Kia v. INS ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ALI KIA,
Plaintiff-Appellant,
v.
No. 98-2399
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-98-170)
Submitted: March 16, 1999
Decided: March 30, 1999
Before WIDENER, MOTZ, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Karl H. Goodman, KARL H. GOODMAN, P.A., & ASSOCIATES,
Baltimore, Maryland, for Appellant. Frank W. Hunger, Assistant
Attorney General, Michael P. Lindemann, Assistant Director, Ethan
B. Kanter, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Ali Kia appeals the district court's order dismissing his complaint
for declaratory relief for lack of subject matter jurisdiction. We
affirm.
This case involves Kia's efforts to obtain a determination of his
application for naturalization. Under 8 U.S.C. § 1447(b) (1994), a nat-
uralization applicant who has not received a determination on his
application within 120 days of his examination for naturalization by
the Immigration and Naturalization Service (INS) is authorized to file
a request in the district court for a hearing. The district court "has
jurisdiction over the matter and may either determine the matter or
remand the matter, with appropriate instructions, to the Service to
determine the matter." 8 U.S.C. § 1447(b).
On October 17, 1997, the INS interviewed Kia regarding his appli-
cation for naturalization. More than 120 days later, on March 27,
1998, Kia filed a complaint in the district court for declaratory judg-
ment of his naturalization pursuant to § 1447(b). On April 15, 1998,
while the complaint was pending in the district court, the INS denied
Kia's naturalization application based upon his inability to satisfy the
English literacy requirements. On July 6, 1998, the INS moved to dis-
miss the complaint as moot. The district court granted the motion and
dismissed the complaint pursuant to Fed. R. Civ. P. 12(b)(1).
We review dismissals for lack of subject matter jurisdiction de
novo. See Robb v. United States, 80 F.3d 884, 887 (4th Cir. 1996).
Kia first contends that the INS' failure to make a decision on natural-
ization with 120 days along with the filing of his complaint in the dis-
trict court pursuant to 8 U.S.C. § 1447(b) precluded the INS from
rendering a decision on his application without a remand and order
from the district court. We agree with the district court that the plain
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language of § 1447 suggests the district court requires an unreviewed
application in order to make a determination, and that the INS' denial
of naturalization shortly after Kia filed suit mooted the case and
deprived the court of jurisdiction. See Sze v. INS, 153 F.3d 1005 (9th
Cir. 1998) (dismissing appeal of action brought under 8 U.S.C.
§ 1447(b) for lack of jurisdiction due to naturalization of plaintiffs
while action was pending).
Kia next takes issue with the INS' denial of his application for nat-
uralization, challenging the determination that he failed to meet the
English literacy requirement. Because the disposition of Kia's natu-
ralization application is not properly before the court, we decline to
address this issue.
Finally, Kia maintains that the district court erred in assuming that
upon dismissal of this action, he could appeal the denial of naturaliza-
tion to the district court under 8 U.S.C. § 1421 (1994). Kia notes that
the thirty-day time frame for the initial administrative appeal has
expired and claims the INS intentionally moved to dismiss after expi-
ration of the appeal period in order to prevent him from obtaining
relief. We find these contentions meritless. An appeal of the denial of
naturalization was indeed available to Kia, and he evidently chose not
to contest that determination. See 8 U.S.C.§ 1447(a) (1994); 8 C.F.R.
§§ 336.1-2, 336.9 (1998). Moreover, the record discloses that Kia was
properly notified of the appeal period, and that he could reapply for
naturalization at any time.
We accordingly affirm the district court's order. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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