CARLOS BUSTAMANTE, Plаintiff-Appellant, v. JANET A. NAPOLITANO, Secretary of U.S. Department of Homeland Security, JONATHAN R. SCHARFEN, Acting Director, U.S. Citizenship and Immigration Services, ANDREA QUARANTILLO, District Director, New York District, USCIS, MARK J. MERSHON, Assistant Director in Charge, Federal Bureau of Investigation, Defendants-Appellees.
Docket No. 08-0990-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
September 28, 2009
August Term, 2008 (Argued: March 27, 2009)
Pursuant to
Before: STRAUB, POOLER, RAGGI, Circuit Judges.
Plaintiff-appellant Carlos Bustamante apрeals from a judgment of the United States District Court for the Southern District of New York (McMahon, J.), granting defendants-appellees’ motion to dismiss the complaint as moot. The issue on this appeal is whether United States Citizenship and Immigration Services (“USCIS“) can still decide a naturalization application after an applicant files a petition in district court pursuant to
REVERSED and REMANDED.
PAUL O’DWYER, New York, NY, for Plaintiff-Appellant.
MARY KENNEY, for Amicus Curiae, American Immigration Law Foundation, in support of Plaintiff-Appellant.
DAVID BOBER, Assistant United States Attorney, (SARAH S. NORMAND, Assistant United States Attorney, on the brief), for PREET BHARARA, United States Attorney for the Southern District of New York, New York, NY, for Defendants-Appellees.
POOLER, Circuit Judge:
Plaintiff-appellant Carlos Bustamante appeals from a judgment of the United States District Court for the Southern District of New York (McMahon, J.), granting defendants-appellees’ motion to dismiss the complaint as moot.
The issue on this appeal is whether USCIS can still decide a naturalization application after an applicant files a Section 1447(b) petition in district court. We conclude that only the district court has jurisdiction to determine a naturalization application when, after USCIS has failed to adjudicate the application within 120 days of the initial examination, the applicant files a Section 1447(b) action. Although a properly filed Section 1447(b) petition removes USCIS’s power to decide the naturalization application, USCIS still can recommend a disposition to the district court or request a remand for the agency to determine the application. It is incumbent upon the district court, however, to “determine the matter or remand the matter.”
BACKGROUND
Bustamante, a native of Mexico, has been a lawful permanent resident (“LPR“) since 1972. In 2006, thirty-four years after becoming an LPR, Bustamante filed a naturalization application on the grounds that he was an LPR residing in the United States for at least five years and showed good moral character during the five-year period preceding his application.1 On February 1, 2007, he was interviewed by a USCIS officer.
Section 1447(b) provides:
If there is a failure to make a determination under section 1446 of this title before the end of the 120-day рeriod after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.
On August 24, 2007, after Bustamante filed his Section 1447(b) petition, USCIS denied Bustamante’s application based on his 1982 involuntary manslaughter conviction for his involvement in a fight that resulted in a person’s death. Though the conviction occurred outside the five-year statutory period and the record does not contain reference to other offenses, USCIS determined that Bustamante failed to show good moral character based on the conviction.2 In its denial, USCIS informed Bustamante
On January 29, 2008, the district court issued an order granting dеfendants’ motion. See Bustamante v. Chertoff, 533 F. Supp. 2d 373, 374 (S.D.N.Y. 2008). On February 26, 2008, the district court entered an amended order granting the motion. The district court held that Section 1447(b) “does not divest CIS of jurisdiction over a pending naturalization application.” Id. at 376. The district court reasoned that “[t]he statutory language does not explicitly vest the district court with exclusive jurisdiction,” id., and that a decision by USCIS does not divest a district court of jurisdiction because “nothing . . . can prevent an aggrieved applicant from going to the district court for final de novo review,” id. at 377, a referenсe to the naturalization applicant’s right to appeal an adverse USCIS decision once internally and then to a district court. See
Bustamante timely appealed.
DISCUSSION
This case presents a question of first impression for our Court: Whether a properly filed Section 1447(b) petition divests USCIS of jurisdiction over a naturalization application? A divided panеl of the Fourth Circuit and unanimous in banc panel of the Ninth Circuit have answered the question in the affirmative. Etape v. Chertoff, 497 F.3d 379 (4th Cir. 2007); United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (in banc).3 We agree that only the district court has jurisdiction over a naturalization application once an applicant files a proper Section 1447(b) petition.
I. The Text of Section 1447(b)
“[S]tatutory analysis necessarily begins with the plain meaning of a law’s text and, absent ambiguity, will generally end there.” Puello v. BCIS, 511 F.3d 324, 327 (2d Cir. 2007) (quotation marks omitted). The language of Section 1447(b) expressly states that, when a naturalization applicant requests a hearing before thе district court on a pending application that USCIS has not decided for more than 120 days after the initial examination of the applicant, the court “has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.”
The district court’s jurisdiction under Section 1447(b) vests with a naturalization applicant’s petition for a hearing in the absence of a timely decision by USCIS. USCIS has jurisdiction to adjudicate a naturalization application during the period up to 120 days after the initial examination of an applicant. USCIS also retains jurisdiction beyond the 120-day period following the initial examination as long as a naturalization applicant does not file a Section 1447(b) petition. See
The government contends that USCIS retains authority to decide a naturalization application after a Section 1447(b) petition is filed. It would be illogical, however, for Congress to vest the district court with jurisdiction “to determine the matter” upon the filing of a Section 1447(b) petition, see
Section 1447(b)’s reference to the district court’s “remand” authority also demonstrates that the government’s reading is flawed. By providing the district court with the option to “remand the matter, with appropriate instructions, to [USCIS],”
Giving effect to the plain meaning of the statute’s terms, we cannot agree with the government’s argument that USCIS retains authority to decide a naturalization application because Section 1447(b) does not explicitly state that a district court’s jurisdiction is “exclusive.” When the 120-day period following the initiаl examination of an applicant has passed, Section 1447(b) contemplates something like a system of concurrent jurisdiction. Similar to a litigant who ordinarily can choose to bring a federal claim before either a federal or state court, see, e.g., Tafflin v. Levitt, 493 U.S. 455, 458-59 (1989), the naturalization applicant, who has an application pending before USCIS beyond the 120-day period, has the option pursuant to Section 1447(b) to continue with proceedings before USCIS or to bring the application before the district сourt. If the naturalization applicant chooses to do nothing, the application will remain pending before USCIS with the agency maintaining jurisdiction to decide the application. If the naturalization applicant chooses instead to file a Section 1447(b) petition with the district court, then the district court will have jurisdiction to decide the application or remand to USCIS.
This scenario bears some similarity to a system of concurrent jurisdiction because the body with authority to decide the application depends on the naturalization applicant’s choice between staying the course with USCIS or effectively removing the application to the district court by filing a Section 1447(b) petition. See Black’s Law Dictionary (8th ed. 2004) (defining “concurrent jurisdiction” as “jurisdiction that might be exercised simultaneously by more than one court over the same subject matter ... a litigant having the right to choose the court in which to file the action.“). When the naturalization applicant chooses to file a Section 1447(b) petition, the district court acquires jurisdiction that is “exclusive” in the sense that USCIS is no longer empowered to decide the application. This is not much different from the concurrent jurisdiction that federal and state courts can have over a federal claim where only one court – typically the one where a litigant files the claim – will have authority to decide the claim. Cf. Tafflin, 493 U.S. at 458-59. The language of Section 1447(b) shows that Congress intended either USCIS or the district court to decide applications that remain pending beyond the 120-day period, at the applicant’s choice. The omission of the term “exclusive” is consistent with this intent.4 But nothing is the
In holding that the district court possesses exclusive jurisdiction to decide a naturalization petition as to which a Section 1447(b) complaint has been filed, we do not suggest that upon the applicant’s invocation of a district court’s Section 1447(b) jurisdiction, USCIS is barred from continuing its consideration of the naturalization application or from reaching a tentative determination. Certain practical realities might support such agency action. Section 1447(b) is triggered, after all, by agency delay. No one’s interest are served by compelling further delay. Inevitably, the district court will solicit the parties’ views on a Section 1447(b) petition before determining whether to reach the merits of the application or remand to the agency. The parties will likely stipulate to a remand if USCIS tentаtively recommends that an application be granted. Even with applications that USCIS intends to deny and for which no stipulation would be expected, USCIS is entitled to request a remand. Thus, a system of district court/agency cooperation where, even upon the former’s acquisition of jurisdiction, the latter continues its consideration of a matter, but requires court permission before it can put any decision into effect, may make sense. Such coordination is not unprecedented. Cf. Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992) (per curiam) (holding that “the district court may grant a rule 60(b) motion after an appeal is taken only if the moving party obtains permission from the circuit court,” and that “this court must first give its consent so it can remand the case“).
Section 1447(b) provides district courts with the flexibility to either decide or remand based on the particular circumstances of an application. While Section 1447(b) allows the district court to “remand, with appropriate instructions,” for USCIS “to determine the matter,”
The foregoing analysis of Section 1447(b) comports with the Supreme Court’s decision in Brock v. Pierce County, 476 U.S. 253 (1986). In Brock, the Court declined to find that an agency’s failure to comply with a procedural deadline divested the agency of its power to act where the statute did not require it “to act within a particular time period and specif[y] a consequence for failure to comply with the provision.” Id. at 259 (quotation marks and emphasis omitted); see also United States v. Boccanfuso, 882 F.2d 666, 671 (2d Cir. 1989) (“Federal agencies do not lose jurisdiction by their failure to comply with statutory time limits unless the statute demonstrates congressional intent that this result occur.” (citing Brock, 476 U.S. at 266)). Because the now-repealed Comprehensive Employment and Training Act (“CETA“) provided a deadline for the issuance of a final determination as to the misuse of CETA funds but did not specify a consequence for the Secretary of Labor’s failure to do so in a timely fashion, the CETA “[did] not, standing alone, divest the Secretary of jurisdiction to act after that time.” Id. at 266.
Unlike the statute considered in Brock, the language of Section 1447(b) demonstrates that Congress intended USCIS’s failure to act on a naturalization application within 120 days of the initial interview to have a consequence—namely, that an applicant’s petition to the district court beyond the 120-day period would divest USCIS of jurisdiction. See Etape, 497 F.3d at 384-85. The government asserts that Section 1447(b) cannot divest USCIS of jurisdiction because the 120-day deadline originated as part of the agency’s own regulations. See
Accordingly, the plain language of the statute vests jurisdiction in the district court when a naturalization applicant files a proper Section 1447(b) petition. The government’s view that USCIS retains jurisdiction to decide an applicаtion after the filing of a Section 1447(b) petition is inconsistent with the statutory language.
II. Statutory Context and Purpose
The statutory context and purpose also supports our interpretation of Section 1447(b). See Auburn Hous. Auth. v. Martinez, 277 F.3d 138, 144 (2d Cir. 2002) (“[T]he preferred meaning of a statutory provision is one that is consonant with the rest of the statute.“). Before the Immigration Act of 1990 (“the Act“),
When USCIS denies an application, Section 1421 provides that the district court’s review of the dеnial is de novo, and the court is required to make its own findings of fact and conclusions of law.
With the 1990 Act, Congress sought a careful balance between the roles of USCIS and the district courts in adjudicating naturalization applications. USCIS is “charged with primary naturalization responsibility.” Ajlani v. Chertoff, 545 F.3d 229, 241 (2d Cir. 2008). The district courts are required to exercise judicial review of naturalization apрlications that are denied or that remain undecided beyond the requisite 120-day period. Our interpretation is consistent with Congress’s intended purpose.
CONCLUSION
For the foregoing reasons, we hold that USCIS did not have jurisdiction to decide Bustamante’s application after he filed a Section 1447(b) petition. Accordingly, the judgment of the district court is REVERSED and REMANDED.
Notes
Where there has been a failure to make a determination under [§ 1446] before the end of the 90-day period after the date on which the examination is conducted under such section, the United States district court for the district in which the applicant resides shall upon the demand of the petitioner exercise exclusive jurisdiction over the matter.See H.R. Rep. No. 101-187, at 34 (1989). It is reasonable to infer from this language that Congress was weighing a stronger version of the statute than the one it ultimately enacted. By providing that the district court “shall upon the demand of the petitioner exercise exclusive jurisdiction over the matter,” the earlier version suggests that the district court would only have one option—to decide the naturalization application. Section 1447(b), as enacted, is different from this earlier version. Congress used more explicit language to indicate that the district court would have the options of deciding the application or remanding to USCIS. Congress enacted a statutory provision that gives USCIS additional time to consider the application, and the possibility that the application will be remanded for USCIS, rather than a court, to render a decision on the application in the first instance.