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26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MOSHEN MOHAMED MUSAED SAID, et al.,

Plaintiffs,

v.

ALBERTO R. GONZALES, et al.,

Defendants.

NO. C06-986P

ORDER

On August 22, 2006, the Court ordered Defendants to show cause why Plaintiffs’

naturalization applications should not be immediately approved by the Court. The Court has reviewed

Defendants’ response to the order to show cause and Plaintiffs’ reply. This order memorializes and

supplements the oral ruling that the Court issued on this matter at a hearing held on September 18,

2006.

(1) Background. Plaintiffs Moshen Mohamed Musaed Said, Yelena Nekrashevich, Oleg

Nekrashevich, and Mina Tamrazi filed this action on July 14, 2006. Plaintiffs allege that Defendants

failed to issue a decision on their naturalization applications within 120 days after the day of the

examinations on their applications. Plaintiffs’ complaint is based on 8 U.S.C. § 1447(b), which

provides:

If there is a failure to make a determination [on a naturalization application] before the end of

the 120-day period after the date on which the [naturalization] examination is conducted . . . .,

the applicant may apply to the United States district court for the district in which the applicant

resides for a hearing on the matter. Such court has jurisdiction over the matter and may either

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26 ORDER - 2

determine the matter or remand the matter, with appropriate instructions, to the Service to

determine the matter.

Plaintiffs request that the Court grant their naturalization applications, give them their oaths of

citizenship, and order the U.S. Citizenship and Immigration Service (CIS) to promptly issue

certificates of naturalization. In the alternative, Plaintiffs ask the Court to remand this case and order

CIS to administer oaths of citizenship to Plaintiffs. 

Shortly after their complaint was filed, Plaintiffs moved for an order directing Defendants to

show cause why Plaintiffs’ naturalization applications should not be approved. The Court granted

Plaintiffs’ motion in part. The Court ordered Defendants to show cause by September 12, 2006 why

Plaintiffs’ naturalization applications should not be immediately approved. Specifically, the Court

directed Defendants to set forth “all reasons why Plaintiffs’ naturalization applications have not been

approved, all reasons why the Court should not approve the applications immediately, and (if

appropriate) a proposed plan for promptly deciding Plaintiffs’ naturalization applications.” (Dkt. No.

11 at 3). 

(2) Jurisdiction. All four Plaintiffs had their naturalization examinations more than 120

days before this complaint was filed. As a result, the Court finds that it has jurisdiction over this

matter under the plain language of 8 U.S.C. 1447(b). Defendants argue that the Court should follow

the reasoning of Danilov v. Aguirre, 370 F. Supp. 2d 441 (E.D. Va. 2005), and hold that the Court

lacks jurisdiction over this matter until 120 days after the Government completes its background

investigation of Plaintiffs. The Court declines to follow the reasoning of Danilov, which has been

rejected by numerous other district courts. See, e.g., Al-Kudsi v. Gonzales, 2006 WL 752556 (D. Or.

Mar. 22, 2006); Essa v. USCIS, 2005 WL 3440827 (D. Minn. Dec. 14, 2005); El-Daour v. Chertoff,

417 F. Supp.2d 679 (W.D. Pa. 2005). Instead, the Court follows “[t]he majority position,” which “is

that the word “examination” in § 1447(b) refers to the date of the examination interview with a CIS

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 The parties’ briefing did not explain what it means for a fingerprint background check to

“expire.” Based on counsel’s explanation at the hearing, it appears that Ms. Tamrazi previously

provided fingerprints for an FBI background check. However, that set of prints was not retained and

Mr. Tamrazi needed to provide a new set to conduct an updated background check. It is unclear why

the prints initially taken were not simply retained. 

ORDER - 3

officer, and not the entire ‘examination process.’” Daami v. Gonzales, 2006 WL 1457862 at * 5

(D.N.J. May 22, 2006). 

(3) Applications of Moshen Mohamed Musaed Said and Yelena Nekrashevich. The Court

finds that Defendants have provided no legitimate reason why the Court should not immediately

approve the naturalization applications of Moshen Mohamed Musaed Said and Yelena

Nekrashevich. Defendants indicate that all checks have been completed for these Plaintiffs, and

Defendants do not dispute Plaintiffs’ evidence that Mr. Said and Ms. Nekrashevich meet all the

requirements for citizenship. 

Therefore, consistent with its oral ruling on September 18, 2006, the Court finds that Mr. Said

and Ms. Nekrashevich meet all requirements of citizenship. The Court REMANDS this matter to the

United States Citizenship and Immigration Service with instructions to issue Certificates of

Naturalization to Mr. Said and Ms. Nekrashevich and to give Mr. Said and Ms. Nekrashevich their

oaths of citizenship no later than noon on September 22, 2006. If Mr. Said or Ms. Nekrashevich have

not been administered the oath of citizenship by that time, the Court will administer the oath at 4:00

p.m. on September 22, 2006.

(4) Application of Mina Tamrazi. In their response filed on September 11, 2006,

Defendants maintained that Plaintiff Mina Tamrazi’s naturalization application should not be

approved because her “fingerprint background check has expired” and that “[a] new fingerprint

background check of Ms. Tamrazi must be resolved prior to the adjudication of her application for

naturalization.”1 However, Ms. Tamrazi submitted new fingerprints on September 13, 2006, and

Defendants indicated at the hearing on September 18, 2006 that this concern is no longer an

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impediment to Ms. Tamrazi’s application. Defendants have not otherwise contested Plaintiffs’

evidence that Ms. Tamrazi meets all the requirements of citizenship. 

Therefore, consistent with its oral ruling, the Court finds that Ms. Tamrazi meets all

requirements of citizenship. The Court REMANDS this matter to the United States Citizenship and

Immigration Service with instructions to issue a Certificate of Naturalization to Ms. Tamrazi and to

give Ms. Tamrazi her oath of citizenship no later than noon on September 22, 2006. If Ms. Tamrazi

has not been administered the oath of citizenship by that time, the Court will administer the oath at

4:00 p.m. on September 22, 2006.

(5) Application of Oleg Nekrashevich. In their response to the Court’s order to show

cause, Defendants argued that Plaintiff Oleg Nekrashevich’s naturalization application should not be

immediately approved for two reasons. As with Ms. Tamrazi, Defendants indicated that his

“fingerprint background check” has expired. However, Mr. Nekrashevich submitted new fingerprints

on September 12, 2006, and it appears that this issue is no longer an impediment to his naturalization. 

Second, Defendants maintain that they need more time to evaluate a “name check response”

regarding Mr. Nekrashevich. To support this contention, Defendants have offered a declaration from

Julia Harrison, the Assistant District Director of the Seattle District office for CIS. Ms. Harrison

states:

[A] security check relating to Oleg Nekrashevich’s name was initiated on or about October 24,

2004, pursuant to procedures that were in effect on that date. The FBI Name Check Response

database indicates that the FBI processed the name check on August 14, 2006. The results of

the background check were transferred to USCIS on or about August 24, 2006.

On or about August 24, 2006, USCIS received the name check response regarding Oleg

Nekrashevich, which was the final outstanding security check. At the present time, USCIS is

assessing the sensitive information contained within the name check response. The information

raises issues requiring further inquiry before a decision can be rendered on the application for

naturalization. Therefore, USCIS requires a reasonable period of time to evaluate the name

check response, conduct further inquiry and resolve any outstanding issues.

(Dkt. No. 14 ¶¶ 9-10). At the hearing on September 18, 2006, Defendants’ counsel indicated that Ms.

Harrison obtained this information from a database. Defendants’ counsel could not provide more

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specific reasons why Mr. Nekrashevich’s name check response requires further inquiry. In response to

questioning from the Court, Defendants also provided little basis to support their contention that up to

60 days were needed to complete this inquiry.

Plaintiffs note that Defendants offer only the vaguest information to support their claim that

Mr. Nekrashevich’s name check response contains sensitive information that needs to be assessed

further. Plaintiffs maintain that the Court should find on the record before it that Mr. Nekrashevich

meets all the requirements for citizenship without further inquiry. Plaintiffs also point to 8 C.F.R. §

103.2(b)(16), which provides (with some exceptions) that before an adverse decision on a

naturalization application is made, CIS is required to inform the applicant of derogatory information of

which the applicant is unaware and to provide the applicant with an opportunity to rebut the

information. It should be noted, however, that there is an exception to this rule in cases involving

classified information. See 8 C.F.R. § 103.2(b)(16)(iv). 

Mr. Nekrashevich’s frustration with this extended process is understandable. Based on Ms.

Harrison’s declaration, it appears that the FBI took nearly two years to process his name check. The

Court also appreciates Mr. Nekrashevich’s concern about Defendants’ vague explanation of why his

name check response requires further inquiry. However, the Court gives due regard to CIS’s view

that this matter requires further inquiry by the agency, although there is little basis for the Court to find

that CIS needs as long as 60 days to complete this inquiry. 

Therefore, consistent with its oral ruling, the Court REMANDS Mr. Nekrashevich’s case to

CIS with the following instructions. CIS shall have until October 18, 2006 to complete its inquiry into

Mr. Nekrashevich’s name check response. If CIS determines that there is no barrier to naturalization,

CIS shall promptly report that information to the Court and to Plaintiffs’ counsel. If CIS has

information that presents a barrier to naturalization, CIS shall promptly inform the Court and Plaintiff

of the nature of the derogatory information that CIS believes would prevent naturalization. In the

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event that any derogatory information is considered classified, Defendants may seek leave to provide

that information to the Court for in camera review. 

Defendants are directed to provide the Court with a status report regarding Mr. Nekrashevich

no later than noon on October 18, 2006. The Court encourages Defendants to provide a status report

earlier if feasible. If Defendants inform the Court before noon on October 18th that there is no barrier

to Mr. Nekrashevich’s naturalization, the Court will instruct CIS to issue a Certificate of

Naturalization and to administer the oath of citizenship. If Defendants continue to maintain that there

is a problem with Mr. Nekrashevich’s name check response but provide no additional information to

support this contention by noon on October 18th, the Court will be prepared to approve Mr.

Nekrashevich’s naturalization application and to administer the oath of citizenship to him at 4:00 p.m.

on October 19, 2006.

(6) The clerk is directed to provide copies of this order to all counsel of record.

Date: September 21, 2006.

s/Marsha J. Pechman 

Marsha J. Pechman

United States District Judge

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