Kim v. McAleenan

YEON SIK KIM Plaintiff, v. KEVIN MCALEENAN, et al., Defendants.

Civil Action No. 1:19-cv-01212-SKC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

March 3, 2020

U.S. Magistrate Judge S. Kato Crews

ORDER RE: DEFENDANTS' MOTION TO REMAND [#12]

This Order addresses Defendants' Motion to Remand to U.S. Citizenship and Immigration Services for Decision ("Motion"). [#12.]¹ Plaintiff filed a Response [#23], which was followed by Defendants' Reply [#24.] The Court has reviewed the Motion, the related briefing, and the relevant law. No hearing is necessary. For the following reasons, the Motion is DENIED.

A. BACKGROUND

Plaintiff, Yeon Sik Kim ("Kim"), is a citizen of South Korea who currently resides in Colorado. [#1.] In May 2009, he married Chun Kim, a U.S. citizen. [Id. at ¶13.] In August 2009, the couple filed an immigration visa petition to receive an immigrant approval for Kim as the spouse of a U.S. citizen. They also filed an application for lawful permanent residency. [Id. at ¶¶14-15.] In May 2010, the U.S. Citizenship andImmigration Services ("the Agency") approved Kim's application for adjustment of his immigration status to lawful permanent resident. [Id. at ¶16.] However, because the couple had been married for less than two years at the time, the approval was "conditional." [#23 at p.3.] In May 2012, the couple filed an I-751 petition ("I-751") to remove the conditional status, and in September of that year, the Agency removed the conditions. [Id. at pp.3-4.] The couple ultimately divorced in January 2013.

On March 23, 2015, Kim filed an N-400 Application for Naturalization ("N-400") with the Agency. [#1 at ¶20.] He attended a naturalization examination on January 4, 2016. [Id. at ¶27.] The following day, the Agency requested additional information about Kim's divorce, to include a copy of the divorce petition. [#12 at p.3.] Kim provided the requested documents to the Agency prior to February 4, 2016. According to the Agency, the divorce petition contradicts Kim's representations in the I-751—the divorce petition indicates the couple separated in February 2011 and that Kim's wife was living in Oklahoma.

Having heard nothing from the Agency concerning the status of his application, Kim inquired with the Agency in May 2017 and March 2019. [#1 at ¶¶33-34.] On April 1, 2019, the Agency told Kim that his N-400 application was neither approved nor denied. [Id. at ¶35.] On April 25, 2019, Kim brought this action under 8 U.S.C. § 1447(b) for a judicial determination of his N-400 application.

Over two months after Kim filed this lawsuit, on June 19, 2019, the Agency issued a Notice of Intent to Deny ("NOID"), informing Kim that it intended to deny his N-400 application based on alleged misrepresentations he made in his I-751 and duringhis examination regarding the status of his marriage—misrepresentations which the Agency found precluded a necessary finding of good moral character. [#12 at p.3.] By agreement of the parties, however, the Agency withdrew the NOID pending the outcome of the Motion. [Id.] The Agency has indicated that if this case is remanded, it will re-issue the NOID in short order. [Id. at n.1.]

B. ANALYSIS

1. The 120-day Period under § 1447

Before a person may become a naturalized citizen of the United States, they must apply for citizenship and undergo a personal investigation conducted by a designee of the Attorney General. 8 U.S.C. § 1446. The investigation includes an examination of the applicant by the designee. Id. at § 1446(b). The designee then must either grant or deny the application (providing the reasons in support of the decision) within 120 days from the date of the examination. Id. at § 1447(b). "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 . . . the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter." Id. The district court then "has jurisdiction over the matter and may either determine the matter or remand" it with instructions. Id. The purpose of § 1447(b) is "to reduce the waiting time for naturalization applicants." United States v. Hovsepian, 359 F.3d 1144, 1163 (9th Cir. 2004) ((citing H.R. Rep. No. 101-187, at 8 (1985); 135 Cong. Rec. H4539-02, H4542 (1982) (statement of Rep. Morrison)).

2. The Agency's Three-Year Delay

Kim's examination occurred on January 4, 2016. The Agency, therefore, was required to make its determination on his application no later than May 3, 2016. When Kim filed this case, the 120-day period had lapsed by 1,087 days, or three years. Despite the significant delay, the Agency argues that it is now prepared to issue a final determination within 107 days of a remand order by this Court. [#24 at p.3.] Kim argues, however, that this case should not be remanded considering the equities of the case, namely the Agency's extraordinary delay and the likelihood that his application will be denied.

The Agency further argues that remand would allow it to "fulfill its statutory obligation to adjudicate naturalization applications in the first instance, and to fully develop an administrative record." [#12 at p.6.] The Court is aware that most courts who choose remand have relied on this rationale. See, e.g., Israileva v. Chertoff, No. 8:07-cv-21-T-27MSS, 2008 WL 1766663, *1 (M.D. Fla. Apr. 17, 2008) ("Ordinarily, with respect to immigration matters, 'a court . . . should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.'") (quoting INS v. Ventura, 537 U.S. 12, 16 (2002)); Sallam v. Mukasey, No. 07-11380-RWZ, 2008 WL 687409, *1 (D. Mass. Mar. 5, 2008) (remanding for resolution within 30 days, and noting that further hearing before immigration officer would develop the administrative record); Hussain v. Chertoff, 486 F. Supp. 2d 196, 200 (D. Mass. 2007) (noting that "[t]he court would generally prefer that USCIS, the expert agency charged with the primary responsibility, decide the merits of an application for naturalization," but adjudicating case on the merits wheregovernment no longer sought remand); Farooq v. Hansen, No. 1:07 CV 0946, 2007 WL 2177890, *4 (N.D. Ohio July 27, 2007) (noting that "an order of remand comports with Congressional intent that CIS make the initial determinations regarding naturalization applications"); Khelifa v. Chertoff, 433 F. Supp. 2d 836, 844-45 (E.D. Mich. 2006) (returning application to USCIS for resolution "comports with the 'ordinary remand' rule, under which the courts generally should defer to agencies that bear the statutory obligation to make the initial determination on particular matters within their presumed expertise and delegated authority").

The rational seems paramount in cases where the FBI background check was not yet complete or where the Agency had yet to resolve security concerns. See, e.g., Alhamedi v. Gonzales, No. 07 Civ. 2541(JGK), 2007 WL 1573935, *3 (S.D.N.Y. May 30, 2007) ("nearly every court confronting this question has agreed . . . that it would be inappropriate to adjudicate a naturalization application in the absence of a completed FBI background check" and remanding with instructions that FBI should expedite a name check); Al Saleh v. District Director, USCIS Detroit, No. 06-13372, 2007 WL 925693, *3 (E.D. Mich. Mar. 28, 2007) (remanding to USCIS where FBI had failed to complete security background check, and noting agency expertise in deciding naturalization applications); Issa v. Mueller, 486 F.Supp. 2d 668, 674 (E.D. Mich. 2007) (same and citing cases).

Several cases cited by the Agency suggest the same.² For example, in Moreno v.Nielson, No. 17-cv-3146-WJM-MJW, 2018 U.S. Dist. LEXIS 89479 (D. Colo. May 30, 2018), the agency took no discernable action on the plaintiff's application for over a year. After the plaintiff initiated his case in this district, the agency explained that the delay was due to recent receipt of new information concerning plaintiff's criminal history and a limited diplomatic relationship with the plaintiff's country of origin. Id. at *4. In deciding to remand the case, the court concluded that the agency was in a better position to evaluate the new information. Id. Similarly, in Antonishin v. Keisler, 627 F.Supp.2d 872, 877 (N.D. Ill. 2007), the court concluded that remand was appropriate where the claimant's FBI background check was incomplete. Id. See also Aboeleyoun v. U.S. Citizenship & Immigration Servs., No. 07-cv-01927-LTB, 2008 WL 1883564 (D. Colo. Apr. 25, 2008) (remanding in light of a pending FBI background check and the significant security concerns underlying naturalization); Sabir v. U.S. Citizenship & Immigration Servs., No. 07-cv-00914-WYD-MJW, 2008 WL 762242 (D. Colo. Mar. 19, 2008) (remanding case where FBI background check was incomplete and observing that courts lack the expertise to conduct a criminal background check and determine whether a petitioner is a security risk).

Despite the weight of authority which bends toward remand, "the instances when a court should determine itself the matter of an applicant's naturalization should be reserved 'for those rare circumstances in which CIS unnecessarily delays the adjudication of an application.'" Borski v. Lynch, No. 16-CV-00924-RM, 2017 WL 1153997, at *5 (D. Colo. Mar. 27, 2017) (quoting Ajlani v. Chertoff, 545 F.3d 229, 240 (2d Cir. 2008)) (emphasis in original). The Court finds that this case presents that rare circumstance.

In the present case, the Agency has not indicated the delay was attributable to an ongoing FBI background check or other specific or profound investigative step. Indeed, the NOID it issued (and later withdrew) was based simply on alleged false statements and misrepresentations Kim made concerning his marriage; information the Agency had in its possession since at least February 2016. The Agency claims it was not sitting idle...