United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION
S. Cayer United States Magistrate Judge.
MATTER is before the Court on the “Federal
Defendants' Motion to Dismiss” and “Brief in
Support …” (both document #3). Plaintiff has not
responded to the Motion to Dismiss and the time for filing a
response has expired.
matter has been referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) and this Motion is now
ripe for the Court's consideration.
fully considered the arguments, the record, and the
applicable authority, the undersigned respectfully recommends
that Defendants' Motion to Dismiss be granted as
FACTUAL AND PROCEDURAL BACKGROUND
April 5, 2019, Plaintiff initiated this action pursuant to
the Immigration and Nationality Act of 1952, 8 U.S.C. §
1447(b), seeking a judicial determination on her N-400
Application for Naturalization. Plaintiff alleges that United
States Citizen and Immigration Services (USCIS) failed to act
on her Application within 120 days of her interview by the
their Motion to Dismiss, Defendants allege that on May 30,
2019, the Agency issued Plaintiff a Notice to Appear
(“NTA”) before the Immigration Court in
Charlotte. Document #3, Exhibit A. The NTA charged Plaintiff
as removable under 8 U.S.C. § 1227(a)(1)(A) for being
inadmissible at the time of her adjustment of status.
Plaintiff's inadmissibility under 8 U.S.C. §
1182(a)(6)(C)(i) is based upon her procurement of a benefit
by fraud or willful misrepresentation. Specifically, the NTA
alleges that Plaintiff procured her lawful permanent resident
status under Section 203 of the Nicaraguan Adjustment and
Central American Relief Act by misrepresenting that she was a
citizen of Guatemala born in 1971, when she was in fact a
citizen of Mexico born in 1973.
reviewing a Rule 12(b)(6) motion, “the court should
accept as true all well-pleaded allegations and should view
the complaint in a light most favorable to the
plaintiff.” Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993). The plaintiff's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Id. at 563. A
complaint attacked by a Rule 12(b)(6) motion to dismiss will
survive if it contains enough facts to “state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, the Supreme Court articulated a two-step
process for determining whether a complaint meets this
plausibility standard. First, the court identifies
allegations that, because they are no more than conclusions,
are not entitled to the assumption of truth. Id.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555) (allegation that government officials adopted
challenged policy “because of” its adverse
effects on protected group was conclusory and not assumed to
be true). Although the pleading requirements stated in
“Rule 8 [of the Federal Rules of Civil Procedure]
mark a notable and generous departure from the
hyper-technical, code-pleading regime of a prior era ... it
does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions.” Id. at
to the extent there are well-pleaded factual allegations, the
court should assume their truth and then determine whether
they plausibly give rise to an entitlement to relief.
Id. at 679. “Determining whether a complaint
contains sufficient facts to state a plausible claim for
relief “will ... be a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. “Where
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged-but it has not ‘show[n]'-‘that the
pleader is entitled to relief, '” and therefore
should be dismissed. Id. (quoting Fed.R.Civ.P.
sufficiency of the factual allegations aside, “Rule
12(b)(6) authorizes a court to dismiss a claim on the basis
of a dispositive issue of law.” Sons of Confederate
Veterans v. City of Lexington, 722 F.3d 224, 228 (4th
Cir. 2013) (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)). Indeed, where “it is clear that no
relief could be granted under any set of facts that could be
proved consistent with the allegations, a claim must be
dismissed.” Neitzke v. Williams, 490 U.S. at
328; see also Stratton v. Mecklenburg Cnty. Dept. of Soc.
Servs., 521 Fed.Appx. 278, 293 (4th Cir. 2013)). The
court must not “accept as true a legal conclusion
couched as a factual allegation.” Anand v. Ocwen
Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014).
district court may review an N-400 Application for
Naturalization if USCIS does not make a determination on the
application within 120 days of the applicant's interview.
8 U.S.C. § 1447(b). But review under 8 U.S.C. §
1447(b) is limited by 8 U.S.C. § 1429, which states that
“no application for naturalization shall be considered
by the Attorney General if there is pending against the
applicant a removal proceeding.”
Fourth Circuit has held that the district court lacks
jurisdiction over the naturalization process when a removal
proceeding is pending against the applicant. Barnes v.
Holder, 625 F.3d 801 (4th Cir. 2010) (plaintiff had no
statutory right to judicial review by the district court of
his naturalization application while the removal proceeding
was pending). See also Ajlani v. Chertoff, 545 F.3d
229, 241 (2d Cir. 2008); Zayed v. United States, 368
F.3d 902 (6th Cir. 2004); Awe v. Napolitano, 494
Fed.Appx. 860, 862 (10th Cir. 2012); ...