Giammarco v. Beers et al

Filing 56

ORDER DENYING Defendants' 49 Motion to Dismiss, or in the alternative, for Summary Judgment and GRANTING Plaintiff's 50 Cross-Motion for Summary Judgment. See attached Memorandum of Decision. The Clerk is directed to enter judgment in favor of Plaintiff and to remand this matter, in accordance with the Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 3/17/2016. (Nadler, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ARNALDO GIAMMARCO,
Plaintiff,
v.

RAND BEERS,
ALEJANDRO MAYORKAS, AND
JAMES COMEY,
Defendants.

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CIVIL ACTION NO.
3:13-cv-01670 (VLB)
March 17, 2016

MEMORANDUM OF DECISION GRANTING PLAINTIFF’S [Dkt. #23] CROSSMOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS’ MOTION TO
DISMISS, OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT [Dkt.
#18]
Plaintiff Arnaldo Giammarco (“Giammarco”) and Defendants Rand Beers,
on behalf of the Department of Homeland Security (“DHS”), and Alexander
Majorkas, on behalf of the U.S. Citizenship and Immigration Services (“USCIS”),
have moved for summary judgment.1 For the reasons that follow, Defendants’
motion is DENIED and Plaintiff’s cross-motion is GRANTED.
I.

Factual Background
Plaintiff entered the United States in 1960, as a lawful permanent resident.

[Dkt. #50-2, Pl.’s Local Rule 56(a)(1) Statement at ¶ 1; Dkt. #52-1, Defs.’ Local Rule
56(a)(2) Statement at ¶ 1]. In 1976, he enlisted in the U.S. Army, was stationed
abroad, and in 1979, Plaintiff was honorably discharged. [Dkt. #50-3, A.
Giammarco Decl. at ¶¶ 5-6; Dkt. #50-6, Ex. B. to Pl.’s Cross-Mot. at 1]. On
February 3, 1982, Plaintiff submitted an application for naturalization to the

1

The Complaint also named as a defendant, FBI Director James Comey. [Dkt. #1].
However, Plaintiff has requested and the Court grants the dismissal of all claims
against this Defendant. [Dkt. #50-1, Pl.’s Memo. at 10 n. 4].
1

Immigration and Naturalization Service (“INS”), which, at that time, was the
agency responsible for processing, advising applicants, and filing petitions for
naturalization. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶ 4; Dkt. #51-4,
Pl.’s Local Rule 56(a)(2) Statement at ¶ 4].2 Plaintiff’s application disclosed a
January 1981 arrest for sexual assault in the first degree, and stated that the
charge was “still pending.” [Dkt. #49-3, Ex. 1 to Defs.’ Mot. at 2].
On April 8, 1982, Plaintiff met with an INS agent, who reviewed his
application. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶ 6; Dkt. #51-1,
Pl.’s Local Rule 56(a)(2) Statement at ¶ 6]. During the meeting, Plaintiff and the
agent discussed the sexual assault charge, and the INS agent told Plaintiff that he
should inform the agency when the disposition of this criminal charge became
available. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶¶ 7, 9; Dkt. #51-1,
Pl.’s Local Rule 56(a)(2) Statement at ¶¶ 7, 9]. Later that day, the INS agent
drafted a memo to Plaintiff’s file, which stated that the charge against Plaintiff
was “still pending because [Plaintiff] requested a jury trial” and as a result, the

2

Until the Immigration Act of 1990 (“IMMACT”), federal and certain state courts
had the authority to grant or deny naturalization petitions. [Dkt. #49-4, Ex. 201,
Dorfman Decl. at ¶ 3]. Accordingly, individuals seeking naturalization were
required to file two documents, an application to file a petition for naturalization,
which was reviewed by the INS, and a separate petition for naturalization, which
was adjudicated by a court. See Azize v. Bureau of Citizenship & Immigration
Servs., 594 F.3d 86, 90 (2d Cir. 2010); U.S. v. Sokolov, 814 F.2d 864, 869 (2d Cir.
1987). The application was a necessary precursor to filing a petition. 8 U.S.C. §
1445(b)(2) (1982). In addition to receiving and processing applications to file
petitions for naturalization, the INS screened applicants to ascertain if they were
likely to be eligible for naturalization. [Dkt. #49-4, Ex. 201, Dorfman Decl. at ¶¶ 23]. In this role, the INS would conduct an interview of the applicant, review his
or her application, and, upon determining that the applicant was qualified,
facilitate the applicant’s filing an actual petition for naturalization. [Id. at ¶ 3].
Applicants whom the INS deemed unlikely to qualify for naturalization could
contest this determination and move forward with a petition, but such cases
were “very rare.” [Id. at ¶ 4].
2

officer would “defer filing [Plaintiff’s naturalization petition] until disposition of
case.” [Dkt. #49-3, Ex. 2 to Defs.’ Mot. at 1]. Also after this meeting, Plaintiff’s
naturalization application was marked “[n]onfiled.” [Dkt. #49-3, Ex. 1 to Defs.’
Mot. at 4]. In the space provided for “Date, Reasons,” the reviewing officer wrote
“[s]ee memo to file of 4-8-82.” [Id.]. According to a sworn declaration submitted
by the Defendants, at and around the time Plaintiff submitted his naturalization
application, when an INS examiner designated an applicant’s file as “nonfiled”
they were not obligated or expected to issue a written notification to the applicant
disclosing this fact. [Dkt. #49-4, Ex. 201, Dorfman Decl. at ¶ 5]. Moreover,
applications that received a “nonfiled” designation could be revived, if the
applicant provided the INS with the information it requested, or otherwise
contacted the INS. [Id. at ¶ 8].
On September 27, 1982, Plaintiff sent a letter to the INS informing them that
the sexual assault charge had been “nolle[]d” and requesting “an appointment
for a[c]quiring [his] U.S. [c]itizenship.” [Dkt. #49-3, Ex. 5 to Defs.’ Mot. at 1].3 The
letter further explained that Plaintiff “was told to make another appointment when
the case had reached a decision.” [Id.]. According to a document from the
Hartford Superior Court, the charge was nolled on or around August 23, 1982.

3

“The effect of a nolle is to terminate the particular prosecution of the defendant
without an acquittal and without placing him in jeopardy.” State v. Richardson,
291 Conn. 426, 430, 969 A.2d 166 (Conn. 2009). However, a nolle does not
protect the defendant from further prosecution in connection with the same
underlying conduct. See Hing Wan Wong v. Liquor Control Commission, 160
Conn. 1, 5, 273 A.2d 709, 711 (Conn. 1970) (“The nolle . . . was not a bar to a
subsequent trial of the plaintiff for the same offense.”). Nor does a nolle
constitute a dismissal—at least not until thirteen months has passed, such that
the charge is automatically erased under Conn. Gen. Stat. § 15-142a(c). See
Cislo v. City of Shelton, 240 Conn. 590, 607, 692 A.2d 1255, 1264-65 (Conn.
1997).
3

See [Dkt. #50-6, Ex. K at 2]. However, Plaintiff did not present this or any other
documentary evidence regarding the nolle to the INS or the Defendants in this
case until January 2014, long after a final order of removal was issued against
him. [Id. at 1].
The INS received Plaintiff’s letter on October 4, 1982. [Dkt. #49-3, Ex. 5 to
Defs.’ Mot. at 1]. A handwritten note in Plaintiff’s INS file indicates that on the
same day the INS received his letter, “10/4/82,” it decided to “[r]eopen” his file.
[Dkt. #50-6, Ex. L to Pl.’s Cross-Mot. at 1].4 On October 12, 1982, the INS sent the
Hartford Police Department a records request, seeking the disposition of the
January 1981 charge. [Dkt. #50-6, Ex. G to Pl.’s Cross-Mot. at 1]. On October 26,
1982, the INS received a response, in the form of a table depicting the date and
nature of the offense and the case number, with no disposition provided. [Id. at
2]. The following day, October 27, 1982, the INS prepared a letter to Plaintiff
which instructed him to provide the INS with a certified copy of the disposition of
4

Defendants contend that it “is not discernable from the record” whether or not
the INS reopened Plaintiff’s application. [Dkt. #52-1, Defs.’ Local Rule 56(a)(2)
Statement at ¶ 11]. However, they offer no alternative explanation for the
seemingly straightforward statement appearing in the file: “Reopen 10/4/82.”
[Dkt. #50-6, Ex. L to Pl.’s Cross-Mot. at 1]. Nor do they directly dispute that the
INS reopened Plaintiff’s file. They merely question, without support, whether
this statement is sufficient to indicate that the file was reopened. The Court
finds, in the absence of any evidence to the contrary, that it is. Indeed, the
remainder of the Defendants’ response supports this conclusion. Defendants
state that the handwritten note was “the next to last page in [Plaintiff’s] file” and
“[t]he last page” was a “file copy of the October 27, 1982” letter the INS
allegedly sent to Plaintiff requesting additional information regarding the
disposition of the sexual assault charge. [Dkt. #52-1, Defs.’ Local Rule 56(a)(2)
Statement at ¶ 11]. The presence of this letter (whether in draft or final form) in
Plaintiff’s file would appear to support the conclusion that the file was
reopened, because if it were not, there would be no reason for the INS to have
made a second, written request for this information, especially since it was
apparently under no obligation and typically did not inform applicants when
their applications were designated “nonfiled.” See [Dkt. #49-4, Ex. 201, Dorfman
Decl. at ¶ 5].
4

the charge. [Dkt. #49-3, Ex. 6 to Defs.’ Mot. at 1]. Plaintiff contends that neither
he nor any of his family members ever received this letter. [Dkt. #50-2, Pl.’s Local
Rule 56(a)(1) Statement at ¶ 16; Dkt. #52-1, Defs.’ Local Rule 56(a)(2) Statement at
¶ 16]. No further communication ever occurred between Plaintiff and the INS in
connection with this application. [Id. at ¶¶ 16-17].
Nearly six years later, on September 21, 1988, the FBI prepared a report
concerning the January 1981 charge against Plaintiff. [Dkt. #50-6, Ex. H to Pl.’s
Cross-Mot. at 1]. The report was prepared from information provided by the
Hartford Police Department, and it referenced the sexual assault charge and
Plaintiff’s January 1981 arrest. [Id.]. However, it did not include a disposition.
[Id.]. Although this report was placed in Plaintiff’s INS file, there is no indication
which entity requested the report and when it did so. [Id.; see also Dkt. #52-1,
Defs.’ Local Rule 56(a)(2) Statement at ¶ 14]. Following the INS’s receipt of this
report, there is no indication that any action was taken, that the INS contacted
Plaintiff, or that the INS closed Plaintiff’s file.5
Defendants contend that where a naturalization application was submitted
to the INS but contained deficiencies which prevented it from filing a petition with
the court, the policy of the INS prior to the passage of IMMACT was to retain the
application for a limited period of time, and, if the applicant did not provide the
missing information the INS requested and it otherwise appeared that the
application had been abandoned, the INS would archive it in the ordinary course
5

Defendants have submitted a sworn declaration stating that “there is no
indication in [Plaintiff’s] record that the pendency of any inquiry made to the FBI
played any part in the status or handling of the Plaintiff’s application.” [Dkt.
#49-4, Ex. 200, Keck Decl. at ¶ 5]. That the FBI inquiry may not have affected the
status or handling of Plaintiff’s application does not mean that it is not evidence
of that status.
5

of business. [Dkt. #49-4, Ex. 201, Dorfman Decl. at ¶¶ 10-11]. Nowhere do
Defendants contend that the INS rendered an ultimate determination on or
otherwise terminated applications that it deemed abandoned, nor do they
maintain that the INS closed files containing abandoned applications within any
period of time. Accordingly, there is no indication in the record if and when the
INS deemed Plaintiff’s application abandoned, and that, at any time after October
4, 1982, the agency closed or otherwise reached a decision on his application.
[Id. at 1-2; Dkt. #49-4, Ex. 200, Keck Decl. at ¶ 5].
On January 21, 1997, and while his application was in this dormant state,
Plaintiff was convicted of the offense of larceny in the fifth degree. [Dkt. #49-2,
Defs.’ Local Rule 56(a)(1) Statement at ¶ 16; Dkt. #51-1, Pl.’s Local Rule 56(a)(2)
Statement at ¶ 16]. Shortly thereafter, on March 3, 1997, Plaintiff was convicted of
larceny in the sixth degree. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶
17; Dkt. #51-1, Pl.’s Local Rule 56(a)(2) Statement at ¶ 17]. On November 5, 2004,
Plaintiff was arrested again, for possession of narcotics. [Dkt. #49-2, Defs.’ Local
Rule 56(a)(1) Statement at ¶ 18; Dkt. #51-1, Pl.’s Local Rule 56(a)(2) Statement at ¶
18]. These three offenses served as the basis for the INS’s decision to seek
Plaintiff’s removal. [Dkt. #49-3, Ex. 8 to Defs.’ Mot. at 4].
On January 23, 2007, Plaintiff was convicted of larceny in the fourth degree
and was sentenced to one year of imprisonment, execution suspended after 30
days. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶ 19; Dkt. #51-1, Pl.’s
Local Rule 56(a)(2) Statement at ¶ 19]. The INS determined that this last offense,
larceny in the fourth degree, constituted an aggravated felony. [Dkt. #49-3, Ex. 9
to Defs.’ Mot. at 3]. This determination is significant because one who has

6

committed an “aggravated felony,” as defined by the immigration statutes, is
generally precluded from cancelling a removal proceeding. [Id.]. Commission of
an aggravated felony also generally prevents an applicant from satisfying the
statutory good moral character requirement for naturalization. See 8 U.S.C. §
1101(f)(8) (“No person shall be regarded as . . . a person of good moral character
who . . . at any time has been convicted of an aggravated felony . . . .”).6
On May 14, 2011, Plaintiff was arrested by officers of Immigration and
Customs Enforcement (“ICE”) and placed in removal proceedings. [Dkt. #50-2,
Pl.’s Local Rule 56(a)(1) Statement at ¶ 27; Dkt. #52-1, Defs.’ Local Rule 56(a)(2)
Statement at ¶ 27]. Sometime in 2011, Plaintiff’s counsel made a FOIA request of
Defendant DHS. [Dkt. #50-3, A. Giammarco Decl. at ¶ 14]. It was through the
documents obtained from this request that Plaintiff claims he first learned of the
October 27, 1982 letter prepared by the INS and that his application had been
designated as “non-filed.” [Id.].
On May 15, 2012, an immigration judge (“IJ”) entered an order of removal
and denied Plaintiff’s request for a cancellation of removal. [Dkt. #50-2, Pl.’s
Local Rule 56(a)(1) Statement at ¶ 29; Dkt. #52-1, Defs.’ Local Rule 56(a)(2)
Statement at ¶ 29]. In reaching his decision, the IJ found that Plaintiff had
“conceded the allegations and the two charges of removability,” and that there
was “clear, convincing and unequivocal evidence that the allegations . . . [we]re
true.” [Dkt. #49-3, Ex. 9 to Defs.’ Mot. at 2-3]. He denied Plaintiff’s application for
cancellation of removal upon concluding that Plaintiff was “ineligible for that

6

Among the offenses which constitute aggravated felonies for immigration and
naturalization purposes are theft offenses for which the term of imprisonment is
at least one year. See 8 U.S.C. § 1101(a)(43)(G).
7

form of relief because he has been convicted of an aggravated felony” based on
his January 5, 2007 conviction for fourth-degree larceny. [Id. at 3]. Finally, the IJ
considered Plaintiff’s assertion that he was “pursuing an old application” for
naturalization, an independent basis for avoiding removal. [Id.]. However, the IJ
concluded that this application “was never acted upon,” after the USCIS took the
position that the application “was never properly filed because [Plaintiff] never
went through the proper process.” [Id. at 4]. The IJ opinion cites to an exhibit,
but does not indicate that the USCIS formally considered and reached a final
decision regarding the naturalization application, nor does it identify when the
USCIS took this position, in what form, and whether Plaintiff was ever given
notice or an opportunity to appeal it. [Id.].
On October 1, 2012, the Board of Immigration Appeals (“BIA”) issued its
decision affirming the removal order. [Dkt. #50-6, Ex. I to Pl.’s Cross-Mot. at 1]. In
dismissing Plaintiff’s appeal, the BIA discussed Plaintiff’s earlier naturalization
application and the USCIS’s stated “position . . . that the application was never
completed at the time it was filed,” and that as a result, there was “no application
currently pending before the USCIS.” [Id.]. The BIA further noted that “the DHS
has exclusive jurisdiction over naturalization determinations,” and thus, the BIA
was bound to accept the DHS’s determination. [Id.]. However, like the IJ opinion,
the BIA opinion does not set forth facts demonstrating that the “position” taken
by the USCIS constituted a final agency decision which was communicated to
Plaintiff and to which Plaintiff received an opportunity to appeal.
On November 26, 2012, Plaintiff was deported to Italy, where he presently
resides. [Dkt. #50-6, Ex. J to Pl.’s Cross-Mot. at 2].

8

II.

Legal Standards
A. Summary Judgment
Defendants moved to dismiss the Complaint pursuant to Fed. R. Civ. P.

12(b)(1) and 12(b)(6), or in the alternative for summary judgment pursuant to Fed.
R. Civ. P. 56. [Dkt. #49]. Plaintiff cross-moves for summary judgment. [Dkt. #50].
In deciding whether to treat a motion as one for summary judgment, “[t]he
essential inquiry is whether the . . . [parties] . . . should reasonably have
recognized the possibility that the motion might be converted into one for
summary judgment or [were] taken by surprise and deprived of a reasonable
opportunity to meet facts outside the pleadings.” In re G&A Books, Inc., 770 F.2d
288, 295 (2d Cir. 1985). Here, in addition to cross-moving for summary judgment,
Plaintiff relies on documents outside of the pleadings and submits a Local Rule
56(a)(2) statement in opposition to the Defendants’ motion. See [Dkt. ##51-1-5].
Accordingly, the Court evaluates each of the parties’ motions under the Rule 56
standard. See Eidshahen v. Pizza Hut of Am., Inc., 973 F. Supp. 113, 114 (D.
Conn. 1997) (treating defendant’s motion to dismiss pursuant to Rule 12, or, in
alternative, motion for summary judgment as motion for summary judgment
where “[p]laintiff submitted materials outside the pleadings, including an
affidavit” and “briefed for a motion for summary judgment”); Mendoza v. City of
Rome, 70 F. Supp. 2d 137, 141 (N.D.N.Y. 1999) (treating defendant’s motion as one
for summary judgment where both parties “referred to documents outside of the
pleadings”).
Summary judgment should be granted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment

9

as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98,
106 (2d Cir. 2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91
L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the
record that could reasonably support a jury's verdict for the nonmoving party,
summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd
Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Cir. 2006) (internal quotation
marks and citation omitted). In addition, determinations of the weight to accord
evidence or assessments of the credibility of witnesses are improper on a motion
for summary judgment, as such are within the sole province of the jury. Hayes v.
New York City Dep’t of Corr., 84 F. 3d 614, 619 (2d Cir. 1996).
“A party opposing summary judgment cannot defeat the motion by relying
on the allegations in his pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible. At the summary
judgment stage of the proceeding, Plaintiffs are required to present admissible
evidence in support of their allegations; allegations alone, without evidence to
back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., No. 3:03-cv-481
(MRK), 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (citing and quoting
Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996)); Martinez v. State of
Connecticut, No. 3:09cv1341 (VLB), 2011 WL 4396704 at *6 (D. Conn. Sept. 21,

10

2011). Where there is no evidence upon which a jury could properly proceed to
find a verdict for the party producing it and upon whom the onus of proof is
imposed, such as where the evidence offered consists of conclusory assertions
without further support in the record, summary judgment may lie. Fincher v.
Depository Trust and Clearance Co., 604 F.3d 712 (2d Cir. 2010).
B. Administrative Procedure Act
To bring a claim under the APA, a plaintiff must show “(1) a clear duty
owed to [him] under by the agency, (2) a duty which is mandatory and not
discretionary, and (3) a clear right to relief.” Nigmadzhanov v. Mueller, 550 F.
Supp. 2d 540, 548 (S.D.N.Y. 2008) (citation omitted). The APA imposes a number
of requirements on federal agencies. One requirement is, “within a reasonable
time . . . to conclude a matter presented to it.” 5 U.S.C. § 555(b). Thus, a court
may “compel agency action unlawfully withheld or unreasonably delayed.” 5
U.S.C. § 706(1). However, it may do so only when “an agency failed to take a
discrete agency action that it is required to take.” Norton v. S. Utah Wilderness
Alliance, 542 U.S. 55, 64, 124 S. Ct. 2373, 2379 (2004) (emphasis in original). A
court may not review “agency action [that] is committed to agency discretion by
law.” 5 U.S.C. § 701(a)(2). Accordingly, “when an agency is compelled by law to
act within a certain time period, but the manner of its action is left to the agency’s
discretion, a court can compel the agency to act, but has no power to specify
what the action must be.” Norton, 542 U.S. at 65, 124 S. Ct. at 2380.
Where an APA claim is based on unreasonable delay, courts consider six
factors:
(1) the time agencies take to make decisions must be governed by a
‘rule of reason;’ (2) where Congress has provided a timetable or
11

other indication of the speed with which it expects the agency to
proceed in the enabling statute, that statutory scheme may supply
content for this rule of reason; (3) delays that might be reasonable in
the sphere of economic regulation are less tolerable when human
health and welfare are at stake; (4) the court should consider the
effect of expediting delayed action on agency activities of a higher or
competing priority; (5) the court should also take into account the
nature and extent of the interests prejudiced by delay; and (6) the
court need not “find any impropriety lurking behind agency lassitude
in order to hold that agency action is ‘unreasonably delayed.’
Yakubova v. Chertoff, No. 06 CV 4203 (ERK) (RLM), 2006 WL 6589892, at
**3-4 (E.D.N.Y. Nov. 2, 2006) (quoting Tummino v. Von Eschenbach, 427 F. Supp.
2d. 212, 231 (E.D.N.Y. 2006) (applying factors to complaint alleging delays in
adjudication of naturalization applications by USCIS)).
The duty to resolve applications within a reasonable time applies to DHS
and USCIS adjudications of immigration applications, and serves as a proper
basis for a claim under the APA. See, e.g., Eid v. Chertoff, No. 07-cv-201 (JBA),
2008 WL 905927, at *4 (D. Conn. Mar. 31, 2008) (denying motion to dismiss APA
claim against Secretary of DHS for failure to resolve plaintiff’s adjustment of
status application for more than four years and stating that “[n]othing in the INA
relieves the Secretary of his obligation to dispose of pending adjustment of
status applications in a reasonable time frame to give applicants prompt notice of
those decisions”); Nigmadzhanov, 550 F. Supp. 2d at 547 (finding that defendant
“CIS had a non-discretionary duty to adjudicate [plaintiff’s] application for
adjustment within a reasonable amount of time” and that having alleged that CIS
breached its duty, plaintiff “stated a clear claim for relief” under APA).7

7

There is case law holding that the DHS and USCIS’ duty to timely adjudicate
naturalization applications is not triggered until the completion of the FBI’s
criminal background check. See Kakushadze v. Chertoff, No. 07 Civ. 8338 (DF),
2008 WL 2885292, at *7 (S.D.N.Y. Jul. 25, 2008) (“[US]CIS does not have a
12

Similarly, when an agency issues a denial, “in whole or in part of a written
application, petition, or other request of an interested person made in connection
with any agency proceeding,” it is required to give “[p]rompt notice . . . of the
denial.” 5 U.S.C. § 555(e) (1982). While the Second Circuit has not reached the
issue, courts elsewhere have found that the DHS and USCIS must comply with
this statute in the course of their review of applications. See, e.g., Beshir v.
Holder, 853 F. Supp. 2d 1, 6 n. 4, 10-11 (D.D.C. 2011) (citing § 555(e) and holding
that court had jurisdiction under the APA to hear complaint challenging agency
inaction with respect to plaintiff’s application to adjust her immigration status);
Fraga ex rel. Fraga v. Smith, 607 F. Supp. 517, 522 (D. Or. 1985) (citing § 555(e) in
holding that the APA “requires INS to issue a final written decision” in connection
with applications for certificates of citizenship). As is the case with a failure to
render a decision, “the usual remedy” for an agency’s failure to satisfy the notice
requirement in the event of a denial is a “‘remand to the agency for additional
investigation or explanation.’” Tourus Records, Inc. v. Drug Enforcement Admin.,

mandatory duty to take action on an application for naturalization until the FBI
has completed its background checks.”) (quoting Abdul Qadir v. Gonzalez, No.
07-3741 (FLW), 2008 WL 2625314, at *4 (D. N.J. Jun. 26, 2008) (dismissing APA
claim based on DHS delay in adjudicating naturalization application). However,
Defendants do not raise this argument. In addition, as Defendants
acknowledge, 8 U.S.C. § 1447(b) permits a naturalization applicant to request a
hearing before a district court in the event of undue delay on the part of the
agency, but they claim that this statute does not apply in this case because it
was not enacted until 1990. [Dkt. #49-1, Defs.’ Memo. at 13]. Defendants’
argument assumes that Plaintiff’s application was disposed of prior to 1990,
but, as discussed below, see infra at 17-18, the record plainly indicates that
Plaintiff’s naturalization application was pending in 1990 and remains so today.
Furthermore, Plaintiff relies on this statute in bringing his Complaint. See [Dkt.
#1, Compl. at ¶¶ 74, 77]. Accordingly, to the extent the APA does not provide for
a cause of action to redress the 30-year delay in adjudicating Plaintiff’s
application, 8 U.S.C. § 1447(b) certainly does.
13

259 F.3d 731, 737 (D.C. Cir. 2001) (quoting Florida Power & Light Co. v. Lorion,
470 U.S. 729, 744, 105 S. Ct. 1598, 1607 (1985)).
III.

Analysis
A. The INS Breached its Duty to Timely Adjudicate Plaintiff’s Naturalization
Application
At the time Plaintiff submitted his application, February 3, 1982, the INS, a

federal agency, was under the general obligation to render a conclusion on the
application within a “reasonable time.” 5 U.S.C. § 555(b) (1982). Applying the sixfactor test, Plaintiff’s application was not resolved within a reasonable time. A
three-decade long delay exceeds any rule of reason, particularly given that an
application for citizenship touches upon the “health and welfare” of the applicant.
Yakubova, 2006 WL 6589892, at *3.
In response, Defendants dispute the applicability of this provision of the
APA by claiming that it applies only to actions that are “legally required.” [Dkt.
#49-1, Defs.’ Memo. at 12 (quoting Norton v. S. Utah Wilderness Allliance, 542 U.S.
55, 63-64, 124 S. Ct. 2373, 2379 (2004) (emphasis in original))]. According to
Defendants, no action was or is required with respect to Plaintiff’s naturalization
application because (i) at the time Plaintiff submitted it, the INS did not adjudicate
applications for naturalization, it only made non-binding recommendations to a
district court as to whether citizenship should be granted; and (ii) there is no
pending application, because the Plaintiff abandoned it, resulting in its
administrative closure and archival within a reasonable time. See [Dkt. #49-1,
Defs.’ Memo. at 14-15; Dkt. #53, Defs.’ Reply at 2-5]. Defendants are incorrect.
First, Defendants’ argument that the INS did not adjudicate naturalization
applications is neither accurate nor apposite. As Defendants note, applicants
14

seeking naturalization were required to file two documents, an application to file a
petition for naturalization, which was reviewed by the INS, and a separate petition
for naturalization, which was adjudicated by a court. See Azize v. Bureau of
Citizenship & Immigration Servs., 594 F.3d 86, 90 (2d Cir. 2010); U.S. v. Sokolov,
814 F.2d 864, 869 (2d Cir. 1987). The application was a necessary precursor to
filing a petition. 8 U.S.C. § 1445(b)(2) (1982). In addition to receiving and
processing applications to file petitions for naturalization, the INS screened
applicants to ascertain if they were likely to be eligible for naturalization, by
among other things, conducting a paper review and interview of the applicant.
[Dkt. #49-4, Ex. 201, Dorfman Decl. at ¶¶ 2-3]. Upon determining that the applicant
was qualified, the INS signed off on the application and assisted the applicant
with the filing of a petition for naturalization with the court. [Id. at ¶ 3]. In
addition, the court most often adopted the agency’s recommendation, and it was
“very rare” for an applicant to obtain a petition without the endorsement of the
INS. [Id. at ¶ 4]. Considering that submission of an application to the INS was a
prerequisite to filing a naturalization petition with a court, the INS conducted a
paper and in-person review of each application and applicant, and it determined
whether it would support and assist the applicant with the filing of a
naturalization petition, it is clear that the INS performed an adjudication over the
naturalization applications it received. Indeed, while not conclusive, the INS’s
determinations on whether an application should be developed into a petition
were rarely contradicted by courts reviewing associated petitions. Thus, even if
the Defendants are correct, that a “nonfiled” designation did not equate to the
denial of an application, this does not mean that the INS did not perform any

15

adjudication, as an outright denial of an application is only one type of
adjudication. See Brue v. Gonzales, 464 F.3d 1227, 1233 n. 3 (10th Cir. 2006) (a
nonfiled designation on a naturalization application “indicates that a
[naturalization] petition was not filed, not that the INS considered the Application
to be ‘nonfiled’ or that the INS denied the Application or a petition”) (emphasis in
original).
Moreover, even if a “nonfiled” designation does not constitute an INS
adjudication, the timing requirements in 5 U.S.C. § 555(b) are not limited to
agency adjudications. § 555(b) commands that, “within a reasonable time,” an
agency “conclude a matter presented to it.” Id. (emphasis added). Plaintiff
submitted an application to the agency, as he was required, and sought a
determination from the agency of whether or not he met the requirements for
naturalization and whether the agency would support and assist him in the filing
of a naturalization petition. Plaintiff was entitled to a final determination of both
of these questions, which collectively comprised the “matter” Plaintiff placed
before the agency.
Finally, and relatedly, for the reasons explained below, see infra at 17-18,
Plaintiff did not, nor has he yet received a final disposition from the agency.
Plaintiff’s application has been pending from 1982 to the present day. Thus, even
if the INS was not under a clear non-discretionary duty to adjudicate Plaintiff’s
application back in 1982, there is no question that the Defendants presently owe
such a duty and have owed it for many years. See 8 U.S.C. § 1447(b) (1994) (“If
there is a failure to make a determination under section 1446 of this title before
the end of the 120-day period after the date on which the examination is

16

conducted under such section, the applicant may apply to the United States
district court . . . for a hearing on the matter”).
The Defendants’ second contention—that the agency did make a
determination on Plaintiff’s application, when it closed and archived it after
concluding Plaintiff had abandoned it—is simply not supported by the record.
While the application was marked “non-filed” and, at some point, was archived,
there is simply no evidence that the INS ever (i) reached a final decision or (ii)
finally closed Plaintiff’s application file—administratively or otherwise. To the
contrary, the undisputed record indicates that his file was reopened on or around
October 4, 1982, the same day the INS appears to have received the letter from
Plaintiff notifying it that his case had been nolled and requesting a second
interview to move forward with his application, and remains open to the present
day. See [Dkt. #49-3, Ex. 5 to Defs.’ Mot. at 1; Dkt. #50-6, Ex. L to Pl.’s Cross-Mot.
at 1]. There is no indication that a decision was ever made on the application, or
that Plaintiff’s file was ever closed or archived for any particular reason
thereafter. Indeed, the October 27, 1982 letter from the INS requesting additional
records from the Plaintiff appears to confirm that the file was reopened and a
decision had not yet been made, and the FBI report, which was placed in
Plaintiff’s file years later, strongly suggests that the file remained open long after
the agency sent out its final communication to Plaintiff requesting the disposition
of the assault charge. See [Dkt. #49-3, Ex. 6 to Defs.’ Mot. at 1; Dkt. #50-6, Ex. H
to Pl.’s Cross-Mot. at 1].
Defendants do not identify any evidence indicating a subsequent
determination or that the file was later closed. At most, they submit an affidavit

17

which states that naturalization applications, in general, were “archived in the
ordinary course of business” once it appeared they had been abandoned. [Dkt.
#49-4, Ex. 201, Dorfman Decl. at ¶ 11]. The Defendants have not presented, and
the Court has not found, authority indicating that archiving a file constitutes an
official disposition or an otherwise recognized file status. That Plaintiff’s
application was archived says nothing of its status or disposition, it merely
indicates where the file was physically located. Moreover, the Defendants offer
no evidence as to when Plaintiff’s file was archived or when and if it was deemed
abandoned. With the undisputed record demonstrating that Plaintiff’s application
was never finally adjudicated or closed for over 30 years, Plaintiff has established
a violation of 5 U.S.C. § 555(b).
B. The INS Failed to Comply with its Statutory Duty to Notify Plaintiff of its
Denial of His Request for a Second Interview
Plaintiff next contends that Defendants violated 5 U.S.C. § 555(e), by failing
to inform him of the agency’s denials of his requests. At the time Plaintiff
submitted his application, Defendants were obligated to provide “[p]rompt
notice” of “the denial in whole or in part of a written application, petition, or other
request of an interested person made in connection with any agency
proceedings.” 5 U.S.C. § 555(e) (1982). Defendants contend that they did not
violate their duty to notify because (i) a designation of “nonfiled” did not
constitute a denial; and (ii) the closure and archiving of the file did not constitute
a denial, but was instead a determination that the file did not contain the requisite
proof for a petition to be filed. See [Dkt. #49-1, Defs.’ Memo. at 14-15; Dkt. #53,
Defs.’ Reply at 4-5]. Neither of these arguments succeeds.
First, the Defendants’ argument overlooks the Plaintiff’s request for a
18

second “appointment for acquiring [his] U.S. citizenship,” contained in his
September 27, 1982 letter to the INS. [Dkt. #49-3, Ex. 5 to Defs.’ Mot. at 1]. The
Defendants acknowledge that the Plaintiff “never received one,” and there is no
evidence in the record that a written denial of this request was ever sent to the
Plaintiff. [Dkt. #53, Defs.’ Reply at 15]. Indeed, the October 27, 1982 letter the
Defendants claim was the final piece of correspondence the INS sent to Plaintiff
does not mention or otherwise refer to this request. See [Dkt. #49-3, Ex. 6 to
Defs.’ Mot. at 1]. The failure to provide Plaintiff with a written denial of his
request is alone sufficient to violate the APA. See 5 U.S.C. § 555(e) (1982)
(“Prompt notice shall be given of the denial in whole or in part of a . . . request of
an interested person made in connection with any agency proceeding.”)
(emphasis added).
Second, Defendants’ contention that Plaintiff’s file was ultimately disposed
of and closed absent a denial simply does not comport with their descriptions of
agency policy and procedure, nor does it make sense. Both 5 U.S.C. § 555(e) and
8 C.F.R. § 103.3(a) imposed a duty on the INS to notify applicants whenever their
applications were denied. See 5 U.S.C. § 555(e) (1982) (“Prompt notice shall be
given of the denial . . . of a written application . . . .”); 8 C.F.R. § 103.3(a) (1982)
(“Whenever a formal application . . . is denied, the applicant shall be given written
notice setting forth the specific reasons for such denial.”).8 However, neither the
statute nor the regulation defined the terms “denial” or “denied.” The Defendants
have taken the position that neither a “nonfiled” designation nor the
administrative closure of an applicant’s file constituted a “denial.” [Dkt. #49-1,
8

8 C.F.R. § 103.3(a) specifically governed INS officers’ review of applications for
naturalization. See 8 C.F.R. § 103. 
19

Defs.’ Memo. at 13; Dkt. #53, Defs.’ Reply at 2-5]. The Defendants’ construction is
untenable, because if this were the case, under the protocol described in the
declaration submitted by the Defendants, the INS would not have issued a single
denial, and was never under any duty to notify any applicant as to the status of
their naturalization application. This is because, according to the Defendants, the
INS either determined an application was meritorious and assisted in preparing a
petition, or it designated applications “nonfiled” and after a period of time, it
administratively closed them. See [Dkt. #49-4, Ex. 201, Dorfman Decl. at ¶¶ 3-4,
10-11]. Nowhere does the INS review procedure outlined in the Defendants’
declaration provide for a separate “denied” status, nor does any other document
in the record.
On the other hand, the record indicates, and the Defendants appear to
assert, that once an application was administratively closed, it was no longer
under review. See [id. at ¶¶ 8, 10-11 (explaining that applicants with an
outstanding request for information could “revive” their applications by providing
the information, if they failed to do so, the case would “remain ‘nonfiled’ and
retained in the field office for a limited period of time,” and thereafter, the
application was “archived in the ordinary course of business”); Dkt. #53, Defs.’
Reply at 5 (stating that the INS closed Plaintiff’s file because it “did not contain
the requisite proof for a petition to be filed,” that “[t]he obligation to act pursuant
to the APA is only an obligation to ‘conclude’ the matter within a reasonable
time,” and contending that “[i]t is undisputed that the administrative closure took
place within a reasonable period”)]. Defendants cannot have it both ways. Either
the application was reopened and never concluded, as the undisputed record

20

indicates and the Court so finds, or, as the Defendants maintain, Plaintiff’s file
was ultimately closed, at which the point, the agency’s “nonfiled” designation
and determination that Plaintiff had abandoned his application ripened into a final
denial, but no denial notice was ever sent to the Plaintiff. In either case, the
Defendants have violated the APA, be it by failing to render a disposition, in
violation of 5 U.S.C. § 555(b), or by failing to inform the Plaintiff of its ultimate
denial of his application, in violation of 5 U.S.C. § 555(e).
C.

Plaintiff Has Standing And His Requested Relief is Not Clearly Futile
Defendants next contend that the Court is unable to grant the relief Plaintiff

seeks for three reasons: (i) Plaintiff is subject to a final order of removal and is
therefore barred from seeking naturalization by 8 U.S.C. § 1429; (ii) Plaintiff’s 2007
conviction for larceny in the fourth degree, an aggravated felony, renders him
unable to demonstrate good character, a pre-requisite for naturalization; and (iii)
Plaintiff is no longer a lawful permanent resident. See [Dkt. #49-1, Defs.’ Memo. at
16-24]. None of these arguments succeed.
As for the final removal order itself barring consideration of Plaintiff’s
naturalization application, his honorable service in the U.S. military during the
years 1976-1979 places him outside the categorical bar on naturalization imposed
by 8 U.S.C. § 1429. See 8 U.S.C. § 1440(a)-(b)(1) (permitting any person who,
“while an alien or a noncitizen national of the United States, has served
honorably . . . during . . . the Vietnam hostilities . . . [to] be naturalized . . .
notwithstanding the provisions of section 1429 . . . as they relate to
deportability”); Boatswain v. Ashcroft, 267 F. Supp. 2d 377, 378 (E.D.N.Y. 2003)
(citing 8 U.S.C. § 1429 and noting that it “permit[s] veterans to naturalize

21

notwithstanding any final order of removal”), aff’d sub nom Boatswain v.
Gonzalez, 414 F.3d 413 (2d Cir. 2005).9
Defendants’ other two arguments fare no better. While consideration of
Plaintiff’s 2007 fourth-degree larceny conviction and the loss of his lawful
permanent resident status due to the final removal order may well result in the
denial of his naturalization application, it is not clear to the Court that the agency
must, or even should, consider either of these facts. Plaintiff originally submitted
his application in February 1982, it was never disposed of and remains open, the
fourth degree larceny conviction occurred 25 years later, and his removal took
place another five years after that. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1)
Statement at ¶ 19; Dkt. #51-1, Pl.’s Local Rule 56(a)(2) Statement at ¶ 19; Dkt. #506, Ex. J to Pl.’s Cross-Mot. at 2].
Defendants first point to 8 U.S.C. §§ 1427(a)(3), 1101(f)(8), and 8 C.F.R. §
103.2(b)(1) in support of their claim that Plaintiff’s fourth-degree larceny
conviction precludes consideration of his naturalization application. 8 U.S.C. §
1427(a)(3) states that “[n]o person . . . shall be naturalized unless such applicant .
. . during all periods referred to in this subsection has been and still is a person
of good moral character . . . .” “The statutory period during which good moral
character is to be assessed is ‘five years immediately preceding the date of filing
his application . . . up to the time of admission to citizenship.’” Rico v. INS, 262 F.
Supp. 2d 6, 9 (E.D.N.Y. 2003) (quoting 8 U.S.C. §§ 1427(a)(1)-(2)). 8 U.S.C.
§1101(f)(8) provides that “[n]o person shall be regarded as . . . a person of good
9

Defendants’ reliance on Ajlani v. Chertoff, 545 F.3d 299 (2d Cir. 2008) is
misplaced, as the plaintiff in that case was not an honorably discharged military
veteran who fell within the exception provided by 8 U.S.C. § 1440. See [Dkt. #491, Defs.’ Memo. at 17; Dkt. #53, Defs.’ Reply at 8].
22

moral character who, during the period for which good moral character is
required to be established, is or was . . . convicted of an aggravated felony . . . .”
Finally, 8 C.F.R. § 103.2(b)(1) requires an applicant to show that he “is eligible for
the requested benefit at the time of filing the benefit request and must continue to
be eligible through adjudication.”
Neither the statutes nor the regulation preclude the relief sought by the
Plaintiff. While they make clear that an applicant must demonstrate good moral
character up to the time of admission to citizenship, the very unique set of facts
presented in this case renders the application of these requirements to the
Plaintiff’s naturalization application far from certain. Specifically, the two-and-ahalf decade gap in between Plaintiff’s filing of his application and his commission
of the aggravated felony raises the significant question of whether Plaintiff must
demonstrate eligibility through the time the agency performs a long-belated
court-ordered adjudication, or if instead, the Plaintiff need only show that he met
all of the statutory requirements through the time in which he reasonably should
have been granted citizenship, but was not. Indeed, at least one court in this
Circuit ordered USCIS to adjudicate a naturalization application despite the
applicant’s commission of an aggravated felony a decade after he submitted it.
See Rivera v. U.S. Citizenship & Immigration Servs., 5 F. Supp. 3d 439, 440-41
(S.D.N.Y. 2014) (stating that in 1995, plaintiff filed an application for naturalization,
in 2005, he pled guilty to conspiracy to distribute cocaine,10 in 2011, he filed a suit

10

Conspiracy to distribute cocaine is an “aggravated felony” under Title 8. See 8
U.S.C. §§ 1101(a)(43)(B), (U) (listing “[i]llicit trafficking in a controlled
substance” as an aggravated felony offense and further stating that “an
attempt or conspiracy to commit an offense described in this paragraph” is
independently an aggravated felony).
23

to compel the USCIS to issue a decision on his still-pending naturalization
application, and the court ordered the agency to issue a decision).
In urging the Court to take a different position, the Defendants cite three
cases, Nguyen v. USCIS, No. 1:09-cv-2211, 2010 WL 3521911 (M.D. Pa. 2010),
Vernon v. Attorney General of the United States, 181 F. App’x 201 (3d Cir. 2006);
Marquez-Almanazar v. INS, 418 F.3d 210 (2d Cir. 2005). See [Dkt. #49-1, Defs.’
Memo. at 21-22; Dkt. #53, Defs.’ Reply at 10-11]. None of them compel a different
result.
In Nguyen, the petitioner sought nunc pro tunc relief to file, for the first
time, a naturalization application following a series of arrests which led to a final
order of removal. Nguyen, 2010 WL 3521911 at **1, 4. While the petitioner’s
father did file a certificate of citizenship for his children, including the petitioner,
the certificate predated the petitioner’s arrests and removal order, and it was
never adjudicated, the petitioner conceded that he did not meet the requirements
for derivative citizenship at the time his father filed the application. Id. at *6.
Indeed, at no point was the petitioner eligible for derivative citizenship because
he was already eighteen years old by the time his mother naturalized. Id. at *1.
Nothing on the record before this Court suggests that the Plaintiff was ineligible
for citizenship within a reasonable time after his citizenship application was filed.
On the contrary, the record establishes that he was eligible for years after he filed
his application, arguably more than a reasonable time after it was filed, and for
many years before he sustained the convictions which led to his deportation.
Vernon likewise does not support the Defendants’ position. There, the
plaintiff, after being honorably discharged, filed a naturalization application on

24

August 5, 1986. Vernon, 181 F. App’x, at 202. The agency scheduled an
examination date for January 8, 1987, but the plaintiff did not appear, as he
claimed that he was never notified of the date. Id. Twelve days later, on January
20, 1987, the INS closed his naturalization proceedings. Id. Many years later,
after a series of minor offenses, the plaintiff was convicted under the felon-inpossession statute, an aggravated felony. Id. While the court declined to order
the INS to complete its naturalization adjudication nunc pro tunc, it did not do so
on the basis of the plaintiff’s aggravated felony. Id. at 203. Instead, in this
unreported decision, the Third Circuit declined to order a nunc pro tunc review
because the plaintiff “offer[ed] no excuse or explanation as to why he never
sought clarification or reconsideration of his application for naturalization from
the time he filed it in 1986 until he raised it as an issue . . . seventeen years later.”
Id. While the Court recognizes that the Plaintiff bears some of the responsibility
for the decades-long delay in resolving his naturalization application, it declines
to adopt the position taken in Vernon, a non-binding decision, given the INS’s
multiple violations of the APA in the course of its review of Plaintiff’s application.
Further, the Plaintiff’s last communication with INS indicated that he
thought his application was still under consideration and that he had satisfied all
of the application requirements by presenting evidence that his prosecution had
been suspended. The legal significance of a nolle prosequi is often misconstrued
by lay persons and misperceived to be a final resolution of their case. Thus, the
Plaintiff’s impression, albeit wrong, was not unreasonable, and unlike in Vernon,
there is no clear evidence that the Plaintiff abandoned his application for
citizenship.

25

Finally, in Marquez-Almanazar, the plaintiff, an honorably-discharged
veteran, filed a naturalization application after removal proceedings had already
begun. Marquez-Almanazar, 418 F.3d at 213. The removal action was predicated
on the plaintiff’s prior conviction for possession and attempting to sell cocaine,
an aggravated felony under the immigration statutes. Id. at 212. Thus, the
aggravated felony predated his naturalization application, and the Second Circuit
simply held that the relaxed requirements for certain military personnel
prescribed in 8 U.S.C. § 1440 did not extend to the standards governing the good
moral character requirement. See id. at 219. The present case is clearly
distinguishable, as the Plaintiff here did not seek citizenship to avert deportation,
but rather, he sought citizenship many years before he could have had any
inkling that he would be deported.
In a case such as this one, construing the applicable statutes and
regulations as requiring an applicant to demonstrate naturalization eligibility for
decades beyond when their application should have been adjudicated and they
should have attained citizenship could be highly prejudicial, particularly where
the agency engaged in significant undue delay. However, the Court finds that the
questions of how to interpret these statutes and regulations in the context of this
case and what information the agency can and should consider in adjudicating
the Plaintiff’s naturalization application should be resolved by the agency on
remand.
C.

Neither of the Defendants’ Affirmative Defenses Succeed
Defendants raise the statute of limitations and the doctrine of laches, each

of which they claim bars the relief Plaintiff seeks. However, under the law of this

26

Circuit, neither of these doctrines is applicable.
Absent a defined statute of limitations period, a civil action against an
agency of the United States must be filed within six years “after the right of action
first accrues.” 28 U.S.C. § 2401(a). With regard to procedural violations brought
under the APA, the statute of limitations for such claims does not begin to run
until the agency action becomes final. 5 U.S.C. § 704; see also Sai Kwan Wong v.
Doar, 571 F.3d 247, 263 (2d Cir. 2009). In determining whether an agency action is
sufficiently final to trigger the running of the statute of limitations, the “core
question” is “whether the agency has completed its decisionmaking process, and
whether the result of that process is one that will directly affect the parties.”
Dalton v. Spector, 511 U.S. 462, 470, 114 S. Ct. 1719, 1725 (1994) (quoting Franklin
v. Massachusetts, 505 U.S. 788, 797 112 S. Ct. 2767, 2773 (1992)). As explained
above, Plaintiff’s naturalization application is still pending and has not been
adjudicated. No decision, final or otherwise, has been made on it. Plaintiff’s
application was designated “nonfiled,” reopened, and at some point years later,
his file was “archived” without ever being denied and without ever notifying
Plaintiff. Accordingly, the statute of limitations has not yet commenced, let alone
run on Plaintiff’s claim. The Plaintiff cannot equitably be expected to challenge
agency action of which he was never made aware, especially in a circumstance
like this in which there was no specified deadline by which the agency was
required to act. To hold otherwise would create a statute of limitations trap.
Defendants’ laches defense similarly fails. First, there is some authority in
this Circuit holding that because the statute of limitations in this action has not
run, a laches defense is unavailable. See U.S. v. RePass, 688 F.2d 154, 158 (2d

27

Cir. 1982) (“Laches is not a defense to an action filed within the applicable statute
of limitations.”); Harris Trust & Sav. Bank v. John Hancock Mut. Life Ins. Co., No.
83 Civ. 5401 (DC), 1997 WL 278116, at *3 (S.D.N.Y. May 23, 1997) (Chin, J.) (“[I]t is
the law of this Circuit that laches may not be asserted as a defense if the
applicable statute of limitations has not run.”). At the very least, the fact that the
statute of limitations has not yet even begun to run is “an important determinant
in the application of a laches defense.” Conopco, Inc. v. Campbell Soup Co., 95
F.3d 187, 191 (2d Cir. 1996). Indeed, the Second Circuit has expressly rejected
efforts by the government to assert the defense in connection with claims subject
to the general six-year statute of limitations for suits against the United States
when the limitations period had not yet run. See Ikelionwu v. United States, 150
F.3d 233, 237-38 (2d Cir. 1998) (reversing district court’s dismissal of suit
challenging government seizure of personal property on laches grounds and
stating that “[i]t is also not without significance that [plaintiff’s] claim is timely
under the applicable statute of limitations”).
Second, even if the fact that the limitations period has not yet run does not
alone preclude a laches defense, the Defendants remain unable to avail
themselves of it. “Laches is based on the maxim, ‘vigilantibus non dormientibus
aequitas subvenit,’ meaning ‘equity aids the vigilant, not those who sleep on their
rights.’” Ikelionwu, 150 F.3d at 237 (citation and quotations omitted). “A party
asserting the defense of laches must establish that: (1) the plaintiff knew of the
defendant’s misconduct; (2) the plaintiff inexcusably delayed in taking action;
and (3) the defendant was prejudiced by the delay.” Id. (citing Tri-Star Pictures,
Inc. v. Leisure Time Prod., B.V., 17 F.3d 38, 44 (2d Cir. 1994)). However, laches is

28

an equitable defense that is “committed to the sound discretion of the trial
judge.” Whitserve LLC v. GoDaddy.com, Inc., No. 3:11-cv-00948 (WGY), 2015 WL
4464476, at *4 (D. Conn. Jul. 21, 2015). Accordingly, courts have declined to
apply the defense when the party seeking to invoke it has contributed to the
inexcusable delay. See Clarke v. Commc’ns Workers of Am., 318 F. Supp. 2d 48,
57-58 (E.D.N.Y. 2004) (citing King v. Innovation Books, 976 F.2d 824, 833 (2d Cir.
1992)). Here, the failure of the agency to notify Plaintiff, at any point, that his
application had been designated non-filed, deemed abandoned, or archived,
materially contributed to the extensive delay in Plaintiff’s bringing this case. This
appears to be a case in which both parties have acted in a dilatory manner, and
thus, neither should be able to seek refuge in a doctrine that “aids the vigilant.”
Ikelionwu, 150 F.3d at 237 (citation and quotations omitted).
Finally, the INS inquiry into the status of the Plaintiff’s criminal prosecution
and eligibility for citizenship was wanting. Under Connecticut law, a nolle
prosequi ripens into a dismissal and an erasure thirteen months after it is
entered, provided that the individual charged does not violate the law. See Cislo
v. City of Shelton, 240 Conn. 590, 607, 692 A.2d 1255, 1264-65 (Conn. 1997) (“[T]he
legislature in 1973 and 1974 . . . perceived that . . . some additional procedural
protection for a defendant whose case had been nolled was necessary, namely,
the automatic erasure of records of nolled cases . . . following the requisite
thirteen month period,” which has “the same practical effect as would the
immediate erasure of records in dismissed cases . . . .”); see also Conn. Gen.
Stat. § 54-142a(c)(1). Thus, INS could have determined the Plaintiff’s eligibility for
citizenship by commissioning a criminal records check. If such a check revealed

29

that the Plaintiff had not been charged with a criminal offense subsequent to the
entry of the nolle, the INS would have known that the charges had been
dismissed and the Plaintiff was eligible for citizenship. Here, the INS’s inquiry
into the status of the Plaintiff’s criminal offense was lacking, depriving the INS of
the equitable defense of laches.
IV.

Conclusion
For the foregoing reasons, the Court assumes jurisdiction over this matter,

GRANTS Plaintiff’s Cross-Motion for Summary Judgment, DENIES the
Defendants’ Motion to Dismiss or in the Alternative for Summary Judgment,
REMANDS this matter back to Defendant USCIS, and ORDERS the agency to
perform all acts necessary to enable review of Plaintiff’s application and to render
a timely decision on Plaintiff’s naturalization application.
IT IS SO ORDERED, ADJUDGED AND DECREED, this 17th day of March
2016, Hartford, Connecticut
_________/s/______________
Vanessa L. Bryant,
United States District Judge

30