Opinion
Case No. 05-72121.
February 1, 2006
ORDER
This matter is before the Court on Defendants' Motion to dismiss for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1). For the following reasons, the Court DENIES Defendants' Motion and REMANDS the application of Petitioner to the United States Citizenship and Immigration Services for expedited resolution.
The Petitioner, Ling Zhang, seeks mandamus to compel the United States Citizenship and Immigration Services ("CIS") to adjudicate her petition for naturalization. The Petitioner filed an application for naturalization on June 24, 2004. She was interviewed by CIS on November 24, 2004. As of January 28, 2005, the Petitioner was informed her naturalization application is on hold pending a mandatory security background check conducted by the Federal Bureau of Investigations ("FBI"). The background check is not complete. The Petitioner filed an action for mandamus on May 31, 2005.
The Defendants filed this motion to dismiss on August 17, 2005. The Petitioner failed to respond. The Defendants claim this Court does not have jurisdiction to hear the claim under 8 USC § 1447(b):
(b) Request for hearing before district court
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.
The Defendants claim the 120-day period begins to run from completion of the background check and the interview. They claim that because the background check is not complete, the 120-day period has not begun. The Defendants rely on Danilov v. Aguirre, 370 F.Supp.2d 441, 444 (E.D. Va. 2005). That court held that the interview is part of the process of examination. The background check is another part. The examination is not "conducted" until both those and all other aspects of the examination process are completed. Id.
However, several cases decline to follow Danilov. See Castracani v. Chertoff, 377 F.Supp.2d 71 (Dist. D.C. 2005); El-Daour v. Chertoff, 2005 WL 2106572 (W.D. Pa. 2005); and Essa v. United States Citizenship and Immigration Services, 2005 WL 3440827 (D. Minn. 2005). Those cases hold that "examination" refers to the interview. "The statute itself [§ 1447(b)] speaks of ` the date on which the examination is conducted' . . . [t]his contemplates that the examination occurs on a particular, identifiable, date. A "process" does not occur on one particular and identifiable date." El-Daour, at *3 (emphasis original).
In addition to the cases that hold the 120-day period begins to run from the date of the interview, the agency regulations also support that interpretation. CIS is only supposed to perform the initial examination, i.e., the interview, after completion of the FBI background check. 8 CFR § 335.2. This means the background check is separate from the examination. The examination, under § 1447(b), is not a process that includes the background check. The examination is an interview that is not supposed to be conducted until the background check is complete.
Further, according to 8 CFR § 335.3, "[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." This supports the interpretation that the examination refers to the interview, and within 120 days of its completion a decision is to be rendered.
Because the 120-day period for rendering a decision began to run from the date of Petitioner's interview, and that time passed, this Court has subject matter jurisdiction. The Respondents motion is DENIED. However, as the courts ruled in El-Daour and Essa, without the criminal background check complete, the Court is not equipped to decide the Petitioner's naturalization application. Therefore, the Court REMANDS the action to CIS for a prompt resolution following completion of the background check.