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Francisco Moya De Leon v. Janet Napolitano

May 23, 2011


The opinion of the court was delivered by: Denise Cote, District Judge:

(A041941 096)


Francisco Moya de Leon ("Moya de Leon") brings the above-captioned action pursuant to § 301 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1421(c) ("§ 1421(c)"), which provides for de novo review by a district court of an immigration officer's decision denying an application for naturalization. Id. The defendants have moved to dismiss Moya de Leon's amended complaint for failure to state a claim pursuant to Rule 12(b)(6), Fed. R. Civ. P. For the following reasons, the motion is granted.


Unless otherwise specified, the following facts are drawn from the plaintiff's amended complaint filed on December 3, 2010 (the "Complaint") and are assumed to be true for the purposes of this motion. Moya de Leon is a national of the Dominican Republic, but he has resided in the United States since 1988, when he was admitted as a conditional permanent resident. In May 1990, the conditions on his residency were lifted.

On or about March 18, 2009, Moya de Leon filed a Form N-400, Application for Naturalization (the "Application"), with the United States Citizenship and Immigration Service ("USCIS"). By decision dated September 21 (the "September 21 Decision"), USCIS denied Moya de Leon's Application. On October 1, plaintiff filed a timely administrative appeal of the September 21 Decision. That appeal was denied on August 10. On August 17, 2010, plaintiff commenced the above-captioned action pursuant to § 1421(c), seeking a de novo review of the USCIS decision denying his Application.

In September 2010, while this action was pending, Immigration and Customs Enforcement ("ICE") issued Moya de Leon a notice to appear in a removal proceeding, alleging that he is removable under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (as an alien who has been convicted of a controlled substance offense) and INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A) (as an alien who was inadmissible at the time of admission). On December 3, Moya de Leon filed an amended complaint seeking, inter alia, a declaratory judgment on the legality of the defendants' decision to deny his application, a declaratory judgment on his prima facie eligibility for naturalization, and an order directing the defendants to re-adjudicate his Application.

On January 28, 2011, the defendants filed a motion to dismiss the Complaint. Although the motion became fully submitted on March 4, on March 10, the Court granted The Legal Aid Society leave to file an amicus curiae brief in support of the plaintiff. The defendants filed a brief in opposition to the amicus curiae brief on March 31.


The defendants move to dismiss the Complaint pursuant to § 318 of the INA, 8 U.S.C. § 1429 ("§ 1429"), since a district court may not "consider" the naturalization application of an individual who is the subject of an ongoing removal proceeding. To address the merits of this motion, it is useful to describe, albeit briefly, the evolution of the statutory framework controlling naturalization and removal decisions.

Before 1990, naturalization was the "province of the courts and removal the province of the executive acting through the Attorney General." Perriello v. Napolitano, 579 F.3d 135, 138 (2d Cir. 2009) (citation omitted). To avoid a "race between the alien to gain citizenship and the Attorney General to deport him," § 27 of the Internal Security Act of 1950("§ 27") -- the statutory predecessor to § 1429 -- stated that "no petition for naturalization shall be finally heard by a naturalization court if there is pending against the petitioner a deportation proceeding." Ajlani v. Chertoff, 545 F.3d 229, 236 (2d Cir. 2008) (citation omitted) (emphasis supplied). "Thus, from 1950 to 1990, federal law clearly forbade district courts from ruling on naturalization applications while removal proceedings were pending against the alien applicant." Id.

The Immigration Act of 1990 (the "1990 Act"), Pub. L. No. 101-649, 104 Stat. 4978, "unified naturalization and removal authority in the executive by conferring 'sole authority to naturalize persons as citizens of the United States' on the 'Attorney General.'" Ajlani, 545 F.3d at 236 (citing 1990 Act). At the same time, the 1990 Act amended § 27 "by striking 'finally heard by a naturalization court' and inserting 'considered by the Attorney General.'" Id. (citing 1990 Act). Thus, § 1429 -- the modern equivalent of § 27 -- states, in relevant part, 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.

8 U.S.C. § 1429 (emphasis supplied).

Although the 1990 Act largely divested district courts of authority over naturalization proceedings, § 1421(c) permits "[a] person whose application for naturalization . . . is denied" to "seek review of such denial before the United States district court." 8 U.S.C. § 1421(c).*fn1 "Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law." Id. Section 1429, however, is ...

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