Francois v. United States Citizenship and Immigration Services

• Court: District Court, D. Arizona
• Decided: August 4, 2021
• Docket: 2:21-cv-00071
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Sabina Carol Francois, No. CV-21-00071-PHX-JAT

10 Petitioner, ORDER

11 v.

12 United States Citizenship and Immigration Services, et al., 13 Respondents. 14 15 Pending before the Court is Defendant United States Citizenship and Immigration 16 Services’ (“the government”) Motion for Summary Judgment and Motion to Dismiss. 17 (Doc. 9). Plaintiff Sabina Carol Francois has responded (Doc. 14), the government has 18 replied (Doc. 15), and the Court now rules. 19 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 20 Plaintiff is a citizen of Trinidad and Tobago. (Doc. 1 at 3; Doc. 10 at 1). She 21 entered the United States in 1983 as a B-2 nonimmigrant visitor. (Id.). In February 1992, 22 Plaintiff married a United States citizen, Randolph Barclay. (Doc. 1 at 3; Doc. 10-3 at 41). 23 In March 1993, Barclay filed a spousal visa petition (Form I-130), and Plaintiff filed an 24 application to adjust her status to that of a lawful permanent resident (Form I-485) with 25 the Immigration and Naturalization Service (INS). (Doc. 10-3 at 4). 26 INS requested that Plaintiff produce her Form I-94 and passport to prove legal

27 1 Because Plaintiff did not file a controverting statement of facts as required by Local Rule of Civil Procedure (“LRCiv”) 56.1(b) and does not otherwise dispute the facts as 28 recited in the government’s motion, the Court accepts the facts as provided by the government. 1 entry. (Id. at 5). Plaintiff asserted to INS that her Form I-94 and passport had been stolen, 2 and she attempted to establish that she lawfully entered the United States by submitting 3 affidavits. (Id.). The INS, however, deemed the affidavits insufficient because they did 4 not clearly establish the date of her entry. (Id.). 5 Accordingly, the INS advised Francois and Barclay to withdraw their pending 6 documents and to request an immigrant visa through a U.S. consulate overseas. (Id.). In 7 July 1993, Barclay withdrew the first spousal visa petition, and Plaintiff withdrew her 8 first adjustment of status application. (Id.). In July 1994, Barclay filed a new spousal visa 9 petition, which the INS approved in August 1994. (Doc. 10-5 at 4). In December 1994, 10 Plaintiff filed a second application to adjust her status. (Id. at 5). In May 1995, the INS 11 interviewed Plaintiff and Barclay regarding the second adjustment application. (Id.). 12 In September 2000, the INS determined that Plaintiff married Barclay to evade 13 immigration laws. (Id.). Consequently, the INS issued Barclay a notice of intent to revoke 14 the approved second spousal visa petition and later revoked the petition under 15 8 U.S.C. § 1154(c). (Doc. 10-3 at 5). In July 2001, the INS denied Plaintiff’s second 16 application to adjust her status. Plaintiff and Barclay later divorced. (Id.). 17 Plaintiff subsequently married a second United States citizen, James Earl Voice. 18 (Doc. 1-2 at 4). Voice filed a spousal visa petition for Plaintiff with the United States 19 Citizenship and Immigration Services (USCIS)2 in October 2006, and Plaintiff filed a 20 third adjustment application the same day. (Id.). In July 2007, the USCIS denied Voice’s 21 petition under § 1154(c) and, consequently, denied Plaintiff’s third adjustment 22 application. (Id.). In October 2009, the Board of Immigration Appeals (BIA) vacated the 23 denial because the USCIS had failed to issue Voice a Notice of Intent to Deny before it 24 denied his petition, and the BIA remanded the matter to the USCIS for further action. 25 (Id.). In August 2010, the USCIS issued a new decision again denying Voice’s spousal 26 visa petition under § 1154(c). (Id.). 27 While proceedings related to Voice’s petition were ongoing, Plaintiff filed a

28 2 On March 1, 2003, the INS ceased to exist as an independent agency. Some of its functions were transferred to the USCIS. 1 separate application for naturalization (Form N-400) in July 2009, which the USCIS 2 ultimately rejected. Francois v. United States, No. CV-16-02936-PHX-BSB, 2017 WL 3 467976, at *2 (D. Ariz. Feb. 3, 2017). 4 After the USCIS denied Voice’s spousal visa petition in August 2010, 5 Immigration and Customs Enforcement (ICE) issued a Notice to Appear against Plaintiff 6 in February 2011, initiating removal proceedings against her. (Doc. 1-2 at 4). In 7 December 2012, an Immigration Judge (IJ) found that Plaintiff was not a lawful 8 permanent resident and was removable from the United States.3 (Id.). 9 In September 2013, Plaintiff filed an action in this Court, challenging the denial of 10 Barclay’s second spousal visa petition and Plaintiff’s second and third adjustment of 11 status applications. Francois v. Johnson, No. CV-13-01964-PHX-PGR, 2014 WL 12 1613932 (D. Ariz. Apr. 22, 2014). Plaintiff also sought an order “compelling USCIS to 13 register her status as a lawful permanent resident.” Id. at *3. The Court dismissed 14 Plaintiff’s claims for lack of subject matter jurisdiction and failure to state a claim, and in 15 June 2016, the Ninth Circuit affirmed on jurisdictional grounds. Francois v. Johnson, 667 16 F. App’x 630 (9th Cir. 2016). 17 In August 2016, Plaintiff filed a second action in this Court, “which challenge[d] 18 the same government actions and [sought] the same relief as the First Action, but 19 allege[d] a negligence action under the [Federal Tort Claims Act] in place of the 20 previously dismissed APA and declaratory relief claims.” United States, 2017 WL 21 467976, at *1 (citation omitted). The Court dismissed the second action for lack of 22 subject matter jurisdiction in February 2017. Id. Plaintiff did not appeal. 23 On January 3, 2019, Plaintiff filed another application for naturalization (the 24 “Second N-400 Application”), which the USCIS denied on February 5, 2020. (Doc. 1-2 25 at 4). Plaintiff administratively appealed, and after a hearing, the USCIS upheld the 26 denial of the Second N-400 Application on December 31, 2020 (the “Final Order”). (Doc.

27 3 In October 2015, an IJ administratively closed Plaintiff’s removal proceedings, and in January 2021, ICE filed a motion to recalendar Francois’ removal proceedings. In March 28 2021, an IJ granted ICE’s motion and set Plaintiff’s case for an individual hearing in February 2023. 1 1-2). The USCIS concluded that Plaintiff failed to demonstrate that she had been a lawful 2 permanent resident for at least five years immediately preceding the date of filing the 3 naturalization application. (Id. at 3, 6). Relying on Janjua v. Neufeld, 933 F.3d 1061 (9th 4 Cir. 2019), the USCIS noted that an IJ had already determined that Plaintiff was not a 5 lawful permanent resident and that the USCIS could not make a finding to the contrary. 6 (Id. at 6). 7 On January 15, 2021, Plaintiff filed the instant action, challenging the denial of 8 Second N-400 Application under 8 U.S.C. § 1421(c) and requesting de novo review of 9 the Final Order. (Doc. 1). Plaintiff requests that the Court, “[h]old unlawful and set aside 10 USCIS’s denial of her naturalization application as not warranted by the facts and not in 11 accordance with law,” “[d]eclare that she is prima facie eligible for naturalization,” and 12 “[g]rant naturalization to her.” (Doc. 1 at 6). 13 II. DISCUSSION 14 a. Motion to Dismiss for Lack of Jurisdiction 15 The government’s first argues that the Court lacks subject matter jurisdiction over 16 this case. The Court disagrees. 17 Under Federal Rule of Civil Procedure (“Rule”) 12(b)(1), a court must dismiss an 18 action if the court lacks jurisdiction over the subject matter of the suit. The party invoking 19 federal jurisdiction bears the burden of establishing that such jurisdiction exists. Scott v. 20 Breeland, 792 F.2d 925, 927 (9th Cir. 1986). The Court presumes a lack of jurisdiction 21 until the party asserting federal jurisdiction proves otherwise. Kokkonen v. Guardian Life 22 Ins. Co. of Am., 511 U.S. 375, 377 (1994); see Stock West, Inc. v. Confederated Tribes, 23 873 F.2d 1221, 1225 (9th Cir. 1989); Kashkool v. Chertoff, 553 F.Supp.2d 1131, 1134 24 (D. Ariz. 2008). In determining whether it has subject matter jurisdiction, a court is not 25 limited to the allegations in the complaint. See White v. Lee, 227 F.3d 1214, 1242 (9th 26 Cir. 2000). Rather, the court may look beyond the complaint to extrinsic evidence, 27 without converting the motion to dismiss to a motion for summary judgment, and it need 28 not assume the truth of the complaint’s allegations. Id. 1 Here, the basis for the Court’s jurisdiction is apparent. As the government 2 acknowledges, 8 U.S.C § 1421(c) provides that a “person whose application for 3 naturalization under this subchapter is denied . . . may seek review of such denial before 4 the United States district court for the district in which such person resides . . . .” “Such 5 review shall be de novo, and the court shall make its own findings of fact and conclusions 6 of law and shall, at the request of the petitioner, conduct a hearing de novo on the 7 application.” Id. 8 The government, however, argues that the Court lacks jurisdiction to “overturn[] 9 the IJ’s decision that she is not an LPR.” (Doc. 9 at 8). The government correctly notes 10 that under the REAL ID Act, district courts have no role in reviewing immigration 11 judges’ determinations. They are instead subject to challenge only in the BIA followed by 12 petition of review to the court of appeals. See 8 U.S.C. § 1252(a)(5). But the Ninth 13 Circuit has recognized that “Section 1421(c) plainly confers jurisdiction to review the 14 denial of an application for naturalization on district courts,” and “[n]othing in the text 15 limits the jurisdiction so conferred to review of denials when there is no removal 16 proceeding pending.” De Lara Bellajaro v. Schiltgen, 378 F.3d 1042, 1046 (9th Cir. 17 2004), as amended (Sept. 1, 2004).4 18 Resisting this conclusion, the government points to Plaintiff’s prior district court 19 cases that were dismissed for lack of jurisdiction, one of which was affirmed on appeal, 20 and argues that the Court should dismiss the instant case as well. But Plaintiff’s prior 21 cases involved challenges to the denial of Plaintiff’s adjustment of status applications as 22 opposed to a naturalization petition. Challenges to decisions regarding adjustment of 23 status applications are explicitly prohibited by 8 U.S.C. § 1252(a)(2)(B)(i) 24 (“Notwithstanding any other provision of law (statutory or nonstatutory), . . . no court 25 shall have jurisdiction to review . . . any judgment regarding the granting of relief under 26 4 Although the Ninth Circuit decided De Lara Bellajaro before the REAL ID Act was 27 passed, the language of 8 U.S.C. § 1421(c) has not changed. Accordingly, the reasoning of De Lara Bellajaro continues to apply and § 1421(c) continues to “plainly confer[] 28 jurisdiction” on district courts even when removal proceedings are pending. See 378 F.3d at 1046. 1 [8 U.S.C. §] 1255.”).5 In this case, the Court is not faced with an explicit jurisdictional 2 bar to review adjustment of status applications under 8 U.S.C. § 1252(a)(2)(B)(i), but 3 rather an explicit grant of jurisdiction to consider naturalization applications under 4 8 U.S.C § 1421(c). The Court cannot ignore this explicit grant of jurisdiction. See New 5 Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 358 (1989) (“[F]ederal 6 courts lack the authority to abstain from the exercise of jurisdiction that has been 7 conferred.”). 8 The government also argues that the Court exercising jurisdiction in this case and 9 naturalizing Plaintiff would effectively terminate her removal proceedings and undermine 10 8 U.S.C. § 1252(a)(5), which provides that “a petition for review filed with an 11 appropriate court of appeals in accordance with this section shall be the sole and 12 exclusive means for judicial review of an order of removal.” Other statutes, however, 13 create safeguards to assure that the USCIS and district courts do not interfere with 14 removal proceedings. For example, 8 U.S.C. § 1429 provides that “no application for 15 naturalization shall be considered by the Attorney General if there is pending against the 16 applicant a removal proceeding pursuant to a warrant of arrest issued under the 17 provisions of this chapter or any other Act.” If the USCIS denies naturalization on that 18 basis, a district court’s review is limiting to reviewing only the USCIS’s conclusion that 19 § 1429 applies. De Lara Bellajaro, 378 F.3d at 1046. 20 The USCIS concluded, however, that § 1429 does not apply in this case under 21 Ninth Circuit law. The Final Order states that Plaintiff’s petition was not barred by 22 § 1429 because Plaintiff’s removal proceedings are not “pursuant to a warrant of arrest.” 23 Contrary to other courts, the Ninth Circuit has concluded “warrant of arrest” within the 24 meaning of § 1429 refers to “a writ that issues to arrest and detain an alien” rather than 25 simply a notice to appear. Compare Yith v. Nielsen, 881 F.3d 1155, 1165–68 (9th Cir. 26 2018), with Klene v. Napolitano, 697 F.3d 666, 670 (7th Cir. 2012), and Gardener v. 27 5 Plaintiff also sought mandamus relief from this Court to order the USCIS to adjudicate 28 her N-400 applications. However, at the time, the USCIS had already denied the N-400 application, so there was no N-400 application pending before the USCIS. 1 Barr, No. 4:18 CV 620 (JMB), 2019 WL 1001340, at *6 (E.D. Mo. Mar. 1, 2019) 2 (“[W]hile there may be some appeal to the Ninth Circuit’s analysis, it is ultimately 3 unworkable.”). 4 Because § 1421(c) expressly confers jurisdiction on this Court and § 1429 was not 5 a basis for the USCIS’s denial of the Second N-400 Application, the Court concludes that 6 it has subject matter jurisdiction to conduct a de novo review of Plaintiff’s naturalization 7 application. 8 b. Motion to Dismiss for Failure to State a Claim and Motion for 9 Summary Judgment 10 The government next argues that even if the Court has jurisdiction over Plaintiff’s 11 petition, Plaintiff is statutorily ineligible to naturalize because she fails to meet the 12 requirements of 8 U.S.C. 1427(a). Accordingly, the government argues that it is entitled 13 to dismissal or summary judgment. 14 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must 15 meet the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement 16 of the claim showing that the pleader is entitled to relief” so that the defendant has “fair 17 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 18 Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 19 A complaint must also contain sufficient factual matter, which, if accepted as true, states 20 a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 21 (quoting Twombly, 550 U.S. at 555). 22 Summary judgment is appropriate “if the movant shows that there is no genuine 23 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 24 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 25 The party asserting “that a fact cannot be or is genuinely disputed must support th[at] 26 assertion by” either “citing to particular parts of materials in the record” or “showing that 27 materials cited do not establish the absence or presence of a genuine dispute, or that an 28 adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 1 56(c)(1)(A)–(B). 2 Here, the government argues, and the USCIS found in the Final Order, that 3 Plaintiff “failed to establish that [she is] a lawful permanent resident and ha[s] been a 4 lawful permanent resident for at least five years preceding the date of filing [the Second 5 N-400 Application]” as required by 8 U.S.C. 1427(a). (Doc. 1-2 at 5). The USCIS further 6 stated that “an immigration judge has determined that [Plaintiff is] not a lawful 7 permanent resident and that clear and convincing evidence supports the conclusion that 8 [her] application for adjustment of status was never approved[,]” and the “USCIS cannot 9 make a finding to the contrary. Janjua v. Neufeld, 933 F.3d 1061 (9th Cir. 2019).” (Doc. 10 1-2 at 5–6). 11 Although Janjua discussed the standards for issue preclusion, it did so while 12 “[a]ssuming without deciding that issue preclusion applies in immigration adjustment of 13 status proceedings.” 933 F.3d at 1065. Janjua did not discuss issue preclusion in the 14 context of a naturalization petition. As discussed above, naturalization proceeds are 15 different, particularly when it comes to district court review under 8 U.S.C § 1421(c). 16 Section 1421(c)’s “grant of authority is unusual in its scope—rarely does a district court 17 review an agency decision de novo and make its own findings of fact.” Nagahi v. INS, 18 219 F.3d 1166, 1169 (10th Cir. 2000). On the issue of how preclusion principles apply to 19 naturalization proceedings, the Ninth Circuit has not spoken, and various district courts 20 are split. Compare, e.g., Bigure v. Hansen, No. 1:16-CV-808, 2017 WL 25503, at *3 21 (S.D. Ohio Jan. 3, 2017) (concluding that claim preclusion did not apply in part because 22 § 1421(c) requires a court reviewing a naturalization denial to review the denial de novo 23 and to “make its own findings of fact and conclusions of law”), with Ahmad v. Johnson, 24 No. 16-CV-01776-JCS, 2017 WL 6945395 (N.D. Cal. Oct. 10, 2017), at *9 (determining 25 “that the reasoning in Bigure is not persuasive” and “conclud[ing] that Congress did not 26 intend to preclude the application of collateral estoppel in naturalization proceedings 27 based on prior judicial or administrative determinations”). 28 On the record in this case, the Court concludes that the immigration judge’s 1 findings do not have preclusive effect on the USCIS or this Court. “Congress has 2 explicitly stated that the findings of the BIA or an IJ in terminating removal proceedings 3 do not have any effect whatsoever on the question of whether the USCIS should 4 naturalize a person[.]” Nesari v. Taylor, 806 F. Supp. 2d 848, 868 (E.D. Va. 2011). Here, 5 the immigration judge concluded that Plaintiff failed to demonstrate that she was a lawful 6 permanent resident as required by 8 U.S.C. § 1429. By its own terms, however, § 1429 7 provides that 8 the findings of the Attorney General in terminating removal proceedings or in canceling the removal of an alien pursuant 9 to the provisions of this chapter, shall not be deemed binding on any way upon the Attorney General with respect to the 10 question of whether such person has established his eligibility for naturalization as required by this subchapter. 11 12 (emphasis added). Accordingly, even assuming general principles of issue and claim 13 preclusion apply to naturalization proceedings, the particular findings at issue in this case 14 specifically have no binding effect under the plain terms of § 1429. 15 Moreover, the immigration judge’s findings in this case were not part of a final 16 judgment. “Collateral estoppel . . . requires that ‘[w]hen an issue of fact or law is actually 17 litigated and determined by a valid and final judgment, and the determination is essential 18 to the judgment, the determination is conclusive in a subsequent action between the 19 parties, whether on the same or a different claim.’” Eilrich v. Remas, 839 F.2d 630, 632 20 (9th Cir. 1988) (quoting Restatement (Second) of Judgments § 27 (1982)). Here, 21 Plaintiff’s removal proceedings were administratively closed for a period and are now 22 ongoing; accordingly, there has been no final judgment. See Castaneda-Merchan v. 23 Lynch, 672 F. App’x 499, 500 (5th Cir. 2017) (“Because Castaneda-Merchan’s prior 24 deportation proceedings were administratively closed, there was no final judgment.”). 25 The government notes that “Plaintiff never filed an interlocutory appeal with the 26 BIA to challenge [the immigration judge’s] decision,” but the government cites no 27 authority providing that the failure to file an interlocutory appeal converts a non-final 28 judgment into a “final” order for purposes of collateral estoppel. (Doc. 15 at 2). The 1 Court is aware of no such authority. 2 c. Further Proceedings 3 Because the Court holds that neither dismissal nor summary judgment are 4 appropriate, the Court will require briefing on how this case should proceed. 5 Although the USCIS found that 18 U.S.C. § 1429 does not apply in this case, “[the 6 Ninth Circuit] ha[s] recognized that ‘[t]he natural reading of [§ 1429] is that removal 7 proceedings and final removal orders are to take precedence over naturalization 8 applications.’” De Lara Bellajaro, 378 F.3d at 1045; see also Zayed v. United States, 368 9 F.3d 902, 905 (6th Cir. 2004) (“Section 1429 was designed to end this race between the 10 alien to gain citizenship and the Attorney General to deport him. That objective was 11 accomplished by according priority to removal proceedings.” (citations omitted)). 12 Recognizing this policy judgment, several district courts facing similar issues have 13 stayed naturalization proceedings pending the outcome of removal proceedings. See 14 Adesida v. Tritten, No. CV 20-1593 (DSD/TNL), 2021 WL 1617149, at *3–4 (D. Minn. 15 Apr. 26, 2021); Dilone v. Nielsen, 358 F. Supp. 3d 490, 504–05 (D. Md. 2019); Gardener 16 v. Barr, No. 4:18 CV 620 (JMB), 2019 WL 1001340, at *5 (E.D. Mo. Mar. 1, 2019); Eisa 17 v. United States Citizenship & Immigration Servs., No. 05-cv-773, 2005 WL 8164569, at 18 *3 (D. Minn. Dec. 23, 2005), report and recommendation adopted, No. 05-cv-773, 2006 19 WL 8445001 (D. Minn. Jan. 31, 2006). 20 Accordingly, the parties shall submit briefing addressing whether, given that 21 removal proceeding will likely need to conclude first, there is anything currently ripe for 22 this Court to decide. 23 III. CONCLUSION 24 For the foregoing reasons, 25 IT IS ORDERED that the government’s Motion for Summary Judgment and 26 Motion to Dismiss, (Doc. 9) is DENIED. 27 /// 28 /// 1 IT IS FURTHER ORDERED that within 14 days of the date of this Order, the 2|| parties shall simultaneously file briefing addressing how this case should proceed 3 || procedurally. 4 Dated this 4th day of August, 2021. 5 6 '

g James A. C rg Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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