Abdallah v. Garland

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

AHMED HAMDY ABDALLAH, Case No. 1:22:cv-00333

Plaintiff,

v. JUDGE PAMELA A. BARKER

MERRICK GARLAND, et al.,

MEMORANDUM OPINION & ORDER

Defendants.

This matter is before the Court upon the Motion to Remand to the United States Citizenship

and Immigration Services (“USCIS”) for Adjudication of Defendants Merrick Garland, Attorney

General of the United States; Alejandro Mayorkas, Secretary of the Department of Homeland

Security; Brian Spalter, Acting District Director of USCIS; Ur M. Jaddou, Director of USCIS; Karyn

Zarlenga, Cleveland Field Office Director, USCIS; and Christopher Wray, Director of the Federal

Bureau of Investigation (“FBI,” collectively “Defendants”) filed on May 6, 2022 (“Defendants’

Motion”). (Doc. No. 10.) On May 18, 2022, Plaintiff Ahmed Hamdy Abdallah (“Plaintiff”) filed an

Opposition to Defendants’ Motion (“Plaintiff’s Opposition”) (Doc. No. 11), to which Defendants

replied on June 15, 2022 (Doc. No. 13), and then filed a corrected Reply on June 16, 2022

(“Defendants’ Reply”) (Doc. No. 14).

For the reasons set forth herein, Defendant’s Motion is GRANTED.

I. Background

Plaintiff alleges the following facts. Plaintiff is a native and citizen of Egypt and has been a

lawful permanent resident of the United States since November 16, 2017. (Doc. No. 1 at 1.) On

September 2, 2020, Plaintiff filed his Application with USCIS to become a citizen of the United

States. 1 (Id. at 4; Doc. No. 1-2.) In support of his Application, Plaintiff submitted payment to USCIS

in the amount of $725. (Doc. No. 1 at 4.) The check was cashed on August 28, 2020. (Doc. No. 1-

3.) USCIS then conducted an investigation into Plaintiff’s Application. (Doc. No. 10-1.)

On March 12, 2021, Plaintiff attended an interview in connection with his Application at the

USCIS Cleveland Field Office. (Doc. No. 1 at 4; Doc. No. 1-4.) Plaintiff received a “Naturalization

Interview Results” form that stated a decision could not yet be made about Plaintiff’s Application.

(Doc. No. 1-5.) The form further stated: “Be advised that under section 336 of the Immigration and

Nationality Act (INA), you have the right to request a hearing . . . before the U.S. district court if

USCIS has not made a determination on your application within 120 days of the date of your

examination.” (Id.)

On July 29, 2021, Plaintiff, through counsel, submitted an inquiry to USCIS as more than

120 days had passed since his interview. (Doc. No. 1 at 4.) On August 4, 2021, USCIS responded

to Plaintiff’s counsel’s inquiry stating:

According to USCIS records, the security checks are still pending. Until these checks

are completed, we cannot move forward on your case. We cannot speculate about

when the background checks will be completed but, we will make every effort to make

a decision on your case as soon as the security checks are complete.

(Doc. No. 1-6.) Then, on September 3, 2021, Plaintiff sought assistance with his application through

Senator Sherrod Brown’s office. (Doc. No. 1 at 5.) Plaintiff received an automated response to fill

out a Request for Assistance form, which he completed and sent to Senator Brown’s office on

September 7, 2021. (Id.) Plaintiff did not receive any further communication from Senator Brown’s

office. (Id.)

1 While Plaintiff alleges in his Complaint that he submitted his Application on September 2, 2020 (Doc. No. 1 at 4), the

Court notes that the Application lists a “Received Date” of August 20, 2020 (Doc. No. 1-2).

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On October 22, 2021, Plaintiff, through counsel, submitted a request for case assistance to the

Office of the Citizenship and Immigration Services Ombudsman (“Ombudsman”) to determine the

status of his Application. (Id.) On October 27, 2021, the Ombudsman contacted USCIS regarding

the Application. (Doc. No. 1-11.) On October 28, 2021, the Ombudsman notified Plaintiff’s counsel

that the USCIC indicated that Plaintiff’s case was “under active review.” (Doc. No. 1-10.) The

Ombudsman further stated: “USCIS was unable to provide a specific timeframe for resolution of the

case. Our office will continue to monitor USCIS’ progress on a regular basis until there is a specific

action or resolution. We will notify you when we receive an update from USCIS.” (Id.) Plaintiff

received no further correspondence from USCIS regarding his Application. (Doc. No. 1 at 5.)

On March 1, 2022, Plaintiff filed a Complaint in this Court seeking a Writ of Mandamus under

28 U.S.C. § 1361, and alternatively, Declaratory Judgment under 8 U.S.C. § 1447(b). (Doc. No. 1 at

1.) Plaintiff’s Complaint alleges that Defendants have failed to make a decision on Plaintiff’s

Application after approximately 350 days from his interview in connection with his Application in

violation of 8 U.S.C. § 1447(b) and 5 U.S.C. § 555(b). (Doc. No. 1 at 6-7.) As such, Plaintiff seeks

a (1) “writ of mandamus compelling Defendants to take all appropriate action to promptly complete

all required security checks, and adjudicate Plaintiff’s Application;” (2) declaratory judgment

declaring that certain Defendants’ delayed adjudication of Plaintiff’s Application violates 5

U.S.C. § 555(b); and (3) declaratory judgment declaring that Defendant Wray’s failure to complete

the FBI background checks within a reasonable time violates 5 U.S.C. § 555(b). (Doc. No. 1 at 8.)

On May 6, 2022, Defendants filed the instant Motion to Remand the matter to USCIS so the

agency can proceed to adjudicate Plaintiff’s Application. (Doc. No. 10.) After the filing of the

Motion to Remand, on May 16, 2022, USCIS re-interviewed Plaintiff. (Doc. No. 11 at 1.) Plaintiff

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opposed the Motion to Remand on May 18, 2022. (Doc. No. 11.) Defendants filed a Reply on June

15, 2022 (Doc. No. 13), and a Corrected Reply on June 16, 2022 (Doc. No. 14). According to

Defendants, USCIS is now working on preparing a Notice of Intent to Deny Plaintiff’s Application.

(Doc. No. 14-1 at 2.)

II. Legal Standard

According to 8 U.S.C. § 1446(a):

Before a person may be naturalized, an employee of the Service, or of the United

States designated by the Attorney General, shall conduct a personal investigation of

the person applying for naturalization in the vicinity or vicinities in which such person

has maintained his actual place of abode and in the vicinity or vicinities in which such

person has been employed or has engaged in business or work for at least five years

immediately preceding the filing of his application for naturalization.

8 U.S.C. § 1446(a). Then, under 8 U.S.C. § 1447(b), “[i]f 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[,] . . . the applicant may apply to the United States district court . . . for a

hearing on the matter.” Id. at § 1447(b). The district court “has jurisdiction over the matter and

may either determine the matter or remand the matter, with appropriate instructions, to the [USCIS]

to determine the matter.” Id.

III. Analysis

Defendants argue the Court should remand this case to USCIS for three reasons. (Doc. No.

10.) First, Defendants argue a remand will provide Plaintiff with an expeditious decision on his

Application, as well as allow him an opportunity to address derogatory information in his Notice of

Intent to Deny, which Defendants claim USCIS is now working to prepare. (Id. at 4; Doc. No. 14 at

1-2.) Second, Defendants argue the Court should remand this case to allow USCIS to utilize its

institutional expertise and resources to render a decision on Plaintiff’s Application in the first

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instance, and then allow Plaintiff judicial review of his naturalization claim thereafter. (Doc. No. 10

at 4; Doc. No. 14 at 2.) Third, Defendants argue the Court should remand this case to preserve judicial

resources. (Doc. No. 10 at 5.) If remanded, the Court would not have to review Plaintiff’s

Application in the first instance, but rather would allow for a final agency decision and a fully-

developed administrative record should Plaintiff seek de novo judicial review under 8 U.S.C.

§ 1421(c) after USCIS issues its decision. (Id.)

Plaintiff opposes Defendants’ Motion for Remand. (Doc. No. 11.) Plaintiff argues that

Defendants are merely seeking to further delay Plaintiff’s Application as Defendants claim they may

need to conduct further investigation into Plaintiff’s Application after remand. (Id. at 2.) Plaintiff

argues that remanding the case to USCIS would do nothing to ensure that Defendants will make a

timely decision on Plaintiff’s Application. (Id. at 3.) Plaintiff asks the Court to determine the merits

of Plaintiff’s Application, or, in the alternative, remand Plaintiff’s Application to the USCIS with an

imposed deadline for USCIS to make a decision regarding Plaintiff’s Application. (Id. at 4.)

While “‘neither the statute nor its implementing regulations offer direction about the factors

a court should consider when determining whether to remand or retain the action[,]’ courts have broad

discretion in this regard.” Yan Wu v. Rodriguez, 142 F. Supp. 3d 594, 596 (S.D. Ohio 2015) (quoting

Omar v. Holder, 756 F. Supp. 2d 887, 896 (S.D. Ohio 2010) (alteration in original). Nearly all courts,

however, that “have considered this question[,] remand the case to USCIS.” Id. As the Southern

District of Ohio has explained, “[a] district court is ill-suited to decid[e] a naturalization petition; it

does not have the resources or experience to properly evaluate the multitude of individual factors that

must be considered.” Musaad v. Mueller, 627 F. Supp. 2d 804, 809 (S.D. Ohio 2007). Rather, when

the law entrusts a governmental agency to make certain decisions, “the proper course, except in rare

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circumstances, is to remand to the agency for additional investigation or explanation.” I.N.S. v.

Ventura, 537 U.S. 12, 16 (2002) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744

(1985)) (noting that the policy favoring remand to executive agencies “has obvious importance in the

immigration context”).

Contrary to Plaintiff’s argument, remand is appropriate even when defendants fail to provide

a clear explanation as to why the delay has occurred and do not claim to be awaiting any further

information from other agencies. See Yan Wu, 142 F. Supp. 3d at 597; see also Khelifa v. Chertoff,

433 F. Supp. 2d 836, 843-44 (E.D. Mich. 2006) (holding that even though the background check had

been completed, remand was appropriate because the defendants had much more expertise in

interpreting the results and analyzing all of the application’s criteria).

While some courts have chosen to adjudicate the naturalization applications, and denied the

requisite motions for remand, those cases involved extreme delay. See Chebli v. Chertoff, 2007 WL

2571967, at *3-4 (E.D. Mich. Sept. 4, 2007) (denying motion to remand when 1,310 days, or over

three years had passed since plaintiff’s interview); Attisha v. Jenifer, 2007 WL 2637772, at *3 (E.D.

Mich. Sept. 6, 2007) (denying remand where name check request was pending for over two years).

No such extreme delay exists here.

Accordingly, based on the statutes, case law, and relevant policy considerations, remand is

appropriate here. Although the Court has jurisdiction to hear Plaintiff’s Application, the Court is not

equipped to fully adjudicate Plaintiff’s Application. Rather, Congress has given the authority and

resources to USCIS to do so, and the Court recognizes such congressional intent here. Further,

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remanding the case at this juncture does not preclude Plaintiff’s entitlement to a full judicial review

on a complete administrative record should he seek judicial review after USCIS issues its decision.

The Court next turns to the issue of whether it will implement a deadline for USCIS to

adjudicate Plaintiff’s Application. First, of note, while Plaintiff states that it has been one year and

eight months since Plaintiff filed his Application, the relevant date under 8 U.S.C. § 1447(b) is the

date of the examination, which is considered the date of Plaintiff’s interview. See Yan Wu, 142 F.

Supp. 3d at 596. Because Plaintiff’s initial interview took place on July 29, 2021, it has been 390

days since Plaintiff’s examination, the time period the court will use to evaluate whether there has

been extreme delay.

When courts choose to impose deadlines on USCIS in adjudicating applications, a long delay

has usually occurred. See e.g., Al-Mohammed v. USCIS, 2007 WL 2004866, at *4 (E.D. Mich. July

9, 2007) (imposing 120-day deadline after four years had passed since applicant’s interview); Shendaj

v. Dedvukaj, 543 F. Supp. 2d 724, 728 (E.D. Mich. 2008) (imposing deadline after 45 months passed

since interview); see also Patel v. Hansen, 2008 WL 148947, at *2 (S.D. Ohio Jan. 14, 2008) (not

imposing deadline after 2 years had passed, but noting that if another 120 days passed, the Court

would find it appropriate to “determine the matter”); but see Yan Wu, 142 F. Supp. 3d at 597

(imposing a 120-day deadline after nine (9) months had passed since the applicant’s interview,

because defendants had not provided a clear explanation for their delay). Rather, the courts “do[] not

presume to have sufficient knowledge of how long it takes [the agencies] to make this decision with

which they have been tasked.” Omran v. USCIS, 2019 WL 4256853 (N.D. Ohio Sept. 9, 2019)

(quoting Issa v. Mueller, 486 F. Supp. 2d 668, 674 (E.D. Mich. 2007)) (alteration in original).

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Because no extreme delay has occurred here, and because USCIS states that it is ready to soon

issue a notice of intent to deny Plaintiff’s Application, the Court determines that the proper course of

action is to remand this case to USCIS without imposing a specific deadline for completing its

consideration of Plaintiff’s application. The Court, however, does instruct USCIS to complete its

consideration of Plaintiff’s Application “as quickly as possible without sacrificing the necessary

degree of thoroughness.” See Issa, 486 F. Supp. 2d at 674.

IV. Conclusion

Accordingly, and for all the reasons set forth above, Defendants’ Motion to Remand to USCIS

for Adjudication (Doc. No. 10) is GRANTED.

IT IS SO ORDERED.

Dated: August 23, 2022 s/Pamela A. Barker

PAMELA A. BARKER

U.S. DISTRICT JUDGE

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