IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-20641

KEHINDE SABA-BAKARE

Plaintiff - Appellant

v.

MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND

SECURITY; HIPOLITO ACOSTA, District Director, US Citizenship &

Immigration Services

Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Texas

Before GARWOOD, JOLLY, and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Kehinde Saba-Bakare appeals the district court’s dismissal of his case for

lack of subject matter jurisdiction to grant the relief he requests. For the

reasons presented below, we affirm.

I.

Saba-Bakare is a citizen of Nigeria. He has lived in the United States as

a legal permanent resident since February 1986. 

In April 2003, Saba-Bakare returned to the United States from a brieftrip

abroad. On arrival in the United States, immigration authorities determined

that a previous conviction for second degree felony sexual assault rendered him

United States Court of Appeals

Fifth Circuit

F I L E D

November 5, 2007

Charles R. Fulbruge III

Clerk
No. 06-20641

1 Because we agree with the district court that subject matter jurisdiction is lacking,

we have avoided discussing the merits of Saba-Bakare’s underlying claim that he is prima facie

eligible for naturalization. 

2

inadmissible. On the same day, Saba-Bakare was issued a Notice to Appear in

removal proceedings.

Four months later, while the removal proceedings were pending, SabaBakare filed an application for naturalization with the U.S. Citizenship and

Immigration Services (“USCIS”). But as 8 U.S.C. § 1429 precludes consideration

by the Attorney General (read, USCIS) of a naturalization application once

removal proceedings have begun, Saba-Bakare’s naturalization application could

not appropriately be considered. This being the case, Saba-Bakare filed a motion

to terminate the removal proceedings with the immigration judge, arguing that

he could establish prima facie eligibility for naturalization and present

exceptionally appealing or humanitarian factors. Under 8 C.F.R. § 1239.2(f),

when an alien establishes prima facie eligibility for naturalization and presents

exceptionally appealing or humanitarian factors, an immigration judge may

terminate removal proceedings to permit the alien to proceed to a final hearing

on a pending application or petition for naturalization. 

The USCIS responded to Saba-Bakare’s motion to terminate the removal

proceedings against him by informing the immigration judge that in its opinion

Saba-Bakare is not prima facie eligible for naturalization due to his previous

conviction. The USCIS’s determination that Saba-Bakare is not prima facie

eligible for naturalization is hotly disputed by Saba-Bakare. Indeed, this

determination was the genesis for the present controversy and appeal.1

Based on the USCIS’s determination that Saba-Bakare is not prima facie

eligible for naturalization, and on the understanding that he has no authority

over naturalization applications or determinations of prima facie eligibility for
No. 06-20641

3

naturalization,the immigration judge denied Saba-Bakare’s motion to terminate

the removal proceedings. The removal proceedings are still pending.

The USCIS was not so circumspect. Despite the fact that 8 U.S.C. § 1429

precludes consideration by the USCIS of a naturalization application once

removal proceedings have begun, the USCIS conducted a naturalization

interview and subsequently denied Saba-Bakare’s application. The USCIS

denied Saba-Bakare’s application for the same reason that it had earlier

determined that he is not prima facie eligible for naturalization—that is, because

of his previous conviction. After further review pursuant to 8 U.S.C. § 1447(a),

the USCIS affirmed the denial of naturalization for the same reason. 

Saba-Bakare then filed this action in the district court seeking a de novo

review of his naturalization application pursuant to 8 U.S.C. § 1421(c), and also

seeking a declaratory judgment from the district court that he is prima facie

eligible for naturalization. 

After commencement of this action, the USCIS, attempting to correct its

error, informed Saba-Bakare that under 8 U.S.C. § 1429 it had lacked authority

to consider and deny his application for naturalization because of the pending

removal proceedings. The USCIS therefore reopened Saba-Bakare’s

naturalization application. 

Now in the district court, however, Saba-Bakare filed a motion for

summary judgment. The USCIS also filed a motion to dismiss and a motion for

summary judgment for lack of subject matter jurisdiction. The district court

vacated the USCIS’s decision denying Saba-Bakare’s application for

naturalization and remanded the application for consideration, but only when

the removal proceedings are no longer pending. The district court further denied

Saba-Bakare’s request for a declaratory judgment of prima facie eligibility for

naturalization and declined to review the USCIS’s determination that he is not

prima facie eligible for naturalization; the district court held that it lacked
No. 06-20641

2 We do not address the portion of the district court’s order that vacated the USCIS’s

decision on Saba-Bakare’s naturalization application as the USCIS did not raise this issue on

appeal.

4

subject matter jurisdiction to consider either request and consequently dismissed

the claims that it had not remanded. Saba-Bakare timely appealed the district

court’s holding that it lacked subject matter jurisdiction.2

II.

This court reviews a ruling on jurisdiction de novo. Bravo v. Ashcroft, 341

F.3d 590, 591 (5th Cir. 2003).

Saba-Bakare contends that the district court has jurisdiction over this

action and consequently over his request that it declare him prima facie eligible

for naturalization and/or review the USCIS’s determination that he is not prima

facie eligible for naturalization.

Saba-Bakare first contends that jurisdiction exists under 8 U.S.C. §

1421(c), which provides district courts the authority to review the denial of a

naturalization application after an applicant has exhausted administrative

remedies.

The district court held that the denial of Saba-Bakare’s naturalization

application was inappropriate because of the pending removal proceeding

against him. Under 8 U.S.C. § 1429, “no application for naturalization shall be

considered. . . if there is pending against the applicant a removal proceeding. .

. .” As there is a pending removal proceeding against Saba-Bakare, the USCIS

has and had no statutory authority to consider his naturalization application,

and doing so was clearly an error. The USCIS has attempted to remedy this

error by reopening the application proceedings, and the district court has

formally remedied this error by vacating the USCIS’s denial of Saba-Bakare’s

naturalization application as improvidently granted. As the initial denial of his
No. 06-20641

5

application has no continuing legal effect, neither it nor the underlying findings

of the USCIS can now be reviewed under 8 U.S.C. § 1421(c). 

Second, Saba-Bakare contends that jurisdiction exists under 8 U.S.C. §

1447(b), which provides district courts the authority to review a naturalization

application that has not been decided more than 120 days after an in-person

examination. Even if jurisdiction exists under § 1447(b), however, invoking

jurisdiction under this section would be futile. Section 1447(b) provides a

district court with a means of addressing the administrative delay of an

application that the Attorney General may consider. But § 1429 does not allow

the Attorney General to consider naturalization applications when a removal

proceeding is pending. Under § 1447(b), then, the district court could have

either determined the matter or remanded the matter for the USCIS to

determine the matter. But in either instance the appropriate determination is

controlled by § 1429, and § 1429 requires that Saba-Bakare wait until the

termination ofthe removal proceeding before either a district court or the USCIS

entertains a question regarding his naturalization application. In sum, the

administrative delay here is required by § 1429.

Third, Saba-Bakare contends that the district court has jurisdiction to

issue a declaratory judgment on the issue of his prima facie eligibility for

naturalization. Saba-Bakare, as noted above, seeks a declaration that he is

prima facie eligible for naturalization as this will allow the immigration judge

to terminate the pending removal proceeding against him pursuant to 8 C.F.R.

§ 1239.2(f). And, again as noted above, under 8 U.S.C. § 1429, the USCIS is

precluded from considering his naturalization application while a removal

proceeding is pending against him.

In 1975, the Board of Immigration Appeals (“BIA”) held that neither the

BIA nor an immigration judge has authority to make an independent

determination of prima facie eligibility for naturalization. Matter of Cruz, 15 I.
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6

& N. Dec. 236, 237 (BIA 1975). The BIA held that “prima facie eligibility may

be established by an affirmative communication from the Service [USCIS] or by

a declaration of a court that the alien would be eligible for naturalization but for

the pendency of the deportation proceedings. . . .” Id. (emphasis added).

In 1990, however, Congress amended 8 U.S.C. § 1421 and granted the

Attorney General exclusive authority to naturalize aliens, removing the

authority that courts had previously held to naturalize aliens. The USCIS

argues that this amendment to § 1421 renders the part of Matter of Cruz that

states that a court can make a determination of prima facie eligibility for

naturalization no longer the rule. We agree. Matter of Cruz cannot provide the

district court jurisdiction to declare Saba-Bakare prima facie eligible for

naturalization when Congress has said that the Attorney General has exclusive

authority to naturalize aliens. Indeed, in the light of the 1990 amendment to §

1421, Matter of Cruz indicates that only an affirmative communication from the

USCIS may establish prima facie eligibility. See In re Victor Acosta Hildago, 24

I. & N. Dec. 103, 105 (BIA March 8, 2007) (noting that “the fact that the federal

courts no longer have authority to make decisions as to an alien’s prima facie

eligibility for citizenship does not undermine Matter of Cruz”). 

Finally, Saba-Bakare’s most compelling argument is that, absent review

by the district court atthis time,the USCIS’s determination that he is not prima

facie eligible for naturalization, accompanied by his consequent inability to

obtain a termination of removal proceedings under 8 C.F.R. § 1239.2(f), will

render the prima facie eligibility issue unreviewable by any court. 

In oral argument before this court, however, the USCIS unequivocally

conceded—to the apparent surprise and appreciation of Saba-Bakare’s

counsel—that the issue of prima facie eligibility and the consequent denial of

Saba-Bakare’s motion to terminate the removal proceedings would be reviewable

by this court on appeal from a final order of removal. This concession, although
No. 06-20641

7

it likely addresses a jurisdictional question, is consistent with the opinion

expressed by the district court. 

Moreover, even in the unlikely event that the government later attempts

to retract the open and public concession made before this court, the equitable

argument presented by Saba-Bakare is an inappropriate ground for reaching the

underlying merits of this case. If the statutory framework created by Congress

renders the determination of prima facie eligibility for naturalization

unreviewable by any court, this may indeed present a persuasive equitable

concern. But this concern should be addressed to Congress, not to this court.

III.

For the reasons presented above, we AFFIRM the district court’s decision

denying Saba-Bakare’s requested relief for lack of subject matter jurisdiction.