                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JUN 15 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

VALENTINA S. MAXWELL,                           No.    15-16520

                Plaintiff-Appellant,            D.C. No.
                                                2:14-cv-02772-TLN-AC
 v.

JEFFERSON B. SESSIONS III, Attorney             MEMORANDUM*
General; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Troy L. Nunley, District Judge, Presiding

                             Submitted June 12, 2018**
                             San Francisco, California

Before:      RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.

      Valentina S. Maxwell, a native and citizen of Russia, appeals pro se from the

district court’s dismissal of her complaint under 8 U.S.C. § 1447(b) requesting a

hearing on her naturalization application, for failure to state a claim. We have



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal of a

complaint for failure to state a claim. Yith v. Nielsen, 881 F.3d 1155, 1161 (9th Cir.

2018). We reverse.

      The district court erred in dismissing Maxwell’s complaint for failure to

state a claim, where the language of 8 U.S.C. § 1429 only bars the Attorney

General, and not the district court, from considering a naturalization application

when there is a removal proceeding pending against the applicant, and where

Maxwell was not in removal proceedings pursuant to a “warrant of arrest,” but

pursuant to a notice to appear. See 8 U.S.C. § 1429 (“[N]o 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.”); Yith, 881 F.3d at 1165,

1168 (the statutory language of 8 U.S.C. § 1429 applies only to the Attorney

General, not the district court, and thus the district court is not prevented from

granting relief under 8 U.S.C. § 1447(b); § 1429 is inapplicable to applicants in

proceedings pursuant to a notice to appear, which is different from a “warrant of

arrest”). Accordingly, we reverse the district court and remand for further

proceedings consistent with this decision.

      REVERSED and REMANDED.




                                           2                                    15-16520
