| Last updated August 05, 2008 | |
CIS’s delays in adjudicating naturalization applications are forcing applicants to seek judicial remedies. Section 336(b) of the INA provides for judicial review for a stalled naturalization petition if the application is pending for more than 120 days after the date on which the examination is conducted. Many litigants seek relief under the mandamus statute and the Administrative Procedure Act, in addition or instead of INA § 336(b). See also our Mandamus Litigation Issue Page.
| |
|
Latest Developments
| |
|
District Court Cites USCIS and FBI “Business Plan” as Evidence Name Check will be Completed in Pre-Examination Natz Mandamus Suit The Western District of Washington recently issued a decision in a mandamus case that highlighted the National Name Check Program Business Plan. The case challenged the delay in adjudication of a naturalization application where the applicant had not yet had a naturalization interview. The Plan, signed into effect by USCIS and FBI in March 2008, was designed to eliminate USCIS name check requests that had been pending for extended periods of time and speed processing in the future. Inter alia, the Plan indicated that July 2008 was the target date for processing USCIS name check requests that had been pending for over two years. Defendants cited the Plan in their pleadings and stated that because plaintiff’s naturalization application will have been pending for more than two years by July 31, 2008, the FBI “will work to complete Plaintiff’s FBI name check no later than July 31, 2008.” Because the defendants offered this timeline based on the Business Plan, the court found it unnecessary to determine whether or not USCIS was required to act absent a completed FBI name check. The court stayed the case until December 1, 2008, approximately 120 days after the defendants indicated the name check would be completed. Class Action to Restore SSI Benefits for Asylees and Refugees with Delayed Adjustment and Naturalization Applications Seven elderly or disabled refugees and asylees filed a class action asking the government to restore their SSI (Supplemental Security Income) benefits. Federal law limits them to seven years receipt of SSI benefits as LPRs. The assumption is that they will naturalize during this period and therefore become eligible to receive SSI as United States citizens. However, in numerous cases delays in processing adjustment applications and naturalization petitions have resulted in the termination of SSI benefits for the plaintiffs. The complaint alleges that over 6,000 immigrants have lost their SSI benefits because seven years have expired and that over 46,000 immigrants will be cut off from their SSI benefits between 2006 and 2012. The plaintiffs survived a motion to dismiss, see Kaplan v. Chertoff, 481 F. Supp. 2d 370 (E.D. Pa. Mar. 29, 2007), and the court conditionally certified the class. Subsequently, settlement negotiations were fruitful and resulted in a proposed settlement. On March 5, 2008, the court approved the proposed settlement and dismissed the suit. The settlement will affect all noncitizens who are receiving or have received Supplemental Security Income (“SSI”) and are or may be subject to termination or suspension of SSI prior to a final decision on their current or future naturalization application and oath. Inter alia, the settlement provides procedures for expedited processing for class members.
Courts Award EAJA Fees in Natz Delay Suits 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 (April 7, 2006). Post-Interview CasesIn 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.
Pre-Interview 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. In these cases, courts have found that a plaintiff is a prevailing party under EAJA if he or she has an enforceable court order requiring the agency to complete the application. These courts have said that USCIS' conduct is not substantially justified when the agency provides no detailed explanation for the delay and attempts to attribute the delays to the FBI. Further, some courts have found that the government's litigation position that USCIS does not have a duty to adjudicate applications within a reasonable amount of time is contrary to the trend of the law and is not substantially justified.
Please contact AILF at clearinghouse@ailf.org if you have received EAJA fees in a case not listed above so that we may include it on this list. Court Finds FBI Name Check Program is not Authorized by Statute or Regulation; Orders Notice and Comment 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.
Muslim Men File Lawsuit Alleging Unreasonable Delay of Post-Interview Naturalization Applications 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 have completed naturalization interviews application and have waited between two and four years for a final decision on their applications. The complaint alleges that defendants' delay in adjudicating the applications violates INA § 336(b) and the APA. Plaintiffs request that the court remand plaintiffs' applications to USCIS with instructions to complete adjudication within 30 days of the court's order. In addition plaintiffs seek declaratory and injunctive relief and attorneys fees. Update on Natz Delay Class Actions Naturalization applicants have filed several class actions challenging DHS' failure to issue decisions. The following cases are pending. The courts have not yet certified any of the proposed classes. Ignatyev v. Chertoff, No. 08-1547 (E.D. Pa. filed April 1, 2008) Two 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 also are alleging due process violations and that the 2002 expansion of the FBI name check process violates the APA's notice and comment requirements. 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. 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 February 15, 2008, defendants filed a motion to dismiss and plaintiffs filed a motion for class certification. A hearing on the motions is scheduled for May 5, 2008. 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 ask 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 ask the court to find that defendants have violated the APA by not issuing decisions on the naturalization application and not completing the name checks "within a reasonable time." In addition, Plaintiffs allege that the defendants violated the APA by implementing the name check procedure without notice and comment. Defendants filed a motion to dismiss and plaintiffs filed a motion to certify the class. The proposed class includes all LPRs residing in the Western District of Washington who have 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. In its order, the court 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 are 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. With respect to 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. The court also found that the named plaintiffs are adequate class representatives, rejecting the government's argument that class treatment would create antagonism among class members by disrupting the order in which applications are adjudicated. The court reasoned, "an injunction would likely instruct USCIS to complete the name checks and adjudicate all naturalization applications by the same date certain." The court also noted that it could resolve the problem of placing all class members' applications on hold during the litigation, including those whose name checks are completed during the pendency of the litigation, by allowing potential class members to opt-out of the class. Finally, the court found that plaintiffs' case satisfies Fed. R. Civ. P. 23(b)(2) requiring that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." The court held that plaintiffs satisfied the dual requirements of the rule because defendants 1) impose a name check requirement that must be completed before naturalization applications can be adjudicated and 2) plaintiffs seek injunctive relief to end this delay and change defendants' policies. 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 "[a]ll persons 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 natz 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. In September 2007, the court granted a motion to dismiss with respect to the APA, notice and comment, and due process claims, but denied the motion with respect to the section 1447(b) claim. Plaintiffs filed an amended complaint on November 15, 2007. A motion for class certification is pending. Yakubova v. Chertoff, 06 Civ. 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 requires 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 meet these criteria. USCIS must complete the adjudication process by August 25, 2008 and must schedule approved applicants for an oath of citizenship within 45 days of approval. If on or before September 2, 2008, USCIS has adjudicated fewer than 90% of the applicants, the court will determine if defendant's failure to adjudicate was reasonable, and if not, what relief should be ordered. The case is Yakubova v. Chertoff, No. 06-3203 (E.D.N.Y. July 7, 2008). 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. At least two other class actions have been closed. In Aziz v. Gonzales, 06-4791 (C.D. Cal.), the plaintiffs withdrew their class action allegations and USCIS agreed to adjudicate the named plaintiffs' naturalization applications within 10 or 30 days. In Zhang v. Gonzales, No. 07-0503 (N.D. Cal.), several plaintiffs voluntarily moved for dismissal and refiled their case as Ahmadi v. Chertoff, No. 07-3455 (see description above). Fifth Circuit Reverses Position in Natz Delay Case Walji; Court Agrees with AILA Amicus Brief In a rare turnabout, the Fifth Circuit granted a petition for rehearing and reversed itself in Walji v. Gonzales, 500 F.3d 432 (5th Cir. 2007). The court thus opened the door for naturalization applicants to seek judicial remedies for government delays. The case was brought under 8 U.S.C. § 1447(b). Under this provision, district courts have jurisdiction over naturalization applications that are pending for more than 120 days after the date on which USCIS conducts the examination of the applicant. In the original decision, dated June 19, 2007, the Fifth Circuit held that the 120-day period does not begin to run until after the FBI check is complete. Following this decision, the petitioner filed a petition for rehearing en banc. AILA submitted an amicus brief in support of the rehearing petition. In its September 14, 2007 order, the court granted the petition for panel rehearing, withdrew its June 19, 2007 opinion, and issued a new opinion. The court concluded that the statutory language, the regulations, and the legislative history of § 1447(b) all indicate that the "examination" in § 1447 means the naturalization interview and that the 120 days begins to run from the date of the interview. For more information about district court cases addressing the jurisdictional issue in Walji, see the article below titled, "Courts Reject Danilov in Natz Delay Actions, Finding Jurisdiction." Fifth Circuit Interprets Fourth Circuit Law As Arguably Rejecting Danilov In Walji v. Gonzales, 500 F.3d 432, (5th Cir. 2007), the Fifth Circuit reads the recent 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). In Danilov, the district court dismissed a § 1447(b) petition where the FBI check was not complete. For more information about Danilov and district court cases addressing this jurisdictional issue, see the article below titled, "Courts Reject Danilov in Natz Delay Actions, Finding Jurisdiction." 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 found that INA § 336(b) gives the court exclusive jurisdiction and that DHS does not share jurisdiction over the application. In a recent decision, Etape v. Chertoff, No. 06-1916, No. 06-1990, __ F.3d __, 2007 U.S. App. LEXIS 18348 (4th Cir. August 2, 2007) the Fourth Circuit joined the Ninth Circuit and held that a district court has exclusive jurisdiction over a naturalization application after a plaintiff files a § 336(b) suit. In Etape, the Fourth Circuit reasoned that § 336(b) allows a naturalization applicant to file a district court action seeking either a naturalization decision from the court or a remand with instructions to the agency in any case where USCIS has delayed making a decision more than 120 days following the naturalization examination. In Etape and its companion case Rahim, the plaintiffs each waited well over 120 days after their naturalization examinations before seeking relief in district court. After they filed their suits, USCIS denied both naturalization cases. In both cases, the District Court granted the government's motions to dismiss, finding that the agency had concurrent jurisdiction with the court and that the § 336(b) actions were moot. The Fourth Circuit reversed, holding that, once a § 336(b) action is filed, USCIS loses jurisdiction over a naturalization application and the district court obtains exclusive jurisdiction. Because USCIS lacked jurisdiction in these two cases once the § 336(b) actions were filed, the Fourth Circuit held that USCIS did not have the authority to deny the naturalization applications. Several district courts held that the court obtains exclusive jurisdiction over a naturalization application after a § 336(b) suit is filed:
Prior to Etape, other courts took the opposite position and held that USCIS has concurrent jurisdiction with a federal court after a plaintiff files a §336(b) action. See, e.g., Perry v. Gonzales, No, 06-313, 2007 U.S. Dist. LEXIS 7039 (D.N.J. 2007); Maki v. Gonzales, 2007 U.S. Dist. LEXIS 55588 (C.D. Utah July 30, 2007). Courts Reject Danilov in Natz Delay Actions, Finding Jurisdiction Numerous district courts nationwide are rejecting the government's arguments that Danilov v. Aguirre, 370 F. Supp 2d 441 (E.D. Va. 2005), applies. Instead, the courts are finding that they have jurisdiction over petitions for hearing on naturalization applications brought under INA § 336(b), 8 U.S.C. § 1447(b), even when the FBI check is not complete. The INA requires the government to make a determination on naturalization applications within 120 days of the interview (i.e., the "examination."). If the application is not adjudicated 120 days after the "examination is conducted," under INA § 336(b), an applicant may file a petition in district court seeking judicial adjudication of the application or a remand to USCIS. The government takes the position that the "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. The district court in Danilov adopted this reasoning and dismissed the petition where the FBI check was not complete. At least five district courts have followed Danilov:
Other courts, however, interpret the 120-day period as running from the date of the naturalization interview. Court of Appeals
Arizona
California
Colorado
District of Columbia
Florida
Georgia
Illinois
Massachusetts
Michigan
Minnesota
Missouri
New Jersey
New York
Ohio
Oregon
Pennsylvania
Rhode Island
Texas
Virginia
Washington
What Type of Relief Does the Court Grant? 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. Remand to USCIS With or Without Deadlines for Adjudication Recently, many courts have declined to adjudicate the applications and are remanding the cases to USCIS to await completion of the 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. 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.
Evidentiary Hearing on the Naturalization Application Although many courts now choose to remand the case to USCIS, some courts hold naturalization hearings. In one recent case, Lifshaz v. Gonzales, No. 06-1470, 2007 U.S. Dist. LEXIS 28946 (W.D. Wash. 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. 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. 2006) (scheduling a hearing instead of remanding the case to USCIS). USCIS Policy Regarding Expediting Procedures On February 20, 2007, USCIS announced that it will no longer request that the FBI expedite a name check request when a mandamus action is filed in federal court. See USCIS press release. This policy actually took effect several months prior to the announcement. See Aytes Memo. Previously, a writ of mandamus was one criterion that USCIS considered when deciding whether to request that the FBI expedite a name check. See USCIS 2005 name check memo. The extent to which this new policy affects mandamus actions is still unclear. Practitioners continue to report that the government is mooting mandamus actions by taking the action requested in the complaint; other practitioners, however, report that the U.S. Attorneys are defending the government more aggressively than in the past. Please note that USCIS will still request expedites of name checks if requests include "compelling reasons" such as critical medical conditions. See Aytes Memo, p. 6. District Court Sua Sponte Dismisses Natz Delay Suits Under Danilov Four § 336(b) suits in the district court for the Southern District of Texas, Houston were dismissed sua sponte for alleged lack of subject matter jurisdiction prior to service of the complaints on defendant. The court based its dismissals on the fact that the 120-day period had not been triggered because the FBI checks had not been completed. The dismissal follows the reasoning set forth in Danilov v. Aguirre, 370 F. Supp 2d 441 (E.D. Va. 2005), discussed below. AILF's Legal Action Center filed amicus letter briefs in support of motions to reconsider in each of the four cases. In its letter briefs, AILF argued that sua sponte dismissal was inappropriate under Fifth Circuit law because the conclusion that it lacked jurisdiction was also a decision on the merits of the plaintiff's cause of action. Plaintiffs thus were entitled to an opportunity to brief the issue prior to the court ruling. Days after the motions were filed, the court summarily denied two of the motions. Let us know if a court similarly dismisses your client's petition. Email us at clearinghouse@ailf.org. The four cases were dismissed by the same judge. Other judges in this district have not dismissed cases under the theory that the 120-day period has not been triggered because the FBI checks are not complete. | |
|
Additional Resources
| |
|
AILF Practice Advisories
Mandamus Actions: Avoiding Dismissal and Proving the Case Government Memos
Government Press Releases
Court Rules and Documents
PACER (Public Access to Court Electronic Records): Provides docket information and documents filed in district court actions. Increasingly, district courts are posting pleadings on PACER. Complaints
AILA’s Immigration Litigation Toolbox See also PACER for other additional complaints. |
|
