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Mostovoi v. Secretary of the Dep't of Homeland Security


June 4, 2007


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


Plaintiff Alexei P. Mostovoi brings this action pursuant to § 336(b) of the Immigration and Nationality Act, codified in 8 U.S.C. § 1447(b), seeking judicial intervention to adjudicate his naturalization application, or, in the alternative, to remand to the U.S. Citizenship and Immigration Services ("the CIS"), with a specific deadline by which it should make a determination regarding his case. Plaintiff moves for summary judgment, and defendants cross-move to dismiss, arguing that the Court lacks subject matter jurisdiction over plaintiff's claim, or alternatively, that plaintiff has not stated a claim upon which relief may be granted. Defendants' motion will be denied, plaintiff's motion will be granted, and the case will be remanded to the CIS with further instructions.


The facts of this case are essentially undisputed. Mostovoi, a native of Russia, is a lawful permanent resident of the United States, and resides in Westchester. (Compl. Ex. 1.) Mostovoi filed an application for naturalization, also known as an "N-400" application, on October 11, 2005. (Id.) On February 17, 2006, Mostovoi successfully passed an examination administered at the CIS's New York City office (Compl. Ex. 2), as required by 8 U.S.C. § 1446 prior to naturalization. At that time, the CIS informed him that it would notify him about the status of his application and required background investigation, which consists of a name check conducted by the FBI. (Id.; see Cannon Decl. ¶¶ 17-21.)

Six months passed, without a word from the CIS. On August 10, 2006, plaintiff was informed by the CIS that the FBI had not yet completed the required name check, and therefore his naturalization application was still pending. (Compl. Ex. 3.) No reason was given for the delay, and the only recourse provided Mostovoi was that he could "contact" the CIS by "calling [their] customer service number" if he did not hear from them again within another six months. (Id.)

Apparently discontent with the CIS's failure to timely process his naturalization application, Mostovoi did not wait an additional six months to act. On August 23, 2006, Mostovoi filed the present action, requesting that this Court adjudicate his application or remand with further instructions to the CIS, pursuant to 8 U.S.C. § 1447(b). In addition, Mostovoi submitted a Freedom of Information-Privacy Act ("FOIPA") request regarding FBI records pertaining to him. (P. Reply Ex. 2.) Finally, Mostovoi made an inquiry requesting expedition of his naturalization application directly to the FBI. (P. Reply Ex. 3.)

The FOIPA and FBI requests having both come up empty, Mostovoi moved for summary judgment on December 8, 2006. Defendants cross-moved to dismiss on January 29, 2007; both motions were fully briefed as of February 14, 2007.*fn1


I. Legal Standards

Defendants move to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that the Court lacks subject matter jurisdiction to hear plaintiff's claim. Alternatively, defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that plaintiff has not stated a claim upon which relief may be granted.*fn2 When deciding a 12(b)(1) or 12(b)(6) motion, the Court must take as true the facts as alleged in plaintiff's complaint. Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). It may consider documents incorporated in the complaint by reference. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). All reasonable inferences must be drawn in the plaintiff's favor. Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 216 (2d Cir. 2004); Hason v. Office of Prof'l Med. Conduct, 314 F. Supp. 2d 241, 246 (S.D.N.Y. 2004).

II. Subject Matter Jurisdiction

Defendants primarily argue that the Court lacks subject matter jurisdiction pursuant to 8 U.S.C. § 1447(b). Section 1447(b) provides: If 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 [CIS] to determine the matter.

Plaintiff asserts that, because his "examination" occurred on February 17, 2006, the 120-day period has long since passed, and this Court has jurisdiction to either adjudicate his application or remand the matter to the CIS with further instructions. Defendants argue, however, that the "examination" referred to in § 1447(b) encompasses not only the one-time event Mostovoi underwent during his interview on February 17, 2006, but rather a full investigation of the applicant, including the mandatory FBI name check. Thus, defendants argue that the Court does not have jurisdiction over plaintiff's claim because that investigation has not been completed.

Defendants' argument has been considered and rejected by numerous courts across the country, including courts in this district. See Alhamedi v. Gonzales, No. 07 Civ. 2541, slip op. at 6-8 (S.D.N.Y. May 29, 2007); Lin v. Sec'y, U.S. Dep't of Homeland Sec., No. 07-MC-6012L, 2007 WL 1231482, at *2 (W.D.N.Y. Apr. 24, 2007); Mahd v. Chertoff, 06 Civ. 1023, 2007 WL 891867, at *2 (D. Colo. Mar. 22, 2007); Kherriden v. Chertoff, Civ. No. 06-4792, 2007 WL 674707, at *2-*5 (D.N.J. Feb. 28, 2007); Hussein v. Gonzales, 474 F. Supp. 2d 1265, 1267-68 (M.D. Fla. 2007); Manzoor v. Chertoff, 472 F. Supp. 2d 801, 804-08 & n.3 (E.D. Va. 2007); Aslam v. Gonzales, No. C06-614MJP, 2006 WL 3749905, at *1 (W.D. Wash. Dec. 19, 2006); Shalabi v. Gonzales, 06 Civ. 866, 2006 WL 3032413, at *3-*4 (E.D. Mo. Oct. 23, 2006); Eng v. Chertoff, Civ. No. H-06-1302, 2006 WL 2442894, at *1 (S.D. Tex. Aug. 21, 2006); Khan v. Chertoff, No. CV-05-560-PHX-SRB, 2006 WL 2009055, at *1-*2 (D. Ariz. July 14, 2006); Khelifa v. Chertoff, 433 F. Supp. 2d 836, 840-42 (E.D. Mich. 2006); Meyersiek v. U.S. CIS, No. CA 05-398 ML, 2006 WL 1582397, at *2-*3 (D.R.I. June 6, 2006); Daami v. Gonzales, Civ. No. 05-3667, 2006 WL 1457862, at *3-*6 (D.N.J. May 22, 2006); Al-Kudsi v. Gonzales, No. CV 05-1584-PK, 2006 WL 752556, at *1-*2 (D. Or. Mar. 22, 2006); Shalan v. Chertoff, Civ. No. 05-10980-RMZ, 2006 WL 42143, at *1-*2 (D. Mass. Jan. 6, 2006); Essa v. U.S. CIS, No. CIV051449, 2005 WL 3440827, at *2 n.2 (D. Minn. Dec. 14, 2005); El-Daour v. Chertoff, 417 F. Supp. 2d 679, 680-83 (W.D. Pa. 2005); Castracani v. Chertoff, 377 F. Supp. 2d 71, 73-75 (D.D.C. 2005).*fn3 It would be wasteful to repeat the reasoning of those cases; suffice to say, the Court aligns itself with their reasoning -- specifically, the Court finds persuasive Judge Koeltl's thorough opinion in Alhamedi, which rejected defendants' argument as "strained." Id. at 6.

Moreover, defendants' argument lacks grounding not only in the case law, the language of the statute itself, and the statute's legislative purpose, see United States v. Hovespian, 359 F.3d 1144, 1159-64 (9th Cir. 2004), but in common sense. "Examination" in this context clearly refers to the discreet event that occurred on February 17, 2006, in which Mostovoi "passed" the required "tests" for naturalization (Compl. Ex. 2), and not to the subsequent FBI name check. It is axiomatic that "[w]here, as here, the statutory language is unambiguous, the inquiry ceases." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 439 (2002). The government's willingness to repeatedly put forward its "strained" argument, Alhamedi, slip op. at 6, represents, at best, a dismissive attitude towards common sense and logic, and at worst, a conscious disregard of the case law.*fn4

Should Congress wish to redefine the contours of the Court's jurisdiction, it has the power to do so. The Court expresses no opinion as to whether the judicial system should be involved in naturalization applications in this way. However, when Congress has clearly granted jurisdiction, it is the Court's responsibility to exercise it. Because more than 120 days has passed since Mostovoi's "examination," this Court has jurisdiction over plaintiff's petition.

III. Failure to State a Claim

In the alternative, defendants contend that even if the Court finds jurisdiction, it should dismiss the complaint for failure to state a claim upon which relief can be granted. They argue that the Court cannot adjudicate Mostovoi's application because making a determination without completing the required background investigation would contravene congressional intent, and because the judiciary is "ill-suited" to assume the task of investigating the applicant's background itself.*fn5 (D. Mem. 16.)

Although § 1447(b) specifically provides that district courts may "determine the matter" and adjudicate naturalization applications themselves after the 120-day period has passed, "nearly every court confronting this question has agreed with the defendants that it would be inappropriate to adjudicate a naturalization application in the absence of a completed FBI background check." Alhamedi, slip op. at 9; see id. (listing cases). Although the government has represented to the Court that the FBI name check has been completed with no "hits" on plaintiff's name, it has not provided documentation of this representation, and it would be inappropriate to adjudicate the matter at this time without giving the government a final opportunity to complete the background check. See El-Daour, 417 F. Supp. 2d at 684 (holding that the court "is not equipped to conduct such an investigation" and remanding with instruction that the CIS expeditiously adjudicate naturalization application following FBI's completion of background investigation); Shalabi, 2006 WL 3032413, at *4 (same); Alnabi v. Gonzales, Civil No. 06-1721, 2006 WL 2990338, at *3 (D. Minn. Oct. 18, 2006) (same); Essa, 2005 WL 3440827, at *2 (same).

Nevertheless, that conclusion does not require dismissal of the complaint. While judicial determination of the application should be treated as a last resort, § 1447(b) provides an alternative form of relief in that the Court may "remand the matter, with appropriate instructions, to the [CIS] to determine the matter." The defendants argue that even a remand directing the CIS to adjudicate Mostovoi's application immediately is unavailable because the CIS's hands are tied by Congress, which requires applicants to undergo a background check prior to naturalization. (D. Mem. 18 (claiming that the CIS is "effectively bar[red] . . . from considering Mostovoi's application at this time").) See Fuks v. Devine, No. 05 C 5666, 2006 WL 1005094, at *2 n.4 (N.D. Ill. Apr. 14, 2006) ("As a practical matter, we could not remand the matter to the Agency with instructions to render a decision on the [naturalization] application without forcing the Agency to violate [required procedures].").

However, "many courts have found it appropriate to remand with instructions, and there is no discernible reason why the same relief should not be afforded here, especially in light of the lengthy delay." Alhamedi, slip op. at 10. See id. at 10-11 (listing cases). Although the Court is mindful of the increased security pressures placed on agencies such as the FBI and CIS since September 11th (see Cannon Decl. ¶¶ 16-19), Congress has set specific deadlines for action to be taken. For sixteen months, defendants have not merely failed to meet that deadline, but have failed to provide definite information to Mostovoi or to the Court about the status of his application, apparently under the misapprehension that he has no adjudicable rights. Defendants were wrong; § 1447(b) confers upon Mostovoi the right to timely processing of his naturalization application, and confers upon this Court the authority to adjudicate his claim and provide relief.

It is appropriate for the Court to exercise its discretion in choosing a remedy in a manner that respects the practical constraints on government resources, and leaves the substantive decision-making, to the extent possible, in the hands of the agency primarily entrusted with responsibility for these matters. At the same time, however, such deference cannot be absolute. While it is true that courts are ill-equipped to conduct background investigations, Congress has specifically authorized the courts to take jurisdiction, hold a hearing, and "determine the matter." If it becomes necessary, the Court will not hesitate to do just that.

Accordingly, defendants' motion to dismiss is denied.

IV. Summary Judgment Motion

Plaintiff moves for summary judgment on his petition. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the nonmoving party). Because this case does not present any genuine issues of material fact, plaintiff's motion will be granted.

There is no factual dispute to be decided in this case; plaintiff has provided supporting documentation for every element of his claim, and the government does not dispute that plaintiff

(1) filed a naturalization application, (2) passed the required examination, and (3) is now only awaiting completion of the background check and scheduling of the oath ceremony. Indeed, the government goes even further in removing any doubt that there are any issues of fact in this case, in that it represented to the Court that the FBI has completed its name check, which turned up no "hits" for plaintiff's name, and that the only step left in the naturalization process for plaintiff is scheduling of the oath ceremony. Thus, summary judgment is warranted in this case.*fn6

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