Mary Giovagnoli, Director of the Immigration Policy Center at the American Immigration Council,...
Delays by USCIS in deciding naturalization applications have forced many applicants to seek judicial remedies. Section 336(b) of the Immigration and Nationality Act allows a federal district court to review a naturalization application if USCIS has failed to decide it for more than 120 days after the date of the examination. The law allows the court to either decide the application itself or remand the application to USCIS for decision.
Often, USCIS will deny a naturalization application while the case is pending in federal district court. The agency’s lawyers will then move to dismiss the federal court case because the application has been denied. If the case is dismissed, the applicant will face even longer delays as an appeal to USCIS will be required before seeking judicial review of the denial. We have successfully challenged this practice, arguing in amicus briefs that once a case has been filed in federal court, USCIS loses its authority over the naturalization application and must wait for the federal court decision before taking further action.
Bustamante v. Napolitano, No. 08-0990-cv (2d Cir. amicus brief filed May 30, 2008). In a precedent decision, the court adopted the position urged by the Legal Action Center and held that USCIS does not have jurisdiction to decide a naturalization application after an applicant files an action in district court under INA § 336(b). Bustamante v. Napolitano, 582 F.3d 403 (2d Cir. 2009).
Etape v. Chertoff, No. 06-1916, 06-1990 (4th Cir. amicus brief filed Nov. 6, 2006). In a precedent decision, the court adopted the position of the Legal Action Center and held that USCIS does not have jurisdiction to decide a naturalization application after an applicant files an action in district court under INA § 336(b). Etape v. Chertoff, 497 F.3d 379 (4th Cir. 2007).
LAC Litigation Issue Page: Naturalization Adjudication Delays.
LAC Practice Advisory: Circumventing Naturalization Delays: How to get Judicial Relief Under 8 USC 1447(b) for a Stalled Naturalization Application (Aug. 25, 2010). This practice advisory outlines the basic elements of a § 1447(b) suit and discusses litigation concerning this provision and the issues that have arisen from this litigation. It also discusses when attorney’s fees under the Equal Access to Justice Act are available in § 1447(b) suits.