Grey v. Cissna

Filing 26

ORDER denying 12 Motion to Remand Signed by Honorable David C Norton on September 16, 2019.(kwhe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
FABIAN GREY,

)
)
Plaintiff,
)
)
vs.
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L. FRANK CISSNA, Director,
)
United States Citizenship and Immigration )
Services,
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Defendant.
)
____________________________________)

No. 9:18-cv-01764-DCN
ORDER

This matter is before the court on the motion of L. Frank Cissna, Director of the
United States Citizenship and Immigration Services (“USCIS” or “the government”) to
remand plaintiff Fabian Grey’s (“Grey”) application for naturalization to USCIS for
adjudication, ECF No. 12. For the reasons set forth below, the court denies the motion to
remand.
I. BACKGROUND
This matter arises out of Grey’s application for naturalization. Grey is Jamaican
citizen who first entered the United States on a work visa on November 30, 2005. On
February 2, 2006, Grey married a United States citizen, Trinia Smalls (“Smalls”), and
Smalls petitioned for a marriage-based green card for Grey. Based on this petition, Grey
became a conditional lawful permanent resident on January 12, 2007. 1 About two years

1

Grey’s complaint alleges that the date was January 12, 2007, but the NOID indicates
that the date was January 11, 2007. The court need not resolve this discrepancy for
resolution of the instant motion.
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later, Grey and Small petitioned to have the condition on Grey’s residency removed, and
USCIS granted the petition, making Grey a permanent resident.
Then on February 17, 2016, Grey filed a Form N-400 Application for
Naturalization. USCIS subsequently conducted Grey’s naturalization interview on
September 7, 2017, at which time he certified under oath that all of the information on the
application and the statements made by him during the interview were true and correct.
The government alleges that during Grey’s interview, Grey admitted that he had a
biological child who was born on October 2, 2015, but that Grey had indicated on his
naturalization application that he had no biological children. Grey allegedly stated at the
interview that his wife was not the child’s mother. Grey allegedly further stated that the
child had resided with him since her birth, which, according to the government,
contradicts Grey’s naturalization application that stated that only Grey, Smalls, and
Smalls’s biological child lived at his address of record. After the interview, Grey’s case
was continued for additional review.
285 days passed. Then on June 19, 2018, two immigration officers visited Grey’s
house in Bluffton, South Carolina to conduct a site visit regarding Grey’s claim in his
naturalization application that he and Smalls lived there together. The parties dispute
exactly what occurred during this visit. According to Grey, the officers arrived at his
home unannounced and approached him in his garage, asking whether they could come
into his home and ask him questions. Grey invited them into his house, and upon
entering, one of the officers allegedly started rifling through Grey’s mail. In addition,
one of the officers allegedly picked up Grey’s cell phone, read the incoming messages
without asking permission, and took a picture of Grey’s cell phone screen with his own
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phone. Grey claims that the officers then walked into his bedroom, looked through a
drawer that contained his wife’s clothes, and began verbally abusing Grey, accusing him
of committing marriage fraud. The officers then allegedly told Grey that they knew his
wife lived in Varnville, South Carolina and that they knew Grey’s wife had stayed at her
mother’s house in Varnville the night before. Grey claims that he told the investigators
that his wife’s ailing mother lives in Varnville, his wife takes care of her mother at least
three days out of the week, and that his wife’s car was at her mother’s house because his
wife driven her mother to the hospital in Charleston, South Carolina in her mother’s car
and left her car at her mother’s house. Grey alleges that the officers refused to listen to
Grey’s answers, and that once Grey asked if he could call his immigration attorney, the
officers quickly left.
According to the government, the immigration officials conducted a routine site
visit during which Grey gave conflicting information regarding the location of his wife.
He first allegedly stated that she was at work but later claimed that she had been out of
town for the previous two weeks visiting her mother who was hospitalized in Charleston.
The government also contends that Grey later informed the officers that Smalls actually
divided her time between Bluffton and Varnville. The officers claim to not have seen any
indication that Smalls lived at Grey’s home, as there was nothing belonging to her in the
home. In addition, the government contends that Grey allowed them to see his cell phone
and that the cell phone contained no texts or call between Grey and Smalls but instead
contained romantic text messages between Grey and the mother of Grey’s biological
child. After this site visit, USCIS conducted additional research on Smalls’s address of
record. A review of several databases, including the South Carolina Department of
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Motor Vehicles, revealed that for the last ten years, Smalls has listed a residential address
in Varnville, South Carolina.
On June 26, 2018, Grey filed a Freedom of Information Act (“FOIA”) request
with USCIS. Then on June 27, 2018, Grey filed suit asking the court to declare him
eligible for naturalization and order USCIS to naturalize him pursuant to 8 U.S.C. §
1447(b) and seeking an order compelling USCIS to respond to his FOIA request pursuant
to 5 U.S.C. § 552(a)(4)(B). On August 3, 2018, 2 USCIS issued a Notice of Intent to
Deny (“NOID”) to Grey, indicating that it intends to deny Grey’s naturalization
application and providing Grey 30 days to respond with evidence that his application
should not be denied. USCIS subsequently filed a motion to remand Grey’s application
for naturalization to USCIS for adjudication on September 7, 2018. ECF No. 12. On
September 21, 2018, Grey filed a response, ECF No. 13, and on September 28, 2018,
USCIS filed a reply, ECF No. 14. The court held a hearing on the motion on November
28, 2018. The motion is ripe for review.
II. DISCUSSION
The government asks that the court remand this case to USCIS so that USCIS can
issue a decision on Grey’s pending naturalization application. This case consists of two
causes of action—one that seeks judicial review of Grey’s naturalization application and
one that seeks an order compelling USCIS to respond to Grey’s FOIA request. The court

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Grey states that the date of the NOID is August 8, while the government states that the
date is August 3. It is admittedly difficult to determine if the date stamp on the NOID
says 3 or 8. The court reads the date stamp as August 3, but given the five-day difference
between the two dates, the exact day does not meaningfully impact the court’s analysis.
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addresses whether remand is appropriate for each cause of action and ultimately declines
to remand either.
A. Judicial Review of Naturalization Application
The government argues that this case should be remanded to USCIS so that the
USCIS can issue a decision on Grey’s naturalization application. Before considering the
parties’ arguments, it is useful to first review the naturalization process. An applicant
begins the naturalization process by filing an “Application for Naturalization” with the
Department of Homeland Security and USCIS. Ndumu v. U.S. Dep’t of Homeland Sec.,
2014 WL 5495680, at *1 (D. Md. Oct. 29, 2014) (citing 8 U.S.C. § 1445(a), (d)).
Thereafter, USCIS must conduct a background investigation and an examination of the
applicant. 8 U.S.C. § 1446(a)–(b). After USCIS completes the background investigation
and examination, a USCIS official grants or denies the application. 8 U.S.C. § 1446(d); 8
C.F.R. §335.3. The official must make said decision within 120 days following the initial
examination of the applicant. Id. 3 If USCIS fails to make said determination within 120
days of the interview, the applicant may file a lawsuit in United States district court
seeking adjudication of his application. Id. § 1447(b). The court “may either determine
the matter or remand the matter, with appropriate instructions, to [USCIS] to determine
the matter.” Id. Therefore, “it is entirely within the discretion of the court to either deny

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The majority of courts have found that “examination” in § 1447(b) refers to the
interview that USCIS conducts after receiving a naturalization application, not the
completion of its entire review of the application, including background checks. See,
e.g., Manzoor v. Chertoff, 472 F. Supp. 2d 801, 803–04 (E.D. Va. 2007) (“It is clear from
the plain language of these regulations that the term ‘examination’ in 8 U.S.C. § 1447(b)
means the initial interview of an applicant.”); Antonishin v. Keisler, 627 F. Supp. 2d 872,
874–84 (N.D. Ill. 2007) (agreeing with “the majority view that the ‘examination’ is
the applicant’s interview”).
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the motion to remand and assert jurisdiction or grant the motion to remand and allow the
naturalization petition to be adjudicated by USCIS.” Abusamhadneh v. Napolitano, 2010
WL 1734772, at *1 (E.D. Va. Apr. 26, 2010).
It is undisputed that this action commenced more than 120 days after Grey was
initially examined by USCIS on September 7, 2017. It is also undisputed that this court
has exclusive jurisdiction over the application now that this suit has been filed, and that
USCIS will not regain jurisdiction to adjudicate Grey’s application unless the court
remands the case to the agency. Etape v. Chertoff, 497 F.3d 379, 381 (4th Cir. 2007).
USCIS argues that the court should remand this matter for three reasons: (1)
“remand will allow USCIS to proceed with the NOID in order to determine whether Grey
can establish he has been lawfully admitted for permanent residence, and has the ‘good
moral character’ required to naturalize”; (2) “remand will ensure that Grey receives an
expeditious decision on his naturalization application without denying him the right to
eventually seek de novo judicial review of that decision” under 8 U.S.C.§ 1421(c); and
(3) remand will “preserve judicial resources” by “spar[ing] this Court the burden of
reviewing Grey’s naturalization application in the first instance.” ECF No. 12 at 4–6. In
response, Grey contends that the court should not remand and instead adjudicate his
application. Grey argues that USCIS had no good reason not to act on his application
within 120 days of his interview and that remand would be futile because USCIS has
already considered all of the information in his application and has indicated that it will
deny the application.
The court agrees with Grey that USCIS’s failure to provide a good reason for its
delay is fatal to the government’s motion to remand. As the Fourth Circuit has noted,
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“[w]hen the [USCIS] has good reasons for failing to act, certainly a district court has the
option to remand the matter to give the agency additional time.” Etape, 497 F.3d at 386
n.5. It appears that USCIS’s failure to grant or deny Grey’s application within the 120day time frame after his interview is due to the discrepancies in his application and
interview. As the NOID explains, “[u]pon conclusion of the interview, [Grey’s] case was
continued for additional review.” ECF No. 12-1 at 2. Moreover, the information that
USCIS learned during the visit of Grey’s house appears to have further lengthened the
delay. However, USCIS provides little to no explanation as to why it took so long to (1)
conduct its investigation at Grey’s house, which occurred 285 days after the interview,
and (2) issue the NOID, which occurred 330 days after the interview. USCIS first
explains in its reply brief that “if there are issues of potential fraud, then the matter must
be handled by the Fraud Detection and National Security Division (“FDNSD”)” and
“[s]uch was the case here.” ECF No. 14 at 2. However, USCIS does not explain why the
FDNSD’s handling of a matter warrants an extension of time beyond 120 days after an
applicant’s interview.
USCIS also asserts that the immigration system is overburdened, and that the
estimated wait time for processing N-400 applications is between 3.5 and 13.5 months.
These arguments do nothing to convince the court that USCIS had good reason for failing
to act. The court will not endorse the notion that this matter should be remanded simply
because the immigration system is overburdened. Moreover, the estimated wait times for
processing naturalization applications is equally unconvincing. Grey filed his N-400
application on February 17, 2016. If USCIS processed his application in 13.5 months,
the longest amount of time provided in the government’s range of wait times, Grey would
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have received a decision in March 2017. That is six months before USCIS even
conducted Grey’s naturalization interview, and 17 months before USCIS issued its
NOID, which isn’t even USCIS’s final determination. Viewing this timing from another
perspective, from the time Grey filed his application to the time USCIS issued its NOID,
30 months had passed. That far exceeds the 13.5-month upper limit of the range of
processing times provided by the government.
To be sure, “the vast majority of courts that have exercised jurisdiction over a
case pursuant to § 1447(b) have remanded the matter.” Manzoor v. Chertoff, 472 F.
Supp. 2d 801, 810 (E.D. Va. 2007). However, those courts had been provided with good
reason as to why there was a delay in USCIS’s decision on the naturalization
applications. See Manzoor v. Chertoff, 472 F. Supp. 2d 801, 802 (E.D. Va. 2007) (“CIS
informed Manzoor that it could not yet make a decision on his application because the
three mandatory background checks had not been completed.”); Khelifa v. Chertoff, 433
F. Supp. 2d 836, 839 (E.D. Mich. 2006) (“Plaintiff allegedly was told that he had
satisfied most of the requirements for citizenship, but that the agency was still awaiting
the outcome of the criminal background check.”); El-Daour v. Chertoff, 417 F. Supp. 2d
679, 684 (W.D. Pa. 2005) (“The FBI has not yet completed the criminal background
check.”); Ge v. United States Citizenship & Immigration Servs., 2019 WL 2713052, at *2
(E.D. Va. June 28, 2019) (“The FBI has completed Ge’s standard background check as
required by USCIS, 8 C.F.R. § 335.2(b), but the DOD has not completed Ge’s enhanced
background check, accounting for the delay in his naturalization application.”); Shalabi v.
Gonzales, 2006 WL 3032413, at *2 (E.D. Mo. Oct. 23, 2006) (“The USCIS maintains
that it is unable to adjudicate Shalabi’s application until it receives the results of Shalabi’s
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‘name check’ from the FBI.”); Daami v. Gonzales, 2006 WL 1457862, at *2 (D.N.J. May
22, 2006) (“[Defendants] claim that plaintiff’s application has been delayed because the
Federal Bureau of Investigation (“FBI”) has not yet completed the background check on
plaintiff.”); Essa v. U.S. Citizenship & Immigration Servs., 2005 WL 3440827, at *2 (D.
Minn. Dec. 14, 2005) (“The court, however, finds itself unable to adjudicate either
application for the very reason CIS has been precluded from making a final decision—the
FBI background check has not been completed.”). Here, all the court has to rely on as to
why there has been such a delay in a decision on Grey’s application is a vague reference
to an overburdened immigration system, a range of application processing wait times for
which Grey’s wait time has far exceeded, and a brief mention of the general involvement
of FDNSD in Grey’s case. To be sure, USCIS may have been taken additional steps in
its investigation that warrant the delay in a decision on Grey’s application. The
government generally argues that to be true here. See ECF No. 14 at 6 (“In this case, the
Agency’s delay in issuing a decision after the interview resulted from its investigation
into indications of fraud in [Grey]’s Lawful Permanent Resident (“LPR) status.”). But
USCIS has failed to describe or even identify those steps to the court, nor has the
government explained why the investigation took so long. 4
The lack of reassurance by USCIS that this matter would be resolved promptly if
the court remanded also convinces the court to retain jurisdiction. “In the few cases

4

For example, the NOID indicates that after officials visited Grey’s house in June 2018,
USCIS conducted additional research related to where Grey’s wife lives. However, while
the NOID shows that this additional research took place, it does not state how long it took
to conduct the research. The government also does not rely on this information in its
briefs. Moreover, the additional investigation after the June 2018 visit does not account
for the delay between Grey’s September 2017 interview and the June 2018 visit.
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where a district court opted to adjudicate the matter itself, the application had been
pending for a lengthy period and the defendants failed to assure the court that a swift
decision could be made on remand.” Rashid v. Dep’t of Homeland Sec., 2017 WL
1398847, at *2 (E.D. Cal. Apr. 19, 2017). Here, USCIS has failed to assure the court that
it will make a swift decision on remand. Instead, the government simply requests that, if
the court remands, USCIS have 30 days to issue a decision upon receipt of Grey’s
response to the NOID. ECF No. 14 at 3 n.2. While the court does not doubt that USCIS
would abide by the court’s order to make a decision within a certain time period if the
court were to remand the case, the court would be more assured that USCIS would act in
a timely manner if the government provided stronger, affirmative assurance, such as a
declaration from a USCIS official. See Yue Zhang v. United States Citizenship &
Immigration Servs., 2017 WL 3190559, at *2 (D.D.C. July 26, 2017) (remanding in part
because USCIS submitted a declaration that it would resolve the application within 21
days of remand); Rashid, 2017 WL 1398847, at *2 (E.D. Cal. Apr. 19, 2017) (remanding
in part because USCIS submitted a declaration stating that if the case were to be
remanded, USCIS would resolve the application within sixty days).
The court also finds that the various policy arguments frequently discussed by
courts in considering whether remand under § 1447(b) is appropriate weigh in favor of
the court retaining jurisdiction. One factor that courts rely on in remanding naturalization
cases is a court’s inability or lack of resources necessary to resolve the issue that has
prevented a naturalization decision. This is common in cases in which the delay in a
decision on the application is caused by a pending criminal background check. For
example, in El-Daour, the court remanded the case to USCIS because the FBI had not yet
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completed the plaintiff’s background check, and the court did “not have the resources at
[its] disposal to determine whether [the plaintiff] presents a risk to national security or to
public safety.” 417 F. Supp. 2d at 684; see also Essa, 2005 WL 3440827, at *2 (“[T]he
FBI criminal background check is a vital piece of information and absent such
information the court system is simply not equipped with the resources necessary to
ensure a thorough investigation prior to the giving of the naturalization oath.”). Here, the
issues that appear to have delayed the decision on Grey’s application are discrepancies
between Grey’s naturalization application and information that he provided during his
interview, as well as information discovered during USCIS’s visit to Grey’s home.
Resolving discrepancies in evidence and weighing the credibility of evidence are
functions that are inherent in a court’s role, and that is exactly what the court would be
required to do here.
Courts also frequently discuss the fact that USCIS is the party that is in the best
position to adjudicate naturalization applications. See Ndumu, 2014 WL 5495680, at *2
(“USCIS is in the best position to adjudicate naturalization applications.”);
Abusamhadneh, 2010 WL 1734772, at *2 (“In determining whether remand of an
immigration action for administrative disposition was appropriate [ ] the Supreme Court
has warned that ‘[a court] should remand a case to an agency for decision of a matter that
statutes place primarily in agency hands[, which] has obvious importance in the
immigration context.’” (quoting INS v. Ventura, 537 U.S. 12, 16–17 (2002))); see also
INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (“Judicial deference to the Executive
Brach is especially appropriate in the immigration context.”). However, Congress would
not have statutorily granted courts the jurisdiction to adjudicate naturalization application
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if it believed that all naturalization decisions should be determined by USCIS. In other
words, if USCIS was always in the better position to adjudicate naturalization
applications, § 1447(b) would be meaningless. As such, “[t]his Court will not shirk its
Congressionally-authorized oversight function of the naturalization application process.”
Omran v. Dep’t of Homeland Sec., 2008 WL 320295, at *5 (S.D. Ohio Feb. 4, 2008).
In sum, at the time Grey filed this suit, he had been waiting for a decision on his
naturalization application for approximately two and a half years. The government has
provided no reason for this lengthy delay other than vague and general statements and has
failed to adequately reassure the court that USCIS would issue a decision on Grey’s
application in a timely manner should the court remand the case. Therefore, the court
denies the government’s motion to remand and retains its jurisdiction over this case.
B. FOIA Request
Based on the government’s motion to remand, it is unclear if the government also
seeks dismissal of Grey’s FOIA cause of action. 5 On June 26, 2018, Grey submitted a
FOIA request for documents held by USCIS. Having received no response, Grey now
asks the court to order USCIS to produce these documents pursuant to 5 U.S.C. §
552(a)(4)(B), which provides that “[o]n complaint, the district court of the United
States . . . has jurisdiction to enjoin the agency from withholding agency records and to
order the production of any agency records improperly withheld from the complainant.”
The government did not address the FOIA cause of action in its motion the remand, and

5

Clearly, there would be no authority for the court to remand this issue to USCIS. See 5
U.S.C. § 552(a)(4)(B).
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in Grey’s response, Grey stated that he views the government’s silence on the issue as the
government not seeking dismissal of his FOIA cause of action.
The government briefly addressed this issue in its reply, claiming that the FOIA
cause of action is a red herring. The government argues that all of the evidence regarding
Grey’s naturalization application comes directly from his naturalization interview and his
discussions with officials during the site visit as well as publicly available documents.
USCIS contends that the only documents that are not publicly available relate to Smalls,
and that Grey would likely not be able to access those under FOIA due to the protections
of the Privacy Act.
The government’s argument, which was only raised in its reply, fails to provide
the court with any legal basis to dismiss Grey’s FOIA cause of action. As such, Grey’s
FOIA cause of action will proceed.
III. CONCLUSION
For the foregoing reasons, the court denies the motion to remand.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 16, 2019
Charleston, South Carolina

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