Zitouni v. United States Citizenship and Immigration Services

Filing 19

ORDER: IT IS HEREBY ORDERED that USCIS's 11 motion to remand is GRANTED. IT IS FURTHER ORDERED that USCIS shall determine this matter on or before February 1, 2017. IT IS FURTHER ORDERED that the above-captioned case is DISMISSED WITHOUT PREJUDICE. Signed by Judge Nannette Jolivette Brown on 1/18/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ZITOUNI

CIVIL ACTION

VERSUS

NO. 16-1290

UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES
ORDER

SECTION: “G”(4)

Before the Court is Defendant United States Citizenship and Immigration Services’
(“USCIS”) motion to remand1 Plaintiff Hisam Zitouni’s (“Plaintiff”) naturalization application and
to dismiss the above-captioned matter without prejudice. Having considered the motion, the
memoranda in support and in opposition, the applicable law, and the record, the Court will grant
the motion.
I. Background
In his request for hearing on his application for naturalization, Plaintiff, a native and citizen
of Syria, alleges that he is a lawful permanent resident of the United States and that his application
for naturalization (Form N-400) has been pending with USCIS since March 4, 2010.2 According
to Plaintiff, he attended a biometrics appointment with USCIS on October 18, 2011, during which
USCIS took Plaintiff’s finger prints.3 Plaintiff further asserts that he appeared for his naturalization
interview on October 27, 2011 and that he received his naturalization interview results indicating
that he had passed the tests of English, U.S. history, and government.4 Despite this, Plaintiff

1

Rec. Doc. 11.

2

Rec. Doc. 1 at 1.

3

Id. at 4.

4

Id.

1

alleges, the USCIS officer refused to make a decision on Plaintiff’s application for naturalization.5
Plaintiff claims that he meets all the legal requirements to be naturalized as a United States citizen
and that he has provided all required evidence to USCIS in order for his application to be
adjudicated.6 Plaintiff also alleges that all FBI and background checks have been completed by
USCIS.7
Plaintiff filed his request for hearing on his application for naturalization on February 15,
2016.8 USCIS filed the instant motion to remand the case to USCIS and to dismiss the case without
prejudice on May 20, 2016.9 Plaintiff filed an opposition to the motion on June 11, 2016.10 With
leave of Court, USCIS filed a reply on June 22, 2016.11
II. Parties’ Arguments
A.

USCIS’s Arguments in Support of the Motion to Remand
In support of its motion, USCIS argues that good cause exists for the Court to remand the

matter to USCIS.12 USCIS asserts that the Court may remand the matter and that remand is
appropriate here for three reasons.13 First, USCIS avers that remand will ensure that Plaintiff

5

Id.

6

Id.

7

Id.

8

Id.

9

Rec. Doc. 11.

10

Rec. Doc. 14.

11

Rec. Doc. 18.

12

Rec. Doc. 11-1 at 3.

13

Id.

2

receives an “expeditious decision on his naturalization application without denying him the right
to eventually seek de novo judicial review of that decision, if necessary.”14 According to USCIS,
it is prepared to issue a decision within 21 days of the Court’s entry of a remand order.15 USCIS
avers that this time period will likely be shorter than the time it would take for the Court to preside
over discovery, to consider any dispositive motions, and to determine at trial whether Plaintiff had
presented sufficient evidence that he meets all the requirements for naturalization.16
Second, USCIS asserts that a remand would allow USCIS to apply its expertise regarding
naturalization, to fulfill its statutory obligation to adjudicate naturalization applications in the first
instance, and to fully develop an administrative record.17 It is because of these considerations,
USCIS avers, that the “vast majority” of courts faced with this situation conclude that remand is
appropriate.18 Finally, USCIS argues that the Court will preserve judicial resources by remanding
the matter to USCIS and allowing the administrative process to conclude.19 Even if Plaintiff were
to seek de novo review of the naturalization decision after the administrative process, USCIS
asserts that the Court considering such an appeal would have the benefit of a final agency decision
and a fully developed administrative record.20

14

Id. (citing 8 U.S.C. § 1421(c)).

15

Id.

16

Id. at 4 n.3.

17

Id. at 4.

18

Id. (Antonishin v. Keisler, 627 F.Supp.2d 872, 877 (N.D. Ill. 2007); 8 U.S.C. § 1421(a)).

19

Id.

20

Id. at 5.

3

B.

Plaintiff’s Arguments in Opposition to the Motion to Remand
In opposition to the motion, Plaintiff argues that USCIS has admitted that Plaintiff’s

application for naturalization should be approved.21 According to Plaintiff, USCIS did not answer
Plaintiff’s request for hearing on his application for naturalization within the 60 day time period
required under the Federal Rules of Civil Procedure, Rule 12(a)(2), nor did USCIS file a responsive
pleading within the time mandated by the Court’s order.22 Pursuant to Federal Rules of Civil
Procedure, Rule 8(b)(6), Plaintiff argues that USCIS has admitted all allegations in Plaintiff’s
request for hearing.23 Plaintiff further argues that the only reason USCIS is moving for a remand
is to avoid the possibility of having to reimburse Plaintiff for attorneys’ fees, court courts, and
expenses pursuant to the Equal Access to Justice Act.24 According to Plaintiff, if the Court remands
the case to USCIS without an order to approve Plaintiff’s application for naturalization, then
Plaintiff will be precluded from seeking reimbursement for fees and costs associated with suing
USCIS.25
Plaintiff next contends that under Fifth Circuit precedent it is well settled that the general
rule is that district courts should not remand naturalization lawsuits back to USCIS unless FBI
background investigations are still pending with USCIS.26 According to Plaintiff, the FBI
investigations in his case were completed six years ago, and the motion to remand should therefore

21

Rec. Doc. 14 at 2.

22

Id. (citing Rec. Doc. 10, Rec. Doc. 1 at 4).

23

Id.

24

Id. (citing 28 U.S.C. § 2412, et seq.).

25

Id. at 2–3 (citing Othman v. Chertoff, 309 Fed. App’x 792 (5th Cir. 2008)).

26

Id. at 3.

4

be denied.27 Moreover, Plaintiff contends that some district courts within the Fifth Circuit have
denied remand even where FBI checks were still pending.28
Plaintiff next argues that 8 U.S.C. § 1447(b) gives district courts exclusive jurisdiction over
cases where a plaintiff has filed an application for naturalization and that application has not been
adjudicated within 120 days after an interview by USCIS.29 According to Plaintiff, once USCIS
refuses to adjudicate an applicant’s application for naturalization, the applicant can then file suit
with the district court.30 At that point, Plaintiff asserts that the Court can either determine the matter
or remand the matter with appropriate instructions for USICS.31 Plaintiff contends that the district
court has exclusive jurisdiction to determine the cause of action at that point and that no subsequent
decision by USCIS can strip the district court of its exclusive jurisdiction or moot the cause of
action after suit has been filed.32
Plaintiff acknowledges that the Fifth Circuit has not directly ruled on this issue but
contends that several district courts within the Fifth Circuit have ruled that the district court has
exclusive jurisdiction over an application for naturalization once a cause of action is filed.33
Moreover, Plaintiff argues that four circuit courts have held that district courts have exclusive

27

Id. (citing Rec. Doc. 1 at 20; Hua v. Holder, 2012 WL 5363976 (M.D. La. Oct. 30, 2012)).

28
Id. at 4 (citing Negum v. U.S., 480 F.Supp.2d 877 (N.D. Tex. 2007); Aslam v. Gonzalez, 2006 WL 3749905
(W.D. Wash. Dec. 19, 2006)).
29

Id. at 6 (citing Khalid v. Gomez, 2013 WL 2285132 (E.D. La. May 22, 2013) (Fallon, J.)).

30

Id. at 8 (citing 8 U.S.C. § 1447(b)).

31

Id.

32

Id. (citing United States v. Hovsepian, 359 F.3d 1144, 1159–64 (9th Cir. 2004); Etape v. Certoff, 497 F.3d
379 (4th Cir. 2007); Bustamante v. Napolitano, 582 F.3d 403, 404 (2d Cir. 2009); Al-Maleki v. Holder, 558 F.3d 1200,
1205 n.2 (10th Cir. 2009)).
33

Id. at 9 (citing Khalid v. Gomez, 2013 WL 2285132 (E.D. La. May 22, 2013).

5

jurisdiction over a naturalization cause of action and that no circuit court has held otherwise.34
Plaintiff represents that a district court in the Fifth Circuit recently agreed with the circuit courts
who have ruled on the issue and held that district courts have exclusive jurisdiction over
naturalization application causes of action.35 According to Plaintiff, the court further held that
nothing prevents an applicant and USCIS from settling the matter and withdrawing the case after
it is filed.36 Plaintiff asserts in conclusion that there is clear and convincing evidence that he meets
all of the legal elements to become a naturalized United States citizen and that USCIS has
constructively agreed by refusing to file an answer pursuant to the Court’s order.37 Plaintiff
requests that the Court retain jurisdiction, as there are no FBI background checks pending.38
C.

USCIS’s Reply in Further Support of the Motion to Remand
In reply, USCIS asserts that it is prepared to issue a decision on Plaintiff’s application for

naturalization within 14 days of an order to remand and noted that any reference to a 21-day period
in prior briefing was incorrect.39 USCIS next argues that none of the cases cited by Plaintiff in
support of a district court’s exclusive jurisdiction over naturalization causes of action suggest that
the Court may not or should not remand.40 According to USCIS, in a Fifth Circuit case relied upon
by Plaintiff, the Fifth Circuit explicitly indicated that it expected the district court to remand the

34

Id. at 10.

35

Id. at 14 (citing Agarwal v. Napolitano, 663 F.Supp.2d (W.D. Tex. 2009)).

36

Id.

37

Id. at 15 (citing Rec. Docs. 1; 10).

38

Id.

39

Rec. Doc. 18 at 1 n.1.

40

Id. at 2.

6

naturalization case to USCIS.41 Thus, USCIS argues, none of the cases cited by Plaintiff undermine
the Court’s authority to remand.42 Moreover, USCIS argues that the issue of exclusive jurisdiction
of the district court is irrelevant to this matter, because in this case, USCIS is not attempting to
dismiss the case for lack of jurisdiction or arguing that the case is moot because of a recently issued
USCIS decision.43 Rather, USCIS asserts that it is moving to remand the case to the agency for
prompt adjudication, as authorized by the statute.44
USCIS further contends that there is no general rule within the Fifth Circuit that a district
court should not remand a naturalization lawsuit once the FBI background checks on a plaintiff
have been completed.45 USCIS argues that none of the three cases Plaintiff cites for this rule
support his proposition.46 In one of those three cases, USCIS asserts that the court denied the
motion to remand without explanation, and in the other two cases, USCIS contends that the district
courts retained jurisdiction because of the government’s lack of assurance as to when a decision
on the application would be made.47 In this case, USCIS argues, it has assured the Court and

41

Id. (citing Walji v. Gonzales, 500 F.3d 432, 437–39 (5th Cir. 2007)).

42

Id.

43

Id. at 3.

44

Id. (citing Etape v. Chertoff, 497 F.3d 379, 387 (4th Cir. 2007); Hua v. Holder, 2012 WL 5363976 (M.D.
La. Oct. 30, 2012)).
45

Id.

46
Id. (citing Hua v. Holder, 2012 WL 5363976 (M.D. La. Oct. 30, 2012); Negam v. U.S., 480 F.Supp.2d 877
(N.D. Tex. 2007); Suarez v. Barrows, 2007 WL 1624358 (N.D. Tex. June 5, 2007)).
47

Id. at 3–4. (citing Hua v. Holder, 2012 WL 5363976 (M.D. La. Oct. 30, 2012); Nagem v. U.S., 480
F.Supp.2d 877 (N.D. Tex. 2007); Suarez v. Barrows, 2007 WL 1624358 (N.D. Tex. June 5, 2007)).

7

Plaintiff that it is prepared to issue a decision within 14 days of remand.48 Overall, USCIS
contends, it is more common for district courts to remand naturalization causes of action than to
retain jurisdiction.49
USCIS next argues that it did in fact file a responsive pleading, i.e. its motion to remand,
to Plaintiff’s request for hearing and therefore did not admit all of the factual allegations in
Plaintiff’s complaint.50 Specifically, USCIS asserts that it did not admit that Plaintiff’s application
for naturalization has been approved.51 USCIS notes that it has already completed substantial work
toward determining whether Plaintiff qualifies for naturalization and will thus be able to issue a
decision within 14 days of remand by the Court.52 USCIS denies that its motion to remand is aimed
at avoiding the payment of attorneys’ fees and costs.53 Rather, USCIS argues that its reasons for
remand include: (1) ensuring prompt adjudication of Plaintiff’s application; (2) allowing USCIS
to apply its expertise; and (3) preserving the Court’s resources, while still allowing Plaintiff to
seek de novo review should he seek to challenge USCIS’s determination.54 USCIS asserts that by
failing to respond to those arguments, Plaintiff has now waived any such response.55

48

Id. at 4.

49

Id. at 4–5 (citing Osman v. Chertoff, No 6:06-506, 2008 WL 750567, at * 2 (E.D. Tex. Mar. 18, 2008)).

50

Id. at 5.

51

Id.

52

Id.

53

Id.

54

Id. at 6.

55

Id. (citing McZeal v. J.P. Morgan Chase Bank, NA, No. 13-6754, 2014 WL 3166715, at *8 n.23 (E.D. La.
July 7, 2014)).

8

III. Law and Analysis
A.

Legal Standard
After an applicant files an application for naturalization with USCIS, it “shall [if not

waived] conduct an investigation of the applicant.”56 Once the investigation is complete, an
applicant must appear before USCIS for an examination.57 The decision to grant or deny the
application must be made within 120 days after the initial examination of the applicant.58 If USCIS
fails to issue a decision within 120 days of the examination, the applicant may ask a district court
to adjudicate the application pursuant to 8 U.S.C. § 1447(b).59 Section 1447(b) provides:
If there is a failure to make a determination [on the application for naturalization]
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 [USCIS] to determine the matter.60
In an opinion construing the term “examination,” the Fifth Circuit held that the 120 days begins to
run after the applicant interview.61
B.

Analysis
As an initial matter, the Court notes that the Plaintiff’s briefing addresses the issue of

whether an application for naturalization can be adjudicated by USCIS after a plaintiff has filed a

56

8 C.F.R. § 335.1. See also 8 C.F.R § 334.2(a).

57

8 C.F.R. § 335.2(a).

58

8 C.F.R. § 335.3(a).

59

Walji v. Gonzales, 500 F.3d 432, 433 (5th Cir. 2007).

60

Id. at 435.

61

See id. at 439.

9

suit pursuant to § 1447(b) or whether, instead, the district court’s jurisdiction is exclusive and
deprives the agency of the power to act.62 However, this issue is not in dispute in this case. After
Plaintiff filed this action, USCIS did not make any decisions regarding Plaintiff’s application for
naturalization.63 Accordingly, the Court need only decide whether to “determine the matter or
remand the matter, with appropriate instructions, to the Service to determine the matter.”64
USCIS argues that remand will ensure the prompt adjudication of Plaintiff’s application;
allow USCIS to apply its statutory expertise in the first instance; and preserve judicial resources.65
USCIS asserts that it is prepared to issue a decision on Plaintiff’s application within 14 days of an
order granting remand.66 Plaintiff argues that USCIS has admitted that Plaintiff’s application
should be approved, because it failed to file an answer to Plaintiff’s complaint.67 Plaintiff also
argues that remand should be denied, because he is entitled to an expeditious determination of his
status and it is “well settled” that district courts within the Fifth Circuit should not remand
naturalization causes of action unless FBI background checks are still pending with USCIS.68
The Court notes that Plaintiff’s motion for entry of default by the Clerk of Court as to
USCIS69 was denied, because USCIS had filed responsive a responsive pleading, i.e. the motion

62

See Rec. Doc. 14 at 6–14; Rec. Doc. 18 at 2.

63

See Rec. Doc. 18 at 3.

64

Otundo v. Gomez, No. 13-4994, 2013 WL 5410470, at *2 (E.D. La. Sept. 25, 2013) (Africk, J.).

65

Rec. Doc. 11-1 at 3, Rec. Doc. 18 at 1.

66

Rec. Doc. 18 at 1.

67

Rec. Doc. 14 at 2.

68

Id. at 1.

69

Rec. Doc. 13.

10

to remand.70 Moreover, although Plaintiff asserts that USCIS failed to file a responsive pleading
within the time period mandated by the Court’s order, the record indicates that USCIS complied
with the Court’s May 2, 2016, order granting USCIS’s request for a 21-day extension of time to
answer.71 In its order granting USCIS’s unopposed request for an extension of time to answer, the
Court instructed USCIS to “process, answer, or otherwise plead to the Request for Hearing on
Application for Naturalization filed by Plaintiff” by May 20, 2016.72 The record indicates that
USCIS filed its motion to remand on May 20, 2016.73 Accordingly, USCIS has “otherwise plead”
to Plaintiff’s request for hearing and has not admitted to the allegations in Plaintiff’s request for a
hearing.74
Turning to the parties’ substantive arguments, USCIS avers that remand will allow a
speedier resolution of Plaintiff’s application,75 while Plaintiff asserts that remand should be denied
pursuant to a general rule that district courts in the Fifth Circuit should not remand naturalization

70

Rec. Doc. 15. See also Fed. R. Civ. P. 55(a) (“When a party against whom a judgment for affirmative relief
is sought has failed to plead or otherwise defend . . . the clerk must enter the party’s default.”).
71

Rec. Doc. 10.

72

Id.

73

Rec. Doc. 11.

74
See Ritts v. Dealers Alliance Credit Corp., 989 F.Supp. 1475, 1480 (N.D. Ga. 1997) (denying entry of
default judgment against plaintiff who had not responded to defendant’s counterclaim and finding that the plaintiff’s
pending motion to remand tolled the plaintiff’s time to respond to the counterclaim). Cf. First Citizens Mun. Corp. v.
Pershing Div. of Donaldson, Lufkin & Jenrette Secs. Corp., 546 F.Supp. 884, 886 n.1 (N.D. Ga. 1982) (noting that
defendants who brought a motion to stay judicial proceedings and compel arbitration pursuant to the Federal
Arbitration Act had not filed answers to the plaintiff’s complaint and acknowledging that federal courts have
traditionally entertained certain types of pre-answer motions not specifically provided for in the Federal Rules of Civil
Procedure) (citing Wright and Miller, Civ. Practice & Procedure § 1360, 634 (“Federal courts . . . traditionally have
entertained certain pre-answer motions that are not expressly provided for the by rules or by statute.”)).
75

Rec. Doc. 11-1 at 1.

11

lawsuits unless FBI background investigations are still pending with USCIS.76 Plaintiff relies on
three district court cases for the proposition that district courts should not remand naturalization
lawsuits when FBI background checks have been completed.77 However, none of the decisions
cited by Plaintiff turned on whether the plaintiff’s background checks had been completed.
In Hua v. Holder, for example, a district judge in the Middle District of Louisiana found
that it had exclusive jurisdiction to determine the naturalization application or to remand and
denied the government’s motion to remand without addressing the status of the plaintiff’s
background checks.78 The Hua court nevertheless confirmed the district court’s statutory
discretion to remand.79 In another case cited by Plaintiff, Suarez v. Barrows, a district judge in the
Northern District of Texas found that it had jurisdiction to hear the plaintiff’s application for
naturalization and denied the government’s motion to remand even though the plaintiff’s
background checks were still pending.80 Finally, in Negam v. U.S., another district judge in the
Northern District of Texas denied the government’s motion to remand where USCIS failed to give
the court or the plaintiff any assurance as to when a decision would be reached.81 Like the court in
Suarez, the district court reached this conclusion even though the plaintiff’s background checks

76

Rec. Doc. 14 at 3.

77

Id. at 5 (citing Hua v. Holder, No. 12-172, 2012 WL 5363976 (M.D. La. Oct. 30, 2012); Suarez v. Barrows,
2007 WL 1624358 (N.D. Tex. June 5, 2007); Negum v. U.S., 480 F.Supp.2d 877, 883–84 (N.D. Tex. 2007)).
78

Hua v. Holder, No. 12-172, 2012 WL 5363976, at *2 (M.D. La. Oct. 30, 2012).

79
Id. (“[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.”).
80

Suarez v. Barrows, 2007 WL 1624358, at *1 (N.D. Tex. June 5, 2007).

81

Negum v. U.S., 480 F.Supp.2d 877, 883–84 (N.D. Tex. 2007).

12

had not been completed.82 None of the cases cited by Plaintiff denied remand because the
background checks had been completed, and in fact the Suarez and Negam courts retained
jurisdiction even though the background checks of the plaintiffs had not been completed.
The Fifth Circuit’s decision in Walji v. Gonzales also undercuts Plaintiff’s assertion that
district courts generally do not remand naturalization applications where background checks have
been completed.83 In Walji, the Fifth Circuit determined that the district court had exclusive
jurisdiction of the plaintiff’s naturalization application.84 However, the Fifth Circuit also noted,
“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 [USCIS] where there should be
no impediment to the prompt resolution of the application.”85
Here, as in Walji, Plaintiff’s interview has been conducted, and his background check has
been completed.86 Moreover, unlike in Suarez and Negam, USCIS has assured the Court that it
will issue a decision within a definite time period—14 days.87 In the interest of the expeditious
resolution of Plaintiff’s application, the Court finds that remand is appropriate.88 Finally, the Court

82

Id.

83

500 F.3d 432 (5th Cir. 2007).

84

Id. at 439.

85

Id.

86

Id. See also Rec. Doc. 11-1 at 2, Rec. Doc. 14 at 3, Rec. Doc. 18 at 4.

87

See Rec. Doc. 18 at 1.

88
See Walji, 500 F.3d at 439; Otundo v. Gomez, No. 13-4994, 2013 WL 5410470, at *2 (E.D. La. Sept. 25,
2013) (Africk, J.) (remanding naturalization application to USCIS where plaintiff’s interview and background checks
had been completed and ordering resolution of the application within two weeks). See also Osman v. Chertoff, No.
6:06-506, 2008 WL 750567, *2 (E.D. Tex. Mar. 18, 2008) (collecting district court cases remanding naturalization
applications to USCIS).

13

notes that Plaintiff contends that USCIS is seeking remand to avoid attorney’s fees,89 but he does
not point to any evidence in the record to support this contention. Although it does not appear that
significant fees have been incurred by Plaintiff before this Court, the Court would be open to
consider granting attorney’s fees in this case. However, the Court finds itself bound by Fifth Circuit
precedent regarding Plaintiff’s lack of “prevailing party” status at this point.90
IV. Conclusion
Pursuant to 8 U.S.C. § 1447(b), the Court has the statutory discretion to either determine
this matter or to remand the matter to USCIS.91 Given the circumstances of this case and in the
interest of the prompt resolution of Plaintiff’s application for naturalization, the Court finds that
remand, with instructions, to USCIS is appropriate.

89

Rec. Doc. 14 at 2.

90

See Othman v. Chertoff, 309 Fed. App’x 792, 794 (2008) (holding that district court’s remand of
naturalization action with instructions that USCIS make a determination by a particular date lacked the “judicial
imprimatur” necessary to confer prevailing-party status on plaintiff) (citing Buckahannon Bd. & Care Co. v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001)).
91

Walji, 500 F.3d at 434 (citing 8 U.S.C. § 1447(b)).

14

Accordingly,
IT IS HEREBY ORDERED that USCIS’s motion to remand is GRANTED.
IT IS FURTHER ORDERED that USCIS shall determine this matter on or before
February 1, 2017.
IT IS FURTHER ORDERED that the above-captioned case is DISMISSED WITHOUT
PREJUDICE.

18th
NEW ORLEANS, LOUISIANA, this ____ day of January, 2017.
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

15