Opinion
C. A. 2:23-01930-BHH-MHC
11-21-2023
Dharmeshkumar Bipinchandra Patel, Plaintiff, v. Alejandra Mayorkas, Ur Jaddou, Jody C. Luntsford, and U.S. Citizenship and Immigration Services, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Pro se Plaintiff Dharmeshkumar Bipinchandra Patel (“Plaintiff”) filed this action against Defendants Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security; Ur Jaddou, Director, U.S. Citizenship and Immigration Services; Jody C. Luntsford, Field Office Director, USCIS Charleston; and U.S. Citizenship and Immigration Services (“Defendants”), alleging “unlawful, unreasonable, arbitrary and capricious” delay in adjudicating his application for naturalization. ECF No. 1. Before the Court is Defendants' Motion to Remand and Dismiss or to Stay. ECF No. 16. Plaintiff filed a Response in Opposition. ECF No. 19. The matter is ripe for review.
Although Defendants include the alternative relief of a stay in the title of their Motion, they do not argue for, address, or otherwise seek that relief in the Motion. Moreover, as set forth below, while the Court retains jurisdiction over the matter, USCIS is divested of jurisdiction, such that a stay is not appropriate in this matter.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(e), D.S.C. Because the Motion is a dispositive motion, this Report and Recommendation is entered for review by the District Judge.
I. DISCUSSION
This is an action for a judicial hearing on Plaintiff's Application for Naturalization (Form N-400) pursuant to 8 U.S.C. § 1447(b). Plaintiff alleges a delay by USCIS in adjudicating his application. Defendants move to remand the matter, indicating a willingness to adjudicate Plaintiff's application within 30 business days after remand. ECF No. 16 at 3.
An applicant begins the naturalization process by filing an “Application for Naturalization” with the Department of Homeland Security and USCIS. Grey v. Cissna, 413 F.Supp.3d 466, 469 (D.S.C. 2019) (citing Ndumu v. U.S. Dep't of Homeland Sec., 2014 WL 5495680, at *1 (D. Md. Oct. 29, 2014); 8 U.S.C. § 1445(a), (d)). Thereafter, USCIS must conduct a background investigation and an examination of the applicant. Id. (citing 8 U.S.C. § 1446(a)-(b)). After USCIS completes the background investigation and examination, a USCIS official grants or denies the application. 8 U.S.C. § 1446(d); 8 C.F.R. § 335.3. The official must make the decision within 120 days following the initial examination of the applicant. Id. If USCIS fails to make said determination within 120 days of the interview, the applicant may file a lawsuit in United States district court seeking adjudication of his application. Id. (citing 8 U.S.C. § 1447(b)). The court “may either determine the matter or remand the matter, with appropriate instructions, to [USCIS] to determine the matter.” Id. Therefore, “it is entirely within the discretion of the court to either deny the motion to remand and assert jurisdiction or grant the motion to remand and allow the naturalization petition to be adjudicated by USCIS.” Id. (citing Abusamhadneh v. Napolitano, 2010 WL 1734772, at *1 (E.D. Va. Apr. 26, 2010)).
“The majority of courts have found that ‘examination' in § 1447(b) refers to the interview that USCIS conducts after receiving a naturalization application, not the completion of its entire review of the application, including background checks.” Grey, 413 F.Supp.3d at 469 n.3 (citing Manzoor v. Chertoff, 472 F.Supp.2d 801, 803-04 (E.D. Va. 2007) (“It is clear from the plain language of these regulations that the term ‘examination' in 8 U.S.C. § 1447(b) means the initial interview of an applicant.”); Antonishin v. Keisler, 627 F.Supp.2d 872, 874-84 (N.D. Ill. 2007) (agreeing with “the majority view that the ‘examination' is the applicant's interview”)).
Plaintiff opposes remand, asking the Court to hold his case in abeyance and “issue a STAY until a decision is rendered official by the U.S.C.I.S.” ECF No. 19. However, this Court has exclusive jurisdiction over the application now that this lawsuit has been filed, and USCIS will not regain jurisdiction to adjudicate Plaintiff's application unless the Court remands the case to the agency. See Grey, 413 F.Supp.3d at 469 (citing Etape v. Chertoff, 497 F.3d 379, 381 (4th Cir. 2007)).
Regarding the issue of remand, one factor that courts consider when exercising its discretion is whether USCIS offers “good reasons” for its delay in ruling on an application. Dubon v. Jaddou, 1:22-CV-447, 2022 WL 16949734, at *1 (M.D. N.C. Nov. 15, 2022) (citing Etape, 497 F.3d at 387 n.5; Manzoor v. Chertoff, 472 F.Supp.2d 801, 809 (E.D. Va. 2007). Courts also consider whether USCIS gives assurances that it will act quickly on an application if the court orders remand, as well as a variety of policy issues, including whether an application presents issues that are particularly well-suited to resolution by an agency rather than a court. Id. (citing Grey, 413 F.Supp.3d at 471-72). In “the vast majority” of cases brought pursuant to § 1447(b), district courts “have remanded the matter back to [USCIS] with appropriate instructions, rather than determine the matter.” Id. (citing Manzoor, 472 F.Supp.2d at 810). “In the few cases where a district court opted to adjudicate the matter itself, the application had been pending for a lengthy period and the [agency] failed to assure the court that a swift decision could be made on remand.” Id. (quoting Rashid v. Dep't of Homeland Sec., No. 14-cv-2109, 2017 WL 1398847, at *2 (E.D. Cal. Apr. 19, 2017)).
As an initial matter, Defendants have offered little by way of explanation for the lengthy delay in failing to act on Plaintiff's application. According to the allegations in Plaintiff's Complaint, Plaintiff presented himself for his initial examination before the Charleston Field Office of the USCIS on March 4, 2021. ECF No. 1 at 4. After a Congressional Inquiry was conducted, the inquiry indicated USCIS will issue a decision “once certain issues are resolved.” Id. Neither party has explained or described what those issues may be, or otherwise offered any other reason for the delay. Indeed, Defendants only state that remand will allow “USCIS to proceed with its adjudication in order to determine whether Plaintiff can establish that he has been lawfully admitted for permanent residence and has the ‘good moral character' required to naturalize.” ECF No. 16 at 2 (citing U.S.C. §§ 1427, 1429; 8 C.F.R. § 316.10 (regulation describing applicant's burden in establishing good moral character)).
Although the lengthy delay in this matter is somewhat troubling, particularly given Defendants' lack of explanation, Defendants have indicated that USCIS will issue an expeditious decision on Plaintiff's naturalization application, specifically within 30 business days of remand, without denying him the right to eventually seek de novo judicial review of that decision, if necessary. ECF No. 16 at 2. Plaintiff questions Defendants' ability to issue a decision within the stated time, given the lengthy delay already, and suggests that remand would be a futile waste of time, as he anticipates that USCIS will deny his naturalization application.
Ultimately, however, the undersigned is persuaded by Defendants' argument that it will act expeditiously and that remand will conserve judicial resources. ECF No. 16 at 3-4. The naturalization statutes and regulations contemplate a two-step decisional process prior to district court review-an initial decision by a naturalization examiner and, if the application is denied, an administrative appeal to an “immigration officer.” 8 U.S.C. §§ 1421(c), 1446(d); 8 C.F.R. Part 336. Accordingly, having USCIS fully assess the issues and render its own decision first wil this Court to have the benefit of both steps and a full record, if and when Plaintiff de appropriate or necessary to seek de novo review of his application in this Court. See INS v. O Ventura, 537 U.S. 12, 16-17 (2002) (“Generally speaking, a court . . . should remand a cas agency for decision of a matter that statutes place primarily in agency hands. This princi obvious importance in the immigration context.... The agency can bring its expertise to bea [a] matter; it can evaluate the evidence; it can make an initial determination; and, in doin can, through informed discussion and analysis, help a court later determine whether its d exceeds the leeway that the law provides.”) Allowing additional development of the reco the issues prior to litigation conserves judicial resources, such that Defendants' Motion sho granted.
II. RECOMMENDATION
In the interests of an expeditious adjudication of Plaintiff's naturalization appli deference to agency expertise, and judicial economy, the undersigned RECOMMEND Defendants' Motion to Remand (ECF No. 16) be GRANTED, that this action be REMA to USCIS for adjudication on Plaintiff's application for naturalization, and that U.S. INSTRUCTED to adjudicate Plaintiff's application within 30 business days of the date order of remand.
The parties' attention is directed to the important notice on the following page
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1) ; Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).