Walji v. Gonzales
| Decision Date | 14 September 2007 |
| Docket Number | No. 06-20937 Summary Calendar.,06-20937 Summary Calendar. |
| Citation | 500 F.3d 432 |
| Parties | Shabir Hussein WALJI, Plaintiff-Appellant, v. Alberto R. GONZALES, U.S. Attorney General; Michael Chertoff, Secretary, Department of Homeland Security; Sharon A. Hudson, Director, Houston Office, U.S. Citizenship and Immigration Services; Emilio Gonzalez, Director, Citizenship & Immigration Services, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles Roth, Nat. Imm. Justice Ctr., Chicago, IL, for Amicus Curiae.
Appeal from the United States District Court for the Southern District of Texas.
Before REAVLEY, WIENER, and DEMOSS, Circuit Judges.
Treating the petition for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is GRANTED. The prior opinion is withdrawn, and the following opinion is substituted:
Before REAVLEY, WIENER, and DeMOSS, Circuit Judges.
When the U.S. Citizenship and Immigration Services ("CIS") does not grant or deny an application for naturalization 120 days after the required examination of the applicant, the applicant may ask a U.S. district court to adjudicate the application. 8 U.S.C. § 1447(b). Does the 120 days begin to run after the application interview or after the background investigation is complete? The district court held the latter and dismissed the case for lack of subject matter jurisdiction. Reviewing the record de novo,1 we reverse and remand.
Shabir Hussein Walji, a Ugandan native and Canadian citizen, has been a lawful permanent resident of the United States since October 16, 1980. Walji filed a Form N-400 Application for Naturalization with the CIS in September 2003. An immigration officer interviewed Walji on April 6, 2004 and informed Walji that he passed the English language, U.S. history, and U.S. government proficiency examinations. However, the officer informed Walji that action on his application would not proceed until the FBI completed a mandatory national security background check.
When Walji received no answer on his application, he began asking questions. The record is replete with correspondence between Walji and various officials. Two years and a day after his first examination, Walji filed this lawsuit and asked the district court to (1) assume jurisdiction over and adjudicate his application for naturalization or (2) compel the defendants to perform their duty to adjudicate his application.
The district court held that the 120-day period for approval or denial of the application begins to run only when all of the application requirements are complete and that Walji's application was not complete because the FBI had not concluded its background investigation. Because the 120-day period was never triggered, the district court held that it lacked jurisdiction over Walji's lawsuit and dismissed it.
An applicant for Citizenship must first submit a completed Form N-400 Application for Naturalization to the CIS. 8 C.F.R. § 334.2(a). After the application is filed, CIS "shall [if not waived] conduct an investigation of the applicant" that includes, at a minimum, "a review of all pertinent records" and "police department checks." Id. § 335.1. The examination and investigation of the applicant is prescribed in 8 U.S.C. § 1446.2 Once the investigation is completed, each applicant "shall appear in person" before a CIS officer for an examination. 8 C.F.R. § 335.2(a). The "examination" includes questioning by the officer about matters the applicant has included in the written submissions in addition to tests administered on "English literacy and basic knowledge of the history and government of the United States." Id. § 335.2(c). The regulations provide that the examination is to be conducted only after the FBI has provided a "definitive response that a full criminal background check of the applicant has been completed" by confirming (1) the applicant has no administrative or criminal record, (2) the applicant has an administrative or criminal record, or (3) the FBI cannot definitively respond because the necessary fingerprints analysis cannot be completed on the available information. Id. § 335.2(b)(1)-(3). "A decision to grant or deny the application shall be made at the time of the initial examination or within 120-days after the date of the initial examination of the applicant for naturalization under § 335.2." Id. § 335.3(a).
If the CIS does not issue a decision within 120 days of the examination, applicants may seek judicial relief under 8 U.S.C. § 1447(b), which states:
If there is a failure to make a determination [on the application for naturalization] 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 [CIS] to determine the matter.
It is this statute under which Walji now seeks judicial intervention.
Whether the district court has jurisdiction over Walji's lawsuit hinges upon the statutory application of the term "examination" in § 1447(b). The Government argues that the term "examination" refers to the entire investigative process, including the FBI's security check of an applicant, and until that check is completed, the 120-day period referenced in the section does not begin to run. Walji contends that by "examination" the statute refers to the interview of an applicant, which in his case occurred two years — well over 120 days — before he initiated this lawsuit. Walji thus argues that his 120-day time period began to run on the date of the examination by the immigration officer, notwithstanding the fact that the FBI had not completed its background investigation.3
Numerous district courts have decided the issue, reaching opposite conclusions. One of the earliest district courts to consider the issue adopted the position advanced by the Government, concluding that "an examination is not a single event, but instead is essentially a process the agency follows to gather information concerning the applicant," which includes the FBI's security check. Danilov v. Aguirre, 370 F.Supp.2d 441, 443-44 (E.D.Va.2005) (emphasis in original). Therefore, the Danilov court held, the "examination" cannot be considered complete until after the FBI concludes its background investigation of an applicant and, as a consequence, courts lack subject matter jurisdiction before the lapse of 120 days after the entire process has been completed. Id. Adopting the district court's analysis in Danilov, a handful of district courts have also held that the 120-day period is not triggered until all aspects of the application process are completed, including the FBI background check.4
However, the majority of courts addressing this issue have concluded that the term "examination" in § 1447(b) refers to a discrete event — the agency's initial interview of the applicant — and that the 120-day period begins to run as of the date that interview is concluded.5 Generally these courts reject the Danilov court's interpretation of § 1447(b) for three reasons: the plain language of § 1447(b), the clear inferences to be drawn from the total statutory and regulatory scheme, and the stated legislative purpose of § 1447(b).
First, the statute's language that the 120-day period begins to run after "the date on which the examination is conducted," 8 U.S.C. § 1447(b), "contemplates that the examination occurs on a particular, identifiable date." El-Daour, 417 F.Supp.2d at 681. Thus, the plain language suggests that the examination is a distinct, single event — the date on which the interview occurs — triggering the 120-day period, and not an ongoing fluid process encompassing the interview as well as the background investigation. Id. (). Further, the term "conducted" would have to be construed to mean "completed or concluded" to reach the conclusion that the examination required by the statute is considered the "process of examination." Id. (). If the statute is intended to set a certain date for the Service to decide, it would have to be the time of the examination. Of course, the Service need not conduct the examination until after the investigation is concluded.
Second, the statutory scheme contemplates a distinction between the investigation and the examination, the latter being a discrete rather than a continuous event. The organization of the INA section preceding § 1447 indicates that the investigative process is separate from the examination. See 8 U.S.C. § 1446 (). Section 1446 further differentiates between the two procedures. Whereas an "examination" must be conducted by an employee of CIS designated by the Attorney General, an "investigation" may be conducted by an employee of CIS or an employee of the United States the Attorney General designates. Id.
CIS's implementing regulations also indicate that the agency itself interprets the investigation as a separate and distinct precedent to the examination, not a subset thereof, and that "examination" means the initial interview and not the entire process. Compare 8 C.F.R. § 335.2(a), (c), (e), (entitled ...
To continue reading
Request your trial
-
Sawan v. Chertoff
...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 i......
-
Aronov v. Chertoff
...after the date of the initial examination of the applicant for naturalization ....") (emphasis added); see also Walji v. Gonzales, 500 F.3d 432, 439 (5th Cir.2007) ("[B]ecause the clear intent of Congress was to accelerate naturalization applications, and the statutory and regulatory langua......
-
Aronov v. Napolitano
...after the date of the initial examination of the applicant for naturalization ....") (emphasis added); see also Walji v. Gonzales, 500 F.3d 432, 439 (5th Cir.2007) ("[B]ecause the clear intent of Congress was to accelerate naturalization applications, and the statutory and regulatory langua......
- United States v. Carriles