United States District Court, D. Colorado
ORDER GRANTING DEFENDANTS' MOTION FOR REMAND TO
THE USCIS FOR DECISION
William J. Martínez United States District Judge.
Moreno (“Plaintiff”) asks this Court to review
his claim for citizenship pursuant to 8 U.S.C. §
1447(b), which grants authority to a federal district court
to consider an application for citizenship if the United
States Citizenship and Immigration Services
(“USCIS”) does not issue a decision on an
application within 120 days of an applicant's interview
with USCIS. (ECF No. 1.) Defendants Kirstjen Nielsen, Lee
Francis Cissna, Kristi Barrows, and Andrew Lambrecht
(jointly, “Defendants”) are sued in their
official capacities and each oversees some aspect of USCIS.
before the Court is Defendants' Motion to Remand this
matter to USCIS for a decision on Plaintiff's application
for naturalization. (ECF No. 26 (the “Remand
Motion”).) For the reasons set forth below, the Remand
Motion is GRANTED.
two-and-a-half years ago, on August 21, 2015, Plaintiff-a
legal permanent resident of the United States since March
2007-submitted to USCIS an N-400 Application for
Naturalization. (ECF No. 1 ¶¶ 12, 18, 28.) On March
24, 2017, Plaintiff appeared before USCIS for his initial
examination on his naturalization application. (ECF No. 1-7.)
At that time, USCIS informed Plaintiff that it could not yet
make a decision about his application, and that USCIS would
send Plaintiff a written decision. Id.
April 12, 2017, USCIS requested additional documentation from
Plaintiff including (1) an original letter from the 5th
District Federal Prosecutor's Officer in Venezuela
confirming that an arrest warrant had been quashed; (2) a
police clearance letter from the Venezuelan authorities; and
(3) documentation from Interpol confirming whether a warrant
for Plaintiff's arrest was still active. (ECF No. 1-9.)
On May 10, 2017, Plaintiff submitted a timely response to
USCIS with the requested documentation regarding the second
and third requests. In response to the first request,
Plaintiff instead submitted (1) a legal brief by an
extradition expert explaining that the pending arrest warrant
was politically motivated and the extradition request
violated Venezuelan law; (2) an affidavit from Venezuelan
lawyer and law professor stating that the warrant lacked
credibility and was issued illegally; and (3) an affidavit
from a former prosecutor opining that the arrest warrant was
not legally valid.
took no discernable action on Plaintiff's application for
nearly a year. At a March 2018 status conference in the
instant litigation, USCIS first raised the existence of new
information, apparently obtained in February 2018, that
showed Plaintiff's apparent involvement in several
criminal incidents in Venezuela. (ECF Nos. 26 at 2;
40-1.) Defendants explained in the Remand Motion
that the delay in processing Plaintiff's application was
due to the “limited diplomatic relationship that the
United States has with the government of Venezuela, ”
and the time required to investigate Plaintiff's
potential criminal history in Venezuela. (ECF No. 26 at 2.)
information, a “system report, ” obtained by
USCIS suggests that Plaintiff was connected to a theft
offense in June 1999, was arrested in connection with
“destruction of media” in June 1999, was
investigated for fraud in 2004, and is subject to an arrest
warrant issued in 2008 for intentional homicide. (ECF Nos. 26
at 2; 40-1 at 4.) Plaintiff objects to reliance on this new
evidence given that the “system report” is not a
police record and “does not credibly support
[Defendants'] position.” (ECF No. 41 at 5-6.)
April 12, 2018, USCIS issued Plaintiff a Notice of Intent to
Deny letter (“NOID”) denying Plaintiff's
naturalization application on the grounds he failed to
establish good moral character due to the outstanding
Venezuelan arrest warrant, and potentially because he
obtained his permanent resident status unlawfully and gave
false testimony during his naturalization interview. (ECF No.
41-2.) Pursuant to an agreement between the parties, USCIS
withdrew the NOID on April 18, 2018. (ECF No. 41-3.)
U.S.C. § 1447(b), an applicant for naturalization may
seek review of the application in a United States district
court when USCIS fails to make a determination on the
application within 120 days of examination of the applicant.
“The central purpose of Section 1447(b) was to reduce
the waiting time for naturalization applicants by addressing
the problem of long backlogs moving through the
naturalization process.” Aboeleyoun v. U.S.
Citizenship and Immigration Servs., 2008 WL 1883564 (D.
Colo. Apr. 25, 2008) (internal quotation marks omitted). The
interview of the applicant is the “examination”
that triggers the 120-day period, regardless of whether any
criminal background check is complete. Sabir v. U.S.
Citizenship and Immigration Servs., 2008 WL 762242 (D.
Colo. Mar. 19, 2008) (collecting cases). After the 120-day
waiting period, the court has jurisdiction and “may
either determine the matter or remand the matter, with
appropriate instructions, to [USCIS] to determine the
matter.” 8 U.S.C. § 1447(b).
courts reviewing naturalization applications under §
1447(b), “remand is often the ordinary course, ”
though “some courts . . . have elected to exercise
their statutory authority . . . particularly in the face of
protracted agency delay.” Taalebinezhaad v.
Chertoff, 581 F.Supp.2d 243, 246 (D. Mass. 2008);
see Borski v. Lynch, 2017 WL 1153997, at *6 (D.
Colo. Mar. 27, 2017) (a court should decide a naturalization
application only in “narrow circumstances” where
USCIS “unnecessarily delays” consideration of the
application). Most courts remand matters back to USCIS with
instructions, recognizing the agency's expertise in
immigration matters. Manzoor v. Chertoff, 472
F.Supp.2d 801, 810 (E.D. Va. 2007); see also Marron v.
Napolitano, 2011 WL 6032930 (D. Colo. Dec. 5, 2011)
(Martínez, J.). “USCIS is better equipped to
handle these cases and has more expertise than district
courts in adjudicating applications.” Rashid v.
Dep't of Homeland Sec., 2017 WL 1398847, at *2 (E.D.
Cal. Apr. 19, 2017); Zhang v. U.S. Citizenship and
Immigration Servs., 2017 WL 3190559, at *2 (D.D.C. July
Court has jurisdiction under § 1447(b). Plaintiff's
initial examination occurred on March 24, 2017, and more than
120 days have elapsed since that ...