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Ge v. United States Citizenship and Immigration Services

United States District Court, E.D. Virginia, Richmond Division

June 28, 2019

JUNFEI GE, Plaintiff,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

          OPINION

          JOHN A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE.

         Junfei Ge, a Chinese citizen, applied for naturalization in the United States through the Military Accessions Vital to the National Interest recruitment program ("MAVNI") on May 25, 2016. More than three years later, the United States Citizenship and Immigration Services ("USCIS") has not rendered a decision on Ge's application. Ge asks the Court to exercise its authority under 8 U.S.C. § 1447(b) to decide his application. In the alternative, Ge requests that the Court compel USCIS to render a decision based on either the agency's unreasonable delay under the Administrative Procedure Act ("APA"), or its failure to fulfill a duty owed to the plaintiff under the Mandamus Act.

         The defendants-USCIS; L. Francis Cissna, the Director of USCIS; and Frank Reffel, the Norfolk Field Office Director of USCIS-filed a motion to remand Ge's § 1447(b) claim to USCIS to adjudicate his naturalization application once the Department of Defense ("DOD") completes Ge's background check. They also filed a motion to dismiss Ge's APA and Mandamus Act claims for lack of jurisdiction.

         Because courts remand when a statute primarily places a matter in agency hands, the Court will exercise its authority under § 1447(b) to remand the case to USCIS. Ge's application, however, has been pending for over three years, so the Court will instruct USCIS to render a decision within forty-five days. If the agency does not adjudicate his application in that time frame, Ge will have fifteen days to inform the Court so that it can exercise its authority to decide his application. Because the Court decides the case under § 1447(b), the Court will not reach Ge's other two claims.

         I. BACKGROUND

         Ge is a twenty-eight-year-old citizen of China stationed at Fort Lee, Virginia, where he has been on active duty as a soldier in the U.S. Army since 2016. Ge joined the Army to participate in MAVNI, which aims to recruit individuals with valuable skills to serve in the U.S. military in return for expedited processing of their U.S. naturalization applications.

         Ge originally entered the United States on December 28, 2011, on an F-l student visa, which requires that students plan to return to their home countries upon the visa's expiration. After Ge learned about the MAVNI program, he enlisted in the U.S. Army in November, 2015. Naturalization through the MAVNI program requires the applicant to intend to remain in the United States, so when Ge joined the program, he gave up his eligibility to hold an F-l visa.

         Ge reported for active military duty on May 17, 2016. Shortly thereafter, on May 25, 2016, Ge submitted the required paperwork for naturalization. He first interviewed for naturalization and passed all the required citizenship tests on July 13, 2016, but USCIS failed to decide his application within 120 days.[1] Presumably because USCIS had not made a decision, Ge interviewed a second time in May, 2017. Following that interview, Ge received notice that USCIS had approved his application and that his naturalization oath ceremony was scheduled for July 25, 2017. On July 7, 2017, however, Ge received an e-mail stating that his naturalization ceremony was cancelled "due to unforeseen circumstances." (Dk. No. 1, at 45.) USCIS did not contact Ge to reschedule his ceremony. By September 6, 2017, 120 days after Ge's second interview, USCIS had not adjudicated Ge's application or provided him with any explanation of what "unforeseen circumstances" had disrupted his naturalization process. (Id.)

         Ge filed this complaint on December 27, 2018. The defendants moved to dismiss, citing agency guidance that USCIS issued July 7, 2017. The new guidance instructed employees to place a hold on all MAVNI naturalization approvals pending the completion of "enhanced" background investigations conducted by the DOD. The guidance further provided that any applicants that USCIS had already approved should not attend an oath ceremony until the DOD finished their enhanced background check. The FBI has completed Ge's standard background check as required by USCIS, 8 C.F.R. § 335.2(b), but the DOD has not completed Ge's enhanced background check, accounting for the delay in his naturalization application.

         Ge cannot leave the military base because he lacks a lawful basis for residence in the United States. He does not want to risk deportation to China, where officials would consider him a traitor for his participation in the U.S. military. Additionally, Ge's wife has an F-l visa that will soon expire and, without citizenship, Ge cannot petition for his wife's citizenship. Ge also says that his lack of citizenship precludes him from advancing in his military career.

         Ge asserts three claims for relief. First, pursuant to § 1447(b), he asks the Court to approve his naturalization application or remand it to USCIS with instructions to adjudicate his application and schedule him for an oath ceremony within twenty-one days. Second, Ge asserts that the defendants have violated the APA by failing to conclude the matter presented to them "within a reasonable time," and asks the Court to compel USCIS to act. See 5 U.S.C. §§ 555, 706(1). Third, Ge asks the Court to issue a writ of mandamus compelling USCIS to "follow their own statutes, regulations, and policies with respect to Plaintiffs naturalization application, and to promptly administer Plaintiffs Oath Ceremony." (Dk. No. 1, at 11.)

         The defendants moved to dismiss Ge's APA and Mandamus Act claims for lack of jurisdiction and to remand Ge's § 1447(b) claim to USCIS to adjudicate his naturalization application after the DOD completes his enhanced background check.

         II. DISCUSSION

         A. Claim Pursuant to 8 ...


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