“The agency can bring its expertise to bear upon the matter; it can evaluate the evidence; [and] it can make an initial determination[.|”
How later courts described this case
- “The agency can bring its expertise to bear upon the matter; it can evaluate the evidence; [and] it can make an initial determination[.|”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DUC MINH NGUYEN,
Plaintiff,
v. Case No: 6:24-cv-308-JSS-RMN
ALEJANDRO MAYORKAS, UR M.
JADDOU, MICHAEL J. MCCLEARY
and UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES,
Defendants.
___________________________________/
ORDER
Defendants move to remand this matter to the United States Citizenship and
Immigration Services (USCIS) pursuant to 8 U.S.C. § 1447(b) for adjudication of
Plaintiff’s Form N-400, Application for Naturalization (Application). (Motion, Dkt.
10.) Plaintiff does not oppose the Motion. For the reasons explained below,
Defendants’ Motion (Dkt. 10) is granted.
Plaintiff commenced this action requesting a hearing on the Application due to
Defendants’ alleged failure to timely adjudicate the Application. Pursuant to 8 U.S.C.
§ 1447(b), an applicant can petition the district court if a decision is not made on the
applicant’s application within 120-days after the applicant’s examination. The district
court has jurisdiction to either make a determination on the application or remand the
application to USCIS, “with appropriate instructions[.]” Id. In cases where a
determination has not been made by either an immigration judge or the Board of
Immigration Appeals, the appropriate action is for the district court to remand the
application. Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1236 (11th Cir. 2007)
(citations omitted); see also .N.S. v. Orlando Ventura, 537 U.S. 12, 17 (2002) (“The
agency can bring its expertise to bear upon the matter; it can evaluate the evidence;
[and] it can make an initial determination[.|”). The court can then review USCIS’s
decision to determine whether USCIS exceeded “the leeway that the law provides.”
Orlando Ventura, 537 U.S. at 17. Here, USCIS has not made a determination on
Plaintiff's Application and remand of Plaintiff's Application is therefore appropriate.
Accordingly:
1. Defendants’ Unopposed Motion to Remand to USCIS (Dkt. 10) is
GRANTED.
2. This matter is REMANDED to USCIS with instructions to adjudicate
Plaintiff's Application within 60 days of this order.
3. Within 60 days of adjudication of Plaintiff's Application, the parties shall
file a joint stipulation of dismissal or joint motion for the court to re-open
the case and enter a scheduling order.
4. The Clerk of Court is directed to close this case and deny all pending motions
as moot.
ORDERED in Orlando, Florida, on April 8, 2024.
( a heck
JUVIE S. SNEED
UNITED STATES DISTRICT JUDGE
_2-
Copies furnished to:
Counsel of Record