NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

NGAN KAM SZE,

Petitioner,

v.

JANET NAPOLITANO, Secretary of the

Department of Homeland Security, et al.,

Respondents.

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Civil Action No. 11-03293 (SRC)

OPINION

CHESLER, District Judge

This matter comes before the Court on motion for summary judgment by Respondents

(collectively, the “Government”) [docket entry 3] pursuant to Federal Rule of Civil Procedure

56(a). Petitioner Ngan Kam Sze (“Petitioner” or “Sze”) has opposed the motion [docket entry 4],

and in turn has filed a cross-motion to hold the proceedings in abeyance [docket entry 7]. The

Government has opposed the cross-motion. The Court has opted to rule based on the papers

submitted and without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the

reasons discussed below, the Government’s motion for summary judgment will be granted and

Petitioner’s cross-motion will be denied. 

I. BACKGROUND

Petitioner, Ngan Kam Sze, is a native and citizen of China who legally entered the United

States in or about May 2000, but overstayed her B2 visa and accompanying extensions. While

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Petitioner claims to lack any knowledge of the proceedings, an I-589 application for asylum was

filed on her behalf on April 23, 2003. The asylum application was subsequently referred to an

Immigration Judge and on December 4, 2003, Petitioner was ordered removed in absentia. That

removal order has never been appealed.

Petitioner married a U.S. citizen sometime in 2003. On the basis of that marriage, her

husband filed an I-130, Petition for Alien Relative, on her behalf, and Petitioner filed an I-485,

Application to Register Permanent Residence or Adjust Status. Upon the receipt of notice of

Petitioner’s I-485 application, Sze was assigned the alien number A# 099-105-564. Petitioner

was eventually granted conditional permanent residency, but her permanent resident card was

issued with a different alien number, A# 097-152-346. Two years later, Petitioner applied for

and was granted removal of the conditions of residence. On that application, Petitioner used A#

097-152-346. 

In 2008, Petitioner filed an N-400 application for naturalization. However, as a result of

her final order of removal in relation to her asylum application, on or about September 30, 2010,

Petitioner’s naturalization application was denied. According to Petitioner, the asylum

application was falsely filed on her behalf without her knowledge or consent, likely by an

immigration agency she previously employed to obtain an extension of status. As such,

Petitioner initiated the instant matter in order the challenge the Attorney General’s denial of her

application for naturalization. The Government now moves for summary judgment. 

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II. LEGAL ANALYSIS

A. Standard of Review

Summary judgment is appropriate under FED. R. CIV. P. 56(a) when the moving party

demonstrates that there is no genuine issue of material fact and the evidence establishes the

moving party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for

the non-movant, and it is material if, under the substantive law, it would affect the outcome of

the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “In considering a motion

for summary judgment, a district court may not make credibility determinations or engage in any

weighing of the evidence; instead, the non-moving party’s evidence ‘is to be believed and all

justifiable inferences are to be drawn in his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241,

247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255). 

“When the moving party has the burden of proof at trial, that party must show

affirmatively the absence of a genuine issue of material fact: it must show that, on all the

essential elements of its case on which it bears the burden of proof at trial, no reasonable jury

could find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003)

(quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)). 

“[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . . the

burden on the moving party may be discharged by ‘showing’ – that is, pointing out to the district

court – that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477

U.S. at 325. 

Once the moving party has satisfied its initial burden, the party opposing the motion must

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establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v.

Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for

summary judgment cannot rest on mere allegations and instead must present actual evidence that

creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer,

Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations .

. . and pleadings are insufficient to repel summary judgment.” Schoch v. First Fid.

Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). “A nonmoving party has created a genuine

issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at

trial.” Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001).

If the nonmoving party has failed “to make a showing sufficient to establish the existence

of an element essential to that party’s case, and on which that party will bear the burden of proof

at trial, . . . there can be ‘no genuine issue of material fact,’ since a complete failure of proof

concerning an essential element of the nonmoving party’s case necessarily renders all other facts

immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,

477 U.S. at 322-23).

B. Discussion

The Government claims that since Petitioner is subject to a final order of removal,

pursuant to 8 U.S.C. § 1252, this Court lacks jurisdiction to review the denial of her application

for naturalization. The parties do not dispute the facts relating to these claims. Petitioner simply

contends that this Court possesses unqualified jurisdiction to review her naturalization

application. 

In 1990, Congress removed from the courts the authority to naturalize, bestowing upon

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the Attorney General “the sole authority to naturalize persons as citizens of the United States.” 8

U.S.C. § 1421(a). District courts, however, were given the authority to conduct reviews of

denials of applications for naturalization. See 8 U.S.C. § 1421(c). “Such review shall be de

novo, and the court shall make its own findings of fact and conclusions of law and shall, at the

request of the petitioner, conduct a hearing de novo on the application.” 8 U.S.C. § 1421(c). 

However, a district court that exercises § 1421(c) jurisdiction can review only those decisions

that § 1429 permits the Attorney General to make. Zayed v. United States, 368 F.3d 902, 906 (6

th

Cir. 2004) (citing Apokarina v. Ashcroft, 232 F. Supp. 2d 414, 416 (E.D. Pa. 2002) (“[T]he

district court’s scope of review of the denial of a naturalization petition, pursuant to section

1421(c), cannot be any greater than the authority of the Attorney General to consider the petition

on the first place.”)); see also Ajlani v. Chertoff, 545 F.3d 229, 239 (2d Cir. 2008). 

Under the current statutory scheme, “no person shall be naturalized against whom there is

outstanding a final finding of deportability.” 8 U.S.C. § 1429. Because this Court’s scope of

review of the denial of a naturalization petition cannot be any greater than the authority of the

Attorney General to consider the petition in the first place, jurisdiction here is limited to a review

of the determination by the Attorney General that a final removal order has, in fact, been entered

against the Petitioner. Since, in this case, it is undisputed that a final order of removal was

entered against Petitioner on December 4, 2003, this Court lacks jurisdiction to consider her

request for review of her petition for naturalization on any other grounds, including that the

asylum application was filed on her behalf without her knowledge or consent. Instead, “the 1

 Plaintiff relies on Kestelbom v. Chertoff, 538 F. Supp. 2d 813 (D.N.J. 2008), where it 1

was held that a district court can review the Attorney General’s denial of a naturalization

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courts of appeals have exclusive jurisdiction to hear challenges to final orders of removal”

pursuant to 8 U.S.C. § 1252(a)(5). Ovalle v. DHS, No. 09-3820, 2010 U.S. Dist. LEXIS 137555

at *7 (E.D.N.Y. Nov. 24, 2010); Roche v. United States, No. 10-4237, 2010 U.S. Dist. LEXIS

111421 at *3 (D.N.J. Oct. 19, 2010) (“if and when a final order of removal is entered against the

petitioner, and if he first exhausts all his administrative remedies, then he can raise any

otherwise-proper challenge to his removal proceeding and final order of removal in the Court of

Appeals for the judicial circuit in which the Immigration Judge completes the proceeding.”).

Petitioner additionally filed a cross-motion to hold in abeyance all proceedings on the

Government’s motion for summary judgment pending the reopening and termination of

Petitioner’s immigration court proceedings. However, this Court sees no valid purpose for

staying this motion. If the Immigration Jude grants Petitioner’s motion and reverses the order of

removal, Petitioner would be free to pursue her application for citizenship with USCIS. 

Alternatively, if the Immigration Judge (and subsequently the Board of Immigration Appeals)

denies her motion, then the appropriate forum for Petitioner’s appeal is the Second Circuit rather

than this Court. As such, there is no basis for staying these proceedings and Petitioner’s crossmotion will be denied. 

 

application where removal proceedings are pending, and order the Attorney General to naturalize

a petitioner without violating section 1421(c). However, removal proceedings are not pending

against Petitioner in the present matter. Rather, Petitioner has been ordered removed. As the

court in Kestelbom additionally held, where there is a final finding of removability, Congress

mandated that “no one shall be naturalized,” precluding all actions pertaining to a naturalization

application. Kestelbom, 538 F. Supp. 2d at 818.

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III. CONCLUSION

For the foregoing reasons, this Court will grant the Government’s motion for summary

judgment and deny Petitioner’s cross-motion to hold proceedings in abeyance. An appropriate

form of order will be filed together with this Opinion. 

 s/Stanley R. Chesler 

STANLEY R. CHESLER

United States District Judge 

DATED: September 12, 2011

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