Escaler v. U.S. Citizenship, No. 07-3769 (2d Cir. 2009)

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07-3769-cv Escaler v. U.S. Citizenship 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: March 9, 2009 Decided: September 11, 2009) Docket No. 07-3769-cv - - - - - - - - - - - - - - - - - - - - - - - - - - - - JAIME BORROMEO ESCALER, Plaintiff-Appellant, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; EDWARD MCELROY, District Director; ERIC H. HOLDER JR., United States Attorney General;* DEPARTMENT OF HOMELAND SECURITY, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - - - - - - - - - - B e f o r e: WINTER and SACK, Circuit Judges, and COGAN, District Judge.** Appeal from an order by the United States District Court for 32 the Southern District of New York (Barbara S. Jones, Judge) 33 granting the United States Citizenship and Immigration Services * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr. is automatically substituted for former Attorney General John Ashcroft. ** The Hon. Brian M. Cogan, of the United States District Court for the Eastern District of New York, sitting by designation. 1 1 ( CIS ) motion to dismiss. After his application for citizenship 2 was approved, appellant failed to take the oath of allegiance in 3 the familiar public ceremony, and left the United States for more 4 than a year. 5 requirement of continuous residence between the initiation of a 6 naturalization application and the completion of naturalization. 7 Appellant now seeks an order compelling CIS either to issue him a 8 Certificate of Naturalization or to reopen his application nunc 9 pro tunc to the time between the application s approval and his The CIS found that this absence violated the 10 leaving the United States. We hold that appellant s failure to 11 exhaust his administrative remedies prevents the federal courts 12 from reviewing appellant s case. We therefore affirm. 13 14 15 16 THOMAS E. MOSELEY, Newark, New Jersey, for Plaintiff-Appellant. 17 18 19 20 21 22 23 24 25 26 27 28 F. JAMES LOPREST, JR., Special Assistant United States Attorney (Michael J. Garcia, United States Attorney, on the brief, Ross E. Morrison, Assistant United States Attorney, of counsel), Office of the United States Attorney for the Southern District of New York, New York, New York, for DefendantsAppellees. 29 WINTER, Circuit Judge: Jaime Borromeo Escaler brought the present action seeking an 30 order compelling the United States Citizenship and Immigration 31 Services ( CIS ) either to issue him a certificate of 2 1 naturalization or to reopen his naturalization application nunc 2 pro tunc to 1993. 3 failed to take the required oath of allegiance in a public 4 ceremony before leaving the United States for a period of time 5 that rendered him out of compliance with the temporal 6 naturalization requirements of residence and presence in the 7 United States. 8 judgment and dismissed his action for lack of subject-matter 9 jurisdiction. The CIS takes the position that appellant Judge Jones denied appellant s motion for summary We affirm on the ground that appellant failed to 10 exhaust his administrative remedies, and, therefore we cannot 11 reach the merits. 12 13 BACKGROUND Appellant was born in the Philippines in 1970. His mother 14 is a United States citizen who had lived briefly in the United 15 States as a child. 16 he lived until 1987, when he came to the United States and 17 attended an American prep school. 18 applied to the Immigration and Naturalization Service ( INS ) for 19 naturalization as a United States citizen. 20 In 1972, appellant moved to Hong Kong, where In March 1993, appellant Becoming a naturalized U.S. citizen involves the completion 21 of several steps: (i) maintaining five years lawful permanent 22 residence, physical presence in the United States for at least 23 half of that time, and continuous residence from the date of 24 application until admission to citizenship, 8 U.S.C. § 1427(a), 8 25 C.F.R. § 316.2(a); (ii) submitting an application, 8 U.S.C. 3 1 § 1445(a), 8 C.F.R. § 316.4(a); (iii) passing a background check, 2 8 U.S.C. § 1446(a), 8 C.F.R. §§ 316.10, 335.1; (iv) passing a 3 test of English proficiency and of knowledge of U.S. history and 4 government, 8 U.S.C. § 1423(a), 8 C.F.R. §§ 312.1, 312.2; (v) 5 being examined under oath by an immigration official, 8 U.S.C. 6 § 1446(b), 8 C.F.R. §§ 316.14, 335.2; and (vi) taking an oath of 7 allegiance to the United States in a public ceremony, 8 U.S.C. 8 § 1448(a); 8 C.F.R. § 337.1. 9 It is undisputed that, as of May 18, 1993, the date of his 10 examination hearing, appellant had successfully completed (i)-(v) 11 of these steps, and that the INS examiner approved appellant s 12 application the same day. 13 appellant s participation in step (vi), the public oath-taking 14 ceremony. 15 appellant of upcoming oath ceremonies that he might attend, 8 16 U.S.C. § 1421(b)(2)(B), or of appellant s having informed the INS 17 of his new address when he left for Hong Kong, 8 U.S.C. § 18 1305(a). 19 document entitled Declaration of Intention which contained the 20 text of the oath which the statute requires be used at 21 naturalization ceremonies. 22 circumstances - whether it was a public ceremony - 23 surrounding his signing of that document are not clear. 24 25 There is no record, however, of There is also no evidence of the INS notifying At his examination hearing, appellant did sign a 8 U.S.C. § 1448(a). However, the Six months after his interview and the examiner s approval of his application, appellant returned to Hong Kong to work. 4 The 1 record before us does not indicate exactly how long appellant 2 lived abroad after his interview, but it is undisputed that 3 appellant remained outside of the United States for more than a 4 year. 5 Appellant later re-entered the United States under 6 authorized non-immigrant status, having been told that he had 7 abandoned his status as a United States permanent resident before 8 becoming a citizen. 9 recognition as a naturalized United States citizen. Appellant sent letters to the INS seeking In October 10 2003, after those efforts were unsuccessful, appellant brought 11 the present action to compel CIS, a successor agency to the 12 former INS, either to issue him a Certificate of Naturalization 13 or to enable him to resume his application for naturalization as 14 of May 1993. 15 CIS then undertook a review of appellant s file. Observing 16 that appellant had spent extensive time abroad after his 17 naturalization interview and that 8 U.S.C. § 1427(a) prohibits 18 the naturalization of any person who has not resided 19 continuously within the United States from the date of the 20 application up to the time of admission to citizenship, CIS 21 issued a notice of its intent to reopen appellant s application 22 in June 2004, pursuant to 8 C.F.R. § 335.5. 23 with letters stating that he had fulfilled all the requirements 24 of citizenship by signing the oath at the May 1993 hearing. 25 September 2005, CIS reopened appellant s application. 5 Appellant responded In Appellant 1 argued that the reopening was a nullity because the present 2 action had ousted the CIS of jurisdiction. 3 Director denied the reopened application on the grounds that 4 appellant had failed to provide any reason to conclude that the 5 information about his having left the country and thereby failing 6 to comply with the residence requirement was incorrect. 7 administrative procedures for appealing that ruling were 8 available, appellant chose not to pursue them. 9 The CIS District Although Following the denial of appellant s application, the 10 district court dismissed the complaint both as moot and as beyond 11 the court s jurisdiction in light of appellant s failure to 12 exhaust his administrative remedies. 13 appeal. 14 15 16 Escaler brought the present DISCUSSION a) Statutory Scheme Under the relevant statutory scheme, the Attorney General 17 has the sole authority to naturalize persons as citizens of the 18 United States . . . . 19 however, there are statutory standards governing naturalization, 20 and naturalization decisions by the CIS (acting for the Attorney 21 General) are subject to judicial review. 22 of judicial review. 23 is not acted upon within 120 days of the naturalization 24 examination, an applicant can seek a hearing in a district court, 25 which may determine the application or remand it to the CIS with 8 U.S.C. § 1421(a). As noted above, There are three avenues First, if an application for naturalization 6 1 instructions. 8 U.S.C. § 1447(b). Second, if an application is 2 denied after completion of the available administrative review 3 procedures, the applicant is able to seek review of the denial in 4 a district court. 5 conduct a de novo review, making its own findings of fact and 6 conclusions of law, and may conduct a hearing de novo. 7 Third, in extreme cases, mandamus relief may be available under 8 28 U.S.C. § 1361 for a failure to perform a clear, non- 9 discretionary duty. 8 U.S.C. § 1421(c). The court is empowered to Heckler v. Ringer, 466 U.S. 602, 616 Id. 7 1 (1984).1 2 b) Application 3 4 As noted, Section 1447(b) provides for a judicial hearing if, following an applicant s examination, 120 days pass without 1 Appellant relies upon two other provisions that require only brief mention. First, he states that this matter involves serious issues about the construction and application of the Administrative Procedure Act ( APA ), see 5 U.S.C. §§ 701 et seq. Appellant s Br. at 11. No further detail regarding these supposed issues or their application to the present action has been provided. Nor have we been informed as to what judicial relief the APA might authorize that adds to the sweeping de novo review provided by Section 1421(c). We therefore do not speculate as to whether issues involving the APA have arisen in this matter. Appellant also relies upon 8 U.S.C. § 1503(a), which permits the bringing of an action in federal court [i]f any person who is within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States. Appellant s complaint does not allege United States citizenship. He therefore is not claim[ing] a right or privilege as a national of the United States . . . . 8 U.S.C. § 1503(a). Rather, the complaint seeks as relief a declaration that he be made a citizen. Where some right or privilege of citizenship, e.g., obtaining a United States passport, Strupp v. Dulles, 258 F.2d 622, 622-23 (2d Cir. 1958), or gaining reentry into the United States, Brassert v. Biddle, 148 F.2d 134, 135 (2d Cir. 1945), is denied, the plaintiff s citizenship may of course be litigated. In such cases, the contested citizenship issue under Section 1503(a) would be whether the plaintiff had in fact been naturalized -- by administrative or judicial process or by operation of law, see, e.g., Yung Jin Teung v. Dulles, 229 F.2d 244, 245 (2d Cir. 1956) (claiming citizenship by operation of law); Lue Chow Kon v. Brownell, 220 F.2d 187, 188 (2d Cir. 1955) (same); Brassert, 148 F.2d at 13435 (claiming citizenship by the completion of an administrative process) -- not whether he or she is entitled to be naturalized. Because the relief appellant seeks is the overturning of a denial of naturalization, Section 1503(a) has no bearing on this action. 8 1 a determination [by CIS] as to whether the application should be 2 granted or denied . . . . 3 Because this provision is designed to remedy administrative 4 inaction, there are no proceedings to exhaust for an applicant 5 who invokes it. 6 circumstances in which appellant finds himself. 7 was approved on the day of his examination. 8 9 8 U.S.C. §§ 1446(d), 1447(b). However, its terms simply do not apply to the His application If appellant is entitled to relief, it must be by way of Section 1421(c) or writ of mandamus, both of which require 10 exhaustion of administrative remedies. 11 1421(c); Heckler, 466 U.S. at 616. 12 appellant failed to pursue an appeal from the District Director s 13 ruling after his reopened application was denied. 14 issue before us, therefore, is whether appellant needed to 15 exhaust his administrative remedies. 16 See 8 U.S.C. §§ 1421(a), It is undisputed that The principal Section 1421(c), authorizing de novo judicial review of the 17 denial of an application to be naturalized, requires the 18 exhaustion of administrative remedies prior to seeking that 19 relief. 20 requirement is established by statute -- in this case, the 21 interaction of Section 1421(a), which vests the attorney general 22 with sole authority in naturalization matters, with Section 23 1421(c) -- the requirement is mandatory, and courts are not free 24 to dispense with [it]. 25 90, 94 (2d Cir. 1998). See 8 U.S.C. § 1421(c). When, as here, the exhaustion Bastek v. Fed. Crop Ins. Co., 145 F.3d 9 1 Beyond the letters to the CIS described above, appellant did 2 not participate in the reopened CIS proceedings and concededly 3 did not exhaust available administrative review procedures. 4 claim, then and now, is that the present action gave the federal 5 courts exclusive jurisdiction over his efforts to obtain 6 citizenship and that the CIS s reopening and denial of his 7 application were a nullity. His 8 Appellant s argument relies upon Fourth and Ninth Circuit 9 cases holding that district courts have exclusive jurisdiction 10 over applications that are the subject of a Section 1447(b) 11 action. 12 United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (en 13 banc). See Etape v. Chertoff, 497 F.3d 379 (4th Cir. 2007); 14 However, these decisions are irrelevant in the present 15 matter because, as discussed above, Section 1447(b) provides for 16 judicial relief only from administrative inaction on an 17 application and does not apply in appellant s circumstances. 18 Administrative inaction, of course, prevents an applicant s 19 exhaustion of administrative remedies. 20 jurisdiction in the courts when a suit is brought under Section 21 1447(b), as in Etape and Hovsepian, is not at all inconsistent 22 with a general insistence on exhaustion. 23 cited decisions may have with respect to Section 1447(b) actions, 24 therefore, they do not apply here. 25 Leaving exclusive Whatever merit the Requiring exhaustion of the reopened proceedings is also 10 1 supported by consideration of mandamus relief. Issuance of a 2 writ of mandamus under 28 U.S.C. § 1361 is generally dependent 3 upon exhaustion of other available remedies. 4 at 616. 5 well have been entitled to some relief by way of mandamus. 6 application had been approved, rendering both Section 1447(b) and 7 Section 1421(c) inapplicable. 8 from the country as interrupting the process one act short of 9 citizenship, appellant had at least two arguable claims. Heckler, 466 U.S. However, when this action was brought, appellant may His While the CIS treated his absence One 10 claim was that he had fulfilled the public oath requirement by 11 signing the oath in the Declaration of Intention, which is 12 identical to the oath given in the familiar public naturalization 13 ceremonies in district courts. 14 entitled to relief because the CIS failed to notify him of 15 scheduled ceremonies as required by 8 U.S.C. § 1421(b)(2)(B). 16 The other claim was that he is Of course, mandamus is an extraordinary remedy, intended to 17 aid only those parties to whom an official or agency owes a 18 clear nondiscretionary duty. 19 Daumutef v. INS, 386 F.3d 172, 180 (2d Cir. 2004). 20 seeks a writ of mandamus must show a clear and indisputable 21 right to its issuance. 22 (2000) (quoting Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 23 490 U.S. 296, 309 (1989)). Heckler, 466 U.S. at 616; see also A party who Miller v. French, 530 U.S. 327, 339 Appellant has not met this burden. 24 Courts have held the public oath requirement to be a 25 statutory necessity, see Ajlani v. Chertoff, 545 F.3d 229, 234 11 1 (2d Cir. 2008); Okafor v. Gonzales, 456 F.3d 531, 534 (5th Cir. 2 2006); Abiodun v. Gonzales, 461 F.3d 1210, 1215-16 (10th Cir. 3 2006), and to date no court has held that signing the Declaration 4 of Intention fulfills that requirement, see, e.g., Okafor, 456 5 F.3d at 534; Abiodun, 461 F.3d at 1015-16. 6 of scheduled ceremonies is a CIS duty, 8 U.S.C. § 1421(b)(2)(B), 7 there is little authority on the effect of, or relief from, a 8 failure to do so. 9 670-71 (6th Cir. 2005); Patel v. INS, No. 98CV1937 JCH, 2000 WL While giving notice But cf. Baidas v. Jenifer, 123 F. App x 663, 10 298921, *2 (E.D.Mo. Jan. 20, 2000). 11 is, therefore, highly desirable and might have been obtained by 12 following available administrative proceedings. 13 Some administrative guidance However, when this action was brought, appellant had no 14 clear avenue of review of his claims. As noted, because his 15 application remained approved, there was no inaction on his 16 application from which relief under Section 1447(b) was 17 available, and there was no denial of the application from which 18 to seek relief under Section 1421(c). 19 an already approved application would not only have been an 20 anomalous act - what would be the relief requested - but risked 21 being taken as an admission that he was not eligible for 22 immediate naturalization. 23 been in administrative limbo, and the ball was arguably in the 24 CIS s court. 25 duty not to leave an applicant with arguable claims no clear Asking the CIS to reopen Appellant, therefore, appears to have An agency may well have a clear, non-discretionary 12 1 avenue to litigate them. While the merits of appellant s 2 mandamus claim would not justify directing the issuance of a 3 certificate of citizenship, the lack of a clear avenue to raise 4 his claims before the CIS might have justified a writ directing 5 CIS to reopen his application to resolve those claims. 6 Crawford v. Cushman, 531 F.2d 1114, 1126 n.15 (2d Cir. 1976) 7 ( Mandamus jurisdiction [under] 28 U.S.C. § 1361 permits 8 flexibility in remedy . . . . ) (internal quotation marks 9 omitted); see, e.g., Manmouth Med. Ctr. v. Thompson, 257 F.3d 10 807, 813-15 (D.C. Cir. 2001) (issuing mandamus writ ordering 11 agency to reopen proceedings). See 12 We need not decide any of this, however. 13 moot when the CIS reopened appellant s application. 14 conceded failure to take advantage of that proceeding to litigate 15 his claims negates our jurisdiction over the present action. 16 17 CONCLUSION We affirm. 18 13 This issue became Appellant s

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