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Perry v. Gonzales

February 1, 2007


The opinion of the court was delivered by: Sheridan, U.S.D.J.



This matter presents an issue yet to be decided by the Third Circuit. Plaintiff, Haim Perry, who filed a Complaint in the District Court following the United States Citizenship and Immigration Services' ("CIS") failure to timely process his application for naturalization, was granted naturalization by CIS while the matter was pending before this Court. The Complaint was filed on January 23, 2006. The issue before the Court is whether CIS had jurisdiction to make a determination on the application once the plaintiff filed his Complaint in the District Court pursuant to 8 U.S.C. §1447(b). Although no motion is pending before the Court, in light of federal courts' continuing obligation to sua sponte raise the issue of subject-matter jurisdiction, this Court will address the issue. Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 420 (3d Cir. 2003).


Plaintiff filed an N-400 Application for Naturalization with CIS at the Vermont Service Center Office on May 17, 2002. On at least two occasions, plaintiff submitted to fingerprinting for criminal and security clearances. On December 15, 2002, and again on January 26, 2006, CIS requested that the Federal Bureau of Investigation (FBI) review its records and report any relevant information about the plaintiff. On March 27, 2003, plaintiff was interviewed by a designated District Adjudication Officer in Newark, New Jersey. Plaintiff has maintained that this interview rises to the level of an "examination" in accordance with the Immigration and Nationality Act (INA), Section 335 (8 U.S.C. §1446), which triggers the 120-day statutory period for CIS to issue a determination on the naturalization application. On May 1, 2003, plaintiff was given notice that he had passed the U.S. history and government exam. Although the FBI had provided two preliminary reports regarding plaintiff's background check, security clearance was still pending and, thus, no decision could be rendered.

On January 26, 2006, nearly 35 months since plaintiff's interview and without a final decision from CIS, plaintiff filed the instant Petition for Hearing on Naturalization and Complaint for Mandamus, requesting that the Court grant naturalization or, in the alternative, direct CIS to render an immediate decision on the application. On May 9, 2006, the U.S. Attorney's Office filed a motion to dismiss or remand, arguing that the March 27, 2003 interview did not constitute an "examination" under 8 U.S.C. §1446 and, therefore, the 120-day period did not begin to run. The motion was opposed by plaintiff.

While the motion was pending before the Magistrate Judge, on September 18, 2006, CIS issued a decision, granting plaintiff naturalization. Without knowledge of CIS's adjudication of the application, on September 25, 2006, the Magistrate issued a Report and Recommendation, recommending the matter be remanded to CIS with instructions to render an immediate decision upon receipt of the FBI's background check. On that same date, the U.S. Attorney, pursuant to Arizonans for English v. Arizona, 520 U.S. 43, 68 n. 23 (1997), advised this Court "that the case is potentially moot, because this Court and United States Citizenship and Immigration Services may have concurrent jurisdiction."

Neither a stipulation of dismissal, motion to dismiss, or magistrate appeal was filed by the parties. Rather, counsel agreed between themselves that the time for which the parties could object to the Report and Recommendation was effectively tolled until the Court advises counsel how it wishes to proceed.


Federal courts are courts of limited, not general jurisdiction. See Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 383, 4 S.Ct. 510, 28 L.Ed. 462 (1884). These courts are empowered by Article III of the Constitution and the statutes enacted by Congress pursuant thereto. "Every grant of federal jurisdiction must fall within one of the nine categories of cases and controversies enumerated in Article III." In re TMI Litigation Cases Consol. II, 940 F.2d 832, 861-62 (3d Cir.1991) (Scirica, J., concurring) (citing Hodgson v. Bowerbank, 5 Cranch (9 U.S.) 303, 3 L.Ed. 108 (1809)). Therefore, "before a federal court can consider the merits of a legal claim, the person seeking to invoke the jurisdiction of the court must establish the requisite standing to sue." Whitmore v. Arkansas, 495 U.S. 149, 154, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). The doctrine of standing "identif[ies] those disputes which are appropriately resolved through the judicial process." Id. at 155. The existence of a case or controversy is a necessary element of every cause of action under Article III. DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). Under Article III, a district court "lacks subject matter jurisdiction over a dispute that is moot." Vestcom Int'l, Inc. v. Chopra, 114 F.Supp.2d 292, 296 (D.N.J. 2000). Mootness is a jurisdictional issue that "a federal district court must resolve before it assumes jurisdiction." North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). Therefore, the main question in determining mootness "is whether a change in circumstances since the beginning of the litigation precludes any occasion for meaningful relief." Old Bridge Owners Coop. Corp. v. Township of Old Bridge, 246 F.3d 310, 314 (3d Cir. 2001). Moreover, lack of subject matter jurisdiction may be raised by the Court sua sponte at any time. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986); Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Van Holt v. Liberty Mutual Fire Ins. Co., 163 F.3d 161, 166 (3d Cir. 1998). In this case, if the Court finds that CIS had no authority to act once the matter was filed in district court, then the CIS decision approving the application would be void and the matter, as it stands before the Court, would not be moot.


The few circuit and district courts that have addressed the issue of whether 8 U.S.C. §1447(b) confers exclusive or concurrent jurisdiction on the district court once a plaintiff files a complaint are seemingly split. A case out of the Ninth Circuit, United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (Hovsepian II), held that district courts are granted exclusive jurisdiction in such cases.*fn1 The only other circuit court to decide the issue was the Fourth Circuit, in an unpublished opinion, which held to the contrary. Kia v. U.S. Immigration & Naturalization Service, 175 F.3d 1014 (4th Cir. 1999). Etape v. Chertoff, 446 F.Supp.2d 408 (D.Md. 2006), a recent opinion out of the District of Maryland, analyzed Hovsepian II, criticizing its reasoning and pointing out its flaws.*fn2 In this district, there is at least one case where the Court accepted the Fourth Circuit's construction. However, that Court did not analyze the jurisdictional issue.

In Becker v. Chertoff, 2006 WL 2128132 (D.N.J.)(Brown), the Court was confronted with an identical fact pattern as presented here. Following the expiration of the 120-day period, the applicant filed a complaint in the District Court on April 6, 2006. On June 9, 2006, CIS granted Becker's petition and naturalized Becker as a United States citizen. A motion to dismiss was filed and, without discussion on the issue of jurisdiction, the Court found the matter moot. Thus, although the Court chose not to expressly endorse concurrent jurisdiction, by dismissing the matter as moot and validating CIS's decision, the opinion implicitly supports the notion that CIS retains concurrent jurisdiction.

In order to determine whether the district court's jurisdiction is exclusive, one must analyze the statute and the congressional policy ...

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