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Popnikolovski v. United States Dep't of Homeland Security

July 14, 2010

IGOR POPNIKOLOVSKI, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, CITIZENSHIP AND IMMIGRATION SERVICES, ALEJANDRO MAYORKAS, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, RUTH A. DOROCHOFF, IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE USCIS CHICAGO DISTRICT OFFICE, ERIC HOLDER, ATTORNEY GENERAL OF THE UNITED STATES, JANET NAPOLITANO, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, ROBERT MUELLER, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, AND UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Rebecca R. Pallmeyer United States District Judge

Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Igor Popnikolovski, a native of Macedonia, applied for U.S. citizenship and was interviewed by the U.S. Citizenship and Immigration Services ("USCIS") on April 9, 2009. The USCIS failed to act on his application for several months. Under 8 U.S.C. § 1447(b), if USCIS fails to make a determination within 120 days of an applicant's interview, the applicant may seek relief in the district court. That is exactly what Plaintiff did more than eight months after his interview when, rather than making a determination, USCIS issued a notice for an additional interview. Plaintiff did not participate in that additional interview, and USCIS promptly issued a decision denying Plaintiff's citizenship application. The decision, issued eight days after Plaintiff filed this action, relied in part on Plaintiff's refusal to participate in the interview. Because the court concludes that a properly filed action under § 1447(b) vests the court with exclusive jurisdiction over the naturalization application, the subsequent denial by USCIS of Plaintiff's application is void. The court declines to decide Plaintiff's naturalization application on its merits, though, and remands the matter to USCIS with instructions.

BACKGROUND

Plaintiff has been a permanent resident of the United States since January 23, 2004. (Permanent Resident Card, Ex. 1 to Pl.'s Compl.) He achieved resident status through his wife who died before he applied for citizenship, and he has no children. (Initial Decision, Ex. B to Defs.' Mem. in Support of Mot. to Dismiss (hereinafter "Defs.' Mem.").) Plaintiff owns a business and property in the United States, and he received a Master of Science in Engineering degree from Purdue University on August 3, 2007. (Group Ex. 5 to Pl.'s Brief in Opposition to Defs.' Mot. to Dismiss (hereinafter "Pl.'s Opposition").) Plaintiff divides his time between the United States and Macedonia, where he works as an electrician at the United States embassy in Skopje and cares for his elderly mother. (Ex. 6 to Pl.'s Opposition.)

On October 24, 2008, Plaintiff filed an application for naturalization ("N-400") with USCIS. (N-400 Appointment Notice, Ex. 2 to Pl.'s Compl.) He attended an initial interview conducted by USCIS on April 8, 2009, where he passed his English, United States history, and government tests. (N-652, Naturalization Interview Results, Ex. 7 to Pl.'s Opposition.) At the time of the interview, the USCIS interviewing officer issued a request for additional documentation, specifically, tax returns, W-2s, 1099 forms, bank statements, and certain medical records. (Decl. of Brenda Treml ¶ 5, Ex. A to Defs.' Mem.) Plaintiff complied with the request, providing some of the requested information on April 14, 2009, and the remainder on May 6, 2009. (Id. ¶ 6.) In September 2009, Plaintiff requested and received a status report on his application, but the record does not provide details concerning that report. (Id. ¶ 7.) Finally, on December 10, 2009, the USCIS interviewing officer directed Plaintiff to appear for another interview on January 22, 2010. (Id. ¶ 8.) Three days before the interview, on January 19, 2010, Plaintiff's attorney filed this action. Plaintiff appeared at the interview on January 22, 2010,but did not participate, instead asserting that this court had exclusive jurisdiction over the matter. (Id. ¶ 10.)

In a written decision dated January 27, 2010, five days after the second interview, USCIS purported to deny Plaintiff's naturalization application for three reasons. (Initial Decision, Ex. B to Defs.' Mem.) First, the decision stated that USCIS had received Plaintiff's N-400 application one day too early. (Id. at 3.) Plaintiff asserts that this was the first time he had been told of any such problem. (Pl.'s Opposition, at 12.) Under 8 U.S.C. § 1427, Plaintiff was eligible for citizenship on January 23, 2009, five years after he became a permanent resident, and under 8 C.F.R. § 334.2(b), a naturalization application may be filed "up to 90 days prior to the completion of the required period of residence." October 24, 2008, the date on which USCIS received Plaintiff's application is 91 days before January 23, 2009. The court notes that under the language of 8 U.S.C. § 1445(a), which allows certain applications to be filed up to three months before an applicant meets the residence requirement, Plaintiff's application may have been timely: October 24, 2008 is less than three months before January 23, 2009. The regulation at issue, 8 C.F.R. § 334.2(b), states that the 90 days may include that three-month period, but unless one of the three months is February, a three-month period will always be longer than 90 days. Given this confusion, denying a naturalization application on the previously unnoted fact that the application was received just one day early appears inequitable.

USCIS's second reason for denying Plaintiff's application was Plaintiff's failure to show continuous residency in the United States. (Initial Decision, Ex. B to Defs.' Mem., at 3-4.) Plaintiff was living and working in Macedonia, and his brother in the United States was his only family tie to this country. (Id.) Plaintiff had provided USCIS with information about his elderly mother in Macedonia, for whom he was caring, but the decision stated that by refusing to answer questions about his absences from the United States at the second interview, Plaintiff "deprived himself of the opportunity" to rebut the finding that he was not a continuous U.S. resident. (Id. at 4.) Finally, USCIS's decision rested on a ruling that Plaintiff's refusal to cooperate in the second interview constituted a "lack of prosecution." (Id.)

Defendants have moved to dismiss for lack of jurisdiction, arguing that USCIS's decision moots Plaintiff's case. Plaintiff responds that the decision does not moot his case because USCIS lacked jurisdiction to issue its decision once he had filed his complaint in this court. He asks that the court adjudicate his naturalization application itself.

DISCUSSION

I. Standard of Review

When reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the court will "accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff." Evers v. Astrue, 536 F.3d 651, 656 (7th Cir. 2008) (quotation omitted). The court may, however, "properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009) (quotation omitted). The party asserting jurisdiction bears the burden of proving that jurisdiction is proper. United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003).

II. The Court's Exclusive Jurisdiction

The central dispute is whether this court has exclusive jurisdiction over Plaintiff's application, or concurrent jurisdiction with USCIS. Consideration of this ...


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