Edobor v. Onyango

• Decision Date: 10 May 2013
• Docket Number: Civil Action No. 1:12–CV–03632–AT.
• Citation: 944 F.Supp.2d 1338
• Parties: John Segun EDOBOR, Plaintiff, v. Paul ONYANGO, Director of the Atlanta District Office, USCIS; Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services; Robert S. Mueller, III, Director of Federal Bureau of Investigations; Michael A. Cannon, FBI Records Management Division; Janet Napolitano, Secretary, Department of Homeland Security; Eric H. Holder, Jr., U.S. Attorney General; and All Unknown Government Agencies Involved in Case/Security Checks, Defendants.
• Court: U.S. District Court — Northern District of Georgia

944 F.Supp.2d 1338

John Segun EDOBOR, Plaintiff,

v.Paul ONYANGO, Director of the Atlanta District Office, USCIS; Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services; Robert S. Mueller, III, Director of Federal Bureau of Investigations; Michael A. Cannon, FBI Records Management Division; Janet Napolitano, Secretary, Department of Homeland Security; Eric H. Holder, Jr., U.S. Attorney General; and All Unknown Government Agencies Involved in Case/Security Checks, Defendants.

Civil Action No. 1:12–CV–03632–AT.

United States District Court,

N.D. Georgia,

Atlanta Division.

May 10, 2013.

Leslie A. Diaz, Rajeshri Shah Patel; Siskind Susser P.C., for Plaintiffs.

Aileen Bell Hughes; Office of United States Attorney, Northern District of Georgia, for Defendant.

ORDER

AMY TOTENBERG, District Judge.

This matter is before the Court on Defendant's Motion to Dismiss [Doc. 7]. For the following reasons, the Court DENIES the motion.

I. BACKGROUND

Plaintiff John Segun Edobor is a citizen of Canada and Liberia and a lawful permanent resident of the United States. (Compl. ¶ 19.) On June 16, 2011, Plaintiff filed a Form N–400 Application for Naturalization with the United States Citizenship and Immigration Services (hereinafter “USCIS”). ( Id.) On October 12, 2011, Plaintiff completed his application interview/examination and successfully passed his English and U.S. history tests. ( Id.)

The USCIS took no action on Plaintiff's application for more than one year. ( Id. ¶ 20.) Plaintiff made numerous inquiries with USCIS and was advised that his case required additional review. ( Id. ¶ 21.) Plaintiff alleges he complied with all of Defendants' requirements necessary for adjudication of his N–400 application. ( Id. ¶ 25.)

On October 18, 2012, Plaintiff filed a Complaint seeking judicial determination of his naturalization application and a declaration that Plaintiff is eligible for naturalization. Alternatively, Plaintiff requests mandamus, injunctive, and declaratory relief in the form of an order compelling Defendants to complete his background check and adjudicate Plaintiff's application.

On February 20, 2013, while this action was pending, USCIS denied Plaintiff's application to become a U.S. citizen.

II. DISCUSSION

Defendants argue that Plaintiff's Complaint should be dismissed as moot following USCIS' denial of his naturalization application. Plaintiff argues in response that his Complaint is not moot because (1) this Court is vested with exclusive jurisdiction to adjudicate his application pursuant to 8 U.S.C. § 1447(b) after USCIS failed to make a decision within 120 days of his interview/examination; and (2) USCIS' subsequent denial of Plaintiff's application while this action was pending was a nullity.

Congress charged USCIS with the primary responsibility of processing applications for naturalization. See8 U.S.C. § 1446; 8 C.F.R. §§ 334.2, 335.2, 335.3; Walji v. Gonzales, 500 F.3d 432, 433–34 (5th Cir.2007) (describing the statutory process for submitting and processing naturalization applicants); Martinez v. Secretary, Dept. of Homeland Sec., 670 F.Supp.2d 1325, 1327 (M.D.Fla.2009). However, Congress enacted 8 U.S.C. § 1447(b) to provide applicants with a mechanism to seek judicial review of a delayed naturalization application. See Walji, 500 F.3d at 438 (noting that “[a] central purpose of the statute was to reduce the waiting time for naturalization applicants”); United States v. Hovsepian, 359 F.3d 1144, 1159–1164 (9th Cir.2004) (stating that “Congress intended to streamline the process of applying for naturalization” when it enacted § 1447(b)); Martinez, 670 F.Supp.2d at 1327. Accordingly, the statute provides:

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.

8 U.S.C. § 1447(b) (emphasis added).

Although the Eleventh Circuit has not decided the question, every Circuit Court to address the scope of jurisdiction under Section 1447(b) has held that a district court acquires exclusive jurisdiction to determine a naturalization application once a complaint is filed pursuant to the statute after USCIS fails to adjudicate the application within 120 days of the initial examination. See Bustamante v. Napolitano, 582 F.3d 403, 406 (2nd Cir.2009) (holding that “a properly filed Section 1447(b) petition vests jurisdiction in the district court and divests USCIC of its jurisdiction to decide the application”); Etape v. Chertoff, 497 F.3d 379, 383–384 (4th Cir.2007) (giving Section 1447(b)'s words their ordinary meaning and concluding that a proper § 1447(b) petition vests the district court with exclusive jurisdiction over a naturalization application, unless and until the court remands the matter to the USCIS); United States v. Hovsepian, 359 F.3d 1144, 1159–1164 (9th Cir.2004) (holding that district court had exclusive rather than concurrent jurisdiction over naturalization application “[b]ased on the text of § 1447(b), the context of related statutory provisions, and Congress' policy objectives”); see also Walji v. Gonzales, 500 F.3d 432 (5th Cir.2007) (noting the weight of authority that § 1447(b) deprives the USCIS of jurisdiction over an application pending without action for more than 120 days after the initial interview upon an applicant's filing suit in the district court).

Additionally, several district courts in this Circuit have followed suit and held that the filing of a complaint pursuant to Section 1447(b) vests the court with exclusive jurisdiction over a plaintiff's naturalization application that cannot be rendered moot by a subsequent denial of the application by USCIS during the pendency of the litigation. Martinez v. Secretary, Dept. of Homeland Sec., 670 F.Supp.2d 1325 (M.D.Fla.2009) (interpreting language of § 1447(b) as compelling the conclusion that “once a district court acquires jurisdiction, that jurisdiction is exclusive”); Al–Atiyeh v. Swacina, 650 F.Supp.2d 1244 (N.D.Fla.2009) (finding that § 1447(b) confers exclusive jurisdiction on the district court based on precedent from Fourth and Ninth Circuits and because of the plain language of the statute); Izraileva v. Chertoff, 629 F.Supp.2d 1286 (M.D.Fla.2007) (following reasoning of Hovsepian and Etape and concluding that “the plain language of § 1447(b) and its legislative history confirms Congressional intent to strip CIS of jurisdiction if it does not adjudicate a naturalization application within 120 days of the applicant's examination”); Avidan v. Gonzales, No. 1:06–cv–1121–TCB, 2007 WL 1290458 (N.D.Ga. Mar. 19, 2007); Kalla v. Chertoff, No. 1:06–cv1732–MHS, 2007 WL 415157, *2 (N.D.Ga. Feb. 6, 2007); c.f. Bello–Camp v. Attorney General, U.S., 2009 WL 813146, *5 (M.D.Fla. Mar. 26, 2009) (holding that § 1447(b) confers concurrent jurisdiction upon the district court and USCIS).

Despite the overwhelming weight of authority supporting Plaintiff's position, Defendants assert in their Reply that the Court (1) no longer retains jurisdiction pursuant to Section 1447(b) once USCIS adjudicated Plaintiff's naturalization application and (2) lacks jurisdiction to adjudicate the application because Plaintiff failed to exhaust his administrative remedies pursuant to 8 U.S.C. § 1421(c). Curiously, Defendants do not attempt to distinguish any of the cases holding that Plaintiff's filing of a § 1447(b) petition deprives USCIS of authority to act on his pending naturalization application and confers exclusive jurisdiction over the matter to this Court. Rather, Defendants rely, in part, on Sze v. INS, 153 F.3d 1005 (9th Cir.1998), a 1998 opinion of the Ninth Circuit that was expressly distinguished and effectively overruled by the Ninth Circuit's 2004 opinion in Hovsepian.¹See Zaranska v. U.S. Dep't of Homeland Sec., 400 F.Supp.2d 500, 508 (E.D.N.Y.2005) (noting that Sze was overruled by Hovsepian ); Hovsepian, 359 F.3d at 1161 (distinguishing Sze on the grounds that the Sze plaintiffs brought a test case urging the court to issue a writ of mandamus to the INS to act on stalled naturalization applications, and never asked the court to decide the application itself). In Sze, the Ninth Circuit dismissed an appeal for lack of jurisdiction as a result of INS having granted the petitioners' naturalization applications during the litigation. Indeed, since its decision in Sze, the Ninth Circuit has held that the filing of a complaint under Section 1447(b) deprives USCIS of its authority to adjudicate pending naturalization applications. Hovsepian, 359 F.3d at 1161 (distinguishing Sze and stating “because the requested relief was INS action and the INS had acted definitively in the plaintiff's favor by the time the case reached us [—] the applicants had become citizens [—] mootness was the only possible conclusion we could draw ... Sze did not make any substantive holding concerning the naturalization procedures that we expressly did not consider).

Citing Sze, Defendants describe naturalization as a four-stage process that includes: (1) the submission of an application to INS; (2) an INS/FBI background investigation; (3)(a) applicant interview by INS naturalization examiner; (3)(b) INS adjudication of application; and (4) the naturalization ceremony and administrationof the oath of citizenship. ( See Reply at 2–4 (citing Sze, 153 F.3d at 1007–1008).) According to Defendants, enmeshed somewhere between the third and fourth stages is Section 1447(b)'s procedure for applicants to request a hearing before a district court on a stalled naturalization application. Defendant summarizes this process as...