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Shihong MA v. Chertoff

August 27, 2007

SHIHONG MA, PLAINTIFF,
v.
MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. John A. Houston United States District Judge

ORDER DENYING DEFENDANTS' MOTION TO DISMISS AND GRANTING DEFENDANTS' ALTERNATIVE MOTION TO REMAND [DOC. # 8]

INTRODUCTION

Pending before this Court is the motion of defendants Michael Chertoff, Secretary of the Department of Homeland Security; Emilio T. Gonzales, Director; and Robert S. Mueller, Director of the Federal Bureau of Investigation (collectively "defendants") to dismiss or remand the instant case. The motion has been fully briefed by the parties. After a careful consideration of the pleadings and relevant exhibits submitted, and for the reasons set forth below, this Court DENIES defendants' motion to dismiss and GRANTS defendants' alternative motion to remand.

BACKGROUND

Plaintiff Shihong Ma ("plaintiff"), a native of China and a lawful permanent resident of the United States, applied to the United States Citizenship and Immigration Services ("USCIS") for naturalization on March 23, 2006 and, on July 6, 2006, successfully passed her naturalization interview. Compl. ¶ 8; Mot., Exh. A ¶ 8.

On December 29, 2006, plaintiff was informed that USCIS could not adjudicate her application because her background check was not complete. Compl ¶ 10, Exh. 3. Plaintiff filed the instant complaint on January 4, 2007, pursuant to 8 U.S.C. § 1447(b), seeking this Court's adjudication of her naturalization application or for an order directing USCIS to immediately adjudicate her application. See Compl. ¶ 14.

On March 9, 2007, defendants moved to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted or, in the alternative, to remand the complaint to the USCIS with instructions to adjudicate plaintiff's application once her background check has been completed. Plaintiff filed an opposition to the motion on April 26, 2007 and defendants filed a reply on May 3, 2007. The motion was subsequently taken under submission without oral argument. See CivLR 7.1(d.1).

DISCUSSION

1. Legal Standard

The "sole authority to naturalize persons as citizens of the United States" rests with the Secretary of the Department of Homeland Security ("DHS"). 8 U.S.C. § 1421(a). An applicant must satisfy various requirements to qualify for citizenship and the UCSIS is required to conduct a personal investigation of the person applying for naturalization consisting, at a minimum, of a review of all pertinent records. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1. Title 8, United States Code, Section 1447(b) requires the UCSIS to grant or deny a citizenship application within 120 days after the date "on which the examination is conducted under" Section 1446. If the UCSIS fails to act upon the application within the 120 day period, the applicant may seek a hearing on the matter in federal district court. Id. Section 1447(b) provides that the district court may either (1) make its own determination of whether the requirements for citizenship have been met; or (2) remand the matter to the agency with instructions to adjudicate the application. Id.; see United States v. Hovsepian, 359 F.3d 1144, 1160 (9th Cir. 2004).

2. Analysis

a. Motion to Dismiss

Defendants initially move for dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure but present no argument or authority pursuant to that rule other than a general statement indicating plaintiff's complaint fails to state a claim upon which relief may be granted. See Mot. at 1, 3. Defendants argue that plaintiff fails to state a claim because this Court does not have enough information to decide the naturalization application at this time. Id. at 3 ("because the facts of this case do not place the district court in a position to decide the application, Plaintiff has failed to set forth a claim ..."). Although defendants adamantly dispute the instant motion seeks dismissal based on lack of subject matter jurisdiction under Rule 12(b)(1), this Court notes that defendants reference documents outside the pleadings which they contend can be properly reviewed on a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). Id. at 2 n.1; see Reply at 1. However, because this Court clearly has subject matter jurisdiction under 8 ...


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