Stalled Naturalization Applications and Federal Courts
By Naim Haroon
Los Angeles, CA
You are trying desperately to reach for the American Dream but you are not quite able to seize it. Feeling frustrated? You are not alone. This is a common scenario being witnessed across immigrant communities in the US lately.
You are a permanent resident of the US. You have completed the qualifying period of stay in the US to apply for US citizenship. You applied for naturalization, you appeared for the biometrics at one of the Application Support Centers, you were tested, interviewed and then were given a letter to wait for the oath ceremony invitation letter.
You waited and waited, and then waited some more. But the letter is still not in the mailbox. You have called the US CIS customer service line; you have visited the immigration offices, even sought help from the Congressman and Senator’s office. You feel like you are knocking on all doors you can, but to no avail.
Well, you may get help if you were to knock on the right door. The door of a US Federal District Court, that is, with jurisdiction on your place of residence.
There is a little know provision in the law which states that if 120 days have passed after the ‘examination’ of your application and the US CIS has not made a decision on your naturalization application you can petition the US Federal Court to intervene and either make a decision in the court or remand the case to US CIS with clear instructions to make a decision on your naturalization application in a certain period.
INA Section 336(b), 8 U.S.C. § 1447(b), is the relevant regulation which is the basis for such actions. The law states and we quote:
“If 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 under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.”
Two conditions must be met:
1. You must have been interviewed for naturalization.
2. 120 days must have passed after the interview without decision on your application.
Please keep in mind that the regulations use the word ‘examination’ as the qualifying factor for the relief available from the Federal Court. This term is open to interpretation and arguments have been forwarded from immigrants and US CIS as to the real meaning and legislative intent of the word ‘examination.’
Good news is that most courts have found that ‘examination’ is considered done when the applicant is scheduled for the initial interview. The legislative intent was not the completion of the examination but determination of a point in time when the examination took place. This has been interpreted by the courts as the point at which initial examination took place. Even if the US CIS ask the applicant to come for a second or third interview, the 120-day period is deemed to have begun from the first interview date.
There have been numerous reported cases where detailed discussion on this point can be found. However, discussion of those detailed cases is beyond the scope of this article. The conclusion in lay man’s terms has been stated in the above paragraph.
On the flip side, US CIS has started delaying scheduling the interviews. It is suspected that it is because of this rule. If US CIS has not interviewed you, the 120-day period does not start counting in applicant’s favor.
So, if you have a stalled Naturalization application and you have been interviewed 120 days or more in the past, you can certainly knock on the doors of the Federal Courts.
There is a good chance that you will find receptive ears.
Disclaimer: Information disseminated through this article is not intended to be substitute for specific attorney advice and is not intended to create Attorney-Client relationship. All state law commentary or answers to state law specific questions are based on CA law. State laws may vary. Federal Laws are applicable throughout US. You are welcome to submit your questions for answers in these columns. You may submit your questions by visiting www.SakhiaLawGroup.com and by completing the Quick Contact Form. All questions submitted become the property of Sakhia Law Group. Attorney Naim Haroon Sakhia is member of State Bar of CA (Bar # 250818). Sakhia Law Group is a full service law firm in CA. Only Federal Law practiced outside CA. You can reach us at 310 734 6300.