                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0419n.06

                                            No. 09-3437                                      FILED
                                                                                          Jul 13, 2010
                                                                                   LEONARD GREEN, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


NUZAIRA M. RAHMAN,

        Plaintiff-Appellant,

                v.                                                    On Appeal from the United
                                                                      States District Court for the
JANET NAPOLITANO, EMILIO T. GONZALES,                                 Northern District of Ohio at
and MARK B. HANSEN,                                                   Cleveland

        Defendants-Appellees.




                                                               /

Before:         GUY, BOGGS, and SUTTON, Circuit Judges.

        RALPH B. GUY, JR., Circuit Judge.               Plaintiff Nuzaira Rahman appeals from the

dismissal of her pro se complaint requesting that the district court adjudicate her application

for naturalization or remand the matter for adjudication by the United States Citizenship and

Immigration Services (USCIS) pursuant to 8 U.S.C. § 1447(b).1 The district court dismissed

the complaint without prejudice in reliance on 8 U.S.C. § 1429, which restricts the authority

to consider an application for naturalization while removal proceedings are pending.

Plaintiff claims that it was error for the district court (1) to conclude that § 1429 deprived the


        1
         Pursuant to Fed. R. App. P. 43(c)(2), Janet Napolitano, Secretary of the Department of Homeland
Security (DHS), is automatically substituted for her predecessor Michael Chertoff.
No. 09-3437                                                                                            2

district court of jurisdiction under § 1447(b); and (2) to reject her plea to vacate the USCIS’s

subsequent denial of her application for naturalization, the error being either (a) because the

district court’s jurisdiction under § 1447(b) is exclusive, or (b) because the USCIS was

precluded from doing so by the limitations of § 1429.2

        Finding that § 1429 limits the district court’s authority to grant relief under § 1447(b),

or determine the USCIS’s jurisdiction or authority to act on the delayed application for

naturalization, we affirm the dismissal of the complaint without prejudice.

                                                        I.

        Plaintiff Nuzaira Rahman, a native and citizen of Bangladesh, received Lawful

Permanent Resident (LPR) status on November 17, 2000. In May 2004, plaintiff applied for

naturalization as the spouse of a United States citizen.3                      Plaintiff was examined for

naturalization on November 26, 2004, and passed all the tests that were administered. More

than 120 days passed without decision on the application for naturalization.

        In April 2005, a federal indictment charged plaintiff’s husband Abrar U. Haque (and

a number of others) with various offenses. Plaintiff was charged in the same indictment

(under her married name) with several offenses. In January 2007, after her husband was

convicted at trial of multiple offenses, plaintiff pleaded guilty to one count of furnishing

inaccurate information to the Commissioner of Social Security and was sentenced to two

years’ probation. She claims that she believed that this conviction would not result in her


       2
         The Ohio Affiliate of the Council on American-Islamic Relations filed an amicus curiae brief in
support of plaintiff’s contention that § 1447(b) grants exclusive jurisdiction to the district courts.
        3
            Plaintiff also has five children who are United States citizens.
No. 09-3437                                                                                  3

removal.

        However, on April 7, 2008, the Department of Homeland Security (DHS) served

plaintiff with a Notice to Appear, which charged her with removability on account of both

that 2007 conviction and an undisclosed 1998 order of removal that was entered in absentia.

Attacking the removal from more than one direction, plaintiff sought to vacate her

conviction, tried to halt the removal proceedings, and instituted this action to obtain a

decision on the four-year-old application for naturalization.

        Specifically, not having appealed her judgment of conviction or filed a § 2255 motion,

plaintiff moved to vacate her conviction by filing a petition for writ of error coram nobis in

the district court. That petition was denied, and an appeal is currently pending in this court.

Plaintiff also filed unsuccessful motions (1) to terminate the removal proceedings to permit

her to proceed to a final decision on the application for naturalization, and (2) to stay the

removal proceedings so that a motion to reopen the prior in absentia order of removal could

be heard. Although defendants indicate that an evidentiary hearing was held in the removal

proceedings on July 27, 2009, it appears that the removal proceedings remain pending at this

time.

        This action was filed on August 22, 2008, a few months after removal proceedings

were initiated, invoking the district court’s jurisdiction under § 1447(b) to hear the matter

because the USCIS had not acted within 120 days of her examination. On September 3,

2008, before defendants were properly served, the USCIS issued a written decision denying

plaintiff’s application for naturalization. That order referred not only to the pending removal
No. 09-3437                                                                                   4

proceedings, but also to plaintiff’s failure to disclose in the application her involvement with

criminal activity or the prior order of removal. Defendants moved to dismiss the complaint

for improper service, which defendants concede was rectified on October 3, 2008. Plaintiff’s

response to this motion also asked the district court to vacate the recent denial of her

application for naturalization.

       Plaintiff moved for summary judgment in her favor, and defendants’ response

included a motion to dismiss on alternative grounds of mootness and lack of subject matter

jurisdiction. The district court concluded that it lacked subject matter jurisdiction while

removal proceedings were pending. Denying plaintiff’s motion for summary judgment and

granting defendants’ motion to dismiss, the district court dismissed the complaint without

prejudice in an order entered on February 12, 2009.             Plaintiff filed a motion for

reconsideration, which was denied. This appeal followed.

                                               II.

       We review de novo a district court’s decision to dismiss for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1), except that when a district court inquires into the

factual basis for jurisdiction the factual findings are reviewed for clear error. See Memphis

Biofuels, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917, 919 (6th Cir. 2009); Abbott

v. Michigan, 474 F.3d 324, 328 (6th Cir. 2007). Since the decision in this case did not

depend on factual findings, we consider defendants’ motion to be a facial attack on

jurisdiction that is to be reviewed de novo.

A.     Sections 1447(b) and 1429
No. 09-3437                                                                                 5

       Until the adoption of what would become § 1429, “the usual practice had been ‘for

both the [removal] and naturalization processes to proceed along together until either [the]

petitioner’s [removal] or naturalization ipso facto terminated the possibility of the other

occurring.” Zayed v. United States, 368 F.3d 902, 905 (6th Cir. 2004) (quoting Shomberg

v. United States, 348 U.S. 540, 543 (1955)). Congress put an end to the race between

naturalization and removal in 1950 by adopting a priority provision declaring, in part, that

“no petition for naturalization shall be finally heard by a naturalization court” while

deportation proceedings were pending against the applicant. Ajlani v. Chertoff, 545 F.3d

229, 236 (2d Cir. 2008) (quoting Internal Security Act of 1950, Pub. L. No. 81-831, § 27, 64

Stat. 987, 1015, reenacted as INA § 318 (codified at 8 U.S.C. § 1429)).

       Prior to 1990, authority to naturalize an alien was vested in the district courts, and

removal was entirely the province of the Attorney General. Zayed, 368 F.3d at 905. In 1990,

with the intention of streamlining the process, Congress unified naturalization authority and

removal authority in the Attorney General (as delegated to the USCIS and DHS). See Etape

v. Chertoff, 497 F.3d 379, 386 (4th Cir. 2007) (discussing 1990 amendments). Congress did

so by expressly conferring on the Attorney General the “sole authority to naturalize persons

as citizens of the United States.” 8 U.S.C. § 1421(a). At the same time, Congress preserved

the district courts’ power to review the denial of an application for naturalization after a

hearing before an immigration officer, 8 U.S.C. § 1421(c), or to hear the matter on a request

by the applicant if the Attorney General fails to act within 120 days after the examination is

conducted, 8 U.S.C. § 1447(b). The priority provision was also amended to conform to these
No. 09-3437                                                                                   6

changes such that it now reads, in pertinent part, that “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[.]” 8 U.S.C. § 1429 (as amended) (emphasis

added). Plaintiff relies on this language to argue that § 1429 applies only to the Attorney

General and not the district court.

       This court’s decision in Zayed was one of the first to confront the issue of whether §

1429, as amended, restricts the power of the district courts. The question presented in Zayed

was whether § 1429 precluded the district court from reviewing a final administrative denial

of naturalization once removal proceedings had been initiated. 368 F.3d at 903. The

government argued, as it does here, that § 1429 operated to deprive the district court of

subject matter jurisdiction as long as removal proceedings were pending against the

applicant. We rejected this contention and held that the effect of § 1429 “is to limit the scope

of the court’s review and circumscribe the availability of effective remedies, but not to oust

the district court of jurisdiction expressly conferred on it by the very act of Congress that

amended § 1429.” Zayed, 368 F.3d at 906.

       That is, the court held, a district court exercising jurisdiction under § 1421(c) may

only review those decisions that § 1429 would permit the Attorney General to make while

removal proceedings are pending. Id. This would permit a district court to make a threshold

determination as to whether an application for naturalization was properly denied on the basis

of pending removal proceedings. Id. However, when an application for naturalization is

denied on grounds other than the pendency of removal proceedings, the limitations of § 1429
No. 09-3437                                                                                                7

would prevent the district court from granting effective relief under § 1421(c). Id. Because

the latter was the case in Zayed, the decision to dismiss without prejudice was affirmed.

Accord De Lara Bellajaro v. Schiltgen, 378 F.3d 1042, 1047 (9th Cir. 2004).4

        Bound by the essential holding in Zayed concerning the effect of § 1429 in an action

under § 1421(c), we conclude, as other courts have, that § 1429 similarly limits the scope of

the district court’s review and circumscribes the available remedies in an action brought

under § 1447(b) when removal proceedings are pending against the applicant. See Ajlani,

545 F.3d at 238-39; Saba-Bakare v. Chertoff, 507 F.3d 337, 341 (5th Cir. 2007). Section

1447(b) permits an alien whose application for naturalization has not been determined within

120 days after examination to apply to the district court for a hearing, and expressly states

that the district court “has jurisdiction over the matter and may either determine the matter

or remand the matter, with appropriate instructions, to the [USCIS] to determine the matter.”

When removal proceedings are pending, however, the district court may not compel the

USCIS to grant the delayed application for naturalization, nor remand to the USCIS to

consider the delayed application. As the Second Circuit held in Ajlani, adopting the

reasoning of Zayed and Saba-Bakare, “an alien cannot claim a form of relief pursuant to §

1447(b) that is forbidden by § 1429.” Ajlani, 545 F.3d at 238.

        There is no basis to conclude that Congress intended to alter the long-standing priority


        4
         Plaintiff relies on a few district court decisions at odds with the holding in Zayed to argue that §
1429 should not be read to apply to the district court. See, e.g., Gonzalez v. Napolitano, 684 F. Supp. 2d
555 (D. N.J. 2010); Kestelboym v. Chertoff, 538 F. Supp. 2d 813, 818 (D.N.J. 2008); Ngwana v. Attorney
Gen., 40 F. Supp. 2d 319, 321 (D. Md. 1999). This view is against the weight of appellate authority (as the
court in Gonzalez conceded), and we may not adopt it to the extent that it is inconsistent with the decision
in Zayed.
No. 09-3437                                                                                  8

that removal proceedings are to have over naturalization proceedings. As the Second Circuit

explained in Ajlani:

              Mindful that the animating principle behind § 1447(b) relief is the need
       to protect against executive delay, we conclude that Congress did not
       contemplate judicial orders of naturalization under circumstances where
       Congress has called an explicit statutory halt to the executive’s ability to give
       any further consideration to an alien’s naturalization application until removal
       proceedings end. Like the Sixth Circuit, we think district court authority to
       grant naturalization relief while removal proceedings are pending cannot be
       greater than that of the Attorney General. See Zayed v. United States, 368 F.3d
       at 906. To hold otherwise would be to restart the race that Congress attempted
       to end between naturalization and removal proceedings in the Internal Security
       Act of 1950 and various successor statutes, see Shomberg v. United States, 348
       U.S. at 544, 75 S. Ct. 509, in circumstances where that race would appear
       particularly inappropriate, i.e., where information belatedly comes to the
       executive’s attention indicating not only that an alien’s naturalization
       application may have been improvidently granted but also that the alien
       should, in fact, be removed from the United States.

Id. at 240. We agree that “it would seem to work against the framework set forth in §§ 1447

and 1429 for the district court to undertake [an evaluation of a naturalization application]

where Congress has expressly prohibited the Attorney General from doing so.” Id.

       Convinced that § 1429 should be read to restrict the scope of the district court’s

authority under § 1447(b), as we have held it does for claims under § 1421(c), we conclude

that the district court was not deprived of subject matter jurisdiction. However, because

removal proceedings were (and still are) pending, the district court was precluded from

granting relief pursuant to § 1447(b) by either adjudicating the application for naturalization

or remanding to the USCIS with instructions that it do so. Accordingly, it was not error to

dismiss the plaintiff’s § 1447(b) claims without prejudice.

B.     USCIS’s Denial of Naturalization
No. 09-3437                                                                                               9

        Plaintiff also contends that the district court erred by ignoring her request to vacate

the USCIS’s decision denying naturalization after this action was filed. Defendants relied

on that decision in seeking dismissal of the § 1447(b) claims as moot, but plaintiff did not

request leave to amend her complaint to seek review of the denial under § 1421(c).5 Rather,

plaintiff urged the district court to declare the intervening decision to be without effect either

(1) because the district court had exclusive jurisdiction once the complaint was filed under

§ 1447(b), or (2) because the limitations of § 1429 precluded the USCIS from making a

decision on the application for naturalization while removal proceedings were pending.

        The first of these issues—whether § 1447(b) grants the district court exclusive or

concurrent jurisdiction over the pending application for naturalization—is a matter of first

impression in this circuit. Courts in three other circuits have held that once an action is

properly filed under § 1447(b), the district court’s jurisdiction is exclusive and the USCIS

is stripped of jurisdiction. See United States v. Hovsepian, 359 F.3d 1144, 1159 (9th Cir.

2004) (en banc) (reaching different result than the vacated panel decision); Etape v. Chertoff,

497 F.3d 379, 385, 388 (4th Cir. 2007) (2-1) (abrogating Kia v. INS, 175 F.3d 1014 (4th Cir.

1999) (Table)); Bustamante v. Napolitano, 582 F.3d 403, 405 (2d Cir. 2009); see also Al-

Maleki v. Holder, 558 F.3d 1200, 1205 n.2 (10th Cir. 2009) (declining to answer the

question, but noting the persuasive reasoning of Hovsepian and Etape). Defendants urge us

to follow the contrary view, which holds that the USCIS has concurrent jurisdiction over a


        5
          Plaintiff’s failure to amend the complaint would be the least of the hurdles facing a request for
review under § 1421(c), as judicial review of a denial of naturalization is authorized only “after a hearing
before an immigration officer” under § 1447(a). 8 U.S.C. § 1421(c); see also 8 C.F.R. § 336.9(d). There
is no indication that plaintiff exhausted her administrative remedies with respect to the USCIS’s decision.
No. 09-3437                                                                                 10

delayed application for naturalization even after an action has been filed under § 1447(b).

This view is ably articulated by the district court in the now-reversed decision in Bustamante.

See Bustamante, 533 F. Supp.2d 373, 381 (S.D.N.Y. 2008), rev’d 582 F.3d 403 (2d Cir.

2009); see also Martinez v. Sec., DHS, 670 F. Supp. 2d 1325, 1329 (M.D. Fla. 2009);

Hamdan v. Chertoff, 626 F. Supp. 2d 1119, 1137-38 (D.N.M. 2007).

       We do not reach this question, however, because we find that the district court’s

authority to examine the USCIS’s decision was circumscribed by § 1429. Indeed, plaintiff’s

second argument calls attention to the limitations of § 1429 by arguing that the USCIS did

not have authority to deny the application for naturalization while removal proceedings were

pending. The cases that address the question of exclusive versus concurrent jurisdiction do

not offer any guidance, as none of those cases also involved a denial of a delayed application

for naturalization while removal proceedings were pending.

       This court’s decision in Zayed described the effect of § 1429, stating that when the

administrative denial is based on pending removal proceedings, “the district court’s de novo

review is limited to a review of that threshold determination.” 368 F.3d at 906. Having

extended application of § 1429 to the district court as we have, whether the action is brought

under § 1421(c) or § 1447(b), we also find that § 1429 prevents a district court from granting

the relief requested here—declaration that the USCIS’s denial of naturalization was either

without jurisdiction (because § 1447(b) grants the district court exclusive jurisdiction), or

without authority (because § 1429 precluded consideration of the application during the

pendency of removal proceedings). Completely aside from plaintiff’s failure to amend or to
No. 09-3437                                                                                11

exhaust administrative remedies, we find that the district court was precluded from granting

the relief requested while removal proceedings were pending.

       Accordingly, the district court’s dismissal of the plaintiff’s § 1447(b) claims without

prejudice, and without determining the USCIS’s jurisdiction or authority to decide the

delayed application for naturalization, is AFFIRMED.
