Negam v. U.S.

• Decision Date: 23 March 2007
• Docket Number: No. 4:06CV855 A.,4:06CV855 A.
• Parties: Bassam Mohamed NAGEM, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

Page 877

480 F.Supp.2d 877

Bassam Mohamed NAGEM, Plaintiff, v. UNITED STATES of America, et al., Defendants.

No. 4:06CV855 A.

United States District Court, N.D. Texas, Fort Worth Division.

March 23, 2007.

Ruth Reese Lane, Law Office of Ruth Lane, Arlington, TX, for Plaintiff.

Janie L. Frank, U.S. Attorney's Office, Fort Worth, TX, for Defendants.

MEMORANDUM OPINION and ORDER

MCBRYDE, District Judge.

The above-captioned action was filed on December 6, 2006, by plaintiff, Bassani Mohamed Nagem, ("Nagem"), who is an applicant for naturalization. Nagem asks the court to make a judicial determination of his naturalization application, pursuant to the authority of 8 U.S.C. § 1447(b). The defendants are United States of America; Alberto Gonzalez, Attorney General; Michael Chertoff, Secretary of Homeland Security ("Chertoff'); Emilio Gonzalez, Director, Citizenship and Immigration Services ("CIS"); Angela K. Barrows, District Director, CIS ("Barrows"); and Robert S. Mueller, III, Director, Federal Bureau of Investigation ("Mueller").

Each individual defendant is sued in his or her official capacity. The government admits that Chertoff, Emilio Gonzalez, and Barrows are responsible for the grant or denial of naturalization applications filed within the Dallas district of CIS pursuant to 8 U.S.C. §§ 1421 and 1427 and 8 C.F.R. §§ 103.1(g)(2)(ii), 310.2, and 316.3, and that Mueller is responsible for completion of security checks, the delay of which the other defendants have provided as a reason for the delay in the adjudication of Nagem's naturalization application.

The government has moved to remand the action to CIS for further processing of Nagem's application. The court has concluded that the motion to remand should be denied, and that a hearing should be conducted on approval of Nagem's application after the, government has provided any additional information the court needs to rule on the application.

I. Nagem's Complaint

Nagem alleges, and the government admits, that: In September 2004 Nagem filed his application for naturalization with CIS.¹ Officers of defendants interviewed Nagem on his application in early April 2005.² Nagem passed the tests of English and U.S. history and government. He was notified that a decision could not yet be made on his application. The form CIS used for the purpose of notifying Nagem of the results of his April 2005 interview gave him the following advice:

Please be advised that under section 336 of the Immigration and Nationality Act, you have the right to request a hearing ... before the U.S. district court if UCIS has not made a determination on your application within 120 days of the date of your examination.

Compl., Ex. B, last page.³ More than 120 days have passed since the interview, and defendants still have made no decision on Nagem's application. According to the most recent processing guidelines published by defendants for the Dallas district office of CIS, which were released on November 17, 2006, the Dallas office is currently processing naturalization cases with a receipt of notice date of April 14, 2006 — which means that applications received over one-and-a-half years after plaintiffs are being processed.

Further allegations by Nagem are that: His inquiries of CIS about his application have elicited the response that the investigation into his background remains open. He is eligible for United States citizenship, having been a lawful permanent resident of the United States for over five years, and having resided in the United States since becoming a lawful permanent resident. As the results of the interview reflect, he has met the requirements as to understanding the English language, history, principles, and form of government of the United States. He is a person of good moral character, based on the standard of the average citizen in the community, and has been a person of good moral character during the entire period required by 8 U.S.C. § 1427. In response to an inquiry made by Congressman Joe Barton on behalf of Nagem concerning the status of his application, Barrow responded on September 19, 2006, with, among others, the following explanation:

A check of our records establishes that the application is not yet ready for decision, as the investigation into the background remains open. Until the background investigation is completed, we cannot move forward on the case.

. . . .

Given the number of applications submitted and the significance of immigration benefits, it is inevitable that some applications will require more attention than others. USCIS relies primarily on three background check mechanisms: the Interagency Border Inspection System (IBIS) name check, the FBI fingerprint check, and the FBI name check (see attachment). For the vast majority of applicants, these mechanisms allow USCIS to quickly determine whether there are any criminal or security related eligibility issues. In the remaining cases, often referred to as "pending," a match of some kind has been identified and must be resolved before any decision can be made on the petition or application. USCIS does not share with applicants or their representatives information regarding the specific nature of the match or the nature or status of any investigation.

These background checks allow USCIS to ensure public safety by screening out individuals improperly seeking immigration benefits, and have in the past uncovered applicants convicted of rape and child molestation, applicants involved in drug trafficking, and even applicants with known links to terrorism. Even when the issues are ultimately resolved in the applicant's favor — and the vast majority are — such investigations require time, resources, and patience.

Compl., Ex. C, third page. With respect to the FBI name check procedure, Barrow went on to explain:

FBI name checks are also initiated for many applications. Multiple FBI databases are searched to determine whether an individual has been encountered by the FBI in connection with an investigation of criminal, security, or other activities that' might render him or, her ineligible for benefits. Initial responses to this check generally take about two weeks. In approximately 80% of the cases, no match is found. In the remaining 20 percent, most are resolved within 6 months. Less than one per cent of the cases subject to an FBI name check remain pending longer than six months. Some of these cases may be classified or involve highly sensitive information that will not be resolved quickly.

Id., fourth page. The documentation from the Dallas district office of CIS indicates that the unaccomplished activity that has been an impediment to further consideration of Nagem's application is an FBI name check. Id., second page.

By way of relief, plaintiff asks the court to render a judgment that he is entitled to be naturalized as a United States citizen, that the court administer the oath of naturalization to him, and that he recover his reasonable attorneys' fees.

II. The Motion to Remand

Contemporaneously with the filing of their answer to the complaint on February 9, 2007, defendants filed a motion to remand, asking the court "to remand this matter to `CIS, to allow the agency to make the decision on Nagem's application, once it has received the FBI background check on Nagem." Mot. to Remand at 2. Defendants provide the court no indication in their motion or supporting brief as to when the FBI might be expected to conclude its background check on Nagem. They suggest in their motion that when the matter is remanded to CIS, if the court were to grant the motion; the court give "instructions to decide Nagem's application promptly after it receives the completed FBI background check." Id. at 3. The supporting brief states that Nagem's name was submitted by CIS to the FBI for a background check on September 30, 2004.

Accompanying the motion is the declaration of Michael A. Cannon ("Cannon"), who identifies himself as the Section Chief of the National Name Check Program Section at the headquarters of the Federal Bureau of Investigation in Washington, D.C. Cannon provides a detailed explanation of the operation of the FBI name check program. With respect to the FBI's inquiry into Nagem's background, Cannon said:

The name check request for plaintiff Bassani Mohamed Nagem was submitted by USCIS to the FBI on September 30, 2004, and has not been completed. The FBI is performing its check in response to USCIS's request in accordance with the procedures outlined above. The results of the name check will be forwarded to USCIS in Washington, D.C., in due course, in accordance with the FBI's normal protocol.

Mot. to Remand, App. at 8.

Also accompanying the motion to remand is the declaration of Doreen Perez ("Perez"), who identifies herself as a Dallas Field Office Adjudications Officer with CIS. The contents of the Perez declaration confirm that the holdup in the processing of Nagem's application is the failure of the FBI to complete the FBI name check pertaining to Nagem. This confirms Nagem's contention and the recitation in defendants' supporting brief that the FBI name check is the background check on Nagem that has prevented the processing of his application. Br. at 3, ¶ 5.

In his reply to the motion to remand, Nagem calls the court's attention to a list that was provided by the Dallas district office of CIS on February 21, 2007, of cases in the Dallas office currently pending FBI name checks. Nagem's, application is not on the list. Nagem infers from that fact that perhaps CIS already has received the results of his name check, with the consequence that there might well be no reason why the processing of his application cannot be concluded. Nagem acknowledges that the absence of his application from the list is not conclusive, but, he goes on to argue, that the fact that his application is not listed "provides further support for his request that HCIS be ordered to complete the...