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United States District Court, N.D. California

September 3, 2004.

YAOBIN ZHAI, Petitioner,

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

Before the Court is the motion of respondents United States Citizenship and Immigration Services, Tom Ridge, Eduardo Aguirre, David N. Still, and the United States Department of Homeland Security to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Yaobin Zhai's petition for review of the denial of his naturalization application. Petitioner has filed opposition, to which respondents have replied. Having considered the papers filed in support of and in opposition to the motion, the Court deems the matter appropriate for decision on said submissions, VACATES the hearing scheduled for September 10, 2004, and rules as follows.


  Petitioner alleges the following facts, which the Court assumes true for the purposes of the instant motion. On June 17, 1992, petitioner became a lawful permanent resident. (See Pet. ¶ 11.) On July 16, 1997, petitioner was convicted of criminal copyright infringement. (See Pet. ¶ 19.) As of July 13, 1999, petitioner's term of supervision expired, and petitioner was no longer obligated to report to the United States Probation Office. (See Pet. ¶ 24.)

  On September 17, 2001, the Immigration and Naturalization Service ("INS") denied a naturalization application submitted by petitioner, on the ground "insufficient time" had passed in order for petitioner to "establish reformation" and meet his burden of establishing "good moral character." (See Pet. ¶ 23.) The denial was without prejudice to petitioner's filing a new application when petitioner became "eligible." (See id.)

  On August 7, 2002, petitioner filed a new application. (See Pet. ¶ 12.) On April 7, 2003, an officer of the Department of Homeland Security ("DHS") conducted an interview to determine petitioner's eligibility for naturalization. (See Pet. ¶ 14.) After the DHS officer completed the interview, the officer gave petitioner a document indicating petitioner had passed the English, history and government tests, and directing petitioner to submit proof of child support payments no later than May 6, 2003. (See id.) The document also stated that a decision on the application would not be made until completion of an FBI check. (See id.)

  Sometime thereafter, petitioner departed the United States to visit China. (See Pet. ¶ 17.) On October 20, 2003, when petitioner attempted to reenter the United States, he was "paroled into the United States for deferred inspection." (See Pet. ¶¶ 18, 20.) On November 20, 2003, the Bureau of Customs and Border Patrol ("BCBP") issued a Notice to Appear ("NTA") to place petitioner in removal proceedings, and revoked petitioner's parole. (See Pet. ¶¶ 19, 20.) The NTA alleges that petitioner is subject to removal as an alien who has been convicted of a crime involving moral turpitude. (See Pet. ¶ 21.)

  Meanwhile, on October 28, 2003, petitioner submitted to the DHS a statement from his wife in China, in which she indicated that petitioner is supporting her and their child. (See Pet. ¶ 15.)

  Based on the above facts, petitioner argues that respondents "effectively denied" his naturalization application when the BCBP issued the NTA,*fn1 and, alternatively, failed to make a decision on the application within 120 days of his naturalization examination. (See Pet. ¶ 27.) Petitioner requests that the district court conduct a hearing de novo on his naturalization application. (See Pet. ¶ 28.)


  A person seeking naturalization may file an application for naturalization with the Attorney General. See 8 U.S.C. § 1445(a). Thereafter, the DHS "shall make a determination as to whether the application should be granted or denied, with reasons therefor." See 8 U.S.C. § 1446(d).*fn2

  "If, after an examination under section 1446 of [Title 8], an application for naturalization is denied, the applicant may request a hearing before an immigration officer." 8 U.S.C. § 1447(a). "A person whose application for naturalization . . . is denied, after a hearing before an immigration officer under section 1447(a) of [Title 8], 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."*fn3 8 U.S.C. § 1421(c). "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." Id.

  "If there is a failure to make a determination under section 1446 of [Title 8] 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." 8 U.S.C. § 1447(b). The district court "may either determine the matter or remand the matter, with appropriate instructions, to the [agency] to determine the matter." See id.

  A. Motion to Dismiss

  Under the statutory scheme summarized above, a district court may consider a naturalization application where either of two circumstances pertain. First, if an application is denied by the DHS at the examination stage, and then by an immigration judge, the applicant may seek review in the district court. See 8 U.S.C. § 1421(c). Second, if there has been a failure by the DHS to make a determination on an application within 120 days of the examination, the applicant may seek review in the district court. See 8 U.S.C. § 1447(b).

  Respondents argue that petitioner has not pleaded, and cannot plead, facts to state a claim for judicial review of his application because neither the DHS nor an immigration judge has denied the application and, at the present time, the DHS is precluded from making a determination on the application. For the latter proposition, respondents rely on § 1429, which provides that "no application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act." See 8 U.S.C. § 1429.*fn4

  The Court agrees with respondents that petitioner has not pleaded, and cannot at the present time plead, the predicate denials necessary to state a claim for judicial review under § 1421(c). Simply put, there is no allegation the DHS has, in fact, denied the application. Moreover, because the agency has not denied the application, petitioner has not yet had the opportunity to seek review of any such denial before an immigration judge.

  Petitioner relies on his allegation that the DHS "effectively denied" his application when the BCBP placed him in removal proceedings. (See Pet. ¶ 27.) Petitioner's argument is not persuasive. First, the DHS could not, as of the time removal proceedings were instituted, take any action on the application. See Perdomo-Padilla v. Ashcroft, 333 F. 3d 964, 970 (9th Cir. 2003) (interpreting § 1429 as precluding INS from acting on naturalization application after removal proceedings are instituted), cert. denied, 124 S. Ct. 1041 (2004). In other words, as a result of the institution of removal proceedings, the DHS lacks the statutory authority to deny, "effectively" or otherwise, petitioner's application. Second, even if the DHS could be deemed to have "effectively" denied the application, by instituting the removal proceedings or otherwise, petitioner had not alleged that an immigration judge has considered and denied the application.

  Accordingly, the Court finds petitioner cannot, at the present time, state a claim for judicial review under § 1421(c), because neither the DHS nor an immigration judge has denied the application.

  As noted, petitioner alternatively alleges that the district court can consider the application under § 1447(b), on the ground the DHS has failed to act on the application for a period of more than 120 days following the date of his examination. The examination occurred, according to the petition, on April 7, 2003; the 120-day period thus expired on or about August 5, 2003. Because petitioner alleges that, as of January 14, 2004, the date he filed the instant petition, the DHS had yet to act on the application, petitioner is entitled to judicial review under § 1447(b). See 8 U.S.C. § 1447(b); see also De Lara Bellajaro v. Schiltgen, 378 F. 3d 1042, 1045-46 (9th Cir. 2004) (rejecting argument § 1429 has "stripp[ed] district courts of jurisdiction" to consider naturalization applications).*fn5

  Accordingly, the Court finds petitioner has stated a claim under § 1447(b), because petitioner has alleged that the DHS failed to make a determination on his application within 120 days of the date the DHS conducted the examination.

  B. Order to Show Cause

  A district court has, under § 1447(b), "the power to pursue either of two options." See United States v. Hovsepian, 359 F. 3d 1144, 1160 (9th Cir. 2004). The district court can either "determine the matter," i.e., "make a naturalization decision," or it can "remand the matter" to the DHS for determination. See id.

  As noted, petitioner alleges he is currently in removal proceedings and that no decision on the merits of his application was made before the institution of such proceedings. The Ninth Circuit has held that, in light of § 1429, "removal proceedings and final removal orders are to take precedence over naturalization proceedings." See Perdomo-Padilla, 333 F. 3d at 970. Although a district court is not entirely foreclosed from exercising jurisdiction over a naturalization application during the time a removal proceeding is pending, see De La Bellajaro, 378 F. 3d at 1046, the Court is of the view that, in light of the clear legislative intent as set forth in § 1429, it should not, in the instant case, exercise its discretion to "determine the matter."

  The Court's remaining option under § 1447(b) is to remand the matter to the DHS with instructions. It is apparent from the face of the petition that such option is particularly appropriate in the instant case. The petition indicates that petitioner is responsible, at least in part, for the DHS's "failure to make a determination" within 120 days of the examination. Specifically, petitioner failed to provide the requested documentation pertaining to child support until late October 2003, more than five months after the deadline set by the DHS and long after the 120-day period had passed. Under the circumstances, the Court is of the view the DHS should have the initial opportunity to determine whether petitioner's evidence is sufficiently responsive to the DHS's request.*fn6 In light of § 1429, however, the DHS will be unable to make such a determination until after the removal proceedings are terminated.

  Accordingly, the Court will order the parties to show cause why the instant action should not be remanded to the DHS, with instructions to consider petitioner's showing regarding child support, and to determine any other outstanding issue, after removal proceedings are terminated.


  For the reasons discussed above:

  1. Respondents' motion to dismiss is hereby GRANTED, insofar as petitioner alleges a claim under § 1421(c), and DENIED insofar as petitioner alleges a claim under § 1447(b).

  2. Any party who opposes issuance of an order remanding the above-titled action to the Department of Homeland Security, with instructions to determine the matter after completion of removal proceedings, shall, no later than September 17, 2004, show cause in writing why such order should not issue. Any such responsive filing shall not exceed ten pages in length exclusive of exhibits.

  This order terminates Docket No. 6.


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