United States District Court, D. Minnesota
Kimberly K. Hunter and John R. Bruning, KIM HUNTER LAW, PLLC,
M. Secord, UNITED STATES ATTORNEY'S OFFICE, for
Patrick J. Schiltz United States District Judge
Mo Elmi applied for naturalization on September 11, 2015, and
United States Citizenship and Immigration Services
(“USCIS”) interviewed him on October 17, 2016.
Compl., ECF No. 1, ¶ 1. On October 20, 2017, over a year
after his interview with USCIS, Elmi brought this action,
asking the Court to “review de novo and grant
[Elmi's] application for naturalization pursuant to 8
U.S.C. § 1447(b)” or, “[i]n the alternative,
[to] remand [Elmi's] application for naturalization to
USCIS with instructions to adjudicate the application and
issue the citizenship oath to [Elmi] within 10 days.”
Compl. at 6. Months later, on January 11, 2018, USCIS
purported to deny Elmi's application for naturalization.
ECF No. 8 ¶ 5. The next day, defendants moved to dismiss
the complaint for lack of subject-matter jurisdiction and for
failure to state a claim. ECF No. 6. Defendants requested
that the Court “dismiss [Elmi's] complaint for
mootness or, in the alternative, grant remand for a final
adjudication.” ECF No. 10 at 12.
hearing was held on April 6, 2018. Based on all of the files,
records, and proceedings herein, and for the reasons stated
on the record at the hearing, the Court denies
defendants' motion to dismiss the complaint but grants
defendants' alternative request for relief, grants in
part Elmi's requests for relief, and remands Elmi's
application for naturalization to USCIS for a determination
within 7 days.
U.S.C. § 1447(b), if USCIS fails to make a determination
on a naturalization application within 120 days of
USCIS's examination of the applicant, “the
applicant may apply to the United States district court . . .
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.” Defendants argue that §
1447(b) does not preclude USCIS from reaching a determination
on a naturalization application after a § 1447(b)
petition is filed in the district court. Like every court of
appeals-and the majority of district courts-to have addressed
this argument, the Court rejects defendants' position:
Our sister circuits who have addressed the issue have all
rejected the government's position. See Bustamante v.
Napolitano, 582 F.3d 403, 406 (2d Cir. 2009); Etape
v. Chertoff, 497 F.3d 379, 383 (4th Cir. 2007);
United States v. Hovsepian, 359 F.3d 1144, 1164 (9th
Cir. 2004) (en banc). We add our voice to the
chorus. Like those circuits, we start with the plain language
of § 1447(b), and as they did, we find it incompatible
with a system of concurrent jurisdiction. Congress gave the
district courts the power to “determine the
matter” once a naturalization petition is properly in
front of it; it would be illogical to read this unqualified
grant of power to contain an unwritten “if . . .,
” or to give USCIS the prerogative to nullify the
court's statutory power. Similarly, it would render
meaningless the district court's power to “remand
the matter” if the agency could act even without a
remand. The meaning of “remand” is “sending
something (such as a case, claim, or person) back
for further action.” BLACK'S LAW DICTIONARY 1406
(9th ed. 2009) (emphasis added).
. . . [W]hen an applicant for naturalization has properly
invoked § 1447(b) and brought an application to the
district court, that court has exclusive jurisdiction over
the naturalization application unless and until the matter is
remanded to the agency. Therefore USCIS had no jurisdiction
to act on [the applicant's] naturalization application,
and his lawsuit is not moot.
Aljabri v. Holder, 745 F.3d 816, 820-21 (7th Cir.
2014) (some citations omitted); see also
Al-Maleki v. Holder, 558 F.3d 1200, 1205 n.2 (10th
Cir. 2009) (noting “[t]he persuasive reasoning of the
Ninth and Fourth Circuits” but finding it
“unnecessary to address the
USCIS lacked the authority to decide Elmi's
naturalization application after he properly filed a §
1447(b) petition, USCIS's denial is without legal effect
and Elmi's complaint is not moot. For that reason, the
government's motion to dismiss this action is denied.
government asks that, if this Court finds that USCIS did not
have authority to deny Elmi's naturalization application,
this Court remand the matter to USCIS with instructions to
issue a decision by a particular date. Elmi would prefer that
this Court decide his application on the merits-but, failing
that, he agrees that the matter should be remanded as
requested by the government.
Court will remand the matter to USCIS with instructions to
issue a decision on Elim's application within seven days.
(Presumably, USCIS will simply re-issue its earlier
decision.) At this point, USCIS is better suited than this
Court to adjudicate the merits of Elmi's application. The
agency has expertise that is not possessed by this Court, and
the agency has already devoted a considerable amount of time
to investigating Elmi. Should USCIS deny Elmi's
application, Elmi may seek judicial review of that decision
after exhausting his administrative remedies. See 8
U.S.C. 1447(a); 8 C.F.R. 310.5.
on the foregoing, and on all of the files, records, and