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Affaneh v. Hansen

January 29, 2007

SAMI AFFANEH, PLAINTIFF,
v.
MARK HANSEN, DISTRICT DIRECTOR, U.S. CITIZENSHIP & IMMIGRATION SERVICES, ET. AL, DEFENDANTS.



The opinion of the court was delivered by: Judge Thomas M. Rose

ENTRY AND ORDER GRANTING IN PART AND OVERRULING IN PART DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION OR TO REMAND (Doc. #4) AND REMANDING THIS MATTER TO THE U.S. CITIZENSHIP & IMMIGRATION SERVICES

This matter is before the Court pursuant to a motion to dismiss or remand*fn1 brought by Defendants Mark Hansen, Emilio T. Gonzales, Michael Chertoff, Robert Mueller and Alberto Gonzalez (hereinafter the "Defendants"). (Doc. #4.) Plaintiff Sami Affaneh ("Affaneh") has responded. (Doc. #6.) The Defendants have not filed a response and the time for doing so has run. The Defendants' motion is, therefore, ripe for decision.

Affaneh is a lawful permanent resident of the United States who has filed an application for naturalization with the United States Citizenship and Immigration Services ("USCIS"). Affaneh filed for naturalization on April 12, 2004. He was interviewed by the USCIS on April 27, 2005. At that time he was notified that he had passed the English, history and government tests and that his application had been recommended for approval.

In May of 2006, Affaneh moved to Ohio and properly notified the USCIS of his new address. He has requested a status of his case and a final adjudication on at least two occasions, one in September of 2005 and the other in May of 2006. The USCIS office in Cincinnati, Ohio, which now has jurisdiction over his application, responded that his case was still pending and awaiting a background check clearance.

The USCIS has not yet adjudicated Affaneh's application.*fn2

Affaneh now asks this Court to require the Defendants to adjudicate his application for naturalization and award him reasonable attorney's fees.

BACKGROUND

The naturalization process begins when the applicant files a Form N-400, "Application for Naturalization." 8 U.S.C. § 1445(a); 8 C.F.R. § 334.2. The USCIS must then conduct a background investigation of the applicant. 8 U.S.C. § 1446(a); C.F.R. § 335.1. At a minimum, the background check includes "a review of all pertinent records, police department checks, and a neighborhood investigation in the vicinities where the applicant has resided and has been employed, or engaged in business, for at least the five years immediately preceding the filing of the application." C.F.R. § 335.1.

The USCIS currently relies upon four background check mechanisms: (1) a record check made against the Department of Homeland Security's ("DHS's") immigration systems; (2) an FBI fingerprint check for relevant criminal history; (3) a check against the DHS-managed Interagency Border Inspection System ("IBIS"); and (4) an FBI name check. IBIS includes information related to persons who are wanted or who are under investigation for serious crimes or suspected of terrorism-related activity. The FBI name check is now known as the National Name Check Program (the "NNCP"). The NNCP was added to the process in response to heightened security concerns following terrorist attacks in the United States.

The regulations provide that an examination of the applicant is conducted after the conclusion of the background check. C.F.R. § 335.2(b). On occasion, as is the case here, the USCIS conducts the examination before the background check is complete.*fn3 During the examination, the applicant is tested to determine if she or he has the required level of English proficiency and knowledge of the history and government of the United States. 8 C.F.R. §§ 312.1, 312.2.

Ultimately, the USCIS examiner is authorized to make a determination to grant or deny the application. 8 U.S.C. § 1446(d); 8 C.F.R. § 335.3. This determination is to occur within the 120 days following the initial examination of the applicant. 8 C.F.R. § 335.3. Finally, if the USCIS fails to make the determination within the 120 days, the applicant may request a hearing before a district court. 8 U.S.C. 1447(b). The district court is empowered to determine the matter or remand the matter to the USCIS with appropriate instructions. Id.

In this case, the USCIS initially examined Affaneh on April 27, 2005. However, the USCIS has not yet adjudicated his application. More than 120 days has passed since then and Affaneh now seeks intervention by this Court. The Defendants respond that the 120 day period has not elapsed and they cannot adjudicate his application because they have not yet received the results of his name check from the FBI.

JURISDICTION

This Court has only the jurisdictional power that is authorized by Article III of the U.S. Constitution and the statutes enacted by Congress that provide an express grant of jurisdiction. Bender v. Williamsport Area School District, 475 U.S. 534, 541 (1986). Congress has expressly limited the jurisdiction of district courts in the naturalization process. 8 U.S.C. ยง 1421(a) ("The sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General.") Further, "[j]udicial deference to the Executive Branch is especially appropriate in the immigration context where officials 'exercise especially sensitive ...


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