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Abdel-Latif v. Mukasey: US Distrct Court : IMMIGRATION - another CIS naturalization delay case17
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
WAEL MOHAMED ALY ABDELLATIF,
MICHAEL B. MUKASEY,1 Attorney
General of the United States; ROBERT
MUELLER, Director of the Federal Bureau
of Investigation; MICHAEL CHERTOFF,
Secretary of the Department of Homeland
Security; EMILIO GONZALES, Director
of the Citizenship & Immigration Service;
and DENISE FRAZIER, Director of the
St. Paul District of the Citizenship and
Civil No. 07-2555 (JRT/FLN)
ORDER DENYING DEFENDANTS’
MOTION TO DISMISS AND
REMANDING TO THE UNITED
STATES CITIZENSHIP AND
David L. Wilson, WILSON LAW GROUP, 2700 East Lake Street, Suite
3200, Minneapolis, MN 55406, for plaintiff.
Friedrich A. P. Siekert, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, 600 United States Courthouse,
300 South Fourth Street, Minneapolis, MN 55415, for defendants.
Plaintiff Wael Mohamed Aly Abdel-Latif is a permanent resident alien of the
United States, and has applied for naturalization to become a United States citizen.
Plaintiff filed this action alleging that the processing of his application has been
unreasonably delayed. This matter is now before the Court on defendants’ Motion to
1 Michael Mukasey is substituted as the Attorney General of the United States pursuant to
Rule 25(d)(1) of the Federal Rules of Civil Procedure.
Dismiss. For the reasons given below, the Court denies defendants’ motion, and remands
the matter to the United States Citizenship and Immigration Service (“CIS”) with
Plaintiff filed his application for United States citizenship on September 22, 2005.
As part of the application process, plaintiff was interviewed by CIS on February 23,
2006. Plaintiff has yet to receive a final determination on his application. Defendants
allege that the delay is due to the fact that the Federal Bureau of Investigation (“FBI”) has
yet to complete plaintiff’s mandatory national security background investigation. CIS
requested that the FBI perform this “name check” on October 5, 2005.
Plaintiff filed this suit on June 1, 2007, alleging that the delay in processing his
application violates both his statutory and constitutional rights. Plaintiff requests a
declaratory judgment that the delay has violated his due process and equal protection
rights under the United States Constitution; a temporary and permanent injunction
enjoining defendants from “unreasonably delaying completion of plaintiff’s
naturalization application and his swearing in as a citizen of the United States solely
because name checks have not been timely completed”; a grant of his petition for
citizenship; and his costs and fees in bringing this action, pursuant to the Equal Justice
Act, 28 U.S.C. § 2412.
I. SUBJECT MATTER JURISDICTION
Defendants have moved to dismiss plaintiff’s claims, alleging that this Court lacks
subject matter jurisdiction over the matter. Defendants discuss a number of potential
grounds for jurisdiction in this case, and argue that each is inadequate. The only grounds
that the Court finds necessary to consider for the purposes of this motion, however, is 8
U.S.C. § 1447(b). The language of that statute, as well as the decisions of the great
majority of the courts who have interpreted it, indicate that the Court has subject matter
jurisdiction to hear plaintiff’s complaint.
Section 1447(b) states that where CIS has not made a determination on a
citizenship application “before the end of the 120-day period after the date on which the
examination is conducted under such section” the applicant may seek relief in federal
district court. “Such court has jurisdiction over the matter and may determine the matter
or remand the matter, with appropriate instructions, to [CIS] to determine the matter.” 8
U.S.C. § 1447(b).
Defendants do not dispute that plaintiff’s suit was filed more than 120 days after
he was interviewed by CIS. However, defendants argue that the word “examination” in
section 1447(b) does not refer to this interview alone, but rather “encompasses the entire
process of conducting the requisite background checks, one or more in person interviews,
and other activities to assure an applicant’s qualification for naturalization.” If that were
true, this Court would not have jurisdiction, because particular steps in that process –
including the FBI’s name check – have not yet been completed.
Defendants concede that this Court has rejected their interpretation of section
1447(b) in three prior cases. See Repeshchuk v. Gonzales, No. 07-2017, 2007 WL
2361450 (D. Minn. Aug. 15, 2007); Eisa v. U.S. Citizenship & Immigration Servs.,
No.05-773, 2006 WL 2794341 (D. Minn. Sept. 27, 2006); Essa v. U.S. Citizenship &
Immigration Servs., No. 05-1449, 2005 WL 3440827 (D. Minn. Dec. 14, 2005). In
addition to the cases acknowledged by the defendants, this Court has rejected its
argument at least twice more. See Aarda v. U.S. Citizenship & Immigration Servs., No.
06-1561, 2007 WL 465220 (D. Minn. Feb. 8, 2007); Alnabi v. Gonzales, No. 06-1721,
2006 WL 2990338 (D. Minn. Oct. 18, 2006). In each of those cases, federal courts in this
district have held that the word “examination” in section 1447(b) refers to the applicant’s
interview, rather than the entire investigatory process. This interpretation has also been
adopted by the Fifth Circuit. See Walji v. Gonzales, 500 F.3d 432 (5th Cir. 2007). The
defendants have not cited to any cases supporting their alternative interpretation of
section of 1447(b), and the Court finds no reason to depart from the long line of cases in
this district rejecting defendants’ position. Because 120 days have passed since
plaintiff’s interview with CIS, the Court has jurisdiction to hear his complaint.
Section 1447(b) provides the Court with two options for handling plaintiff’s
complaint. The Court may either adjudicate plaintiff’s application or remand the
application to CIS with “appropriate instructions.” See 8 U.S.C. § 1447(b). The Court
agrees with the prior decisions in this district indicating that it would be inappropriate to
adjudicate plaintiff’s application before the completion of outstanding background
checks. See, e.g., Repeshchuk, 2007 WL 2361450, at *4 (“Final adjudication of this
matter . . . requires expertise that this Court does not possess.”); Alnabi, 2006 WL
2990338, at *2 (“[T]he criminal background check is a vital piece of information and
absent such information the court system is simply not equipped with the resources
necessary to ensure a thorough investigation prior to the giving of the naturalization
oath.”). Consequently, the Court remands the matter to CIS.
The defendants request that any remand not contain specific deadlines. However,
at this point, CIS has missed its statutory deadline for adjudicating plaintiff’s application
by more than 21 months. Consequently, the Court believes it is appropriate to follow the
other decisions in this district in providing CIS with a timetable. See Repeshchuk, 2007
WL 2361450, at *4-5 (requiring CIS to adjudicate the application “as expeditiously as
possible” and to report its progress to the Court every 60 days); Aarda v. U.S. Citizenship
& Immigration Servs., 2007 WL 465220, at *1 (requiring that the defendants complete all
background checks – including the FBI “name check” – within 120 days); Alnabi, 2006
WL 2990338, at *1 (requiring CIS to adjudicate the naturalization application within 150
days). The Court remands the matter to CIS with instructions to adjudicate the
application as quickly as possible, and to provide a written progress report to this Court
every 60 days. That report must include an update on the status of plaintiff’s name check
and defendants’ efforts to obtain the results of the name check, including correspondence
and any other relevant documents. Cf. Repeshchuk, 2007 WL 2361450, at *4-5. In
addition, CIS is instructed to issue a final determination on plaintiff’s naturalization
application within 180 days of the date of this order. Cf. Alnabi, 2006 WL 2990338, at
*1. The Court will retain jurisdiction over this matter during the pendency of these
updates, both to assure defendants’ compliance and to preserve the possibility of
considering alternative remedies should the defendants’ fail to demonstrate progress.
Based on the foregoing, all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Defendants’ Motion to Dismiss [Docket No. 11] is DENIED.
2. This matter is REMANDED to CIS with instructions to adjudicate
plaintiff’s naturalization application as quickly as possible, and to provide a written
progress report to this Court every 60 days. That report must include an update on the
status of plaintiff’s name check and defendants’ efforts to obtain the results of the name
check, including correspondence and any other relevant documents. CIS is instructed to
issue a final determination on plaintiff’s naturalization application within 180 days of the
date of this order.
3. Plaintiff’s alternative requests for relief are STAYED pending the
adjudication of his naturalization application.
4. The Court will retain jurisdiction over this matter until plaintiff has
received a final determination on his naturalization application.
DATED: March 27, 2008 s/ John R. Tunheim _
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge
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