Alasadi v. U.S. Citizenship and Immigration Services et al
Filing
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Memorandum Opinion and Order Based on the reasons provided, the Court grants the Motion to Remand with express instructions that Alasadi's application for naturalization shall be adjudicated no later than 60 days from the date of this Order. Judge Benita Y. Pearson on 10/23/2012. (S,L)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
TAREQ ALASADI,
Plaintiff,
v.
U.S. CITIZENSHIP & IMMIGRATION
SERVICES, et al.,
Defendants.
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CASE NO. 4:11CV01342
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 24.]
This matter is before the Court upon Defendant’s Motion to Remand. ECF No. 24. The
Court has reviewed the record, the parties’ briefs and the governing law. For the reasons
provided below, the Court grants the Motion and provides accompanying instructions.
I. Factual and Procedural Background
This action arises from the failure of Defendant1 United States Citizenship & Immigration
Services (USCIS) to adjudicate Plaintiff Tareq Alasadi’s application for naturalization within the
120-day period specified in 8 U.S.C. § 1447(b).2 Alasadi has been a lawful permanent resident
1
The other named Defendants in this action are Alejandro Mayorkas, Director of the
USCIS; Mark Hansen, District Director of the USCIS for the Northern District of Ohio; Robert
Mueller, Director of the Federal Bureau of Investigation (FBI); Stephen Anthony, Special AgentIn-Charge of the FBI’s Cleveland office; and Janet Napolitano, Secretary of the United States
Department of Homeland Security.
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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.”
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of the United States since October 18, 2004. ECF No. 17 at 1. On or about August 21, 2009,
USCIS received Alasadi’s application for naturalization. ECF No. 17 at 2. USCIS subsequently
interviewed Alasadi in connection with his application at its field office in Cleveland on
November 16, 2009. ECF Nos. 17 at 13; 24-2 at 2. Although, as of July 31, 2011, the average
processing time for the N-400 application for naturalization was approximately five months
(ECF No. 17 at 3), USCIS has not yet determined Alasadi’s application. ECF No. 24-1 at 7.
In a Complaint filed on June 30, 2011 (ECF No. 1), Alasadi requests that the Court
assume jurisdiction and grant his application for naturalization in accordance with 8 U.S.C. §
1447(b). Alternatively, Alasadi prays that the Court invoke its mandamus powers and compel
the completion of an allegedly pending FBI “name check” so that his application may be
adjudicated. Alasadi also seeks attorneys fees pursuant to the Equal Access to Justice Act.3
On May 18, 2012, USCIS moved to remand this matter back to the agency for further
investigation. ECF No. 24. In its supporting memorandum of law, USCIS claims that in the
course of Alasadi’s background check, “issues arose that require further inquiry” and the agency
“may not adjudicate [Alasadi’s] application until [it] receives definite and favorable responses on
all security and background checks.” ECF No. 24-1 at 3-4. Alasadi filed an opposition on June
12, 2012 (ECF No. 25), to which USCIS filed a reply on June 26, 2012. ECF No. 26. USCIS’s
Motion to Remand is ripe for the Court’s review.
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In addition, Alasadi seeks judicial review of the agency’s decision in the event USCIS
denies his application during the pendency of this litigation. The record does not disclose,
however, that USCIS has rendered a decision in regard to Alasadi’s application.
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II. Discussion
Congress has conferred upon the Attorney General the sole authority to naturalize persons
as citizens of the United States. 8 U.S.C. § 1421(a). The United States district court, however,
has jurisdiction over naturalization applications in limited contexts. For instance, a person whose
application for naturalization is denied may seek the district court’s review after a hearing has
been conducted before an immigration officer. 8 U.S.C. § 1421(c). Furthermore, “[i]f there is a
failure to make a determination [upon the application] before the end of the 120-day period after
the date on which the examination is conducted . . . 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.” 8 U.S.C. § 1447(b).
Although a minority of district courts have held that word “examination” in § 1447(b) means the
entire examination process; see Danilov v. Aguirre, 370 F. Supp. 2d 441, 444 (E.D. Va. 2005);
the overwhelming consensus is that the term refers to the interview that is held between the
naturalization applicant and a CIS officer. See Farooq v. Hansen, 2007 WL 2177890 (N.D. Ohio
2007); Elaloul v. Hansen, 2007 WL 1299274 (N.D. Ohio 2007); Affaneh v. Hansen, 2007 WL
295474 (S.D. Ohio 2007); see also Hussein v. Gonzalez, 474 F. Supp. 2d 1265, 1268 (M.D. Fl.
2007); Issa v. Mueller, 486 F. Supp. 2d 668, 671-72 (E.D. Mich. 2007); Asgari v. Gonzales, 2007
WL 1834710 (S.D. Mich. 2007); Essa v. USCIS, 2005 WL 3440827 (D. Minn. 2005); Al-Farisi
v. Mueller, 492 F. Supp. 2d 335, 337 (S.D.N.Y. 2007); Castracani v. Chertoff, 377 F. Supp.2d
71, 74 (D.D.C. 2005); El-Daour v. Chertoff, 417 F. Supp. 2d 679, 683 (W.D. Penn. 2005).
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USCIS does not contest the majority interpretation of § 1447(b), and it acknowledges that
Alasadi’s application has not been adjudicated within 120 days from the date of his interview.
ECF Nos. 17 at 3; 24-1 at 7. Nonetheless, USCIS argues that the Court should remand the matter
because the agency uncovered several “outstanding issues” in the course of its background
investigation that require further inquiry, including: (1) a multiple-count indictment in the State
of Ohio alleging that Alasadi, his employer, USA Trading Corporation, and other defendants
were involved in illegally trafficking untaxed tobacco products from June 1, 2010, to October 31,
2010; (2) a pending investigation of USA Trading by the Bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF); and (3) a representation by Shaun Sweeney, the Assistant United States
Attorney involved in the ATF investigation, that he “has been in direct contact” with Alasadi’s
attorney. ECF Nos. 24-1 at 2-4; 24-2; 24-3. While USCIS acknowledges that the indictment was
dismissed as to Alasadi on May 11, 2011 (ECF Nos. 24-1 at 2; 24-4), it claims to not have had an
opportunity to interview him regarding the indictment. ECF No. 24-1 at 4.
In response, Alasadi submitted an affidavit attesting that he stopped working for USA
Trading in November, 2011, he was merely a salaried employee of USA Trading during his
employment and neither he nor any member of his family has ever been an owner, stockholder,
director or officer of the corporation. ECF No. 25-1 at 4-5. Alasadi further testified that he has
not had a criminal defense attorney since the indictment against him was dismissed, and,
although AUSA Sweeney did contact his former attorney, the communication involved an
inquiry as to whether Alasadi was willing to testify against his former employer. ECF No. 25-1
at 5-6. In Alasadi’s view, the delay in his application cannot be justified on the basis of a
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dismissed indictment and a prior affiliation with a company where he no longer works. ECF No.
25 at 3, 14. He, moreover, opposes the remanding of this action because he believes the agency’s
purpose is to delay the adjudication of his application as long as possible. ECF No. 25 at 1.
In considering the issues presented, the Court takes seriously and is guided by the
admonition of the United States Supreme Court that, in general, a court “should remand a case to
an agency for decision of a matter that statutes place primarily in agency hands.” Immigration &
Naturalization Service v. Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 154 L. Ed. 2d 272 (2002).
This is because “[t]he agency can bring its expertise to bear upon the matter; it can evaluate the
evidence; it can make an initial determination; and, in doing so, it can, through informed
discussion and analysis, help a court later determine whether its decision exceeds the leeway that
the law provides.” Id. at 17. This Court is not alone in according an appropriate measure of
deference upon the agency that has the mandate, experience and expertise to make a specialized
type of determination. “[A]n order of remand comports with Congressional intent that [USCIS]
make the initial determinations regarding naturalization applications”; Farooq v. Hansen, 2007
WL 2177890 (N.D. Ohio 2007); and a “majority” of courts “have declined to determine the
merits of the application, instead remanding the case to USCIS as a more appropriate remedy.”
Elaasar v. Mueller, 522 F. Supp. 2d 939, 936 (N.D. Ohio 2007). In many instances, “courts
recognize their lack of expertise and the lack of information available to assess whether the
plaintiff satisfied the various criteria for naturalization.” Shendaj v. Dedvukaj, 543 F. Supp. 2d
724, 728 (E.D. Mich. 2008); see Patel v. Hansen, 2008 WL 148947 (S.D. Ohio 2008) (“A district
court is ill-suited to deciding a naturalization petition; it does not have the resources to
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experience to properly evaluate the multitude of individual factors that must be considered.”);
Afanen v. Hansen, 2008 WL 686767 (S.D. Ohio 2008) (“this Court does not have the capacity to
complete the background check which Congress has mandated in these cases”); Issa v. Mueller,
486 F. Supp. 2d at 674 (“such an inquiry is an inefficient use of judicial resources”).
This deference, however, does not imply that district courts may abdicate their judicial
responsibilities to safeguard applicants’ rights to a reasonably prompt decision. Congress
bestows jurisdiction upon the district courts 120 days after the initial interview with an applicant
for naturalization to “reduce the waiting time for naturalization applicants”; U.S. v. Hovsepian,
359 F.3d 1144, 1163 (9th Cir. 2004); and ensure the agency “does not unreasonably delay its
decision.” Omeiri v. District Director, Bureau of Citizenship & Immigration Services, 2007 WL
2121998 (E.D. Mich. 2007). In cases of extreme, unjustified delay, some district courts have not
hesitated to hear and decide the application for naturalization. See, e.g., Atmeh v. Chertoff, 2008
WL 4822067 (E.D. Mich 2008) (denying motion to remand where 84 months had elapsed since
plaintiff’s initial interview and USCIS provided “no reasonable explanation of its delays” in
deciding application); Chebli v. Chertoff, 2007 WL 2571967 (E.D. Mich. 2007) (declining
remand upon finding that remand “would do nothing to ensure that defendant will . . . make a
decision”); Shalan v. Chertoff, 2006 WL 42143 (D. Mass. 2006) (declining remand where USCIS
“offer[ed] no reasons specific to plaintiff for the extensive time expended in completing
review”). The district court may and should exercise its statutory prerogative in such scenarios.
For the time being, the briefs and exhibits submitted in this proceeding do not readily
demonstrate that this action is one over which the Court should retain jurisdiction. The state
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indictment against Alasadi was filed after his citizenship interview, and USCIS was entitled to a
period of time in order to pursue an investigation. USCIS is also in the best position to evaluate
the pending investigation against Alasadi’s former employer, USA Trading. What effect these
matters have upon Alasadi’s qualification for citizenship is a question that the agency, through its
reservoir of specialized training and experience, is better equipped than the Court to answer.
Nevertheless, the Court shares Alasadi’s reservation concerning the lack of any timetable
in the agency’s Motion. This omission is not acceptable in light of evidence that USCIS has not
administered Alasadi’s application with complete diligence. There is no dispute that the
indictment against Alasadi was dismissed on May 11, 2011, and USCIS was informed of the
dismissal on May 20, 2011. ECF No. 15-1 at 4; 15-3. Yet, seventeen months later, USCIS has
not explained why it has not interviewed Alasadi about the indictment even though the agency
maintains this interview is an integral part of his background check. ECF No. 24-1 at 4.
Moreover, the connection between the ATF investigation and Alasadi appears tenuous indeed.
Alasadi is no longer employed by USA Trading, he was never an owner, director or officer of the
entity, and the reason Sweeney, the federal prosecutor, contacted Alasadi’s former attorney was
to inquire whether he was able to testify against the corporation. The record does not disclose
that Alasadi is a subject of the ATF investigation or that the government has any interest in him
beyond his testimony as a witness. Under these circumstances, the Court will not permit
Alasadi’s application to languish any further.
Therefore, while the Court concludes that Alasadi’s application should be determined by
USCIS, additional delays will not be countenanced. Nearly three years have passed since Alasadi
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was interviewed by the USCIS. This is not a case where the agency’s ability to decide an
application is compromised by the failure of an outside agency to provide necessary information.
See Afaneh v. Hansen, 2008 WL 686767 (S.D. Ohio 2008) (failure of FBI to process “name
check”); Duri v. Hansen, 2007 WL 3125303 (N.D. Ohio 2007) (same); Mahamoud v. Mueller,
2007 WL 3232457 (S.D. Ohio 2007) (same). To the contrary, Karyn Zarlenga, a USCIS
supervisor in the Cleveland office, submitted a declaration stating that the agency has received
the necessary results from the FBI and the Interagency Border Inspection System with respect to
Alasadi’s application. ECF No. 24-2 at 2-3. Consequently, USCIS has no basis for delay and
now must adjudicate Alasadi’s application with promptness. Based on the facts presented, the
Court concludes that sixty (60) days is sufficient time for USCIS to expeditiously complete any
outstanding investigatory steps. If the agency fails to comply with this Order, Alasadi may re-file
this action, whereupon the Court will determine the appropriate course of action.
III. Conclusion
Based on the reasons provided, the Court GRANTS the Motion to Remand with express
instructions that Alasadi’s application for naturalization shall be adjudicated no later than sixty
(60) days from the date of this Order.
IT IS SO ORDERED.
October 23, 2012
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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