Case 5:06-cv-01011-OLG Document 17-1 Filed 02/12/2007 Page 1 of 6

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

THEODOROS GEORGE DIMOPOULOS §

§
Plaintiff §
§
v. § CASE NO. SA-06-CA-1011-OG
§
ALBERT WILEY BLAKEWAY, ACTING §
DISTRICT DIRECTOR FOR THE CITIZENSHIP §
AND IMMIGRATION SERVICES, UNITED §
STATES CITIZENSHIP AND IMMIGRATION §
SERVICES, EMILIO T. GONZALES, DIRECTOR,§
U.S. CITIZENSHIP AND IMMIGRATION §
SERVICES THE DEPARTMENT OF §
HOMELAND SECURITY, MICHAEL §
CHERTOFF, SECRETARY OF THE §
DEPARTMENT OF HOMELAND SECURITY, §
AND ALBERTO GONZALES, ATTORNEY §
GENERAL OF THE UNITED STATES §
§
Defendants §

DEFENDANT’S RESPONSE TO PLAINTIFF’S REPLY IN OPPOSITION TO

DEFENDANT’S MOTION TO DISMISS COMPLAINT

TO THE HONORABLE ORLANDO GARCIA

UNITED STATES DISTRICT JUDGE:

NOW COMES Albert Wiley Blakeway, Acting District Director for the Citizenship and

Immigration Services; United States Citizenship and Immigration Services, the Department of

Homeland Security, Michael Chertoff, Secretary of the Department of Homeland Security, and

Alberto Gonzales, Attorney General; and Emilio T. Gonzales, Director, U.S. Citizenship and

Immigration Services (USCIS), Respondents herein, by and through Johnny Sutton, the Untied States

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Attorney for the Western District of Texas, and the undersigned Assistant United States Attorney,

and files this Response to Plaintiff’s Reply in Opposition to Defendants’ Motion to Dismiss. In

support of this Response, Defendants would state to the Court as follows:

I. BACKGROUND

Theodoros Dimopoulos, Plaintiff, has asked this Court to evaluate his naturalization

application and order his naturalization pursuant to 8 U.S.C. § 1447(b) because Respondents have

not acted within 120 days since Plaintiff’s examination. Plaintiff, at all times prior to his

naturalization, has the burden to show eligibility for citizenship. Defendants filed a Motion to

Dismiss Plaintiff’s Complaint. Plaintiff filed a Reply in Opposition to the Motion to Dismiss.

Defendants now file this Response.

II. ARGUMENT

Plaintiff has made four (4) arguments in his Reply in Opposition to Defendants’ Motion to

Dismiss. Plaintiff’s first argument is that 8 U.S.C. § 1447 (b) strips Defendants of jurisdiction to

act on the naturalization application once a complaint is filed in district court. Second, Plaintiff

argues that although the Attorney General is barred from considering a naturalization application

while removal proceedings are pending, the district court is not barred by the same statute. Third,

Plaintiff argues that since Defendants have no jurisdiction to adjudicate the application after a

complaint is filed, there are no other administrative remedies to exhaust. Finally, Plaintiff addresses

the failure to file in the proper venue by filing a motion to transfer Defendant’s arguments in this

Response will only address Plaintiff’s first three (3) reasons why the court should not grant the

Motion to Dismiss.

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It should be noted that both reasons 1 and 3 above are based on Plaintiff’s belief that “as a

matter of law” Defendants do not have jurisdiction to act on an application for naturalization after

a complaint under 8 U.S.C. § 1447 (b) has been filed in district court. Plaintiff primarily relies on

the Ninth Circuit decision in United States v. Hovsepian, 359 F.3d 1144 (9th Cir., 2004) (en banc).

That Court found that CIS had no authority to act on a naturalization application after the matter was

filed in district court and that the subsequent approval by CIS of an application would be void. If

Hovsepian were the only case that had ruled on this issue Plaintiff might have some argument.

Contrary to Plaintiff’s belief, the case of Perry v. Gonzales ____ F. Supp. 2d __, 2007 WL 293424

(D.N.J. Feb. 1, 2007) (copy attached) after a thorough analysis of the cases ruling on this matter,

rejected Hovsepian and adopted the Fourth Circuit position in Etape v. Chertoff, 4446 F. Supp. 2d

408 (D. Md. 2006) that the Agency and Court have concurrent jurisdiction over the application and

once the agency makes a decision the suit becomes moot. Etape further held “that there have been

many cases in that district where CIS approved naturalization during the pendency of the district

court proceeding which were dismissed as moot or voluntarily withdrawn. The same is likely true

in districts throughout the country.” Etape at 418, n. 5.

The analysis by Perry of the jurisdiction of the federal courts to hear matters under 8 U.S.C.

§ 1447 (b) and previously decided cases is excellent and dictates the conclusion that both the Agency

and the Court have concurrent jurisdiction after a complaint is filed. Perry. The Perry decision also

provides solid reasoning why the Hovsepian decision would invalidate the congressional intent that

allows concurrent jurisdiction between CIS and the district court.

Plaintiff asserts that because 8 U.S.C. § 1447 (b) gives the district court jurisdiction that CIS

is therefore stripped of jurisdiction. Plaintiff has not and cannot show any language in 8 U.S.C. 1447

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(b) that says once Plaintiff has filed a complaint in district court that CIS is stripped of jurisdiction

to act on the application. It should be noted that Plaintiff’s counsel filed a similar case in Mena v.

Blakeway in the Western District of Texas, San Antonio Division, Case No. 06-CA-0981-RF

alleging that CIS had failed to adjudicate a naturalization application within 120 days and then

dismissed the complaint after CIS approved the application while the complaint was still pending

before the district court. Plaintiff’s counsel cannot have it both ways - he cannot allow CIS to

approve an application after he files a complaint in district court but then turn around and argue “as

a matter of law” that once a complaint is filed CIS has no jurisdiction to act on the application once

he files a complaint just because CIS disapproves the complaint.

Therefore, this Court should follow the reasoning in the Perry case that concludes that the

law and current cases establish that the case is moot since CIS has made a decision on the

application.

Plaintiff’s second argument says that even though the Attorney General is precluded from

acting on an application if Plaintiff is in removal proceedings, the district court is not so precluded.

However, it should be recalled when 8 U.S.C. 1429 was in effect giving the courts exclusive

jurisdiction, the district judge was also precluded from granting naturalization while applicants were

in removal proceedings. The change to 8 U.S.C. § 1429 when administrative naturalization took

place simply inserted the Attorney General for judge. Currently under 8 U.S.C. § 1429 the district

judge is only stepping into the shoes of the Attorney General when the court assumes naturalization

jurisdiction. The district would have no more or no less authority than the Attorney General.

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Therefore, this Court does not have jurisdiction over the complaint because Plaintiff is in

removal proceedings because he is an aggravated felon and cannot show he is qualified for

naturalization because of matters relating to good moral character and validity of a visa.

CONCLUSION

For all of the above reasons this Court should grant Defendants’ Motion to Dismiss

Plaintiff’s Complaint.

Respectfully submitted,

JOHNNY SUTTON
United States Attorney

BY: /s/ Gary L. Anderson

GARY L. ANDERSON
Assistant United States Attorney
601 NW Loop 410, Suite 600
San Antonio, Texas. 78216
Texas State Bar No. 01219000
Tel. No. (210) 384-7365
Fax. No. (210) 384-7312

Attorneys for Respondents

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served via the Court’s CM/ECF
system on the 12tj day of February, 2007, to the following.

Simon M. Azar-Farr
Simon M. Azar-Farr & Assoc.
2313 N. Flores
San Antonio, Texas 78212

/s/ Gary L. Anderson

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GARY L. ANDERSON
Assistant United States Attorney