Writ of Mandamus - - Another Good Case for a Long-Delayed Naturalization Applicant
On November 4, 2008, the U.S. District Court for the Eastern District of Michigan decided a Writ of Mandamus matter that was a good decision for a green card holder who waited over 7 years for the USCIS to make a decision on his N-400 application for naturalization. The case, Atmeh v. Chertoff, is another of example of why, in an appropriate case, an applicant should consider filing a Writ of Mandamus to compel the USCIS to make a decision on an application in which the delay is unreasonable and inexplicable.
In this case, the Plaintiff filed his N-400 naturalization application back on April 16, 2001. His naturalization interview took place on April 24, 2002 and at the end of the interview, he was told that he had passed the English and U.S. history and government tests and that his application was recommended for approval, subject to completion of a background check.
Then, for six years (!) he heard nothing further from the USCIS. Finally, on April 4, 2008, the Plaintiff filed a Writ of Mandamus in an effort to compel the USCIS to act on his N-400. In June of 2008, the USCIS received the results of Plaintiff's security name check and it re-interviewed him. In the Mandamus litigation, the USCIS claimed it still could not decide Plaintiff's application until it performed a "full criminal background check".
The Court began is decision by noting that under the Immigration and Nationality Act, if the USCIS fails to make a determination on a naturalization application before the end of the 120-day period after the date on which the naturalization examination is conductedthen the applicant can ask a United States federal district court to decide his or her application.
Here, the Plaintiff's interview took place in April, 2002 and the 120 day period had long ago gone by but the Court still had to decide whether to decide the N-400 itself (which is what the Plaintiff wanted) or to remand the case back to the USCIS for it to make a decision (which is what the USCIS wanted). The Court agreed with the Plaintiff.
The Court agreed that in many mandamus litigation matters, a court will remand the case back to the USCIS for the USCIS to make a decision but the court will maintain oversight over the process so that there is some assurance that the USCIS will actually act. However, those other cases didn’t involve anything close to the delay of 84 months in this case. The Court held that remanding this case would not guarantee that the USCIS would act without additional delay, even with oversight.
Therefore, the Court retained jurisdiction over the N-400 naturalization application and scheduled the case for a conference, presumably to set a full hearing date on the application.
On November 4, 2008, the U.S. District Court for the Eastern District of Michigan decided a Writ of Mandamus matter that was a good decision for a green card holder who waited over 7 years for the USCIS to make a decision on his N-400 application for naturalization. The case, Atmeh v. Chertoff, is another of example of why, in an appropriate case, an applicant should consider filing a Writ of Mandamus to compel the USCIS to make a decision on an application in which the delay is unreasonable and inexplicable.
In this case, the Plaintiff filed his N-400 naturalization application back on April 16, 2001. His naturalization interview took place on April 24, 2002 and at the end of the interview, he was told that he had passed the English and U.S. history and government tests and that his application was recommended for approval, subject to completion of a background check.
Then, for six years (!) he heard nothing further from the USCIS. Finally, on April 4, 2008, the Plaintiff filed a Writ of Mandamus in an effort to compel the USCIS to act on his N-400. In June of 2008, the USCIS received the results of Plaintiff's security name check and it re-interviewed him. In the Mandamus litigation, the USCIS claimed it still could not decide Plaintiff's application until it performed a "full criminal background check".
The Court began is decision by noting that under the Immigration and Nationality Act, if the USCIS fails to make a determination on a naturalization application before the end of the 120-day period after the date on which the naturalization examination is conductedthen the applicant can ask a United States federal district court to decide his or her application.
Here, the Plaintiff's interview took place in April, 2002 and the 120 day period had long ago gone by but the Court still had to decide whether to decide the N-400 itself (which is what the Plaintiff wanted) or to remand the case back to the USCIS for it to make a decision (which is what the USCIS wanted). The Court agreed with the Plaintiff.
The Court agreed that in many mandamus litigation matters, a court will remand the case back to the USCIS for the USCIS to make a decision but the court will maintain oversight over the process so that there is some assurance that the USCIS will actually act. However, those other cases didn’t involve anything close to the delay of 84 months in this case. The Court held that remanding this case would not guarantee that the USCIS would act without additional delay, even with oversight.
Therefore, the Court retained jurisdiction over the N-400 naturalization application and scheduled the case for a conference, presumably to set a full hearing date on the application.
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