Khelifa v. Chertoff

• Decision Date: 09 June 2006
• Docket Number: No. 06-10147.,06-10147.
• Citation: 433 F.Supp.2d 836
• Parties: Yahia KHELIFA, Plaintiff, v. Michael CHERTOFF, Alberto R. Gonzales, Robert S. Mueller, Emilio Gonzalez, and Carol Jenifer, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

433 F.Supp.2d 836

Yahia KHELIFA, Plaintiff, v. Michael CHERTOFF, Alberto R. Gonzales, Robert S. Mueller, Emilio Gonzalez, and Carol Jenifer, Defendants.

No. 06-10147.

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

June 9, 2006.

Yahia Khelifa, Rochester Hills, MI, Pro se.

L. Michael Wicks, United States Attorney's Office, Detroit, MI, for Defendants.

OPINION AND ORDER REGARDING DEFENDANTS' MOTION TO DISMISS OR REMAND

ROSEN, District Judge.

I. INTRODUCTION

Plaintiff Yahia Khelifa, proceeding pro se, commenced this action in this Court on January 10, 2006, complaining of an excessive delay in the processing of his application for naturalization by the Defendant federal government officials. Under a provision of the Immigration and Nationality Act ("INA"), if the Government fails to make a determination on such an application "before the end of the 120-day period after the date on which [a statutorily mandated] examination is conducted ..., the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter." 8 U.S.C. § 1447(b). Plaintiff alleges that this 120-day period has lapsed without a decision on his application, and he requests that the Court conduct a hearing, review his application for naturalization and grant him a judgment declaring that he is entitled to U.S. citizenship.

By motion filed on April 3, 2006, Defendants now seek the dismissal of this action or, alternatively, a remand to the U.S. Citizenship and Immigration Services ("CIS") so that this agency may complete the processing of Plaintiffs application and determine his eligibility for citizenship. In support of this motion, Defendants first argue that the 120-day decisionmaking period has not, in fact, expired, so that this Court lacks jurisdiction to hear this case. Alternatively, even if the Court were to identify a jurisdictional basis for this action, Defendants contend that the better course would be to remand to the agency, CIS, that is charged with the responsibility to decide applications for naturalization in the first instance. Plaintiff responded to this motion on April 17, 2006, asserting that the Court has both the authority and the obligation to determine his eligibility for U.S. citizenship where, in his view, the Court has before it all of the information needed to make this determination, and where his experience with CIS to date leads him to doubt that the agency will afford him a fair hearing on his application.

Having reviewed the parties' submissions and the record as a whole, the Court finds that the relevant facts, allegations and legal arguments are adequately presented in the written record, and that oral argument would not significantly aid the decisional process. Accordingly, the Court will decide Defendants' motion "on the briefs." See Local Rule 7.1(e)(2), U.S. District Court, Eastern District of Michigan. This opinion and order sets forth the Court's rulings on this motion.

II. ANALYSIS

A. The Statutory Framework Governing This Action

Before turning to the merits of the arguments advanced in Defendants' motion, the Court finds it instructive to survey the statutory provisions that control the inquiry in this case. In order to become a naturalized U.S. citizen, an applicant must meet various statutory requirements, including sufficient periods of residency and physical presence and a record of "good moral character" during these periods. 8 U.S.C. § 1427(a). In determining whether an applicant meets these requirements, the Attorney General or his designee is authorized to conduct both a "personal investigation" and an "examination" of the applicant, in accordance with rules and regulations propagated by the Attorney General to implement these statutory mandates. See 8 U.S.C. §§ 1443(a), 1446(a)-(b).

Since 1998, this process also has included a criminal background check of each applicant for naturalization. Specifically, in a November 26, 1997 appropriations act for the Department of Justice and other federal departments and agencies, Congress mandated that "during fiscal year 1998 and each fiscal year thereafter, none of the funds appropriated or otherwise made available to the Immigration and Naturalization Service shall be used to complete adjudication of an application for naturalization unless the Immigration and Naturalization Service has received confirmation from the Federal Bureau of Investigation that a full criminal background check has been completed." Pub.L. No. 105-119, Title I, 111 Stat. 2440, 2448-49 (1997).¹ The pertinent agency regulation contemplates that this criminal background check will be completed and a "definitive response" received from the Federal Bureau of Investigation ("FBI") before the applicant is notified to appear for his or her "initial examination." 8 C.F.R. § 335.2(b).²

After conducting the examination of the applicant, the Attorney General's designee determines whether the application should be granted or denied. 8 U.S.C. § 1446(d). If the application is denied, "the applicant may request a hearing before an immigration officer," 8 U.S.C. § 1447(a), and then may seek judicial review if the agency's decision remains unfavorable, see 8 U.S.C. § 1421(c). As noted at the outset, if the initial decision to grant or deny an application is not made "before the end of the 120-day period after the date on which the examination is conducted," the applicant "may apply to the United States district court for the district in which the applicant resides for a hearing on the matter." 8 U.S.C. § 1447(b). In this event, the district court "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).

In this case, Plaintiff filed his present application for naturalization on July 3, 2003,³ and a criminal background check was initiated shortly thereafter. Plaintiff then was instructed to appear for an interview at the Detroit CIS office on May 11, 2004. At that time, Plaintiff allegedly was told that he had satisfied most of the requirements for citizenship, but that the agency was still awaiting the outcome of the criminal background check. Plaintiff repeatedly inquired over the next several months about the status of his application, and was told each time that the application was still pending.

When over 18 months had passed since his May 11, 2004 interview without a decision on his application, Plaintiff commenced this action on January 10, 2006, asserting that the 120-day limit for a decision had long since expired and that he was entitled to a judicial determination of his entitlement to U.S. citizenship. About two months later, on March 3, 2006, CIS received the results of Plaintiffs various background checks. Because this process was still ongoing when Plaintiff brought this action, Defendants argue in their present motion: (i) that the 120-day statutory decisionmaking period had not yet begun, let alone lapsed, at the time this suit was filed, and (ii) that, in any event, the appropriate remedy at this point would be to remand to CIS so that the agency can make a prompt determination on Plaintiff's application with the benefit of a record that is now largely complete.

B. This Court Has Subject Matter Jurisdiction over This Case.

As the first ground for their motion, Defendants argue that the 120-day statutory period for deciding Plaintiffs application had not yet commenced when this suit was filed on January 10, 2006. By statute, this period begins after an "examination is conducted," 8 U.S.C. § 1447(b), and Defendants maintain that no such event can be said to have occurred until CIS has received and reviewed the results of an applicant's criminal background check. Because the agency did not receive the results of Plaintiffs background check until March 3, 2006, nearly two months after this suit was filed, Defendants argue that there has been no violation of the 120-day statutory limit that could confer subject matter jurisdiction over this action.

As noted by Defendants, at least one court has accepted this argument. In Danilov v. Aguirre, 370 F.Supp.2d 441 (E.D.Va.2005), as here, the plaintiffs application for naturalization had been pending for over two years while CIS awaited the results of an FBI criminal background investigation. The plaintiff in that case, like Plaintiff here, argued that the statutory 120-day period commenced when he was interviewed by CIS officials in January of 2004, about a year before he brought suit. The federal government defendants, in contrast, contended that this 120-day period had not yet begun, let alone expired, as of the date the plaintiff filed his action, where CIS had yet to receive the results of the plaintiffs background check.

The court agreed with the defendants that "the interview of plaintiff that occurred in January 2004 did not end the statutorily-required `examination' and thus trigger the running of the 120 day period." Danilov, 370 F.Supp.2d at 444. In the court's view, " § 1446(b) makes clear that an examination is not a single event, but instead is essentially a process the agency follows to gather information concerning the applicant." 370 F.Supp.2d at 443. This process, as the court noted, "may include the issuance of subpoenas to compel the attendance and testimony of witnesses and the production of relevant papers." 370 F.Supp.2d at 443. More significantly, Congress had "added another, very important requirement for the examination process," mandating the "completion and review of an FBI criminal background investigation of the applicant as part of the examination process." 370 F.Supp.2d at 443-44.

Because this background check is an essential part of the CIS's assessment of an application for naturalization, the court reasoned that the agency cannot fairly be said to have "conducted" an "examination" until it has received and reviewed...