Thanks, yes Mass case and it beat this weak argument
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
__________________
Houston DO
