UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

 

MAZEN MOHAMMAD SHWEIKA, 

 Plaintiff, 

 Case No. 09-11781-BC 

v. Honorable Thomas L. Ludington 

DEPARTMENT OF HOMELAND 

SECURITY and DISTRICT DIRECTOR 

OF THE UNITED STATES CITIZENSHIP 

AND IMMIGRATION SERVICE, 

 Defendants. 

___________________________________/ 

OPINION AND ORDER DISMISSING COMPLAINT 

FOR LACK OF SUBJECT MATTER JURISDICTION

 This long-running immigration case began eight years ago, when Plaintiff Mazen 

Shweika filed an application for naturalization as a United States citizen. Three years passed. 

Defendant U.S. Citizenship and Immigration Services (“Agency”), the agency within Defendant 

Department of Homeland Security tasked with overseeing immigration, did not decide the 

application. So Plaintiff filed a mandamus action in this Court. In 2008, the Court remanded the 

case to the Agency for a decision. The Agency held a hearing on Plaintiff’s application, 

concluded that he was not of “good moral character,” and denied his application. Plaintiff 

requested that the Agency hold a “review hearing” pursuant to 8 U.S.C. § 1447(a). Ten months 

passed. Again, the Agency did not act on Plaintiff’s request. Plaintiff, all the while, remained a 

lawful, fully employed resident of the United States. 

In 2009, Plaintiff brought a second suit in this Court, seeking a writ of mandamus 

ordering the Agency to hold the review hearing or, alternatively, de novo review of his 

application pursuant to 8 U.S.C. § 1421(c). Before the Court addressed Plaintiff’s suit, the 

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Agency scheduled the review hearing. Plaintiff appeared. When the immigration officer began 

to ask questions on topics not raised at the first hearing, however, Plaintiff refused to answer and 

terminated the hearing on the advice of his (former) counsel. In March 2010, the Agency again 

denied Plaintiff’s application. Plaintiff then moved for de novo review. 

A bench trial was held over three days in 2011. For the reasons explained on the record, 

the Court found that Plaintiff demonstrated his “good moral character” by clear and convincing 

evidence. The Court reserved judgment, however, on a single legal issue, which the Court 

concluded merited supplemental briefing. Noting its continuing duty to ensure that it has 

jurisdiction and noting that Plaintiff terminated the Agency’s review hearing, the Court ordered 

the parties to brief: 

Whether, pursuant to 8 U.S.C. § 1421(c) and all applicable statutes and 

regulations, the Court lacks jurisdiction to grant Plaintiff’s application for 

naturalization because Plaintiff terminated the Defendant’s interview regarding 

the denial of Plaintiff’s naturalization application before the immigration officer 

had completed his examination of Plaintiff. 

ECF No. 48. The parties submitted supplemental briefs on the issue. ECF Nos. 49–52. It is thus 

ripe for resolution. 

As a preliminary matter, it should be noted, Plaintiff appears to be the first applicant for 

citizenship to have terminated a review hearing and then sought review in federal district court. 

Thus, the narrow question presented — what legal consequence, if any, flows from Plaintiff’s 

terminating the review hearing — appears to be an issue of first impression. The applicable 

statutes and regulations, however, establish that Plaintiff did not exhaust his administrative 

remedies. Consequently, this Court lacks the authority to rule on the merits of his application. 

Only “after a hearing before an immigration officer,” 8 U.S.C. § 1421(c) provides, may 

an applicant seek judicial review. As discussed below, the implication of this provision is that 

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the applicant must complete the hearing. Similarly, the applicable regulations provide that an 

applicant “will be considered as failing to prosecute such application if he or she . . . fails to 

provide . . . testimony deemed by USCIS to be necessary to establish his or her eligibility for 

naturalization.” 8 C.F.R. § 335.7. The implication is, again, that the applicant is required to 

complete the hearing. And the case law establishes that the Court does not have jurisdiction to 

review the application until the applicant exhausts his administrative remedies. E.g., Escaler v. 

U.S. Citizenship & Immigration Servs., 582 F.3d 288, 292 (2d Cir. 2009). Because Plaintiff did 

not do so, the complaint will be dismissed for lack of jurisdiction. 

I 

Plaintiff was born in Jordan in 1962. Trained abroad as doctor, after moving to this 

country he became a certified nurse anesthesiologist. Since 1998, he has been a lawful 

permanent resident. In 2004, he filed an application for naturalization with the Agency. About 

three years passed. The Agency did not complete its review of the application. 

On February 27, 2007, Plaintiff filed suit in this Court. Seeking a writ of mandamus, 

Plaintiff requested an order directing the Agency to complete its review. The Agency answered, 

attributing the delay in processing Plaintiff’s application to the FBI, which had not completed 

the required background check. 

In February 2008, the Court remanded the case to the Agency and ordered it to reach a 

determination on Plaintiff’s application on or before May 30, 2008. Shweika v. Cannon, No. 

07-10870-BC (E.D. Mich. Feb. 29, 2008) (unpublished). The Agency did, denying Plaintiff’s 

application on May 29, 2008. According to the Agency, it did so because of Plaintiff’s inability 

to provide a certified disposition of an arrest that occurred in Virginia some years earlier. 

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Plaintiff filed a notice of administrative appeal (a “form N-336”) in June 2008 

requesting a “review hearing” pursuant to § 1447(a). He explained that he submitted a 

photocopy of the arrest record, but could not provide a certified copy because he was acquitted 

of the charges and the records relating to the case were expunged. About ten months passed. 

Again, the Agency did not complete its review of the application. 

In May 2009, Plaintiff again filed suit in this Court. Plaintiff asked the Court to compel 

the Agency to decide the pending petition for naturalization or, alternatively, to grant Plaintiff a 

de novo hearing in this Court. Compl. 5, ECF No. 1. He also explained that he was “willing to 

stipulate denial by [the Agency]” so that the Court may conduct the de novo hearing. Id. 

In January 2010, the Agency moved to dismiss or remand. ECF No. 13. Asserting that 

mandamus relief was not warranted, the Agency further argued that the Court lacks subject 

matter jurisdiction because Plaintiff has not exhausted his administrative remedies. 

 On February 9, 2011, the Court granted the Agency’s motion in part and denied it in 

part. Shweika v. Dep’t Homeland Security, No. 09-11781, 2010 WL 457457 (E.D. Mich. Feb. 

9, 2010) (slip op.). Observing that a hearing on Plaintiff’s petition was scheduled to take place 

two days later, on February 11, 2010, the Court explained: 

[M]andamus relief is unnecessary. It is understandable that Plaintiff is anxious 

for the hearing to take place-more than five years have passed since his 

application for naturalization was submitted. Additionally, more than eighteen 

months have passed since Plaintiff requested the § 1447(a) hearing by submitting 

a form N-336. According to USCIS regulations, the hearing should have taken 

place within 180 days of the request. The USCIS has, admittedly, not complied 

with that deadline. However, it is not clear that the 180-day deadline is a firm, 

nondiscretionary mandate, rather than an intra-agency goal. The Mandamus Act 

is only available to enforce mandatory duties. . . . At some point, unreasonable 

delay may warrant mandamus relief, but that point has not been reached here. 

Nevertheless, given the substantial delays that have occurred in this case and the 

approaching administrative hearing, it is not necessary to dismiss Plaintiff’s 

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complaint entirely. Following next week’s hearing, Plaintiff’s naturalization 

application will be ready for review by this Court. 

2010 WL 457457, at *2. Or so the Court anticipated. 

On February 11, 2010, Plaintiff appeared for the review hearing. An immigration officer, 

Officer Ian Modelski, conducted the hearing. After questions about a number of topics, the 

conversation eventually turned to allegations made by Plaintiff’s former wife, Angeline 

Jacobsen. Officer Modelski asked a number of questions about the couple’s relationship, living 

arrangements, finances, and the like. He then asked: “she also said that when you — when 

you’d get upset that you would throw things, break things, is that something you did?” Agency 

Review Hr’g Tr. 37–38, Feb. 11, 2010, attached as Defs.’ Tr. Ex. N (“Hr’g Tr.”). Plaintiff’s 

counsel interjected that he needed to speak to his client privately, informing the Officer Modelski 

“[we are] most likely gonna stop the interview.” Hr’g Tr. 38. Going back on the record a short 

time later, Plaintiff’s counsel explained: 

Counsel: Officer Modelski I believe the interview is going way beyond the 

interview required for citizenship . . . . Ah, at this point unless you 

wanna interview on the naturalization petition, ah, we respectfully will 

ask you to stop the interview. 

Officer: Well, I see a connection . . . . [I]t appears that he misrepresented the 

fact that he had been arrested, ah, that this then precluded a full 

examination of, of potential issues that would have been examined in 

some fashion or other that is legitimate. This relates to good moral 

character. 

Counsel: No, we, we came here in good faith, because right now there’s an 

order of the United States District Court for no discovery by either 

side, which means you can’t even interview him unless we voluntarily 

want to interview. . . . 

Officer, ah, Modelski [you] did indicate to me earlier, right in the 

beginning, that you did receive a copy of that order from the court, so 

you are very well aware that discovery is — in this case, is extremely 

limited. And I believe you’re interviewing him way beyond a 

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naturalization application. What somebody said, what’s the 

credibility? You have not given us an affidavit or any under oath 

statement from this person who is his ex-wife, and now suddenly he 

has to answer every question . . . . 

I think it’s, it’s just not applicable. It’s not relevant. . . . 

Officer: [W]hether it, whether it’ll turn out to be a positive or negative factor I 

don’t know yet at this point. . . . 

Counsel: O — obviously, I mean, if you have the pre-assumption to deny this 

then obviously — 

Officer: [inaudible] 

 

Counsel: — it’s gonna go to a court, court — 

Officer: — [I] don’t have a preexisting — 

Counsel: — and then court, you can — you know, in the court — 

Officer: If I had a pre-assumption I would say this is what she said and this is 

what I believe and — 

 

Counsel: This gentleman is a doctor. He has a medical degree from Russia. He 

just didn’t do the certification here and now he works as a, as a, 

physician assistant or research assistant anesthesiologist. He is in a 

responsible position in this country for some 18 years and here he has 

to answer these questions to get his citizenship, which has been 

pending for six years, 2004 he filed. And court is very annoyed that 

the government is not able to complete his adjudication in six years. 

Officer: Well, that’s why the government is asking these questions, to try to 

complete — 

 

Counsel: All right. Ah, again, once again, respectfully, ah, we’ll stop the 

interview unless you wanna ask any question out of the N400 

application or N336, which is the only subject we are here for. . . . 

 

Officer: Anything that happened during the statutory period relates to the 

N400. Anything that happened after the filing of the N400 is also 

relevant. . . . 

Both speaking at once 

 

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Counsel: — from what date, today going back five years? 

Officer: — no, the statutory period began five years before he filed the 

application. That’s what he wanted the hearing about — 

Counsel: No, I believe that the statutory period — 

Both speaking at once 

Officer: — saying that he [inaudible] did have good moral character — 

 

Counsel: — I believe the statutory period, period has to be counted from today. 

When the government has delayed this application for six years it’s 

almost — you waive that right to go back five years beyond the 

application of, of filing. But again, there’s no point us arguing, you 

know? You — government’s got their attorneys, they can argue their 

points, they got very high quality attorneys, U.S. attorneys, ah, 

working on this case. . . . But I — we almost believe that this court — 

this case will go to court. There’s no way that — and in fact, our 

pleadings when we filed a complaint we said we concede the fact that 

you’re going to deny it. And I — you know, we’re even willing to 

concede, because we know you’re gonna deny it . . . . 

 This gentleman’s a working person, medical field, serving people, 

doing on patient what he needs to do every day, working with doctors 

in the hospital. And for [you] to say that he’s not a reformed person 

after 12 years, he’s not this, I mean, we can come up with many 

reasons. If it goes to court, it goes to court. That’s what we are here 

for. But we are, again, respectfully, if you wanna interview on N400, 

N336 to the extent, that’s reasonable and relevant. We’ll go forward 

with it. Otherwise we’ll just have to stop and go, ah — let it go to 

court. 

Hr’g Tr. 38–43. After the officer attempted to inquire further about Plaintiff’s former spouse, 

Plaintiff’s counsel terminated the interview. 

On March 25, 2010, the Agency denied Plaintiff’s appeal of his naturalization 

application. The decision explained: 

Your refusal to answer the reviewing officer’s questions left additional areas of 

your conduct and your character unexplored. Additionally, “immigration officials 

may draw a negative inference from a naturalization applicant’s silence.” You 

have therefore failed to establish that you satisfy all of the requirements for 

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naturalization, particularly regarding the need to demonstrate good moral 

character and lawful admission as a permanent resident. 

Title 8 Code of Federal Regulations, Section 335.7 provides guidance in this 

situation: 

An applicant for naturalization who has appeared for the 

examination on his or her application as provided in 8 CFR 335.2 

shall be considered as failing to prosecute such application if he or 

she, without good cause being shown, either failed to excuse an 

absence from a subsequently required appearance, or fails to 

provide within a reasonable period of time such documents, 

information, or testimony deemed by the Service to be necessary to 

establish his or her eligibility for naturalization. The Service shall 

deliver notice of all such requests for appearance or supporting 

evidence, in writing, to the applicant either in person or to the 

applicant’s last known address. In the event that the applicant fails 

to respond within 30 days of the date of notification, the Service 

will adjudicate the application on the merits pursuant to Section 

336.1 of this chapter. 

Whenever any person makes an application for naturalization, the burden of proof 

shall be upon such person to establish satisfaction of all the requirements to be 

naturalized as a citizen of the United States as quoted above in section 316.2 of 

Title 8 of the Code of Federal Regulations. Your unwillingness to submit 

required documentary and oral testimony is deemed to be a failure to prosecute 

this application. The incomplete record fails to establish your fulfillment of the 

requirements for naturalization, including those of good moral character, as 

specified in section 316(a)(3); the five years of lawful residence as specified in 

section 316(a)(1) and 318; and the continuous physical presence as specified in 

section 316(a)(2) of the Immigration and Nationality Act. You have not met your 

burden of proof. The denial of your Form N-400 is hereby affirmed. 

This decision is made without any prejudice to your right to seek review in 

accordance with section 310 of the Immigration and Nationality Act [8 U.S.C. § 

1421]. 

Defs.’ Resp. Mot. for Evidentiary Hr’g Ex. 1, at 6–7, ECF No. 20-2 (internal citation omitted). 

Quoting section 310 of the Immigration and Nationality Act in a footnote, the decision noted: 

A person whose application for naturalization under this subchapter is denied, 

after a hearing before an immigration officer under section 1447(a) of this Title, 

may seek review of such denial before the United States district court for the 

district in which such person resides in accordance with chapter 7 of title 5. Such 

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review shall be de novo, and the court shall make its own findings of fact and 

conclusions of law and shall, at the request of the petitioner, conduct a hearing de 

novo on the application. 

Id. at 7 n.1 (quoting 8 U.S.C. 1421(c)). 

 In March 2010, Plaintiff moved in this Court for a de novo review of the Agency’s 

decision. ECF No. 18. The Agency responded that discovery was necessary first because the 

Agency has “attempted to collect evidence on issues relating to Plaintiff’s good moral character 

through the administrative process; however, Plaintiff has not provided evidence in response to 

[the Agency’s] requests, and he refused to answer questions at his appeal hearing on these issues 

and prematurely terminated the hearing.” Defs.’ Resp. 10. The Agency also asserted that “there 

is good authority that applicants who fail to comply with requests for information and documents 

in their naturalization proceedings have not adequately exhausted their administrative remedies, 

and therefore, have not satisfied the prerequisites for establishing subject matter jurisdiction 

under 8 U.S.C. § 1421(c).” Id. at 10 n.3 (citing Johnson v. Bergland, 614 F.2d 415, 417–18 (5th 

Cir. 1980); Omari v. Gonzalez, No. 3:05-cv-0397-P, 2005 WL 2036498, at *4 (N.D. Tex. Aug. 

11, 2005)). 

In April, the Court granted the motion for an evidentiary hearing. ECF No. 22. Before 

the hearing began on June 21, 2011, however, the parties informed the court that a witness that 

both parties intended to call, Ms. Jacobsen, was unavailable to testify. At the conclusion of the 

proofs, Plaintiff moved for a continuance pending Ms. Jacobsen’s availability. The motion was 

granted. 

 The trial resumed on August 30, 2011. At the conclusion of the proofs, the Court found 

that Plaintiff had met his burden of proof and demonstrated his “good moral character” by clear 

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and convincing evidence. The Court reserved judgment, however, on a single legal issue, which 

the Court concluded merited supplemental briefing: 

Whether, pursuant to 8 U.S.C. § 1421(c) and all applicable statutes 

and regulations, the Court lacks jurisdiction to grant Plaintiff’s 

application for naturalization because Plaintiff terminated the 

Defendant’s interview regarding the denial of Plaintiff’s 

naturalization application before the immigration officer had 

completed his examination of Plaintiff. 

Order Incorporating Findings of Fact and Law and Ordering Supp. Briefing, at 2, ECF No. 48. 

The parties submitted briefs on the issue. For the following reasons, the Court finds that it does 

lack jurisdiction to grant Plaintiff’s application for naturalization because Plaintiff terminated the 

Agency’s interview. 

II 

The Immigration and Nationality Act of 1952, 8 U.S.C. §§ 1101–1537, represents “a 

comprehensive and complete code covering all aspects of admission of aliens to this country.” 

Toll v. Moreno, 458 U.S. 1, 13 (1982) (quoting Elkins v. Moreno, 435 U.S. 647, 664 (1978)). 

Until the enactment of the Immigration Act of 1990, authority over immigration issues was 

“vested in different branches of government, with naturalization being the province of the courts 

and removal the province of the executive.” Perriello v. Napolitano, 579 F.3d 135, 138 (2d Cir. 

2009) (internal quotation marks omitted) (quoting Ajlani v. Chertoff, 545 F.3d 229, 235 (2d Cir. 

2008)). 

In 1990, Congress unified these powers in the executive, with § 401(a) of the Act 

providing: “The sole authority to naturalize persons as citizens of the United States is conferred 

upon the Attorney General.” Immigration Act of 1990 § 401(a) (codified at 8 U.S.C. § 1421(a)). 

Congress thus “streamlined the naturalization process and provided for comprehensive review of 

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applications by immigration officers empowered to grant or deny naturalization.” Perriello, 579 

F.3d at 140 (citing 8 U.S.C. § 1446(d)). In pertinent part, 8 U.S.C. § 1446 provides: 

Before a person may be naturalized, an employee of the Service, or of the United 

States designated by the Attorney General, shall conduct a personal investigation 

of the person applying for naturalization . . . . 

The Attorney General shall designate employees of the Service to conduct 

examinations upon applications for naturalization. For such purposes any such 

employee so designated is authorized to take testimony concerning any matter 

touching or in any way affecting the admissibility of any applicant for 

naturalization . . . . 

 

The employee designated to conduct any such examination shall make a 

determination as to whether the application should be granted or denied, with 

reasons therefor. 

§§ 1446(a), (b), (d). Part 335 of Title 8 of the Code of Federal Regulations, “Examination on 

Application for Naturalization,” fills in the details of how the examination is conducted. Section 

335.2, for example, provides: 

Prior to the beginning of the examination, USCIS shall make known to the 

applicant the official capacity in which the officer is conducting the examination. 

The applicant shall be questioned, under oath or affirmation, in a setting apart 

from the public. The applicant and USCIS shall have the right to present such 

oral or documentary evidence and to conduct such cross-examination as may be 

required for a full and true disclosure of the facts. 

8 C.F.R. § 335.2(c). Section 335.7 cautions: 

An applicant for naturalization who has appeared for the examination on his or 

her application as provided in 8 CFR 335.2 will be considered as failing to 

prosecute such application if he or she, without good cause being shown, either 

failed to excuse an absence from a subsequently required appearance, or fails to 

provide within a reasonable period of time such documents, information, or 

testimony deemed by USCIS to be necessary to establish his or her eligibility for 

naturalization. 

8 C.F.R. § 335.7. Failure to prosecute results in the Agency denying an application. See, e.g.,

Keaik v. Devukaj, 557 F. Supp. 2d 820, 823 (E.D. Mich. 2008) (noting that the Agency “denied 

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the petitioner’s naturalization application for failure to prosecute”). Conversely, § 335.3 

provides: 

USCIS shall grant the application if the applicant has complied with all 

requirements for naturalization under this chapter. A decision to grant or deny the 

application shall be made at the time of the initial examination or within 120 days 

after the date of the initial examination. 

 

8 C.F.R. § 335.3. 

Although the Immigration Act of 1990 divests the federal courts of the primary authority 

over naturalization proceedings, it nevertheless “preserve[s] a role for federal courts in the 

naturalization process: ‘after exhausting administrative remedies, an [applicant] may petition for 

de novo review in the district court.’” Perriello, 579 F.3d at 140 n.5 (internal alteration omitted) 

(quoting Etape v. Chertoff, 497 F.3d 379, 386 (4th Cir. 2007)). 

Specifically, the Act provides that an applicant may petition a district court for review at 

two points in the naturalization process. The first occurs when an applicant has been examined 

and more than 120 days have elapsed without a decision on the application: 

If there is a failure to make a determination under section 1446 of this title before 

the end of the 120-day period after the date on which the examination is 

conducted under such section, the applicant may apply to the United States 

district court for the district in which the applicant resides for a hearing on the 

matter. Such court has jurisdiction over the matter and may either determine the 

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

determine the matter. 

8 U.S.C. § 1447(b). If the Agency does make a determination within this period, however, the 

applicant must exhaust his administrative remedies before returning to court. 

This exhaustion requirement is not expressly provided for in the statute; rather, it has 

been inferred from the review process established by the act. See, e.g., Escaler v. U.S.

Citizenship & Immigration Servs., 582 F.3d 288, 292 (2d Cir. 2009) (“Section 1421(c), 

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authorizing de novo judicial review of the denial of an application to be naturalized, requires the 

exhaustion of administrative remedies prior to seeking that relief.”); see also Karam v. U.S.

Citizenship & Immigration Servs., 373 F. App’x 956, 958 (11th Cir. 2010) (per curiam); Idahosa 

v. Bureau of Immigration & Customs Enforcement, 111 F. App’x 293, 294 (5th Cir. 2004) (per 

curiam); see generally Arnold Rochvarg, Report to the Administrative Conference — Reforming 

the Administrative Naturalization Process: Reducing Delays While Increasing Fairness, 9 Geo. 

Immigr. L.J. 397, 435 n.179 (1995) (noting that “an applicant has failed to exhaust 

administrative remedies in order to obtain judicial review unless the applicant has proceeded 

through the intra-agency appeal process”). 

First, §1447 provides: “If, after an examination under section 1446 of this title, an 

application for naturalization is denied, the applicant may request a hearing before an 

immigration officer.” 8 U.S.C. § 1447(a). Section 1421, in turn, provides: 

The sole authority to naturalize persons as citizens of the United States is 

conferred upon the Attorney General. . . . 

A person whose application for naturalization under this subchapter is denied, 

after a hearing before an immigration officer under section 1447(a) of this Title, 

may seek review of such denial before the United States district court for the 

district in which such person resides . . . . Such review shall be de novo, and the 

court shall make its own findings of fact and conclusions of law and shall, at the 

request of the petitioner, conduct a hearing de novo on the application. 

8 U.S.C. §§ 1421(a), (c). Again, the Code of Federal Regulations elaborates, with § 336.2 

providing in pertinent part: 

Upon receipt of a timely request for a hearing, USCIS will schedule a review 

hearing . . . . He or she may receive new evidence or take such additional 

testimony as may be deemed relevant to the applicant’s eligibility for 

naturalization or which the applicant seeks to provide. Based upon the 

complexity of the issues to be reviewed or determined, and upon the necessity of 

conducting further examinations with respect to essential naturalization 

requirements, such as literacy or civics knowledge, the reviewing immigration 

officer may, in his or her discretion, conduct a full de novo hearing or may utilize 

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a less formal review procedure, as he or she deems reasonable and in the interest 

of justice. 

8 C.F.R. § 336.2(b). The regulations continue: 

A USCIS determination denying an application for naturalization under section 

335(a) of the Act [8 U.S.C. § 1446] shall not be subject to judicial review until the 

applicant has exhausted those administrative remedies available to the applicant 

under section 336 of the Act [8 U.S.C. § 1447]. Every petition for judicial review 

shall state whether the validity of the final determination to deny an application 

for naturalization has been upheld in any prior administrative proceeding and, if 

so, the nature and date of such proceeding and the forum in which such 

proceeding took place. 

8 C.F.R. § 336.9(d). 

Thus, under the Act and its implementing regulations, the second point at which an 

applicant may petition a district court occurs only after the applicant has been examined by the 

Agency, has had the application denied, has again been examined by the Agency in a “review 

hearing,” and has again had the application denied. 

This exhaustion is required by the review process that the statute establishes. It is not a 

common law creation based on prudential considerations. Cf. Perkovic v. I.N.S., 33 F.3d 615, 

619 (6th Cir. 1994) (“In most contexts, exhaustion of administrative remedies is a prudential, 

court-created doctrine.”). Consequently, courts do not have the “discretion to employ a broad 

array of exceptions that allow a plaintiff to bring his case in district court despite his 

abandonment of the administrative review process.” Theodoropoulos v. I.N.S., 358 F.3d 162, 

172–73 (2d Cir. 2004) (quoting Beharry v. Ashcroft, 329 F.3d 51, 58 (2d Cir. 2001)). Rather, 

“When, as here, the exhaustion requirement is established by statute — in this case, the 

interaction of Section 1421(a), which vests the attorney general with sole authority in 

naturalization matters, with Section 1421(c) — the requirement is mandatory, and courts are not 

free to dispense with it.” Escaler, 582 F.3d at 292 (internal alterations and quotation marks 

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omitted) (quoting Bastek v. Fed Crop Ins. Co., 145 F.3d 90, 94 (2d Cir. 1998)); see also

Ponnapula v. Campbell, No. 06-2350, 2007 WL 2688550, at *3 (W.D.Tenn. Sept. 11, 2007) 

(collecting cases); cf. Coit Indep. Joint Venture v. Fed. Sav. & Loan Ins. Corp., 489 U.S. 561, 

579-80 (1989) (noting that a statutory exhaustion requirement is jurisdictional). 

In this case, Plaintiff did not complete the review hearing. Instead, on the advice of 

counsel, he terminated it. The Agency then denied Plaintiff’s application. This much is 

undisputed. Compare Defs.’ Resp. Br. 1, ECF No. 52 (“[Plaintiff] does not contest that he 

terminated his 1447(a) hearing.”), with Pl.’s Supp. Br. 5, ECF No. 49 (“[I]t is clear from the 

record of proceedings that a decision denying Plaintiff’s application for naturalization was issued 

after a hearing before a Service officer, regardless of whether he terminated the interview.”). 

As noted, whether an applicant’s terminating a review hearing constitutes a failure to 

prosecute the application appears to be an issue of first impression. The text of the statute and its 

implementing regulations both establish that it is. Beginning with the text, § 1421(c) provides 

that only “after a hearing before an immigration officer” may an applicant seek judicial review. 

8 U.S.C. § 1421(c). The reasonable implication of the phrase “after a hearing” is that the 

applicant is required to complete the hearing. A contrary interpretation — that an applicant may 

terminate the hearing prematurely without prejudicing his ability to appeal the decision to the 

court — would effectively negate the hearing requirement. If the applicant could terminate the 

hearing at any point once the questioning is underway (as the subsequent judicial review would 

literally be “after a hearing”) he could do so before answering the first question. Obligating the 

applicant to proceed through a hearing, but permitting the applicant to terminate it at the outset, 

would thus render the hearing requirement meaningless. 

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This is not to suggest that there are no limits on the questions that the hearing officer may 

require the applicant answer. Rather, as discussed below, the implementing regulations provide 

that an applicant may decline to answer a question if he has “good cause” for doing so. 8 C.F.R. 

§ 335.7. (Plaintiff had good cause, for example, for not producing the certified disposition of an 

arrest that occurred in Virginia as it had been destroyed. As detailed below, however, he did not 

have good cause for terminating the hearing.) 

The regulations reinforce the conclusion that the applicant is required to complete the 

hearing. In pertinent part 8 C.F.R. § 335.7 provides that the applicant “will be considered as 

failing to prosecute such application if he or she, without good cause being shown, . . . fails to 

provide . . . such documents, information, or testimony deemed by USCIS to be necessary to 

establish his or her eligibility for naturalization.” As not answering the Agency’s questions 

(“fail[ing] to provide . . . testimony”) constitutes “failing to prosecute” (absent “good cause”), 

the reasonable implication is, again, that the applicant is required to complete the hearing, or 

show good cause for not doing so. 

Turning to the case law, the parties identify no case on all fours with the facts of this 

case, and an independent review reveals none. Plaintiff, it appears, is the first naturalization 

applicant to have walked out of the Agency hearing and into court. 

Courts have, however, discussed the consequences of an applicant’s declining to furnish 

information requested by the Agency. In Omari v. Gonzales, No. 3:05-CV-0397-P, 2005 WL 

2036498 (N.D.Tex. Aug. 11, 2005), the plaintiff was examined, had his application denied, 

submitted a request for administrative review, and was again examined. Id. at 3. The court 

relates what happened next (and the consequences): 

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The officer than requested that additional information/documents be submitted 

within the next thirty days. . . . [I]t is undisputed that [the plaintiff] had notice 

that additional documents were requested and that he failed to comply with that 

request. Accordingly, the INS was justified in denying his application on 

procedural grounds without reaching the merits of his request for administrative 

review. 

Because Plaintiff failed to comply with the request for information and 

documents, and his failure resulted in the denial of his application for want of 

prosecution, he has not adequately exhausted the administrative remedies 

available to him and has not satisfied the jurisdictional prerequisite of 8 U.S.C. § 

1421(c). Where, as here, exhaustion of administrative remedies is required by 

statute, exhaustion is jurisdictional and must be enforced. 

Id. at 3–4 (internal citations omitted). Although no more than persuasive authority, this 

reasoning is sound. 

As another district court summed up more than fifty years ago, “Before granting 

naturalization, the United States is entitled to frank, honest and unequivocal information from the 

applicant for citizenship in answer to questions which may throw light upon his qualification or 

disqualification for that privilege.” United States v. Chandler, 152 F. Supp. 169, 172–73 (D. 

Md. 1957). Fundamentally, the Act and regulations establish, obtaining the privilege of 

citizenship is conditioned on candor. Absent the required candor to the Agency, the applicant 

cannot come to the court for relief. 

It must be acknowledged, however, that the analytical approach adopted in Omari has not 

been applied in every other opinion (or, indeed, by the Agency itself1

). In Keaik v. Devukaj, 557 

F. Supp. 2d 820 (E.D. Mich. 2008), for example, the Agency denied an application for 

naturalization because it “determined that the petitioner failed to meet the moral-character 

 1

 The Agency’s decision denying Plaintiff’s application, for example, explains that the application is being 

denied for failure to prosecute, providing: “Your unwillingness to submit required documentary and oral testimony 

is deemed to be a failure to prosecute this application.” It goes on, however, to also state that the application is 

being denied because Plaintiff has not established his good moral character. It concludes: “This decision is made 

without any prejudice to your right to seek review in accordance with section 310 of the Immigration and 

Nationality Act [8 U.S.C. 1421].” 

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requirement, and that he failed to prosecute his claim by failing to furnish information that could 

have shed more light on the petitioner’s character.” Id. at 827–28. Specifically, he “did not 

provide certified copies of all police reports related to the [charge of driving while on a 

suspended license].” Id. at 824. When the petitioner appealed to the district court, the Agency 

moved to dismiss, arguing that the petitioner had not established his good moral character and, 

alternatively, that “the failure of the petitioner to furnish proper documentation relating to the 

traffic offenses within a reasonable period of time constitutes a failure to prosecute his 

citizenship application.” Id. at 822. Agreeing with the Agency, the court wrote: 

Although these offenses are insufficient to establish bad moral character by 

themselves, they certainly bolster the conclusion of poor moral character 

premised on the petitioner’s lack of candor, which brings us to the second point. 

By failing to disclose his convictions, the petitioner gave false testimony to obtain 

an immigration benefit in violation of 8 U.S.C. § 1101(f)(6) and 8 C.F.R. § 

316.10(b)(2)(vi). There has been no claim that the petitioner lacks an 

understanding of English (he satisfied the language requirement), so it is difficult 

to see how he could have so seriously misunderstood the simple question whether 

he had ever “been arrested, cited, or detained by any law enforcement officer for 

any reason.” App. for Naturalization at 8. Since an applicant “shall be found to 

lack good moral character” if he gives false testimony to secure an immigration 

benefit, 8 C.F.R. § 316.10(b)(2)(vi), the petitioner’s lack of candor alone justifies 

denial of his application and this petition. 

Finally, there is the issue on which the CIS placed the most weight: failure to 

prosecute. The regulations expressly state that failure to prosecute will be found 

where an applicant, without good cause being shown, “fails to provide within a 

reasonable period of time such documents, information, or testimony deemed by 

the Service to be necessary to establish his or her eligibility for naturalization.” 8 

C.F.R. § 335.7. Following the initial interview, the CIS formally requested a 

series of documents to assess the petitioner’s legal history. The petitioner 

complied only in part, producing some (but not all) of the documents concerning 

his convictions for driving with a suspended license and none of the documents 

relating to his other citations. This is all the more significant given that the 

petitioner did not furnish documentation showing completion of probation. After 

all, an application for naturalization “will not be approved until after the 

probation, parole, or suspended sentence has been completed.” 8 C.F.R. § 

316.10(c)(1). 

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On balance, it is clear that the CIS properly denied the petitioner’s application, 

and after de novo review the Court is constrained to agree with that result. . . . 

The Court finds upon a de novo review of the record that the petitioner has not 

established by a preponderance of the evidence that he is “a person of good moral 

character, attached to the principles of the Constitution of the United States, and 

well disposed to the good order and happiness of the United States.” 8 U.S.C. § 

1427(a). 

 

Id. at 829 (internal alteration omitted). Thus, the court reached the application’s merits, finding 

the applicant’s imperfect compliance with the request for documents relevant to this task. The 

blending of the good moral character and administrative exhaustion requirements is problematic. 

Clouding the distinction between the jurisdictional question and the substantive question may, 

for example, lead an incautious reader to conclude that the court took up the merits before 

establishing jurisdiction. Thus, although Omari is somewhat mechanical, it is the more prudent 

approach to the two distinct inquiries. 

 Here, as in Omari, Plaintiff did not comply with the Agency’s request for information. 

Refusing to testify further, he terminated the interview. This resulted in the denial of his 

application for want of prosecution. Consequently, as in Omari, “he has not adequately 

exhausted the administrative remedies available to him and has not satisfied the jurisdictional 

prerequisite of 8 U.S.C. § 1421(c).” 2005 WL 2036498, at *4. 

Plaintiff’s arguments to the contrary are unpersuasive. (When subject matter jurisdiction 

is challenged, the plaintiff has the burden of proving jurisdiction. Moir v. Greater Cleveland 

Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990)). 

First, Plaintiff asserts, “Defendant misses the point in confusing ‘termination of the 

interview’ with ‘failure to exhaust administrative remedies.’ ” Pl.’s Resp. Br. 3, ECF No. 51. 

Plaintiff explains further: 

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The fact that his attorney terminated the review hearing after the reviewing officer 

passed on the opportunity to consider the alleged legal errors raised in Mr. 

Shweika’s petition for review, does not change the fact that he exhausted his 

administrative remedies, it just gives rise to an issue of whether he had shown 

good cause for doing so, in which case the finding of the reviewing officer, that 

he failed to prosecute his application, would be moot. 

Pl.’s Supp. Br. 12. Because he had good cause to terminate the interview, Plaintiff argues, he did 

in fact exhaust the available administrative remedies. 

 Plaintiff’s premise is unsubstantiated — he does not demonstrate good cause for 

terminating the interview. Explaining why he did so, Plaintiff writes: 

It is understandable that he was suspicious and fearful of the process and when the 

reviewing officer went far beyond the issue raised in his N336 petition 

(attempting to correct a simple Agency error) and was right to question the 

motives and intentions of the reviewing officer, whom [sic] he did not believe was 

acting in good faith. He has shown “good cause” for terminating the hearing. 

Pl.’s Resp. Br. 13. He explains further: 

[T]he Service officer was not attempting to engage in a meaningful review of the 

errors alleged by the Plaintiff but rather was continuing the Agency’s pattern and 

practice of affirmative misconduct, to harass Mr. Shweika and cause further 

delay, thus creating an atmosphere of hostility and suspicion and that [sic] Mr. 

Shweika’s petition was not to be given fair and meaningful review. 

While the regulations give the reviewing officer very broad powers of review, 

extending to de novo review, the purpose of these broad powers are to ensure 

continuing eligibility for naturalization, especially in a case such as this where six 

years have passed from the time of the original interview and over a year and a 

half has passed since issuance of the decision following the initial interview. 

There was nothing in the file at the time of either the 2007 decision or the 

February 2010 review hearing that was not in the file at the time [of] the original 

interview and of which the original interviewing officer was unaware . . . . 

The reviewing officer, evidently trying to find something else upon which he 

could legitimately base a decision to deny Plaintiff’s application, . . . began 

questioning him, during his review hearing, about his relationship with his former 

wife at which time his attorney objected because the officer had taken the 

interview well beyond the scope of the errors alleged by the applicant in his N336. 

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The fact that his attorney terminated the review hearing after the reviewing officer 

passed on the opportunity to consider the alleged legal errors raised in Mr. 

Shweika’s petition for review, does not change the fact that he exhausted his 

administrative remedies, it just gives rise to an issue of whether he had shown 

good cause for doing so, in which case the finding of the reviewing officer, that 

he failed to prosecute his application, would be moot. 

Pl.’s Supp. Br. 11–12. 

Substantively, Plaintiff thus asserts that he had “good cause” for terminating a review 

hearing because the Agency went beyond the scope of the errors Plaintiff alleged in his petition 

for a review hearing. Essentially, he is asserting that the applicant, not the Agency, decides 

which issues will be addressed in the hearing. Such an assertion is contrary to the text of the act, 

its implementing regulations, and applicable precedent. 

Section 1447 provides that at the review hearing the Agency may raise “any matter 

touching or in any way affecting the applicant’s right to admission to citizenship.” 8 U.S.C. § 

1447(c). The regulations provide: 

The reviewing officer will have the authority and discretion to review the 

application for naturalization, to examine the applicant, and either to affirm the 

findings and determination of the original examining officer or to re-determine 

the original decision in whole or in part. . . . He or she may receive new evidence 

or take such additional testimony as may be deemed relevant to the applicant’s 

eligibility for naturalization or which the applicant seeks to provide. 

 8 C.F.R. § 336.2(b). Likewise, the Supreme Court has established: “The Government is entitled 

to know of any facts that may bear on an applicant’s statutory eligibility for citizenship, so that it 

may pursue leads and make further investigation if doubts are raised.” Berenyi v. Dist. Dir., 

I.N.S., 385 U.S. 630, 638 (1967), quoted in Defs.’ Supp. Br. 9, ECF No. 50. 

Plaintiff’s assertion that he had “good cause” to terminate the hearing when the reviewing 

officer asked questions “beyond the scope of the errors alleged by [Plaintiff] in his N-336,” Pl.’s 

Supp. Br. 12, is unpersuasive. He has not demonstrated good cause for terminating the hearing. 

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As an aside, it should be noted, Plaintiff may have been genuinely “suspicious and fearful 

of the process” and the “motives and intentions of the reviewing officer.” Pl.’s Resp. Br. 13. 

Plaintiff’s frustration with the protracted process is understandable. And he undoubtedly was 

frustrated with questions regarding allegations made by his former wife, Ms. Jacobsen 

(allegations that this Court later determined to be largely unsubstantiated). But exasperation is 

not exhaustion. Although unquestionably exasperating, to exhaust his administrative remedies 

Plaintiff was required to either “provide within a reasonable period of time such documents, 

information, or testimony deemed by USCIS to be necessary to establish his or her eligibility for 

naturalization” or to demonstrate “good cause” for not doing so. 8 C.F.R. § 335.7. Plaintiff did 

not do this. Rather, he terminated the hearing and refused to provide further testimony because 

“the officer had taken the interview well beyond the scope of the errors alleged by [Plaintiff].” 

Pl.’s Supp. Br. 12. Accordingly, he has not established the jurisdictional requirement of 

administrative exhaustion. His complaint must be dismissed. 

Arguing in the alternative, Plaintiff also asserts that he exhausted his administrative 

remedies because the Agency could draw a negative inference from Plaintiff’s silence. In 

support, Plaintiff cites United v. Posada Carriles, 541 F.3d 344 (5th Cir. 2008). Plaintiff’s 

reliance is misplaced. That case began when Louis Posada Carriles, “a well known anti-Castro 

Cuban exile who has been associated with several major events in modern Latin American 

history,” surreptitiously entered the country in 2005. Id. at 347. A former CIA operative and 

lieutenant in the U.S. Army, Posada had been involved in both the Bay of Pigs invasion and the 

Iran-Contra affair. He had spent time in a Venezuelan prison for bombing a Cuban aircraft 

(killing seventy-three people). And he had spent time in a Panamanian prison for attempting to 

assassinate Fidel Castro. He sought asylum in the United States and was taken into custody by 

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immigration officials. Later, he initiated naturalization proceedings. At the hearing, held in 

2006, the government cautioned Posada that “he could exercise his right against selfincrimination if he thought that an answer would incriminate him, lying could subject him to 

criminal penalties, and any statement he gave could be used in any legal or administrative 

proceeding.” Id. at 356. The hearing lasted two days. “Posada answered many of the questions 

but at times invoked the Fifth Amendment and refused to answer.” Id. at 350. The following 

year, “a federal grand jury returned a seven-count indictment charging Posada with making false 

statements in connection with efforts to obtain naturalization.” Id. Posada moved to suppress 

the statements made at the hearing, asserting “that though it was clear (according to him) that he 

did not qualify for naturalization due to his prior foreign convictions . . . the government 

conducted the interview anyway, not to gather information regarding his eligibility for 

naturalization, but to obtain allegedly false statements to indict a 79 year old man who could no 

longer be indefinitely detained in immigration custody.” Id. at 351 (internal alterations and 

quotation marks omitted). The district court agreed, suppressed the statements, and dismissed 

the indictment, writing that “it found the government’s tactics ‘grossly shocking and so 

outrageous as to violate the universal sense of justice.’” Id. at 353. The Fifth Circuit reversed, 

explaining: 

[T]he general rule that failing to warn that an investigation may result in criminal 

charges, absent affirmative misrepresentation, is not usually sufficient to 

constitute government deception. Here, however, the government need not seek 

refuge in this rule because it did warn Posada (in the presence of Posada’s lawyer) 

at the beginning of the interview that, among other things, he could exercise his 

right against self-incrimination if he thought that an answer would incriminate 

him, lying could subject him to criminal penalties, and any statement he gave 

could be used in any legal or administrative proceeding. . . . 

The district court additionally determined that the warnings “had little 

significance” as a result of the government’s threats “that exercise of Fifth 

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Amendment rights might result in termination of the naturalization interview.” 

This reasoning is incorrect, however, because immigration officials may draw a 

negative inference from a naturalization applicant’s silence. . . . The government 

did not act improperly in informing Posada, in accordance with this law, that his 

silence could be considered in adjudicating his application. Further, the fact that 

Posada nonetheless invoked the Fifth Amendment several times during the 

interview tends to undercut any argument that, for whatever reason, he felt unable 

to do so. 

Id. at 356, 357 n.3 (internal citations omitted) (citing I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 

1043–44 (1984); United States v. Alderete-Deras, 743 F.2d 645, 647 (9th Cir. 1984)). 

 Thus, Plaintiff is correct that the Agency may draw an adverse inference from silence. 

And Plaintiff is correct that his terminating the review hearing meant that the Agency’s questions 

went unanswered, as they would have had Plaintiff invoked his right to silence. He is not 

correct, however, that this superficial similarity means that Plaintiff exhausted his administrative 

remedies. 

Invoking the constitutional right to not answer a specific question because of the risk of 

self-incrimination is not the same as walking out of a hearing. See generally Hoffman v. United 

States, 341 U.S. 479, 487(1951) (discussing requirements for invoking the Fifth Amendment 

privilege). To elaborate, an adverse inference may, perhaps, be reasonably drawn when the 

response to a specific question is invocation of the right to silence. See generally Baxter v. 

Palmigiano, 425 U.S. 308, 318 (1976) (noting “the prevailing rule that the Fifth Amendment 

does not forbid adverse inferences against parties to civil actions when they refuse to testify in 

response to probative evidence offered against them”). No such reasonable inference is possible, 

however, when the applicant terminates the hearing before the interviewer asks the questions. 

Indeed, taken to its logical conclusion, Plaintiff’s argument suggests that the applicant 

may simply ignore the review hearing altogether. That is, if the applicant’s terminating the 

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review hearing exhausts the administrative remedies, since the Agency may draw an adverse 

inference on any unasked questions, simply not appearing for the hearing should as well.2 The 

government may draw its adverse inferences and deny the petition, and the petitioner will be able 

to seek de novo review in the district court. Such a conclusion, however, is irreconcilable with 

the text of the act, its implementing regulations, and the case law discussed above. In sum, 

exercising the constitutional right against self-incrimination is not the same as terminating a 

hearing. Plaintiff’s reliance on Posada Carriles is misplaced. 

Finally, Plaintiff argues that exhaustion is not required “given the unique history and 

circumstances of his case.” Pl.’s Supp. Br. 6. He explains: 

The Court conducted an extensive hearing on his application and found him to be 

both credible and eligible for naturalization, finding that he proved himself to be a 

person of good moral character. The Court’s only concern is that it did not want 

to set a precedent for the U.S. District Court to be used to allow applicants who 

are unhappy with the way the interview is proceeding to circumvent the 

administrative appellate procedure. Given the unique history of this case, the 

Court’s expansion of the record did not have the effect of undermining the 

policies of the exhaustion doctrine. 

Pl.’s Supp. Br. 13–14. 

Plaintiff is correct that it is not obvious that the Immigration Act’s de novo standard of 

review advances the traditional purposes of exhaustion, “protecting administrative agency 

authority and promoting judicial efficiency.” McCarthy v. Madigan, 503 U.S. 140, 145 (1992). 

As noted, however, “When, as here, the exhaustion requirement is established by statute — in 

this case, the interaction of Section 1421(a), which vests the attorney general with sole authority 

in naturalization matters, with Section 1421(c) — the requirement is mandatory, and courts are 

 2

 As an aside, it should be noted that this is not a case in which the government terminated the hearing 

because of the applicant’s invocation of the right to silence. In such a case, the applicant may well exhaust his 

administrative remedies because it would be the government, not the applicant, that refused to proceed with the 

administrative review hearing. 

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not free to dispense with it.” Escaler, 582 F.3d at 292 (internal alterations and quotation marks 

omitted) (quoting Bastek, 145 F.3d at 94); cf. McCarthy, 503 U.S. at 144 (“Where Congress 

specifically mandates, exhaustion is required.”). Consequently, the Court is not free to disregard 

the statutory requirements created by Congress. 

III 

Accordingly, it is ORDERED that Plaintiff’s complaint (ECF No. 1) is DISMISSED 

WITH PREJUDICE. 

Dated: March 27, 2012 

 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

 

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on March 27, 2012. 

 s/Tracy A. Jacobs 

 TRACY A. JACOBS 

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