Federal District Court Opinions

ALHASSAN v. GONZALES, (Colo. 12-7-2006) KAMAL OMER ALHASSAN, Petitioner/Plaintiff, v. ALBERTO GONZALES, Attorney General, MICHAEL CHERTOFF, Secretary, Department of Homeland Security, EMILIO GONZALEZ, Director, U.S. Citizenship and Immigration Services, MARIO ORTIZ, District Director, Denver District Office, USCIS, and ROBERT MUELLER, III, Director, Federal Bureau of Investigations, Respondents/Defendants. Civil Action No. 06-cv-01571-REB-MJW. United States District Court, D. Colorado. December 7, 2006

ORDER RE: MOTION TO DISMISS OR TO REMAND TO THE FEDERAL BUREAU OF INVESTIGATION AND TO CUSTOMS AND IMMIGRATION SERVICES FOR FURTHER PROCESSING OR HOLD IN ABEYANCE

ROBERT BLACKBURN, District Judge

The matter before me is respondents’ Motion to Dismiss or
to Remand to the Federal Bureau of Investigation and to
Customs and Immigration Services for Further Processing or
Hold in Abeyance [#6], filed October 12, 2006. I deny the
motion to dismiss and the motion to hold in abeyance, but
grant the motion to remand with instructions.

Petitioner, a citizen of Sudan and a lawful permanent
resident of the United States, filed an application for
naturalization on August 5, 2005, and was interviewed by
the United States Customs and Immigration Service (“USCIS”)
on December 8, 2005. However, USCIS has not yet adjudicated
petitioner’s application because the FBI name Page 2
check has not yet been processed, which, in turn, is
necessary for USCIS to complete its security background
checks. Petitioner, therefore, filed this action on August
9, 2006, seeking an order in mandamus to require the USCIS
to hold a hearing on his petition for naturalization

Petitioner brings this suit under 8 U.S.C. §
1447(b), 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.

Respondents claim that this court lacks jurisdiction under
this section because the “examination” contemplated thereby
is not complete until all security background checks have
been completed. As respondents acknowledge, however, with
but a single exception, see Danilov v. Aguirre, 370
F.Supp.2d 441, 443-44 (E.D. Va. 2005), this insular
interpretation of the statute has been rejected by every
federal district court that has considered it. See Khelifa
v. Chertoff, 433 F.Supp.2d 836, 841 (E.D. Mich. 2006);
Meyersiek v. United States Citizenship and Immigration
Service, 2006 WL 1582397 at *3 (D.R.I. June 6, 2006); Daami
v. Gonzalez, 2006 WL 1457862 at *5 (D.N.J. May 22, 2006);
Al-Kudsi v. Gonzales, 2006 WL 752556, at *2 (D. Or. Mar.
22, 2006); Shalan v. Chertoff, 2006 WL 42143, at *1 (D.
Mass. Jan. 6, 2006); Essa v. United States Citizenship and
Immigration Services, 2005 WL 3440827 at *2 (D. Minn. Dec.
14, 2005); El-Daour v. Chertoff, 417 F.Supp.2d 679, 681
(W.D. Pa. 2005). Page 3 These courts agree that the term
“examination” in section 1447(b) refers to the examination
interview, not the entire examination process, as
respondents would have it.[fn1] I find no reason to depart
from this well-reasoned authority, which comports with the
plain language of the statute. Accordingly, I find that I
have jurisdiction over this matter.

Section 1447(b) allows the district court to “either
determine the matter or remand the matter, with appropriate
instructions, to the Service to determine the matter.”
Respondents ask me, in the alternative, to remand this
case. I find this to be the most judicious course of action
in this matter. Petitioner does not object in principle to
this solution, although he does ask me to set “a reasonable
but firm deadline for completion of the background checks
and adjudication process.” Respondents have proposed that
the matter be remanded with directions to the FBI to
complete its name check within 60 days and further
directions to the USCIS to make a determination as to
petitioner’s application within an additional 60 days. I
find this to be an entirely reasonable proposal.

THEREFORE, IT IS ORDERED as follows:

1. That respondents’ Motion to Dismiss or to Remand to the
Federal Bureau of Investigation and to Customs and
Immigration Services for Further Processing or Hold in
Abeyance [#6], filed October 12, 2006, is GRANTED IN PART
and DENIED IN PART; Page 4

2. That the motion is GRANTED with respect to respondents’
motion to remand;

3. That in all other respects the motion is DENIED;

4. That this matter is REMANDED to the United States
Customs and Immigration Service as contemplated by 8 U.S.C.
§ 1447(b);

5. That the Federal Bureau of Investigation is ORDERED to
complete the required name check of petitioner within 60
days of the date of this order; and

6. That the United States Customs and Immigration Service
is ORDERED to adjudicate petitioner’s application for
naturalization within 60 days of its receipt of the name
check from the FBI.

[fn1] Moreover, USCIS regulations, which require the
examination interview to be held only after a full criminal
background check has been completed, see 8 C.F.R. §
335.2(b), do not allow the USCIS to unilaterally toll
petitioner’s rights under section 1447(b) simply because it
conducts the interview before all necessary security checks
have been completed. See Daami, 2006 WL 1457862 at *4;
Ibrahim v. Department of Homeland Security, 2005 WL 2230152
at *3 (S.D. Tex Sept. 13, 2005).