Paz, thank you for detailed answer!
You are totally right about necessity to "split hair" dealing with legal docs, so I appreciate you input even more for doing that! Also, I hope you wouldn't mind if I also do it here. (I really need to verify that my perception of things in the statues is correct. Because what I understood makes sense in itself and it is not that hard to follow its logic.)
I understand from your letter, that my appeal to "USCIS must consider N-400 within reasonable time" was not clear because from 1447(b) and 335 it talks about 120-day rule, and I should rewrite and clarify my framework accordingly.
My question though, is this: I actually combined Mandamus statues:
“With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it.” 5 U.S.C. § 555(b);
and:
“The reviewing court shall—
(1) compel agency action unlawfully withheld or unreasonably delayed;..” 5 U.S.C. §706(1).
and 120-time limit because of this logic:
1) IF INA and USC are the laws USCIS must obide, and as long as an n-400 applicant satisfies all 3 conditions for Mandamus, USCIS HAS (-meaning, it is not a discretion), to act on his application and justify its delay in processing it. So within Mandamus sense, USCIS must do all that "within reasonable time". So what is your logic when you said:
"But more generally, there is no mandatory timeframe how long USCIS can conduct an investigation and do all the other things they do BEFORE they call you for an interview. This is the interval between filing the N-400 application and the interview." -Doesn't USCIS still owes a duty to perform under Mandamus?
2) What I do need to show in my framework is, (As I understand-), there is no discretion allowed to USCIS because statues use the verb "shall" describing officer's action (Section 335.3):
"The Service officer shall grant the application if the applicant has complied with all requirements for naturalization under this chapter... The applicant shall be notified that the application has been granted or denied...
So for naturalization cases there is no discretion at all, as specific time frame is given (120 days) and it's all mandatory. For AOS cases Mandamus does not provide discretion either, but its reference to "reasonable time" without specifically stating what is reasonable, is the place where defence can wiggle and try to get out of it. (that's what you said: "the only remaining argument to attack their (-USCIS) inaction is the mandamus act and APA and in this case you have to demonstrate the well known 3 things, which is more complicated, because what is unreasonable, is discretionary.")
Do you agree with this logic?
3) Finally the last thing used in class action is not logical: they quote: 8 U.S.C. § 1571(b):
“It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application,..”They just argued before this point that adjudication is not a "benefit" but a "duty" owed to plaintiff and then proceed to use it (benefit) to streighten their argument (-I forgot to erase it from my framework). Also, you said:
"Unfortunately, this 180 day is not a mandatory time limit for any of the immigration benefits". Do you mean it's not mandatory because "“It is the sense of Congress"? In other words, Congress recommends it but not mandates it?
And very last but very important thing I stumbled upon: in several local 1447 cases I found a wrong statue quote: they quoted INA 336 (b). The Chapter 336 deals with DENIALS of naturalization applications. And there is no 336(b), but 336.9(b) which says:
336--HEARINGS ON DENIALS OF APPLICATIONS FOR NATURALIZATION
Sec. 336.9 Judicial review of denial determinations on applications for naturalization.(b) Filing a petition. Under these procedures an applicant shall ile a petition for review in the United States District Court having jurisdiction over his or her place of residence, in accordance with chapter 7 of title 5, United States Code, within a period of not more than 120 days after the Service's final determination. The petition for review shall be brought against the Immigration and Naturalization Service, and service of the petition for review shall be made upon the Attorney General of the United States, and upon the official in charge of the Service office where the hearing was held pursuant to Sec. 336.2. I found this misquote it three filed 1447(b) cases. They should have quoted sec. 335.3(a) (above). I was puzzled by it until I finally found the right part as I was studying the cases. It's a lesson for us to never take even a filed case for granted, but check and recheck before filing our cases!
Thank you very much again! I don't mean to be nit-picking but I really need to clarify it. I think for the law it would help if instead of precedents it was based on math-like precision. (like, if "reasonable time" was defined specifically for these cases how much time would it save!) Too bad it's not possible in most cases.
Shvili
OK, let's try this one more time. I forgot my pendrive at my work, so I can't cite specific paragraphs and cases, but I'll try my best to make my point without these.
The naturalization process has several steps, one follows the previous and you can't change the order of these steps.
After you apply for naturalization, USCIS initiates an investigation, which contains also the name check where most of us got stuck. There is no time limit prescribed in any of the statues or regulations, how much time they can take to complete this investigation. After this is done, they will examine the applicant, this is the interview. (USCIS usually disputes this and tries, in most of the cases unsuccessfully, to show that the examination is a process and the name check is part of it). From the day when USICS interviewed the applicant, 1447(b) kicks in and the 120 day clock start ticking. If they don't adjudicate the application, applicant can file a complaint with the district court and ask for a hearing. The court can conduct a hearing and decide the matter or can remand the matter to the Service with specific instructions.
So UNTIL the applicant didn't have his/her interview, there is no time limit for USCIS how long they can take to call you for the interview. In these cases only the mandamus+APA can help, but it is a lot more difficult case, because you have to prove that USCIS owes you a non discretionary duty to adjudicate your case without an unreasonable delay. What is unreasonable, it is discretionary and will depend on the court.
If you are lucky and you already had your interview, you don't need the mandamus because of 1447(b). The first thing is to fight the USCIS twisted interpretation of the word "examination" (they will claim that the name check is part of it so the 120 day clock didn't even start) to prove that the court has subject matter jurisdiction. But this is only half of the story, because no court will determine the matter (i.e., grant you citizenship) without the finished background check. So the judge will elect the second option conferred by 1447(b): to remand the case back to the Service. And here is the second critical issue: to convince the judge to order certain actions in certain timeframe. Otherways, if the remand is like: "USCIS should adjudicate application immediately after the FBI finishes the background check", this will not solve your problem.
You are correct when you put the emphasis on the word "shall" in your citation from 335.3. But only AFTER applicant has complied with all requirements for naturalization, which include also the "full criminal background check". The name check is part of it, so no name check completed, no adjudication. I wonder why so many people left out FBI from their defendants' list... Remeber: if the sequence is A then B then C..., you can't ask C before A and B is not finished. If you don't sue the agency responsible for B, the court can't compel them to complete B and if the court compels the agency responsible for C, without B being completed, the only way to comply with the court order is to deny the application, because the law mandated B before C.
Finally, you are right. "it is the sense of the Congress..." means that Congress recommends this timeframe but it is not mandatory. If this would be mandatory, all these cases (N-400, I-485) would be trivial. They didn't adjudicate in 180 days, so they broke the law and you can sue them. As you see from this forum and many, many WOM and 1447(b) cases, life is more complicated. Absolutely none of the lawsuits were won because this "it is the sense of the Congress...180 days..."
I hope that this helps.
