UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT AHMED AWE, Plaintiff-Appellant, v. JANET NAPOLITANO, Secretary, U.S. Department of Homeland Security; EMILIO GONZALEZ, Director, U.S. Citizenship and Immigration Services; JOSE OLIVARES, Field Office Director, USCIS, Defendants-Appellees.

No. 11-5134 (D.C. No. 4:10-CV-00323-TCK-FHM)

(N.D. Okla.)

ORDER AND JUDGMENT* Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL, Circuit Judge.

Ahmed Awe appeals from the district court’s dismissal of a petition he filed

under 8 U.S.C. § 1421(c) seeking review of the denial of his naturalization

application. Shortly after he filed his petition, he was placed in removal proceedings.

* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED United States Court of Appeals

Tenth Circuit

August 20, 2012

Elisabeth A. Shumaker Clerk of Court

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The district court concluded that it had jurisdiction over the petition under § 1421(c)

but that Mr. Awe failed to state a claim upon which relief can be granted. The court

reasoned that once removal proceedings were initiated against Mr. Awe, 8 U.S.C.

§ 1429 barred agency consideration of his naturalization application and so precluded

the court from granting him any effective relief on his § 1421(c) petition. We agree

with the district court that it had statutory jurisdiction and that § 1429 precludes any

effective judicial relief, but we affirm its dismissal on an alternate ground—

constitutional mootness. In our view, the fact that the district court could not grant

Mr. Awe any effective relief shows that the initiation of removal proceedings mooted

his petition. Accordingly, we vacate the district court’s dismissal order and remand

with instructions to dismiss without prejudice for lack of jurisdiction.

I. Background

Mr. Awe is a native and citizen of Belize. He has been a lawful permanent

resident of the United States since 1968. In 1976, at age eighteen, he was convicted

of burglary. In 1978, he was arrested for “drunkenness,” and the charges were

dismissed. In 1983, he pleaded guilty to possession of marijuana with intent to

distribute, possession of cocaine, and maintaining a house where drugs were kept or

sold. He received a suspended sentenced of three years’ imprisonment and was

fined. Two months later he was arrested for unlawfully possessing a controlled drug,

but the charge was dismissed. In 2006, the Governor of Oklahoma pardoned him for

his 1983 conviction.

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In 2007, Mr. Awe filed an application for naturalization. The United States

Customs and Immigration Services (USCIS) denied his application based on its

conclusion that, despite his pardon, he was amenable to removal proceedings based

on his 1983 conviction. The USCIS also noted that Mr. Awe had not disclosed all of

his arrests. Mr. Awe filed a request for rehearing. The USCIS denied that request on

January 26, 2010, on the ground that, pardon notwithstanding, his 1983 conviction

appeared to place him in the class of removable aliens, and therefore he did not have

the good moral character for naturalization that 8 U.S.C. § 1427(a) requires.1

On May 20, 2010, Mr. Awe filed a petition for review of the denial of his

naturalization application in the district court pursuant to § 1421(c).2 He claimed that

USCIS erred in denying his application on the basis of his aged criminal history and

mistakenly found that he failed to disclose all of his arrests. He asked the court to

(1) exercise jurisdiction, (2) conduct a de novo hearing, (3) remand the matter to the

1 In denying the request for rehearing, the USCIS stated that a pardon is relevant only to certain grounds for removal listed in 8 U.S.C. § 1229(a)(2)(A)(vi), none of which applied to Mr. Awe.

2 8 U.S.C. § 1421(c) 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.

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agency with instructions to grant his naturalization application, (4) award him

attorney fees and costs, and (5) grant him further relief deemed just and proper.

On August 27, 2010, Mr. Awe was placed in removal proceedings when he

received a notice to appear, which charged him with removability based on his 1983

drug-trafficking conviction. Thereafter, defendants filed a motion to dismiss for lack

of jurisdiction and for failure to state a claim upon which relief can be granted.

Defendants argued that the initiation of removal proceedings precluded the court

from granting relief because § 1429 provides, in relevant part, that “no application

for naturalization shall be considered by the Attorney General if there is pending

against the applicant a removal proceeding.”3

The court ruled that § 1429 did not strip it of jurisdiction because the statute

referred only to the Attorney General. However, it concluded that because § 1429

precluded the Attorney General from granting Mr. Awe’s naturalization application

3 The statutory reference to the Attorney General is a legal artifact. “In 2002, Congress transferred authority (1) to commence removal proceedings and (2) to adjudicate applications for naturalization from the Attorney General to the Secretary of the Department of Homeland Security.” Ajlani v. Chertoff, 545 F.3d 229, 231 n.2 (2d Cir. 2008). That transfer took effect March 1, 2003. Batalova v. Ashcroft, 355 F.3d 1246, 1248 n.1 (10th Cir. 2004). Consequently, the term “Attorney General” in § 1429 now means the “Secretary of Homeland Security.” See 6 U.S.C. § 557 (“With respect to any function transferred by or under this chapter [principally enacted by the Homeland Security Act of 2002] . . . and exercised on or after the effective date of this chapter, reference in any other Federal law to any department, commission, or agency or any officer or office the functions of which are so transferred shall be deemed to refer to the Secretary [of Homeland Security], other official, or component of the Department [of Homeland Security] to which such function is so transferred.”).

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while removal proceedings were pending, the court could not grant Mr. Awe the

relief he sought—remand to the agency with instructions to naturalize him.

Therefore, the court dismissed the petition without prejudice under Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

This appeal followed.

II. Discussion

Before we can review the district court’s dismissal under Rule 12(b)(6), we

must examine whether this case satisfies the jurisdictional requirements of Article III

of the Constitution. We may consider such issues for the first time on appeal, see

Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009), and regardless

of the fact that the parties have not raised them, Tandy v. City of Wichita, 380 F.3d

1277, 1290 n.15 (10th Cir. 2004). “The mootness doctrine relates to both the

constitutional case or controversy requirement of Article III, as well as the prudential

considerations underlying justiciability.” Jordan v. Sosa, 654 F.3d 1012, 1023

(10th Cir. 2011) (alterations and internal quotation marks omitted). We are

concerned here with constitutional mootness, and our review is de novo, id.

at 1023 n.14.

Several circuits that have considered the effect of § 1429 on federal district

court jurisdiction over petitions regarding naturalization have concluded that § 1429

does not strip jurisdiction, agreeing that the plain terms of the statute prohibit only

the Attorney General (now the Secretary of Homeland Security, see note 3, supra)

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from considering a naturalization application when removal proceedings are pending

against an alien. See Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254,

258 (3d Cir. 2012); Bellajaro v. Schiltgen, 378 F.3d 1042, 1046 (9th Cir. 2004);

Zayed v. United States, 368 F.3d 902, 906 (6th Cir. 2004). The Second and Fifth

Circuits have not decided the jurisdictional issue but instead have assumed that

§ 1429 does not divest the district court of jurisdiction over a petition filed under

8 U.S.C. § 1447(b), which grants jurisdiction to the district courts over petitions for

review when the agency takes more than 120 days to issue a determination on a

naturalization application.4 See Ajlani v. Chertoff, 545 F.3d 229, 237-38 & n.7

(2d Cir. 2008); Saba-Bakare v. Chertoff, 507 F.3d 337, 340 (5th Cir. 2007).5

Of these circuits, four—the Second, Fifth, Sixth, and Ninth—have held that

§ 1429 nonetheless precludes district courts from granting relief if removal

proceedings are pending, although none expressly rested its disposition on any

4 Section 1447(b), titled “Request for hearing before district court,” provides:

If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.

5 Although Ajlani and, in relevant part, Saba-Bakare involved jurisdiction under § 1447(b) rather than § 1421(c), we consider their analysis relevant to the question of what effect § 1429 has on judicial review under § 1421(c).

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constitutional jurisdictional concern. The Sixth Circuit was the first circuit to

address the issue, concluding in Zayed v. United States that “the restraints that § 1429

imposes on the Attorney General prevent a district court from granting effective

relief under § 1421(c) so long as removal proceedings are pending.” 368 F.3d at 906.

Because “the exclusive power to naturalize aliens rests with the Attorney General”

and “§ 1429 bars the use of that power while removal proceedings are pending,” the

court concluded that “the district court could not properly have ordered the Attorney

General to grant Ms. Zayed’s application for naturalization.” Id. The court also

considered whether any request for declaratory relief that Ms. Zayed might have

made regarding her prima facie eligibility for naturalization might be relevant to a

motion to terminate removal proceedings under 8 C.F.R. § 1239.2(f). The court

concluded that such a request “might well have been a vain act,” id., recognizing that,

although the regulation permits an immigration judge to terminate removal

proceedings in order “to permit the alien to proceed to a final hearing on a pending

application or petition for naturalization,” 8 C.F.R. § 1239.2(f), Ms. Zayed had

“already had a final hearing on her application.” Zayed, 368 F.3d at 907.

The Ninth Circuit was the next circuit to address the issue. In Bellajaro v.

Schiltgen, the agency denied a naturalization application on the ground that removal

proceedings were pending. 378 F.3d at 1046. The Ninth Circuit concluded that

under § 1429, the district court could review that basis for the denial, which was

indisputably correct, but § 1429 precluded the district court from reviewing the

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merits of the application and determining in the first instance whether Mr. Bellajaro

was entitled to naturalization. Id. The court also rejected the argument that the

district court could declare him “eligible for naturalization but for the pendency of

removal proceedings” in order to “buttress a request that he would like to renew

before the agency to terminate removal proceedings [under 8 C.F.R. § 1239.2(f)] so

that his application for naturalization may be considered on the merits.” Id. at 1047

(emphasis omitted). The court concluded that even though a decision by the Board of

Immigration Appeals (BIA) permitted prima facie eligibility for naturalization to be

established by a judicial declaration, see In re Cruz, 15 I. & N. Dec. 236, 237

(BIA 1975), the BIA could not “confer jurisdiction on federal courts, or enlarge the

scope of review, beyond that granted by Congress.” Bellajaro, 378 F.3d at 1046.

The Fifth Circuit was next to consider this issue. In Saba-Bakare v. Chertoff,

the Fifth Circuit reasoned that invoking jurisdiction under §1447(b) “would be futile”

because § 1429 requires an alien to “wait until the termination of the removal

proceeding before either a district court or the USCIS entertains a question regarding

[a] naturalization application.” 507 F.3d at 340. The court also noted that in light of

a 1990 amendment to § 1421 that moved the sole authority to naturalize aliens from

the federal courts to the Attorney General, the BIA’s earlier decision in “Matter of

Cruz indicates that only an affirmative communication from the USCIS may establish

prima facie eligibility.” Id. at 341. Hence, the court said, Cruz provided no basis for

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a declaratory judgment by the district court as to Mr. Saba-Bakare’s prima facie

eligibility for naturalization. Id.

Following on these cases, the Second Circuit took up the issue in Ajlani v.

Chertoff, concluding that Mr. Ajlani failed to state a claim for relief under § 1447(b)

because § 1429 prohibited the district court from remanding the matter to the agency

with “appropriate” instructions “to admit Ajlani to citizenship in advance of the

completion of . . . removal proceedings.” 545 F.3d at 239. The court further

determined that, under § 1447(b), the district court could not issue an order of

naturalization in lieu of the agency because “Congress did not contemplate judicial

orders of naturalization under circumstances where Congress has called an explicit

statutory halt to the executive’s ability to give any further consideration to an alien’s

naturalization application until removal proceedings end.” Id. at 240.6

The only circuit to reach a contrary conclusion is the Third Circuit in

Gonzalez v. Secretary of Department of Homeland Security, a case that was decided

during the briefing of this appeal. In Gonzalez, the court concluded that § 1429 does 6 The Fourth Circuit appears aligned with the Second, Fifth, Sixth, and Ninth Circuits on the preclusive effect § 1429 has on judicial review, although its view appears in a different context and is likely dictum. Interpreting 8 C.F.R. § 1239.2(f), the Fourth Circuit concluded that the Department of Homeland Security (DHS) has sole authority to determine prima facie eligibility for naturalization under § 1239.2(f). Barnes v. Holder, 625 F.3d 801, 806 (4th Cir. 2010). The court rejected an argument that this interpretation of the regulation deprived the alien of his right to judicial review under § 1421(c). Id. Citing Zayed and Bellajaro, the court stated that under § 1429, “an alien in removal proceedings does not have a right to have his application adjudicated [by the agency],” and therefore “he cannot possibly have a right to have the adjudication judicially reviewed.” Id. at 806-07.

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not preclude district courts from granting declaratory relief regarding the denial of a

naturalization application. 678 F.3d at 259-61. The Third Circuit reasoned that

“[d]eclaratory relief strikes a balance between the petitioner’s right to full judicial

review as preserved by § 1421(c) and the priority of removal proceedings enshrined

in § 1429.” Id. at 260. The court also opined that

[d]eclaratory relief, in the form of a judgment regarding the lawfulness of the denial of naturalization, permits the alien a day in court, as required by § 1421(c), while not upsetting the priority of removal over naturalization established in § 1429 because it affects the record for—but not the priority of—removal proceedings, thereby preserving both congressionally mandated goals, a de novo review process and the elimination of the race to the courthouse.

Id. at 261.

We agree with the shared conclusion of the Third, Sixth, and Ninth Circuits

that § 1429 does not strip district courts of jurisdiction over petitions regarding

naturalization applications. Plainly, the statutory prohibition refers only to the

Attorney General (read: the Secretary of Homeland Security). We also agree with the

majority view of the Second, Fifth, Sixth, and Ninth Circuits that removal

proceedings, whether in process at the time a § 1421(c) petition is filed or initiated

thereafter, effectively bar federal consideration of § 1421(c) petitions by virtue of

§ 1429.7 However, our conclusion as applied to Mr. Awe rests on the doctrine of

7 Because only a § 1421 petition is at issue here, any statements we might make about § 1447(b) petitions would be dicta. We therefore confine our ensuing discussion to the § 1421 petition at issue in this case.

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constitutional mootness, not whether there has been a failure to state a claim upon

which relief can be granted.8

As we aptly summarized in Jordan v. Sosa, the doctrine of constitutional

mootness requires that a “controversy must remain alive at the trial and appellate

stages of the litigation.” 654 F.3d at 1024 (internal quotation marks omitted). The

focus is on “whether conclusive relief may still be conferred by the court despite the

lapse of time and any change of circumstances that may have occurred since the

commencement of the action.” Id. (internal quotation marks omitted). To avoid

mootness, a case must be “amenable to specific relief.” Id. (emphasis and internal

quotation marks omitted).

The initiation of removal proceedings against Mr. Awe rendered his § 1421(c)

petition moot. A ruling by the district court ordering the USCIS to grant Mr. Awe’s

naturalization application, which was the substantive focus of his prayer for relief,

would be ineffective because of § 1429’s prohibition on agency action during the

pendency of removal proceedings. Thus, the initiation of removal proceedings

constituted a “change of circumstances” that precluded any “conclusive” or “specific

relief” by the district court. Id.

8 We likely would reach the same conclusion if Mr. Awe had filed his petition after the initiation of removal proceedings, as was the case in Bellajaro, Saba-Bakare, and Gonzalez, but under the redressability component of an Article III standing inquiry, not constitutional mootness. See Tandy, 380 F.3d at 1283 (listing elements of standing, including that “it is likely, as opposed to merely speculative, that [a plaintiff’s] injury will be redressed by the relief requested”).

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Furthermore, on these facts, we do not discern the applicability of any

recognized exceptions which would preclude our determination that the case is moot.

This is not an instance where defendants have voluntarily ceased the offending

conduct. See id. at 1037 (describing voluntary-cessation exception to mootness).

Nor is it one where defendants’ challenged conduct is capable of repetition yet would

evade review. That exception to mootness, which is used only “in exceptional

situations,” id. at 1035 (internal quotation marks omitted), requires its proponent to

show, “outside of the class-action context,” that “the challenged action was in its

duration too short to be fully litigated prior to its cessation or expiration” and that

“there is a reasonable expectation that the same complaining party will be subjected

to the same action again.” Id. at 1035 (brackets and internal quotation marks

omitted). The reason Mr. Awe’s § 1421(c) petition is moot is because of the effect

§ 1429 has on the agency’s ability to consider his naturalization application, not

because of any durational characteristic of defendants’ action.

And although he did not ask for declaratory relief, such relief also would

succumb to mootness. “[W]here a plaintiff seeks a declaratory judgment against his

opponent, he must assert a claim for relief that, if granted, would affect the behavior

of the particular parties listed in his complaint.” Id. at 1025. Plainly, a declaration

by the district court that Mr. Awe met all the requirements for naturalization could

not affect the behavior of the Secretary of Homeland Security because § 1429 bars

her from acting. And to the extent Mr. Awe might seek a judicial declaration as to

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his prima facie eligibility for naturalization for purposes of terminating his removal

proceedings under 8 C.F.R. § 1239.2(f), his case is procedurally analogous to Zayed:

he has no pending naturalization application, so the regulation does not afford a basis

for an immigration judge to terminate removal proceedings. See Zayed, 368 F.3d

at 906-07. Hence, a declaration regarding prima facie eligibility would not ultimately

affect the behavior of any of the parties listed in Mr. Awe’s complaint.9

Finally, to the extent Mr. Awe suggests that the Secretary of Homeland

Security can avoid judicial review under § 1421(c) by initiating removal proceedings

after the denial of a naturalization application, we are not at liberty to cast aside

jurisdictional requirements of the Constitution or the statutory bar of § 1429. This

concern is appropriately addressed to Congress. See Saba-Bakare, 507 F.3d at 341

(stating that equitable concerns regarding statutory framework of naturalization and

immigration proceedings “should be addressed to Congress”).

9 We note, without expressing an opinion on the matter, the BIA’s post-Cruz conclusion that, in light of the passage of § 1421(a) in 1990, federal courts no longer have authority to provide declarations of prima facie eligibility; that power “lies exclusively with the DHS.” In re Hidalgo, 24 I. & N. Dec. 103, 105-06 (BIA 2007).

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III. Conclusion

The judgment of the district court is VACATED, and the matter is

REMANDED with instructions to dismiss the action without prejudice for lack of

jurisdiction.

Entered for the Court Jerome A. Holmes Circuit Judge

IN THE UNITED STATES DISTRICT COURT FOR THENORTHERN DISTRICT OF OKLAHOMA

AHMED AWE, ))

Plaintiff, ))

vs. ) Case No. 10-CV-323-TCK-FHM)

JANET NAPOLITANO, Secretary, U.S. )Department of Homeland Security; EMILIO )GONZALEZ, Director, U.S. Citizenship and )Immigration Services, and JOSE OLIVARES, )Field Office Director, USCIS, )

)Defendants. )

OPINION AND ORDER

Before the Court is Defendants’ Motion to Dismiss (Doc. 7).

I. Background

Plaintiff Ahmed Awe (“Awe”) has been a lawful permanent resident of the United States

since November 21, 1968. On July 11, 1976, when Awe was eighteen years old, he was arrested for

burglary and received a deferred two-year sentence. Approximately two and a half years later, on

February 4, 1978, Awe was arrested for “drunkenness.” This charge was later dismissed. On

September 16, 1983, Awe was arrested for possession of marijuana with intent to distribute,

possession of cocaine, and maintenance of a house where drugs were kept/sold. Awe entered a

guilty plea to these charges and was sentenced to three years imprisonment. Two months later, Awe

was arrested for unlawfully possessing a controlled drug, but this charge was dismissed. Awe

subsequently received a pardon from the Governor of Oklahoma for the offenses carrying prison

time.

On June 27, 2007, Awe filed an Application for Naturalization (Form N-400)

(“Application”) on the basis that he had been a lawful permanent resident of the United States for

more than five years and was otherwise eligible for naturalization. Awe appeared for examination

on the Application on June 17, 2008. During the examination, Awe alleges that he disclosed his

1983 arrest for drug charges and provided a Tulsa Police Department Criminal History letter, which

showed the arrests prior to 1983. On August 28, 2009, Awe received notice that he was ineligible

for naturalization because of his arrest record and his purported failure to disclose his arrests as a

teenager.

Awe filed a Request for Hearing on a Decision in Naturalization Proceedings (Form N-336),

seeking review of the denial of his bid for naturalization before the United States Citizenship and

Immigration Services (“USCIS”). On January 26, 2010, USCIS upheld its original decision to deny

Awe’s Application, citing “poor moral character” and his prior arrest record as the basis for the

denial. On May 20, 2010, Awe filed a Petition for Review of Denial of Naturalization Application

(“Petition”) before this Court pursuant to 8 U.S.C. 1421(c), requesting a de novo hearing on his

Application and that the Court remand the matter to Defendants with an instruction to grant the

Application. (Pet. §§ II, VI.) Awe maintains his Application should be granted because he “is a

person of good moral character within the meaning of 8 U.S.C. § 1427[,] is otherwise eligible for

naturalization[,] has not been arrested or charged with any offense during the statutory period[,] [and

his Application] cannot be denied solely on the basis of his criminal record from 1983 (and before).”

(Pet. § V, ¶ 20.)

On August 27, 2010, approximately three months after Awe filed his Petition, the United

States Department of Homeland Security issued a Notice to Appear, and Awe was placed in removal

proceedings. (See Notice to Appear, Ex. 1 to Defs.’ Mot. to Dismiss.) Specifically, the Notice to

Appear states that Awe is “subject to removal from the United States” pursuant to the following:

2

Section 237(a)(2)(B)(I) of the Immigration and Nationality Act, as amended, in that,at any time after admission, you have been convicted of a violation of (or aconspiracy or attempt to violate) any law or regulation of a State, the United States,or a foreign county relating to a controlled substance (as defined in Section 102 ofthe Controlled Substances Act, 21 U.S.C. 802), other than a single offense involvingpossession for one’s own use of 30 grams or less of marijuana.

(Id. at 2.) Defendants now seek to dismiss Awe’s Petition pursuant to Federal Rule of Civil

Procedure 12(b)(1) (“Rule 12(b)(1)”), arguing that the filing of removal proceedings against Awe

divested this Court of jurisdiction to hear Awe’s Petition. Alternatively, Defendants move to

dismiss Awe’s Petition pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) for

failure to state a claim because this Court cannot provide effective relief to Awe.

II. Motion to Dismiss Standards

Federal courts are courts of limited jurisdiction and may exercise jurisdiction only when

specifically authorized to do so. Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994). “A court

lacking jurisdiction must dismiss the cause at any stage of the proceedings in which it becomes

apparent that jurisdiction is lacking.” Scheideman v. Shawnee County Bd. of County Comm’rs, 895

F. Supp. 279, 280 (D. Kan. 1995). The party seeking to invoke a federal court’s jurisdiction sustains

the burden of establishing that such jurisdiction is proper. Winnebago Tribe of Neb. v. Kline, 297

F. Supp. 2d 1291, 1299 (D. Kan. 2004). When federal jurisdiction is challenged, plaintiff bears the

burden of showing why the case should not be dismissed. Id.

Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take one

of two forms. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). “First, a

moving party may make a facial attack on the complaint’s allegations as to the existence of subject

matter jurisdiction.” Id. “In reviewing a facial attack, the district court must accept the allegations

3

in the complaint as true.” Id. “Second, a party may go beyond allegations contained in the

complaint and challenge the facts upon which subject matter jurisdiction is based.” Id. In reviewing

a factual attack, a court “may not presume the truthfulness of the complaint’s factual allegations,

[but] has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to

resolve disputed jurisdictional facts.’” Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).

In the instant case, Defendants’ Rule 12(b)(1) motion does not challenge the facts as alleged in the

Petition and therefore represents a facial attack to Plaintiff’s Petition. See Rahman v. Napolitano,

No. 09-3437, 2010 WL 2777271, at *2 (6th Cir. July 13, 2010) (construing defendants’ Rule

12(b)(1) motion to dismiss, which argued petition should be dismissed pending removal

proceedings, as facial attack).

In considering a motion to dismiss under Rule 12(b)(6), a court must determine whether the

plaintiff has stated a claim upon which relief may be granted. The inquiry is “whether the complaint

contains ‘enough facts to state a claim to relief that is plausible on its face.’” Ridge at Red Hawk,

LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544)). In order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must “‘nudge [ ]

[his] claims across the line from conceivable to plausible.’” Schneider, 493 F.3d at 1177 (quoting

Twombly, 550 U.S. at 570). Thus, “the mere metaphysical possibility that some plaintiff could prove

some set of facts in support of the pleaded claims is insufficient; the complaint must give the court

reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these

claims.” Schneider, 493 F.3d at 1177.

The Tenth Circuit has interpreted “plausibility,” the term used by the Supreme Court in

Twombly, to “refer to the scope of the allegations in a complaint” rather than to mean “likely to be

4

true.” Robbins v. Okla. ex rel. Okla. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008).

Thus, “if [allegations] are so general that they encompass a wide swath of conduct, much of it

innocent, then the plaintiffs have not nudged their claims across the line from conceivable to

plausible.” Id. (internal quotations omitted). “The allegations must be enough that, if assumed to

be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Id. “This requirement

of plausibility serves not only to weed out claims that do not (in the absence of additional

allegations) have a reasonable prospect of success, but also to inform the defendants of the actual

grounds of the claim against them.” Id. at 1248. In addition, the Tenth Circuit has stated that “the

degree of specificity necessary to establish plausibility and fair notice, and therefore the need to

include sufficient factual allegations, depends on context,” and that whether a defendant receives

fair notice “depends on the type of case.” Id.

III. Relevant Law Regarding Naturalization and Removal

“Before 1990, naturalization authority and removal authority were vested in different

branches of government, with naturalization being the province of the courts and removal the

province of the executive acting through the Attorney General.” Ajlani v. Chertoff, 545 F.3d 229,

235 (2d Cir. 2008) (internal citations omitted). This system made it possible for naturalization and

removal proceedings to proceed simultaneously, which would sometimes give rise to a race

“between the alien to gain citizenship and the Attorney General to deport him.” Id. (citing

Shomberg v. United States, 348 U.S. 540, 544 (1955)). In 1990, however, Congress amended the

Immigration and Nationality Act (“INA”) so to “unif[y] naturalization and removal authority in the

executive.” Ajlani, 545 F.3d at 236. Specifically, Congress gave the Attorney General the “sole

authority to naturalize persons as citizens of the United States.” 8 U.S.C. § 1421(a). Congress

5

limited the Attorney General’s authority in 8 U.S.C. § 1429 (“Section 1429”), however, which

provides in relevant part:

[N]o person shall be naturalized against whom there is outstanding a final finding ofdeportability pursuant to a warrant of arrest issued under the provisions of thischapter or any other Act; and no application for naturalization shall be consideredby the Attorney General if there is pending against the applicant a removalproceedings pursuant to a warrant of arrest issued under the provisions of thischapter or any other Act. . . .

8 U.S.C. § 1429.

The 1990 amendments also reserved “a measure of naturalization jurisdiction for the courts

in two circumstances: denial and delay.” Ajlani, 545 F.3d at 236. Pursuant to 8 U.S.C. § 1421(c)

(“Section 1421”), which forms the basis for Awe’s Petition,

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

Similarly, if “there is a failure to make a determination” on the naturalization application within 120

days after the applicant’s required examination, the alien can ask the district court “for a hearing on

the matter.” 8 U.S.C. § 1447(b) (“Section 1447(b)”). The district court may then “either determine

the matter or remand the matter.” Id.

Defendants cite Section 1429 in support of their Motion to Dismiss, arguing that it mandates

dismissal of Awe’s Petition because (1) the filing of removal proceedings divested this Court of

jurisdiction to hear Plaintiff’s Petition, and (2) the Court cannot grant effective relief to Plaintiff

because it cannot order the Attorney General to do something which is precluded by the mandate

of Section 1429. Awe objects, first citing this Court’s authority to review naturalization decisions

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under Section 1421(c). Awe additionally contends that Section 1429 fails to explicitly divest this

Court of jurisdiction, as it only states that the “Attorney General” is unable to consider an

application for naturalization during the pendency of removal proceedings. Finally, Awe argues that

when, like here, the removal proceedings are initiated after a petition is filed, the district court

retains all authority and jurisdiction to grant the requested relief.

IV. Discussion

The issue before the Court is whether Section 1429, which limits the Attorney General’s

power to consider naturalization petitions during the pendency of removal proceedings, similarly

limits a district court’s jurisdiction to review naturalization petitions and/or leaves a petitioner

without any effective remedy from the district court. The Tenth Circuit has yet to address this

specific issue, and the Court must therefore look to other circuits for guidance. In so doing, it

becomes apparent that there exists a split in authority, as courts confronted with this issue have

adopted one of two prevailing views. Some district court decisions, which are relied upon by Awe,

have rejected the arguments advanced by Defendants and held that Section 1429 precludes only the

Attorney General from considering a petition for naturalization by an alien against whom removal

proceedings are pending and does nothing to affect the district court’s jurisdiction or remedies

available to it. See Gonzalez v. Napolitano, 684 F. Supp. 2d 555, 560-63 (D.N.J. 2010); Kestelboym

v. Chertoff, 538 F. Supp. 2d 813, 818 (D.N.J. 2008); Grewal v. Ashcroft, 301 F. Supp. 2d 692, 695-

97 (N.D. Ohio 2004); Saad v. Barrows, No. 03-1342, 2004 WL 1359165, at *5-6 (N.D. Tex. June

16, 2004); Ngwana v. Attorney Gen., 40 F. Supp. 2d 319, 321-22 (D. Md. 1999). These courts

generally rely on the plain language of Section 1429 and reason that if Section 1429 divested district

courts of authority to review denials of naturalization applications, the Immigration and

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Naturalization Service (“INS”) could effectively circumvent judicial review of naturalization

applications by initiating removal proceedings. See Gonzalez, 684 F. Supp. 2d at 560-61;

Kestelboym, 538 F. Supp. 2d at 818; Grewal, 301 F. Supp. 2d at 696-97; Ngwana, 40 F. Supp. 2d

at 321-22.

In contrast, the Second, Fifth, and Sixth Circuits have dismissed petitions seeking review

of a naturalization decision when removal proceedings are pending, holding that said proceedings

limit the court’s review pursuant to Section 1421 or Section 1427 and circumscribe the availability

of effective remedies. See Ajlani, 545 F.3d at 239-241 (holding that the priority afforded removal

proceedings by Section 1429 limits the courts’ authority to grant naturalization pursuant to Section

1421 or Section 1427) (“[W]e think district court authority to grant naturalization relief while

removal proceedings are pending cannot be greater than that of the Attorney General.”) (finding that

district court properly dismissed plaintiff’s request for review of naturalization application for failure

to state a claim); Saba-Bakare v. Chertoff, 507 F.3d 337, 340 (5th Cir. 2007) (stating that “[Section

1429] requires that [plaintiff] wait until the termination of the removal proceeding before either a

district court or the USCIS entertains a question regarding his naturalization application”) (affirming

district court’s dismissal of petition seeking de novo review of naturalization application pursuant

to Section 1421(c)); Zayed v. United States, 368 F.3d 902, 906-07 (6th Cir. 2004) (“The effect of

[Section 1429], in our view, is to limit the scope of the court’s review and circumscribe the

availability of effective remedies, but not to oust the district court of jurisdiction.”) (“[T]he restraints

that [Section 1429] imposes upon the Attorney General prevent a district court from granting relief

under [Section1421(c)] so long as removal proceedings are pending.”) (affirming district court’s

dismissal of plaintiff’s petition for review of naturalization application); see also De Lara Bellajaro

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v. Schiltgen, 378 F.3d 1042, 1048 (9th Cir. 2004) (citing Zayed with approval); see also Rahman,

2010 WL 2777271, at *543 n. 4 (following Zayed and noting that district court opinions going other

way are “against the weight of appellate authority”).

The Court agrees with this appellate authority. While the text of Section 1429 does not

explicitly divest this court of jurisdiction during the pendency of removal proceedings, see 8 U.S.C.

§ 1429 (stating “no application for naturalization shall be considered by the Attorney General if

there is pending against the applicant a removal proceedings”); Zayed, 368 F.3d at 906 (finding that

Section 1429 “simply has no bearing on the district court’s jurisdiction to review the administrative

denial of a naturalization application of an alien against whom removal proceedings have been

initiated”), it necessarily “circumscribes the availability of effective remedies,” Zayed, 368 F.3d at

906. Specifically, even if the Court were to conduct a de novo review of the decision to deny Awe’s

naturalization application, and even if the Court were to determine that the decision was in error, the

Court cannot grant Awe the relief he seeks. “The exclusive power to naturalize aliens rests with the

Attorney General, . . . and [Section 1429] bars the use of that power while removal proceedings are

pending.” Id. (additionally noting the “district court could not properly have entered an order

granting the application without reference to the Attorney General [since] Congress . . . decided that

it would be the Attorney General who should have ‘sole authority to naturalize persons’”) (citing

8 U.S.C. § 1421(a)). Therefore, because Section 1429 precludes the Attorney General from granting

naturalization to Awe due to the pending removal proceedings, Awe cannot currently secure such

relief from this Court. Ajlani, 545 F.3d at 238 (noting same); see Zayed, 368 F.3d at 906 n.5

(questioning holding in Ngwana, 40 F. Supp. 2d at 322, where district court ordered INS to grant

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application for naturalization despite removal proceedings, by stating “[w]e are something of a loss

. . . to understand how judicial fiat can overcome the statutory bar of [Section 1429]”).

Further, the Court is not persuaded by Awe’s argument that the timing of the removal

proceedings, which were initiated after he filed suit in this Court, necessitates rejection of

Defendants’ Motion to Dismiss. While the Court notes Awe’s concern that under the current

statutory regime, the Government might initiate removal proceedings simply to obstruct judicial

consideration of naturalization applications, this concern is most appropriately addressed to

Congress, and not this Court. See Saba-Bakare, 507 F.3d at 341 (noting that equitable concerns

regarding statutory framework governing immigration and naturalization should be addressed to

Congress). Further, both the Sixth and Fifth Circuits dismissed petitions under similar

circumstances – namely, where the removal proceedings were initiated after the plaintiff filed for

relief in district court. See Zayed, 368 F.3d at 904, 907 (removal proceedings commenced a “few

weeks” after plaintiff filed petition for review with district court) (“Regardless of when removal

proceedings are initiated, the Attorney General may not naturalize an alien while such proceedings

remain pending.”); Ajlani, 545 F.3d at 232, 238 (noting that, like in Zayed, removal proceedings

were initiated after plaintiff filed for judicial relief) (plaintiff filed suit on October 30, 2006 and

removal proceedings formally commenced on December 20, 2006) (finding that district court could

not grant relief to plaintiff pending said removal proceedings).

Therefore, for the reasons outlined herein, the Court finds that Awe’s petition is subject to

dismissal without prejudice for failure to state a claim upon which relief can be granted.1 Zayed,

1 Because the Court finds that Section 1429 does nothing to divest this Court of itsjurisdiction, the Court finds dismissal appropriate under Rule 12(b)(6), and not Rule 12(b)(1).

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368 F.3d at 906-07 (“We believe that the dismissal [without prejudice] of [plaintiff’s] petition for

review must be affirmed. The fact that the statute precludes the relief sought requires this result.”);

Ajlani, 545 F.3d at 241 (affirming dismissal for failure to state a claim upon which relief could be

granted).

V. Conclusion

For the reasons outlined herein, Defendants’ Motion to Dismiss (Doc. 7) is GRANTED and

this matter is dismissed without prejudice. A Judgment of Dismissal will be issued forthwith.

IT IS SO ORDERED this 6th day of September, 2011.

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