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

June 4, 2007

ALEXEI P. MOSTOVOI, PLAINTIFF,
v.
SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, DIRECTOR OF U.S. CITIZENSHIP AND IMMIGRATION SERVICES, AND NEW YORK DISTRICT DIRECTOR OF U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DEFENDANTS.



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

OPINION AND ORDER

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.

BACKGROUND

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

DISCUSSION

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 ยง 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. ...


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