Miriyeva v. U.S. Citizenship and Immigration Services

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GUNAY MIRIYEVA, Case No.: 20-CV-2496 JLS (BGS) 12 Plaintiff, ORDER (1) GRANTING 13 v. DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE AND (2) 14 U.S. CITIZENSHIP AND GRANTING IN PART AND IMMIGRATION SERVICES; 15 DENYING IN PART DEFENDANTS’ KENNETH T. CUCCINELLI, Senior MOTION TO DISMISS 16 Official Performing the Duties of the Director of USCIS; and MAXIM 17 (ECF No. 12) MELISSA, San Diego Field Office 18 Director, USCIS, 19 Defendants. 20 21 Presently before the Court is Defendants U.S. Citizenship and Immigration Services 22 (“USCIS”), Kenneth T. Cuccinelli, and Maxim Melissa’s (collectively, “Defendants”) 23 Motion to Dismiss for Failure to State a Claim or Alternatively for Summary Judgment 24 (“Mot.,” ECF No. 12) as well as Defendants’ Request for Judicial Notice in support of the 25 same. Plaintiff Gunay Miriyeva filed an Opposition to the Motion (“Opp’n,” ECF No. 17), 26 and Defendants filed a Reply in support of the Motion (“Reply,” ECF No. 18). The Court 27 decides the matter on the papers submitted and without oral argument pursuant to Civil 28 Local Rule 7.1(d)(1). See generally ECF No. 19. The Court does not convert Defendants’ 1 Motion to a motion for summary judgment, but instead decides the Motion to Dismiss 2 based on the Request for Judicial Notice, Plaintiff’s Complaint (“Compl.,” ECF No. 1), 3 and the documents incorporated by reference into the Complaint. Having carefully 4 reviewed the Complaint, the Parties’ arguments, and the relevant law, the Court GRANTS 5 Defendants’ Request for Judicial Notice and GRANTS IN PART and DENIES IN PART 6 Defendants’ Motion to Dismiss, as follows. 7 BACKGROUND1 8 Plaintiff, an Azerbaijan citizen, came to the United States on an F-1 student visa as 9 a graduate student in August 2013. Compl. ¶ 47. In general, enlistees in the United States 10 Armed Forces must be either United States citizens or lawful permanent residents. 10 11 U.S.C. § 504(b). However, Plaintiff enlisted in the Army’s Selected Reserve of the Ready 12 Reserve on March 14, 2016, through the Military Accessions Vital to the National Interest 13 (“MAVNI”) program. Compl. ¶¶ 48–49, 51. For foreign nationals with critical foreign 14 language skills or specialized medical training, the MAVNI program provides a path to 15 citizenship for service in the military during designated periods of hostility.2 10 U.S.C. 16 § 504(b)(2). The Army assigned Plaintiff to the Selected Reserve’s Delayed Training 17 Program (“DTP”). Compl. ¶ 52. 18 In March 2018, while awaiting a favorable Military Service Suitability 19 Determination (“MSSD”) and completion of background investigations to begin active- 20 duty service, Plaintiff applied for naturalization pursuant to 8 U.S.C. § 1440. Id. ¶ 55. 21 Plaintiff’s application included Form N-426, which is titled Request for Certification of 22 Military or Naval Service. Id. ¶¶ 53, 95; see also Ex. 1, ECF No. 1-2. On January 18, 23 24 25 1 The facts alleged in Plaintiff’s Complaint are accepted as true for purposes of the present Motion. See Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1249 (9th Cir. 2007) (holding that, in ruling on a motion to 26 dismiss, the Court must “accept all material allegations of fact as true”). 27 2 A designated period of hostility has existed since September 11, 2001, and has been in effect at all times 28 relevant to this action. See Exec. Order No. 13269, 67 Fed. Reg. 45,287 (July 3, 2002); see also Compl. 1 2018, the Army certified Plaintiff’s Form N-426, indicating that Plaintiff “is currently 2 serving honorably” in the Army and that Plaintiff was not separated from military service. 3 Compl. ¶ 53; see also Ex. 1. Plaintiff’s naturalization application was initially approved 4 on October 4, 2018; however, the USCIS did not administer the oath of citizenship at that 5 time. Compl. ¶¶ 55–56. Plaintiff entered active-duty status on November 5, 2018, when 6 she began her basic training. Id. ¶ 60. Plaintiff was discharged from the Army for medical 7 reasons on December 21, 2018, and the Army issued her a DD Form 214, Certificate of 8 Release or Discharge from Active Duty (“DD-214”). Id. Plaintiff served fewer than 180 9 days of “active” duty, and as a result she received an “entry-level” or “uncharacterized” 10 discharge on her DD-214. Id. ¶¶ 61–62. 11 The Army subsequently certified a second Form N-426 for Plaintiff on January 11, 12 2019, which indicated that Plaintiff “is currently serving honorably” and represented that 13 she was not separated from service.3 Id. ¶ 73; Ex. 4, ECF No. 1-5. On April 23, 2019, the 14 Army certified a third Form N-426 to USCIS, which provided that Plaintiff separated from 15 service on December 21, 2018, and that she served honorably for her period of military 16 service; however, the certifying officer left the “discharge type” question blank. Compl. 17 ¶ 77; Ex. 6, ECF No. 1-7. On June 6, 2019, USCIS notified Plaintiff of its intent to reopen 18 Plaintiff’s application for naturalization, and USCIS simultaneously revoked its prior 19 approval of her naturalization application on the grounds that an “uncharacterized” 20 discharge is not a separation “under honorable conditions” as required under 8 U.S.C. 21 § 1440. Compl. ¶ 81; Ex. 7, ECF No. 1-8. On July 11, 2019, USCIS denied Plaintiff’s 22 naturalization application after finding “there is no indication that the Army determined 23 [Plaintiff’s] separation was ‘under honorable conditions.’” Compl. ¶ 84; Ex. 8, ECF No. 24 1-9. 25 26 3 Plaintiff alleges she was discharged from the Army at this time. Compl. ¶ 73 n.5. To explain this 27 discrepancy, Plaintiff theorizes that Army records did not yet reflect her discharge when the Army issued 28 this certification. Id. Plaintiff does not dispute that she is discharged from the Army or the 1 Beginning in May 2017, while Plaintiff was serving in the Army’s Selected Reserve 2 and adjudicating her naturalization application, four cases were filed in federal court 3 involving immigrants who enlisted in the Unites States military as part of the MAVNI 4 program and sought naturalization under 8 U.S.C. § 1440. See Nia v. DHS, No. 17-cv- 5 0998 (PLF) (D.D.C.); Kirwa v. Dep’t of Defense, No. 17-cv-01793 (PLF) (D.D.C.); Calixto 6 v. Dep’t of the Army, 18-cv-01551 (PLF) (D.D.C.); Miriyeva v. USCIS, No. 19-cv-3351 7 (ESH) (D.D.C.). These cases raise challenges to certain USCIS, Department of Defense 8 (“DoD”), and Army policies pertaining to MAVNI naturalizations and purported discharge 9 actions. Compl. ¶ 73 n.4. In Calixto, the Army included Plaintiff on a list of MAVNI 10 soldiers whose discharges from the Army were not properly effectuated. See id. ¶¶ 85–86. 11 Based the Army’s inclusion of Plaintiff on the Calixto list, USCIS again reopened 12 Plaintiff’s naturalization application on July 11, 2019. See id. Because the Army reported 13 that Plaintiff had not been separated, USCIS could not deny her naturalization application 14 based on “separation from military service without honorable discharge.” Id. Based on 15 this information, USCIS approved Plaintiff’s naturalization application for the second time. 16 Id. ¶ 88. USCIS subsequently submitted a status report in Nio indicating that Plaintiff was 17 erroneously included on the Calixto list because her DD-214 indicated a final discharge. 18 Id. ¶ 89. After this correction, USCIS again denied Plaintiff’s application. Id. ¶ 92(j). 19 On August 16, 2019, Plaintiff appealed USCIS’s denial of her naturalization 20 application, submitting a Form N-336, Request for a Hearing on a Decision in 21 Naturalization Proceedings. Compl. ¶ 94; Ex. 11, ECF No. 1-12. On September 2, 2020, 22 the Army provided Plaintiff with a fourth Form N-426. Compl. ¶¶ 94, 98; Ex. 9, ECF No. 23 1-10. The fourth Form N-426 has additional instructions under the “Character of Service” 24 section that the other Form N-426s did not include. Compare Ex. 9 at 4, with Ex. 6 at 3. 25 This version of the form further required Plaintiff to “provide copies of [her] DD Form 214 26 or NGB Form 22 that include the character of service upon separation from service[.]” Ex. 27 9 at 4. The “Characterization of Service” section of the fourth Form N-426 indicated that 28 Plaintiff “served honorably,” and under “Separation Information” indicated that Plaintiff 1 is separated and classified her “discharge type” as “Honorable” out of two options, 2 “Honorable” or “Other.” Id. 3 On November 24, 2020, USCIS reaffirmed its decision to deny Plaintiff’s 4 naturalization application. Compl. ¶ 101; Ex. 11, ECF No. 1-12. USCIS stated that 5 because Plaintiff’s DD-214 “reflects [she] received an ‘uncharacterized’ discharge from 6 the U.S. Armed Forces . . . [she has] not met [her] burden to prove by a preponderance of 7 the evidence that [she] meet[s] all the requirements for naturalization, namely the 8 requirement of separation under honorable conditions.” Ex. 11 at 2. USCIS found 9 Plaintiff’s fourth certified Form N-426 “[did] not overcome the ‘uncharacterized’ 10 designation on [Plaintiff’s] DD 214 because DoD, per [DoD Instruction (“DoDI”)] 11 1336.01, treats the DD 214 as ‘the authoritative source of information required for the 12 administration of State and Federal laws applicable to personnel who have been discharged 13 . . . while on active duty.’” Compl. ¶ 101; Ex. 11. 14 On December 23, 2020, Plaintiff filed this action under 8 U.S.C. § 1421(c) seeking 15 judicial review of USCIS’s determination that she is ineligible to naturalize based on her 16 “uncharacterized” discharge. Plaintiff named the USCIS; Ken Cuccinelli, the Senior 17 Official Performing the Duties of Director of USCIS; and Melissa Maxim, San Diego Field 18 Office Director of USCIS, as defendants. Compl. ¶¶ 33–35. Plaintiff’s Complaint alleges 19 that USCIS has a policy of treating a “character of service” designation of 20 “uncharacterized” on an applicant’s DD-214 as an absolute bar to military naturalization 21 contrary to federal law (the “Policy”), and that USCIS incorrectly denied her naturalization 22 application on this basis. Id. ¶¶ 3–4, 19. Plaintiff’s Complaint asserts six claims: (1) Count 23 I seeks judicial review of USCIS’s determination under 8 U.S.C. § 1421(c); (2) Count II 24 asserts violations of the Administrative Procedure Act (“APA”); (3) Count III seeks 25 equitable estoppel; (4) Count IV alleges Constitutional violations under the Uniform Rule 26 of Naturalization and the Due Process Clause of the Fifth Amendment; (5) Count V seeks 27 a declaratory judgment; and (6) Count VI seeks injunctive relief. 28 /// 1 REQUEST FOR JUDICIAL NOTICE 2 As an initial matter, Defendants request that the Court take judicial notice of six 3 exhibits: (A) the district court’s July 31, 2019 order in Calixto; (B) the Army’s August 7, 4 2019 status report in Calixto; (C) USCIS’s September 18, 2019 status report in Nio; (D) 5 the transcript of the September 23, 2019 status conference in Nio; (E) USCIS’s November 6 20, 2019 Motion to Reopen Plaintiff’s naturalization application; and (F) USCIS’s 7 February 20, 2020 decision to deny Plaintiff’s application for naturalization. See Mot. at 8 7–9. Alternatively, to the extent that the Court finds that these documents cannot be 9 judicially noticed, Defendants request that the Court convert Defendants’ motion to dismiss 10 into a motion for summary judgment. Id. at 9. Plaintiff does not oppose Defendants’ 11 request for judicial notice. See generally Opp’n. 12 As a general rule, a district court cannot rely on evidence outside the pleadings in 13 ruling on a Rule 12(b)(6) motion without converting the motion into a Rule 56 motion for 14 summary judgment. See United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003) (citing 15 Fed. R. Civ. P. 12(b); Parrino v. FHP, Inc., 146 F.3d 699, 706 n.4 (9th Cir. 1998)). “A 16 court may, however, consider certain materials—documents attached to the complaint, 17 documents incorporated by reference in the complaint, or matters of judicial notice— 18 without converting the motion to dismiss into a motion for summary judgment.” Id. at 908 19 (citing Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002); Barron v. Reich, 13 F.3d 20 1370, 1377 (9th Cir. 1994); 2 James Wm. Moore et al., Moore’s Federal Practice § 12.34[2] 21 (3d ed. 1999)). Federal Rule of Evidence 201(b) provides that “[t]he court may judicially 22 notice a fact that is not subject to reasonable dispute because it: (1) is generally known 23 within the trial court’s territorial jurisdiction; or (2) can be accurately and readily 24 determined from sources whose accuracy cannot reasonably be questioned.” “Judicially 25 noticed facts often consist of matters of public record, such as prior court proceedings . . . 26 or other court documents.” Botelho v. U.S. Bank, N.A., 692 F. Supp. 2d 1174, 1178 (N.D. 27 Cal. 2010) (citation omitted); see also Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 28 741, 746 n.6 (9th Cir. 2006) (The court “may take judicial notice of court filings and other 1 matters of public record.”). While “[a] court may take judicial notice of the existence of 2 matters of public record, such as a prior order or decision,” it should not take notice of “the 3 truth of the facts cited therein.” Marsh v. San Diego Cty., 432 F. Supp. 2d 1035, 1043 4 (S.D. Cal. 2006). Additionally, “[c]ourts may take judicial notice of some public records, 5 including the ‘records and reports of administrative bodies.’” Ritchie, 342 F.3d at 909 6 (quoting Interstate Nat. Gas Co. v. S. Cal. Gas Co., 209 F.2d 380, 385 (9th Cir. 1953)). 7 Plaintiff refers to the proceedings in Calixto and Nio throughout her Complaint. 8 Compl. ¶¶ 73 n.5, 86, 89–91, 109. The Court therefore takes judicial notice of Exhibits A 9 through D as matters of public record in court proceedings, but not the truth of the facts 10 cited therein. See Harris v. Cty. of Orange, 682 F.3d 1126, 1131–32 (9th Cir. 2012) 11 (stating a federal court may take judicial notice of “documents on file in federal or state 12 courts”). The Court also takes judicial notice of Exhibits E and F as records of USCIS, 13 which is an administrative body. See Ritchie, 342 F.3d at 909. Accordingly, the Court 14 GRANTS Defendants’ Request for Judicial Notice. As the Court has granted Defendants’ 15 request for judicial notice, the Court therefore declines to construe the present Motion as a 16 motion for summary judgment. 17 LEGAL STANDARD 18 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 19 defense that the complaint “fail[s] to state a claim upon which relief can be granted,” 20 generally referred to as a motion to dismiss. The Court evaluates whether a complaint 21 states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil 22 Procedure 8(a), which requires a “short and plain statement of the claim showing that the 23 pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual 24 allegations,’ . . . it [does] demand more than an unadorned, the-defendant-unlawfully- 25 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 26 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to 27 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 28 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 1 Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A 2 complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual 3 enhancement.’” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557). 4 To survive a motion to dismiss, “a complaint must contain sufficient factual matter, 5 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 6 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible 7 when the facts pled “allow the court to draw the reasonable inference that the defendant is 8 liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 9 556). That is not to say that the claim must be probable, but there must be “more than a 10 sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent 11 with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting 12 Twombly, 550 U.S. at 557). This review requires context-specific analysis involving the 13 Court’s “judicial experience and common sense.” Id. at 675 (citation omitted). “[W]here 14 the well-pleaded facts do not permit the court to infer more than the mere possibility of 15 misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is 16 entitled to relief.’” Id. 17 Where a complaint does not survive 12(b)(6) analysis, the Court will grant leave to 18 amend unless it determines that no modified contention “consistent with the challenged 19 pleading . . . [will] cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 20 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 21 1393, 1401 (9th Cir. 1986)). 22 ANALYSIS 23 Defendants argue that the Court should dismiss Plaintiff’s Complaint for failure to 24 state a claim upon which relief can be granted. Mot. at 1. First, Defendants argue that 25 Count I of Plaintiff’s Complaint fails to allege sufficient plausible facts showing that 26 Plaintiff is entitled to naturalization pursuant to 8 U.S.C. § 1440. Second, Defendants argue 27 that the Court should dismiss Counts II, IV, V, and VI of Plaintiff’s Complaint because 28 issue preclusion bars the claims, as Plaintiff has already raised these issues and obtained a 1 decision in Miriyeva v. U.S. Citizenship & Immigration Servs., 436 F. Supp. 3d 170 2 (D.D.C. 2019) (“Miriyeva I”), or alternatively that these claims fail as a matter of law. 3 Next, Defendants argue that Plaintiff’s equitable estoppel claim in Count III fails because 4 Plaintiff did not meet the statutory criteria for military naturalization. Finally, Defendants 5 argue that because Plaintiff’s substantive claims fail, the Court should also dismiss 6 Plaintiff’s claims under the Declaratory Judgment Act and for injunctive relief in Counts 7 V and VI. The Court will examine the sufficiency of each of Plaintiff’s claims in turn. 8 I. Review of Naturalization Application 9 In Count I of Plaintiff’s Complaint, Plaintiff seeks de novo judicial review of her 10 naturalization application pursuant to 8 U.S.C. § 1421(c). Compl. ¶¶ 177–79. Defendants 11 argue the Court should dismiss this claim because Plaintiff does not allege sufficient 12 plausible facts showing that she is entitled to naturalization. Mot. at 10. In response, 13 Plaintiff argues that the Army has certified Plaintiff’s service and separation were 14 honorable, and therefore she qualifies for naturalization under § 1440. Opp’n at 11. 15 “[S]ole authority to naturalize persons as citizens of the United States” is vested with 16 the Attorney General. See 8 U.S.C. § 1421(a). USCIS is the agency designated to make 17 naturalization decisions with respect to applicants pursuing naturalization under 8 U.S.C. 18 § 1440. See id. However, in certain circumstances, district courts have limited jurisdiction 19 over the naturalization process. See, e.g., id. § 1421(b)(1) (district court may administer 20 the oath of allegiance); id. § 1421(c) (district court may conduct a de novo review of 21 naturalization applications that have been denied). An applicant seeking judicial review of 22 the denial of a naturalization application must first request a hearing before an immigration 23 officer. Id. § 1447(a). Only if the agency denial is upheld after the hearing may an 24 applicant seek review in the appropriate district court. Id. § 1421(c). 25 Here, the Parties do not dispute that Plaintiff requested and attended an 26 administrative hearing before an immigration officer pursuant to 8 C.F.R. 336.2(b) and that 27 the immigration officer upheld USCIS’s denial of her application. See Compl. ¶ 94; Ex. 28 11; Mot. at 3. Therefore, Plaintiff has properly exhausted administrative remedies and 1 satisfied the procedural requirements to seek judicial review pursuant to 8 U.S.C. 2 § 1421(c). 3 Section 1421(c) provides that the district court’s review of a naturalization 4 application “shall be de novo, and the court shall make its own findings of fact and 5 conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on 6 the application.” 8 U.S.C. § 1421(c). “The applicant shall bear the burden of establishing 7 by a preponderance of the evidence that he or she meets all of the requirements for 8 naturalization.” 8 C.F.R. § 316.2(b); see also Berenyi v. Dist. Dir., Immigr. & 9 Naturalization Serv., 385 U.S. 630, 637 (1967). “No alien has the slightest right to 10 naturalization unless all statutory requirements are complied with,” United States v. 11 Ginsberg, 243 U.S. 472, 474–75 (1917), and “there must be strict compliance with all the 12 congressionally imposed prerequisites to the acquisition of citizenship,” Fedorenko v. 13 United States, 449 U.S. 490, 506 (1981). 14 Therefore, the Court must determine whether Plaintiff has alleged sufficient 15 plausible facts to state a claim for naturalization. Plaintiff sought naturalization pursuant 16 to § 329 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1440, which provides 17 an expedited path to citizenship based on service in the United States Armed Forces during 18 certain periods of military hostilities. In relevant part, § 1440(a) states: 19 Any person who, while an alien or a noncitizen national of the United States, has served honorably as a member of the Selected 20 Reserve of the Ready Reserve or in an active-duty status in the 21 military, air, or naval forces of the United States [during a designated period of hostilities], and who, if separated from such 22 service, was separated under honorable conditions, may be 23 naturalized as provided in this section[.] 24 8 U.S.C. § 1440(a) (emphases added). An applicant under this section must prove “by a 25 duly authenticated certification from the executive department under which the applicant 26 served or is serving” that “the applicant served honorably in an active-duty status . . . and 27 was separated from such service under honorable conditions[.]” Id. § 1440(b)(3). Whether 28 Plaintiff has satisfied her burden of demonstrating her eligibility for naturalized citizenship 1 is not an issue presently before the Court. Instead, on a motion to dismiss, the dispositive 2 issue here is whether Plaintiff has alleged plausible facts that she satisfies the prerequisites 3 to naturalization pursuant to 8 U.S.C. § 1440 that she “served honorably” and “was 4 separated under honorable conditions” from the Army. 5 Defendants first argue that the plain language of § 1440(a) requires a separation 6 “under honorable conditions.” Mot. at 11. Defendants argue that the DD-214 is the “duly 7 authenticated certification from the executive department” that determines Plaintiff’s 8 separation from service was “uncharacterized,” and therefore she cannot meet the 9 requirement of separation “under honorable conditions” to qualify for naturalization. See 10 Mot. at 11–12. However, Defendants admit that Plaintiff’s DD-214 and Form N-426s 11 provide “conflicting information regarding Plaintiff’s discharge characterization type.” 12 Mot. at 16. It is not clear based on the pleadings alone that Plaintiff was not separated 13 “under honorable conditions.” 14 The Parties do not dispute that Plaintiff served honorably in the Army’s Selected 15 Reserve of the Ready Reserve, or that she received an “uncharacterized” discharge on her 16 DD-214 after she was discharged from the Army for medical reasons with fewer than 180 17 days of active-duty service. However, Plaintiff relies on her multiple Form N-426s to argue 18 that the Army, which is the executive department under which she served, provided a duly 19 authenticated certification that she “served honorably” and “was separated under honorable 20 conditions.” Opp’n at 9–10. In particular, in Plaintiff’s fourth Form N-426, the Army 21 certified both that Plaintiff “served honorably” and classified Plaintiff’s “discharge type” 22 as “Honorable.” Ex. 9 at 4. Plaintiff claims that the Form N-426 was created for the 23 specific purpose of obtaining the certification required for military naturalization. Compl. 24 ¶ 15. Defendants agree with this characterization of the Form N-426; however, Defendants 25 argue the Form N-426 “is not the only means by which the military provides that 26 certification.” Mot. at 17 n.5. Defendants argue that “USCIS requires a DD 214 from all 27 applicants who have separated from service, but does not require a certified Form N-426 28 from such applicants.” Id. 1 Defendants rely on Kulkarni v. Wolf, 503 F. Supp. 3d 908 (W.D. Mo. 2020), and 2 Oyebade v. Lee, No. 1:09-CV-01054-LJM, 2010 WL 2927207 (S.D. Ind. July 21, 2010), 3 to support their argument that an “uncharacterized” character of service on an applicant’s 4 DD-214 does not satisfy § 1440’s requirement that separation be “under honorable 5 conditions.” Kulkarni and Oyebade are analogous to the present case only insofar as the 6 plaintiffs were found unqualified to serve in the military due to medical conditions detected 7 while at basic training, and their DD-214s designated their discharges from the military as 8 “uncharacterized.” Kulkarni, 503 F. Supp. 3d at 912; Oyebade, 2010 WL 2927207, at *1. 9 However, unlike the present case, the plaintiff in Kulkarni received a Form N-426 in which 10 the Army certified her separation type as “other,” and the accompanying remarks stated 11 “Soldier discharged with an uncharacterized discharge. No derogatory information found.” 12 Kulkarni, 503 F. Supp. 3d at 912. In Oyebade, the plaintiff apparently did not receive a 13 Form N-426 and only relied on his DD-214 when he submitted his naturalization 14 application. See Oyebade, 2010 WL 2927207, at *4. The present case is distinguishable 15 from Kulkarni and Oyebade because Plaintiff received a Form N-426 from the Army that 16 certified Plaintiff “served honorably” and classified Plaintiff’s “discharge type” as 17 “Honorable.” Ex. 9 at 4. Therefore, Plaintiff has pleaded sufficient facts that she meets 18 the statutory requirements of § 1440(a) for naturalization. 19 Defendants argue that the DD-214 is “the controlling document that demonstrates 20 characterization of service.” Reply at 2–3 (citing DoDI 1336.04). However, § 1440 does 21 not specify the form the “duly authenticated certification” must take. Defendants’ 22 arguments regarding the weight the Court should assign the Form N-426 and the DD-214 23 are better suited to when the Court conducts its de novo review of Plaintiff’s naturalization 24 application. At this stage, Plaintiff has alleged sufficient facts to state a plausible claim for 25 naturalization pursuant to 8 U.S.C. § 1440. 26 The Complaint plausibly alleges that the Army certified Plaintiff served honorably 27 and her separation from service was under honorable conditions. Iqbal, 556 U.S. at 678. 28 Based on the facts alleged and the documents incorporated by reference into Plaintiff’s 1 Complaint, Plaintiff has plausibly alleged that she meets the prerequisites for naturalization 2 under § 1440. Accordingly, the Court DENIES Defendants’ Motion as to Count I. 3 II. Administrative Procedure Act 4 In Count II of her Complaint, Plaintiff alleges that USCIS’s Policy violates the APA 5 because it is “contrary to law, arbitrary and capricious, and reflects USCIS acting out 6 outside of its statutory authority.” Compl. ¶¶ 180–96. Plaintiff claims that the Policy (1) 7 “improperly ignores the Army’s express certification of service on Form N-426”; (2) 8 “ignor[es] Congress’ language and intent, which is that anything other than an ‘other than 9 honorable’ discharge qualifies a veteran for naturalization”; (3) ignores “military 10 regulations, including DoDI 1332.14, [which] state that an ‘uncharacterized’ discharge in 11 these circumstances is, and must be treated as, a discharge ‘under honorable conditions’”; 12 and (4) “ignores the fact that [Plaintiff]’s active duty discharge must be considered 13 honorable under 10 U.S.C. § 12685 and DoDI 1332.14 Enclosure 4, Subsection 3.c.(l)(d) 14 because she did not receive a discharge under ‘other than honorable conditions’ through a 15 court-martial, board of officers proceeding, or by consent.” Id. ¶¶ 183–86. Plaintiff claims 16 that the Policy is “a new substantive legal requirement that is subject to the notice and 17 comment requirements of 5 U.S.C. § 553 prior to implementation.” Id. ¶ 192. Plaintiff 18 alleges that “the Policy creates a minimum period of service requirement (i.e., more than 19 180 days of active duty service) that Congress did not intend and which Congress did not 20 give Defendants discretion to create.” Id. ¶ 189. Defendants argue Plaintiff’s APA claim 21 fails because the claim is barred by issue preclusion and alternatively fails as a matter of 22 law. The Court will address these arguments in turn. 23 A. Issue Preclusion 24 Defendants argue that the Court should dismiss Count II of Plaintiff’s Complaint, in 25 addition to Counts IV, V, and VI, because these claims are barred by issue preclusion. Mot. 26 at 19. Defendants contend that Plaintiff has already raised and obtained a decision on these 27 claims in Miriyeva I. Id. In response, Plaintiff argues that these claims are not barred by 28 /// 1 issue preclusion because the district court in Miriyeva I did not address the merits of the 2 claims. Opp’n at 33. 3 Issue preclusion, also known as collateral estoppel, “bars the relitigation of issues 4 actually adjudicated in previous litigation.” Clark v. Bear Stearns & Co., 966 F.2d 1318, 5 1320 (9th Cir. 1992). For issue preclusion to apply, four elements must be satisfied: “(1) 6 the issue at stake was identical in both proceedings; (2) the issue was actually litigated and 7 decided in the prior proceedings; (3) there was a full and fair opportunity to litigate the 8 issue; and (4) the issue was necessary to decide the merits.” Janjua v. Neufeld, 933 F.3d 9 1061, 1065 (9th Cir. 2019) (quoting Oyeniran v. Holder, 672 F.3d 800, 806 (9th Cir. 2012), 10 as amended (May 3, 2012)). “[C]ourts often look to the record of the prior proceeding to 11 determine whether an issue was in fact raised, contested, and submitted for determination.” 12 Factory Direct Wholesale, LLC v. iTouchless Housewares & Prod., Inc., 411 F. Supp. 3d 13 905, 921 (N.D. Cal. 2019). The burden is on party seeking to rely upon issue preclusion 14 to prove each element. Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1050–51 (9th Cir. 15 2008). 16 Here, the Court finds that Defendants’ argument fails on the second element. As to 17 the first element, the plaintiffs in Miriyeva I raised the same issues as Plaintiff’s present 18 Complaint that USCIS’s Policy violated the Administrative Procedure Act, the 19 Constitution’s Uniform Rule of Naturalization clause, and the Due Process Clause of the 20 Fifth Amendment, and the plaintiffs sought declaratory and injunctive relief. Compare 21 Miriyeva, 436 F. Supp. 3d at 177, with Compl. ¶¶ 180–95, 200–22. However, these issues 22 were not actually litigated and decided in Miriyeva I. The Miriyeva I court dismissed the 23 plaintiffs’ claims for lack of subject matter jurisdiction at the motion to dismiss phase. 24 Miriyeva, 436 F. Supp. 3d at 177; see also Janjua, 933 F.3d at 1066 (“[A]n issue is actually 25 litigated when an issue is raised, contested, and submitted for determination.” (citing 26 Restatement (Second) of Judgments § 27, cmt. (d) (1982))). In fact, the Miriyeva I court 27 expressly found that “plaintiffs will be able raise these same arguments under § 1421(c), 28 including their constitutional claims, as they are raising here,” when they bring claims for 1 judicial review of their naturalization applications in their own districts. Miriyeva, 436 F. 2 Supp. 3d at 184. Plaintiff has raised these issues in conjunction with her § 1421(c) 3 naturalization claims in the district where she resides. 4 Therefore, Defendants’ argument that Counts II, IV, V, and VI of Plaintiff’s 5 Complaint are barred by issue preclusion is without merit, and the Court DENIES the 6 Motion on this basis. 7 B. Failure to State a Claim 8 1. Arbitrary and Capricious 9 Defendants argue that Plaintiff has not alleged sufficient plausible facts showing that 10 the Policy is arbitrary or capricious. Mot. at 21. Defendants contend that the Complaint 11 fails to establish “that USCIS’s deference to the Army’s discharge characterization and 12 certification on Plaintiff’s DD 214 were a ‘clear error of judgment.’” Mot. at 21–22 13 (citations omitted). In response, Plaintiff argues that, “without the administrative record, 14 or discovery, it is also impossible at this preliminary stage to determine what factors USCIS 15 did and did not consider in formulating its unpublished Policy, or what evidence was before 16 the agency.” Opp’n at 34–35. 17 Under the APA, a court must “hold unlawful and set aside agency action . . . found 18 to be—arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 19 law,” or “without observance of procedure required by law.” 5 U.S.C. § 706(2). Review 20 under the “arbitrary and capricious standard is narrow[.]” Bowman Transp. v. Ark.-Best 21 Freight Sys., 419 U.S. 281, 285–86 (1974). Despite this narrow scope of review, however, 22 a court’s inquiry must be “searching and careful.” Marsh v. Or. Natural Res. Council, 490 23 U.S. 360, 378 (1989). “An agency must ‘examine the relevant data and articulate a 24 satisfactory explanation for its action including a rational connection between the facts 25 found and the choice made.’” Gill v. United States Dep’t of Justice, 913 F.3d 1179, 1187 26 (9th Cir. 2019) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. 27 Ins. Co., 463 U.S. 29, 43 (1983)). A decision is arbitrary and capricious only if “the agency 28 has relied on factors which Congress has not intended it to consider, entirely failed to 1 consider an important aspect of the problem, offered an explanation for its decision that 2 runs counter to the evidence before the agency, or is so implausible that it could not be 3 ascribed to a difference in view or the product of agency expertise.” 4 Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517, 1521 (9th Cir. 1995) (quoting Beno 5 v. Shalala, 30 F.3d 1057, 1073 (9th Cir. 1994)). The basis for the agency’s decision must 6 come from the administrative record. Gill, 913 F.3d at 1187. In APA cases the 7 administrative record is “the whole record,” which “consists of all documents and materials 8 directly or indirectly considered by agency decision-makers.” Thompson v. U.S. Dep’t of 9 Labor, 885 F.2d 551, 555 (9th Cir. 1989); Portland Audubon Soc. v. Endangered Species 10 Comm., 984 F.2d 1534, 1548 (9th Cir. 1993) (“‘The whole record’ includes everything that 11 was before the agency pertaining to the merits of its decision.”). 12 Here, USCIS is the administrative agency that is designated to make the 13 naturalization decision at issue. Another court analyzing a similar claim found that 14 “USCIS’s reading of the plain text of § 1440 and application of the Army’s discharge 15 characterization and certification were not a ‘clear error of judgment.’” Kulkarni, 503 F. 16 Supp. 3d at 920 (quoting Marsh, 490 U.S. at 378). However, this case is distinguishable 17 from Kulkarni. As the Court has already found, Plaintiff has plausibly alleged that she 18 proved by a duly authenticated certification from the Army that she “served honorably” 19 and “was separated under honorable conditions.” See supra Section I. These are the 20 statutory prerequisites for naturalization pursuant to § 1440, but USCIS denied Plaintiff’s 21 application. The complete administrative record is not presently before the Court; 22 therefore, it is impossible to say at this stage in the proceedings what was before USCIS 23 when it decided to deny Plaintiff’s application. USCIS must articulate a satisfactory 24 explanation based on the facts for denying Plaintiff’s application when she has plausibly 25 alleged that she met the statutory requirements for naturalization. Gill, 913 F.3d at 1187. 26 Based Plaintiff’s Complaint and the documents incorporated by reference therein, 27 Plaintiff has stated a plausible claim that the Policy is arbitrary and capricious in violation 28 of the APA. See Vasquez, 487 F.3d at 1249 (“In reviewing such a motion, we accept all 1 material allegations of fact as true and construe the complaint in a light most favorable to 2 the non-moving party.”). Accordingly, the Court DENIES Defendants’ Motion on this 3 basis. 4 2. Notice and Comment 5 Next, Defendants argue that “Plaintiff’s Complaint does not plausibly allege that 6 USCIS’s application of § 1440 is a ‘new substantive requirement,’ nor does the Complaint 7 plausibly allege that USCIS’s application of § 1440 violates the APA’s notice-and- 8 comment rulemaking regulations.” Mot. at 22. In response, Plaintiff argues that “USCIS 9 could not possibly have provided adequate public notice of an unpublished Policy, which 10 alone is problematic, even if the Policy was not considered unlawful in other ways.” Opp’n 11 at 35. 12 “In enacting the APA, Congress made a judgment that notions of fairness and 13 informed administrative decisionmaking require that agency decisions be made only after 14 affording interested persons notice and an opportunity to comment.” Chrysler Corp. v. 15 Brown, 441 U.S. 281, 316 (1979); see also Riverbend Farms, Inc. v. Madigan, 958 F.2d 16 1479, 1485 (9th Cir. 1992) (“[T]he notice and comment requirements . . . are designed to 17 ensure public participation in rulemaking.”). Under the APA, agency action that represents 18 a legislative rule must undergo notice and comment procedures, but this is not the case for 19 “interpretative rules, general statements of policy, or rules of agency organization, 20 procedure, or practice.” 5 U.S.C. § 553(b)(A); Perez v. Mortg. Bankers Ass’n, 575 U.S. 21 92, 96–97 (2015). A legislative rule is one that has the force of law and creates new rights 22 or duties, while an interpretive rule merely clarifies an existing rule and does not change 23 law, policy, or practice. See Perez, 575 U.S. at 96–97. An agency can forgo the notice and 24 comment procedure for a legislative rule only if the agency “publishes a specific finding 25 of good cause documenting why such procedures ‘are impracticable, unnecessary, or 26 contrary to the public interest.’” Hemp Indus. Ass’n v. Drug Enf’t Admin., 333 F.3d 1082, 27 1087 (9th Cir. 2003) (quoting 5 U.S.C. § 553(b), (b)(B)). In contrast, interpretive rules and 28 rules of agency organization, procedure, or practice do not add to the substantive law that 1 already exists in the form of a statute or legislative rule. Id. at 1087. The court need not 2 accept the agency’s characterization of its rule as legislative or interpretive at face value. 3 Gunderson v. Hood, 268 F.3d 1149, 1154 n.27 (9th Cir. 2001). 4 Plaintiff has alleged that Defendants’ “Policy creates a minimum period of service 5 requirement (i.e., more than 180 days of active duty service)” to qualify for military 6 naturalization. Compl. ¶ 189. There is no minimum period of service requirement in 7 § 1440, only the requirement that the applicant “served honorably” and, if separated, “was 8 separated under honorable conditions.” 8 U.S.C. § 1440(a). Plaintiff alleges that a reservist 9 who is discharged with less than 180 days of active-duty service generally receives an 10 “uncharacterized” discharge on his or her DD-214. Compl. ¶ 146. It is plausible based on 11 the facts alleged that Defendants have created substantive requirements outside the 12 statutory rule for military naturalization. Therefore, the Court DENIES Defendants’ 13 Motion on this basis. 14 3. Publication 15 Defendants argue that USCIS has not changed or added any requirement for Plaintiff 16 to be naturalized pursuant to § 1440, and therefore Plaintiff has not plausibly alleged that 17 she was “adversely affected” by an unpublished rule or regulation that should have been 18 published. Mot. at 23–24. 19 Defendants are required to publish in the Federal Register all “rules of procedure” 20 and “statements of general policy or interpretations of general applicability formulated and 21 adopted by the agency.” 5 U.S.C. § 552. When an agency issues a rule, the APA requires 22 the following procedure “(1) publishing notice of the proposed rule-making in the Federal 23 Register; (2) providing a period for interested persons to comment on the proposed rule, 24 which comments will be considered by the agency prior to adopting the rule; and (3) 25 publishing the adopted rule not less than thirty days before its effective date, with certain 26 exceptions[.]” Paulsen v. Daniels, 413 F.3d 999, 1004 (9th Cir. 2005) (citing 5 U.S.C. 27 § 553(b), (c), (d)). “If notice of a proposed rule is not published in the Federal Register at 28 least thirty days prior to its issuance, or if good cause is not found and published for the 1 immediate issuance of a rule, the rule cannot be legally issued[.]” Hotch v. United States, 2 212 F.2d 280, 284 (9th Cir. 1954) (footnote omitted). 3 The Court has already found that Plaintiff plausibly alleged that Defendants’ Policy 4 constituted a rule subject to the notice and comment procedure. Plaintiff has additionally 5 alleged that Defendants failed to publish the Policy prior to its issuance, and therefore has 6 stated a plausible claim for violation of the APA. Accordingly, the Court DENIES 7 Defendants’ Motion as to Count II of Plaintiff’s Complaint. 8 III. Equitable Estoppel 9 In Count III of her Complaint, Plaintiff claims that she is entitled to be naturalized 10 under the equitable estoppel doctrine because of USCIS’s “repeated failure to conduct an 11 oath ceremony” after Plaintiff’s naturalization application was approved. Compl. ¶ 198. 12 Defendants argue that this claim should be dismissed because Plaintiff “does not meet the 13 statutory requirements for citizenship,” and therefore “a court does not have authority to 14 confer citizenship through equitable means.” Mot. at 18 (citing INS v. Pangilinan, 486 15 U.S. 875, 883–84 (1988)). Alternatively, Defendants argue that Plaintiff fails to satisfy the 16 requirements of the equitable estoppel doctrine. Id. As the Court has already found that 17 Plaintiff has plausibly alleged that she meets the statutory requirements for citizenship, see 18 supra Section I, the Court will examine only whether Plaintiff has adequately stated a claim 19 that Defendants should be estopped from withdrawing the October 4, 2018, approval of 20 Plaintiff’s naturalization application. 21 In the Ninth Circuit, a plaintiff must plead the following elements to state a claim 22 for equitable estoppel: “(1) knowledge of the true facts by the party to be estopped, (2) 23 intent to induce reliance or actions giving rise to a belief in that intent, (3) ignorance of the 24 true facts by the relying party, and (4) detrimental reliance.” Estate of Amaro v. City of 25 Oakland, 653 F.3d 808, 813 (9th Cir. 2011) (quoting Bolt v. United States, 944 F.2d 603, 26 609 (9th Cir. 1991)). When equitable estoppel is sought against the government, the 27 plaintiff must additionally plead that the government engaged in “affirmative misconduct 28 going beyond mere negligence.” Mukherjee v. INS, 793 F.2d 1006, 1008–09 (9th Cir. 1 1986). Affirmative misconduct is defined as “a deliberate lie or a pattern of false 2 promises.” Socop–Gonzalez v. INS, 272 F.3d 1176, 1184 (9th Cir. 2001) (en banc). 3 “Furthermore, estoppel will apply only where the government’s wrongful act will cause a 4 serious injustice and the public’s interest will not suffer undue damage by the imposition 5 of liability.” Mukherjee, 793 F.2d at 1008–09 (quoting Morgan v. Heckler, 779 F.2d 544, 6 545 (9th Cir. 1985)). 7 Plaintiff claims that USCIS regularly administers a same-day oath of citizenship to 8 applicants who have been approved for citizenship and that the MAVNI program promised 9 an expedited naturalization process. Compl. ¶¶ 49, 55. Plaintiff argues the failure to 10 promptly administer her oath when her application was approved amounts to an 11 affirmative, willful, and bad faith refusal to complete Plaintiff’s naturalization process. 12 Opp’n at 29. The Court finds that the failure to schedule Plaintiff’s oath ceremony in the 13 two and half months following her application’s approval does not, in itself, constitute 14 affirmative misconduct warranting equitable estoppel relief. Jaa v. U.S. I.N.S., 779 F.2d 15 569, 572 (9th Cir. 1986) (“Mere unexplained delay does not show misconduct.” (citing INS 16 v. Miranda, 459 U.S. 14, 18–19 (1982)). However, Plaintiff alleges a scheme “whereby 17 USCIS intentionally disregarded its statutory duty to process MAVNI naturalization 18 applications pending advice from DoD regarding whether the applicant had received a 19 favorable MSSD.” Opp’n at 30 (citing Nio, 385 F. Supp. 3d at 67–68). Plaintiff contends 20 that Defendants “delay[ed] the processing of naturalization applications so it can wait to 21 see if an applicant becomes disqualified.” Opp’n at 31 (quoting Nio, 385 F. Supp. 3d at 22 67–68). At the pleading stage, Plaintiff has sufficiently alleged affirmative misconduct 23 going beyond mere negligence such that her claim for equitable estoppel survives a motion 24 to dismiss. Accordingly, the Court DENIES Defendants’ Motion as to Count III of 25 Plaintiff’s Complaint. 26 IV. Constitutional Claims 27 In Count IV, Plaintiff alleges that USCIS’s Policy violates the Constitution’s 28 Uniform Rule of Naturalization clause and the Fifth Amendment’s Due Process Clause. 1 See generally Compl. ¶¶ 200–11. Plaintiff alleges that USCIS’s Policy creates a minimum 2 period of service and physical requirements for military naturalization under § 1440 and 3 allows USCIS, not the military, to determine whether soldiers meet the criteria for 4 honorable discharge. Compl. ¶¶ 201–06, 208–09. Plaintiff also alleges that USCIS treated 5 Plaintiff’s discharge as “other than honorable” without providing Plaintiff with the process 6 that accompanies such discharge according to the DoD Instructions, violating Plaintiff’s 7 Fifth Amendment right to due process. Id. ¶ 207. As the Court has already determined 8 that Defendants’ issue preclusion argument fails as to Count IV, see supra Section II.A, 9 the Court will examine whether Plaintiff has stated a claim for violation of the Uniform 10 Rule of Naturalization and the Fifth Amendment’s Due Process Clause. 11 A. Uniform Rule of Naturalization 12 Defendants argue Plaintiff’s claim under the Uniform Rule of Naturalization fails to 13 state a claim because USCIS’s determination that an “uncharacterized” discharge does not 14 satisfy § 1440 falls within its broad authority to administer the provisions of the INA. Mot. 15 at 24. 16 The federal government has broad and plenary powers over the subject of 17 immigration and the status of aliens. Arizona v. United States, 567 U.S. 387, 394 (2012). 18 The Constitution empowers Congress to “establish an uniform Rule of Naturalization.” 19 U.S. Const. art. I, § 8, cl. 4; see also Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 16 20 (2015). Once Congress “establishes such uniform rule [of naturalization], those who come 21 within its provisions are entitled to the benefit thereof as a matter of right[.]” Schwab v. 22 Coleman, 145 F.2d 672, 676 (4th Cir. 1944). 23 Plaintiff has alleged that USCIS unlawfully implemented a Policy imposing extra- 24 statutory eligibility criteria on military naturalization applications, including minimum 25 period of service and physical requirements. Additionally, Plaintiff claims that USCIS 26 delayed processing naturalization applications to wait and see if an applicant becomes 27 disqualified. Such a scheme would run afoul with the Uniform Rule of Naturalization. See 28 Kirwa v. U.S. Dep’t of Def., 285 F. Supp. 3d 257, 273 (D.D.C. 2018) (finding claim under 1 the Uniform Rule of Naturalization survived a motion to dismiss where the plaintiffs 2 alleged a DoD policy required service members meet extra-statutory criteria to receive a 3 Form N-426 honorable service certification). Accordingly, the Court DENIES 4 Defendants’ Motion as to this claim. 5 B. Due Process 6 Next, Defendants argue that Plaintiff’s due process claim fails because there are no 7 arbitrary, unlawful, or unauthorized conditions set by USCIS, and therefore Defendants’ 8 actions did not infringe on Plaintiff’s right to due process. Mot. at 25. Plaintiff claims the 9 military must provide due process to servicemembers in advance of issuing anything less 10 than an honorable discharge. Compl. ¶ 72. Based on a separate military statute, military 11 regulations, military handbooks, and military practice, Plaintiff claims that the Army treats 12 an “uncharacterized” discharge as a discharge “under honorable conditions.” Id. ¶¶ 8, 72, 13 170. Plaintiff argues that the Policy violated her due process rights because it treats her 14 “uncharacterized” discharge as a less than honorable discharge, for which Plaintiff did not 15 receive an opportunity to be heard before separation. See Opp’n at 18, 34. 16 The Fifth Amendment provides that “[n]o person shall be . . . deprived of life, liberty, 17 or property, without due process of law.” U.S. Const. amend. V. “Procedural due process 18 imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or 19 ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth 20 Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “The fundamental 21 requirement of [procedural] due process is the opportunity to be heard ‘at a meaningful 22 time and in a meaningful manner.’” Id. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 23 552 (1965)). Procedural Due Process claims “hinge[] on proof of two elements: (1) a 24 protect[ed] liberty or property interest . . . and (2) a denial of adequate procedural 25 protections.” Foss v. Nat’l Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998). 26 The threshold inquiry is whether Plaintiff alleges she was deprived of an interest in 27 property or liberty. Bd. of Regents v. Roth, 408 U.S. 564 (1972); see also Russell v. 28 Landrieu, 621 F.2d 1037, 1040 (9th Cir. 1980) (holding that a protected interest must be 1 “created and defined by an independent source, such as state or federal law”). The Ninth 2 Circuit has held that naturalization applicants have a property interest in seeing their 3 applications adjudicated lawfully. Brown v. Holder, 763 F.3d 1141, 1147 (9th Cir. 2014). 4 Plaintiff had a right to apply for citizenship, established by federal law, specifically § 1440. 5 Bd. of Regents of State Colls., 408 U.S. at 577. Therefore, Plaintiff has adequately alleged 6 a property interest. 7 The next question is whether Plaintiff has alleged Defendants violated this interest. 8 Plaintiff alleges that USCIS acted unconstitutionally in hindering MAVNI applicants from 9 applying for U.S. citizenship. The Court has already determined that Plaintiff plausibly 10 alleged she complied with the statutory requirements for naturalization pursuant to § 1440 11 and that the application of USCIS’s extra-statutory requirements deprived Plaintiff of her 12 right to citizenship. See Compl. ¶ 72. Therefore, Plaintiff has stated a plausible claim that 13 Defendants violated her substantive due process rights when Defendants treated her 14 “uncharacterized” discharge as a discharge under less than honorable conditions. See 15 Brown, 763 F.3d at 1149 (stating an agency’s failure to follow its own regulations is not 16 per se a violation of due process, but that constitutional rights are implicated “when the 17 agency’s disregard of its rules results in a procedure which in itself impinges upon due 18 process rights.” (quoting Bates v. Sponberg, 547 F.2d 325, 330 (6th Cir. 1976)). Therefore, 19 the Court DENIES Defendants’ Motion as to this claim. 20 V. Declaratory Judgment 21 In Count V, Plaintiff seeks a declaratory judgment that “uncharacterized” discharges 22 satisfy the “under honorable conditions” discharge eligibility requirement under § 1440. 23 Compl. ¶ 216. Defendants argue that Count V is barred by issue preclusion and fails 24 alongside Plaintiff’s substantive claims. Mot. at 19–21, 25. As the Court has already 25 addressed Defendants’ issue preclusion argument, see supra Section II.A, the Court will 26 only examine whether Plaintiff has stated a claim under the Declaratory Judgment Act. 27 The Declaratory Judgement Act states that “[i]n a case of actual controversy within 28 its jurisdiction . . . any court of the United States . . . may declare the rights and other legal 1 relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a). “[T]he 2 availability of [declaratory relief] presupposes the existence of a judicially remediable 3 right.” Schilling v. Rogers, 363 U.S. 666, 677 (1960). “The decision to grant declaratory 4 relief is a matter of discretion.” United States v. State of Wash., 759 F.2d 1353, 1356 (9th 5 Cir. 1985) (citations omitted). Many courts in the Ninth Circuit have found that “a claim 6 for declaratory relief is unnecessary where an adequate remedy exists under some other 7 cause of action.” Mangindin v. Wash. Mut. Bank, 637 F. Supp. 2d 700, 707 (N.D. Cal. 8 2009); see also Bell v. Wells Fargo Bank, N.A., No. CV144316JFWMRWX, 2014 WL 9 12603123, at *8 (C.D. Cal. Sept. 2, 2014) (dismissing declaratory relief claim as 10 duplicative), aff’d, 663 F. App’x 549 (9th Cir. 2016). 11 Plaintiff’s claim for declaratory relief is cumulative and duplicative of Plaintiff’s 12 other sought avenues of relief. It is unclear what additional declaration of rights would 13 occur under this claim as opposed to Plaintiff’s claims that Defendants’ Policy violates the 14 APA, the Constitution’s Uniform Rule of Naturalization clause, and the Fifth Amendment 15 Due Process Clause. As such, the Court exercises its discretion and declines to consider 16 this claim. Therefore, the Court GRANTS Defendants’ Motion to Dismiss as to Count V 17 and DISMISSES Plaintiff’s claim under the Declaratory Judgment Act. 18 VI. Injunctive Relief 19 In Count VI of the Complaint, Plaintiff asserts a claim for a permanent injunction. 20 Defendants argue that injunctive relief is a remedy, not an independent cause of action. 21 Mot. at 25. Plaintiff does not meaningfully oppose Defendants’ argument as to this claim, 22 instead arguing that Defendants’ contentions are “cursory” and “all premised on the 23 assertion that Defendants’ denial of Ms. Miriyeva’s naturalization application and its 24 unpublished Policy are fully in accordance with applicable law.” Opp’n at 34. 25 It is a well-settled rule in the Ninth Circuit that a claim for “injunctive relief” 26 standing alone is not a cause of action. See, e.g., Jensen v. Quality Loan Serv. Corp., 702 27 F. Supp. 2d 1183, 1201 (E.D. Cal. 2010) (“A request for injunctive relief by itself does not 28 state a cause of action.”); Clark v. Countrywide Home Loans, Inc., 732 F. Supp. 2d 1038, 1 || 1051 (E.D. Cal. 2010) (“Injunctive relief is a remedy and not, in itself, a cause of action, 2 ||and a cause of action must exist before injunctive relief may be granted.” (citation 3 omitted)); Rosal v. First Fed. Bank of California, 671 F. Supp. 2d 1111, 1136 (N.D. Cal. 4 2009) (same). 5 As Count VI asserts an independent claim for injunctive relief, that claim must be 6 ||dismissed. Accordingly, the Court GRANTS Defendants’ Motion to Dismiss as to Count 7 || Vand DISMISSES Plaintiffs claim for injunctive relief. Plaintiff’s request for injunctive 8 ||relief as a remedy, however, remains viable provided that Plaintiff is successful on the 9 ||merits of one or more of her remaining claims. 10 CONCLUSION 11 For the reasons stated above, the Court GRANTS IN PART and DENIES IN 12 ||}PART Defendants’ Motion to Dismiss. Specifically, the Court DENIES Defendants’ 13 || Motion as to Counts I, II, HI, and IV of Plaintiff's Complaint, and the Court GRANTS 14 || Defendants’ Motion as to Counts V and VI of Plaintiff's Complaint. Counts V and VI are 15 || DISMISSED WITHOUT PREJUDICE. Plaintiff MAY FILE an amended complaint 16 |} within thirty (30) days of the electronic docketing of this Order. If Plaintiff fails to file an 17 ||amended complaint within the allotted time, this case will proceed on Plaintiff's remaining 18 claims. 19 IT IS SO ORDERED. 20 ||Dated: March 21, 2022 . tt 21 pee Janis L. Sammartino 79 United States District Judge 23 24 25 26 27 28