Study The Law,it States Clearly That The Examination Is A Single Event Not A Process
In Danilov v. Aguirre, et al. USDC Eastern District of Virginia, May 2005. Mr. Danilov is a lawyer based in DC/VA and was arrested for immigration fraud after a grand jury indictment. Two immigration law firms, two lawyers and their legal assistants have been charged with helping clients forge documents for their green cards. The clients paid up to $22,000 in fees for the forged documents, said Special Agent-in-Charge Cynthia O'Connell, who leads Immigration and Customs Enforcement investigations in Baltimore. The indictment charges the Law Offices of I. Jay Fredman in Washington, Irwin Jay Fredman, 72, of Bethesda, and his legal assistant Elnur Veliev, 21, of Silver Spring. It also charges Sergei Danilov and Associates in Washington, Sergei Danilov, 44, of McLean, VA., and his legal assistant Alp Canseven, 30, of Washington. Fredman, Veliev and Danilov were arrested. They gave false work histories for the applicants and in some cases forged the signatures of business owners, O'Connell said. They gave names of Maryland businesses, real and fictitious, as sponsors for their clients and gave the names of businesses that were sponsoring other immigrants, she said. The clients who are working with investigators won't be deported, O'Connell said. Unless they have other ties to the United States, other clients will have to go before a judge to see if they can stay in the country. Danilov, a Russian national, and Veliev, an Azerbaijan national, are permanent U.S. residents. Mr. Danilov was in jail on the day of the hearing.
Clearly the memorandum initial reading makes it sound as a victory for CIS. First notice that it seems that CIS expedited the name check for Mr. Danilov after he filed the lawsuit. Second, I studied the memorandum thoroughly and I found number of flows (in my opinion) in it.
The text of 8 U.S.C. § 1447(b) is:
"If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such 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."
First let me quote the question presented by Judge T.S. Ellis, III in the case:
“Plaintiff contends that the examination consists of the interview and that the 120 day period thus began to run in his case on January 9, 2004, the date he was interviewed by CIS officials. Defendants (CIS), in response, contend that the 120 day period began to run no earlier than March 24, 2005, the date CIS received plaintiff’s FBI background investigation. The question presented, therefore, is at what point it may be said that the statutorily required “examination” is completed so as to trigger the commencement of the 120 day period.”
The judge analysis and answer was:
“The answer to this question is found in the statute itself, as elucidated in the CIS implementing regulations. To begin with, § 1446(b) makes clear that an examination is not a single event, but instead is essentially a process the agency follows to gather information concerning the applicant. Thus the statute provides that an “examination” may include the issuance of subpoenas to compel the attendance and testimony of witnesses and the production of relevant papers, books and documents and the taking of testimony concerning any matter touching or affecting the admissibility of any applicant for naturalization.4 8 U.S.C. § 1446(b). Significantly, Congress, more recently, has added another, very important requirement for the examination process: Effective beginning in fiscal year 1998, Congress now requires completion and review of an FBI criminal background investigation of the applicant as part of the examination process. See Public Law 105-119, Title I, Nov. 26, 1997, 111 Stat. 2448.5 To implement this additional requirement, the responsible agency adopted a regulation requiring that the FBI complete a criminal background investigation of an applicant before the examination may be completed. See 8 C.F.R. § 335.2. 6 And, importantly, these regulations are entitled to Chevron deference as an authoritative interpretation of the statute unless, as is not true here, it appears from the statute or its legislative history that the agency’s interpretation is not one that Congress would have sanctioned.
From this, it follows, as the defendants (CIS) correctly contend, that the interview of plaintiff that occurred in January 2004 did not end the statutorily-required “examination” and thus trigger the running of the 120 day period, since the interview occurred long before CIS received plaintiff’s FBI background investigation. Rather, the January 2004 interview is merely a part of the overall examination process, as is a review of plaintiff’s FBI background investigation, and the 120 day period does not begin to run until these and all other aspects of the examination process are completed. In this case, therefore, the 120 day period began to run, at the earliest, on March 24, 2005, the date on which CIS received the FBI background investigation of plaintiff.”
I think this opinion ignores number of important facts:
1- It mixes between criminal background investigation based on fingerprint and name check. It is clear that the criminal background check mandated by congress has been initiated and completed before the interview.
2- The opinion says that the interview made is not the initial examination. Rather it is part of a process. This process is completely controlled by CIS and CIS has the say it was completed or not. Although I am not lawyer, but this interpretation makes the 120-days rule mandated by the statute irrelevant. That means no Petitioner will be able to bring his case to a district court simply because CIS will ask for dismissal because they are still in the examination process and the 120 days did not start yet, Which will void U.S.C. § 1447(b).
3- This memorandum states that the 120 days begins when the FBI complete and forward the name check results to CIS. The memorandum ignores that the name check is not the one mandated by congress, rather the criminal background check through fingerprints is the one mandated by congress.
4- Although the judge is interpreting the examination as a “process” and the initial interview does NOT mark the end of it, the judge did not address the essence of this case which a mandamus action to carry the government to move forward with a “stalled” process. The opinion makes it sound like CIS and FBI has been investigating Danilov for two years, which is not the case; rather his application was stalled and forgot maybe in an FBI analyst Desk for two years due to the understaffed and under funded FBI name check program, which is the government problem not the applicant's.
A very important, very important thing in this case is the following: Mr. Danilov filed his lawsuit in 02/03/2005. FBI completed his name check in 03/23/2005, which is after almost five weeks of filing his lawsuit.
5- The name check is authorized under 8 CFR 335.1which requires an “investigation of the applicant”. All “pertinent records” may be investigated for this purpose. This section, in my opinion, authorizes the FBI name check. Thus, it is not part of the “examination” in 8 CFR 335.2. The investigation of the applicant is not the examination of the applicant.
6- The criminal background check mentioned in 8 CFR 335.2(b) is the only check required by statute or codified regulation. The wording of 8 CFR 335.2(b)(3) clearly shows that the criminal background check refers to the check conducted using the applicants fingerprints. This check is completed prior to the initial examination. My criminal background check was completed before April 25, 2005.
7- 8 CFR 335, and more specifically 335.2(c) describe the “examination” as single event and not a process of events. Furthermore, 335.2(e) states that “at the conclusion of the examination….the affidavit [(N-400, Page 10, Part 13)] must then be subscribed and sworn to, or affirmed, by the applicant and signed by the Service officer.” This clearly states when the “conclusion of the examination” occurs and regardless of any unresolved issues, a decision on the application must be made within a 120-day period. I signed part 13 of the application at the request of the examining officer. Thus our “examination” on the interview day.
Congress’ Policy Objectives
Finally, acceptance of the USCIS’s interpretation of 8 U.S.C. § 1447(b) would undermine the main public policy objectives that Congress sought to further by enacting the Immigration Act of 1990.
A central purpose of the statute was to reduce the waiting time for naturalization applicants. See H.R. Rep. No. 101-187, at 8 (1989); 135 Cong. Rec. H4539-02, H4542 (1989) (statement of Rep. Morrison). This purpose of § 1447(b) will be frustrated if district courts are required to share concurrent jurisdiction with the USCIS. The USCIS will no longer have much incentive to act on a naturalization application within the 120-day period. That is so because the USCIS will retain jurisdiction even when an applicant requests a hearing from the district court until the district court grants or denies the application, which takes significant additional time even in the most current of districts. Thus, allowing the USCIS to retain jurisdiction over a naturalization application even after the USCIS fails to act will frustrate Congress’ intent to require the USCIS to make a determination within 120 days of an applicant’s examination.
Further, in enacting the statute Congress intended to streamline the process of applying for naturalization and intended to reduce the burdens on courts and the USCIS. See H.R. Rep. No. 101-187, at 8; 135 Cong. Rec. H4539-02, H4543 (statement of Rep. Smith). If we were to accept the USCIS’s reading of § 1447(b), the resulting procedure would lead to a waste of time and resources because district courts and the USCIS would often engage in unnecessary duplication of factual investigations and legal analyses. In cases in which the USCIS eventually denied an application, the district court would be required to dismiss or stay an applicant’s § 1447(b) action, wait for the applicant to exhaust administrative remedies and, if the applicant requested it, engage in a de novo review of the USCIS’s decision and hold another hearing under § 1421(c). The district courts and the USCIS are both overburdened with other pressing matters, and giving them concurrent jurisdiction over delayed naturalization applications frustrates Congress’ intent to reduce the burdens on the USCIS and the district courts.
Finally, the sponsors of the legislation intended to give naturalization applicants the power to choose which forum would adjudicate their applications. As the representative who introduced the proposed statute on the House floor noted, “n this legislation, it is the applicant, not the government, who decides the place and the setting and the timeframe in which the application will be processed.” 135 Cong. Rec. H4539-02, H4542 (statement of Rep. Morrison) (emphasis added). Allowing the USCIS to continue to exercise jurisdiction over an application even after the naturalization applicant has elected to have the district court decide the application would frustrate the sponsors’ intent. When interpreting statutes, courts look to congressional intent revealed in the history and purposes of the statutory scheme. Buckland, 289 F.3d at 565.
I have listed the laws that states what is examination and what is investigation very clearly and straightforward language.
§ 335.1 Investigation of applicant.
Subsequent to the filing of an application for naturalization, the Service shall conduct an investigation of the applicant. The investigation shall consist, at a minimum, of a review of all pertinent records, police department checks, and a neighborhood investigation in the vicinities where the applicant has resided and has been employed, or engaged in business, for at least the five years immediately preceding the filing of the application. The district director may waive the neighborhood investigation of the applicant provided for in this paragraph.
[56 FR 50497, Oct. 7, 1991]
§ 335.2 Examination of applicant.
(a) General. Subsequent to the filing of an application for naturalization, each applicant shall appear in person before a Service officer designated to conduct examinations pursuant to §332.1 of this chapter. The examination shall be uniform throughout the United States and shall encompass all factors relating to the applicant's eligibility for naturalization. The applicant may request the presence of an attorney or representative who has filed an appearance in accordance with part 292 of this chapter.
(b) Completion of criminal background checks before examination. The Service will notify applicants for naturalization to appear before a Service officer for initial examination on the naturalization application only after the Service has received a definitive response from the Federal Bureau of Investigation that a full criminal background check of an applicant has been completed. A definitive response that a full criminal background check on an applicant has been completed includes:
(1) Confirmation from the Federal Bureau of Investigation that an applicant does not have an administrative or a criminal record;
(2) Confirmation from the Federal Bureau of Investigation that an applicant has an administrative or a criminal record; or
(3) Confirmation from the Federal Bureau of Investigation that two properly prepared fingerprint cards (Form FD–258) have been determined unclassifiable for the purpose of conducting a criminal background check and have been rejected.
(c) Procedure. Prior to the beginning of the examination, the Service officer shall make known to the applicant the official capacity in which the officer is conducting the examination. The applicant shall be questioned, under oath or affirmation, in a setting apart from the public. Whenever necessary, the examining officer shall correct written answers in the application for naturalization to conform to the oral statements made under oath or affirmation. The Service officer shall maintain, for the record, brief notations of the examination for naturalization. At a minimum, the notations shall include a record of the test administered to the applicant on English literacy and basic knowledge of the history and government of the United States. The Service officer may have a stenographic, mechanical, electronic, or videotaped transcript made, or may prepare an affidavit covering the testimony of the applicant. The questions to the applicant shall be repeated in different form and elaborated, if necessary, until the officer conducting the examination is satisfied that the applicant either fully understands the questions or is unable to understand English. The applicant and the Service shall have the right to present such oral or documentary evidence and to conduct such cross-examination as may be required for a full and true disclosure of the facts.
(e) Record of examination. At the conclusion of the examination, all corrections made on the application form and all supplemental material shall be consecutively numbered and listed in the space provided on the applicant's affidavit contained in the application form. The affidavit must then be subscribed and sworn to, or affirmed, by the applicant and signed by the Service officer. The affidavit shall be executed under the following oath (or affirmation): “I swear (affirm) and certify under penalty of perjury under the laws of the United States of America that I know that the contents of this application for naturalization subscribed by me, and the evidence submitted with it, are true and correct to the best of my knowledge and belief.” Evidence received by the officer shall be placed into the record for determination of the case. All documentary or written evidence shall be properly identified and introduced into the record as exhibits by number, unless read into the record. A deposition or statement taken by a Service officer during the initial examination or any subsequent examination shall be included as part of the record on the application.
[56 FR 50497, Oct. 7, 1991, as amended at 58 FR 49913, Sept. 24, 1993; 63 FR 12987, 12988, Mar. 17, 1998]
§ 335.3 Determination on application; continuance of examination.
(a) The Service officer shall grant the application if the applicant has complied with all requirements for naturalization under this chapter. A decision to grant or deny the application shall be made at the time of the initial examination or within 120-days after the date of the initial examination of the applicant for naturalization under §335.2. The applicant shall be notified that the application has been granted or denied and, if the application has been granted, of the procedures to be followed for the administration of the oath of allegiance pursuant to part 337 of this chapter.
(b) Rather than make a determination on the application, the Service officer may continue the initial examination on an application for one reexamination, to afford the applicant an opportunity to overcome deficiencies on the application that may arise during the examination. The officer must inform the applicant in writing of the grounds to be overcome or the evidence to be submitted. The applicant shall not be required to appear for a reexamination earlier than 60 days after the first examination. However, the reexamination on the continued case shall be scheduled within the 120–day period after the initial examination, except as otherwise provided under §312.5(b) of this chapter. If the applicant is unable to overcome the deficiencies in the application, the application shall be denied pursuant to §336.1 of this chapter.
[56 FR 50497, Oct. 7, 1991, as amended at 58 FR 49914, Sept. 24, 1993]
If you noticed the difference between the use of the term examination v. investigation, it clearly states that the examination is a single event or the interview, not a process.
I am also attaching an internal notice regarding the FBI name check Expedite Criteria, which contradicts with what you informed me over the phone that "there is no way to expedite the FBI name check". Therefore, while it is not my first choice to resort to a judicial determination on my application, I nevertheless feel that I have no other choice given the lack of response to my many requests. Further, I recognize that litigation is expensive for me (and for the Government), however, I reluctantly feel like that is the path I am forced to take. I have showed my good will intentions, and offered my utmost cooperation to try to solve this issue before it goes to trial; however, unfortunately all my efforts went astray, and I will be more than happy to fight my case in court to establish and claim my rights in being a citizen of this great country.
I would like to make it clear that, filing a civil action against the government as a Pro Se, does not mean that I am defenseless. I am willing, ready, prepared and determined to establish a precedent in the Fourth Circuit Court, and even might go all the way to the Supreme Court to decide this matter once and for all if I have to, for all the 180,000 N-400 and I-485 applicants who stuck in the FBI name check. For, if any one of these applicants represents a threat, the FBI wouldn’t wait on them for 1, 2, 3 or more years to clear their names or identify them as a threat, and if that’s the case then God help us all.
Sincerely,
xxxxxxxxx
P.S: I am filing this letter and the other attached documents as exhibits with the USDC
