Almiawi v. Jaddou
2:23-cv-00919
| W.D. Wash. | Jul 17, 2023Background
- Petitioner Murad Khaled Atalla Almiawi filed under 8 U.S.C. § 1447(b) after USCIS failed to finally adjudicate his naturalization application more than 120 days post-interview.
- USCIS told the parties it is prepared to adjudicate the application but requires a remand from the district court to do so.
- Parties stipulated that the Court should dismiss the case without prejudice and remand to USCIS, directing the agency to decide the application within 7 days of remand.
- USCIS indicated, based on currently available information, it sees no basis to deny the application but noted the petitioner must maintain eligibility through the oath.
- The stipulation provides that if USCIS fails to issue a decision within 7 days, respondents will not oppose petitioner’s motion to vacate the remand and reassert jurisdiction under § 1447(b).
- Parties agreed neither would be awarded attorney’s fees or costs under the EAJA; the court (Judge Tana Lin) adopted the stipulation, dismissed without prejudice, and remanded to USCIS.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper remedy under §1447(b) | Court should adjudicate the application after the 120-day delay | USCIS requests remand so it may adjudicate the application | Court approved parties’ stipulation: dismissed without prejudice and remanded to USCIS |
| Timing of decision | Agency should be ordered to decide promptly (7 days) | Agency agreed to decide within 7 days upon remand | Court remanded with the 7-day decision directive per stipulation |
| EAJA attorney's fees | Petitioner asserted an EAJA claim for fees | Government opposed an EAJA award; parties stipulated no fees to be awarded | Court ordered dismissal without fees or costs per parties’ agreement |
| Reassertion of jurisdiction if agency fails | Petitioner should be able to return to court if USCIS fails to act | Respondents agreed not to oppose vacating remand and reassertion if agency fails | Stipulation preserved petitioner’s ability to seek vacatur and reassert jurisdiction; court remanded but did not foreclose return if USCIS fails to act |
Key Cases Cited
- United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (district courts may remand § 1447(b) cases to USCIS and provide appropriate instructions)