UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Naseef Bryan, Jr.

v. Civil No. 23-cv-341-LM-AJ Opinion No.

P U.S. Citizenship and Immigration Services

ORDER

Pro se plaintiff Naseef Bryan, Jr. has asked this court to grant his application

for citizenship because the defendant U.S. Citizenship and Immigration Services

(“USCIS”) did not issue a decision on his naturalization application within the time

allowed by law. The court screened Bryan’s complaint under

(e)(2),

dismissed certain claims, and allowed two of Bryan’s claims for injunctive relief

relating to that delay to proceed in this action: his statutory delay claim, see

(b), and his Fifth Amendment unreasonable delay claim. See June 17, 2024

Order (doc. no. 23) (approving Feb. 27, 2024 Report and Recommendation (“R&R”)

(doc. no. 8)).

The following matters are currently before the court: USCIS’s motion for

remand (doc. no. 15), which concedes liability on the statutory delay claim; Bryan’s

objection to that remand motion (doc. no. 18); and Bryan’s two supplemental

pleadings, entitled “Motion to Dismiss” (doc. no. 20) and “28 U.S. Code § 1253 –

Direct Appeals from Decisions of Three-Judge Courts” (doc. no. 24).1 The

1 For docketing purposes, the court renamed Bryan’s pleading regarding

appeals from three-judge courts as Bryan’s “Motion for order on appeal from three- judge court and to amend complaint to add claim under 8 U.S.C. § 1503” (doc. no. 24). government’s remand motion states that if the citizenship application is remanded,

USCIS is prepared to grant or deny it within 85 days. Bryan’s motions (doc. nos. 20,

24) contend, among other things, that this court must promptly declare he is a

citizen and impose sanctions upon USCIS.

For reasons set forth below, the court grants USCIS’s remand motion (doc. no.

15), as the remand will promote the expeditious resolution of Bryan’s citizenship

application in a manner that is consistent with pertinent law and the interests of

judicial economy without causing unfair prejudice or undue delay. Bryan’s two

supplemental pleadings (doc. nos. 20, 24) are both denied, for reasons explained

more fully below.2

DISCUSSION

I. USCIS’s Motion for Remand

The Immigration and Naturalization Act authorizes USCIS to review and

determine whether to grant a person’s citizenship application. See

,

1447(b). USCIS is required to examine that application and issue its decision within

120 days.

§ 1447(b);

(a). If USCIS fails to issue a decision within

that time, the applicant may file an action in district court to compel a decision.

(b). The court may either issue a decision on the application or remand

the matter to USCIS with appropriate instructions.3

2 An interlocutory appeal is pending in this matter. This court retains jurisdiction to rule on the pending motions. See generally United States v. Mala,

(1st Cir. 1993).

3 The statutory cause of action for the delayed disposition of a citizenship

application is set forth in

(b) as follows:

2 Here, Bryan alleges that he filed his citizenship application in the

Manchester, New Hampshire USCIS field office and a fee waiver application in

January 2023. He alleges that a USCIS representative interviewed him in 2023 and

directed him to supplement his application with child support documentation, based

on his assertions about having a child. USCIS neither granted nor denied Bryan’s

citizenship application in the months that followed that interview.

Bryan filed this action in July 2023. This court screened Bryan’s complaint

under

(e)(2), dismissed some claims, and directed USCIS to file a

response to the statutory delay claim and the Fifth Amendment unreasonable delay

claim. In lieu of an answer, USCIS filed its motion for remand, conceding that the

agency had not yet completed its review of the citizenship application, and

acknowledging that this court has jurisdiction over the case under

(b).4 See doc. no. 15-1 at 2 (defendant’s memorandum).

(b) Request for hearing before district court. If there is a failure to make a determination under [

] 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. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the [USCIS] to determine the matter.

§ 1447(b). 4 It is an open question in the First Circuit as to whether the district court’s

jurisdiction over the citizenship application is exclusive, or whether USCIS retains concurrent jurisdiction to issue a decision while the federal case is pending. See Aronov v. Napolitano,

, 93 & n.14 (1st Cir. 2009) (en banc). Every federal appellate court that has squarely addressed the issue has decided that the court’s jurisdiction under § 1447(b) is exclusive. See Aljabri v. Holder,

, 821

3 Section 1447(b) allows the court “either [to] determine the matter or remand

the matter, with appropriate instructions, to the [USCIS] to determine the matter.”

(b). Section 1447(b) thus authorizes this court to remand the matter

to USCIS, without adjudicating the merits of Bryan’s citizenship application prior to

that remand. See Ge v. USCIS,

(4th Cir. 2021).

An order granting the remand motion is warranted here. The remand would

allow USCIS to use its institutional expertise to assemble a coherent administrative

record and render a decision on the application in the first instance. And this court

would likely conserve judicial resources by remanding the matter and allowing the

administrative process to conclude before undertaking any further review of

plaintiff’s eligibility for citizenship.

If the agency grants Bryan’s application within the remand period, no further

substantial judicial involvement may be needed. But even if de novo judicial review

should become necessary after the administrative process concludes (pursuant to

(c)),5 the remand of this matter will have provided USCIS with an

(7th Cir. 2014); see also Haroun v. U.S. Dep’t of Homeland Sec.,

(8th Cir. 2019); Bustamante v. Napolitano,

(2d Cir. 2009); Etape v. Chertoff,

, 383–87 (4th Cir. 2007); United States v. Hovsepian,

(9th Cir. 2004) (en banc); cf. Al-Maleki v. Holder,

, 1205 n.2 (10th Cir. 2009) (noting that “persuasive reasoning of the Ninth and Fourth Circuits casts serious doubt on the Government’s concurrent jurisdiction argument”). USCIS does not concede that this court’s jurisdiction is exclusive. This court declines to express any opinion on that issue as it is unnecessary to do so to rule on the remand motion.

5 Under

(c),

[a] person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under [8 U.S.C.

4 opportunity to articulate its reasons and create an administrative record. See

Khelifa v. Chertoff,

(E.D. Mich. 2006) (“any subsequent

judicial review . . . would be considerably aided by an agency analysis and

explanation as to why it acted as it did”). Courts in other cases have granted a

remand on the basis of such considerations. See, e.g.,

Bryan objects to the proposed remand, citing, among other things, the

hardships he has faced to date in getting a job, finding stable housing, and obtaining

financial aid, which he attributes to the delayed action on his citizenship application

and his lack of government identification. However, a remand would eliminate the

prospect of further delays associated with court proceedings—including a possible

evidentiary hearing if this court were to review the merits of the citizenship

application—and would more likely expedite rather than delay the resolution of the

citizenship application.

The 85-day time period requested by USCIS in this case is within the range of

time periods established in cases where the agency has already assembled much of

the information it needs to approve or deny the application. See, e.g., Hernandez v.

Swacina, No. 07-22926-CIV,

, at *1 & n.1,

, at *3 & n.1 (S.D. Fla. Jan. 29, 2008) (requiring decision within 90 days as

FBI had already completed the requisite background check (citing cases imposing

90-day time frame in such circumstances)); Khelifa,

(noting USCIS’s willingness to make decision within “90 to 120 days” if so ordered,

§ 1447(a)], may seek review of such denial before the United States district court for the district in which such person resides . . . . Such review shall be de novo . . . . 5 and remanding “for a prompt determination in accordance with the assurances

offered” by USCIS, where FBI background check was complete); cf. Ge,

(court imposed 45-day time period to issue decision on application that had been

pending for three years, where only missing piece of information was Defense

Department background check, which agency had “ample time” to complete);

Abdelgalel v. Holder, 398 Fed. App’x 472, 474 (11th Cir. 2010) (court imposed 90-day

time period for USCIS decision after two-year delay in processing plaintiff’s

application).

This court’s record includes copies of many documents which appear to be part

of USCIS’s record pertinent to Bryan’s citizenship application. While it is not yet

clear to this court that USCIS has all the documentation it requires concerning

Bryan’s assertions regarding having a child who is not his dependent, USCIS has

expressed its ability to complete its review of the citizenship application within 85

days. Absent evidence to the contrary, this court accepts the agency’s good faith

representations and grants the motion to remand (doc. no. 15), directing USCIS to

issue a decision on the application and to file a notice regarding its decision, all

within 85 days of the date of this Order.

This court is assured that, having been alerted to the potential impact of

further delays on Bryan, USCIS will complete its processing of the application as it

has represented. If the agency fails to issue its decision within 85 days, this court,

upon motion, will schedule a status conference and may choose to conduct a hearing

on the merits of Bryan’s application.

6 II. Bryan’s Motions

Bryan’s pleadings, entitled “Motion to Dismiss” (doc. no. 20) and “28 U.S. Code

§ 1253 – Direct appeals from decisions of three-judge courts” (doc. no. 24), are

somewhat difficult to follow. He appears to seek, among other things, a decision of a

three-judge court; a declaration that Bryan is already a U.S. citizen and/or the

amendment of his complaint to assert a claim under

;6 and the

imposition of sanctions upon USCIS under Fed. R. Civ. P. 11.

The record here presents no grounds for imposing sanctions on USCIS under

Rule 11 or any other authority. This case does not involve claims within the

jurisdiction of a three-judge court or grounds for appealing a decision of a three-

judge court. And Bryan (whose naturalization application remains pending) has not

pleaded any facts regarding a final agency action denying him a right or privilege, or

other facts which must be alleged to state a claim under § 1503. See Parham v.

Clinton, 374 Fed. App’x 503, 504 n.2 (5th Cir. 2010); Vilardell v. USCIS, No. 11 Civ.

5765 (CM),

, at *3,

, at *8 (S.D.N.Y.

Feb. 28, 2013) (“In order to sustain a claim for declaratory relief under 8 U.S.C.

6 The cited statute,

, provides, in pertinent part, as follows:

If any person who is within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, such person may institute an action [for a declaratory judgment], against the head of such department or independent agency for a judgment declaring him to be a national of the United States . . . . An action under this subsection may be instituted only within five years after the final administrative denial of such right or privilege . . . .

(a). 7 § 1503(a), a plaintiff must assert a right or privilege as a national against an

administrative agency and subsequently face a ‘final administrative denial’ of said

right or privilege.”). Accordingly, the court denies both of Bryan’s motions (doc. nos.

20, 24).

III. Remaining Issues

The two claims remaining in this case are the statutory delay claim under

(b) and a Fifth Amendment due process claim of unreasonable delay.

No later than fourteen days after it grants or denies Bryan’s application, USCIS

must either file a dispositive motion on those claims or notify this court why a

dispositive motion has not been filed within that time period.

CONCLUSION

For the foregoing reasons, the court directs as follows:

1. USCIS’s motion to remand (doc. no. 15) is granted. USCIS must grant

or deny Bryan’s naturalization application, and file a notice of that determination,

within 85 days of the date of this Order. If Bryan’s application is not granted or

denied by that date, this court, upon proper motion, will schedule a status conference

and may choose to exercise jurisdiction over the merits of the application.

2. No later than fourteen days after the date when USCIS grants or

denies Bryan’s application, USCIS must file either a dispositive motion regarding

the claims remaining in this case or a notice explaining why a dispositive motion has

not been filed within that time period.

8 3. The court denies Bryan’s two supplemental pleadings (doc. nos. 20 &

24).

SO ORDERED.

__________________________ Landya B. McCafferty United States District Judge July 2, 2024

cc: Naseef Bryan, Jr., pro se Anna Dronzek, Esq.

9