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Dilone v. Nielsen

United States District Court, D. Maryland, Southern Division

February 1, 2019

JOSE DILONE, Plaintiff,
KIRSTJEN NIELSEN et al., Defendants.



         Jose 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.

         Defendants, 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 pending.

         Not so. 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.

         But 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.


         The 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.

         Mr. 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.

         Three 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, [1] 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. Id.

         On May 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 id.

         Mr. 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.

         The Motion to Dismiss has been fully briefed. See ECF Nos. 12, 13, 14. No hearing is necessary. See Loc. R. 105.6.


         Defendants 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).

         A 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.


         Defendants' 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 proceed?

         These 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.


         Today, 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.[2] 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).

         It was 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).

         One 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).[3] 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.

         The 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.

         The 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.

         The 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.

         The 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 statute provides:

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 ...

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