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Al-Farisi v. Mueller

June 14, 2007

OMAR HADIR AL-FARISI, PLAINTIFF,
v.
ROBERT S. MUELLER, III, DIRECTOR, FEDERAL BUREAU OF INVESTIGATION; EMILIO GONZALES, DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; ANDREA J. QUARANTILLO, NEW YORK DISTRICT DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; MICHAEL CHERTOFF, AND ALBERTO R.GONZALES, DEFENDANTS.



The opinion of the court was delivered by: Cedarbaum, J.

OPINION AND ORDER

Omar Hadir Al-Farisi applies under 8 U.S.C. § 1447(b) for a hearing on his long-pending application for naturalization. Defendants move to dismiss the complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), and, under Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted. For the following reasons, the motion to dismiss is denied, and the case is remanded to the United States Citizenship and Immigration Services (the "CIS") with further instructions.

BACKGROUND

The following facts are undisputed.

Omar Hadir Al-Farisi, a citizen of Iraq who resides in Manhattan, became a lawful permanent resident of the United States in December 1999. A little more than five years later, on February 9, 2005, he filed an application for naturalization, also known as an "N-400" application. On November 2, 2005, an officer of the CIS interviewed Mr. AlFarisi in connection with his naturalization application.

Shortly after the interview, CIS informed Mr. Al-Farisi that he had passed the required English language and United States history and government tests, but that his application could not be approved until the Federal Bureau of Investigation (the "FBI") completed a "name check." The CIS advised Mr. Al-Farisi that it would send him a written decision on his application once it reviewed the results of the name check.

Over the course of the following year, Mr. Al-Farisi's counsel inquired about the status of the application many times. On November 2, 2005, he e-mailed Michael A. Cannon, Section Chief of the National Name Check Program Section at FBI Headquarters, requesting that the name check be expedited. The e-mail was never answered. He followed up with e-mails to Mr. Cannon on November 8, 2005 and November 11, 2005. These, too, were not answered.

On December 19, 2005, Mr. Al-Farisi's counsel again inquired about the status of the case. The CIS responded that the application "is still pending on the name checks. Once the name checks have been cleared, we will mail to you a decision on the case." On April 3, 2006, counsel wrote again to the CIS requesting another status update. The CIS advised again that Mr. Al-Farisi's "N-400 application is still pending receipt of security name check. Upon receipt of name check clearances, a decision will be rendered on the application." On August 17, 2006, counsel sent a third letter to the CIS inquiring about the status of his application and a fourth e-mail to Section Chief Michael Cannon of the FBI. Both inquiries went unanswered.

On December 26, 2006 -- approximately 14 months after his CIS interview -- Mr. Al-Farisi filed this action under 8 U.S.C. § 1447(b) for a hearing on his application for naturalization. Mr. Al-Farisi is still waiting for the results of his name check, and defendants have given him no indication as to when he can expect them, or whether the check has even begun.

DISCUSSION

I. Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction

The statute under which Mr. Al-Farisi sues, 8 U.S.C. § 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.

Defendants argue that the "examination" referred to in ยง 1447(b) comprises not merely the interview conducted by the CIS but also the FBI name check. If this interpretation of the statute were accepted, there would be no subject matter jurisdiction over Mr. Al-Farisi's claim because the FBI has not completed the name check. Under ...


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