Moreno v. Nielsen et al

Filing 43

ORDER GRANTING DEFENDANTS' MOTION FOR REMAND TO THE USCIS FOR DECISION.ORDERED: 1. Defendants' Motion to Remand to the USCIS for Decision 26 is GRANTED with instructions to USCIS to issue a decision by July 31, 2018; 2. This action is STAYED until the earlier of either: a. Issuance of a final agency decision on Plaintiff's naturalization, at which time the parties shall file a status report informing the Court of the same; or b. July 31, 2018, in which case the parties shall file, by no later than that date, a status report explaining developments since the entry of this Order, by Judge William J. Martinez on 5/29/2018. (dhans, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-3146-WJM-MJW
RAUL ENRIQUE MORENO,
Plaintiff,
v.
KIRSTJEN NIELSEN, in her official capacity as Secretary of U.S. Department of
Homeland Security;
LEE FRANCIS CISSNA, in his official capacity as Director of the U.S. Citizenship and
Immigration Services;
KRISTI BARROWS, in her official capacity as Regional Director of U.S. Citizenship and
Immigration Services;
ANDREW LAMBRECHT, in his official capacity as Field Office Director of the USCIS
Field Office at Denver, Colorado,
Defendants.

ORDER GRANTING DEFENDANTS’ MOTION
FOR REMAND TO THE USCIS FOR DECISION

Raul Moreno (“Plaintiff”) asks this Court to review his claim for citizenship
pursuant to 8 U.S.C. § 1447(b), which grants authority to a federal district court to
consider an application for citizenship if the United States Citizenship and Immigration
Services (“USCIS”) does not issue a decision on an application within 120 days of an
applicant’s interview with USCIS. (ECF No. 1.) Defendants Kirstjen Nielsen, Lee
Francis Cissna, Kristi Barrows, and Andrew Lambrecht (jointly, “Defendants”) are sued
in their official capacities and each oversees some aspect of USCIS.
Currently before the Court is Defendants’ Motion to Remand this matter to
USCIS for a decision on Plaintiff’s application for naturalization. (ECF No. 26 (the

“Remand Motion”).) For the reasons set forth below, the Remand Motion is GRANTED.
I. BACKGROUND
Over two-and-a-half years ago, on August 21, 2015, Plaintiff—a legal permanent
resident of the United States since March 2007—submitted to USCIS an N-400
Application for Naturalization. (ECF No. 1 ¶¶ 12, 18, 28.) On March 24, 2017, Plaintif f
appeared before USCIS for his initial examination on his naturalization application.
(ECF No. 1-7.) At that time, USCIS informed Plaintiff that it could not yet make a
decision about his application, and that USCIS would send Plaintiff a written decision.
Id.
On April 12, 2017, USCIS requested additional documentation from Plaintiff
including (1) an original letter from the 5th District Federal Prosecutor’s Officer in
Venezuela confirming that an arrest warrant had been quashed; (2) a police clearance
letter from the Venezuelan authorities; and (3) documentation from Interpol confirming
whether a warrant for Plaintiff’s arrest was still active. (ECF No. 1-9.) On May 10,
2017, Plaintiff submitted a timely response to USCIS with the requested documentation
regarding the second and third requests. In response to the first request, Plaintiff
instead submitted (1) a legal brief by an extradition expert explaining that the pending
arrest warrant was politically motivated and the extradition request violated Venezuelan
law; (2) an affidavit from Venezuelan lawyer and law professor stating that the warrant
lacked credibility and was issued illegally; and (3) an affidavit from a former prosecutor
opining that the arrest warrant was not legally valid.
USCIS took no discernable action on Plaintiff’s application for nearly a year. At a
March 2018 status conference in the instant litigation, USCIS first raised the existence
2

of new information, apparently obtained in February 2018, that showed Plaintiff’s
apparent involvement in several criminal incidents in Venezuela. (ECF Nos. 26 at 2;
40-1.)1 Defendants explained in the Remand Motion that the delay in processing
Plaintiff’s application was due to the “limited diplomatic relationship that the United
States has with the government of Venezuela,” and the time required to investigate
Plaintiff’s potential criminal history in Venezuela. (ECF No. 26 at 2.)
The information, a “system report,” obtained by USCIS suggests that Plaintiff
was connected to a theft offense in June 1999, was arrested in connection with
“destruction of media” in June 1999, was investigated for fraud in 2004, and is subject
to an arrest warrant issued in 2008 for intentional homicide. (ECF Nos. 26 at 2; 40-1 at
4.) Plaintiff objects to reliance on this new evidence given that the “system report” is
not a police record and “does not credibly support [Defendants’] position.” (ECF No. 41
at 5–6.)
On April 12, 2018, USCIS issued Plaintiff a Notice of Intent to Deny letter
(“NOID”) denying Plaintiff’s naturalization application on the grounds he failed to
establish good moral character due to the outstanding Venezuelan arrest warrant, and
potentially because he obtained his permanent resident status unlawfully and gave
false testimony during his naturalization interview. (ECF No. 41-2.) Pursuant to an
agreement between the parties, USCIS withdrew the NOID on April 18, 2018. (ECF
No. 41-3.)

1

On a motion from Plaintiff, this Court ordered limited expedited discovery of these
documents. (ECF No. 39.) Defendants produced the documents on April 26, 2018. (ECF No.
40.)

3

II. LEGAL STANDARD
Under 8 U.S.C. § 1447(b), an applicant for naturalization may seek review of the
application in a United States district court when USCIS fails to make a determination
on the application within 120 days of examination of the applicant. “The central
purpose of Section 1447(b) was to reduce the waiting time for naturalization applicants
by addressing the problem of long backlogs moving through the naturalization process.”
Aboeleyoun v. U.S. Citizenship and Immigration Servs., 2008 WL 1883564 (D. Colo.
Apr. 25, 2008) (internal quotation marks omitted). The interview of the applicant is the
“examination” that triggers the 120-day period, regardless of whether any criminal
background check is complete. Sabir v. U.S. Citizenship and Immigration Servs., 2008
WL 762242 (D. Colo. Mar. 19, 2008) (collecting cases). After the 120-day waiting
period, the court has jurisdiction and “may either determine the matter or remand the
matter, with appropriate instructions, to [USCIS] to determine the matter.” 8 U.S.C.
§ 1447(b).
For courts reviewing naturalization applications under § 1447(b), “remand is
often the ordinary course,” though “some courts . . . have elected to exercise their
statutory authority . . . particularly in the face of protracted agency delay.”
Taalebinezhaad v. Chertoff, 581 F. Supp. 2d 243, 246 (D. Mass. 2008); see Borski v.
Lynch, 2017 WL 1153997, at *6 (D. Colo. Mar. 27, 2017) (a court should decide a
naturalization application only in “narrow circumstances” where USCIS “unnecessarily
delays” consideration of the application). Most courts remand matters back to USCIS
with instructions, recognizing the agency’s expertise in immigration matters. Manzoor v.

4

Chertoff, 472 F. Supp. 2d 801, 810 (E.D. Va. 2007); see also Marron v. Napolitano,
2011 WL 6032930 (D. Colo. Dec. 5, 2011) (Martínez, J.). “USCIS is better equipped to
handle these cases and has more expertise than district courts in adjudicating
applications.” Rashid v. Dep’t of Homeland Sec., 2017 WL 1398847, at *2 (E.D. Cal.
Apr. 19, 2017); Zhang v. U.S. Citizenship and Immigration Servs., 2017 WL 3190559,
at *2 (D.D.C. July 26, 2017).
III. ANALYSIS
This Court has jurisdiction under § 1447(b). Plaintiff’s initial examination
occurred on March 24, 2017, and more than 120 days have elapsed since that interview
with no decision on the application from USCIS.
Defendants argue that a remand will allow USCIS to apply its expertise on
immigration matters, develop the administrative record, and fulfill its statutory
obligations. See Rachid, 2017 WL 1398847, at *2. The Court agrees. In light of the
agency’s expertise in immigration, this Court will remand Plaintiff’s naturalization
application for a determination in the first instance. The Court recognizes that, given
the agency’s expertise, USCIS is in the best position to evaluate the new information
obtained from Venezuela and Plaintiff’s arguments about those documents.
USCIS’s delay in issuing a decision was not an unnecessary delay. Defendants
explain that the delay was attributable to difficulty in obtaining documents from
Plaintiff’s home country, and Defendants’ subsequent evaluation of those documents.
(ECF No. 26 at 2.) Given Defendants’ explanation, this matter does not appear to be a
circumstance where USCIS unnecessarily delayed consideration of the application.

5

See Borski, 2017 WL 1153997, at *6.
Plaintiff opposes remand in part out of concern that he has already faced
protracted agency delay, and that it may be several more years before he has a final
decision on his naturalization application. He argues that judicial review will expedite a
decision on Plaintiff’s application. (ECF No. 41 at 7.)
Defendants have indicated that USCIS does not need much additional time to
issue a decision, and indeed has already issued a (later-withdrawn) NOID on Plaintiff’s
application. (ECF No. 26 at 6.) Defendants backtrack from this position somewhat in
their reply brief in support of the Remand Motion, suggesting that they may need some
additional time to evaluate Plaintiff’s arguments about the veracity and reliability of the
new evidence. (ECF No. 42 at 3, 5–7.) However, Defendants have been in possession
of the additional information since at least February of this year and have, apparently,
evaluated its significance in relation to Plaintiff’s application, as evidenced by the
withdrawn NOID. USCIS’s readiness to issue an NOID assuages this Court’s concern
about Plaintiff’s application languishing before USCIS without a decision. Nonetheless,
the Court will remand with instructions to USCIS to issue a decision by July 31, 2018.
Plaintiff also argues against remand citing concerns for judicial economy and
agency bias. These concerns are misplaced. The Court finds it is in the interest of
judicial economy to allow the agency with subject matter expertise in immigration to
evaluate Plaintiff’s application in the first instance. See Zhang, 2017 WL 3190559, at
*2. If Plaintiff disagrees with the outcome, he may seek administrative and judicial
review on a more fully-developed record. The Court also rejects Plaintiff’s assertion of
bias or other impropriety concerning processing of Plaintiff’s naturalization application.
6

(ECF No. 41 at 13–15.) To the extent that USCIS exhibits actual bias in its decision,
erroneously interprets evidence, or fails to adhere to federal regulations in making a
determination, Plaintiff may seek appropriate administrative and judicial remedies in the
future.
Accordingly, Court will remand for agency determination in the first instance, but
require that USCIS issue a final agency decision no later than July 31, 2018.
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED as follows:
1.

Defendants’ Motion to Remand to the USCIS for Decision (ECF No. 26) is
GRANTED with instructions to USCIS to issue a decision by July 31, 2018;

2.

This action is STAYED until the earlier of either:
a.

Issuance of a final agency decision on Plaintiff’s naturalization, at which
time the parties shall file a status report informing the Court of the same;
or

b.

July 31, 2018, in which case the parties shall file, by no later than that
date, a status report explaining developments since the entry of this
Order.

Dated this 29th day of May, 2018.
BY THE COURT:

William J. Martínez
United States District Judge
7