Wilmer Guzman Salguero v. Kirstjen Nielsen

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 10 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT WILMER GUZMAN SALGUERO, No. 18-55160 Plaintiff-Appellant, D.C. No. 2:17-cv-03883-VAP-JEM v. KIRSTJEN NIELSEN; et al., MEMORANDUM* Defendants-Appellees. Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding Argued and Submitted August 12, 2019 Pasadena, California Before: CALLAHAN, D.M. FISHER,** and R. NELSON, Circuit Judges. Appellant, a lawful permanent resident, was denied naturalization. He filed a complaint with the district court seeking de novo review of the denial under 8 U.S.C. § 1421(c). The district court dismissed under Federal Rules of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. Appellant subsequently appealed to this court, asserting the district court impermissibly dismissed his appeal by only considering his claim under § 1421(c) and failing to consider his claim under 8 U.S.C. § 1447(b). We affirm the judgment of the district court as it pertains to Appellant’s claim under § 1421(c). As to Appellant’s new argument that the district court should have considered his petition for naturalization under § 1447(b), we find the district court did not have jurisdiction to do so. The Attorney General has “[t]he sole authority to naturalize persons as citizens of the United States.” 8 U.S.C. § 1421(a). The United States Citizenship and Immigration Services (“USCIS”) administers this authority for the Attorney General. 6 U.S.C. § 271(b)(2); 8 U.S.C. § 1103(a)(1). District courts are only granted jurisdiction over naturalization matters in two distinct circumstances. First, once the agency hands down a final determination an applicant can seek judicial review of “such denial” under § 1421(c). Second, if USCIS fails to make an initial determination in a timely manner, an applicant may petition the district court to either decide the matter or compel the agency to do so under § 1447(b). This “statutory scheme aims to provide USCIS with an incentive to decide applications in a timely fashion or risk losing jurisdiction to decide those applications in the first instance.” Yith v. Nielsen, 881 F.3d 1155, 1164 (9th Cir. 2018) (quoting Bustamante v. Napolitano, 582 F.3d 403, 410 (2d Cir. 2009)). 2 1. We review the dismissal of a complaint for failure to state a claim de novo. Id. at 1161. In this case, the motion to dismiss Appellant’s § 1421(c) claim was properly granted. USCIS correctly determined Appellant was statutorily ineligible for naturalization because of his aggravated felony conviction. 8 U.S.C. § 1101(f)(8); 8 C.F.R. § 316.10(b)(1)(ii). As such, Appellant could not have stated a claim for which relief could be granted and dismissal was appropriate. We therefore affirm the judgment of the district court. 2. The ...

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