Opinion
No. C07-03925 HRL.
March 7, 2008.
Bernadette Willeke Connolly, Law Ofc Bernadette Connolly, Carole M. Mesrobian, San Jose, CA, for Plaintiff.
Ila Casy Deiss, United States Attorney's Office, San Francisco, CA, for Defendants.
ORDER ON DEFENDANTS' MOTION TO REMAND Re: Docket No. 17
Defendants' motion to remand the case is scheduled for a hearing on March 18, 2007. However, this matter is appropriate for resolution without oral argument and so that hearing is now VACATED. Civil Local Rule 7-1(b).
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, all parties have expressly consented that this matter may be heard and finally adjudicated by the undersigned.
I. BACKGROUND
Plaintiff Harsha Reddy has been a lawful permanent resident of the United States since 1980. Quizon Decl. ¶ 12. He applied for naturalization on February 27, 2006 and was interviewed by the United States Citizen and Immigration Services (USCIS) on July 11, 2006. Id. When he filed his complaint on July 31, 2007, USCIS had still not issued a decision on his naturalization application. Apparently, Plaintiff's application is ready to be adjudicated except for his pending background and security check. Id. That security check is waiting on completion of Reddy's Federal Bureau of Investigation (FBI) "name check." Shortly after Plaintiff filed the instant action, USCIS requested that the FBI expedite its completion of Reddy's name check. Id. Despite that request, it remains pending. Cannon Decl. ¶ 41.
The FBI name check is one of several forms of security checks that must be completed as part of the naturalization application process. Other security checks include: (1) an FBI fingerprint check for information related to an applicant's criminal history; (2) an Interagency Border Inspection System name check for information regarding national security risks; and (3) a Homeland Security record check. See Quizon Decl. ¶ 3; April 26, 2006 USCIS "Fact Sheet: Immigration Security Checks — How and Why the Process Works."
Defendants now move to remand this matter back to USCIS with instructions to adjudicate the naturalization application promptly upon receipt of the FBI name check. (Mot. pg. 7). Plaintiff does not object to the case being remanded, but requests that such an order direct USCIS to adjudicate the application within ninety days. (Opp. pg. 1-2).
II. JURISDICTION
If USCIS fails to make a determination on an individual's application for naturalization within 120 days after the applicant is examined, that individual may apply to the United States District Court for a hearing on the matter. 8 U.S.C. § 1447(b). Here, over a year passed between Reddy's interview and his filing of the complaint. Therefore, jurisdiction has been conferred to this court to decide the matter.
III. ORDER REMANDING WITH INSTRUCTIONS
When an applicant files such a complaint, the court has the option of either deciding the matter or remanding it "with appropriate instructions," to USCIS for determination. 8 U.S.C. § 1447(b). Since USCIS processed Plaintiff's application, conducted his interview and orchestrated his background investigation, we agree with both parties that USCIS is the government entity best equipped to adjudicate Reddy's application. Accordingly, the motion to remand is GRANTED as to this aspect.
However, the "appropriate instruction" determination is a more difficult question. Congress has made criminal background checks a prerequisite to the adjudication of an application for naturalization. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub.L. No. 105-119, Title I, 111 Stat. 2440, 2448 (1997), reprinted in Historical and Statutory Notes following INA § 335, 8 U.S.C. § 1446. The evidence submitted by the government indicates that the administrative burden of processing name checks is considerable. Cannon Decl., ¶¶ 21-23.
Yet, although this court appreciates the administrative burden faced by defendants, it does not find that assertions of overwork alone are sufficient to justify substantial delays. See Yu v. Brown, 36 F. Supp.2d 922, 934 (D.N.M. 1999) ("[D]elays of [a significant] magnitude, particularly when they occur over uncomplicated matters of great importance to the individuals involved, may not be justified merely by assertions of overwork.") (citations omitted). There has been no particularized showing that Reddy's application is especially complex or presents any national security concerns.
Furthermore, courts in this district have found that when an application for lawful permanent residency has been pending for more than two years, such a delay is unreasonable. See e.g., Gelfer v. Chertoff, C06-06724 WHA, 2007 WL 902382, *1 (N.D. Cal. 2007). This is notable because the statute underlying lawful permanent resident status determinations, unlike the one for naturalization, does not mandate a certain time frame for adjudication. It follows then, that where a naturalization application has been pending for two years (as is the case here), it is appropriate to remand the case with instructions to adjudicate by a particular deadline.
Cf. 8 U.S.C. § 1571(b) (suggesting a 180 day timetable for processing immigration benefits application) with 8 U.S.C. § 1447(b) (120 day processing deadline).
As such, USCIS shall have until June 4, 2008 to adjudicate Reddy's application for naturalization. By that date, Defendants shall file an affidavit with the court demonstrating compliance. This case shall remain open pending receipt of that affidavit.
IT IS SO ORDERED.