Naturalization Delay Lawsuits Under 8 USC 1447(b)
When you apply to become a U.S. citizen through naturalization, you are committing to a process that involves a substantial amount of preparation, resources, money, and time. It can therefore be particularly frustrating when you complete all the requirements for naturalization, including an interview with the U.S. Department of Homeland Security’s sub-agency, U.S. Citizenship and Immigration Services (“USCIS”), and hear nothing about the status of your case for months.
Under a federal statute, 8 U.S.C. § 1447(b), USCIS must avoid excessive delays in informing you whether your naturalization application is granted or denied. The statute requires USCIS to adjudicate (or decide) your application within the 120-day period after your initial naturalization interview. If USCIS fails to render a decision within 120 days, you may file a lawsuit (known as a § 1447(b) lawsuit) against USCIS.
Three Statutory Requirements
Filing a § 1447(b) lawsuit in a U.S. Federal District Court is a way to remedy USCIS’s delay in adjudicating your naturalization application. There are three statutory requirements for filing the lawsuit.
First, USCIS must fail to adjudicate your naturalization application. This means that USCIS must not have granted or denied your application. If USCIS has already denied your naturalization application, you cannot file a § 1447(b) lawsuit.
Second, the lawsuit is only appropriate if 120 days have passed since your naturalization interview and USCIS still has not adjudicated your application. This time period is very precise: the date of the naturalization interview, which the statutes calls “the examination,” is the starting clock for determining when an § 1447(b) lawsuit is appropriate.
The vast majority of courts consider this examination to be complete once you have attended the initial naturalization interview with USCIS. A few courts consider the examination to be complete only if the interview, all investigations, and all security checks are complete.
The 120-day timeframe may be more complicated to determine if USCIS requests you to submit additional evidence after your initial interview. In this situation, USCIS will schedule a “reexamination,” meaning you must attend a second interview. Despite USCIS’ arguments that a § 1447(b) lawsuit filed before a reexamination is premature, most courts still calculate the 120-day period as running from the date of your initial interview. Federal regulations also support calculating the 120-day time period as beginning from the date of the first examination.
Third, you must file the lawsuit in the U.S. Federal District Court where you live. While the statute does not detail the preferred manner to file a § 1447(b) lawsuit, most attorneys file a document called “Petition for Hearing on Naturalization Application” with the appropriate district court.
Once all three elements are met, the court obtains jurisdiction over your naturalization application.
Debate Over the Court’s Exclusive Jurisdiction
USCIS often argues that it retains concurrent jurisdiction over naturalization applications even once a federal court has jurisdiction. Concurrent jurisdiction would allow either the court or USCIS to adjudicate your application. Based on this argument, USCIS frequently attempts to promptly adjudicate the application immediately after a § 1447(b) lawsuit is filed and then file a motion to dismiss the district court case.
However, the majority of courts to consider this issue have rejected this view. The majority of courts have instead held that the federal court has exclusive jurisdiction over the naturalization application once a proper §1447(b) lawsuit is filed. Under this view, USCIS loses jurisdiction as soon as a § 1447(b) lawsuit is filed. Thus, USCIS cannot render a decision on the application unless and until the case is remanded (sent back) to USCIS. The Ninth Circuit, which includes the state of Washington, follows the majority view.
Sometimes, USCIS may indicate it intends to grant your naturalization application after a § 1447(b) lawsuit is filed. In such a situation, it will not be in your best interest to assert the court’s exclusive jurisdiction. Instead, you and the government attorney should submit a joint motion to the court, requesting the judge remands the case to USCIS. The joint motion should stipulate that the court must order USCIS to approve the application upon remand.
There are two possible outcomes of a § 1447(b) lawsuit. The court may either:
- adjudicate the naturalization application by granting or denying your application, or
- remand the case to USCIS with instructions for USCIS to promptly adjudicate the application.
District courts are often hesitant to adjudicate naturalization applications, especially if the FBI’s security checks have not been completed. Thus, courts frequently elect to remand the matter back to USCIS.
When a court remands a case to USCIS, the court provides strict directives to USCIS. The directives are often in the form of time limits within which USCIS must render a decision on the naturalization application. The time limits may vary significantly on a case-by-case basis. There are even extreme examples of courts imposing a timeline as short as 7 days. Most of the time limits are between 45 days to 2 months.
The instructions may also include a time limit for when all FBI security checks must be complete. If that deadline passes, a court may order USCIS to treat the failure to complete the security check in the applicant’s favor and approve the naturalization application.
Under the Equal Access to Justice Act (“EAJA”), you may apply for attorney fees if the district court grants your naturalization application or if USCIS adjudicates the application upon remand. The EAJA requires you to file for attorney fees within 30 days of the court’s final judgment. In order to be granted attorney fees, you must establish that:
- You were the prevailing party;
- USCIS failed to show its failure to act was substantially justified; and
- The requested fees and costs are reasonable.
Limits of § 1447(b)
Unfortunately, § 1447(b) lawsuits only provide relief for USCIS’s delays after your initial interview. If USCIS causes other delays during your naturalization process, such as delaying holding a hearing or delaying scheduling your initial interview, you cannot file a § 1447(b) lawsuit. You will have to pursue other remedies, such as a writ of mandamus or an Administrative Procedure Act action in a U.S. Federal District Court. In these actions, the federal court cannot determine your application itself. Instead, it can only order USCIS to make a timely decision.
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