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Yang v. Chertoff

June 29, 2007

CHAOHONG YANG, PLAINTIFF,
v.
MICHAEL CHERTOFF, SECRETARY OF THE U.S. DEPARTMENT OF HOMELAND SECURITY; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER GRANTING MOTION TO REMAND TO USCIS

Plaintiff Chaohong Yang, proceeding in propria persona, brings this action pursuant to 8 U.S.C. §1447(b), seeking, among other things, to have this court compel Defendants to adjudicate his application for naturalization. Defendants move to dismiss the complaint as prematurely filed, or alternatively, to remand to the United States Citizenship and Immigration Service ("USCIS") with appropriate instructions for adjudication of Plaintiff's application for naturalization. For the reasons set forth below, the motion to remand is granted with instructions to make a determination on Plaintiff's Form N - 400 as expeditiously as possible but in any event not more than 120 days from the date of entry of this order.

BACKGROUND

On February 6, 2007 Plaintiff commenced this action seeking relief declaratory and injunctive relief to compel Defendants to adjudicate his application for naturalization. Plaintiff alleges that defendants have illegally delayed the processing and adjudication of his application for naturalization.

Plaintiff, a 35 year old citizen of China, was admitted to the United States as a lawful permanent resident in April 2001. (Compl. ¶15). In February 2006 Plaintiff applied for naturalization. He alleges that he satisfies all statutory requirements for naturalization and that the USCIS completed the naturalization examination on May 23, 2006. The USCIS has yet to adjudicate Plaintiff's application for naturalization. (Compl. ¶16).

DISCUSSION

Subject Matter Jurisdiction

Defendants contend that this court lacks subject matter Jurisdiction over the Complaint under 8 U.S.C. §1447(b) because the statutory time period for filing an action has yet to commence. The statute at issue provides, in pertinent part:

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 Untied states district court for the district in which the applicant resides for a hearing on the matter.

8 U.S.C. §1447(b). The examination contemplated by §1446 authorizes the USCIS examiner with subpoena power to call witnesses, including the applicant, to compel testimony and to require the production of tangible items. See 8 U.S.C. §1446(b). The examiner is authorized to conduct an investigation of the applicant, see 8 U.S.C. §§1443(a), 1446(a)(b), and to determine whether the applicant meets the statutory qualifications for naturalization. See 8 U.S.C. 1427(a). In accordance with the rules and regulations propagated by the Attorney General, prior to conducting an examination interview of the applicant, the USCIS is to have completed the FBI background investigation before the applicant is notified to appear for the "initial examination" interview. 8 C.F.R. §335.2(b).

District courts have reached opposite conclusions on whether the 120 period of §1447(b) runs from the date of the initial examination interview or from the date of completion of the entire examination process. Some courts, such as in Danilov v. Aguirre, 370 F.Supp.2d 441 (E.D. Va 2005), looked to the language of §1446(b) to conclude that the required "examination is not a single event, but instead is essentially a process the agency follows to gather information concerning the applicant." Id. at 443. Included within that process is the requirement that the FBI conduct a criminal background investigation of the applicant pursuant to 8 C.F.R. §335.2(b). Viewing the criminal background investigation as an integral and indispensable part of the process of examination, the district court concluded that the time for filing an action under 8 U.S.C. §1447(b) did not commence until the examination process was completed, even if the USCIS completed the applicant interview prior to completion of the background investigation,

Other district courts focus on language in §1447(b) which states that the 120 period commences on "the date on which the examination is conducted (emphasis added)." These courts, such as the court in El-Daour v. Chertoff, 417 F.Supp. 679 (W.D. Pa 2005), have found that this statutory language "contemplates that the examination occurs on a particular, identifiable, date." Id. at 681. As an examination process does not occur on one particular date, Congress must have intended the language to refer to a single precipitating triggering event. Further, the district court noted that the term "conducted" would have to be construed to mean "completed or concluded" in order to reach the conclusion that the examination required by the statute is considered the "process of examination." Id. at 682. Based upon the ambiguities inherent in §1447(b) and §1446(b), the El-Daour court concluded that the applicant interview was the triggering event for the 120 period of §1447(b).

The court concludes that the better reasoned view, particularly when seen in light of pertinent USCIS regulations, establishes that the date of examination, for purposes of seeking judicial review under §1447(b), is the date of the applicant's interview. USCIS regulation 8 C.F.R. §335.2(a) provides the framework for conducting the examination of the applicant for naturalization and, among other things, provides that "[a]t the conclusion of the examination," the interviewing officer is to compile a record of all "evidence received by the officer" and all "deposition[s] or statement[s] taken by a Service officer during the initial examination or any subsequent examination." 8 C.F.R. §335.2(e). The regulations also instruct the USCIS on the order of examination procedures and the requirement that the FBI background investigation be completed prior to conducting the applicant interview. An applicant for naturalization shall be interviewed "only after the Service has received a definitive response from the Federal Bureau of Investigation that a full criminal background check of an applicant has been completed." 8 C.F.R. §335.2(b). As noted in Khelifa v. Chertoff, 433 F.Supp.2d 836 (E.D. Mich 2006),

By referring separately to the FBI background check and the "initial examination," and mandating that the former must be completed before the latter will be conducted, this provision plainly contemplates that the background check is independent from, as opposed to a part of, the "examination" that is described in this agency regulation. This provision. . . is incompatible ...


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