WILLIAM J. MARTINI, District Judge.
Petitioner's Petition for Review of [the Administrative] Denial of Application for Naturalization (the "Petition") was filed on July 10, 2009. (Doc. No. 1.)
On September 15, 2009, the Respondents filed a Motion to Dismiss for Lack of Jurisdiction Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (the "Motion" or "Opening Brief). (Doc. No. 5.) The Motion has been fully briefed. See Opposition Brief, (Doc. No. 7); Reply Brief, (Doc. No. 8); Petitioner's Sur-Reply, (Doc. No. 14).
Having considered the parties' filings, federal constitutional and statutory law and regulations, case law, and persuasive scholarly authority, the Court, for the reasons elaborated below, will
II. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Jose Gonzalez was born in Panama and is a citizen of Spain. He married a U.S. citizen. His wife filed a petition for the adjustment of his status on his behalf and he was granted Lawful Permanent Resident status based on that application.
It is the Respondents' contention that this Court lacks subject matter jurisdiction to review the agency's denial of the naturalization petition when, as here, removal proceedings are pending against the Petitioner. Second, it is also the Respondents' position that, even if the Court has jurisdiction over the subject matter, this Court cannot grant any relief on these facts. The Respondents characterize such a result as failure to state a claim upon which relief may be granted, although it would seem that the gravamen of the Respondents' argument is that Petitioner's cause of action lacks the possibility of redress, and therefore Petitioner's case cannot meet the elements of Article III standing.
III. STANDARD OF REVIEW
The Respondents' motion to dismiss is brought pursuant to the provisions of Fed.R.Civ.P. 12(b)(1) (dismissal based on lack of subject matter jurisdiction). In adjudicating a Rule 12(b)(1) motion, "[a court] review[s] only whether the allegations on the face of the complaint, taken as true, allege facts sufficient to invoke the jurisdiction of the district court." Common Cause of Penn. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir.2009). "[T]he parties invoking the federal courts' jurisdiction, bear the burden of establishing their standing." Common Cause of Penn., 558 F.3d at 257.
"Accordingly, unlike a Rule 12(b)(6) motion, consideration of a Rule 12(b)(1) jurisdiction-type motion need not be limited; conflicting written and oral evidence may be considered and a court may decide for itself the factual issues which determine jurisdiction. When resolving a factual challenge, the court may consult materials outside the pleadings...." Koronthaly v. L'Oreal USA, Inc., Civil Action No. 07-5588, 2008 WL 2938045, at *2 (D.N.J. July 29, 2008) (citations omitted).
Respondents' Motion is also brought pursuant to Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief
In considering a Rule 12(b)(6) motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263 (3d Cir.2007). The court may also consider "undisputedly authentic documents] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiffs claims are based on the [attached] documents]." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). Generally, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994).
Three statutory provisions are key to adjudicating this case.
First, 8 U.S.C. § 1421(a) provides: "Authority in Attorney General. The sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General." Id. (emphasis added).
Second, 8 U.S.C. § 1421(c) provides: "Judicial review. A person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of title 5. Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application."
Third, 8 U.S.C. § 1429 provides: "[N]o application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act...." Id. (emphasis added).
The NTA, which initiates removal proceedings, is a warrant of arrest pursuant to 8 C.F.R. § 318.1. Under Section 1429, it follows that the Attorney General (the "AG") may not "consider" such a person's "application for naturalization." Moreover, Congress has lodged in the AG the "sole" authority to naturalize persons. 8
Petitioner relies on Section 1421(c) which grants this Court jurisdiction of timely filed petitions to review final
The purported conflict between Sections 1421 and 1429 has divided federal courts since Congress, by statute, took authority to naturalize persons away from the federal courts, which had in times past functioned as immigration courts, and vested the power to naturalize persons in the AG. See Immigration Act of 1990 ("IMMACT"), Pub. L. No. 101-649, § 401, 104 Stat. 4978. In regard to the conflict between the two provisions, the Third Circuit has expressly reserved on this question. See Apokarina v. Ashcroft, 232 F.Supp.2d 414 (E.D.Pa. 2002) (Robreno, J.), remanded by, 93 Fed. Appx. 469 (3d Cir.2004) (Ambro, J.). The United States District Court for the District of New Jersey, that is, this Court, has expressly held that Section 1429 does not trump judicial review under Section 1421. See Kestelboym v. Chertoff, 538 F.Supp.2d 813 (D.N.J.2008) (Greenaway, J.), reconsideration denied, (June 17, 2008), (Doc. No. 22).
In analyzing the purported conflict between Sections 1421 and 1429, this Court starts with the text. Section 1421(a) grants the AG sole authority to naturalize persons. Section 1421(c) is a clear and express grant of jurisdiction to the District Courts to review de novo denials of naturalization applications if timely filed. Arguably, even apart from Section 1429, there is some tension between the two subprovisions of Section 1421. If Section 1421(a) grants the AG sole authority to naturalize persons, then what power may a District Court exercise in reviewing the AG's denial? If it can only affirm the denial, then judicial review is meaningless and the provision is effectively surplusage, i.e., without effect. Such interpretations are not favored. See Ki Se Lee v. Ashcroft, 368 F.3d 218, 223 (3d Cir.2004) ("We start with the principle that if at all possible, we should adopt a construction which recognizes each element of the statute."). In light of this traditional maxim of construction, this Court gives the judicial review provision, Section 1421(c), its plain meaning. Notwithstanding Section 1421(a)'s grant of sole authority to naturalize persons to the AG, this Court may review such denials, and as stated in the statute, this Court may review both factual and legal issues de novo. In cases where the Court does not affirm the denial, if the record is insufficiently developed for the Court to render a final determination of the matter, this Court may: (A) remand to USCIS, or if the factual record is sufficiently developed, with or without a District Court hearing, the Court may (B) order the AG to naturalize the person, or, at the outer limit of this Court's authority, the Court may (C) order the person naturalized on its own authority. District Courts around the nation, even well after IMMACT came into force, have granted relief of all three types, notwithstanding Section 1421(a) granting the AG "sole" authority to naturalized persons. See, e.g., Domingo Lora v. USCIS, 1:05-04083, at *6, 2007 WL 1150155 (E.D.N.Y. April 18, 2007) (Gleeson, J.) (granting petitioner's petition seeking de novo review of the USCIS's denial of naturalization—absent any remand order), (Dkt. No. 11), vacated by on other grounds, Clerk's Judgment (Sept. 17, 2007), (Dkt. No. 21); Cacho v. Ashcroft, 403 F.Supp.2d 991, 998 (D.Haw. 2004) (Ezra, C.J.) (granting petitioner summary judgment in regard to INS's denial of naturalization, and "direct[ing] that the Petition for Naturalization be granted" absent any remand); Jalloh v. INS, Civil Action No. 02-1254, 2003 WL 22145308 at *9 (D.Minn. Sept. 15, 2003) (concluding that "Petitioner's application for naturalization should be granted [absent any indication of remand]" (emphasis omitted)); cf. Tan v. Dep't of Justice, 931 F.Supp. 725, 732 (D.Haw.1996) (Ezra, J.) (reversing denial of application for naturalization and remanding application for processing as set forth by statute). In short, notwithstanding the AG having sole authority to naturalize persons, District Courts, exercising the traditional power of judicial review over final executive branch agency action, may remand denials to the administrative body to be carried out consistent with the court's order, or may order the AG to naturalize the applicant, or, at the limit of the court's authority, may naturalize the person on its own authority.
Section 1429—which provides that "[N]o application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act ...."—complicates the analysis. This provision does not expressly
Nevertheless the Respondents' argument that Section 1429 restricts this Court's Section 1421 jurisdiction is worthy of analysis, if only because any number of our sister courts have agreed with it. Citing Judge Robreno's district court decision in Apokarina, supra, the Respondents argue that the "scope of [the District Court's] review cannot be greater than [sic] the Attorney General's," and where the Attorney General has been precluded by Section 1429 from reviewing the application for naturalization, it follows that the District Courts are likewise precluded from considering the petition where, as here, removal proceedings are pending. Opening Brief 8. The Respondents have exaggerated the holding of the Apokarina court. That District Court held: "It necessarily follows that the district court's scope of review of the denial of a naturalization petition [once removal proceedings have begun], pursuant to section 1421(c), cannot be any greater than the authority of the Attorney General to consider the petition in the first place." Apokarina, 232 F.Supp.2d at 416 (emphasis added). In other words, where USCIS has denied an application for naturalization on the merits, and its scope of review had not been limited in any way by Section 1429 prior to rendering a final decision, the scope of review of this Court is unaffected by changes related to removal proceedings which occur after a final administrative decision is rendered and after the administrative record is closed. Under Apokarina, this Court's scope of review is coextensive with the agency's final decision below. Of course, in some cases, where Section 1429 comes into play prior to final agency action, no final agency decision is rendered, and in those cases there is nothing for this Court to review. But that limitation on this Court's power to review flows directly from Section 1421(c), a jurisdictional provision, which limits district court review to final agency action.
The gravamen of the Respondents' position does not flow from the statutory text; rather, it is more of a legal intuition. The Respondents' position is that if the AG has no authority to grant the relief sought (by operation of Section 1429) and if the AG is the only authority that has the authority to grant that relief, then this Court cannot grant the relief and it cannot order the AG to do so. This
Indeed, this Court is at somewhat of a loss to understand precisely what Congress intended if it did not intend this result. If Congress wanted to preclude the AG from "granting" citizenship once removal proceedings have begun, then why use the term "consider"? The word "consider" and its variants have deep roots in coordinate federal statutes, rules, and regulations. See, e.g., United States v. Fleming, 397 F.3d 95, 100 (2d Cir.2005) (Newman, J.) (holding that the judicial duty to "consider" sentencing factors as established by Section 3583(e) of the commission's guidelines requires the judge to be "aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable"); Central Valley Chrysler-Jeep v. Witherspoon, 456 F.Supp.2d 1160, 1173 (E.D.Cal.2006) (Ishii, J.) ("[A] congressional requirement that a decision maker `consider' a factor .... requires
This Court's opinion is against the weight of appellate authority established in other circuits. For example, in Zayed v. United States, 368 F.3d 902 (6th Cir.2004), the Sixth Circuit held:
Id. at 906 (footnote omitted); see also Ajlani v. Chertoff, 545 F.3d 229 (2d Cir. 2008); Aye Aye Kyi v. Chertoff, Civil Action No. 08-3383, 2008 WL 5131619, at *3 (N.D.Cal. Dec. 5, 2008) (denying relief because the court "could not order the Attorney General to do something precluded by statute"); United States v. Ali, 757 F.Supp. 710, 713 (W.D.Va.1991). Contrary to the Zayed court's opinion, Section 1429 does not preclude the AG from using his "sole" power to naturalize applicants once removal proceedings have begun. If Congress had intended that result, words to that effect were easily in reach. Instead, Congress barred the AG only from "considering" a petitioner's application once removal proceedings have begun: no more and no less.
To sum up, federal district courts have, on occasion, held that notwithstanding the AG's having the "sole" authority to naturalize
For the reasons elaborated above, the Court
An appropriate order accompanies this memorandum opinion.