Hassine v. Napolitano et al

Filing 23

Joint Stipulation and ORDER re: Remand Pursuant to 8 U.S.C. 1447(b), signed by Magistrate Judge Sheila K. Oberto on 4/14/2014. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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SAMIR ABDALLAH BEN HASSINE,

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Plaintiff,

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v.
JANET NAPOLITANO, et al.,
Defendants.

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) Case No.: 1:13-cv-1152 SKO
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) Joint Stipulation and Order re: Remand
) Pursuant to 8 U.S.C. § 1447(b)
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The parties stipulate that the matter be remanded to United States Citizenship and

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Immigration Services (USCIS) pursuant to 8 U.S.C. § 1447(b), with instructions to reinterview

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Plaintiff within 30 days from the date of remand, at a date and time mutually agreeable to
Plaintiff and his attorney of record. The parties stipulate that USCIS’s prior determination that

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Plaintiff passed the English and civics test portions of the naturalization examination remains

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valid and, accordingly, USCIS will not readminister those tests at the reinterview. Further,

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USCIS stipulates that reinterview is sought for the sole purpose of updating the information in

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Plaintiff’s previously filed naturalization application, including following-up on or clarifying

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any such responses, in order to make a prompt determination on the merits of that application.

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United States Citizenship and Immigration Services is further instructed to complete

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adjudication of the naturalization application and notify Plaintiff’s counsel of record of its

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determination within 45 days from the interview date.

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In the event United States Citizenship and Immigration Services does not complete

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adjudication within this timeframe, the parties agree that this Court will retain jurisdiction over
this matter, and the parties will immediately file a joint status report.

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In the event the adjudication results in a denial of the application, the parties further

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stipulate that, after exhaustion of administrative remedies under 8 C.F.R. § 336, this Court will

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retain jurisdiction to review the denial under 8 U.S.C. § 1421(c).

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The parties will file a joint status report once the application has been adjudicated.
Finally, the parties stipulate that the filing deadline for any request for attorneys’ fees

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and costs under the Equal Access to Justice Act (EAJA) is controlled by 28 U.S.C. §

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2412(d)(1)(B), not Local Rule 54-10. See Al-Harbi v. I.N.S., 284 F.3d 1080, 1082 (9th Cir.

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2002) (“Thus, to the extent that Ninth Circuit Rule 39-1.6 is inconsistent with the EAJA, the

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Circuit Rule is inapplicable, and the EAJA controls.”). The parties further agree that the

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Court’s remand order constitutes the final judgment for purposes of calculating the deadline

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under the EAJA. See Li v. Keisler, 505 F.3d 913, 917-18 (9th Cir. 2007) (acknowledging that

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remand order to the agency may constitute a final judgment for purposes of calculating EAJA

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deadline).

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Dated: April 11, 2014

Respectfully submitted,

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BENJAMIN B. WAGNER
United States Attorney

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/s/ Audrey B. Hemesath
AUDREY B. HEMESATH
Assistant U.S. Attorney

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DATED: April 11, 2014

Respectfully submitted,
/s/ Trina Realmuto
TRINA REALMUTO
/s/ Stacy Tolchin
STACY TOLCHIN
Attorneys for the Plaintiff

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ORDER

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Pursuant to the terms of the parties' stipulation for remand, IT IS HEREBY ORDERED

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that:
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stipulation;

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retain jurisdiction to review the denial under 8 U.S.C. § 1421(c);

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3.

The deadline for any application for an award of Equal Access to Justice Act
("EAJA") attorney's fees requested is governed by 28 U.S.C. § 2412(d); and

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In the event adjudication results in denial of Plaintiff's application, after
exhaustion of administrative remedies under 8 C.F.R. § 336, this Court shall

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This matter is remanded to the USCIS according to the terms of the parties'

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This order shall constitute a final judgment for purposes of calculating the
deadline to file a request for attorney's fees under the EAJA.

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IT IS SO ORDERED.

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Dated:

April 14, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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