Rashid v. Johnson, et al

Filing 19

ORDER signed by District Judge John A. Mendez on 4/19/17 ORDERING the Court GRANTS Defendants' Motion to Remand. The matter is remanded to USCIS with instructions to reopen and complete adjudication within 60 days from the date of this order. The parties are further ordered to file a joint status report within five days of completion of the adjudication by USCIS. All filing deadlines are suspended and this case is stayed pending an order from the Court to reopen or dismiss this action. CASE CLOSED. (Becknal, R)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 BABAR RASHID, 13 2:14-cv-2109-JAM-KJN Plaintiff, 14 15 No. v. ORDER GRANTING DEFENDANTS’ MOTION FOR REMAND 16 DEPARTMENT OF HOMELAND SECURITY, John F. Kelly, Secretary; et al., 17 Defendants. 18 This matter is before the Court on Defendants’ Motion for 19 20 Remand, requesting remand of this matter to the United States 21 Citizenship and Immigration Services for adjudication. 22 reasons set forth below, the Court grants Defendants’ motion. 1 For the 23 I. 24 PROCEDURAL BACKGROUND Babar Rashid (“Plaintiff”) filed his complaint in September 25 26 27 28 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for April 18, 2017. 1 1 2014 seeking a hearing on his naturalization application after 2 United States Citizenship and Immigration Services (“USCIS”) 3 failed to adjudicate his application within one hundred and 4 twenty days of his interview, which occurred on September 20, 5 2012. 6 M. Leonis (“Leonis Decl.”), ECF No. 15-1, at ¶ 4. 7 later, the parties filed a Joint Stipulation informing the Court 8 that Plaintiff had been referred into removal proceedings and 9 requesting that the matter be held in abeyance pending resolution Compl. at ¶¶ 1, 16, & 24, Exh. D; Declaration of Francine Two months 10 of the removal proceedings. 11 abeyance and ordered future status reports. 12 ECF Nos. 9, 10, 11, 12, 13, & 14. 13 removal proceedings had terminated and the Court gave the parties 14 until February 6, 2017, to file a status report. 15 14. 16 which Plaintiff opposes. ECF No. 6. The Court granted the ECF No. 7; see also As of December 30, 2016, ECF Nos. 13 & On the status date, Defendants filed the present motion, ECF Nos. 15 & 16. 17 18 19 II. OPINION When USCIS fails to make a determination on an application 20 for naturalization “before the end of the 120-day period after 21 the date on which the examination is conducted under [8 U.S.C. 22 § 1446], the applicant may apply to the United States district 23 court for the district in which the applicant resides for a 24 hearing on the matter.” 25 (USCIS is responsible for adjudicating naturalization petitions). 26 The district court then “has [exclusive] jurisdiction over the 27 matter and may either determine the matter or remand the matter, 28 with appropriate instructions, to the Service to determine the 8 U.S.C. § 1447(b); 6 U.S.C. § 271(b)(2) 2 1 matter.” 2 2004). 3 Id.; U.S. v. Hovsepian, 359 F.3d 1144, 1164 (9th Cir. Defendants ask the Court to remand the case to USCIS with 4 instructions to adjudicate within sixty days. 5 declaration that states USCIS is ready to move forward with 6 adjudication and resolve the application within that sixty day 7 time frame. 8 appropriate because USCIS has the necessary expertise and is 9 uniquely suited to determine naturalization eligibility. Leonis Decl. ¶¶ 12, 14. 2 They submit a They argue that remand is Mot. at 10 2. 11 denied, Plaintiff can return to the district court to seek de 12 novo review of that decision. 13 Defendants point out that even if Plaintiff’s application is Mot. at 3; 8 U.S.C. § 1421(c). Plaintiff asks the Court to deny the motion and issue a 14 scheduling order for adjudication of Plaintiff’s application. 15 Plaintiff states that, due to the delay and Defendants’ actions, 16 he believes his application has been subject to review under a 17 secret program called the Controlled Application Review and 18 Resolution Program or “CARRP.” 19 Opposition primarily addresses the legality of CARRP. 20 5. 21 Opp. at 2–3. Plaintiff’s Id. at 3– Under similar circumstances, the majority of district courts 22 have remanded the case to USCIS for adjudication. Manuilit v. 23 Majorkas, No. 3:12-cv-04501-JCS, 2012 WL 5471142, at *3 (N.D. 24 Cal. Nov. 9, 2012). These courts have reasoned that USCIS is 25 2 26 27 28 This declaration does not include the language “I declare under penalty of perjury that the foregoing is true and correct . . .” required by 28 U.S.C. § 1746. Plaintiff has not objected to the declaration, however, and the Court will not strike it absent such objection. 3 1 better equipped to handle these cases and has more expertise than 2 district courts in adjudicating applications. 3 Chertoff, No. C 06-7697 SI, 2007 WL 1501736, at *1 (N.D. Cal. May 4 22, 2007). 5 See, e.g., Deng v. Although Plaintiff’s application had been pending for nearly 6 two years when Plaintiff filed his complaint, remand is the 7 appropriate course of action in this case. 8 this area and assurances that the matter will be adjudicated 9 quickly upon remand warrant such action. USCIS’s expertise in In the few cases where 10 a district court opted to adjudicate the matter itself, the 11 application had been pending for a lengthy period and the 12 defendants failed to assure the court that a swift decision could 13 be made on remand. 14 2007 WL 1031333, at *3 (N.D. Cal. Apr. 3, 2007) (“Plaintiff’s 15 application has been pending for thirty-five months . . . and 16 Defendants have provided no indication when action might be taken 17 on her application.”); Lifshaz v. Gonzales, No. C 06-1470 MJP, 18 2007 WL 1169169 (W.D. Wash. Apr. 19, 2007) (setting an 19 evidentiary hearing for a naturalization application where the 20 defendant contended it could not make a decision on the 21 plaintiff’s naturalization because the FBI had not completed a 22 namecheck on the plaintiff; permitting the defendant to file a 23 motion to remand if it determined it was ready to make a decision 24 on the application before the hearing). 25 can expect a resolution within sixty days of this order. 26 Furthermore, Plaintiff provides no legal basis for this Court to 27 adjudicate the application due to Plaintiff’s suspicion that his 28 application has been subject to additional scrutiny under CARRP. See Astafieva v. Gonzales, No. C 06-04820 JW, 4 Here, however, Plaintiff 1 Such suspicions do not warrant retention given the present 2 circumstances. 3 4 5 III. ORDER For the reasons set forth above, the Court GRANTS 6 Defendants’ Motion to Remand. The matter is remanded to USCIS 7 with instructions to reopen and complete adjudication within 60 8 days from the date of this order. 9 ordered to file a joint status report within five days of The parties are further 10 completion of the adjudication by USCIS. 11 are suspended and this case is stayed pending an order from the 12 Court to reopen or dismiss this action. 13 14 IT IS SO ORDERED. Dated: April 19, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 All filing deadlines

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