naturalization process, Congress shifted
authority from the judiciary to the executive branch,
authorizing the Attorney General to naturalize citizens
without the courts' involvement. See 8 U.S.C. §
1421(a); Yith, 881 F.3d at 1162.
Immigration Act of 1990 declared that the Attorney General
has "sole authority to naturalize persons as citizens of
the United States." 8 U.S.C. § 1421(a). But
Congress did not eliminate the courts' role entirely.
Rather, in recognition of "the long-standing power the
district courts had possessed over naturalization
applications," Etape, 497 F.3d at 386, the law
"reserved a measure of naturalization jurisdiction for
the courts in two circumstances: denial and delay,"
Ajlani, 545 F.3d at 236.
first of the courts' two sources of authority in this
arena, codified at 8 U.S.C. § 1421(c), empowers courts
to review USCIS's denial of an application for
naturalization. Under the statutory scheme, a person whose
application is denied must first request a hearing before an
immigration officer. See8U.S.C.§ 1446(d); 8 C.F.R.
§§ 316.14(b)(2), 336.2. If, after the hearing, the
denial still stands, the applicant "may seek review of
such denial before the United States district court for the
district in which [he or she] resides." 8 U.S.C. §
1421(c). The statute provides: "Such review shall be de
novo, and the court shall make its own findings of fact and
conclusions of law .. .." Id.
other source of judicial authority - the one Mr. Dilone seeks
to invoke here - is 8 U.S.C. § 1447(b). It allows an
applicant to seek recourse in the federal courts if his
application remains pending for at least 120 days after USCIS
examined him. 8 U.S.C. § 1447(b). More particularly, the
If there is a failure to make a determination ... before the
end of the 120-day period after the date on which the
examination is conducted ..., the applicant may apply to the
United States district court for the district in ...