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Grey v. Cissna

United States District Court, D. South Carolina, Beaufort Division

September 16, 2019

FABIAN GREY, Plaintiff,
L. FRANK CISSNA, Director, United States Citizenship and Immigration Services, Defendant.



         This matter is before the court on the motion of L. Frank Cissna, Director of the United States Citizenship and Immigration Services (“USCIS” or “the government”) to remand plaintiff Fabian Grey's (“Grey”) application for naturalization to USCIS for adjudication, ECF No. 12. For the reasons set forth below, the court denies the motion to remand.

         I. BACKGROUND

         This matter arises out of Grey's application for naturalization. Grey is Jamaican citizen who first entered the United States on a work visa on November 30, 2005. On February 2, 2006, Grey married a United States citizen, Trinia Smalls (“Smalls”), and Smalls petitioned for a marriage-based green card for Grey. Based on this petition, Grey became a conditional lawful permanent resident on January 12, 2007.[1] About two years later, Grey and Small petitioned to have the condition on Grey's residency removed, and USCIS granted the petition, making Grey a permanent resident.

         Then on February 17, 2016, Grey filed a Form N-400 Application for Naturalization. USCIS subsequently conducted Grey's naturalization interview on September 7, 2017, at which time he certified under oath that all of the information on the application and the statements made by him during the interview were true and correct. The government alleges that during Grey's interview, Grey admitted that he had a biological child who was born on October 2, 2015, but that Grey had indicated on his naturalization application that he had no biological children. Grey allegedly stated at the interview that his wife was not the child's mother. Grey allegedly further stated that the child had resided with him since her birth, which, according to the government, contradicts Grey's naturalization application that stated that only Grey, Smalls, and Smalls's biological child lived at his address of record. After the interview, Grey's case was continued for additional review.

         285 days passed. Then on June 19, 2018, two immigration officers visited Grey's house in Bluffton, South Carolina to conduct a site visit regarding Grey's claim in his naturalization application that he and Smalls lived there together. The parties dispute exactly what occurred during this visit. According to Grey, the officers arrived at his home unannounced and approached him in his garage, asking whether they could come into his home and ask him questions. Grey invited them into his house, and upon entering, one of the officers allegedly started rifling through Grey's mail. In addition, one of the officers allegedly picked up Grey's cell phone, read the incoming messages without asking permission, and took a picture of Grey's cell phone screen with his own phone. Grey claims that the officers then walked into his bedroom, looked through a drawer that contained his wife's clothes, and began verbally abusing Grey, accusing him of committing marriage fraud. The officers then allegedly told Grey that they knew his wife lived in Varnville, South Carolina and that they knew Grey's wife had stayed at her mother's house in Varnville the night before. Grey claims that he told the investigators that his wife's ailing mother lives in Varnville, his wife takes care of her mother at least three days out of the week, and that his wife's car was at her mother's house because his wife driven her mother to the hospital in Charleston, South Carolina in her mother's car and left her car at her mother's house. Grey alleges that the officers refused to listen to Grey's answers, and that once Grey asked if he could call his immigration attorney, the officers quickly left.

         According to the government, the immigration officials conducted a routine site visit during which Grey gave conflicting information regarding the location of his wife. He first allegedly stated that she was at work but later claimed that she had been out of town for the previous two weeks visiting her mother who was hospitalized in Charleston. The government also contends that Grey later informed the officers that Smalls actually divided her time between Bluffton and Varnville. The officers claim to not have seen any indication that Smalls lived at Grey's home, as there was nothing belonging to her in the home. In addition, the government contends that Grey allowed them to see his cell phone and that the cell phone contained no texts or call between Grey and Smalls but instead contained romantic text messages between Grey and the mother of Grey's biological child. After this site visit, USCIS conducted additional research on Smalls's address of record. A review of several databases, including the South Carolina Department of Motor Vehicles, revealed that for the last ten years, Smalls has listed a residential address in Varnville, South Carolina.

         On June 26, 2018, Grey filed a Freedom of Information Act (“FOIA”) request with USCIS. Then on June 27, 2018, Grey filed suit asking the court to declare him eligible for naturalization and order USCIS to naturalize him pursuant to 8 U.S.C. § 1447(b) and seeking an order compelling USCIS to respond to his FOIA request pursuant to 5 U.S.C. § 552(a)(4)(B). On August 3, 2018, [2] USCIS issued a Notice of Intent to Deny (“NOID”) to Grey, indicating that it intends to deny Grey's naturalization application and providing Grey 30 days to respond with evidence that his application should not be denied. USCIS subsequently filed a motion to remand Grey's application for naturalization to USCIS for adjudication on September 7, 2018. ECF No. 12. On September 21, 2018, Grey filed a response, ECF No. 13, and on September 28, 2018, USCIS filed a reply, ECF No. 14. The court held a hearing on the motion on November 28, 2018. The motion is ripe for review.


         The government asks that the court remand this case to USCIS so that USCIS can issue a decision on Grey's pending naturalization application. This case consists of two causes of action-one that seeks judicial review of Grey's naturalization application and one that seeks an order compelling USCIS to respond to Grey's FOIA request. The court addresses whether remand is appropriate for each cause of action and ultimately declines to remand either.

         A. Judicial Review of Naturalization Application

         The government argues that this case should be remanded to USCIS so that the USCIS can issue a decision on Grey's naturalization application. Before considering the parties' arguments, it is useful to first review the naturalization process. An applicant begins the naturalization process by filing an “Application for Naturalization” with the Department of Homeland Security and USCIS. Ndumu v. U.S. Dep't of Homeland Sec., 2014 WL 5495680, at *1 (D. Md. Oct. 29, 2014) (citing 8 U.S.C. § 1445(a), (d)). Thereafter, USCIS must conduct a background investigation and an examination of the applicant. 8 U.S.C. § 1446(a)-(b). After USCIS completes the background investigation and examination, a USCIS official grants or denies the application. 8 U.S.C. § 1446(d); 8 C.F.R. §335.3. The official must make said decision within 120 days following the initial examination of the applicant. Id.[3] If USCIS fails to make said determination within 120 days of the interview, the applicant may file a lawsuit in United States district court seeking adjudication of his application. Id. § 1447(b). The court “may either determine the matter or remand the matter, with appropriate instructions, to [USCIS] to determine the matter.” Id. Therefore, “it is entirely within the discretion of the court to either deny the motion to remand and assert jurisdiction or grant the motion to remand and allow the naturalization petition to be adjudicated by USCIS.” Abusamhadneh v. Napolitano, 2010 WL 1734772, at *1 (E.D. Va. Apr. 26, 2010).

         It is undisputed that this action commenced more than 120 days after Grey was initially examined by USCIS on September 7, 2017. It is also undisputed that this court has exclusive jurisdiction over the application now that this suit has been filed, and that USCIS will not regain jurisdiction to adjudicate Grey's application unless the court remands the case to the agency. Etape v. Chertoff, 497 F.3d 379, 381 (4th Cir. 2007).

         USCIS argues that the court should remand this matter for three reasons: (1) “remand will allow USCIS to proceed with the NOID in order to determine whether Grey can establish he has been lawfully admitted for permanent residence, and has the ‘good moral character' required to naturalize”; (2) “remand will ensure that Grey receives an expeditious decision on his naturalization application without denying him the right to eventually seek de novo judicial review of that decision” under 8 U.S.C.§ 1421(c); and (3) remand will “preserve judicial resources” by “spar[ing] this Court the burden of reviewing Grey's naturalization application in the first instance.” ECF No. 12 at 4-6. In response, Grey contends that the court should not remand and instead adjudicate his application. Grey argues that USCIS had no good ...

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