Megahed v. Holder et al

Filing 16

ORDER granting in part 14 Defendant's Opposed Motion to Dismiss Complaint as Moot, or in the Alternative, Remand to the Agency for Adjudication of Plaintiff's N-400 Application for Naturalization to the extent that this cause is REMANDED to USCIS to render a decision on Plaintiff's application. Signed by Judge James D. Whittemore on 3/15/2012. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

YOUSSEF SAMIR MEGAHED,
Plaintiff,
Case No. 8:11-CV-2785 -T-27TBM

vs.

ERIC HOLDER, Attorney General
of the United States, et al.,
Defendants.
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ORDER
BEFORE THE COURT is Defendants' Opposed Motion to Dismiss Complaint as Moot
or, in the Alternative, Remand to the Agency for Adjudication of Plaintiff s N-400 Application for
Naturalization (D~. 14). Plaintiff has responded in opposition (Dkt. 15). Upon consideration, the
motion (Dkt. 14) is GRANTED inpart.
According to the Complaint, Plaintiff applied for naturalization on July 24, 2007 and was
interviewed by U.S. Citizenship and Immigration Services ("USCIS") on'May 25,2010. Plaintiff
was interviewed again on September 17, 2010 and December 3, 2010. By the time Plaintiff filed this
action on December 19,2011, more than a year and a half had passed since his initial interview.
Because USCIS had not adjudicated his application within 120 days, as required by 8 U.S.C. §
1447(b), Plaintiff commenced this action, requesting that this Court grant him naturalization or,
alternatively, "remand the application to USCIS with an order that it adjudicate the application
within 15 days of said order."
Less than a month later, USCIS denied Plaintiffs application. (Dkt. 14-1). Thereafter,
Defendants filed the instant motion to dismiss, arguing that USCIS' s adjudication of his application
rendered this action moot. Plaintiff opposes the motion, arguing that the § 1447(b) petition vested

the district court with exclusive jurisdiction over his application for naturalization. The Court agrees
with Plaintiff. See Bustamante v. Napolitano, 582 F.3d 403,406 (2d Cir. 2009) ("By providing the
district court with the option to 'remand the matter, with appropriate instructions, to [USCIS],' 8
U.S.C. § 1447(b), Congress intended that, after an applicant files a proper Section 1447(b) petition,
USCIS would lack the authority to decide an application absent a remand."); United States v.

Hovsepian, 359 F.3d 1144,1160 (9th Cir. 2004)("This wording [of§ 1447(b)] shows that Congress
intended to vest power to decide languishing naturalization applications in the district court alone,

unless the court chooses to 'remand the matter' to the INS, with the court's instructions."); Etape
v. Chertoff, 497 F.3d 379, 384 (4th Cir. 2007) ("In sum, the plain language of the statute clearly
supports the applicants' position that proper filing of a § 1447(b) petition provides a federal court
with exclusive jurisdiction over a naturalization application."); Martinez v. Secretary, Dep't of

Homeland Sec. , 670 F. Supp. 2d 1325, 1327-28 (M.D. Fla. 2009); Izrailevav. Chertoff, 629 F. Supp.
2d 1286, 1288 (M.D. Fla. 2007), but see Bello-Camp v. Attorney Gen., No. 8:08-cv-885-T-23TBM,
2009 WL 813146, at *5 n.12 (M.D. Fla. Mar. 26,2009). Because Plaintiff's § 1447(b) petition
vested this Court with exclusive jurisdiction, the subsequent adjudication by USCIS was a nullity.
Accordingly, this action was not rendered moot.
As an alternative, Defendants request that this action be remanded to USCIS with instructions
to issue a new decision. Section 1447(b) provides that the district court has discretion to "either
determine the matter or remand the matter, with appropriate instructions, to [USCIS] to determine
the matter." Under the circumstances, the Court is ofthe opinion that the better course is to remand.
USCIS is the agency responsible for determining the issuance of immigration benefits, and USCIS
is better-equipped to evaluate the information in Plaintiffs application in the first instance and to
develop the record. See Al-Atiyeh v. Swacina, 650 F. Supp. 2d 1244, 1247 (S.D. Fla. 2009); Silebi

De Donado v. Swacina, 486 F. Supp. 2d 1360, 1365 (S.D. Fla. 2007) (collecting cases and noting,

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"the majority of courts . . . have remanded similar cases back to the USCIS for a final
determination"). Further, notwithstanding its lack of jurisdiction, USCIS has completed the
application process and reached a tentative decision that was based on information obtained during
its investigation and interviews. See Martinez, 670 F. Supp. 2d at 1329. Following remand, it may
be that USCIS will execute its tentative ruling, as Plaintiff suggests. But that possibility presents no
reason to deny remand. If USCIS does deny his application, Plaintiff would be entitled to seek
administrative review under § 1447(a), followed by judicial review under § 1421(c).
Plaintiff argues that remand is improper because "[t]here is a level of bias present in the
record such that it would be unconstitutional to allow USCIS to issue a new decision knowing that
they will without a doubt issue the exact same denial if given the opportunity." (Dkt. 15 at 6).
Plaintiffs vague accusation of bias, which appears to be based on USCIS's rejection of Plaintiffs
contentions and its tentative denial of his application, is not a sufficient basis to deny remand. Cj
Bolin v. Story, 225 F.3d 1234, 1239 (11 th Cir. 2000) (noting, "[a]n allegation of bias must show that

the bias is personal as distinguished from judicial in nature" and holding that rulings in the same case
are insufficient to establish bias).
Accordingly, Defendant's motion (Dkt. 14) is GRANTED, to the extent that this cause is
REMANDED to USCIS with instructions to render a decision on Plaintiffs naturalization
application within twenty-one (21) days of the entry of this Order. The clerk is directed to CLOSE
the file. If a decision is not rendered within the time required by this Order, Plaintiff may file a
motion to reopen this action.
Ie-

DONE AND ORDERED this ~ day of March, 2012.

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ES D. WHITTEMORE
nited States District Judge

Copies to: Counsel of Record

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