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Szpak v. United States Dep't of Homeland Security

July 26, 2007

WLODZIMIERZ SZPAK, PETITIONER,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ANDREW CHERTOFF AS SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, AND MARY ANN GANTNER AS DISTRICT DIRECTOR, NEW YORK DISTRICT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, RESPONDENTS.



The opinion of the court was delivered by: Sifton, Senior Judge

AMENDED MEMORANDUM OPINION AND ORDER

Petitioner Wlodzimierz Szpak ("Szpak") filed this petition seeking naturalization pursuant to 8 U.S.C. § 1447(b)*fn1 together with attorney fees and costs for this action under the Equal Access to Justice Act, 28 U.S.C. § 2412. Respondents, the United States Department of Homeland Security, the Department's

Secretary, the United States Citizenship and Immigration Services ("USCIS"), and its New York District Director, request that petitioner's naturalization application be denied, or alternatively that it be remanded to the USCIS for denial*fn2 . A hearing was held before the undersigned on January 23, 2007 to determine whether to grant, deny or remand Petitioner's application to USCIS. For the reasons set forth below, Petitioner's application is granted and the matter is remanded to USCIS to for further proceedings consistent with this decision. Petitioner's application for costs and attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, is denied. What follows sets forth the findings of fact and conclusions of law upon which these decisions are based.

Background

Petitioner Wlodzimierz Szpak is a fifty-year old native and citizen of Poland. (Pet. for Naturalization Hr'g Tr. ("Tr.") 25-26, Jan. 23, 2007; Szpak Dep. 11, Nov. 15, 2006.) He married Ewa Filipecka in Poland in 1978. (Tr. 27-28; Szpak Dep. 14.) Petitioner and Ewa's first daughter was born in Poland on March 31, 1979. (Szpak Dep. 15.) Petitioner came to the United States in 1984 without his wife and daughter. (Tr. 30; Szpak Dep. 15.)

In his naturalization application, Petitioner stated that he had been arrested twice in connection with domestic disputes, and once in New Jersey for sitting on a cliff in a dangerous area*fn3 .

(Resp't Pre-Trial Mem. Ex. 2; Petr.'s App. for Naturalization 1, 10-11).

Szpak became a permanent resident of the United States on September 7, 1992. (Szpak Dep. 19.) In 1989, Ewa and Petitioner's older daughter entered the United States. (Szpak Dep. 15.) On January 7, 1993, Petitioner's younger daughter was born. (Szpak Dep. 35.)

Petitioner and Ewa divorced in Poland on August 19, 1997. (Judgment of Divorce Polish Peoples Republic, Aug. 19. 1997).

Petitioner married his current wife, Halina, on October 25, 2001. (Petr.'s App. for Naturalization 6). Petitioner bought his residence in West Hempstead, N.Y. in September, 2002. (Petr.'s App. for Naturalization 5).

Petitioner filed an N-400 application for naturalization on January 6, 2004*fn4 based on 8 U.S.C. § 1427 (a), accompanied by the requisite $310.00 fee and supporting documentation. He was not represented by counsel when he filed the application. (Tr. 37.) USCIS received the N-400 application and assigned it control number EAC001163553.

Petitioner was examined by District Adjudications Officer ("DAO") Finkelstein at the New York District, Garden City Sub-Office on May 11, 2005. Szpak was not represented by counsel at the examination. (Tr. 37.) Upon conclusion of the examination, DAO Finkelstein gave Petitioner a written N-652 form evidencing that Szpak had passed the necessary English, history and government examinations. The form also indicated that a decision on his application had not been made. DAO Finkelstein also gave Petitioner a form N-14, allowing Petitioner 30 days to obtain certificates of disposition of two arrests referred to during the examination, one from August 2, 1993 and the other from January 3, 1996. Petitioner was unable to comply with the N-14 request because neither the New York State Office of Court Administration, Division of Administrative Services*fn5 nor the Federal Bureau of Investigation, Criminal Justice Information Division*fn6 had any records of arrests for Petitioner*fn7 .

DAO Finkelstein, with the approval of two supervisors, thereafter requested further investigation of Petitioner's arrest record to determine if Petitioner had a history of domestic abuse.

Following the examination, Petitioner sent requests to USCIS to determine the status of his naturalization application, which went unanswered. (Pet. For Hr'g ¶ 3.)

Szpak filed his petition with this Court on March 22, 2006, on the ground that Respondents failed to adjudicate his application within 120 days of the date of Petitioner's examination.

Subsequent to the filing of the Petition with this Court, Respondents sent Petitioner a set of Interrogatories and Request for Production of Documents. (Resp't Hr'g Ex. R-1). In his response, Petitioner stated that he was "[n]ever arrested, detained, charged with, (to his ...


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