Relief for Delayed Naturalization Applications Under INA 236(b)

Introduction

Before a lawful permanent resident can become a naturalized U.S. citizen, he or she must undergo an examination under section 335 of the Immigration and Nationality Act (INA). Section 336 of the INA generally requires the Department of Homeland Security (DHS) to render a decision on the naturalization application before the end of the 120-day period after the examination occurred. If the DHS fails to render a decision within that period, section 336(b) permits the naturalization applicant to seek a hearing on his or her application in the United States District Court having jurisdiction over the applicant's place of residence. If the District Court concludes that it has jurisdiction, it may opt to either decide the naturalization application or remand the matter to the DHS with whatever instructions it deems appropriate.

In this article, we will examine the process and rules for seeking District Court review under INA 336(b) of long-pending naturalization applications. We discuss naturalization generally in our full section [see category] on site.

Statutory Background

Section 335(a) of the INA provides that before an alien may be naturalized, “an employee of the Service, or of the United States designated by the Attorney General, shall conduct a personal investigation of the person applying for naturalization…” The Government has discretion to waive this personal examination.

The United States Citizenship and Immigration Services (USCIS) PM explains [link] that the purpose of the naturalization examination is “to determine whether an applicant meets all pertinent eligibility requirements to become a U.S. citizen.” At the examination, the USCIS completes all necessary security and background checks, reviews the applicant's immigration record, interviews the applicant, administers the English and civics exams, and considers whether the application qualifies for a disability exception from the English and/or civics requirements, if requested.

Under INA 336(b), the USCIS is supposed to render a decision on the naturalization application within the 120-day period following the naturalization examination. Implementing regulations provide that “[a]fter completing all examination procedures contained in part 335 of this chapter and determining to deny an application for naturalization, USCIS will serve a written notice of denial upon an applicant for naturalization no later than 120 days after the date of the applicant's first examination on the application.” 8 C.F.R. 336.1(a). INA 336(b) provides an avenue of relief in cases where the USCIS fails to decide the naturalization application within that 120-day period. INA 336(b) does not apply in cases where the USCIS denies the naturalization application in the 120-day period. In those cases, the applicant may appeal from the denial of the application through ordinary administrative channels. District Courts have generally held that 336(b) only provides them jurisdiction in the limited circumstance where the USCIS does not decide a naturalization application within the 120-day period following the INA 335 examination, and not in other cases involving delays in a naturalization adjudication. See e.g., Langer v. McElroy, 2002 WL 31789757 (S.D.N.Y. Dec. 13, 2002) (no subject-matter jurisdiction in case where CIS initially approved naturalization application but then revoked approval after applicant failed to appear at naturalization ceremony).

If the District Court having jurisdiction over the applicant's place of residence determines that it has jurisdiction over a case wherein the USCIS failed to adjudicate a naturalization case within the 120-day period following the naturalization examination, it has two options. First, it may decide the naturalization examination itself — either granting naturalization or denying the application. Second, it may remand to the USCIS with instructions to decide the case in accordance with the Court's instructions.

Where Does the Naturalization Applicant Request INA 236(b) Relief?

INA 336(b) expressly states that “the applicant may apply to the United States district court for the district in which the applicant resides…” Therefore, the applicant must file with the district court having jurisdiction over his or her actual place of residence. The applicant may consult with an attorney for guidance on the proper venue for a section 336(b) suit in his or her particular case.

When Does the 120-Day Period From the Naturalization Examination Begin?

Courts have grappled with the question of whether “examination” in INA 336(b) refers to the date on which the alien was actually interviewed or the date on which the Government completed the process of investigating the naturalization application. One challenging point regarding INA 336(b) is that the decision of one U.S. District Court Judge in a particular INA 336(b) case is not binding on another, even if the circumstances are otherwise identical. As we will see, the majority of district court judges that have had to consider the issue have adopted the interpretation most favorable to the applicant — that the “examination” in INA 336(b) refers to the date of the applicant's initial examination, not the date on which the Government's investigation of the naturalization application was completed (e.g., cases where the FBI background check of the applicant was completed after the applicant's initial interview).

Only the United States Court of Appeals for the Fifth Circuit has expressly taken the position that the 120-day period begins with the applicant's initial interview. Walji v. Gonzales, 500 F.3d 432, 436 & n.5 (5th Cir. 2007) [PDF version]. The Ninth Circuit also stated in a decision that INA 336(b) refers to “an applicant's first interview…” U.S. v. Hovsepian, 359 F.3d 1144, 1151-52 (9th Cir. 2004) (en banc) [PDF version]. Thus, it is clear that in cases arising in the jurisdiction of the Fifth Circuit, the 120-day period for INA 336(b) jurisdiction begins with the applicant's initial naturalization interview. Hovsepian can be read as establishing the same rule in the Ninth Circuit, although that decision did not squarely address the issue. You can see which district courts fall within the jurisdiction of the Fifth and Ninth Circuits in our article on circuit court jurisdiction.

Although the interpretations of the Fifth and Ninth Circuit reflect the majority of district court decisions, there do exist contrary district court decisions. The Fifth Circuit in Walji expressly addressed, and disagreed with, the decision of the United States District Court for the Eastern District of Virginia in Danilov v. Aguirre, 370 F.Supp. 2d 441 (E.D. Va. 2005) [PDF version], wherein the Court held that the 120-day period began when the FBI completed its background check of the applicant.

While the majority of INA 336(b) decisions have held that the 120-day period for INA 336(b) jurisdictional purposes begins with the date of the initial naturalization interview, one should remember that district court judges in individual cases may adopt the view articulated in Danilov that the period begins with the completion of the Government's examination of the circumstances of the naturalization application.

In General — No District Court Jurisdiction if USCIS Renders Decision Before Applicant Requests Relief Under INA 236(b)

If the USCIS fails to decide a naturalization application within the 120-day period following the applicant's naturalization examination, but then subsequently denies the naturalization application outside that period, may the applicant seek district court relief under INA 336(b)? In general, district courts that have considered the issue have held that the applicant may not seek relief under INA 336(b) if the USCIS denies the naturalization application first.

In an illustrative unreported decision of the United States District Court for the Eastern District of New York, the Court considered an INA 336(b) request from an applicant whose naturalization application had been denied more than three years after his naturalization interview. Ogunwomoju v. District Director of Citizenship and Immigration, 2007 WL 764537 (March 9, 2007). The Court held that, although the USCIS had failed to decide the naturalization application within the 120-day period following the applicant's interview, the Court lacked subject-matter jurisdiction because the USCIS had rendered a decision before the applicant asked for relief.

There appears to be no contrary views on the matter from other district courts. See 45 A.L.R. Fed. 2D 621 (originally published in 2010). Thus, if the USCIS decides a naturalization application before the applicant seeks relief from the district court under INA 336(b), the district court has no subject-matter jurisdiction to consider the application.

Does the District Court Have Exclusive Jurisdiction Under INA 236(b)?

This section concerns the following scenario: First, the USCIS fails to adjudicate a naturalization application within the 120-day period following the naturalization examination. Second, the applicant properly requests relief from the district court under INA 336(b) before the USCIS renders a decision on the application. We are left with the following question — can the USCIS decide the application while the matter is pending before the district court that is considering the issue under INA 336(b)? In other words, once the district court takes jurisdiction over the naturalization application under INA 336(b), does the USCIS retain concurrent jurisdiction?

Although the issue is not resolved on a national level, most courts that have considered the question have held that INA 336(b) gives the district court exclusive jurisdiction over the naturalization application, meaning that the USCIS cannot decide the application unless the district court first remands the matter to the agency.

The following circuits have issued precedent decisions holding that district courts have exclusive jurisdiction over naturalization applications under INA 336(b):

U.S. v. Hovsepian, 339 F.3d 1144, 1159-60 (9th Cir. 2004) (en banc) [PDF version]
Etape v. Chertoff, 497 F.3d 379, 383-84 (4th Cir. 2007) [PDF version]
Bustamante v. Napolitano, 582 F.3d 403, 406-408 (2d Cir. 2009) [PDF version]
Aljabri v. Holder, 745 F.3d 816, 818-19 (7th Cir. 2014) [PDF version]
Haroun v. U.S. Department of Homeland Security, 929 F.3d 1007, 1010-1011 (8th Cir. 2019) [PDF version]

All district courts falling within the jurisdiction of the Second (includes New York), Fourth, Seventh, Eighth, and Ninth Circuits have exclusive jurisdiction over naturalization applications under INA 336(b) under controlling precedent. Although other circuits have not expressly addressed the issue, a survey of cases indicates that most district courts that have considered the matter have found that their jurisdiction is exclusive once they have accepted jurisdiction over a properly filed INA 336(b) request. However, in cases outside of the circuits that have addressed the matter, the Government's position appears to remain that it has concurrent jurisdiction even after the district court assumes jurisdiction under INA 336(b) (note, for example, that the Eighth Circuit was called upon to offer its view in 2019).

Outside of the circuits that have decided the issue, district courts are free to reach their own conclusions on whether the USCIS can deny a naturalization application after a district court accepts jurisdiction under INA 336(b) and is considering the matter. While most district courts may agree with the exclusive jurisdiction view, there are exceptions. To use just one example, the United States District Court for the District of New Jersey held that even after it had accepted jurisdiction over a naturalization case under INA 336(b), the USCIS retained concurrent jurisdiction and was thus able to properly deny the naturalization application, thus rendering the district court's further consideration of the matter moot. Perry v. Gonzales, 472 F.Supp 2d 623 (D.N.J. 2007) [PDF version]. In one particularly notable concurrent jurisdiction decision, the United States District Court for the District of New Mexico held that the alien's properly filed INA 236(b) complaint did not strip the USCIS of jurisdiction, while also holding that, because the alien had asked the District Court to approve his naturalization application, the USCIS's denial of the application after the District Court began considering the matter did not moot the alien's cause of action in the District Court. Hamdan v. Chertoff, 626 F.Supp.2d 1119 (D.N.M. 2007) [PDF version].

Finally, district courts have on rare occasions held that a USCIS decision on a naturalization application after the alien makes an INA 236(b) request deprives the court of jurisdiction entirely. See e.g., Khitab v. Novak, 524 F.Supp.2d 105 (D. Mass 2007) [PDF version].

Effect of Removal Proceedings on INA 236(b) Jurisdiction

The circuits are split on the question of whether a district court may assume jurisdiction over a 236(b) request made by an alien who is in removal proceedings. The issue arises from the language of INA 318, which precludes the Attorney General from naturalizing an alien against whom there “is pending … a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act.”

The United States Courts of Appeals for the Second and Fifth Circuits have held that district courts lack subject-matter jurisdiction over INA 236(b) requests made by aliens who are in removal proceedings. See Ajlani v. Chertoff, 545 F.3d 229 (2d Cir. 2008) [PDF version]; Saba-Bakare v. Chertoff, 507 F.3d 337 (5th Cir. 2007) [PDF version] (Fifth Circuit held that even if district courts retained subject-matter jurisdiction under 236(b) for aliens in removal proceedings, no relief could be sought). That is, notwithstanding other issues, neither the district court nor the Attorney General may naturalize an alien who is in removal proceedings.

In considering a different issue, the Third Circuit held that, while a district court cannot direct the Attorney General to naturalize an alien who is in removal proceedings, district courts retain subject-matter jurisdiction to consider appeals from naturalization denials in such cases. In so doing, the Court indicated its disagreement with the decisions in Ajilani and Saba-Bakare, which dealt with INA 236(b). Gonzalez v. Secretary of Dept of Homeland Sec., 678 F.3d 254, 259 & n.5, n.7 (3d Cir. 2012) [PDF version].

In 2018, the Ninth Circuit expressly rejected Ajilani and Saba-Bakare, holding that district courts fully retain subject-matter jurisdiction and the power to grant or deny a naturalization application under INA 236(b) even if the alien is in removal proceedings. Yith v. Nielsen, 881 F.3d 1155, 1161-62 (9th Cir. 2018) [PDF version].

Thus, the issue of whether pending removal proceedings initiated subsequent to a “warrant of arrest” under INA 318 either strip a district court of INA 236(b) jurisdiction or render it impossible for the district court to grant relief to the alien remains unsettled outside of the Second, Fifth and Ninth Circuits. In other circuits, existing precedent regarding the separate issue of appeals from naturalization denials may provide guidance for practitioners in bringing 236(b) claims in district court for aliens in removal proceedings.

Conclusion

INA 236(b) provides an avenue for relief for aliens whose naturalization applications remain un-adjudicated after more than 120 days have elapsed since their naturalization interview. A naturalization applicant should bear in mind that if the USCIS ultimately denies the naturalization application before he or she seeks relief under INA 236(b), the district court will find that it lacks subject-matter jurisdiction. As we noted, there are several outstanding questions in many circuits regarding whether USCIS may deny a naturalization application after a district court has assumed jurisdiction under INA 236(b), as well as the effect of removal proceedings on a district court's subject-matter jurisdiction under INA 236(b). Furthermore, some district courts retain discretion to count the 120-day period as commencing subsequent to the interview with the FBI's completion of background checks of the alien instead of the date of the alien's initial naturalization interview.

An alien seeking naturalization should retain an experienced immigration attorney. In the event that the USCIS does not adjudicate an alien's naturalization application within 120 days of the alien's naturalization interview, an attorney may advise the alien on the best course of action, including, if applicable, seeking relief from a district court under INA 236(b).