The opinion of the court was delivered by: HENRY KENNEDY, District Judge
Plaintiff, Antonio Castracani ("Castracani"), brings this
action against defendant, Secretary of the Department of Homeland
Security ("DHS"),*fn1 claiming that DHS failed to timely
adjudicate Castracani's naturalization application pursuant to
the Immigration and Naturalization Act ("Immigration Act"),
8 U.S.C. § 1447(b), and respond to Castracani's request for
information under the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552(a)(6)(A)(I). Before the court are DHS's motion to
dismiss on the grounds that Castracani's naturalization claim is moot and
Castracani's cross-motion to remand with instructions for DHS to approve his
naturalization application nunc pro tunc.*fn2 Upon consideration of the
motions, the oppositions thereto, and the record of this case, the court concludes that
DHS's motion must be denied and Castracani's motion must be granted.
I. BACKGROUND INFORMATION
Castracani, an Italian national, filed a naturalization
application with the Washington, D.C., district office of DHS's
Bureau of Citizenship and Immigration Services ("BCIS") on
February 28, 2002.*fn3 Am. Compl. ¶ 7; Pl.'s Ex. 1 at 3. In
accordance with naturalization application procedure, Castracani
had his fingerprints taken on June 3, 2002, and BCIS interviewed
him on March 25, 2003. Am. Compl. ¶ 8. Castracani claims that
adjudications officer Reginald Hughes ("Hughes"), who conducted
the interview, told Castracani "that his naturalization
application would be approved and a Citizenship Oath-taking
ceremony appointment notice mailed to him within 90 days." Id.
In September 2003, after Castracani had made "repeated status
inquiries," Hughes told Castracani that a DHS computer error had
caused Castracani's unique "Alien Number" to be assigned to a
Moroccan national, "Bahad," delaying the completion of
Castracani's background check and approval of his naturalization
application. Id. ¶ 9. Hughes said he would correct the error,
but he could not approve Castracani's naturalization application
because the background check had not been completed. Id.
Castracani claims that "Hughes then took back ? Castracani's
naturalization approval notice and gave him instead a new notice,
back-dated to March 25, 2003, indicating a decision could not yet
be made on his application." Id. After Castracani continued to make unsuccessful status
inquiries with DHS regarding his application, he filed this
action on July 1, 2004. Id. ¶¶ 10-13. After Castracani filed
this suit, DHS approved his application, and he was sworn in as a
naturalized citizen in the District Court for the District of
Columbia on December 14, 2004. Def.'s Mot. to Dismiss ("Def.'s
Mot.") at 2; Pl.'s Opp'n to Def.'s Mot. ("Pl.'s Opp'n") at 3.
DHS argues that Castracani's claim regarding the approval of
his naturalization application should be dismissed as moot since
he has already been sworn in.*fn4 Def.'s Mot. at 2.
Castracani disagrees, arguing that his "purported naturalization
is invalid because DHS did not have jurisdiction to approve his
naturalization application. Thus, his prayer for relief remains
within the sole jurisdiction of this Court." Pl.'s Opp'n at 6.
Castracani is correct.
The Immigration Act provides for an administrative
naturalization process, vesting the Attorney General with "the
sole authority to naturalize persons as citizens of the
United States." 8 C.F.R. § 310.1. However, the Act contains provisions
mandating judicial review in limited circumstances, including
cases of administrative inaction. See 8 U.S.C. § 1447(b).
Under current naturalization procedure, an applicant for
naturalization must first submit her application materials to
BCIS. 8 C.F.R. § 334.2. Following initial administrative
processing of the application, BCIS conducts a background
investigation of the applicant. 8 C.F.R. § 335.1. Once this background investigation has been completed, and "only
after ? [BCIS] has received a definitive response from the
Federal Bureau of Investigation that a full criminal background
check of an applicant has been completed[,]" BCIS notifies the
applicant to appear before a BCIS officer for an examination.
8 C.F.R. § 335.2. At the examination, a BCIS officer interviews the
applicant and is required to either grant or deny the application
"at the time of the ? examination or within 120 days after the
date of the ? examination." 8 C.F.R. § 335.3. Once an
application is granted and the applicant is notified of her
eligibility for citizenship, the applicant takes the oath of
allegiance "in a public ceremony held within the United States."
8 C.F.R. § 337.1.
When BCIS either denies or fails to make a determination on the
naturalization application within 120 days of the examination,
the applicant may appeal to the appropriate district court for a
hearing. 8 U.S.C. § 1447(b). "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."*fn5 Id. Section 1447(b) has been
interpreted as vesting in federal district courts exclusive
jurisdiction when a naturalization applicant has filed suit as a
result of DHS's failure to adjudicate her application within 120
days of her examination. See United States v. Hovsepian,
359 F.3d 1144, 1162 (9th Cir. 2004) (holding that "[u]nder § 1447(b),
the court has the last word by exercising exclusive
jurisdiction over those naturalization applications on which [BCIS] has failed to act in a timely fashion" (emphasis
added)).*fn6 This is so because the statutory language
allowing a court to "remand the matter, with appropriate
instructions" to BCIS precludes BCIS and the district court from
exercising concurrent jurisdiction. See id. at 1160 (concluding
that "[the] wording [of § 1447(b)] shows that Congress intended
to vest power to decide languishing naturalization applications
in the district court alone, unless the court chooses to
`remand the matter' to [BCIS], with the court's instructions").
Furthermore, under a scheme of concurrent jurisdiction, "[BCIS]
[would] no longer have much incentive to act on a naturalization
application within the 120-day period."*fn7 Id. at 1163.
That the district court has exclusive jurisdiction is further
supported by the general rule that "`[a] statutory time period is
not mandatory unless it both expressly requires an agency or
public official to act within a particular time period and
specifies a consequence for failure to comply with the
provision.'" St. Regis Mohawk Tribe, N.Y. v. Brock,
769 F.2d 37, 41 (2d Cir. 1985) (quoting Fort Worth Nat'l Corp. v. Fed. Sav. & Loan Ins.
Corp., 469 F.2d 47, 58 (5th Cir. 1972)); see also Brock v.
Pierce County, 476 U.S. 253, 266 (1986) (holding that an
agency's failure to act within the statutory deadline was not on
its own sufficient to divest the Secretary of jurisdiction
because there was "simply no indication in the statute or its
legislative history that Congress intended to remove the
Secretary's enforcement powers if he failed to issue a final
determination on a complaint or audit within 120 days"); Friends
of the Crystal River v. EPA, 35 F.3d 1073, 1080 (6th Cir. 1994)
(concluding that "where a statute both requires the agency to act
within a certain time period and specifies a consequence if that
requirement is not met, the agency will lose jurisdiction to
act"); Gottlieb v. Peña, 41 F.3d 730, 731-33 (D.C. Cir. 1994)
(holding that the statutory ten-month period for final action on
applications for correction of Coast Guard records was directory
rather than mandatory because Congress did not specify any
consequences for missing the ten-month deadline). A plain reading
of § 1447(b) indicates that Congress expressly provides for a
consequence should BCIS fail to make a determination on a
naturalization application within 120 days of the applicant's
examination, which is that "the applicant may apply to the
United States district court for the district in which the applicant
resides for a hearing on the matter." 8 U.S.C. § 1447(b).
DHS does not deny that it failed to make a decision on Castracani's
naturalization application within 120 days of his examination, as required
by § 1447(b).*fn8 Def.'s Mot. at 1-2. Castracani took his naturalization examination on March 25, 2003.
Am. Compl. ¶ 8. Although DHS never states when it approved
Castracani's application, it had not adjudicated his application
on July 1, 2004, when Castracani filed this action. Def.'s Mot.
at 1-2. Thus, at a minimum, more than a year elapsed between
Castracani's naturalization examination and the filing of this
action, well over the 120 days within which § 1447(b) requires
DHS to act before a naturalization applicant may appeal to the courts.
Once DHS failed to adjudicate his application within 120 days
of his examination, Castracani was entitled to file a complaint
in this court.*fn9 § 1447(b). When Castracani did file suit
on July 1, 2004, this court obtained exclusive jurisdiction over
his naturalization application. See id. In arguing that
Castracani's claim is moot because DHS ultimately approved his
application, DHS misses the point. See Def.'s Mot. at 2. The
fact is that DHS no longer had jurisdiction to adjudicate
Castracani's application once this action commenced, an issue
that DHS failed to address.*fn10 Therefore, in the absence
of any evidence indicating that DHS approved Castracani's
application before July 1, 2004, DHS's adjudication of
Castracani's application is invalid, and jurisdiction lies
exclusively with this court to either approve his application or
remand it to DHS with instructions. III. CONCLUSION
For the foregoing reasons, DHS's motion to dismiss must be
denied. Furthermore, consistent with DHS's belated adjudication
of Castracani's application, Castracani's cross-motion to remand
his case to DHS with instructions to approve his naturalization
application nunc pro tunc to December 14, ...