Munar v. Johnson et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
Francisco E. Munar, Jr., )
)
Plaintiff, ) 3:15-cv-00215 JWS
)
vs. ) ORDER AND OPINION
)
Jeh C. Johnson, et al., ) [Re: Motion at Docket 10]
)
Defendants. )
)
I. MOTION PRESENTED
At docket 10 defendants Jeh C. Johnson, et al., (“Defendants”) move pursuant to
8 U.S.C. § 1447(b) for an order remanding to the US Citizenship and Immigration
Services (“the USCIS”) the naturalization petition and complaint of plaintiff Francisco E.
Munar, Jr. (“Munar”). At docket 11 Defendants submit the declaration of Immigration
Services Officer Lynn Edwards (“Edwards”) in support of their motion. Munar opposes
at docket 16; Defendants reply at docket 17. Oral argument was not requested and
would not assist the court.
Case 3:15-cv-00215-JWS Document 19 Filed 03/28/16 Page 1 of 7

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II. BACKGROUND
Munar filed an application for naturalization on November 3, 2014.1 The USCIS
investigated his application pursuant to 8 U.S.C. § 1446(a) and ex amined him pursuant
to § 1446(b) on January 8 and May 21, 2015.2 According to the USCIS, all of Munar’s
tests were complete as of May 21, 2015,3 but it did not decide his application because
his “file and testimony raised concerns of fraud.”4
Approximately one year after filing his naturalization application, Munar filed a
petition for naturalization and a complaint with this court in which he seeks the following
relief: (1) de novo adjudication of his naturalization application under § 1447(b);5
(2) declaratory and injunctive relief under the Administrative Procedure Act;6 and (3) a
writ of mandamus.7 Defendants now move to remand to the USCIS, stating that it is “in
a position to adjudicate [Munar’s] naturalization application within seven days of
remand.”8
III. STANDARD OF REVIEW
The parties agree that USCIS did not determine Munar’s naturalization
application within 120 days of his examination. 8 U.S.C. § 1147(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 m ay apply to
1Doc. 1 at 2 ¶ 1; Doc. 11 at 2 ¶ 4.
2Doc. 11 at 2 ¶¶ 4-5, 7. See generally 7-96 Charles Gordon et al., IMMIGRATION LAW AND
PROCEDURE § 96.04 (Rev. Ed.).
3Doc. 11 at 2 ¶ 7.
4Id. at 2 ¶ 8.
5Doc. 1 at 20.
6Id. at 21.
7Id. at 21-22.
8Doc. 11 at 3 ¶ 14.
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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 USCIS] to determine the matter.
Once the applicant presents the district court with a §1147(b) request, the district court
exercises its discretion in determining whether to decide the naturalization petition or
remand it to the USCIS.9
IV. DISCUSSION
For two hundred years, from 1790 to 1990, naturalization applications were
decided by courts.10 This changed with the Immigration Act of 1990, which transferred
that authority from the district courts to the Attorney General.11 The Attorney General
has since delegated that authority to the USCIS.12
The Immigration Act of 1990 did not remove the courts from the naturalization
process entirely, however. The Act reserves for district courts the “final word
concerning denial of a naturalization application” under two circumstances: denial and
delay.13 “If a naturalization application is denied, 8 U.S.C. § 1421(c) permits the
applicant to seek a de novo review of this denial in district court.”14 Likewise, if the
USCIS delays its determination of an application for more than 120 days, § 1447(b)
9United States v. Hovsepian, 359 F.3d 1144, 1161 (9th Cir. 2004) (en banc).
10See Jessica Schneider, Waiting to Be an American: The Courts’ Proper Role and
Function in Alleviating Naturalization Applicants’ Woes in 8 U.S.C. § 1447(b) Actions, 29 St.
Louis U. Pub. L. Rev. 581, 583 (2010).
11Hernandez de Anderson v. Gonzales, 497 F.3d 927, 932 (9th Cir. 2007) overruled on
other grounds by Cardenas-Delgado v. Holder, 720 F.3d 1111, 1118 (9th Cir. 2013) (citing Pub.
L. No. 101–649, § 401 (1990)).
12Id.
13Hovesepian, 359 F.3d at 1162-63.
14Yith v. Johnson, No. 114CV01875LJOSKO, 2016 WL 385505, at *7 (E.D. Cal. Jan. 8,
2016) (citations omitted).
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allows the applicant to obtain a de novo proceeding before the district court.15 Under
this statutory scheme, where the district court retains ultimate authority over
naturalization applications, § 1447(b) “is best viewed as a mechanism by which
naturalization applicants who are impatient with [agency] delay may skip the agency’s
analysis of their application and proceed directly to the step in which the district court
conducts a de novo review of the application.”16
Although § 1447(b) bestows on the district court this power to review a
naturalization application, the court also has the option to rem and the application to the
USCIS “with appropriate instructions.”17 Neither Congress nor the Ninth Circuit has
provided the district courts with clear guidance on how to determine which option is
appropriate. The vast majority of district courts remand.18
Where statutory language is not dispositive, as here, courts “look to the
congressional intent ‘revealed in the history and purposes of the statutory scheme.’”19
Where Congress has made its intent clear, courts must give effect to that intent.20 In
Hovsepian an en banc Ninth Circuit panel discussed “four main public policy objectives
that Congress sought to further by enacting the Immigration Act of 1990.”21
15Hovsepian, 359 F.3d at 1162.
16Id.
178 U.S.C. § 1447(b).
18See, e.g., Ganz v. Lynch, No. 15-CV-03214-JST, 2015 WL 9474285, at *3 (N.D. Cal.
Dec. 29, 2015); Singh v. Crawford, No. 1:13-CV-01894-SKO, 2014 WL 1116989, at *3 (E.D.
Cal. Mar. 19, 2014); Maniulit v. Majorkas, No. 3:12-CV-04501-JCS, 2012 WL 5471142, at *3
(N.D. Cal. Nov. 9, 2012); Wince v. Gonzalez, No. CV 07-1572-PHX-MHM, 2008 WL 2668838,
at *3 (D. Ariz. June 30, 2008); Volovnikov v. DHS, No. 07-3607(EDL), 2008 WL 666023, at *3
(N.D. Cal. Mar. 6, 2008).
19United States v. Buckland, 289 F.3d 558, 565 (9th Cir. 2002) (en banc) (quoting
Adams Fruit Co. v. Barrett, 494 U.S. 638, 642 (1990)).
20Id. at 564.
21Hovsepian, 359 F.3d at 1163.
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The first two objectives were to “reduce the waiting time for naturalization
applicants” and “to streamline the process of applying for naturalization and . . . reduce
the burdens on courts and [the USCIS].”22 Congress transferred naturalization authority
to the Executive Branch because, under the former naturalization scheme, some
applicants faced “long delays involved in scheduling [naturalization] matters for court
approval.”23 In an effort to prevent administrative logjams, Congress provided that if an
applicant’s decision has been pending for over 120 days he may “file a petition in the
court. The court has the ability to make a decision at that time or remand to [the
USCIS] for further factfinding.”24 “Although in some circumstances the need for
additional fact finding and processing time would be justified,” Congress stated, even
complex cases “must come to resolution at some point, and if a decision is not
rendered in a timely fashion . . . the petitioner is entitled to a decision and hearing on
the case.”25 This structure of administrative naturalization and judicial oversight was
“designed to help aspiring citizens attain that which they have earned and which is
rightfully theirs.”26
22Id. (citing 135 Cong. Rec. H4539-02 (July 31, 1989) (statement of Rep. Smith) (“In
order to streamline the process, H.R. 1630 vests authority for naturalization with the Attorney
General, thus providing a one-step process from application to swearing-in. It allows an
applicant to give his oath of citizenship in court or in an administrative ceremony.”)).
23135 Cong. Rec. H4539-02 (July 31, 1989) (statement of Rep. Morrison, sponsor of
H.R. 1630). See also H.R.Rep. No. 101-187, at 8 (1989) (“[T]he increasing volume of
citizenship applicants and heavy dockets of the Courts in other areas leads the Committee to
consider a more streamlined process for those aspiring to citizenship.”).
24135 Cong. Rec. H4539-02 (July 31, 1989) (statement of Rep. Morrison). See also
H.R. Rep. No. 101-187, at 12 (1989) (noting that complicated cases were sometimes “placed
on the ‘backburner’ due to indecisiveness on the part of an examiner who may not be
thoroughly versed in the legal technicalities.”).
25H.R. Rep. No. 101-187, at 14 (1989).
26135 Cong. Rec. H4539-02 (July 31, 1989) (statement of Rep. Morrison).
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The third objective that Hovsepian identifies is Congress’s intent to foster
“consistency and fairness of naturalization decisions.”27 For example, Congress hoped
that consolidating naturalization authority within the Executive Branch would lead to
uniform guidelines “on the criteria for the exam relating to English language and U.S.
Government and History.”28 The fourth and final objective that Hovsepian identifies is
Congress’ intent to “to give naturalization applicants the power to choose which forum
would adjudicate their applications.”29 As the representative who introduced the bill that
eventually became the Immigration Act of 1990 noted, “[i]n this legislation, it is the
applicant, not the government, who decides the place and the setting and the timeframe
in which the application will be processed.”30
Based on these objectives, it is clear that Congress granted the Executive
Branch primary authority over naturalization applications31 in an effort to speed up the
decision-making process. At the same time, Congress did not want complicated
applications to remain on an administrative “back burner” indefinitely, and therefore, it
provided that applicants may seek relief in the district court after 120 days. It is then up
to the district court to determine whether judicial intervention is necessary.
27Hovsepian, 359 F.3d at 1164 (citing H.R. Rep. No. 101-187, at 12-13 (1989)).
28H.R. Rep. No. 101-187, at 11 (1989).
29Hovsepian, 359 F.3d at 1164.
30Id. (quoting 135 Cong. Rec. H4539–02 (statement of Rep. Morrison)) (emphasis in
original).
31See 8 U.S.C. § 1421(a) (“The sole authority to naturalize persons as citizens of the
United States is conferred upon the Attorney General.”).
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Based on the facts of this case, judicial intervention is not necessary.32 Because
USCIS has represented that all of its investigations are now complete and a decision
will be made within one week, remand is appropriate.
V. CONCLUSION
Based on the preceding discussion, Defendants’ motion to remand at docket 10
is GRANTED. USCIS is ordered to adjudicate Munar’s application for naturalization
within seven days of this order.
DATED this 28th day of March 2016.
/s/ JOHN W. SEDWICK
SENIOR UNITED STATES DISTRICT JUDGE
32But cf. Omar v. Holder, 756 F. Supp. 2d 887, 896 (S.D. Ohio 2010) (“Defendants have
not requested remand.”); Taalebinezhaad v. Chertoff, 581 F. Supp. 2d 243, 246 (D. Mass.
2008) (“The Court remained unconvinced after oral argument that Taalebinezhaad’s application
would necessarily be handled with alacrity if it were to remand the case to USCIS.”); Lifshaz v.
Gonzales, No. C06-1470MJP, 2007 U.S. Dist. LEXIS 28946 (W.D. Wash. Apr. 19, 2007) (“[T]he
Court is disturbed by the possibility that a determination on Mr. Lifshaz’s naturalization
application will be endlessly delayed.”); Irina Vladimirovna Astafieva v. Gonzales, NO. C
06-04820 JW, 2007 U.S. Dist. LEXIS 28993 (N.D. Cal. Apr. 2, 2007) (“Defendants have
provided no indication when action might be taken on her application.”).
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