Issa v. Mueller

• Decision Date: 27 April 2007
• Docket Number: No. CIV.06 15683.,CIV.06 15683.
• Parties: Ghassan ISSA, Plaintiff, v. Robert S. MUELLER, III, Director, Federal Bureau of Investigation; Michael Cannon, Section Chief, National Name Check Program, Federal Bureau of Investigation; Alberto Gonzales, Attorney General of the United States; Emilio T. Gonzales, Director, U.S. Citizenship and Immigration Services; Michael Chertoff, Secretary, Department of Homeland Security; Carol Jenifer, District Director for the Detroit CIS District; James Reaves, Supervisory Director, Detroit CIS District; and Malaniak, Former District Adjudications Officer, Detroit CIS District, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

486 F.Supp.2d 668

Ghassan ISSA, Plaintiff, v. Robert S. MUELLER, III, Director, Federal Bureau of Investigation; Michael Cannon, Section Chief, National Name Check Program, Federal Bureau of Investigation; Alberto Gonzales, Attorney General of the United

States; Emilio T. Gonzales, Director, U.S. Citizenship and Immigration Services; Michael Chertoff, Secretary, Department of Homeland Security; Carol Jenifer, District Director for the Detroit CIS District; James Reaves, Supervisory Director, Detroit CIS District; and Malaniak, Former District Adjudications Officer, Detroit CIS District, Defendants.

No. CIV.06 15683.

United States District Court, E.D. Michigan, Southern Division.

April 27, 2007.

Bethany D. McAllister Armentero, Dearborn, MI, for Plaintiff Counsel.

Susan K. DeClercq, U.S. Attorney's Office (Detroit), Detroit, MI, for Defendant Counsel.

OPINION AND ORDER REMANDING CASE TO CITIZENSHIP AND IMMIGRATION SERVICE FOR PROMPT DECISION

FEIKENS, District Judge.

Plaintiff Ghassan Issa, a non-citizen, lawful, permanent resident of the United States, petitions this Court to grant his naturalization application, or in the alternative to issue a writ of mandamus to the government agencies involved in the process of approving his application to immediately complete processing his application. Defendants have moved to dismiss this case for lack of subject matter jurisdiction, or in the alternative to remand to Citizenship and Immigration Services (CIS) to decide his application. I forego oral argument because I find it would not substantially assist me in deciding this issue. See E.D. Mich. L.R. 7.1(e)(2). I hereby DENY Defendants' motion to dismiss for lack of subject matter jurisdiction and REMAND this proceeding to CIS with into make a final decision on Plaintiffs application forthwith.

I. FACTUAL BACKGROUND

Plaintiff filed an application for naturalization on November 22, 2004. (Compl. Ex. 2.) On April 11, 2005, Plaintiff attended his naturalization interview with CIS. (See Compl. Ex. 3.) No final decision was made on Plaintiff's application at that interview because CIS had not yet received the results of Plaintiffs mandatory background check conducted by the FBI. (Id.) As of the date of filing this petition with the Court, Plaintiff has waited twenty months, or over 600 days since that interview for a decision on his application. Plaintiff inquired as to the status of his application on November 17, 2005 and on May 15, 2006, and informed CIS by letter on November 11, 2006, that he would file this suit in federal court if CIS did not make an immediate decision as to his application. (Compl. ¶¶ 15, 16, & 19.) He asserts he meets all of the requirements to be naturalized. (Compl. ¶¶ 21-23.) Defendants assert the FBI background check is not complete and they are waiting for its completion before deciding Plaintiffs application. (Deft's Mot. to Dismiss 3.)

Plaintiff seeks three forms of relief from this Court. Foremost, Plaintiff seeks this Court to review his naturalization application de novo and approve it. In the alternative from the first request, Plaintiff seeks an Order of Mandamus from this Court ordering the Defendants to immediately complete processing his application. Plaintiff further seeks declaratory relief that Defendants' failure to adjudicate applications that have been pending for more than 120 days violates the Administrative Procedures Act (APA) and the Immigration and Nationality Act (INA). Defendants filed their motion to dismiss February 26, 2007.

II. LEGAL BACKGROUND

The principal statute at issue is 8 U.S.C. § 1447(b) which reads as follows:

(b) Request for hearing before district court

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.

Section 1446 addresses the procedure for how naturalization applications are to be reviewed and how decisions on the applications are to be made. The provision that casts the most light on this case is section 1446(b) which reads:

(b) Conduct of examinations; authority of designees; record

The Attorney General shall designate employees of the Service to conduct examinations upon applications for naturalization. For such purposes any such employee so designated is authorized to take testimony concerning any matter touching or in any way affecting the admissibility of any applicant for naturalization, to administer oaths, including the oath of the applicant for naturalization, and to require by subpena the attendance and testimony of witnesses, including applicant, before such employee so designated and the production of relevant books, papers, and documents, and to that end may invoke the aid of any district court of the United States; and any such court may, in the event of neglect or refusal to respond to a subpoena issued by any such employee so designated or refusal to testify before such employee so designated issue an order requiring such person to appear before such employee so designated, produce relevant books, papers, and documents if demanded, and testify; and any failure to obey such order of the court may be punished by the court as a contempt thereof. The record of the examination authorized by this subsection shall be admissible as evidence in any hearing conducted by an immigration officer under section 1447(a) of this title. Any such employee shall, at the examination, inform the applicant of the remedies available to the applicant under section 1447 of this title.

Congress has also mandated that the FBI complete a criminal background check on naturalization applicants before CIS makes a decision on the application. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub.L. 105-119, Title I, Nov. 26, 1997, 111 Stat. 248 cited in Historical and Statutory Notes to 8 U.S.C. § 1446.

III. ANALYSIS

1. Jurisdiction to Hear Petition

I find I have jurisdiction to hear this case. This is a hotly debated question in district courts throughout the country with little precedent at the circuit level. The issue boils down to the meaning of "the examination" in the statute. Several courts have found that the examination is the interview held between the naturalization applicant and a CIS officer,¹ while others have found that the examination is the entire process through which CIS considers the application.² The judges of this Court who have addressed the issue have unanimously found that the examination is the interview alone. Khelifa, 433 F.Supp.2d at 840-42 (Rosen, J.)³; Al-Saidi, No. 05-71832, 2005 WL 5179147, slip op. at 2-6 (Hood, J.); Zhang v. Chertoff, No. 05-72121, 2006 WL 4045600, slip op. at 2-3 (Roberts, J.); Mahmood v. Jenifer, Case No. 05-40154, 2005 WL 5179153, slip op. at 2-3 (Gadola, J.).

I believe the interpretation used by the judges of this Court who have decided this issue is correct. When the statute refers to the examination as having "a date," it does not make sense that "the examination" means the entire application process unless Congress thought that process would occur in a single day. If the language was the date the examination was completed then perhaps there would be room for debate as to the meaning of "the examination," but it is not; it says "the date on which the examination is conducted." (emphasis added). Also, interpretation of the relevant regulations⁴ show that the examination, as referred to in the statute, means the interview in which the applicant meets with an examiner. The regulation that states "an examination [should happen] ... only after ... a full criminal background check of an applicant has been completed" does not make any sense if "the examination" is the entire process of considering the application.⁵ (See 8 C.F.R. § 335.2.) Further analysis of the regulatory language provides more evidence that the examination is synonymous with the interview.⁶ Thus despite the government's assertion that its interpretation of the law should carry the day pursuant to the principles espoused in Chevron U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), these principles only permit deference to the agency's interpretation of the statute when its interpretation is "based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778. In light of the text of the statute, the regulations promulgated from that statute, and Congress's intent as evidenced by statements made at the time of passing the bill,⁷ interpreting "the examination" as being the entire process of considering a naturalization application is impermissible.⁸

Through this interpretation of the statute, I have subject matter jurisdiction over this case pursuant to 28 U.S.C. § 13319.⁹ I have personal jurisdiction over all of the defendants through the statute as well. See 8 U.S.C. § 1447(b) ("[T]he applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter.").

2. Appropriate Remedy is to Remand to CIS

I hereby REMAND this case to CIS to either grant or deny the application. Once a court has jurisdiction pursuant to § 1447(b), it has a choice of two remedies. The statute provides that a court "may either [ (1) determine the matter or [ (2) ] remand the matter, with appropriate instructions, to the Service to determine the matter." 8 U.S.C. § 1447(b). If this court is to determine the result of the application, it reviews the records de novo. (Id.)

The majority of courts who have reached this question...