Shweika v. Dep't of Homeland Sec., Case No. 09-11781-BC

• Decision Date: 27 March 2012
• Docket Number: Case No. 09-11781-BC
• Parties: MAZEN MOHAMMAD SHWEIKA, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY and DISTRICT DIRECTOR OF THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICE, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

MAZEN MOHAMMAD SHWEIKA, Plaintiff,

v. DEPARTMENT OF HOMELAND SECURITYand DISTRICT DIRECTOR OF THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICE, Defendants.

Case No. 09-11781-BC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

Dated: March 27, 2012

Honorable Thomas L. Ludington

OPINION AND ORDER DISMISSING COMPLAINT

FOR LACK OF SUBJECT MATTER JURISDICTION

This long-running immigration case began eight years ago, when Plaintiff Mazen Shweika filed an application for naturalization as a United States citizen. Three years passed. Defendant U.S. Citizenship and Immigration Services ("Agency"), the agency within Defendant Department of Homeland Security tasked with overseeing immigration, did not decide the application. So Plaintiff filed a mandamus action in this Court. In 2008, the Court remanded the case to the Agency for a decision. The Agency held a hearing on Plaintiff's application, concluded that he was not of "good moral character," and denied his application. Plaintiff requested that the Agency hold a "review hearing" pursuant to 8 U.S.C. § 1447(a). Ten months passed. Again, the Agency did not act on Plaintiff's request. Plaintiff, all the while, remained a lawful, fully employed resident of the United States.

In 2009, Plaintiff brought a second suit in this Court, seeking a writ of mandamus ordering the Agency to hold the review hearing or, alternatively, de novo review of his application pursuant to 8 U.S.C. § 1421(c). Before the Court addressed Plaintiff's suit, theAgency scheduled the review hearing. Plaintiff appeared. When the immigration officer began to ask questions on topics not raised at the first hearing, however, Plaintiff refused to answer and terminated the hearing on the advice of his (former) counsel. In March 2010, the Agency again denied Plaintiff's application. Plaintiff then moved for de novo review.

A bench trial was held over three days in 2011. For the reasons explained on the record, the Court found that Plaintiff demonstrated his "good moral character" by clear and convincing evidence. The Court reserved judgment, however, on a single legal issue, which the Court concluded merited supplemental briefing. Noting its continuing duty to ensure that it has jurisdiction and noting that Plaintiff terminated the Agency's review hearing, the Court ordered the parties to brief:

Whether, pursuant to 8 U.S.C. § 1421(c) and all applicable statutes and regulations, the Court lacks jurisdiction to grant Plaintiff's application for naturalization because Plaintiff terminated the Defendant's interview regarding the denial of Plaintiff's naturalization application before the immigration officer had completed his examination of Plaintiff.

ECF No. 48. The parties submitted supplemental briefs on the issue. ECF Nos. 49-52. It is thus ripe for resolution.

As a preliminary matter, it should be noted, Plaintiff appears to be the first applicant for citizenship to have terminated a review hearing and then sought review in federal district court. Thus, the narrow question presented — what legal consequence, if any, flows from Plaintiff's terminating the review hearing — appears to be an issue of first impression. The applicable statutes and regulations, however, establish that Plaintiff did not exhaust his administrative remedies. Consequently, this Court lacks the authority to rule on the merits of his application.

Only "after a hearing before an immigration officer," 8 U.S.C. § 1421(c) provides, may an applicant seek judicial review. As discussed below, the implication of this provision is thatthe applicant must complete the hearing. Similarly, the applicable regulations provide that an applicant "will be considered as failing to prosecute such application if he or she . . . fails to provide . . . testimony deemed by USCIS to be necessary to establish his or her eligibility for naturalization." 8 C.F.R. § 335.7. The implication is, again, that the applicant is required to complete the hearing. And the case law establishes that the Court does not have jurisdiction to review the application until the applicant exhausts his administrative remedies. E.g., Escaler v. U.S. Citizenship & Immigration Servs., 582 F.3d 288, 292 (2d Cir. 2009). Because Plaintiff did not do so, the complaint will be dismissed for lack of jurisdiction.

I

Plaintiff was born in Jordan in 1962. Trained abroad as doctor, after moving to this country he became a certified nurse anesthesiologist. Since 1998, he has been a lawful permanent resident. In 2004, he filed an application for naturalization with the Agency. About three years passed. The Agency did not complete its review of the application.

On February 27, 2007, Plaintiff filed suit in this Court. Seeking a writ of mandamus, Plaintiff requested an order directing the Agency to complete its review. The Agency answered, attributing the delay in processing Plaintiff's application to the FBI, which had not completed the required background check.

In February 2008, the Court remanded the case to the Agency and ordered it to reach a determination on Plaintiff's application on or before May 30, 2008. Shweika v. Cannon, No. 07-10870-BC (E.D. Mich. Feb. 29, 2008) (unpublished). The Agency did, denying Plaintiff's application on May 29, 2008. According to the Agency, it did so because of Plaintiff's inability to provide a certified disposition of an arrest that occurred in Virginia some years earlier.

Plaintiff filed a notice of administrative appeal (a "form N-336") in June 2008 requesting a "review hearing" pursuant to § 1447(a). He explained that he submitted a photocopy of the arrest record, but could not provide a certified copy because he was acquitted of the charges and the records relating to the case were expunged. About ten months passed. Again, the Agency did not complete its review of the application.

In May 2009, Plaintiff again filed suit in this Court. Plaintiff asked the Court to compel the Agency to decide the pending petition for naturalization or, alternatively, to grant Plaintiff a de novo hearing in this Court. Compl. 5, ECF No. 1. He also explained that he was "willing to stipulate denial by [the Agency]" so that the Court may conduct the de novo hearing. Id.

In January 2010, the Agency moved to dismiss or remand. ECF No. 13. Asserting that mandamus relief was not warranted, the Agency further argued that the Court lacks subject matter jurisdiction because Plaintiff has not exhausted his administrative remedies.

On February 9, 2011, the Court granted the Agency's motion in part and denied it in part. Shweika v. Dep't Homeland Security, No. 09-11781, 2010 WL 457457 (E.D. Mich. Feb. 9, 2010) (slip op.). Observing that a hearing on Plaintiff's petition was scheduled to take place two days later, on February 11, 2010, the Court explained:

[M]andamus relief is unnecessary. It is understandable that Plaintiff is anxious for the hearing to take place-more than five years have passed since his application for naturalization was submitted. Additionally, more than eighteen months have passed since Plaintiff requested the § 1447(a) hearing by submitting a form N-336. According to USCIS regulations, the hearing should have taken place within 180 days of the request. The USCIS has, admittedly, not complied with that deadline. However, it is not clear that the 180-day deadline is a firm, nondiscretionary mandate, rather than an intra-agency goal. The Mandamus Act is only available to enforce mandatory duties. . . . At some point, unreasonable delay may warrant mandamus relief, but that point has not been reached here.

Nevertheless, given the substantial delays that have occurred in this case and the approaching administrative hearing, it is not necessary to dismiss Plaintiff'scomplaint entirely. Following next week's hearing, Plaintiff's naturalization application will be ready for review by this Court.

2010 WL 457457, at *2. Or so the Court anticipated.

On February 11, 2010, Plaintiff appeared for the review hearing. An immigration officer, Officer Ian Modelski, conducted the hearing. After questions about a number of topics, the conversation eventually turned to allegations made by Plaintiff's former wife, Angeline Jacobsen. Officer Modelski asked a number of questions about the couple's relationship, living arrangements, finances, and the like. He then asked: "she also said that when you — when you'd get upset that you would throw things, break things, is that something you did?" Agency Review Hr'g Tr. 37-38, Feb. 11, 2010, attached as Defs.' Tr. Ex. N ("Hr'g Tr."). Plaintiff's counsel interjected that he needed to speak to his client privately, informing the Officer Modelski "[we are] most likely gonna stop the interview." Hr'g Tr. 38. Going back on the record a short time later, Plaintiff's counsel explained:

Counsel: Officer Modelski I believe the interview is going way beyond the interview required for citizenship . . . . Ah, at this point unless you wanna interview on the naturalization petition, ah, we respectfully will ask you to stop the interview.

Officer: Well, I see a connection . . . . [I]t appears that he misrepresented the fact that he had been arrested, ah, that this then precluded a full examination of, of potential issues that would have been examined in some fashion or other that is legitimate. This relates to good moral character.

Counsel: No, we, we came here in good faith, because right now there's an order of the United States District Court for no discovery by either side, which means you can't even interview him unless we voluntarily want to interview. . . .

Officer, ah, Modelski [you] did indicate to me earlier, right in the beginning, that you did receive a copy of that order from the court, so you are very well aware that discovery is — in this case, is extremely limited. And I believe you're interviewing him way beyond anaturalization application. What somebody said, what's the credibility? You have not given us an affidavit or

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