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Alex Kwaku Peprah v. U.S. Citizenship and Immigration

October 26, 2012

ALEX KWAKU PEPRAH, PETITIONER,
v.
U.S. CITIZENSHIP AND IMMIGRATION
SERVICES, DEPARTMENT OF HOMELAND SECURITY RESPONDENT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Petitioner Alex Kwaku Peprah filed a petition seeking judicial review of a decision by the Department of Homeland Security's United States Citizenship and Immigration Services, denying his naturalization petition on the grounds that he made inaccurate statements in his immigrant visa application and was not lawfully admitted to the United States. Two months after Peprah filed his petition for the court's review of that decision, the Department of Homeland Security issued a Notice to Appear, effectively initiating proceedings to remove Peprah from the United States. Respondents now move to dismiss Peprah's petition before this court, arguing that because a removal proceeding is pending against Peprah, this court is unable to remedy the denial of his naturalization application. For the reasons explained herein, Respondents' motion is denied.

BACKGROUND

On November 14, 2004, Alex Kwaku Peprah, a native and citizen of Ghana, was admitted to the United States as a lawful permanent resident through the diversity lottery. (Pet. for Review [1] at 6-7.) On October 16, 2009, Peprah filed a Form N-400 naturalization application with the Department of Homeland Security's ("DHS") United States Citizenship and Immigration Services ("USCIS"), and appeared for an interview on February 2, 2010. (Id.) On August 2, 2011, USCIS denied Peprah's application on the grounds that he was of poor moral character pursuant to 8 C.F.R. 316.10(b)(2)(iv) and had not been lawfully admitted for permanent residency as required by 8 C.F.R. 316.2(a)(2). (Mot. to Dismiss [13] at 2; Dec. 14, 2001 USCIS Denial Letter, Ex. 1 to Pet. for Review at 1-6.) Specifically, DHS determined that when Peprah applied for his immigrant visa in Ghana in 2004, he failed to disclose that he was refused entry into the United States in December of 1996, and that he had been deported from the United States in January of 1997. (Pet. for Review at 7.) Peprah subsequently filed a Request for Hearing to challenge the denial of his application. (Mot. to Dismiss at 2.) USCIS held a hearing on December 5, 2011, and on December 14, 2011, USCIS affirmed the denial. (Mot. to Dismiss at 2; Dec. 14, 2001 USCIS Denial Letter at 1-6.)

On April 8, 2012, Peprah filed a timely petition for review of USCIS's denial of his naturalization application pursuant to 8 U.S.C. § 1427(c). (Id.) Then, while Peprah's petition was pending before this court, on June 20, 2012, the DHS issued a Notice to Appear ("NTA"). The NTA charges Peprah with removability under 8 U.S.C. § 1227(a)(10)(A), as an alien who was inadmissible at the time of entry or adjustment of status because he procured his admission by fraud or by willfully misrepresenting a material fact. (Id.) Five dayes later, on June 25, 2012, Respondents moved to dismiss the review petition in this court pursuant to Rule 12(b)(6), arguing that this court cannot grant relief because 8 U.S.C. § 1429 prohibits Peprah's naturalization while removal proceedings are pending against him.

DISCUSSION

I. Standard of Review

When ruling on a Rule 12(b)(6) motion to dismiss, the court treats all well-pleaded allegations as true, and draws all reasonable factual inferences in plaintiff's favor. Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009). Under Rule 8(a), the complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a). The factual allegations must be sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.

Peprah's Petition for Review asserts that there is an ongoing controversy between Peprah and Respondents regarding whether he is of poor moral character and whether he was lawfully admitted for permanent residency to the United States. There is no dispute that USCIS issued a final decision denying Peprah's application for naturalization, and that after exhausting his administrative remedies, Peprah filed a timely petition for de novo review of the denial. Peprah has clearly stated a claim. The question presented is whether § 1429 precludes an award of relief from this court pursuant to § 1421(c) while removal proceedings are pending. Peprah has asked the court to reverse the decision of the DHS and the Attorney General, and to confer citizenship upon him, or to order the Attorney General to approve his naturalization application.*fn1 (Pet. for Review at 15.) Respondents argue that § 1429 prevents the court from naturalizing Peprah or ordering the Attorney General to do so while removal proceedings are pending, and thus, "the Court cannot grant any effective relief on Peprah's complaint . . . ." (Mot. to Dismiss at 3-5.)

II. Sections 1421(c) and 1429

The Attorney General is granted the sole authority to naturalize persons as citizens of the United States. 8 U.S.C. § 1421(a). Congress empowered the district courts to review the Attorney General's naturalization decisions in § 1421(c), which provides:

A person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of title 5. Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application.

8 U.S.C. § 1421(c). Once removal proceedings have been initiated against an alien, however, the Attorney General's power to naturalize or consider the application for naturalization is limited by 8 U.S.C. § 1429, which provides as follows:

[N]o person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act; and no application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a ...


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