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Miriyeva v. U.S. Citizenship and Immigration Services

United States District Court, District of Columbia

December 21, 2019

GUNAY MIRIYEVA, et al., Plaintiffs,
v.
U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

          MEMORANDUM OPINION

          ELLEN S. HUVELLE UNITED STATES DISTRICT JUDGE.

         Before the Court is yet another case involving immigrants who enlisted in the Unites States military as part of the MAVNI program.[1] These plaintiffs, Gunay Miriyeva, Ann Tum, Siddhi Kulkarni, and Bipin Kadel, are seeking naturalization under 8 U.S.C. § 1440, which provides an expedited path to naturalization based on military service during certain periods of military hostilities. Their applications have been denied by United States Citizen and Immigration Services (“USCIS”) on the ground that they do not meet the statutory requirements for naturalization under 8 U.S.C. § 1440(a) because their “uncharacterized” discharges mean that they were not “separated under honorable conditions.” Plaintiffs claim that the USCIS “policy” that led to the denial of their applications violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et seq., and the United States Constitution. Defendants, USCIS and its Director, Kenneth Cuccinelli, have moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Because the Court agrees with defendants that 8 U.S.C. § 1421 precludes the current action, their motion to dismiss for lack of jurisdiction will be granted.

         BACKGROUND

         I. STATUTORY AND REGULATORY FRAMEWORK

         A. Eligibility for Naturalization Based on Military Service (8 U.S.C. § 1440)

         Section 329 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1440, provides an expedited path to citizenship based on service in the United States Armed Forces during certain periods of military hostilities. In relevant part, it provides:

(a) Requirements
Any person who, while an alien or a noncitizen national of the United States, has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United States during [certain specific periods of military hostilities], and who, if separated from such service, was separated under honorable conditions, may be naturalized as provided in this section . . . . The executive department under which such person served shall determine whether persons have served honorably in an active-duty status, and whether separation from such service was under honorable conditions . . . .
(b) Exceptions
A person filing an application under subsection (a) of this section shall comply in all other respects with the requirements of this subchapter, except that -. . .
(3) service in the military, air or naval forces of the United States shall be proved by a duly authenticated certification from the executive department under which the applicant served or is serving, which shall state whether the applicant served honorably in an active-duty status during [a specified period of military hostilities] and was separated from such service under honorable conditions . . . .

8 U.S.C. § 1440 (emphasis added).

         B. Administrative Naturalization Procedure (8 U.S.C. §§ 1421, 1446, 1447)

         “The sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General.” 8 U.S.C. § 1421(a). USCIS is the agency designated to make naturalization decisions with respect to applicants pursuing naturalization under 8 U.S.C. § 1440.[2] See 6 U.S.C. § 271(b)(2). An application for naturalization is first decided by a USCIS examining immigration officer. See 8 U.S.C. § 1446(d). If the application is denied, the applicant may request a hearing before another immigration officer. 8 U.S.C. § 1447(a); see also 8 C.F.R. § 336.2(a) (“The applicant, or his or her authorized representative, may request a hearing on the denial of the applicant's application for naturalization by filing a request with USCIS within thirty days after the applicant receives the notice of denial.”); USCIS Form N-336 (“Request for Hearing on a Decision in Naturalization Proceedings Under Section 336”[3]). “Upon receipt of a timely request for a hearing, USCIS will schedule a review hearing, within a reasonable period of time not to exceed 180 days from the date upon which the appeal is filed.” 8 C.F.R. § 336.2(b).[4]

         C. Judicial Review (8 U.S.C. § 1421(c))

         If a naturalization application is denied by the USCIS hearing officer, § 1421(c) provides for judicial review of that denial:

(c) Judicial review
A person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of title 5 [the “Judicial Review” chapter in the APA]. Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application.

8 U.S.C. § 1421(c).

         D. USCIS Policy Manual

         Pursuant to § 1440, a former service member seeking naturalization must have been “separated from such service . . . under honorable conditions.” 8 U.S.C. § 1440(a). With respect to this requirement, the USCIS Policy Manual states:

Honorable service means only service in the U.S. armed forces that is designated as honorable service by the executive department under which the applicant performed that military service.
Both “Honorable” and “General-Under Honorable Conditions” discharge types qualify as honorable service for immigration purposes. Other discharge types, such as “Other Than Honorable, ” do not qualify as honorable service.

USCIS Policy Manual, Vol. 12, Part I, Chapter 3.

         E. Army Discharge Regulations

         The Army gives four different types of discharges: honorable, general (under honorable conditions), under other than honorable conditions, and uncharacterized. During the first 180 days of active military service, a service member is considered by the Army to be in “entry-level status.” See Department of Defense Instruction (“DoDI”) 1332.14, at 55; Army Regulation (“AR”) 135-178, at 103. If discharged while in entry-level status, the Army classifies the discharge as “uncharacterized.” AR 135-178, ¶ 2-11 (“Service will be described as uncharacterized if separation processing is initiated while a Soldier is in an entry level status . . . .”); see also DoDI 1332.14 at Enclosure 4, 3c.[5] Alternatively, if a servicemember is discharged after he or she is no longer “entry-level, ” the Army characterizes the discharge as either honorable, general (under honorable conditions), or under other than honorable conditions. AR 135-178, at 103. The characterization of a discharge appears on the servicemember's discharge form (Form DD-214, Certificate of Release or Discharge from Active Duty). (See, e.g., Compl. ¶ 44.)

         II. FACTUAL BACKGROUND

         Each plaintiff served in the United States Army and has applied for naturalization pursuant to 8 U.S.C. § 1440.

         Miriyeva currently resides in San Diego, California. She enlisted in the Army's Selected Reserve of the Ready Reserve in 2016. Her naturalization application was initially approved on October 4, 2018. But then she was discharged on December 21, 2018, for medical reasons, and because she had served fewer than 180 days of “active” duty, she received an “entry-level” or “uncharacterized” discharge. Following her discharge, USCIS revoked its approval of her naturalization application on the ground that an “uncharacterized” discharge is not a separation “under honorable conditions.” Miriyeva has filed an N-336 form requesting an administrative hearing pursuant to 8 U.S.C. 1447(a). As of December 11, 2019, her administrative appeal was still pending.

         Tum currently resides in Richmond, Kentucky. She enlisted in the Army's Selected Reserve of the Ready Reserve in 2016. She was discharged on February 19, 2019, for medical reasons, and because she had served less than 180 days, she received an “entry-level” or “uncharacterized” discharge. USCIS then denied her naturalization application on the ground that an “uncharacterized” discharge is not a separation “under honorable conditions.” Tum filed an N-336 form requesting an ...


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