CIRCUMVENTING NATURALIZATION DELAYS:
HOW TO GET JUDICIAL RELIEF UNDER 8 USC § 1447(B) FOR A
STALLED NATURALIZATION APPLICATION
By: Linda Rose and Mary Kenney
Date: Amended May 25, 2004 ((Note 2) 2)
Return to Practice Advisory Homepage
BACKGROUND
Your client filed an application, and finally, after a two year wait, CIS interviews your client. All goes well. The examiner tells you that your client will be scheduled for a swearing-in date in due time. More time goes by . . . three months . . . four months . . . six months . . . . Your client is becoming increasing anxious and impatient. And to top it off, the prolonged delay makes it look like you’re not doing a good job.
Of course you’ve made all the phone calls, faxes, and e-mails you could to USCIS and AILA liaison. And the Congressional Aide knows nothing more than you, namely, the case remains pending.
Your initial inclination might be to file a Mandamus Complaint . But in this particular scenario, where the interview has already taken place, you can do something better -- file a Petition for Hearing on Naturalization Application in the United States District Court.
1. THE APPLICABLE LAW
INA Section 336(b), 8 U.S.C. § 1447(b), specifically provides for judicial review for a stalled naturalization petition in these circumstances. It states as follows:
If there is a failure to make a determination under [INA] § 335 [8 U.S.C. § 1446] 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.
In short, the statute says that if more than 120 days have passed since the naturalization interview, the applicant can seek judicial relief. The judicial relief can come in two forms:
1) An adjudication of the naturalization application in court and by the court, or
2) A remand to CIS for immediate adjudication.
Which form of relief you choose to seek is a strategy decision that will depend on a number of factors, such as the merits of the case, the attitude of the local office, and the federal judge hearing the case. In many cases, however, you will likely want to ask the court to decide the application, rather than submit to the delays associated with further agency proceedings.
2. WHEN CAN THE FEDERAL COURT INTERVENE?
The statute is very specific in identifying precisely when a naturalization applicant can ask the district court to intervene and decide the case due to agency delay: when the agency fails to make a decision on the application within 120 days after the examination. 8 U.S.C. § 1447(b). (Note 3)The examination referred to is the initial interview scheduled under 8 U.S.C. § 1446(a). See also 8 C.F.R. § 335.2.
In some offices, examiners may ask – or sometimes pressure – the applicant to sign a waiver of the 120-day decision deadline. An applicant is not required to sign such a waiver. It is wise to consider your response to this possibility in advance, and to prepare your client In limited circumstances, it may be to your client’s benefit to sign the waiver – such as when he or she needs additional time to prepare for the civics test
In many cases, CIS continues the initial examination on the naturalization applicant and instructs the applicant to submit additional evidence. CIS will then schedule a reexamination of the applicant. See 8 C.F.R. § 335.3(b). Even when this happens, however, CIS still must make its decision within 120 days of the initial examination. The government might claim that this is not correct, and instead argue that the 120-day period does not begin to run until after the reexamination. For example, in a case in which the initial examination has been continued, if a § 1447(b) suit is filed 140-days after the initial examination, but prior to the reexamination being scheduled, the government may claim that the suit is premature. Neither the statute nor the regulations support this position, however. In fact, the regulations specifically differentiate between an “initial” examination and a “reexamination” following a continuance. 8 C.F.R. § 335.3(b) (“[T]he reexamination on the continued case shall be scheduled within 120 days of the initial examination”). The regulations then reiterate that the decision must be made within 120 days of the “first” examination. See 8 C.F.R. § 336.1(a).
Obviously, the period between the initial examination and CIS’ initial decision is not the only period of delay in naturalization cases. CIS often delays in scheduling the initial examination and also delays in holding a hearing and making a decision after an administrative appeal. However, by its terms, 8 U.S.C. § 1447(b) is not available to redress these delays. See, e.g., Langer v. McElroy , No. 00-2741, 2002 U.S. Dist. LEXIS 123847 (S.D. N.Y. Dec. 16, 2002) (no jurisdiction under § 1447(b) where agency delays in acting on the administrative appeal) (unpublished decision). Where extensive delays occur at these other stages of the agency’s adjudication, a mandamus action in district court might be appropriate. In a mandamus action, however, the sole relief available would be for the court to order CIS to act on the application. Unlike § 1447(b), mandamus does not give the court the jurisdiction to actually decide the application. For more on mandamus actions, see AILF’s practice advisory entitled Mandamus Actions: “How To” and Summary of Relevant Case Law, http://www.ailf.org/lac/lac_pa_071803.asp . (Note 4)
3. NUTS AND BOLTS
A. Notifying the Government of Your Intention to File
As a practical matter, you should request cooperation by CIS before filing the petition. In many cases you will already have sent status inquiries and might have used your Congressional liaison. (Note 5) Also, as a strategic matter, you should send a copy of the “draft” petition to the CIS and to the U.S. Attorney and indicate a deadline when you intend to file the petition. This will give the U.S. Attorney an opportunity to put some pressure on the CIS to adjudicate the application and to avoid the time and expense of litigation. It might also save your client a major expense. If the CIS does not respond by your stated deadline, DO NOT HESITATE to file the petition. Otherwise, you will have damaged your credibility in the future. Do not threaten to file the petition unless you absolutely intend to do so.
B. Filing the Petition
As the statute directs, you must file the case in the district court for the district in which your client resides. The statute does not specify exactly how to “apply” to the court for a hearing. But what seems to satisfy the judicial process is a document entitled “Petition for Hearing on Naturalization Application.” This pleading is not much more complicated than a Petition for Review. Every district court has local rules, so be sure to consult the local rules regarding filing the petition.
In the pleading, you need to set out the court’s jurisdiction, provide the pertinent dates, recite the procedural history of the naturalization application, and request the statutory relief. Since the statute provides the court with two options, you need to specify what it is you want the court to do. You can also ask for the other form of relief in the alternative. Be certain that at least 120 days have passed since the initial interview. Refer to the interview as the “examination” since this is the language used in the statute.
Additionally, where you are asking the court to decide the naturalization application, you can include in the petition allegations that your client satisfies all of the requirements for naturalization. You can also attach the naturalization application and other documents as exhibits to your petition.
C. Naming and Serving Defendants/Respondents
You must name as defendants/respondents the officers with responsibility over the processing of the naturalization application. Thus, the defendants/respondents will include the Attorney General; (Note 6) Secretary of the Department of Homeland Security Tom Ridge; Director of the United States Citizenship and Immigration Services (CIS) Eduardo Aguirre, Jr.; and the Director of the local CIS office that is handling your client’s naturalization application. You can also name the agency itself, CIS.
Rule 4(i) of the Federal Rules of Civil Procedure (FRCP) governs service of the summons in suits against the United States or its agencies, officers, or employees. Additionally, regulations for the Department of Homeland Security instruct that service of the summons and complaint in suits against DHS or its officers and employees is to be sent to the Office of General Counsel, United States Department of Homeland Security, Washington, DC, 20528. See 6 C.F.R. § 5.42(a). (Note 7)
After the summons and complaints have been served on all defendants/respondents, you will need to file proof of service with the court. See FRCP 4(l). Courts may have different procedures for doing this, so check your local rules and do not hesitate to place a call to the clerk. Court clerks are there to help and in most instances they are very helpful.
HOW TO GET JUDICIAL RELIEF UNDER 8 USC § 1447(B) FOR A
STALLED NATURALIZATION APPLICATION
By: Linda Rose and Mary Kenney
Date: Amended May 25, 2004 ((Note 2) 2)
Return to Practice Advisory Homepage
BACKGROUND
Your client filed an application, and finally, after a two year wait, CIS interviews your client. All goes well. The examiner tells you that your client will be scheduled for a swearing-in date in due time. More time goes by . . . three months . . . four months . . . six months . . . . Your client is becoming increasing anxious and impatient. And to top it off, the prolonged delay makes it look like you’re not doing a good job.
Of course you’ve made all the phone calls, faxes, and e-mails you could to USCIS and AILA liaison. And the Congressional Aide knows nothing more than you, namely, the case remains pending.
Your initial inclination might be to file a Mandamus Complaint . But in this particular scenario, where the interview has already taken place, you can do something better -- file a Petition for Hearing on Naturalization Application in the United States District Court.
1. THE APPLICABLE LAW
INA Section 336(b), 8 U.S.C. § 1447(b), specifically provides for judicial review for a stalled naturalization petition in these circumstances. It states as follows:
If there is a failure to make a determination under [INA] § 335 [8 U.S.C. § 1446] 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.
In short, the statute says that if more than 120 days have passed since the naturalization interview, the applicant can seek judicial relief. The judicial relief can come in two forms:
1) An adjudication of the naturalization application in court and by the court, or
2) A remand to CIS for immediate adjudication.
Which form of relief you choose to seek is a strategy decision that will depend on a number of factors, such as the merits of the case, the attitude of the local office, and the federal judge hearing the case. In many cases, however, you will likely want to ask the court to decide the application, rather than submit to the delays associated with further agency proceedings.
2. WHEN CAN THE FEDERAL COURT INTERVENE?
The statute is very specific in identifying precisely when a naturalization applicant can ask the district court to intervene and decide the case due to agency delay: when the agency fails to make a decision on the application within 120 days after the examination. 8 U.S.C. § 1447(b). (Note 3)The examination referred to is the initial interview scheduled under 8 U.S.C. § 1446(a). See also 8 C.F.R. § 335.2.
In some offices, examiners may ask – or sometimes pressure – the applicant to sign a waiver of the 120-day decision deadline. An applicant is not required to sign such a waiver. It is wise to consider your response to this possibility in advance, and to prepare your client In limited circumstances, it may be to your client’s benefit to sign the waiver – such as when he or she needs additional time to prepare for the civics test
In many cases, CIS continues the initial examination on the naturalization applicant and instructs the applicant to submit additional evidence. CIS will then schedule a reexamination of the applicant. See 8 C.F.R. § 335.3(b). Even when this happens, however, CIS still must make its decision within 120 days of the initial examination. The government might claim that this is not correct, and instead argue that the 120-day period does not begin to run until after the reexamination. For example, in a case in which the initial examination has been continued, if a § 1447(b) suit is filed 140-days after the initial examination, but prior to the reexamination being scheduled, the government may claim that the suit is premature. Neither the statute nor the regulations support this position, however. In fact, the regulations specifically differentiate between an “initial” examination and a “reexamination” following a continuance. 8 C.F.R. § 335.3(b) (“[T]he reexamination on the continued case shall be scheduled within 120 days of the initial examination”). The regulations then reiterate that the decision must be made within 120 days of the “first” examination. See 8 C.F.R. § 336.1(a).
Obviously, the period between the initial examination and CIS’ initial decision is not the only period of delay in naturalization cases. CIS often delays in scheduling the initial examination and also delays in holding a hearing and making a decision after an administrative appeal. However, by its terms, 8 U.S.C. § 1447(b) is not available to redress these delays. See, e.g., Langer v. McElroy , No. 00-2741, 2002 U.S. Dist. LEXIS 123847 (S.D. N.Y. Dec. 16, 2002) (no jurisdiction under § 1447(b) where agency delays in acting on the administrative appeal) (unpublished decision). Where extensive delays occur at these other stages of the agency’s adjudication, a mandamus action in district court might be appropriate. In a mandamus action, however, the sole relief available would be for the court to order CIS to act on the application. Unlike § 1447(b), mandamus does not give the court the jurisdiction to actually decide the application. For more on mandamus actions, see AILF’s practice advisory entitled Mandamus Actions: “How To” and Summary of Relevant Case Law, http://www.ailf.org/lac/lac_pa_071803.asp . (Note 4)
3. NUTS AND BOLTS
A. Notifying the Government of Your Intention to File
As a practical matter, you should request cooperation by CIS before filing the petition. In many cases you will already have sent status inquiries and might have used your Congressional liaison. (Note 5) Also, as a strategic matter, you should send a copy of the “draft” petition to the CIS and to the U.S. Attorney and indicate a deadline when you intend to file the petition. This will give the U.S. Attorney an opportunity to put some pressure on the CIS to adjudicate the application and to avoid the time and expense of litigation. It might also save your client a major expense. If the CIS does not respond by your stated deadline, DO NOT HESITATE to file the petition. Otherwise, you will have damaged your credibility in the future. Do not threaten to file the petition unless you absolutely intend to do so.
B. Filing the Petition
As the statute directs, you must file the case in the district court for the district in which your client resides. The statute does not specify exactly how to “apply” to the court for a hearing. But what seems to satisfy the judicial process is a document entitled “Petition for Hearing on Naturalization Application.” This pleading is not much more complicated than a Petition for Review. Every district court has local rules, so be sure to consult the local rules regarding filing the petition.
In the pleading, you need to set out the court’s jurisdiction, provide the pertinent dates, recite the procedural history of the naturalization application, and request the statutory relief. Since the statute provides the court with two options, you need to specify what it is you want the court to do. You can also ask for the other form of relief in the alternative. Be certain that at least 120 days have passed since the initial interview. Refer to the interview as the “examination” since this is the language used in the statute.
Additionally, where you are asking the court to decide the naturalization application, you can include in the petition allegations that your client satisfies all of the requirements for naturalization. You can also attach the naturalization application and other documents as exhibits to your petition.
C. Naming and Serving Defendants/Respondents
You must name as defendants/respondents the officers with responsibility over the processing of the naturalization application. Thus, the defendants/respondents will include the Attorney General; (Note 6) Secretary of the Department of Homeland Security Tom Ridge; Director of the United States Citizenship and Immigration Services (CIS) Eduardo Aguirre, Jr.; and the Director of the local CIS office that is handling your client’s naturalization application. You can also name the agency itself, CIS.
Rule 4(i) of the Federal Rules of Civil Procedure (FRCP) governs service of the summons in suits against the United States or its agencies, officers, or employees. Additionally, regulations for the Department of Homeland Security instruct that service of the summons and complaint in suits against DHS or its officers and employees is to be sent to the Office of General Counsel, United States Department of Homeland Security, Washington, DC, 20528. See 6 C.F.R. § 5.42(a). (Note 7)
After the summons and complaints have been served on all defendants/respondents, you will need to file proof of service with the court. See FRCP 4(l). Courts may have different procedures for doing this, so check your local rules and do not hesitate to place a call to the clerk. Court clerks are there to help and in most instances they are very helpful.
Last edited by a moderator:
