United States District Court, S.D. New York
July 21, 2014
MINA G. BESHAY, Plaintiff,
CAROL KELLER, U.S. Citizenship and Immigration Services New York District Director, Defendant.
OPINION & ORDER
PAUL A. ENGELMAYER, District Judge.
On July 1, 2013, Mina G. Beshay, proceeding pro se, filed an application for a writ of habeas corpus under 28 U.S.C. § 2241. Dkt. 1 ("Pet."). Beshay is a citizen of Egypt. In his petition, he challenges the denial of his application for naturalization as a United States citizen by the United States Citizenship and Immigration Services ("USCIS"), and seeks an order from this Court approving his application and granting him citizenship. See id. For the reasons that follow, Beshay fails to state a claim upon which relief may be granted. Beshay's petition is therefore dismissed.
In March 2012, Beshay submitted an N-400 application for naturalization, in which he claimed eligibility to naturalize pursuant to § 319(c) of the Immigration & Nationality Act ("INA"). Section 319(c) provides for a waiver of the INA's standard United States residency and physical presence requirements for individuals who, inter alia, are "employed by a bona fide United States incorporated non-profit organization which is principally engaged in conducting abroad through communications media the dissemination of information which significantly promotes United States interests abroad and which is recognized by the Attorney General." 8 U.S.C. § 1430(c). On December 21, 2012, USCIS issued a written decision denying Beshay's N-400 application. Dkt. 16 ("Connolly Decl.") Ex. D.
In January 2013, Beshay requested a hearing with respect to USCIS's December 21, 2012 decision to deny his application for naturalization. See Connolly Decl. Ex. E at 1. USCIS scheduled a hearing for March 13, 2013; Beshay did not attend. See id. After the hearing, on March 14, 2013, USCIS issued a decision affirming its denial of Beshay's N-400 application. Id.
On July 1, 2013, Beshay filed the instant petition. Dkt. 1. He challenges the denial of his application for naturalization by USCIS, and seeks an order from this Court approving his application and granting him citizenship. Specifically, he claims that he is eligible for naturalization pursuant to INA § 319(c) on the ground that he had been continuously employed, for a period of nearly six years, by Stavros Enterprises Corporation ("Stavros"), a qualifying nonprofit organization conducting business that significantly promotes U.S. interests abroad. See Pet. ¶ 9a. Beshay also claims that he is eligible for naturalization pursuant to INA § 317, which relaxes the physical presence requirement for individuals who are temporarily absent from the United States owing to their performance of "ministerial or priestly functions" or service "as a missionary, brother, nun, or sister" on behalf of a religious denomination or interdenominational mission organization "having a bona fide organization within the United States, " 8 U.S.C. § 1428. Pet. ¶ 9c.
On November 24, 2013, Beshay attempted to enter the United States at John F. Kennedy International Airport. See Dkt. 12 Ex. 1. The same day, United States Customs and Border Protection ("CBP") commenced removal proceedings against him pursuant to INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i). See Dkt. 12 Ex. 1. Specifically, CBP alleged that Beshay had fraudulently obtained a U.S. employment visa by claiming to work for a company that does not exist-Stavros, the same corporation he claims makes him eligible for naturalization. See id. Those removal proceedings are ongoing.
On January 17, 2014, the Government filed a motion to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, Dkt. 14, and a supporting memorandum of law, Dkt. 15. On February 28, 2014, Beshay submitted an Amended Complaint. Dkt. 22. On March 21, 2014, the Government submitted a letter renewing its motion to dismiss. Dkt. 23.
Under the decision in Ajlani v. Chertoff, 545 F.3d 229 (2d Cir. 2008), Beshay's petition must be dismissed. There, the plaintiff brought an action in district court seeking an order compelling his naturalization as a U.S. citizen. See id. at 231. After the complaint had been filed, he was placed in removal proceedings, and the Government moved to dismiss the complaint. See id. at 232-33. The district court granted the motion to dismiss on the grounds that (1) the court lacked jurisdiction to review the Attorney General's decision to commence removal proceedings; and (2) in light of the pending removal proceedings, the plaintiff failed to state a claim for a judicial order compelling or granting his application for naturalization. See id. at 233.
The Second Circuit affirmed. With respect to judicial review of the decision to commence removal proceedings, the court explained that
[t]he immigration code plainly states that "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under [relevant provisions of the INA]." 8 U.S.C. § 1252(g). While the statute creates an exception for "constitutional claims or questions of law, " see id. § 1252(a)(2)(D), jurisdiction to review such claims is vested exclusively in the courts of appeals and can be exercised only after the alien has exhausted administrative remedies, see id. § 1252(a)(2)(D), (a)(5), (b)(4), (d).
545 F.3d at 235. Accordingly, the district court lacked jurisdiction to review the propriety of the Attorney General's decision to commence removal proceedings against the plaintiff. See id.
Further, and relevant here, the Second Circuit ruled that once those removal proceedings had been initiated, plaintiff could not state a claim for naturalization relief under § 1447(c). The court explained that pursuant to 8 U.S.C. § 1429,  the Attorney General is "clearly prohibit[ed]... from making a final determination on naturalization while a removal proceeding is pending against the applicant." Id. at 238. To respect the "priority afforded removal proceedings by § 1429, " the court reasoned, "district court authority to grant naturalization relief while removal proceedings are pending cannot be greater than that of the Attorney General." Id. at 239, 240. Thus, once removal proceedings have been commenced, "the district court cannot compel the Attorney General to grant the alien's application for naturalization.'" Id. at 238 (explaining that the § 1429 bar cannot be overcome by "judicial fiat'") (quoting Zayed v. United States, 368 F.3d 902, 906 & n.2 (6th Cir. 2004)) (alterations and brackets omitted). "To hold otherwise would be to restart the race that Congress [in enacting the current version of § 1429] attempted to end between naturalization and removal proceedings." Id. at 240. Accordingly, the court concluded that "the district court properly dismissed [the plaintiff's] § 1447(b) claim for failure to state a claim on which naturalization relief could be granted while removal proceedings were pending." Id. at 241.
The Second Circuit's analysis in Ajlani similarly requires dismissal here. To the extent that Beshay challenges the CBP's commencement of removal proceedings against him, the Court lacks jurisdiction to review that decision. See id. at 241; see also 8 U.S.C. § 1252(g) ("[N]o court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under [relevant provisions of the INA]."). And, "in light of 8 U.S.C. § 1429, the pendency of those removal proceedings precludes [Beshay] from stating a claim for relief... in the form of an order either (a) compelling defendants to admit [him] to United States citizenship, or (b) directly granting his naturalization." Ajlani, 545 F.3d at 241; see also Moya de Leon, 2011 WL 1990876, at *3 (applying Ajlani and dismissing complaint brought by alien against whom removal proceedings had been initiated seeking naturalization relief under § 1421(c)).
Beshay's petition must, therefore, be dismissed.
For the foregoing reasons, the motion to dismiss is granted. The Clerk is directed to terminate all pending motions, and to close this case.