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 ...