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Gorenyuk v. U.S. Dep't of Homeland Security

November 8, 2007

GENNADY GORENYUK,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Gennady Gorenyuk petitioned the Court for review of Defendant United States Department of Homeland Security's ("Homeland Security") denial of his application for naturalization. Before the Court is Defendant Homeland Security's Motion for Summary Judgment. Because the undisputed facts reveal that Plaintiff was convicted of a crime that renders him statutorily ineligible for naturalization, the Court grants Defendant's motion.

BACKGROUND

I. Undisputed Facts

Gennady Gorenyuk is a Ukraine native who became a lawful permanent resident of the United States in November 1989. (R. 17-1, Pl's Local Rule 56.1 Statement, at ¶ 1.) On February 18, 1994, Mr. Gorenyuk pled guilty to two counts of child pornography and one count of aggravated sexual abuse in the Circuit Court of Cook County, Illinois. (Id. at ¶¶ 5, 8-9.) Following these convictions, Gorenyuk was placed in removal proceedings. (Id. at ¶ 12.) On July 24, 2004, however, an Immigration Judge found Gorenyuk eligible for a waiver of removal, and therefore ordered that he could not be ordered removed from the United States. (Id. at ¶ 13.)

On November 1, 2005, Gorenyuk applied for naturalization with the United States Citizenship and Immigration Services (the "USCIS"). (Id. at ¶ 14.)The USCIS denied Gorenyuk's application on October 12, 2006, ("the Initial Decision") finding that Gorenyuk was statutorily barred from establishing that he was a person of good moral character because of his felony conviction for aggravated criminal sexual abuse. (Id. at ¶¶ 15-17.)On November 14, 2006, Gorenyuk filed an administrative appeal of the USCIS's decision denyinghis application for naturalization (the "Administrative Appeal"), pursuant to 8 U.S.C. § 1447(a).(Id. at ¶18.) On March 1, 2007, before the USCIS had ruled on Gorenyuk's Administrative Appeal, Gorenyuk filed a petition requesting that this Court review the USCIS's Initial Decision, pursuant to 8 U.S.C. § 1447(b). (R. 1-1, Pl's Petition.) Shortly thereafter, on March 15, the USCIS issued a decision denying Gorenyuk's Administrative Appeal (the "Appellate Decision").

(R. 17-1, at ¶ 21 & Ex. H.)On July 16, 2007, Gorenyuk filed an amended petition. (Id. at ¶ 22 & Exhibit A; R. 11-1, 12-1.)

ANALYSIS

I. Jurisdiction

Before turning to the substance of this motion, the Court must address a jurisdictional issue not raised by the parties. Under 8 U.S.C. § 1447(b), an applicant may petition a district court for review only if the USCIS failed to make a decision on his application within 120 days of his examination. In this case, the USCIS did not make a determination within 120 days of Gorenyuk's examination. Gorenyuk, however, did not initially seek this Court's review pursuant to 8 U.S.C. § 1447(b). Rather, Gorenyuk waited until after the USCIS issued its Initial Decision (outside of the 120-day window) and then sought an Administrative Appeal of the USCIS's Initial Decision, pursuant to 8 U.S.C. § 1447(a). It was only after Gorenyuk sought the Administrative Appeal that he petitioned this Court for review pursuant to 8 U.S.C. § 1447(b). In other words, Gorenyuk attempted to petition this Court for review of the Initial Decision while the Appellate Appeal was still pending. The Court is thus presented with the question of whether a naturalization applicant may invoke a district court's review of his application pursuant to § 1447(b) after the applicant has invoked § 1447(a). The clear statutory scheme dictates that he may not.

The Court's analysis begins with the language of the statute. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed. 2d 808 (1997). Title 8 U.S.C. § 1447(b) states: 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.

8 U.S.C. § 1447(b); see also United States v. Hovsepian, 359 F.3d 1144, 1162 (9th Cir. 2004) ("Section 1447(b) is best viewed as a mechanism by which naturalization applicants who are impatient with [the USCIS] delay may skip the agency's analysis of their application and proceed directly to the step in which the district court conducts a de novo review of the application.").

When Gorenyuk petitioned the Court pursuant to § 1447(b) on March 1, 2007, the USCIS had long since denied Gorenyuk's application for naturalization under § 1446. Moreover, at the time Gorenyuk filed his petition, he had already sought an Administrative Appeal, pursuant to § 1447(a). That statute provides:

If, after an examination under [8 U.S.C. ยง 1446], an application for naturalization is denied, the applicant may request a ...


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