                                                                                            United States Court of Appeals
                                                                                                     Fifth Circuit
                                                                                                    F I L E D
                                      REVISED JANUARY 30, 2007
                                                                                                  December 13, 2006
                         IN THE UNITED STATES COURT OF APPEALS
                                                                                               Charles R. Fulbruge III
                                                                                                       Clerk
                                       FOR THE FIFTH CIRCUIT


                                                 No. 05-20831



JULIANA ADENIKE OGUNFUYE,
                                                                                         Petitioner-Appellant,

                                                      versus

HIPOLITO ACOSTA, et al.,

                                                                                       Respondents-Appellees.


                               Appeal from the United States District Court
                                   for the Southern District of Texas
                                           (No. 4:05-CV-551)


Before REAVLEY, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

        Juliana Ogunfuye challenges the district court’s summary judgment ruling dismissing her

petition for a naturalization hearing under 8 U.S.C. § 1447(b) (2006). We affirm.

                         I. FACTUAL AND PROCEDURAL BACKGROUND

        Ogunfuye is a citizen of Nigeria and a permanent resident of the United States. Ogunfuye has

two prior convictions for immigration purposes. In 1984, she pled guilty to theft of $20 - $200. In

1990, she was convicted on multiple counts of forgery and theft of over $20,000.


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
       On April 22, 2003, Ogunfuye applied to Citizenship and Immigration Services (“CIS”) for

U.S. citizenship. Ogunfuye arrived for a CIS naturalization examination, and at some point was

arrested by Immigration and Customs Enforcement (“ICE”) and processed for removal.

       Pending the outcome of removal proceedings, Ogunfuye was released on her own

recognizance. She filed a petition in district court for a hearing pursuant to § 1447(b), which gives

U.S. district courts jurisdiction over naturalization applications that haven’t been acted on for over

120 days following a naturalization interview. Pursuant to 28 U.S.C. § 636(c) (2006), both parties

agreed to argue the case before a magistrate judge. The magistrate judge, reasoning that the court

lacked jurisdiction under § 1447(b) because there was never an interview and because of ongoing

removal proceedings, granted summary judgment for the government. Ogunfuye appeals the lower

court decision, arguing that immigration officials in fact did interview her and that ongoing removal

proceedings do not deprive district courts of jurisdiction over naturalization applications.

II. STANDARD OF REVIEW

       A district court’s grant of summary judgment is reviewed de novo. Hasty v. Trans Atlas

Boats, Inc., 389 F.3d 510, 512 (5th Cir. 2004). Questions of law are also reviewed de novo.

Requena-Rodriquez v. Pasquarell, 190 F.3d 299, 309 (5th Cir. 1999).

III. DISCUSSION

       Although Ogunfuye, in response to the government’s summary judgment motion, stated that

she was arrested when she arrived for her interview, she also stated in her original petition that “an

examination was held.” Likewise the government argues that no examination was held even though

a letter attached to its summary judgment motion states “[the CIS] interviewed your client on


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November 26, 2003.” In response to the government’s arguments for summaryjudgment, namelythat

no interview had taken place, Ogunfuye neglected to expressly refute the government’s claim that no

interview had occured. Ogunfuye’s brief in opposition to the government’s motion for summary

judgment stated: “On November 26, 2003, the Petitioner arrived for an interview on her application

for naturalization; 2) At that time she was detained by an officer of the Department of Homeland

Security.”

       Although summary judgment requires the nonmovant to plead specific facts demonstrating

a basis for trial, it is only proper when the record, viewed in the light most favorable to the

nonmovant, demonstrates that no genuine issue of material fact exists and that the movant is entitled

to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); see also

FED. R. CIV. P. 56(c). While Ogunfuye did not explicitly deny the government’s allegations, she also

didn’t explicitly concede that she was arrested before the interview. There appears to be little in the

record to support the magistrate judge’s conclusion that no interview had taken place.

       Nevertheless, even if an interview had been held, there was no proper jurisdictional basis for

the magistrate judge to review Ogunfuye’s naturalization application.          First, in immigration

proceedings, an alien must exhaust all administrative remedies before petitioning for district court

review. 8 C.F.R. § 336.9(d) (2006). Ogunfuye could have halted deportation by establishing “prima

facie” eligibility of naturalization or a matter involving exceptionally appealing or humanitarian

factors. She refused to pursue this remedy even after the CIS wrote her a letter concerning her

administrative options. 8 C.F.R. § 1239.2(f) (2006).




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           Second, because the Attorney General was barred by 8 U.S.C. § 1429 (2006)1 from

reviewing Ogunfuye’s application, by adjudging her claims for naturalization the district court would

have been doing exactly what Congress stated it could not, which is rendering an opinion on an

alien’s prima facie naturalization claims. Prior to 1990, district courts had exclusive jurisdiction to

naturalize aliens. In order to prevent a “race” between the alien to gain citizenship and the

government to deport, district courts were prohibited from naturalizing an alien for whom there was

a pending deportation proceeding. See Shomberg v. United States, 348 U.S. 540, 544 (1955); § 1429

(amended 1990). In 1990, Congress removed naturalization jurisdiction from the district courts,

placing the ability to naturalize aliens exclusively with the Attorney General and with the same

limitations. See § 1429.

       Third, § 1447(b) was intended to address administrative untimeliness. It was not meant to

give aliens a means to adjudicate prima facie naturalization claims in district court where the Attorney

General was prevented from acting under § 1429.        When introducing the amendment that became

§ 1447(b), the sponsor, Congressman Sid Morrison cited administrative delays and backlogs as a

“very substantial concern.” See Castracani v. Chertoff, 377 F. Supp. 2d 71, 73 (D. D.C. 2005)

(quoting 135 CONG. REC. H4539-02 (1989) (statement of Rep. Morrison)). By the government’s

own admission, there is very little case law covering this situation and no governing legal authority,

however, it is clear that § 1429 does not provide aliens with § 1447(b) jurisdiction. Federal law

provides for judicial review of naturalization applications in only two limited circumstances, where

a naturalization application is denied twice, first in an initial review and later in front of an



       1
       “[N]o application for naturalization shall be considered by the Attorney General if there is
pending against the applicant a removal proceeding . . . .” See § 1429.

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immigration official, or where there is significant untimeliness or administrative inaction by the

government in reviewing the application. See 8 U.S.C. §§ 1421(c), 1447(b) (2006). Neither

circumstance applies to Ogunfuye.

        Fourth, although other district courts have held that once a § 1447(b) petition is filed, district

courts have exclusive jurisdiction, stripping the CIS of the ability to deny or approve an application,

see United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (en banc); Zaranska v. United States

Dep't of Homeland Sec., 400 F. Supp. 2d 500 (E.D. N.Y. 2005); Castracani, 377 F. Supp. 2d at 71-

74, those decisions all dealt with situations where the government, after neglecting to adjudicate an

application within 120 days, attempted to approve or deny an alien’s naturalization application before

the district court had the opportunity to review it.

These cases do not address the situation here, where § 1429 is the sole cause for the 120-day delay.

        Chavez v. INS, 844 F. Supp. 1224 (N.D. Ill. 1993) is directly on point. Following a nearly

year-long delay in the adjudication of his naturalization application, Jorge A. Chavez petitioned for

§ 1447(b) relief. The district court remanded the application back to the Attorney General with

instructions to adjudicate it within sixtydays. Instead, the government instituted removal proceedings

against Chavez and denied his application on the theory that under § 1429 it could not adjudicate an

application of an alien against whom deportation proceedings were pending. Chavez, like Ogunfuye,

refused to exhaust all administrative remedies and applied for district court adjudication, arguing that

there was already § 1447 jurisdiction. The court responded: “We cannot agree . . . that the legislature

ever intended § 1447(b) to permit a district court to circumvent the appeals process provided for by

statute.” Chavez, 844 F. Supp. at 1225. Consistent with current federal law, the court held that

Chavez could not seek judicial review of his application until he had exhausted all his remedies. Id.


                                                    5
Although Chavez is comparable, arguably there were even more compelling reasons on these facts

for the district court to refrain from reviewing Ogunfuye’s application. Unlike in Chavez, here there

was no initial government inaction. Ogunfuye’s argument for § 1447 jurisdiction was based wholly

on the government’s inability to adjudicate her application under § 1429. See also Zaidi v. Chertoff,

No. 1:06-cv-1133, 2006 U.S. Dist. LEXIS 79831, at 10-11 (N.D. Ill. Nov.1, 2006) (refusing to grant

§ 1447(b) review until petitioner had exhausted all administrative remedies); Charles Gordon, Stanley

Mailman, & Stephen Yale-Loehr, Immigration Law and Procedure, 7-95 IMMIGRATION /LAW &

PROCEDURE § 95.02 at n.54 (2006) (“current law now prohibits the naturalization of a person against

whom a final finding of deportability is outstanding”).

          Congress did not remove all jurisdiction from the courts. Under limited circumstances, district

courts can review the naturalization decisions of the Attorney General. See 8 U.S.C. § 1421(c)

(2006).     Additionally, after a naturalization application is denied, an alien can request an

administrative hearing before an Immigration Judge. See § 1447. If after 120 days following an

examination, the Attorney General has neglected to approve or deny an application for naturalization,

an alien can petition the district court for a hearing under § 1447. The district court can itself

approve or deny the application or remand it back to the Attorney General with appropriate

instructions. Id.

           In this case, even if the district court decided to remand, the Attorney General is barred by

federal statute from adjudicating Ogunfuye’s naturalization application. See § 1429. On one hand,

§ 1447 very plainly provides the district court jurisdiction when the Attorney General, irrespective

of the reasons, fails to adjudicate an application within 120 days after an examination is held. On the

other hand, Congress has plainly indicated that the adjudication of naturalization applications should


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cease when orders of removal are issued prior to a § 1447 petition. Congress instituted various

mechanisms of administrative relief when aliens are under orders of removal and provided for judicial

review only when those mechanisms are exhausted. See § 1421. Ogunfuye argues that § 1429 only

prevents the Attorney General from reviewing prima facie naturalization claims while an order of

removal is pending, however in 1990, Congress removed the district courts’ ability to adjudicate

prima facie naturalization claims. Section 1429 only speaks in terms of the Attorney General

reviewing these types of applications because under current federal law only the Attorney General

has the authority to review them. Thus, the district court did not err by refusing to adjudicate

Ogunfuye’s application as there was no appropriate basis for it to do so. Because inaction based on

§ 1429 alone is not a legitimate basis for the district court to exercise cause § 1447(b) jurisdiction,

Ogunfuye is required to exhaust all administrative remedies before petitioning for judicial review of

her naturalization application.

                                        IV. CONCLUSION

       The judgment of the magistrate judge is AFFIRMED.

AFFIRMED.




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