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Kuffour v. Nielsen

United States District Court, M.D. North Carolina

September 9, 2019

Priscilla AMO KUFFOUR, Plaintiff,
Kirstjen M. NIELSEN, Secretary, U.S. Department of Homeland Security, Jefferson B. SESSIONS III, Attorney General, U.S. Department of Justice, Leander B. HOLSTON, Director, U.S. Citizenship and Immigration Services Charlotte Field Office, Defendants.


          Loretta C. Biggs United States District Judge

         Plaintiff, Priscilla Amo Kuffour (“Kuffour”), applied for naturalization on June 14, 2010. (ECF No. 1 ¶ 11.) On May 14, 2014, the United States Citizenship and Immigration Services (“USCIS”) denied her application. (Id. ¶ 13.) Having exhausted her administrative appeals, Kuffour petitions this Court for de novo review of that denial under 8 U.S.C. § 1421(c). (Id. at 2-4.) Defendants move to dismiss Kuffour's petition pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, (ECF No. 5), contending that this Court lacks subject matter jurisdiction because, in the time since filing, the Department of Homeland Security (“DHS”) has initiated removal proceedings against her. (ECF No. 6 at 2-4.)

         For the reasons that follow, the Court will deny Defendants' motion.

         I. BACKGROUND

         Kuffour is a native and citizen of Ghana, now residing in High Point, North Carolina. (ECF No. 1 ¶ 5.) On June 22, 2005, she “obtained lawful permanent resident status” through the visa petition of her United States citizen stepfather, Gary Mathis. (Id. ¶¶ 10, 15.) Five years later, Kuffour applied for naturalization. (Id. ¶ 11.) However, on May 14, 2014, USCIS denied her application. (Id. ¶¶ 11-13.) According to the petition before this Court, USCIS determined that Kuffour was “not entitled to the permanent resident status” she had obtained because her mother's marriage to Mathis-the source of Kuffour's status as a permanent resident-was “for the sole purpose of circumventing immigration law” and, therefore, invalid. (Id. ¶ 16.)

         Following her denial, Kuffour, on June 5, 2014, requested an administrative appeal hearing, which was conducted at the USCIS Charlotte Field Office on November 10, 2014. (Id. ¶¶ 18-19.) At the hearing, Kuffour maintained that she was still a legal permanent resident “since neither her nor her mother's lawful status had been terminated upon final administrative order.” (Id. ¶ 20.) On May 31, 2016, USCIS vacated the original denial of Kuffour's application and invited Kuffour to submit additional evidence proving the validity of her legal status. (Id. ¶¶ 21-22.) Although Kuffour put forth materials “supporting the legitimacy of her mother's marriage, ” USCIS again denied her application for naturalization on January 3, 2018. (Id. ¶¶ 24-25.) In its decision, USCIS acknowledged that at the time Kuffour's status was adjusted to that of legal permanent resident she was “20 years old and [was] most likely not privy” to her mother's “marital relationship.” (Id. ¶ 44.) Kuffour pursued a second administrative appeal hearing on April 2, 2018. (Id. ¶ 26.) She was again unsuccessful, and on April 9, 2018 USCIS issued a “final administrative denial” of her naturalization application. (Id. ¶¶ 30-31.)

         On June 29, 2018, Kuffour petitioned this Court for de novo judicial review of the final administrative denial of her naturalization application pursuant to 8 U.S.C. § 1421(c). (Id. ¶¶ 32-47.) In her petition, Kuffour alleges that she “meets the . . . requirements for naturalization” and that, despite USCIS's determination that she was not entitled to permanent resident status, her status has yet to be rescinded, adjusted, or otherwise terminated. (Id. ¶¶ 39-41, 43.) Kuffour believes that her application for naturalization should not have been denied and that, upon making “its own findings of fact and conclusions of law, ” 8 U.S.C. § 1421(c), this Court will agree. (See ECF No. 1.)

         In August, 2018-after Kuffour filed her petition with this Court-DHS sent her a copy of a Notice to Appear (“NTA”) in removal proceedings. (ECF No. 6 at 2; ECF No. 7 at 2.) According to Kuffour, the “putative NTA” stated that her initial appearance in the removal proceedings was scheduled for October 31, 2018. (ECF No. 7 at 2.) However, when counsel appeared at the specified Immigration Court on that date, he was informed that “no such court date existed and the putative NTA had not, in fact, been filed with the Immigration Court.” (Id.)

         Defendants have submitted, as an exhibit attached to their Reply Brief, (ECF No. 9), a declaration of the the Court Administrator of the Charlotte Immigration Court which states that DHS “initiated removal proceedings” against Kuffour “by filing a notice to appear (“NTA”) with the Charlotte Immigration Court on August 28, 2018.” (ECF No. 9-1 ¶ 2.) Furthermore, according to the declarant, the Executive Office for Immigration Review (“EOIR”) “entered the NTA into EOIR's electronic database on November 8, 2018, ” “scheduled [Kuffour] for an initial master calendar hearing before an immigration judge on March 10, 2020, ” and “generated a notice of the scheduled hearing and mailed it to Ms. Kuffour on November 8, 2018.” (Id. ¶ 4.)

         Nowhere in their motion or supporting briefs do Defendants dispute that this Court had jurisdiction to hear Kuffour's petition at the time it was filed. (See ECF Nos. 6, 9.) However, Defendants argue that, under the Immigration and Nationality Act (“INA”) and the Fourth Circuit's opinion in Barnes v. Holder, 625 F.3d 801 (4th Cir. 2010), “an alien in removal proceedings does not have a right to judicial review of her application for naturalization.” (ECF 6 at 3.) Contending that Kuffour is now in removal proceedings, Defendants move to dismiss Kuffour's petition pursuant Rule 12(b)(1) of the Federal Rules of Civil Procedure. (ECF Nos. 5, 6.)


         Under Rule 12(b)(1), a party may seek dismissal based on the court's “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). Subject matter jurisdiction is a threshold issue that relates to the court's power to hear a case and must be decided before a determination on the merits of the case. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 479- 80 (4th Cir. 2005). A motion under Rule 12(b)(1) raises the question of “whether [the plaintiff] has a right to be in the district court at all and whether the court has the power to hear and dispose of [the] claim.” Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012). The burden of proving subject matter jurisdiction rests with the plaintiff, and the trial court may “consider evidence by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Finally, when evaluating a Rule 12(b)(1) motion to dismiss, the court should grant the motion “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).


         Under the INA, a person “whose application for naturalization . . . is denied, after a hearing before an immigration officer . . . may seek review of such denial before the United States district court.” 8 U.S.C. § 1421(c). The court's review of such petitions “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.” Id.

         In Barnes v. Holder, however, the Fourth Circuit held that review under § 1421(c) 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.” 625 F.3d at 806 (quoting 8 U.S.C. § 1429) (emphasis added). Unlike in this case, Barnes, a noncitizen permanent resident, had filed a naturalization application two years after removal proceedings had commenced against him.[1] Id. at 802. He then moved to terminate removal proceedings pursuant to 8 C.F.R. § 1239.2(f), which requires proof of “prima facie eligibility for naturalization” before relief can be rewarded. Id. at 802-3. Because Barnes was unable to obtain a letter from DHS attesting to his prima facie eligibility, the Immigration Judge (“IJ”) handling his case refused to halt removal proceedings. Id. at 803. On appeal, the Board of Immigration Appeals (“BIA”) upheld the IJ's decision, and Barnes petitioned the Fourth Circuit for review. Id.

         Among other arguments, Barnes alleged that, because the BIA's decision “thwart[ed] [his] right to have his naturalization application timely adjudicated, ” his corresponding right “to pursue, if necessary, judicial review” of said application under §1421(c) had been denied. Id. The Fourth Circuit rejected this argument, reasoning that “[b]ecause, under § 1429, an alien in removal proceedings does not have a right to have his application adjudicated, it follows that he cannot possibly have a right to have the adjudication judicially reviewed.” Id. at 806. In other words, so long as § 1429 prevents DHS from rendering a final decision on an application for naturalization, there will never be a final agency adjudication for a district court to review under §1421(c). See Id. For Barnes, who went into removal proceedings before applying for naturalization, this meant that any right to judicial review under §1421(c) was merely speculative. See id.

         According to Defendants, “[t]he application of 8 U.S.C. § 1429 and Barnes to this case is clear.” (ECF No. 6 at 4.) So long as removal proceedings are pending against Kuffour, they argue, this Court lacks subject matter jurisdiction to review her petition. Id. Kuffour does not dispute Defendants' interpretation of Barnes, but contends that Barnes is “simply not applicable here” because, due to alleged procedural defects, “removal proceedings have not been properly initiated.” (ECF No. 7 at 3-4.)

         While the Court agrees with Defendants that removal proceedings have been properly initiated against Kuffour, the Court cannot agree that Barnes deprives district courts of subject matter jurisdiction when, as with Kuffour, a petitioner has received a final administrative denial from USCIS, exhausted administrative appeals, and properly petitioned for judicial review under §1421(c)-all before removal proceedings are initiated.

         A. Initiation of ...

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