Lukaj v. Napolitano
| Decision Date | 19 October 2011 |
| Docket Number | Case No. 3:10-cv-799-J-37JBT |
| Parties | ALEKSANDER LUKAJ, Plaintiff, v. JANET NAPOLITANO, Secretary, Department of Homeland Security; ALEJANDRO MYORKAS, Director, Citizenship and Immigration Services; KATHY REDMAN, District Director, Citizenship and Immigration Services, Tampa, FL; KATHERINE BARANOWSKI, Field Office Director, Citizenship and Immigration Services, Jacksonville, FL; and ERIC H. HOLDER, JR., Attorney General, Department of Justice, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This cause is before the Court on Defendants' Motion to Remand in Part and Dismiss in Part (Doc. No. 27) and Plaintiff's Response (Doc. No. 30).
Plaintiff Aleksander Lukaj, a citizen of Albania, would like to become a citizen of the United States. He filed his application for naturalization with the USCIS1 on September 8,2005. (Doc. No. 13, ¶ 13.) He then was obliged to wait for USCIS to act on his application. He has been waiting for a very long time.
Upon filing his application, USCIS indicated that Plaintiff should expect to be notified of the date and place of his naturalization interview "within 365 days." (Id. ¶ 15.) A year passed, but Plaintiff received no such notice from USCIS. (Id. ¶¶ 17-19.) He continued to wait for USCIS to schedule an interview, and inquired repeatedly as to the status of his application. (Id. ¶¶ 18-22.) USCIS informed Plaintiff that it would not schedule an interview because its background investigation was not complete. (Id.) After waiting five years for USCIS to complete its investigation, Plaintiff filed this lawsuit.
Naturalization is a privilege; it is not a right. See 7 Charles Gordon et al., Immigration Law and Procedure § 94.01[3]. From its earliest days, the United States has prescribed by law a process by which resident aliens may apply for and obtain citizenship. See id. § 95.01 (Rev. Ed. 2011). Congress has broad power over naturalization, and it has acted pursuant to that power extensively and frequently. See, e.g., Mathews v. Diaz, 426 U.S. 67, 79-80 (1976). The role our nation's courts currently play in the naturalization process is far less expansive.
At one time, Congress gave "naturalization courts" the task of adjudicating aliens' petitions for naturalization. See 7 Charles Gordon et al., Immigration Law and Procedure §§ 94.02[1], 96.02[3]. A predecessor of USCIS, the Immigration and Naturalization Service ("INS") was tasked with assisting the naturalization courts. See id. § 96.02[3]. INSconducted investigations of petitioners; it assembled relevant records; and it made a tentative assessment of a petitioner's qualifications for citizenship. See id. An alien was entitled to submit, as a matter of right, his or her petition to the naturalization court and obtain a ruling from the court on his or her eligibility for citizenship. See id. Once a petition was filed, an INS examiner conducted a preliminary examination, during which the examiner took evidence and assembled a complete record. See id. At the conclusion of the preliminary examination, the examiner made a recommendation to the Court to grant or deny the petition. See id.
Where recommendation of the INS examiner was positive, the naturalization court typically approved the petition and administered an oath of allegiance to the petitioner in a public hearing. See id. The naturalization court could conduct a more searching inquiry if the examiner recommended a petition be denied. See id. In sum, INS played a significant role in the naturalization process, but the final adjudication of naturalization petitions was a judicial task.
This state of affairs changed with the Immigration Act of 1990. The Act "brought a dramatic shift of power over naturalization from the judiciary to the INS." See id. § 94.02[1]. In passing the Act, Congress vested the exclusive authority to adjudicate naturalization applications in an administrative agency. See 8 U.S.C. § 1421(a) (). The agency no longer provided a recommendation; it made the decision. See 7 Charles Gordon et al., Immigration Law and Procedure § 94.01[2][f].
Under the current administrative naturalization process, once an alien files a complete application for naturalization, USCIS undertakes an investigation concerning the applicant's eligibility for citizenship. See id. § 96.04. This investigation involves, among other things, (1) a "name check" conducted by the Federal Bureau of Investigation ("FBI"), (2) a check of the applicant's fingerprints by the FBI, and (3) an Interagency Border Inspection System check. Id.; see also 8 C.F.R. § 335.1. Once the investigation is complete, USCIS conducts an examination of each applicant under oath, which is also referred to as an interview. 8 C.F.R. § 335.2; see also 7 Charles Gordon et al., Immigration Law and Procedure § 96.04.
USCIS must adjudicate each application following the completion of its examination. 8 C.F.R. §§ 335.3, 336.1. It can do so at the time of the examination or may do so afterward provided a decision is made within 120 days of the date of the examination.2 Id. § 335.3. If USCIS determines that the application is due to be granted, the applicant is notified of the decision and administered the oath of office by a court or government official. Id. § 335.3(a). If USCIS denies an application, it is required to serve upon the applicant written notice of the denial containing the factual and legal basis for the denial. Id. § 336.1. When an application is denied, the applicant may request an administrative review. Id. § 336.2. Any such review is assigned to a different USCIS employee, who will review the record of the examination and who may, if necessary, receive new evidence. Id. § 336.2. If the application remains denied following this review, the applicant may seek judicial review of USCIS's final determination. Id. § 310.5(b); see also 8 U.S.C. § 1421(c).
Besides the review of a denied naturalization application, the Court is authorized to entertain a claim involving a naturalization application in one other instance.
An applicant for naturalization may seek judicial review of a pending application for naturalization in those instances where the Service fails to make a determination under section 335 of the Act within 120 days after an examination is conducted under part 335 of this chapter. An applicant shall make a proper application for relief to the United States District Court having jurisdiction over the district in which the applicant resides. The court may either determine the issues brought before it on their merits, or remand the matter to the Service with appropriate instructions.
8 C.F.R. § 310.5(a); see also 8 U.S.C. § 1447(b). In other words, if USCIS does not act within 120 days of the examination, the applicant may ask a court to intercede.
Thus, the authority of the courts to entertain actions on naturalization applications was narrowed significantly by the Immigration Act of 1990. The shift from a judicial naturalization process to an administrative one was accompanied by limits on the involvement of the courts in the naturalization process. Cf. Levy v. INS, 6 F. App'x 331, 333 (7th Cir. 2001). This lawsuit rubs up against these limits.
Plaintiff's Amended Complaint seeks (1) to compel USCIS to conduct a naturalization interview and (2) an adjudication of his naturalization application. (Id. ¶ 12.) Before the Court can delve into the merits of Plaintiff's claims, it must inquire into whether it has jurisdiction over them. Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). If the Court finds it is without jurisdiction, it is obliged to dismiss the case. Id. The Court will discuss the basis for subject matter jurisdiction for each claim in turn.
Pursuant to the Administrative Procedure Act ("APA"), a person adversely affected by an agency action is entitled to judicial review. 5 U.S.C. § 702. Agency action includes the failure to act. Id. § 551(13). Because the APA requires agencies to conclude matters presented to them "within a reasonable time," id. § 555(b), a court may sometimes "compel agency action unlawfully withheld or unreasonably delayed," id. § 706(1). However, "a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (emphasis in original). Thus, a plaintiff may invoke subject matter jurisdiction under the APA only if the defendant had a duty to perform a ministerial or nondiscretionary act. See id. As explained by the D.C. Circuit, "when an agency is compelled by law to act, but the manner of its action is left to the agency's discretion, the 'court can compel the agency to act, [although it] has no power to specify what th[at] action must be.' " Kaufman v. Mukasey, 524 F.3d 1334, 1338 (D.C. Cir. 2008) (quoting Norton, 542 U.S. at 65) (alterations in original). While the APA does not confer subject matter jurisdiction by itself, the APA in conjunction with 28 U.S.C. § 1331 () gives the Court jurisdiction to compel unreasonably delayed agency action. See Califano v. Sanders, 430 U.S. 99, 106-07 (1977).
Some district courts have applied this general framework and required USCIS to adjudicate naturalization applications in a reasonable amount of time. See, e.g., Abdi v. Chertoff, No. 6:08-cv-292-Orl-19DAB, 2008 WL 4371351 (M.D. Fla. Sep. 22, 2008); Hamandi v. Chertoff, 550 F. Supp. 2d 46, 50-51 (D.D.C. 2008); Sidhu v. Chertoff, No.1:07-CV-1188, 2008 WL 540685 (E.D. Cal. Feb. 25, 2008). Other courts have found that USCIS has no duty to adjudicate a naturalization application...
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