Otundo v. Gomez et al

Filing 21

ORDER AND REASONS granting 16 MOTION to Remand to U.S. Citizenship and Immigration Services. ORDERED that the motion to remand adjudication of plaintiff's Form N-400 to USCIS is GRANTED. FURTHER ORDERED that USCIS shall determine the matter on or before Tuesday, October 8, 2013. FURTHER ORDERED that the above-captioned case is DISMISSED WITHOUT PREJUDICE. Signed by Judge Lance M Africk on 9/25/2013.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RICHARD OTUNDO

CIVIL ACTION

VERSUS

No. 13-4994

CINDY GOMEZ ET AL.

SECTION I

ORDER AND REASONS
Before the Court is a motion1 to remand plaintiff’s naturalization application and to dismiss
the above-captioned matter without prejudice filed on behalf of defendants, Cindy Gomez et al.
Plaintiff, Richard Otundo, has filed an opposition.2 For the following reasons, the motion is
GRANTED.
Background
The allegations set forth in plaintiff’s request for a hearing on his naturalization application
are as follows. Plaintiff, who was born in Kenya, is a lawful permanent resident of the United States
of America.3 On July 26, 2010, plaintiff filed a United States Citizenship and Immigration Services
(“USCIS”) Form N-400, Application for Naturalization.4 On December 20, 2010, plaintiff
participated in a naturalization interview.5 At the conclusion of the interview, plaintiff was notified
that his application had been recommended for approval.6 On June 26, 2013, plaintiff participated

1

R. Doc. No. 16.
R. Doc. No. 19.
3
R. Doc. No. 1, at 5; R. Doc. No. 1-2, at 2.
4
R. Doc. No. 1, at 5.
5
Id.
6
Id. The exhibit on which he relies for this assertion has only a small mark next to the
“recommended for approval” option. A large X is marked next to the other option, which reads: “A
2

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in another naturalization interview.7 Although plaintiff provided all of the required evidence to
permit his Form N-400 to be adjudicated, USCIS failed to adjudicate his petition within 120 days
of his initial interview.
Defendants assert the following additional facts. Plaintiff’s first interview occurred on
October 5, 2010.8 That interview resulted in the discovery that he was registered to vote, which
requires an affirmative answer that the registrant is a U.S. citizen.9 He also failed the history and
civics portion of the exam.10 USCIS requested that he provide evidence of his voting history at a
later interview, which occurred on December 20, 2010.11 Plaintiff passed the history and civics reexamination at that time and provided evidence that, while he had registered to vote, he had not
voted in any election.12 USCIS held his case in abeyance pending review of the voting issue.13
Pursuant to that review, plaintiff was scheduled for a third interview on June 26, 2013.14 USCIS was
prepared to approve his application after that interview, but plaintiff filed a request for a hearing on
his application for naturalization in district court one week later.15
According to defendants, “barring any unforeseen circumstances – such as any recent or
previously undisclosed criminal activity or convictions that reflect adversely on Mr. Otundo’s good

decision cannot yet be made about your application.” R. Doc. No. 1-2, at 21. In any case, the Court
finds that, even taking plaintiff’s characterization of events as true, remand is appropriate.
7
R. Doc. No. 1, at 6.
8
R. Doc. No. 16-1, at 2.
9
Id.
10
Id.
11
Id.
12
Id.
13
Id.
14
Id.
15
Id.
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moral character – USCIS is still in a position to approve the N-400 and would expeditiously
adjudicate the application were this Court to remand the matter.”16
Law and Analysis
When USCIS “does not grant or deny an application for naturalization 120 days after the
required examination of the applicant, the applicant may ask a U.S. district court to adjudicate the
application” pursuant to 8 U.S.C. § 1447(b). Walji v. Gonzales, 500 F.3d 432, 433 (5th Cir. 2007).
8 U.S.C. § 1447(b) provides:
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 conducted under such section, the applicant may apply
to the United States district court for the district in which the
applicant resides for a hearing on the matter. Such court has
jurisdiction over the matter and may either determine the matter or
remand the matter, with appropriate instructions, to the Service to
determine the matter.17
The parties’ briefing addresses the conflicting authority as to whether an application for
naturalization can be adjudicated by USCIS after a plaintiff has filed suit pursuant to § 1447(b)18 or
whether, instead, the district court’s jurisdiction is exclusive and deprives the agency of the power
to act.19 But the resolution of this issue is not before the Court. After plaintiff filed this action,
defendants did not take any action on his application for naturalization.20 Accordingly the Court need

16

Id. at 2-3.
8 U.S.C. § 1446 addresses the investigation and examination of naturalization applicants. See, e.g.,
8 U.S.C. § 1446(b) (“The Attorney General shall designate employees of the Service to conduct
examinations upon applications for naturalization.”).
18
See, e.g., R. Doc. No. 16-1, at
19
See, e.g., R. Doc. No. 19, at 7-16.
20
R. Doc. No. 20.
17

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only decide whether to “determine the matter or remand the matter, with appropriate instructions,
to the Service to determine the matter.” 8 U.S.C. § 1447(b).
Plaintiff asserts that remand would violate Fifth Circuit precedent by delaying adjudication
of his naturalization application.21 Plaintiff also asserts, “Fifth Circuit precedent is well settled that
district courts within the Fifth Circuit should not remand 8 U.S.C. § 1447(b) naturalization lawsuits
back to the government unless FBI background investigations are still pending with USCIS . . . .”22
For both of these propositions, plaintiff relies on Walji, 500 F.3d 432. Plaintiff does not,
however, quote the last sentence of that case: “Because Walji’s interview has been conducted and
his background check has now been completed, we are satisfied that the district court will remand
to the Service where there should be no impediment to the prompt resolution of the application.”23
Id. at 439. Moreover, the district court cases on which plaintiff relies confirm the Court’s statutory
discretion to remand. See, e.g., Hua v. Holder, No. 12-172, 2012 WL 5363976, at *2 (M.D. La. Oct.
30, 2012) (“[T]he Court finds that once an applicant files a Section 1447(b) petition after the 120
day period elapses, the district courts have jurisdiction to either determine the matter or remand the
matter to the USCIS.”). Considering the facts of this case and the arguments of the parties, the Court
concludes that remand is appropriate.
The Court also notes that plaintiff’s request for a hearing on his naturalization application
includes a Fifth Amendment claim, in which he asserts that “[d]efendants’ refusal to adjudicate
Plaintiff’s Form N-400 denies Plaintiff’s right to Due Process.”24 While USCIS’s motion requests

21

R. Doc. No. 19, at 1.
Id. at 4.
23
Plaintiff has not cited any other Fifth Circuit cases to support these arguments.
24
R. Doc. No. 1, at 9.
22

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that the entire case be dismissed without prejudice,25 plaintiff has failed to raise any argument that
the Court should retain jurisdiction over the Fifth Amendment claim in the event of a remand of his
§ 1447(b) claim. Accordingly, USCIS’s motion to dismiss without prejudice is unopposed relative
to the Fifth Amendment claim.
Conclusion
IT IS ORDERED that the motion to remand adjudication of plaintiff’s Form N-400 to
USCIS is GRANTED.
IT IS FURTHER ORDERED that USCIS shall determine the matter on or before Tuesday,
October 8, 2013.
IT IS FURTHER ORDERED that the above-captioned case is DISMISSED WITHOUT
PREJUDICE.

New Orleans, Louisiana, September 25, 2013.

_____________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

25

R. Doc. No. 16, at 1.
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