NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

VICTOR HUGO LEIVA,

Plaintiff, Civil Action No. 11-00629 (CCC)

V.

OPiNION

SECRETARY OF DEPARTMENT OF

HOMELAND SECURITY, ET AL,

Defendants.

CECCHI, District Judge.

This matter comes before the Court on motion of Defendants, Secretary of Department of

Homeland Security (“DHS”) et al,, to dismiss Plaintiff’s Petition for Review of the

Administrative Denial of Application for Naturalization (“Petition”), pursuant to 12(b)(2),

1 2(b)(5), and I 2(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 11, Mot. to Dismiss.)

Plaintiff opposes dismissal and files a Cross-Motion To Extend Time To Perfect Service, (Doc.

No. 16, P1. Opp.) The motion is decided without oral argument. Fed. R. Civ. P. 78(b). Having

considered the parties’ submissions, the Court, for the following reasons. DENIES the

Defendants’ Motion to Dismiss and GRANTS Plaintiff’s request for an extension of time to

perfect service.

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II. BACKGROUND

A. Plaintiffs Application for Naturalization

On or about February 3, 2011, Plaintiff Victor Hugo Leiva filed a Petition for Review of

the Administrative Denial of Application for Naturalization pursuant to 8 U.S.C. § 1421(c).

(Doe. No. 1, Petition, hereinafter ‘Pet.”)

Plaintiff was born on March 8, 1958 and is a native and citizen of Guatemala, (Doe. No.

1, Pet. ¶ 6.) Plaintiff has been a Lawful Permanent Resident since June 3, 1996. (Doe. No. 16-1,

Leiva Aff. ¶ I.) For the past twelve years, Plaintiff has worked in New Jersey as a machine

operator for the same employer. (Id.) Plaintiff was once married to a U.S. citizen. (Pet. ¶ 12.)

Plaintiff and his wife divorced on April 12, 2000. (Id. ¶ 13.) Plaintiff has two U.S. citizen

children who he currently supports. (Id.; Doe. No. 16-1, Leiva Aff. ¶ 12.)

On June 29, 2009 Plaintiff filed an Application for Naturalization with the United States

Citizenship and Immigration Services (“USCIS”). (Doe. No. 1, Pet. ¶ 8.) USCIS denied the

Plaintiffs Application for Naturalization on April 19, 2010. (Doe. No. 1-1 at 3.) On Plaintiffs

administrative appeal, USCIS upheld the denial on November 3, 2010. (Doe. No. 1-1.) USCIS

upheld the denial based on a determination of insufficient moral character stemming from

Plaintiffs having pled guilty on October 17, 2003 to a violation of NJ statute 2C:24-4,

Endangering the Welfare of Children. (Id at 2-3.) This charge carries potential immigration

consequences as a conviction for crimes against children under Section 237(a)(2)(E) of the

Immigration and Nationality Act (INA). (Id. at 1.) The incident leading to Plaintiffs plea of

guilty involved Plaintiffs viewing of a pornographic film in the company of two minors. (Id. at

2.) Plaintiff contends that the minors were trespassing in Plaintiffs home at the time. (Doe. No.

1. Pet. ¶ 14; Doe. No. 16-1. Leiva Aff. ¶ 2.) In explaining why the agency denied Plaintiffs

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application for naturalization, USCIS cites Plaintiff’s failure to take sufficient responsibility and

demonstrate remorse for this incident in light of the factual record. (Doe. No. 1-1 at 2.)

The Department of Homeland Security (“DHS”) issued a Notice to Appear, dated March

23, 2011, initiating removal proceedings against Plaintiff, (Doe No. 11-2, Defs.’ Br. Ex. A.)

DHS charges that removal is proper because Plaintiff’s conviction under NJ Statute 2C:24-4

constitutes a crime involving moral turpitude in violation of INA § 237(a)(2)(A)(i) and a crime

against children in violation of INA § 237(a)(2)(E)(i). (Id.)

13. Service of Process

The facts relating to Plaintiffs service of process on Defendants are as follows.

Defendant USCIS was served with a summons and petition on May 17, 2011 by the Burlington

County Sheriff, and on “May 32, 2011” [sic] by the Essex County Sheriff. (Doe No. 16-1 at 6,

Kuhn Aff., ¶ 12.) On July 28, 2011 the U.S. Attorney informed Plaintiff that the service on

USCIS was defective for lack of signature by the clerk and an error in the civil action number.

(Id. ¶ 13.) Plaintiff corrected the errors upon notice and timely served USCIS on August 10,

2011 through the Burlington County Sherriff. (Id. ¶ 14.)

Plaintiffs attorney mailed a copy of the summons and petition to the United States

Attorney on February 10, 2011 by regular mail. (Id. ¶ 11.) Plaintiffs attorney admits that he

failed to send a copy of the summons and petition by certified or registered mail to the US

Attorney. (Id. ¶ 17.) Plaintiff also did not timely send a copy of the summons and petition to the

Attorney General by regular, registered or certified mail. (Doe. No. 16, P1. Opp’n Br., 14).

Plaintiffs attorney states that these failures were an “oversight” due to obligations relating to the

presentation of a paper at a conference at Moscow University on August 24, 2011. (Id.) On

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September 29, 2011, Plaintiff sent copies of the summons and petition to the US Attorney and

the US Attorney General by certified mail, (Doc No. 16, P1. Opp’n Br., 11)

III. DEFENDANTS’ MOTION TO DISMISS PURSUANT TO RULE 12(B)(6)

A. Legal Standard

For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure

12(b)(6), it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’ “Ashcrofl v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d

868 (2009) (quoting Bell Ad. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d

929 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all well-pleaded

factual allegations in the complaint as true and draw all reasonable inferences in favor of the

non-moving party. See Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.2008).

“Factual allegations must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. Furthermore, “[a] pleading that offers ‘labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action will not do. Nor does a complaint

suffice if it tenders ‘naked assertion [s]’ devoid of ‘further factual enhancement.’ “ Iqbal, 129

S.Ct. at 1949.

The burden of proof for showing that no claim has been stated is on the moving party.

Hedges v. US., 404 F.3d 744, 750 (3d Cir.2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc.,

926 F.2d 1406, 1409 (3d Cir.1991)). During a court’s threshold review, “[tjhe issue is not

whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to

support the claims,” In re Rockefeller Ctr. Props., Inc., 311 F.3d 198,215 (3d Cir.2002).

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B. The District Court’s Jurisdiction Under 8 U.S.C. § 1421(c)

The question of law before the Court is whether 8 U.S.C. § 1429 operates to divest the

district court of the judicial review power granted by § 1421(c) while removal proceedings are

pending against an applicant for naturalization. § 1421(c) provides that a person whose

application for naturalization has been administratively denied is entitled to judicial review

before the United States District Court. § 1429 states that “no application for naturalization shall

be considered by the Attorney General if there is pending against the applicant a removal

proceeding...” 8 U.S.C. § 1429. While Federal Courts remain divided on this issue, the Third

Circuit has recently decided that district courts retain jurisdiction and the ability to provide

effective relief by way of declaratory judgment despite the pendency of removal proceedings.

Gonzalez v. Sec. Dept. Homeland Security, 2012 WL 898609 at *33 (C.A.3 (N.J.) Mar. 19,

2012).

Defendants’ argue that § 1429 prohibits the district court from granting effective relief to

an applicant for naturalization seeking judicial review pursuant to § 1421(c) where removal

proceedings are pending against the applicant. (Doc. No. 11-1, Defs.’ Br. at 10-14.) Defendants

rely on the Sixth Circuit’s holding in Zayed v. United States, 368 F.3d 902, 906 (6th Cir.2004)

(holding that “[TJhe restraints that § 1429 imposes upon the Attorney General prevent a district

court from granting effective relief under § 1421(c) so long as removal proceedings are

pending.”). The court’s reasoning in Za’ed flows from § 1421(a), which names the Attorney

General as the sole authority to naturalize persons as citizens of the United States.” Id. The

court concludes from the text of § 1421(a) that a district court conducting judicial review under §

1421(c) only has the power to grant relief by issuing a court order requiring the Attorney General

to naturalize the applicant. Ia Consequently, since § 1429 “bars the use of [the Attorney

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General’s] power while removal proceedings are pending,” the district court may not order the

Attorney General to naturalize the applicant. Id. Relying on the Zayed interpretation, Defendants

contend that the Petition must be dismissed for ‘failure to state a claim upon which relief can be

granted” pursuant to Rule 1 2(b)(6) of the Federal Rules of Civil Procedure.

A recent Third Circuit decision rejects Defendants’ position, holding that a district court

may conduct judicial review under § 1421(c) and grant effective relief in the form of a

declaratory judgment on the lawfulness of a denial of naturalization despite the pendency of

removal proceedings. Gonzalez v. Sec. Dept. Homeland Security, 2012 WL 898609 at *2 (C.A.3

(N.J.) Mar. 19, 2012). The court agreed with the Sixth Circuit that a district court cannot order

the Attorney General to naturalize an applicant against whom removal proceedings are pending,

but concluded that declaratory relief would be both “appropriate and sufficient” to constitute

effective relief. Id. at *5 (“Declaratory relief, in the form of a judgment regarding the lawfulness

of the denial of naturalization, permits the alien a day in court, as required by § 1421(c), while

not upsetting the priority of removal over naturalization established by § 1429 because it affects

the record for—but not the priority of—removal proceedings, thereby preserving both

congressionally mandated goals, a de novo review process and the elimination of the race to the

courthouse.”).

The facts in the instant matter are similar to Gonzalez in that the applicant for

naturalization seeks judicial review subsequent to a denial on the merits. 1 That is, the grounds of

the original denial of naturalization were unrelated to § 1429, Specifically, USCIS denied

Plaintiff’s application for naturalization on April 19, 2010 and upheld the decision on November

3. 2010 based on a finding, of lack of moral character stemming from Plaintiffs conviction under

As the Third Circuit discusses in Gonzalez, where the original denial occurred pursuant to § 1429 (i.e.. due to

pendent removal proceedings and not on the merits), the district court may not conduct judicial review on the merits.

Gonzalez, v. Sec. Dept. flomelandSecuritv, 2012 WL 898609 at *3 (C.A.3 (N.J.) Mar. 19, 2012).

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Section 237(a)(2)(E). (Doc. No. 1-1 at 2-3.) DHS later initiated removal proceedings against

Plaintiff on March 23, 2011. (Doe No. 11-2, Defs.’ Br. Ex. A.) Applying the Third Circuit’s

authoritative holding in Gonzalez on this question of law, this Court holds that § 1429 does not

prohibit this Court from providing effective relief upon review of Plaintiff’s denial of

naturalization. Plaintiff is entitled to de novo review under § 142 1(c) which may result in a

declaratory judgment by this Court. Therefore, Defendants motion to dismiss pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure is denied.

IV. DEFENDANTS MOTION TO DISMISS PURSUANT TO 12(B)(2) AND 12(B)(5)

A. Legal Standard

Defendants also move to dismiss pursuant to Rules 12(b)(2) and 12(b)(5) of the Federal

Rules of Civil Procedure alleging Plaintiff’s failure to properly serve process on the Defendants.

A party may move to dismiss for insufficient service of process under Federal Rule of Civil

Procedure 12(b)(5). The party serving process bears the burden of establishing the validity of

service. Jumpp v. Jerkins, 2010 WL 715678 (DNJ 2010) at *6 (citing Grand Entm ‘t Group, Ltd

V. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir.1993)).

Service of process is governed by Rule 4 of the Federal Rules of Civil Procedure. Rule

4(i) states the requirements for serving the United States and its agencies, corporations, officers,

or employees. Under Rule 4(i)(2), the plaintiff must send a copy of the summons and complaint

by certified or registered mail to the agency, corporation, officer or employee, and must serve the

United States in the manner provided by Rule 4(i)(l), To properly serve the United States under

Rule 4(i)( 1). the plaintiff must serve the offices of the United States Attorney for the district

where the action is brought and the office of the Attorney General of the United States in

Washington, D.C., Fed,R,Civ,Pr, 4(i)(A) and (B).

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Rule 4(m) provides that where a plaintiff to a civil action does not complete service

within 120 days of filing the complaint, the court must either “dismiss the action without

prejudice against the defendant or order that service be made within a specified time.”

Fed,R,Civ,P, 4(m); See also Mathies v, Silver, 450 Fed.Appx, 219, 221, 2011 WL 5385754

(C.A.3 (N.J.)). The Third Circuit has held that the district court must conduct a two-pronged

inquiry to determine whether to grant an extension of time for service. Petrucelli v. Bohringer &

Ratzinger, 46 F.3d 1298, 1305 (3d Cir,1995). See also Jurnpp v. Jerkins, 2010 WL 715678, at *6

(D.N.J. March 1, 2010). First, the court must grant an extension of time for service if the

plaintiff demonstrates good cause for the failure to serve. Petrucelli v. Bohringer & Ratzinger,

46 F.3d 1298. 1305 (3d Cir. 1995). If the court finds good cause lacking, it must then ask

whether a discretionary extension of time is warranted notwithstanding the absence of good

cause. Id.; See also Mathies v. Silver, 450 Fed,Appx. 219, 221, 2011 WL 5385754 (C.A.3

(N.J.)).

As to the first prong, whether good cause exists, “the court’s primary focus is on the

plaintiffs reasons for not complying with the time limit in the first place.” MCI Telecomrns.

Coip. v. Teleconcepis, Inc., 71 F. 3d 1086, 1097 (3d Cir. 1995). The plaintiff must demonstrate

good faith and “ ‘ some reasonable basis for noncompliance within the time specified in the

rules.’ “Id. (quoting Petrucelli, 46 F.3d at 1312). In order to show good cause, a plaintiff must

demonstrate that he exercised diligence in trying to effect service. See Hirnmelreich v. US., 285

Fed. Appx. 5. 7 (3d Cir.2008) (citing Bachenski v. Malnati, ii F.3d 1371. 1376-77 (7th

Cir. 1993)). Some factors a court may examine in determining whether good cause exists include

(1) the reasonableness of the plaintiffs efforts to serve, (2) prejudice to a defendant from

untimely service, and (3) whether the plaintiff moved for an enlargement of the time to serve.

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See MCI Telecomms., 71 F. 3d at 1097 (citing United States v. Nuttall, 122 F.R.D. 163, 166-67

(D.Del. 1988)).

As to the second prong, the discretionary inquiry, the court “may consider and balance

several factors including (1) actual notice ofthe action, (2) prejudice to the defendant, (3) statute

of limitations, (4) conduct of the defendant, (5) whether the plaintiff is represented by counsel,

and 6) any other relevant factor.” Jumpp v. Jerkins, 2010 WL 715678, at 6 (D.N.J. March 1,

2010) (citing Chiang v. US Small Bus. Admits., 331 Fed. Appx. 113, 116 (3d Cir.2009). The

plaintiff “bears the burden of demonstrating to the court why it should exercise its discretion.”

Jumpp v. Jerkins, 2010 WL 715678, at 6 (D.N.J. March 1, 2010) (citing Cf McCurdy v. Am.

BcL ofPlastic Surgery, 157 F.3d 191, 196 (3d Cir.1998). In deciding whether to extend time for

service under Rule 4(m), the district court has “wide discretion.” Gonzalez v. Thomas Built

Buses, 268 F.R.D. 521, 528 (M.D. Pa.2010). In addition, the Third Circuit has expressed its

preference that cases be decided on the merits, rather than by procedural technicalities. Hritz v.

Woma Corp., 732 F.2d 1178, 1181 (3d Cir.1984).

B. Discussion ofWhether To Grant An Extension of Time To Perfect Service

Here, it is undisputed that Plaintiff failed to follow the requireñients of Rule 4(i) within

the 120-day time limit set forth in Rule 4(m). Plaintiff violated Rule 4(i) by failing to timely

send a copy of the summons and petition via certified or registered mail to both the U.S.

Attorney for the District ofNew Jersey and the Attorney General ofthe United States. (Doc. No.

16, P1. Opp. Br. at 14). Plaintiffsent a copy ofthe summons and petition by regular mail to the

U.S. Attorney within the prescribed time, and therefore argues that actual notice was provided to

the U.S. government. (Doc No. 16-1, Kuhn Aft’, ¶ 11.) Upon realizing the oversight, Plaintiff

properly sent a copy of the summons and petition to both the U.S. Attorney and Attorney

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General of the United States by certified mail on September 29. 2011. (Doc No. 16, P1. Opp. Br.

at 11.) More than 120 days had passed from the filing of the complaint on February 3, 2011.

(Doe, No. 1, Compi.) Therefore, the Court proceeds to the two-pronged inquiry set forth by the

Third Circuit.

As to the first inquiry, the Court finds that the relevant factors weigh against a finding of

good cause and a mandatory extension for time of service. Plaintiffs attorney states only that

the failure to properly serve the U.S. Attorney and Attorney General was the result of an

“oversight” due to the attorney’s other scholarly obligations at the time. (Doe No. 16, P1. Opp.

Br. at 11.) This explanation does not support a showing of diligence or reasonable efforts to

serve as required by the first of the MCII Telecomrns. factors. MC’I Telecornms., 71 F. 3d at 1097.

Applying the second factor to this case, the Court notes that Defendants have not alleged any

prejudice as a result of the untimely service. Finally, the third factor, whether the plaintiff

moved for an extension of time, weighs against Plaintiff in this case. That is, Plaintiffs attorney

should have, but did not, request an extension of time while apparently facing duress from

competing scholarly obligations. For these reasons, the Court finds that Plaintiff has not

demonstrated good cause for the failure to effect proper service on Defendants.

Regarding the second inquiry, the Court finds that the factors outlined by the Third

Circuit in Chiang weigh in favor of a discretionary extension of time to serve process in this

case. The first factor is whether or not defendants received actual notice of action. Here, the

record indicates that the Plaintiff timely mailed a copy of the summons and petition by regular

mail to the U.S. Attorney, but failed to mail a copy to the Attorney General, Plaintiff contends

that his mailing constitutes actual notice upon the U.S. Government, but the record is lacking as

to whether this is actually the case. As to the second factor, prejudice to the defendant,

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Defendants have not alleged any prejudice arising from late or lack of notice in this matter. The

second factor, therefore, weighs in favor of an extension. The third factor, statute of limitations,

weighs heavily in favor of Plaintiff, Pursuant to 8 CFR § 336.9, an applicant for naturalization

must file a petition for review in the United States District Court within 120 days after the

USCIS final determination. In the instant matter, USCIS issued its final denial of Plaintiffs

application for naturalization on November 3, 2010. (Doc. No. 1-1. Compl. Ex. A at 3.)

Therefore, the statute of limitations has passed and dismissal of this Petition would be fatal to

Plaintiffs request for judicial review. The fourth factor, defendant’s conduct, does not sway the

analysis either way in this case, as there is no allegation that Defendants evaded service in any

way. Finally, the fifth stated factor, whether Plaintiff is represented by counsel, weighs in favor

of an extension to the extent counsel has attempted to cure the service deficiencies.

This Court, mindful of the Third Circuit’s preference that cases be decided on the merits,

and giving due consideration to the above factors, finds that a discretionary extension of time to

perfect service is warranted in this case. The Court denies Defendants’ Motion to Dismiss

pursuant to Rules 1 2(b)(2) and 1 2(b)(5).

V. CONCLUSION

For the reasons elaborated above, the Court DENIES Defendants’ Motion to Dismiss and

GRANTS Plaintiffs Cross-Motion To Extend Time To Perfect Service.

Dated April 10 2012

HON. CLAIRE C. CECCHI

United States District Judge

ii

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