Kulkarni v. Wolf, Case No. 4:20-00089-CV-RK

503 F.Supp.3d 908

Siddhi KULKARNI, Plaintiff,

v.Chad F. WOLF, et al., Defendants.

Case No. 4:20-00089-CV-RK

United States District Court, W.D. Missouri, Western Division.

Signed November 25, 2020

Jennifer M. Wollenberg, Pro Hac Vice, Morgan, Lewis & Bockius, LLP, Washington, DC, Jonathan James Willmoth, Willmoth Immigration Law, LLC, Kansas City, MO, for Plaintiff.

Alan Thomas Simpson, United States Attorney's Office, Kansas City, MO, for Defendants.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

ROSEANN A. KETCHMARK, JUDGE

This case involves the denial of Plaintiff Siddhi Kulkarni's application to become a naturalized U.S. citizen by the U.S. Citizenship and Immigration Services ("USCIS"). Pending before the Court is Defendants’ motion to dismiss for failure to state a claim. (Doc. 10.) The motion has been fully briefed. (Docs. 10-1, 18, 25.) For the reasons stated below, and after careful consideration, the motion is GRANTED , and the case is DISMISSED .¹

I. Background

On February 10, 2020, Plaintiff filed this action under 8 U.S.C. § 1421(c) seeking judicial review of USCIS's determination that she is ineligible to naturalize based on her "uncharacterized" discharge. (Doc. 1.) Plaintiff named the following as Defendants in the Complaint: (1) Chad Wolf in his official capacity as Acting Secretary of the U.S. Department of Homeland Security; (2) Kenneth Cuccinelli in his official capacity as Acting Director of USCIS; (3) David Douglas in his official capacity as District Director of the Kansas City District Office of USCIS; and (4) Michelle Perry in her official capacity as Field Office Director of the Kansas City Field Office of USCIS. (Doc. 1.)

Plaintiff enlisted in the United States Army through the Military Accessions Vital to the National Interest ("MAVNI") program, which provides foreign nationals a pathway to U.S. citizenship by serving in the military during designated periods of hostility subject to the statutory requirements of 8 U.S.C. § 1440. Plaintiff sustained injuries during basic training, resulting in her discharge before completing basic training (also referred to as entry-level separation).

Plaintiff then sought to be naturalized as a U.S. citizen by submitting an N-400, Application for Naturalization, to USCIS on December 21, 2018. (Doc. 1 at 13.) The application included a Form N-426, which is a Request for Certification of Military or Naval Service, created by the USCIS. The form certified Plaintiff served honorably in the Army in an active duty capacity. (Doc. 1-3 at 3.) As to separation, on that form are two boxes as to discharge type: "Honorable," and "Other." The Army did not select (or certify) a discharge type. (Doc. 1-3 at 4.) The Army additionally provided Plaintiff a DD 214 Form titled Certificate of Release or Discharge from Active Duty, labeling her type of separation a "Discharge" and labeling her "Character of Service" as "Uncharacterized." (Doc. 1-1.) The "Narrative Reason for Separation" was "Condition, not a disability." (Doc. 1-1.)

The USCIS denied Plaintiff's application for naturalization on the basis that Plaintiff received an "uncharacterized" discharge and had not "demonstrated that [she was] discharged from the U.S. Armed Forces under honorable conditions." (Doc. 1-5.) Plaintiff appealed that determination, submitting a Form N-336 (titled Request for a Hearing on a Decision in Naturalization Proceedings). (Doc. 1 at 15.) USCIS affirmed the denial, noting it "must defer to the Department of the Army ... to determine whether you served and were separated under honorable conditions." (Doc. 1-7 at 2.)

Between the dates of the administrative appeal and USCIS's decision, on June 19, 2019, Plaintiff obtained a second USCIS Form N-426 – Request for Certification of Military or Naval Service, in which the Army certified to USCIS that Plaintiff received an "uncharacterized" discharge. (Doc. 1-6 at 4.) Again, on that form are two boxes as to separation information: "Honorable," and "Other." The Army checked the box "Other," and in accompanying remarks stated: "Soldier discharged with an uncharacterized discharge. No derogatory information found." (Doc. 1-6 at 4.) Plaintiff alleges, "[p]ursuant to the applicable statute and the USCIS Policy Manual, Ms. Kulkarni's June 19, 2019 Form N-426 is sufficient evidence that she is eligible for naturalization." (Doc. 1 at 19.)

Instead of seeking judicial review pursuant to 8 U.S.C. § 1421(c), Plaintiff filed a lawsuit in the United States District Court for the District of Columbia, along with similarly situated plaintiffs, challenging USCIS's "policy" of treating uncharacterized discharges as not "under honorable conditions." Miriyeva v. U.S. Citizenship & Immigration Servs. , 436 F. Supp. 3d 170 (D.D.C. 2019). The Miriyeva complaint included four counts: (1) Count I alleges SCIS's policy violates the Administrative Procedure Act ("APA"); (2) Count II alleges the policy violates the Constitution's Uniform Rule of Naturalization clause and the Fifth Amendment's due process clause; (3) Count III seeks a declaratory judgment; and (4) Count IV seeks injunctive relief. Id. The defendants filed a motion to dismiss for lack of jurisdiction, which the court granted on December 12, 2019. In dismissing the Miriyeva complaint, the court determined the judicial review process under 8 U.S.C. § 1421(c) provides an adequate remedy to challenge the denial of a naturalization application. The Miriyeva court held § 1421(c) precluded the substantive counts under the APA (Count I) and the Constitution (Count II). Accordingly, the court found that without a viable substantive claim, it lacked jurisdiction over the declaratory judgment claim (Count III). Id. at 186.²

Plaintiff then filed this action under 8 U.S.C. § 1421(c) seeking judicial review of USCIS's determination. Plaintiff's complaint includes five counts: (1) Count I for violations of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1440 ; (2) Count II for violations of the APA; (3) Count III for Constitutional violations under the Uniform Rule of Naturalization and due process under the Fifth Amendment; (4) Count IV seeks a declaratory judgment; and (5) Count V seeks injunctive relief.

Defendants filed the instant motion to dismiss on May 13, 2020, arguing the Court should dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P 12(b)(6).³

II. Legal Standard

To survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim is facially plausible where the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Wilson v. Ark. Dept. of Human Servs. , 850 F.3d 368, 371 (8th Cir. 2017) (internal quotation marks and citation omitted). While a complaint does not need to include detailed factual allegations, the complaint must allege more than a sheer possibility that a defendant acted unlawfully to survive a motion to dismiss. Id. (citation omitted). When considering a motion to dismiss for failure to state a claim, the well-pled allegations in the complaint must be accepted as true and construed in the light most favorable to the nonmoving party. Osahar v. U.S. Postal Serv. , 263 Fed. Appx. 753, 764 (11th Cir. 2008).

III. Discussion

A. Count I

Plaintiff alleges Defendants violated the INA when USCIS denied Plaintiff's naturalization application on the basis she failed to establish her discharge from the Army was under honorable conditions. Plaintiff contends USCIS has a policy of ignoring the military's view of her discharge as meeting the requirements of § 1440. (Doc. 18 at 5.)

1. Judicial Review

The INA provides that any "person whose application for naturalization ... is denied ... may seek review of such denial before the United States district court for the district court in which such person resides." 8 U.S.C. § 1421(c). "[ Section] 1421(c) requires a district court to subject a denial of a naturalization application to de novo review, to ‘make its own findings of fact,’ and to ‘conduct a hearing’ if requested by the applicant." Nyari v. Napolitano , 562 F.3d 916, 920 (8th Cir. 2009). "Any relief provided to the petitioner under § 1421(c) is an instruction to the agency to naturalize the petitioner." Miller v. McAleenan , No. 4:19-CV-00043-DGK, 2019 WL 2411440, at *2 (W.D. Mo. June 7, 2019) (citing Zayed v. United States , 368 F.3d 902, 906 (6th Cir. 2004) ).

2. The Administrative Naturalization Process under 8 U.S.C. § 1440

In relevant part, § 1440(a) states:

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 a designated period of hostilities], and who, if separated from such service, was separated under honorable conditions , may be naturalized as provided in this section[.]

(Emphases added).

Of note, "the executive department under which such [applicant] served shall determine whether persons have served honorably in an active-duty status, and whether separation from such service was under honorable conditions." Id.

Section 1440(b) drills down on the requirement that the executive department's certification is key:

(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 aduly authenticated certificationfrom the executive department

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