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Morral v. Gonzales: US District Court : IMMIGRATION | CIVIL PROCEEDURE - subject matter jurisdiction regarding naturalization appeals; remand

1 The Complaint purports to seek a declaration that the delay in adjudicating Morrals
application is unreasonable, and further seeks an injunction enjoining Defendants from unreasonably
Mark Morral,
Civ. No. 07-2736 (RHK/JSM)
Alberto Gonzales, et al.,
Hetal Delal, Wilson Law Group, Minneapolis, Minnesota, for Plaintiff.
D. Gerald Wilhelm, Assistant United States Attorney, Minneapolis, Minnesota, for
In this action, Plaintiff Mark Morral challenges the delay in adjudicating his
naturalization application by the Bureau of Citizenship and Immigration Services (CIS),
and he asks the Court to adjudicate the application under 8 U.S.C. 1447(b) or, in the
alternative, to remand it to CIS with instructions to adjudicate it within 60 days. He also
asserts that his due-process and equal-protection rights have been violated by CIS as a
result of the delay. Defendants now move to dismiss, arguing that the Court lacks subjectmatter
jurisdiction. For the reasons set forth below, the Court concludes that subjectmatter
jurisdiction exists, but that the matter should be remanded to CIS.1
delaying completion of [his] naturalization application. (Compl. at 13.) Yet, it is clear that the relief
Morral actually seeks is this Courts adjudication of his naturalization application or, alternatively,
remand to CIS with directions to adjudicate the application within 60 days. (See id. (asking the Court
to [g]rant Plaintiffs petition to be sworn in as a citizen of the United States); Mem. in Oppn at 13
(The Court should either adjudicate Mr. Morrals pending naturalization application or remand his
naturalization application to USCIS for [adjudication] within sixty days.).
2 8 C.F.R. 335 sets forth a multiple-step background-check process for naturalization
applicants, of which the FBI name check is but one step. Here, however, all steps in the background
check other than the FBI name check apparently have been completed.
The material facts in this case are undisputed. On December 28, 2005, Morral filed
a naturalization application (the Application) with CIS. On April 4, 2006, pursuant to 8
C.F.R. 335.2, CIS interviewed Morral concerning his Application, at which time he passed
the required English-language-proficiency evaluation and a test concerning his knowledge
and understanding of United States government and history. See 8 U.S.C. 1423(a)(1)-(2);
8 C.F.R. 335.2. The only remaining hurdle for the Application to be finally adjudicated,
therefore, was a Federal Bureau of Investigation (FBI) name check. See 8 C.F.R.
335.2(b).2 That name check has been pending since Morrals interview i.e., more than
eighteen months. In April 2007, Morral asked CIS about the status of his Application, but
he was told that his name check remains pending and that CIS cannot finally adjudicate the
Application without the results of the name check.
As a result of the delay in adjudicating his application, Morral commenced the
instant action against Alberto Gonzales, the former Attorney General of the United States;
Robert S. Mueller, III, the Director of the FBI; Michael Chertoff, the Secretary of the
Department of Homeland Security; Emilio Gonzalez, the Director of CIS; and Denise
3 Defendants Motion is primarily directed at Count 1 of the Complaint, which seeks this
Courts adjudication of Morrals naturalization application. In Count 2 of the Complaint, Morral has
asserted that the delay in adjudicating his application has violated his rights to due process and equal
protection. (Compl. at 12-13.) Defendants argue that Count 2 fails to state a claim, and the Court
agrees. First, assuming arguendo that there has been a due-process error here, Morral cannot
demonstrate any prejudice resulting from the error. See, e.g., Briones-Sanchez v. Heinauer, 319 F.3d
324, 327 (8th Cir. 2003) (due-process claimant must show actual prejudice). Indeed, he cannot
show that his application might have been adjudicated differently but for the error, since his application
has not yet been adjudicated. Al Khouri v. Ashcroft, 362 F.3d 461, 466 (8th Cir. 2004) (noting that
prejudice requires error potentially affecting outcome of proceedings). And, while the Court believes
that a significant delay in adjudicating a naturalization application might constitute prejudice under
appropriate circumstances, it does not believe that the delay in this case, standing alone, is sufficient to
constitute prejudice. Second, the equal-protection claim fails because Morral has not identified any
class of similarly situated persons who [have been] treated dissimilarly. Geach v. Chertoff, 444 F.3d
940, 945 (8th Cir. 2006). Indeed, the Complaint alleges that tens of thousands of applications for
naturalization have become hopelessly backlogged for the same reasons as his: the delay in receiving
FBI name-check results. (Compl. 15.) In any event, even if Morral had identified (and pleaded) a
similarly-situated class, he has nowhere pleaded that his dissimilar treatment resulted from intentional
and purposeful discrimination. See Antonishin v. Keisler, No. 06 CV 2518, 2007 WL 2788841, at
*9-10 (N.D. Ill. Sept. 20, 2007) (dismissing equal-protection claim where plaintiffs had not alleged
that defendants have purposefully favored one class of applicants over another when implementing the
Frazier, the Director of the St. Paul Field Office of CIS. The Defendants now move to
dismiss for lack of subject-matter jurisdiction.3
Defendants argue that the Court lacks subject-matter jurisdiction to adjudicate the
Application, but this argument need not detain the Court for long. In Repeshchuk v.
Gonzales, Civ. No. 07-2017, 2007 WL 2361450, at *1-4 (D. Minn. Aug. 15, 2007) (Kyle,
J.), this Court analyzed at length the controlling statutory and regulatory framework and
concluded that federal courts enjoy subject-matter jurisdiction to adjudicate naturalization
applications like Morrals. The Court perceives no reason to revisit its holding in
Repeshchuk, and it incorporates herein by reference its discussion of subject-matter
4 If anything, the conclusion that the Court enjoys subject-matter jurisdiction is stronger now
than it was in Repeshchuk. Prior to the Court issuing its opinion in that case, the Fifth Circuit, in Walji
v. Goznales, became the first appellate court to address the subject-matter jurisdiction question, holding
that federal courts lack subject-matter jurisdiction over claims seeking adjudication of naturalization
applications delayed due to pending name checks. This Court in Repeshchuk expressed its
disagreement with Walji and Danilov v. Aguirre, 370 F. Supp. 2d 441 (E.D. Va. 2005), upon which
Walji relied, and noted that a majority of federal courts had rejected the approach taken in those two
cases. After the Repeshchuk decision was issued, however, the Fifth Circuit withdrew its opinion in
Walji and subsequently reversed itself, concluding that federal courts do, indeed, enjoy subject-matter
jurisdiction over such claims. 500 F.3d 432 (5th Cir. 2007).
jurisdiction in that case. For the reasons stated therein, the Court concludes that it enjoys
subject-matter jurisdiction over Morrals claim seeking judicial adjudication of his
Nevertheless, the Court does not believe that it is appropriate to adjudicate the
Application at this juncture because doing so requires expertise that this Court does not
possess. See El-Daour v. Chertoff, 417 F. Supp. 2d 679, 680 (W.D. Pa. 2005). Moreover,
adjudicating the Application would create an incentive for others to file similar actions in
an attempt to jump the line and expedite their naturalization applications. Accordingly,
the Court concludes that rather than adjudicating the Application itself, the appropriate
remedy is to remand this matter to CIS. And, the Court does not believe that placing an
artificial time constraint on CIS to adjudicate the Application on remand is either
appropriate or advisable. Repeshchuk, 2007 WL 2361450, at *4. The delay in this case is
far shorter than in Respeshchuk (where more than four years had passed since the
applicants naturalization interview), as well as the delays in other cases that have been
remanded to CIS with instructions to adjudicate naturalization applications within specified
time frames. See, e.g. Karrar v. Frazier, Civ. No. 07-1853, 2007 WL 3023327, at *7 (D.
Minn. Oct. 12, 2007) (Frank, J.) (remanding to CIS with instructions to adjudicate
application within 120 days where application had been pending for nearly three years after
CIS interview); Manzoor v. Chertoff, 472 F. Supp. 2d 801, 810 (E.D. Va. 2007) (application
pending for more than three years post-interview remanded to CIS with instructions to
adjudicate application within 120 days).
The Court believes that the proper course of action, given the length of the delay in
this case, is to remand the matter to CIS with instructions to adjudicate the Application as
expeditiously as possible, and to require CIS to periodically update the Court with the
status of Morrals Application. In Repeshchuk, the Court ordered such updates to be filed
every 60 days. Because the length of time Morrals Application has been pending is far
shorter than that in Repeshchuk, however, the Court concludes that updates need not be as
frequent as in that case. Accordingly, it will require CIS to update the Court every 90 days.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Defendants Motion to Dismiss (Doc. No. 4) is GRANTED IN PART and
DENIED IN PART as follows:
1. The Motion is GRANTED as to Plaintiffs equal-protection and due-process
claim (Count 2 of the Complaint) and that claim is DISMISSED WITH PREJUDICE; and
2. This matter is REMANDED to CIS with instructions to adjudicate Morrals
Application as expeditiously as possible. CIS is directed to report to this Court every 90
days the status of Morrals Application. Once CIS receives the results of Morrals name
check from the FBI, the Application shall be adjudicated as expeditiously as possible, but in
no event later than 60 days after receipt of the name-check results. CIS shall notify this
Court as soon as Morrals Application has been adjudicated. The Court will retain
jurisdiction over this matter to ensure CISs compliance with this Order.
Dated: November 28 , 2007 s/Richard H. Kyle
United States District Judge


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