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ZHAI v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES

September 3, 2004.

YAOBIN ZHAI, Petitioner,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Respondents.



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

ORDER GRANTING IN PART AND DENYING IN PART RESPONDENTS' MOTION TO DISMISS; DIRECTING PARTIES TO SHOW CAUSE WHY MATTER SHOULD NOT BE REMANDED TO DEPARTMENT OF HOMELAND SECURITY; VACATING HEARING
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.

BACKGROUND

  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.)

  DISCUSSION

  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 ...


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