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 ...