Silebi De Donado v. Swacina

• Decision Date: 14 May 2007
• Docket Number: No. 07-20190-CIV.,07-20190-CIV.
• Citation: 486 F.Supp.2d 1360
• Parties: Eidy Labibe SILEBI DE DONADO, Plaintiff, v. Linda SWACINA, District Director, United States Citizenship & Immigration Services, Miami District, and Robert S. Mueller, III, Director, Federal Bureau of Investigation, Defendants.
• Court: U.S. District Court — Southern District of Florida

486 F.Supp.2d 1360

Eidy Labibe SILEBI DE DONADO, Plaintiff, v. Linda SWACINA, District Director, United States Citizenship & Immigration Services, Miami District, and Robert S. Mueller, III, Director, Federal Bureau of Investigation, Defendants.

No. 07-20190-CIV.

United States District Court, S.D. Florida.

May 14, 2007.

Stephen Matthew Bander, Bander & Associates PA, Miami, FL, for Plaintiffs.

Milton Aponte, United States Attorney's Office, Miami, FL, for Defendants.

ORDER DENYING DEFENDANTS' MOTION TO DISMISS AND GRANTING DEFENDANT'S ALTERNATIVE MOTION TO REMAND TO USCIS

MORENO, District Judge.

Plaintiff Eidy Labibe Silebi De Donado is a citizen of Colombia who seeks a hearing on her naturalization application pursuant to 8 U.S.C. § 1447(b) or an order compelling the representatives of the United States Citizenship Immigration Services ("USCIS") to adjudicate her application. Defendants move to dismiss for lack of subject matter jurisdiction under Fed. R.Civ.P. 12(b)(1), or in the alternative, to remand the matter to USCIS for completion of the administrative process. This Court holds that because Congress unequivocally set a 120-day time limit upon "examination" for adjudicating applications for naturalization, and the term "examination" as used in 8 U.S.C. § 1447(b) means the initial USCIS application interview, it has jurisdiction over this matter. However, the Court decides to follow the well reasoned approach of the many courts that have previously decided this issue and remands to the USCIS to make a determination on Plaintiff's application within 120 days from the date of this Order.

BACKGROUND

Plaintiff Eidy Labibe Silebi De Donado is a citizen of Colombia. Since August 17, 2000, Plaintiff has been a lawful permanent resident of the United States. Plaintiff filed an application for naturalization, Form N-400, with the USCIS on October 28, 2005. Respondents initiated background checks for Plaintiff on November 7, 2005. The USCIS interviewed her in connection with her application on March 20, 2006. At that time, Plaintiff also passed the required exams in English and U.S. History and Government. As of March 22, 2007, the Federal Bureau of Investigations ("FBI") had not completed the requested background checks. Consequently, the USCIS has yet to render a decision on Plaintiffs application. As a result, Plaintiff filed the instant Petition for a hearing on her application or for an order of mandamus.

LEGAL STANDARD

On a motion to dismiss, the Court must view the complaint in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). The Court may only grant the motion where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which could entitle [her] to relief." Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116 F.3d 1364, 1369 (11th Cir.1997). Moreover, the Court must, "at this stage of the litigation, ... accept [the plaintiffs] allegations as true." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

SUBJECT MATTER JURISDICTION

Article III Courts are courts of limited jurisdiction and may act only in cases "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331 (2006). Plaintiff does not ask this Court to redress a violation of the United States Constitution. Rather, this action arises under federal statute. Plaintiff seeks (1) judicial review of her naturalization application in this Court pursuant to 8 U.S.C. § 1447(b) because the 120-day period following her initial examination has elapsed; or (2) an order compelling Defendants to make a determination on her application pursuant to the Mandamus Act, 28 U.S.C. § 1361; or (3) the Administrative Procedure Act, 5 U.S.C. § 702 et seq. ("APA"). Defendants move to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.

The Attorney General has the "sole authority to naturalize persons as citizens of the United States." 8 U.S.C. § 1421(a) (2006). Section 1446(a) of Title 8 of the United States Code instructs the Attorney General to designate USCIS employees to conduct examinations for examinations of applicants and determine whether such applications should be granted or denied. Id. 1446(a). However, Congress has conferred jurisdiction upon a district court in two situations. First, an applicant may petition for a de novo review of a denied application in district court "after a hearing before an immigration officer under section 1447(a) of this Title." Id. § 1421(c). Second, an applicant may petition a district court for a hearing on the application if USCIS fails to render a decision on the application "before the end of the 120-day period after the date on which the examination is conducted." Id. § 1447(b). Here, Plaintiff relies on section 1447(b) of Title 8 of the United States Code, which provides:

If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.

8 U.S.C. § 1447(b).

In the instant matter, Defendants concede that more than 120 days have elapsed since Plaintiffs first interview on March 20, 2006. In fact, because all of the material facts are undisputed, this case becomes one of statutory interpretation. At issue is the term "examination" referenced in section 1447(b). Defendants argue that the term "examination" encompasses the entire process of determining Plaintiffs application for naturalization, including the FBI background check. Because Plaintiffs background check remains pending, Defendants submit that the 120-day clock has yet to run. If Defendants' interpretation is correct, the case must be dismissed for lack of subject matter jurisdiction. Plaintiff, on the other hand, submits that "examination" refers to the date of her interview, which triggered the running of Defendants' 120-day clock to adjudicate her application. Therefore, according to section 1447(b), the Court would have jurisdiction over this matter. This Court agrees with Plaintiff that it does and adopts the majority view that the term "examination" means the initial USCIS naturalization application interview. See Rodriguez v. Gonzales, No. 07-20022-CIV-UNGARO, 2007 WL 1293099, slip op. at 4 (S.D.Fla. Mar. 20, 2007); Garcia v. Gonzales, No. 06-22386-C IV-LE -NARD/TORRES, slip op. at 5-6 (S.D.Fla. Dec. 22, 2006); Machado v. Gonzales, No. 06-22202-CIV-DIMITROULEAS, slip op. at 4 (S.D.Fla. Dec. 19, 2006); Malakhov v. U.S. Citizenship & Immigration Servs., No. 06-22299-CIV-JORDAN, slip op. at 1 (S.D.Fla. Dec. 8, 2006); Fernandez v. Gonzales, No. 06-22442-CIV-SEITZ/MCALLEY, slip op. at 3 (S.D.Fla. Dec. 5, 2006); Hussein v. Gonzales, 474 F.Supp.2d 1265, 1268 (M.D.Fla.2007); Manzoor v. Chertoff, 472 F.Supp.2d 801, 807 (E.D.Va.2007); El-Daour v. Chertoff, 417 F.Supp.2d 679 (VV.D.Pa.2005).

In support of its Motion to Dismiss, Defendants rely on Danilov v. Aguirre, 370 F.Supp.2d 441 (E.D.Va.2005), in which a court faced with similar facts held that an applicant's interview is "merely part of the overall examination process, as is a review of the plaintiffs FBI background investigation." Id. at 444. This Court rejects the logic in Danilov for the three reasons cited in Hussein v. Gonzales, 474 F.Supp.2d 1265, 1268 (M.D.Fla.2007). First, a straightforward reading of section 1447(b) indicates that the word "examination" is a single, identifiable event. Id. Second, section 1446 of Title 8 of the United States Code distinguishes between examinations and investigations. Id. Third, the USCIS regulations, as codified in the Code of Federal Regulations, make a distinction between the examination and the investigation. Id. These three reasons support the argument that Congress intended the "examination" to be distinct from the investigative process when it fashioned section 1447(b).

I. SECTION 1447(a)

When interpreting a statute, the Court must first look to the language of the statute itself to "give effect to the unambiguously expressed intent." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Ianguage of § 1447(b) — "before the end of the 120-day period after the date on which the examination is conducted" — obviates the need for further inquiry. 8 U.S.C. § 1447(b) (emphasis added). The statutory language indicates a single, specific, and isolated event — the date on which the examination occurred — and not a fluid "process." If Congress had intended for the 120-day period to run only after the completion of a potentially lengthy process, it could have easily penned the statute to reflect that intention. Daami v. Gonzales, No. 05-3667, 2006 WL 1457862 at *5 (D.N.J. May 22, 2006).

Moreover, as Judge Lenard opined in Garcia v. Gonzales, No. 06-22386-CILENARD/TORRES, slip op. (S.D.Fla. Dec. 22, 2006), to read the statute as Defendants urge would render it meaningless. Id. at 6. If the triggering date in section 1447(b) were the date on which the entire process was concluded, irrespective of the interview date, the applicant would have no recourse for delays. Id. On the other hand, if the USCIS completed all the steps in a timely fashion, but did not make a determination on the application, the applicant would have no notice that the process had been completed, and would be unable to determine whether it was the proper time to apply to the district court. Id. The Court must avoid statutory interpretations that produce unreasonable or absurd results. See U.S. v. Am....