The 120-Day Clock: Naturalization Under 8 U.S.C. § 1447(b)

Most of immigration delay litigation is an argument about reasonableness, conducted under a six-factor balancing test, in front of a judge who has been told that ordering the agency to move this file means someone else’s file moves back. A companion note takes up that fight.

Naturalization is different, and the difference is statutory. Section 1447(b) of Title 8 provides:

If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.¹

Read that second sentence carefully, because it is doing something unusual. It is not a deadline with a penalty. It is a transfer of decisional authority: on a stated condition, at the applicant’s election, the question of whether this person becomes a citizen moves from an immigration officer to an Article III judge, who may decide it outright.

Three questions follow, and the case law answers them with markedly different degrees of confidence. When does the clock start? What happens to the agency’s authority when the applicant files? And how much of the field does the provision actually cover — which, it turns out, is the question that matters most in practice.

IWhen the clock starts: what is an “examination”?

The 120 days run from “the date on which the examination is conducted.” Everything turns on that word.

The government’s position, in the cases that established the conflict, was that “examination” means the entire investigative process — including the FBI criminal background check — so that the clock cannot start until every component is complete. The leading statement of it is Danilov v. Aguirre, decided in the Eastern District of Virginia in 2005.² Judge Ellis reasoned that § 1446(b) shows “an examination is not a single event, but instead is essentially a process the agency follows to gather information concerning the applicant,” pointing to the statute’s references to subpoenas, sworn testimony, and the production of documents. Congress had added the FBI check to that process by appropriations rider beginning in fiscal year 1998, and the implementing regulation requires the check to be completed before the examination. It followed, the court held, that an applicant interviewed in January 2004 had not been “examined” until his background check was received in March 2005.

Danilov has a second holding that is less often noticed and considerably more severe. The plaintiff had pleaded the APA and mandamus in the alternative. The court rejected both: § 1447(b) is a specific grant of jurisdiction, and “general grants of jurisdiction may not be relied upon to expand a very specific statute that either grants or limits jurisdiction.” It added that in any event there had been no unreasonable delay, because the wait was “the result of the legal requirement that CIS await receipt of the FBI’s completed criminal background investigation.”

Put the two holdings together and the applicant has no remedy at all. Not § 1447(b), because the clock never started. Not the APA, because the specific statute displaces it. Not mandamus, because no clear duty was owed. The agency’s own unfinished business is the reason the courthouse is closed.

There is also an oddity in Danilov’s footnote 6 that deserves to be named. The court acknowledged that the agency appeared to have violated its own regulation by interviewing the applicant before the background check was complete — and then reasoned that “this single interview did not constitute the ‘initial examination’ contemplated by the regulation.” The agency’s departure from its own rule became the reason the applicant’s clock had not started. A rule that rewards non-compliance in this way is not obviously the rule Congress wrote.

The Fifth Circuit rejected the whole edifice in Walji v. Gonzales in 2007, and its reasoning is the most complete treatment available.³ Four strands:

Text. The statute keys the period to “the date on which the examination is conducted,” which “contemplates that the examination occurs on a particular, identifiable date.” A process does not occur on a date. To reach the government’s reading, “conducted” would have to mean “completed,” and the court declined to assume “that Congress was so sloppy in its lexicography.”

Structure. Section 1446 is entitled “Investigation of applicants; examination of applications,” and separates the two: subsection (a) governs the investigation, subsection (b) the examination. They may even be conducted by different personnel.

Regulations. The agency’s own rules treat the investigation as a precondition to the examination, not a part of it: 8 C.F.R. § 335.2(b) is captioned “Completion of criminal background checks before examination.” More tellingly, § 335.3(a) instructs that a decision “shall be made at the time of the initial examination or within 120-days after the date of the initial examination” — the agency telling itself, in its own regulation, when the period begins. And § 335.3(b) permits one rescheduled examination “within the 120-day period after the initial examination,” which makes no sense if the examination were a continuous process.

History. The 1989 committee report on the predecessor bill explained that “the applicant may petition the court after 90 days of the interview,” and expected the agency to “move expeditiously after full investigation of the facts to calendar cases for examination and decision.”

The Ninth and Fourth Circuits proceed on the same assumption. Hovsepian describes the provision as applying where the agency fails to decide “within 120 days of an applicant’s first interview.” Etape says the period “does not even begin to run until after the initial naturalization examination,” which is why, in that court’s view, the agency has already deployed its expertise before a court can act.

So the interview reading has clearly prevailed. But there is a reason not to treat Danilov as merely a historical curiosity, and it is a reason that has only recently become available.

That does not resurrect or bury anything by itself — Walji and the majority line did not need Chevron, having found the statute plain, and a court that reads the statute the same way today reaches the same result without deference. But any residual argument that the agency’s construction of “examination” is owed judicial deference has lost its foundation, and a brief that still cites Danilov without confronting that ought to be met with it.

IIWhat filing does: exclusive or concurrent?

The larger question is what happens the moment a proper petition is filed. If the district court’s jurisdiction is exclusive, the agency may not decide the application unless the court sends it back. If it is concurrent, the agency may decide — and, in the government’s version, moot the lawsuit by denying.

The stakes are entirely practical. Under concurrency, a § 1447(b) petition is an invitation to the agency to issue the denial it has been sitting on, after which the applicant must request a hearing before an immigration officer under § 1447(a), exhaust, and then start again in district court under § 1421(c). The delay remedy becomes a way of accelerating one’s own defeat.

Two circuits have held the jurisdiction exclusive.

The Ninth Circuit, en banc, in United States v. Hovsepian.⁵ The court began with the text: the statute gives the district court two options, to “determine the matter” or to “remand the matter, with appropriate instructions, to the Service to determine the matter.” The second option is unintelligible on the government’s reading — “Why would Congress need to provide for a ‘remand’ to the INS ‘to determine the matter’ if the INS retained jurisdiction ‘to determine the matter’ all along?” The court then turned to Brock v. Pierce County, under which an agency loses authority only if the statute both fixes a time limit and specifies a consequence for missing it. Section 1447(b) does both: the consequence is that the district court acquires jurisdiction. “Under Brock, therefore, § 1447(b) is an effective jurisdiction-stripping statute.”

It reinforced that reading with § 1421(c), which gives the district court de novo review of denials. “Under § 1421(c), the district court has the last word with respect to denied applications … Under § 1447(b), the court has the last word by exercising exclusive jurisdiction over those naturalization applications on which the INS has failed to act in a timely fashion.” Concurrency would produce “a race to decide,” in which “the first to decide would prevail,” and participants “would likely question the legitimacy of a process in which they may gain or lose something so important as citizenship simply because one entity rushes to issue a decision before the other.”

The Fourth Circuit in Etape v. Chertoff.⁶ Same conclusion, sharper on two points. On the government’s theory, “an administrative agency [could] divest a federal district court of its congressionally authorized jurisdiction.” And the word “remand” presupposes hierarchy: “Congress would not have granted district courts the power of ‘remand’ — the power to ‘send back’ — if a naturalization application remained with the CIS after the filing of a § 1447(b) petition. For in that situation, there would be no need for the district court to send anything back — because the CIS would have had the matter all along.”

The reader is owed the other side, which Judge Hamilton put in dissent. Congress in 1990 transferred “[t]he sole authority to naturalize persons as citizens of the United States” to the Attorney General, 8 U.S.C. § 1421(a), precisely because the old court-centred system had generated unmanageable backlogs; it charged the agency with the investigation and the examination and with granting or denying “with reasons therefor.” On that view, reading a jurisdictional strip into § 1447(b) inverts the statute’s central move and hands work back to courts that Congress had deliberately taken away from them. It is a serious argument, and it is why the government kept making it.

IIIThe Second Circuit has not decided this

Here is the point that practitioners in this circuit most often get wrong, including in briefs.

The Second Circuit’s only substantial engagement with § 1447(b) is Ajlani v. Chertoff, decided in 2008 on appeal from the Eastern District of New York.⁷ It is regularly cited as though it settled the field. It did not settle this part of it.

The court identified two questions that § 1447(b) leaves unanswered — whether reopening a naturalization proceeding under 8 C.F.R. § 335.5 affords a fresh 120-day period, and whether pending removal proceedings affect § 1447(b) jurisdiction — and then expressly declined to reach them: “Because defendants raise no challenge to the exercise of § 1447(b) jurisdiction in this case, we need not answer these questions on this appeal.” It assumed jurisdiction hypothetically, citing its own authority for doing so, and noted that the concerns it had identified “implicate statutory rather than constitutional jurisdiction.” Later in the opinion it repeated the reservation: “we refrain here from deciding the scope of ‘failure[s]’ that would establish jurisdiction under § 1447(b).”

So in the Second Circuit, the proposition that a § 1447(b) filing vests exclusive jurisdiction is a district-court proposition. It is a well-supported one — Zaranska v. U.S. Department of Homeland Security, in the Eastern District of New York, so held in 2005, and the weight of district authority nationally has followed Hovsepian.⁸ But there is contrary district authority, including from New Jersey, and an older unpublished Fourth Circuit disposition went the other way before Etape. Counsel who tells a court in this circuit that the question is controlled is overstating, and can expect to be corrected by an Assistant United States Attorney who has read Ajlani to the end.

IVSection 1429 and the removal trap

What Ajlani did decide is important on its own terms, and it is the sharpest edge in this area.

Title 8 U.S.C. § 1429 provides that “no application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest.” The provision descends from the Internal Security Act of 1950, enacted to end what the Supreme Court called the race “between the alien to gain citizenship and the Attorney General to deport him.”

The Second Circuit held that an applicant “cannot claim a form of relief pursuant to § 1447(b) that is forbidden by § 1429,” joining the Sixth, Ninth, and Fifth Circuits. The reasoning is textual and, once stated, hard to resist: § 1447(b) is triggered by a “failure to make a determination,” and “an action cannot be ‘expected’ when it is proscribed by law.” Nor can the district court naturalize the applicant itself, because its authority “cannot be greater than that of the Attorney General.”

The practical consequence is uncomfortable and should be discussed with the client before filing. Removal proceedings commence when the charging document is filed with the immigration court. If they are commenced after the § 1447(b) petition — as they were in Ajlani and in the Sixth Circuit case it followed — the claim for naturalization relief fails anyway. A petition that draws the agency’s attention to a file with any exposure in it can produce the notice to appear that defeats the petition.

The court saw the objection and did not resolve it. It acknowledged “the concern, voiced by district courts outside this circuit, that such a construction of § 1447(b) might allow the executive to initiate removal proceedings to obstruct judicial consideration of naturalization applications,” observed that no such abuse was alleged there, and said the possibility is “appropriately addressed on a case-by-case basis.” That is an open invitation in a case where the sequence and the record will bear it. It is also, plainly, a heavy lift.

One consolation: dismissal in these circumstances is without prejudice in substance. Ajlani noted that the district court had not foreclosed refiling if the removal proceedings resolved favourably.

VThe door is narrower than it looks

Now the practical heart of it, and the reason this note ends where its companion begins.

Section 1447(b) is triggered by the examination. Nothing in the statute requires the agency to conduct the examination within any period at all. The Fifth Circuit said this out loud in Walji, and it is the single most consequential sentence in the case law:

[B]ecause there is currently no required period of time for CIS to conduct the initial interview, CIS could avoid the jurisdiction of the courts by following its own order of events. As a practical matter, this may yet result in long waiting times for applicants.

The court was not speculating. Its footnote records that, “in an apparent reaction to the multitude of cases rejecting the Danilov reasoning,” the agency had decided it would no longer schedule naturalization interviews before completing the background investigation. And it quoted an observation from the Eastern District of Michigan that captures the whole irony: if the agency followed the statutes and regulations properly, “no time would be saved for the applicant; the examination would just occur over 600 days later.”

The result is that the hard clock Congress wrote applies only to the portion of the wait that occurs after the interview — and the agency controls when the interview happens. For the applicant whose N-400 has been pending for three years without an interview being scheduled, § 1447(b) is not merely unhelpful; it does not apply. The remedy in that posture is an unreasonable-delay claim under the APA and the mandamus statute, with all the difficulties the companion note describes.

With one significant advantage worth carrying across. The jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B)(ii) reaches only decisions and actions for which discretion is specified in the statute — which is why adjustment-of-status delay claims under § 1255(a), with its “in his discretion,” have foundered on jurisdictional grounds in the Fifth and Eighth Circuits. The naturalization provisions contain no such language. The bar that has been sinking I-485 delay cases does not straightforwardly travel to the N-400 applicant waiting to be scheduled.

VIDetermine, or remand

A short word on remedy, since the statute offers two and counsel should choose deliberately.

Most § 1447(b) petitions end in a remand with instructions, usually a direction to adjudicate within a fixed period. That is the modest option, and courts take it readily. The Fourth Circuit noted that where the agency “has good reasons for failing to act, certainly a district court has the option to remand the matter to give the agency additional time” — an observation cutting both ways, since it is also the answer to an applicant who wants the court to decide.

The other option is real, though. Hovsepian held that a district court proceeding under § 1447(b) conducts a full de novo hearing rather than reviewing the record the agency assembled, reasoning that the court’s naturalization decisions under § 1447(b) and § 1421(c) are both final and its powers of investigation should be the same under each. “It makes little sense,” the court wrote, “to require the district court to undertake a de novo inquiry after the INS has made a full investigation and arrived at a reasoned decision, but to bar a de novo hearing when the INS has not issued a decision and likely has not concluded its investigation.”

Where the file is clean and the delay is the only problem, ask for remand with a date. Where the agency’s silence is a concealed denial on a contestable ground, the statute permits asking the court to decide — and that request should be made explicitly, because a court will not otherwise assume it was invited to naturalize anybody.

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The provision is better than what applicants have elsewhere in the immigration system, and it is worth saying so. Congress fixed a period, attached a consequence, and gave the applicant the choice of forum. Two circuits have read that consequence as taking the file away from the agency altogether.

But its reach is set by an event the agency schedules, and its remedy is defeated by a proceeding the agency can commence. Both limits are structural, and neither has been fixed by litigation in the thirty-six years since the provision was enacted. §