Donnelly v. Controlled Application Review & Resolution Program Unit

503 F.Supp.3d 100

Patrick J. DONNELLY, Petitioner,

v.CONTROLLED APPLICATION REVIEW AND RESOLUTION PROGRAM UNIT, et al., Respondents.

19-CV-4932 (JPO)

United States District Court, S.D. New York.

Signed November 30, 2020

Gerard Gregory McCabe, FG McCabe & Associates, PLLC, New York, NY, for Petitioner.

Simon Nakajima, DOJ-USAO, New York, NY, for Respondents.

OPINION AND ORDER

J. PAUL OETKEN, District Judge:

This is an immigration case concerning Petitioner Patrick J. Donnelly's protracted effort to become a U.S. citizen. Before proceeding to the merits of Petitioner's case, the Court must satisfy itself of its jurisdiction. For the reasons that follow, the Court concludes that it lacks jurisdiction and grants Respondents’ motion to dismiss.

I. Background

Petitioner, a citizen of Ireland, filed his naturalization application on September 14, 2009. (Dkt. No. 43 at 6.) His application process has been beleaguered by delays. Respondents did not schedule Petitioner's initial hearing until 2014, five years after his application was filed. (Id. ) It took Respondents another seven months to rule on his application, denying it in 2015 for reasons relating to Petitioner's recitation of his previous five years of employment. (Id. ) Specifically, Respondents concluded that Petitioner had intended to lie when he failed to mention that he was CEO of a company from 1999 to 2006. (Dkt. No. 2-8 at 7.) Petitioner countered that he did not believe himself to be employed by the company, which reported just $16,000 in profits in 2004 and dissolved in 2005, during the five-year period that he was meant to describe on his 2009 application. (Dkt. No. 2-8 at 7–8.) Petitioner administratively appealed this first denial, and Respondents affirmed the denial for the same employment-related reasons in 2016, one year and seven months later. (Dkt. No. 2-8 at 9–10.) Petitioner then challenged Respondents’ final agency decision by filing a petition for review in this Court (Donnelly v. Coven , 17-cv-321 (S.D.N.Y.)). (See Dkt. No. 2-8.) In 2017, the parties agreed that Respondents would reopen Petitioner's application, and Petitioner voluntarily dismissed his case. (See Dkt. No. 2-9.)

Persuaded that they could not deny Petitioner's application based on his employment history, Respondents took a new approach. One year after reopening Petitioner's application, Respondents held another hearing for Petitioner. (Dkt. No. 43 at 6.) At this hearing, on January 23, 2018, Respondents placed greater focus on Petitioner's criminal history in Ireland. (Id. ) In particular, Respondents asked for further details on an incident that Petitioner had mentioned at his 2014 hearing. (Dkt. No. 43 at 6–7.) At the 2014 hearing, Petitioner had informed Respondents that he was once questioned for three days by the Irish police "about where [he] was and where [he] worked," as well as "where [he] was going and where [he] lived." (Dkt. No. 36-2 at 6.) At the time, Petitioner did not characterize this incident as an arrest because, during the Troubles, or the three-decade conflict over the status of Northern Ireland, "[t]hat's how it was." (Id. ) Petitioner stated that such questioning was "common" and that he was not charged after the incident. (Id. ) Respondents had accepted Petitioner's responses in 2014. But they did not at the January 23, 2018 hearing, and Petitioner eventually conceded that his questioning in Ireland could be construed as an arrest. (Dkt. No. 36-2 at 8.)

After the hearing, Respondents requested that Petitioner provide documentary evidence regarding the incident in Ireland. (Dkt. No. 1-1 at 3.) In response, Petitioner sought and submitted a report from the United Kingdom's National Police Chiefs’ Council that stated that Petitioner had no "convictions, cautions, final warnings or reprimands" in the country. (Dkt. No. 2-6.) Meanwhile, Respondents purportedly sought and received records from the Police Service of Northern Ireland showing that Petitioner had been fined between 10£ and 75£ for four traffic infractions and that the incident Petitioner had previously discussed was a 1985 arrest pursuant to the Prevention of Terrorism (Temporary Provisions) Act of 1976. (Dkt. No. 1-1 at 4.) Respondents did not produce any of these records to Petitioner, and on May 22, 2018, precisely 120 days after the hearing, Respondents denied Petitioner's naturalization application based on the records. (Dkt. No. 44 at 7–8.) Furthermore, Respondents concluded that, because Petitioner had failed to inform them of the traffic infractions and the 1985 incident when he obtained his status as a lawful permanent resident, he had not properly obtained that status. (Dkt. No. 1-1 at 4–5.) Respondents stripped him of the status. (Id. )

Petitioner administratively appealed Respondents’ decision on June 23, 2018. (Dkt. No. 1 at 7.) When Respondents failed to schedule a hearing by May 28, 2019, 340 days later, Petitioner filed this action. (Dkt. No. 1 at 7–8.) Shortly thereafter, Respondents scheduled Petitioner's hearing, which Petitioner declined to attend because of the pending litigation and his concern that Respondents were operating in bad faith. (Dkt. No. 44 at 8–9.) On October 31, 2019, Respondents affirmed their May 22, 2018 denial in full. (See Dkt. No. 36-2.) Within the week, Respondents initiated removal proceedings. (Dkt. No. 43 at 8.)

On January 17, 2020, Respondents filed a motion to dismiss Petitioner's case. Respondents primarily argue that Petitioner's case must be dismissed under Rule 12(b)(1) of the Federal Rules of Civil Procedure for want of subject-matter jurisdiction. In the alternative, they argue that their initiation of removal proceedings during the pendency of this case precludes the Court from granting Petitioner's naturalization application and thus warrants dismissal of the case under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (See Dkt. No. 42.)

II. Legal Standard

The Court must dismiss a claim sua sponte or under Rule 12(b)(1) when the Court "lacks the statutory or constitutional power to adjudicate it." Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.A.R.L. , 790 F.3d 411, 417 (2d Cir. 2015) (citation omitted). In considering a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, the Court "must accept as true all material factual allegations in the complaint" or application, but it cannot "draw inferences ... favorable to plaintiffs" or petitioners. J.S. ex rel. N.S. v. Attica Cent. Sch. , 386 F.3d 107, 110 (2d Cir. 2004) (citation omitted). "A [party] asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) (citation omitted). To determine if Petitioner has carried his burden, the Court "may refer to evidence outside the pleadings." Id. (citation omitted).

III. Discussion

8 U.S.C. § 1421(a) provides that "[t]he sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General." Section 1421(c) creates an exception to this exclusive authority, applicable when an "application for naturalization ... is denied, after a hearing before an immigration officer" conducted as part of an administrative appeal; in such instances, when the denial is final, an applicant "may seek review of such denial" in the appropriate district court. 8 U.S.C. § 1447(b) establishes a second exception, applicable when an initial decision on an application is not rendered "before the end of the 120-day period after the date on which the examination [or hearing] is conducted" to assess the application. Section 1447(b) explicitly provides that, in such instances, the appropriate district court "has jurisdiction over the matter and may either determine the matter or remand the matter."

Petitioner acknowledges that §§ 1421(c) and 1447(b) are the only subsections of Title 8 describing circumstances in which an applicant for naturalization may seek judicial review. (Dkt. No. 44 at 12–13.) He further acknowledges that his case, at the time of filing, did not meet the express requirements of either § 1421(c) or § 1447(b) : On May 28, 2019, the denial of Petitioner's application was not yet final, but the initial decision on his application had already been rendered, within 120 days of the hearing to assess his application. Still, Petitioner asserts that the Court has jurisdiction under § 1421(c) because the "exhaustion of administrative remedies is not jurisdictional." (Dkt. No. 44 at 13.) He casts § 1421(c) as a mere claims-processing rule, the restrictions of which "courts should treat ... as nonjurisdictional in character." Arbaugh v. Y&H Corp. , 546 U.S. 500, 516, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ; see also Reed Elsevier, Inc. v. Muchnick , 559 U.S. 154, 161–62, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010). As the Second Circuit has explained, claims-processing rules generally "ha[ve] the effect of imposing a bar to ... review," Zhong v. U.S. Dept. of Justice , 480 F.3d 104, 122 (2d Cir. 2007), but their requirements are "subject to equitable considerations such as waiver, estoppel or futility," id. at 120 (quotation omitted).

Equitable considerations certainly support reviewing Petitioner's claims. Judicial review appears "necessary to avoid manifest injustice." Marrero Pichardo v. Ashcroft , 374 F.3d 46, 53 (2d Cir. 2004). As described, Respondents’ processing of Petitioner's application, filed over a decade ago, has been rife with delay. At the time Petitioner filed this case, 340 days had passed since Petitioner submitted his administrative appeal of Respondents’ decision, and Respondents had yet to respond. By their own regulations, Respondents must "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. Respondents’ failure to schedule Petitioner's hearing was...