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Nasser v. District Director

United States District Court, E.D. Michigan, Southern Division

January 30, 2017

MOHAMED M. NASSER, Plaintiff,
v.
DISTRICT DIRECTOR, USCIS DETROIT, et al., Defendants.

          PRESENT: Honorable Gerald E. Rosen United States District Judge

          OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO REMAND

          GERALD E. ROSEN, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Mohamed M. Nasser commenced this action in this Court on May 16, 2016, complaining of an excessive delay in the processing of his application for naturalization by the Defendant federal government agencies and officials. Under a provision of the Immigration and Nationality Act (“INA”), if the Government fails to make a determination on such an application “before the end of the 120-day period after the date on which [a statutorily mandated] examination is conducted . . ., the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter, ” and the court may then “either determine the matter or remand the matter, with appropriate instructions, ” for determination by the appropriate agency. 8 U.S.C. § 1447(b). Plaintiff alleges that this statutory 120-day deadline has passed without a decision on his application, and he requests that the Court conduct a hearing, review his application for naturalization, and grant him a judgment declaring that he is entitled to U.S. citizenship.

         By motion filed on August 9, 2016, Defendants now request that this matter be remanded to the U.S. Citizenship and Immigration Services (“USCIS”) so that this agency may adjudicate Plaintiff's application and determine his eligibility for citizenship. In support of this motion, Defendants state that the USCIS is now prepared to review and resolve Plaintiff's application, with or without certain evidence that the agency has requested but Plaintiff has not yet provided, and they contend that the proper course under these circumstances is to remand to the agency, USCIS, that is charged with the responsibility to decide applications for naturalization in the first instance. Plaintiff filed a response in opposition to this motion on September 9, 2016, asserting that the Court has both the authority and the obligation to determine his eligibility for U.S. citizenship where, in his view, the issue upon which his application turns has effectively been resolved in his favor, and where Defendants should be deemed to have forfeited their opportunity to adjudicate his application by virtue of their allegedly egregious conduct to date in processing this application.

         Defendants' motion has been fully briefed by the parties. Having reviewed the parties' briefs and the record as a whole, the Court finds that the relevant facts, allegations and legal arguments are adequately presented in these written submissions, and that oral argument would not significantly aid the decisional process. Accordingly, the Court will decide Defendants' motion “on the briefs.” See Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. This opinion and order sets forth the Court's rulings on this motion.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff Mohamed M. Nasser is a citizen of Yemen who was admitted to the United States as a lawful permanent resident (“LPR”) in May of 1992. His LPR status is based on an approved immediate relative visa petition that was filed on his behalf by Nagi El-Zokari, the husband of Plaintiff's alleged biological mother, Fatima Mansoor Mohamad El-Zokari.

         In February of 2013, as Plaintiff was returning to the United States from a visit to Yemen, Immigration and Customs Enforcement (“ICE”) served him with a Notice to Appear (“NTA”) for removal proceedings in immigration court. ICE alleged in this NTA that at some point after Plaintiff obtained LPR status, Nagi El-Zokari denied any relationship to Plaintiff and instead claimed that he had “helped smuggle [Plaintiff] into the United States as a favor to a friend.” (Complaint, Ex. D, NTA.) In light of this information, ICE asserted that Plaintiff had secured LPR status through fraud or misrepresentation, and it directed Plaintiff to appear before an immigration court and show why he should not be removed from the United States based on the charges set forth in the NTA. (See id.) Before this hearing could be held, however, ICE cancelled the NTA on August 25, 2013 as improvidently issued, and the agency has never sought to reinstate the charges against Plaintiff or otherwise pursue this matter further.

         On July 1, 2014, Plaintiff filed an application for naturalization with the USCIS. In an initial interview conducted on December 16, 2014, Plaintiff demonstrated insufficient proficiency in written English, but he passed this and all other pertinent tests during a second interview held on February 17, 2015. Nonetheless, he was told that a decision could not yet be made on his application. (See Complaint, Ex. A, 2/17/2015 Naturalization Interview Results.)

         By letter dated March 13, 2015, the USCIS requested that Plaintiff submit further evidence in support of his application. In particular, Plaintiff was asked to submit the results of DNA blood tests “[i]n order to demonstrate the existence of a biological relationship between [him] and [his] mother, Fatima Mansoor Mohamed El-Zokari.” (Complaint, Ex. D, Form N-14, Request for Evidence.) In response to this request, Plaintiff's attorney asserted in a March 24, 2015 letter that the evidence sought by the USCIS was “not pertinent, nor relevant for [Plaintiff's] naturalization process, ” and he added that “[a]s a practical matter, DNA testing would not be possible at this time” because the U.S. embassy in Sana'a, Yemen was closed. (Complaint, Ex. D, 3/24/2015 Letter at 1.) Plaintiff's attorney further stated that Plaintiff's LPR status was “re-validated in 2013” by virtue of ICE's cancellation of the NTA issued at that time. (Id. at 1-2.) Accordingly, Plaintiff's attorney asked the USCIS to withdraw its request for evidence and schedule Plaintiff for an oath ceremony. (See Id. at 1.)

         After sending this March 2015 letter, Plaintiff's attorney attempted on a number of occasions to communicate with the USCIS regarding the status of Plaintiff's application for naturalization.[1] When over a year went by without a decision on Plaintiff's application, Plaintiff brought suit in this Court on May 16, 2016, seeking the adjudication of his application for naturalization in this judicial forum or, in the alternative, an order directing the USCIS to adjudicate this application and schedule Plaintiff for an oath ceremony within thirty days or by a date set by the Court.

         III. ANALYSIS

         A. The Statutory Framework ...


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