Bustamante v. Napolitano, 08-0990-cv (2d Cir. Sept. 28, 2009).

Bustamante v. Napolitano, 08-0990-cv (2d Cir. Sept. 28, 2009).

Only the district court has jurisdiction to determine a naturalization application when, after USCIS has failed to adjudicate the application within 120 days of the initial examination, the applicant files a petition pursuant to 8 U.S.C. § 1447(b). Although a properly filed Section 1447(b) petition removes USCIS’ power to decide the naturalization application, USCIS still can recommend a disposition to the district court or request a remand for the agency to determine the application. It is incumbent upon the district court, however, to determine or remand the matter.

Statutory analysis necessarily begins with the plain meaning of a law’s text and, absent ambiguity, will generally end there. The language of 8 U.S.C. § 1447(b) expressly states that, when a naturalization applicant requests a hearing before the district court on a pending application that USCIS has not decided for more than 120 days after the initial examination of the applicant, the 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. This language clearly grants the district court jurisdiction over the naturalization application.

The district court’s jurisdiction under 8 U.S.C. § 1447(b) vests with a naturalization applicant’s petition for a hearing in the absence of a timely decision by USCIS. USCIS has jurisdiction to adjudicate a naturalization application during the period up to 120 days after the initial examination of an applicant. USCIS also retains jurisdiction beyond the 120-day period following the initial examination as long as a naturalization applicant does not file a Section 1447(b) petition. If USCIS does not render a decision for more than 120 days after the initial examination, Section 1447(b) provides for judicial intervention at the election of the naturalization applicant. The authority granted to the district court by Section 1447(b) – to determine the merits of the application or to remand the application to USCIS – establishes that a properly filed Section 1447(b) petition vests jurisdiction in the district court and divests USCIS of its jurisdiction to decide the application.

It would be illogical for Congress to vest the district court with jurisdiction to determine the matter upon the filing of a petition pursuant to 8 U.S.C. § 1447(b), but permit USCIS to have simultaneous authority to decide the application.

By providing the district court with the option to remand the matter, with appropriate instructions, to USCIS, Congress intended that, after an applicant files a proper Section 1447(b) petition, USCIS would lack the authority to decide an application absent a remand. To read the statute otherwise would render the “remand” language in the statute meaningless.

Giving effect to the plain meaning of the statute’s terms, this court cannot agree with the government’s argument that USCIS retains authority to decide a naturalization application because Section 1447(b) does not explicitly state that a district court’s jurisdiction is “exclusive.” When the 120-day period following the initial examination of an applicant has passed, Section
1447(b) contemplates something like a system of concurrent jurisdiction. Similar to a litigant who ordinarily can choose to bring a federal claim before either a federal or state court, the naturalization applicant, who has an application pending before USCIS beyond the 120-day period, has the option pursuant to Section 1447(b) to continue with proceedings before USCIS or to bring the application before the district court. If the naturalization applicant chooses to do nothing, the application will remain pending before USCIS with the agency maintaining jurisdiction to decide the application. If the naturalization applicant chooses instead to file a Section 1447(b) petition with the district court, then the district court will have jurisdiction to decide the application or remand to USCIS.

When the naturalization applicant chooses to file a Section 1447(b) petition, the district court acquires jurisdiction that is “exclusive” in the sense that USCIS is no longer empowered to decide the application. This is not much different from the concurrent jurisdiction that federal and state courts can have over a federal claim where only one court – typically the one where a litigant files the claim – will have authority to decide the claim.

The language of Section 1447(b) shows that Congress intended either USCIS or the district court to decide applications that remain pending beyond the 120-day period, at the applicant’s choice. The omission of the term “exclusive” is consistent with this intent. But nothing in the statute suggests that once the applicant makes a choice in favor of district court adjudication, USCIS may independently rule dispositively on the question. In holding that the district court possesses exclusive jurisdiction to decide a naturalization petition as to which a Section 1447(b) complaint has been filed, this court does not suggest that upon the applicant’s invocation of a district court’s Section 1447(b) jurisdiction, USCIS is barred from continuing its consideration of the naturalization application or from reaching a tentative determination. Certain practical realities might support such agency action. Section 1447(b) is triggered, after all, by agency delay. No one’s interest is served by compelling further delay. Inevitably, the district court will solicit the parties’ views on a Section 1447(b) petition before determining whether to reach the merits of the application or remand to the agency. The parties will likely stipulate to a remand if USCIS tentatively recommends that an application be granted. Even with applications that USCIS intends to deny and for which no stipulation would be expected, USCIS is entitled to request a remand. Thus, a system of district court/agency cooperation where, even upon the former’s acquisition of jurisdiction, the latter continues its consideration of a matter, but requires court permission before it can put any decision into effect, may make sense. Such coordination is not unprecedented.

Section 1447(b) provides district courts with the flexibility to either decide or remand based on the particular circumstances of an application. While Section 1447(b) allows the district court to “remand, with appropriate instructions,” for USCIS “to determine the matter,” the district court is not required to instruct USCIS how to decide the matter. But, at the same time, district courts are required to exercise their jurisdiction when presented with a properly filed Section 1447(b) petition.

The statute envisions a system that conditions USCIS’s authority to decide a naturalization application after the filing of a Section 1447(b) petition on the district court’s determination that a remand is appropriate under the circumstances.

The language of Section 1447(b) demonstrates that Congress intended USCIS’s failure to act on a naturalization application within 120 days of the initial interview to have a consequence—namely, that an applicant’s petition to the district court beyond the 120-day period would divest USCIS of jurisdiction.
When USCIS denies an application, Section 1421 provides that the district court’s review of the denial is de novo, and the court is required to make its own findings of fact and conclusions of law. Given that the district court has the authority to conduct de novo review of a USCIS denial and issue “the final word” on naturalization applications, it is reasonable to conclude that Congress intended for the district court to have sole authority to decide applications after a Section 1447(b) petition has been filed, and that USCIS cannot interfere with the court’s jurisdiction by making a decision, unless, of course, the district court remands to the agency. The statutory scheme aims to provide USCIS with an incentive to decide applications in a timely fashion or risk losing jurisdiction to decide those applications in the first instance.

With the 1990 Act, Congress sought a careful balance between the roles of USCIS and the district courts in adjudicating naturalization applications. USCIS is “charged with primary naturalization responsibility.” The district courts are required to exercise judicial review of naturalization applications that are denied or that remain undecided beyond the requisite 120-day period. Our interpretation is consistent with Congress’s intended purpose.

Does an attorney's sworn statement constitute evidence?

Kulhawik v. Holder, No. 08-4582-ag (2nd Cir. July 6, 2009).

An attorney’s unsworn statements in a brief are not evidence. But when an attorney makes statements under penalty of perjury in an affidavit or an affirmation, the statements do constitute part of the evidentiary record and must be considered. While it will remain up to the BIA to assess and then report, at least in some minimal fashion, what weight it gives an attorney’s affidavit – taking into account such factors as the affiant’s personal knowledge of the subject matter of the affidavit – the BIA may not merely dismiss it as constituting no evidence at all. Therefore, the BIA erred by failing to consider the affirmation submitted by petitioner’s attorney.

To succeed in his motion to reopen, petitioner was required to demonstrate that his failure to appear was because of exceptional circumstances. The law at 8 U.S.C. § 1229a(e)(1) provides that “‘exceptional circumstances’ refers to exceptional circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien.”

Even if petitioner had difficulty understanding the IJ’s oral instructions, the affirmation submitted by petitioner’s attorney contains no claim that petitioner could not understand the Notice of Hearing. The petitioner has never explained why he was able to understand and comply with the Notice to Appear for his initial appearance but was unable to understand and comply with the Notice of Hearing for his subsequent hearing. The petitioner’s claims that because of his lack of knowledge of the English language that he misunderstood the IJ’s instruction concerning his future hearing and his erroneous belief that there would be another letter from the court informing him about a new hearing date are not akin to battery or extreme cruelty or serious illness or death, and petitioner cannot prevail on a showing of less compelling circumstances.

Short Anti-War Animations "See Through"and "Dans la tête"

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"See Through"




"Dans la tête"

Dans la tête - Insolite

Brave Woman

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黃子華 越大鑊越快樂

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Old Fencing/Duelling Post Cards

Onto Conveyancing

I finally finished reading Land Law. Don't ask me how much I retained. This area of law definitely is more complicated than when I first came across it in 1989. I am just glad that I don't have to deal with the Rule Against Perpetuity. Now, onto Conveyancing!!

Head I: Land Law & Conveyancing

I am currently reading Land Law & Conveyancing. So far, I have completed 20 pages. I initially thought that Land Law probably is an area of law that is relatively settled, but I was wrong. There are the Trusts of Land and Appointment of Trustees Act 1996 and Land Registration Act 2002. I am reading easements tonight. This brings back a lot of memories.

Lunar Spacecrafts

Apollo Command/Service Module

Apollo Lunar Module

Andre Jouineau's Fifith Book on the French Imperial Guard

I enjoyed Andre Jouineau's previous four volumes on the French Imperial Guard and his other three volumes on the Napoleonic french Hussars. I have planned to acquire this book for a long time and finally did recently. Just like the other ones, this is a great fifth volume. This is probably the last one on the French Imperial Guard. I hope Andre Jouineau will now go on to illustrate and discuss the Line.

It's nice to get away from the Solicitors Accounts Rules. I need a break.

Flat Iron Building