Francois v. United States Citizenship and Immigration Services

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 Pursuant to this Court’s August 4, 2021 Order, (Doc. 18), Plaintiff Sabina Carol 16 Francois and Defendant United States Citizenship and Immigration Services (“the 17 government”) filed briefs to determine whether there is anything currently ripe for this 18 Court to decide. (Doc. 19; Doc. 20). Based on a review of the briefs and the record, and for 19 the following reasons, the Court is staying the case pending removal proceedings. 20 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 21 Sabina Carol Francois is a citizen of Trinidad and Tobago who entered the United 22 States in 1983 as a B-2 nonimmigrant visitor. (Doc. 1 at 3; Doc. 10 at 1). Francois married 23 Randolph Barclay, an American citizen, in February 1992. (Doc. 1 at 3; Doc. 10-3 at 4). 24 Shortly after, Barclay filed a spousal visa petition (Form I-130) with the Immigration and 25 Naturalization Service (INS), seeking to classify Francois as his wife for immigrant visa 26 purposes. (Doc. 10-3 at 4). At the same time, Francois filed an adjustment application 27 (Form I-485) with the INS, seeking to adjust her status to that of a lawful permanent 28 resident. (Id.). 1 As part of the process, INS requested that Francois produce her passport and Form 2 I-94 to prove that she lawfully entered the United States. (Id. at 5). She was unable to do 3 so, claiming that they had been stolen. Instead, she submitted affidavits to establish that 4 she lawfully entered the United States. (Id.). 5 But the INS deemed the affidavits insufficient because they did not clearly establish 6 the date of her entry. (Id.). The INS advised Francois and Barclay to withdraw their pending 7 documents and to request an immigrant visa through a U.S. consulate overseas. (Id.). They 8 did so in July 1993. (Id.). 9 The following year Barclay filed a second spousal visa petition, which the INS 10 approved. (Doc. 10-5 at 4). In December 1994, following the passage of 8 U.S.C. § 1255(i), 11 Francois filed a new application to adjust her status. (Id. at 5). In May 1995, the INS 12 interviewed Francois and Barclay regarding the second adjustment application. (Id.). 13 Following the interview, the INS determined that their marriage was fraudulent. 14 (Id.). Consequently, in September 2000, the INS issued Barclay a notice of intent to revoke 15 the approved second spousal visa petition and later revoked the petition under 8 U.S.C. § 16 1154(c). (Doc. 10-3 at 5). The INS then denied Francois’ second application to adjust her 17 status because there was no approved spousal visa petition. Francois and Barclay later 18 divorced. (Id.). 19 Francois then married a second United States citizen, James Earl Voice. (Doc. 1-2 20 at 4). Voice filed a spousal visa petition for Francois with the United States Citizenship 21 and Immigration Services (USCIS) in October 2006.1 Francois filed a third adjustment 22 application that same day. (Id.). In July 2007, the USCIS denied Voice’s spousal visa 23 petition under § 1154(c), finding that Voice and Francois had failed to establish the 24 legitimacy of their marriage. (Id.) Consequently, Francois’ third adjustment application 25 was also denied. (Id.). She then filed a separate application for naturalization (Form N- 26 400), which the USCIS ultimately rejected. Francois v. United States, No. CV-16-02936- 27 PHX-BSB, 2017 WL 467976, at *2 (D. Ariz. Feb. 3, 2017).

28 1 On March 1, 2003, the INS ceased to exist as an independent agency. Some of its functions were transferred to the USCIS. 1 After the USCIS denied Voice’s spousal visa petition in August 2010, Immigration 2 and Customs Enforcement (ICE) issued a Notice to Appear against Francois in February 3 2011, initiating removal proceedings against her. (Doc. 1-2 at 4). In December 2012, an 4 Immigration Judge (IJ) found that Francois was not a lawful permanent resident and was 5 removable from the United States. (Id.). 6 In September 2013, Francois filed an action in this Court, challenging the denial of 7 Barclay’s second spousal visa petition and Francois’ second and third adjustment of status 8 applications. Francois v. Johnson, No. CV-13-01964-PHX-PGR, 2014 WL 1613932 (D. 9 Ariz. Apr. 22, 2014). Francois also sought an order “compelling USCIS to register her 10 status as a lawful permanent resident.” Id. at *3. The Court dismissed Francois’ claims for 11 lack of subject matter jurisdiction and failure to state a claim, and the Ninth Circuit 12 affirmed. Francois v. Johnson, 667 F. App’x 630 (9th Cir. 2016). In the meantime, an IJ 13 administratively closed Francois’ removal proceedings, citing a backlog in the immigration 14 courts. 15 In September 2016, Francois filed a second action in this Court, challenging the 16 “same government actions and seek[ing] the same relief as the First Action, but alleg[ing] 17 a negligence action under the [Federal Tort Claims Act] in place of the previously 18 dismissed APA and declaratory relief claims.” Francois v. United States, 2017 U.S. Dist. 19 LEXIS 15477, at *3 (citation omitted). The Court dismissed the second action for lack of 20 subject matter jurisdiction in February 2017. Id. Francois did not appeal. 21 On January 3, 2019, Francois filed another application for naturalization (the 22 “Second N-400 Application”), which the USCIS again denied on February 5, 2020. (Doc. 23 1-2 at 4). Francois administratively appealed, and after a hearing, the USCIS upheld the 24 denial of the Second N-400 Application on December 31, 2020 (the “Final Order”). (Doc. 25 1-2). The USCIS concluded that Francois failed to demonstrate that she had been a lawful 26 permanent resident for at least five years immediately preceding the date of filing the 27 naturalization application. (Id. at 3, 6). Relying on Janjua v. Neufeld, 933 F.3d 1061 (9th 28 Cir. 2019), the USCIS noted that an IJ had already determined that Francois was not a 1 lawful permanent resident and that the USCIS could not make a finding to the contrary. 2 (Id. at 6). 3 Following the denial of Francois’ naturalization application, ICE filed a motion to 4 recalendar Francois’ removal proceedings. In March 2021, an IJ granted ICE’s motion and 5 set Francois’ case for an individual hearing in February 2023. (Doc. 10-4 at 3). 6 Francois filed the instant action on January 15, 2021, challenging the denial of 7 Second N-400 Application under 8 U.S.C. § 1421(c) and requesting de novo review of the 8 Final Order. (Doc. 1). Francois requests that the Court, “[h]old unlawful and set aside 9 USCIS’s denial of her naturalization application as not warranted by the facts and not in 10 accordance with law,” “[d]eclare that she is prima facie eligible for naturalization,” and 11 “[g]rant naturalization to her.” (Doc. 1 at 6). 12 In an order this past August, the Court denied the government’s Motion for 13 Summary Judgment and Motion to Dismiss, concluding that the Court has subject matter 14 jurisdiction to conduct a de novo review of Francois’ naturalization application under 8 15 U.S.C. § 1421(c). (Doc. 9). The Court further ordered the parties to file briefs that address 16 how this case should proceed procedurally and whether “there is anything currently ripe 17 for this Court to decide.” (Doc. 9 at 10). 18 II. DISCUSSION 19 If a naturalization application is denied, the applicant may seek judicial review with 20 a federal district court. 8 U.S.C. § 1421(c). Francois contends that the Court should proceed 21 in deciding the case because it has jurisdiction and can grant relief for Francois. 22 Specifically, Francois argues that the Immigration Judge will not “have jurisdiction to 23 review this threshold issue.” (Doc 20 at 2). Additionally, Francois claims that staying the 24 case only incentivizes the government to circumvent the appeals process by placing 25 applicants in removal proceedings. (Id. at 3). The government counters that the question of 26 Francois’ eligibility to naturalize will not be ripe for judicial review until removal 27 proceedings conclude and that the proceedings will bear on the merits of Francois’ 28 application. (Doc. 19 at 2–3). The government also asserts that removal proceedings should 1 take precedence over naturalization applications. (Id. at 2). 2 Much of this dispute exists due to the structure of the naturalization process. Today, 3 the executive branch has the primary responsibility for deciding who may become a United 4 States citizen. The Attorney General has the sole authority to “naturalize persons as 5 citizens,” 8 U.S.C. § 1421(a), and removal proceedings are conducted by immigration 6 judges appointed by the Attorney General. 8 U.S.C. § 1229(a)(1). The courts’ role is to 7 provide judicial review of the executive agency’s actions. 8 U.S.C. § 1421(c). 8 The naturalization process was not always structured like this. In the past, 9 naturalization and removal were vested in different branches of the government, with 10 courts having the authority to naturalize, while the authority to remove aliens was vested 11 in the Attorney General. Bellajaro v. Schiltgen, 378 F.3d 1042, 1045 (9th Cir. 2004). 12 Because of the two-track structure, “it was possible for naturalization and removal 13 proceedings to advance simultaneously.” Ajlani v. Chertoff, 545 F.3d 229, 236 (2d Cir. 14 2008). And since “neither proceeding had priority over the other . . . an alien could find 15 himself in a race against the government, with the alien pressing the court to grant him 16 citizenship before the government could order his removal from the country.” Dilone v. 17 Nielsen, 358 F. Supp. 3d 490, 495 (D. Md. 2019) (citing Shomberg v. United States, 348 18 U.S. 540, 544 (1955)). If a petitioner was successful in their naturalization petition, “the 19 deportation proceedings were completely nullified.” Shomberg, 348 U.S. at 544. 20 To end this race, Congress enacted 8 U.S.C. § 1429 to provide that “no petition for 21 naturalization shall be finally heard by a naturalization court if there is pending against the 22 petitioner a deportation proceeding.” Bellajaro, 378 F.3d at 1045 (quoting 8 U.S.C. § 1429 23 (1952)). This “priority provision” ensures that deportation proceedings take precedence 24 over an alien’s attempts to naturalize. See Zayed v. United States, 368 F.3d 902, 905 (6th 25 Cir. 2004); Ajlani, 545 F.3d at 240 (explaining that allowing petitioner to proceed on the 26 naturalization application would restart the race between removal and naturalization 27 Congress sought to end). In the Immigration Act of 1990, Congress gave the Attorney 28 General the “sole authority to naturalize.” 8 U.S.C. § 1421(a). 1 Although this Court held in a prior order in this case (Doc. 8 at 6) that 8 U.S.C. § 2 1429 does not apply, congressional intent to prioritize removal proceedings over 3 naturalization proceedings guides this Court’s decision. Other courts have consistently 4 stayed naturalization proceedings to give priority to removal proceedings. See Dilone, 358 5 F. Supp. 3d at 504–05 (staying the case to prioritize the conclusion of removal 6 proceedings); Adesida v. Tritten, No. 20-1593 (DSD/TNL), 2021 U.S. Dist. LEXIS 79436 7 (D. Minn. Apr. 26, 2021); Gardener v. Barr, No. 4:18 CV 620 (JMB), 2019 U.S. Dist. 8 LEXIS 32866 (E.D. Mo. Mar. 1, 2019) (same); Eisa v. United States Citizenship & 9 Immigration Servs., 2005 U.S. Dist. LEXIS 46561(D. Minn. Dec. 23, 2005), report and 10 recommendation adopted, No. 05-cv-773, 2006 U.S. Dist. LEXIS 97592 (D. Minn. Jan. 11 31, 2006) (remanding to USCIS and staying the case until after removal proceedings). In 12 Dilone, the court concluded that while the court had subject matter jurisdiction and was 13 authorized to order relief, it decided to stay the case to let the removal proceedings to run 14 their course. 358 F. Supp. 3d at 504. The court argued that to proceed with the case while 15 removal proceedings were pending would “in effect, restart the ‘race’ that Congress sought 16 to end when it gave removal proceedings priority over naturalization adjudications in 17 1950.” Id. Similarly, in Adesida, the court found that, while it had jurisdiction to hear the 18 case, the proper action was to let the removal outcomes proceed because of congressional 19 intent to prioritize removal proceedings. 2021 U.S. Dist. LEXIS 79436, at *9. 20 Francois attempts to distinguish these decisions by highlighting that those cases 21 were in the middle of pending “removal proceedings.” (Doc. 20 at 3). In contrast, “USCIS 22 already adjudicated Ms. Francois’ N-400 application.” (Id.). Furthermore, Francois argues 23 that the Court is better suited to hear the case as the IJ cannot change the discretionary 24 decisions made by USCIS. (Id. at 2). 25 These arguments are unavailing. While the IJ cannot make a finding as to the 26 discretionary grant or denial of adjustment by USCIS, (Doc. 20 at 2), the IJ can make 27 factual findings about Francois’ status in the country that bear on the merits of her 28 naturalization application. See Adesida, 2021 U.S. Dist. LEXIS 79436, at *10 (“[T]here 1 may be factual determinations made during removal proceedings that could bear on the 2 merits of Adesida’s application.”); Ajlani, 545 F.3d at 240 (suggesting that information 3 regarding the sufficiency of petitioner’s naturalization application may need to be 4 addressed in removal proceedings); Dilone, 358 F. Supp. 3d at 503–04 (noting that factual 5 findings in removal proceedings may impact applicant’s burden to establish the “good 6 moral character” requirement for naturalization). Indeed, in an earlier iteration of this case, 7 the Ninth Circuit noted that “under the specific facts of this case, the denial of Francois’ 8 adjustment application will not be ripe for judicial review until removal proceedings 9 conclude before the agency.” Francois v. Johnson, 667 Fed. Appx. 630, 631 (9th Cir. 10 2016). 11 Under Ninth Circuit precedent this Court has “jurisdiction pursuant to 1421(c) to 12 review [USCIS’s] denial of [Plaintiff’s] application for naturalization whether or not a 13 removal proceeding is pending, but that review is limited to ‘such’ denial.” Bellajaro, 378 14 F.3d at 1047. But to decide on the validity of Francois’ application would effectively end 15 her removal proceedings. See, e.g., Omo v. Barrett, No. C 11-04975 CRB, 2012 U.S. Dist. 16 LEXIS 20921 (N.D. Cal. Feb. 17, 2012) (declining to proceed with the case because a 17 finding on their part would directly affect the removal proceedings). Such a result is 18 “contrary to congressional intent to end the race between two processes.” Gardener, 2019 19 U.S. Dist. LEXIS 32866, at *15–16. As the Seventh Circuit explained, “[t]he existence of 20 overlapping proceedings does not diminish a district court’s power but does present a 21 question on which the judge should exercise sound discretion.” Klene v. Napolitano, 697 22 F.3d 666, 669 (7th Cir. 2012). As a result, the Court finds the prudent course of action is 23 to stay this case pending the outcome of removal proceedings. Adesida, 2021 U.S. Dist. 24 Lexis 79436, at *10. 25 III. CONCLUSION 26 Though § 1447(b) grants the Court jurisdiction to determine the matter, the Court 27 believes the most appropriate action is to stay the matter pending completion of the removal 28 proceedings. Accordingly, the Court will direct the Clerk of Court to administratively close 1 || the case. Either party may file a motion to reopen proceedings here at the conclusion of || removal proceedings. 3 For the foregoing reasons, 4 IT IS ORDERED that this matter is stayed until further order of the Court. 5 IT IS FURTHER ORDERED that the Clerk of Court shall administratively close || this case, subject to reopening by motion by either party. 7 IT IS FURTHER ORDERED that, within 14 days of the conclusion of the removal 8 || proceedings, the parties shall inform the Court of the outcome and shall propose a schedule 9|| for further proceedings. 10 Dated this 21st day of September, 2021. 11 a 3 12 B _ James A. Teil Org Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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