Naturalization Delays: How Long is Too Long?
By Marvin J. Muller III
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.
