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Al Hatem v. USCIS

United States District Court, S.D. Texas, Houston Division

March 29, 2018

MAHMOOD SHAKIR NASSRULLA AL HATEM, Plaintiff,
v.
USCIS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Kenneth M. Hoyt, United States District Judge.

         I. INTRODUCTION

         Before the Court is the defendants', United States Citizenship and Immigration Services (“USCIS”) and Department of Homeland Security (“DHS”) (collectively, the “defendants”), motion to dismiss the plaintiff's complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 9). The plaintiff, Mahmood Shakir Nassrulla Al Hatem (the “plaintiff”), has failed to file a response and the time for doing so has long expired. Pursuant to S.D. Tex. LR 7.4, the plaintiff's “[f]ailure to respond will be taken as a representation of no opposition.” S.D. Tex. LR 7.4. After having carefully considered the motion, the pleadings and the applicable law, the Court determines that the defendants' motion to dismiss should be GRANTED. The Court hereby enters the factual findings and conclusions of law set forth below.[1]

         II. FACTUAL BACKGROUND

         The plaintiff commenced the instant civil action, pursuant to the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1427(a), and 8 U.S.C. § 1421(c), seeking to challenge the denial of his naturalization application by USCIS. The plaintiff, a foreign national and citizen of Iraq, was accorded lawful permanent resident (“LPR”) status on January 15, 2010. On February 17, 2015, he filed an Application for Naturalization, INS Form N-400, with USCIS. On October 28, 2015, USCIS issued a Form N-14, Request for Evidence, asking the plaintiff to submit evidence, by November 28, 2015, that he had not abandoned his lawful permanent residence in the United States in the last five years. According to USCIS's records at the time, the plaintiff neither responded nor requested additional time to do so. As such, the plaintiff's application for naturalization was denied on January 7, 2016, for lack of good moral character. (See Dkt. No. 1).

         Shortly thereafter, the plaintiff administratively appealed USCIS's denial of his naturalization application by filing a Form N-336, Request for Hearing, pursuant to 8 U.S.C. § 1447(a). On April 26, 2016, the plaintiff appeared for a hearing to review USCIS's decision. At the hearing, USCIS confirmed receipt of the plaintiff's response to its Form N-14 on November 4, 2015, and thus, vacated its original denial issued on January 7, 2016.

         On May 6, 2016, however, following a review of the evidence submitted by the plaintiff in support of his naturalization application, coupled with testimony provided by him during his naturalization interview and subsequent administrative hearing, USCIS issued a second decision denying the plaintiff's Application for Naturalization, Form N-400, due to his failure to meet the physical presence requirement-a prerequisite necessitating that an applicant establish that he has been physically present in the United States for at least half of the 5-year period immediately preceding the date of his naturalization application, or for 913 days. (See Dkt. No. 1.) The plaintiff was found to have been physically present in the United States only 594 days. Id.

         On November 3, 2016, the plaintiff filed the instant action seeking a de novo review of his naturalization application and further requesting that this Court grant him naturalization.[2]

         The defendants now move to dismiss the plaintiff's complaint for failure to state a claim. The plaintiff has failed to file a response to the defendants' motion to dismiss and the time for doing so has long elapsed.

         III. CONTENTIONS OF THE PARTIES

         A. The Plaintiff's Contentions

         The plaintiff contends that the defendants violated the INA by denying his naturalization application. He argues that he has met all of the statutory prerequisites for naturalization, namely, that he has been physically present in the United States for more than five years, has only left the country to work as a government contractor for the U.S. military, has maintained LPR status, and has remained continuously present in the United States at least half of the five year-period immediately preceding the date of his application. As such, the plaintiff avers that he is entitled to a de novo review of his naturalization application.

         B. The Defendants' Contentions

         The defendants maintain that the plaintiff has not satisfied the relevant five-year residency prerequisite required for naturalization of lawful permanent residents. More specifically, the defendants argue that according to USCIS records, the plaintiff was only physically present in the United States for 594 days immediately preceding his naturalization application date rather than the 913 days required by statute. The defendants also contend that the plaintiff has not pointed to any statutory authority for the proposition that his time working abroad as a government contractor should count toward satisfying the statutory presence prerequisite. Accordingly, ...


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