Preperation
huxf said:
Wenlock / paz 1960!
I have the exactly same feeling as sfdurrani. please give us imformation about this to prepare for the worst.
I agree you should hope for best and prepare for the worst. I am putting together all important cases and judgement arguments. Here is some important information I found on the web.
COURT DEVELOPMENTS
Courts Reject Danilov in Natz Delay Actions, Finding Jurisdiction
(Posted 12/6/06)
Numerous district courts nationwide are rejecting the government’s arguments that Danilov v. Aguirre, 370 F. Supp 2d 441 (E.D. Va. 2005) applies. Instead, the courts are finding that they have jurisdiction over petitions for hearing on naturalization applications brought under INA § 336(b), 8 U.S.C. § 1447(b), even when the FBI check is not complete.
The INA requires the government to make a determination on naturalization applications within 120 days of the interview (i.e., the “examination.”) If the application is not adjudicated 120 days after the “examination is conducted,” under INA § 336(b), an applicant may file a petition in district court seeking judicial adjudication of the application or a remand to USCIS. The government takes the position that the “examination” encompasses the entire process that USCIS uses to gather information about an applicant, including the completion of the FBI check. Therefore, the government argues, if the FBI check still is pending, the 120-day period has not begun running. The district court in Danilov adopted this reasoning and dismissed the petition where the FBI check was not complete. At least four courts have followed Danilov.
Kassemi v. DHS, 06-1010, 2006 US Dist Lexis 74516 (D.N.J. Oct. 13, 2006)
Walji v. Gonzales, 06-1163 (S.D. Tex. dismissed Oct. 6, 2006)
Damra v. Chertoff, No. 05-929, 2006 U.S. LEXIS 45563 (N.D. Ohio 2006)
Abdelkhaleq v. BCIS Dist. Dir., No. 06-427, 2006 U.S. LEXIS 50949 (N.D. Ind. 2006)
Other courts, however, interpret the 120-day period as running from the date of the naturalization interview.
U.S.A. v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004)
Khelifa v. Chertoff, 433 F. Supp. 2d 836 (E.D. Mich. 2006)
Castracani v. Chertoff, 377 F. Supp. 2d 71 (D.D.C. 2005)
Shalabi v. Gonzales, No. 06-866, 2006 U.S. Dist. Lexis 77096 (E.D. Mo. Oct. 23, 2006)
Said v. Gonzales, No. 06-986, 2006 U.S. Dist. Lexis 67750 (W.D. Wash. Sept. 21, 2006)
Meyersiek v. USCIS, No. 05-398, 2006 U.S. Dist. LEXIS 37255 (D.R.I. 2006)
Daami v. Gonzales, No. 05-3667, 2006 U.S. Dist. LEXIS 37539 (D.N.J. 2006)
Zhang v. Chertoff, No. 05-72121, 2006 U.S Dist. LEXIS 45313 (E.D. Mich. 2006)
Khan v. Chertoff, No. 05-560, 2006 U.S. Dist. LEXIS 48937 (D. Ariz. 2006)
Al-Kudsi v. Gonzales, No. 05-1584 (D. Ore. Mar. 22, 2006) (unpublished)
Shalan v. Chertoff, No. 05-10980, 2006 U.S. Dist. LEXIS 253 (D. Mass. 2006)
Saidi v. Jenifer, No. 05-71832, 2005 U.S. Dist. LEXIS 35466 (E.D. Mich. 2005)
Essa v. USCIS, No. 05-1449, 2005 U.S. Dist. LEXIS 38803 (D. Minn. 2005)
El-Daour v. Chertoff, No. 04-1911, 2005 U.S. Dist. LEXIS 18325 (W.D. Pa. 2005)
Angel v. Ridge, No. 04-4121, 2005 U.S. Dist. LEXIS 10667 (S.D. Ill. 2005)
Sweilem v. USCIS, No. 05-125, 2005 U.S. Dist. LEXIS 19630 (N.D. Ohio 2005)
Despite finding jurisdiction over the petitions, many of the courts ultimately declined to adjudicate the applications and remanded to CIS because the FBI checks were not complete. In several cases where the FBI checks had been completed, the courts still remanded the naturalization applications to CIS for adjudication. Notably, in Meyersiek v. USCIS, the district court, after rejecting Danilov and finding jurisdiction over the case, held a hearing on the merits of the naturalization application. The case docket and filed documents are available on PACER.
In another case of particular note, Al-Kudsi v. Gonzales, the district court ordered Attorney General Gonzales to instruct the FBI to complete a name check for a naturalization applicant awaiting a decision for several years. The court said that if USCIS did not receive a completed name check within 90 days, USCIS shall treat that failure as a successfully completed name check and issue the certificate of naturalization. In a footnote, the court observed that the FBI is a component of the Department of Justice. Thus, it was important that the petitioner in the INA § 336(b) action had named not only DHS officials, but the Attorney General as well. The court’s order is available on PACER.
Jurisdiction Over Natz Application After INA § 336(b) Action Filed
(Posted 11/20/06)
In cases of first impression in the Fourth Circuit, the court is considering whether DHS has jurisdiction to adjudicate a naturalization petition after a petition for naturalization is filed with the district court under INA 336(b). The cases are Etape v. Chertoff, No. 06-1916 and Rahim v. Caterisano, et al., No. 06-1990. AILF's Legal Action Center filed an amicus brief in support of the petitioners on November 16, 2006. The LAC argues that the district court has sole jurisdiction over a naturalization case filed under INA § 336(b).
District Court Sua Sponte Dismisses Natz Delay Suits Under Danilov
(Posted 11/7/06)
Four § 336(b) suits in the district court for the Southern District of Texas, Houston were dismissed sua sponte for alleged lack of subject matter jurisdiction prior to service of the complaints on defendant. The court based its dismissals on the fact that the 120-day period had not been triggered because the FBI checks had not been completed. The dismissal follows the reasoning set forth in Danilov v. Aguirre, 370 F. Supp 2d 441 (E.D. Va. 2005), discussed below.
AILF’s Legal Action Center filed amicus letter briefs in support of motions to reconsider in each of the four cases. In its letter briefs, AILF argued that sua sponte dismissal was inappropriate under Fifth Circuit law because the conclusion that it lacked jurisdiction was also a decision on the merits of the plaintiff’s cause of action. Plaintiffs thus were entitled to an opportunity to brief the issue prior to the court ruling. Days after the motions were filed, the court summarily denied two of the motions. Let us know if a court similarly dismisses your client’s petition. Email us at
clearinghouse@ailf.org.
The four cases were dismissed by the same judge. Other judges in this district have not dismissed cases under the theory that the 120-day period has not been triggered because the FBI checks are not complete.
Class Actions Filed; Call for Plaintiffs
(Posted 8/14/06)
Three class actions filed during the spring and summer 2006 ask the courts to order CIS to issue decisions on naturalization applications pending for more than 120 days after the interview. The complaints name DHS and CIS officers as plaintiffs, but also name the Attorney General and the Director of the FBI. The complaints allege that the FBI fails to complete background checks within a reasonable amount of time.
The first case, Alsamman v. Gonzales, No. 06-2518, was filed May 4, 2006 in the United States District Court for the Northern District of Illinois. The plaintiffs filed an amended complaint on June 23, 2006. The plaintiffs are represented by the Competition Law Group LLC, National Immigrant Justice Center, and the Council on American-Islamic Relations, Chicago Chapter. The proposed class consists of "[a]ll Muslim males, or those males appearing Muslim on the basis of their ethnic heritage due to their national origin, who are or will be LPRs applying for naturalization to become US citizens, and whose swearing in ceremony has been delayed more than 120 days since the applicant passed his naturalization interview." On July 18, 2006, the government filed a motion to dismiss.
The second case, Yakubova v. Chertoff, 06 Civ. 3203, was filed on June 28, 2006 in the United States District Court for the Eastern District of New York. The plaintiffs, represented by the New York Legal Assistance Group, are naturalization applicants residing in Kings, Nassau, Queens, Richmond and Suffolk counties in New York State. The plaintiffs have filed a motion for class certification, and the defendants have indicated that they will be filing a motion to dismiss.
The third case, Aziz v. Gonzales, was filed by the ACLU of Southern California, the ACLU Immigrants Rights Project and the Counsel on American-Islamic Relations, California Chapter on August 1, 2006 in the United States District Court for the Central District of California. A press release and the complaint are available here.
The current proposed class in the California case includes immigrants who submitted their applications at the CIS Los Angeles Office and its suboffices and who have been awaiting a decision for more than 120 days after their interviews. Attorneys for the plaintiffs are considering expanding the class throughout the Ninth Circuit. If you have a Ninth Circuit client whose case has been pending for more than 120 days after the interview, please contact Cecillia Wang at
cwang@aclu.org or (415) 343-0775 for information about possible participation in the lawsuit.
