Federal District Court Opinions

GHALIB v. HUDSON, (S.D.Tex. 12-27-2006) ABDU GHALIB,
Plaintiff, v. SHARON HUDSON, Acting Director of the Houston
District Office, US Citizenship and Immigration Services, et
al., Defendants. CIVIL ACTION NO. H-05-3531. United
States District Court, S.D. Texas, Houston Division.
December 27, 2006


LEE ROSENTHAL, District Judge

Plaintiff Abdu Ghalib sues under 8 U.S.C. § 1421(c),
which authorizes a de novo judicial review of a
naturalization application denied after a hearing under 8
U.S.C. § 1447(a). Ghalib has filed four citizenship
applications since 2001. He filed the fourth application
after filing this suit seeking judicial review of the
denial of the third. Defendant Sharon A. Hudson, District
Director, United States Citizenship and Immigration
Services (USCIS), asks this court to dismiss this case and
remand so the USCIS can decide the fourth application or,
in the alternative, to conduct a de novo review and deny
the citizenship application. The Director asserts that
dismissal and remand will allow the USCIS to adjudicate the
latest naturalization application in light of new evidence
Ghalib might submit. The Director seeks dismissal “solely
for the purpose of judicial economy to prevent potentially
unnecessary litigation that could be resolved within the
administrative setting.” Page 2 (Docket Entry No. 17, p.

Ghalib responds that he does not oppose staying this suit
while the USCIS reviews his pending application for
naturalization. He argues that in light of the USCIS’s
acknowledged error in considering at least one of his
earlier applications and the delay that would result if his
latest application is denied and he had to administratively
appeal before filing a new lawsuit, dismissal and remand is
inappropriate. Ghalib asks this court to stay the appeal
from the denial of the third application while the USCIS
considers the fourth application. Alternatively, if a stay
pending the administrative decision on his fourth and
pending application is not granted, Ghalib asks for the de
novo judicial hearing that the statute provides. (Docket
Entry No. 18, p. 2).[fn1]

This court agrees that under the unusual circumstances
present here, a stay of this litigation pending the
administrative decision on the latest-filed pending
naturalization is appropriate. A stay will allow the USCIS
to consider all the facts under the correct legal standard
and allow Ghalib timely de novo judicial review if that
application is denied. The Director’s motion to dismiss and
remand is denied and Ghalib’s motion to stay is granted.
The reasons are explained below.

I. Background

The relevant facts are largely undisputed. Ghalib is a
Yemen citizen who became a lawful permanent resident on May
3, 1994, based on a petition filed by his United States
Page 3 citizen wife. In March 1998, Ghalib was convicted of
illegal food stamp transactions at a convenience store he
owned. His sentence for this felony offense was suspended
and his probation terminated early. In April 2001, Ghalib
applied for naturalization as the spouse of an American
citizen under section 319(a) of the INA, 8 U.S.C. §
1430(a). This section requires a demonstration of good
moral character for three years. The Director denied his
application under section 316, which has a five-year
good-moral-character requirement. On appeal, the Director
denied relief, again citing the five-year requirement.

Ghalib filed a second naturalization application in 2003,
again relying on section 319(a). This application was
denied, based on a statement that Ghalib was on probation
until 2003, when his probation had been terminated in 2000.
Ghalib unsuccessfully challenged that denial. He filed a
third application in 2004, which was more than six years
since he was convicted and more than three years since his
probation ended. The USCIS denied this application, stating
that “during the course of the interview, both you and your
attorney stated the sole purpose of filing under Section
319(a) as opposed to Section 316(a), for which you are
eligible, was to circumvent the arrest falling within the
five-year statutory period.” (Docket Entry No. 18, p. 5).
The Director acknowledges in this suit that this statement
was erroneous. “Defendant USCIS unequivocally confirms that
the statutory good moral character period is three years,
not five years, and that Plaintiff Ghalib had a statutory
right to file his application under § 1430 so long
as his marriage to a United States citizen spouse remains
viable.” (Docket Entry No. 17, p. 6, n. 4). Ghalib asserts,
and the Director does not dispute, that he has been and is
married to a United States citizen spouse. Page 4

In September 2004, Ghalib filed a request for hearing
under 8 U.S.C. § 1447(a). The Director denied that
request, stating that Ghalib had failed to establish that
he was “a person of good moral character during the
five-year statutory period,” although it is undisputed that
the three-year requirement of section 319(a) applies.
Ghalib filed this suit seeking a de novo determination of
this denial. In November 2005, Ghalib filed another
naturalization application. If that application is granted,
this suit would be moot. The new application remains

II. Analysis

To become a naturalized citizen, an applicant must meet
various statutory requirements, including sufficient
periods of residency and physical presence and a record of
“good moral character” during these periods. 8 U.S.C.
§ 1427(a).[fn2] If the application is denied, “the
applicant may request a hearing before an immigration
officer,” 8 U.S.C. § 1447(a), and then may seek
judicial review if the agency’s decision remains
unfavorable, see 8 U.S.C. § 1421(c).

Before October 1, 1991, applicants for citizenship applied
for naturalization directly in the United States district
court. See Tutun v. United States, 270 U.S. 568, 575-76
(1926). The INS would investigate the applicant and supply
the court with a report and nonbinding recommendations. See
8 C.F.R. § 335.11 (1990). In response to backlogs in
the district courts, the Immigration Act of 1990, Pub.L.
No. 101-649, Title IV, 104 Stat. 4978, 5038-48 Page 5
(Nov. 29 1990) (the “1990 Amendments”), removed
jurisdiction from the district courts and placed “sole
authority to naturalize persons as citizens of the United
States [with] the Attorney General.” INA § 310(a), 8
U.S.C. § 1421(a). “A central purpose of the statute
was to reduce the waiting time for naturalization
applicants.” United States v. Hovsepian, 359 F.3d 1144, 1163
(9th Cir. 2004) (en banc) (citing Naturalization Amendments
of 1989, 135 Cong. Rec. H4539-02, H4542). Federal statutes
and regulations provide procedures for applicants to
contest denials before naturalization officers within the
USCIS. See 8 U.S.C. §§ 1446-47; 8 C.F.R.
§§ 335.1, 335.2, 336.2; see also Aparicio v.
Blakeway, 302 F.3d 437, 440 (5th Cir. 2002) (describing the
application process).

The 1990 Amendments also provided for de novo judicial
review in the United States district courts of the USCIS’s
denials of naturalization applications. See INA §
310(c); 8 U.S.C. § 1421(c). “This grant of authority
is unusual in its scope — rarely does a district
court review an agency decision de novo and make its own
findings of fact.” Nagahi v. INS, 219 F.3d 1166, 1169 (10th
Cir. 2000). “[E]ven if the INS is allowed to make the
initial decision on a naturalization application, the
district court has the final word and does not defer to any
of the INS’s findings or conclusions.” Hovsepian, 359 F.3d
at 1162 (emphasis omitted); see also Boatswain v. Gonzales,
414 F.3d 413, 415 at n. 2 (2d Cir. 2005); Aparicio, 302
F.3d at 445 (“Judicial review of naturalization denials is
always available and is de novo, and is not limited to any
administrative record but rather may be on facts
established in and found by the district court.”). Page 6

In this suit, Ghalib asks this court to review the USCIS’s
denial of his February 2004 naturalization application. The
USCIS has before it Ghalib’s November 2005 application and
has indicated a willingness to consider that application in
light of the passage of time and evidence of continued good
moral character and satisfaction of the other statutory
requirements during the relevant period. The USCIS asserts
that in his February 2004 application, Ghalib did not
submit sufficient information explaining the behavior that
led to his 1998 conviction or indicating remorse,
rehabilitation, or reformation of character. The USCIS
agrees that Ghalib is entitled to produce that evidence to
this court, which is not limited to the administrative
record in considering Ghalib’s suit under section 1421(c),
but argues that it is “more appropriate to submit that
evidence in the first instance to the USCIS.” (Docket Entry
No. 17, p. 11). Ghalib does not oppose first seeking an
agency determination of his pending 2005 naturalization
application, but does oppose dismissal and remand and the
attendant delay in obtaining judicial review if the agency
action is unfavorable.

In many cases, allowing a stay of a suit seeking judicial
review of one citizenship application to allow the agency
to consider another application would not be appropriate.
The potential for abusive serial filings is obvious. But
the circumstances present in this case are unusual. The
USCIS has indicated its willingness to consider the pending
fourth application. Both Ghalib and the USCIS agree that it
makes sense for this court to delay reviewing the denial of
the third application while the USCIS considers the fourth.
To stay this case while the USCIS interviews Ghalib and
decides his pending citizenship application allows the
agency to decide a matter that the statute places primarily
in agency hands, see Page 7 Immigration & Naturalization
Service v. Ventura, 537 U.S. 12, 16 (2002), as the Director
argues. At the same time, a stay rather than dismissal and
remand allows this court to discharge its statutory role
under 8 U.S.C. § 1421(c) in a timely and efficient
manner if the agency again denies Ghalib’s application.
Dismissing this case or remanding it to the USCIS so that it
can consider Ghalib’s new application would prevent the
judicial review that is available for the previous denial
and result in additional delay before Ghalib could obtain
judicial review if the latest application is also denied.
The USCIS’s interest in having the first opportunity to
consider evidence of remorse, rehabilitation, or
reformation of character; Ghalib’s interest in having a
timely, legally and factually correct adjudication of his
application; and this court’s interest in avoiding an
unnecessary decision on a matter that can be decided
administratively, are all served by staying and
administratively closing this case while the USCIS
interviews Ghalib and decides his pending November 2005
naturalization application.

III. Conclusion and Order

The Director’s motion to dismiss and remand or in the
alternative to deny Ghalib’s application is denied.
Ghalib’s motion to stay pending the USCIS’s action on his
pending November 2005 naturalization application is
granted. The parties must file a written status report
every sixty days, beginning on February 23, 2007, and
within ten days after the USCIS issues its decision on the
pending November 2005 citizenship application. A party may
Page 8 move to reopen and reinstate this case to the active
docket no later than ten days after the USCIS adjudicates
the November 2005 citizenship application.

[fn1] Ghalib also moves to supplement the administrative
record. No opposition has been filed. The motion (Docket
Entry No. 19) is granted.

[fn2] While this act refers to the “Immigration and
Naturalization Service,” this agency was abolished in 2002
and its functions were transferred to a variety of agencies
within the newly formed Department of Homeland Security.