NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 10 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILMER GUZMAN SALGUERO, No. 18-55160

Plaintiff-Appellant, D.C. No. 2:17-cv-03883-VAP-JEM v.

KIRSTJEN NIELSEN; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding

Argued and Submitted August 12, 2019 Pasadena, California

Before: CALLAHAN, D.M. FISHER,** and R. NELSON, Circuit Judges.

Appellant, a lawful permanent resident, was denied naturalization. He filed

a complaint with the district court seeking de novo review of the denial under 8

U.S.C. § 1421(c). The district court dismissed under Federal Rules of Civil

Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. Appellant subsequently appealed to this court, asserting the district court

impermissibly dismissed his appeal by only considering his claim under § 1421(c)

and failing to consider his claim under 8 U.S.C. § 1447(b). We affirm the

judgment of the district court as it pertains to Appellant’s claim under § 1421(c).

As to Appellant’s new argument that the district court should have considered his

petition for naturalization under § 1447(b), we find the district court did not have

jurisdiction to do so.

The Attorney General has “[t]he sole authority to naturalize persons as

citizens of the United States.” 8 U.S.C. § 1421(a). The United States Citizenship

and Immigration Services (“USCIS”) administers this authority for the Attorney

General. 6 U.S.C. § 271(b)(2); 8 U.S.C. § 1103(a)(1). District courts are only

granted jurisdiction over naturalization matters in two distinct circumstances.

First, once the agency hands down a final determination an applicant can seek

judicial review of “such denial” under § 1421(c). Second, if USCIS fails to make

an initial determination in a timely manner, an applicant may petition the district

court to either decide the matter or compel the agency to do so under § 1447(b).

This “statutory scheme aims to provide USCIS with an incentive to decide

applications in a timely fashion or risk losing jurisdiction to decide those

applications in the first instance.” Yith v. Nielsen, 881 F.3d 1155, 1164 (9th Cir.

2018) (quoting Bustamante v. Napolitano, 582 F.3d 403, 410 (2d Cir. 2009)).

2 1. We review the dismissal of a complaint for failure to state a claim de

novo. Id. at 1161. In this case, the motion to dismiss Appellant’s § 1421(c) claim

was properly granted. USCIS correctly determined Appellant was statutorily

ineligible for naturalization because of his aggravated felony conviction. 8 U.S.C.

§ 1101(f)(8); 8 C.F.R. § 316.10(b)(1)(ii). As such, Appellant could not have stated

a claim for which relief could be granted and dismissal was appropriate. We

therefore affirm the judgment of the district court.

2. The crux of Appellant’s new argument before this court is that the district

court failed to consider his claim under § 1447(b). As Appellant failed to make

this argument before the district court, there is a question of waiver. However, we

find Appellant’s claim fails on a threshold question of jurisdiction.

A lawful permanent resident may apply for naturalization by filing an

application with USCIS. See Yith, 881 F.3d at 1159. If USCIS fails to render an

initial determination within 120 days after the naturalization examination, “the

applicant may apply to the United States district court . . . for a hearing on the

matter.” Id. At this point, the district court “has jurisdiction over the matter and

may either determine the matter or remand the matter, with appropriate

instructions, to the Service to determine the matter.” 8 U.S.C. § 1447(b).

Absent such a petition, if USCIS belatedly denies the naturalization

application, the applicant must then exhaust the agency appeal process before

3 appealing to the district court for de novo review of the final determination. 8

U.S.C. § 1421(c); see also Yith, 881 F.3d at 1159. This review is limited to the

reason for the agency’s denial. See Yith, 881 F.3d at 1163. Allowing the district

court to “determine the matter” under § 1447(b) after USCIS renders a final

decision would inappropriately circumvent the “sole” authority of the executive

branch over naturalization. 8 U.S.C. § 1421(a). Indeed, such an interpretation is

inconsistent with the meaning of § 1421(c) and the purpose of § 1447(b).

In this case, USCIS rendered its initial decision three weeks after the 120-

day period prescribed by the statute. After day 120, Appellant could have applied

to the district court to either determine the matter or to compel USCIS to do so.

Instead, he chose to wait for a decision. Indeed, his first and only attempt to

invoke § 1447(b) jurisdiction was on appeal to this court—that is, once it was

evident, he could not prevail on his § 1421(c) claim.

Absent an appeal under § 1447(b), once USCIS handed down the initial

decision the opportunity to request a district court determine the matter (which was

already determined) or compel USCIS to decide the matter (which it had already

decided), was necessarily foreclosed. Id. The opportunity to invoke § 1447(b)

jurisdiction was only further precluded when USCIS vacated the initial decision on

appeal and denied naturalization on other grounds. However, at that point an

appeal under § 1421(c) was appropriate.

4 As jurisdiction under § 1447(b) could not be properly invoked after USCIS

handed down an initial determination, the district court did not err in failing to

consider his claim under that statute. If Appellant had made the argument for a §

1447(b) determination below, the district court would have likely dismissed the

argument for lack of jurisdiction. This attempt at a second bite of the proverbial

apple necessarily fails.

JUDGMENT AFFIRMED.

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