The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh
This matter comes before the Court upon motion by Alberto Gonzales, Michael Chertoff, Emilio T. Gonzales, and Andrea Quarantillo ("Defendants") to dismiss the Complaint of Se Hyon Pak ("Plaintiff") pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Alternatively, Defendants ask the Court to remand the matter back to the Department of Homeland Security's Bureau of Citizenship and Immigration Services ("U.S.C.I.S"). No oral argument was heard pursuant to Rule 78 of the Federal Rules of Civil Procedure. After carefully considering the submissions of the parties, and based upon the following, the Court denies Defendants' motion to dismiss and grants Defendants' motion to remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, a citizen of South Korea and a lawful permanent resident of the United States, filed a N-400 Application for Citizenship on January 26, 2004, with the U.S.C.I.S. (Pet. ¶ IV). Shortly after, as part of the required background check, U.S.C.I.S. initiated the Federal Bureau of Investigation ("F.B.I.") background check. (Def.'s Br. Summ. J. 4). On July 5, 2004, Plaintiff was interviewed by a U.S.C.I.S. officer who determined Plaintiff had passed the tests for English language as well as American history and government. (Id.).
During the examination, the officer advised Plaintiff that U.S.C.I.S. was awaiting the name checks and/or background check from the F.B.I. and other law enforcement agencies. (Id.; Pet. ¶ VIII). On February 4, 2005, July 6, 2005, and August 29, 2005, Plaintiff requested the status of his case with the U.S.C.I.S. (Pet. ¶¶ X-XII). Each time he was informed that the U.S.C.I.S. was still awaiting on the F.B.I.'s completion of his background check. (Id.).
On October 12, 2006, Plaintiff, through counsel, contacted Congressman Steve Rothman to request his assistance. (Id. at ¶ XIIII [sic]). Congressman Rothman's office contacted counsel on November 6, 2006, advising that the background check was still pending. (Id.).
After waiting for a decision from the U.S.C.I.S. for over three years, Plaintiff filed this Petition for Hearing on Naturalization on Application under 8 U.S.C. § 1447(b) on January 18, 2007. (Id.). Plaintiff requests that this Court either adjudicate his naturalization application or, in the alternative, remand to the U.S.C.I.S. for immediate adjudication. (Id.).
On June 13, 2007, Defendants filed a motion to dismiss Plaintiff's petition pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Alternatively, Defendants seek to remand this matter to the U.S.C.I.S. pursuant to 8 U.S.C. ¶ 1447(b).
II. BACKGROUND TO THE NATURALIZATION PROCESS
In 1997, Congress passed legislation which required the completion of a criminal background investigation of all applicants before naturalization could be conferred:
During fiscal year 1998 and each fiscal year thereafter, none of the funds appropriated or otherwise made available to the Immigration and Naturalization Service shall be used to complete adjudication of an application for naturalization unless the Immigration and Naturalization service has received confirmation from the Federal Bureau of Investigation that a full criminal background check has been completed, except for those exempted by regulation as of January 1, 1997.
Dep'ts of Comm, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1998, Pub. L. No. 105-119, 111 Stat. 2448. In response, U.S.C.I.S. adopted regulation 8 C.F.R.§ 335.2(b) which in pertinent part states:
The Service will notify applicants for naturalization to appear before a Service officer for initial examination on the naturalization application only after the Service has received a definitive response from the Federal Bureau of Investigation that a full criminal background check of an applicant has been completed.
Thus, the U.S.C.I.S., by its own regulations, is not to begin its examination process until it has received confirmation from the F.B.I. (1) that the applicant does not have an administrative or criminal record, (2) that the applicant has an administrative or a criminal record, or (3) that two properly prepared fingerprint cards have been determined unclassifiable for the purpose ...