Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
- Start date
Hi Bobbyren,bobbyren said:
You need to put your name for "Name of Server" and your signature in the "Return of Service" form.
You do need to file this form with the court together with the receipts.
The law doesn't allow you to serve defendants only if you want to serve them in person. If your service is by mail, it is ok for you to do it yourself.
Hope this helps.
Updates#2
US Attorney called me this morning and agree with me on 30 days extension ….
I wish the best to all of us ......
Mr LA said:Hello everyone …..
I want to share with you my updates. I just hang-up with US Attorney , he informed me that the USCIS have sent my name check on July 05 “ the same week I filed my N-400” and now they “ USCIS” requesting to expiated my name check to the FBI . He is asking me for 60 or 90 days extension , I told him I will be more then happy to give him 30 day’s , so he said he need to make some phone calls and he will call me back. So will see
I wish the best to all of us ......
US Attorney called me this morning and agree with me on 30 days extension ….
I wish the best to all of us ......
sfaizullah
Registered Users (C)
sfaizullah said:
Dear all,
I just wanted to first THANK all of you here; all of you are considerable source of strength and BELIEVE ME that you can understand this when YOU ARE HAVING ABSOLUTELY DOWN FEELING like I did about 10 days ago. THANK YOU!!!
I think I am refocused now.
I also wanted to keep you updated about my case. I just ckecked PACER and found that Asst US Attorney (assigned to my case) has asked for an extension (from 07/14/06 to 07/31/06). I guess this is just a routine thing that is done to buy time. I don't think I can do much about it and ask the judge to deny. Can I?
The letter is simple: "Application is hereby made pursuant to L.Civ.R.6.1(b) for Clerk's Order extending time within which the named defendants may answer, move or otherwise reply to the Complaint filed by plaintiffs herein to July 29, 06 and it is represented that:
1. No previous extension has been obtained;
2. Service of process was effected on May 15, 2006;
3. Defendant's time to answer, move or otherwise respond expires on July 14, 2006;
4. Defendant expressly reserves the rights to contest jurisdiction and service of process.
Respectfully,
"
What is #4 about? Any thoughts Suzy, Mohamed, SuperK?
Also, the letter from Mr. Hooton seems to have done little help in expediting.
Please keep posting and strengthen this worthy work. Please also keep us in your thoughts.
Best Regards
Last edited by a moderator:
sfaizullah
Registered Users (C)
Mr LA said:
In my case I just saw it in PACER that the Asst US Attorney has asked for an extension without I knew anything about it. In CA they must have better courtesy code.
I think it is common to ask for 30 days.
Best Regards
Last edited by a moderator:
Please Help!!!!
HI Guys,
I have filed 1447b two months ago. I got a letter form the US Att. week before it was due (July 02) that he needs more time, 30 days.
I finally spoke to US Att. today, he kind of gave me disappointing news that my FBI name check is still pending and he is not sure if it will be completed before the next due date which is August03.
He said that its unfortunate but it looks like the case will be going to court and he will be filing his answer by end this month.
Now this is freaking me out, what if the case goes to court, I have no experience in this, I cant afford to hire a lawyer now. PLEASE GIVE ME SUGGESTIONS WHAT SHOULD I DO….
Thanks
070705 N400 interview
050206 1447b filed
0610/06 2nd FP
06/22/06 Received a letter from US Att. for another 30 days extension
08/03/06 ANSWER DUE
HI Guys,
I have filed 1447b two months ago. I got a letter form the US Att. week before it was due (July 02) that he needs more time, 30 days.
I finally spoke to US Att. today, he kind of gave me disappointing news that my FBI name check is still pending and he is not sure if it will be completed before the next due date which is August03.
He said that its unfortunate but it looks like the case will be going to court and he will be filing his answer by end this month.
Now this is freaking me out, what if the case goes to court, I have no experience in this, I cant afford to hire a lawyer now. PLEASE GIVE ME SUGGESTIONS WHAT SHOULD I DO….
Thanks
070705 N400 interview
050206 1447b filed
0610/06 2nd FP
06/22/06 Received a letter from US Att. for another 30 days extension
08/03/06 ANSWER DUE
Hi everyone,
Today I have made my first call to US Attorney since I filed my petition on June 09, 2006. Well, I found out the name of assigned AUSA to my case but didnt have a luck to talk to her. I had to leave a message.
Hopefully she returns my phone call within next 2 days otherwise I am going to keep calling her.
I also talked to the clerk of the district court and asked her if I should expect any Order which sets the time and date for the Preliminary Pretrial Conference from the Judge or anything else. I was told that the judge will wait for the Defendants answer to my complaint. Is it sound right?
Today I have made my first call to US Attorney since I filed my petition on June 09, 2006. Well, I found out the name of assigned AUSA to my case but didnt have a luck to talk to her. I had to leave a message.
Hopefully she returns my phone call within next 2 days otherwise I am going to keep calling her.
I also talked to the clerk of the district court and asked her if I should expect any Order which sets the time and date for the Preliminary Pretrial Conference from the Judge or anything else. I was told that the judge will wait for the Defendants answer to my complaint. Is it sound right?
sfaizullah
Registered Users (C)
fredk41 said:
Please ready my postings above.. We all go through these moments of panic.... It is natural and in my view also healthy.
There is still sufficient time for them to sort things out in your case (08/03/06 is still more than 20 days away). All this mess can be sorted in a short period of time for an individual case.
I believe that the Asst US Att. just wants to take the tough stance just in case. Most likely it will settle before that. Just in case you do end up in court, this is so straight forward that a 4th grade student can read the statute and deduce that Congress only gave 120 days to USCIS. That's the fact and the good news is that even those lazy friends of our also realize this. In my opinion you should familiarize yourself for next steps (I am doing the same) and be prepared but again I believe it will be done before that.
Cheer up!
And do your homework.Best Regards
sfaizullah
Registered Users (C)
buggin said:
Thanks Buggin. Let's see what will happen. I am now thinking to start my homework for next step with the assumption that we will go to court. Asst.
US attorney only asked for only two weeks extension though.
Your case seems to have moved faster. What District court did you file?
Best Regards
Last edited by a moderator:
response from AUSA (input please)
DEFENDANTS’ MOTION TO DISMISS AND REMAND AND SUPPORTING
MEMORANDUM
The Defendants move the Court to dismiss the instant action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and remand it to the Houston District Office of the United States Citizenship and Immigration Services (USCIS), Department of Homeland Security.1 The sole issue
before the Court is whether plaintiff’s application for naturalization can be approved by this Court prior to completion of the required FBI national security background check.
I. Summary of Facts and Issue
There is no dispute as to the procedural posture of this case. On June 29, 2005, the FBI received the USCIS request to perform a national security background check, commonly known as the “FBI name check,” on the Plaintiff as a result of his application for naturalization. USCIS interviewed Plaintiff
on January 3, 2006. Plaintiff has passed the requisite tests of English, U.S. history and government. Plaintiff has provided the requisite fingerprints for FBI processing. However, USCIS has not been able to make a decision on Plaintiff’s application because USCIS has not received the results of the
FBI national security background check. See Declaration of Sharon A. Hudson, District Director, Houston, Texas office of USCIS, attached as Exhibit 1; see also Declaration of Michael A. Cannon, Section Chief, National Name Check Program Section, FBI, attached as Exhibit 2.
Plaintiff asks this Court to render a declaratory judgment that he is a naturalized citizen of the United States pursuant to 8 U.S.C. §1447(b), since more than 120 days have elapsed since Defendant USCIS initially interviewed him. Plaintiff further claims that this Court may additionally
administer the oath and swear him in as a United States citizen without completion of the national security background checks.
Defendants submit that, even if the Court has subject matter jurisdiction under 8 U.S.C. §1447 (b) (an unsettled issue of law, see note 3), the complaint fails to state a claim upon which relief may be granted, as the Court is not able to conduct the requisite national security background
investigation. Defendants ask the Court to remand the case so that the FBI background check may be completed.
II. Argument
A. The naturalization process
In order to become a U.S. citizen, an applicant must meet the statutory requirement of 3 8 U.S.C. §1427(a), including, inter alia, sufficient periods of residency and physical presence, and a record of “good moral character.” Congress has directed the Attorney General to make the
necessary rules and regulations to determine if the applicant meets the requirements. 8 U.S.C. §1443(a). The Attorney General and his designee must perform a thorough background investigation of each applicant for naturalization in order to confirm that the applicant is eligible for
naturalization. 8 U.S.C. §1446(a) & (b).
The naturalization process has five stages. The process is initiated when an applicant submits a naturalization application. The filing of the application generates an appointment to attend a fingerprint center for electronic submission of biometrics; provide supporting information pertaining
to the applicant’s good moral character; and provide a complete account of any criminal background. 8 U.S.C. §1445(a); 8 C.F.R. §§ 334.2 & 316.4.
Second, the USCIS conducts a background investigation of the applicant, including but not limited to review of all pertinent USCIS and police records. 8 U.S.C. §1446(a). 8 C.F.R. §§335.1 and 335.2 clarify that the personal investigation includes a review of all pertinent records such as police department checks and completion of an FBI fingerprint clearance prior to initial examination. Additionally, Congress added the FBI full criminal background check in 1997. Public Law 105-119, Title I, Nov. 26, 1997, 111 Stat. 2448, provides in part that: During fiscal year 1998 and each fiscal year thereafter, none of the funds appropriated or otherwise made available to the Immigration and Naturalization Service shall be used to complete adjudication of an application for naturalization unless the Immigration and Naturalization
Service has received confirmation from the Federal Bureau of Investigation
that a full criminal background check has been completed, except for those
exempted by regulation as of January 1, 1997. (Emphasis added.)
After enactment of this Public Law, the legacy Immigration and Naturalization Service (INS) (predecessor to USCIS and other federal agencies now under the Department of Homeland Security) published changes to the criminal background check procedures to comply with the new law.
Initially, the USCIS had interpreted 335.2 (b) to require only that the USCIS receive the results of the 2 FBI fingerprint check prior to interviewing naturalization applicants. Recently, however, the USCIS has instructed its
employees to cease scheduling naturalization interviews until all background checks have been completed.
3 The name check process is described in Ex. 1.2-1, “National Name Check Program Frequently Asked Questions” and in Ex. 2, the Declaration of Michael Cannon.
4 Specifically, INS amended 8 C.F.R. §335.2 to require completion of criminal background checks prior to examination.2 The FBI name check has historically always been a requirement for both naturalization and
adjustment to lawful permanent resident status, and was historically generated from the Form G-325 biographical data document (naturalization applications) or the Form G-325A biographical data document (adjustment of status applications). See Hudson Declaration and attachments.3 Although
the required FBI name check historically posed no significant delays or barriers, in part because of pre 9/11 policy to proceed if no derogatory information was received within a certain period of time, this is no longer true in our post 9/11 world. Created by the Homeland Security Act of 2003, Pub.L.
No. 107-296, 116 Stat. 2135 (Nov. 25, 2002), the USCIS is the agency charged by Congress with responsibility for determining whether to grant or deny applications for benefits under the immigration laws, including applications for naturalization.
Completion of background security checks can be a lengthy process, but they are an integral and crucial prerequisite to citizenship. As the court noted in Alkenani v. Barrows, 356 F.Supp.2d 652, 657 (N.D. Tex. 2005), “delays of this nature are inevitable and becoming more frequent in light of heightened security concerns in the post 9/11 world.” Completion and resolution of the FBI name
check process in a naturalization applicant’s favor is a necessary prerequisite to citizenship. See, e.g., Alkenani, supra; Danilov v. Aguirre, 370 F.Supp.2d 441 (E.D.Va. 2005); El-Daour v. Chertoff, 417 F. Supp.2d 679 (W.D.Pa. 2005); Essa v. USCIS, 2005 WL 3440827 (D. Minn. Dec. 14, 2005);
Daami v. Gonzales, 2006 WL 1457862 (D.N.J. May 22, 2006) (unpublished); Khelifa v. Chertoff, ___ F.Supp.2d ___, 2006 WL 1593972 (E.D. Mich. June 9, 2006).
In the third stage, the applicant is interviewed by an examiner who is authorized to grant or 5 deny the application. 8 U.S.C. §1446(b) & (d); 8 C.F.R.§ 335.3. In the fourth stage, the application is decided. If the application is denied, the applicant may request an administrative hearing before a senior immigration examiner. 8 U.S.C. §1447(a); 8 C.F.R. § 336.2. If the examiner upholds the denial, the applicant may seek a de novo review in
federal district court. 8 U.S.C. § 1421©; 8 C.F.R. § 336.9(b) & (c). If, however, USCIS fails to make an initial decision on the naturalization application within 120 days after the initial naturalization interview, an applicant may seek a hearing on his or her naturalization application in
the United States district court in which the applicant resides. 8 USC § 1447(b). The district court may either determine the matter or remand the matter, with instructions, to the USCIS to determine the matter.
In the fifth and final stage, an applicant whose naturalization application has been granted must take the oath of allegiance and be admitted to citizenship. 8 USC § 1447(a). No decision on an application for naturalization is final or completed and no applicant is naturalized unless and until
the applicant takes the official oath of allegiance under section 1447(a). Sebastian-Soler v. U.S. Atty. Gen., 409 F.3d 1280, 1284 (11 Cir. 2005); U.S. v. Macintosh, 283 U.S. 605 (1931); th ; Girouard v. U.S., 328 U.S. 61 (1946).
B. The Court should remand the case because the national security background check has not been completed. 8 U.S.C. §1447(b) provides as follows:
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.
The USCIS is not able to complete its adjudication of Plaintiff’s naturalization petition
In Danilov v. Aguirre, 370 F.Supp.2d 441 (E.D. Va. 2005) the court found it did not have subject 4 matter
jurisdiction. The Danilov court viewed the 120 day period as beginning at the time the FBI background check, and
“all other aspects of the examination process” are completed. Id. at 444. As noted in Khelifa, other courts to have
considered the issue have not followed the reasoning in Danilov because it does not square with the language of
§1447(b), which provides the 120 day period begins on “the date on which the examination is conducted.” Khelifa
at *3.
6
because it has not received the results of the FBI name check. Because the name check is critical
to making a determination, Defendants submit that, assuming the Court has subject matter
jurisdiction pursuant to 8 U.S.C. §1447(b), the Court should remand the case to the USCIS for the
reasons set out in El-Daour:4
...while I am confident that I have subject matter jurisdiction over El-
Daour’s application, I must remand the action to the CIS. Section 1447(b)
permits a court to “remand the matter, with appropriate instructions, to the
Service to determine the matter.” Certainly, I sympathize with El-Daour’s
plight. He is understandably anxious to complete the naturalization process
so he can fully enjoy the benefits of United States citizenship. Yet the very
reason that the CIS did not process El-Daour’s application within 120 days
of his examination prevents me from deciding his application. The FBI has
not completed the criminal background check. This is a vital piece of
information. A court is not equipped to conduct such an investigation. I do
not have the resources at my disposal to determine whether El-Daour presents
a risk to national security or to public safety.
417 F. Supp. 2d at 683 (internal citations omitted). See also Essa, 2005 WL 3440827 at *2 (“the
court finds itself unable to adjudicate either application for the very reason CIS has been precluded
from making a final decision – the FBI background check has not been completed”); Daami, 2006
WL 1457862 at *5 (“f CIS does not make a decision within 120 days, and the applicant applies
to the district court for relief, the court is in the same position as CIS – unable to make a decision
on a naturalization application until all the facts are in, including the background check from the
FBI”); Sweilem v. USCIS, 2005 WL 1123582 (N.D. Ohio May 10, 2005)(unpublished) (court
assumed subject matter jurisdiction under 1447(b) but remanded to USCIS to await the final FBI
security clearance).
7
A remand is consistent with the general rule that a court should remand a case to an agency
for decision of a matter that statutes place primarily in agency hands. As set forth in Immigration
and Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002):
The agency can bring its expertise to bear upon the matter; it can evaluate the
evidence; it can make an initial determination; and, in doing so, it can,
through informal discussion and analysis, help a court later determine
whether its decision exceeds the leeway that the law allows.
Ventura at 17. This preference for remand has “obvious importance in the immigration context.”
Id. at 16-17.
C. A naturalization applicant must strictly comply with all requirements for United
States citizenship, including national security background checks.
In the United States of America, “[n]o alien has the slightest right to naturalization unless all
statutory requirements are complied with.” United States v. Ginsberg, 243 U.S. 472, 475 (1917).
“Failure to comply with any [congressionally imposed] conditions renders the certificate of
citizenship illegally procured, and naturalization that is unlawfully procured can be set aside.”
Fedorenko v. United States, 449 U.S. 490, 506 (1981). The statutory naturalization requirements
are strictly construed and enforced. Id., 449 U.S. at 506.
In particular, an applicant for United States citizenship must establish and maintain “good
moral character, demonstrate attachment to the principles of the Constitution of the United States,
and be well disposed to the good order and happiness of the United States.” 8 USC § 1427(a).
Unless and until an applicant for citizenship in the United States completes all criminal and national
security background checks as mandated by Congress, that mandatory demonstration of character,
attachment, and favorable disposition to the good order and happiness of the United States cannot
be shown.
III. Conclusion
District courts do not have the resources to conduct or resolve the mandatory criminal and
national security background checks necessary to determine whether an individual should be granted
citizenship. Indeed, even the USCIS lacks all the necessary resources, which is why the agency must
partially refer the national security background check to the FBI. Thus, the Defendants move the
Court to dismiss and remand the case to the USCIS to await the result of the FBI name check and
then complete the processing of the Plaintiff’s application accordingly.
Dated: July 7, 2006
Respectfully submitted,
DONALD J. DeGABRIELLE, JR.
United States Attorney
DEFENDANTS’ MOTION TO DISMISS AND REMAND AND SUPPORTING
MEMORANDUM
The Defendants move the Court to dismiss the instant action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and remand it to the Houston District Office of the United States Citizenship and Immigration Services (USCIS), Department of Homeland Security.1 The sole issue
before the Court is whether plaintiff’s application for naturalization can be approved by this Court prior to completion of the required FBI national security background check.
I. Summary of Facts and Issue
There is no dispute as to the procedural posture of this case. On June 29, 2005, the FBI received the USCIS request to perform a national security background check, commonly known as the “FBI name check,” on the Plaintiff as a result of his application for naturalization. USCIS interviewed Plaintiff
on January 3, 2006. Plaintiff has passed the requisite tests of English, U.S. history and government. Plaintiff has provided the requisite fingerprints for FBI processing. However, USCIS has not been able to make a decision on Plaintiff’s application because USCIS has not received the results of the
FBI national security background check. See Declaration of Sharon A. Hudson, District Director, Houston, Texas office of USCIS, attached as Exhibit 1; see also Declaration of Michael A. Cannon, Section Chief, National Name Check Program Section, FBI, attached as Exhibit 2.
Plaintiff asks this Court to render a declaratory judgment that he is a naturalized citizen of the United States pursuant to 8 U.S.C. §1447(b), since more than 120 days have elapsed since Defendant USCIS initially interviewed him. Plaintiff further claims that this Court may additionally
administer the oath and swear him in as a United States citizen without completion of the national security background checks.
Defendants submit that, even if the Court has subject matter jurisdiction under 8 U.S.C. §1447 (b) (an unsettled issue of law, see note 3), the complaint fails to state a claim upon which relief may be granted, as the Court is not able to conduct the requisite national security background
investigation. Defendants ask the Court to remand the case so that the FBI background check may be completed.
II. Argument
A. The naturalization process
In order to become a U.S. citizen, an applicant must meet the statutory requirement of 3 8 U.S.C. §1427(a), including, inter alia, sufficient periods of residency and physical presence, and a record of “good moral character.” Congress has directed the Attorney General to make the
necessary rules and regulations to determine if the applicant meets the requirements. 8 U.S.C. §1443(a). The Attorney General and his designee must perform a thorough background investigation of each applicant for naturalization in order to confirm that the applicant is eligible for
naturalization. 8 U.S.C. §1446(a) & (b).
The naturalization process has five stages. The process is initiated when an applicant submits a naturalization application. The filing of the application generates an appointment to attend a fingerprint center for electronic submission of biometrics; provide supporting information pertaining
to the applicant’s good moral character; and provide a complete account of any criminal background. 8 U.S.C. §1445(a); 8 C.F.R. §§ 334.2 & 316.4.
Second, the USCIS conducts a background investigation of the applicant, including but not limited to review of all pertinent USCIS and police records. 8 U.S.C. §1446(a). 8 C.F.R. §§335.1 and 335.2 clarify that the personal investigation includes a review of all pertinent records such as police department checks and completion of an FBI fingerprint clearance prior to initial examination. Additionally, Congress added the FBI full criminal background check in 1997. Public Law 105-119, Title I, Nov. 26, 1997, 111 Stat. 2448, provides in part that: During fiscal year 1998 and each fiscal year thereafter, none of the funds appropriated or otherwise made available to the Immigration and Naturalization Service shall be used to complete adjudication of an application for naturalization unless the Immigration and Naturalization
Service has received confirmation from the Federal Bureau of Investigation
that a full criminal background check has been completed, except for those
exempted by regulation as of January 1, 1997. (Emphasis added.)
After enactment of this Public Law, the legacy Immigration and Naturalization Service (INS) (predecessor to USCIS and other federal agencies now under the Department of Homeland Security) published changes to the criminal background check procedures to comply with the new law.
Initially, the USCIS had interpreted 335.2 (b) to require only that the USCIS receive the results of the 2 FBI fingerprint check prior to interviewing naturalization applicants. Recently, however, the USCIS has instructed its
employees to cease scheduling naturalization interviews until all background checks have been completed.
3 The name check process is described in Ex. 1.2-1, “National Name Check Program Frequently Asked Questions” and in Ex. 2, the Declaration of Michael Cannon.
4 Specifically, INS amended 8 C.F.R. §335.2 to require completion of criminal background checks prior to examination.2 The FBI name check has historically always been a requirement for both naturalization and
adjustment to lawful permanent resident status, and was historically generated from the Form G-325 biographical data document (naturalization applications) or the Form G-325A biographical data document (adjustment of status applications). See Hudson Declaration and attachments.3 Although
the required FBI name check historically posed no significant delays or barriers, in part because of pre 9/11 policy to proceed if no derogatory information was received within a certain period of time, this is no longer true in our post 9/11 world. Created by the Homeland Security Act of 2003, Pub.L.
No. 107-296, 116 Stat. 2135 (Nov. 25, 2002), the USCIS is the agency charged by Congress with responsibility for determining whether to grant or deny applications for benefits under the immigration laws, including applications for naturalization.
Completion of background security checks can be a lengthy process, but they are an integral and crucial prerequisite to citizenship. As the court noted in Alkenani v. Barrows, 356 F.Supp.2d 652, 657 (N.D. Tex. 2005), “delays of this nature are inevitable and becoming more frequent in light of heightened security concerns in the post 9/11 world.” Completion and resolution of the FBI name
check process in a naturalization applicant’s favor is a necessary prerequisite to citizenship. See, e.g., Alkenani, supra; Danilov v. Aguirre, 370 F.Supp.2d 441 (E.D.Va. 2005); El-Daour v. Chertoff, 417 F. Supp.2d 679 (W.D.Pa. 2005); Essa v. USCIS, 2005 WL 3440827 (D. Minn. Dec. 14, 2005);
Daami v. Gonzales, 2006 WL 1457862 (D.N.J. May 22, 2006) (unpublished); Khelifa v. Chertoff, ___ F.Supp.2d ___, 2006 WL 1593972 (E.D. Mich. June 9, 2006).
In the third stage, the applicant is interviewed by an examiner who is authorized to grant or 5 deny the application. 8 U.S.C. §1446(b) & (d); 8 C.F.R.§ 335.3. In the fourth stage, the application is decided. If the application is denied, the applicant may request an administrative hearing before a senior immigration examiner. 8 U.S.C. §1447(a); 8 C.F.R. § 336.2. If the examiner upholds the denial, the applicant may seek a de novo review in
federal district court. 8 U.S.C. § 1421©; 8 C.F.R. § 336.9(b) & (c). If, however, USCIS fails to make an initial decision on the naturalization application within 120 days after the initial naturalization interview, an applicant may seek a hearing on his or her naturalization application in
the United States district court in which the applicant resides. 8 USC § 1447(b). The district court may either determine the matter or remand the matter, with instructions, to the USCIS to determine the matter.
In the fifth and final stage, an applicant whose naturalization application has been granted must take the oath of allegiance and be admitted to citizenship. 8 USC § 1447(a). No decision on an application for naturalization is final or completed and no applicant is naturalized unless and until
the applicant takes the official oath of allegiance under section 1447(a). Sebastian-Soler v. U.S. Atty. Gen., 409 F.3d 1280, 1284 (11 Cir. 2005); U.S. v. Macintosh, 283 U.S. 605 (1931); th ; Girouard v. U.S., 328 U.S. 61 (1946).
B. The Court should remand the case because the national security background check has not been completed. 8 U.S.C. §1447(b) provides as follows:
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.
The USCIS is not able to complete its adjudication of Plaintiff’s naturalization petition
In Danilov v. Aguirre, 370 F.Supp.2d 441 (E.D. Va. 2005) the court found it did not have subject 4 matter
jurisdiction. The Danilov court viewed the 120 day period as beginning at the time the FBI background check, and
“all other aspects of the examination process” are completed. Id. at 444. As noted in Khelifa, other courts to have
considered the issue have not followed the reasoning in Danilov because it does not square with the language of
§1447(b), which provides the 120 day period begins on “the date on which the examination is conducted.” Khelifa
at *3.
6
because it has not received the results of the FBI name check. Because the name check is critical
to making a determination, Defendants submit that, assuming the Court has subject matter
jurisdiction pursuant to 8 U.S.C. §1447(b), the Court should remand the case to the USCIS for the
reasons set out in El-Daour:4
...while I am confident that I have subject matter jurisdiction over El-
Daour’s application, I must remand the action to the CIS. Section 1447(b)
permits a court to “remand the matter, with appropriate instructions, to the
Service to determine the matter.” Certainly, I sympathize with El-Daour’s
plight. He is understandably anxious to complete the naturalization process
so he can fully enjoy the benefits of United States citizenship. Yet the very
reason that the CIS did not process El-Daour’s application within 120 days
of his examination prevents me from deciding his application. The FBI has
not completed the criminal background check. This is a vital piece of
information. A court is not equipped to conduct such an investigation. I do
not have the resources at my disposal to determine whether El-Daour presents
a risk to national security or to public safety.
417 F. Supp. 2d at 683 (internal citations omitted). See also Essa, 2005 WL 3440827 at *2 (“the
court finds itself unable to adjudicate either application for the very reason CIS has been precluded
from making a final decision – the FBI background check has not been completed”); Daami, 2006
WL 1457862 at *5 (“f CIS does not make a decision within 120 days, and the applicant applies
to the district court for relief, the court is in the same position as CIS – unable to make a decision
on a naturalization application until all the facts are in, including the background check from the
FBI”); Sweilem v. USCIS, 2005 WL 1123582 (N.D. Ohio May 10, 2005)(unpublished) (court
assumed subject matter jurisdiction under 1447(b) but remanded to USCIS to await the final FBI
security clearance).
7
A remand is consistent with the general rule that a court should remand a case to an agency
for decision of a matter that statutes place primarily in agency hands. As set forth in Immigration
and Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002):
The agency can bring its expertise to bear upon the matter; it can evaluate the
evidence; it can make an initial determination; and, in doing so, it can,
through informal discussion and analysis, help a court later determine
whether its decision exceeds the leeway that the law allows.
Ventura at 17. This preference for remand has “obvious importance in the immigration context.”
Id. at 16-17.
C. A naturalization applicant must strictly comply with all requirements for United
States citizenship, including national security background checks.
In the United States of America, “[n]o alien has the slightest right to naturalization unless all
statutory requirements are complied with.” United States v. Ginsberg, 243 U.S. 472, 475 (1917).
“Failure to comply with any [congressionally imposed] conditions renders the certificate of
citizenship illegally procured, and naturalization that is unlawfully procured can be set aside.”
Fedorenko v. United States, 449 U.S. 490, 506 (1981). The statutory naturalization requirements
are strictly construed and enforced. Id., 449 U.S. at 506.
In particular, an applicant for United States citizenship must establish and maintain “good
moral character, demonstrate attachment to the principles of the Constitution of the United States,
and be well disposed to the good order and happiness of the United States.” 8 USC § 1427(a).
Unless and until an applicant for citizenship in the United States completes all criminal and national
security background checks as mandated by Congress, that mandatory demonstration of character,
attachment, and favorable disposition to the good order and happiness of the United States cannot
be shown.
III. Conclusion
District courts do not have the resources to conduct or resolve the mandatory criminal and
national security background checks necessary to determine whether an individual should be granted
citizenship. Indeed, even the USCIS lacks all the necessary resources, which is why the agency must
partially refer the national security background check to the FBI. Thus, the Defendants move the
Court to dismiss and remand the case to the USCIS to await the result of the FBI name check and
then complete the processing of the Plaintiff’s application accordingly.
Dated: July 7, 2006
Respectfully submitted,
DONALD J. DeGABRIELLE, JR.
United States Attorney
30 days after teh initial 60?
Mr. LA;
did the attornet request you to wait the 30 days after filing, or after the intial 60 days that makes it a total of 90 days of wait????
Thanks for your posts, they are extremely helpful, and yes, I will take your advice, and file after exactly 128 days
Mr. LA;
did the attornet request you to wait the 30 days after filing, or after the intial 60 days that makes it a total of 90 days of wait????
Thanks for your posts, they are extremely helpful, and yes, I will take your advice, and file after exactly 128 days
fredk41 said:
Fredk41,
This is not a goot time to freak out. You need to stay focused as you have some work to do.
First, you need to wait till the US Atty files his answer. Then you will know what you will have to fight in your opposition to the answer.
Meanwhile, read the Pro Se Handbook on the Case Management Conference and on "meeting and conferring" with the opposing party. These are required by all courts. The whole idea of this "meeting and conferring" rule is to get both sides to meet and discuss the basis of their claims and see if they can still settle. Courts want the litigants to settle as fast as possible because it saves a lot of taxpayers' money and also leaves time for courts to litigate complicated crimes or issues. So, if the US Atty in your case is not able to get the defendants resolve this issue before trial, the judge is not going to be happy with him.
Your job is to prove to the judge that you have been willing to get the issue resolved and not go to trial, that you have been cooperating with the US Atty, allowing them to have additional time, etc.
Read cases posted on this forum, like the one I am attaching here. They will give you an idea on what to do.
Good luck!