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Shaoping Liu v. U.S. Department of Homeland Security; U.S. Citizenship and

December 16, 2010

SHAOPING LIU, PLAINTIFF,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; DONALD P. FERGUSON, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff Shaoping Liu ("Plaintiff") filed a complaint in May 2009 against Defendants U.S. Department of Homeland Security ("DHS"), U.S. Citizenship and Immigration Services ("USCIS"), and USCIS Field Office Director Donald P. Ferguson (collectively, "Defendants") seeking judicial review of Defendants' denial of her naturalization application and commencement of removal proceedings against Plaintiff. Before the Court is Defendants' motion to dismiss [13] under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim, respectively. For the reasons below, the Court grants Defendants' motion [13] and dismisses Plaintiff's complaint without prejudice.

I. Background

Plaintiff, a Chinese national, became a lawful permanent resident of the United States on May 20, 2004. She filed an application for naturalization with USCIS on March 26, 2007, and subsequently appeared for two interviews with USCIS pursuant to her application. On April 25, 2008, USCIS Field Office Director Donald P. Ferguson issued a decision denying Plaintiff's application for naturalization on the ground that she had entered into her marriage to a U.S. citizen and former Catholic priest for immigration purposes. Ferguson determined that she had thereby committed a fraud upon USCIS, was inadmissible at the time of her entry or admission to the United States under § 212(a)(6)(C)(i) of the Immigration and Nationality Act ("INA") (codified as 8 U.S.C. § 1182(a)(6)(C)(i)),*fn1 and was removable under INA § 237(a)(1)(A) (codified as 8 U.S.C. § 1227(a)(1)(A)).*fn2

Plaintiff timely filed an administrative appeal of the denial of her naturalization application pursuant to 8 U.S.C. § 1447(a). An initial hearing on the appeal was held on October 20, 2008, and Plaintiff and her spouse both appeared for a subsequent interview at the request of USCIS on April 21, 2009. On May 4, 2009, Director Ferguson issued a decision to sustain Plaintiff's appeal and to reopen and reconsider the determination of her naturalization application. However, on the very same day, USCIS issued a Notice to Appear in immigration court for removal proceedings on the grounds that Plaintiff violated 8 U.S.C. §§ 1182(a)(6)(C)(i) and was thus removable under 8 U.S.C. § 1227(a)(1)(A). Also on May 4, Ferguson issued an amended decision that affirmed the initial denial of Plaintiff's naturalization application on the new ground that her application for naturalization could not be approved during pendency of the removal proceedings against her, pursuant to 8 U.S.C. § 1429.*fn3

Plaintiff repeatedly requested a prompt hearing on the Notice to Appear before the immigration court but was denied each time, allegedly because USCIS never transferred her case file to the immigration court. On May 28, 2009, Plaintiff filed an administrative appeal of USCIS's May 4, 2009, amended decision denying her naturalization application. She obtained a hearing on August 31, 2009. USCIS has not issued a decision pursuant to that hearing, and the administrative appeal remains pending.

On May 6, 2010, Plaintiff filed the instant complaint. [1] Plaintiff alleges that USCIS unreasonably delayed her removal proceedings by failing to send her case file to the immigration court. Plaintiff also alleges that (1) USCIS's issuance of the Notice to Appear was frivolous; (2) the allegations and charges in the Notice are false; and (3) the removal proceedings were commenced "due to the personal and institutional religious biases of certain officers and the agency itself." [1, at 3]. Plaintiff requests relief in the form of an order directing USCIS to (1) vacate the Notice to Appear, (2) approve her naturalization application, and (3) pay legal fees and costs. Defendants have moved to dismiss Plaintiff's complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim under Rule 12(b)(6). [13]

II. Legal Standard

The purpose of a Rule 12(b) motion to dismiss is not to decide the merits of the case. A Rule 12(b)(6) motion tests the sufficiency of the complaint, Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990), while a Rule 12(b)(1) motion tests whether the Court has subject matter jurisdiction. Long v. Shorebank Development Corp., 182 F.3d 548, 554 (7th Cir. 1999). In reviewing a motion to dismiss under either rule, the Court takes as true all factual allegations in Plaintiff's complaint and draws all reasonable inferences in her favor. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007); Long, 182 F.3d at 554.

To survive a Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true, * * * 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563.

Surviving a Rule 12(b)(1) motion to dismiss is more difficult. United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003). Federal courts are courts of limited jurisdiction; "they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001). Pursuant to 28 U.S.C. § 1331, "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." The plaintiff bears the burden of establishing that a district court has proper jurisdiction of an action. Transit Express, 246 F.3d at 1023. A defendant arguing that the plaintiff has not met this burden with respect to an action may move for dismissal under Rule 12(b)(1).

III. Analysis

Defendants seek dismissal of Plaintiff's complaint on two grounds. First, Defendants argue that this Court lacks subject matter jurisdiction of the case, warranting dismissal under Rule 12(b)(1). Second, Defendants argue that even if the Court had jurisdiction, the requested relief is statutorily barred, thus rendering Plaintiff's claim futile ...


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