cacd07 said:
Paz,
Wouldn't it make sense to ask AUSA to add something like "the Oath should be scheduled in YY days otherwise..." so that he can avoid the risk of being denied? If they refused to add something like that or he can sense a denial in some ways wouldn't it be more beneficial to keep the adjudication power with the court? -- Unless the potential denial is based on something the court also honors...
Yes, it is possible to add a sentence like: "If application is approved, USCIS should schedule an Oath Ceremony in YY days after the order to remand".
Unfortunately, you can't ask the court to order the oath ceremony without this "if". Adjudication is non-discretionary, approval or denial is discretionary.
When USCIS signals the court that it is ready to adjudicate the application, the judge will not retain the case in court for (at least) two reasons:
1) "More generally, a remand is consistent with the rule that, “[g]enerally speaking, a court . . . should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.” Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355 (2002). The Supreme Court has cited a number of considerations in support of this “ordinary remand” rule:
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 informed discussion and analysis, help a court later determine whether its decision exceeds the leeway that the law provides.
Ventura, 537 U.S. at 17, 123 S. Ct. at 355-56.
The Court further observed that this preference for remand “has obvious importance in the immigration context.” 537 U.S. at 16-17, 123 S. Ct. at 355; see also Gonzales v. Thomas, __ S. Ct. __, 2006 WL 986378, at *3 (U.S. Apr. 17, 2006) (finding, in another immigration case, that there was “no special circumstance here” that warranted a deviation from the “ordinary remand” rule)."
This citation is from the judge's opinion and order in the Khelifa v. Chertoff case, see attached to this post.
2). It is easier for the judge to let USCIS determine the matter than to conduct a de novo judicial review and a hearing.
Here is a further citation from the above mentioned case:
"Yet, even with the benefit of a completed background investigation, this Court still would confront many of the concerns that the “ordinary remand” rule seeks to address. It is one matter, after all, to review the results of Plaintiff’s background check, but another matter entirely to interpret these results. As explained in the declaration of CIS official Jack Lin, an applicant undergoes a number of different background checks, with each of these initial checks potentially unearthing “derogatory” information that warrants further investigation. Plainly, CIS and the federal law enforcement agencies with which it works in the investigative process have a great deal more expertise than the Court in both (i) identifying the potentially problematic information that has been uncovered in a background check, and (ii) following up to determine whether this information truly reflects legitimate national security or public safety concerns, or instead is merely a “false positive.” Thus, while Plaintiff’s background check is now complete, the Court still sees considerable benefit in allowing CIS to make the first assessment as to whether any information disclosed in this investigation has any bearing upon Plaintiff’s eligibility for citizenship. First and foremost, CIS has the experience and expertise in making this assessment — and, more generally, in determining whether an applicant meets all of the various criteria for naturalization — while the Court has neither. Next, any subsequent judicial review — a function that does lie within the Court’s experience and expertise — would be considerably aided by an agency analysis and explanation as to why it acted as it did on Plaintiff’s application. Finally, as a practical matter, now that all barriers to a determination seemingly have been removed, CIS is just as likely as this Court to promptly decide Plaintiff’s application — and, indeed, Defendants have stated their willingness and ability to make a decision within 90 to 120 days if so ordered by the Court."
