United States District Court, D. New Jersey
UCHENNA OBIANYO 1175 MARLKRESS RD. 32651 CHERRY HILL, N.J.
08034 Appearing pro se.
MILOWE ANGER OFFICE OF THE U.S. ATTORNEY NEWARK, N.J. 07102
On behalf of Defendants.
L. HILLMAN, U.S.D.J.
case concerns claims against the Philadelphia, Pennsylvania
and Mount Laurel, New Jersey Offices of the United States
Citizenship and Immigration Services (“USCIS”)
(collectively, “Defendants”) alleging that
Plaintiff Uchenna Obianyo was wrongfully denied
naturalization and citizenship.
before this Court is Plaintiff's second Motion to
Expedite and Defendants' Motion for Summary Judgment and
partial Motion to Dismiss for Lack of Subject Matter
Jurisdiction. For the reasons discussed below, this
Court will deny Plaintiff's Motion to Expedite, grant
Defendants' partial Motion to Dismiss for Lack of Subject
Matter Jurisdiction, and grant Defendants' Motion for
October 1989, Plaintiff Uchenna Obianyo, a native and citizen
of Nigeria, entered the United States on a visitor visa.
(Defs.' Ex. B.) In April 1992, Plaintiff married a U.S.
citizen in Tennessee. Plaintiff was granted Legal Permanent
Resident (“LPR”) status May 10, 1994. (Defs.'
residing in Tennessee, Plaintiff was charged with three
counts of stalking under Tennessee Code Annotated §
39017-315 on January 27, 1996. He pled guilty before the
General Sessions Court of Davidson County, Tennessee in
February 1997. (Defs.' Ex. C.) As part of the special
conditions of his sentence, Plaintiff was ordered to reside
with or be supervised by family members in Philadelphia,
Pennsylvania. Id. In April 2000, Plaintiff was again
charged with stalking, this time under 18 Pennsylvania
Consolidated Statutes § 2709.1. (Defs.' Ex. D.)
Plaintiff pled guilty to stalking before the Delaware County
Court of Common Pleas. (Defs.' Ex. D.)
April 1999, Plaintiff filed the first of five Applications
for Naturalization, Form N-400, (“Form One”).
Plaintiff withdrew Form One on January 18, 2001. (Defs.'
SOMF ¶ 7.) That same month, Plaintiff was issued a
Notice to Appear (“I-862”) that alleged Plaintiff
was removable under 8 U.S.C. § 1227(a)(2)(E)(i)
(allowing removal of an alien when convicted of the crime of
stalking); additional removability charges were added in July
2001 under 8 U.S.C. § 1227(a)(2)(A)(ii) (allowing
removal of an alien when convicted of “two or more
crimes involving moral turpitude, not arising out of a single
scheme of criminal misconduct”). (Defs. Ex. F.)
Judge Walter A. Durling (“IJ Durling”) issued a
removal order on October 2, 2001. (Defs.' Ex. G.)
Plaintiff was again found removable on April 29, 2004 by IJ
Durling but was granted withholding and deferred removal
under Article 3 of the United Nations Convention Against
Torture. 8 C.F.R. § 208.16(c) (regarding
withholding removal); 8 C.F.R. § 208.17(a) (regarding
deferred removal); (Defs.' Ex. H.).
filed his second Form-400 (“Form Two”) in
September 2012; the third was filed in April 2013
(“Form Three”); the fourth was filed in January
2016 (“Form Four”); and the fifth, and final,
(“Form Five”) was filed in April 2016. The
Philadelphia, Pennsylvania USCIS Office denied
Plaintiff's Form Two and Form Three in November 2013. In
August 2014, Plaintiff filed a Request for Hearing on a
Decision in Naturalization Proceedings (“Form
N-336”) which was denied by the Philadelphia Office in
December 2014. Plaintiff's Form Four and Form Five were
denied by the Mt. Laurel, New Jersey USCIS Office in August
2016. Plaintiff did not file a Form N-336 to appeal the
applications denied by the Mt. Laurel Office.
filed his initial complaint alleging he was wrongfully denied
naturalization and citizenship on March 3, 2017, seeking
relief (1) in the form of an appeal of the USCIS decisions
denying his applications for naturalization because of his
previous criminal convictions and deportation proceedings and
(2) petitioning for mandamus to compel USCIS officers to
administer the Oath of Citizenship and grant Plaintiff his
Certificate of Citizenship.
Court granted Plaintiff's application to proceed in
forma pauperis on January 3, 2018. Plaintiff filed his
first Motion to Expedite in March 2018, which was denied,
without prejudice, by this Court's April 6, 2018 Order.
On July 13, 2018 Defendants filed an amended Motion for
Summary Judgment and partial Motion to Dismiss for Lack of
Subject Matter Jurisdiction. Plaintiff filed his second
Motion to Expedite on September 14, 2018 (“Pl.'s
Resp. A”) which was unopposed by Defendant. The Court
received a letter from Plaintiff on October 11, 2018
(“Pl.'s Resp. B”) which - together with
Plaintiff's September 14, 2018 Motion to Expedite - this
Court construes as a response to the Defendants' Motion
for Summary Judgment.
Court finds these issues fully briefed and ripe for
adjudication. The Court construes Plaintiff's complaint
and responses as (1) an appeal of the USCIS decision denying
his applications for naturalization and (2) a request for
mandamus ordering an officer of USCIS to administer the Oath
of Citizenship and granting Plaintiff his Certificate of
Standard of Review
denial of a naturalization application is reviewed de
novo. 8 U.S.C. § 1421(c). The applicant has the
burden of proving “by a preponderance of the evidence
that he or she meets all the requirements for
naturalization.” Ijomah-Nwosu v. Holder, No.
14-2527, 2015 WL 5097925, at *1 (D.N.J. Aug. 31, 2015)
(citing 8 C.F.R. § 316.2(b)). In conducting its review,
the Court is not bound by the factual or legal conclusions of
the USCIS. 8 U.S.C. § 1421(c); see also,
Shah v. Thompson, No. 11-3082, 2012 WL 6131122, at
*1 (D.N.J. Dec. 10, 2012) (citing Busta ...