United States District Court, W.D. Pennsylvania
August 26, 2005.
SAFWAT EL-DAOUR, Plaintiff,
MICHAEL CHERTOFF, Secretary, Department of Homeland Security, et al., Defendants.
The opinion of the court was delivered by: DONETTA AMBROSE, District Judge
OPINION and ORDER OF COURT
Plaintiff, a lawful permanent resident, has been awaiting a
ruling from the Citizenship and Immigration Services ("CIS") on
his naturalization application for almost four years. Given this
delay, he asks this Court to either determine his application or
remand it to the CIS for a prompt resolution. The Defendants
argue that this Court lacks subject matter jurisdiction over
Plaintiff's claim. I find that I do, in fact, have subject matter
jurisdiction, but nevertheless elect to remand the case for
further proceedings. OPINION
Plaintiff Safwat El-Daour ("El-Daour") is a Palestinian
national who became a lawful permanent resident of the United
States on or about May 7, 1998. On November 8, 2001, El-Daour
applied for naturalization under 8 U.S.C. § 1427 and § 1430(a).
Although El-Daour was fingerprinted, was interviewed and was told
that the examiner would recommend him for approval, El-Daour has
yet to receive notice that his application has been adjudicated.
Accordingly, he commenced this action seeking declaratory
judgment of naturalization or, in the alternative, relief in
The Defendants, Michael Chertoff, Secretary, Department of
Homeland Security et. al ("the Defendants") demand dismissal of
the Complaint pursuant to Federal Rule of Civil Procedure
12(h)(3) for lack of subject matter jurisdiction. The Defendants
reason that the Citizen and Immigration Services ("CIS") has not
completed its "examination" of El-Daour's application and
therefore that jurisdiction under 8 U.S.C. § 1447(b) is
premature. The Defendants also argue that El-Dauor cannot
circumvent § 1447(b)'s limitations by seeking relief under the
Administrative Procedures Act, 5 U.S.C. § 701 et. seq. ("APA") or
the Mandamus Act, 28 U.S.C. § 1361.
For the reasons set forth below, I agree with El-Daour that
more than one hundred twenty (120) days have expired since the
date of his examination without a ruling on his application by
the CIS. As such, I have jurisdiction under § 1447(b) to
entertain El-Daour's complaint. Yet § 1447(b) also vests this
Court with the discretion to remand the action to the CIS for
further proceedings. I am not equipped, nor qualified for that matter, to conduct a criminal background
investigation of ElD-aour. Congress assigned this responsibility
to the Federal Bureau of Investigation ("FBI"). Accordingly, I
will remand this matter to the CIS and instruct them to take
action upon El-Daour's application as expeditiously as possible
upon receiving the results of the FBI investigation.
The crucial matter before me in assessing whether I have
subject matter jurisdiction over El-Daour's Complaint is the
meaning of the word "examination" as used in 8 U.S.C. § 1447(b).
Section 1447(b) provides that:
[i]f 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.
8 U.S.C. § 1447(b) (emphasis added). El-Daour argues that the
word "examination" as used in § 1447(b) references the date upon
which the CIS examiner interviews the applicant. The parties
agree that more than 120 days have elapsed since the date upon
which the CIS examiner interviewed El-Daour, without the issuance
of a ruling on his application. Were I to accept El-Daour's
reading of § 1447(b) then, I would conclude that I do in fact
have the subject matter jurisdiction necessary to entertain this
The Defendants argue, in contrast, that the word "examination"
really connotes a process rather than a specific event. According to the
Defendants, the "examination" has yet to be completed because the
FBI has not tendered the results of its criminal background
investigation of El-Daour. Thus, were I to conclude that the
"examination" is a process not completed until the background
checks are finished, then the one hundred twenty (120) day period
described in § 1447(b) would not have expired and I would lack
subject matter jurisdiction over El-Daour's complaint.
The Defendants' argument is premised upon a recent decision
issued by the United States District Court for the Eastern
District of Virginia. In Danilov v. Aguirre, 370 F. Supp.2d 441
(E.D. Va. 2005), an applicant for naturalization sought relief in
district court under § 1447(b) with respect to his pending
application. More than 120 days had lapsed from the date upon
which he was interviewed by a CIS employee, and CIS had not ruled
on the application. The defendants sought dismissal of the claim
on the same basis advanced in the present litigation.
Specifically, the defendants argued that the term "examination"
as used in § 1447(b) referred to a process not complete until the
FBI tenders the result of its background investigation. Thus, the
120 day counting period does not begin until the entire process
The district court agreed with the defendants. The district
court based its conclusion on language set forth in § 1446(b).
That section allows an employee designated to conduct an
examination to take testimony, administer oaths, and issue subpoenas.*fn1 The court understood § 1446(b) to make
"clear that an examination is not a single event, but instead is
essentially a process the agency follows to gather information
concerning the applicant." Danilov, 370 F. Supp.2d at 443
(emphasis in original). The court also found support for its
conclusion in the requirement that "the FBI complete a criminal
background investigation of an applicant before the examination
may be completed." Id. at 444, citing 8 C.F.R. § 335.2
(emphasis in original).
I do not find the Danilov decision to be persuasive for
several reasons. First, I note that the decision was issued
without benefit of briefing by the plaintiff.*fn2 The case
appears to have presented an issue of first impression in the
Fourth Circuit Court, the Danilov court does not cite to any
case law as authority for its interpretation of § 1447(b) and
independent research did not reveal any either. I have had a
benefit not bestowed upon the Danilov court a response by the
naturalization applicant to the defendants' argument that subject
matter jurisdiction is lacking.
Second, I believe that the Danilov court misreads and/or
ignores the applicable statute and regulations. The statute itself speaks of
"the date on which the examination is conducted."
8 U.S.C. § 1447(b) (emphasis added). This contemplates that the examination
occurs on a particular, identifiable, date. A "process" does not
occur on one particular and identifiable date. Further, even were
I to accept the proposition that "examination" means "process,"
the result would not be that advocated by the Danilov court and
the Defendants here. Section 1447(b) would, under their
interpretation, allow for subject matter jurisdiction if the CIS
fails to issue a decision before "the end of the 120-day period
after the date on which the [process] is conducted. . . ." Yet
the process is being "conducted" on the date the applicant files
the application, on the date that the interview occurs and on the
date the FBI performs the background investigation. Certainly the
Danilov court and the Defendants here would reject the notion
that the applicant can seek court intervention 120 days after any
of those tasks are being conducted. For the Danilov court's
decision and for the Defendants' position here to make sense, I
would not only have to read "examination" as it is used in §
1447(b) to mean "process," but I would also have to read
"conducted" as it is used in § 1447(b) to mean "completed" or
"concluded." I cannot imagine that Congress was so sloppy in its
Additionally, the Danilov court's reading of "examination"
does not square with the applicable regulations. Section 335.2 is
entitled "Examination of the applicant" and thus is clearly
relevant to understanding the meaning of "examination" as it is
used in § 1447(b). Section 335.2 reads, in relevant part: (a) General. Subsequent to the filing of an
application for naturalization, each applicant shall
appear in person before a Service officer designated
to conduct examinations pursuant to § 332.1 of this
chapter. The examination shall be uniform throughout
the United States and shall encompass all factors
relating to the applicant's eligibility for
naturalization. . . .
(b) Completion of criminal background checks before
examination. The Service will notify applicants for
naturalization to appear before a Service officer for
initial examination on the naturalization application
only after the Service has received a definitive
response from the Federal Bureau of Investigation
that a full criminal background check on the
applicant has been completed.
. . .
(c) Procedure. Prior to the beginning of the
examination, the Service officer shall make known to
the applicant the official capacity in which the
officer is conducting the examination. The applicant
shall be questioned, under oath or affirmation, in a
setting apart from the public. Whenever necessary,
the examining officer shall correct written answers
in the application for naturalization to conform to
the oral statements made under oath or affirmation.
The Service officer shall maintain, for the record,
brief notations of the examination for
naturalization. At a minimum, the notations shall
include a record of the test administered to the
applicant on English literacy and basic knowledge of
the history and government of the United States. The
Service officer may have a stenographic, mechanical,
electronic, or videotaped transcript made, or may
prepare an affidavit covering the testimony of the
applicant. The questions to the applicant shall be
repeated in different form and elaborated, if
necessary, until the officer conducting the
examination is satisfied that the applicant either
fully understands the questions or is unable to
understand English. The applicant and the Service
shall have the right to present such oral or
documentary evidence and to conduct such
cross-examination as may be required for a full and
true disclosure of the facts.
. . .
(e) Record of examination. At the conclusion of the examination, all corrections made on the applicant
form and all supplemental material shall be
consecutively numbered and listed in the space
provided. . . . .
8 C.F.R. § 335.2. Section 335.2 can only be understood as
equating the "examination" with the "interview" conducted by the
Moreover, section 335.2(b) states that the full criminal
background check must be completed before the examination is
conducted, not, as the Danilov court represents, that the
investigation must be conducted before the examination can be
completed. See Danilov, 370 F. Supp.2d at 444. Clearly,
then, the investigation and the examination are separate and
distinct things. This is also confirmed by the fact that § 335.1
of the regulations deals with an investigation by CIS whereas §
335.2 of the regulations deals with the examination. If the
investigation were really part of the examination, one would
expect to find discussion of the same under the regulation
dealing with examination.
Finally, the Danilov court's interpretation of "examination"
and that advocated by the Defendants here, is contrary to that
given by other courts. See Sweiliem v. U.S. Citizenship and
Immigration Services, Civ. No. 5-125, 2005 WL 1123582 (N.D. Ohio
May 10, 2005) (finding that an applicant for naturalization, who
had sought court relief under § 1447(b) because of a failure to
issue a decision before the expiration of 120 days after the
examination, was "examined for citizenship" for purposes of §
1447(b) on the date of the interview); Ogunfuye v. Acosta, Civ.
No. 5-551, 2005 WL 1607034 (S.D. Tex. July 1, 2005) (finding,
where plaintiff claimed that more than 120 days had elapsed after
her date of examination before the CIS without an adjudication on her eligibility, that plaintiff could not prove
that her "examination" occurred because she was arrested upon
arriving for her interview and was never in fact interviewed) and
Castracani v. Chertoff, Civ. No. 4-1127, 2005 WL 1566443
(D.D.C. July 5, 2005) (finding that, for purposes of assessing
whether 120 days have lapsed since the date of the examination
without a resolution on an application, the plaintiff had been
"examined" on March 25, 2003 the date of his appearance for the
interview with the CIS agent). I acknowledge that these decisions
might not be squarely on point. Nevertheless, they are consistent
in their reading of the word "examination" as used in § 1447(b)
to mean the interview. I find them persuasive for that reason.
Here, as in Danilov and as likely in many other cases, the
CIS simply failed to follow its own procedure. Had the CIS
complied with § 335.2(b) and completed the criminal background
checks before conducting the examination (interview), El-Daour
would not be waiting month after month after having the interview
for a ruling on his application. I certainly do not intend to
chastize the CIS or the FBI for the lengthy processing of
naturalization applications. As the court noted in Alkenani v.
Barrows, 356 F. Supp.2d 652, 657 (N.D. Tx. 2005),
"unfortunately, delays of this nature are inevitable and becoming
more frequent in light of heightened security concerns in the
That said, while I am confident that I have subject matter
jurisdiction over El-Daour's application, I must remand the
action to the CIS. Section 1447(b) permits a court to "remand the matter, with appropriate instructions, to
the Service to determine the matter." Certainly, I sympathize
with El-Daour's plight. He "is understandably anxious to complete
the naturalization process so he can fully enjoy the benefits of
United States citizenship." Alkenani, 356 F. Supp.2d at 657.
Yet the very reason that the CIS did not process El-Daour's
application within 120 days of his examination prevents me from
deciding his application. The FBI has not yet completed the
criminal background check. This is a vital piece of information.
A court is not equipped to conduct such an investigation. I do
not have the resources at my disposal to determine whether
El-Daour presents a risk to national security or to public
Consequently, I must remand the action to the CIS for a prompt
resolution once the background check has been completed. ORDER OF COURT
AND NOW, this 26th day of August, 2005, after careful
consideration, and for the reasons set forth in the accompanying
Opinion, it is ORDERED that the Motion to Dismiss (Docket No. 15)
is denied in part and granted in part. It is denied insofar as it
sought the dismissal of the action under Rule 12(h) for lack of
subject matter jurisdiction. It is granted, however, insofar as
it sought alternative relief, a remand of this action to the CIS
under 8 U.S.C. § 1447(b) for a prompt resolution of this matter
upon receipt of the results of the FBI's criminal background
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