United States District Court, N.D. California, San Jose Division
ORDER ON DEFENDANT'S MOTION TO DISMISS RE: DKT.
R. LLOYD UNITED STATES MAGISTRATE JUDGE
Li Zhang (“Zhang”) sues the United States
Citizenship and Immigration Services (“USCIS”) to
appeal the denial of her naturalization application. All
parties have consented to proceed before a magistrate judge.
Dkt. Nos. 10, 16.
moves to dismiss Zhang's complaint for failure to state a
claim upon which relief can be granted. Dkt. No. 14. Zhang,
who is proceeding in forma pauperis but is
represented by counsel, did not oppose the motion. After
concluding that the motion may be resolved without a hearing,
Civil L.R. 7-1(b), and for the reasons explained below, the
Court grants the motion.
complaint alleges the following facts, which the Court must
accept as true. Zhang is a native and citizen of China who
currently lives in Milpitas, California. Compl. ¶¶
7, 18, Dkt. No. 1. After receiving lawful permanent resident
status through her American husband and living in the U.S.
for over five years, Zhang applied for naturalization.
Id. ¶¶ 19-20, 28. After much delay, USCIS
denied her application. Id. ¶¶ 22-26.
Zhang appealed, but USCIS affirmed the denial. Id.
denied Zhang's application because she never legally
divorced her first husband. Id. ¶ 28. Zhang was
originally married to a non-U.S. citizen, whom she divorced
before marrying her second husband, a U.S. citizen.
Zhang's second husband sponsored her successful
application for permanent resident status. Id.
Unfortunately for Zhang, USCIS determined that
“Plaintiff's divorce prior to her application for
adjustment of status through marriage with U.S. citizen was
invalid and thus her resulting permanent residence was
invalid.” Id. USCIS determined that Zhang
should never have been granted permanent resident status, so
she could not meet all of the prerequisites for
at least implicitly acknowledges that her divorce was not
valid. Although she alleges in her complaint that she
“meets all of the requirements and criteria for
naturalization, ” id. ¶ 32, she later
says that “[e]ven if Plaintiff's previous divorce
was not valid, it does not affect the validity of her
permanent residence which has been granted for years, ”
id. ¶ 33. “It was not Plaintiff's
fault, ” she adds. Id. ¶34. “She
did not present false documents . . . [or] make any
misrepresentation to Defendant.” Id.
“The law authorized Defendant to deny an application
for adjustment of status [from conditional permanent resident
to lawful permanent resident] if the underlying marriage is
invalid. However, Defendant was not authorized to revoke a
permanent residence due to his own mistake.”
Id. ¶ 35.
8(a)(2) of the Federal Rules of Civil Procedure requires a
complaint to include “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” A complaint that fails to meet this standard
may be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(6). To survive a 12(b)(6) motion, a complaint must
allege “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). When considering a
motion to dismiss, a court accepts all of the plaintiff's
factual allegations as true and construes the pleadings in
the light most favorable to the plaintiff. Manzarek v.
St. Paul Fire & Marine Insurance Co., 519 F.3d 1025,
1031 (9th Cir. 2008). However, a court will not assume the
truth of legal conclusions, even if they are cast in the form
of factual allegations. Fayer v. Vaughn, 649 F.3d
1061, 1064 (9th Cir. 2011). When dismissing a complaint for
failure to state a claim, “a district court should
grant leave to amend even if no request to amend the pleading
was made, unless it determines that the pleading could not
possibly be cured by the allegation of other facts.”
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)
acknowledges that the divorce from her first husband was not
legal, but she insists that should not affect whether she
qualifies for naturalization. The Court disagrees.
alien petitioning for naturalization bears the burden of
showing that she is eligible “in every respect”
to become a United States citizen. Berenyi v. District
Director, Immigration & Naturalization Service, 385
U.S. 630, 637 (1967). “[T]here must be strict
compliance with all the congressionally imposed prerequisites
to the acquisition of citizenship.” Fedorenko v.
United States, 449 U.S. 490, 506 (1981). Among other
requirements, an applicant must prove that she was
“lawfully admitted to the United States for permanent
residence.” 8 U.S.C. § 1429; 8 C.F.R. §
316.2(a)(2). “The term ‘lawfully' denotes
compliance with substantive legal requirements, not mere
procedural regularity . . . .” Monet v.
I.N.S., 791 F.2d 752, 753 (9th Cir. 1986) (quoting
In re Longstaff, 716 F.2d 1439, 1441 (5th Cir. 1983)).
An applicant is not lawfully admitted if she obtains
permanent resident status through fraud “or had
otherwise not been entitled to it.” In Re
Koloamatangi, 23 I. & N. Dec. 548, 550 (BIA 2003)
(citing Monet, 791 F.2d at 752). Even if the
applicant's conduct is innocent and the government awards
permanent resident status by mistake, that status is
nevertheless not lawful. Segura v. Holder, 605 F.3d
1063, 1067 (9th Cir. 2010).
that Zhang admits that her divorce was invalid, see
Compl. ¶ 33, she can never meet her burden of proving
“strict compliance” with all the prerequisites of
citizenship. Fedorenko, 449 U.S. at 506. Her
defective divorce means that her putative marriage to her
second husband is invalid for immigration purposes. See,
e.g., Matter of Hosseinian, 19 I. & N. Dec. 453, 455
(BIA 1987) (affirming naturalization denial where petitioner
obtained permanent resident status through putative marriage
after invalid divorce). As a result, Zhang obtained permanent
resident status unlawfully. The “unlawful” label
applies regardless of whether Zhang committed fraud; she was
required to meet all of the “substantive legal
requirements” of permanent resident status, which in
this case included a valid marriage to ...