The opinion of the court was delivered by: Sandra L. Townes United States District Judge
TOWNES, United States District Judge*fn1
Plaintiff, Ramdeo Chankar Singh ("Singh"), brings this action, pursuant to 8 U.S.C. § 1421(c), against the District Director of United States Citizenship and Immigration Services ("CIS"), seeking de novo review of CIS's denial of his naturalization application. CIS now moves to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(6). For the reasons set forth below, the motion is granted, and Singh's application for naturalization is denied.
Singh was born on March 23, 1966, in Trinidad and Tobago. (Compl. ¶ 4.) On his fifteenth birthday, he entered the United States from Canada. (Id.) Although Singh admits that he is an undocumented alien, he nonetheless has an extensive history in the United States Armed Forces. (Memorandum of Law in Support of Motion to Dismiss, at 1.) He enlisted in the United States Army on September 29, 1993, and served until March 30, 1994. (Compl. ¶ 4.) Thereafter, Singh served in the United States Army Reserves from April 7, 1994, to January 13, 1998. (Id.) After he served in the Army Reserves, Singh re-enlisted in the Army on January 29, 1998, and was on active duty until March 2001, when he was honorably discharged. (Id.) During this period, Singh was stationed in Kosovo and served as a licensed practical nurse with the rank of sergeant. (Compl. ¶ 6.)
On February 3, 2003, Singh filed a naturalization application, under Section 329 of the Immigration and Nationality Act ("INA § 329"), 8 U.S.C. § 1440(a), and Executive Order 13,119. INA § 329(a) provides that:
[a]ny person who, while an alien or a noncitizen national of the United States, has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United States . . . during any . . . period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force, and who, if separated from such service, was separated under honorable conditions, may be naturalized as provided in this section if (1) at the time of enlistment, reenlistment, extension of enlistment, or induction such person shall have been in the United States, the Canal Zone, American Samoa, or Swains Island, or on board a public vessel owned or operated by the United States for noncommercial service, whether or not he has been lawfully admitted to the United States for permanent residence . . . .
In seeking naturalization, Singh asserted that Executive Order 13,119, 64 Fed. Reg. 18,797 (Apr. 13, 1999), is the sort of Executive order that Congress envisioned under INA § 329. Executive Order 13,119, which is entitled "Designation of Federal Republic of Yugoslavia (Serbia/Montenegro), Albania, the Airspace Above, and Adjacent Waters as a Combat Zone" provides:
Pursuant to the authority vested in me as President by the Constitution and laws of the United States of America, including section 112 of the Internal Revenue Code of 1986 (26 U.S.C. 112), I designate, for the purposes of that section, the following locations, including the airspace above such locations, as an area in which Armed Forces of the United States are and have been engaged in combat: -- The Federal Republic of Yugoslavia (Serbia/Montenegro) -- Albania -- the Adriatic Sea; -- the Ionian Sea north of the 39th parallel.
For the purposes of this order, I designate March 24, 1999, as the date of the commencement of combatant activities in such zone.
Singh received a hearing and appeared before CIS on September 17, 2004. (Compl. ¶ 7.) Although his naturalization application was initially recommended for approval, CIS denied Singh's naturalization application on December 1, 2004. (Compl. ¶ 7.) In its Decision on Application for Naturalization, CIS determined that Singh "[did] not meet the requirements under INA § 329" and that "Executive Order 13,119 never specifically designated the Kosovo Conflict for purposes of Section 329 of the INA, as previous orders did." (Compl.¶ 7.) CIS stated that:
[t]he last [Executive order relating to INA § 329] was Executive order 13269, signed by President Bush, [which] states that anyone serving in the military or receiving honorable discharge on or after 9/11/01, will be granted U.S. citizenship. Section 329 states "the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force, . . . ." The United States involvement with Kosovo does not meet the above definition. And according to your administrative file, you have not re-enlisted nor were you serving in the military on or after 9/11/2001 or the previously designated Executive order for Desert Storm 8/21/1990 to 4/11/1991. Unfortunately, all your military service falls between the last two (2) designated conflicts under Section 329. (Compl., Ex. D, p. 2.)
Singh appealed, but on April 15, 2005, CIS upheld its decision in its Decision on Review of Denial of Naturalization Application. CIS stated that, "after careful review of the record and all relevant statutes, the decision to deny the application for naturalization must remain unchanged." (Compl., Ex. G, p. 1.)
Singh then commenced this action pursuant to 8 U.S.C. § 1421(c)*fn2 , seeking de novoreview of his naturalization application. In his complaint, Singh alleges that Executive Order 13,119, entitles him to naturalization because it designates the time period he served in Kosovo as one where the Armed Forces are or were engaged in military operations involving armed conflict with a hostile foreign force. (Compl. ¶¶ 8-10.) In particular, Singh relies on President Clinton's use of the word "including," alleging that this word indicates that President Clinton ...