JEFFREY L. VIKEN, District Judge.
On December 31, 2008, plaintiff Hong Yin, a Chinese citizen and a lawful permanent resident of the United States, filed
Plaintiff's case was originally filed in the United States District Court for the District of Minnesota. After that court determined it lacked jurisdiction, plaintiff's case was transferred to the Western Division of the District of South Dakota for final resolution. (Docket 33). This court allowed plaintiff an opportunity to amend her complaint or file any supplemental pleadings pursuant to 28 U.S.C. § 1653, on or before June 14, 2010. (Docket 41). Plaintiff chose to have her case decided on the present record. (Docket 42).
The material facts are not in dispute. The material facts identified by United States Magistrate Judge Franklin L. Noel in his report and recommendation (Docket 25) were not challenged. United States District Judge John R. Tunheim rejected the report and recommendation on procedural grounds. (Docket 33). Neither the plaintiff's objections (Docket 28) nor the defendants' objections (Docket 31) to the report and recommendation raised significant factual errors by the magistrate judge. This court adopts the findings of the magistrate judge, except where noted otherwise, as its own findings.
Hong Yin is a Chinese citizen seeking to become a United States citizen through the naturalization process. (Docket 1). Ms. Yin married Frank Kmiec, a United States citizen, on February 20, 2002. Id. at p. 2. She obtained her United States permanent resident card on September 28, 2005. (Docket 1-2, p. 1).
Mr. Kmiec started his employment with Fallon Neon, in Shanghai, China, on January 9, 2006. (Docket 1-2, p. 2 and Administrative Record ("AR") p. 70). Mr. Kmiec was the general manager of that manufacturing plant. (Docket 1-2, p. 2). Fallon Neon is a visual products corporation headquartered in Spartanburg, South Carolina. (AR p. 70). Yin moved to Shanghai, China, on January 15, 2006, to live with her husband. (AR p. 75). On September 29, 2006, she filed her application for naturalization while living in China. (AR pp. 122-23).
Hong Yin was first interviewed by United States Citizenship and Immigration Services ("CIS") on January 31, 2007. (Docket 1-2, p. 6). During the interview, Ms. Yin "passed the English language and American history examinations, and ... established her good moral character and attachment to the principles of the United States." Id. p. 13. After her interview, CIS requested five items of her. Id. p. 8. Those items are summarized as follows:
Id. (summarized).
In a letter to CIS dated February 5, 2007, Ms. Yin stated she intended to move back to the United States with her husband "if and when his employment is finalized with Fallon Neon in Shanghai China." (AR p. 75). Fallon Neon sent a letter to CIS on March 12, 2007, stating that Mr. Kmiec's employment with the company ended on January 12, 2007, but that he would remain on the payroll until March 26, 2007. (Docket 16). See also AR p. 122.
CIS denied Ms. Yin's application for naturalization on March 28, 2007. (Docket 1-2, pp. 10-11). CIS made that decision because Mr. Kmiec was no longer employed by American-based Fallon Neon in Shanghai, China, and Ms. Yin was "statutorily ineligible for naturalization under Section 319(b) of [the Immigration and Nationality Act]." Id. On May 21, 2007, Hong Yin filed a request for a hearing with CIS on the denial of her application. (Docket 1-2, pp. 12-17). She filed this request because she "believes that she met the statutory guidelines in submitting her application for naturalization." Id. p. 12.
CIS conducted a second interview of Ms. Yin on November 13, 2007.
Ms. Yin testified that she and her husband were currently "self-employed" and operating a business in China which she owned since before her marriage to Mr. Kmiec.
Because CIS failed to timely rule on Ms. Yin's appeal, she filed her petition in federal court on December 31, 2008. (Docket 1). CIS denied Ms. Yin's appeal on February 19, 2009. (Docket 15). The reasons for the denial are summarized as follows:
Id. at pp. 3-4. That denial was without prejudice to the right of Ms. Yin to file a new application in the future. Id. at 4.
Ms. Yin filed this lawsuit because as she alleges "[h]er petition for naturalization has been unlawfully and unreasonably delayed." (Docket 1, ¶ 2). Her petition alleges the federal district court has jurisdiction "under 8 U.S.C. § 1447(b) ... because the United States Citizenship and Immigration Service ("USCIS") has failed to adjudicate the application despite the passage of more than 120 days since the Petitioner's naturalization examination." Id. at ¶ 4. Ms. Yin also asserted jurisdiction under 28 U.S.C. § 2201, the Declaratory Judgment Act, to "order the Defendants to promptly adjudicate ... the currently pending application for naturalization." Id. ¶ 4 and p. 11. As indicated above, approximately two months after Ms. Yin filed her petition in federal district court in Minnesota, CIS denied Ms. Yin's appeal after determining she did not satisfy the § 1430(b) requirements. (Docket 15).
As Magistrate Judge Noel concluded in his report and recommendation, Ms. Yin's claim was moot because CIS ruled on her appeal. (Docket 25, p. 5). However, she could still amend the complaint and appeal the CIS final ruling under 8 U.S.C. § 1421(c). Id. Ms. Yin did not move to amend her petition in the Minnesota action, and similarly chose not to accept this court's invitation to amend her complaint. (Docket 41). Rather, she chose to have her case decided on the present record. (Docket 42).
The court may exercise jurisdiction over a naturalization application only in two circumstances:
Section 1447(b) provides:
8 U.S.C. § 1447(b) (emphasis added).
The defendants cite Al Hamati v. Gonzalez, No. 4:09CV00676 ERW, 2010 WL 623716 (E.D.Mo. Feb. 18, 2010) for the proposition that once CIS has acted on the naturalization application, a petitioner no longer may bring an action under
Id. at n. 5.
This court is inclined to accept the logic and rationale used by the court in Bustamante to resolve Ms. Yin's jurisdictional issue:
Bustamante, 582 F.3d at 407 (internal citation omitted). But once a "naturalization applicant chooses to file a Section 1447(b) petition, the district court acquires jurisdiction that is `exclusive' in the sense that USCIS is no longer empowered to decide the application." Id.
Rather than request a de novo hearing before this court, Ms. Yin chose to have a decision made on her naturalization application based on the present record. (Docket 42). Thus, the court has before it the same evidence presented to CIS. The undisputed facts are those stated above. The only question is whether the court arrives at the same legal conclusion as did CIS on Ms. Yin's application.
Section 319(b) of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., provides, in pertinent part, as follows:
8 U.S.C. § 1430(b). When interpreting any federal statute, the court must first examine the statutory text. Hovsepian, 359 at 1159. In completing that evaluation, the court should give "substantial deference to ... [the] interpretation of statutes and the regulations administered by the agency." Azie v. Holder, 602 F.3d 916, 919 (8th Cir.2010).
Title 8, Code of Federal Regulations, Part 319.2, provides in pertinent part:
8 C.F.R. Part 319.2(a).
As part of the review of Ms. Yin's naturalization application, CIS properly inquired as to the status of Ms. Yin's spouse to determine whether he, in fact, qualified as a employee of a United States based company overseas. Ms. Yin has the burden of proof as to her qualifications for naturalization. I.N.S. v. Pangilinan, 486 U.S. 875, 886, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988) ("[I]t has been universally accepted that the burden is on the alien applicant to show [her] eligibility for citizenship in every respect....").
It was while her application for naturalization was under review that CIS learned Ms. Yin's spouse was no longer employed by Fallon Neon. She also disclosed to CIS that she and her husband remained in China, after his employment with Fallon Neon ended, to manage two Chinese owned factories.
Section 1430(b) contemplates the applicant's citizen spouse be employed by an American firm, both at the time of her application for naturalization and at the time of acceptance for naturalization. If the citizen spouse is relieved of that foreign employment, the applicant must immediately return and intend to remain in the United States through naturalization. To interpret § 1430(b) otherwise would allow an applicant to have a citizen spouse employed by an American firm in a foreign county on the date of application, leave that employ the next day, and permit the applicant to live in a foreign county up to the date of naturalization. That is not a reasonable statutory interpretation of § 1430(b) or Part 319.2.
Ms. Yin has not satisfied the requirements of § 1430(b) as implemented by 8 C.F.R. Part 319.2(a)(1) and (a)(4)(ii). Thus, Ms. Yin is no longer qualified for naturalization under 8 U.S.C. § 1430(b).
Based upon the above analysis, it is hereby
ORDERED that the petition for naturalization (Docket 1) is denied without prejudice.
IT IS FURTHER ORDERED that the petition for declaratory relief (Docket 1) is denied as moot.
IT IS FURTHER ORDERED that petitioner's application for attorney fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, (Docket 1) is denied.