Maryland Bar Bulletin
Publications : Bar Bulletin : November 2006


Naturalization Delays: How Long is Too Long?

Assisting a client with the preparation, filing and processing of a naturalization application can be a rewarding experience. Tears of joy are often seen on the day of the final swearing-in ceremony when the client takes the official oath of allegiance to the United States of America and sings the anthem for the very first time. Years and years of completing paperwork, waiting for interviews, learning English as a second language, and proving good moral character make certain that the occasion will be a very memorable milestone.

There are, however, thousands of naturalization applicants that are forced to wait several years after their initial naturalization application is filed due to unnecessary administrative delays. They are not the only ones whose futures are on hold; at the same time, immediate family members are waiting in foreign lands in order for their loved one to attain citizenship status so that the long process of immigrating may be started on their behalf. How long is too long to wait?

There are two generally recognized methods for obtaining judicial review of a naturalization application that is well beyond reasonable processing times. Some immigration and nationality law practitioners choose to compel the U.S. Citizenship & Immigration Service (CIS) to action by filing a writ of mandamus under The Mandamus Act. Presenting a writ of mandamus to the U.S. District Court generally requires a demonstration that (1) the applicant has a clear right to the relief requested, (2) the defendant has a clear duty to perform the act in question, and (3) no other adequate remedy is available. Although a mandamus action is certainly one viable option, another less-complicated form of relief is located within the Immigration & Nationality Act (INA). The INA specifically provides for judicial review of a naturalization application that is pending more than 120 days after the initial interview. Such review may be obtained from the U.S. District Court by filing what is known as a Petition for Hearing on Naturalization Application in the district court for the jurisdiction in which the applicant resides.

In addition to including the procedural history and facts of the case, the petition must indicate which of the two forms of relief are requested. By statute, the petitioner may either request an adjudication of the naturalization in court or request the court to remand the application to the CIS for immediate action. Although either option may lead to adjudication, requesting the court to compel the CIS to action merely places the matter back in the hands of those individuals who previously demonstrated their inability to provide a timely adjudication. The agencies and the directors that possess the ultimate responsibility for adjudicating the naturalization application should be listed as defendants. This includes the Attorney General, the Department of Homeland Security, the Director of CIS, and the Director of the local CIS office where the application is pending.

Although the statute authorizes the filing of a petition 120 days after the initial interview, the merits of the petition will be notably improved if significant prior efforts to obtain a decision from CIS can be documented in the procedural history portion of the petition. The judge may be more inclined to proceed with a full adjudication of the naturalization application before the court if the record demonstrates a long history of inaction on the part of the CIS. Local practitioners encourage filing a draft copy of the petition for hearing with the CIS District Director and the U.S. Attorney. Providing notification that a federal court action is on the horizon is not just courtesy. More often than not, such notice will be sufficient to get the wheels of justice spinning and thereby obviate the need to file the petition with the court.

As always, it is crucially important to keep the client advised of the realistic chances for success with this type of legal action. Remember that while the applicant for naturalization is feeling wronged by the considerable delays in processing, federal judicial review only guarantees that a decision will be rendered – it does not increase the likelihood that the application will be approved. Any underlying problems affecting the applicant’s eligibility could still trigger a denial of the naturalization application.

Marvin J. Muller III is an associate of Segal McCambridge Singer & Mahoney in its Baltimore office.  He concentrates his practice in immigration and nationality law.



Publications : Bar Bulletin: November 2006