MEMIC v. HOLDER

• Decision Date: 11 April 2011
• Docket Number: No. 4:10 CV 1692 DDN,4:10 CV 1692 DDN
• Citation: Memic v. Holder, No. 4:10 CV 1692 DDN (E.D. Mo. Apr 11, 2011)
• Parties: AMIR MEMIC, Plaintiff, v. ERIC HOLDER, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

AMIR MEMIC, Plaintiff,

v.ERIC HOLDER, et al., Defendants.

No. 4:10 CV 1692 DDN

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

Dated: April 11, 2011

MEMORANDUM

This action is before the court on the motion of defendantsEric Holder, Janet Napolitano, Alejandro Mayorkas, Michael Jaromin, Chester S. Moyer, and Robert S. Mueller, III, to dismiss.(Doc. 4.)The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).Oral arguments were heard on January 6, 2011.

I.BACKGROUND

On September 12, 2010, plaintiffAmir Memic commenced this action against defendantsEric Holder, Attorney General of the United States; Janet Napolitano, Secretary of the United States Department of Homeland Security; Alejandro Mayorkas, Director of the Bureau of Citizenship and Immigration Services (BCIS); Michael Jaromin, District Director of the Kansas City District Office of the BCIS; Chester S. Moyer, Officer in Charge of the St. Louis Sub-Office of the BCIS; and Robert S. Mueller, III, Director of the Federal Bureau of Investigation, in their official capacities, to compel adjudication of his naturalization application.

According to his judicial complaint, plaintiff is a Bosnian national who has been a Lawful Permanent Resident of the United States since August 26, 1998.In September 2009plaintiff applied for naturalization.As a part of the application process, plaintiff was scheduled for a naturalization interview on January 13, 2010.However, the interview was cancelled and has not been rescheduled.Plaintiff is still awaiting the disposition of his application for naturalization.Plaintiff has contacted the BCIS in an attempt to move his application forward, but his efforts thus far have been futile.

In Count I of his complaint, plaintiff alleges that defendants Napolitano, Mayorkas, Jaromin, and Moyer violated the Administrative Procedure Act (APA) by failing to adjudicate his application within a reasonable time after submission.

In Count II, plaintiff alleges that defendants Holder and Mueller violated the APA by not completing the necessary FBI name checks in a timely manner.

In Count III, plaintiff alleges that defendants Napolitano, Mayorkas, Jaromin, and Moyer violated 8 U.S.C. § 1447(b) by not adjudicating his application for naturalization within 120 days after his naturalization examination.

In Count IV, plaintiff alleges a violation of the Due Process Clause of the Fifth Amendment against all defendants for failing to adjudicate his application for naturalization within 180 days after it was filed and within 120 days after the required naturalization examination, because of the actions of the FBI.

And in Count V, plaintiff alleges a violation of the notice-and-comment requirements of the APA against defendants Napolitano, Mayorkas, Jaromin, and Moyer.Plaintiff alleges that the defendants expanded the FBI name check requirement without the required public comment procedure.

II.MOTION TO DISMISS

Defendants move jointly to dismiss plaintiff's complaint (a) for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), and (b) for failure to state a claim under Rule 12(b)(6).Defendants argue that the BCIS is still conducting its investigation of plaintiff, and thus should not be compelled to act now.Specifically, defendants argue that there is no clear, non-discretionary duty to process applications to adjust immigration status within a certain time, and thus there is no jurisdiction under the APA or the Mandamus Act.Defendants also argue that Congress chose to not impose a time limit on processing naturalization applications; that any time limit would be speculative in the absence of Congressional action; and that no specific time limit could be imposed because administrative judgment is used while conducting investigations, yielding varying adjudication times.

Plaintiff responds that he has a right to have his naturalization application adjudicated within a reasonable time of filing because he has a right to the adjudication of his application generally, and the relevant statutes impose a reasonable time period for adjudication.Plaintiff also argues that unfettered agency discretion would undermine the statutory requirements compelling adjudication of naturalization applications.Plaintiff further argues that the absence of a specific time limit is not dispositive.

Defendants reply that Congress did not set the pace at which the BCIS must investigate whether an applicant is eligible for naturalization, and therefore there is no clear, non-discretionary duty to act.Defendants also reply that the investigative delay in processing plaintiff's application is not unreasonable and deference should be given to the agency's discretion.

III.MOTION TO DISMISS STANDARDS

A.Subject Matter Jurisdiction: Fed. R. Civ. P. 12(b)(1)

A motion to dismiss under Rule 12(b)(1) challenges whether the district court possesses subject matter jurisdiction to hear the case.Johnson v. United States, 534 F.3d 958, 964(8th Cir.2008).As the party asserting subject matter jurisdiction, plaintiff bears the burden of establishing its existence.Ark. Blue Cross & Blue Shield v. Little Rock Cardiology Clinic, P.A., 551 F.3d 812, 816(8th Cir.2009).

The parties have agreed that the jurisdictional dispute can be decided solely on the basis of the allegations made in plaintiff's complaint.Therefore, the court confines itself to that document, and considers all factual allegations contained therein as true.Muharemovic v. Jaromin, No. 4:07 CV 1427 DDN, 2008 WL 495610, at *1(E.D. Mo.Feb. 19, 2008);Tan v. Chertoff, No. 4:07 CV 236 HEA, 2007 WL 1880742, at *2(E.D. Mo.June 29, 2007).

B.Failure to State a Claim: Fed. R. Civ. P. 12(b)(6)

A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the complaint.SeeCarton v. General Motor Acceptance Corp., 611 F.3d 451, 454(8th Cir2010).To survive a motion to dismiss under this rule, the complaint must include "enough facts to state a claim to relief that is plausible on its face."Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570(2007).To meet the plausibility standard, the complaint must contain "more than labels and conclusions."Id. at 555.Rather, the complaint must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949(2009).

The Federal Rules of Civil Procedure demand only that a complaint present a "short and plain statement of the claim showing that the pleader is entitled to relief."Fed. R. Civ. P. 8(a)(2).Forms 10 to 21, attached to the federal civil rules, are examples of the "simplicity and brevity that [Rule 8] contemplate[s]."Fed. R. Civ. P. 84.SeeHamilton v. Palm, 621 F.3d 816, 818(8th Cir.2010).

Furthermore, the complaint must be liberally construed in the light most favorable to the plaintiff.Eckert v. Titan Tire Corp., 514 F.3d 801, 806(8th Cir.2008).The court must accept the facts alleged as true, even if doubtful.Twombly, 550 U.S. at 555.Thus, a well-pleaded complaint may proceed even if it appears that recovery is very remote or unlikely, so long as it meets the plausibility standard.Id.

IV.DISCUSSION

Congress has reposed in the Attorney General the "sole authority to naturalize persons as citizens of the United States."8 U.S.C. § 1421(a).In 2002, Congress transferred the responsibility for adjudicating naturalization petitions to the Department of Homeland Security's Bureau of Citizenship and Immigration Services (BCIS).6 U.S.C. § 271(b)(2).

Congress and the BCIS have prescribed certain steps in the naturalization process:

First, the applicant must make and file with the Attorney General a sworn, written application for naturalization.8 U.S.C. § 1445(a).Once the application is filed, a BCIS employee must conduct a "personal investigation" of the applicant, unless the Attorney General waives the investigation.8 U.S.C. § 1446(a);8 C.F.R. § 335.1.As part of this investigation, the BCIS uses the FBI to conduct a criminal background check, during which the FBI checks administrative and criminal records.8 C.F.R. § 335.2(b).

After the FBI record check, the BCIS must schedule and conduct an in-person "examination" of the applicant.8 U.S.C. § 1446(b);8 C.F.R. § 335.2(a)-(c).During the "examination," the BCIS tests the applicant for proficiency in the English language and knowledge of United States history and government.See8 U.S.C. § 1423(a);8 C.F.R. §§ 312.1(a),312.2(a).Following the § 1446"examination," the designated BCIS employee has 120 days to grant or deny the application for naturalization.8 U.S.C. § 1447(b);8 C.F.R. § 335.3.If the application is granted, the applicant must participate in a citizenship oath ceremony before the Attorney General or before a federal court to complete the naturalization process.8 U.S.C. § 1448(a).

A.Counts II and IV: The FBI Background Check

Defendants argue in their motion to dismiss that the FBI has fulfilled its duties to the BCIS because it completed plaintiff's name check on October 26, 2009, and thus whatever duty the FBI might have had to plaintiff has been fulfilled.Defendants argue that the FBI should be dismissed.

Plaintiff accepts that the FBI completed the name check on October 26, 2009, and states that the FBI did not cause any unreasonable delay in the processing of his application.Plaintiff consents to the dismissal of defendantRobert S. Mueller, and voluntarily dismisses all claims against the FBI.

Therefore, the Count II and Count IV claims against defendantRobert S. Mueller and the FBI are dismissed.

B.Count III: A Determination Within 120 Days After Examination

Plaintiff states that he erroneously included Count III in his complaint.Plaintiff states that Count III is premised...