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Bustamante v. Napolitano

September 28, 2009

CARLOS BUSTAMANTE, PLAINTIFF-APPELLANT,
v.
JANET A. NAPOLITANO,*FN1 SECRETARY OF U.S. DEPARTMENT OF HOMELAND SECURITY, JONATHAN QUARANTILLO, DISTRICT DIRECTOR, NEW YORK DISTRICT, USCIS, MARK J. MERSHON, ASSISTANT DIRECTOR IN CHARGE, FEDERAL BUREAU OF INVESTIGATION, DEFENDANTS-APPELLEES.



SYLLABUS BY THE COURT

Plaintiff-appellant Carlos Bustamante appeals from a judgment of the United States District Court for the Southern District of New York (McMahon, J.), granting defendantsappellees' motion to dismiss the complaint as moot. The issue on this appeal is whether United R. SCHARFEN, Acting Director, U.S. Citizenship and Immigration Services, ANDREA States Citizenship and Immigration Services ("USCIS") can still decide a naturalization application after an applicant files a petition in district court pursuant to 8 U.S.C. § 1447(b). Section 1447(b) provides that an applicant can bring a petition to the district court when USCIS has not decided the application for more than 120 days after the initial examination of the applicant. The district court "has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter." 8 U.S.C. § 1447(b). We conclude that only the district court has jurisdiction to determine a naturalization application when the applicant files a Section 1447(b) petition. Because USCIS did not have the power to adjudicate the application after Bustamante filed the Section 1447(b) action with the district court, this action is not moot.

REVERSED and REMANDED.

The opinion of the court was delivered by: Pooler, Circuit Judge

Argued: March 27, 2009

Before: STRAUB, POOLER, RAGGI, Circuit Judges.

Plaintiff-appellant Carlos Bustamante appeals from a judgment of the United States District Court for the Southern District of New York (McMahon, J.), granting defendantsappellees' motion to dismiss the complaint as moot. 8 U.S.C. § 1447(b) provides that a naturalization applicant can bring a petition to the district court when United States Citizenship and Immigration Services ("USCIS") has not decided the application for more than 120 days after the initial examination of the applicant. The district court "has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter." 8 U.S.C. § 1447(b). In this case, the district court ruled that USCIS could still decide Bustamante's naturalization application after he filed a Section 1447(b) petition. Since USCIS denied Bustamante's application, the district court deemed this Section 1447(b) action moot.

The issue on this appeal is whether USCIS can still decide a naturalization application after an applicant files a Section 1447(b) petition in district court. We conclude that only the district court has jurisdiction to determine a naturalization application when, after USCIS has failed to adjudicate the application within 120 days of the initial examination, the applicant files a Section 1447(b) action. Although a properly filed Section 1447(b) petition removes USCIS's power to decide the naturalization application, USCIS still can recommend a disposition to the district court or request a remand for the agency to determine the application. It is incumbent upon the district court, however, to "determine the matter or remand the matter." 8 U.S.C. § 1447(b). Because USCIS did not have the power to adjudicate the application after Bustamante filed a Section 1447(b) action with the district court, this action is not moot. We therefore reverse and remand to the district court.

BACKGROUND

Bustamante, a native of Mexico, has been a lawful permanent resident ("LPR") since 1972. In 2006, thirty-four years after becoming an LPR, Bustamante filed a naturalization application on the grounds that he was an LPR residing in the United States for at least five years and showed good moral character during the five-year period preceding his application.*fn2 On

February 1, 2007, he was interviewed by a USCIS officer.

Section 1447(b) provides:

If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.

8 U.S.C. § 1447(b). On July 5, 2007, without a decision from USCIS more than 120 days after his initial interview, Bustamante filed a Section 1447(b) petition in the United States District Court for the Southern District of New York, seeking to have the court hold a hearing on his application and either grant the application or remand it to USCIS with an instruction to grant it.

On August 24, 2007, after Bustamante filed his Section 1447(b) petition, USCIS denied Bustamante's application based on his 1982 involuntary manslaughter conviction for his involvement in a fight that resulted in a person's death. Though the conviction occurred outside the five-year statutory period and the record does not contain reference to other offenses, USCIS determined that Bustamante failed to show good moral character based on the conviction.*fn3 In its denial, USCIS informed Bustamante that he could request a hearing on the decision within 30 days. Bustamante did not seek a hearing. Defendants then brought a motion to dismiss the Section 1447(b) petition as moot based on USCIS's denial of the application. ...


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