Valentina S. Maxwell v. JEFFERSON B. SESSIONS III, Attorney General;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VALENTINA S. MAXWELL,
Plaintiff-Appellant,
v.
JEFFERSON B. SESSIONS III, Attorney
General; et al.,
Defendants-Appellees.
No. 15-16520
D.C. No.
2:14-cv-02772-TLN-AC
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted June 12, 2018**
San Francisco, California
Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.
Valentina S. Maxwell, a native and citizen of Russia, appeals pro se from the
district court’s dismissal of her complaint under 8 U.S.C. § 1447(b) requesting a
hearing on her naturalization application, for failure to state a claim. We have
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUN 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal of a
complaint for failure to state a claim. Yith v. Nielsen, 881 F.3d 1155, 1161 (9th Cir.
2018). We reverse.
The district court erred in dismissing Maxwell’s complaint for failure to
state a claim, where the language of 8 U.S.C. § 1429 only bars the Attorney
General, and not the district court, from considering a naturalization application
when there is a removal proceeding pending against the applicant, and where
Maxwell was not in removal proceedings pursuant to a “warrant of arrest,” but
pursuant to a notice to appear. See 8 U.S.C. § 1429 (“[N]o application for
naturalization shall be considered by the Attorney General if there is pending
against the applicant a removal proceeding pursuant to a warrant of arrest issued
under the provisions of this chapter or any other Act.”); Yith, 881 F.3d at 1165,
1168 (the statutory language of 8 U.S.C. § 1429 applies only to the Attorney
General, not the district court, and thus the district court is not prevented from
granting relief under 8 U.S.C. § 1447(b); § 1429 is inapplicable to applicants in
proceedings pursuant to a notice to appear, which is different from a “warrant of
arrest”). Accordingly, we reverse the district court and remand for further
proceedings consistent with this decision.
REVERSED and REMANDED.

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