United States District Court, D. Colorado
OPINION AND ORDER
RAYMOND P. MOORE United States District Judge
27, 2016, plaintiff Petr Borski (“plaintiff”)
filed an Amended Petition for Writ of Mandamus (“the
mandamus petition”) against various U.S. government
officials (collectively, “defendants”), seeking
relief so as to, inter alia, compel the U.S.
Citizenship and Immigration Services (“CIS”) to
explain why it had not made a determination on
plaintiff's application for naturalization, compel CIS to
render such a determination, and declare that plaintiff had a
bone fide marriage. (ECF No. 14.) Plaintiff seeks relief
under the Mandamus Act, 28 U.S.C. § 1361, the
Administrative Procedures Act, 5 U.S.C. §§ 701,
et seq. (“the APA”), and the Declaratory
Judgment Act, 28 U.S.C. § 2201, et seq.
later, defendants filed a motion to dismiss the mandamus
petition (“the motion to dismiss”), pursuant to
Fed.R.Civ.P. 12(b)(1) (“Rule 12(b)(1)”) and
Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”). (ECF No.
15.) Plaintiff has responded in opposition to the motion to
dismiss (ECF No. 22), and defendant has filed a reply (ECF
No. 23). Also pending before the Court is plaintiff's
motion for preliminary injunction (ECF No. 9), to which
defendants have responded (ECF No. 16).
to dismiss for lack of subject matter jurisdiction take two
principal forms: (1) a facial attack, or (2) a factual attack
on the allegations in the complaint. Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). Here,
defendants present a factual attack on the mandamus petition
(ECF No. 15 at 3), and thus, the Court need not presume the
truthfulness of the mandamus petition's factual
allegations and may consider affidavits and other documents,
see Holt, 46 F.3d at 1002. That being said, as far
as the Court can discern, defendants do not challenge the
factual allegations of the mandamus petition itself, but,
instead, wish to contribute additional facts related to a
notice to appear issued to plaintiff. (See ECF No.
15 at 3.) Given that plaintiff does not dispute that the
notice to appear was issued (see ECF No. 22 at 19),
the Court observes no problem with adding the fact of the
issuance of the notice to appear to the facts alleged in the
evaluating a motion to dismiss under Rule 12(b)(6), a court
must accept as true all well-pleaded factual allegations in
the complaint, view those allegations in the light most
favorable to the non-moving party, and draw all reasonable
inferences in the plaintiff's favor. Brokers'
Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d
1125, 1135-36 (10th Cir. 2014); Mink v. Knox, 613
F.3d 995, 1000 (10th Cir. 2010). In the complaint, the
plaintiff must allege a “plausible” entitlement
to relief. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-556, 127 S.Ct. 1955 (2007). Conclusory allegations
are insufficient. Cory v. Allstate Ins., 583 F.3d
1240, 1244 (10th Cir. 2009). A complaint warrants dismissal
if it fails “in toto to render
[plaintiff's] entitlement to relief plausible.”
Twombly, 550 U.S. at 569 n.14.
is a citizen and national of the Czech Republic. (ECF No. 14
at ¶ 16.) Plaintiff was inspected and admitted to the
United States on a visitor visa on September 8, 2004.
(Id. at ¶ 17.) On July 22, 2005, plaintiff
married Michelle Edwards (“Michelle”).
(Id. at ¶ 18.) Three years after their
marriage, Michelle submitted an I-130 application, requesting
defendants recognize the marital relationship between
plaintiff and Michelle. (Id. at ¶ 19.) At the
same time, plaintiff submitted an I-485 application to adjust
his status to that of a lawful permanent resident.
(Id. at ¶ 20.) On August 14, 2009, plaintiff
and Michelle attended an interview with respect to the I-130
and I-485 applications. (Id. at ¶ 21.)
Defendants found that plaintiff and Michelle had a bone fide
marriage, and plaintiff met all other requirements to adjust
his lawful permanent resident status. (Id. at ¶
22.) Plaintiff's has been a lawful permanent resident
since August 14, 2009. (Id. at ¶ 23.)
21, 2014, plaintiff submitted an application for
naturalization. (Id. at ¶ 25.) On March 23,
2015, plaintiff was ordered to appear for an examination at
the Denver Field Office. (Id. at ¶ 27.) During
the examination, plaintiff was given tests on English, U.S.
history, and U.S. government, which he passed. (Id.
at ¶ 30.) On the date of the examination, plaintiff was
informed that a decision could not be made on his application
at that time. (Id. at ¶ 31.) Around May 5,
2016, defendants contacted plaintiff's former spouse,
Michelle, and inquired about her relationship with plaintiff.
(Id. at ¶ 32.) Around June 1, 2016, defendants
again contacted Michelle and inquired about her relationship
with plaintiff. (Id. at ¶ 33.)
14, 2016, CIS issued a notice to appear (“NTA”)
to plaintiff, notifying him that he was removable under the
Immigration and Nationality Act (“the INA”). (ECF
No. 15-1.) On June 23, 2016, plaintiff was placed in removal
proceedings. (ECF No. 15-2 at 1.) On June 24, 2016, CIS sent
plaintiff a letter, notifying him that it was unable to make
a decision on his application for naturalization because he
had been placed in removal proceedings. The letter stated
that, if plaintiff's removal proceedings were terminated
by an Immigration Judge, plaintiff could submit a copy of the
termination order and a written request to CIS in order to
continue adjudication of the application for naturalization.
(Id.) To date, no decision has been rendered on
plaintiff's application for naturalization. (ECF No. 14
at ¶ 34.)
argue that the mandamus petition should be dismissed for the
following reasons: (1) this Court lacks jurisdiction because
the case is constitutionally moot; (2) even if the case is
not constitutionally moot, plaintiff's claims are not
ripe; (3) even if the case is not constitutionally moot,
plaintiff's claims are implausible; and (4) to the extent
plaintiff challenges CIS' commencement of removal
proceedings, this Court lacks subject matter jurisdiction.
(See generally ECF No. 15.) The Court turns first to
the jurisdictional mootness challenge.
Jurisdiction and Mootness
argument runs as follows. Although an applicant for
naturalization may move for a hearing on his application if a
decision is not rendered within 120 days of examination, no
such application can be considered by the Attorney General if
there is pending against the applicant a removal proceeding.
(ECF No. 15 at 5-6 (citing 8 U.S.C. § 1447(b)
(“§ 1447(b)”), 8 U.S.C. § 1429
(“§ 1429”))). Defendants cite the Tenth
Circuit Court of Appeals' unpublished decision in Awe
v. Napolitano, 494 F. App'x 860, 866 (10th Cir.
2012). (ECF No. 15 at 7.) Given Awe's relevance
to this case, the Court discusses it below.
initial matter, it is necessary to note that Awe did
not involve the specific issue present here: specifically,
whether § 1447(b) is mooted by § 1429. In
Awe, the Tenth Circuit was presented with whether
§ 1421(c) was mooted by § 1429. See
Awe, 494 F. App'x at 865-866. Section 1421(c) gives
an alien a right to an independent judicial decision
following the denial of an application for naturalization.
See 8 U.S.C. § 1421(c). That is obviously not
at issue here given that plaintiff's application for
naturalization has not yet been determined. Nevertheless, the
discussion in Awe between the interplay of §
1421(c) and § 1429 is still helpful and relevant to the
issue presented here.
case, a lawful permanent resident, Awe, filed an application
for naturalization, and CIS denied the same. Awe,
494 F. App'x at 862. Awe filed a petition for review,
pursuant to § 1421(c) in a district court, and then,
subsequently, was placed in removal proceedings. Id.
The Tenth Circuit first concluded that § 1429
“does not strip district courts of jurisdiction over
petitions regarding naturalization applications.”
Id. at 865. The Tenth Circuit then concluded that,
by virtue of § 1429, removal proceedings
“effectively bar federal consideration of §
1421(c) petitions”. Unlike other circuit courts of
appeal, the Tenth Circuit based this conclusion upon the
doctrine of constitutional mootness. Id. In clear
language, the Tenth Circuit stated that “[t]he
initiation of removal proceedings against Mr. Awe rendered
his § 1421(c) petition moot.” Id. at 866.
The Circuit explained that the initiation of removal
proceedings constituted a “change of circumstances,
” precluding conclusive or specific relief, thus,
bringing into play the constitutional mootness doctrine.
Id. (quotation omitted). The Tenth Circuit also
stated that it did not discern the applicability of any
recognized exception to the mootness doctrine, as the case
did not involve the defendants voluntarily ceasing the
offending conduct or conduct that was capable of repetition.
Tenth Circuit further concluded that any request for
declaratory relief would be moot. Id. More
specifically, the Circuit explained that declaratory relief
must affect the behavior of the parties. The Circuit
concluded that any declaration that Awe met the requirements
for naturalization could not affect the behavior of the
defendants because § 1429 barred them from acting.
Id. The Circuit concluded that any declaration that
Awe was prima facie eligible for naturalization for purposes
of terminating his removal proceeding under 8 C.F.R. §
1239.2(f) (“§ 12392(f)”) was also moot
because there was no pending naturalization application.
Id. at 866-867.
also cite two out-of-circuit cases; both of which involved
the interplay of § 1447(b) and § 1429.
(See ECF No. 15 at 7-8.) In no particular order, in
Saba-Bakare v. Chertoff, 507 F.3d 337 (2007), the
Fifth Circuit Court of Appeals concluded that, even if
jurisdiction existed under § 1447(b) to review a
naturalization application, invoking such jurisdiction would
be “futile.” Id. at 340. More
specifically, the Fifth Circuit explained that § 1447(b)
only provides a district court with a means of addressing an
administrative delay for a naturalization application that
the Attorney General may consider. The Fifth Circuit
further explained that § 1429 does not allow the
Attorney General to consider any naturalization application
when a removal proceeding is pending. Thus, under §
1447(b), a district court could determine the matter or
remand for CIS to determine the same, but, in either
instance, any determination would be controlled by §
1429, and that provision requires an applicant to wait until
the termination of removal proceedings. Id. The
Fifth Circuit also rejected the applicant's contention
that jurisdiction existed to issue a declaratory judgment as
to his prima facie eligibility for naturalization.
Id. at 340-341. Specifically, the Fifth Circuit
concluded that, because, in 1990, the U.S. Congress removed
authority from district courts to naturalize aliens and gave
such authority exclusively to the Attorney General, only the
Attorney General had authority to declare an alien prima
facie eligible for naturalization. Id. at 341. As a
result, the Fifth Circuit affirmed the district court's
dismissal of the case for lack of subject matter
jurisdiction. Id. at 342.
in Ajlani v. Chertoff, 545 F.3d 229 (2d Cir. 2008),
the Second Circuit Court of Appeals, in assuming that the
applicant satisfied § 1447(b)'s jurisdictional
requirement, concluded that § 1429 “does not
permit an alien to state a claim for [ ] relief under §
1447(b) while removal proceedings are pending against
him.” Id. at 237-238. The Second Circuit
further explained that § 1447(b) authorizes a district
court to remand a matter “with appropriate
instructions, ” and instructing CIS to admit an alien
to citizenship in advance of the completion of removal
proceedings could not be an appropriate instruction in light
of § 1429. Id. at 238-239 (emphasis omitted).
The Second Circuit also concluded that a district court
itself could not admit an alien to citizenship because, in
part, such a court's authority to grant naturalization
relief cannot be greater than that of the Attorney General.
Id. at 239-240. As a result, the Second Circuit
affirmed the district court's dismissal of a claim under
§ 1447(b) for failure to state a claim upon which
naturalization relief could be granted. Id. ...