Hussain v. Chertoff
| Decision Date | 10 May 2007 |
| Docket Number | C.A. No. 06-11926-MLW. |
| Citation | 486 F.Supp.2d 196 |
| Parties | Jawad HUSSAIN, Plaintiff v. Michael CHERTOFF, Emilio T. Gonzelez, Denis Riordan, and Robert S. Mueller, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Gregory Romanovsky, Law Office of Boris Maiden, Brookline, MA, for Plaintiff.
Mark T. Quinlivan, United States Attorney's Office, Boston, MA, for Defendants.
Plaintiff Jawad Hussain seeks relief pursuant to 8 U.S.C. § 1447(b) and asks that the court grant his application for naturalization. Although the government has persistently delayed adjudication of this matter, it does not now seek a remand to the United States Citizenship and Immigration Services ("USCIS") or oppose the plaintiffs application. After a hearing on April 20, 2007, the court finds that Hussain has met all the necessary requirements of citizenship and has demonstrated the earnest desire to join his family in assuming the privilege and obligations of that office. Therefore, his petition is being allowed and USCIS is being ordered to cause Hussain to be naturalized forthwith.
In March, 2004, Hussain filed an application for naturalization with USCIS. A native of Bangladesh and a citizen of Paidstan, Hussain has fulfilled the five year physical presence requirement and all other administrative prerequisites for a naturalization application. March 26, 2007 Hussain Aff. ¶¶ 1, 2; March 20, 2007 Sposato Aff. ¶¶ 20-21.
A background check by the Federal Bureau of Investigation ("FBI") was completed on about August 17, 2004. That check indicated that Hussain might have a record on the Interagency Border Inspection System, a system that contains record and watch list information including, but not limited to, information related to persons who are wanted or under investigation for serious crimes or suspected of terrorism-related activity. However, no further background review was conducted at that time.
Hussain was interviewed by USCIS on November 17, 2004. The defendants did not, however, decide his application.
Two years after his completed interview, Hussain petitioned this court for relief. Only then did USCIS renew its investigation. It first requested Hussain's file from the Boston District Office. However the file was lost. In 2007, after obtaining a duplicate file, USCIS collected what it characterized as classified information on Hussain.
Subsequently, USCIS requested a second interview of Hussain. The request was not timely because a second interview must be conducted within 120 days of the first. See 18 C.F.R. § 335.3(a).1 Moreover, USCIS refused to describe the reasons for the requested second interview or the evidence to be submitted as required by the relevant regulation. Id. USCIS sought to justify its position by reference to the information's classified nature. Id. Hussain declined to be interviewed without the notice required by regulation. Id.
Since Hussain filed this action on October 23, 2006, adjudication of this case has been delayed by the government's conduct. Twice receiving requested extensions of time, the defendants did not respond to the petition until January 12, 2007, when they filed an answer. Representing that they would resolve the matter without judicial intervention, the defendants requested a delay of the hearing on the merits of the petition. The court allowed the parties more than a month to attempt to agree on a resolution of this matter.
On February 22, 2007, the court ordered that the parties make submissions in support of their positions. The proceedings were again delayed when the defendants did not inform the court of their position on the merits of Hussain's application. Instead, they requested that the court order a second interview of Hussain and a remand to USCIS for resolution of the application.
The defendants did not explain or seek to justify this request. Therefore, the court ordered the defendants to submit an affidavit in support of it. See March 15, 2007 Order. In addition, the court stated that a remand might not be warranted if the defendants could not explain their failure to resolve Hussain's application within the statutory 120-day period and assure the court that no further delays would occur. Id. Moreover, the court noted that it might not have the authority to order an additional interview without Hussain's consent. Id. (). Accordingly, the court ordered that the defendants address, among other things, why they had failed to make a timely decision on Hussain's application and what recommendation USCIS would make to the court on the then existing record. Id.
To explain why they did not decide Hussain's naturalization application within the 120 days after his initial interview as required by law, the defendants stated that the terrorist attacks of September 11, 2001 necessitated "more rigorous and thorough security checks on aliens[.]" March 20, 2007 Sposato Aff. ¶ 7. These demands "severely tested the abilities of the law enforcement agencies to provide timely responses and of USCIS to issue decision on applications promptly." Id. at ¶ 8. The defendants further explained that the unit established to address background checks was "unable to handle the volume of national security and public safety referrals that were being received from the field." Id. at ¶¶ 13-14.
Compounding these strains were UCIS's own administrative choices and failures. Following Hussain's November 17, 2004 interview, USCIS took responsibility for conducting "beginning-to-end processing of background security check resolution efforts" except for those cases already referred to other agencies. Id. at ¶ 25. The defendants presume that USCIS did not further investigate Hussain's application because it had already been referred to another agency. Id. In May, 2005, six months after Hussain's initial interview, USCIS decided that review by other agencies was inadequate. Id. Therefore, it ordered new background checks for all pending national security cases. Id. Apparently this included Hussain's. Id. Despite this order, no new check was completed for Hussain until seventeen months later, and only then because Hussain filed the instant petition. Id. at ¶¶ 25-27.
Finally, and despite the court's order that the defendants make a recommendation to it, the defendants stated only that the that they could neither recommend nor oppose Hussain's application for citizenship. Nevertheless, they continued to seek a remand and further interview of Hussain on the basis of classified information that was not revealed to the court.
After, a March 30, 2007 hearing on the request for a remand, the court ordered, among other things, that the defendants submit to it, ex parte and under seal, any relevant classified information. See April 2, 2007 Order. The defendants responded by informing the court that they no longer wished to use classified information and that they were, therefore, withdrawing their request for a remand and further interview. See Def. Response to Order of April 2, 2007.
Accordingly, on April 20, 2007, the court conducted an evidentiary hearing to develop information concerning Hussain's fitness for United States citizenship. At the outset of the hearing, the government represented that it did not oppose granting Hussain citizenship, but wished to ask him several questions.
At the hearing, Hussain testified that he had innocently but mistakenly asserted in his naturalization application that he had never been charged with committing a crime. He now knows that he was, while a student in Oklahoma sixteen years ago, charged with writing a check for which he had insufficient funds. The charge was filed between 1994 and 1995, while Hussain was residing temporarily in Pakistan. Hussain explained that he was not aware of the charge until he recently investigated his official records to ensure his eligibility for citizenship. Subsequently, the charge was dismissed, without a guilty finding or admission, when Hussain paid the outstanding debt.
In response to questions by the government, Hussain explained that he had made trips to Canada and Pakistan, had a brief layover in the United Kingdom, and in 2006 had telephoned his cousin in Pakistan to congratulate him on his wedding. That questioning elicited no information indicating that Hussain had contact with any criminals or terrorists on those trips, the call, or at any other time.
Rather, the evidence indicated that Hussain had successfully pursued the traditional immigrant's dream. While in the United States he earned a master's degree in business administration, progressed and prospered while rising to the position of vice-president of the Bank of America, and had four children born as American citizens. Hussain explained his sincere desire to join his wife and children by becoming a United States citizen. He expressed pride that his children could share in the opportunity, given to every American, "to excel. in every possible way." He also explained that he wanted to become a United States citizen in part because, in his nearly forty years, he had never had the opportunity to vote.
At the conclusion of the evidentiary hearing, the government stated again that it did not oppose Hussain's application for citizenship.
The law requires that USCIS decide to grant or deny an application for naturalization within 120 days of the initial interview. See 8 C.F.R. § 335.3(a).2 Failure to do so allows an applicant to apply to the United States District Court for relief. See 8 U.S.C. § 1447.3 A properly filed § 1447 application vests the court with jurisdiction to "determine the matter or remand the matter, with appropriate...
To continue reading
Request your trial
-
Kim v. McAleenan
...30 days, and noting that further hearing before immigration officer would develop the administrative record); Hussain v. Chertoff, 486 F. Supp. 2d 196, 200 (D. Mass. 2007) (noting that "[t]he court would generally prefer that USCIS, the expert agency charged with the primary responsibility,......
-
Taalebinezhaad v. Chertoff
...days, and noting that further hearing before immigration officer would develop the administrative record); Hussain v. Chertoff, 486 F.Supp.2d 196, 200 (D.Mass. 2007) (Wolf, C.J.) (noting that "[t]he court would generally prefer that USCIS, the expert agency charged with the primary responsi......