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United States District Court, Southern District of New York

January 9, 2003


The opinion of the court was delivered by: Constance Baker Motley, United States District Judge

The original plaintiffs in this case — Dan Qi Li, Cui Xia Mei, Mei Lap Sung, Zhi Ju Zhang, and Jie Ming Hu — filed a joint petition for a writ of mandamus, seeking to compel the Immigration and Naturalization Service (the "INS" or the "Service") to administer the oath of naturalization to them. The INS opposed the petition and moved for dismissal pursuant to Fed.R.Civ.Pro. Rule 12(b)(1) and Rule 12(b)(6); summary judgment pursuant to Rule 56(c); or, to dismiss misjoined petitioners pursuant to Rule 21. As I shall explain infra, only one of the original petitioners, Mei Lap Sung, remains in this action. For the reasons set forth in this opinion, the motion to dismiss is hereby GRANTED without prejudice.


In October 2000, plaintiff Mei Lap Sung, along with four other aggrieved individuals who ultimately chose not to participate in this action, filed their joint petition for a writ of mandamus to compel the INS to administer the oath of citizenship. The case was assigned to Judge Kimba Wood. On April 18, 2001, the INS filed its motion to dismiss along with its memorandum of law and a Local Civil Rule 56.1 Statement. The original petitioners filed their opposition papers (without a Local Civil Rule 56.1 Statement) on June 5, 2001. The INS filed its reply brief on June 21, 2001. The case was transferred to the undersigned from Judge Wood on June 11, 2001.

Although the remarkably brief and sparely drafted petition filed by the original plaintiffs provides only the barest of facts and conclusions, the Service's opposition papers sufficiently expand upon the factual framework which forms the basis of this action. Although petitioners failed to submit a Local Rule 56.1 Statement, a comparison of their opposition brief with the Service's motion papers suggests that the facts are largely undisputed.*fn1 The one remaining petitioner, Mei Lap Sung,*fn2 is a lawful permanent resident of the United States who filed an N-400 application with the INS to become a naturalized citizen. Pursuant to the naturalization application process, petitioner was interviewed by an INS examiner and tested for English proficiency and knowledge of U.S. history and government. In August 1999, petitioner passed these tests. After meeting all other requirements of naturalization, petitioner received a letter which informed him of when and where to report for the administration of the naturalization oath. The Service also requested that the petitioner complete an enclosed questionnaire ("Form N-445") regarding continued eligibility for naturalization. In its notification letter, the Service informed petitioner that the Form N-445 would be reviewed by an INS examiner immediately before the oath ceremony and that the examiner may question the examiner regarding answers to the questionnaire. See INS Operations Instructions § 336.5(a).

Upon his arrival at the oath administration center, INS officials did indeed review Mr. Sung's N-445 in order to verify that there was no new information which could potentially affect his eligibility for naturalization. Although it is unclear from the record whether Mr. Sung correctly completed the Form N-445, it appears that at some point during the verification process, the petitioner was unable to comprehend what was being asked of him or communicate in the English language. Whereas the examiners concluded that petitioner failed to exhibit sufficient English language skills to qualify for naturalization, they informed him that he would not be permitted to take the oath of naturalization.

The INS subsequently notified petitioner in writing that his naturalization application was being reopened and provided him with fifteen days to submit evidence rebutting the examiners' finding that he could not speak English. Plaintiff did not submit rebuttal information. The INS then scheduled an interview for plaintiff to demonstrate his understanding of English. Plaintiff, apparently on the advice of counsel, did not attend his scheduled interview.

Rather than merely opposing the INS's motion to dismiss, the original petitioners, in their brief, "urge the Court to [make]" specific findings. Moreover, the last sentence of the brief asserts that "the Court should not dismiss the complaint and should grant summary judgment in favor of the Petitioners." The court interprets this to mean that Mr. Sung wishes to cross-move for summary judgment. Indeed, at the September 27, 2001 hearing on the government's motion to dismiss, counsel for plaintiff "request[ed] that the court grant the naturalization" of plaintiff. See Tr. at 18. This is an interesting request indeed, and fortunately one which the court need not address at this time.

Before addressing the dispositive issue of jurisdiction, however, the court feels compelled to provide a few more details concerning this matter's progression, or lack thereof, since it came before this court. After the September 27, 2001 hearing, the court charitably decided to place the case on the suspense docket for six months in order to provide the petitioners with an opportunity to exhaust administrative remedies pursuant to 8 U.S.C. § 1421(c). At a subsequent April 22, 2002 pretrial conference, counsel for the government asserted that notwithstanding the pendency of an administrative appeal, the action should be dismissed for lack of subject matter jurisdiction. With the appeal still pending, the court set a September 19, 2002 date for a pretrial conference at which plaintiff was to provide a more robust response to the government's motion to dismiss.

The court granted plaintiffs motion to adjourn the September 19, 2002 hearing when it learned that plaintiff had not yet had his section 336(a) administrative hearing. Again, notwithstanding the government's motion to dismiss, on September 23, 2002, the court placed the case on suspense until January 3, 2003. Again, the court hoped that this would provide enough time for the plaintiff to exhaust relevant administrative remedies. Moreover, the court wished to provide the plaintiff with an opportunity to pursue possible constitutional due process claims which might be raised against the INS. While individual determinations need to have administrative remedies exhausted, there is case law indicating that "where the plaintiffs challenge[] the adequacy of the procedures employed by the INS in processing their applications, rather than seeking substantive review of any individual ruling respecting their status, the exhaustion requirement . . . ha[s] no bearing on the district court's jurisdiction." Campos v. INS, 32 F. Supp.2d 1337 (S.D. Fla. 1998); see also Haitian Refugee Center v. Nelson, 872 F.2d 1555, 1561 (5th Cir. 1989), aff'd, 498 U.S. 479 (1991) ("[T]he individual plaintiffs here do not seek substantive review of any individual ruling respecting their status. Rather, they challenge the adequacy of the procedures employed "); Jankowski v. I.N.S., 138 F. Supp.2d 269 (D. Conn. 2001) ("The court concludes that it will, in its discretion, waive any exhaustion requirement with regard to the petitioner's equal protection challenge because the IJ and BIA, by their own rulings, lack institutional competence to resolve the particular type of issue presented here, the constitutionality of a statute that they are charged with enforcing"). Although the court itself voiced concern that there might be a due process claim, plaintiff failed to pursue one or, in the words of the Assistant U.S. Attorney, to "respond more fully to the government's motion [to dismiss]." See Tr., Apr. 22, 2002 pretrial conference, at 7.

According to a letter from Special Assistant U.S. Attorney F. James Loprest ("AUSA") to the court dated January 3, 2003, the INS has informed the AUSA that Mei Lap Sung's administrative appeal remains pending and his section 336(a) hearing is scheduled to be conducted before a senior naturalization examiner at the INS's Garden City, Long Island office on January 28, 2003. As the foregoing discussion indicates, both the court and the government have exhibited an overabundance of patience and generosity with respect to the aggrieved petitioner's plight. With his appeal still pending as of this date, however, plaintiff and the court can no longer avoid the fact that this action in federal court, as plaintiff pleads it, remains premature.


In support of its motion to dismiss, the INS first argues that the court lacks subject matter jurisdiction because the Petitioner has failed to exhaust administrative remedies. Second, the INS argues that the petitioner "fail[s] to state a claim for mandamus relief." Third, the INS argues that court should reach the merits to grant summary judgment. Finally, the INS argues that the court should dismiss misjoined petitioners.*fn3 Whereas the INS is manifestly correct in asserting that this court lacks subject matter jurisdiction, the court need not entertain the government's additional arguments.

This Court Lacks Subject Matter Jurisdiction

The federal Constitution grants Congress the power to "establish a[] Uniform Rule of Naturalization." Art. I., § 8, cl. 4. In the Immigration Act of 1990, Pub. L. No. 101-649, Title IV, 104 Stat. 4978, 5038-48 (Nov. 29, 1990), Congress removed naturalization from the courts and vested the Attorney General with "sole authority to naturalize persons as citizens of the United States." 8 U.S.C. § 1421(a).

The administrative naturalization process is roughly constituted by five separate stages. First, an applicant must submit application materials to the INS. 8 U.S.C. § 1445(a); 8 C.F.R. § 316.2, 316.4, 334.1, 334.2 (2000). Second, the INS conducts an investigation into the applicant's background. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1, 335.2 (2000). Third, the applicant is tested with respect to proficiency in the English language and knowledge of history and government of the United States. 8 U.S.C. § 1423(a); 8 C.F.R. Pt. 312 (2000). Fourth, the applicant is examined under oath by an INS naturalization officer who will generally grant or deny the application for naturalization within 120 days of the interview. 8 C.F.R. § 316.14 & 335.2 (2000). Finally, if the INS grants the application, the applicant must attend an oath ceremony, at which she must reaffirm her prior answers and swear allegiance to the United States. 8 U.S.C. § 1448; 8 C.F.R. § 310.3 & Part 337 (2000). After Mr. Sung completed the fourth stage, but before he could attempt the fifth, INS officials, upon reviewing forms with the petitioner, concluded that he could not meet the statutory requirements for English proficiency.

Judicial review in the area of immigration "is narrowly circumscribed." Langer v. McElroy, 2002 WL 31789757 (S.D.N.Y., Dec. 13, 2002); INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439 (1999) ("we have recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context"); INS v. Miranda, 459 U.S. 14, 19, 103 S.Ct. 281 (1982) ("Appropriate deference must be accorded [to the INS's] decisions"); Zhang v. Slattery, 55 F.3d 732, 748 (2d Cir. 1995) ("it is not the role of the federal courts to administer the executive branch" in the area of immigration). As Judge Sweet observes in Langer, the immigration statutes provide for "two specific points at which a district court may intervene in the naturalization process." Id. at *2. First, if the INS does not render a decision on an application within 120 days of the applicant's naturalization application, the applicant may apply to the district court for the district in which he resides to conduct a de novo hearing on the application. In such an instance, the district court may either determine the matter itself or remand the matter to the INS with instructions. 8 U.S.C. § 1447(b); 8 C.F.R. § 310.5 (2000). This point of intervention is not applicable in the instant case.

There is a second point at which an aggrieved applicant may seek redress in federal district court. As the court observed recently in Langer:

[I]f the INS denies a naturalization application — and that denial has been confirmed after an administrative appeal, consisting of a hearing before a senior naturalization officer — the disappointed applicant may seek de novo judicial review of the denial in the United States district court for the district in which she resides.
Id. at *2 (citing INA Section 310(c), 8 U.S.C. § 1421(c)) (emphasis added).

Pursuant to INA section 336(a), an alien whose naturalization application has been initially denied may seek administrative review by requesting a hearing regarding the denial before a senior INS examiner. See 8 C.F.R. § 336.1-.2 (2000). It is clear that Congress has made the exhaustion of the section 336(a) hearing process a prerequisite to judicial review, under INA section 310(c):

A person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(c) of this Title, may seek judicial 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.
8 U.S.C. § 1421(c)(emphasis added).

In Langer, the court dismissed the complaint where INS had conducted section 336(a) hearing but had not yet issued a final decision on the underlying naturalization application: "[B]ecause Langer's administrative review is not yet completed, Langer cannot yet seek redress pursuant to Section 310(c). Id. at *3 (citations omitted). In the instant case, the section 336(a) hearing has yet to take place. Mr. Sung has not exhausted his administrative remedies. Thus, the government argues, the case must be dismissed.

The petitioner responds by relying solely on one case from the Eastern District of New York, Kwok Wing Leung v. INS, 642 F. Supp. 607 (E.D.N.Y. 1986). In Kwok Wing Leung, the court ordered the INS to restore a petitioner to the naturalization calendar. As the government points out, however, the Immigration Act of 1990, Pub. L. No. 101-649, Title IV, 104 Stat. 4978 (Nov. 29, 1990) ("1990 Act"), overhauled the immigration law then in effect, and removed much of the responsibility for naturalization from the courts to the Attorney General. See discussion supra. Moreover, the 1990 Act created the administrative appeal process provided for in INA section 336(a). See 1990 Act, § 407(d)(14)(B), 104 Stat. 5044-45 (1990) (amending 8 U.S.C. § 1447(a) (1988)). In addition, as the foregoing discussion suggests, in 1990 Congress made the administrative appeal process a prerequisite to judicial review. See 8 U.S.C. § 1421(c). Thus, Kwok Wing Leung, which in any event is not binding on this court, does not appear to be good law.


Whereas the court lacks subject matter jurisdiction, the cases is hereby DISMISSED without prejudice.

As a final matter, the court notes that under the INA, a naturalization applicant has the right to seek review of a final decision denying his application, but only in the "district court for the district court in which [he] resides." 8 U.S.C. § 1421(c). At the time that he filed this action, it appears from the record that Mr. Sung lived in Queens, which is in the Eastern District of New York. The court advises Mr. Sung to consider the issue of proper venue in the event that he chooses to replead.


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