Farshi v. Napolitano et al

Filing 3

ORDER OF DISMISSAL and Order Re: Ex Parte Communications. The IFP motion is denied, and the Petition is denied. This action is dismissed without leave to amend. Signed by Judge Larry Alan Burns on 8/9/11.(All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ESMAEIL FARSHI,

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CASE NO. 11cv1474-LAB (NLS)
Petitioner,

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ORDER DENYING MOTION FOR
LEAVE TO PROCEED IN FORMA
PAUPERIS;

vs.

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ORDER DENYING PETITION FOR
HEARING ON NATURALIZATION
PETITION;

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ORDER RE: EX PARTE
COMMUNICATIONS; AND

JANET NAPOLITANO, Secretary of the
Department of Homeland Security, et al.,
Respondents.

ORDER OF DISMISSAL

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On July 5, 2011, Petitioner filed a petition for a hearing on a naturalization application

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pursuant to 8 U.S.C. § 1447(b), along with a motion for leave to proceed in forma pauperis

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(IFP).

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The IFP motion is a completed form, with Dr. Farshi’s answers to questions typed in.

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The motion says Dr. Farshi has been unemployed since November 15, 2008, and has no

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assets of any kind. It states his bank accounts are overdrawn: the checking account has a

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balance of negative $1900 and the savings account has a balance of negative $98 It states

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the amount owed on Dr. Farshi’s car is negative $4,500. Among the debts are a substantial

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amount of credit card debt, a large “Mortgage debt because of foreclosure to bank,” and a
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substantial “loan to people.” It says Dr. Farshi lives with his parents and they are paying his

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expenses.

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The answers provided in the form motion are inconsistent and somewhat confusing,

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possibly due to misplaced minus signs and ambiguity about whether money is owed or

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owing. Obviously, Dr. Farshi does not owe a negative amount of money on his car loan, so

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apparently he is using the minus sign either to indicate a debt or to mark the space between

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the end of the question and his answer. While some banks will allow customers to overdraw

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their checking accounts, it is unclear how Dr. Farshi came to overdraw his savings account,

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unless, as with the car loan, he has used the minus sign for some other purpose. In that

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case, he would have a positive balance in his savings account of $98 and probably also a

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positive balance in his checking account of $1900.

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The remark about the mortgage is likewise unclear. If the bank took Dr. Farshi’s
home in foreclosure, it is unclear why he still owes a large amount of money on it.

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Finally, the motion’s statement that Dr. Farshi’s debts include a substantial “loan to

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people” is unclear, and affects the merits of the motion. If as the motion states he has made

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a loan or loans in such a large amount to various people, that is an asset, not a debt. And

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because it is such a substantial asset, it would lead the Court to deny IFP status unless

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some further explanation is given explaining why the loan is uncollectible or otherwise

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worthless. On the other hand, it may be that Dr. Farshi means he has taken loans from

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various people, in which case this would be true debt.

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The result is that, as the IFP motion stands, the Court lacks sufficient information to

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conclude that the standard set forth in 28 U.S.C. § 1915(a) is met. Ordinarily, the Court

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would deny the motion without prejudice and give the Petitioner an opportunity to amend his

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IFP motion. But here, it is clear his petition lacks merit.

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The Petition is brought under 8 U.S.C. § 1447(b). Petitioner alleges that he is entitled

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to have his naturalization application adjudicated because the examination provided for

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under 8 U.S.C. § 1446 has been held, and the 120-day period has passed. The Petition,

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however, establishes conclusively that the examination was scheduled, but then was
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canceled and has not been conducted. (See Pet., ¶ 2.) The Petition also attaches copies

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of notices from USCIS, including an official cancellation notice. The allegations say the

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scheduled examination was canceled because Dr. Farshi’s background check had not been

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completed. Under § 1447(b), the 120-day period begins to run on the date the examination

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is conducted, not the date it is originally scheduled. See United States v. Hovsepian, 307

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F.3d 922, 932 (9th Cir. 2002) (discussing application of § 1447(b)). The normal practice of

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the USCIS is to wait until background checks are completed before conducting the

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examination. Roshandel v. Chertoff, 554 F. Supp. 2d 1194, 1199 and n.1 (W.D.Wash., 2008)

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(noting regulation requiring that applicants be interviewed only after the FBI has completed

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its full background check, and the USCIS’ current practice consistent with this regulation).

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It is therefore clear the Petition must be denied.

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It has come to the Court’s attention that Dr. Farshi attempted to contact the Court by

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using the Court’s e-file address to send an email.

The email message expresses

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impatience, upbraids the Court, and urges the Court to act quickly. Aside from Dr. Farshi’s

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incorrect beliefs about the speed with which cases are adjudicated, the email is improper for

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two reasons. First, it is a misuse of the email address. The document in which the email

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address is published, this District’s Electronic Case Filing Administrative Policies and

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Procedures Manual, § 2(h), explains that the e-file addresses are to be used only to submit

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proposed orders, and specifically says “These e-mail addresses are not to be utilized to

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communicate with the Court unless otherwise permitted or when communications are

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solicited by the Court.” (boldface in original).

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Second, Civil Local Rule 83.9 and paragraph 14 of the chambers standing order both

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forbid sending unauthorized ex parte communications to the Court. Implicit in the email’s

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urgency is the understanding that any further delay is unreasonable, i.e., that Petitioner has

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been waiting long enough and it is time his application was processed. Obviously, these are

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disputed matters. The proper way to seek relief in such a situation is to file a motion in the

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docket, where it will be known to all parties.

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The IFP motion is DENIED, and the Petition is DENIED. This action is DISMISSED
WITHOUT LEAVE TO AMEND.

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IT IS SO ORDERED.
DATED: August 9, 2011

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HONORABLE LARRY ALAN BURNS
United States District Judge

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