|Last updated June 26, 2009|
Section 336(b) of the INA provides for judicial review of a stalled naturalization application. It states that if USCIS fails to grant or deny an application for naturalization before the end of the 120-day period after the date on which the examination is conducted, the applicant may apply to the district court for the district in which the applicant resides for a hearing on the matter. The court may (1) determine the matter or (2) remand to USCIS, with appropriate instructions, to determine the matter. If the delay occurs before the naturalization examination date, many litigants seek relief under the mandamus statute and the Administrative Procedure Act. See AILF's Mandamus Litigation Issue Page for information about these types of actions.
Pre-interview Natz Delay Cases
Select pre-interview naturalization delay cases filed as mandamus/APA lawsuits are summarized on AILF's Mandamus Litigation Issue Page
Class Action and Individual Suits Challenging Delay in the Adjudication of Naturalization Applications
Bavi v. Mukasey, No. 07-1394 (C.D. Cal. filed Dec. 4, 2007)
Four lawful permanent residents filed a class action lawsuit on behalf of themselves and those similarly situated in the Central District of California challenging delays in the adjudication of their naturalization applications. The plaintiffs include applicants who have completed their naturalization interview and applicants who have not yet been interviewed. The proposed class would include all lawful permanent residents who have submitted or will submit applications for naturalization to the USCIS Los Angeles District Office and its sub-offices, and whose applications for naturalization have not been or will not be adjudicated by USCIS for over 300 days from the date of submission because of pending FBI checks.
Plaintiffs claim that defendants' failure to complete the adjudication of their applications violates the timeliness requirements of the APA. Plaintiffs who have completed their naturalization interviews allege that defendants have violated 8 U.S.C. § 1447(b) by failing to finally adjudicate the applications within 120 days of the date of the examinations. Plaintiffs also raise due process claims, alleging that defendants have violated their rights with a pattern, practice and policy of failing to timely complete FBI name checks and failing to make a final judgment on the application. Finally, plaintiffs claim that defendants violated the notice-and-comment requirements of the APA because defendants' 2002 expansion of the FBI name check constituted a "rule" within the meaning of 5 U.S.C. § 551(4). By failing to provide a notice-and-comment period prior to implementing the rule, plaintiffs allege defendants violated 5 U.S.C. § 553.
On December 5, 2008, the case was referred for settlement proceedings. The settlement conference was scheduled for April 2009. On January 30, 2009, plaintiffs filed a third amended complaint.
Tartakovsky v. Chertoff, No. 07-1667 (S.D. Cal. filed Aug. 22, 2007)
Plaintiffs filed a class action on behalf of "[a]ll persons residing within the Southern District of California who have submitted or will submit applications for naturalization to CIS, and who have met all statutory requirements for naturalization, and whose applications for naturalization are not adjudicated within 120 days of the date of their naturalization examinations." Plaintiffs allege four claims: the right to judicial determination of the naturalization applications under 8 U.S.C. § 1447(b); unreasonable delay in violation of the APA; failure to follow notice and comment procedures in adopting name check procedures; and violation of due process.
On March 11, 2008, the court dismissed plaintiffs' claims with respect to the unreasonable delays, the notice and comment procedures, and due process. However the court remanded the named plaintiffs' naturalization application to the agency "with instructions that USCIS adjudicate Plaintiffs' naturalization without unreasonable delay."
Ahmadi v. Chertoff, No. 07-3455 (N.D. Cal filed July 2, 2007)
Plaintiffs filed a class action on behalf of persons who have submitted or will submit applications for naturalization to CIS, who have met all statutory requirements for naturalization, and whose applications for naturalization are not adjudicated within 120 days of the date of their naturalization examinations. Plaintiffs alleged four claims: 1) the right to judicial determination of the natz applications under 8 U.S.C. § 1447(b); 2) unreasonable delay in violation of the APA; 3) failure to follow notice and comment procedures in adopting name check procedures; and 4) violation of due process. On September 2007, the court granted defendants' motion to dismiss with respect to the APA, notice and comment, and due process claims, but denied the motion with respect to the 1447(b) claim. Plaintiffs filed an amended complaint on November 15, 2007.
On April 25, 2008, the court denied plaintiffs' motion for class certification because prior APA claims already had been dismissed. The court entered partial judgment under 54(b) for defendants against three of the plaintiffs as to their claims for unreasonable delay in violation of the APA, failure to follow notice-and-comment requirements of the APA and violation of the Fifth Amendment due process clause. The three plaintiffs filed a notice of appeal on June 25, 2008.
On July 18, 2008, the court granted plaintiffs' request to voluntarily dismiss one of the plaintiffs and to dismiss as moot claims under the APA and mandamus. The court also granted in part defendants' motion to remand, with instructions to adjudicate remaining plaintiffs' applications. The case was closed on August 4, 2008, after plaintiffs' applications were adjudicated.
Weaver et al. v. Swacina et al., No. 08-21588, (S.D. Fla. filed June 4, 2008)
A group of permanent residents in southern Florida filed suit against USCIS to have their naturalization applications adjudicated. The plaintiffs filed for class certification. The proposed class included all permanent residents in the southern district of Florida whose naturalization applications had not been adjudicated within 120 days after their interviews because of a pending FBI name check. The plaintiffs' applications had been pending for 2 to 4 years since their naturalization interviews. Plaintiffs sought injunctive and declaratory relief.
On November 25, 2008, the Court granted relief to the named Plaintiffs in the First
Amended Complaint on their 8 U.S.C. § 1447(b) claim-a remand to USCIS with instructions to render a final adjudication within 90 days-and dismissed their APA claims. The court denied class certification of Plaintiffs' § 1447(b) claim on the basis that they lacked standing and typicality to represent the proposed class. On December 15, 2008, the court denied plaintiffs' motion to reconsider the court's November 25, 2008 order.
Amrani v. Dugas, No. 08-246 (M.D. Fla. filed Feb. 19, 2008)
Fourteen lawful permanent residents joined in a lawsuit alleging unreasonable delay in the adjudication of their naturalization applications due to security checks. All of the plaintiffs completed naturalization interviews application and waited between two and four years for a final decision on their applications. The complaint alleged that defendants' delay in adjudicating the applications violated INA § 336(b) and the APA. Plaintiffs requested that the court remand plaintiffs' applications to USCIS with instructions to complete adjudication within 30 days of the court's order. In addition plaintiffs sought declaratory and injunctive relief and attorneys fees. After plaintiffs each voluntary dismissed themselves from the action, on September 11, 2008, the court dismissed the action with prejudice and closed the case.
Alsamman v. Gonzales, No. 06-2518 (N.D. Ill. filed May 4, 2006)
Plaintiffs filed a class action on behalf of "[a]ll Muslim males, or those males appearing Muslim on the basis of their ethnic heritage due to their national origin, who are or will be LPRs applying for naturalization to become US citizens, and whose swearing in ceremony has been delayed more than 120 days since the applicant passed his naturalization interview." In September 2007, the court found jurisdiction over the case under 8 U.S.C. § 1447(b) and remanded it to USCIS to adjudicate the naturalization applications. Plaintiffs filed an amended complaint on November 13, 2007. Defendants filed a motion to dismiss on January 26, 2008. On June 13, 2008, the court dismissed Plaintiffs' case with prejudice as moot and vacated the court's September 2007 order as to one plaintiff.
Milanes v. Chertoff, No. 08-2354 (S.D.N.Y. filed March 6, 2008)
Six lawful permanent residents filed a lawsuit alleging unreasonable delay in the adjudication of their naturalization applications due to security checks. Plaintiffs filed the action on behalf of themselves and a proposed class of similarly situated lawful permanent residents residing in the counties served by the New York City District Office of the USCIS. The proposed class consists of individuals who have not had interviews in connection with their naturalization applications and whose applications have not been or will not be adjudicated within 180 days of the date of submission. A proposed sub-class includes plaintiffs who reside in the Southern District of New York, have had naturalization interviews, and whose applications have not been or will not be adjudicated within 120 days of the date of their initial examination. Plaintiffs allege that defendants' delay in adjudicating plaintiffs' applications violates the APA and INA § 336(b). In addition, plaintiffs allege that defendants' implementation of a policy or practice of requiring an FBI name check before adjudicating a naturalization application without publishing a proposed regulation and providing a notice and comment period violates 5 U.S.C. § 553. Plaintiffs seek declaratory and injunctive relief and attorneys fees.
The court granted defendants' motion to dismiss the suit pursuant to Fed. R. Civ. P. 12(b)(6) on August 7, 2008.
Yakubova v. Chertoff, No. 06-3203 (E.D.N.Y. filed June 28, 2006)
Plaintiffs are naturalization applicants residing in Kings, Nassau, Queens, Richmond and Suffolk counties in New York State. The proposed class includes naturalization applicants residing in these counties. Plaintiffs allege claims under 8 U.S.C. § 1447(b) and the APA (unreasonable delay). On November 1, 2006, the court denied defendants' motion to dismiss and ruled that plaintiffs' motion for class certification was premature. The court also ruled that plaintiffs are entitled to discovery on the issue of whether defendants have been acting reasonably in processing the naturalization applications given the competing priorities of the Executive Branch.
On July 8, 2008, the court approved a settlement agreement that required USCIS to adjudicate approximately 90% of the naturalization applications that have been pending, as of June 12, 2008, for more than 120 days after initial naturalization interviews. There are 1,426 applicants from the proposed class whose applications met these criteria.
Ignatyev v. Chertoff, No. 08-1547 (E.D. Pa. filed April 1, 2008)
Lawful permanent residents filed a lawsuit on behalf of themselves and all lawful permanent residents who have submitted or will submit applications for naturalization to the USCIS District Office located within Pennsylvania, and whose applications for naturalization remain unadjudicated more than180 days after the date of submission, because of pending FBI name checks. Plaintiffs filed the suit under the mandamus statute and the APA, and are alleging unreasonable delay in the processing of the naturalization applications and the FBI name checks. They are alleging that plaintiffs violated the naturalization statute and regulations, laws governing administrative agency action, and the Fifth Amendment Due Process Clause. Plaintiffs seek injunctive and declaratory relief.
On October 14, 2008, the court denied defendants' motion to dismiss without prejudice pending possible discovery. On November 14, 2008, defendants answered plaintiffs' complaint. Discovery in this case is ongoing.
Mocanu v. Mueller, 07-00445 (E.D. Pa. filed Feb. 1, 2007)
A naturalization applicant filed suit in the U.S. District Court for the Eastern District of Pennsylvania seeking relief from delays in the adjudication of his naturalization application. At the time plaintiff Mocanu filed suit, it had been three years since he filed his naturalization application and he had not yet had his naturalization examination. He argued that the delay violated INA § 336(b) and the APA, and that mandamus relief was available.
On March 29, 2007, the government filed a motion to dismiss, arguing that the court did not have jurisdiction under INA § 336(b); 8 U.S.C. § 1447(b). INA § 336(b) gives a district court jurisdiction over a naturalization application 120 days after the naturalization examination takes place. Because the plaintiff never had his examination, the government argued that the district court did not have jurisdiction. The government also argued that the plaintiff lacked APA and mandamus jurisdiction and therefore could not request that the court compel the agency to schedule plaintiff's examination.
The court joined several additional plaintiffs. On February 8, 2008, the court held that USCIS' use of the FBI name check program is not authorized by statute or regulation and that it may not be used to further delay plaintiffs' applications for naturalization. The court held that USCIS must promptly initiate notice and comment procedures pursuant to the APA.
On February 15, 2008, defendants filed an emergency stay, requesting that the court stay its February 8, 2008 order enjoining defendants from using the FBI name check program as a factor in making decisions regarding plaintiffs' naturalization applications. The court denied the request. On March 20, 2008, the court dismissed Plaintiff Mocanu's suit as moot because he had been naturalized. The court dismissed or remanded the cases of the other joined plaintiffs as well.
Roshandel v. Chertoff, No. 2:07-cv-01739 (W.D. Wash. filed Oct. 29, 2007)
Naturalization applicants residing in the Western District of Washington filed a district-wide class action challenging DHS' refusal to adjudicate their applications within 120 days of their examination due to the pendency of a "name check." Plaintiffs asked the court to grant their naturalization applications under 8 U.S.C. § 1447(b) or remand their cases to USCIS with instructions that the agency issue a decision within 90 days. Plaintiffs also asked the court to find that defendants violated the APA by not issuing decisions on the naturalization application and not completing the name checks "within a reasonable time." In addition, Plaintiffs alleged that defendants violated the APA by implementing the name check procedure without notice and comment.
The proposed class included all LPRs residing in the Western District of Washington who submitted naturalization applications, but whose applications have not been adjudicated by USCIS within 120 days of the date of their initial examination due to the pendency of a "name check." The court heard arguments on the motions on April 11, 2008.
On April 25, 2008, the court issued an order granting plaintiffs' motion for class certification. The court held that plaintiffs satisfied the requirements under Fed. R. Civ. P. 23(a). Plaintiffs met the commonality requirement because they all challenge the legality of the same government program. They met the typicality requirement because all of the potential plaintiffs experienced delay in the adjudication of their applications due to the name check requirement. In its order, the court also addressed standing and mootness. The court found that plaintiffs' inability to vote, inability to serve on juries and difficulty traveling as a result of delayed action on their applications were harms sufficient to confer standing. The court said that the unnamed and future class members were realistically threatened by future delays as long as the security check system was in place. The court also found that plaintiffs' claims were not moot because although defendants adjudicated the applications of the original named plaintiffs, plaintiffs amended the complaint to add additional named plaintiffs whose name checks have not been completed.
The court also denied defendants' motion to dismiss and/or remand the case, and plaintiffs subsequently moved for partial summary judgment.
On August 25, 2008, the court approved a settlement agreement between the parties. According to the terms, plaintiffs and USCIS agreed to a timeline to adjudicate the remaining naturalization applications and schedule oath ceremonies in time to vote in the upcoming presidential election. The court issued a class-wide remand of naturalization applications with instructions for USCIS to adjudicate 283 of the 371 applications that were ready to be reviewed. The rest of the 371 applications were to be adjudicated and oath ceremonies scheduled before October 18, 2008. The agreement provided for $185,000 in attorney's fees to plaintiffs.
Jurisdiction over Naturalization Delay Lawsuits
A. Exclusive Jurisdiction Over Natz Application after INA § 336(b), 8 U.S.C. § 1447(b) Action Filed
Two courts of appeals and several district courts have examined whether a federal court has exclusive jurisdiction over a plaintiff's naturalization application after a plaintiff files a § 336(b) action. In U.S. v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004), the Ninth Circuit held that INA § 336(b) gives the court exclusive jurisdiction and that DHS does not share jurisdiction over the application. In Etape v. Chertoff, 497 F.3d 379 (4th Cir. August 2, 2007) the Fourth Circuit joined the Ninth Circuit and held that the district court had exclusive jurisdiction over the naturalization applications after plaintiffs filed their § 336(b) suits in federal court.
Several district courts have agreed with the reasoning in Hovsepian and Etape and held that the court obtains exclusive jurisdiction over a naturalization application after a § 336(b) suit is filed:
Other courts have held the opposite; that USCIS has concurrent jurisdiction with a federal court after a plaintiff files a §336(b) action. See, e.g., Bustamante v. Chertoff, No. 07-06226, No. 08-0990, 533 F. Supp. 2d 373 (S.D.N.Y. 2008) (2d Cir. brief filed May 31, 2008); Perry v. Gonzales, 472 F. Supp. 2d 623 (D.N.J. 2007) (D.N.J. 2007); Maki v. Gonzales, 2007 U.S. Dist. LEXIS 55588 (C.D. Utah July 30, 2007).
B. Jurisdiction Over Natz Applications 120 Days After Naturalization Interview
Numerous district courts nationwide and two courts of appeals - U.S.A. v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) and Walji v. Gonzales, 500 F.3d 432 (5th Cir. 2007) - have rejected the government's arguments that courts do not have jurisdiction over naturalization delay actions 120 days after the naturalization interview is conducted if FBI name checks are not complete. Although INA § 336(b) states that the court has jurisdiction 120 days after the naturalization "examination," the government has argued that "examination" encompasses the entire process that USCIS uses to gather information about an applicant, including the completion of the FBI check. Therefore, the government argues, if the FBI check still is pending, the 120-day period has not begun running. In Danilov v. Aguirre, 370 F. Supp 2d 441 (E.D. Va. 2005), the district court adopted this reasoning and dismissed the petition where the FBI check was not complete.
In Walji v. Gonzales, 500 F.3d 432, (5th Cir. 2007), the Fifth Circuit interpreted the Fourth Circuit decision Etape v. Chertoff, 497 F.3d 379 (4th Cir. 2007), as implicitly holding that the 120 day period begins to run from the date of the initial interview. Thus, Etape arguably should be construed as rejecting the district court's decision Danilov v. Aguirre, 370 F. Supp 2d 441 (E.D. Va. 2005).
Courts Follow/Reject Danilov in Natz Delay Actions
Some district courts have followed Danilov:
What Remedies Does the Court Provide?
Under INA § 336(b), a court may "determine the matter" by granting or denying the naturalization application, or it may "remand the matter" for a determination by USCIS.
A. Remand to USCIS With or Without Deadlines for Adjudication When Security Checks are the Source of Delay
Many courts decline to adjudicate naturalization applications and remand the cases to USCIS to await completion of FBI checks.
Some courts have set timeframes for completion of the FBI name check. In Al-Kudsi v. Gonzales, No. 05-1584, 2006 U.S. Dist. LEXIS 16761 (D. Or. March 22, 2006), the district court ordered Attorney General Gonzales to instruct the FBI to complete a name check for a naturalization applicant awaiting a decision for several years. The court said that if USCIS did not receive a completed name check within 90 days, USCIS shall treat that failure as a successfully completed name check and issue the certificate of naturalization. In a footnote, the court observed that the FBI is a component of the Department of Justice. Thus, it was important that the petitioner in the INA § 336(b) action had named not only DHS officials, but the Attorney General as well.
In Aslam v. Gonzales, No. 06-614, 2006 U.S. Dist. LEXIS 91747 (W.D. Wash. Dec. 19, 2006), the court decided to hold the case in abeyance for 60 days to give the FBI time to complete the name check. If after 60 days the name check was not completed, the government would have to appear before the court to show cause why the petitioner should not be naturalized immediately.
Similarly, in the following cases, the courts set deadlines for completion of the FBI security checks.
B. Evidentiary Hearing on the Naturalization Application
Although many courts now choose to remand the case to USCIS, some courts hold naturalization hearings. In one case, Lifshaz v. Gonzales, No. 06-1470, 2007 U.S. Dist. LEXIS 28946 (W.D. Wash. April 19, 2007), the court considered "the Government's interest in public safety and national security and Mr. Lifshaz's individual interest in having his naturalization application adjudicated," and determined that it was appropriate to conduct a hearing to avoid further delay. At the time the court entered its judgment, the naturalization application had been pending for over three years. See also Astafieva v. Gonzales, No, 06-04820, 2007 U.S. Dist. LEXIS 28993 (D. Cal. April 2, 2007) (granting petitioner's application for naturalization after conducting an in camera hearing); Shalan v. Chertoff, No. 05-10980, 2006 U.S. Dist. LEXIS 253 (D. Mass. Jan. 6, 2006) (scheduling a hearing instead of remanding the case to USCIS).
Several courts have awarded attorneys fees in cases challenging delays in the adjudication of naturalization applications. These courts have found that the plaintiffs meet the requirements under the Equal Access to Justice Act (EAJA): (1) the plaintiff is the prevailing party in the matter; (2) the government fails to show that its position was substantially justified or that special circumstances make an award unjust; and (3) that the requested fees and costs are reasonable. 28 U.S.C. § 2412(d)(1)(A). In addition, some courts have found that immigration attorneys require specialized immigration law skills to litigate these cases and have awarded fees at an enhanced rate. For more information about EAJA, see AILF Practice Advisory, Requesting Attorneys Fees Under the Equal Access to Justice Act (December 15, 2008).
A. Post-Interview Natz Cases
In cases brought under INA § 336(b), courts have found that a plaintiff is the prevailing party if USCIS completes adjudication of the application after the court remands the matter to USCIS. Although the government argues that action on the application after a remand order is a voluntary adjudication, courts have rejected this argument finding instead that the agency action is in compliance with a remand order. Courts also have held that the government failed to demonstrate that its litigation position or the failure to act on the application was substantially justified because it provided no specific reasons for the delay. Courts have found that arguments attributing the delay to FBI name checks do not provide justification for the delay itself. While the FBI check may be reasonable, a prolonged delay without specific justification is not. In addition, courts have found that the agency's position that the "examination" encompasses the FBI background check and is not simply the initial USCIS interview is not substantially justified.
B. Pre-Interview Natz Cases and Other Mandamus Actions
Courts also have granted fees in mandamus/APA cases brought to address delays in adjudicating naturalization applications when the interview has not taken place, as well as in cases challenging other delayed adjudications, specifically adjustment delays. See AILF's Mandamus Litigation Issue Page for more information about pre-interview natz cases.
AILF Practice Advisories
Government Press Releases
Court Rules and Documents