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Alamgir v. Napolitano

July 8, 2010

SHOAIB ALAMGIR, PLAINTIFF
v.
JANET NAPOLITANO, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY DEFENDANT.



The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

Judge Nora Barry Fischer

MEMORANDUM OPINION

I. Introduction

Plaintiff brings this suit under the Mandamus Act, 28 U.S.C. § 1361 and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(1) seeking to compel Defendant to adjudicate his naturalization application in a timely manner. (Docket No. [1]) (hereinafter, "Complaint"). The Department of Homeland Security's U.S. Citizenship and Immigration Services (hereinafter, "USCIS") subsequently denied Plaintiff's Application for Naturalization on May 10, 2010. (Docket Nos. [3] at 2, [5] at 2). Presently before the Court is Defendant's Motion to Dismiss the Plaintiff's Complaint for lack of subject matter jurisdiction, or in the alternative, Motion for Summary Judgment. (Docket No. [2]). For the following reasons, Defendant's Motion to Dismiss is GRANTED.

II. Factual Background

This action stems from Plaintiff's attempt to adjust his immigration status from that of permanent resident to that of U.S. citizen through the naturalization process. (Docket No. [1] at ¶ 1).

Plaintiff, a citizen of Pakistan, alleges that he has been a permanent resident in the United States since November 12, 2002.*fn1 (Id. at ¶¶ 4, 6). Pursuant to 8 U.S.C. § 1427, Plaintiff filed an Application for Naturalization (Form N-400) on October 10, 2008, with USCIS. (Id. at ¶ 6). On November 26, 2008, the USCIS Application Support Center in Alexandria, Virginia obtained Plaintiff's biometrics. (Id. at ¶ 9). Because Plaintiff's background check was still pending, his March 2009 interview at the USCIS office in Fairfax, Virginia was canceled. (Id. at ¶ 10). On July 30, 2009, Plaintiff filed a change of address (Form AR-11) with USCIS. (Id. at ¶ 11). Plaintiff moved from Virginia to Pittsburgh, Pennsylvania on August 1, 2009, where he currently resides. (Id. at ¶¶ 4, 12).

On September 11, 2009, the Fairfax USCIS office scheduled a second interview for Plaintiff on Monday, September 28, 2009. (Id. at ¶ 13). However, the interview was canceled on Friday, September 25, 2009, because Plaintiff's background/security check was still pending. (Id.). During a phone conversation on September 28, 2009, an FBI agent informed Plaintiff that his FBI fingerprinting was completed and submitted to USCIS on November 28, 2008. (Id. at ¶ 15).

In September of 2009, Plaintiff attended an INFOPASS appointment at the USCIS Pittsburgh Field Office and was informed that his case would be transferred to Pittsburgh. (Id. at ¶ 14). During another INFOPASS appointment on October 29, 2009, at the Pittsburgh USCIS office, Plaintiff was informed that his security check was still pending. (Id. at ¶ 16).

On March 5, 2010, Plaintiff initiated this suit alleging that Defendant failed to adjudicate his naturalization application within a reasonable time. (Id. at ¶ 25). In his Complaint, Plaintiff seeks an Order directing Defendant to "properly and timely adjudicate his naturalization application" and providing detailed reasons of denial, if his application were denied.*fn2 (Id. at ¶ 27).

On April 22, 2010, Plaintiff appeared for an interview regarding his application. (Docket No. [3-2] at 2). Subsequently, on May 10, 2010, the USCIS denied Plaintiff's Application for Naturalization and provided Plaintiff with a seven-page explanation detailing the reasons for the denial. (Docket Nos. [3] at 2, [3-2]). Defendant determined that Plaintiff failed to meet the statutory requirement of lawful residence and good moral character because he (1) spent 481 days outside the United States traveling to Pakistan and Dubai; (2) has used numerous aliases; and (3) has an extensive criminal history.*fn3 (Docket No. [3] at 2).

On May 26, 2010, Plaintiff filed a Request for a Hearing on a Decision in Naturalization Proceedings (Form N-336) with USCIS. (Docket Nos. [5] at 1, [6] at 3). The USCIS has 180 days to conduct this hearing. 8 C.F.R. § 336.2(b). Currently, Plaintiff's administrative hearing request is pending and a final determination has not yet been issued. (Docket No. [6] at 3).

III. Procedural History

In response to Plaintiff's Complaint, Defendant filed a Motion to Dismiss, or alternatively, a Motion for Summary Judgment and Brief in Support on May 14, 2010, arguing that the case is moot as Plaintiff's application was adjudicated and denied on May 10, 2010. (Docket Nos. [2] and [3]) (hereinafter, "Defendant's Motion"). On June 4, 2010, Plaintiff filed his Response and Brief in Opposition to Defendant's Motion admitting the adjudication and denial, but claiming the matter still represents an actual pending case or controversy. (Docket No. [5]). On June 9, 2010, Defendant filed its Reply Brief in support of the Motion to Dismiss for lack ...


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