Hamdan v. Chertoff

• Decision Date: 17 December 2007
• Docket Number: No. CIV 07-700 JB/ACT.,CIV 07-700 JB/ACT.
• Citation: 626 F.Supp.2d 1119
• Parties: Ziad Kamal Bou HAMDAN, Plaintiff, v. Michael CHERTOFF, Secretary of Department of Homeland Security, Alberto Gonzales, U.S. Attorney General, Emilio T. Gonzalez, Director of United States Citizenship and Immigration Services, Raymond P. Adams, District Director of United States Citizenship and Immigration Services, El Paso District Office, Betty Garcia, Officer in Charge of United States Citizenship Immigration Services, Albuquerque Sub Office, Robert S. Mueller, III, Director & Federal Bureau of Investigations, Defendants.
• Court: U.S. District Court — District of New Mexico

626 F.Supp.2d 1119

Ziad Kamal Bou HAMDAN, Plaintiff, v. Michael CHERTOFF, Secretary of Department of Homeland Security, Alberto Gonzales, U.S. Attorney General, Emilio T. Gonzalez, Director of United States Citizenship and Immigration Services, Raymond P. Adams, District Director of United States Citizenship and Immigration Services, El Paso District Office, Betty Garcia, Officer in Charge of United States Citizenship Immigration Services, Albuquerque Sub Office, Robert S. Mueller, III, Director & Federal Bureau of Investigations, Defendants.

No. CIV 07-700 JB/ACT.

United States District Court, D. New Mexico.

December 17, 2007.

Erlinda O. Johnson, Albuquerque, NM, for Plaintiff.

Larry Gomez, Acting United States Attorney, John Zavitz, Assistant United States Attorney, United States Attorney's Office for the District of New Mexico, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Defendants' Motion to Dismiss Based on Mootness, or in the Alternative for Remand and Memorandum in Support, filed December 3, 2007 (Doc. 26); and (ii) the Unopposed Request for Expedited Ruling, filed December 4, 2007 (Doc. 30). The Court held a hearing on the motions on December 7, 2007. The primary issues are: (i) whether the Court should dismiss Plaintiff Ziad Kamal Bou Hamdan's Complaint as moot because the United States Customs and Immigration Service ("USCIS")¹ belatedly issued a decision denying Hamdan's application for naturalization on November 19, 2007; (ii) whether, in the alternative, the Court should remand the matter to the agency for a final administrative review decision with instructions to render such decision within the 180-day time period that the regulations provide; and (iii) whether the Court should issue an expedited ruling on the Defendants' motion to dismiss for mootness by December 19, 2007. Because Bou Hamdan needs a prompt ruling from the Court so that he can decide whether to seek an administrative appeal of the USCIS' determination, the Court will grant the request for an expedited ruling and will issue an expedited ruling before 10:00 a.m. on December 17, 2007 on the United States' motion. Bou Hamdan's counsel has indicated that he has an appointment with the USCIS scheduled for December 17, 2007. See Transcript of Hearing(taken December 7, 2007)("Tr.") at 2:23-3:4 (Johnson).² The Court denies Defendants' Motion to Dismiss Based on Mootness, or in the Alternative for Remand and Memorandum in Support and will retain jurisdiction over the case and proceed to trial. Because the USCIS has not made a final determination in Bou Hamdan's favor, there remains a live case or controversy between the parties, and thus the harm Hamdan complains of is still ongoing. The Court concludes that 8 U.S.C. § 1447(b) does not confer exclusive jurisdiction. The Court reads the plain language of the statute as conferring jurisdiction on the federal court if the USCIS has not ruled on an applicant's application within 120 days, and there is nothing in the statute that deprives the USCIS of jurisdiction.

FACTUAL BACKGROUND

Bou Hamdan is a forty-one year old native of Lebenon. See id. ¶ 8, at 3. He became a lawful permanent resident of the United States on May 31, 2000. See id. On October 17, 2006, Bou Hamdan filed his N-400 form. See Plaintiff's Complaint for Declaratory Relief in the Nature of Mandamus and Petition for a Hearing on Naturalization Application Pursuant to 8 U.S.C. § 1447(b) ¶ 2, at 2, filed July 25, 2007 (Doc. 1)("Complaint"). Officer Argie Navarette interviewed Bou Hamdan at the USCIS Albuquerque Sub-Office on March 13, 2007. See id. ¶ 3, at 2. Bou Hamdan represents that he successfully passed the English language, history, government tests, and FBI background check. See id. More than 120 days passed after Bou Hamdan's interview without any decision by the USCIS. See id.

PROCEDURAL BACKGROUND

On July 25, 2007, Bou Hamdan filed a Complaint against the Defendants petitioning the Court for a hearing on his naturalization application. See Plaintiff's Complaint for Declaratory Relief in the Nature of Mandamus and Petition for a Hearing on Naturalization Application Pursuant to 8 U.S.C. § 1447(b) at 1, filed July 25, 2007 (Doc. 1)("Complaint"). Bou Hamdan explained that he brought his action "to compel defendants to perform a duty they owe to [him]; or for this Court to hold a hearing on [his] naturalization application, adjudicate same and grant him naturalization pursuant to 8 U.S.C. § 1447(b)." Complaint ¶ 1, at 2. Bou Hamdan also brought the action "to compel defendants and those acting under them to take action on [his] naturalization application, submitted on an N-400 form on October 17, 2006." Id. ¶ 2, at 2.

Bou Hamdan contends that: "More than 120 days have passed since the interview in this matter, thus vesting jurisdiction with this Court under 8 U.S.C. § 1447." Id. ¶ 4, at 2. Bou Hamdan contends that the Court has jurisdiction "pursuant to 8 U.S.C. § 1447(b), with jurisdiction being had under 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 2201 (declaratory judgment) and 5 U.S.C. § 701 (Administrative Procedures Act)." Id. ¶ 6, at 2. Bou Hamdan requests "a hearing before this Court pursuant to 8 U.S.C. § 1447(b) and also seeks a de novo judicial determination of his naturalization application and a grant of naturalization from this court." Complaint ¶ 24, at 6. Alternatively, Bou Hamdan requests that "the Court remand the application to USCIS with an order that it immediately adjudicate his application." Id. ¶ 25, at 6.

The USCIS Albuquerque Field Office issued a decision denying Bou Hamdan's application for naturalization on November 19, 2007. See Defendants' Motion to Dismiss Based on Mootness, or in the Alternative for Remand and Memorandum in Support ("Motion"), filed December 3, 2007 (Doc. 26); id., U.S. Department of Homeland Security Decision at 1(dated November 19, 2007) ("USCIS' decision"). As indicated in the USCIS' decision, Bou Hamdan has a right to seek administrative review under § 336(a) of the Immigration and Nationality Act. See USCIS decision at 1.

Bou Hamdan filed a Motion for Summary Judgment seeking to compel the USCIS' adjudication of his naturalization application. See Motion for Summary Judgment at 7, filed October 10, 2007 (Doc. 24). Bou Hamdan withdrew his Motion for Summary Judgment on November 28, 2007. See Doc. 25.

On December 3, 2007, the Defendants filed with the Court a motion to dismiss Bou Hamdan's Complaint based on mootness. See Motion. The Defendants request that the Court dismiss this action without prejudice because of mootness or, in the alternative, that the Court remand the matter to the agency for a final administrative review decision with instructions to render such decision within the 180 day time period that the regulations require. See Motion at 15-16. The Defendants contend that 8 U.S.C. § 1447(b)'s plain language supports concurrent jurisdiction between this Court and USCIS. See Motion at 2-8. "The clear language shows that jurisdiction for a district court is premised on a naturalization application that has not yet been adjudicated by the USCIS, unless the applicant has exhausted all of his administrative remedies." Id. at 4 (citing 8 C.F.R. § 336.9(d)). The Defendants contend that their construction of the statute is consistent with 8 U.S.C. § 1421(c). See Motion at 8. The Defendants argue that "[t]here is no inconsistency between construing § 1447(b) to provide for concurrent jurisdiction and the judicial review provisions set forth in § 1421(c)." Motion at 9. The Defendants also contend that § 1447's legislative history and congressional intent support their construction. See Motion at 9-13. Finally, the Defendants argue that, even if exclusive jurisdiction is vested in the Court, this matter should be remanded to the USCIS for a final agency decision on Bou Hamdan's application. See Motion at 13-15.

Bou Hamdan opposes the Defendants' motion. See Plaintiff's Response to Defendants' Motion to Dismiss Based on Mootness and Request for Expedited Hearing on Naturalization Application, filed December 4, 2007 (Doc. 27) ("Response"). On December 4, 2007, Bou Hamdan filed his response to the Defendants' motion. See id. Bou Hamdan contends that his request for relief from the Court in the form of a hearing on his naturalization application is not moot. See Response at 2. "In this case, it is without dispute that USCIS failed to make a decision on [Bou Hamdan's] naturalization application within 120 days of his first interview in March 2007." Id. Bou Hamdan argues that "[t]he 120-day period commences from the date of the first examination regarding a naturalization application." Id. (citing 8 C.F.R. §§ 335.3 and 336.1). Bou Hamdan contends that the "USCIS' purported denial of [his] application is invalid because USCIS did not have jurisdiction to deny his naturalization application." Response at 3. Bou Hamdan maintains that once the Court has acquired jurisdiction of a case, either through the appellate process or because USCIS failed to act within 120 days, "jurisdiction for decision making and administering the oath of citizenship lies exclusively with [the] [C]ourt." Id. (citing H.R.Rep. No. 101-187, at 14 (1990)("Upon petitioning the court, jurisdiction for decision-making and conducting the final oath of citizenship lie with the court."). Bou Hamdan argues that 8 U.S.C. § 1447(b) confers exclusive jurisdiction over his naturalization application because 120 days have passed, he has properly invoked the Court's authority, and there are no deportation proceedings currently pending against him. See Response at 4 (citing United States v. Hovsepian, 359 F.3d 1144, 1164 (9th Cir.2004)). Bou Hamdan states that "[t]he majority of district courts to have considered the issue have relied upon [United States v. Hovsepian] Hovespian, 359 F.3d...