     07-3769-cv
     Escaler v. U.S. Citizenship

 1                          UNITED STATES COURT OF APPEALS
 2
 3                              FOR THE SECOND CIRCUIT
 4
 5                                 August Term, 2008
 6
 7   (Argued:    March 9, 2009                 Decided: September 11, 2009)
 8
 9                              Docket No. 07-3769-cv
10
11   - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
12
13   JAIME BORROMEO ESCALER,
14
15               Plaintiff-Appellant,
16
17                     v.
18
19   UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; EDWARD
20   MCELROY, District Director; ERIC H. HOLDER JR., United States
21   Attorney General;* DEPARTMENT OF HOMELAND SECURITY,
22
23               Defendants-Appellees.
24
25
26   - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
27
28   B e f o r e:      WINTER and SACK, Circuit Judges, and COGAN,
29                     District Judge.**
30
31         Appeal from an order by the United States District Court for

32   the Southern District of New York (Barbara S. Jones, Judge)
33   granting the United States Citizenship and Immigration Services’


           *
           Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
     Attorney General Eric H. Holder, Jr. is automatically substituted
     for former Attorney General John Ashcroft.

           **
           The Hon. Brian M. Cogan, of the United States District
     Court for the Eastern District of New York, sitting by
     designation.


                                           1
1    (“CIS”) motion to dismiss.   After his application for citizenship

2    was approved, appellant failed to take the oath of allegiance in

3    the familiar public ceremony, and left the United States for more

4    than a year.   The CIS found that this absence violated the

5    requirement of continuous residence between the initiation of a

6    naturalization application and the completion of naturalization.

7    Appellant now seeks an order compelling CIS either to issue him a

8    Certificate of Naturalization or to reopen his application nunc
9    pro tunc to the time between the application’s approval and his

10   leaving the United States.   We hold that appellant’s failure to

11   exhaust his administrative remedies prevents the federal courts

12   from reviewing appellant’s case.       We therefore affirm.

13

14                                  THOMAS E. MOSELEY, Newark, New
15                                  Jersey, for Plaintiff-Appellant.
16

17                                  F. JAMES LOPREST, JR., Special
18                                  Assistant United States Attorney
19                                  (Michael J. Garcia, United States
20                                  Attorney, on the brief, Ross E.
21                                  Morrison, Assistant United States
22                                  Attorney, of counsel), Office of
23                                  the United States Attorney for the
24                                  Southern District of New York, New
25                                  York, New York, for Defendants-
26                                  Appellees.
27
28   WINTER, Circuit Judge:

29        Jaime Borromeo Escaler brought the present action seeking an

30   order compelling the United States Citizenship and Immigration

31   Services (“CIS”) either to issue him a certificate of


                                        2
1    naturalization or to reopen his naturalization application nunc

2    pro tunc to 1993.    The CIS takes the position that appellant

3    failed to take the required oath of allegiance in a public

4    ceremony before leaving the United States for a period of time

5    that rendered him out of compliance with the temporal

6    naturalization requirements of residence and presence in the

7    United States.   Judge Jones denied appellant’s motion for summary

8    judgment and dismissed his action for lack of subject-matter
9    jurisdiction.    We affirm on the ground that appellant failed to

10   exhaust his administrative remedies, and, therefore we cannot

11   reach the merits.

12                                BACKGROUND

13        Appellant was born in the Philippines in 1970.     His mother

14   is a United States citizen who had lived briefly in the United

15   States as a child.    In 1972, appellant moved to Hong Kong, where

16   he lived until 1987, when he came to the United States and

17   attended an American prep school.     In March 1993, appellant

18   applied to the Immigration and Naturalization Service (“INS”) for

19   naturalization as a United States citizen.

20        Becoming a naturalized U.S. citizen involves the completion

21   of several steps:    (i) maintaining five years’ lawful permanent

22   residence, physical presence in the United States for at least

23   half of that time, and continuous residence from the date of

24   application until admission to citizenship, 8 U.S.C. § 1427(a), 8

25   C.F.R. § 316.2(a); (ii) submitting an application, 8 U.S.C.

                                       3
1    § 1445(a), 8 C.F.R. § 316.4(a); (iii) passing a background check,

2    8 U.S.C. § 1446(a), 8 C.F.R. §§ 316.10, 335.1; (iv) passing a

3    test of English proficiency and of knowledge of U.S. history and

4    government, 8 U.S.C. § 1423(a), 8 C.F.R. §§ 312.1, 312.2; (v)

5    being examined under oath by an immigration official, 8 U.S.C.

6    § 1446(b), 8 C.F.R. §§ 316.14, 335.2; and (vi) taking an oath of

7    allegiance to the United States “in a public ceremony,” 8 U.S.C.

8    § 1448(a); 8 C.F.R. § 337.1.
9         It is undisputed that, as of May 18, 1993, the date of his

10   examination hearing, appellant had successfully completed (i)-(v)

11   of these steps, and that the INS examiner approved appellant’s

12   application the same day.    There is no record, however, of

13   appellant’s participation in step (vi), the public oath-taking

14   ceremony.    There is also no evidence of the INS notifying

15   appellant of upcoming oath ceremonies that he might attend, 8

16   U.S.C. § 1421(b)(2)(B), or of appellant’s having informed the INS

17   of his new address when he left for Hong Kong, 8 U.S.C. §

18   1305(a).    At his examination hearing, appellant did sign a

19   document entitled “Declaration of Intention” which contained the

20   text of the oath which the statute requires be used at

21   naturalization ceremonies.    8 U.S.C. § 1448(a).   However, the

22   circumstances –- whether it was a “public” ceremony –-

23   surrounding his signing of that document are not clear.

24        Six months after his interview and the examiner’s approval

25   of his application, appellant returned to Hong Kong to work.       The

                                       4
1    record before us does not indicate exactly how long appellant

2    lived abroad after his interview, but it is undisputed that

3    appellant remained outside of the United States for more than a

4    year.

5         Appellant later re-entered the United States under

6    authorized non-immigrant status, having been told that he had

7    abandoned his status as a United States permanent resident before

8    becoming a citizen.   Appellant sent letters to the INS seeking
9    recognition as a naturalized United States citizen.   In October

10   2003, after those efforts were unsuccessful, appellant brought

11   the present action to compel CIS, a successor agency to the

12   former INS, either to issue him a Certificate of Naturalization

13   or to enable him to resume his application for naturalization as

14   of May 1993.

15        CIS then undertook a review of appellant’s file.   Observing

16   that appellant had spent extensive time abroad after his

17   naturalization interview and that 8 U.S.C. § 1427(a) prohibits

18   the naturalization of any person who has not “resided

19   continuously within the United States from the date of the

20   application up to the time of admission to citizenship,” CIS

21   issued a notice of its intent to reopen appellant’s application

22   in June 2004, pursuant to 8 C.F.R. § 335.5.   Appellant responded

23   with letters stating that he had fulfilled all the requirements

24   of citizenship by signing the oath at the May 1993 hearing.    In

25   September 2005, CIS reopened appellant’s application.   Appellant

                                      5
1    argued that the reopening was a nullity because the present

2    action had ousted the CIS of jurisdiction.     The CIS District

3    Director denied the reopened application on the grounds that

4    appellant had failed to provide any reason to conclude that the

5    information about his having left the country and thereby failing

6    to comply with the residence requirement was incorrect.     Although

7    administrative procedures for appealing that ruling were

8    available, appellant chose not to pursue them.
9         Following the denial of appellant’s application, the

10   district court dismissed the complaint both as moot and as beyond

11   the court’s jurisdiction in light of appellant’s failure to

12   exhaust his administrative remedies.     Escaler brought the present

13   appeal.

14                               DISCUSSION

15   a) Statutory Scheme

16        Under the relevant statutory scheme, the Attorney General

17   has the “sole authority to naturalize persons as citizens of the

18   United States . . . .”   8 U.S.C. § 1421(a).    As noted above,

19   however, there are statutory standards governing naturalization,

20   and naturalization decisions by the CIS (acting for the Attorney

21   General) are subject to judicial review.    There are three avenues

22   of judicial review.   First, if an application for naturalization

23   is not acted upon within 120 days of the naturalization

24   examination, an applicant can seek a hearing in a district court,

25   which may determine the application or remand it to the CIS with

                                      6
1   instructions.   8 U.S.C. § 1447(b).   Second, if an application is

2   denied after completion of the available administrative review

3   procedures, the applicant is able to seek review of the denial in

4   a district court.   8 U.S.C. § 1421(c).   The court is empowered to

5   conduct a de novo review, making “its own findings of fact and

6   conclusions of law,” and may conduct a hearing de novo.   Id.

7   Third, in extreme cases, mandamus relief may be available under

8   28 U.S.C. § 1361 for a failure to perform a clear, non-
9   discretionary duty.   Heckler v. Ringer, 466 U.S. 602, 616




                                     7
1   (1984).1

2   b) Application

3        As noted, Section 1447(b) provides for a judicial hearing

4   if, following an applicant’s examination, 120 days pass without



         1
          Appellant relies upon two other provisions that require
    only brief mention. First, he states that this matter involves
    “serious issues about the construction and application” of the
    Administrative Procedure Act (“APA”), see 5 U.S.C. §§ 701 et seq.
    Appellant’s Br. at 11. No further detail regarding these
    supposed issues or their application to the present action has
    been provided. Nor have we been informed as to what judicial
    relief the APA might authorize that adds to the sweeping de novo
    review provided by Section 1421(c). We therefore do not
    speculate as to whether issues involving the APA have arisen in
    this matter.
         Appellant also relies upon 8 U.S.C. § 1503(a), which permits
    the bringing of an action in federal court “[i]f any person who
    is within the United States claims a right or privilege as a
    national of the United States and is denied such right or
    privilege by any department or independent agency, or official
    thereof, upon the ground that he is not a national of the United
    States.”
         Appellant’s complaint does not allege United States
    citizenship. He therefore is not “claim[ing] a right or
    privilege as a national of the United States . . . .” 8 U.S.C.
    § 1503(a). Rather, the complaint seeks as relief a declaration
    that he be made a citizen. Where some right or privilege of
    citizenship, e.g., obtaining a United States passport, Strupp
    v. Dulles, 258 F.2d 622, 622-23 (2d Cir. 1958), or gaining
    reentry into the United States, Brassert v. Biddle, 148 F.2d
    134, 135 (2d Cir. 1945), is denied, the plaintiff’s citizenship
    may of course be litigated. In such cases, the contested
    citizenship issue under Section 1503(a) would be whether the
    plaintiff had in fact been naturalized -- by administrative or
    judicial process or by operation of law, see, e.g., Yung Jin
    Teung v. Dulles, 229 F.2d 244, 245 (2d Cir. 1956) (claiming
    citizenship by operation of law); Lue Chow Kon v. Brownell, 220
    F.2d 187, 188 (2d Cir. 1955) (same); Brassert, 148 F.2d at 134-
    35 (claiming citizenship by the completion of an administrative
    process) -- not whether he or she is entitled to be
    naturalized. Because the relief appellant seeks is the
    overturning of a denial of naturalization, Section 1503(a) has
    no bearing on this action.

                                    8
1    “a determination [by CIS] as to whether the application should be

2    granted or denied . . . .”   8 U.S.C. §§ 1446(d), 1447(b).

3    Because this provision is designed to remedy administrative

4    inaction, there are no proceedings to exhaust for an applicant

5    who invokes it.   However, its terms simply do not apply to the

6    circumstances in which appellant finds himself.       His application

7    was approved on the day of his examination.

8         If appellant is entitled to relief, it must be by way of
9    Section 1421(c) or writ of mandamus, both of which require

10   exhaustion of administrative remedies.       See 8 U.S.C. §§ 1421(a),

11   1421(c); Heckler, 466 U.S. at 616.       It is undisputed that

12   appellant failed to pursue an appeal from the District Director’s

13   ruling after his reopened application was denied.       The principal

14   issue before us, therefore, is whether appellant needed to

15   exhaust his administrative remedies.

16        Section 1421(c), authorizing de novo judicial review of the

17   denial of an application to be naturalized, requires the

18   exhaustion of administrative remedies prior to seeking that

19   relief.   See 8 U.S.C. § 1421(c).       When, as here, the exhaustion

20   requirement is established by statute -- in this case, the

21   interaction of Section 1421(a), which vests the attorney general

22   with sole authority in naturalization matters, with Section

23   1421(c) -- the requirement is “mandatory, and courts are not free

24   to dispense with [it].”   Bastek v. Fed. Crop Ins. Co., 145 F.3d

25   90, 94 (2d Cir. 1998).

                                         9
1         Beyond the letters to the CIS described above, appellant did

2    not participate in the reopened CIS proceedings and concededly

3    did not exhaust available administrative review procedures.     His

4    claim, then and now, is that the present action gave the federal

5    courts exclusive jurisdiction over his efforts to obtain

6    citizenship and that the CIS’s reopening and denial of his

7    application were a nullity.

8         Appellant’s argument relies upon Fourth and Ninth Circuit
9    cases holding that district courts have exclusive jurisdiction

10   over applications that are the subject of a Section 1447(b)

11   action.   See Etape v. Chertoff, 497 F.3d 379 (4th Cir. 2007);

12   United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (en

13   banc).

14        However, these decisions are irrelevant in the present

15   matter because, as discussed above, Section 1447(b) provides for

16   judicial relief only from administrative inaction on an

17   application and does not apply in appellant’s circumstances.

18   Administrative inaction, of course, prevents an applicant’s

19   exhaustion of administrative remedies.   Leaving exclusive

20   jurisdiction in the courts when a suit is brought under Section

21   1447(b), as in Etape and Hovsepian, is not at all inconsistent

22   with a general insistence on exhaustion.   Whatever merit the

23   cited decisions may have with respect to Section 1447(b) actions,

24   therefore, they do not apply here.

25        Requiring exhaustion of the reopened proceedings is also

                                     10
1    supported by consideration of mandamus relief.   Issuance of a

2    writ of mandamus under 28 U.S.C. § 1361 is generally dependent

3    upon exhaustion of other available remedies.   Heckler, 466 U.S.

4    at 616.   However, when this action was brought, appellant may

5    well have been entitled to some relief by way of mandamus.    His

6    application had been approved, rendering both Section 1447(b) and

7    Section 1421(c) inapplicable.    While the CIS treated his absence

8    from the country as interrupting the process one act short of
9    citizenship, appellant had at least two arguable claims.    One

10   claim was that he had fulfilled the public oath requirement by

11   signing the oath in the Declaration of Intention, which is

12   identical to the oath given in the familiar public naturalization

13   ceremonies in district courts.   The other claim was that he is

14   entitled to relief because the CIS failed to notify him of

15   scheduled ceremonies as required by 8 U.S.C. § 1421(b)(2)(B).

16        Of course, mandamus is an extraordinary remedy, intended to

17   aid only those parties to whom an official or agency owes “a

18   clear nondiscretionary duty.”    Heckler, 466 U.S. at 616; see also

19   Daumutef v. INS, 386 F.3d 172, 180 (2d Cir. 2004).   A party who

20   seeks a writ of mandamus must show a “‘clear and indisputable’

21   right” to its issuance.   Miller v. French, 530 U.S. 327, 339

22   (2000) (quoting Mallard v. U.S. Dist. Court for S. Dist. of Iowa,

23   490 U.S. 296, 309 (1989)).   Appellant has not met this burden.

24        Courts have held the public oath requirement to be a

25   statutory necessity, see Ajlani v. Chertoff, 545 F.3d 229, 234

                                      11
1    (2d Cir. 2008); Okafor v. Gonzales, 456 F.3d 531, 534 (5th Cir.

2    2006); Abiodun v. Gonzales, 461 F.3d 1210, 1215-16 (10th Cir.

3    2006), and to date no court has held that signing the Declaration

4    of Intention fulfills that requirement, see, e.g., Okafor, 456

5    F.3d at 534; Abiodun, 461 F.3d at 1015-16.   While giving notice

6    of scheduled ceremonies is a CIS duty, 8 U.S.C. § 1421(b)(2)(B),

7    there is little authority on the effect of, or relief from, a

8    failure to do so.   But cf. Baidas v. Jenifer, 123 F. App’x 663,
9    670-71 (6th Cir. 2005); Patel v. INS, No. 98CV1937 JCH, 2000 WL

10   298921, *2 (E.D.Mo. Jan. 20, 2000).   Some administrative guidance

11   is, therefore, highly desirable and might have been obtained by

12   following available administrative proceedings.

13        However, when this action was brought, appellant had no

14   clear avenue of review of his claims.   As noted, because his

15   application remained approved, there was no inaction on his

16   application from which relief under Section 1447(b) was

17   available, and there was no denial of the application from which

18   to seek relief under Section 1421(c).   Asking the CIS to reopen

19   an already approved application would not only have been an

20   anomalous act –- what would be the relief requested –- but risked

21   being taken as an admission that he was not eligible for

22   immediate naturalization.   Appellant, therefore, appears to have

23   been in administrative limbo, and the ball was arguably in the

24   CIS’s court.   An agency may well have a clear, non-discretionary

25   duty not to leave an applicant with arguable claims no clear

                                     12
1    avenue to litigate them.   While the merits of appellant’s

2    mandamus claim would not justify directing the issuance of a

3    certificate of citizenship, the lack of a clear avenue to raise

4    his claims before the CIS might have justified a writ directing

5    CIS to reopen his application to resolve those claims.   See

6    Crawford v. Cushman, 531 F.2d 1114, 1126 n.15 (2d Cir. 1976)

7    (“Mandamus jurisdiction [under] 28 U.S.C. § 1361 permits

8    flexibility in remedy . . . .”) (internal quotation marks
9    omitted); see, e.g., Manmouth Med. Ctr. v. Thompson, 257 F.3d

10   807, 813-15 (D.C. Cir. 2001) (issuing mandamus writ ordering

11   agency to reopen proceedings).

12         We need not decide any of this, however.   This issue became

13   moot when the CIS reopened appellant’s application.   Appellant’s

14   conceded failure to take advantage of that proceeding to litigate

15   his claims negates our jurisdiction over the present action.

16                               CONCLUSION

17        We affirm.

18




                                      13
