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Borski v. Lynch

United States District Court, D. Colorado

March 27, 2017

PETR BORSKI,, Plaintiff,
LORETTA E. LYNCH, et al., Defendants.


          RAYMOND P. MOORE United States District Judge

         On June 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. (Id.)

         One day 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).

         I. Legal Standards

         Motions 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 mandamus petition.

         In 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.

         II. Factual Background

         Plaintiff 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.)

         On July 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.)[1] Around June 1, 2016, defendants again contacted Michelle and inquired about her relationship with plaintiff. (Id. at ¶ 33.)

         On June 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.)

         III. Discussion

         Defendants 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.

         A. Jurisdiction and Mootness

         Defendants' 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.

         As an 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.

         In that 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. Id.

         The 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.

         Defendants 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.

         Next, 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. ...

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