                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-1223

T RINIDAD K IERULF K LENE,
                                                  Plaintiff-Appellant,
                                  v.

JANET N APOLITANO, Secretary
of Homeland Security, et al.,
                                               Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 11 C 3921—James B. Zagel, Judge.



   A RGUED S EPTEMBER 10, 2012—D ECIDED O CTOBER 12, 2012




  Before E ASTERBROOK, Chief Judge, and C UDAHY and
K ANNE, Circuit Judges.
  E ASTERBROOK, Chief Judge. An alien (Trinidad Kierulf
Klene, of the Philippines) applied for citizenship. United
States Citizenship and Immigration Services (“the
agency”) denied the application after concluding that
Klene’s marriage to a U.S. citizen had been fraudulent.
Klene promptly asked a district court for relief under
2                                                No. 12-1223

8 U.S.C. §1421(c), which allows a judge to make an in-
dependent decision about an alien’s entitlement to be
naturalized; later, the agency opened proceedings to
remove her from the United States. Once the administra-
tive removal proceedings were under way, the agency
asked the district court to dismiss Klene’s suit. The
agency relied on 8 U.S.C. §1429, which provides: “[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”. The agency acts as the Attorney General’s
surrogate under the reorganization that created the
Department of Homeland Security. Although we use the
statutory terminology, readers should understand that
“Attorney General” means “the agency.” The district
judge granted the agency’s motion and dismissed the
suit. 2011 U.S. Dist. L EXIS 148356 (N.D. Ill. Dec. 27, 2011).
  Courts of appeals that have considered the interac-
tion between §1421(c) and §1429 have reached four differ-
ent conclusions:
    •   One court of appeals has held that the judicial
        proceeding becomes moot as soon as the admin-
        istrative proceeding begins, so the suit must be
        dismissed for lack of a case or controversy. Awe v.
        Napolitano, 2012 U.S. App. L EXIS 17469 (10th Cir.
        Aug. 20, 2012) (nonprecedential).
    •   Two courts of appeals have held that district
        courts lose subject-matter jurisdiction once the
        removal proceeding begins. Barnes v. Holder, 625 F.3d
No. 12-1223                                                 3

      801 (4th Cir. 2010); Saba-Bakare v. Chertoff, 507 F.3d
      337 (5th Cir. 2007).
  •   Three courts of appeals have held that §1429
      does not affect subject-matter jurisdiction but does
      prevent the courts from providing a remedy, so
      judgment must go for the agency on the merits.
      Ajlani v. Chertoff, 545 F.3d 229 (2d Cir. 2008); Zayed
      v. United States, 368 F.3d 902 (6th Cir. 2004);
      Bellajaro v. Schiltgen, 378 F.3d 1042 (9th Cir. 2004).
  •   One court of appeals has held that subject-matter
      jurisdiction continues and that a remedy is possi-
      ble—a declaratory judgment of entitlement to citi-
      zenship. Gonzalez v. Secretary of Homeland Security,
      678 F.3d 254 (3d Cir. 2012).
The agency urges us to hold that institution of a removal
proceeding deprives the district court of subject-matter
jurisdiction, as the fourth and fifth circuits have concluded.
  We start with the question whether there is a case
or controversy. The tenth circuit thought not, yet the
parties are locked in conflict about whether Klene is
entitled to be naturalized. True, if the agency is right, that
conflict must be resolved in the removal proceedings,
followed (if necessary) by review in the court of appeals
under 8 U.S.C. §1252. But there is undoubtedly a con-
crete, ongoing controversy between Klene and the agency
about whether her marriage was fraudulent. If Klene
is right, she can become a citizen; if the agency is right,
Klene will not be naturalized and likely must leave the
United States. Parallel civil proceedings are common.
Often one party sues in state court and the other counter-
4                                                 No. 12-1223

sues in federal court; sometimes there are federal suits
in different districts. Until one of the proceedings
reaches judgment, neither makes the other moot or other-
wise deprives either tribunal of competence under
Article III. We therefore disagree with Awe.
  Subject-matter jurisdiction comes next in the logical
sequence. Barnes and Saba-Bakare concluded that, by
preventing the Attorney General from naturalizing an
alien once removal proceedings have commenced, §1429
deprives the district court of jurisdiction to act in an
alien’s suit. That’s a non sequitur. What the Attorney
General may do—and derivatively what a court may
order the Attorney General to do—concerns the merits.
During the last decade, the Supreme Court has re-
peatedly stressed that there is a fundamental difference
between mandatory rules, such as the one in §1429, and
jurisdictional limits. See, e.g., Henderson v. Shinseki, 131
S. Ct. 1197, 1202–03 (2011); Morrison v. National Australia
Bank Ltd., 130 S. Ct. 2869, 2877 (2010); Reed Elsevier, Inc. v.
Muchnick, 130 S. Ct. 1237 (2010); Arbaugh v. Y&H Corp.,
546 U.S. 500 (2006); Kontrick v. Ryan, 540 U.S. 443
(2004). See also Minn-Chem, Inc. v. Agrium Inc., 683 F.3d
845, 851–53 (7th Cir. 2012) (en banc), which discusses
this line of decisions. Jurisdiction concerns the tribunal’s
power to hear a case and decide what the law requires.
Congress has authorized district courts to decide
whether aliens are entitled to naturalization. No more
is necessary for subject-matter jurisdiction. If some other
pending proceeding must be completed before a court
can resolve the merits, usually the court should stay the
suit rather than dismiss it. See Rhines v. Weber, 544
No. 12-1223                                              5

U.S. 269 (2005). We therefore disagree with Barnes and
Saba-Bakare.
   The second, sixth, and ninth circuits found that
district judges retrain jurisdiction but held that §1429
prevents them from affording relief. If the Attorney
General cannot naturalize an alien after removal pro-
ceedings have begun, the court cannot direct the
Attorney General to naturalize the alien. Judges must not
order agencies to ignore constitutionally valid statutes.
Cf. United States v. Bean, 537 U.S. 71 (2002) (court cannot
order Attorney General to act on an application to lift a
firearms disability, once Congress prevents the Attorney
General from spending funds to process these applica-
tions). The district court in our case agreed with that
conclusion, as do we. But to say that the court cannot
order the Attorney General to naturalize an alien is not
to say that the court cannot act. The second, sixth, and
ninth circuits neglected the possibility of declaratory
relief. (The sixth circuit did mention it but did not
pursue the subject because the alien did not ask for a
declaratory judgment; the other circuits did not get
even that far.)
   The third circuit, the only appellate court to rule on
the possibility, held that a declaratory judgment of en-
titlement to citizenship would not violate §1429, because
it would not order the Attorney General to naturalize
the alien while a removal proceeding was ongoing. And
a declaratory judgment in the alien’s favor (for example,
a judgment declaring that Klene’s marriage was bona
fide) would bring the removal proceeding to a prompt
6                                               No. 12-1223

close, allowing the Attorney General to naturalize the
alien. The alien could plead the declaratory judgment in
the removal proceedings, because the United States as
a whole is bound by principles of mutual issue and claim
preclusion. Compare United States v. Stauffer Chemical
Co., 464 U.S. 165 (1984) (issue preclusion applies in multi-
ple contests between the United States and the same
adversary), with United States v. Mendoza, 464 U.S. 154
(1984) (defensive non-mutual issue preclusion does not
apply to the United States). This approach preserves the
alien’s entitlement under §1421(c) to an independent
judicial decision while respecting the limit that §1429
places on the Attorney General’s powers.
  What makes this possible is the fact that the Attorney
General acted on Klene’s application before the agency
commenced removal proceedings. If the application
for naturalization had been pending when the removal
proceedings began, then the Attorney General would
not have made a final decision and §1421(c) would not
have allowed Klene to ask the district court for relief.
The agency wants us to treat the two situations as equiva-
lent and to understand §1429 as announcing a general
policy against multiple proceedings. But that isn’t what
§1429 says. It tells the Attorney General to put an ap-
plication aside once removal proceedings begin; it does
not issue a similar directive to a court. Section 1421(c)
gives the alien a right to an independent (“de novo”)
judicial decision, a right that can be valuable compared
with the kind of review available following an order of
removal. A court of appeals reviewing a removal
decision under §1252 makes an independent decision
No. 12-1223                                               7

on legal questions (subject to the principles of Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984)) but on factual issues asks only whether
substantial evidence supports the agency’s conclusion.
   The existence of overlapping proceedings does not
diminish a district court’s power but does present a
question on which the judge should exercise sound dis-
cretion. A judge asked to enter a declaratory judgment
that as a practical matter will dispose of some other
case should consider whether a multi-track course of
litigation is the best way to resolve the dispute. See
Wilton v. Seven Falls Co., 515 U.S. 277 (1995); Brillhart v.
Excess Insurance Co., 316 U.S. 491 (1942). Appellate
review of the judge’s decision—whether to grant or to
withhold declaratory relief—is deferential. See Envision
Healthcare, Inc. v. PreferredOne Insurance Co., 604 F.3d 983
(7th Cir. 2010). In Klene’s case, however, the district
judge thought that he had no discretion to exercise. That
was a mistake, so we remand with instructions to
decide whether it is appropriate to resolve the dispute
through a declaratory judgment and, if so, to decide
the merits.
  A final observation. Klene contends that the district
judge must decide her case on the merits. Section 1429
applies “if there is pending against the applicant a
removal proceeding pursuant to a warrant of arrest” (em-
phasis added). She has never been arrested, she con-
tends—at least, she has not been taken into custody. But
the agency has issued a regulation providing that a
“notice to appear” in a removal proceeding should be
8                                               No. 12-1223

treated as a “warrant of arrest” too. 8 C.F.R. §318.1. An
agency can’t rewrite statutory terms, but it can define
its own vocabulary. Since “arrest” does not imply
custody even in police parlance (full custodial arrests
are a subset of all arrests), there’s no logical problem
with an agency calling its official process a “notice to
appear” and a “warrant of arrest” at the same time,
without needing to issue two separate documents. On
this, at least, all other courts of appeals agree, and we
join them.
                                    V ACATED AND R EMANDED




                         10-12-12
