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Practice Note
 
Fifth Circuit Reversed Position. Naturalization Applicants Can Sue USCIS 120 Days After Interview

On September 14, 2007, the Fifth Circuit of the US Court of Appeals reversed its position in naturalization applicants¡¦ litigation against the Department of Justice and USCIS.  In this rare turnabout, the Fifth Circuit changed its own position established less than three month ago, and now concludes that the US District Courts have jurisdiction over naturalization applicants that are pending for more than 120 days after the date on which USCIS conducts the ¡§examination¡¨ of the applicant.  The Court concluded that the statutory language, the regulations, and the legislative history all indicate that ¡§examination¡¨ shall mean the naturalization interview and the 120 days begin to run from the date of the interview.

 

Previously on June 19, 2007, the Fifth Circuit opined in the case of Walji v. Gonzales and held that the 120-day period does not begin to run until after the FBI check is complete.  In a practical sense, Walji very much limits, if not deprives, the chance of naturalization applicants within the jurisdiction of Fifth Circuit to raise lawsuit against the government to speed up the processing of their applications.  Several lawsuits Lin & Valdez was preparing at that time was also withheld due to Walji v. Gonzales.  Now the door is opened again, we will file several lawsuits in the near future.

 

For our readers¡¦ reference, the US Court of Appeals for the Fifth Circuit has appellate jurisdiction over the Federal District Courts in Texas, Louisiana, and Mississippi. 

 


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