Seanlim Yith v. Kirstjen Nielsen

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SEANLIM YITH; SEAK LEANG YITH, No. 16-15858 Plaintiffs-Appellants, D.C. No. v. 1:14-cv-01875- LJO-SKO KIRSTJEN NIELSEN, in her Capacity as Secretary for Department of Homeland Security; LEON OPINION RODRIGUEZ, in his Capacity as Assistant Secretary for Department of Homeland Security and Director for Citizenship and Immigration Services; MARI-CARMEN JORDAN, in her Capacity as District Director for Department of Homeland Security and Director for Citizenship and Immigration Services; JONATHAN CRAWFORD, in his Capacity as Director of the Fresno Sub-Office of Citizenship and Immigration Services; JEFFERSON B. SESSIONS III, Attorney General, Defendants-Appellees. Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, Chief Judge, Presiding 2 YITH V. NIELSEN Argued and Submitted December 5, 2017 San Francisco, California Filed February 7, 2018 Before: Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit Judges, and John D. Bates,* District Judge. Opinion by Judge Ikuta; Concurrence by Judge Bates SUMMARY** Immigration The panel reversed the district court’s dismissal for failure to state a claim of Seanlim and Seak Leang Yith’s complaint requesting adjudication of their naturalization applications, holding that the district court erred in concluding that 8 U.S.C. § 1429 precluded the Yiths from obtaining relief. 8 U.S.C. § 1429 provides that “no application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding * The Honorable John D. Bates, United States District Judge for the District of Columbia, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. YITH V. NIELSEN 3 pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act.” The panel concluded that, by its terms, § 1429 precludes only the executive branch from considering an applicant’s naturalization application, and only when there is pending against the applicant a removal proceeding pursuant to a warrant of arrest. Because the district court is not the executive branch and there was no pending removal proceeding pursuant to a warrant of arrest, the panel concluded that § 1429 is not applicable to the Yiths. Concurring in part and concurring in the judgment, District Judge Bates agreed that § 1429 does not apply to the Yiths, but would reverse on that basis alone, and did not think it necessary to decide whether § 1429—if it did apply— would preclude the district court from considering a naturalization application. COUNSEL Bruce Leichty (argued), Bruce Leichty PC, Escondido, California, for Plaintiffs-Appellants. Timothy M. Belsan (argued), Senior Litigation Counsel; Jeffrey S. Robins, Assistant Director; William C. Peachey, Director; Audrey B. Hemesath, Assistant United States Attorney; Phillip A. Talbert, United States Attorney; District Court Section, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Defendants-Appellees. 4 YITH V. NIELSEN OPINION IKUTA, Circuit Judge: Seanlim and Seak Leang Yith appeal from the district court’s dismissal of their ...

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