Tartakovsky v. Pierre, District Director, 3:07-cv-01667-BEN-BLM (S.D.Cal. 3/11/08)
Roger Benitez, U.S. District Court
This action arose under 1447(b), for naturalization applicants unadjudicated due to background check delays. The District Court ruled against the Petitioners on all counts; it remanded the naturalization applications to the USCIS, without any instructions to complete them in any particular time period. It found no jurisdiction over the APA delay claims, because 1447(b) was an alternate remedy. It found no duty to proceed within any particular time period. It found no notice-and-comment violation, deeming the background check rule purely "interpretative." It rejected the Due Process argument, finding no protected liberty interest. It therefore dismissed most counts, and remanded the naturalization cases for USCIS adjudication.
(in the interests of full disclosure, I represent a similar class in N.D.Ill.)
Tartakovsky is one of several actions seeking a remedy for naturalization applicants with long-delayed background checks. Here, the federal court's jurisdiction was invoked under 8 U.S.C. 1447(b); the Govt informed the District Court that all FBI background checks had been completed. (The claim appears to be a class claim, but there is no mention of class certification in this decision, and it does not appear to turn on that aspect of the case.)
1. The Court remanded the 1447(b) claims to USCIS, though it could have chosen to adjudicate them, since background checks are completed.
Even with investigation and a background check completed, USCIS is in a much better position to interpret those results for determination of naturalization. See Khelifa v. Chertoff, 843- 44 (E.D. Mich. 2006) (finding the USCIS has the expertise and experience to make an appropriate assessment). Generally, Courts should remand cases for agency determination of matters that “statutes place primarily in agency hands.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002). While this Court may be empowered to make this decision under § 1447(b), it is a decision that generally falls to USCIS.
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There may be circumstances which justify this Court making a naturalization determination under § 1447(b). For instance, if the agency’s conduct becomes extreme or abusive. But here, the Complaint alleges USCIS has failed to grant or deny Plaintiffs’ applications for naturalization due to delays in processing background checks. This Court’s jurisdiction is invoked under § 1447(b) because USCIS conducted the Plaintiffs’ initial interviews before completion of the full criminal background check, resulting in passage of 120 days while awaiting completion of those checks. 8 C.F.R. 335.2(b). This conduct does not raise serious concerns about the agency’s ability to complete the investigation process or grant or deny Plaintiffs’ applications, nor does it suggest the agency is acting in an extreme or abusive manner.
2. The Court set no deadlines for agency adjudication.
Under 8 U.S.C. § 1447(b), if the adjudication decision is remanded to USCIS, the order is made with “appropriate instructions.” The Court will not impose a definitive time line for the completion of a full criminal background check or a decision on Plaintiffs’ applications for naturalization. While the Court notes that a significant amount of time has passed in processing Plaintiffs’ applications, this appears to be a result of USCIS awaiting completion of the full criminal background checks, a required part of the naturalization determination.
USCIS is in the best position to determine when an application or background check warrants expedited treatment to achieve completion on a particular date. Ordering USCIS to complete background checks or make decisions by a date certain does not take into account practical considerations. This Court is not in a position to evaluate these four applications in relation to others and deem a particular Plaintiff a priority in the completion of background checks over other needed background checks.
The Court is not insensitive to the position of the Plaintiffs who have patiently waited through this lengthy process to become naturalized citizens. USCIS shall, as it must under statutes and regulations, await completion of the FBI’s full criminal background check. But, the Court instructs USCIS to complete Plaintiffs’ naturalization applications without unreasonable delay.
3. Court found no APA jurisdiction, because 1447(b) provides an alternate remedy.
First, Plaintiffs have an adequate remedy in this Court under 8 U.S.C. § 1447(b). As previously discussed, this Court has jurisdiction to adjudicate or remand Plaintiffs’ naturalization applications, the remedy available through 8 U.S.C. § 1447(b). In opposing the motion, Plaintiffs have argued that because they allege a systemic problem in USCIS processing, § 1447(b) is inadequate. However, the review process outlined in § 1447(b) provides a remedy to each Plaintiff in this case and any applicant facing the same situation as the Plaintiffs in this case. Any applicant can seek relief from the District Court in the form of review and potentially adjudication of naturalization under § 1447(b) if the facts of that Plaintiff’s case warrant such action. Plaintiffs accurately note that resolution of all individual claims brought under § 1447(b) may be time consuming for the courts, but that is the process outlined in the statutory scheme and it is adequate to resolve the claims of these Plaintiffs and any other applicants facing the same situation. 8 U.S.C. § 1447(b).
4. USCIS had no duty to adjudicate within any particular time period. [But shouldn't the Court have asked whether there's an obligation to adjudicate within a "reasonable" time period - and then proceeded to determine whether this delay is reasonable? - CR]
The time lines specified within the statutory scheme are only implicated when certain criteria have been met. The criteria implicating a time line for USCIS have not been met. USCIS is required to make “a decision to grant or deny the application . . . at the time of the initial examination or within 120-days after the date of the initial examination of the applicant for naturalization under § 335.2.” 8 C.F.R. 335.3 (emphasis added). However, the section referenced in § 335.3 with this mandate, 8 C.F.R. § 335.2, has not been satisfied. The examination specified under § 335.2, that triggers the 120-day time line, should only occur following “a definitive response from the Federal Bureau of Investigation that a full criminal background check of an applicant has been completed.” 8 C.F.R. 335.2. Additionally, Pub. L. No. 105-119, 111 Stat. 2448-49 specifies that USCIS cannot process an application for naturalization until USCIS receives confirmation of completion of an FBI investigation of the applicant. These provisions indicate that a full criminal background investigation is a prerequisite for USCIS to conduct the applicants’ interviews and to grant or deny applicants’ applications for naturalization. That USCIS conducted Plaintiffs’ interviews before completion of a full criminal background investigation, does not negate the necessity of a complete full criminal background check before USCIS is required to grant or deny the applications. Until the full criminal background checks are complete, USCIS is not legally required to grant or deny Plaintiffs’ applications for naturalization. * * *
Congress’ expression of their desire that immigration applications be processed in 180 days is not a mandatory time line sufficient to legally require agency action. In 2000, Congress expressed “its sense that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.” 8 U.S.C. § 1571(b). Under Ninth Circuit precedent, provisions using the language “should” and “sense of the Congress” yield the conclusion that the “provision is precatory” and does not bestow a right. Yang v. Cal. Dep’t of Soc. Servs., 183 F.3d 953, 958 (9th Cir. 1999). The Court went on to note that the heading “Congressional Statement” describes the provision as a “policy statement that does not create positive, enforceable law.” Id. at 959 (emphasis added). Similarly, 8 U.S.C. § 1571 falls under the heading “Policy,” further indicating it is not an enforceable time line, but rather the desire of the Congress to improve the speed of immigration services.
5. Ruled against Petitioners on notice-and-comment argument, finding agency's sub-regulatory rule change was an "interpretative" rule, for which notice and comment is not required.
USCIS is required to investigate applicants for naturalization. The “minimum” investigation shall include “a review of all pertinent records.” 8 C.F.R. § 335.1. The “full criminal background check” includes the applicants “administrative” record, in addition to the applicant’s “criminal”record. 8 C.F.R. § 335.2. The requirement that USCIS investigate, at a minimum, all pertinent records and the separate listing of criminal and administrative records indicates that the “FBI name check” is an interpretive rule. The search is both consistent with and encompassed by the mandates of these regulations. An FBI record on an applicant or connected to an applicant is surely “pertinent” to investigation of that applicant. Even if these records were not pertinent, the regulation only requires review of pertinent records at a “minimum,” suggesting that even broader investigations are acceptable under the regulation. Additionally, the inclusion of “administrative” records in addition to “criminal” records within 8 C.F.R. § 335.2 indicates more than the applicant’s specific criminal history is encompassed in the full criminal background check mandated by the regulation.
Use of the “FBI name check”as part of the required “full criminal background check” is an interpretation of the investigations required under 8 C.F.R. § 335.1 & 335.2 and is consistent with these regulations. Plaintiffs’ claim for violation of the notice and comment procedures of the APA is DISMISSED for failure to state a claim.
6. Rejected Due Process claim, finding no protected liberty interest.
Plaintiffs must have a protected liberty or property interest to sustain a due process claim. The Fifth Amendment’s Due Process Clause prohibits the deprivation of “life, liberty, or property, without due process of law.” U.S. Const. amend. V. A statute or regulation only creates the liberty interest necessary for a due process violation if it meets two requirements. Valdez v. Rosenbaum, 302 F.3d 1039, 1044 (9th Cir. 2002). “First, the law must set forth ‘substantive predicates’ to govern official decisionmaking and, second, it must contain ‘explicitly mandatory language’ i.e., a specific directive to the decisionmaker that mandates a particular outcome if the substantive predicates have been met.” Id (emphasis added).
As previously discussed, with regard to Plaintiffs’ claim of unreasonable delay under the APA, Plaintiffs do not have a legal right to the adjudication of their naturalization applications at this point. The 120-day time line under 8 U.S.C. 1447(b) invokes the right to review by this Court. Plaintiffs have exercised this right. Other time lines within the regulations are not of a mandatory nature as required for a due process violation because those time lines are dependent on completion of Plaintiffs’ full criminal background checks. The required protected interest necessary to sustain a due process claim is not present. Plaintiffs’ Due Process Claim is DISMISSED for failure to state a claim.
Attys: Cecillia Wang, John Blair-Loy, ACLU; Karen S Chen, Nancy Dix, M Ray Hartman III, DLA Piper (pro bono)