IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 5, 2007
No. 06-20641 Charles R. Fulbruge III
Clerk
KEHINDE SABA-BAKARE
Plaintiff - Appellant
v.
MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND
SECURITY; HIPOLITO ACOSTA, District Director, US Citizenship &
Immigration Services
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before GARWOOD, JOLLY, and STEWART, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Kehinde Saba-Bakare appeals the district court’s dismissal of his case for
lack of subject matter jurisdiction to grant the relief he requests. For the
reasons presented below, we affirm.
I.
Saba-Bakare is a citizen of Nigeria. He has lived in the United States as
a legal permanent resident since February 1986.
In April 2003, Saba-Bakare returned to the United States from a brief trip
abroad. On arrival in the United States, immigration authorities determined
that a previous conviction for second degree felony sexual assault rendered him
No. 06-20641
inadmissible. On the same day, Saba-Bakare was issued a Notice to Appear in
removal proceedings.
Four months later, while the removal proceedings were pending, Saba-
Bakare filed an application for naturalization with the U.S. Citizenship and
Immigration Services (“USCIS”). But as 8 U.S.C. § 1429 precludes consideration
by the Attorney General (read, USCIS) of a naturalization application once
removal proceedings have begun, Saba-Bakare’s naturalization application could
not appropriately be considered. This being the case, Saba-Bakare filed a motion
to terminate the removal proceedings with the immigration judge, arguing that
he could establish prima facie eligibility for naturalization and present
exceptionally appealing or humanitarian factors. Under 8 C.F.R. § 1239.2(f),
when an alien establishes prima facie eligibility for naturalization and presents
exceptionally appealing or humanitarian factors, an immigration judge may
terminate removal proceedings to permit the alien to proceed to a final hearing
on a pending application or petition for naturalization.
The USCIS responded to Saba-Bakare’s motion to terminate the removal
proceedings against him by informing the immigration judge that in its opinion
Saba-Bakare is not prima facie eligible for naturalization due to his previous
conviction. The USCIS’s determination that Saba-Bakare is not prima facie
eligible for naturalization is hotly disputed by Saba-Bakare. Indeed, this
determination was the genesis for the present controversy and appeal.1
Based on the USCIS’s determination that Saba-Bakare is not prima facie
eligible for naturalization, and on the understanding that he has no authority
over naturalization applications or determinations of prima facie eligibility for
1
Because we agree with the district court that subject matter jurisdiction is lacking,
we have avoided discussing the merits of Saba-Bakare’s underlying claim that he is prima facie
eligible for naturalization.
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No. 06-20641
naturalization, the immigration judge denied Saba-Bakare’s motion to terminate
the removal proceedings. The removal proceedings are still pending.
The USCIS was not so circumspect. Despite the fact that 8 U.S.C. § 1429
precludes consideration by the USCIS of a naturalization application once
removal proceedings have begun, the USCIS conducted a naturalization
interview and subsequently denied Saba-Bakare’s application. The USCIS
denied Saba-Bakare’s application for the same reason that it had earlier
determined that he is not prima facie eligible for naturalization—that is, because
of his previous conviction. After further review pursuant to 8 U.S.C. § 1447(a),
the USCIS affirmed the denial of naturalization for the same reason.
Saba-Bakare then filed this action in the district court seeking a de novo
review of his naturalization application pursuant to 8 U.S.C. § 1421(c), and also
seeking a declaratory judgment from the district court that he is prima facie
eligible for naturalization.
After commencement of this action, the USCIS, attempting to correct its
error, informed Saba-Bakare that under 8 U.S.C. § 1429 it had lacked authority
to consider and deny his application for naturalization because of the pending
removal proceedings. The USCIS therefore reopened Saba-Bakare’s
naturalization application.
Now in the district court, however, Saba-Bakare filed a motion for
summary judgment. The USCIS also filed a motion to dismiss and a motion for
summary judgment for lack of subject matter jurisdiction. The district court
vacated the USCIS’s decision denying Saba-Bakare’s application for
naturalization and remanded the application for consideration, but only when
the removal proceedings are no longer pending. The district court further denied
Saba-Bakare’s request for a declaratory judgment of prima facie eligibility for
naturalization and declined to review the USCIS’s determination that he is not
prima facie eligible for naturalization; the district court held that it lacked
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No. 06-20641
subject matter jurisdiction to consider either request and consequently dismissed
the claims that it had not remanded. Saba-Bakare timely appealed the district
court’s holding that it lacked subject matter jurisdiction.2
II.
This court reviews a ruling on jurisdiction de novo. Bravo v. Ashcroft, 341
F.3d 590, 591 (5th Cir. 2003).
Saba-Bakare contends that the district court has jurisdiction over this
action and consequently over his request that it declare him prima facie eligible
for naturalization and/or review the USCIS’s determination that he is not prima
facie eligible for naturalization.
Saba-Bakare first contends that jurisdiction exists under 8 U.S.C. §
1421(c), which provides district courts the authority to review the denial of a
naturalization application after an applicant has exhausted administrative
remedies.
The district court held that the denial of Saba-Bakare’s naturalization
application was inappropriate because of the pending removal proceeding
against him. Under 8 U.S.C. § 1429, “no application for naturalization shall be
considered. . . if there is pending against the applicant a removal proceeding. .
. .” As there is a pending removal proceeding against Saba-Bakare, the USCIS
has and had no statutory authority to consider his naturalization application,
and doing so was clearly an error. The USCIS has attempted to remedy this
error by reopening the application proceedings, and the district court has
formally remedied this error by vacating the USCIS’s denial of Saba-Bakare’s
naturalization application as improvidently granted. As the initial denial of his
2
We do not address the portion of the district court’s order that vacated the USCIS’s
decision on Saba-Bakare’s naturalization application as the USCIS did not raise this issue on
appeal.
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No. 06-20641
application has no continuing legal effect, neither it nor the underlying findings
of the USCIS can now be reviewed under 8 U.S.C. § 1421(c).
Second, Saba-Bakare contends that jurisdiction exists under 8 U.S.C. §
1447(b), which provides district courts the authority to review a naturalization
application that has not been decided more than 120 days after an in-person
examination. Even if jurisdiction exists under § 1447(b), however, invoking
jurisdiction under this section would be futile. Section 1447(b) provides a
district court with a means of addressing the administrative delay of an
application that the Attorney General may consider. But § 1429 does not allow
the Attorney General to consider naturalization applications when a removal
proceeding is pending. Under § 1447(b), then, the district court could have
either determined the matter or remanded the matter for the USCIS to
determine the matter. But in either instance the appropriate determination is
controlled by § 1429, and § 1429 requires that Saba-Bakare wait until the
termination of the removal proceeding before either a district court or the USCIS
entertains a question regarding his naturalization application. In sum, the
administrative delay here is required by § 1429.
Third, Saba-Bakare contends that the district court has jurisdiction to
issue a declaratory judgment on the issue of his prima facie eligibility for
naturalization. Saba-Bakare, as noted above, seeks a declaration that he is
prima facie eligible for naturalization as this will allow the immigration judge
to terminate the pending removal proceeding against him pursuant to 8 C.F.R.
§ 1239.2(f). And, again as noted above, under 8 U.S.C. § 1429, the USCIS is
precluded from considering his naturalization application while a removal
proceeding is pending against him.
In 1975, the Board of Immigration Appeals (“BIA”) held that neither the
BIA nor an immigration judge has authority to make an independent
determination of prima facie eligibility for naturalization. Matter of Cruz, 15 I.
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No. 06-20641
& N. Dec. 236, 237 (BIA 1975). The BIA held that “prima facie eligibility may
be established by an affirmative communication from the Service [USCIS] or by
a declaration of a court that the alien would be eligible for naturalization but for
the pendency of the deportation proceedings. . . .” Id. (emphasis added).
In 1990, however, Congress amended 8 U.S.C. § 1421 and granted the
Attorney General exclusive authority to naturalize aliens, removing the
authority that courts had previously held to naturalize aliens. The USCIS
argues that this amendment to § 1421 renders the part of Matter of Cruz that
states that a court can make a determination of prima facie eligibility for
naturalization no longer the rule. We agree. Matter of Cruz cannot provide the
district court jurisdiction to declare Saba-Bakare prima facie eligible for
naturalization when Congress has said that the Attorney General has exclusive
authority to naturalize aliens. Indeed, in the light of the 1990 amendment to §
1421, Matter of Cruz indicates that only an affirmative communication from the
USCIS may establish prima facie eligibility. See In re Victor Acosta Hildago, 24
I. & N. Dec. 103, 105 (BIA March 8, 2007) (noting that “the fact that the federal
courts no longer have authority to make decisions as to an alien’s prima facie
eligibility for citizenship does not undermine Matter of Cruz”).
Finally, Saba-Bakare’s most compelling argument is that, absent review
by the district court at this time, the USCIS’s determination that he is not prima
facie eligible for naturalization, accompanied by his consequent inability to
obtain a termination of removal proceedings under 8 C.F.R. § 1239.2(f), will
render the prima facie eligibility issue unreviewable by any court.
In oral argument before this court, however, the USCIS unequivocally
conceded—to the apparent surprise and appreciation of Saba-Bakare’s
counsel—that the issue of prima facie eligibility and the consequent denial of
Saba-Bakare’s motion to terminate the removal proceedings would be reviewable
by this court on appeal from a final order of removal. This concession, although
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No. 06-20641
it likely addresses a jurisdictional question, is consistent with the opinion
expressed by the district court.
Moreover, even in the unlikely event that the government later attempts
to retract the open and public concession made before this court, the equitable
argument presented by Saba-Bakare is an inappropriate ground for reaching the
underlying merits of this case. If the statutory framework created by Congress
renders the determination of prima facie eligibility for naturalization
unreviewable by any court, this may indeed present a persuasive equitable
concern. But this concern should be addressed to Congress, not to this court.
III.
For the reasons presented above, we AFFIRM the district court’s decision
denying Saba-Bakare’s requested relief for lack of subject matter jurisdiction.
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