Shweika v. Department of Homeland Security et al
Filing
70
OPINION and ORDER Vacating Agency Decision and Directing Supplemental Briefing. Signed by District Judge Thomas L. Ludington. (Refer to image for briefing schedule) (JCur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MAZEN SHWEIKA,
Plaintiff,
v.
Case No. 09-cv-11781
Honorable Thomas L. Ludington
DEPARTMENT OF HOMELAND SECURITY and
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICE,
Defendants.
_______________________________________/
OPINION AND ORDER VACATING AGENCY DECISION AND DIRECTING
SUPPLEMENTAL BRIEFING
This immigration case began eleven years ago, when Plaintiff Mazen Shweika filed an
application for naturalization as a United States citizen. Three years went by and Defendant
United States Citizenship and Immigration Service (“Service”), the agency within Defendant
Department of Homeland Security tasked with overseeing immigration, did not decide the
application. So Plaintiff filed a mandamus action in this Court. In 2008, the Court remanded the
case to the Service for a decision. The Service held a hearing on Plaintiff’s application,
concluded that he was not of “good moral character,” and denied his application. Plaintiff
requested that the Service hold a “review hearing” pursuant to 8 U.S.C. § 1447(a). Ten more
months passed. Again, the Service did not act on Plaintiff’s request. Plaintiff, all the while,
remained a lawful, fully employed resident of the United States.
In 2009, Plaintiff filed a second suit in this Court, seeking a writ of mandamus ordering
the Service to hold the review hearing or, alternatively, de novo review of his application
pursuant to 8 U.S.C. § 1421(c). Before the Court addressed Plaintiff’s suit, the Service scheduled
the review hearing.
Plaintiff appeared. When the immigration officer began to ask questions on topics not
raised at the first hearing, however, Plaintiff refused to answer and terminated the hearing on the
advice of his (former) counsel. In March 2010, the Service again denied Plaintiff’s application.
Plaintiff then moved for de novo review.
A bench trial was held over three days in 2011. For the reasons explained on the record,
the Court found that Plaintiff demonstrated his “good moral character” by clear and convincing
evidence. The Court reserved judgment, however, on a single legal issue, which the Court
concluded merited supplemental briefing. Noting its continuing duty to ensure that it has
jurisdiction and noting that Plaintiff terminated the Service’s review hearing, the Court ordered
the parties to brief:
Whether, pursuant to 8 U.S.C. § 1421(c) and all applicable statutes and regulations, the
Court lacks jurisdiction to grant Plaintiff’s application for naturalization because Plaintiff
terminated the Defendant’s interview regarding the denial of Plaintiff’s naturalization
application before the immigration officer had completed his examination of Plaintiff.
February 15, 2012 Order, ECF No. 48. The parties submitted supplemental briefs on the issue.
See Supp. Briefs, ECF Nos. 49–52.
On March 27, 2012, the Court issued an Opinion on the issue of subject matter
jurisdiction. Because Shweika did not complete his 8 U.S.C. § 1447 review hearing, the Court
concluded that it did not have jurisdiction over his appeal. Shweika’s case was dismissed with
prejudice.
Shweika appealed. The Sixth Circuit held that 8 U.S.C. § 1421(c) does not impose a
jurisdictional limitation and vacated this Court’s opinion. Shweika v. Dep’t of Homeland Sec.,
723 F.3d 710, 711 (6th Cir. 2013). The statutory limitation, the Sixth Circuit concluded, is
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merely prudential, of the administrative-exhaustion variety. Id. The Sixth Circuit remanded
Shweika’s case for proceedings consistent with its opinion.
I.
Plaintiff was born in Jordan in 1962. Having trained abroad as doctor, he moved to this
country and became a certified nurse anesthesiologist. Since 1998, Shweika has been a lawful
permanent resident. In 2004, he filed an application for naturalization with the Service. About
three years passed without the Service completing its review of the application.
A.
On February 27, 2007, Plaintiff filed suit in this Court. He requested a writ of mandamus
directing the Service to complete its review. The Service attributed the delay in processing
Plaintiff’s application to the FBI, which had not completed the required background check.
In February 2008, the Court remanded the case to the Service and ordered it to reach a
determination on Plaintiff’s application on or before May 30, 2008. Shweika v. Cannon, Case
No. 07-10870 (E.D. Mich. Feb. 29, 2008) (unpublished). The Service did, denying Plaintiff’s
application on May 29, 2008. According to the Service, it did so because of Plaintiff’s inability
to provide a certified disposition of an arrest that occurred in Virginia some years earlier.
Plaintiff filed a notice of administrative appeal (a “form N-336”) in June 2008 requesting
a “review hearing” pursuant to § 1447(a). He explained that he submitted a photocopy of the
arrest record, but could not provide a certified copy because he was acquitted of the charges and
the records relating to the case were expunged. Ten more months passed and the Service did not
complete its review of the application.
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B.
In May 2009, Plaintiff again filed suit in this Court. He asked the Court to compel the
Service to decide the pending petition for naturalization or, alternatively, to grant Plaintiff a de
novo hearing in this Court. See Pl.’s Compl. 5, ECF No. 1. Shweika was “willing to stipulate
denial by [the Service]” so that the Court could conduct a de novo hearing. Id.
In January 2010, the Service moved to dismiss or remand. See Defs.’ Mot. to Dismiss or
Remand, ECF No. 13. The Agency argued that that mandamus relief was not warranted and, in
any event, the Court lacked subject matter jurisdiction because Plaintiff has not exhausted his
administrative remedies.
On February 9, 2011, the Court granted the Service’s motion in part and denied it in part.
Shweika v. Dep’t Homeland Security, No. 09-11781, 2010 WL 457457 (E.D. Mich. Feb. 9,
2010). Observing that a hearing on Plaintiff’s petition was scheduled to take place two days later,
on February 11, 2010, the Court explained:
[M]andamus relief is unnecessary. It is understandable that Plaintiff is anxious for
the hearing to take place—more than five years have passed since his application
for naturalization was submitted. Additionally, more than eighteen months have
passed since Plaintiff requested the § 1447(a) hearing by submitting a form N336. According to USCIS regulations, the hearing should have taken place within
180 days of the request. The USCIS has, admittedly, not complied with that
deadline. However, it is not clear that the 180-day deadline is a firm,
nondiscretionary mandate, rather than an intra-agency goal. The Mandamus Act is
only available to enforce mandatory duties. . . . At some point, unreasonable delay
may warrant mandamus relief, but that point has not been reached here.
Nevertheless, given the substantial delays that have occurred in this case and the
approaching administrative hearing, it is not necessary to dismiss Plaintiff’s
complaint entirely. Following next week’s hearing, Plaintiff’s naturalization
application will be ready for review by this Court.
2010 WL 457457, at *2.
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C.
On February 11, 2010, Plaintiff appeared for the scheduled review hearing. Immigration
Officer Ian Modelski conducted the hearing. After a series of questions on various innocuous
topics, the conversation eventually turned to allegations made by Plaintiff’s former wife,
Angeline Jacobsen. Officer Modelski asked a number of questions about the couple’s
relationship, living arrangements, finances, and the like. He then asked: “she also said that when
you—when you’d get upset that you would throw things, break things, is that something you
did?” Agency Review Hr’g Tr. 37–38, Feb. 11, 2010, attached as Defs.’ Tr. Ex. N (“Hr’g Tr.”).
Plaintiff’s counsel interjected that he needed to speak to his client privately. He informed Officer
Modelski “[we are] most likely gonna stop the interview.” Hr’g Tr. 38. Going back on the record
a short time later, Plaintiff’s counsel explained (sic to transcript throughout):
Counsel: Officer Modelski I believe the interview is going way beyond the
interview required for citizenship. . . . Ah, at this point unless you
wanna interview on the naturalization petition, ah, we respectfully will
ask you to stop the interview.
Officer:
Well, I see a connection. . . . [I]t appears that he misrepresented the
fact that he had been arrested, ah, that this then precluded a full
examination of, of potential issues that would have been examined in
some fashion or other that is legitimate. This relates to good moral
character.
Counsel: No, we, we came here in good faith, because right now there’s an
order of the United States District Court for no discovery by either
side, which means you can’t even interview him unless we voluntarily
want to interview. . . .
Officer, ah, Modelski [you] did indicate to me earlier, right in the
beginning, that you did receive a copy of that order from the court, so
you are very well aware that discovery is — in this case, is extremely
limited. And I believe you’re interviewing him way beyond a
naturalization application. What somebody said, what’s the
credibility? You have not given us an affidavit or any under oath
statement from this person who is his ex-wife, and now suddenly he
has to answer every question . . . .
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I think it’s, it’s just not applicable. It’s not relevant. . . .
Officer:
[W]hether it, whether it’ll turn out to be a positive or negative factor I
don’t know yet at this point. . . .
Counsel: O—obviously, I mean, if you have the pre-assumption to deny this
then obviously—
Officer:
[inaudible]
Counsel: —it’s gonna go to a court, court—
Officer:
—[I] don’t have a preexisting—
Counsel: —and then court, you can—you know, in the court—
Officer:
If I had a pre-assumption I would say this is what she said and this is
what I believe and—
Counsel: This gentleman is a doctor. He has a medical degree from Russia. He
just didn’t do the certification here and now he works as a, as a,
physician assistant or research assistant anesthesiologist. He is in a
responsible position in this country for some 18 years and here he has
to answer these questions to get his citizenship, which has been
pending for six years, 2004 he filed. And court is very annoyed that
the government is not able to complete his adjudication in six years.
Officer:
Well, that’s why the government is asking these questions, to try to
complete—
Counsel: All right. Ah, again, once again, respectfully, ah, we’ll stop the
interview unless you wanna ask any question out of the N400
application or N336, which is the only subject we are here for. . . .
Officer:
Anything that happened during the statutory period relates to the
N400. Anything that happened after the filing of the N400 is also
relevant. . . .
Both speaking at once
Counsel: —from what date, today going back five years?
Officer:
—no, the statutory period began five years before he filed the
application. That’s what he wanted the hearing about—
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Counsel: No, I believe that the statutory period—
Both speaking at once
Officer:
—saying that he [inaudible] did have good moral character—
Counsel: —I believe the statutory period, period has to be counted from today.
When the government has delayed this application for six years it’s
almost — you waive that right to go back five years beyond the
application of, of filing. But again, there’s no point us arguing, you
know? You — government’s got their attorneys, they can argue their
points, they got very high quality attorneys, U.S. attorneys, ah,
working on this case. . . . But I—we almost believe that this court—
this case will go to court. There’s no way that—and in fact, our
pleadings when we filed a complaint we said we concede the fact that
you’re going to deny it. And I—you know, we’re even willing to
concede, because we know you’re gonna deny it . . . .
This gentleman’s a working person, medical field, serving people,
doing on patient what he needs to do every day, working with doctors
in the hospital. And for [you] to say that he’s not a reformed person
after 12 years, he’s not this, I mean, we can come up with many
reasons. If it goes to court, it goes to court. That’s what we are here
for. But we are, again, respectfully, if you wanna interview on N400,
N336 to the extent, that’s reasonable and relevant. We’ll go forward
with it. Otherwise we’ll just have to stop and go, ah—let it go to court.
Hr’g Tr. 38–43. When the officer attempted to inquire further about Plaintiff’s former spouse,
Plaintiff’s counsel terminated the interview.
D.
On March 25, 2010, USCIS denied Plaintiff’s appeal of his naturalization application.
The decision explained:
Your refusal to answer the reviewing officer’s questions left additional areas of
your conduct and your character unexplored. Additionally, “immigration officials
may draw a negative inference from a naturalization applicant’s silence.” You
have therefore failed to establish that you satisfy all of the requirements for
naturalization, particularly regarding the need to demonstrate good moral
character and lawful admission as a permanent resident.
Title 8 Code of Federal Regulations, Section 335.7 provides guidance in this
situation:
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An applicant for naturalization who has appeared for the
examination on his or her application as provided in 8 CFR 335.2
shall be considered as failing to prosecute such application if he or
she, without good cause being shown, either failed to excuse an
absence from a subsequently required appearance, or fails to
provide within a reasonable period of time such documents,
information, or testimony deemed by the Service to be necessary to
establish his or her eligibility for naturalization. The Service shall
deliver notice of all such requests for appearance or supporting
evidence, in writing, to the applicant either in person or to the
applicant’s last known address. In the event that the applicant fails
to respond within 30 days of the date of notification, the Service
will adjudicate the application on the merits pursuant to Section
336.1 of this chapter.
Whenever any person makes an application for naturalization, the burden of proof
shall be upon such person to establish satisfaction of all the requirements to be
naturalized as a citizen of the United States as quoted above in section 316.2 of
Title 8 of the Code of Federal Regulations. Your unwillingness to submit required
documentary and oral testimony is deemed to be a failure to prosecute this
application. The incomplete record fails to establish your fulfillment of the
requirements for naturalization, including those of good moral character, as
specified in section 316(a)(3); the five years of lawful residence as specified in
section 316(a)(1) and 318; and the continuous physical presence as specified in
section 316(a)(2) of the Immigration and Nationality Act. You have not met your
burden of proof. The denial of your Form N-400 is hereby affirmed.
This decision is made without any prejudice to your right to seek review in
accordance with section 310 of the Immigration and Nationality Act [8 U.S.C. §
1421].
Defs.’ Resp. Mot. for Evidentiary Hr’g Ex. 1, at 6–7, ECF No. 20-2 (internal citation omitted).
Quoting § 310 of the Immigration and Nationality Act in a footnote, the decision noted:
A person whose application for naturalization under this subchapter is denied,
after a hearing before an immigration officer under section 1447(a) of this Title,
may seek review of such denial before the United States district court for the
district in which such person resides in accordance with chapter 7 of title 5. Such
review shall be de novo, and the court shall make its own findings of fact and
conclusions of law and shall, at the request of the petitioner, conduct a hearing de
novo on the application.
Id. at 7 n.1 (quoting 8 U.S.C. 1421(c)).
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E.
In March 2010, Plaintiff moved in this Court for a de novo review of USCIS’s decision.
See Pl.’s Mot. for Evidentiary Hr’g, ECF No. 18. The Agency responded that discovery was
necessary first because USCIS has “attempted to collect evidence on issues relating to Plaintiff’s
good moral character through the administrative process; however, Plaintiff has not provided
evidence in response to [USCIS’s] requests, and he refused to answer questions at his appeal
hearing on these issues and prematurely terminated the hearing.” Defs.’ Resp. 10. The Agency
also asserted that “there is good authority that applicants who fail to comply with requests for
information and documents in their naturalization proceedings have not adequately exhausted
their administrative remedies, and therefore, have not satisfied the prerequisites for establishing
subject matter jurisdiction under 8 U.S.C. § 1421(c).” Id. at 10 n.3 (citing Johnson v. Bergland,
614 F.2d 415, 417–18 (5th Cir. 1980); Omari v. Gonzalez, No. 3:05-cv-0397-P, 2005 WL
2036498, at *4 (N.D. Tex. Aug. 11, 2005)).
F.
In April, the Court granted the motion for an evidentiary hearing. See April 28, 2010
Order, ECF No. 22. Before the hearing began on June 21, 2011, however, the parties informed
the court that a witness that both parties intended to call, Ms. Jacobsen, was unavailable to
testify. At the conclusion of the proofs, Plaintiff moved for a continuance pending Ms.
Jacobsen’s availability. The motion was granted.
The trial resumed on August 30, 2011. At the conclusion of the proofs, the Court found
that Plaintiff had met his burden of proof and demonstrated his “good moral character” by clear
and convincing evidence. The Court reserved judgment, however, on a single legal issue, which
the Court concluded merited supplemental briefing:
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Whether, pursuant to 8 U.S.C. § 1421(c) and all applicable statutes and
regulations, the Court lacks jurisdiction to grant Plaintiff’s application for
naturalization because Plaintiff terminated the Defendant’s interview regarding
the denial of Plaintiff’s naturalization application before the immigration officer
had completed his examination of Plaintiff.
Order Incorporating Findings of Fact and Law and Ordering Supp. Briefing, at 2, ECF No. 48.
The parties briefed the issue. Defendants argued that the Court lacked subject matter jurisdiction
to hear Shweika’s appeal. Shweika opposed this conclusion.
G.
The Court ruled on the issue of subject-matter jurisdiction on March 27, 2012. See Op. &
Order, ECF No. 53. The opinion explained that the hearing requirement in 8 U.S.C. § 1421(c)
necessitated that the applicant complete the hearing and that the applicants having cmoplied with
the statute was a necessary condition to this Court’s exercise of jurisdiction. That is, that
Congress did not consider the hearing optional, but necessary to this Court’s exercise of
jurisdiction. Because Shweika did not complete his hearing under 8 U.S.C. § 1447, the Court did
not have jurisdiction under § 1421(c) to hear his appeal. Accordingly, judgment was entered
dismissing the case. Shweika timely appealed.
II.
A.
The Sixth Circuit issued an opinion on Shweika’s appeal on July 25, 2013. See Shweika
v. Dep’t of Homeland Sec., 723 F.3d 710 (6th Cir. 2013). The court, facing an issue of first
impression in the circuit, held that the completion requirement found in 8 U.S.C. §1421(c) is not
jurisdictional. Id. at 717. Rather, it is a “claim-processing rule” of the “administrativeexhaustion” type. Id. at 716. The Sixth Circuit recognized that a regulation states that “[a] USCIS
determination denying an application for naturalization under section [§ 1446] of the Act shall
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not be subject to judicial review until the applicant has exhausted those administrative remedies
available to the applicant under section [§ 1447] of the Act.” 8 C.F.R. § 336.9. But the court
concluded that the regulation is not entitled to deference insofar as it purports to delimit the
scope of federal court jurisdiction under § 1421(c). Id. at 717-719. Consequently, the regulation
was to be accorded no particular significance in addressing the question of whether § 1421(c)’s
completion requirement is jurisdictional. It is not. Id. at 719.
The court then proceeded to provide some guidance as to what this Court should consider
on remand. The Sixth Circuit explained that “[n]otwithstanding our conclusion that 8 U.S.C. §
1421(c)'s administrative-hearing requirement is nonjurisdictional, it does not follow that Shweika
was thereby free to disregard the requirement, if in fact he did so.” Id. at 719-20. Thus, on
remand, this Court must “reconsider whether § 1421(c)’s administrative-hearing requirement
implies a completion requirement; whether Shweika satisfied § 1421(c)’s administrative-hearing
requirement; and, if he did not, what nonjurisdictional consequences attach to the failure to
satisfy § 1421(c)’s administrative-hearing requirement.” Id. at 720. The Sixth Circuit noted,
instructively, that “[f]or example, the district court may consider whether statements in USCIS’s
order affirming the denial of Shweika’s application for naturalization amount to a concession by
USCIS that Shweika exhausted his administrative remedies.” Id. at 720 n.7.
B.
After the Sixth Circuit returned the mandate in this case, the case was reopened and
supplemental briefing was ordered from the parties. The order directing supplemental briefing
instructed the parties to “address their understanding of the Sixth Circuit’s direction, and also
argument for how they believe the Court should proceed.” Order Reopening Case & Directing
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Supp. Briefing, ECF No. 61. The parties filed their supplemental briefs and the case is ripe for
adjudication.
III.
The first step on remand, according to the Sixth Circuit, is to reconsider whether
§ 1421(c) implies a requirement that the applicant not only begins the administrative hearing but
actually complete it as well. While this Court has already concluded that § 1421(c) does require
completion of a § 1447 review hearing, that conclusion is, of course, not mandated on remand.
Furthermore, the posture of this case is such that the question is moot. The Service has
conclusively represented that Shweika’s application was denied and his interview complete, the
conditions precedent to review under § 1421(c). Because the Service outright denied Shweika’s
application the Service conceded the completion of the hearing and denied Shweika’s
application. Even if the Service can be said to not have conceded Shweika’s completion of a
§ 1447 hearing, remand for further factual findings is inappropriate. The administrative
exhaustion requirement, as the Sixth Circuit has held, is only a prudential barrier to review by the
federal courts. As such, it may be disregarded where good cause exists to do so.
A.
The first question to be addressed is whether Shweika completed his § 1447 review
hearing. If he did, then there is no need to examine what consequences follow from noncompletion. Previously, the Court held that Shweika had not completed his hearing and,
consequently, the Court did not have jurisdiction to hear his appeal. See March 27, 2012 Op. &
Order, ECF No. 53. That opinion was reversed by the Sixth Circuit and vacated on remand. See
Shweika v. Dep’t of Homeland Sec., 723 F.3d 710, 711 (6th Cir. 2013). The Court thus reviews
the question anew.
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The parties have presented differing views over whether Shweika actually completed the
review hearing. Plaintiff argues that the only requirement 8 U.S.C. § 1421(c) poses is an
attendance requirement. See Pl.’s Supp. Br., ECF No. 65. As long as an applicant’s naturalization
application is denied following the § 1447 hearing, the applicant has exhausted his administrative
remedies and a court may review the denial. Id. Furthermore, Plaintiff contends that the Service
has conceded, on multiple occasions, that its denial of Shweika’s application was final and that,
by implication, he had completed the § 1447 hearing. Id.
The Service argues to the contrary that 8 U.S.C. § 1421(c), even if non-jurisdictional,
imposes a firm completion requirement which Shweika did not meet. See Defs.’ Supp. Br., ECF
No. 64. The Service urges the Court to deny Shweika’s application on this basis. Id. In the
alternative, it seeks to have Shweika’s application remanded so that he may complete the § 1447
hearing as required by § 1421(c). Id.
The Service, however, conclusively denied Shweika’s application for naturalization.
Under the administrative naturalization scheme the Service had other recourse than outright
denying his application if it concluded that Shweika withheld important testimony. As the
Service explained in its denial letter to Shweika, it possibly could have availed itself of the
procedures in the regulations that govern situations where an applicant does not furnish sufficient
evidence in support of his application. Further, the Service could have withheld adjudication of
Shweika’s request for a review under 8 U.S.C. § 1447. Regardless of the possibilities available to
the Service they were well within their right to affirm the denial of Shweika’s application, which
they did. Upon doing so, they also affirmed Shweika’s statutory right to enter federal court and
seek to have the denial of his application overturned. The Service cannot now change that
position.
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1.
Title 8 C.F.R. § 335.2 provides that “[s]ubsequent to the filing of an application for
naturalization, each applicant shall appear in person before a USCIS officer designated to
conduct examinations pursuant to 8 CFR 332.1.” 8 C.F.R. § 335.2. If the applicant “complie[s]
with all requirements for naturalization” the Service “shall grant the application.” 8 C.F.R. §
335.3(a). The application shall be granted or denied at the time of the initial examination “or
within 120-days after the date of the initial examination of the applicant for naturalization under
§ 335.2.” Id. If, however, the Service believes there are deficiencies in the application, it “may
continue the initial examination on an application for one reexamination, to afford the applicant
an opportunity to overcome deficiencies on the application that may arise during the
examination.” 8 C.F.R. § 335.3(b). Should the Service use this option, it “must inform the
applicant in writing of the grounds to be overcome or the evidence to be submitted.” Id. The
Service can require that the applicant reappear for examination, but not “earlier than 60 days
after the first examination” and not later than the end of the “120-day period after the initial
examination.” Id. “If the applicant is unable to overcome the deficiencies in the application, the
application shall be denied pursuant to § 336.1 of this chapter.” Id.
If an applicant, appearing for either initial examination, should fail to furnish evidence
“deemed by USCIS to be necessary to establish his or her eligibility for naturalization,”
including evidence in the form of testimony, the applicant “will be considered as failing to
prosecute [his] application” for naturalization. 8 C.F.R. § 335.7. In such a circumstance, the
Service “will deliver notice of requests for appearance or evidence as provided in 8 CFR 103.8.”
Id. If the applicant does not respond to that notice, “the application shall be decided on the merits
unless the Attorney General dismisses it for lack of prosecution.” 8 U.S.C. § 1446(e).
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If the Service denies an application, the applicant may “accept the determination of the
examining officer, or request a hearing before an immigration officer.” 8 C.F.R. § 336.1. A
request for hearing must be filed “within thirty days after the applicant receives the notice of
denial.” 8 C.F.R. § 336.2. The Service must “schedule a review hearing, within a reasonable
period of time not to exceed 180 days from the date upon which the appeal is filed.” 8 C.F.R. §
336.2.1 The regulations outline the authority of the reviewing officer to collect evidence and
determine the scope of the hearing:
The reviewing officer will have the authority and discretion to review the
application for naturalization, to examine the applicant, and either to affirm the
findings and determination of the original examining officer or to re-determine
the original decision in whole or in part. The reviewing officer will also have the
discretion to review any administrative record which was created as part of the
examination procedures as well USCIS files and reports. He or she may receive
new evidence or take such additional testimony as may be deemed relevant to the
applicant’s eligibility for naturalization or which the applicant seeks to provide.
Based upon the complexity of the issues to be reviewed or determined, and upon
the necessity of conducting further examinations with respect to essential
naturalization requirements, such as literacy or civics knowledge, the reviewing
immigration officer may, in his or her discretion, conduct a full de novo hearing
or may utilize a less formal review procedure, as he or she deems reasonable and
in the interest of justice.
8 C.F.R. § 336.2. As noted above, the reviewing officer has plenary authority of review. That is,
he or she may completely re-determine the application. In Shweika’s case, the reviewing officer
affirmed the initial denial of his application.
“A person whose application for naturalization under this subchapter is denied, after a
hearing before an immigration officer under section 1447(a) of this Title, may seek review of
such denial before the United States district court for the district in which such person resides in
accordance with chapter 7 of title 5.” 8 U.S.C. § 1421(c). Shweika’s application was denied and
he petitioned the Court for review.
1
When Shweika requested an appeal hearing the Service did not timely conduct the hearing.
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While this framework applies to all applications for naturalization, there are a few
problems with how this regulatory and statutory framework applies to Shweika’s case. First, the
Service applied seemingly inappropriate regulatory standards to Shweika’s review hearing.
Based on the regulatory standards the Service did apply, however, the Service would still be
estopped from challenging Shweika’s completion because it did not employ the available
regulatory remedies for when an applicant fails to provide evidence. Second, even examining
what appears to be the appropriate regulatory standard through which Shweika’s review hearing
should be reviewed, the Service still can be said to have represented that Shweika’s hearing was
complete and amenable to federal court review.
i.
The Service, by its own admission in its notice of denial to Shweika, conducted the
8 U.S.C. § 1447 hearing as an examination under 8 C.F.R. § 335.2. In its notice of denial, the
Service explained:
Your refusal to answer the reviewing officer’s questions left additional areas of
your conduct and your character unexplored. Additionally, “immigration officials
may draw a negative inference from a naturalization applicant’s silence.” You
have therefore failed to establish that you satisfy all of the requirements for
naturalization, particularly regarding the need to demonstrate good moral
character and lawful admission as a permanent resident.
Title 8 Code of Federal Regulations, Section 335.7 provides guidance in this
situation:
An applicant for naturalization who has appeared for the
examination on his or her application as provided in 8 CFR 335.2
shall be considered as failing to prosecute such application if he or
she, without good cause being shown, either failed to excuse an
absence from a subsequently required appearance, or fails to
provide within a reasonable period of time such documents,
information, or testimony deemed by the Service to be necessary to
establish his or her eligibility for naturalization. The Service shall
deliver notice of all such requests for appearance or supporting
evidence, in writing, to the applicant either in person or to the
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applicant’s last known address. In the event that the applicant fails
to respond within 30 days of the date of notification, the Service
will adjudicate the application on the merits pursuant to Section
336.1 of this chapter.
Whenever any person makes an application for naturalization, the burden of proof
shall be upon such person to establish satisfaction of all the requirements to be
naturalized as a citizen of the United States as quoted above in section 316.2 of
Title 8 of the Code of Federal Regulations. Your unwillingness to submit required
documentary and oral testimony is deemed to be a failure to prosecute this
application. The incomplete record fails to establish your fulfillment of the
requirements for naturalization, including those of good moral character, as
specified in section 316(a)(3); the five years of lawful residence as specified in
section 316(a)(1) and 318; and the continuous physical presence as specified in
section 316(a)(2) of the Immigration and Nationality Act. You have not met your
burden of proof. The denial of your Form N-400 is hereby affirmed.
This decision is made without any prejudice to your right to seek review in
accordance with section 310 of the Immigration and Nationality Act [8 U.S.C. §
1421].
Defs.’ Resp. Mot. for Evidentiary Hr’g Ex. 1, at 6–7, ECF No. 20-2 (internal citation omitted).
Although the Service cites to 8 C.F.R. § 335.2 it does not represent that it ever availed itself of
the notice procedure. Whether that procedure is required by the regulation is inconsequential
because the Service proceeded to the merits of Shweika’s application as directed by § 335.2.
Importantly, the Service did not utilize the § 335.2 procedure because, presumably, the Service
did not “consider” the information to be material.
Ultimately, if the Service understood Shweika to be withholding testimony it had
recourse to different statutory and regulatory remedies short of denying his application on the
merits or, at least, before denying his application on the merits. First, the Service could have
issued a notice under 8 C.F.R. § 335.7 requesting the evidence Shweika was withholding. If and
when Shweika declined to provide that evidence, the Service could have then denied his
application. Second, the Service could have continued Shweika’s initial examination under
8 C.F.R. § 335.3. In doing so the Service could have informed Shweika that the continued
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examination would concern the subject of his withheld testimony. Again, if and when Shweika
declined to provide that testimony at the continued hearing, the Service could have then denied
his application. Third, the Service had the option of combining the two approaches. This is, first
continuing the examination under 8 C.F.R. § 335.3 and, when Shweika again withheld
testimony, issuing him a notice under 8 C.F.R. § 335.7. Then, to repeat, the Service could have
denied his application on the merits. Lastly, the Service could have done one or both of the
above (or, possibly neither) and instead of denying Shweika’s application, dismissed it for lack
of prosecution under 8 U.S.C. § 1446(e).
It is important that the Service did not avail itself of any of these options. Instead, it
informed him that his withheld testimony permitted the Service to draw a negative inference
from his silence and it denied his application. According to the Service’s notice of denial, it
denied Shweika’s application in accordance with the regulations governing a failure to prosecute
for lack of evidence provided by an applicant. It was then that Shweika appealed.
ii.
The Service’s approach is problematic. This is because the denial of an application after
an applicant’s examination under 8 C.F.R. § 335.2 does not entitle an applicant to enter federal
court. If an applicant does not provide necessary evidence during a § 335.2 examination, the
Service may draw a negative inference from the absence of evidence and must adjudicate the
application on the merits. If and when the Service denies the application under § 335.7 following
a failure to prosecute under § 335.2, the Service must alert the applicant to his right to request a
review hearing under 8 C.F.R. § 336.2. A hearing under § 336.2 is identical to the statutory
review hearing under the statutory 8 U.S.C. § 1447.
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The complication is evident. The Service affirmed its prior denial of Shweika’s
application when he refused to answer questions following an 8 U.S.C. § 1447 review hearing.
The Service only conducted that hearing because it had denied Shweika’s application under 8
C.F.R. § 335.7 without an oral examination. Thus, the Service’s citation to 8 C.F.R. § 335.2 and
§ 335.7 in Shweika’s denial letter is at odds with the regulatory and statutory scheme. That is, the
statutory requirement for a review hearing found at 8 U.S.C. § 1447 is encoded in the regulations
at 8 C.F.R. § 336.2, not § 335 and its subsections. So it is not clear that the Service is able to
claim that Shweika failed to prosecute his application by not providing full testimony during a
review hearing under 8 U.S.C. § 1447 and 8 C.F.R. § 336.2, still deny the application, but then
claim the applicant has not exhausted administrative remedies. Nothing in the regulatory or
statutory framework provides that option. That option is only available during the initial review
of an application and initial examination of an applicant before a merits determination is made.2
Similarly, it is not clear from the regulatory or statutory framework what recourse the
Service has if an applicant does not fully participate in a review hearing. But nothing compels
that the Service decide the appeal. In fact, the text of the regulations indicates a plenary power of
the Service to seek testimony from the applicant:
The reviewing officer will have the authority and discretion to review the
application for naturalization, to examine the applicant, and either to affirm the
findings and determination of the original examining officer or to re-determine
the original decision in whole or in part. The reviewing officer will also have the
discretion to review any administrative record which was created as part of the
examination procedures as well USCIS files and reports. He or she may receive
new evidence or take such additional testimony as may be deemed relevant to the
applicant’s eligibility for naturalization or which the applicant seeks to provide.
2
It is possible that the Service could have deemed Shweika’s application withdrawn under 8 U.S.C. §
1446(e). But that option also does not appear to apply to 8 U.S.C. § 1447 review hearings.
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8 C.F.R. § 336.2. Presumably, then, a refusal by the applicant to provide testimony would
prevent the completion of the review hearing if the examining officer determined the testimony
was necessary to adjudicating the application. If an applicant did not comply with questioning, as
Shweika did not, the reviewing officer can conclude that the hearing remains incomplete since
the applicant is impeding his or her ability to “receive new evidence or take such additional
testimony as may be deemed relevant to the applicant’s eligibility for naturalization or which the
applicant seeks to provide.” Id. At that point, the reviewing officer may also determine that
“upon the necessity of conducting further examinations” the appeal of the application’s denial
cannot be resolved following an incomplete hearing. 8 C.F.R. § 336.2.
This approach would lead to systemic uniformity with 8 U.S.C. § 1421(c). The statute
provides that
A person whose application for naturalization under this subchapter is denied,
after a hearing before an immigration officer under section 1447(a) of this Title,
may seek review of such denial before the United States district court for the
district in which such person resides in accordance with chapter 7 of title 5.
8 U.S.C.A. § 1421(c). It would be at odds with the regulatory scheme if the Service could
conclusively deny an application, giving the applicant no further recourse to review, but then bar
the applicant from entering federal court because the Service did not obtain all the evidence it
sought. The very fact that the statutes and regulations governing naturalization applications
provide the Service with methods to remedy evidentiary deficiencies that do not include denial
on the merits means that a merits denial by the Service after a § 1447 hearing must concede
completion of that hearing.
The Service has, potentially, numerous ways to seek evidence from a reluctant applicant.
Many, if not all of those include withholding a merits determination. None were used here. The
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Service affirmed its prior denial of Shweika’s application on the merits following his § 1447
hearing.
iii.
For reasons not explained in the record, the Service applied the 8 C.F.R. § 335
regulations to Shweika’s 8 U.S.C. § 1447 review hearing. Whether it was appropriate for the
Service to do so is a question that need not be conclusively resolved in this opinion. It is simply
worth noting, as was done above, that the Service’s decision to apply those regulations to
Shweika’s review hearing appears in conflict with the regulatory and statutory framework for
naturalization applications. What the prior two sections explain, though, is that regardless of how
the Service’s approach to Shweika’s hearing is construed under the regulations, it denied his
application and conceded that his administrative remedies had been exhausted and his
application was ripe for appeal.
Because the Service has conceded that Shweika completed his hearing, the slightly more
metaphysical question of whether Shweika actually completed the 8 U.S.C. § 1447 hearing need
not be addressed. Also, the question of whether Shweika exhausted his administrative remedies
need not be entertained. Judgment will be entered consistent with the determination on the record
that Shweika meets the good moral character requirements for citizenship based on the subjects
entertained at the evidentiary hearing. This does not mean, however, that Shweika’s application
for naturalization is granted. As explained below, supplemental briefing is required in light of the
representations made on remand by the Service concerning Shweika’s application.
2.
Some attention should be given to the prudential concerns that the Service raises in
response to the approach adopted above. The Service argues that not remanding Shweika’s case
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to force him to complete his hearing would eviscerate the administrative review process for
naturalization applications. All one would need to do, the Service’s argument runs, is file an
application, rebuff any attempts by the Service at gathering evidence, then appeal to federal court
when the Service inevitably denies his or her application. This argument is flawed.
First, it is not clear, and the Service presents no arguments to the point, that applicants
proceeding directly to a federal judicial forum is preferable to them first being subject to agency
review. It would not be quicker, as the naturalization statutes and regulations would still impose
the governing review timetables. Thus, federal judicial review would not provide a more timely
resolution to applicants. There is also no argument by the Service that the federal courts are more
sympathetic to applicants. Even if that were true, applicants have a right to federal judicial
review of their application. Why they would desire to reach that forum sooner is left unexplained
by the Service.
Second, based on the statutory framework and the facts of this case, not remanding
Shweika’s case would not have adverse precedential implications. In future cases where an
applicant does not complete a § 1447 hearing the Service is not required to deny the application,
but rather may avail itself of the statutory and regulatory procedures available when evidence
provided by an applicant is insufficient. As a result, the applicant may seek a mandamus order
from a federal court that requires the Service issue a decision, at which point the Service could
defend its non-issuance of an appeal decision on the basis of the applicant’s failure to provide
testimony. Whatever the case may eventually be, the Service cannot deny an application on the
merits, as it has done here, then argue that the review process has not been completed.
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B.
Assuming, without deciding, that Shweika did not exhaust his administrative remedies, it
would still not be appropriate to remand to the Service for a full review hearing. An
administrative exhaustion requirement, as explained by the Sixth Circuit, is a non-jurisdictional
predicate to federal court review. Shweika v. Dep’t of Homeland Sec., 723 F.3d 710, 716 (6th
Cir. 2013). Thus, being non-jurisdictional, it operates only as a prudential barrier to a district
court hearing a naturalization appeal. See Perkovic v. I.N.S., 33 F.3d 615, 619 (6th Cir. 1994)
(holding that exhaustion requirements not written into the text of a statute are prudential, not
jurisdictional). In general, courts should decline agency appeals where administrative remedies
have not been exhausted. See Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007). The Ninth
Circuit has identified three factors a court should consider when deciding whether prudential
exhaustion should be enforced:
[C]ourts . . . may still require exhaustion if: (1) agency expertise makes agency
consideration necessary to generate a proper record and reach a proper decision;
(2) relaxation of the requirement would encourage the deliberate bypass of the
administrative scheme; and (3) administrative review is likely to allow the agency
to correct its own mistakes and to preclude the need for judicial review.
United States v. California Care Corp., 709 F.2d 1241, 1248 (9th Cir. 1983) (citing McGee v.
United States, 402 U.S. 479, 484 (1971); McKart v. United States, 395 U.S. 185, 193–95
(1969)).
As a result, there are circumstances where a court may disregard prudential barriers to
administrative appeals. A court may disregard prudential exhaustion concerns when “the legal
question is ‘fit’ for resolution and delay means hardship or when exhaustion would prove
‘futile.’” Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 12-13 (2000) (internal
citations omitted).
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None of the prudential concerns animating the administrative exhaustion requirement are
present in Shweika’s appeal. The Service was given ample opportunity to examine Shweika’s
application and did so with respect to all of the evidence Shweika presented save his testimony
on the past domestic incident in question. The Service does not explain how its specific expertise
in matters of naturalization would be brought to bear on that particular issue. Indeed, no
compelling rationale can be conceived. Second, relaxing the requirement in this case would not
encourage bypass of the naturalization process. Indeed, Shweika never evinced an intent to
bypass the Service’s procedures. Rather, he policed the Service’s statutory and regulatory
deadlines more closely than the Service. Both times he entered federal court prior to his
evidentiary hearing it was to compel the Service to act, not to convince the Court that the agency
process should be bypassed. Furthermore, Shweika would be bypassing the administrative
scheme only with respect to limited testimony during a § 1447 review hearing. Allowing
Shweika to bypass certain contentious questioning, which he felt he had a legally justifiable
reason to resist, would not encourage future applicants to bypass the scheme altogether, or even
in part. Lastly, while full administrative review could allow the Service to correct any mistakes it
made in reviewing Shweika’s application, there is ample evidence in the record that there was
dim prospect of that correction actually occurring. When Shweika’s testimony was not
forthcoming, the Service did not seek to address his concerns about whether the line of
questioning he objected to was a valid subject for the hearing. The Service also did not attempt to
utilize regulatory procedures3 that would have at least given them another, less confrontational
path to obtaining Shweika’s testimony.
3
If, as discussed above, these procedures were actually available. The Service represents that they were.
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Consequently, attempting to proceed with the administrative process, or this Court
ordering that the administrative process continue, would have been futile for Shweika. The
Service was content denying his application without any further attempt at discovering evidence.
With such a small portion of evidence outstanding, and a dispute existing over whether
testimony could be taken on the underlying issue, it can also fairly be said that Shweika’s
application was “fit” for review by the Court. Shweika’s case will not be remanded on the issues
covered in the evidentiary hearing. The Service’s decision on Shweika’s naturalization
application will be vacated. See 5 U.S.C. § 706.
C.
What remains is consideration of where Shweika’s application and case currently stands.
While Shweika was determined to have satisfied the good moral character requirement based on
the evidence presented at the evidentiary hearing, the Court did not enter judgment granting
Shweika’s application for naturalization. It will not do so now. The Service represented in its
supplemental briefing that Shweika admitted to submitting false or misleading information in
connection with an application for benefits under the laws governing immigration and
nationalization. The Service believes that the false or misleading information must have been
given in connection with the current application, since the admission was made in a follow-up
application Shweika initiated. The naturalization statute provides:
For the purposes of this chapter--No person shall be regarded as, or found to be, a
person of good moral character who, during the period for which good moral
character is required to be established, is, or was . . . (6) one who has given false
testimony for the purpose of obtaining any benefits under this chapter[.]
8 U.S.C. § 1101(f). If Shweika provided false or misleading information in connection with his
current naturalization application, it cannot be granted.
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Supplemental briefing concerning this issue will be directed. The Service will be directed
to submit a brief of no more than ten pages explaining its position concerning Shweika’s alleged
admission to supplying false information. The Service must attach the application on which
Shweika makes this admission. Shweika will then have the opportunity to respond, also in no
more than ten pages, explaining his position concerning the Service’s allegation. The Service
shall then file a reply brief that is no more than five pages in length.
IV.
Accordingly, it is ORDERED that the decision of Defendants Department of Homeland
Security and United States Citizenship and Immigration Service denying Plaintiff Mazen
Shweika’s application for naturalization is VACATED.
It is further ORDERED that Defendants are DIRECTED to file a supplemental brief, in
conformity with the guidance set forth above, on or before November 20, 2015. The brief shall
have attached as an exhibit the document wherein Shweika admitted to providing false
information.
It is further ORDERED that Plaintiff Shweika is DIRECTED to file a supplemental
brief in response to Defendants supplemental brief, in conformity with the guidance set forth
above, on or before December 11, 2015.
It is further ORDERED that Defendants are DIRECTED to file a supplemental brief in
reply to Plaintiff’s response brief, in conformity with the guidance set forth above, on or before
December 18, 2015.
Dated: October 29, 2015
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on October 29, 2015.
s/Johnetta Curry Williams
JOHNETTA CURRY WILLIAMS
Acting Case Manager
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