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Douglas
W. Baruch, Kayla M.S. Kaplan, Neaha P. Raol, Jennifer M.
Wollenberg, Morgan, Lewis & Bockius LLP, Washington, DC,
for Plaintiffs.
Brian
J. Field, U.S. Attorney's Office for the District of
Columbia, Washington, DC, for Defendants.
MEMORANDUM
OPINION
ELLEN
S. HUVELLE, United States District Judge.
Before
the Court is yet another case involving immigrants who
enlisted in the
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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]
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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
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[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 ...