Naturalization Delay Litigation Is Premature If The FBI Has Not Finished The Background Check (5^th Cir.)

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In recent months, USCIS began abandoning the traditional practices of only issuing examinations once the FBI background check is completed.  This procedure relieves the backlogs for the FBI background checks because applicants that failed the examination will then be taken off the pending FBI list.  However, the end result is that many applicants who passed the naturalization examination waited for months without receiving a decision from USCIS because their applications are still pending on FBI background checks.  Consequently, applicants file suits in Federal District Courts, based on 8 U.S.C. §1447(b). 

Under 8 U.S.C. §1447(b), Request hearing before the District Court:

“If there is a failure [for USCIS] to make a determination under section 1446 [FBI background investigation for naturalization] …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.”  Emphasis added.

Recently, in Walji v. Gonzales, F.3d, 2007 U.S., the 5^th Cir. Court of Appeals ruled that USCIS must receive a “definitive response” from the FBI before the 120-day time period in 8 U.S.C. §1447(b) begins to run.  The 5^th Circuit Court’s decision conflicts with many jurisdictions, including the 9^th Circuit Court, in which these courts held that the 120-day period begins to run after the naturalization “examination” occurred, whether or not the FBI check was complete. These courts examined the statutory language that states that an applicant may apply for a hearing on their naturalization application if there is no determination on the application 120 days after “the examination is conducted.”

On the contrary, the 5^th Circuit Court of Appeals in Walji looked to 8 C.F.R. §335.2(b). This section states that USCIS will notify applicants for an initial examination only after USCIS has received a “definitive response” from the FBI that the criminal background check is completed (USCIS’s former practice as stated above). The court reasoned that Congress could not have intended for “examination” to mean a “premature” examination that took place before the background check was complete. 

Currently, the petitioner in Walji is considering filing a petition for a rehearing. Petitioners who filed a petition under 8 U.S.C. §1447(b) should ask the District Court to hold the case in abeyance, pending a decision on rehearing and/or issuance of the mandate by the 5^th Circuit Court.

Please contact one of our immigration attorneys at www.houston-immigration-lawyers.com for more information and assistance in filing your naturalization application so that your application will be a smooth transaction in this difficult area of law.