Case 3:13-cv-01670-VLB Document 1 Filed 11/12/13 Page 1 of 18

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

ARNALDO GIAMMARCO,
Plaintiff,
v.
RAND BEERS, Acting Secretary, Department of Homeland Security; ALEJANDRO MAYORKAS, Director, U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services; and JAMES COMEY, Director, Federal Bureau of Investigation,

November 12, 2013

Defendants.

Plaintiff, through counsel, alleges the following on information and belief: COMPLAINT
Arnold Giammarco is a U.S. Army veteran who resided lawfully in Connecticut with h is f amily for half a cen tury. In 1982, he a pplied f or na turalization. While h is application was pending, immigration agents arrested and deported him to Italy, based on minor, non-violent convictions from years before. It has been nearly one year since Mr. Giammarco’s removal from his family and his expulsion from the country he honorably served. In t his C ourt, h e s eeks a n or der c ompelling U .S. C itizenship a nd Immigration Services (“CIS”) to adjudicate his application for naturalization.
Mr. G iammarco co mes f rom a milita ry f amily. H is grandfather traveled fro m Italy to Ellis Island in 1913, served honorably in the U.S. Army during the First World War, and became a U.S. citizen. Mr. Giammarco’s parents were stranded in Italy during
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the Second World War but reunited with the rest of their family in the United States in 1960, bringing with them their four-year-old son, Plaintiff Arnold Giammarco.
Mr. G iammarco grew up i n H artford, C onnecticut a nd f ollowed i n hi s grandfather’s f ootsteps. As a young m an, h e j oined the U .S A rmy and t hen t he Connecticut National Guard, receiving honorable discharges both times. In 1982, w hile serving in the National Guard, he applied for American citizenship with the help of his commanding officers.
At the time, Immigration and Naturalization Service (“INS”) was responsible for processing Mr. G iammarco’s naturalization application. Mr. G iammarco responded t o INS’s t wo requests f or further i nformation and presented h imself to begin t he INS interview process. INS records show that the agency continued to process his application until at least 1988, but failed to take any subsequent action. Neither INS nor its successor CIS ever notified Mr. Giammarco whether it had granted or denied his application.
The a gency’s prolonged failure to decide Mr. G iammarco’s naturalization application has now led to the separation of a man from his elderly parents, his wife, and his four-year-old daughter. Immediate adjudication will remedy the unreasonable delay that has torn a young family apart and prevented a v eteran from taking the same path to citizenship as his American grandfather.
JURISDICTION AND VENUE 1. This Court ha s s ubject m atter j urisdiction unde r 28 U .S.C. § § 1331, 1361. 2. Venue l ies i n t his di strict unde r 28 U .S.C. § 1391( e)(1), a s a substantial pa rt of t he events or om issions g iving r ise t o t he c laim oc curred i n the
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district. Plaintiff resided in Connecticut prior to his deportation, and no real property is involved.
PARTIES 3. Plaintiff Arnaldo “Arnold” Giammarco is a U.S. Army veteran who submitted his naturalization application to INS in 1982. 4. Defendant R and Beers is t he A cting S ecretary o f t he D epartment o f Homeland S ecurity (“DHS”), w hich c urrently has responsibility f or pr ocessing naturalization applications. He is sued in his official capacity. 5. Defendant A lejandro M ayorkas i s t he D irector of the U nited S tates Citizenship a nd Immigration S ervices ( “CIS”), th e D HS u nit w ith responsibility for processing naturalization applications. He is sued in his official capacity. 6. Defendant J ames C omey is t he D irector of the F ederal Bureau of Investigation ( “FBI”), which is responsible f or performing investigations in connection with naturalization applications. He is sued in his official capacity.

STATEMENT OF FACTS

Childhood in America: 1960-1975

7.

On J uly 4 , 1960, Arnold G iammarco’s f ather brought hi s w ife a nd

children to the United States from Italy as lawful permanent residents. The Giammarcos

immigrated to reunite with th eir family in A merica, i ncluding Plaintiff’s grandparents,

aunts, uncles, and cousins.

8.

The Giammarcos s ettled in the South E nd ne ighborhood of Hartford,

Connecticut, w here A rnold a nd hi s s isters, Dora and D ionisia, at tended el ementary

school. At age ni ne, M r. Giammarco be gan working, first as a p aperboy an d t hen as a

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dishwasher a t a nur sing hom e be hind hi s pa rents’ hous e. When M r. G iammarco w as

twelve, his brother Pietro was born.

9.

Mr. G iammarco at tended B ulkeley H igh S chool i n H artford and

participated in numerous activities, including football and wrestling.

10. During hi s s ophomore year, Mr. G iammarco had a s erious acci dent. He

fell into a ravine a nd l ay there ove rnight unt il he w as f ound i n t he morning. Mr.

Giammarco suffered a head injury, a punctured lung, and a broken jaw. As a result of his

injuries, Mr. Giammarco was placed in an induced coma for several weeks, underwent a

tracheotomy, and spent over a month in the hospital.

11. Mr. G iammarco enjoyed hi gh s chool, but he struggled i n t he classroom

after his accident. He found it difficult to concentrate after he took the strong painkillers

that t he doc tor had prescribed. At th e end of hi s j unior year, high s chool officials

informed Mr. Giammarco that he would have to repeat the eleventh grade. He left school

instead to work full-time and support his family.

Military Service: 1976-1983

12. Around this time, Mr. Giammarco’s grandfather Pietro Giammarco, a U.S.

Army veteran, lived with the family in Hartford. Mr. Giammarco often heard stories of

his grandfather’s service in the First World War.

13. Pietro Giammarco had arrived in the United States through Ellis Island in

1913. He enlisted i n t he U.S. Army in 19 17, served honor ably for t wo years, and was

wounded i n c ombat on the W estern F ront. After t he First W orld W ar e nded, Pietro

Giammarco applied for naturalization. He became a U.S. citizen in 1920.

14. Plaintiff’s f ather, Lino Giammarco, h ad also s erved in th e milita ry as a

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young m an. Lino G iammarco w as bor n a U .S. c itizen in I taly in 1922 but w as conscripted into the Italian military during the Second World War. After the war, Lino Giammarco and hi s young w ife were stranded i n I taly. When t he c ouple s ought t o immigrate to the United States in 1949, the U.S. Embassy in Rome misinterpreted the law and wrongfully denied their request because o f Lino G iammarco’s involuntary milita ry service.
15. Inspired b y his gr andfather’s service, an d aware o f h is f ather’s m ilitary experience, Plaintiff Arnold Giammarco dreamed of joining the U.S. Army and becoming a soldier.
16. After high school, Mr. Giammarco decided to enlist in the U.S. Army. He joined i n 1976 a nd attended initial training i n O klahoma, w here he specialized in field artillery. He was then stationed overseas in Germany.
17. Mr. G iammarco earned numerous c ertificates o f achievement during hi s military car eer. During hi s s ervice ov erseas, Mr. G iammarco became a guard f or t he North Atlantic Treaty Organization (NATO) and received a security clearance from this organization. Only a handful of soldiers in each battery were selected to hold this duty.
18. Mr. G iammarco left the A rmy with r enewed confidence a nd pr ide i n hi s achievements. After receiving a n honorable di scharge, M r. G iammarco jo ined the National Guard in Hartford. As a m ember of the Guard, Mr. Giammarco developed the skills t hat he ha d a cquired i n t he A rmy. During t raining ex ercises, h e operated selfpropelled howitzer cannons and ammunition trucks.
19. Mr. G iammarco served honorably i n t he N ational G uard from J anuary 1980 t o J anuary 1983, a ttaining t he r ank of s ergeant ( E-5). Mr. G iammarco’s enlisted
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evaluation r eport from t his pe riod states that hi s “ judgment, i ntegrity, and e xemplary personal conduct have won the respect of all associated with him.”
Naturalization Process: 1981-1988 20. Having lived in th e U nited S tates f or a lmost h is e ntire lif e a nd s erved honorably in the military, Mr. Giammarco wanted to become a U.S. citizen. During the early 1980s, he visited the Hartford INS office to inquire about the citizenship process. 21. As a m ember of t he N ational G uard, Mr. G iammarco sought the he lp of Captain Joao D . R aphael a nd hi s f irst s ergeant t o e nsure t hat he pr operly applied f or citizenship and would receive the benefits accorded to veterans and service members. 22. In N ovember 1981, Capt. Raphael cer tified t he back side o f M r. Giammarco’s Form N -426, Request f or C ertification o f M ilitary S ervice, one of t he forms INS re quired him t o s ubmit in c onnection w ith a n a pplication f or naturalization. The i nstructions on t his f orm s tated t hat ve terans or s ervice m embers demonstrating honorable military service “are granted certain exemptions from the general requirements for naturalization.” 23. On or about February 3, 1982, M r. G iammarco p roperly filed his naturalization a pplication with I NS. H e fully c ompleted a nd submitted the f ollowing forms: INS Form N-400, Application to File a Petition for Naturalization; INS Form N426, Request f or C ertification o f M ilitary o r Naval S ervice; an d INS F orm G -325B, Biographic Information. These t hree f orms w ere t he o nly paperwork INS required M r. Giammarco to submit to begin the naturalization process. 24. INS s tamped M r. G iammarco’s n aturalization ap plication “r eceived” o n February 3, 1982.
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25. INS then wrote Mr. Giammarco, requesting t hat he resubmit the military service form (N -426) and bi ographic i nformation form (G-325B) with t he b ack sides blank. In ot her w ords, INS o bjected t hat M r. G iammarco had p rovided t oo m uch information.
26. Mr. G iammarco r esubmitted a Fo rm N -426 a nd a F orm G -325B w ith blank back sides, as requested by INS.
27. On or about April 8, 1982, INS conducted a preliminary investigation of Mr. Giammarco.
28. The INS agent c onducting the preliminary in vestigation r eviewed hi s Form N -400, p lacing c heckmarks next t o some entries, inserting annotations, and correcting responses during the appointment.
29. After the co nclusion of M r. G iammarco’s a ppointment, INS le ft th e “reasons” section of the “non-filed” box on the Form N-400 blank, except for a reference to a n i nternal m emo da ted A pril 8, 1982 . CIS f ailed t o i nclude t his 198 2 m emo i n its disclosures in response to a 2011 Freedom of Information Act (FOIA) request.
30. During M r. G iammarco’s a ppointment, INS told Mr. G iammarco t hat h e should inform the agency when the disposition of a then-pending January 1981 c riminal charge became available.
31. On September 27, 1982, Mr. Giammarco wrote a letter to INS, explaining that the criminal charge h ad been nol led because the prosecutor had d eclined t o pursue the case. In this letter, Mr. Giammarco also asked INS to schedule another appointment so that he could move forward with acquiring his U.S. citizenship.
32. In late 1982, INS contacted the Hartford Police Department and the FBI to
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request a copy of the certified disposition of this same 1981 charge. INS did not request a copy of the certified disposition from Superior Court.
33. Shortly t hereafter, t he H artford P olice D epartment informed INS th at it did not have a certified disposition. The FBI did not immediately respond.
34. INS records i ndicate t hat t he a gency m ay h ave prepared a d raft l etter t o Mr. G iammarco da ted O ctober 27, 1982 , r equesting a co py o f t he certified disposition directly from him.
35. Neither Mr. Giammarco nor his family members ever received a copy o f the draft INS letter dated October 27, 1982.
36. There i s no e vidence i n I NS r ecords t hat t he a gency ever s ent t his draft request.
37. Moreover, INS r ecords lack any ev idence o f a s ingle a ttempt to contact Mr. G iammarco by o ther m eans. INS’s failure t o pur sue alternative f orms of communication is inconsistent with contemporary guidance requiring the agency to take additional s teps t o l ocate a n aturalization a pplicant s erving in th e milita ry, a s M r. Giammarco was when he filed his application in 1982.
38. The draft INS letter was addressed to Arnaldo Giammarco at 204 George Street i n H artford. Mr. G iammarco lived at t hat ad dress at t he t ime, and h is parents resided continually at 2 04 G eorge S treet in Hartford, C onnecticut from 1966 t o 2007. Neither Mr. Giammarco nor his parents had trouble receiving mail at this address.
39. Mr. G iammarco’s prior counsel s ubmitted a FOIA request i n 2011 . The government’s response contained a copy of INS’s October 27, 1982 draft request. This was the first time that Mr. Giammarco learned of this draft.
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40. Until receiving CIS’s response to his FOIA request, Mr. Giammarco was unaware of any INS request for records, other than the requests described in paragraphs 25 and 30 to which he had promptly responded.
41. On S eptember 21, 1988, ne arly s ix years after Mr. G iammarco f iled h is application, the FBI told INS that it could find no r ecord of the disposition of the 1981 charge.
42. Despite receiving the FBI’s background check results in 1988, INS did not contact Mr. Giammarco by telephone, through his National Guard unit, i n person, or in any other manner. Nor did it c omplete its duty to finish adjudicating his application or advise Mr. Giammarco of its determination.
43. Mr. G iammarco r etained unde rsigned c ounsel in f all 2013 . Through counsel, he provided CIS a copy of the certified disposition of the nolled 1981 criminal charge by letter dated November 5, 2013.
Career and Family: 1983-2010 44. After his return from the Army, Mr. Giammarco worked as a meat-cutter and owned a small mom-and-pop store on Maple Street in Hartford called Giammarco’s Market. 45. While Mr. Giammarco was working in Hartford in the early 1980s, he met his first wife. The couple married in 1988 and divorced in 1993. 46. After his divorce, M r. Giammarco suffered emotional d ifficulties. He self-medicated with illegal drugs and developed an addiction to cocaine. He lost his job, and shoplifted at times to support his addiction. 47. While Mr. G iammarco struggled w ith hi s a ddiction, he served a f our-
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month s entence i n 1997 a nd a t wo-month s entence i n 1999 f or s hoplifting. Mr. Giammarco was convicted of other minor, non-violent offenses related to his addiction. He moved between jobs and spent nights in homeless shelters.
48. In 2000, Mr. G iammarco met S haron B lair. The couple found s olace i n each other during a difficult period in their lives. Over time, they fell in love.
49. Following his last ar rest for drug pos session in 2007, Mr. G iammarco pledged to turn his life around. He enrolled in a rehabilitation program and successfully ended his period of addiction.
50. Mr. G iammarco found a j ob at a M cDonald’s i n G roton, C onnecticut working third shift. He earned only $8.00 an hour, but embraced the job as clean, honest work. He was eventually promoted to nighttime manager.
51. In N ovember 2008, S haron B lair gave bi rth t o their daughter, w ho t hey named Blair.
52. After working the night shift, Mr. Giammarco often cared for his daughter during t he da y while his w ife pursued her ed ucation. On S unday afternoons, M r. Giammarco set aside time to visit his elderly parents.
53. On J uly 4, 2010, Arnold Giammarco and S haron B lair married. They chose t his date because i t was t he f iftieth a nniversary of the arrival o f Mr. G iammarco and his parents in the United States. Ms. Blair’s father, a local reverend, officiated.
54. After their wedding, the couple moved into a new apartment, bought their first car, a used Geo Metro, and watched their daughter take her first steps. This period was one of the happiest in their lives.
55. Throughout this time , CIS failed t o ad judicate Mr. G iammarco’s
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naturalization application or to advise him it had been denied and that he had a right to appeal.
Detention and Deportation: 2011-2013 56. On May 14, 2011, Mr. Giammarco stood on his front porch talking to his sister on t he phone . Armed m en arrived, identified t hemselves as Immigration a nd Customs E nforcements (“ICE”) agents, and o rdered Mr. G iammarco to d rop t he phon e and lie down on the ground. 57. ICE officials arrested, detained, and placed Mr. Giammarco in deportation proceedings as part of Operation Endgame, an ICE initiative launched in 2003 that sought to “remove all removable aliens” by 2012 and which was carried out under the auspices of ICE’s C riminal A lien P rogram. ICE a gents issued, s erved, a nd f iled a N otice t o Appear alleging that he was deportable based on two 1997 shoplifting convictions and a single possessory drug conviction from 2004. 58. The a gents t ransferred Mr. G iammarco t o Bristol C ounty J ail in N orth Dartmouth, Massachusetts. 59. During his detention, Mr. Giammarco attended bi ble study and parenting classes, and served as a voluntary unit worker. The jail’s Chief of Immigration Services described Mr. Giammarco as a “model detainee.” 60. ICE declined to s et bond f or M r. G iammarco. Through c ounsel, he requested a c ustody r edetermination, but i n F ebruary 2012, t he Immigration J udge refused t o s et bond . Mr. G iammarco a ppealed t he de nial of bond t o t he Board of Immigration Affairs (“BIA”), but the BIA dismissed his appeal on April 26, 2012. 61. ICE d etained Mr. G iammarco for eighteen months while h e litig ated h is
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removal case before the Immigration Court and the BIA. 62. Mr. Giammarco filed a habeas petition in U.S. District Court, Giammarco
v. Holder, No. 1:12-cv-10526-MBB (D. Mass.), to secure his release from custody during his r emoval pr oceedings, but t he C ourt di d not r each the me rits o f h is h abeas p etition before Mr. Giammarco was deported.
63. Throughout hi s eighteen-month de tention, Mr. G iammarco’s wife an d daughter visited him regularly in jail, once an d s ometimes t wice a w eek. During t hese visits, a glass partition separated Mr. Giammarco from his family. He was not allowed to hold his daughter or clasp her hands.
64. On M ay 15, 2012, t he Immigration Judge d enied M r. G iammarco’s request f or can cellation of removal, held that he lacked jurisdiction to review o r d ecide Mr. Giammarco’s naturalization application, and ordered Mr. Giammarco deported. The BIA affirmed.
65. Mr. G iammarco could n ot a fford to ap peal f urther without d epleting his daughter’s college savings. His elderly mother had already withdrawn tens of thousands of dollars from her retirement and Social Security accounts to pay legal fees.
66. Two d ays a fter Thanksgiving in 2012, ICE d eported Mr. G iammarco to Italy, a country where he had not lived since the age of four.
67. Mr. Giammarco’s removal has inflicted financial and emotional hardships on his wife and young daughter, as well as on his siblings and his elderly parents. Mr. Giammarco’s w ife an d d aughter started receiving Supplemental N utrition A ssistance Program (formerly Food Stamps) benefits after his departure.
68. In It aly, Mr. G iammarco faces s ignificant barriers to e mployment. He
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speaks only rudimentary Italian. He resides in a small town with distant cousins. Other residents of t he t own and s ome of hi s ow n f amily m embers shun Mr. G iammarco and regard him as a violent criminal.
69. For d ecades, C ongress has r ecognized t hat v eterans w ho h ave s erved honorably m erit s pecial treatment in th e naturalization process. U.S. naturalization statutes pr ovide ve terans such as M r. G iammarco with exemptions f rom c ertain requirements and permit them to naturalize notwithstanding a final order of removal.
70. In ac cordance w ith congressional i ntent t hat v eterans r eceive f avorable treatment under the immigration and naturalization laws, ICE and INS have historically declined t o d eport v eterans ab sent extraordinary ci rcumstances. A s eries of i nternal agency memos and guidelines memorialize this practice.
71. In recent years, under pressure to meet annual arrest and deportation goals and quot as established by D HS officials, immig ration a gents have d eparted f rom th is historic practice. T he result h as b een the deportation of Mr. G iammarco and ot her veterans of the U.S. military.
CLAIMS FOR RELIEF CLAIM I
Violation of Administrative Procedure Act (Defendants Beers and Mayorkas)
72. The Plaintiff realleges and incorporates by reference paragraphs 1-71. 73. Mr. G iammarco acquired t he right t o ha ve INS, a nd i ts s uccessor CIS, adjudicate his application to file a petition for naturalization when he properly filed his N-400, together with an N-426 and G-325B, in 1982. 74. INS had, and CIS has, a clear, nondiscretionary duty to timely adjudicate
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naturalization applications. See, e.g., 8 U.S.C. § 1446(d); 8 C.F.R. § 316 .14(b)(1). INS and CIS violated this duty.
75. INS ha d, a nd C IS ha s, a c lear, nondi scretionary dut y t o not ify M r. Giammarco o f t he disposition of hi s a pplication and of hi s r ight t o a ppeal a ny a dverse disposition. See, e.g., 8 C.F.R. § 103.3(a) (1982). INS and CIS violated this duty.
76. INS and CIS violated the requirement of 5 U .S.C. § 555(e) that “within a reasonable t ime, ea ch a gency s hall p roceed t o conclude a m atter p resented t o i t” b y refusing to adjudicate Mr. Giammarco’s application for over thirty years.
77. The failure to ad judicate Mr. G iammarco’s a pplication f or o ver th irty years violates an y conceivable r ule o f r eason and contravenes congressional intent th at INS a nd CIS pr omptly adjudicate na turalization a pplications. See, e. g., 8 U.S.C. §§ 1446(d). This delay i s unreasonable i n l ight of the hum an h ealth a nd w elfare interests that are at stake and the nature and extent of the interests that have been prejudiced by the agency’s delay.
78. Mr. Giammarco suffered a l egal wrong because of the failure and refusal of INS and CIS to take action on his naturalization application. See 5 U.S.C. § 702.
79. The f ailure an d r efusal of INS an d C IS t o adjudicate M r. Giammarco’s naturalization application is arbitrary and capricious and unauthorized by law.
80. This Court should “compel a gency a ction unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1).
CLAIM II: Relief under the Mandamus Act (Defendants Beers and Mayorkas) 81. The Plaintiff realleges and incorporates by reference paragraphs 1-80.
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82. In t he ab sence o f an administrative remedy, Mr. G iammarco r espectfully requests t hat t his C ourt exercise its ma ndamus ju risdiction to r emedy th e h arm that Defendants’ delay has inflicted upon Mr. Giammarco and his family.
83. Mr. Giammarco is entitled to relief under 28 U.S.C. § 1361 because (1) he has a cl ear r ight t o r elief, ( 2) t he agency h as breached a clear, nondi scretionary dut y t o act, and (3) there is no other adequate remedy available.
84. Mr. G iammarco a cquired t he r ight t o ha ve INS, a nd i ts s uccessor CIS, adjudicate hi s application t o file a petition for naturalization when he properly filed his N-400, together with an N-426 and G-325B in 1982.
85. Mr. Giammarco has exhausted his administrative remedies by properly filing his naturalization application and complying with all INS and CIS requests for further filings and information of which he was aware.
CLAIM III: Violation of Administrative Procedure Act
(Defendant Comey) 86. Plaintiff realleges and reincorporates by reference paragraphs 1-85. 87. In ot her r ecent c ases i n w hich pl aintiffs ha ve s ought a n or der t o c ompel CIS to adjudicate a pending naturalization application, CIS has sometimes defended the action on t he gr ound that i t ha s no m andatory dut y t o a djudicate na turalization applications until the FBI has completed mandatory background checks. 88. In the event CIS repeats such arguments in this case, and the Court agrees, then Mr. Giammarco respectfully requests that the Court order the FBI to complete such background checks. 89. The FBI produced a background check report to INS in 1988. If the Court
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concludes t hat t his doe s not c onstitute t he m andatory ba ckground c heck i n M r. Giammarco’s case, t hen Mr. G iammarco respectfully r equests t hat this C ourt direct th e FBI to perform its mandatory duty to complete a proper background check.
90. Mr. G iammarco a cquired t he r ight t o h ave the F BI complete th e background c heck w hen he properly f iled his N -400, t ogether w ith a n N-426 a nd G 325B, in 1982.
91. The FBI has a clear, non-discretionary duty to perform background checks on naturalization applicants. See, e.g., 8 U.S.C. §§ 1446(a)-(b); 8 C.F.R. § 335.1.
92. The F BI violated t he r equirement of 5 U .S.C. § 555 (e) that “within a reasonable t ime, e ach a gency s hall pr oceed t o conclude a m atter p resented t o i t” b y failing to complete a background check on a naturalization application filed in 1982.
93. The F BI’s f ailure t o co mplete a b ackground ch eck o n a n aturalization application f iled i n 19 82 vi olates a ny c onceivable r ule o f r eason and contravenes congressional intent that the FBI promptly complete background checks for naturalization applications. See, e .g., 8 U.S.C. §§ 1446( a)-(b), 8 C .F.R. § 335.1 . This delay is unreasonable in light of the human health and welfare interests that are at stake and the nature and extent of the interests that have been prejudiced by its delay.
94. Mr. Giammarco suffered a l egal wrong because of the failure and refusal of the FBI to perform the mandatory background checks on his naturalization application. See 5 U.S.C. § 702.
95. The f ailure and r efusal o f the FBI t o perform t he m andatory background checks on M r. G iammarco’s na turalization a pplication i s a rbitrary and capricious and unauthorized by law.
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96. This C ourt s hould “ compel a gency a ction unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1).
CLAIM IV: Relief Under the Mandamus Act
(Defendant Comey) 97. Plaintiff realleges and reincorporates by reference paragraphs 1-96. 98. In ot her r ecent c ases i n w hich pl aintiffs ha ve s ought a n or der t o c ompel CIS to adjudicate a pending naturalization case, CIS has sometimes defended the action on the ground that it has no mandatory duty to adjudicate naturalization applications until the FBI has completed mandatory background checks. 99. In the event CIS repeats such arguments in this case, and the Court agrees, then M r. G iammarco al so s eeks m andamus a gainst t he F BI t o co mplete the m andatory background check. 100. The FBI produced a background check report to INS in 1988. If the Court concludes t hat t his doe s not c onstitute t he m andatory ba ckground c heck i n M r. Giammarco’s case, then Mr. Giammarco respectfully requests that this Court compel the FBI to perform its mandatory duty to complete a proper background check. 101. Mr. Giammarco is entitled to relief under 28 U.S.C. § 1361 because (1) he has a cl ear r ight t o r elief, ( 2) t he agency h as b reached a cl ear, n ondiscretionary d uty t o act, and (3) there is no other adequate remedy available. 102. Mr. G iammarco a cquired t he r ight t o ha ve the F BI complete h is background checks for naturalization when he properly filed his N-400, together with an N-426 and G-325B in 1982. 103. Mr. G iammarco h as exhausted h is ad ministrative r emedies b y p roperly
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Case 3:13-cv-01670-VLB Document 1 Filed 11/12/13 Page 18 of 18

filing his naturalization application and complying with all requests for further filings and information of which he was aware.

PRAYER FOR RELIEF WHEREFORE, the Plaintiff respectfully requests that the Court: (1) Assume jurisdiction over this matter; (2) Order CIS to adjudicate Mr. Giammarco’s naturalization application, and if necessary, direct the FBI to complete all required background checks; (3) Award attorney’s fees and costs; and (4) Grant all other just, proper, and appropriate relief.

Dated November 12, 2013 New Haven, Connecticut

Respectfully submitted,

____________________________________ Sung Jin, Law Student Intern Lora Johns, Law Student Intern Elizabeth Song, Law Student Intern Sam Thypin-Bermeo, Law Student Intern Michael J. Wishnie, Supervising Attorney (ct27221) Jerome N. Frank Legal Services Organization Yale Law School P.O. Box 209090 New Haven, CT 06520-9090 (203) 432-4800

18

 
 Arnaldo GIAMMARCO,

No. 14-4362-cv

Plaintiff-Appellant,

-v-

Jeh JOHNSON, Secretary of the Department of Homeland Security,

Defendant-Appellee.

APPELLEE’S STATUS REPORT

Pursuant to this Court’s Order dated January 14, 2015, Appellee advises that Appellant’s Rule 59 motion in this action remains pending in the district court.

Respectfully submitted,
DEIRDRE M. DALY UNITED STATES ATTORNEY
/s/ Carolyn A. Ikari CAROLYN A. IKARI ASSISTANT U.S. ATTORNEY 450 Main Street Hartford, CT 06103 (860) 947-1101

CERTIFICATE OF SERVICE
This is to certify that on March 31, 2015, a copy of the foregoing status report was filed electronically and served by first-class United States mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court’s CM/ECF System.
/s/ Carolyn A. Ikari ____________________________ CAROLYN A. IKARI Assistant U.S. Attorney

 
 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

ARNALDO GIAMMARCO,

:

Plaintiff,

:

:

v.

:

:

:

RAND BEERS,

:

ALEJANDRO MAYORKAS, AND

:

JAMES COMEY,

:

Defendants.

:

CIVIL ACTION NO. 3:13-cv-01670 (VLB)
March 17, 2016

MEMORANDUM OF DECISION GRANTING PLAINTIFF’S [Dkt. #23] CROSSMOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS’ MOTION TO DISMISS, OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT [Dkt.
#18]

Plaintiff Arnaldo Giammarco (“Giammarco”) and Defendants Rand Beers,

on behalf of the Department of Homeland Security (“DHS”), and Alexander

Majorkas, on behalf of the U.S. Citizenship and Immigration Services (“USCIS”), have moved for summary judgment.1 For the reasons that follow, Defendants’

motion is DENIED and Plaintiff’s cross-motion is GRANTED.

I. Factual Background

Plaintiff entered the United States in 1960, as a lawful permanent resident.

[Dkt. #50-2, Pl.’s Local Rule 56(a)(1) Statement at ¶ 1; Dkt. #52-1, Defs.’ Local Rule

56(a)(2) Statement at ¶ 1]. In 1976, he enlisted in the U.S. Army, was stationed

abroad, and in 1979, Plaintiff was honorably discharged. [Dkt. #50-3, A.

Giammarco Decl. at ¶¶ 5-6; Dkt. #50-6, Ex. B. to Pl.’s Cross-Mot. at 1]. On

February 3, 1982, Plaintiff submitted an application for naturalization to the

1 The Complaint also named as a defendant, FBI Director James Comey. [Dkt. #1]. However, Plaintiff has requested and the Court grants the dismissal of all claims against this Defendant. [Dkt. #50-1, Pl.’s Memo. at 10 n. 4].
1

Immigration and Naturalization Service (“INS”), which, at that time, was the
agency responsible for processing, advising applicants, and filing petitions for
naturalization. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶ 4; Dkt. #51-4,
Pl.’s Local Rule 56(a)(2) Statement at ¶ 4].2 Plaintiff’s application disclosed a
January 1981 arrest for sexual assault in the first degree, and stated that the
charge was “still pending.” [Dkt. #49-3, Ex. 1 to Defs.’ Mot. at 2].
On April 8, 1982, Plaintiff met with an INS agent, who reviewed his
application. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶ 6; Dkt. #51-1,
Pl.’s Local Rule 56(a)(2) Statement at ¶ 6]. During the meeting, Plaintiff and the
agent discussed the sexual assault charge, and the INS agent told Plaintiff that he
should inform the agency when the disposition of this criminal charge became
available. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶¶ 7, 9; Dkt. #51-1,
Pl.’s Local Rule 56(a)(2) Statement at ¶¶ 7, 9]. Later that day, the INS agent
drafted a memo to Plaintiff’s file, which stated that the charge against Plaintiff
was “still pending because [Plaintiff] requested a jury trial” and as a result, the
2 Until the Immigration Act of 1990 (“IMMACT”), federal and certain state courts had the authority to grant or deny naturalization petitions. [Dkt. #49-4, Ex. 201, Dorfman Decl. at ¶ 3]. Accordingly, individuals seeking naturalization were required to file two documents, an application to file a petition for naturalization, which was reviewed by the INS, and a separate petition for naturalization, which was adjudicated by a court. See Azize v. Bureau of Citizenship & Immigration Servs., 594 F.3d 86, 90 (2d Cir. 2010); U.S. v. Sokolov, 814 F.2d 864, 869 (2d Cir. 1987). The application was a necessary precursor to filing a petition. 8 U.S.C. § 1445(b)(2) (1982). In addition to receiving and processing applications to file petitions for naturalization, the INS screened applicants to ascertain if they were likely to be eligible for naturalization. [Dkt. #49-4, Ex. 201, Dorfman Decl. at ¶¶ 23]. In this role, the INS would conduct an interview of the applicant, review his or her application, and, upon determining that the applicant was qualified, facilitate the applicant’s filing an actual petition for naturalization. [Id. at ¶ 3]. Applicants whom the INS deemed unlikely to qualify for naturalization could contest this determination and move forward with a petition, but such cases were “very rare.” [Id. at ¶ 4].
2

officer would “defer filing [Plaintiff’s naturalization petition] until disposition of
case.” [Dkt. #49-3, Ex. 2 to Defs.’ Mot. at 1]. Also after this meeting, Plaintiff’s
naturalization application was marked “[n]onfiled.” [Dkt. #49-3, Ex. 1 to Defs.’
Mot. at 4]. In the space provided for “Date, Reasons,” the reviewing officer wrote
“[s]ee memo to file of 4-8-82.” [Id.]. According to a sworn declaration submitted
by the Defendants, at and around the time Plaintiff submitted his naturalization
application, when an INS examiner designated an applicant’s file as “nonfiled”
they were not obligated or expected to issue a written notification to the applicant
disclosing this fact. [Dkt. #49-4, Ex. 201, Dorfman Decl. at ¶ 5]. Moreover,
applications that received a “nonfiled” designation could be revived, if the
applicant provided the INS with the information it requested, or otherwise
contacted the INS. [Id. at ¶ 8].
On September 27, 1982, Plaintiff sent a letter to the INS informing them that
the sexual assault charge had been “nolle[]d” and requesting “an appointment for a[c]quiring [his] U.S. [c]itizenship.” [Dkt. #49-3, Ex. 5 to Defs.’ Mot. at 1].3 The
letter further explained that Plaintiff “was told to make another appointment when
the case had reached a decision.” [Id.]. According to a document from the
Hartford Superior Court, the charge was nolled on or around August 23, 1982.
3 “The effect of a nolle is to terminate the particular prosecution of the defendant without an acquittal and without placing him in jeopardy.” State v. Richardson, 291 Conn. 426, 430, 969 A.2d 166 (Conn. 2009). However, a nolle does not protect the defendant from further prosecution in connection with the same underlying conduct. See Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 5, 273 A.2d 709, 711 (Conn. 1970) (“The nolle . . . was not a bar to a subsequent trial of the plaintiff for the same offense.”). Nor does a nolle constitute a dismissal—at least not until thirteen months has passed, such that the charge is automatically erased under Conn. Gen. Stat. § 15-142a(c). See Cislo v. City of Shelton, 240 Conn. 590, 607, 692 A.2d 1255, 1264-65 (Conn. 1997). 3

See [Dkt. #50-6, Ex. K at 2]. However, Plaintiff did not present this or any other
documentary evidence regarding the nolle to the INS or the Defendants in this
case until January 2014, long after a final order of removal was issued against
him. [Id. at 1].
The INS received Plaintiff’s letter on October 4, 1982. [Dkt. #49-3, Ex. 5 to
Defs.’ Mot. at 1]. A handwritten note in Plaintiff’s INS file indicates that on the
same day the INS received his letter, “10/4/82,” it decided to “[r]eopen” his file.
[Dkt. #50-6, Ex. L to Pl.’s Cross-Mot. at 1].4 On October 12, 1982, the INS sent the
Hartford Police Department a records request, seeking the disposition of the
January 1981 charge. [Dkt. #50-6, Ex. G to Pl.’s Cross-Mot. at 1]. On October 26,
1982, the INS received a response, in the form of a table depicting the date and
nature of the offense and the case number, with no disposition provided. [Id. at
2]. The following day, October 27, 1982, the INS prepared a letter to Plaintiff
which instructed him to provide the INS with a certified copy of the disposition of
4 Defendants contend that it “is not discernable from the record” whether or not the INS reopened Plaintiff’s application. [Dkt. #52-1, Defs.’ Local Rule 56(a)(2) Statement at ¶ 11]. However, they offer no alternative explanation for the seemingly straightforward statement appearing in the file: “Reopen 10/4/82.” [Dkt. #50-6, Ex. L to Pl.’s Cross-Mot. at 1]. Nor do they directly dispute that the INS reopened Plaintiff’s file. They merely question, without support, whether this statement is sufficient to indicate that the file was reopened. The Court finds, in the absence of any evidence to the contrary, that it is. Indeed, the remainder of the Defendants’ response supports this conclusion. Defendants state that the handwritten note was “the next to last page in [Plaintiff’s] file” and “[t]he last page” was a “file copy of the October 27, 1982” letter the INS allegedly sent to Plaintiff requesting additional information regarding the disposition of the sexual assault charge. [Dkt. #52-1, Defs.’ Local Rule 56(a)(2) Statement at ¶ 11]. The presence of this letter (whether in draft or final form) in Plaintiff’s file would appear to support the conclusion that the file was reopened, because if it were not, there would be no reason for the INS to have made a second, written request for this information, especially since it was apparently under no obligation and typically did not inform applicants when their applications were designated “nonfiled.” See [Dkt. #49-4, Ex. 201, Dorfman Decl. at ¶ 5].
4

the charge. [Dkt. #49-3, Ex. 6 to Defs.’ Mot. at 1]. Plaintiff contends that neither he nor any of his family members ever received this letter. [Dkt. #50-2, Pl.’s Local Rule 56(a)(1) Statement at ¶ 16; Dkt. #52-1, Defs.’ Local Rule 56(a)(2) Statement at ¶ 16]. No further communication ever occurred between Plaintiff and the INS in connection with this application. [Id. at ¶¶ 16-17].
Nearly six years later, on September 21, 1988, the FBI prepared a report concerning the January 1981 charge against Plaintiff. [Dkt. #50-6, Ex. H to Pl.’s Cross-Mot. at 1]. The report was prepared from information provided by the Hartford Police Department, and it referenced the sexual assault charge and Plaintiff’s January 1981 arrest. [Id.]. However, it did not include a disposition. [Id.]. Although this report was placed in Plaintiff’s INS file, there is no indication which entity requested the report and when it did so. [Id.; see also Dkt. #52-1, Defs.’ Local Rule 56(a)(2) Statement at ¶ 14]. Following the INS’s receipt of this report, there is no indication that any action was taken, that the INS contacted Plaintiff, or that the INS closed Plaintiff’s file.5
Defendants contend that where a naturalization application was submitted to the INS but contained deficiencies which prevented it from filing a petition with the court, the policy of the INS prior to the passage of IMMACT was to retain the application for a limited period of time, and, if the applicant did not provide the missing information the INS requested and it otherwise appeared that the application had been abandoned, the INS would archive it in the ordinary course
5 Defendants have submitted a sworn declaration stating that “there is no indication in [Plaintiff’s] record that the pendency of any inquiry made to the FBI played any part in the status or handling of the Plaintiff’s application.” [Dkt. #49-4, Ex. 200, Keck Decl. at ¶ 5]. That the FBI inquiry may not have affected the status or handling of Plaintiff’s application does not mean that it is not evidence of that status. 5

of business. [Dkt. #49-4, Ex. 201, Dorfman Decl. at ¶¶ 10-11]. Nowhere do Defendants contend that the INS rendered an ultimate determination on or otherwise terminated applications that it deemed abandoned, nor do they maintain that the INS closed files containing abandoned applications within any period of time. Accordingly, there is no indication in the record if and when the INS deemed Plaintiff’s application abandoned, and that, at any time after October 4, 1982, the agency closed or otherwise reached a decision on his application. [Id. at 1-2; Dkt. #49-4, Ex. 200, Keck Decl. at ¶ 5].
On January 21, 1997, and while his application was in this dormant state, Plaintiff was convicted of the offense of larceny in the fifth degree. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶ 16; Dkt. #51-1, Pl.’s Local Rule 56(a)(2) Statement at ¶ 16]. Shortly thereafter, on March 3, 1997, Plaintiff was convicted of larceny in the sixth degree. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶ 17; Dkt. #51-1, Pl.’s Local Rule 56(a)(2) Statement at ¶ 17]. On November 5, 2004, Plaintiff was arrested again, for possession of narcotics. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶ 18; Dkt. #51-1, Pl.’s Local Rule 56(a)(2) Statement at ¶ 18]. These three offenses served as the basis for the INS’s decision to seek Plaintiff’s removal. [Dkt. #49-3, Ex. 8 to Defs.’ Mot. at 4].
On January 23, 2007, Plaintiff was convicted of larceny in the fourth degree and was sentenced to one year of imprisonment, execution suspended after 30 days. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶ 19; Dkt. #51-1, Pl.’s Local Rule 56(a)(2) Statement at ¶ 19]. The INS determined that this last offense, larceny in the fourth degree, constituted an aggravated felony. [Dkt. #49-3, Ex. 9 to Defs.’ Mot. at 3]. This determination is significant because one who has
6

committed an “aggravated felony,” as defined by the immigration statutes, is generally precluded from cancelling a removal proceeding. [Id.]. Commission of an aggravated felony also generally prevents an applicant from satisfying the statutory good moral character requirement for naturalization. See 8 U.S.C. § 1101(f)(8) (“No person shall be regarded as . . . a person of good moral character who . . . at any time has been convicted of an aggravated felony . . . .”).6
On May 14, 2011, Plaintiff was arrested by officers of Immigration and Customs Enforcement (“ICE”) and placed in removal proceedings. [Dkt. #50-2, Pl.’s Local Rule 56(a)(1) Statement at ¶ 27; Dkt. #52-1, Defs.’ Local Rule 56(a)(2) Statement at ¶ 27]. Sometime in 2011, Plaintiff’s counsel made a FOIA request of Defendant DHS. [Dkt. #50-3, A. Giammarco Decl. at ¶ 14]. It was through the documents obtained from this request that Plaintiff claims he first learned of the October 27, 1982 letter prepared by the INS and that his application had been designated as “non-filed.” [Id.].
On May 15, 2012, an immigration judge (“IJ”) entered an order of removal and denied Plaintiff’s request for a cancellation of removal. [Dkt. #50-2, Pl.’s Local Rule 56(a)(1) Statement at ¶ 29; Dkt. #52-1, Defs.’ Local Rule 56(a)(2) Statement at ¶ 29]. In reaching his decision, the IJ found that Plaintiff had “conceded the allegations and the two charges of removability,” and that there was “clear, convincing and unequivocal evidence that the allegations . . . [we]re true.” [Dkt. #49-3, Ex. 9 to Defs.’ Mot. at 2-3]. He denied Plaintiff’s application for cancellation of removal upon concluding that Plaintiff was “ineligible for that
6 Among the offenses which constitute aggravated felonies for immigration and naturalization purposes are theft offenses for which the term of imprisonment is at least one year. See 8 U.S.C. § 1101(a)(43)(G). 7

form of relief because he has been convicted of an aggravated felony” based on his January 5, 2007 conviction for fourth-degree larceny. [Id. at 3]. Finally, the IJ considered Plaintiff’s assertion that he was “pursuing an old application” for naturalization, an independent basis for avoiding removal. [Id.]. However, the IJ concluded that this application “was never acted upon,” after the USCIS took the position that the application “was never properly filed because [Plaintiff] never went through the proper process.” [Id. at 4]. The IJ opinion cites to an exhibit, but does not indicate that the USCIS formally considered and reached a final decision regarding the naturalization application, nor does it identify when the USCIS took this position, in what form, and whether Plaintiff was ever given notice or an opportunity to appeal it. [Id.].
On October 1, 2012, the Board of Immigration Appeals (“BIA”) issued its decision affirming the removal order. [Dkt. #50-6, Ex. I to Pl.’s Cross-Mot. at 1]. In dismissing Plaintiff’s appeal, the BIA discussed Plaintiff’s earlier naturalization application and the USCIS’s stated “position . . . that the application was never completed at the time it was filed,” and that as a result, there was “no application currently pending before the USCIS.” [Id.]. The BIA further noted that “the DHS has exclusive jurisdiction over naturalization determinations,” and thus, the BIA was bound to accept the DHS’s determination. [Id.]. However, like the IJ opinion, the BIA opinion does not set forth facts demonstrating that the “position” taken by the USCIS constituted a final agency decision which was communicated to Plaintiff and to which Plaintiff received an opportunity to appeal.
On November 26, 2012, Plaintiff was deported to Italy, where he presently resides. [Dkt. #50-6, Ex. J to Pl.’s Cross-Mot. at 2].
8

II. Legal Standards A. Summary Judgment Defendants moved to dismiss the Complaint pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6), or in the alternative for summary judgment pursuant to Fed. R. Civ. P. 56. [Dkt. #49]. Plaintiff cross-moves for summary judgment. [Dkt. #50]. In deciding whether to treat a motion as one for summary judgment, “[t]he essential inquiry is whether the . . . [parties] . . . should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or [were] taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings.” In re G&A Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985). Here, in addition to cross-moving for summary judgment, Plaintiff relies on documents outside of the pleadings and submits a Local Rule 56(a)(2) statement in opposition to the Defendants’ motion. See [Dkt. ##51-1-5]. Accordingly, the Court evaluates each of the parties’ motions under the Rule 56 standard. See Eidshahen v. Pizza Hut of Am., Inc., 973 F. Supp. 113, 114 (D. Conn. 1997) (treating defendant’s motion to dismiss pursuant to Rule 12, or, in alternative, motion for summary judgment as motion for summary judgment where “[p]laintiff submitted materials outside the pleadings, including an affidavit” and “briefed for a motion for summary judgment”); Mendoza v. City of Rome, 70 F. Supp. 2d 137, 141 (N.D.N.Y. 1999) (treating defendant’s motion as one for summary judgment where both parties “referred to documents outside of the pleadings”).
Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment
9

as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). “In determining whether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the record that could reasonably support a jury's verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Cir. 2006) (internal quotation marks and citation omitted). In addition, determinations of the weight to accord evidence or assessments of the credibility of witnesses are improper on a motion for summary judgment, as such are within the sole province of the jury. Hayes v. New York City Dep’t of Corr., 84 F. 3d 614, 619 (2d Cir. 1996).
“A party opposing summary judgment cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible. At the summary judgment stage of the proceeding, Plaintiffs are required to present admissible evidence in support of their allegations; allegations alone, without evidence to back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., No. 3:03-cv-481 (MRK), 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (citing and quoting Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996)); Martinez v. State of Connecticut, No. 3:09cv1341 (VLB), 2011 WL 4396704 at *6 (D. Conn. Sept. 21,
10

2011). Where there is no evidence upon which a jury could properly proceed to find a verdict for the party producing it and upon whom the onus of proof is imposed, such as where the evidence offered consists of conclusory assertions without further support in the record, summary judgment may lie. Fincher v. Depository Trust and Clearance Co., 604 F.3d 712 (2d Cir. 2010).
B. Administrative Procedure Act To bring a claim under the APA, a plaintiff must show “(1) a clear duty owed to [him] under by the agency, (2) a duty which is mandatory and not discretionary, and (3) a clear right to relief.” Nigmadzhanov v. Mueller, 550 F. Supp. 2d 540, 548 (S.D.N.Y. 2008) (citation omitted). The APA imposes a number of requirements on federal agencies. One requirement is, “within a reasonable time . . . to conclude a matter presented to it.” 5 U.S.C. § 555(b). Thus, a court may “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). However, it may do so only when “an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S. Ct. 2373, 2379 (2004) (emphasis in original). A court may not review “agency action [that] is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Accordingly, “when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency’s discretion, a court can compel the agency to act, but has no power to specify what the action must be.” Norton, 542 U.S. at 65, 124 S. Ct. at 2380. Where an APA claim is based on unreasonable delay, courts consider six factors:
(1) the time agencies take to make decisions must be governed by a ‘rule of reason;’ (2) where Congress has provided a timetable or
11

other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’
Yakubova v. Chertoff, No. 06 CV 4203 (ERK) (RLM), 2006 WL 6589892, at
**3-4 (E.D.N.Y. Nov. 2, 2006) (quoting Tummino v. Von Eschenbach, 427 F. Supp.
2d. 212, 231 (E.D.N.Y. 2006) (applying factors to complaint alleging delays in
adjudication of naturalization applications by USCIS)).
The duty to resolve applications within a reasonable time applies to DHS
and USCIS adjudications of immigration applications, and serves as a proper
basis for a claim under the APA. See, e.g., Eid v. Chertoff, No. 07-cv-201 (JBA),
2008 WL 905927, at *4 (D. Conn. Mar. 31, 2008) (denying motion to dismiss APA
claim against Secretary of DHS for failure to resolve plaintiff’s adjustment of
status application for more than four years and stating that “[n]othing in the INA
relieves the Secretary of his obligation to dispose of pending adjustment of
status applications in a reasonable time frame to give applicants prompt notice of
those decisions”); Nigmadzhanov, 550 F. Supp. 2d at 547 (finding that defendant
“CIS had a non-discretionary duty to adjudicate [plaintiff’s] application for
adjustment within a reasonable amount of time” and that having alleged that CIS breached its duty, plaintiff “stated a clear claim for relief” under APA).7
7 There is case law holding that the DHS and USCIS’ duty to timely adjudicate naturalization applications is not triggered until the completion of the FBI’s criminal background check. See Kakushadze v. Chertoff, No. 07 Civ. 8338 (DF), 2008 WL 2885292, at *7 (S.D.N.Y. Jul. 25, 2008) (“[US]CIS does not have a 12

Similarly, when an agency issues a denial, “in whole or in part of a written
application, petition, or other request of an interested person made in connection
with any agency proceeding,” it is required to give “[p]rompt notice . . . of the
denial.” 5 U.S.C. § 555(e) (1982). While the Second Circuit has not reached the
issue, courts elsewhere have found that the DHS and USCIS must comply with
this statute in the course of their review of applications. See, e.g., Beshir v.
Holder, 853 F. Supp. 2d 1, 6 n. 4, 10-11 (D.D.C. 2011) (citing § 555(e) and holding
that court had jurisdiction under the APA to hear complaint challenging agency
inaction with respect to plaintiff’s application to adjust her immigration status);
Fraga ex rel. Fraga v. Smith, 607 F. Supp. 517, 522 (D. Or. 1985) (citing § 555(e) in
holding that the APA “requires INS to issue a final written decision” in connection
with applications for certificates of citizenship). As is the case with a failure to
render a decision, “the usual remedy” for an agency’s failure to satisfy the notice
requirement in the event of a denial is a “‘remand to the agency for additional
investigation or explanation.’” Tourus Records, Inc. v. Drug Enforcement Admin.,
mandatory duty to take action on an application for naturalization until the FBI has completed its background checks.”) (quoting Abdul Qadir v. Gonzalez, No. 07-3741 (FLW), 2008 WL 2625314, at *4 (D. N.J. Jun. 26, 2008) (dismissing APA claim based on DHS delay in adjudicating naturalization application). However, Defendants do not raise this argument. In addition, as Defendants acknowledge, 8 U.S.C. § 1447(b) permits a naturalization applicant to request a hearing before a district court in the event of undue delay on the part of the agency, but they claim that this statute does not apply in this case because it was not enacted until 1990. [Dkt. #49-1, Defs.’ Memo. at 13]. Defendants’ argument assumes that Plaintiff’s application was disposed of prior to 1990, but, as discussed below, see infra at 17-18, the record plainly indicates that Plaintiff’s naturalization application was pending in 1990 and remains so today. Furthermore, Plaintiff relies on this statute in bringing his Complaint. See [Dkt. #1, Compl. at ¶¶ 74, 77]. Accordingly, to the extent the APA does not provide for a cause of action to redress the 30-year delay in adjudicating Plaintiff’s application, 8 U.S.C. § 1447(b) certainly does.
13

259 F.3d 731, 737 (D.C. Cir. 2001) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S. Ct. 1598, 1607 (1985)). III. Analysis
A. The INS Breached its Duty to Timely Adjudicate Plaintiff’s Naturalization Application
At the time Plaintiff submitted his application, February 3, 1982, the INS, a federal agency, was under the general obligation to render a conclusion on the application within a “reasonable time.” 5 U.S.C. § 555(b) (1982). Applying the sixfactor test, Plaintiff’s application was not resolved within a reasonable time. A three-decade long delay exceeds any rule of reason, particularly given that an application for citizenship touches upon the “health and welfare” of the applicant. Yakubova, 2006 WL 6589892, at *3.
In response, Defendants dispute the applicability of this provision of the APA by claiming that it applies only to actions that are “legally required.” [Dkt. #49-1, Defs.’ Memo. at 12 (quoting Norton v. S. Utah Wilderness Allliance, 542 U.S. 55, 63-64, 124 S. Ct. 2373, 2379 (2004) (emphasis in original))]. According to Defendants, no action was or is required with respect to Plaintiff’s naturalization application because (i) at the time Plaintiff submitted it, the INS did not adjudicate applications for naturalization, it only made non-binding recommendations to a district court as to whether citizenship should be granted; and (ii) there is no pending application, because the Plaintiff abandoned it, resulting in its administrative closure and archival within a reasonable time. See [Dkt. #49-1, Defs.’ Memo. at 14-15; Dkt. #53, Defs.’ Reply at 2-5]. Defendants are incorrect.
First, Defendants’ argument that the INS did not adjudicate naturalization applications is neither accurate nor apposite. As Defendants note, applicants
14

seeking naturalization were required to file two documents, an application to file a petition for naturalization, which was reviewed by the INS, and a separate petition for naturalization, which was adjudicated by a court. See Azize v. Bureau of Citizenship & Immigration Servs., 594 F.3d 86, 90 (2d Cir. 2010); U.S. v. Sokolov, 814 F.2d 864, 869 (2d Cir. 1987). The application was a necessary precursor to filing a petition. 8 U.S.C. § 1445(b)(2) (1982). In addition to receiving and processing applications to file petitions for naturalization, the INS screened applicants to ascertain if they were likely to be eligible for naturalization, by among other things, conducting a paper review and interview of the applicant. [Dkt. #49-4, Ex. 201, Dorfman Decl. at ¶¶ 2-3]. Upon determining that the applicant was qualified, the INS signed off on the application and assisted the applicant with the filing of a petition for naturalization with the court. [Id. at ¶ 3]. In addition, the court most often adopted the agency’s recommendation, and it was “very rare” for an applicant to obtain a petition without the endorsement of the INS. [Id. at ¶ 4]. Considering that submission of an application to the INS was a prerequisite to filing a naturalization petition with a court, the INS conducted a paper and in-person review of each application and applicant, and it determined whether it would support and assist the applicant with the filing of a naturalization petition, it is clear that the INS performed an adjudication over the naturalization applications it received. Indeed, while not conclusive, the INS’s determinations on whether an application should be developed into a petition were rarely contradicted by courts reviewing associated petitions. Thus, even if the Defendants are correct, that a “nonfiled” designation did not equate to the denial of an application, this does not mean that the INS did not perform any
15

adjudication, as an outright denial of an application is only one type of adjudication. See Brue v. Gonzales, 464 F.3d 1227, 1233 n. 3 (10th Cir. 2006) (a nonfiled designation on a naturalization application “indicates that a [naturalization] petition was not filed, not that the INS considered the Application to be ‘nonfiled’ or that the INS denied the Application or a petition”) (emphasis in original).
Moreover, even if a “nonfiled” designation does not constitute an INS adjudication, the timing requirements in 5 U.S.C. § 555(b) are not limited to agency adjudications. § 555(b) commands that, “within a reasonable time,” an agency “conclude a matter presented to it.” Id. (emphasis added). Plaintiff submitted an application to the agency, as he was required, and sought a determination from the agency of whether or not he met the requirements for naturalization and whether the agency would support and assist him in the filing of a naturalization petition. Plaintiff was entitled to a final determination of both of these questions, which collectively comprised the “matter” Plaintiff placed before the agency.
Finally, and relatedly, for the reasons explained below, see infra at 17-18, Plaintiff did not, nor has he yet received a final disposition from the agency. Plaintiff’s application has been pending from 1982 to the present day. Thus, even if the INS was not under a clear non-discretionary duty to adjudicate Plaintiff’s application back in 1982, there is no question that the Defendants presently owe such a duty and have owed it for many years. See 8 U.S.C. § 1447(b) (1994) (“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
16

conducted under such section, the applicant may apply to the United States district court . . . for a hearing on the matter”).
The Defendants’ second contention—that the agency did make a determination on Plaintiff’s application, when it closed and archived it after concluding Plaintiff had abandoned it—is simply not supported by the record. While the application was marked “non-filed” and, at some point, was archived, there is simply no evidence that the INS ever (i) reached a final decision or (ii) finally closed Plaintiff’s application file—administratively or otherwise. To the contrary, the undisputed record indicates that his file was reopened on or around October 4, 1982, the same day the INS appears to have received the letter from Plaintiff notifying it that his case had been nolled and requesting a second interview to move forward with his application, and remains open to the present day. See [Dkt. #49-3, Ex. 5 to Defs.’ Mot. at 1; Dkt. #50-6, Ex. L to Pl.’s Cross-Mot. at 1]. There is no indication that a decision was ever made on the application, or that Plaintiff’s file was ever closed or archived for any particular reason thereafter. Indeed, the October 27, 1982 letter from the INS requesting additional records from the Plaintiff appears to confirm that the file was reopened and a decision had not yet been made, and the FBI report, which was placed in Plaintiff’s file years later, strongly suggests that the file remained open long after the agency sent out its final communication to Plaintiff requesting the disposition of the assault charge. See [Dkt. #49-3, Ex. 6 to Defs.’ Mot. at 1; Dkt. #50-6, Ex. H to Pl.’s Cross-Mot. at 1].
Defendants do not identify any evidence indicating a subsequent determination or that the file was later closed. At most, they submit an affidavit
17

which states that naturalization applications, in general, were “archived in the ordinary course of business” once it appeared they had been abandoned. [Dkt. #49-4, Ex. 201, Dorfman Decl. at ¶ 11]. The Defendants have not presented, and the Court has not found, authority indicating that archiving a file constitutes an official disposition or an otherwise recognized file status. That Plaintiff’s application was archived says nothing of its status or disposition, it merely indicates where the file was physically located. Moreover, the Defendants offer no evidence as to when Plaintiff’s file was archived or when and if it was deemed abandoned. With the undisputed record demonstrating that Plaintiff’s application was never finally adjudicated or closed for over 30 years, Plaintiff has established a violation of 5 U.S.C. § 555(b).
B. The INS Failed to Comply with its Statutory Duty to Notify Plaintiff of its Denial of His Request for a Second Interview
Plaintiff next contends that Defendants violated 5 U.S.C. § 555(e), by failing to inform him of the agency’s denials of his requests. At the time Plaintiff submitted his application, Defendants were obligated to provide “[p]rompt notice” of “the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceedings.” 5 U.S.C. § 555(e) (1982). Defendants contend that they did not violate their duty to notify because (i) a designation of “nonfiled” did not constitute a denial; and (ii) the closure and archiving of the file did not constitute a denial, but was instead a determination that the file did not contain the requisite proof for a petition to be filed. See [Dkt. #49-1, Defs.’ Memo. at 14-15; Dkt. #53, Defs.’ Reply at 4-5]. Neither of these arguments succeeds.
First, the Defendants’ argument overlooks the Plaintiff’s request for a
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second “appointment for acquiring [his] U.S. citizenship,” contained in his September 27, 1982 letter to the INS. [Dkt. #49-3, Ex. 5 to Defs.’ Mot. at 1]. The Defendants acknowledge that the Plaintiff “never received one,” and there is no evidence in the record that a written denial of this request was ever sent to the Plaintiff. [Dkt. #53, Defs.’ Reply at 15]. Indeed, the October 27, 1982 letter the Defendants claim was the final piece of correspondence the INS sent to Plaintiff does not mention or otherwise refer to this request. See [Dkt. #49-3, Ex. 6 to Defs.’ Mot. at 1]. The failure to provide Plaintiff with a written denial of his request is alone sufficient to violate the APA. See 5 U.S.C. § 555(e) (1982) (“Prompt notice shall be given of the denial in whole or in part of a . . . request of an interested person made in connection with any agency proceeding.”) (emphasis added).
Second, Defendants’ contention that Plaintiff’s file was ultimately disposed of and closed absent a denial simply does not comport with their descriptions of agency policy and procedure, nor does it make sense. Both 5 U.S.C. § 555(e) and 8 C.F.R. § 103.3(a) imposed a duty on the INS to notify applicants whenever their applications were denied. See 5 U.S.C. § 555(e) (1982) (“Prompt notice shall be given of the denial . . . of a written application . . . .”); 8 C.F.R. § 103.3(a) (1982) (“Whenever a formal application . . . is denied, the applicant shall be given written notice setting forth the specific reasons for such denial.”).8 However, neither the statute nor the regulation defined the terms “denial” or “denied.” The Defendants have taken the position that neither a “nonfiled” designation nor the administrative closure of an applicant’s file constituted a “denial.” [Dkt. #49-1,
8 8 C.F.R. § 103.3(a) specifically governed INS officers’ review of applications for naturalization. See 8 C.F.R. § 103.
19

Defs.’ Memo. at 13; Dkt. #53, Defs.’ Reply at 2-5]. The Defendants’ construction is untenable, because if this were the case, under the protocol described in the declaration submitted by the Defendants, the INS would not have issued a single denial, and was never under any duty to notify any applicant as to the status of their naturalization application. This is because, according to the Defendants, the INS either determined an application was meritorious and assisted in preparing a petition, or it designated applications “nonfiled” and after a period of time, it administratively closed them. See [Dkt. #49-4, Ex. 201, Dorfman Decl. at ¶¶ 3-4, 10-11]. Nowhere does the INS review procedure outlined in the Defendants’ declaration provide for a separate “denied” status, nor does any other document in the record.
On the other hand, the record indicates, and the Defendants appear to assert, that once an application was administratively closed, it was no longer under review. See [id. at ¶¶ 8, 10-11 (explaining that applicants with an outstanding request for information could “revive” their applications by providing the information, if they failed to do so, the case would “remain ‘nonfiled’ and retained in the field office for a limited period of time,” and thereafter, the application was “archived in the ordinary course of business”); Dkt. #53, Defs.’ Reply at 5 (stating that the INS closed Plaintiff’s file because it “did not contain the requisite proof for a petition to be filed,” that “[t]he obligation to act pursuant to the APA is only an obligation to ‘conclude’ the matter within a reasonable time,” and contending that “[i]t is undisputed that the administrative closure took place within a reasonable period”)]. Defendants cannot have it both ways. Either the application was reopened and never concluded, as the undisputed record
20

indicates and the Court so finds, or, as the Defendants maintain, Plaintiff’s file was ultimately closed, at which the point, the agency’s “nonfiled” designation and determination that Plaintiff had abandoned his application ripened into a final denial, but no denial notice was ever sent to the Plaintiff. In either case, the Defendants have violated the APA, be it by failing to render a disposition, in violation of 5 U.S.C. § 555(b), or by failing to inform the Plaintiff of its ultimate denial of his application, in violation of 5 U.S.C. § 555(e). C. Plaintiff Has Standing And His Requested Relief is Not Clearly Futile
Defendants next contend that the Court is unable to grant the relief Plaintiff seeks for three reasons: (i) Plaintiff is subject to a final order of removal and is therefore barred from seeking naturalization by 8 U.S.C. § 1429; (ii) Plaintiff’s 2007 conviction for larceny in the fourth degree, an aggravated felony, renders him unable to demonstrate good character, a pre-requisite for naturalization; and (iii) Plaintiff is no longer a lawful permanent resident. See [Dkt. #49-1, Defs.’ Memo. at 16-24]. None of these arguments succeed.
As for the final removal order itself barring consideration of Plaintiff’s naturalization application, his honorable service in the U.S. military during the years 1976-1979 places him outside the categorical bar on naturalization imposed by 8 U.S.C. § 1429. See 8 U.S.C. § 1440(a)-(b)(1) (permitting any person who, “while an alien or a noncitizen national of the United States, has served honorably . . . during . . . the Vietnam hostilities . . . [to] be naturalized . . . notwithstanding the provisions of section 1429 . . . as they relate to deportability”); Boatswain v. Ashcroft, 267 F. Supp. 2d 377, 378 (E.D.N.Y. 2003) (citing 8 U.S.C. § 1429 and noting that it “permit[s] veterans to naturalize
21

notwithstanding any final order of removal”), aff’d sub nom Boatswain v. Gonzalez, 414 F.3d 413 (2d Cir. 2005).9
Defendants’ other two arguments fare no better. While consideration of Plaintiff’s 2007 fourth-degree larceny conviction and the loss of his lawful permanent resident status due to the final removal order may well result in the denial of his naturalization application, it is not clear to the Court that the agency must, or even should, consider either of these facts. Plaintiff originally submitted his application in February 1982, it was never disposed of and remains open, the fourth degree larceny conviction occurred 25 years later, and his removal took place another five years after that. [Dkt. #49-2, Defs.’ Local Rule 56(a)(1) Statement at ¶ 19; Dkt. #51-1, Pl.’s Local Rule 56(a)(2) Statement at ¶ 19; Dkt. #506, Ex. J to Pl.’s Cross-Mot. at 2].
Defendants first point to 8 U.S.C. §§ 1427(a)(3), 1101(f)(8), and 8 C.F.R. § 103.2(b)(1) in support of their claim that Plaintiff’s fourth-degree larceny conviction precludes consideration of his naturalization application. 8 U.S.C. § 1427(a)(3) states that “[n]o person . . . shall be naturalized unless such applicant . . . during all periods referred to in this subsection has been and still is a person of good moral character . . . .” “The statutory period during which good moral character is to be assessed is ‘five years immediately preceding the date of filing his application . . . up to the time of admission to citizenship.’” Rico v. INS, 262 F. Supp. 2d 6, 9 (E.D.N.Y. 2003) (quoting 8 U.S.C. §§ 1427(a)(1)-(2)). 8 U.S.C. §1101(f)(8) provides that “[n]o person shall be regarded as . . . a person of good
9 Defendants’ reliance on Ajlani v. Chertoff, 545 F.3d 299 (2d Cir. 2008) is misplaced, as the plaintiff in that case was not an honorably discharged military veteran who fell within the exception provided by 8 U.S.C. § 1440. See [Dkt. #491, Defs.’ Memo. at 17; Dkt. #53, Defs.’ Reply at 8]. 22

moral character who, during the period for which good moral character is required to be established, is or was . . . convicted of an aggravated felony . . . .” Finally, 8 C.F.R. § 103.2(b)(1) requires an applicant to show that he “is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication.”
Neither the statutes nor the regulation preclude the relief sought by the Plaintiff. While they make clear that an applicant must demonstrate good moral character up to the time of admission to citizenship, the very unique set of facts presented in this case renders the application of these requirements to the Plaintiff’s naturalization application far from certain. Specifically, the two-and-ahalf decade gap in between Plaintiff’s filing of his application and his commission of the aggravated felony raises the significant question of whether Plaintiff must demonstrate eligibility through the time the agency performs a long-belated court-ordered adjudication, or if instead, the Plaintiff need only show that he met all of the statutory requirements through the time in which he reasonably should have been granted citizenship, but was not. Indeed, at least one court in this Circuit ordered USCIS to adjudicate a naturalization application despite the applicant’s commission of an aggravated felony a decade after he submitted it. See Rivera v. U.S. Citizenship & Immigration Servs., 5 F. Supp. 3d 439, 440-41 (S.D.N.Y. 2014) (stating that in 1995, plaintiff filed an application for naturalization, in 2005, he pled guilty to conspiracy to distribute cocaine,10 in 2011, he filed a suit
10 Conspiracy to distribute cocaine is an “aggravated felony” under Title 8. See 8 U.S.C. §§ 1101(a)(43)(B), (U) (listing “[i]llicit trafficking in a controlled substance” as an aggravated felony offense and further stating that “an attempt or conspiracy to commit an offense described in this paragraph” is independently an aggravated felony). 23

to compel the USCIS to issue a decision on his still-pending naturalization application, and the court ordered the agency to issue a decision).
In urging the Court to take a different position, the Defendants cite three cases, Nguyen v. USCIS, No. 1:09-cv-2211, 2010 WL 3521911 (M.D. Pa. 2010), Vernon v. Attorney General of the United States, 181 F. App’x 201 (3d Cir. 2006); Marquez-Almanazar v. INS, 418 F.3d 210 (2d Cir. 2005). See [Dkt. #49-1, Defs.’ Memo. at 21-22; Dkt. #53, Defs.’ Reply at 10-11]. None of them compel a different result.
In Nguyen, the petitioner sought nunc pro tunc relief to file, for the first time, a naturalization application following a series of arrests which led to a final order of removal. Nguyen, 2010 WL 3521911 at **1, 4. While the petitioner’s father did file a certificate of citizenship for his children, including the petitioner, the certificate predated the petitioner’s arrests and removal order, and it was never adjudicated, the petitioner conceded that he did not meet the requirements for derivative citizenship at the time his father filed the application. Id. at *6. Indeed, at no point was the petitioner eligible for derivative citizenship because he was already eighteen years old by the time his mother naturalized. Id. at *1. Nothing on the record before this Court suggests that the Plaintiff was ineligible for citizenship within a reasonable time after his citizenship application was filed. On the contrary, the record establishes that he was eligible for years after he filed his application, arguably more than a reasonable time after it was filed, and for many years before he sustained the convictions which led to his deportation.
Vernon likewise does not support the Defendants’ position. There, the plaintiff, after being honorably discharged, filed a naturalization application on
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August 5, 1986. Vernon, 181 F. App’x, at 202. The agency scheduled an examination date for January 8, 1987, but the plaintiff did not appear, as he claimed that he was never notified of the date. Id. Twelve days later, on January 20, 1987, the INS closed his naturalization proceedings. Id. Many years later, after a series of minor offenses, the plaintiff was convicted under the felon-inpossession statute, an aggravated felony. Id. While the court declined to order the INS to complete its naturalization adjudication nunc pro tunc, it did not do so on the basis of the plaintiff’s aggravated felony. Id. at 203. Instead, in this unreported decision, the Third Circuit declined to order a nunc pro tunc review because the plaintiff “offer[ed] no excuse or explanation as to why he never sought clarification or reconsideration of his application for naturalization from the time he filed it in 1986 until he raised it as an issue . . . seventeen years later.” Id. While the Court recognizes that the Plaintiff bears some of the responsibility for the decades-long delay in resolving his naturalization application, it declines to adopt the position taken in Vernon, a non-binding decision, given the INS’s multiple violations of the APA in the course of its review of Plaintiff’s application.
Further, the Plaintiff’s last communication with INS indicated that he thought his application was still under consideration and that he had satisfied all of the application requirements by presenting evidence that his prosecution had been suspended. The legal significance of a nolle prosequi is often misconstrued by lay persons and misperceived to be a final resolution of their case. Thus, the Plaintiff’s impression, albeit wrong, was not unreasonable, and unlike in Vernon, there is no clear evidence that the Plaintiff abandoned his application for citizenship.
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Finally, in Marquez-Almanazar, the plaintiff, an honorably-discharged veteran, filed a naturalization application after removal proceedings had already begun. Marquez-Almanazar, 418 F.3d at 213. The removal action was predicated on the plaintiff’s prior conviction for possession and attempting to sell cocaine, an aggravated felony under the immigration statutes. Id. at 212. Thus, the aggravated felony predated his naturalization application, and the Second Circuit simply held that the relaxed requirements for certain military personnel prescribed in 8 U.S.C. § 1440 did not extend to the standards governing the good moral character requirement. See id. at 219. The present case is clearly distinguishable, as the Plaintiff here did not seek citizenship to avert deportation, but rather, he sought citizenship many years before he could have had any inkling that he would be deported.
In a case such as this one, construing the applicable statutes and regulations as requiring an applicant to demonstrate naturalization eligibility for decades beyond when their application should have been adjudicated and they should have attained citizenship could be highly prejudicial, particularly where the agency engaged in significant undue delay. However, the Court finds that the questions of how to interpret these statutes and regulations in the context of this case and what information the agency can and should consider in adjudicating the Plaintiff’s naturalization application should be resolved by the agency on remand. C. Neither of the Defendants’ Affirmative Defenses Succeed
Defendants raise the statute of limitations and the doctrine of laches, each of which they claim bars the relief Plaintiff seeks. However, under the law of this
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Circuit, neither of these doctrines is applicable. Absent a defined statute of limitations period, a civil action against an
agency of the United States must be filed within six years “after the right of action first accrues.” 28 U.S.C. § 2401(a). With regard to procedural violations brought under the APA, the statute of limitations for such claims does not begin to run until the agency action becomes final. 5 U.S.C. § 704; see also Sai Kwan Wong v. Doar, 571 F.3d 247, 263 (2d Cir. 2009). In determining whether an agency action is sufficiently final to trigger the running of the statute of limitations, the “core question” is “whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.” Dalton v. Spector, 511 U.S. 462, 470, 114 S. Ct. 1719, 1725 (1994) (quoting Franklin v. Massachusetts, 505 U.S. 788, 797 112 S. Ct. 2767, 2773 (1992)). As explained above, Plaintiff’s naturalization application is still pending and has not been adjudicated. No decision, final or otherwise, has been made on it. Plaintiff’s application was designated “nonfiled,” reopened, and at some point years later, his file was “archived” without ever being denied and without ever notifying Plaintiff. Accordingly, the statute of limitations has not yet commenced, let alone run on Plaintiff’s claim. The Plaintiff cannot equitably be expected to challenge agency action of which he was never made aware, especially in a circumstance like this in which there was no specified deadline by which the agency was required to act. To hold otherwise would create a statute of limitations trap.
Defendants’ laches defense similarly fails. First, there is some authority in this Circuit holding that because the statute of limitations in this action has not run, a laches defense is unavailable. See U.S. v. RePass, 688 F.2d 154, 158 (2d
27

Cir. 1982) (“Laches is not a defense to an action filed within the applicable statute of limitations.”); Harris Trust & Sav. Bank v. John Hancock Mut. Life Ins. Co., No. 83 Civ. 5401 (DC), 1997 WL 278116, at *3 (S.D.N.Y. May 23, 1997) (Chin, J.) (“[I]t is the law of this Circuit that laches may not be asserted as a defense if the applicable statute of limitations has not run.”). At the very least, the fact that the statute of limitations has not yet even begun to run is “an important determinant in the application of a laches defense.” Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 191 (2d Cir. 1996). Indeed, the Second Circuit has expressly rejected efforts by the government to assert the defense in connection with claims subject to the general six-year statute of limitations for suits against the United States when the limitations period had not yet run. See Ikelionwu v. United States, 150 F.3d 233, 237-38 (2d Cir. 1998) (reversing district court’s dismissal of suit challenging government seizure of personal property on laches grounds and stating that “[i]t is also not without significance that [plaintiff’s] claim is timely under the applicable statute of limitations”).
Second, even if the fact that the limitations period has not yet run does not alone preclude a laches defense, the Defendants remain unable to avail themselves of it. “Laches is based on the maxim, ‘vigilantibus non dormientibus aequitas subvenit,’ meaning ‘equity aids the vigilant, not those who sleep on their rights.’” Ikelionwu, 150 F.3d at 237 (citation and quotations omitted). “A party asserting the defense of laches must establish that: (1) the plaintiff knew of the defendant’s misconduct; (2) the plaintiff inexcusably delayed in taking action; and (3) the defendant was prejudiced by the delay.” Id. (citing Tri-Star Pictures, Inc. v. Leisure Time Prod., B.V., 17 F.3d 38, 44 (2d Cir. 1994)). However, laches is
28

an equitable defense that is “committed to the sound discretion of the trial judge.” Whitserve LLC v. GoDaddy.com, Inc., No. 3:11-cv-00948 (WGY), 2015 WL 4464476, at *4 (D. Conn. Jul. 21, 2015). Accordingly, courts have declined to apply the defense when the party seeking to invoke it has contributed to the inexcusable delay. See Clarke v. Commc’ns Workers of Am., 318 F. Supp. 2d 48, 57-58 (E.D.N.Y. 2004) (citing King v. Innovation Books, 976 F.2d 824, 833 (2d Cir. 1992)). Here, the failure of the agency to notify Plaintiff, at any point, that his application had been designated non-filed, deemed abandoned, or archived, materially contributed to the extensive delay in Plaintiff’s bringing this case. This appears to be a case in which both parties have acted in a dilatory manner, and thus, neither should be able to seek refuge in a doctrine that “aids the vigilant.” Ikelionwu, 150 F.3d at 237 (citation and quotations omitted).
Finally, the INS inquiry into the status of the Plaintiff’s criminal prosecution and eligibility for citizenship was wanting. Under Connecticut law, a nolle prosequi ripens into a dismissal and an erasure thirteen months after it is entered, provided that the individual charged does not violate the law. See Cislo v. City of Shelton, 240 Conn. 590, 607, 692 A.2d 1255, 1264-65 (Conn. 1997) (“[T]he legislature in 1973 and 1974 . . . perceived that . . . some additional procedural protection for a defendant whose case had been nolled was necessary, namely, the automatic erasure of records of nolled cases . . . following the requisite thirteen month period,” which has “the same practical effect as would the immediate erasure of records in dismissed cases . . . .”); see also Conn. Gen. Stat. § 54-142a(c)(1). Thus, INS could have determined the Plaintiff’s eligibility for citizenship by commissioning a criminal records check. If such a check revealed
29

that the Plaintiff had not been charged with a criminal offense subsequent to the entry of the nolle, the INS would have known that the charges had been dismissed and the Plaintiff was eligible for citizenship. Here, the INS’s inquiry into the status of the Plaintiff’s criminal offense was lacking, depriving the INS of the equitable defense of laches. IV. Conclusion
For the foregoing reasons, the Court assumes jurisdiction over this matter, GRANTS Plaintiff’s Cross-Motion for Summary Judgment, DENIES the Defendants’ Motion to Dismiss or in the Alternative for Summary Judgment, REMANDS this matter back to Defendant USCIS, and ORDERS the agency to perform all acts necessary to enable review of Plaintiff’s application and to render a timely decision on Plaintiff’s naturalization application.
IT IS SO ORDERED, ADJUDGED AND DECREED, this 17th day of March 2016, Hartford, Connecticut
_________/s/______________ Vanessa L. Bryant, United States District Judge
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 Case: 3:13-cv-1670 As of: 11/05/2017 08:48 PM EST 1 of 7
CLOSED,EFILE
U.S. District Court United States District Court for the District of Connecticut (New Haven)
CIVIL DOCKET FOR CASE #: 3:13−cv−01670−VLB

Giammarco v. Beers et al Assigned to: Judge Vanessa L. Bryant Cause: 05:702 Administrative Procedure Act
Plaintiff Arnaldo Giammarco

Date Filed: 11/12/2013 Date Terminated: 09/17/2014 Jury Demand: None Nature of Suit: 462 Naturalization Application Jurisdiction: U.S. Government Defendant
represented by Michael J. Wishnie Jerome N. Frank Legal Services − Wall St Yale Law School 127 Wall Street New Haven, CT 06511 203−432−4800 Fax: 203−432−1426 Email: michael.wishnie@yale.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Parkin Jerome N. Frank Legal Services Organization Yale Law School PO Box 209090 New Haven, CT 06520−9090 203−432−4800 Fax: 203−432−1426 Email: jason.parkin@yale.edu ATTORNEY TO BE NOTICED

V. Defendant Rand Beers Acting Secretary,Department of Homeland Security
Defendant Alejandro Mayorkas Director, U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services Defendant James Comey Director, Federal Bureau of Investigation,

represented by Carolyn Aiko Ikari U.S. Attorney's Office−HFD 450 Main St. Room 328 Hartford, CT 06103 860−760−7953 Fax: 860−760−7979 Email: carolyn.ikari@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carolyn Aiko Ikari (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carolyn Aiko Ikari (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:13-cv-1670 As of: 11/05/2017 08:48 PM EST 2 of 7

Date Filed 11/12/2013
11/12/2013 11/12/2013 11/12/2013 11/12/2013 11/12/2013
11/12/2013 11/12/2013 11/12/2013
11/12/2013
11/12/2013
11/13/2013
01/17/2014 01/17/2014 01/27/2014
01/27/2014

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $400 receipt number 0205−3061344.), filed by Arnaldo Giammarco.(Wishnie, Michael) (Additional attachment(s) added on 11/12/2013: # 1 REPLACEMENT PDF) (Torres, K.). (Entered: 11/12/2013)
2 Docket Entry Correction re 1 Complaint−− original pdf was unsigned. (Torres, K.) (Entered: 11/12/2013)
Request for Clerk to issue summons as to All Defendants. (Wishnie, Michael) (Entered: 11/12/2013)
Judge Vanessa L. Bryant added. (Malone, P.) (Entered: 11/12/2013)
3 ELECTRONIC FILING ORDER − PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER: Signed by Judge Vanessa L. Bryant on 11/12/2013.(Grady, B.) (Entered: 11/12/2013)
4 ORDER RE: Judge's Chambers Practices. Counsel are directed to read and comply with the Chambers Practices and Standing Orders prior to filing any document. So ordered. Signed by Judge Vanessa L. Bryant on 11/12/2013.(Grady, B.) (Entered: 11/12/2013)
5 STANDING PROTECTIVE ORDER: Signed by Judge Vanessa L. Bryant on 11/12/2013.(Grady, B.) (Entered: 11/12/2013)
6 ENTERED IN ERROR . . . Notice to Counsel and Pro Se Parties. Signed by Clerk on 11/12/2013.(Grady, B.) Modified on 11/13/2013 (Grady, B.). (Entered: 11/12/2013)
7 ELECTRONIC SUMMONS ISSUED in accordance with Fed. R. Civ. P. 4 and LR 4 as to *Rand Beers* with answer to complaint due within *60* days. Attorney *Michael J. Wishnie* *Jerome N. Frank Legal Services − Wall St* *Yale Law School, 127 Wall Street* *New Haven, CT 06511*. (Grady, B.) (Entered: 11/12/2013)
8 ELECTRONIC SUMMONS ISSUED in accordance with Fed. R. Civ. P. 4 and LR 4 as to *James Comey* with answer to complaint due within *60* days. Attorney *Michael J. Wishnie* *Jerome N. Frank Legal Services − Wall St* *Yale Law School, 127 Wall Street* *New Haven, CT 06511*. (Grady, B.) (Entered: 11/12/2013)
9 ELECTRONIC SUMMONS ISSUED in accordance with Fed. R. Civ. P. 4 and LR 4 as to *Alejandro Mayorkas* with answer to complaint due within *60* days. Attorney *Michael J. Wishnie* *Jerome N. Frank Legal Services − Wall St* *Yale Law School, 127 Wall Street* *New Haven, CT 06511*. (Grady, B.) (Entered: 11/12/2013)
10 NOTICE TO COUNSEL: Counsel initiating or removing this action is responsible for serving all parties with attached documents and copies of 1 Complaint filed by Arnaldo Giammarco, 4 Order Re: Chambers Practices, 3 Electronic Filing Order, 5 Protective Order. Signed by Clerk on 11/13/2013.(Grady, B.) (Entered: 11/13/2013)
11 NOTICE of Appearance by Carolyn Aiko Ikari on behalf of Rand Beers, James Comey, Alejandro Mayorkas (Ikari, Carolyn) (Entered: 01/17/2014)
12 Joint MOTION for Scheduling Order by Rand Beers, James Comey, Arnaldo Giammarco, Alejandro Mayorkas. (Ikari, Carolyn) (Entered: 01/17/2014)
13 ORDER granting in part and denying in part 12 Motion for Scheduling Order. To the extent that this motion requests a 30 day extension until February 18, 2014 for the defendants to answer or otherwise respond to plaintiff's complaint, such request is GRANTED. To the extent that this motion requests that the Court enter a scheduling order, the motion is DENIED for failure to comply with Federal Rule of Civil Procedure 26(f). Signed by Judge Vanessa L. Bryant on 1/27/14. (Ives, D) (Entered: 01/27/2014)
Answer deadline updated for Rand Beers to 2/18/2014; James Comey to 2/18/2014; Alejandro Mayorkas to 2/18/2014. See order dkt# 13 . (LaLone, L.) (Entered: 01/28/2014)

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02/12/2014 02/13/2014 02/18/2014 02/19/2014 02/19/2014 02/21/2014
02/27/2014 03/03/2014
03/10/2014 03/11/2014 03/11/2014 03/27/2014
03/27/2014
04/11/2014 04/14/2014 04/14/2014

14 MOTION for Leave to Appear Law Student Interns Attorney Sung Jin, Steven Seigel, Elizabeth Song, Sam Thypin−Bermeo. by Arnaldo Giammarco. (Attachments: # 1 Exhibit)(Wishnie, Michael) (Entered: 02/12/2014)
15 ORDER granting 14 Motion for Leave to Appear Law Student Interns Attorney Sung Jin, Steven Seigel, Elizabeth Song, Sam Thypin−Bermeo. Signed by Judge Vanessa L. Bryant on 2/13/14. (LaLone, L.) (Entered: 02/13/2014)
16 Consent MOTION for Extension of Time until February 21, 2014 to respond to the Complaint by Rand Beers, James Comey, Alejandro Mayorkas. (Ikari, Carolyn) (Entered: 02/18/2014)
17 ORDER granting 16 Motion for Extension of Time until February 21, 2014 to respond to the Complaint. Signed by Judge Vanessa L. Bryant on 2/19/14. (Ives, D) (Entered: 02/19/2014)
Answer deadline updated for Rand Beers to 2/21/2014; James Comey to 2/21/2014; Alejandro Mayorkas to 2/21/2014. See order dkt# 17 (LaLone, L.) (Entered: 02/21/2014)
18 MOTION to Dismiss , MOTION for Summary Judgment by Rand Beers, James Comey, Alejandro Mayorkas.Responses due by 3/14/2014 (Attachments: # 1 Memorandum in Support, # 2 Statement of Material Facts Not in Dispute, # 3 Exhibit 1 to 10, # 4 Exhibit 11 to 17 and 200 to 201, # 5 Appendix of Historical Statutes and Regulations)(Ikari, Carolyn) (Entered: 02/21/2014)
19 REPORT of Rule 26(f) Planning Meeting. (Wishnie, Michael) (Entered: 02/27/2014)
20 SCHEDULING ORDER: The parties have represented in their 19 Report of Rule 26(f) Planning Meeting that no discovery is needed and that this matter can be resolved through dispositive motion practice. The Court will therefore not set deadlines in anticipation of trial at this time. Signed by Judge Vanessa L. Bryant on 3/3/14. (Ives, D) (Entered: 03/03/2014)
21 Consent MOTION for Extension of Time until March 27, 2014 to file a response to the Government's Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment by Arnaldo Giammarco. (Wishnie, Michael) (Entered: 03/10/2014)
22 ORDER granting 21 Motion for Extension of Time until March 27, 2014 to file a response to the Government's Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment. Signed by Judge Vanessa L. Bryant on 3/11/14. (LaLone, L.) (Entered: 03/11/2014)
Set/Reset Deadlines as to 18 MOTION to Dismiss MOTION for Summary Judgment. Responses due by 3/27/2014 (LaLone, L.) (Entered: 03/11/2014)
23 Cross MOTION for Summary Judgment by Arnaldo Giammarco.Responses due by 4/17/2014 (Attachments: # 1 Memorandum in Support, # 2 Statement of Material Facts 56(a)1 Statement, # 3 A. Giammarco Declaration, # 4 L. Giammarco Declaration, # 5 E. Giammarco Declaration, # 6 Song Declaration and Exhibits A−L, # 7 Appendix)(Wishnie, Michael) (Entered: 03/27/2014)
24 Memorandum in Opposition re 18 MOTION to Dismiss MOTION for Summary Judgment filed by Arnaldo Giammarco. (Attachments: # 1 Statement of Material Facts 56(a)2, # 2 A. Giammarco Declaration, # 3 L. Giammarco Declaration, # 4 E. Giammarco Declaration, # 5 Song Declaration and Exhibits A−L, # 6 Appendix)(Wishnie, Michael) (Entered: 03/27/2014)
25 MOTION for Extension of Time to File Response/Reply as to 23 Cross MOTION for Summary Judgment until April 22, 2014 by Rand Beers, James Comey, Alejandro Mayorkas. (Ikari, Carolyn) (Entered: 04/11/2014)
26 ORDER granting 25 Motion for Extension of Time until April 22, 2014 for the Defendants to File Response/Reply as to the Plaintiff's 23 Cross MOTION for Summary Judgment. Signed by Judge Vanessa L. Bryant on 4/14/14. (Ives, D) (Entered: 04/14/2014)
Set/Reset Deadlines as to 23 Cross MOTION for Summary Judgment. Responses due by 4/22/2014. See order 26 (LaLone, L.) (Entered: 04/14/2014)

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04/14/2014 04/22/2014
04/22/2014 04/25/2014 04/28/2014 04/28/2014
05/03/2014 09/17/2014

Set/Reset Deadlines as to 23 Cross MOTION for Summary Judgment. Responses due by 4/22/2014. See order 26 . (LaLone, L.) (Entered: 04/15/2014)
27 Memorandum in Opposition re 23 Cross MOTION for Summary Judgment filed by Rand Beers, James Comey, Alejandro Mayorkas. (Attachments: # 1 Statement of Material Facts, # 2 Exhibit 18 Warrant application, # 3 Exhibit 19 Rap sheet)(Ikari, Carolyn) (Entered: 04/22/2014)
28 REPLY to Response to 18 MOTION to Dismiss MOTION for Summary Judgment filed by Rand Beers, James Comey, Alejandro Mayorkas. (Ikari, Carolyn) (Entered: 04/22/2014)
29 Consent MOTION for Extension of Time until 5/9/2014 TO FILE REPLY BRIEF IN SUPPORT OF PLAINTIFFS CROSS−MOTION FOR SUMMARY JUDGMENT by Arnaldo Giammarco. (Wishnie, Michael) (Entered: 04/25/2014)
30 ORDER granting 29 Motion for Extension of Time until 5/9/2014 for the Plaintiff to file a reply in further support of motion. Signed by Judge Vanessa L. Bryant on 4/28/14. (Ives, D) (Entered: 04/28/2014)
31 SUMMONS Returned Executed by Arnaldo Giammarco. Rand Beers served on 11/15/2013, answer due 1/14/2014; James Comey served on 11/15/2013, answer due 1/14/2014; Alejandro Mayorkas served on 11/15/2013, answer due 1/14/2014. (Wishnie, Michael) Modified on 4/29/2014 to change event (Grady, B.). (Entered: 04/28/2014)
32 REPLY to Response to 23 Cross MOTION for Summary Judgment filed by Arnaldo Giammarco. (Wishnie, Michael) (Entered: 05/03/2014)
33 ORDER: Order sua sponte DISMISSING Plaintiff's 1 complaint for lack of subject matter jurisdiction, as Plaintiff's claim constitutes a challenge to an order of removal and therefore may only be heard by the appropriate court of appeals under 8 U.S.C. § 1252(a)(5).

The Court may sua sponte raise a challenge to subject matter jurisdiction at any time. Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 107−108 (2d Cir. 1997). The REAL ID Act of 2005 divests federal district courts of subject matter jurisdiction to review challenges to removal orders. See 8 U.S.C. § 1252(a)(5). The Second Circuit has ruled that this jurisdictional bar precludes district courts from hearing both direct and indirect challenges to removal orders. Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011). Here, Plaintiff asks the Court to compel Defendants to adjudicate his naturalization application nunc pro tunc, and if this application is approved, Plaintiff's removal order would be invalid. The adjudication of his naturalization application is thus a necessary prerequisite to Plaintiff's ultimate goal of challenging his removal from the U.S. See Delgado, 645 F.3d at 55. Even if the relief sought from the Court would not directly invalidate Plaintiff's removal, the "substance of the relief" Plaintiff seeks is "inextricably linked" to his removal order and therefore the Court does not have jurisdiction over those claims. Id.; see also, e.g., Bici v. Napolitano, 2012 WL 642781, at *2 (D. Conn. Feb. 28, 2012); Nieto−Ayala v. Holder, 2011 WL 3918156, at *4 (S.D.N.Y. Aug. 30, 2011).

09/17/2014 09/17/2014

The 1 complaint is DISMISSED without prejudice to filing a motion to vacate by 10/8/2014 that is supported by a memorandum of law establishing that this Court has jurisdiction. Should a motion to vacate be filed, Defendants shall file any opposition within 14 days of the filing of such motion. Signed by Judge Vanessa L. Bryant on 9/17/14.(De Palma, C) (Entered: 09/17/2014)
34 ORDER denying as moot Defendants' 18 Motion to Dismiss or, in the alternative, Motion for Summary Judgment; and denying as moot Plaintiff's 23 Cross−Motion for Summary Judgment. See the Court's Order at Docket 33 . Signed by Judge Vanessa L. Bryant on 9/17/14. (De Palma, C) (Entered: 09/17/2014)
JUDICIAL PROCEEDINGS SURVEY: The following link to the confidential survey requires you to log into CM/ECF for SECURITY purposes. Once in CM/ECF you will be prompted for the case number. Although you are receiving this survey through CM/ECF, it is hosted on an independent website called SurveyMonkey. Once in SurveyMonkey, the survey is located in a secure account. The survey is not docketed

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10/08/2014 10/22/2014 11/05/2014 11/11/2014 11/13/2014 11/13/2014 12/28/2014
10/07/2015 11/04/2015 11/09/2015

and it is not sent directly to the judge. To ensure anonymity, completed surveys are held up to 90 days before they are sent to the judge for review. We hope you will take this opportunity to participate, please click on this link:
https://ecf.ctd.uscourts.gov/cgi−bin/Dispatch.pl?survey (LaLone, L.) (Entered: 09/18/2014)
35 MOTION to Vacate by Arnaldo Giammarco. (Attachments: # 1 Memorandum in Support)(Wishnie, Michael) (Entered: 10/08/2014)
36 Memorandum in Opposition re 35 MOTION to Vacate filed by Rand Beers, Alejandro Mayorkas. (Ikari, Carolyn) (Entered: 10/22/2014)
37 REPLY to Response to 35 MOTION to Vacate filed by Arnaldo Giammarco. (Wishnie, Michael) (Entered: 11/05/2014)
38 NOTICE OF APPEAL by Arnaldo Giammarco. Filing fee $ 505, receipt number 0205−3417379. (Wishnie, Michael) (Entered: 11/11/2014)
Request from USCA for record made via email regarding 38 Notice of Appeal. (Grady, B.) (Entered: 11/13/2014)
Emailed Record on Appeal consisting of document 38 to US Court of Appeals, re: 38 Notice of Appeal. (Grady, B.) (Entered: 11/13/2014)
39 Index to Record on Appeal by Arnaldo Giammarco re 38 Notice of Appeal, Appeal Record Sent to USCA, USCA Request, 6 Electronic Filing Order, 34 Order on Motion to Dismiss,, Order on Motion for Summary Judgment,,, 1 Complaint, 7 Electronic Summons Issued, 33 Order,,,,,,,, 10 Electronic Service Documents, 27 Memorandum in Opposition to Motion, 21 Consent MOTION for Extension of Time until March 27, 2014 to file a response to the Government's Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment, 2 Docket Annotation, 20 Scheduling Order, 19 Report of Rule 26(f) Planning Meeting, 8 Electronic Summons Issued, 5 Protective Order, 22 Order on Motion for Extension of Time, 25 MOTION for Extension of Time to File Response/Reply as to 23 Cross MOTION for Summary Judgment until April 22, 2014, 14 MOTION for Leave to Appear Law Student Interns Attorney Sung Jin, Steven Seigel, Elizabeth Song, Sam Thypin−Bermeo., 17 Order on Motion for Extension of Time, 37 Reply to Response to Motion, 9 Electronic Summons Issued, 36 Memorandum in Opposition to Motion, 18 MOTION to Dismiss MOTION for Summary Judgment , 15 Order on Motion to Appear, 30 Order on Motion for Extension of Time, 13 Order on Motion for Order, 29 Consent MOTION for Extension of Time until 5/9/2014 TO FILE REPLY BRIEF IN SUPPORT OF PLAINTIFFS CROSS−MOTION FOR SUMMARY JUDGMENT, 4 Order Re: Chambers Practices, 35 MOTION to Vacate , 16 Consent MOTION for Extension of Time until February 21, 2014 to respond to the Complaint, 31 Affidavit of Service, 28 Reply to Response to Motion, 12 Joint MOTION for Scheduling Order, 3 Electronic Filing Order, 26 Order on Motion for Extension of Time to File Response/Reply to Motion, 23 Cross MOTION for Summary Judgment , 24 Memorandum in Opposition to Motion, 32 Reply to Response to Motion, 11 Notice of Appearance. For docket entries without a hyperlink, contact the court to arrange for the document(s) to be made available to you. (Wishnie, Michael) (Entered: 12/28/2014)
40 NOTICE by Arnaldo Giammarco re 35 MOTION to Vacate (Attachments: # 1 Exhibit Second Circuit Order)(Wishnie, Michael) (Entered: 10/07/2015)
41 NOTICE by Arnaldo Giammarco, re: 35 Motion to Vacate (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Wishnie, Michael) Modified on 11/5/2015 to link to document (Grady, B.). Modified on 11/5/2015 to create association (Grady, B.). (Entered: 11/04/2015)
42 ORDER granting Plaintiff's 35 Motion to Vacate. Upon a closer review of Delgado v. Quarantillo, 643 F.3d 52 (2d Cir. 2011), the Court finds the case arguably distinguishable from the present matter, insofar as the plaintiff in that case was already deportable and subject to a "lifetime bar on admission" prior to her filing her Form I−212 application. Id. at 54. Here, Plaintiff's naturalization application long predated both the removal proceedings and the conduct underlying them. In addition, the lifetime bar on admission to which the plaintiff in Delgado was subject is not

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11/11/2015 11/12/2015 11/18/2015 11/20/2015 11/20/2015 11/23/2015
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11/25/2015
12/02/2015 12/02/2015 12/03/2015 12/07/2015 03/17/2016

applicable here. Accordingly, it is not certain that any action taken with respect to Plaintiff's naturalization application will render the removal order "invalid," such that the application is inextricably linked to the removal order. Id. at 55. Accordingly, Plaintiff's motion is GRANTED and the Court retains subject matter jurisdiction over this case. Signed by Judge Vanessa L. Bryant on 11/9/2015. (Nadler, S.) (Entered: 11/09/2015)
43 MOTION for Leave to Appear Law Student Interns Attorney Jonathan Hurley, Aaron Korthuis, Claire Simonich. by Arnaldo Giammarco. (Wishnie, Michael) (Entered: 11/11/2015)
44 ORDER granting Plaintiff's 43 Motion for Law Student Interns to Appear. Signed by Judge Vanessa L. Bryant on 11/12/2015. (Nadler, S.) (Entered: 11/12/2015)
47 MANDATE of USCA dated 11/18/2015 withdrawing 38 Notice of Appeal (Grady, B.) (Entered: 11/23/2015)
45 NOTICE of Appearance by Jason Parkin on behalf of Arnaldo Giammarco (Parkin, Jason) (Entered: 11/20/2015)
46 Joint STATUS REPORT and Proposed Scheduling Order by Arnaldo Giammarco. (Wishnie, Michael) (Entered: 11/20/2015)
48 AMENDED SCHEDULING ORDER: The parties shall refile their prior dispositive motions and briefs by 11/25/2015. Supplemental briefing, not to exceed 10 pages per party, shall be filed on or before 12/7/2015. Signed by Judge Vanessa L. Bryant on 11/23/2015.(Nadler, S.) (Entered: 11/23/2015)
Set Deadlines/Hearings: Dispositive Motions due by 12/7/2015 (Blue, A.) (Entered: 11/24/2015)
49 MOTION to Dismiss , MOTION for Summary Judgment by Rand Beers, James Comey, Alejandro Mayorkas.Responses due by 12/15/2015 (Attachments: # 1 Memorandum in Support, # 2 Statement of Material Facts Not in Dispute, # 3 Exhibit #1 − 10, # 4 Exhibit #11 − 17 and 200−201, # 5 Appendix of Historical Statutes and Regulations)(Ikari, Carolyn) (Entered: 11/24/2015)
50 Cross MOTION for Summary Judgment by Arnaldo Giammarco.Responses due by 12/16/2015 (Attachments: # 1 Memorandum in Support, # 2 Statement of Material Facts Rule 56(a)(1) Statement, # 3 A. Giammarco Declaration, # 4 L. Giammarco Declaration, # 5 E. Giammarco Declaration, # 6 Song Declaration and Exhibits A−L, # 7 Appendix)(Wishnie, Michael) (Entered: 11/25/2015)
51 Memorandum in Opposition re 49 MOTION to Dismiss MOTION for Summary Judgment filed by Arnaldo Giammarco. (Attachments: # 1 Statement of Material Facts Rule 56(a)(2) Statement, # 2 A. Giammarco Declaration, # 3 L. Giammarco Declaration, # 4 E. Giammarco Declaration, # 5 Song Declaration and Exhibits A−L, # 6 Appendix)(Wishnie, Michael) (Entered: 11/25/2015)
52 Memorandum in Opposition re 50 Cross MOTION for Summary Judgment filed by Rand Beers, James Comey, Alejandro Mayorkas. (Attachments: # 1 Statement of Material Facts, # 2 Exhibit 18, # 3 Exhibit 19)(Ikari, Carolyn) (Entered: 12/02/2015)
53 REPLY to Response to 49 MOTION to Dismiss MOTION for Summary Judgment (N.B. mirror image pleading to doc. #52) filed by Rand Beers, James Comey, Alejandro Mayorkas. (Ikari, Carolyn) (Entered: 12/02/2015)
54 REPLY to Response to 50 Cross MOTION for Summary Judgment filed by Arnaldo Giammarco. (Wishnie, Michael) (Entered: 12/03/2015)
55 Supplemental RESPONSE re 50 Cross MOTION for Summary Judgment , 49 MOTION to Dismiss MOTION for Summary Judgment filed by Arnaldo Giammarco. (Wishnie, Michael) (Entered: 12/07/2015)
56 ORDER DENYING Defendants' 49 Motion to Dismiss, or in the alternative, for Summary Judgment and GRANTING Plaintiff's 50 Cross−Motion for Summary Judgment. See attached Memorandum of Decision. The Clerk is directed to enter judgment in favor of Plaintiff and to remand this matter, in accordance with the Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 3/17/2016. (Nadler,

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03/17/2016
03/17/2016 03/22/2016
05/12/2016 10/25/2016 11/17/2016 11/21/2016 03/24/2017 03/27/2017

S.) (Entered: 03/17/2016)
57 VACATED ORDER TO SHOW CAUSE: By 3/22/2016, the parties are ORDERED to show cause why the State of Connecticut or an entity thereof need not be joined as a necessary party to this action. Signed by Judge Vanessa L. Bryant on 3/17/2016.(Nadler, S.) Modified on 3/22/2016 (Fernandez, C.). (Entered: 03/17/2016)
58 ORDER VACATING 57 Order to Show Cause. This entry was in error. Signed by Judge Vanessa L. Bryant on 3/17/2016.(Nadler, S.) (Entered: 03/17/2016)
59 JUDGMENT entered in favor of Arnaldo Giammarco against Alejandro Mayorkas, James Comey, Rand Beers.
For Appeal Forms please go to the following website: http://www.ctd.uscourts.gov/forms/all−forms/appeals_forms Signed by Clerk on 03/22/16.(Fernandez, C.) (Entered: 03/22/2016)
60 NOTICE OF APPEAL as to 56 Order on Motion to Dismiss,, Order on Motion for Summary Judgment,,, by Rand Beers, Alejandro Mayorkas. (Ikari, Carolyn) (Entered: 05/12/2016)
61 MANDATE of USCA dated 10/25/2016 granting a voluntary Dismissal of 60 Notice of Appeal. (Shafer, J.) (Entered: 10/25/2016)
62 MOTION for Extension of Time until 12/24/16 To Petition for Attorney's Fees by Arnaldo Giammarco. (Wishnie, Michael) (Entered: 11/17/2016)
63 ORDER granting 62 Motion for Extension of Time for good cause shown under Local Rule of Civil Procedure 7(b). Plaintiff's application for attorney's fees and expenses is due December 27, 2016. Signed by Judge Vanessa L. Bryant on 11/21/2016. (Hudson, C) (Entered: 11/21/2016)
64 STIPULATION of Dismissal of Plaintiff by Rand Beers, James Comey, Alejandro Mayorkas. (Ikari, Carolyn) (Entered: 03/24/2017)
65 ORDER DISMISSING CASE. Pursuant to Rule 41(a)(1), Fed. R. Civ. P., and the party stipulation, this case is hereby dismissed with prejudice, each party to bear its own costs and attorney's fees. The Court retains jurisdiction solely to enforce the terms of the Settlement Agreement. Signed by Judge Vanessa L. Bryant on 03/26/17.(Fernandez, C.) (Entered: 03/27/2017)