United States District Court, N.D. Ohio
OPINION & ORDER [RESOLVING DOC. 33]
S. GWIN, UNITED STATES DISTRICT JUDGE
citizen Elvira Vida came to the United States in January
2008. A year later, she married a U.S. citizen
and obtained conditional permanent resident status after that
early morning hours of January 5, 2012, U.S. Citizenship and
Immigration Services (“USCIS”) agents arrived at
Vida's home unannounced. They observed that Vida's
husband was absent, but another man (Janos Eiler) was
present. A few months later, Vida and her husband
divorced, apparently for unrelated reasons.
March 2015, Vida applied for naturalization, passing the
English and U.S. History test a few months
later. However, after a hearing, USCIS denied
Vida's application. In doing so, USCIS alleged that Vida
had obtained her permanent resident status through fraud,
because she was actually in a relationship with Eiler while
married to her husband.Now, on the same basis, Vida faces
brings this case, asking the Court to review her
naturalization denial. The Government moves to dismiss,
primarily arguing that the Court cannot review a
naturalization denial while removal proceedings are
pending. For the following reasons, the Court
GRANTS Defendants' motion.
Service on the Department of Homeland Security
outset, Defendants argue-in a footnote-that the Court should
dismiss the case under Federal Rule of Civil Procedure 4(m)
for Plaintiff's failure to serve the Department of
Homeland Security (“DHS”). This argument is about
as persuasive as its location suggests.
4(m) allows the Court to dismiss claims against a defendant
who has not been properly served, it does not authorize the
Court to dismiss an entire case. Because Vida brings no
claims against DHS, Rule 4(m) is inapplicable.
true that 8 C.F.R. § 336.9(b) requires a plaintiff
seeking naturalization review to serve (but not sue) DHS. But
the Government cites to nothing indicating that the failure
to do so warrants dismissal. The Court rejects this argument.
Judicial Review Under 8 U.S.C. § 1421(c)
8, Section 1421(c) of the U.S. Code authorizes district
courts to review naturalization denials. However,
naturalization authority resides solely with the Attorney
General. Thus, courts cannot order
naturalization, courts can only order the Attorney General to
naturalize a person. And therein lies the rub. Title 8,
Section 1429 of the U.S. Code prohibits the Attorney General
from considering a naturalization application while removal
proceedings are pending. Thus, the Court cannot provide
effective relief while Vida faces removal.
counters that, while § 1429 prohibits
“considering” a naturalization
application, it does not preclude reviewing an
already denied application; essentially arguing that §
1429's usage is forward looking only. Vida's reading
is unduly cramped; the term “consider” seems to
preclude any examination. Further, this argument
runs headlong into United States v. Zayed, where the
Sixth Circuit held that § 1429 barred review of an
already denied application.
Plaintiff argues that, § 1429 notwithstanding, the Court
could still issue a declaratory judgment holding that she
would be eligible but for the removal proceedings. While some
circuits allow this,  the Sixth Circuit has yet to
explicitly weigh in.
this Court believes declaratory relief is unavailable. First,
it would end-run the congressional policy decisions reflected
in § 1429. But more importantly, the Government
would be free to ignore the declaration unless Plaintiff
prevailed in the removal proceedings. A judgment
the defendant may ignore is no judgment at all. The Court is
constitutionally empowered to resolve cases, not issue
abstract impressions. ...