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USDC: IMMIGRATION - examination means interview not 4 years wait

1 The title of Defendants Motion also suggests that they seek summary judgment, but they do
not discuss summary judgment in their Motion papers.
Sergey Repeshchuk,
Civ. No. 07-2017 (RHK/AJB)
Alberto Gonzales, et al..,
Matthew M. Armbrecht, Guzior Armbrecht Maher, Minneapolis, Minnesota, for Plaintiff.
Mary Jo Madigan, Assistant United States Attorney, Minneapolis, Minnesota, for
In this action, Plaintiff Sergey Repeshchuk asks the Court to adjudicate his
naturalization application under 8 U.S.C. 1447(b) or, in the alternative, seeks remand to
the Bureau of Citizenship and Immigration Services (CIS) with instructions to adjudicate
his application within 15 days. Defendants now move to dismiss, arguing that the Court
lacks subject-matter jurisdiction over this case; in the alternative, Defendants argue that the
matter should be remanded to CIS without any time constraints for adjudicating
Repeshchuks application.1 For the reasons set forth below, the Court concludes that
2 Having concluded that oral argument on Defendants Motion will not materially assist the
Court in resolving the issues raised therein, the hearing in this matter scheduled for August 22, 2007, is
3 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.
4 In one instance Repeshchuk allegedly was told that his case had been closed (Repeshchuk
Decl. 11), but there does not appear to be any dispute that his Application remains pending before
subject-matter jurisdiction over this action exists, but that the matter should be remanded.2
The material facts in this case are undisputed. On April 7, 2003, Repeshchuk, who is
a lawful permanent resident alien of the United States, filed a naturalization application (the
Application) with CIS. On October 29, 2003, pursuant to 8 C.F.R. 335.2, CIS
interviewed Repeshchuk concerning his Application, during which 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).3 That name check has been pending since the date of Repeshchuks interview
i.e., almost four years. Repeshchuk has repeatedly asked CIS about the status of his
Application, but each time he has simply been told that his name check remains pending and
that CIS cannot finally adjudicate the Application without the results of the name check.4
As a result of the foregoing, Repeshchuk commenced the instant action, requesting
that the Court either adjudicate his Application or, in the alternative, remand the matter to
5 Namely, Alberto Gonzales, the Attorney General of the United States; Michael Chertoff, the
Secretary of the Department of Homeland Security; Robert S. Mueller, III, the Director of the FBI;
Emilio Gonzalez, the Director of CIS; and Denise Frazier, the Director of the St. Paul Field Office of
CIS with instructions to adjudicate the Application within 15 days. Defendants5 now move
to dismiss this case for lack of subject-matter jurisdiction or, in the alternative, ask the
Court to remand this case to CIS without limitation on how quickly it must adjudicate the
I. The Court enjoys subject-matter jurisdiction.
Pursuant to 8 U.S.C. 1446(a), the Secretary of Homeland Security may designate
CIS employees to conduct examinations of applicants for naturalization and determine
whether such applications should be granted or denied. In arguing that this Court has
jurisdiction, Repeshchuk relies on 8 U.S.C. 1447(b), which provides that:
If there is a failure to make a determination under section 1446 of this title
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.
There is no dispute that more than 120 days have elapsed since Repeshchuks interview.
Indeed, nearly four years have elapsed since Repeshchuks interview on October 29, 2003.
Defendants argue, however, that the examination contemplated by Section 1447(b)
is not the applicants interview, but rather is the entire process of adjudicating a
naturalization application, including completion of the requisite background check and FBI
name check. Because CIS has not received the results of Repeshchuks name check,
Defendants argue that the 120-day period in Section 1447(b) has not begun to run and,
hence, the Court lacks subject-matter jurisdiction over this case. The Court does not agree.
In support of their argument, Defendants rely on Danilov v. Aguirre, 370 F. Supp. 2d
441 (E.D. Va. 2005). The Danilov court held that an examination for purposes of Section
1447(b) is not a single event, but instead is essentially a process the agency follows to
gather information concerning the applicant, including the FBI name check. Id. at 443
(emphasis in original). Under Danilov, therefore, the 120-day period in Section 1447(b)
does not commence running until CIS receives the results of the name check.
Danilov, however, has been heavily criticized by district courts across the country,
and the undersigned has explicitly rejected it on at least one occasion. See Eisa v. United
States Citizenship & Immigration Servs., Civ. No. 05-773, Doc. No. 37 (Kyle, J., adopting
Report and Recommendation of Boylan, M.J.); see also, e.g., Hussein v. Gonzales, 474 F.
Supp. 2d 1265, 1267-68 (M.D. Fla. 2007) (the vast majority of district courts have
rejected Danilov and expressed a contrary view) (collecting cases); Al-Kudsi v. Gonzales,
No. CV 05-1584-PK, 2006 WL 752556, at *2 (D. Or. Mar. 22, 2006); Shalan v. Chertoff,
No. 1:05-CV-10980, 2006 WL 42143, at *1 (D. Mass. Jan. 6, 2006); El-Daour v. Chertoff,
417 F. Supp. 2d 679, 683 (W.D. Pa. 2005). Under the majority view, the term
examination in Section 1447(b) means the applicants interview with CIS, not the entire
information-gathering process. E.g., Mohsen v. Gonzales, Civ. No. 07-237, 2007 WL
2137933, at *3 (D.N.J. July 18, 2007) (examination refers to a specific event, the
applicants interview with CIS, rather than [an] ongoing process).
Defendants note that, approximately six weeks ago in Walji v. Gonzales, 489 F.3d
738 (5th Cir. 2007), the United States Court of Appeals for the Fifth Circuit adopted
Danilovs approach; they urge the Court to reject its prior decision in Eisa and the
overwhelming majority of federal courts across the country in favor of Walji and Danilov.
Of course, Walji the only Court of Appeals decision addressing the issue has already
been criticized in much the same fashion as Danilov. See, e.g., Alghawi v. Gonzales, No.
C07-586MJP, 2007 WL 2288056, at *1 (W.D. Wash. Aug. 6, 2007); Ouili v. Dept of
Homeland Sec., No. 07-11749, 2007 WL 2259335, at *3 (E.D. Mich. Aug. 2, 2007);
Mohsen, 2007 WL 2137933, at *2-3. The Court agrees with these decisions, and those
rejecting Danilov, for several reasons.
First, in the Courts view, Section 1447(b) unambiguously supports the conclusion
that examination means only the applicants interview with CIS. The statute provides that
the district court shall have jurisdiction 120 days after the date on which the examination
is conducted. 8 U.S.C. 1447(b). The statute does not say the date or dates within
which, but instead uses the phrase the date on which, clearly referring to a single,
identifiable date. As the court in El-Daour concluded, a process does not occur on one
particular and identifiable date. 417 F. Supp. 2d at 682.
Second, if the Court were to equate the term examination with process, the
relevant statutory language would, in essence, be transformed into: the date on which the
process is conducted. Such language would be ambiguous and would not provide a
cognizable date after which an applicant could apply to the district court for relief, because
the application process is ongoing and arguably is being conducted continuously. See
id. at 681-82. For example, an applicant would be unable to determine whether to apply to a
federal court for relief 120 days after the application was first submitted, or 120 days after
his interview, or 120 days after some other arbitrary point in the naturalization process.
The Court is unwilling to interpret the statute in such an ambiguous fashion.
Third, Defendants interpretation of examination does not comport with CISs own
regulations, which define examination and investigation as distinct events. See Shalan,
2006 WL 42143, at *1. Specifically, 8 C.F.R. 335.1 entitled Investigation of
applicant states that CIS shall conduct an investigation of the applicant, including a
review of pertinent records, police-department checks, a neighborhood investigation, and
an employment-background check. Yet, 8 C.F.R. 335.2 entitled Examination of
applicant specifies that, after submitting a naturalization application, an applicant:
shall appear in person before a Service officer designated to conduct
examinations pursuant to 332.1 of this chapter. The examination shall be
uniform throughout the United States and shall encompass all factors relating
to the applicants eligibility for naturalization. The applicant may request the
presence of an attorney or representative . . . .
8 C.F.R. 335.2(a). Accordingly, CISs own regulations contemplate an investigation,
encompassing a variety of background checks (including the FBI name check), separate and
apart from an examination, which consists of an in-person interview of the applicant.
Moreover, Section 335.2(b) entitled Completion of criminal background checks
before examination (emphasis added) mandates that CIS notify applicants for
naturalization to appear before a [CIS] officer for initial examination on the naturalization
application only after [CIS] has received a definitive response from the Federal Bureau of
Investigation that a full criminal background check of an applicant has been completed. In
6 CIS currently lacks jurisdiction over Repeshchuks Application, due to the pendency of this
action. United States v. Hovsepian, 359 F.3d 1144, 1162 (9th Cir. 2004); Castracani v. Chertoff, 377
F. Supp. 2d 71, 73 (D.D.C. 2005).
other words, not only is the background check treated as a wholly separate occurrence from
the in-person examination, but CIS is required, under its own regulations, to receive
notice of completion of the background check before even conducting the examination.
Accordingly, the regulations confirm the Courts conclusion that the term examination is
equivalent to interview and is wholly distinct from the background check conducted
pursuant to CISs investigation.
For all of these reasons, the Court adheres to its prior decision in Eisa and Walji
notwithstanding continues to agree with those cases holding that federal-court
jurisdiction exists over a naturalization application 120 days after the date of the applicants
interview, if the application has not been adjudicated in that time. Here, there is no dispute
that Repeshchuks interview occurred more than 120 days ago and his Application has not
been finally adjudicated. Accordingly, the Court concludes that subject-matter jurisdiction
exists under 8 U.S.C. 1447(b).
II. The appropriate remedy is to remand this case to CIS.
Having determined that the Court enjoys subject-matter jurisdiction over this case,
it must now decide whether to adjudicate the Application or remand it to CIS. 8 U.S.C.
1447(b).6 Given the lengthy delay in adjudicating his Application, Repeshchuk urges the
Court to schedule a hearing on the matter and adjudicate the Application itself. (Mem. in
Oppn at 12-15.) In the alternative, Repeshchuk requests that, if the Court opts to remand
the matter to CIS, it do so with instructions that CIS adjudicate the Application within 15
days. (Id. at 17.)
Final adjudication of this matter, however, requires expertise that this Court does
not possess. See El-Daour, 417 F. Supp. 2d at 860. Moreover, the Court believes that it
would be inappropriate to adjudicate the Application without the requisite name check
having been completed. See 8 C.F.R. 335.2(b); Essa v. United States Citizenship &
Immigration Serv., Civ. No. 05-1449, 2005 WL 3440827, at *2 (D. Minn. Dec. 14, 2005)
(Doty, J.) (noting that court was without power to adjudicate naturalization application when
FBI background check had not been completed). Finally, if the Court were to adjudicate
Repeshchuks Application, it would create an incentive for others to flood the system
with similar actions in an attempt to jump the line and expedite their naturalization
applications, to the detriment of others. Accordingly, the Court concludes that rather than
adjudicating the Application itself, the appropriate remedy is to remand this matter to CIS.
Moreover, the Court does not believe that placing an artificial time constraint on
CIS to adjudicate the Application is either appropriate or advisable. Nevertheless,
[b]ecause the [name] check has now been pending for [nearly] four years, remand to CIS
without [any] instructions is not appropriate. Kheridden v. Chertoff, Civ. No. 06-4792,
2007 WL 674707, at *5 (D.N.J. Feb. 28, 2007). Accordingly, the Court will remand the
matter to CIS with instructions to adjudicate the Application as expeditiously as possible,
and it will require Defendants to report to this Court, every [60] days, the status of
[Repeshchuks] name check and Defendants efforts to obtain the results of the name
check, including correspondence and any other relevant documents. Id.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Defendants Motion to Dismiss, Remand, or Enter Summary Judgment
(Doc. No. 4) is GRANTED IN PART and DENIED IN PART. This matter is
REMANDED to CIS with instructions to adjudicate Repeshchuks Application as
expeditiously as possible. Until the results of the FBI name check are received by CIS,
Defendants are directed to report to this Court every 60 days, with specificity (attaching
relevant documents as appropriate), the status of Repeshchuks name check and
Defendants efforts to obtain the results thereof. Once CIS receives the results of the
name check, the Application shall be adjudicated as expeditiously as possible, but in no
event later than 60 days after receipt of the name-check results. Defendants shall notify
this Court as soon as Repeshchuks Application has been adjudicated. The Court will retain
jurisdiction over this matter to consider alternative remedies should these efforts prove
Dated: August 15, 2007 s/Richard H. Kyle
United States District Judge


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