Sawan v. Chertoff

• Decision Date: 18 November 2008
• Docket Number: Civil Action No. H-08-1550.
• Citation: 589 F.Supp.2d 817
• Parties: Khaled S. SAWAN, Plaintiff, v. Michael CHERTOFF, Secretary of the Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

589 F.Supp.2d 817

Khaled S. SAWAN, Plaintiff, v. Michael CHERTOFF, Secretary of the Department of Homeland Security, et al., Defendants.

Civil Action No. H-08-1550.

United States District Court, S.D. Texas, Houston Division.

November 18, 2008.

COPYRIGHT MATERIAL OMITTED

Khaled S. Sawan, Houston, TX, pro se.

William Emerson Yahner, Office of U.S. Attorney, Houston, TX, for Defendant.

MEMORANDUM AND ORDER

LEE H. ROSENTHAL, District Judge.

The plaintiff, Khaled S. Sawan, has been a lawful permanent resident since 2002 based on his marriage to a United States citizen. Sawan filed this suit to compel action on his N-400 Application for Naturalization ("Form N-400"), which has been pending since November 2006. On August 14, 2008, 2008 WL 3852475, this court granted the defendants' motion to dismiss for lack of subject-matter jurisdiction. Sawan moved for reconsideration, (Docket Entry No. 13), which the defendants opposed, (Docket Entry No. 14). For the reasons explained below, this court grants Sawan's motion for reconsideration in part, finding subject-matter jurisdiction. Although some of Sawan's claims are dismissed for failure to state a cause of action, others withstand dismissal on this basis. Because the parties have submitted materials outside the pleadings, the motion to dismiss is converted to one for summary judgment. The defendants may supplement the record and briefing no later than December 1, 2008. Sawan may respond and supplement the record and briefing no later than December 15, 2008.

The reasons for these rulings are explained below.

I. Background

A. The Naturalization Process

The process for examining and investigating an applicant for naturalization is prescribed in 8 U.S.C. § 1446 and the regulations promulgated under that statute. The naturalization process begins when a noncitizen files a Form N-400 with the USCIS. See 8 C.F.R. § 334.2(a). The USCIS must then "conduct an investigation of the applicant." 8 C.F.R. § 335.1. The applicant must also "appear in person before a [USCIS] officer" for an "examination," an in-person interview. 8 C.F.R. § 335.2(a); see also Walji v. Gonzales, 500 F.3d 432, 435 & n. 5 (5th Cir.2007) (observing that most courts have held that an "examination" under 8 U.S.C. § 1447(b) is "a discrete event—the agency's initial interview of the applicant"). The USCIS must grant or deny the application within 120 days of the interview. 8 U.S.C. § 1447(b); 8 C.F.R. § 335.3(a). The interview may be scheduled "only after the [USCIS] has received a definitive response from the Federal Bureau of Investigation that a full criminal background check of an applicant has been completed." 8 C.F.R. § 335.2(b) (emphasis added). This regulation was promulgated to give effect to two statutes: 8 U.S.C. § 1446(a), which provides that "[b]efore a person may be naturalized, an employee of the [USCIS], or of the United States designated by the Attorney General, shall conduct a personal investigation of the person applying for naturalization"; and the 1998 Appropriations Act,¹ which provides that "none of the funds appropriated or otherwise made available to [the USCIS] shall be used to complete adjudication of an application for naturalization unless [the USCIS] has received confirmation from the Federal Bureau of Investigation that a full criminal background check has been completed."

Under the USCIS's practice since November 2002, one part of the FBI background check is a "name check."² Ahmadi v. Chertoff, No. C 07-03455, 2007 WL 3022573, at *8 (N.D.Cal. Oct. 15, 2007). Only after the FBI background check— including the name check—is complete does the process continue to the next required steps: the USCIS's interview of the applicant and adjudication of the application on the merits.

There is no explicit statutory or regulatory requirement that a naturalization application be adjudicated within a particular period after filing. There is an explicit requirement that once the interview is held—which under the regulation is not to occur until the name check is complete— the final decision on the application must issue within 120 days. 8 U.S.C. § 1447(b); 8 C.F.R. § 335.3. There are other limits on the time for processing naturalization applications. Title 8 U.S.C. § 1571(b) states: "It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application." 8 U.S.C. § 1571(b). Section 103.2(b)(18) of the regulations states that if a naturalization application has not been adjudicated within one year after filing, USCIS officials must review the application at six-month intervals to determine whether withholding decision is appropriate.³ 8 U.S.C. § 103.2(b)(18). The USCIS is required to decide each application; there is no discretion to decline to decide. See 8 U.S.C. § 1446(d) (the USCIS "shall make a determination as to whether the application should be granted or denied, with reasons therefor."); 8 C.F.R. § 316.14(b)(1) (the USCIS "shall determine whether to grant or deny the application, and shall provide reasons for the determination ...."). Action is also required under the Administrative Procedures Act ("APA"), which states that, "[w]ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it." 5 U.S.C. § 555(b). The APA gives federal district courts the authority to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1).

The USCIS name-check requirement "has become a bottleneck because the FBI has large numbers of pending name-check requests and limited resources to complete them." Ali v. Frazier, 575 F.Supp.2d 1084, 1087 (D.Minn.2008). This case is one of many filed around the country to challenge the delays in adjudicating naturalization applications resulting from delays in name-check processing.

B. Sawan's Claims

In November 2006, Sawan applied to become a naturalized citizen of the United States. He alleges that he meets the eligibility criteria. Sawan has not been interviewed because, according to the USCIS, his FBI name check has not been completed. Sawan alleges that his requests for expedited treatment, based primarily on the fact that his mother is ill and abroad and he wants to petition for her to join him in the United States, went unanswered. He alleges that other naturalization applications filed after his have already been adjudicated.

In this suit, Sawan asks this court to order the USCIS and the FBI to take all reasonable steps to complete processing his name check within 30 days and to complete adjudicating his naturalization application within 60 days. Sawan sued USCIS officials and the FBI director under the Mandamus Act, 28 U.S.C. § 1361, the APA, 5 U.S.C. §§ 555(b), 706(1), and the Declaratory Judgment Act, 28 U.S.C. § 2201. In this motion for reconsideration of the dismissal for lack of subject-matter jurisdiction, Sawan asserts that the court has subject-matter jurisdiction over his claims for unreasonable delay against the USCIS and the FBI. Sawan also argues that the court failed to consider his argument that the USCIS has no statutory or regulatory authority to require a name check as a condition to scheduling an interview. (Docket Entry No. 13). The defendants have responded, arguing that Sawan has failed to show a clear right to relief and that this court therefore lacks subject-matter jurisdiction to consider his claims. (Docket Entry No. 14).

Each argument and response is considered below.

II. Whether This Court Has Subject-Matter Jurisdiction over Sawan's Claims

In the motion to dismiss, the defendants argued that this court lacked subject-matter jurisdiction over Sawan's claims under the Mandamus Act, 28 U.S.C. § 1361; the APA, 5 U.S.C. §§ 555(b), 706 et seq.; and the Declaratory Judgment Act, 28 U.S.C. § 2201. On reconsideration, this court concludes that dismissal for lack of subject-matter jurisdiction was appropriate as to the claims under the Declaratory Judgment Act. "The Declaratory Judgment Act ... is a procedural statute and not a jurisdictional one. As such, it does not provide an independent basis for federal court review." Yan v. Mueller, No. H-07-0313, 2007 WL 1521732, at *2 n. 4 (S.D.Tex. May 24, 2007) (dismissing Declaratory Judgment Act as basis for subject-matter jurisdiction in naturalization case claiming undue delay due to name check requirement). But dismissal for lack of subject-matter jurisdiction was not appropriate for the Mandamus Act and APA claims.

The Mandamus Act gives federal district courts "original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to plaintiff." 28 U.S.C. § 1361. The APA states that "[w]ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it." 5 U.S.C. § 555(b). The APA also states that federal courts "shall ... compel agency action unlawfully withheld or unreasonably delayed...." 5 U.S.C. § 706(1). The APA does not provide an independent basis for subject-matter jurisdiction, but a district court may have subject-matter jurisdiction over APA claims under the federal-question statute, 28 U.S.C. § 1331, which states that federal district courts "have original jurisdiction of any civil actions arising under the Constitution, laws, or treaties of the United States."

Mandamus relief is available only if a plaintiff establishes "(1) a clear right to relief, (2) a clear duty by the respondent to do the act requested, and (3) the lack of any other adequate remedy." Davis v. Fechtel, 150 F.3d 486, 487 (5th Cir.1998). A plaintiff must make a similar showing to be granted injunctive relief under the APA. See ...