Alzuraiki v. Heinauer

• Decision Date: 13 February 2008
• Docket Number: No. 4:07CV3189.,4:07CV3189.
• Citation: 544 F.Supp.2d 862
• Parties: Loai Saleh ALZURAIKI, Plaintiff, v. Gerard HEINAUER, Director Nebraska Service Center, U.S. Citizenship and Immigration Services, Mark Hansen, District Director, U.S. Citizenship and Immigration Services, Cleveland, Ohio Office, Emilio T. Gonzalez, Director, U.S. Citizenship and Immigration Services, Michael B. Mukasey, Attorney General of the United States, Michael Chertoff, Secretary, Department of Homeland Security, and Robert S. Mueller, III, Director of the Federal Bureau of Investigation, Defendants.
• Court: U.S. District Court — District of Nebraska

Page 862

544 F.Supp.2d 862

Loai Saleh ALZURAIKI, Plaintiff, v. Gerard HEINAUER, Director Nebraska Service Center, U.S. Citizenship and Immigration Services, Mark Hansen, District Director, U.S. Citizenship and Immigration Services, Cleveland, Ohio Office, Emilio T. Gonzalez, Director, U.S. Citizenship and Immigration Services, Michael B. Mukasey, Attorney General of the United States, Michael Chertoff, Secretary, Department of Homeland Security, and Robert S. Mueller, III, Director of the Federal Bureau of Investigation, Defendants.

No. 4:07CV3189.

United States District Court, D. Nebraska.

February 13, 2008.

Margaret W. Wong, Wong & Associates Law Firm, Cleveland, OH, for Plaintff.

Laurie M. Barrett, Assistant United States Attorney, Omaha, NE, for Defendants.

MEMORANDUM AND ORDER

RICHARD G. KOPF, District Judge.

The plaintiff submitted a N^00 application for naturalization to U.S. Citizenship and Immigration Services ("USCIS"). The plaintiff has not yet been interviewed because the Federal Bureau of Investigation ("FBI") name check is not complete, so he seeks to speed up the decision making. Jurisdiction is asserted under 28 U.S.C. § 1361 (Mandamus Act), 5 U.S.C. §§ 555 and 701 et seq. (Administrative Procedure Act or "APA"), and 28 U.S.C. § 1331 (federal question jurisdiction).¹ This action is before me upon a motion to dismiss for lack of jurisdiction, or, alternatively, for failure to state a claim. I will grant the motion for the reasons set forth below.

BACKGROUND

Plaintiff Loai Saleh Alzuraiki filed a complaint seeking to compel Gerard Heinauer, the Director of the Nebraska Service Center, USCIS; Mark Hansen, District Director of USCIS; Emilio Gonzalez, Director of USCIS; Michael B. Mukasey², the U.S. Attorney General; Michael Chertoff, Secretary, Department of Homeland Security; and Robert S. Mueller, III, Director of the FBI to adjudicate his N-400 application for naturalization. Plaintiff alleges that Defendants have breached a nondiscretionary duty to adjudicate his application within a reasonable time Specifically, Plaintiff asks that the court assume jurisdiction over his N-400 application for naturalization³, declare that the delay in adjudicating the application is unreasonable, compel the defendants to immediately take all actions necessary to adjudicate the application within sixty days of the court's order, award attorney's fees, and grant any other relief deemed proper. (Complaint at CM/ECF page 9.) Next, I briefly describe the naturalization process to provide a context for my decision.

The Attorney General has the sole authority to naturalize persons. 8 U.S.C. § 1421(a). USCIS acts on behalf of the Attorney General in naturalization matters. The steps in becoming naturalized are as follows. First, an applicant must submit an application for naturalization to USCIS, on Form N-100. 8 U.S.C. § 1445(a), 8 C.F.R. § 334.2. Next, an "investigation/ examination" of the applicant is conducted. 8 U.S.C. § 1446(a) (USCIS employee, or an employee of the United States designated by the Attorney General, "shall conduct a personal investigation"); 8 U.S.C. § 1446(b) (Attorney General shall designate USCIS employees to "conduct examinations."). As part of the § 1446 "investigation/examination," USCIS requests that the FBI conduct a background check, which includes a name check. The "investigation/examination" also includes an interview of the applicant by USCIS. 8 C.F.R. § 335.2(a). Following this "investigation/examination" stage, USCIS makes a determination whether the application should be granted or denied. 8 U.S.C. § 1446(d).

If the application is granted, the applicant participates in a citizenship oath ceremony. 8 U.S.C. 1448(a). If the application is denied, the unsuccessful applicant may seek review in the United States district court for the district in which such person resides (after exhausting the administrative remedy of appealing the denial to an immigration officer). 8 U.S.C. § 1421(c); 8 C.F.R. § 336.9(d). If there has been no decision on the application within 120 days after the USCIS interview, the applicant may apply to a United States district court for a hearing, and the district court may either determine the matter or remand it with instructions. 8 U.S.C. § 1447(b); see, e.g., Walji v. Gonzales, 500 F.3d 432 (5th Cir.2007) (120-day period of § 1447(b) begins to run after USCIS interview, rather that after the background investigation is complete).

Here, the parties agree that the name check request was electronically submitted to the FBI in July, 2006, less than two weeks after Plaintiff filed his N-400 application and that the application remains pending because the FBI name check has not been completed. Plaintiff has not yet been scheduled for an interview by USCIS.

DISCUSSION

I do not review the familiar standards applicable to Fed.R.Civ.P. 12(b)(1) jurisdictional challenges or Fed.R.Civ.P. 12(b)(6) motions to dismiss for failure to state a claim.⁴ Plaintiff asserts jurisdiction, and that he has stated a claim, under the APA and the Mandamus Act.

I have jurisdiction over the APA claim only if §§ 702 and 706(1) of the APA, in combination with the federal question statute, 28 U.S.C. § 1331, provide jurisdiction. To invoke jurisdiction under the APA, a plaintiff must show that (1) an agency had a nondiscretionary duty to act and (2) the agency unreasonably delayed in acting on that duty. See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63-65, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). "[A] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. This includes judicial review to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1).

"Failures to act are sometimes remediable under the APA, but not always." Norton, 542 U.S. at 61, 124 S.Ct. 2373 (2004). "[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Id. at 64, 124 S.Ct. 2373 (emphasis in original). As another court has noted:

The essential allegation, that the action is "unreasonably delayed" is not a ground for jurisdiction. As the Supreme Court noted, "a delay cannot be unreasonable with respect to action that is not required." Norton, 542 U.S. at 63, n. 1 . Therefore, a court only has jurisdiction to compel an agency to act within a certain time period under the APA when the agency is compelled by law to act within a certain time period. See id.

Dong Liu v. Chertoff, No. 07CV0005 BEN, 2007 WL 1300127 at *6 (S.D.Cal. April 30, 2007) (emphasis added).

The Mandamus Act provides that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. As the Eighth Circuit has explained:

A district court may grant a writ of mandamus only in extraordinary situations and only if: (1) the petitioner can establish a clear and indisputable right to the relief sought, (2) the defendant has a nondiscretionary duty to honor that right, and (3) the petitioner has no other adequate remedy. In re SDDS, Inc., 97 F.3d 1030, 1034 (8th Cir.1996). Further, whether a writ of mandamus should issue is largely a matter within the district court's discretion. See In re MidAmerican Energy Co., 286 F.3d 483, 486 (8th Cir.2002) (per curiam).

Castillo v. Ridge, 445 F.3d 1057, 1060-1061 (8th Cir.2006) (emphasis added).

Whether this court has jurisdiction, under either the APA or the Mandamus Act, and whether the complaint states a claim depends wholly upon whether Defendants have a nondiscretionary duty to adjudicate naturalization applications — prior to the interview which triggers the 120-day period of 8 U.S.C. § 1447(b) — within a reasonable time.⁵ I could conclude that this court has jurisdiction because the APA and Mandamus Act claims are clearly claims raising federal questions, and then consider whether the defendants owe a duty in the context of whether the complaint states a claim for relief. Alternatively, I could reach the duty question when deciding whether this court has jurisdiction. Whichever approach I use, the result will be the same, as I find that neither USCIS or the FBI has the requisite duty.

USCIS

USCIS can be compelled to act under § 706(1) of the APA only if it has withheld action "legally required." Norton, 542 U.S. at 63, 124 S.Ct. 2373. USCIS is legally required to take further action now on Plaintiffs application only if there is a clear, nondiscretionary duty to adjudicate naturalization applications — prior to the interview which triggers the 120-day period of 8 U.S.C. § 1447(b) — within a reasonable time. USCIS has no such duty⁶, since the next action USCIS could take is legally prohibited.

The next action for USCIS to take regarding Plaintiffs naturalization application is to hold the interview. However, USCIS is prohibited from interviewing Plaintiff until USCIS receives "a definitive response from the Federal Bureau of Investigation that a full criminal background check⁷ of the individual has been completed." 8 C.F.R. § 335.2(b); see also Pub.L. No. 105-119, Title I, 111 Stat. 2448 (Nov. 26, 1997), reprinted in Historical and Statutory Notes following 8 U.S.C.A. § 1446 (beginning with fiscal year 1998, no USCIS funds may be "used to complete adjudication of an application for naturalization unless [USCIS] has received confirmation from the [FBI] that a full criminal background check has been completed....").⁸

The naturalization statutes and regulations do not prescribe a time limit for the pace of the "investigation/examination" required by § 1446. The only time limit relates to the USCIS interview which is part of that "investigation/examination."...