Hi Oleg;
Clearly the memorandum intital reading makes it sound as a victory for CIS. First notice that it seems CIS expediated the name check for Mr. Danilov after he filed the lawsuit. Second, I studied the memorandum thoroughly and I found number of flows (in my opinion) in it.
First let me quote the question presented by judge in the case:
“Plaintiff contends that the examination consists of the interview and that the 120 day period thus began to run in his case on January 9, 2004, the date he was interviewed by CIS officials. Defendants (CIS), in response, contend that the 120 day period began to run no earlier than March 24, 2005, the date CIS received plaintiff’s FBI background investigation. The question presented, therefore, is at what point it may be said that the statutorily required “examination” is completed so as to trigger the commencement of the 120 day period.”
The judge analysis and answer was:
“The answer to this question is found in the statute itself, as elucidated in the CIS implementing regulations. To begin with, § 1446(b) makes clear that an examination is not a single event, but instead is essentially a process the agency follows to gather information concerning the applicant. Thus the statute provides that an “examination” may include the issuance of subpoenas to compel the attendance and testimony of witnesses and the production of relevant papers, books and documents and the taking of testimony concerning any matter touching or affecting the admissibility of any applicant for naturalization.4 8 U.S.C. § 1446(b). Significantly, Congress, more recently, has added another, very important requirement for the examination process: Effective beginning in fiscal year 1998, Congress now requires completion and review of an FBI criminal background investigation of the applicant as part of the examination process. See Public Law 105-119, Title I, Nov. 26, 1997, 111 Stat. 2448.5 To implement this additional requirement, the responsible agency adopted a regulation requiring that the FBI complete a criminal background investigation of an applicant before the examination may be completed. See 8 C.F.R. § 335.2. 6 And, importantly, these regulations are entitled to Chevron deference as an authoritative interpretation of the statute unless, as is not true here, it appears from the statute or its legislative history that the agency’s interpretation is not one that Congress would have sanctioned.
From this, it follows, as the defendants (CIS) correctly contend, that the interview of plaintiff that occurred in January 2004 did not end the statutorily-required “examination” and thus trigger the running of the 120 day period, since the interview occurred long before CIS received plaintiff’s FBI background investigation. Rather, the January 2004 interview is merely a part of the overall examination process, as is a review of plaintiff’s FBI background investigation, and the 120 day period does not begin to run until these and all other aspects of the examination process are completed. In this case, therefore, the 120 day period began to run, at the earliest, on March 24, 2005, the date on which CIS received the FBI background investigation of plaintiff.”
I think this opinion ignore number of important facts:
1- It mixes between criminal background investigation based on fingerprint and name check. It is clear that the criminal background check mandated by congress has been initiated and completed before the interview.
2- The opinion says that the interview made is not the initial examination. Rather it is part of a process. This process is completely controlled by CIS and CIS has the say it was completed or not. Although I am not lawyer, but this interpretation makes the 120-days rule mandated by the statute irrelevant. That means no Petitioner will be able to bring his case to a district court simply because CIS will ask for dismissal because they are still in the examination process and the 120 days did not start yet.
3- This memorandum states that the 120 days begins when the FBI complete and forward the name check results to CIS. The memorandum ignores that the name check is not the one mandated by congress, rather the criminal background check through fingerprints is the one mandated by congress.
4- Although the judge is interpreting the examination as a “process” and the initial interview does NOT mark the end of it, the judge did not address the essence of this case which a mandamus action to carry the government to move forward with a “stalled” process. The opinion makes sound like CIS and FBI has been investigating Danilov for two years. I don’t think this the case; rather his application was stalled and forgot maybe in an FBI analyst Desk for two year.
A very important, very important thing notice in this case is the following: Mr. Danilov filed his lawsuit in 02/03/2005. FBI completed his name check in 03/23/2005, which is after almost five weeks of filing his lawsuit!!!!!!!!!!!!!!!!!
Thanks
Steve;
I am not a lawyer, and whatever is written above is just a personal opinion.
