Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE.
This matter is before the Court on Defendants'
The Court previously recounted a detailed factual and procedural background of the case in its prior Order, but reiterates the pertinent facts here. See ECF No. 50 at 2-7.
Plaintiffs are siblings and citizens of Cambodia. ECF No. 69, First Amended Complaint, ¶¶ 2-6, 8. Both Plaintiffs currently reside in Fresno County, California, and were residents of Fresno County at all times relevant to this action. Id. ¶ 2, 5. Plaintiffs entered the United States on or about March 26, 2006. Id. ¶¶ 18, 49. They obtained lawful permanent resident ("LPR") status in the United States on or about April 3, 2006, through their father, Neth Yith. Id. ¶¶ 4, 7-8. At the time Plaintiff Seanlim Yith obtained LPR status she was 14 years old. At the time that Plaintiff Seak Yith obtained LPR status he was 11 years old. Id. Neither Plaintiff has relinquished, abandoned or been divested of their LPR status, and they both have resided continuously in the United States since their entry in March 2006. Id.; see also ¶¶ 17, 69.
On or about February 4, 2011, Seanlim filed a Form N-400, Application for Naturalization, with USCIS. Id. ¶ 2. Seanlim's naturalization interview was initially scheduled for July 20, 2011, but was cancelled due to "unforeseen circumstances." Id. ¶¶ 19, 20. On or about December 21, 2012, Seak Leang filed a Form N-400, Application for Naturalization with USCIS. Id. ¶ 5. Seak Leang's interview was initially scheduled for June 20, 2013, but was also cancelled on account of "unforeseen circumstances." Id. ¶¶ 70-71.
On or about February 20, 2014, Plaintiffs first contacted USCIS through their attorney to inquire about the status of their applications. Id. ¶ 88. They received no response from USCIS until April 2014, and were only then told that the adjudication of their applications was "delayed." Id. On May 15, 2014, a USCIS officer emailed Plaintiffs that their cases were "pending," that there are a "small percentage of cases involving unresolved issues that may result in adjudication delays," and that "[USCIS] [is] unable to determine at this time when the review process will be completed." Id. ¶ 86. The email continued, "We understand that your clients may be frustrated ... However, USCIS must balance individual
On October 9, 2014, Plaintiffs again contacted USCIS through their attorney. Id. ¶ 96. They received a response on October 24, 2014, in which Defendant Crawford
On November 25, 2014, Plaintiffs filed the original complaint in this case, over three years after Seanlim filed her naturalization application and nearly two years after Seak Leang filed his application. ECF No. 1. Plaintiffs cited 8 U.S.C. § 1447(b), which authorizes naturalization applicants to apply to the relevant district court for a hearing if "there is a failure to make a determination" on their naturalization petition within 120 days after a naturalization "examination" occurs. Id. at 2.
However, on February 24, 2015, USCIS issued interview notices in connection to Plaintiffs' naturalization applications, scheduling their interviews for March 10, 2015. ECF No. 23. In light of this development, on March 2, 2015, the parties stipulated to hold the matter in abeyance, and to file status reports by May 1, 2015. Id. Plaintiffs' interviews took place as scheduled. ECF No. 27 at 3. At their respective interviews, Plaintiffs, accompanied by counsel, confirmed that they had never met their U.S. citizen step-mother Sarin Meas, who had petitioned for them to enter the United States, and whose relationship to them forms the basis of their status in the United States. ECF No. 36-1 at 3, 7; ECF No. 39 at 1. Additionally, Plaintiff's were told, ostensibly for the first time, that in 2011, the DHS had obtained an adverse statement from Ms. Meas. ECF No. 42 at 6. Plaintiffs and counsel were not shown the actual statement at the time of the interview. Id. The interviewing officer told Plaintiffs that they were otherwise eligible for naturalization "but for the fact that USCIS believed that the marriage leading to their qualifying relationship was a sham." Id.
On March 24, 2015, USCIS issued notices of intent to deny Plaintiffs' naturalization applications. ECF No. 36-1. According to these notices, USCIS intended to deny Plaintiffs' applications on the grounds that they are ineligible for naturalization under section 316 of the Immigration and Nationality Act ("INA"). ECF No. 36-1, at 3, 7. Specifically, the notices alleged that the marriage between Plaintiffs' father and Ms. Meas "was entered into for the sole purpose of granting [Plaintiffs' father] an immigration benefit," which under the law, is "invalid from its inception and cannot under any circumstances be the basis of a step-relationship under [INA § 101(b)(1)(B)]." Id. Furthermore, the notices quoted a sworn statement taken from Ms. Meas by a DHS official, dated September 6, 2011, which reads in its entirety as follows:
Id. Plaintiffs responded to those notices on April 24, 2015, arguing that Ms. Meas's statement is insufficient to demonstrate their ineligibility for naturalization. ECF No. 27 at 2; ECF No. 39-1. To allow USCIS time to review Plaintiffs' responses and issue a decision, the parties stipulated to hold the lawsuit in abeyance for an additional sixty days, and file status reports on or by June 30, 2015. Id.
On June 30, 2015, Plaintiffs and Defendants filed separate status reports. ECF Nos. 27, 29. Plaintiffs indicated that they intended to seek leave to amend or supplement their complaint. ECF No. 27 at 4. Defendants indicated that USCIS anticipated adjudicating Plaintiffs' applications before July 8, 2015, 120 days after Plaintiffs were interviewed, and the date that the district court's jurisdiction under 8 U.S.C. § 1447(b) could properly be invoked. ECF No. 29 at 2.
On July 24, 2015, the Court ordered Defendants to notify the Court as to whether Plaintiffs' naturalization applications had been adjudicated. ECF No. 30. On July 31, 2015, Defendants filed a notice of administrative action to inform the Court that USCIS had initiated removal proceedings against Plaintiffs. ECF No. 31.
On September 9, 2015, Defendants filed a motion to dismiss, arguing, in part, that the complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6) because the pendency of removal proceedings against Plaintiffs renders the Court unable to provide Plaintiffs with the relief they have requested. ECF No. 36. at 9-10. Defendants attached to their motion copies of the Forms I-862, Notices to Appear ("NTA"), dated July 7, 2015, issued to each respective Plaintiff, purporting to place both Plaintiffs in removal proceedings under section 240 of the INA. ECF No. 36-2.
The Court granted Defendants' motion to dismiss pursuant to 12(b)(6) for failure to state a claim "without prejudice to refiling if and when removal proceedings conclude in Plaintiffs' favor." ECF No. 50 at 20. In dismissing the claim, the Court found that it was compelled to dismiss Plaintiffs' case because "Section 1429 precludes the Court from [adjudicating the Plaintiffs' naturalization application or from ordering USCIS to adjudicate the applications] while Plaintiffs are in removal proceedings." ECF No. 50 at 19.
On appeal, the Ninth Circuit reversed, finding that 8 U.S.C. § 1429 "does not preclude a district court from considering a naturalization application that is properly before the court pursuant to § 1447(b)." Yith v. Nielsen, 881 F.3d 1155, 1161 (9th Cir. 2018). In making this finding, the Ninth Circuit interpreted the provision of § 1429 which provides "no 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; Yith, 881 F.3d at 1161. The Ninth Circuit found that this provision of § 1429 applies only to the Attorney General, not the district court, and therefore "the district court erred in concluding that the reference to the Attorney General in § 1429 prevented it from granting relief under § 1447(b)." Id. at 1165. The Ninth Circuit also interpreted the meaning of "pursuant to a warrant of arrest" and found that "the plain meaning of the term `warrant of arrest' is an order authorizing law enforcement to seize and detain a person as necessary for the administration of law." Id. at 1166. Accordingly, the Ninth Circuit found that the notices to appear that the Yiths received were not equivalent to "a warrant of arrest" as referenced in § 1429 and that "this portion of § 1429 was inapplicable to their case" for this second reason. Id. at 1168 (concluding that "[b]ecause the district court is not the executive branch and there was no pending removal proceeding pursuant to a warrant of arrest, § 1429 was not applicable.").
While the appeal was pending, removal proceedings continued. ECF Nos. 78-1 & 78-2 at ¶ 11. On July 20, 2017, a Master Calendar Hearing occurred for both Plaintiffs. Id. at ¶ 12. The Immigration Judge administratively closed both cases on April 12, 2018. Id.
Following the appeal and remand, the Plaintiffs filed a first amended complaint on June 8, 2018. ECF No. 69. By motion filed on July 31, 2018, Defendants moved to remand the case to USCIS for "prompt adjudication" of the naturalization applications by USCIS within 30 days. ECF No. 78 at 3, 5. Plaintiffs additionally filed a motion for sanctions against Defendants pursuant to Federal Rule of Civil Procedure 11 claiming that the filing of the motion to remand was vexatious and frivolous since USCIS does not have authority to review the applications while removal proceedings are still pending. ECF No. 80.
8 U.S.C. § 1447(b) provides that if USCIS fails to make a determination on
Defendants now request that the Court, in its discretion, remand the matter to USCIS for "prompt adjudication." ECF No. 78 at 3. Defendants contend that since the removal proceedings have been administratively closed and the Ninth Circuit has remanded the case to the district court, there "is no further barrier to the agency's adjudication of each of Plaintiff's [sic] naturalization application[s]." Id. at 3. Defendants request the Court exercise its discretion and remand with instruction to adjudicate within 30 days. Id. at 5. In support of their motion, Defendants argue that the executive branch is uniquely situated to determine the Plaintiffs' eligibility for naturalization and as a result the vast majority of district courts remand these matters to USCIS to decide in the first instance whether to grant or deny citizenship. Id. at 4. Defendants point out that even if Plaintiffs' applications are denied, Plaintiffs can return to the district court for a review of that denial after exhausting their administrative appeal pursuant to 8 U.S.C. § 1421(c).
Defendants cite to two Eastern District of California cases for the proposition that "[t]he vast majority of district courts remand lawsuits filed under § 1447(b) for USCIS to decide in the first instance whether to grant or deny an application for naturalization." Gill v. Crawford, No. 1:15-CV-1633-MCE-MJS, 2016 WL 880952, at *1 (E.D. Cal. Mar. 8, 2016); Rashid v. Dep't of Homeland Sec., No. 2:14-CV-2109-JAM-KJN, 2017 WL 1398847, at *2 (E.D. Cal. Apr. 19, 2017) ("the majority of district courts have remanded the case to USCIS for adjudication."); ECF No. 78 at 4. The reasoning for remand to the agency for an initial determination focuses on the fact that "[t]he agency can bring its expertise to bear
Plaintiffs oppose the motion to remand by making two principal arguments. First, Plaintiffs argue that remand to USCIS is not possible either because either there is an absence of jurisdiction in DHS or a lack of authority of DHS to determine Plaintiffs' applications due to the pending removal proceedings. ECF No. 79 at 6-9. Second, Plaintiffs argue that even if remand is possible, it should not be ordered because of several independent reasons, namely the considerable equities of this case. Id at 10-17.
Plaintiffs argue that none of Defendants' cited authority deals with remand of a naturalization application to USCIS where removal proceedings are still pending. ECF NO. 79 at 8-9.
In response, Defendants submit that Plaintiffs confuse the issue by citing regulations defining the immigration court's jurisdiction over removal proceedings but that have no bearing on USCIS's jurisdiction regarding the separate and distinct authority over naturalization applications. ECF No. 81 at 4. Defendants point out that the regulations cited to by Plaintiffs in their opposition, namely 8 C.F.R. 1003.14 and 8 C.F.R. § 1239.2, fall within Chapter V of Title 8 of the Code of Federal Regulations ("CFR") which is titled "Executive Office for Immigration Review, Department of Justice." ECF No. 81 at 5, n.4. Correspondingly, these regulations are not applicable to naturalization proceedings that are before the USCIS under separate statutory grant and the regulations applicable for naturalization statutes appear in Chapter I of Title 8 of the CFR which is titled "Department of Homeland Security" since USCIS is an agency that is part of the DHS, not the DOJ. Id. at 6.
"The sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General." 8 U.S.C. § 1421(a). The "Attorney General" in this statute has been defined to mean USCIS. Yith, 881 F.3d at 1158 ("courts
Nor does the court agree with Plaintiffs that 8 C.F.R. § 1239.2(f) underscores the "jurisdictional limits regarding naturalization applications." ECF No. 79 at 7. The regulation, which like § 1003.14 is also applicable to Immigration Judges, provides for when an Immigration Judge may terminate removal proceedings to permit an alien to proceed to a final hearing on a pending naturalization application.
The Plaintiffs have not cited any persuasive authority to support their argument that the regulations applicable to Immigration Judges, namely 8 C.F.R. § 1003.14(a) and 8 C.F.R. § 1239.2, somehow strip USCIS of authority to decide the naturalization applications, particularly in light of the Ninth Circuit's decision. Accordingly, the Court is not convinced by Plaintiffs argument that USCIS does not have authority or jurisdiction on remand to make determinations on Plaintiffs' naturalization
Plaintiffs second argument is that even if remand is possible, there are several independent reasons why this Court should not in the exercise of its discretion order remand to USCIS on the facts of this case. ECF No. 79 at 10-17. Plaintiffs submit four independent reasons why the case should not be remanded to USCIS, the most convincing of which is the substantial delay that has already occurred as well as the additional potential delay that may result if the matter is remanded. Plaintiffs argue that they would be further frustrated and delayed by remand after an already lengthy delay by USCIS. Plaintiffs' naturalization applications have been pending since 2011 and 2012. Plaintiffs had their naturalization examinations on March 10, 2015. Plaintiffs point out that Defendants previously indicated to this Court in a filing that USCIS would make a determination on the naturalization applications within the 120 days following the examination interviews but instead issued Plaintiffs NTAs in removal proceedings on the 120-day deadline. ECF No. 79 at 11.
More than three years have passed since the date of Plaintiffs' interviews. Courts that have declined to remand to USCIS consider the length of delay since 8 U.S.C. § 1447(b) was enacted with the aim of avoiding long delays. See Rashid, 2017 WL 1398847, at *2 (E.D. Cal. Apr. 19, 2017) ("In the few cases where a district court opted to adjudicate the matter itself, the application had been pending for a lengthy period and the defendants failed to assure the court that a swift decision could be made on remand."); Hovsepian, 359 F.3d at 1163 ("A central purpose of the statute was to reduce the waiting time for naturalization applicants.").
Additionally, USCIS already issued a notice of intent to deny the naturalization applications in 2015 but declined to issue a determination within the 120-day window when it had the opportunity to do so (even after representing it would). The Court has every indication that USCIS will deny the naturalization applications based on the notices of intent to deny. Thus, remanding to USCIS in this matter for a determination would only serve to further delay the district court's review of this matter and add an additional layer of administrative review through the administrative appeal process in a case where Plaintiffs have already been subjected to a lengthy delay and an appeal to the Ninth Circuit. "Congress gave the last word to the district courts for delayed or denied applications." Hovsepian, 359 F.3d at 1164. Defendants' suggestion that Plaintiffs are equivalently able to receive judicial review of the agency decision under 8 U.S.C.
Plaintiffs have submitted, and Defendants do not appear to dispute, that they have met all the requirements for naturalization save for a single issue that is in dispute. The single issue for resolution hinges on the 2011 statement of Plaintiffs' stepmother. The agency's notice of intent to deny cites the statement as the reason why Plaintiffs cannot show that they have been lawfully admitted for permanent residence. ECF No. 36-1. USCIS thus stated that Plaintiffs could not meet their burden of proving their lawful permanent resident status under 8 U.S.C. § 1429. Id. Plaintiffs further contend that there has been no determination in the removal proceedings affecting Plaintiffs' legal permanent resident status or whether they can be removed. ECF No. 79 at 5-6. Hence, this does not appear to be "the type of case where the Court or the parties do not have all the information needed to adjudicate an application." Khan, 2009 WL 54236, at *3. This is not a case where the Court must await the results of an F.B.I. criminal background check or name check which constitute a large number of cases that get remanded. See Kurtis A. Kemper, Construction and Application of 8 U.S.C.A. § 1447(b), 45 A.L.R. Fed. 2d 621 at § 16 (originally published in 2010) (collecting cases where remand was granted). The facts of this case are not typical or similar to those cases that are routinely remanded to the agency for determination.
The amount of time Plaintiffs' naturalization applications have been pending without a determination is the major focus of the Court's decision on whether to remand. An order remanding just adds another layer of review, this time administrative review, and will result in further delay before achieving a final determination on Plaintiffs' naturalization applications. Because the Court has determined not to remand based on the issue of delay, the Court declines to reach the remaining arguments in Plaintiffs' opposition.
Defendants' motion to remand to USCIS for a determination on the naturalization application is DENIED.
Plaintiffs filed a motion for sanctions against Defendants pursuant to Federal Rule of Civil Procedure 11 claiming that the filing of the motion to remand was vexatious and frivolous since USCIS does not have authority to review the applications while removal proceedings are still pending. ECF No. 80-1 at 8. Plaintiffs seek $6,225 in attorney's fees for preparing and filing the motion for sanctions and for fees in responding to the motion to remand. ECF No. 80 at 6.
Federal Rule of Civil Procedure 11 "imposes on any party who signs a
Plaintiffs' core argument in support of their request for the imposition of sanctions is based on their contention that the motion to remand has no basis in law because USCIS does not have authority to review the applications while removal proceedings are "pending." ECF No. 80-1 at 9-10. The Court has already found this argument to be without support The Plaintiffs have not submitted any authority for why the regulations cited by Plaintiffs that apply to Immigration Judges, namely 8 C.F.R § 1003.14 and 8 C.F.R. § 1239.2, would revoke USCIS's authority or jurisdiction to make determinations on the naturalization application, particularly in light of the Ninth Circuit's decision on this matter. See supra section II.A.1. Correspondingly, the Court rejects Plaintiffs' characterizations of the law that there is no basis in law for what Defendants' remand request. 8 U.S.C. § 1447(b) plainly provides the authority for the Court to remand to the agency with appropriate instructions. While the Court here denies the motion to remand, § 1447(b) clearly provides a basis for the Defendants' motion. Therefore, Defendants' motion for remand was not frivolous or baseless and Plaintiffs' have not met the high bar to show sanctions are warranted.
The Court understands Plaintiffs' frustrations with the delays they have experienced in this case. However, the Plaintiffs' motion for sanction does not meet the requirements under Rule 11 for imposing sanctions. Plaintiffs' motion for sanctions is DENIED.
For all the foregoing reasons, the Defendants' motion to remand (ECF No. 78) is
The Court refers the matter to the Magistrate Judge for efficient and immediate scheduling in light of the unreasonable amount of time that has already passed.
IT IS SO ORDERED.
ECF No. 50 at 22-23.
