Summary
noting that, "[o]nce the federal court acquires jurisdiction, it is not divested by subsequent events, such as the agency's belated decision to take some action regarding the application."
Summary of this case from Hamdan V. ChertoffOpinion
Civil No. 04-1030-JE.
November 18, 2004
ORDER
Petitioner Alfonso Banuelos Dominguez, a lawful resident of the United States for 41 years, applied for citizenship in 2002. More than two years elapsed, but the government failed to issue a formal decision. Dominguez then brought this action under 8 U.S.C. § 1447(b). That statute authorizes the federal court to assume jurisdiction when an application for naturalization has been pending over 120 days without a formal decision. Once the federal court acquires jurisdiction, it is not divested by subsequent events, such as the agency's belated decision to take some action regarding the application. See United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (en banc).
Respondents now move to dismiss. They contend that, pursuant to 8 U.S.C. § 1429, this court is divested of jurisdiction because the government has now instituted removal proceedings against Mr. Dominguez. I disagree. See Bellajaro v. Schiltgen, 378 F.3d 1042 (9th Cir. 2004); Zayed v. United States, 368 F.3d 902 (6th Cir. 2004). However, to avoid problems that could result if parallel proceedings were to go forward on separate tracks as if the other were not there, I will defer acting on the naturalization petition until a determination has been made on the issue of removability.
The government suggests that such a final determination could take many years, and this action should therefore be dismissed rather than stayed. After studying the record and the applicable statutes and case law, there appears to be a reasonably strong likelihood that the immigration court will decide, relatively quickly, that the 1975 misdemeanor conviction (for which a $200 fine was imposed) is not an "aggravated felony" and that Mr. Dominguez will be allowed to remain in the United States.
Accordingly, I will stay this action pending resolution of the removal proceeding.
Conclusion
Respondents' Motion (# 4) to Dismiss this Action for Lack of Jurisdiction is denied. This action is stayed pending resolution of the removal proceeding.