UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------X VIRGINIA MILANES, OMAR MIGUEL FARFAN, MANUEL ALBERTO, MARTINEZ, ANDRES GIOVANNY SANCHEZ, NANCY CASTRO, and MARGOTH PEREZ DE CHALAMPA, on behalf of themselves and all other similarly situated individuals,
Plaintiffs,
-against-
MICHAEL CHERTOFF, in his official capacity as Secretary of the Department of Homeland Security, EMILIO GONZALEZ, in his official capacity as Director of the United States Citizenship and Immigration Services, ANDREA QUARANTILLO, in her official capacity as District Director of the New York City District of the United States Citizenship and Immigration Services, MICHAEL B. MUKASEY, in his official capacity as Attorney General of the United States, and ROBERT S. MUELLER, III, in his official capacity as Director of the Federal Bureau of Investigation,

08 Civ. __________ (ECF CASE) COMPLAINT

Defendants. ------------------------------------------------------------------X

PRELIMINARY STATEMENT

1. The United States government is failing to fulfill one of its core

responsibilities: adjudicating applications for citizenship in a timely manner. Hundreds

of thousands of naturalization applicants are waiting far longer than the law permits,

many of them for as many as two to three years. This failure imposes severe hardships

and irreparable harm on the applicants who are forced to wait. They cannot vote. They

are deemed ineligible for numerous important benefits and jobs. They cannot sponsor

their immediate relatives for citizenship. They cannot travel freely.

2. Named Plaintiffs, all lawful residents in the United States for the past five

to twenty-five years, have submitted complete applications for naturalization that have

not been adjudicated within a reasonable time. Some have been waiting for more than three years for a decision, despite repeated requests for adjudication. All of them have suffered egregious harm as a result of the delay. For example, OMAR MIGUEL FARFAN, a decorated veteran of the United States Navy, cannot get a United States Government job because he is not a citizen. He has already waited over three years. MANUEL ALBERTO MARTINEZ, who has waited over two years, is unable to apply for a visa for his elderly mother to leave Mexico and join him in the United States.
3. With the presidential election less than nine months away, these delays take on particular significance, as hundreds of thousands of applicants, many of them Latino, could wrongfully be denied the ability to vote and participate in determining the future of their country. During this time of widespread anti-immigrant and anti-Latino sentiment, Latinos across the country have sought citizenship, in part, so as to be able to vote in this year’s elections. They are being denied this opportunity because of Defendants’ delays.
4. Plaintiffs bring this class action on behalf of themselves and a proposed class of similarly situated lawful permanent residents residing in the counties served by the New York City District Office of the United States Citizenship and Immigration Services (hereinafter “USCIS”), who have submitted or will submit applications to be naturalized as United States citizens, and whose applications have not been or will not be adjudicated within 180 days of the date of submission, and on behalf of a sub-class composed of those members of the class who reside in the Southern District of New York and whose applications have not been or will not be adjudicated within 120 days of the date of their initial examinations.
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5. Plaintiffs bring this class action for declaratory and injunctive relief under

the Administrative Procedure Act, 5 U.S.C. §§ 555(b), 551(13), 706(1) and 553, and the

Immigration and Nationality Act § 336(b), codified at 8 U.S.C. § 1447(b), challenging

the failure of the United States government Defendants to meet their clear obligations to

adjudicate applications for naturalization in a timely manner.

6. Plaintiffs challenge the failure of Defendants MICHAEL CHERTOFF,

EMILIO GONZALEZ, ANDREA QUARANTILLO, MICHAEL B. MUKASEY, and

ROBERT S. MUELLER, III (hereinafter “all Defendants”) to take all steps necessary to

adjudicate proposed class members’ naturalization applications within a reasonable time

in violation of 5 U.S.C. § 555(b).

7.

Plaintiffs challenge the failure of Defendants CHERTOFF, GONZALEZ,

and QUARANTILLO (hereinafter “USCIS Defendants”) and Defendant MUKASEY to

adjudicate proposed class members’ naturalization applications (1) within 120 days of

their initial examinations in violation of 8 C.F.R. § 335.3 and 8 U.S.C. § 1447(b), and (2)

within a reasonable time in violation of 5 U.S.C. § 555(b).

8. Plaintiffs challenge the failure of Defendants MUKASEY and

MUELLER to complete within a reasonable time the name checks conducted by the

Federal Bureau of Investigation (“FBI”) in connection with the adjudication of proposed

class members’ naturalization applications in violation of 5 U.S.C. § 555(b).

9. Plaintiffs challenge the failure of Defendants CHERTOFF and

GONZALEZ to publish a proposed regulation and provide a notice-and-comment period

prior to implementing a policy or practice of requiring an FBI name check to be

completed before adjudicating a naturalization application in violation of 5 U.S.C. § 553.

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10. As a result of all Defendants’ failure to take all steps necessary to adjudicate Plaintiffs’ naturalization applications within a reasonable time as required by federal law, and within 120 days of their initial examinations, Plaintiffs have been prevented from receiving the many substantial and unique benefits of citizenship, including the right to vote, the right to obtain United States passports, the right to file visa petitions for immediate relatives as United States citizens, the protection of the United States government when outside the United States, and the right to life-sustaining federal benefits.
JURISDICTION AND VENUE 11. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question), 5 U.S.C. § 701 et seq. (Administrative Procedure Act), and 28 U.S.C. § 2201 (Declaratory Judgment Act). 12. This Court also has jurisdiction over claims brought by Plaintiff SANCHEZ, as well as members of the proposed sub-class he represents, pursuant to 8 U.S.C. § 1447(b), which grants jurisdiction to the United States district court in the district in which an individual applying for naturalization resides if the individual’s application for naturalization has not resulted in a determination within 120 days after the date on which an initial examination is conducted pursuant to 8 U.S.C. § 1446. 13. Venue properly lies with this district pursuant to 28 U.S.C. § 1391 (b) and (e) as certain members of the proposed class reside within this judicial district and a significant part of the activities complained of occurred within this judicial district. 14. Venue is also proper for Plaintiff SANCHEZ, as well as members of the proposed sub-class they represent, pursuant to 8 U.S.C. § 1447(b), which provides that a
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petition for review of a naturalization application shall be filed in the district in which the applicant resides.
PARTIES Plaintiffs
15. Plaintiff VIRGINIA MILANES resides in the Bronx, New York, and has been a lawful permanent resident of the United States since on or about June 19, 2003. Plaintiff MILANES submitted her application for naturalization to USCIS on or about August 16, 2006, and was fingerprinted in connection with her naturalization application on September 5, 2006. At the time of the filing of this Complaint, Plaintiff Milanes has yet to receive an appointment for her naturalization examination, although it has been 568 days (over 18 months) since she submitted her naturalization application to USCIS.
16. Plaintiff OMAR MIGUEL FARFAN resides in Islandia, New York, and has been a lawful permanent resident of the United States since on or about March 16, 1993. Plaintiff FARFAN submitted an application for naturalization to USCIS on or about April 29, 2004, and had his naturalization examination on August 9, 2005. At the time of the filing of this Complaint, Plaintiff FARFAN’s naturalization application has not yet been adjudicated, although it has been 1,407 days (over 46 months) since the date he submitted his naturalization application and 940 days (over 30 months) since the date of his examination.
17. Plaintiff MANUEL ALBERTO MARTINEZ resides in Brooklyn, New York, and has been a lawful permanent resident of the United States since on or about April 20, 2001. Plaintiff MARTINEZ submitted his application for naturalization to USCIS on or about January 30, 2006, and had his naturalization examination on May 10, 2006. At the time of the filing of this Complaint, his application has not yet been
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adjudicated, although it has been 766 days (over 25 months) since the date he submitted his naturalization application and 666 days (over 21 months) since the date of his examination.
18. Plaintiff ANDRES GIOVANNY SANCHEZ resides in New York, New York, and has been a lawful permanent resident of the United States since on or about November 28, 1999. Plaintiff SANCHEZ submitted his application for naturalization to USCIS on or about December 20, 2004, and had his naturalization examination on October 13, 2005. At the time of the filing of this Complaint, Plaintiff SANCHEZ’s application for naturalization has not yet been adjudicated, although it has been 1,172 days (over 38 months) since the date he submitted his naturalization application and 875 days (over 28 months) since the date of his examination.
19. Plaintiff NANCY CASTRO resides in the Bronx, New York, and has been a lawful permanent resident of the United States since on or about January 28, 1983. Plaintiff CASTRO submitted her application for naturalization to USCIS on or about August 24, 2006, and was fingerprinted in connection with her naturalization application during September of 2006. Plaintiff CASTRO then received notification from USCIS that her naturalization examination was scheduled for August 7, 2007, but shortly thereafter received further notification stating that her examination appointment was cancelled, and that she would be notified of her new examination time. At the time of the filing of this Complaint, Plaintiff CASTRO has yet to receive a rescheduled appointment for her naturalization examination, even though it has been 560 days (over 18 months) since she submitted her naturalization application to USCIS.
20. Plaintiff MARGOTH PEREZ De CHALAMPA resides in Queens, New York, and has been a lawful permanent resident of the United States since on or about
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July 13, 2002. Plaintiff PEREZ De CHALAMPA submitted her application for naturalization to USCIS on or about July 23, 2007, and was fingerprinted in connection with her naturalization application on September 28, 2007. At the time of the filing of this Complaint, Plaintiff PEREZ De CHALAMPA has yet to receive an appointment for her naturalization examination, although it has been 227 days (over 7 months) since she submitted her naturalization application to USCIS. Defendants
21. Defendant MICHAEL CHERTOFF is the Secretary of the Department of Homeland Security (“DHS”). As such, he is responsible for, inter alia, administering USCIS and assuring the implementation and enforcement of the Immigration and Nationality Act.
22. Defendant EMILIO GONZALEZ is the Director of USCIS. As such, he is responsible for, inter alia, the administration of immigration benefits and services including the processing of naturalization applications of immigrants residing in the United States.
23. Defendant ANDREA QUARANTILLO is the District Director of the New York City District Office of USCIS. As such, she is responsible for, inter alia, administering the immigration laws in the following counties in New York State: Bronx, Kings, Nassau, New York, Orange, Putnam, Queens, Richmond, Rockland, Staten Island, Suffolk, Sullivan, Ulster, and Westchester.
24. Defendant MICHAEL B. MUKASEY is the Attorney General of the United States. As such, he is responsible for, inter alia, controlling determination of all issues of law pertaining to immigration pursuant to 8 U.S.C. § 1103 and has the sole authority to naturalize citizens of the United States pursuant to 8 U.S.C. § 1421(a). He
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has delegated authority and responsibility to administer all laws pertaining to immigration, naturalization, and nationality to the Director of USCIS. 8 U.S.C. § 1103(a)(1); 8 C.F.R. § 100.2; 6 U.S.C. § 271(b). The Attorney General is the head of the Department of Justice and, as such, is responsible for administering the FBI, which is part of the Department of Justice. 28 U.S.C. § 503; 28 U.S.C. § 531.
25. Defendant ROBERT S. MUELLER, III is the Director of the FBI. As such he is responsible for, inter alia, ensuring that a full criminal background check is completed for each individual applying to be naturalized as a United States citizen. Pub. L. 105-119, tit. I, 111 Stat. 2440, 2448- 49 (1997); 8 C.F.R. § 335.2(b).
STATUTORY AND REGULATORY SCHEME 26. Federal immigration law provides immigrants who have been residing in the United States the right to apply and to become United States citizens through a process known as naturalization. 8 U.S.C. § 1421 et seq. 27. The Attorney General has the “sole authority to naturalize persons as citizens of the United States.” 8 U.S.C. § 1421(a); Pub. L. No. 101-649, Title IV, 104 Stat. 4978, 5038-48 (Nov. 29, 1990). 28. The Attorney General has delegated the authority to administer and enforce the Immigration and Nationality Act and all other laws relating to immigration, naturalization, and nationality to the Director of Immigration and Naturalization Service (“INS”). 8 C.F.R. § 100.2(a); 28 C.F.R. § 0.105. 29. On March 1, 2003, INS ceased to exist and its principal functions were transferred to the newly created USCIS within Department of Homeland Security. See Homeland Security Act of 2002, Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified at 6 U.S.C. § 291(a)); 8 U.S.C. § 1103(a)(1). Authority and responsibility to
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administer and enforce all laws pertaining to immigration, including the adjudication of naturalization applications, was transferred from the Commissioner of the INS to the Director of USCIS. See 6 U.S.C. § 271(b)(2); 8 U.S.C. § 1103(a)(1).
30. In order to apply for naturalization, an immigrant must be lawfully admitted as a permanent resident of the United States. 8 U.S.C. § 1427(a). An immigrant must generally reside as a lawful permanent resident in the United States for three or five years prior to filing an application for naturalization with USCIS. 8 U.S.C. § 1427(a); 8 U.S.C. § 1445(a), (b); 8 C.F.R. §§ 316.4, 334.1, 334.2.
31. After receipt of an application for naturalization, USCIS must conduct a background investigation of the applicant. 8 U.S.C. § 1446(a); 8 C.F.R. §§ 335.1, 335.2.
32. Since 1997, Congress has also required that a complete FBI criminal background investigation be conducted on each applicant for citizenship before USCIS may adjudicate an application. Pub. L. 105-119, Title I, 111 Stat. 2440, 2448-49 (1997).
33. In March of 1998, INS promulgated a regulation implementing the 1997 law requiring that a complete FBI criminal background investigation be conducted on each applicant for citizenship. 8 C.F.R. § 335.2(b). Pursuant to that regulation, prior to USCIS scheduling an applicant for an examination, the FBI must complete fingerprint and database checks to verify whether or not an applicant has an “administrative or a criminal record.” 8 C.F.R. § 335.2(b).
34. USCIS immigration officers must then conduct the examination of applicants for naturalization. 8 U.S.C. § 1446(a); 8 C.F.R. §§ 335.2, 332.1. In order for a naturalization application to be granted, an immigrant must meet certain requirements, including: a sufficient period of physical presence in the United States; good moral character; and an understanding of the English language and the history and government
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of the United States. 8 U.S.C. §§ 1423, 1427(a). The immigration officer must determine whether the application should be granted or denied, with reasons therefore. 8 U.S.C. § 1446(d).
35. USCIS shall grant naturalization applications if applicants have complied with all requirements for naturalization. 8 C.F.R. § 335.3(a).
36. If a naturalization application is granted, USCIS must schedule the applicant for a ceremony at which the applicant takes the “oath of renunciation and allegiance” and is sworn in as a citizen of the United States. 8 U.S.C. § 1448(a).
37. A decision to grant or deny the naturalization application must take place “at the time of the initial examination or within 120-days after the date of the initial examination.” 8 C.F.R. § 335.3(a).
38. If an application for naturalization has not resulted in a determination within 120 days of the date of the applicant’s examination, 8 U.S.C. § 1447(b) and its implementing regulation, 8 C.F.R. § 310.5, grant the applicant the right to apply to the United States district court in the district in which he or she resides. Such district court has jurisdiction to either determine the matter de novo or remand the matter to USCIS, with appropriate instructions to determine the matter. 8 U.S.C. § 1447(b); 8 C.F.R. § 310.5.
39. 8 U.S.C. § 1571 states that “it is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application, except that a petition for a nonimmigrant visa under section 1184(c) of this title should be processed not later than 30 days after the filing of the petition.” The term “immigration benefit application” means any application or petition to confer, certify, change, adjust, or extend any status granted under the
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Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., including naturalization. 8 U.S.C. § 1572.
40. USCIS has also publicly stated that applications for naturalization should be adjudicated within six months of the filing of the naturalization application. See U.S. Citizenship and Immigration Services, Questions and Answers: Building an Immigration Service for the 21st Century, http://www.uscis.gov/files/pressrelease/QABuilding1.pdf (last visited Mar. 6, 2008).
41. “The Attorney General shall take such measures as may be necessary to-(1) reduce the backlog in the processing of immigration benefit applications, with the objective of the total elimination of the backlog within one year after November 25, 2002; (2) make such other improvements in the processing of immigration benefit applications as may be necessary to ensure that a backlog does not develop after such date; and (3) make such improvements in infrastructure as may be necessary to effectively provide immigration services.” 8 U.S.C. § 1573.
42. The Administrative Procedure Act (“APA”) directs agencies to conclude matters presented to them “within a reasonable time.” 5 U.S.C. § 555(b). When an agency fails to conclude a matter presented to it within a reasonable time, the APA grants judicial review to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). “Agency action” is defined by the APA as “the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13).
43. The APA further requires administrative agencies to provide a notice-andcomment period prior to implementing a substantive rule, including a rule that is a
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departure from prior policy and practice and that has a substantial adverse effect upon a
large number of those affected. 5 U.S.C. § 553.
44. The Due Process Clause of the Fifth Amendment to the United States
Constitution prohibits the government from depriving any person of life, liberty or
property without due process of law. U.S. Const., amend. V.
CLASS ACTION ALLEGATIONS
45. Named Plaintiffs bring this action pursuant to Fed R. Civ. P. 23(a) and
23(b)(2), on behalf of themselves and a proposed class of:
All lawful permanent residents who reside in the counties served by the New York District Office of USCIS and who have submitted or will submit applications for naturalization to USCIS, and whose applications for naturalization have not been or will not be adjudicated by USCIS within 180 days of the date of submission.
46. The proposed Plaintiff class includes a sub-class of Plaintiffs (hereinafter
“Post-Examination Plaintiffs”) that consists of:
All lawful permanent residents who reside within the counties in the Southern District of New York served by the New York District Office of USCIS, and who have submitted or will submit applications for naturalization to USCIS, and whose applications for naturalization have not been or will not be adjudicated by USCIS within 120 days of the date of their initial examination.
47. This proposed class is so numerous that joinder of all members is
impracticable. Upon information and belief, there are thousands of proposed class
members and proposed sub-class members who are similarly situated to the named
Plaintiffs.
48. There are questions of fact and law common to the proposed class that
predominate over any questions affecting only the individual named Plaintiffs, including:
(1) whether USCIS’s actions and omissions, including its failure to adjudicate the
naturalization applications of the proposed plaintiff class within 180 days of the date of 12

submission, violate the INA and implementing regulations and constitute unreasonable delay and unlawful withholding of agency action in violation of the APA and the Due Process Clause of the Fifth Amendment to the United States Constitution; (2) whether the FBI’s actions and omissions, including its failure to complete name checks in a timely fashion so as to allow USCIS to adjudicate the naturalization applications of the proposed plaintiff class within 180 days of the date of submission in accordance with the governing timeliness standards, constitute unreasonable delay and unlawful withholding of agency action in violation of the APA; (3) whether USCIS’s and the FBI’s failure to set deadlines for completing name checks and failure to take all reasonable steps necessary to complete the adjudication of applications for naturalization of the proposed plaintiff class within 180 days of the date of submission in accordance with the governing timeliness standards violate the APA; and (4) whether USCIS’s implementation of a policy or practice of requiring an FBI name check to be completed before adjudicating a naturalization application without first publishing a proposed regulation and providing a notice-and-comment period violates the APA.
49. There are questions of fact and law common to the proposed sub-class that predominate over any questions affecting only the individual named Plaintiffs, including whether USCIS Defendants and Defendant MUKASEY’s failure to adjudicate proposed class members’ naturalization applications within 120 days of their initial examinations violates 8 C.F.R. § 335.3 and 8 U.S.C. § 1447(b).
50. The claims of the named Plaintiffs are typical of the claims of the proposed class. The named Plaintiffs, like all class members, are lawful permanent residents who have submitted applications for naturalization, and whose applications USCIS has not adjudicated despite the passage of over 180 days since the date of
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submission. Like all members of the proposed class, the named Plaintiffs bring claims under the APA and under the Due Process Clause of the Fifth Amendment to the United States Constitution against all Defendants. Plaintiff SANCHEZ, like all members of the proposed sub-class, resides in the Southern District of New York and brings a claim against USCIS Defendants and Defendant MUKASEY because he has not had his naturalization application adjudicated within 120 days of his initial examination.
51. The named Plaintiffs will adequately and fairly protect the interests of all members of the proposed class, because they have the requisite personal interest in the outcome of this litigation and they have no interest antagonistic to others in the proposed class.
52. Plaintiff SANCHEZ will fairly and adequately protect the interests of all members of the proposed Post-Examination Plaintiffs sub-class because he seeks relief on behalf of the class as a whole and has no interests antagonistic to other members of the sub-class.
53. Plaintiffs are represented by the Puerto Rican Legal Defense and Education Fund and the New York Legal Assistance Group, whose attorneys are experienced in class-action litigation generally and specifically litigation concerning the rights of immigrants.
54. Defendants have acted on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole.
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FACTUAL ALLEGATIONS COMMON TO THE CLASS 55. USCIS Defendants and Defendant MUKASEY have a custom and practice of unlawfully withholding and unreasonably delaying the adjudication of proposed class members’ applications for naturalization. 56. USCIS Defendants and Defendant MUKASEY have a custom and practice of failing to adjudicate proposed sub-class members’ applications for naturalization within 120 days of their initial examinations. 57. All Defendants have a custom and practice of failing to take all steps necessary to adjudicate proposed class members’ applications for naturalization within a reasonable time. 58. Defendants MUKASEY and MUELLER have a custom and practice of failing to complete within a reasonable time the FBI name checks performed in connection with USCIS’s adjudication of naturalization applications. 59. Defendants’ actions prevent proposed class members from exercising all the rights and privileges of citizenship, including the right to vote. Criminal Background Checks 60. USCIS requests an FBI fingerprint check in connection with every naturalization application. 61. The FBI fingerprint check reveals any criminal record associated with an applicant’s fingerprints. 62. USCIS conducts both a check of the records in the Department of Homeland Security immigration systems and a check against the U.S. Customs and Border Protection’s Treasury Enforcement Communications System (“TECS”),
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previously known as the Interagency Border Inspection Systems (“IBIS”), in connection with every naturalization application.
63. IBIS/TECS is a collection of data from more than 20 federal agencies that includes wants and warrant information, lookout information, and watch-list information. FBI Name Checks
64. USCIS requests FBI to conduct a name check in connection with every application for naturalization separate and apart from the FBI fingerprint and IBIS/TECS checks.
65. USCIS will not grant an application for naturalization before FBI completes the applicant’s name check and USCIS reviews the results of FBI’s name check.
66. Beginning around November 2002, USCIS and FBI dramatically altered the naturalization application procedure by requiring FBI to review additional files in connection with its name check, including files in which an applicant’s name is mentioned merely because he or she was a witness to or reported a crime. Consequently, the number of files that FBI reviews in connection with the name check increased exponentially and significantly delayed the completion of the name check for hundreds of thousands of naturalization applicants. In many cases, it takes FBI several years from the time that FBI receives a name check request before an FBI analyst even looks at the contents of these files.
67. USCIS has never initiated a notice and comment procedure pursuant to the APA in connection with its requirement that FBI name checks be completed prior to the grant of naturalization applications.
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68. The FBI name check procedures were substantive departures from prior USCIS policy. They imposed new requirements in naturalization procedures that were not based on statute or regulations and they have had substantial adverse effects on applicants for naturalization by causing significant delays in adjudication.
69. USCIS and FBI instituted the name check procedures without engaging in any meaningful assessment of the value of the information to be obtained from the name checks or the impact that the dramatic alteration of the name check program would have on the adjudication of naturalization applications.
70. Neither USCIS nor FBI has ever imposed any deadlines for completing FBI name checks for naturalization applicants.
71. Hundreds of thousands of name checks are currently pending with the FBI name check program, including the names checks of applicants who applied for naturalization in 2002-2003. Adverse Effects of the FBI Name Checks
72. The imposition of the FBI name checks has significantly delayed the adjudication of naturalization applications.
73. The imposition of the FBI name checks is of no additional value to national security.
74. There are currently approximately 140,000 name checks requested by USCIS that have been pending with FBI for more than six months.
75. USCIS’s review of the results of the FBI name checks often contributes to further significant delays in the adjudication of naturalization applications.
76. USCIS’s Ombudsman, and his predecessor the DHS Inspector General, have issued repeated recommendations that USCIS cease requiring name checks on all
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naturalization applicants but only perform them in a limited number of cases selected in a risk based approach. See Citizenship and Immigration Services Ombudsman Annual Report 2006 Report (hereinafter “2006 Report”) at 26, http://www.dhs.gov/xlibrary/ assets/CISOmbudsman_AnnualReport_2006.pdf (last visited Mar. 6, 2008).
77. Naturalization applicants do not pose a special danger or threat to national security.
78. Lawful Permanent Residents (LPRs) who apply for naturalization have already undergone a full criminal background check and in most cases an FBI name check prior to their application for naturalization.
79. USCIS has never ascertained the total number of naturalization applications that USCIS has denied based on derogatory information obtained by the agency exclusively by means of the FBI name checks.
80. In most cases an applicant for naturalization is living in the United States while the application for naturalization is pending. The Increase in Naturalization Application Fees
81. The fee charged by USCIS for naturalization applications prior to July 2007 was not adequate to cover the costs of processing the applications, resulting in widespread delays.
82. In July 2007, USCIS increased the fee it charges for the processing of naturalization applications by approximately 80 percent. This was the first increase in the fee, except for a cost-of-living increase in 2005, since 1998.
83. USCIS Defendants last conducted a comprehensive review, evaluating the adequacy of the naturalization application fee, in 1998.
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84. When USCIS Defendants raised the naturalization application fee in 2007, they failed to take reasonable steps to accommodate the surge in naturalization applications prior to the fee increase, even though prior experience indicated that such a surge would occur.
85. In November, 2007, CIS made a public announcement that naturalization applications filed after June 1, 2007 would take approximately 16 to 18 months to process as a result of the huge number of applications filed during the summer of 2007.
86. As a result of the Defendants’ policies, practices, actions, and omissions described herein, members of the proposed plaintiff class have suffered and will suffer injury, in that they are denied various rights and benefits of U.S. citizenship, including being able to:
a. vote in local, state, and national elections; b. sponsor immediate relatives living abroad for permanent residence in the United States; c. travel freely outside of the United States as they do not have U.S. passports and the guarantee of re-admission into the country upon their return; and d. apply for certain types of employment, educational grants and loans, and other benefits that are limited to U.S. citizens.
FACTS OF NAMED PLAINTIFFS Plaintiff VIRGINIA MILANES
87. Plaintiff VIRGINIA MILANES immigrated to the United States as a lawful permanent resident on or about June 19, 2003, with her husband William Milanes. Ms. MILANES’s husband is a United States citizen.
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88. Ms. MILANES filed her naturalization application on or about August 16,
2006, and was fingerprinted in connection with her application for naturalization on
September 5, 2006.
89. USCIS has still not scheduled Ms. MILANES for a naturalization
examination and/or interview.
90. Ms. MILANES has made numerous efforts to expedite the adjudication of
her naturalization application. On several occasions, Ms. MILANES contacted the office
of United States Congressman Jose Serrano concerning the status of her naturalization
application.
91. Congressman Serrano’s office sent an email inquiry to USCIS’s
Congressional Unit in August of 2007. Angie Johnson of the USCIS’s Vermont Service
Center Congressional Unit stated the following in an email response dated August 10,
2007:
A hearing can not be scheduled until all of the security checks are cleared. Virginia is currently pending name and date of birth checks. The processing of your case has been delayed. A check of your records establishes that your case is not yet ready for decision as the required security checks remain pending. Until the security checks have been completed, we can not move forward on your case. We will make every effort to make a decision on this case as soon as the security checks are complete. If you do not receive a decision or other notice of action from us within 6 months of this letter, please contact us.
92. Congressman Serrano’s office again contacted USCIS’s Congressional
Unit on Ms. MILANES’s behalf in November of 2007 and received a similar email
response.
93. In February of 2008, Congressman Serrano’s office contacted USCIS’s
Congressional Unit via telephone concerning the status of Ms. MILANES’s application
and was told that the security checks were not yet complete.
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94. Ms. MILANES still has not received any notification of when her naturalization examination and interview will be scheduled, although it has been 568 days (over 18 months) since she submitted her naturalization application to USCIS.
95. Ms. MILANES suffers greatly from the delay in the processing of her naturalization application. Ms. MILANES’s husband William, her son Ramon, and her grandchildren are all citizens of the United States. Ms. MILANES wishes she could be a citizen of the same country as her family. Moreover, Ms. MILANES longs to be able to vote in this fall’s presidential election and participate fully in the democratic process of the United States. Plaintiff OMAR MIGUEL FARFAN
96. Plaintiff OMAR MIGUEL FARFAN immigrated to the United States in 1992 as a teenager with his family, and became a lawful permanent resident on March 16, 1993.
97. Mr. FARFAN submitted his first application for naturalization in the late 1990s, after about five years of lawful permanent residency. At that time, Mr. FARFAN was engaged in active duty in the United States Navy. During 2002 or 2003, after Mr. FARFAN was honorably discharged from service, INS informed him that his file was lost and that he would need to submit a new application for naturalization.
98. Mr. FARFAN submitted his second application for naturalization to USCIS on April 29, 2004, after twelve years of lawful permanent residency. On August 9, 2005, Mr. FARFAN was interviewed and examined by a Service Officer at USCIS in connection with his naturalization application.
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99. Upon the completion of his interview, Mr. FARFAN was informed that he had passed the examination and had satisfied all of the naturalization requirements. However, he did not receive an invitation to a naturalization oath ceremony.
100. Thereafter, Mr. FARFAN made numerous attempts to inquire into the status of his case. Mr. FARFAN telephoned USCIS’s customer service line at least twice to inquire about the status of his application. Additionally, Mr. FARFAN traveled to the USCIS offices to make in-person inquiries. On each occasion, Mr. FARFAN was told that his application was pending because background checks remained outstanding.
101. In mid-2007, Mr. FARFAN hired a private immigration lawyer to attempt to get his naturalization application adjudicated. His lawyer submitted an inquiry to USCIS on November 28, 2007. In response, USCIS replied that Mr. FARFAN’s application “is currently pending security background checks.”
102. Around that same time, Mr. FARFAN also contacted his United States Congressman requesting that he submit an inquiry to USCIS on Mr. FARFAN’s behalf. USCIS also replied to Mr. FARFAN’s Congressman that Mr. FARFAN’s application was “pending security background checks.”
103. Mr. FARFAN suffers greatly due to the extreme delay in the adjudication of his naturalization application. Having served several years in the United States Armed Forces, and having been decorated with honors and awards, Mr. FARFAN wants very much to be citizen of the country he has served to protect. Moreover, Mr. FARFAN wants greatly to be able to vote and participate meaningfully in civic affairs. Mr. FARFAN feels that this year’s presidential election is an especially important opportunity and wants to be a part of selecting the leadership of the country in which he resides. Mr. FARFAN is currently enrolled in college, and additionally works full-time to support his
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two children, both of whom are United States citizens. Mr. FARFAN would like to seek employment in the federal government, but cannot because he is not a citizen.
104. At the time of the filing of this Complaint, Mr. FARFAN’s naturalization application has not been adjudicated. It has been 1,407 days (over 46 months) since the date he submitted his naturalization application and 940 days (over 30 months) since the date of his examination. Plaintiff MANUEL ALBERTO MARTINEZ
105. Plaintiff MANUEL ALBERTO MARTINEZ became a lawful permanent resident of the United States on April 20, 2001.
106. Mr. MARTINEZ submitted his application for naturalization to USCIS on January 30, 2006, after almost five years of lawful permanent residency. Mr. MARTINEZ was fingerprinted in connection with his application for naturalization on February 24, 2006.
107. On May 10, 2006, Mr. MARTINEZ was interviewed and examined by a Service Officer at the Garden City location of the New York City District of USCIS in connection with his naturalization application.
108. Upon the completion of the examination, Mr. MARTINEZ was informed that he had passed the examination and had satisfied the naturalization requirements. However, he did not receive an invitation to a naturalization ceremony.
109. USCIS never initiated contact with Mr. MARTINEZ again. Since his examination, Mr. MARTINEZ has made several attempts to inquire about the status of his application. He made numerous telephone calls to the USCIS customer service line requesting the status of his application. On each occasion, he was informed that his case was “pending security checks.”
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110. Moreover, since Mr. MARTINEZ’s examination, his attorney has submitted numerous written inquiries to USCIS, the last of such inquiries dated February 13, 2008. Each time, USCIS responded that Mr. MARTINEZ’s application was pending background checks.
111. The delay in the adjudication of Mr. MARTINEZ’s naturalization application has caused him great distress and hardship. Mr. MARTINEZ has an elderly mother who lives in Mexico whom he would like to apply to bring to the United States to live with him and his United States citizen children. However, he cannot do so until he becomes a citizen of the United States. Moreover, he fears that he may miss the opportunity to vote in the upcoming presidential election and to participate in the political debate regarding Latino immigrants. Mr. MARTINEZ is deeply concerned about federal economic policies and if he could vote, would be able to impact those policies. He wants to enjoy the usual benefits of US citizenship.
112. At the time of the filing of this Complaint, Mr. MARTINEZ’s naturalization application has not been adjudicated. It has been 766 days (over 25 months) since the date he submitted his naturalization application and 666 days (over 21 months) since the date of his examination. Plaintiff ANDRES GIOVANNY SANCHEZ
113. Plaintiff ANDRES GIOVANNY SANCHEZ immigrated with his parents to the United States as a lawful permanent resident on or about November 28, 1999.
114. Mr. SANCHEZ filed a naturalization application on or about December 20, 2004, after five years of lawful permanent residency. Mr. SANCHEZ was fingerprinted in connection with his application for naturalization on February 11, 2005.
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115. On October 13, 2005, Mr. SANCHEZ was interviewed and examined by a Service Officer at USCIS. At that interview, Mr. SANCHEZ was given written notification that he had passed the requisite English and United States history and government tests and would thereafter receive a written decision about his application.
116. USCIS has not initiated contact with Mr. SANCHEZ to date, almost two and a half years after his examination, despite many efforts on his part to expedite the adjudication of his application.
117. Mr. SANCHEZ scheduled an appointment to meet with an immigration officer on February 28, 2006, about the status of his application for naturalization. At that appointment, Mr. SANCHEZ was notified that his application was pending because security checks were not complete, and that a decision would be made once USCIS received the results of all outstanding security checks.
118. Subsequently, Mr. SANCHEZ made similar inquiries about the status of his application and received similar responses on June 20, 2006, July 12, 2006, January 10, 2007, March 19, 2007, April 11, 2007, November 2, 2007, and January 28, 2008.
119. On or about April, 2007, Mr. SANCHEZ contacted the office of United States Senator Hillary Clinton for assistance in prompting the adjudication of his naturalization application. Senator Clinton’s office contacted the FBI in July of 2007, inquiring about the status of Mr. SANCHEZ’s name check. In an email response dated October 3, 2007, the FBI stated that it does not expedite name check requests. It went on to state that the customer agency (USCIS) determines which name checks are expedited and confirmed that a review of the FBI’s Name Check Program database concerning Mr. SANCHEZ revealed that the request was “received from USCIS on January 8, 2005 and
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is currently in process . . . [w]hile an exact date for completion of review can not be given.”
120. Mr. SANCHEZ suffers greatly from the delay in adjudication of his naturalization applicant. Mr. SANCHEZ’s wife, Enelli Altagracia Ortiz, and their fiveyear-old son, Giovanny Alfonzo Sanchez, reside in the Dominican Republic. Mr. SANCHEZ greatly misses his family and awaits the adjudication of his application for naturalization so that reunification with his family can occur in a more timely fashion. Mr. SANCHEZ also desires to be able to vote in this year’s presidential election and to be able to fully participate in the democratic process of this country.
121. Mr. SANCHEZ has not had his application for naturalization adjudicated. Mr. SANCHEZ’s application for naturalization has been pending for 1,172 days (over 38 months) since the date he submitted his naturalization application and 875 days (over 28 months) since the date of his examination. Plaintiff NANCY CASTRO
122. Plaintiff NANCY CASTRO entered the United States as a lawful permanent resident on or about January 23, 1983, with her husband Angel Francisco Castro, also a lawful permanent resident.
123. Ms. CASTRO filed her naturalization application on or about August 24, 2006, and was fingerprinted in connection with her application for naturalization in September of 2006.
124. Ms. CASTRO thereafter received notification from USCIS that her interview and examination for naturalization was scheduled for August 7, 2007. However, shortly thereafter, Ms. CASTRO received another notification from USCIS
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informing her that her scheduled naturalization examination was cancelled and would be rescheduled. The notification did not provide a reason for the cancellation.
125. To date, almost a year and a half after her application for naturalization was submitted, Ms. CASTRO is still waiting for her interview and examination for naturalization to be rescheduled, even though it has been 560 days (over 18 months) since she submitted her naturalization application to USCIS.
126. In an effort to determine the source of the delay in the adjudication of her naturalization application, Ms. CASTRO has made an appointment to meet with an immigration officer during March of 2008.
127. Ms. CASTRO suffers greatly from the delay in the processing and adjudication of her naturalization application. Ms. CASTRO’s husband, two of her children and four of her grandchildren are all citizens of the United States. Ms. CASTRO greatly wants to become a citizen of the same country as her family. Ms. CASTRO also wants to be able to vote for her chosen candidate in this fall’s presidential election and to be able to participate fully in the democratic process of the United States. Plaintiff MARGOTH PEREZ De CHALAMPA
128. Plaintiff MARGOTH PEREZ De CHALAMPA entered the United States as a lawful permanent resident on or about July 13, 2002, with her husband, a United States citizen, and their then four-year-old daughter.
129. Ms. PEREZ De CHALAMPA filed an application for naturalization on or about July 23, 2007, just prior to the scheduled naturalization application fee increase, and was fingerprinted in connection with her application for naturalization on September 28, 2007.
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130. To date, Ms. PEREZ De CHALAMPA has not received any notification of when her examination and interview will be scheduled. Ms. PEREZ De CHALAMPA has been informed that USCIS has announced that all naturalization applications may take approximately 16-18 months to process, before the applicant is even scheduled for an interview and examination.
131. Ms. PEREZ De CHALAMPA suffers greatly from USCIS’s delay in the processing of her naturalization application. Ms. PEREZ De CHALAMPA has a medical degree from a university in Bolivia, but currently works as a Health Care Coordinator for a Head Start program. She would like to apply for other state or federal government positions, which have higher salaries, but those positions are only available to United States citizens. In addition, Ms. PEREZ De CHALAMPA very much wants to vote in this fall’s presidential election and to fully participate in the democratic process of this country.
132. At the time of the filing of this Complaint, Plaintiff PEREZ De CHALAMPA has yet to receive an appointment for her naturalization examination, although it has been 227 days (over 7 months) since she submitted her naturalization application to USCIS.
STATEMENT OF CLAIMS FIRST CLAIM FOR RELIEF 133. USCIS Defendants and Defendant MUKASEY’s failure to adjudicate proposed class members’ applications for naturalization within 180 days of the date of their submission or an otherwise reasonable amount of time violates 5 U.S.C. §§ 555(b) and 706(1) and 8 U.S.C. § 1571(b).
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SECOND CLAIM FOR RELIEF 134. USCIS Defendants’ failure to adjudicate proposed sub-class members’ applications for naturalization within 120 days of the date of their initial examination violates 8 U.S.C. § 1447(b), 8 C.F.R. § 335.3 and 5 U.S.C. §§ 555(b) and 706(1).
THIRD CLAIM FOR RELIEF 135. USCIS Defendants’ implementation of a policy or practice of requiring an FBI name check to be completed before adjudicating a naturalization application without first publishing a proposed regulation and providing a notice and comment period violates 5 U.S.C. § 553.
FOURTH CLAIM FOR RELIEF 136. Defendants MUKASEY and MUELLER’s failure to complete FBI name checks requested by USCIS in a reasonable time such that USCIS can adjudicate proposed class members’ applications for naturalization within 180 days or within 120 days of the date of an applicant’s initial examination violates 5 U.S.C §§ 555(b) and 706(1).
FIFTH CLAIM FOR RELIEF 137. All Defendants’ failure to take all steps necessary to adjudicate proposed class members’ applications for naturalization in a reasonable time violates 5 U.S.C §§ 555(b) and 706(1) and the Due Process Clause of the Fifth Amendment to the United States Constitution.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment in their favor as follows: 1. Assume jurisdiction over the matter;
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2. Certify this action as a class action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2) with the class of Plaintiffs and the sub-class of Post-Examination Plaintiffs proposed herein;
3. Issue a declaratory judgment declaring that: a. USCIS Defendants and Defendant MUKASEY’s failure to
adjudicate proposed class members’ applications for naturalization within 180 days of the date of their submission or an otherwise reasonable amount of time violates 5 U.S.C. §§ 555(b) and 706(1) and 8 U.S.C. § 1571(b);
b. USCIS Defendants’ failure to adjudicate proposed sub-class members’ applications for naturalization within 120 days of the date of their initial examination violates 8 U.S.C. § 1447(b), 8 C.F.R. § 335.3 and 5 U.S.C. §§ 555(b) and 706(1);
c. USCIS Defendants’ implementation of a policy or practice of requiring an FBI name check to be completed before adjudicating a naturalization application without first publishing a proposed regulation and providing a notice and comment period violates 5 U.S.C. § 553;
d. Defendants MUKASEY and MUELLER’s failure to complete FBI name checks requested by USCIS in a reasonable time such that USCIS can adjudicate proposed class members’ applications for naturalization within 180 days or within 120 days of the date of an applicants initial examination violates 5 U.S.C §§ 555(b) and 706(1); and
e. All Defendants’ failure to take all steps necessary to adjudicate proposed class members’ applications for naturalization in a reasonable time
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violates 5 U.S.C §§ 555(b) and 706(1) and the Due Process Clause of the Fifth Amendment to the United States Constitution. 4. Immediately adjudicate the naturalization application of Plaintiff SANCHEZ or order USCIS Defendants to immediately adjudicate the naturalization application of Plaintiff SANCHEZ and all members of the proposed sub-class; 5. Remand the naturalization applications of Plaintiffs FARFAN and MARTINEZ to USCIS Defendants with instructions for immediate adjudication; 6. Remand the applications of Plaintiffs MILANES, CASTRO and PEREZ De CHALAMPA to USCIS Defendants with instructions for immediate scheduling of their naturalization examinations and prompt adjudication of their applications; 7. Issue a permanent injunction ordering:
a. USCIS Defendants and Defendant MUKASEY to adjudicate the naturalization applications of all proposed class members immediately, and for those who applied for naturalization prior to March 26, 2008 and are found eligible for naturalization, to ensure that they are naturalized in time to register for the November 2008 election;
b. all Defendants to take all steps necessary to adjudicate the naturalization applications of all proposed class members immediately, and for those who applied for naturalization prior to March 26, 2008 and are found eligible for naturalization, to ensure that they are naturalized in time to register for the November 2008 election; and
c. USCIS Defendants to adjudicate all naturalization applications without waiting for the results of FBI name checks;
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8. Award reasonable attorneys’ fees and costs pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504, 28 U.S.C. § 2412; and
9. Grant any and all further relief this Court deems just and proper. Dated: New York, New York
March 6, 2008 Respectfully submitted,
______________________________ FOSTER MAER (FM0680) PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND José Perez (JP0116) Jackson Chin (JC3494) 99 Hudson Street, 14th Floor New York, New York 10013 Tel. (212) 219-3360
YISROEL SCHULMAN (YS3017) NEW YORK LEGAL ASSISTANCE GROUP Jane Greengold Stevens, Of Counsel (JS4790) Deborah Berkman, Of Counsel (DB9491) Jason Parkin, Of Counsel (JP1919) Michael D. Sant’Ambrogio, Of Counsel (MS2337) 450 West 33rd Street, 11th Floor New York, New York 10001 Tel. (212) 613-5000
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 Case 1:08-cv-02354-LMM -KNF Document 39 Filed 06/19/08 Page 1 of 100

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------------x VIRGINIA MILANES, et al.,
Plaintiffs,
v.
MICHAEL CHERTOFF, et al.,
Defendants. --------------------------------------------------------------------x

ECF Case 08 Civ. 2354 (LMM) (KNF)

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS IN PART AND REMAND IN PART, OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT, AND IN OPPOSITION TO PLAINTIFFS’ MOTIONS FOR
A PRELIMINARY INJUNCTION AND CLASS CERTIFICATION

TOMOKO ONOZAWA KIRTI VAIDYA REDDY ROBERT WILLIAM YALEN Assistant United States Attorneys
– Of Counsel –

MICHAEL J. GARCIA United States Attorney for the Southern District of New York 86 Chambers Street, 3rd Floor New York, New York 10007 Tel: (212) 637-2722 Fax: (212) 637-2687

Case 1:08-cv-02354-LMM -KNF Document 39 Filed 06/19/08 Page 2 of 100
TABLE OF CONTENTS Page
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. The Naturalization Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. Statutory Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2. Volume of Applications and Current Processing Times . . . . . . . . . . . . . . 8 3. The FBI Name Check . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 a. The FBI Name Check Process . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 b. Origin of the FBI Name Check Requirement for Naturalization Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 c. 2002 Changes in Practice Regarding the FBI Name Check . . . . 17
B. Efforts to Reduce Application Processing Times . . . . . . . . . . . . . . . . . . . . . . . . 20 1. Factors Affecting Current Naturalization Processing Times . . . . . . . . . . 20 a. The FBI Name Check . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 b. The “Surge” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 c. Individualized Factors Affecting Processing Times . . . . . . . . . . 22 2. Efforts by USCIS and FBI to Reduce Current Processing Times . . . . . . 23 3. Congressional Response to Application Processing Times . . . . . . . . . . . 27 a. Pre-2007 Congressional Action . . . . . . . . . . . . . . . . . . . . . . . . . . 27 b. Congressional Action Since 2007 . . . . . . . . . . . . . . . . . . . . . . . . 29
C. Plaintiffs’ Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 1. Allegations of the Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 2. Status of The Named Plaintiffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

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3. Status of the Proposed Class, Proposed Post-Interview Subclass, and “Preliminary Injunction Group” . . . . . . . . . . . . . . . . . . . . 37
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
I. Plaintiffs’ Complaint Should Be Dismissed in Part and Remanded in Part or, in the Alternative, Defendants Should Be Granted Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
A. Plaintiffs’ Claims Pursuant to APA Section 706(1) Should Be Dismissed for Lack of Jurisdiction . . . . . . . . . . . . . . . . . . . . 39
1. Plaintiffs Are Not Challenging Discrete Agency Action . . . . . . . 40
2. USCIS Has No Duty to Act on a Naturalization Application Prior to Receiving an FBI Name Check Response . . . . . . . . . . . 41
3. FBI Has No Duty to Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
4. The Proposed Post-Interview Subclass’s Specific, Adequate Remedy Pursuant to 8 U.S.C. § 1447(b) Precludes Resort to § 706(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
B. In the Alternative, the Court Should Grant Summary Judgment on Plaintiffs’ Section 706(1) Claims Because the Undisputed Facts Demonstrate that USCIS and FBI Have Not “Unreasonably Delayed”or “Unlawfully Withheld” Agency Action . . . . . . . . . . . . . . . . 48
1. Agency Action Has Not Been Unlawfully Withheld . . . . . . . . . . 49
2. Agency Action Has Not Been Unreasonably Delayed . . . . . . . . 53
C. The Proposed Post-Interview Subclass’s Claims Pursuant to 8 U.S.C. § 1447(b) Should be Remanded for Processing Following the Completion of Any Outstanding FBI Name Checks . . . . . . . . . . . . . 61
D. Plaintiffs’ Notice-and-Comment Claims Should Be Dismissed Because the 2002 Changes in Practice Were Not “Legislative Rules” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
1. The 2002 Changes in Practice Did Not Impose ExtraStatutory Rights, Duties or Obligations . . . . . . . . . . . . . . . . . . . . 64
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2. That the 2002 Changes in Practice May Have Had Substantial Effects Does Not Make Them Legislative Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
E. Plaintiffs’ Due Process Claim Should Be Dismissed for Failure to State a Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
F. Plaintiffs Are Not Entitled to Injunctive or Declaratory Relief . . . . . . . . 71 II. Plaintiffs’ Motion for a Preliminary Injunction Should Be Denied . . . . . . . . . . . 74 III. Plaintiffs’ Motion for Class Certification Should Be Denied . . . . . . . . . . . . . . . 76
A. The Proposed Class and Proposed Post-Interview Subclass Are Not Sufficiently Definite to Allow for Identification of Class Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
B. Plaintiffs Cannot Demonstrate Typicality . . . . . . . . . . . . . . . . . . . . . . . . 79 C. With Regard to the Proposed Post-Interview Class, Plaintiffs
Cannot Demonstrate Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 D. Plaintiffs Cannot Satisfy the Rule 23(b)(2) Requirement that
Injunctive or Declaratory Relief Be Appropriate as to the Class as a Whole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 E. Members of the Kaplan Class Should be Excluded from the Class in this Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
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TABLE OF AUTHORITIES

CASES:

PAGES:

A. L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 75

Action on Smoking and Health (ASH) v. Dep’t of Labor, 100 F.3d 991 (D.C. Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 59

Adams v. Suozzi, 517 F.3d 124 (2d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Ahmadi v. Chertoff, 2007 WL 3022573 (N.D. Cal. Oct. 15, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 64

Ahmed v. Mueller, No. 07-0411, 2007 WL 2726250 (E.D. Pa. Sept. 14, 2007) . . . . . . . . . . . . . . . . . . . . . . 43

Alzuraiki v. Heinauer, No. 4:07CV3189, 2008 WL 413861 (D. Neb. Feb. 13, 2008) . . . . . . . . . . . . . . . . . . 43, 46

American Mining Congress v. Mine Safety & Health Administration, 995 F.2d 1106 (D.C. Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Antonishin v. Keisler, No. 06 Civ. 2518, 2007 WL 2788841 (N.D. Ill. Sept. 20, 2007) . . . . . . . . . . 48, 62, 63, 64

Auer v. Robbins, 519 U.S. 452 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Bakalar v. Vavra, 237 F.R.D. 59 (S.D.N.Y. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Balbuena v. Mattingly, Nos. 05 Civ. 2986(TPG) & 07 Civ. 3308 (TPG), 2008 WL 759348 (S.D.N.Y. Mar. 21, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Berenyi v. District Director, 385 U.S. 630 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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Case 1:08-cv-02354-LMM -KNF Document 39 Filed 06/19/08 Page 6 of 100
Boim v. Quranic Literacy Institute, 291 F.3d 1000 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Borromeo Escaler v. U.S. Citizenship & Immigration Services, No. 03 Civ. 8418 (BSJ), 2007 WL 197548546 (S.D.N.Y. July 6, 2007) . . . . . . . . . . . . 47
Bustamante v. Chertoff, 533 F. Supp. 2d 373 (S.D.N.Y. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 51, 61
Central States Southeast & Southwest Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C.,
504 F.3d 229 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Chan v. Gantner, 464 F.3d 289 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Cmty. for Creative Non-Violence v. Lujan, 908 F.2d 992 (D.C. Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Cofone v. Manson, 594 F.2d 934 (2d Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Daniels v. City of New York, 198 F.R.D. 409 (S.D.N.Y. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Disabled in Action of Metropolitan New York v. Hammons, 202 F.3d 110 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 42
Dong Liu v. Chertoff, No. Civ. 07-0005-BEN-WMC, 2007 WL 1300127 (S.D. Cal. Apr. 30, 2007) . . . . . . . . 57
Dow Jones & Co., Inc. v. Harrods Ltd., 346 F.3d 357 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Elizabeth M. v. Montenez, 458 F.3d 779 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Fedorenko v. United States, 449 U.S. 490 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Freeland v. AT & T Corp., 238 F.R.D. 130 (S.D.N.Y. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
General Tel. Co. Of Southwest v. Falcon, 457 U.S. 147 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75, 78
Hani v. Gonzales, No. 3:07-CV-517-S, 2008 WL 2026092 (W.D. Ky. May 8, 2008) . . . . . . . . . . . . . passim
Heckler v. Day, 467 U.S. 104 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 84
Heckler v. Chaney, 470 U.S. 821 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Hoo Loo v. Ridge, No. Civ. 04-5553, 2007 WL 813000 (E.D.N.Y. Mar. 14, 2007) . . . . . . . . . . . . . . . . 35, 53
Ibrahim v. Chertoff, 529 F. Supp. 2d 611 (E.D.N.C. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 46
ICC v. New York, N.H. & H.R. Co., 287 U.S. 178 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
In re Holocaust Victim Assets Litig., 225 F.3d 191 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
In re Barr Laboratories, Inc., 930 F.2d 72 (D.C. Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 73, 74
INS v. Pangilinan, 486 U.S. 875 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Jeffries v. Pension Trust Fund of Pension, Hospitalization and Benefit Plan of Electrical Industry,
No. 99 Civ. 4174 (LMM), 2007 WL 2454111 (S.D.N.Y. Aug. 20, 2007) . . . . . . . . . . . 78
Kaplan v. Chertoff, 481 F. Supp. 2d 370 (E.D. Pa. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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Kaplan v. Chertoff, No. 06-5304 (E.D. Pa. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 86
Lahrar v. USCIS, 485 F. Supp. 2d 705 (E.D. Va. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Langer v. McElroy, No. 00 Civ. 2741(RWS), 2002 WL 31789757 (S.D.N.Y. Dec. 13, 2002) . . . . . . . . . . . 47
Lewis Tree Service, Inc. v. Lucent Technologies Inc., 211 F.R.D. 228 (S.D.N.Y. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Liberty Fund, Inc. v. Chao, 394 F. Supp. 2d 105 (D.D.C. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 58, 59, 60
Lincoln v. Vigil, 508 U.S. 182 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 63, 65
Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Maldonado v. Ochsner Clinic Foundation, 493 F.3d 521 (5th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094 (D.C. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 59
Mathews v. Eldridge, 424 U.S. 319 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Matican v. City of New York, 524 F.3d 151 (2d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Mejia-Ruiz v. Immigration & Naturalization Service, 51 F.3d 358 (2d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 65, 69
Mocanu v. Mueller, Nos. 07-0445, 07-0971, 07-3223, 07-2718, 07-2859, 08-195, 2008 WL 372459 (E.D. Pa. Feb. 8, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 68
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Monahan v. Dorchester Counseling Center, Inc., 961 F.2d 987 (1st Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 50
National Audubon Soc’y v. Hoffman, 132F. 3d at 14-15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Natural Resources Defense Council, Inc. v. Muszynski, 268 F.3d 91 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Natural Resources Defense Council v. Fox, 93 F. Supp. 2d 531 (S.D.N.Y. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
New York State Elec. & Gas Corp. v. Saranac Power Partners, L.P., 267 F.3d 128 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 65, 69
Olim v. Wakinekona, 461 U.S. 238 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004)June 18, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Omar v. Mueller, 501 F. Supp. 2d 636 (D.N.J. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Patil v. Mueller, No. 07 CV 71 (JCC), 2007 WL 1302752 (E.D. Va. Apr. 30, 2007) . . . . . . . . . . . . . . . . 57
Perales v. Sullivan, 948 F.2d 1348 (2d Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Public Citizen Health Research Group v. Comm’r, 740 F.2d 21 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Raymond Proffitt Found. v. United States Army Corps of Eng’rs, 128 F. Supp. 2d 762 (E.D. Pa. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Reddy v. CFTC, 191 F.3d 109 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 79
Rios v. Marshall, 100 F.R.D. 395 (S.D.N.Y. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
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Rivera-Powell v. New York City Bd. of Elections, 470 F.3d 458 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Robinson v. First Nat. City Bank, 482 F. Supp. 92 (S.D.N.Y. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Rodriguez v. McLoughlin, 214 F.3d 328 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Safadi v. Howard, 466 F. Supp. 2d 696 (E.D. Va. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Seattle Audubon Soc'y v. Norton, No. C05-1835L, 2006 WL 1518895 (W.D. Wash. May 25, 2006) . . . . . . . . . . . . . . . . . 49
Shalabi v. Gonzalez, No. 4:06CV866, 2006 WL 3032413 (E.D. Mo. Oct. 23, 2006) . . . . . . . . . . 46, 62, 67, 74
Sinha v. Upchurch, No. 1:07 CV 2274, 2007 WL 4322225 (N.D. Ohio Dec. 7, 2007) . . . . . . . . . . . . . . 44, 46
Sweet v. Sheehan, 235 F.3d 80 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Telecommunications Research and Action Center v. FCC (“TRAC”), 750 F.2d 70 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Tunick v. Safir, 209 F.3d 67 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
United States v. Ginsberg, 243 U.S. 472 (1917) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 71
United States ex rel. Dunlap v. Black, 128 U.S. 40 (1888) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
United States v. Harris, 13 F.3d 555 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
United States v. Maria, 186 F.3d 65 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
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Velez v. Novartis Pharmaceuticals Corp., 244 F.R.D. 243 (S.D.N.Y. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Wang v. Gonzalez, No. 07-2272 JWL-DJW, 2008 WL 45492 (D. Kan Jan. 2, 2008) . . . . . . . . . . . . . . . 44, 47
Webster v. Doe, 486 U.S. 592 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 76, 77
White v. Shalala, 7 F.3d 296 (2d Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Wright v. Giuliani, 230 F.3d 543 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Yakus v. United States, 321 U.S. 414 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Yang v. California Dep’t of Social Servs., 183 F.3d 953 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 50
STATUTES: 2 U.S.C. § 501(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 2 U.S.C. § 502(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 5 U.S.C. § 552(a)(6)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 5 U.S.C. § 553 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 5 U.S.C. § 5514 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 5 U.S.C. § 701(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 5 U.S.C. § 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
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5 U.S.C. § 704 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 5 U.S.C. § 706(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 40 8 U.S.C. § 1421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 8 U.S.C. § 1427 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 8 U.S.C. § 1443(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 8 U.S.C. § 1445(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 8 U.S.C. § 1446 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 8 U.S.C. § 1447 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 8 U.S.C. § 1571(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 8 U.S.C. § 1571(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 49 8 U.S.C. § 1573 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32, 51 8 U.S.C. § 1574 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 49 8 U.S.C. § 1612(a)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 8 U.S.C. § 335.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 8 U.S.C. § 335.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 19 U.S.C. § 1673b(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 42 U.S.C. § 1316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
REGULATIONS: 8 C.F.R. §§ 100.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 8 C.F.R. § 335.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 8 C.F.R. § 335.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Case 1:08-cv-02354-LMM -KNF Document 39 Filed 06/19/08 Page 13 of 100 8 C.F.R. § 335.2(b)(1)-(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 8 C.F.R. § 335.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 RULES: Fed. R. Civ. P. 23(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Fed. R. Civ. P. 23(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Fed. R. Civ. P. 23(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Fed. R. Civ. P. 23(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78, 84 Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 OTHER: 56 Fed. Reg. 50475 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 60 Fed. Reg. 6647 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Defendants Michael Chertoff (“Chertoff”), Jonathan Scharfen (“Scharfen”)1, Andrea Quarantillo (“Quarantillo”), Michael B. Mukasey (“Mukasey”), and Robert S. Mueller, III (“Mueller”) (collectively, “defendants” or the “Government”), all sued in their official capacities as officers of or with authority over United States Citizenship and Immigration Services (“USCIS”) or the Federal Bureau of Investigation (“FBI”), respectfully submit this memorandum (i) in support of their motion to dismiss the complaint in part and to remand in part, or in the alternative, for summary judgment, and (ii) in opposition to plaintiffs’ motions for a preliminary injunction and for class certification.
PRELIMINARY STATEMENT Plaintiffs seek to have this Court do what Congress has chosen not to do: Impose a sixmonth deadline on the processing of naturalization applications, or some other deadline that plaintiffs deem “reasonable.” The processing times about which plaintiffs complain are not a new phenomenon. Indeed, Congress, which has plenary power over naturalization, see Const., Art. I, § 8, cl. 4, has focused for decades on application processing times. Moreover, in recent years, Congress has specifically addressed how to harmonize the country’s interest in checking the background of naturalization applicants with its interest in ensuring that applications are processed in a timely fashion. Congress has chosen not to impose the six month deadline plaintiffs’ seek, nor to direct the agency to limit the extent to which it conducts background checks on applicants, which is one cause of lengthy processing times. Instead, Congress has appropriated additional funds to enable USCIS and FBI to reduce processing times while
1 The complaint names Emilio Gonzalez (“Gonzalez”), then-director of United States Citizenship and Immigration Services (“USCIS”), as a defendant in his official capacity. Gonzalez has been succeeded in office by Scharfen, who became Acting Director of USCIS on April 21, 2008. Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Scharfen has been automatically substituted for Gonzalez as defendant.

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continuing to perform all necessary security checks, and has mandated that the agencies develop a business plan for doing so. The agencies have prepared such a business plan and are working to reduce processing times, as Congress intended. The Court should reject plaintiffs’ request that it strike its own balance of efficiency and security, one different from what the political branches have set.
Each of plaintiffs’ claims fails because plaintiffs’ desired relief is inconsistent with Congress’s scheme. First, plaintiffs’ claims that USCIS has “unreasonable delayed” or “unlawfully withheld” agency action with respect to the naturalization applications, allegedly in violation of section 706(1) of the Administrative Procedure Act (“APA”), should be dismissed for lack of jurisdiction, and, in any event, the Court should grant defendants summary judgment on the merits. Section 706(1) waives the sovereign immunity of the United States only where plaintiffs challenge an agency’s failure to take a discrete action that it is has a duty to take. Here, no waiver of sovereign immunity exists pursuant to section 706(1) and, therefore, the Court lacks subject-matter jurisdiction for several reasons: First, plaintiffs’ purported class action does not seek an order compelling discrete agency action, but rather seeks a programmatic revision of USCIS’s practices with respect to the statutory requirement that USCIS undertake a “full criminal background check” and a “personal investigation” of all naturalization applicants. See infra Part I.A.1. Second, USCIS does not have a duty to act on naturalization applicants prior to receiving the results of the FBI name check. See infra Part I.A.2. Third, FBI does not owe any duties to individuals whose name check it is running. See infra Part I.A.3. Additionally, jurisdiction is independently lacking for the section 706(1) claim of plaintiff Anthony Giovanny Sanchez and the subclass of individuals he purports to represent – those who have already had
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their naturalization examinations (the “Proposed Post-Interview Subclass”) – because those individuals have an alternative adequate remedy under the judicial review provision of 8 U.S.C. § 1447(b), precluding APA relief. See infra Part I.A.4. In any event, to the extent that jurisdiction is found to exist, defendants should be granted summary judgment as to plaintiffs’ section 706(1) claims because taking into account all the relevant circumstances, including the intent of Congress and defendants’ efforts to reduce naturalization application processing times, USCIS and FBI have neither unreasonably delayed nor unlawfully withheld any action. See infra Part I.B.
Second, the claim of plaintiff Sanchez, the sole named plaintiff purporting to represent the Proposed Post-Interview Subclass should be dismissed as moot because subsequent to the commencement of this action he has been naturalized as a United States citizen. Further, to the extent that the Court certifies the Proposed Post-Interview Subclass (notwithstanding the Government’s arguments below and the lack of any named plaintiff), the claims of the Proposed Post-Interview Subclass should be remanded to USCIS for further action once any outstanding FBI name checks are completed as to those subclass members. Section 1447(b) provides the district court jurisdiction over a naturalization application that has been pending more than 120 days after the applicant has been examined without a determination, and provides district courts the discretion to decide the merits of a naturalization application or to remand it to the agency to adjudicate the application with appropriate instructions. Here, plaintiffs do not suggest that the Court should adjudicate the merits of each pending naturalization application of a subclass member. In light of the “full criminal background check” and “personal investigation” requirements, and Congress’s decision not to impose deadlines or modify the FBI name check
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requirement despite lengthy application processing times, the Court should remand these § 1447(b) claims to USCIS with instructions to process the applications in due course after receipt of a response to any pending FBI name checks. See infra Part I.C.
Third, the Court should reject plaintiffs’ claim that USCIS was required to engage in “notice-and-comment” rulemaking in making certain changes in practice in 2002 with respect to the FBI name check. These 2002 changes in agency practice were not “legislative rules” having an extra-statutory effect on plaintiffs’ rights, duties, or obligations, and neither placed any legal obligations on naturalization applicants, nor modified the substantive standards by which eligibility for naturalization would be assessed, including the requirement that applicants prove themselves to be of “good moral character.” Rather, the 2002 changes in practice amounted to “interpretative rules” reflecting USCIS’s interpretation of the Congressional requirements that USCIS conduct a “personal investigation” of each applicant, including a “full criminal background check.” As such, the 2002 changes in agency practice were not subject to noticeand-comment rulemaking. See infra Part I.D.
Fourth, plaintiffs’ claims that the length of naturalization processing times violates the Due Process Clause of the United States Constitution should be rejected because no constitutional liberty or property interest of plaintiffs has been denied, and because in any event plaintiffs are receiving any process that would be due under the Constitution. See infra Part I.E.
Fifth, regardless of whether plaintiffs could show that naturalization processing times were unduly long, the Court should deny plaintiffs’ claims for injunctive and declaratory relief because Congress has chosen not to adopt the type of bright-line deadline that plaintiffs seek, and because USCIS and FBI are taking reasonable steps to reduce the time it takes to adjudicate
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naturalization applications and resolve FBI name checks. The Supreme Court has made clear that where Congress has determined not to impose such deadlines and agencies are in the process of improving their programs, neither injunctive nor declaratory relief of the type sought by plaintiffs is warranted. See infra Part I.F.
Plaintiffs’ motion for a preliminary injunction should be denied for essentially the same reasons set forth above. Plaintiffs can neither carry their burden of demonstrating a “clear or substantial likelihood of success” on the merits, nor demonstrate that preliminary injunctive relief is a proper exercise of discretion under the circumstances. See infra Part II.
Finally, plaintiffs’ motion for class certification should be denied for several reasons. Plaintiffs’ challenge to application processing times requires assessment of individualized issues related to each class member seeking relief, including whether that class member contributed to the length of his or her own processing times. Plaintiffs’ effort to avoid this problem of individuation by excluding from their class applicants who have not “properly submitted” their applications or who have not “taken all actions requested of them by USCIS” results in a class definition that requires burdensome individual assessments to determine who is a class member, and therefore is not proper under Rule 23. Additionally, plaintiffs cannot satisfy the requirement of 23(b)(2) of the Federal Rule of Civil Procedure that injunctive or declaratory relief be appropriate as to “the class a whole,” because the Supreme Court has held that class relief is not appropriate in this context, and because individualized issues preclude class-wide relief. Further, because USCIS has decided the naturalization applications of all but one named plaintiff, and the FBI name check for the final named plaintiff has already been completed, plaintiffs cannot demonstrate that they are typical of the class. Finally, in addition to these reasons for denying
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the certification of any class, the Proposed Post-Interview Subclass should be denied under Rule 23’s “adequacy” requirement because of inherent conflicts of interest, and any proposed class members who were members of settlement class in Kaplan v. Chertoff, No. 06-5304 (E.D. Pa.), should be excluded from this action because they have released the claims asserted on their behalf here. See infra Part III.
STATEMENT OF THE CASE A. The Naturalization Process
1. Statutory Framework “Congress alone has the constitutional authority to prescribe rules for naturalization . . . .” Fedorenko v. United States, 449 U.S. 490, 506 (1981); see U.S. Const., Art. I, § 8, cl. 4 (granting Congress the power “[t]o establish a uniform Rule of Naturalization.”). Pursuant to this authority, Congress has established the substantive prerequisites that an alien must satisfy to be eligible for naturalization. See 8 U.S.C. § 1427. Among other things, a naturalization applicant must demonstrate “good moral character,” id. 1427(a)(3), as determined through, inter alia, USCIS’s “personal investigation” of the applicant, see id. § 1446(a). The burden of proof is on the applicant, see id. § 1427(e); INS v. Pangilinan, 486 U.S. 875, 886 (1988), and any doubts concerning eligibility must be resolved against the applicant, see Berenyi v. District Director, 385 U.S. 630, 637 (1967). “No alien has the slightest right to naturalization unless all statutory requirements are complied with.” United States v. Ginsberg, 243 U.S. 472, 475 (1917). Congress has provided that “[t]he sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General.” 8 U.S.C. § 1421(a). The Attorney General, in turn, delegated responsibility for adjudicating naturalization applications to the
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former Immigration and Naturalization Service (“INS”), 8 C.F.R. §§ 100.2(a), 310.1(b), and that responsibility has subsequently been assumed by USCIS, a bureau within the Department of Homeland Security (“DHS”), see Homeland Security Act of 2002, Pub L. 107-296, Subtitle E, § 451(b)(2),116 Stat. 2135, 2196 (Nov. 25, 2002). (USCIS and INS will be referred to herein collectively as “USCIS”). USCIS has express authority, as delegate of the Attorney General, to “make such rules and regulations as may be necessary to carry into effect the provisions of” the naturalization laws. 8 U.S.C. § 1443(a).
In its current form, the naturalization process has five general steps. First, the applicant submits a naturalization application and related documentation to USCIS. See 8 U.S.C. § 1445(a). Second, USCIS conducts a “personal investigation” of the applicant. See id. § 1446(a). As described in more detail below, this second step includes USCIS’s obtaining a “full criminal background check” from the files of FBI concerning the individual. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. No. 105-119, 111 Stat. 2440, 2448-49 (Nov. 26, 1997) (“1997 Appropriations Act”). In the third step, a USCIS naturalization examiner conducts an examination of the applicant. See 8 U.S.C. § 1446(b). In the fourth step, the examiner issues a determination regarding whether the application should be granted. See id. § 1446(d). The fifth step, in the case of an application that the naturalization examiner has determined should be granted, is the administration of the oath of citizenship. See id. §§ 1421(b), 1448.
If the examiner denies the application, the applicant has the right first to take an administrative appeal to a USCIS hearing officer, see id. § 1447(a), and then, if that appeal is unsuccessful, to seek de novo review of his or her eligibility for naturalization in district court,
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see id. § 1421(c). If the examiner has not issued a determination within 120 days of the examination, the applicant has the option of seeking the assistance of the district court. See id. § 1447(b). In that event, the district court “has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to [USCIS] to determine the matter.” Id. § 1447(b).
2. Volume of Applications and Current Processing Times USCIS receives hundreds of thousands of applications for naturalization every year, and that number has been growing. See Department of Homeland Security, Office of Immigration Statistics, 2006 Yearbook of Immigration Statistics (“2006 Yearbook”), Table 20, at 51-52 (Sept. 2007) (CIS006097-198, at CIS006153-54).2 Every year during the time period 2001-2007, the number of new naturalization applications has annually exceeded 500,000, generally increasing from year to year, with 501,000 having been filed in 2001 and 730,000 in 2006. See id. at 52 (CIS006154). In 2007, the number of new naturalization applications was an unprecedented 1.4 million. See USCIS, News Release: USCIS Updates Projected Naturalization Case Processing Time (Apr. 2, 2008) (CIS006388). For fiscal year 2001, USCIS has reported an outstanding caseload of 619,000 pending naturalization applications filed in prior years. (CIS006274). In each year except one between 2001 and 2006, USCIS was able to adjudicate a greater number of applications than the number of new applications received, reducing the number of pending applications. See 2006 Yearbook,
2 Documents Bates numbered with prefixes beginning “CIS” or “FBI” are documents in the administrative records filed with the Court in this case. For the convenience of the Court, a disk containing these administrative records is attached as Exhibit A to the Declaration of Robert William Yalen (“Yalen Decl.”), dated June 19, 2008, submitted herewith.
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at 52 (CIS006154). Because of the large number of new applications filed in 2007 – nearly double the number filed in the prior year – USCIS was not able to adjudicate a number of applications equivalent to the number received in 2007, resulting in an increase in pending cases to approximately 254,000 as of years’ end. (CIS006274). In January, USCIS estimated that, on average, naturalization application processing times were approximately 16 to 18 months. (CIS006240). In April, USCIS announced that because of increased staffing and other resources, it had reduced its estimate of naturalization application processing times to 13 to 15 months. (CIS006388).
The average length of processing times for naturalization applications are principally affected by two factors: First, the time it takes for FBI to conduct a “name check” of the applicant, see infra at 20, and resource constraints on processing the vast number of applications for naturalization and for other immigration benefits filed during in summer 2007, in what has been referred to as the “surge,” see infra at 21-22. In any individual case, however, the length of time that a naturalization application is pending may vary based on individual-specific factors, including, inter alia, whether the individual has ben asked to submit additional information to USCIS concerning his or her application, whether the individual has passed the Englishlanguage or civics naturalization examinations, whether the individual has a criminal history that, while not automatically disqualifying of naturalization, requires careful investigation and analysis by the agency, and whether the individual has a common name. See infra at 23.
USCIS has implemented various staffing and other initiatives designed to reduce processing times for naturalization applications and resolve pending applications. See infra at 23-26. USCIS has adopted a plan to reduce increases in processing times caused by the surge.
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See infra at 25-26. Additionally, USCIS and FBI are working together to reduce the affect that the FBI name check has on application processing times. See infra at 23-26. USCIS and FBI have jointly adopted and submitted to Congress a business plan for reducing the time taken by the FBI name check so that by June 2009, 98% of all newly received name checks will be processed within 30 days, and the remaining 2% of newly received name checks will be processed within 90 days. See infra at 32.
In addition to its processing of naturalization applications, USCIS also processes other immigrant benefit applications or petitions, including requests for refugee and asylee status and for lawful permanent resident status not made in the course of removal proceedings and requests for non-immigrant admission to the United States for work or other purposes. See Immigration Services and Benefits, http://www.uscis.gov/ (follow “Services and Benefits” hyperlink).
3. The FBI Name Check a. The FBI Name Check Process
As noted above, one contributing factor to average processing times for naturalization applications is the FBI name check. As described in further detail below, USCIS is required by statute to obtain a “full criminal background check” from the FBI concerning every naturalization applicant, see 1997 Appropriations Act, 111 Stat. at 2448-49, which Congress understood to include both the FBI name check and a fingerprint check, see H.R. Rep. No. 105405, at 106 (1997) (Conf. Rep.).3
3In addition to the FBI name check and fingerprint check, USCIS performs at least one other background check on every naturalization applicant, through the U.S. Customs and Border Protection’s Interagency Border Inspection System (“IBIS”), which contains information on suspect individuals, businesses, vehicles, aircraft, and vessels, and also contains historical and enforcement data on travelers to the United States. (CIS004406).
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The FBI name check is the method by which FBI disseminates information concerning an individual from its Central Records System (“CRS”) to USCIS and federal agencies, congressional committees, the federal judiciary, foreign police and intelligence agencies, and state and local criminal justice agencies. (FBI000007); Declaration of Michael A. Cannon (“Cannon Decl.”), June 6, 2008, ¶ 4.4 The CRS contains FBI’s administrative, personnel, and investigative files, which contain approximately 99.1 million records of investigative and administrative cases. (FBI000007); Cannon Decl. ¶¶ 4, 9(c).
FBI’s National Name Check Program (“NNCP”) is the entity that conducts the name check searches. A 1990 Appropriations Act authorized the FBI to collect fees from non-law enforcement agencies making use of the NNCP. See Pub. L. 101-515, 104 Stat. 2101, 2112 (1990); see also (FBI000001; FBI000008; FBI000235; FBI000415; FBI000798).
NNCP has access to the CRS through FBI’s searchable General Indices, entries which fall into two categories: (1) “main” entries, which contain the name of a subject of a file contained in the CRS, and (2) “reference” entries, which identify individuals, organizations, or entities that are referred to in a main file but not the subject of a main file. (FBI000085); Cannon Decl. ¶¶ 8, 11. “Reference” entries include subjects, suspects, and victims of the matter being investigated, and also include, in the discretion of the field agent and supervisor working the case, such additional individuals whose names are deemed likely to be pertinent, relevant, or essential information for retrieval on future cases. (FBI000142; FBI000177); Cannon Decl. ¶ 11.
4The Declaration of Michael Cannon is submitted herewith as a convenient summary of matters addressed in the FBI administrative record and to provide information concerning developments subsequent to the materials contained in that administrative record. See San Francisco BayKeeper v. Whitman, 297 F.3d 877, 886 (9th Cir. 2002).
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There are four stages in the completion of an individual name check: batch processing, name searching, dissemination, and file review. (FBI0000234); Cannon Dec. ¶ 13. In the “batch processing” stage, name check requests sent by USCIS to FBI on magnetic tapes are uploaded to the FBI system and electronically searched against the General Indices to determine whether files exist with information concerning the individual. (FBI0000234); Cannon Decl. ¶ 13. During this first phase, approximately 66% of the name checks are returned to USCIS within 4872 hours as having “No Record,” which means that the indices contain no identifiable information regarding a particular individual. (FBI0000142); Cannon Decl. ¶ 13. A “No Record” result returned to USCIS concludes the name check process for that particular request.
When batch processing results identify records potentially relating to an individual, NNCP conducts an expanded, manual search. Thus, in the second stage of the name check process, FBI staff review entries with the applicant’s name in a computer database and search different fields and information. (FBI000234); Cannon Decl. ¶ 13. This secondary manual name search is completed within 30 to 60 days, and allows NNCP to eliminate an additional 17% of USCIS requests as having “No Record.” (FBI000142); Cannon Decl. ¶ 14. These “No Record” responses are returned to USCIS, completing the name check process for that individual. (FBI000234).
After first two stages of the name check, if it appears that available records do exist with respect to the individual, FBI “dissemination analysts” must then review the records identified by the stage one and stage two electronic searches to determine if those records have derogatory information appropriate for reporting to USCIS. (FBI000235); Cannon Decl. ¶ 15. These records may include investigation records generated by FBI field offices throughout the country.
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(FBI000019, FBI000142). Stage three generally involves reviewing any records that have previously been scanned and are available to the analyst electronically. (FBI000019, FBI000142). In cases where all of the records identified by the electronic searches are available electronically, the name check may be resolved. In other cases, the name check proceeds to the fourth stage of review, which generally involves the review of paper files that often must be obtained from FBI field offices. (FBI000086); Cannon Decl. ¶ 15.
At each stage of processing, the NNCP system generally works on a first-in, first-served basis to ensure that applicants are treated fairly. (FBI000143, FBI000414); Cannon Decl. ¶ 17. The general exception to the first-in, first-served policy is when USCIS directs that a name check be handled on an expedited basis. (FBI000143, FBI000414); Cannon Decl. ¶ 18. To address general humanitarian and other policy concerns, it is USCIS practice to request expedited treatment for certain categories of name checks: (1) for aliens who are at risk of losing SSI disability due to processing times on their applications; (2) certain cases where aliens will risk “aging-out” of eligibility for citizenship or losing available visas, (3) “significant and compelling reasons, such as critical medical conditions,” and (4) cases where the applicant is schedule to leave the United States on miliary deployment. (CIS004910). FBI has allotted USCIS up to 100 requests for expedited treatment per week, based on available resources and personnel. (FBI000026); Cannon Decl. ¶ 19.
Where FBI advises USCIS that it has found no derogatory information, USCIS may then proceed promptly to adjudication of the application. Where FBI identifies derogatory information, however, FBI will send a summary of that derogatory information to USCIS, (FBI000178), which must determine how to proceed on the application in light of FBI’s
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information. Ultimately, USCIS considers the information provided by FBI in the context of all the other information developed by USCIS in the personal investigation and at the applicant’s naturalization to determine whether to grant or deny the application. (CIS001146-47).
b. Origin of the FBI Name Check Requirement for Naturalization Cases As noted above, Congress has placed responsibility on the Attorney General and USCIS to investigate each naturalization applicant prior to naturalization. Before a person may be naturalized, an employee of [USCIS], or of the United States designated by the Attorney General, shall conduct a personal investigation of the person applying for naturalization in the vicinity or vicinities in which such person has maintained his actual place of abode and in the vicinity or vicinities in which such person has been employed or has engaged in business or work for at least five years immediately preceding the filing of his application for naturalization. 8 U.S.C. § 1446(a). “[T]he Attorney General may, in his discretion, waive a personal investigation in an individual case or in such cases or classes of cases as may be designated by him.” Id. A “personal investigation” of an applicant for naturalization has been a requirement of the Immigration and Nationality Act (“INA”) since it was first enacted in 1952. See Immigration and Nationality Act, Pub. L. No. 82-414, § 335, 66 Stat. 163, 255-256 (June 27, 1952). In implementing the general mandate of a “personal investigation,” USCIS has long obtained potentially relevant information concerning naturalization applicants from FBI and other law enforcement agencies to search their records. (CIS000018-26; CIS000028-30; CIS000032-33). This practice has evolved over time, in light of changed technology, resources, and policy judgments including those involving national security, and, at various times, has called for USCIS to seek information from agencies including the Central Intelligence Agency. (CIS000030). USCIS’s practice in conducting the personal investigation has long included, in
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appropriate circumstances, requesting that FBI search its records for the individual by name.
(CIS000080-87).
In 1991, USCIS promulgated a regulation reflecting its commitment to review all
appropriate governmental records as part of the “personal investigation” mandated by Congress:
Subsequent to the filing of an application for naturalization, [USCIS] shall conduct an investigation of the applicant. The investigation shall consist, at a minimum, of a review of all pertinent records, police department checks, and a neighborhood investigation in the vicinities where the applicant has resided and has been employed, or engaged in business, for at least the five years immediately preceding the filing of the application. The district director may waive the neighborhood investigation of the applicant provided for in this paragraph.
8 C.F.R. § 335.1, issued as interim regulation, 56 Fed. Reg. 50475, 50497 (Oct. 7, 1991),
adopted as final regulation without changes, 60 Fed. Reg. 6647, 6650 (Feb. 3, 1995) (emphasis
added).
Only once has Congress directed how USCIS’s was to exercise its discretion in
implementing the personal investigation, and that was by explicitly requiring USCIS to obtain
from FBI a “full criminal background check” on each naturalization applicant prior to deciding
the application:
During fiscal year 1998 and each fiscal year thereafter, none of the funds appropriated or otherwise made available to the Immigration and Naturalization Service shall be used to complete adjudication of an application for naturalization unless the Immigration and Naturalization Service has received confirmation from the Federal Bureau of Investigation that a full criminal background check has been completed, except for those exempted by regulation as of January 1, 1997.
1997 Appropriations Act, 111 Stat. at 2448-49 (emphasis added).
As explained by the Congressional conference committee’s report concerning this statute:
A provision is included, as proposed in the House bill, which requires INS to wait for the FBI to complete both a name and fingerprint criminal history check before completing the adjudication of an application for citizenship.
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H.R. Rep. No. 105-405, at 106 (1997) (Conf. Rep.) (emphasis added); see also Disabled in Action of Metropolitan New York v. Hammons, 202 F.3d 110, 124 (2d Cir. 2000) (“Because a conference report represents the final statement of terms agreed to by both houses, next to the statute itself it is the most persuasive evidence of congressional intent.” (internal quotation marks omitted)). This provision arose from then-recent disclosures that USCIS’s efforts to reduce a backlog in naturalization applications pursuant to the agency’s Citizenship U.S.A. (“CUSA”) program had resulted in the agency’s giving insufficient attention to background checks. (CIS001977). Although a principal focus of critics of the CUSA program was the agency’s handling of fingerprint checks, the agency’s handling of name checks was also criticized. (CIS000724-34). In this context, Congress thus acted to limit USCIS’s authority by making a completed “full criminal background check” mandatory, notwithstanding the agency’s discretion under other circumstances to waive the personal investigation requirement. See 8 U.S.C. § 1446(a).
After the adoption of the “full criminal background check” requirement, USCIS endeavored to put in place a system under which no naturalization application was decided until a complete, definitive response was provided by FBI to USCIS’s inquiries. First, USCIS promptly amended its regulations to provide as follows:
(b) Completion of criminal background checks before examination. The Service will notify applicants for naturalization to appear before a Service officer for initial examination on the naturalization application only after the Service has received a definitive response from the Federal Bureau of Investigation that a full criminal background check of an applicant has been completed. A definitive response that a full criminal background check on an applicant has been completed includes:
(1) Confirmation from the Federal Bureau of Investigation that an applicant does not have an administrative or a criminal record;
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(2) Confirmation from the Federal Bureau of Investigation that an applicant has an administrative or criminal record; or
(3) Confirmation from the Federal Bureau of Investigation that two properly prepared fingerprint cards (Form FD-258) have been determined unclassifiable for the purpose of conducting a criminal background check and have been rejected.
8 C.F.R. § 335.2(b). Thereafter, USCIS studied the steps that might be taken to ensure that USCIS received a
definitive response from the FBI name check in every case prior to the making of a determination on a naturalization application. CIS000099-102 (PricewaterhouseCoopers, The G325 Name Check, Project Overview, Nov. 1998); CIS000184-86 (PricewaterhouseCoopers, The New G-325 Back-End Process, Apr. 1999). At the same time, USCIS conferred with FBI concerning the goal of “achiev[ing] a total definitive response program” for the FBI name check. CIS000132. Notwithstanding these efforts, prior to 2002, USCIS still did not receive definitive responses from FBI prior to adjudication in all cases, and operated under a policy pursuant to which naturalization applications could be adjudicated by USCIS naturalization examiners once 60 days had passed without a response from FBI. (CIS000122-123, CIS000250).
c. 2002 Changes in Practice Regarding the FBI Name Check Following the terrorist attacks of September 11, 2001, USCIS and the entire federal government placed a renewed emphasis on insuring that agencies addressed all national security issues appropriately. In particular, USCIS was criticized for what in hindsight was perceived as inattention to background check matters with regard to temporary alien visitors prior to the terrorist attacks. See, e.g., The 9/11 Commission Report, 2004 WL 1634382, at *352 (2004) (concluding that “had the immigration system set a higher bar for determining whether
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individuals are who or what they claim to be . . . it could have potentially excluded, removed, or come into further contact with several hijackers who did not appear to meet the terms for admitting short-term visitors.”). Although the 9/11 terrorists were not applicants for naturalization, in 2002 security concerns relating to naturalization were brought into particular focus, when USCIS learned that an individual with ties to a terrorist organization had erroneously been naturalized. (FBI00008; CIS001150; CIS001154-76). USCIS’s Office of Internal Audit conducted a review of the circumstances relating to this individual’s naturalization, and identified a number of flaws in USCIS’s processes. (CIS001154-76). Additionally, at a meeting between FBI and USCIS, FBI informed the USCIS that, based on FBI’s interpretation of a 1985 memorandum of understanding between USCIS and FBI concerning the FBI name check, the FBI name check for naturalization applicants was only conducted through FBI’s “main” files. (FBI00008, CIS001150).
The Office of Internal Audit’s report recommended that USCIS “initiate steps to ensure that all required FBI name checks are properly conducted to include search detail that is comprehensive enough to disclose an applicant’s known terrorist affiliations and criminal history.” (CIS001175). Additionally, the report recommended that USCIS take steps to ensure that it receives a “definitive response” to FBI name check requests before processing naturalization applications. (CIS001175). Accordingly, in response to these developments, USCIS made two changes to its practices with respect to FBI name checks. First, USCIS concluded that FBI name checks for then-pending and future naturalization applications should be conducted through both the “main files” and the “reference files,” to ensure comprehensiveness. (FBI00008-9, CIS001150-51). Second, USCIS instructed its own
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personnel that they were prohibited from adjudicating any naturalization applications until the USCIS received a definitive response from FBI regarding the individual’s name check. (CIS001178). With certain modifications, these parameters continue to be in force today.
The FBI name check as currently structured is a valuable part of USCIS’s personal investigation of naturalization applicants, in addition to being mandated by the 1997 Appropriations Act. For example, USCIS has conducted an analysis of approximately twenty positive FBI name check responses, and concluded that eight of the cases sampled had received relevant information from the FBI name check that was not available from sources other than the FBI name check. (CIS004413). Further, in 2006, USCIS conducted a comparative analysis of 135 FBI name check responses for the period May 18, 2006, to June 16, 2006. (CIS004404, CIS004406-07). USCIS found that in 72.39% of the records reviewed, USCIS’s IBIS check did not return a positive identification, but the FBI name check did, (CIS004409; CIS004410), and in 90.37% of the records reviewed, the FBI fingerprint check did not return a positive identification, but the FBI name check did, (CIS004407; CIS004409; CIS004409). B. Efforts to Reduce Application Processing Times
1. Factors Affecting Current Naturalization Processing Times a. The FBI Name Check
The FBI name check process is a contributing factor to the length of current naturalization processing times. As described above, FBI is able to provide USCIS a “no record” response for approximately 83% of USCIS’s name check requests within 60 days: 66% within 48-72 hours, and 17% within 30 to 60 days. The time necessary to process the remaining 17% of name check requests – those where electronic searching indicates that potentially
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relevant files exist – is highly variable: factors affecting processing times include the number of potentially relevant files; whether the files in question have been scanned and are readily available for the FBI analyst in electronic form or exist only in paper and in distant FBI field offices; and whether the FBI analyst, upon review of the file, finds it necessary to discuss the file with the field agent working the case. (FBI000178)
In fiscal year 2007, FBI processed more than four million name checks. (FBI000816). Of the four million processed in fiscal year 2007, approximately 52% had been submitted by USCIS, with the remainder submitted by dozens of other agencies and law enforcement organizations. (FBI000816). As of March 5, 2008, FBI had approximately 251employees and contractors working in support of processing USCIS name checks, with an additional 129 employees and contractors expected to be hired thereafter. (CIS006310-11); Cannon Decl. ¶¶ 32, 39.
b. The “Surge” As noted above, an additional cause for the length of current naturalization processing times is what has been referred to as the “surge” – a dramatic increase in naturalization applicants received by USCIS prior to an increase in fees in summer of 2007. This increase, which was accompanied by a parallel increase in certain applications to USCIS for benefits other than naturalization, appears to have related principally to an increase in naturalization fees that went into effect in July 2007. In June, July and August 2007 alone, USCIS received over 3 million applications for various immigration benefits. (CIS006279). In fiscal year 2007, USCIS received nearly 1.4 million applications for naturalization, which was nearly double the volume received for the previous fiscal year. (CIS006279). For the months of June and July 2007,
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naturalization applications increased by nearly 350% compared to the same period in 2006 (CIS006279). This “surge” in naturalization applications – along with the parallel increase in other applications for certain immigration benefits – has greatly taxed USCIS’s resources for processing and adjudicating cases. (CIS006221).
The fee increase was a step that USCIS undertook with the long-term objective of reducing processing times. (CIS003368; CIS005107). In that regard, USCIS application fees provide an essential source of funding for its operations. As early as January 2004, the United States General Accounting Office had reported to Congress that USCIS’s fees were set to low to support its functions. See CIS003331-3383 (GAO report). The GAO attributed lengthy processing times for immigration benefit applications in part due to USCIS’s fee schedules being unable to provide appropriate funding for the timely processing of applications. (USCIS003333). In February 2007, USCIS issued a proposed rule calling for fee increases for a variety of benefit applications, including an increase in fees for naturalization application fees from $400 to $675. (CIS004827-55). This proposed rule was supported by extensive supporting documentation of its necessity. (CIS004681-826). In May 2007, USCIS promulgated its final fees rule. (CIS005117-130). After considering more than 3,900 comments submitted concerning this proposed rule change, USCIS reduced the naturalization fee increase somewhat, to $595. (CIS005110).
Prior to the fee increase, USCIS analyzed the potential for an increase in the number of filed applications and adjusted its staffing levels and processes accordingly. USCIS conducted a review and analysis of fee projections, which predicted both a smaller increase and filings prior to the fee increase, and a corresponding decrease in filings after the increase went into effect, and
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staffing and production models were based upon these projections. (CIS004627-4643). Further, USCIS identified that fee receipts had exceeded projections during the initial part of the fiscal year, before the fee increase went into effect, and submitted a reprogramming request to Congress in June 2007. (CIS005323-5327). Finally, as it was identified that fee receipts had increased over the prior year, term appointments of employees were extended. Unfortunately, notwithstanding these efforts, the resulting surge far exceeded the projected increase in applications prior to the fee increase, and the projected decrease in applications below historical levels after the fee increase went into effect never materialized. (CIS006278-79).
c. Individualized Factors Affecting Processing Times Although the FBI name check process and the surge are responsible in substantial part for the current average processing times, it is important to note that in any individual case, a variety of individual factors affect processing times. In part, these individualized factors are relevant because of the effect they have on FBI’s processing of the name check. As noted, 83% of FBI name checks for naturalization cases are completed within sixty days, because they are resolved in one of the first two stages of the name check process. (FBI000177-78). Those cases that cannot be resolved in the first two steps and require FBI analysts to obtain and review FBI files matched to the applicant through the general indices take longer, particularly where the files in question are maintained only in paper at FBI field offices. (FBI000177-78). Further, among other things, if an individual has been asked to submit additional information to USCIS concerning his or her application, that may lengthen the processing time for that application. (CIS006389). Similarly, individuals who do not pass their English-
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language or civics naturalization tests and therefore need to be re-examined will have lengthier processing times. (CIS006389). Moreover, if an applicant has an arrest or criminal record, even if that record does not ultimately disqualify the individual from naturalization, it may take USCIS or FBI longer to review and process that individual’s name check and application. Cannon Decl. ¶ 26. Further, if an applicant has a common name, that may lengthen the process of determining whether relevant files exist with respect to that individual. Cannon Decl. ¶ 27. These and other factors affect the processing times for individual naturalization applications.
2. Efforts by USCIS and FBI to Reduce Current Processing Times Faced with increased numbers of naturalization applications, increased emphasis on security concerns, and increased application processing times, USCIS and FBI have worked consistently since 2002 to develop more efficient and effective processes, to minimize processing times while continuing to allow for a full background check of each naturalization applicant. USCIS and FBI have adopted technological changes to facilitate the prompt requesting of FBI name checks when USCIS receives a naturalization applicant, and the prompt dissemination of the results of the FBI name check to USCIS adjudicators. Among other things, USCIS has modified its computer processing system so that it automatically requests a name check on every naturalization application, to avoid delays associated with manual requests. (CIS003221). USCIS has also implemented procedures enabling adjudicators to have immediate access to FBI name check results to facilitate prompt resolution of applications after FBI provides a response. (CIS002581-82). Similarly, FBI has made numerous improvements in NNCP’s software to make the name check process more efficient and limit the amount of manual review of files
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required.5 The NNCP is also working with Information Technology to improve search techniques with existing technology to increase quality of searches. (FBI000177). Further, FBI is working towards automating the Name Check program by scanning paper files to provide machine-readable documents to reduce time spent locating files. (FBI 000066-67; FBI 000176; FBI000450). FBI has requested a $4.2 million budget for fiscal year 2008 to initiate additional technology upgrades. (FBI 000177).
USCIS and FBI together have greatly increased the staffing and infrastructure resources available to the National Name Check Program for conducting FBI name checks for naturalization applications. FBI has made extensive use of overtime, contractors and detailed employees, (FBI000060; FBI000134), beginning as early as May 2002, requesting $304,100.00 to provide NNCP with approximately 10,000 hours of overtime to facilitate the time processing of name checks. (See, e.g., FBI000001; FBI000004; FBI000041; FBI000046). FBI has additionally hired many new employees and contractors to expand the available workforce at NNCP and has engaged hundreds of contractors, as well. (See, e.g., FBI0000041; FBI0000046, FBI000057; FBI 000069-77; FBI000091; FBI 0000731). Additionally, USCIS has detailed its own employees to NNCP to assist with pending name checks (CIS004013), has reallocated staff
5 For example, in November 2003, the NNCP began development of a new software tool for the dissemination sub-process that would identify duplicate name check submissions and check a large volume of names quickly and accurately. (FBI 41, 46, 79), and in September 2004, the NNCP initiated a series of improvements on the NNCP software, increasing the speed of the application (FBI at 79). In February 2005, the NNCP submitted a proposal for automation of the initial name search. (FBI at 79). By August 2006, the newly revised Name Check Dissemination database was ready for implementation, which would create a paperless environment for processing name checks. (FBI at 301).
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to align resources with workload, and has redistributed workloads to offices with excess capacity. (CIS003388-90; CIS003854-59; CIS004013; CIS004268).
USCIS and FBI have also modified the name check process and workflow to speed the review by FBI and more effectively winnow-out irrelevant information. For example, the NNCP designated specific employees to process only cases that could be rapidly reviewed and closed. (FBI000079). In January 3, 2006, FBI added nine additional positions to focus solely on stillremaining cases that had been re-run after the 2002 change in practices. (FBI000132). In addition, FBI and USCIS personnel have eliminated from the name check process specific categories of files unlikely to have relevant information. (FBI000560; FBI000596; FBI000731) (FBI000764). FBI and USCIS also implemented a pilot program in which USCIS personnel work on-site with NNCP personnel to evaluate derogatory information. (FBI000596).
Further, in particular response to the summer 2007 “surge,” USCIS adopted a “Surge Response Plan” dedicating increased resources and modified practices to the problem. (CIS004660-80); see also Yalen Decl. Ex. B. The Surge Response Plan includes personnel matters such as the hiring of additional staff, the extension of the term employment of existing application adjudicators, and the authorization of overtime pay for adjudicators. (CIS004661-62; CIS004664-65). The Surge Response Plan also includes workflow improvements such as the reassignment of pre-processing work for naturalization applications from USCIS’s Service Centers to its National Benefits Center, which would permit Service Centers staff to focus on core adjudication activities, as well as infrastructure and technological improvements. (CIS004663; CIS004666; CIS004668-80).
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In other respects, as well, improvements have been made to facilitate the naturalization process. On April 10, 2006, a National Security and Records Verification Directorate was established to improve operational efficiency on security issues. (CIS004273). FBI and USCIS have also each established improved monitoring and tracking systems. (FBI000151; USCIS005228).
In fiscal year 2008, as of March 5, 2008, FBI has received 792,397 USCIS name check requests, of which it has completed 849,580. (CIS006309). As of that date, FBI was processing an additional 345,635 USCIS name check requests. Compared to the same time in fiscal year 2007, this represents a 9.5% increase in incoming USCIS name check requests, a 23% increase in completed USCIS name check requests, and a 13.4% decrease of pending USCIS name check requests. (CIS006309).
3. Congressional Response to Application Processing Times a. Pre-2007 Congressional Action
Although it is possible to point to the FBI name check process and the “surge” as the principal contributing factors to the current processing times for naturalization applications, it is important to recognize that lengthy processing times for naturalization and other immigrant benefit applications have long existed, and Congress and USCIS have made numerous efforts over the years to shorten those processing times. In the 1980s, naturalization applications were greatly backlogged, prompting congressional action. See 135 Cong. Rec. H4539-02. At that time, principal responsibility for naturalization rested with the judiciary, with USCIS providing a facilitative role. Congress chose to address this problem in 1990, not by imposing any mandatory deadlines for application processing but instead removing principal authority over
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naturalization applications from the courts and placing that responsibility with the Attorney General and the agency. See Immigration Act of 1990, Pub. Law 101-649, 104 Stat. 4978 (Nov. 29, 1990); see also Chan v. Gantner, 464 F.3d 289, 290 (2d Cir. 2006) (noting that a principal purpose of the 1990 amendments was to speed the process of naturalization in the face of a judicial backlog of naturalization cases).
The 1990 amendments did adopt 8 U.S.C. § 1447(b), which, as described above, allows an applicant to seek judicial review of his or her naturalization application if more than 120 days pass after the examination before the examiner renders a decision. See 8 U.S.C. § 1447(b). Section 1447(b) restores a portion of the pre-existing judicial authority over naturalization that the 1990 amendments generally removed; specifically, it authorizes a naturalization applicant to file in the district court if his or her application has not been adjudicated by USCIS within 120 days following an individual’s examination. See id. Pursuant to section 1447(b), the district court may adjudicate the application itself or issue instructions to the agency for further processing of the application. See id. Section 1447(b), however, does not require USCIS to adjudicate an application within 120 days or any other specified period of time. See Bustamante v. Chertoff, 533 F. Supp. 2d 373, 380 (S.D.N.Y. 2008)
In the late 1990s, Congress again grew concerned about “backlogs” in the processing of immigration benefits, including naturalization. Therefore, in 2000, Congress enacted the Immigration Services and Infrastructure Improvements Act, Pub. L. No. 106-313, 114 Stat. 1262 (Oct. 17, 2000). The stated purposes of this statute were to provide USCIS with “the mechanisms it needs to eliminate the current backlog in the processing of immigration benefit applications within 1 year after the enactment of this act” and “to provide for regular
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congressional oversight” over the effort to eliminate this backlog. See id. § 202(a)(1)-(2) (codified at 8 U.S.C. § 1571(a)). By this statute, Congress authorized additional funding to be made available to the Attorney General to reduce the “backlog” of applications, defined as cases pending 180 days or more, see id. § 203(1) (codified at 8 U.S.C. § 1572), with the “objective” of reducing processing times within one year to such a level that all immigration benefits applications would be processed within 180 days of their submission, see id. § 204 (codified at 8 U.S.C. § 1573). The statute required the Attorney General to make an initial report to Congress on processing times within 90 days, and annual reports thereafter. See id. § 205 (codified at 8 U.S.C. § 1574).
Congress did not, however, impose any mandatory deadline for processing of applications. Instead, the statute included an aspirational provision that stated, under the heading “policy,” that “[i]t is the sense of Congress that the processing of an immigration benefit application should be competed not later than 180 days after the initial filing of the application.” Id., § 201(b), 114 Stat. at 1262 (codified at 8 U.S.C. § 1571(b)). As noted above, this 180-day period is described in the statute, not as a mandatory requirement, but as an “objective” to be pursued. See id. § 204 (codified at 8 U.S.C. § 1573).
b. Congressional Action Since 2007 Congress is well aware of recent processing times for naturalization applications, as well as other applications, and the degree to which the FBI name check requirement has contributed to these processing times. The administrative record contains at least eleven reports submitted
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by USCIS to Congress on the subject between November 2004 and June 2007.6 Secretary
Michael Chertoff of DHS and former USCIS Director Emilio T. Gonzalez have testified before
Congress on naturalization processing times,7 and FBI officials have testified concerning the FBI
name check program.8 The then-USCIS Ombudsman, a critic of the FBI name check
requirement, also submitted regular reports to Congress concerning USCIS operations, and
repeatedly raised issues concerning the length of naturalization processing times,9 and USCIS
6 See USCIS, Backlog Elimination Plan, Fiscal Year 2005, 1st Quarter Update (May 25, 2005) (CIS003896-3905); USCIS, Backlog Elimination Plan, Fiscal Year 2005, 2nd Quarter Update (Aug. 15, 2005) (CIS003963-73); USCIS, Backlog Elimination Plan, Fiscal Year 2004, 4th Quarter Update (Mar. 16, 2005) (CIS003873-81); USCIS, Backlog Elimination Plan, Fiscal Year 2004, 3rd Quarter Update (Nov. 5, 2004) (CIS003862-69); USCIS, Backlog Elimination Plan, Fiscal Year 2005, 3rd Quarter Update (Sept. 6, 2005) (CIS003976-3982); USCIS, Backlog Elimination Plan, Fiscal Year 2005, 4th Quarter Update (Apr. 7, 2006) (CIS004263-72); USCIS, Backlog Elimination Plan, Fiscal Year 2006, 1st Quarter Update (Aug. 7, 2006) (CIS004414-23); USCIS, Backlog Elimination Plan, Fiscal Year 2006, 2nd Quarter Update (Sept. 28, 2006) (CIS004466-74); USCIS, Backlog Elimination Plan, Fiscal Year 2006, 3rd Quarter Update (Dec. 11, 2006) (CIS004614-26); USCIS, Backlog Elimination Plan, Fiscal Year 2006, 4th Quarter Update (Feb. 12, 2007) (CIS004900-09); USCIS, Production Update, Fiscal Year 2007, 1st Quarter Update (June 15, 2007) (CIS005313-5317).
7 See Written Testimony Prepared for Emilio T. Gonzalez, Director, U.S. Citizenship and Immigration Services, for a Hearing on “Naturalization Delays: Causes, Consequences and Solutions,” Before the House Judiciary Committee, Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law (Jan. 17, 2008) (CIS006277-82); Testimony, United States Senate Committee on the Judiciary, Oversight of the Department of Homeland Security (Apr. 2, 2008).
8 See Testimony of David M. Hardy, Acting Assistant Director, Record/Information Dissemination Section, Records Management Division, FBI, Before the Senate Subcommittee on International Operations and Terrorism, The FBI Name Check Process (Oct. 23, 2003), available at http://www.fbi.gov/congress/congress03/hardy102303.htm; Testimony of Robert J. Garrity, Jr., Acting Assistant Director, Records Management Division, FBI, Before the House of Representatives, Committee on Government Reform, The FBI's VISA Name Check Process (July 10, 2003), available at http://www.fbi.gov/congress/congress03/garrity071003.htm.
9 See Citizenship and Immigration Services Ombudsman, Annual Report 2005 (June 30, 2005) (CIS003910-62); Citizenship and Immigration Services Ombudsman, Annual Report 2006 (June 29, 2006) (CIS004284-4400); Citizenship and Immigration Services Ombudsman, Annual
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has submitted responses to Congress.10 Additionally, other publically available information concerning the FBI name check in naturalization process exists and is fully available for Congress’s consideration, such as a recent report by the Office of the Inspector General of the United States Department of Justice.11
In light of this information, Congress has recently acted to reduce naturalization processing times, but it has not chosen to take the actions that plaintiffs want the Court to impose. Although aware of the length of naturalization application processing times about which plaintiffs complain, Congress has not, for example, imposed a deadline for the processing of such applications. Similarly, although aware of criticisms of the FBI name check as a contributing factor to the length of processing times, Congress has not acted to modify the name check requirement in the 1997 Appropriations Act or to limit USCIS’s discretion in requiring a name check as part of the personal investigation required for every applicant. Instead, Congress has chosen to increase funding to assist the agencies in reducing processing times and has directed the agencies to develop plans for such reductions.
Report 2007 (June 11, 2007) (CIS005168-5312). 10 See USCIS Response to 2005 Ombudsman Report, CIS004043-58; Response to the
Citizenship and Immigration Services Ombudsman’s 2006 Report, CIS005076-106; USCIS Response to CISO Recommendations, CIS Ombudsman Annual Report 2007, CIS006225-46.
11 See U.S. Department of Justice, Office of the Inspector General, Audit Division, The Federal Bureau of Investigation’s Security Check Procedures for Immigration Applications and Petitions, Audit Report 08-24 (June 2008), available at http://www.usdoj.gov/oig/reports/ FBI/a0824/final.pdf.
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Thus, in May 2007, in the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and
Iraq Accountability Appropriations Act, 2007 (“May 2007 Appropriations Act”), Pub. L. No.
110-28, 121 Stat. 112 (May 25, 2007), Congress provided:
For an additional amount for expenses of “United States Citizenship and Immigration Services” to address backlogs of security checks associated with pending applications and petitions, $8,000,000, to remain available until September 30, 2008: Provided, That none of the funds made available under this heading shall be available for obligation until the Secretary of Homeland Security, in consultation with the United States Attorney General, submits to the Committees on Appropriations of the Senate and the House of Representatives a plan to eliminate the backlog of security checks that establishes information sharing protocols to ensure United States Citizenship and Immigration Services has the information it needs to carry out its mission.
See id., tit. III, ch. 5, 121 Stat. at 143. Pursuant to this mandate, USCIS submitted a plan to
Congress describing its proposal to spend $15,000,000 (including the $8,000,000 appropriated
by the May 2007 Appropriations Act) to fund an increase of FBI staffing committed to the name
check process and to fund additional USCIS staffing to review cases with national security
concerns. See Yalen Decl. Ex. D. (U.S. Department of Homeland Security, U.S. Citizenship
and Immigration Services, Background Check Enhancements Spend Plan Submitted Pursuant to
Public Law 110-28 (Dec. 2007)).
Then, in December 2007, Congress again acted by appropriating additional funds to
assist the agencies in reducing processing times, and required the agencies to develop a plan for
reducing processing times. See Consolidated Appropriations Act, 2008 (the “2008
Appropriations Act”), Pub. L. 110-161, Div. E, tit. IV, 121 Stat. 1844, 2067 (Dec. 26, 2007).
The statute states:
[O]f the total [appropriated for Department of Homeland Security in this act], $20,000,000 is provided to address backlogs of security checks associated with pending applications and petitions and shall not be available for obligation until the Secretary of Homeland Security and the United States Attorney General submit to the Committees on
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Appropriations of the Senate and the House of Representatives a plan to eliminate the backlog of security checks that establishes information sharing protocols to ensure United States Citizenship and Immigration Services has the information it needs to carry out its mission . . . . Id. As directed by Congress, USCIS and FBI have developed and submitted to Congress a business plan for reducing processing times for FBI name checks for immigration and naturalization applications. See CIS006307-24 (Business Plan) (public version). The plan “outlines a strategy for eliminating USCIS name check requests pending over 30 days” by June 2009 (CIS006308), and to achieve a standard by June 2009 where 98% of all newly received name checks are processed within 30 days, and the remaining 2% of newly received name checks are processed within 90 days. (CIS006323). These goals are to be achieved through various improvements, including the hiring and training of additional contract staff and the implementation of improved work-flow management. (CIS006313-17). This business plan has been submitted to Congress, and the agencies are working to achieve it. In sum, Congress has decided to address the very processing times that plaintiffs challenge, not by restricting the agencies’ mission or imposing deadlines, but rather by funding new plans to reduce the processing times.
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C. Plaintiffs’ Complaint
1. Allegations of the Complaint
Plaintiffs are six lawful permanent residents who, at the time of the filing of the
complaint, had pending naturalization applications in the New York City District Office of USCIS:12 Virginia Milanes (“Milanes”), Omar Miguel Farfan (“Farfan”), Manuel Alberto
Martinez (“Martinez”), Anthony Giovanny Sanchez (“Sanchez”), Nancy Castro (“Castro”), and
Margoth Perez de Chalampa (“Perez de Chalampa”). See Complaint (“Cplt.”) ¶¶ 15-20.
Plaintiffs allege, and defendants do not dispute, that at the time of the filing of their complaint
each of their naturalization applications had been pending for periods of time ranging from seven
months to three years and ten months. See id.
Plaintiffs purport to represent a class (the “Proposed Class”) of plaintiffs described as
follows:
All lawful permanent residents who reside in the counties served by the New York District Office of USCIS who have properly submitted or will properly submit applications for naturalization to USCIS, who have taken all actions requested of them by USCIS, and whose applications for naturalization have not been or will not be adjudicated by USCIS within 180 days of the date of submission.
Plaintiffs’ Memorandum of Law in Support of Their Motions for Preliminary Injunction, Class Certification and Expedited Discovery (“Pl. Br.”), dated April 3, 2008, at 38.13
12 The New York City Field Office has jurisdiction over New York City and the counties of Dutchess, Nassau, Orange, Putnam, Rockland, Suffolk, Sullivan, Ulster, and Westchester, plus the United States immigration office in Hamilton, Bermuda. See 8 C.F.R. § 100.4(b)(3).
13 Plaintiffs’ motion for class certification somewhat modifies the definition of the Proposed Class relative to what had been proposed in the complaint. Compare Cplt. ¶ 45, with Pl. Br. at 38. Accordingly, the Government will address plaintiffs’ current proposed class definition rather than the one contained in their complaint. See In re Holocaust Victim Assets Litig., 225 F.3d 191, 200-01 (2d Cir. 2000) (noting that class definitions can be modified).
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Plaintiffs also allege, and defendants do not dispute for the purpose of this motion, that on October 13, 2005, plaintiff Sanchez was interviewed by a naturalization examiner, see id. ¶ 18. Accordingly, as alleged by plaintiffs, at the time of filing of their complaint approximately two years and four months had passed following Sanchez’s interview without a determination on his application. See id. ¶ 18. Sanchez purports to represent a subclass (the “Proposed PostInterview Subclass”) of the Proposed Class:
All lawful permanent residents who reside in the counties served by the New York District Office of USCIS who have properly submitted or will properly submit applications for naturalization to USCIS, who have taken all actions requested of them by USCIS, and whose applications for naturalization have not been or will not be adjudicated by USCIS within 120 days of the date of their initial examination. Pl. Br. at 38.14 All plaintiffs, on behalf of themselves and the Proposed Class, assert essentially three claims: First, they claim that naturalization processing times in excess of 180 days amount to a failure to act within a “reasonable time,” see 5 U.S.C. § 555(b), and allegedly therefore entitled them to relief pursuant to 5 U.S.C. § 706(1), which authorizes the courts to compel agency action that is “unreasonably delayed” or “unlawfully withheld.” 5 U.S.C. § 706(1). Cplt. ¶¶ 133, 136, 137.15 Second, they allege that USCIS and FBI’s alleged failure to act within a reasonable time
14 Again, plaintiffs’ motion for class certification has modified the definition of the subclass, compare Cplt. ¶ 46, with Pl. Br. at 38, and the Government herein will address the proposed subclass as so modified.
15 Plaintiffs do not allege that the “reasonable time” provision of 5 U.S.C. § 555(b) standing alone provides them a cause of action, but properly allege treat their alleged cause of action as arising under section 706(1). See Hoo Loo v. Ridge, No. Civ. 04-5553, 2007 WL 813000, at *3-*4 (E.D.N.Y. Mar. 14, 2007) (noting section 555 allegations but analyzing right to relief pursuant to section 706(1)).
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violated plaintiffs’ rights under the Due Process Clause of the U.S. Constitution. Cplt. ¶ 137. Third, they allge that USCIS’s 2002 changes in agency practice concerning the FBI name check violated the APA,5 U.S.C. § 553, because the agency did not use full notice-and-comment rulemaking in adopting those changes in practice. Cplt. ¶ 135. Further, plaintiff Sanchez, on behalf of himself and the Proposed Post-Interview Subclass, alleges that plaintiffs whose applications have been pending 120 days or more after their examination are entitled to an order compelling agency action for pursuant to 5 U.S.C. § 706(1) and 8 U.S.C. § 1447(b). Cplt. ¶¶ 134, 136, 137.
Plaintiffs’s seek, among other things, an injunction compelling the Government to decide all proposed class members naturalization applications “immediately,” Cplt. at 31 (prayers for relief 7(a) and 7(b)), and an order compelling “USCIS Defendants to adjudicate all naturalization applications without waiting for the results of FBI name checks.” Cplt. 31 (prayer for relief 7(a) and 7(c)).
Plaintiffs have now moved for class certification and for a preliminary injunction on behalf of what they refer to as their “preliminary injunction group”: All class members who filed applications for naturalization on or before April 3, 2008. See Pl. Br. at 3. As to this preliminary injunction group, plaintiffs seek an injunction:
order[ing] all Defendants to take all steps necessary to adjudicate the naturalization applications of [the preliminary injunction group], and to naturalize those who are found eligible for naturalization in time to register to vote in the November 2008 election, but no later that September 22, 2008; and, if necessary to achieve this goal, directing USCIS Defendants to adjudicate the applications of the preliminary injunction group without waiting for completion of the FBI name check. Pl. Br. at 2-3.
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2. Status of the Named Plaintiffs To date, the FBI name checks of all of the named plaintiffs have been completed, the naturalization applications of five of the named plaintiffs have been adjudicated, and three of the named plaintiffs have already taken the oath of citizenship. See Declaration of David J. Keevis (“Keevis Decl.), dated June 19, 2008, ¶¶ 3-8; Cannon Decl. ¶¶ 43-48. Plaintiff Farfan was naturalized as a United States citizen on April 25, 2008, when he took the oath of citizenship. See Keevis Decl. ¶ 4. His FBI name check was completed on March 10, 2008. See Cannon Decl. ¶ 44. His naturalization application was approved on April 7, 2008. See Keevis Decl. ¶ 4. Plaintiff Sanchez was naturalized as a United States citizen on May 2, 2008, when he took the oath of citizenship. See id. ¶ 8. His FBI name check was completed on March 5, 2008. See Cannon Decl. ¶ 46. His naturalization application was thereafter approved on April 7, 2008. See Keevis Decl. ¶ 8. Plaintiff Martinez was naturalized as a United States citizen on June 5, 2008, when he took the oath of citizenship. See id. ¶ 5. His FBI name check was completed on March 21, 2008. See Cannon Decl. ¶ 45. His naturalization application was thereafter approved on May 6, 2008. See Keevis Decl. ¶ 5. Plaintiff Castro’s naturalization application was approved on June 9, 2008, and she is scheduled to be naturalized as a United States citizen at an oath ceremony on July 3, 2008. See id. ¶ 3. Her FBI name check was completed on May 22, 2007. See Cannon Decl. ¶ 47. On April 7, 2008, she was first examined by a naturalization examiner, but failed to achieve a passing score on the English-language test required of all naturalization applicants. See Keevis
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Decl. ¶ 3. She was thereafter reexamined on June 9, 2008, at which time she passed the English test, and her application was approved. See id. ¶ 3.
Plaintiff Perez De Chalampa’s naturalization application was approved on May 12, 2008, and she is scheduled to be naturalized as a United States citizen at an oath ceremony on July 9, 2008. See Keevis Decl. ¶ 7. Her name check had been completed on September 17, 2007. See Cannon Decl. ¶ 48.
Plaintiff Virginia Milanes’s FBI name check was completed on June 6, 2008. See id. ¶ 43. Milanes’s naturalization application is still pending. See Keevis Decl. ¶ 6. USCIS’s records indicate at least one instance where mail sent to her by the agency was returned as undeliverable. See id.
3. Status of the Proposed Class, Proposed Post-Interview Subclass, and “Preliminary Injunction Group”
As described below, see infra Part III.A, whether any individual is a member of plaintiffs’ proposed class and subclass – or a member of plaintiffs’s proposed “preliminary injunction group,” which is a subset of the class – cannot be determined without a fact-intensive analysis of whether any individual “properly submitted,” Pl. Br. at 38, his or her naturalization application and has “taken all actions requested of [him or her] by USCIS,” Pl. Br. at 38, two limitations imposed by plaintiffs on their class membership.
USCIS has conducted a search of its databases to determine the approximate number of individuals in the New York District whose naturalization applications had been pending with decision for 180 days or more as of April 3, 2008, without a regard to whether those individuals had “properly submitted” their applications or “taken all actions requested of them by USCIS.” USCIS’s search of its databases identified 55,458 individuals whose naturalization applications
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had been pending six months without a determination as of April 3, 2008. See Keevis Decl. ¶ 10. In the ten weeks between April 3, 2008, and June 17, 2008, of these 55,458 individuals, USCIS has made determinations on the applications of 17,108 individuals. See id. ¶ 12.
USCIS has also conducted a search of its databases to determine the approximate number of individuals resident in the Southern District of New York and served by the New York District whose naturalization applications had been pending without a determination for 120 days or more following their naturalization examination as of April 3, 2008, again without a regard to whether those individuals had “properly submitted” their applications or “taken all actions requested of them by USCIS.” USCIS’s search of its databases identified 2,077 such individuals. See Keevis Decl. ¶ 11. As of June 17, 2008, of these 2,235 individuals, USCIS has made determinations on 97 applications. See id. ¶ 12.
ARGUMENT I. Plaintiffs’ Complaint Should be Dismissed and Remanded in Part or, in the Alternative,
Defendants Should be Granted Summary Judgment A. Plaintiffs’ Claims Pursuant to APA Section 706(1)
Should Be Dismissed for Lack of Jurisdiction Plaintiffs’ claims pursuant to 5 U.S.C. § 706(1) “to compel agency action unlawfully withheld or unreasonably delayed” should be dismissed for lack of jurisdiction, because although 5 U.S.C. § 706(1) contains a waiver of sovereign immunity to allow certain suits against the Government, that waiver is limited in scope. See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 63 (2004). As the Supreme Court has explained “[f]ailures to act are sometimes remediable under the APA, but not always.” Id. at 61. In particular, the Supreme Court has held
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that section 706(1) authorizes suits only where “an agency failed to take a discrete agency action that it is required to take.” Id. at 64 (emphasis in original).
The limited scope of section 706(1) is rooted in basic issues of separation of powers and judicial efficiency:
The principal purposes of [these] APA limitations . . . – and of the traditional limitations upon mandamus from which they were derived – is to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve. Id. at 66. In particular, as the Court explained: If courts were empowered to enter general orders compelling compliance with broad statutory mandates, they would necessarily be empowered, as well, to determine whether compliance was achieved – which would mean that it would ultimately become the task of the supervising court, rather than the agency, to work out compliance with the broad statutory mandate, injecting the judge into day-to-day agency management. Id. at 66-67. As plaintiffs in this case are neither challenging “discrete” agency action nor seeking to compel action that the USCIS and FBI are required to take, their claims fall outside the waiver of sovereign immunity in section 706(1) and, accordingly, must be dismissed for lack of jurisdiction. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (holding that in the absence of an applicable waiver of sovereign immunity, the Court lacks jurisdiction).
1. Plaintiffs Are Not Challenging Discrete Agency Action The limitation of section 706(1) to claims challenging “discrete” agency action is designed to prevent plaintiffs from using 706(1) as a tool to mount a “broad programmatic attack” on agency policy. Norton, 542 U.S. at 61. Plaintiffs are seeking to do exactly that in this case. This is not a case where a plaintiff is challenging the Government’s refusal to take some
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specific action on a given application, nor a case where an application has “slipped through the cracks” and has somehow been overlooked by the agency. Rather, this is a case where plaintiffs ask the Court to resolve their “abstract policy disagreements,” id. at 66, about whether the FBI name check is of any “additional value to national security,” see Cplt. ¶ 73, such that it is worth keeping as part of the naturalization process. Based on plaintiffs’ view of that the name check does not add value, they seek injunctive relief directing USCIS “to adjudicate all naturalization applications without waiting for the results of FBI name checks,” Cplt. at 31(prayer for relief 7(c)). In short, they want the Court to order USCIS to change its process for conducting background checks prior to naturalization. As Norton explained, however, “[section] 706(1) empowers a court only to compel an agency ‘to perform a ministerial or non-discretionary act, or ‘to take action upon a matter, without directing how it shall act.’” Id. at 64 (quoting Attorney General’s Manual on the Administrative Procedure Act 108 (1947)) (emphasis added). Here, however, plaintiffs have mounted a broad programmatic challenge to how USCIS is implementing the “full criminal background check” and “personal investigation” requirements of the naturalization process. Because the Court’s involvement in such questions would “inject the [court] into day-to-day agency management” of the naturalization process, see id. at 67, plaintiffs’ section 706(1) claims should be dismissed, see id.
2. USCIS Has No Duty to Act on a Naturalization Application Prior to Receiving an FBI Name Check Response
The Court lacks jurisdiction not only because plaintiffs’ broad programmatic attack is outside the scope of section 706(1), but also because the agency actions plaintiffs are seeking to compel is not action that is “legally required.” Norton, 542 U.S. at 63. In this respect, practice under the APA tracks the traditional scope of the writ of mandamus, which would issue only to
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compel enforcement of “a specific, unequivocal command,” i.e., “the ordering of a precise, definite act . . . about which [an official] had no discretion whatsoever.” Id. (quoting ICC v. New York, N.H. & H.R. Co., 287 U.S. 178, 204 (1932), and United States ex rel. Dunlap v. Black, 128 U.S. 40, 46 (1888)) (internal quotation marks omitted). Agency action that is not mandatory can be neither “unlawfully withheld” nor “unreasonably delayed” within the meaning of section 706(1). See id. at 63 & n.1.
Plaintiffs seek to have this Court impose a deadline requiring USCIS to decide all naturalization applications within 180 days of filing and, in any event, within 120 days of a naturalization examination, notwithstanding the pendency of an FBI name check. They further ask that the Court order FBI to complete FBI name checks in time to allow USCIS to meet the deadlines plaintiffs seek, and they ask the Court to order the Government to dispense with the FBI name check to the extent necessary to achieve plaintiffs’ preferred timetable. Plaintiffs’ claim must fail because, as discussed below, USCIS and FBI have no mandatory, nondiscretionary duty to take the actions that the plaintiffs desire.
USCIS has no duty to act on naturalization applications until such time as USCIS has completed its personal investigation, see 8 U.S.C. § 1446(a), and, indeed, is prohibited from acting until FBI has completed a “full criminal background check,” 1997 Appropriations Act, 111 Stat. at 2448-49. As discussed above, in the 1997 Appropriations Act, Congress expressly mandated that USCIS not “complete adjudication of an application for naturalization unless [it] has received confirmation from the Federal Bureau of Investigation that a full criminal background check has been completed.” 1997 Appropriations Act, 111 Stat. at 2448-49. The Congressional conference report underlying this statute explains that Congress understood this
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provision to require the agency “to wait for the FBI to complete both a name and fingerprint criminal history check before completing the adjudication of an application for citizenship.” H.R. Rep. No. 105-405, at 106 (1997) (Conf. Rep.) (emphasis added). The Second Circuit has explained that “next to the statute itself” conference reports are “the most persuasive evidence of congressional intent.” Disabled in Action of Metropolitan New York v. Hammons, 202 F.3d 110, 124 (2d Cir. 2000) (internal quotation marks omitted)). Accordingly, if there were any ambiguity as to whether the Congressional requirement of a “full criminal background check” included a FBI name check, the conference report dispels it.
Further, apart from the 1997 Appropriations Acts provisions that prohibit USCIS from taking action prior to receiving a “full criminal background check,” it is also a requirement of the naturalization laws that “[b]efore a person may be naturalized, the personal investigation must be completed.” 8 U.S.C. § 1446(a) (emphasis added); see also 8 U.S.C. § 335.1 (regulation providing that the personal investigation includes, “at a minimum, . . . a review of all pertinent records”). Although the Attorney General may, “in his discretion,” waive the personal investigation, see 8 U.S.C. § 1446(a), the discretionary nature of this personal investigation requirement shows that plaintiffs cannot prove that USCIS is required to act prior to receiving an FBI name check response.
Numerous courts across the country have held that USCIS has no duty to act on naturalization applications until after it receives a response from the FBI name check. See, e.g., Hani v. Gonzales, No. 3:07-CV-517-S, 2008 WL 2026092, at *3 (W.D. Ky. May 8, 2008) (holding that USCIS has no non-discretionary duty to act on a naturalization application prior to interviewing the petitioner); Ahmed v. Mueller, No. 07-0411, 2007 WL 2726250, at *5 (E.D. Pa.
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Sept. 14, 2007) (holding that “USCIS does not have a non-discretionary duty to conduct an
interview of applicant when the FBI has not yet completed his background check since the
regulations allow an interview to be scheduled only after the criminal background check is
complete”); Omar v. Mueller, 501 F. Supp. 2d 636, 639-40 (D.N.J. 2007) (holding that USCIS
has no to proceed with naturalization applications of individuals who have not been interviewed
prior to receiving the background check).16 Although “considerable excusable time could elapse
for background checks to be completed,” this passage of time “is insufficient to confer
jurisdiction upon this court.” Ahmed, 2007 WL 2726250, at *6.17
16 See also, e.g., Alzuraiki v. Heinauer, No. 4:07CV3189, 2008 WL 413861, at *3 (D. Neb. Feb. 13, 2008) (holding that plaintiff’s APA claim failed because “USCIS is prohibited from interviewing Plaintiff until USCIS receives ‘a definitive response from the [FBI] that a full criminal background check . . . has been completed.” (emphasis in original)); Wang v. Gonzales, No. 07-2272 JWL-DJW, 2008 WL 45492, at *3 (D. Kan. Jan. 2, 2008) (“USCIS has no duty to adjudicate a naturalization application before receiving a definitive response from the FBI that the applicant’s background check is complete. Indeed it is prohibited from doing so.”); Ibrahim v. Chertoff, 529 F. Supp. 2d 611, 614 (E.D.N.C. 2007) (“Plaintiff does not have a right to compel CIS to process his application faster because it cannot further proceed in the application, including examining plaintiff, until the name check is complete, which of course CIS does not control.”); Sinha v. Upchurch, No. 1:07 CV 2274, 2007 WL 4322225, at *4 (N.D. Ohio Dec. 7, 2007) (“[W]hile the CIS Defendants may have a duty to act on an application for naturalization within a reasonable time, the time period does not commence until after the CIS Defendants receive a completed background check. Any other conclusion would require the CIS Defendants to take action that is contrary to law.”); Kaplan v. Chertoff, 481 F. Supp. 2d 370, 401 (E.D. Pa. 2007) (dismissing plaintiffs’ APA claim against USCIS to the extent they alleged that the delay in processing naturalization applications was caused by FBI, because “CIS does not have a mandatory duty to take action on an application for naturalization until the FBI has completed its background checks. In fact, Congress has forbidden CIS from taking any action until such checks are completed.” (emphasis in original)).
17Although plaintiffs cite cases in support of their claim that USCIS had a duty to act notwithstanding an unresolved name check, see Pl. Br. at 28-32, none of those cases fully considered the legislative history behind the “full criminal background check” or USCIS’s discretion pursuant to the “personal investigation” requirement. Indeed, nearly every immigration case cited by plaintiffs in their analysis of this issue does not involve a naturalization application at all, but instead an application for adjustment of status to lawful
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Further, as described above, when Congress has been presented with the facts concerning the current processing times for naturalization applications and the contribution of the FBI name check process to these processing times, Congress has not chosen to impose a duty on USCIS to act in the absence of a definitive FBI name check response, nor has it imposed deadlines for adjudication. Rather, Congress has chosen to provide additional funds to support a program of reducing processing times while continuing to conduct thorough background checks. See May 2007 Appropriations Act, tit. III, ch. 5, 121 Stat. at 143; 2008 Appropriations Act, Div. E, tit. IV, 121 Stat. at 2067.
3. FBI Has No Duty to Act Similarly, the Court lacks jurisdiction over plaintiffs’ section 706(1) claims with respect to FBI, because FBI does not owe a duty to plaintiffs with regard to the processing of their name checks. As described above, FBI has no direct relationship to plaintiffs, and conducts name checks on a fee-for-service basis for USCIS and other agencies. (FBI000001; FBI000008; FBI000235; FBI000415; FBI000798). The scope of the search conducted – including whether it is limited to “main files” or includes both “main files” and “reference files” – is determined not by FBI but by the client agency. (FBI000007-11; FBI000731). No statute establishes that FBI owes a duty to individuals whose name check it is running to act within any particular time frame. Although Congress is well aware of the time it takes FBI
permanent residence, a distinct statutory regime lacking the statutory “full criminal background check” and “personal investigation” requirements. See id. (citing numerous adjustment of status cases, including, inter alia, Alkeylani v. Dep’t of Homeland Sec., 514 F. Supp. 2d 258 (D. Conn. 2007); Bondarenko v. Chertoff, No. 07-mc.-00002, 2007 WL 2693642 (W.D.N.Y. Sept. 11, 2007); Eldeeb v. Chertoff, No. 8:07-cv-236-T-17EAJ, 2007 WL 2209231 (M.D. Fla. July 30, 2007); Huang v. Mukasey, 545 F. Supp. 2d 1170 (W.D. Wash. Mar. 4, 2008)).
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to process the millions of name check requests it receives from USCIS, Congress has not
imposed any deadlines on FBI’s processing of these applications. In marked contrast, Congress
did impose deadlines on agencies involved on the processing of security clearances – including
the conducting of FBI name checks – for government employees. See Intelligence Reform and
Terrorism Prevention Act of 2004, Pub. L. 108-458, § 3001(g), 118 Stat. 3638, 3709 (Dec. 17,
2004); (FBI000208) (noting that the act “places new performance criteria on NNCPS”); see also
(FBI000248; FBI000560-61). Accordingly, numerous courts have held that FBI does not have a
mandatory duty to complete naturalization applicants name checks within any prescribed period
of time. See, e.g., Hani, 2008 WL 2026092, at *3 (“Neither the USCIS nor the FBI have a
nondiscretionary duty to complete Group 2 Plaintiffs' name checks within a prescribed period of
time.”); Wang, 2008 WL 45492, at *3 (FBI has no express mandatory duty in connection with a
naturalization application); Alzuraiki, 2008 WL 413861, at *4 (“No statute or regulation limits
the FBI's discretion in how it complete Plaintiffs’ background check, let alone the pace at which this check is undertaken.”)18
18 See also, e.g., Sinha, 2007 WL 4322225, at *5 (“Upon review, the Court finds that it lacks jurisdiction over the FBI Defendants because they do not owe plaintiff a nondiscretionary duty to process background checks.”); Omar, 501 F. Supp. 2d at 640 (noting that plaintiffs had failed to demonstrate that FBI owed a duty to complete the background check within a prescribed time period); Ahmed, 2007 WL 2726250, at *5 (“Further, the court has found no authority to require the FBI to conduct its criminal background check of the applicant within any specific time frame.”); Shalabi v. Gonzales, No. 4:06CV866, 2006 WL 3032413 (E.D. Mo. Oct. 23, 2006) (noting that that “[t]here is no statute or regulation which imposes a deadline for the FBI to complete a criminal background check”); Ibrahim, 529 F. Supp. at 614-15 (court cannot consider plaintiff's APA claim against FBI, where plaintiff has no “clear right” to order compelling FBI to expedite name check). The only case cited by plaintiffs concerning whether 706(1) relief could properly be granted as against FBI, see Alhamedi v. Gonzales, No. 07 Civ. 2541(JGK), 2007 WL 1573935 (S.D.N.Y. May 30, 2007), does not analyze the “mandatory duty” requirement. See id. at *4.
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4. The Proposed Post-Interview Subclass’s Specific, Adequate Remedy Pursuant to 8 U.S.C. § 1447(b) Precludes Resort to Section 706(1)
Plaintiffs’ complaint and motion identify only one proposed class representative for the Proposed Post-Interview Subclass, see Cplt. ¶¶ 50, 52; Pl. Br. at 32, and that plaintiff, Mr. Sanchez, has subsequently been naturalized, see Keevis Decl. ¶ 8. Further, for reasons discussed below, certification of this subclass would not be appropriate under Rule 23. See infra Part III.A, C. Accordingly, in the absence of the identification of a new representative plaintiff and class certification, no claims of the Proposed Post-Interview Subclass are before the Court.
In any event, the Court would lack jurisdiction over section 706(1) claims of the subclass because subclass members have an adequate alternate remedy available under 8 U.S.C. § 1447(b). Section 1447(b) was adopted by Congress specifically to provide the appropriate means of judicial review for individuals who have not received a decision on their naturalization applications within 120 days after having been examined by naturalization officers. Because the subclass may pursue judicial relief through section 1447(b), the Court may not exercise jurisdiction pursuant to the APA over the subclass’s claims. See 5 U.S.C. § 702 (providing that there is no APA jurisdiction where “any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought”); 5 U.S.C. § 704 (provides that APA jurisdiction is limited to cases where “there is no other adequate remedy in a court”).
In 1990, Congress removed principal responsibility for adjudication of naturalization from the courts and transferred that responsibility to Attorney General. See Immigration Act of 1990, Pub. L. No. 101-649, Title IV, 104 Stat. 4978, 5038-48 (Nov. 29, 1990). Under the new naturalization framework, “[t]he immigration statutes create two specific points at which a district court may intervene in the naturalization process.” Langer v. McElroy, No. 00 Civ.
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2741(RWS), 2002 WL 31789757, at *2 (S.D.N.Y. Dec. 13, 2002); see also Borromeo Escaler v. U.S. Citizenship & Immigration Services, No. 03 Civ. 8418 (BSJ), 2007 WL 1975485, at *3 (S.D.N.Y. July 6, 2007). First, an individual whose application is denied may, after the exhaustion of the administrative process, seek review of the denial in district court. See 8 U.S.C. § 1421(c). Second, section 1447(b) provides that, if USCIS has not decided a naturalization application within 120 days of its examination of an applicant, that applicant may file a complaint in federal district court. See id. § 1447(b). In an action pursuant to § 1447(b), the district court “has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to [USCIS] to determine the matter.” Id.
Because Congress carefully and explicitly allocated responsibility for naturalization between the agency and the courts, and authorized the courts to address alleged delays in adjudication only under the circumstances specified in section 1447(b), the general APA review statute is inapplicable. See Lahrar v. USCIS, 485 F. Supp. 2d 705, 708 (E.D. Va. 2007) (holding that general jurisdiction under APA and § 1331 does not exist in light of 8 U.S.C. § 1447(b)); Antonishin v. Keisler, No. 06 Civ. 2518, 2007 WL 2788841, at *5 (N.D. Ill. Sept. 20, 2007) (finding APA relief not available in light of 8 U.S.C. § 1447(b)); Ahmadi v. Chertoff, 2007 WL 3022573, at * 6-*7 (N.D. Cal. Oct. 15, 2007).
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B. In the Alternative, the Court Should Grant Summary Judgment on Plaintiffs’ Section 706(1) Claims Because the Undisputed Facts Demonstrate that USCIS and FBI Have Not “Unreasonably Delayed” or “Unlawfully Withheld” Agency Action
If, notwithstanding the arguments above, the Court were to find that it has jurisdiction over plaintiffs’ section 706(1) claims, the Court should nonetheless grant the Government summary judgment on those claims, because the undisputed facts demonstrate the Government has neither unlawfully withheld nor unreasonably delayed agency action. See Matican v. City of New York, 524 F.3d 151, 154 (2d Cir. 2008) (“Summary judgment is appropriate ‘if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.’ (quoting Fed. R. Civ. P. 56(c))). Because this matter is an Administrative Procedure Act case, the record for decision in the case is limited to the administrative records filed by the Government in this case, except insofar as one of the limited bases for expanding the record exists. See Memorandum & Order, May 13, 2008 (Docket No. 18, Milanes v. Chertoff, 08 Civ. 2354 (LMM)); Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985); National Audubon Soc'y v. Hoffman, 132 F.3d 7, 14-15 (2d Cir. 1997); Cmty. for Creative Non-Violence v. Lujan, 908 F.2d 992, 997 (D.C. Cir. 1990); Seattle Audubon Soc'y v. Norton, No. C05-1835L, 2006 WL 1518895, at *3 (W.D. Wash. May 25, 2006); Raymond Proffitt Found. v. United States Army Corps of Eng’rs, 128 F. Supp. 2d 762, 768 n.8 (E.D. Pa. 2000).
1. Agency Action Has Not Been Unlawfully Withheld Plaintiffs cannot demonstrate that agency action has been “unlawfully withheld” within the meaning of section 706(1), because neither USCIS’s processing of naturalization applications nor FBI’s processing of name checks is subject to a “clear deadline prescribed by Congress.”
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Natural Resources Defense Council v. Fox, 93 F. Supp. 2d 531, 543 (S.D.N.Y. 2000), aff’d in part on other grounds and remanded in part on other grounds, Natural Resources Defense Council, Inc. v. Muszynski, 268 F.3d 91, 93-94 (2d Cir. 2001).
Although plaintiffs ask the Court to impose a 180-day deadline, they do not suggest that a “clear deadline prescribed by Congress” applies, nor could they. Although, as discussed above, Congress passed an aspirational provision in 2002 stating, “POLICY – It is the sense of Congress that the processing of an immigration benefit application should be competed not later than 180 days after the initial filing of the application,” 8 U.S.C. § 1571(b), it is well settled that such a provision is of no legal force. First, a “sense of Congress” provision by definition creates no legal rights or obligations. See Yang v. California Dep’t of Social Servs., 183 F.3d 953, 958-59 (9th Cir. 1999) (holding that “sense of Congress” provision is merely “precatory”); Monahan v. Dorchester Counseling Center, Inc., 961 F.2d 987, 994 (1st Cir. 1992) (same). Second, Congress’s use of the phrase “should be” demonstrates its lack of intent to impose a binding rule. See United States v. Maria, 186 F.3d 65, 70 (2d Cir. 1999) (observing that “the common meaning of ‘should’ suggests or recommends a course of action,” in contrast to the word “‘shall’ [which] describes a course of action that is mandatory”); United States v. Harris, 13 F.3d 555, 559 (2d Cir. 1994) (deeming “should” to indicate “guidance” that is “merely suggesting an approach”); Yang, 183 F.3d at 958-59 (emphasizing non-binding nature of the word “should”); Monahan, 961 F.2d at 994 (“The use of the terms ‘should’ and ‘the sense of Congress’ indicate that the statute is merely precatory.”). Third, Congress’s designation of this provision as “policy” again emphasizes that it lacks substantive force. See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 454-55 (1988) (holding that statute describing
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“the policy of the United States” does not contain “so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights.”); Yang, 183 F.3d at 958-59 (holding that sense of Congress provision following the heading “Congressional Statement” is simply “a policy statement that does not create positive, enforceable law.”); See 1A Norman J. Singer, Sutherland Statutory Construction, § 20.12 (“The policy section . . . is not part of the substantive portion of the statute.”).
Finally, that Congress did not intend section 1571(b) to have binding effect is clear from a review of the entirety of the act in which it was included. See Yang, 183 F.3d at 959 (“To determine the plain meaning of a particular statutory provision, we look to the provisions of the entire law.”). That act describes the 180-day processing goal as an “objective” rather than a requirement, see Immigration Services and Infrastructure Improvements Act, § 204 (codified at 8 U.S.C. § 1573); adds funding to assist the reaching of this “objective,” id. § 204(b); and establishes reporting requirements to determine how USCIS was fairing in meeting this objective, see id. § 205 (codified at 8 U.S.C. § 1574). In short, as with the current Congress’s response to naturalization processing times, the Congress that adopted § 1751(b) did not intend to impose mandatory deadlines.
Although plaintiffs effectively concede that there is no “clear deadline prescribed by Congress” as to the Proposed Class, they do argue that such a deadline exists for the PostInterview Subclass. Pl. Br. at 32. However, no such deadline exists. Although plaintiffs point to 8 U.S.C. § 1447(b), which provides that applicants may seek judicial relief if 120 days have passed following their examination without a decision, Pl. Br. at 33, “[a]ll that § 1447(b) does is give [an applicant] an alternative forum for an initial decision” on a naturalization application if
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USCIS has not reached a decision after 120 days and “both [the applicant] and the district court
wish to take advantage of that alternative.” Bustamante, 533 F. Supp. 2d at 380. Section
1447(b) does not purport to limit a district court’s discretion to conclude that the processing
times in a given case are appropriate under the circumstances, and that USCIS should be
permitted to complete its work. As Judge McMahon recently held, “nothing in the 1990 Act
[adopting § 1447(b)] requires CIS to act on a naturalization petition within 120 days, or any
other specified period of time.” Id.
If Congress meant for the 120-day provision of § 1447(b) to constitute a fixed deadline
for agency action on the application, it would have said as much, as it has in many other statutes.
For example, in a statute concerning hearings for federal employees protesting the collection of
debts from their wages, Congress has provided, “[t]he hearing official shall issue a final decision
at the earliest practicable date, but not later than sixty days after the filing of the petition
requesting the hearing.” 5 U.S.C. § 5514. Many similar examples, all using clear language
imposing deadlines for action, exist throughout the U.S. Code.19
19 See, e.g., 5 U.S.C. § 552(a)(6)(A) (providing that “[e]ach agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall . . . determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request . . . .”); 42 U.S.C. § 1316(a)(1) (Social Security Act provision stating that “[w]henever a State plan is submitted to the Secretary by a State for approval under subchapter I, X, XIV, XVI, or XIX of this chapter, he shall, not later than 90 days after the date the plan is submitted to him, make a determination as to whether it conforms to the requirements for approval under such subchapter. . . .”); 19 U.S.C. § 1673b(a)(2) (providing “the [United States International Trade] Commission shall make the determination described in paragraph (1) . . . in the case of a petition filed under section 1673(a)(b) of this title . . . within 45 days after the date on which the petition is filed . . . .”); 2 U.S.C. § 501(e) (“The [House Commission on Congressional Mailing Standards] shall issue a written decision on each complaint [concerning misuse of franked mail] under this subsection not later than thirty days after such a complaint has been filed or, if a hearing is held, not later than thirty days after the conclusion of such hearing.”); 2 U.S.C. § 502(b) (“The [Select Committee on Standards and
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In addition to section 1447(b), plaintiffs also point to 8 C.F.R. § 335.3 in support of their argument that agency action has been unlawfully withheld. See Pl. Br. at 32, 36. Section 335.3, however, which states the agency’s policy of deciding naturalization application within 120 days of the initial examination of an applicant, does not support plaintiffs’ claim for two reasons. First, the provision is an agency regulation, not a “deadline prescribed by Congress,” Natural Resources Defense Council, 93 F. Supp. 2d at 543 (emphasis added), as required for an claim of action “unlawfully withheld.” Second, even if an agency regulation could constitute the relevant deadline for these purposes, the regulation must be read together with the supervening 1997 Appropriations Act, which mandates a “full criminal background check” including, as understood by Congress, the FBI name check. See 1997 Appropriations Act, 111 Stat. at 2448-49; H.R. Rep. No. 105-405, at 106 (1997) (Conf. Rep.). Because this Congressional imposed requirement would supercede any pre-existing regulatory rule, the regulation cannot support a finding of “unlawfully withheld” action.
Finally, plaintiffs also do not contend that any “clear deadline prescribed by Congress” applies to FBI’s processing of name check requests for naturalization applications. None does. As described above, the lack of a deadline in this regard is in sharp contrast to Congress’s approach to the processing of security clearances for government employees. In that context, unlike the naturalization context, Congress imposed specific deadlines affecting the processing of government employee background checks. See Intelligence Reform and Terrorism Prevention
Conduct of the Senate] shall issue a written decision on each complaint under this subsection not later than thirty days after such a complaint [concerning misuse of franked mail] has been filed or, if a hearing is held, not later than thirty days after the conclusion of such hearing.”)
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Act of 2004, Pub. L. 108-458, § 3001(g), 118 Stat. 3638, 3709 (Dec. 17, 2004); (FBI000208); (FBI000248); (FBI000560-61).
2. Agency Action Has Not Been Unreasonably Delayed Not only are plaintiffs unable to show that USCIS or FBI have “unlawfully withheld” action, but also they cannot demonstrate “unreasonable delay” pursuant to section 706(1). Even lengthy processing times, by themselves, cannot support a finding unreasonable delay. See Hoo Loo v. Ridge, No. Civ. 04-5553, 2007 WL 813000, at *4 (E.D.N.Y. Mar. 14, 2007) (“[T]he Supreme Court has held that evidence of the passage of time cannot, standing alone, support a claim of unreasonable delay.”); Liberty Fund, Inc. v. Chao, 394 F. Supp. 2d 105, 115 (D.D.C. 2005) (“[M]easuring the delay by years alone cannot establish unreasonable delay.”). Rather, the Second Circuit has emphasized that the courts must consider the “source of the delay” in this analysis, including the “complexity” of the matter, as well as “the extent to which the [individual challenging alleged delay] participated in delaying the proceeding.” Reddy v. CFTC, 191 F.3d 109, 121 (2d Cir. 1999). The Circuit has cited approvingly a D.C. Circuit case further elaborating that courts “‘should consider the nature and extent of the interests prejudiced by delay, the agency justification for the pace of the decision, and the context of the statutory scheme out of which the disputes arises.’” Id. at 121 (quoting Public Citizen Health Research Group v. Comm’r, 740 F.2d 21, 35 (D.C. Cir. 1984). Although plaintiffs rely heavily on the D.C. Circuit’s analysis of “unreasonable delay” in Telecommunications Research and Action Center v. FCC (“TRAC”), 750 F.2d 70 (D.C. Cir. 1984), the TRAC test, as applied and elaborated on by subsequent courts, is entirely consistent
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with the totality-of-the-circumstances approach of the Second Circuit. In TRAC, the D.C. Circuit
attempted to summarize the considerations relevant to an “unreasonable delay” claim:
(1) the time agencies take to make decisions must be governed by a rule of reason; (2) where Congress has provided a timetable or 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.
TRAC, 750 F.2d at 80 (citations and internal quotation marks omitted). The D.C. Circuit
explained that its “rule of reason” analysis is “hardly ironclad,” but rather simply “provides
useful guidance” to assess the reasonableness of the time taken for agency action. See id. at 80.
As part of the TRAC analysis, among other things, a court “should weigh any plea of
administrative error, administrative convenience, practical difficulty in carrying out a legislative
mandate, or need to prioritize in the face of limited resources.” Cutler, 818 F.2d at 898. As the
D.C. Circuit has explained, “[t]he ultimate issue” is whether the agency’s processing time
“satisfies the ‘rule of reason.’” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d
1094, 1101 (D.C. Cir. 2003). Further, the court noted:
That issue cannot be decided in the abstract, by reference to some number of months or years beyond which agency inaction is presumed to be unlawful, but will depend in large part, as we have said, upon the complexity of the task at hand, the significance (and permanence) of the outcome, and the resources available to the agency.
Id. This analysis, consistent with the method of analysis discussed by the Second Circuit in
Reddy, considers all of the relevant circumstances surrounding the delay, including the intent of
Congress.
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Here, as detailed below, the Court should conclude that USCIS and FBI have not “unreasonably delayed” agency action, taking into account the following factors:
(1) Congress is aware of the length of current processing times for naturalization applications, but rather than impose deadlines or jettison the name check requirement, has chosen to fund efforts by the agencies’ to improve their processes while still conducting the FBI name check. (2) The FBI name check serves the important governmental interests relating to national security and determining the eligibility of aliens for the benefit of naturalization. (3) With the approval of Congress, USCIS and FBI have adopted a plan designed to reduce the effect of the FBI name check on naturalization processing times. (4) To the extent that “surge,” is a cause of current processing times, USCIS has acted reasonably with regard to the surge and adopted a plan to mitigate its effects. (5) USCIS and FBI have acted to expedite cases raising concerns of “human health and welfare,” TRAC, 750 F.2d at 80. (6) The deadlines requested by plaintiffs would require a reallocation agency resources, likely resulting in plaintiffs and their class moving to the “head of the line,” to the detriment of other applicants for naturalization or other benefits, or other agency priorities. (7) USCIS and FBI have acted in good faith. (8) Some plaintiffs may have contributed to the length of their own processing times. As analyzed below, these factors all demonstrate that plaintiffs’ claim must fail. First, Congress is well aware of the length of naturalization processing times and the time it takes for processing of the FBI name check, but rather than adopt processing deadlines or limit USCIS’s use of the FBI name check, Congress has followed a measured approach of urging the agencies to develop plans to reduce processing times, granting the agencies additional resources to assist it with this reduction, and requiring the agencies to report to Congress on the status of its efforts. See May 2007 Appropriations Act , tit. III, ch. 5, 121 Stat. at 143; 2008
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Appropriations Act), 121 Stat. at 2067; see also Cutler, 818 F.2d at 878 (holding that analysis of unreasonable delay “entails an examination of any legislative mandate in the statute and the degree of discretion given the agency by Congress”). Congress has not modified its mandate for a “full criminal background check,” see 1997 Appropriations Act, 111 Stat. at 2448-49, which it understands to include both an FBI name check and a fingerprint check, see H.R. Rep. No. 105405, at 106 (1997) (Conf. Rep.), nor has it limited USCIS’s discretion in conducting the requisite “personal investigation,” 8 U.S.C. § 1446(a).
Second, the agencies’s and Congress’s approach to the role of the FBI name check in the naturalization process reflects their understanding that it serves significant government interests as an element of the nation’s national security screening, see Safadi v. Howard, 466 F. Supp. 2d 696, 701 (E.D. Va. 2006) (“[O]ur national security requires that caution and thoroughness in these matters not be sacrificed for the sake of expediency.”); see also Dong Liu v. Chertoff, No. Civ. 07-0005-BEN-WMC, 2007 WL 1300127, at *5 (S.D. Cal. Apr. 30, 2007); Boim v. Quranic Literacy Institute, 291 F.3d 1000, 1027 (7th Cir. 2002) (“[T]he government's interest in preventing terrorism is not only important but paramount.”), and as a method to ensure that only eligible aliens receive the benefit of citizenship, Berenyi, 385 U.S. at 637 (describing the Government’s “strong and legitimate interest” in preventing ineligible individuals from becoming citizens); Walters v. Reno, 145 F.3d 1032, 1043 (9th Cir. 1998) (“The Government’s interests in the administration of its immigration laws and in preventing [immigration related] document fraud are likewise considerable.”). As one court has observed, “in this post-9/11 context, agencies must have the freedom to carefully and thoroughly investigate these
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applications without interference in their priorities.” Patil v. Mueller, No. 07 cv 71 (JCC), 2007 WL 1302752, at *2 (E.D. Va. Apr. 30, 2007).
Third, USCIS and FBI are working to reduce the effect of the FBI name check on current naturalization application processing times. Congress is aware of the immediate concern with processing times and has acted to address the issue by providing resources to the agencies and requiring the development of a business plan. USCIS and FBI have produced such a plan and are working towards its goals. (CIS006307-24); see Action on Smoking and Health (ASH) v. Dep’t of Labor, 100 F.3d 991, 994 (D.C. Cir. 1996) (rejecting claim of unreasonable delay where the agency “has not been twiddling its thumbs” but rather has been working on the problem); cf. TRAC, 750 F.2d at 80 (declining even to determine whether delay was unreasonable, where the agency has begun “moving expeditiously”). Because the agency is implementing a program for the reduction of processing times within the resources and other constraints present, the Court should not upset the process by imposing a judicial remedy. Liberty Fund, Inc. v. Chao, 394 F. Supp. 2d 105, 116, 120-21 (D.D.C.,2005) (“Under the “rule of reason,” the agency’s provision of a projected timeline for balancing competing priorities – one that provides relief in the foreseeable future – weighs against issuance of mandamus.”).
Fourth, a principal cause of current processing times is the “surge,” which far from evincing unreasonableness on the part of the agency reflects the legitimate efforts of the agency to improve efficiency. USCIS’s decision to raise fees was made with full notice-and-comment rule-making and the awareness of Congress, in order to provide USCIS the funds necessary to improve its operations. (CIS004827-55). Indeed, a General Accounting Office report had urged USCIS to adopt such a fee increase specifically to enable it to reduce delays in processing of
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benefits applications. (CIS003331-83). Further, as described in more detail above, USCIS appropriately examined the potential effects of a fee increase prior to putting the increase into effect, and determined that any “surge” would be modest in size and offset by a decline in applications in subsequent months. (CIS004627-43). Although in hindsight USCIS’s estimates were inaccurate, that does not make the fee increase unreasonable. Further, USCIS has adopted a Surge Response Plan intended to reduce the effect of the surge on application processing times. (CIS004660-80). USCIS has hired numerous additional adjudicators, realigned work-flows, and taken other steps to improve processing times. (CIS006388).
Fifth, USCIS and FBI have acted consistently with a concern for cases involving “human health and welfare,” see TRAC, 750 F.2d at 80, by providing for the expedited treatment of such cases. Although every applicant’s desire to become a citizen of the United States is a matter of personal significance, USCIS has afforded expedited treatment for FBI name checks to those categories of applications that raise “emergent circumstances,” as a departure from the usual practice of processing FBI name checks on a first-come, first-served basis. (FBI000180; CIS004910). “Emergent circumstances” include the loss or threatened loss of SSI benefits because of the seven-year time limit on benefit eligibility, certain cases where aliens will risk “aging-out” of eligibility for citizenship or losing available visas, “significant and compelling reasons, such as critical medical conditions,” and cases where the applicant is schedule to leave on miliary deployment. (CIS004910).
Sixth, if USCIS or FBI were to be ordered to accelerate processing of the Proposed Class’s applications to meet plaintiffs’ proposed bright-line six-month rule, this would require shifting otherwise committed resources and disrupting other priorities of the agencies. See
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Action on Smoking and Health (ASH), 100 F.3d at 994 (“Perhaps the Administration could have moved faster by drawing on additional resources. But then it would have threatened other items on its regulatory agenda.”); cf. Cutler, 818 F.2d at 896 (recognizing that “[a]n agency has broad discretion to set its agenda and to fist apply its limited resources to the regulatory tasks it deems most pressing”). The D.C. Circuit has emphasized “the importance of ‘competing priorities’ in assessing the reasonableness of an administrative delay.” Mashpee Wampanoag Tribal Council, 336 F.3d at 1100. Where agency resources are such that an order runs the risk of “at best, reorder[ing] the queue,” and the system as a whole is likely to face “little net benefit,” a finding of unreasonableness under section 706(1) is not appropriate. Sze, 1997 WL 446236, at *8; see also Liberty Fund, 394 F. Supp. 2d at 117-18. USCIS must consider the allocation of its resources to naturalization applications across all the districts of the country, and not simply the New York District, and must also process millions of applications for immigration benefits other than naturalization, including humanitarian benefits such as asylum. FBI, of course, has a wide range of significant priorities other than the operating of the National Name Check Program, including law enforcement and counter-terrorism missions. Unlike Congress’s recent legislation on the issue, a court order can provide the agency additional resources to process cases.
Seventh, plaintiffs make no allegation of “bad faith” on the part of the agency, nor could they. “[T]he good faith of the agency in addressing the delay weighs against mandamus.” Liberty Fund, 394 F. Supp. 2d at 120; see also In re Barr Laboratories, Inc., 930 F.2d 72, 76 (D.C. Cir. 1991) (“[T]he absence of bad faith, as here, is relevant to the appropriateness of mandamus). The agency’s good faith efforts to reduce processing times is a significant factor showing that current processing times are not unreasonable.
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Finally, it is possible that plaintiffs have caused their own delay in this case. For example, at least two of the named plaintiffs in this case demonstrate the type of individualized factors that may cause a departure from average processing times. Plaintiff Nancy Castro was unable to pass the English test at her initial examination, requiring a re-examination, Keevis Decl. ¶ 3. Further, in one instance, mail sent by USCIS to plaintiff Milanes was returned as undeliverable, Keevis Decl. ¶ 6.20
C. The Proposed Post-Interview Subclass’s Claims Pursuant to 8 U.S.C. § 1447(b) Should be Remanded for Processing Following the Completion of Any Outstanding FBI Name Checks
As noted above, the naturalization application of plaintiffs’ only proposed subclass representative has been decided, and as described below, there is no basis for certification of this subclass. Accordingly, the claims of the subclass pursuant to section 1447(b) are not properly before the Court.
In any event, to the extent the Court deems it appropriate to consider these claims, the Court should exercise its discretion to remand the section 1447(b) claims brought against USCIS to the agency for processing in due course following the completion of any outstanding FBI name checks. Section 1447(b) does not contain mandatory standards for the Court, but instead calls for a discretionary, totality-of-the-circumstances review:
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
20 Other relevant characteristics of the named plaintiffs may exist, as well. The Government’s depositions of the named plaintiffs, at which these issues may be explored, are not scheduled to occur until after the filing of this brief.
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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). One option of the Court, in a properly commenced section 1447(b) action, is to conduct a de novo hearing on the merits of the pending naturalization application, conducting its own review of the applicant’s eligibility, including his or her good moral character, if the district court believes this approach makes sense under the circumstances, see Bustamante, 533 F. Supp. 2d at 380; for obvious reasons, plaintiffs do not suggest that this Court should decide the merits of all of the pending naturalization applications in the proposed subclass. Section 1447(b) also gives the district court discretion to enter an order “with appropriate instructions” remanding a case back to the agency for processing. For the reasons stated above, strong reasons counsel against the Court’s disrupting USCIS’s efforts in this regard: (1) the existence of the statutory “full criminal background check” requirement, which Congress understood to include the FBI name check; (2) the requirement that USCIS conduct a personal investigation of each applicant prior to naturalization; (3) Congress’s decision not to adopt a specific deadline for adjudication of naturalization applications, even in cases where the examination has already occurred; (4) the efforts currently being undertaken by USCIS and FBI, with the approval of Congress, to reduce naturalization processing times; and (5) the fact that, in light of fixed resources, an order essentially pushing this subclass to the head of the line would likely have the effect of redirecting resources from the processing of other naturalization applications or applications for other immigration benefits. See, e.g., Hani, 2008 WL 2026092, at *2 (remanding with instructions to adjudicate plaintiffs’ applications “as expeditiously as practical once the results of their background checks are received”); Shalabi, 2006 WL 3032413, at *5-*6 (remanding the matter to the USCIS “with instructions to make a determination as
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expeditiously as possible” after receiving an FBI name check response); Antonishin, 2007 WL 2788841, at *4 (remanding and “declin[ing] to impose any particular deadline for adjudication of plaintiff's applications on remand”).
Not only should the subclass’s section 1447(b) claims against USCIS be remanded to the agency, but further to the extent the subclass purports to bring section 1447(b) claims against FBI, those claims should be dismissed. Section 1447(b), which is a judicial review provision for naturalization applications, does not create a cause of action against the FBI, the only role of which is to process name checks requested by USCIS, just as it processes name checks requested by dozens of other agencies and law enforcement organizations. See, e.g., Antonishin, 2007 WL 2788841, at *6.
D. Plaintiffs’ Notice-and-Comment Claims Should be Dismissed Because the 2002 Changes in Practice Were Not “Legislative Rules”
The Court should dismiss, or in the alternative grant summary judgment with respect to, plaintiffs’ “notice-and-comment” challenge to what plaintiffs call the “2002 Rule,” the steps take by USCIS in 2002 to require that a definitive FBI name check, covering both FBI’s “main files” and the “reference files,” be completed prior to naturalization.
As an initial matter, it is important to note that plaintiffs do not challenge the substance of those USCIS’s 2002 changes in practice, but simply the procedures by which those policies were adopted. It would not be appropriate for the Court to issue orders regarding the substance of this policy, in light of Congress’s “full criminal background check” requirement. Further, even in the absence of that requirement, plaintiffs could not challenge the substance of the 2002 changes in practice because those changes of practice were well within the scope of the agency’s discretion in conducting the “personal investigation” required by law. See 8 U.S.C. § 1446(a).
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In the personal investigation requirement, Congress established “no meaningful standard against which to judge the agency’s exercise of discretion,” Heckler v. Chaney, 470 U.S. 821, 830 (1985), and accordingly USCIS’s interpretation is “committed to agency discretion by law” and not subject to review under the Administrative Procedure Act (“APA”), see 5 U.S.C. § 701(a)(2); see also, e.g., Lincoln v. Vigil, 508 U.S. 182, 190-91 (1993); Webster v. Doe, 486 U.S. 592, 600 (1988); Lunney, 319 F.3d at 558.
Apparently recognizing that the Court would lack jurisdiction to entertain a challenge to the substance of the 2002 changes in practice, plaintiffs claim only that those policies are invalid because they should have been promulgated pursuant to the full notice-and-comment procedures contained in 5 U.S.C. § 553. See Pl. Br. at 21. The APA, however, expressly exempts from the notice-and-comment requirements rules that are “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(A). With the exception of Mocanu v. Mueller, Nos. 07-0445, 07-0971, 07-3223, 07-2718, 07-2859, 08-195, 2008 WL 372459 (E.D. Pa. Feb. 8, 2008), which is relied on heavily by plaintiffs and discussed below, every court to have considered the issue has rejected the contention that the 2002 changes in practice were subject to notice-and-comment procedures. See Hani v. Gonzales, No. 3:07CV-517-S, 2008 WL 2026092, at *5 (W.D. Ky. May 8, 2008); Ahmadi v. Chertoff, 2007 WL 3022573 (N.D.Cal.) (N.D. Cal. Oct. 15, 2007); Antonishin v. Keisler, No. 06 Civ. 2518, 2007 WL 2788841, at *7-*9 (N.D. Ill. Sept. 20, 2007); Tartakovsky v. Pierre, 3:07-cv-1667-BENBLM, Slip Op. at 9-10 (S.D. Cal. Mar. 11, 2008) (unpublished) (attached as Yalen Decl. Ex. D).
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1. The 2002 Changes in Practice Did Not Impose Extra-Statutory Rights, Duties or Obligations
The 2002 changes in practice were not “legislative rules” requiring notice-and-comment procedures because they did not impose “extra-statutory . . . rights, duties or obligations” on naturalization applicants. White v. Shalala, 7 F.3d 296, 304 (2d Cir. 1993). Only where agency rules “create new law, right, or duties, in what amounts to a legislative act,” do they constitute a legislative rule. New York State Elec. & Gas Corp. v. Saranac Power Partners, L.P., 267 F.3d 128, 131 (2d Cir. 2001) (internal quotation marks omitted); see also Mejia-Ruiz v. Immigration & Naturalization Service, 51 F.3d 358, 363 (2d Cir. 1995) (same); White, 7 F.3d at 303 (same). A legislative rule is one with “effect[s] completely independent of the statute.” Mejia-Ruiz, 51 F.3d at 363 (citations and emphasis omitted; brackets in original). Applicants have no additional responsibilities as a result of the 2002 changes in practice, and nothing in the 2002 changes in practice modifies the substance of “good moral character” requirement, or any component of statutory eligibility for naturalization, at all.
Rather than a legislative rule, the 2002 changes in practice are “interpretative rules” or “general statements of policy” that do not require notice-and-comment procedures. 5 U.S.C. § 553(b)(A). Interpretative rules “clarif[y] ambiguous term[s]” in the statute rather than impose new rights or duties, White, 7 F.3d at 304; see also New York State Elec. & Gas Corp., 267 F.3d at 131 (“Interpretive rules . . . do not create rights, but merely clarify an existing statute or regulation.”), and here, to the extent that there is any ambiguity in the meaning of “full criminal background check” requirement, the 2002 changes in practice simply clarified the agency’s understanding of that term. See White, 7 F.3d at 304 (“[A] paradigmatic example of an interpretative rule” is one, like the 2002 changes in practice, that simply “determines only how [a
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circumstance] will be treated under an existing statutory provision, rather than creating an extrastatutory requirement.”). Similarly, as an announcement of how the agency intends to implement the personal investigation requirement, USCIS’s decision is a “general statement of policy” exempt from the notice and comment requirements. Lincoln, 508 U.S. at 196-97 (explaining that a “general statement of policy” is a rule in which the agency announces how it “proposes to exercise a discretionary power”).
Relying on two tests adopted by the D.C. Circuit to identify “legislative” rules, plaintiffs argue that the 2002 changes in practice were legislative because they purportedly lacked a “legislative basis” and amended prior legislative rules. See Pl. Br. 22-28. These tests, adopted initially by the D.C. Circuit in American Mining Congress v. Mine Safety & Health Administration, 995 F.2d 1106, 1112 (D.C. Cir. 1993), have been noted by the Second Circuit but have not, contrary to plaintiffs’ suggestion, see Pl. Br. at 22, been adopted in lieu of plaintiffs’ own formulation of the definition of a “legislative” rule. See Sweet v. Sheehan, 235 F.3d 80, 91 (2d Cir. 2000) (discussing the D.C. Circuit test). In any event, even if these tests are applicable, plaintiffs are incorrect to suggest that either supports finding the 2002 changes in practice to be “legislative.”
First, the D.C. Circuit’s “legislative basis” requirement asks whether, in the absence of the rule in question, the agency would have had “an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure the performance of duties.” American Mining Congress, 995 F.2d at 1112. Essentially, this test looks at the same question defined in Second Circuit cases: whether the agency is using the rule as the basis for an “extra-statutory imposition of rights, duties or obligations” on naturalization applicants. White, 7 F.3d at 304.
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Here, the 2002 changes in practice – which include USCIS’s implementation of the mandatory “full criminal background check requirement,” which Congress understood to include the FBI name check, and the “personal investigation” of § 1446(a) – do not place any obligations on naturalization applicants or change the standards by which their applications are judged.
Second, plaintiffs claim incorrectly that the 2002 changes in practice must be “legislative” rules because they amended 8 C.F.R. § 335.2(b), which, they claim – without any argument – itself was a legislative rule. Plaintiffs are incorrect on both counts. As an initial matter, the 2002 changes in practices are consistent with § 335.2(b). That section states that an applicant’s initial examination before a naturalization examiner will not be scheduled until a “definitive response” to the full criminal background check is received, and explains circumstances qualifying as a definitive response. See id. The description of a “definitive response” is ambiguous: on the one hand, § 335.2(b) includes as a “definitive response” a statement by the FBI that an applicant does or does not have “an administrative or a criminal record,” see 8 C.F.R. § 335.2(b)(1)-(2), which would require a response to the FBI name check; on the other hand, the section refers to the definitive response requirement as being satisfied by a statement that the applicant’s fingerprints are “unclassifiable,” id. § 335.2(b)(3), which obviously relates only to fingerprints. In light of this ambiguity and the regulation’s use of the term “full criminal background check,” see id. § 335.2(b), which Congress understood to mean “both name and fingerprint criminal history check,” H.R. Rep. No. 105-405, at 106 (1997) (Conf. Rep.), it is USCIS’s responsibility to reconcile this ambiguity, as the 2002 changes in practice do. See Auer v. Robbins, 519 U.S. 452, 461 (1997) (according “controlling” weight to agency’s interpretation of its own regulations, where not “plainly” incorrect); see also Shalabi v.
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Gonzales, No. 4:06CV866, 2006 WL 3032413 (E.D. Mo. Oct. 23, 2006) (“A “name check” may certainly be read into the requirement of a full criminal background check” contained in § 335.2.)
In any event, even if the 2002 changes in practice were inconsistent with § 335.2(b), plaintiffs’ unsupported assertion that § 335.2(b) was a “legislative” rule is incorrect. It is well settled that an interpretative rule may be amended by another interpretative rule; only the amendment of a “legislative” rule requires the agency to act by a new legislative rule. See White, 7 F.3d at 304. Just as USCIS’s 2002 changes in practice concerning a “definitive response” from the FBI name check impose no extra-statutory “rights, duties or obligations” on the applicants, see White, 7 F.3d at 304, neither does section 335.2(b), which on its face is simply a policy statement and interpretative rule setting out how USCIS will conduct the personal investigation and full criminal background check, and when in the process USCIS will schedule examinations for applicants. See 8 C.F.R. § 335.2. Section 335.2(b) is not a legislative rule because it neither imposes obligations on applicants nor modifies the substance of the standards for determining whether they are eligible for naturalization, including “good moral character.” Accordingly, no notice-and-comment procedures were required, because “an interpretive rule changing an agency’s interpretation of a statute is not magically transformed into a legislative rule.” White, 7 F.3d at 304.21
21 Although the American Mining Congress test refers to whether a rule has been published in the Code of Federal Regulations as relevant to whether it is a “legislative rule,” the D.C. Circuit subsequently clarified that this factor does not receive significant weight in the analysis. See Health Ins. Ass’n v. Shalala, 23 F.3d 412, 423 (D.C. Cir. 1994) (describing publication in the Code of Federal Regulations as nothing more than “a snippet of evidence of agency intent”); see also Pl. Br. at 22 n.2 (noting modification of American Mining Congress test).
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2. That the 2002 Changes in Practice May Have Had Substantial Effects Does Not Make Them Legislative Rules
Plaintiffs rely heavily on Mocanu v. Mueller, Nos. 07-0445, 07-0971, 07-3223, 07-2718, 07-2859, 08-195, 2008 WL 372459 (E.D. Pa. Feb. 8, 2008), to support their arguments. The Mocanu court found that the 2002 changes in practice were legislative principally because they had a significant effect on the processing of naturalization applicants, the 2002 changes in practice. See id. at *12. The Second Circuit, however, has rejected such an analysis.
Although at one time the Second Circuit held that notice-and-comment procedures were required for all “substantive” rules, a term defined to include those that “produce . . . significant effects on private interests.” White, 7 F.3d at 303 (internal quotation marks omitted), the Circuit has subsequently expressly abandoned that approach.22 The Circuit recognized that “interpretative rules may have substantive effects,” id., and held that the relevant issue is, as described above, whether the agency imposes “extra-statutory . . . rights, duties or obligations,” and not whether the rule in question has significant effects. See White, 7 F.3d at 304. Indeed, in numerous cases, the Second Circuit has found agency rules to be “interpretative” notwithstanding significant effects on private parties. See, e.g., New York State Elec. & Gas Corp., 267 F.3d at 131-32 (purported agency rule against untimely challenges to electricity rates); Mejia-Ruiz, 51 F.3d at 363 (rule effectively terminating right of judicial review of alien subject to deportation order, where the alien leaves the United States after taking an administrative appeal from an immigration judge’s decision); White, 7 F.3d at 304 (rule reducing Supplemental Security Income disability benefits for a class of recipients). Accordingly, the
22 Accordingly the Second Circuit case that the plaintiffs rely on for this point is no longer good law. See Pl. Br. 27 (citing Perales v. Sullivan, 948 F.2d 1348, 1354 (2d Cir. 1991)).
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Court should reject the Mocanu approach that the effects of the 2002 rule on the processing of applications are sufficient to convert a non-legislative rule to a legislative rule.
E. Plaintiffs’ Due Process Claim Should be Dismissed for Failure to State a Claim Plaintiffs’ due process claim should be dismissed because they cannot, as a matter of law, demonstrate that they have been deprived of a constitutionally protected liberty interest or property interest, nor can they demonstrate that they failed to receive process that is constitutionally due. See, e.g., Adams v. Suozzi, 517 F.3d 124, 127 (2d Cir. 2008) (in addressing a procedural due process claim, courts analyze “(1) whether plaintiffs possessed a protected liberty or property interest, and, if so, (2) what process plaintiffs were due” (internal quotation marks omitted)). Plaintiffs’ claim of entitlement to a decision within six months is simply a claim of entitlement to process, not a claim that they are substantively entitled to naturalization. See Hani v. Gonzales, No. 3:07-CV-517-S, 2008 WL 2026092, at *6 (W.D. Ky. May 8, 2008) (dismissing due process challenge to processing times for naturalization applications because “naturalization applicants have no protected interest in having their applications adjudicated by any certain date”). It is well settled that such a claim is insufficient to allege a constitutionally protected liberty or property interest for due process purposes. See Olim v. Wakinekona, 461 U.S. 238, 250 (1983) (“Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.”); Rodriguez v. McLoughlin, 214 F.3d 328, 339 (2d Cir. 2000) (“[An] expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause.” (internal quotation marks omitted)); Cofone v. Manson, 594 F.2d 934, 938 (2d Cir. 1979) (“[a]lthough a Due Process
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Clause liberty interest may be grounded in [a] law that places substantive limits on the authority of . . . officials, no comparable entitlement can derive from a statute that merely establishes procedural requirements”).
To the extent that plaintiffs would go beyond their claim to process itself, and attempt to claim entitlement to naturalization, their claim equally must fail. First, plaintiffs do not – and cannot – suggest that all of their purported class members will be found substantively eligible to naturalize; many will be found ineligible and have their applications denied. Accordingly, as a matter of fact it is impossible for them to claim on a class-wide basis that they have a right to naturalization. Second, the completion of the name check process itself is part of the statutory requirements for naturalization and, accordingly, plaintiffs “have not met all statutory requirements for naturalization in that their FBI name checks are still pending,” Hani, 2008 WL 2026092, at *6; see United States v. Ginsberg, 243 U.S. 472, 475 (1917) (applying the rule that “[n]o alien has the slightest right to naturalization unless all statutory requirements are complied with” to procedural requirements, allowing revocation of citizenship, without regard to substantive eligibility, where naturalization hearing was held in chambers in violation of the then-existing requirement of a public hearing).
Finally, even if plaintiffs could show deprivation of a constitutionally protected liberty or property interest, as a matter of law they have received all the process that is due. To determine what process is due before deprivation of a liberty or property interest, a court considers three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the
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Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see also Rivera-Powell v. New York City Bd. of Elections, 470 F.3d 458, 466 (2d Cir. 2006) (same). Here, concerning the first factor, although applicants certainly have a personal interest in become United States citizens, as a legal matter they have no right to citizenship until “all statutory requirements are complied with,” Ginsberg, 243 U.S. at 475, including the FBI background check required by the 1997 Appropriations Act, the “personal investigation” mandated by § 1446(a), and a finding of eligibility on all criteria for citizenship, including good moral character. With regard to the second factor, it is the Government that is seeking to avoid any erroneous decision-making through sufficient procedural safeguards; plaintiffs do not propose any “additional or substantive” safeguards that they believe will reduce errors in decision-making. Finally, as described above, the Government’s interest in comprehensively vetting naturalization applicants has been deemed by Congress to be a critical interest. F. Plaintiffs Are Not Entitled to Injunctive or Declaratory Relief Even if, notwithstanding the above, one or more individuals could demonstrate unreasonable delayed action, unlawfully withheld action, or a due process violation, the Court should deny injunctive and declaratory relief. Injunctive relief should be denied, first, because the Supreme Court has explained that the courts may not issue injunctions imposing a deadline for the processing of allegedly delayed adjudications, where Congress is fully aware of the processing times involved and has chosen not to enact such a deadline. See Heckler v. Day, 467 U.S. 104, 119 (1984) (vacating affirmance of injunction requiring adjudication of Social Security disability requests for reconsideration within 90 days, for a class of all present and future
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applicants). The Court recognized that in appropriate cases it may be proper for the courts to impose deadlines on an agency to process a particular individual’s request. See id. at 119 n.33. The Court held, however, that where, as here, Congress is “fully aware of the serious delays in resolution of” pending applications but “declined to impose deadlines on the administrative process.” Id. at 111, even “long delays that well may have caused serious deprivations” do “not justify imposing absolute periods of limitations applicable to all claims – limitations that Congress repeatedly has declined to enact.” Id. at 119 n.33.
The injunctive relief sought by plaintiffs should also be denied because it is not in the public interest. “The decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court . . . .” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); see, e.g., In re Barr Labs., Inc., 930 F.2d 72, 74 (D.C. Cir. 1991) (“Equitable relief, particularly mandamus [as under § 706(1)], does not necessarily follow a finding of a violation . . . .”). As part of its exercise of discretion, a court should ensure that “the public interest would not be disserved by a permanent injunction.” Id.; see also Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (“In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.”) “[A] federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.” Weinberger, 456 U.S. at 313. Here, in at least two respects, the public interest would be strongly disserved by the sought after injunction.
Complying with an injunction requiring adjudication of all applicants in the New York district within six months will likely require the agency to transfer substantial resources from other projects of significance, including the processing of naturalization applicants in other
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districts in the country where such an order is not in effect. See Heckler, 467 U.S. at 116 (noting that “judicially imposed deadlines may vary from case to case and from State to State, requiring HHS to shuffle its staff nationwide”); In re Barr Labs., Inc., 930 F.2d at 75 (observing that “[a]ssuming constant resources . . . a judicial order putting [a petitioner] at the head of the queue simply moves all others back one space and produces no net gain”). Even where there is a strict statutory deadline for agency action – which as described above does not exist for naturalization applications – where constant resources would likely simply transfer the burden from one class of individuals to another. See In re Barr Labs., Inc., 930 F.2d at 73. “Perhaps Congress should earmark more funds specifically to” the naturalization program at issue here, “but that is a problem for the political branches to work out.” In re Barr Labs., Inc., 930 F.2d at 75.
Moreover, the FBI name check has been adopted by Congress and USCIS for use in the naturalization process in an effort to protect national security and to ensure that all individuals who become naturalized are fully entitled to do so, and a court order imposing deadlines would risk upsetting this process. See Shalabi v. Gonzales, No. 4:06CV866, 2006 WL 3032413, at *5 (E.D. Mo. Oct. 23, 2006) (“A background check that is rushed and incomplete due to an artificial, court imposed deadline would not meet the statutory and regulatory requirements of a ‘full criminal background check’ before the USCIS can make a determination on an application”). In that regard, “respect for the autonomy and comparative institutional advantage of the executive branch has traditionally made courts slow to assume command over an agency’s choice of priorities.” In re Barr Labs., 930 F.2d at 74. As the D.C. Circuit has explained:
In short, we have no basis for reordering agency priorities. The agency is in a unique-and authoritative-position to view its projects as a whole, estimate the prospects for each, and allocate its resources in the optimal way. Such budget flexibility as Congress has allowed the agency is not for us to hijack.
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In re Barr Labs., Inc., 930 F.2d at 76. Not only is injunctive relief inappropriate but also declaratory relief is inappropriate in
light of the agency’s current efforts to reduce processing times. See A. L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 331 (1961). The Declaratory Judgment Act does not require a district court to provide relief whether they have found a statutory violation, but simply “vests a district court with discretion to determine whether it will exert jurisdiction over a proposed declaratory action or not.” Dow Jones & Co., Inc. v. Harrods Ltd., 346 F.3d 357, 359 (2d Cir. 2003). A district considering whether to issue a declaratory judgment should ask, among other things, “(1) whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved; and (2) whether a judgment would finalize the controversy and offer relief from uncertainty.” Dow Jones & Co., Inc., 346 F.3d at 359. The Supreme Court has held that, in exercising this discretion, “where it appears that a challenged ‘continuing practice’ is, at the moment adjudication is sought, undergoing significant modification so that its ultimate form cannot be confidently predicted,” “sound discretion withholds the remedy."” A. L. Mechling Barge Lines, Inc., 368 U.S. at 331. This policy of withholding decision reflects the same institutional concerns that counsel against issuing injunctive relief under these circumstances. II. Plaintiffs’ Motion for a Preliminary Injunction Should Be Denied
Contrary to plaintiffs’ contention, the usual balancing test for preliminary injunctive relief – requiring a plaintiff to show, in addition to irreparable injury,23 “either (a) a likelihood of
23 This Court has already ruled, at the April 11, 2008 conference in this matter, that plaintiffs have met the standard for demonstrating “irreparable harm.” Accordingly, the Government does not seek to re-litigate that issue in these papers, while reserving the right to raise the issue on appeal or in any subsequent proceeding in this case.
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success on the merits or (b) a sufficiently serious question going to the merits, with a balance of hardships tipping in favor of the party requesting the preliminary injunction,” Tunick v. Safir, 209 F.3d 67, 70 (2d Cir. 2000) – does not apply to this lawsuit, in which plaintiffs seek a mandatory preliminary injunction against USCIS’s operation of its programs. The Second Circuit has held, to the contrary, that in cases where plaintiffs seek a mandatory injunction against the Government, they must demonstrate a “clear or substantial” likelihood of success on the merits, in addition to irreparable harm. See Wright v. Giuliani, 230 F.3d 543, 547 (2d Cir. 2000)). As the Supreme Court has recently emphasized, “[a] preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right.” Munaf v. Geren, — S. Ct. — , 2008 WL 2369260, at *11 (June 12, 2008) (internal quotation marks and citations omitted).24
Plaintiffs’ papers in support of their motion for a preliminary injunction raise the same claims as are presented in their complaint, except that they do not advance, in the preliminary injunction papers, their claim pursuant to the Due Process Clause. For all the reasons described above, plaintiffs cannot demonstrate that they have any possibility of success on the merits, let alone the “clear and substantial” likelihood of success required for the preliminary injunction they seek.
Additionally, even if plaintiffs could demonstrate the clear and substantial likelihood of success required for issuance of a preliminary injunction, the preliminary injunction should still
24 Indeed, it is no longer clear that the “serious question going to the merits” standard quoted by plaintiffs has continued viability even in cases not involving the government. See Munaf, , 2008 WL 2369260, at *11 (“[A] party seeking a preliminary injunction must demonstrate, among other things, a likelihood of success on the merits.” (internal quotation marks omitted)). However, as it has long been clear that this standard does not apply in cases against the government, see Wright, 230 F.3d at 547, the Court need not reach the issue.
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be denied because, as discussed above with regard to plaintiffs’ claim for a permanent
injunction, such a court order would be contrary to the public interest and Congress’s intent.
See, e.g., Weinberger, 456 US at 312 (holding that courts should not issue equitable remedies
without considering the public interest). As the Supreme Court has explained:
The award of an interlocutory injunction by courts of equity has never been regarded as strictly a matter of right, even though irreparable injury may otherwise result to the plaintiff. . . .
[W]here an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff.
Yakus v. United States, 321 U.S. 414, 440-41 (1944); see also Weinberger, 456 U.S. at 312-13
(same). For the reasons discussed above in the context of the request for a permanent injunction,
the issuance of a preliminary injunction would be contrary to Congressional intent and the public
interest.
III. Plaintiffs’ Motion for Class Certification Should be Denied
Plaintiffs’ motion for class certification should be denied because they fail to satisfy the
requirements of Rule 23. Plaintiffs seek certification of the following class:
All lawful permanent residents who reside in the counties served by the New York District Office of USCIS who have properly submitted or will properly submit application for naturalization to USCIS, who have taken all actions requested of them by USCIS, and whose applications for naturalization have not been or will not be adjudicated by USCIS within 180 days of the date of submission.
Pl. Br. at 38. Plaintiffs also seek certification of the following sub-class:
All lawful permanent residents who reside within the counties in the Southern District of New York served by the New York District Office of USCIS who have properly submitted or will properly submit application for naturalization to USCIS, who have taken all actions requested of them by USCIS, and whose applications for naturalization
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have not been or will not be adjudicated by USCIS within 120 days of the date of their initial examination. Id. A class action may not be certified unless the Court “mak[es] determinations that each of the Rule 23 requirements has been met,” In re Initial Pub. Offering Secs. Litig., 471 F.3d 24, 41 (2d Cir. 2006), clarified on unrelated points, 483 F.3d 70 (2d Cir. 2007), and “[p]laintiffs bear the burden of establishing each requirement under Rule 23 for class certification.” Jeffries v. Pension Trust Fund of Pension, Hospitalization and Benefit Plan of Electrical Industry, No. 99 Civ. 4174 (LMM), 2007 WL 2454111, at *10 (S.D.N.Y. Aug.. 20, 2007) (internal quotation marks omitted). The Court must conduct a “rigorous analysis” of whether plaintiffs have met that burden. See General Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). On the motion for summary judgment, the Court must resolve all factual disputes necessary to a determination of whether plaintiffs have met their burden of demonstrating the satisfaction of each of the Rule 23 requirements. See In re Initial Pub. Offering Secs. Litig., 471 F.3d at 41. Plaintiffs’ motion should be denied because they have failed to meet their burden here. Because of individualized variation within class and subclass that plaintiffs seek to represent, they satisfy neither the implicit requirement of Rule 23(a) that their class be administrative identifiable, see supra, nor the express Rule 23(a) requirements that the plaintiffs be “typical” and “adequate representatives” of the class they seek to represent, see Fed. R. Civ. P. 23(a). Further, because of both this variation and also the necessarily individualized nature of plaintiffs’ claims, plaintiffs cannot satisfy the requirement of Rule 23(b) that “final injunctive relief or corresponding declaratory relief [be] appropriate respecting the class as a whole ,” see Fed. R. Civ. P. 23(b)(2).
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A. The Proposed Class and Proposed Post-Interview Subclass Are Not Sufficiently Definite to Allow for Identification of Class Members
Plaintiffs’ motion for class certification should be denied because it is not administratively feasible for the Court or the parties to determine who the members of the proposed class and subclass are. Implicit in Rule 23 is the requirement that plaintiffs are purporting to represent “an identifiable class,” In re MTBE Prods. Liab. Litig., 209 F.R.D. 323, 336 (S.D.N.Y. 2002), that is “sufficiently definite” to allow identification of class members, Daniels v. City of New York, 198 F.R.D. 409, 414 (S.D.N.Y. 2001). See Bakalar v. Vavra, 237 F.R.D. 59, 64 (S.D.N.Y. 2006) (“Whether a proposed class is ascertainable is fundamental to certification.”). Although it is not required that plaintiffs be able to identify all class members at the time of the class certification motion, there must be reason to think that the class will become identifiable during the course of the litigation. Bakalar, 237 F.R.D. at 64. Rule 23 is not satisfied unless the class definition is sufficiently defined such that “it is administratively feasible for a court to determine whether a particular individual is a member.” Daniels, 198 F.R.D. at 414 (internal quotation marks omitted); accord also Bakalar, 237 F.R.D. at 64; Rios v. Marshall, 100 F.R.D. 395, 403 (S.D.N.Y, 1983); 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1760. “The court must be able to make this determination without having to answer numerous fact-intensive questions.” Daniels, 198 F.R.D. at 414 (internal quotation marks omitted).
Apparently recognizing that class members whose conduct has caused their applications to be delayed would be unable to show that USCIS or FBI had “unreasonable delayed” or “unlawfully withheld” decision, see Reddy v. CFTC, 191 F.3d at 121, and that the need to
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determine whether each class member was the cause of his or her own delay makes the matter unsuitable for class-wide injunctive or declaratory relief – plaintiffs have limited their class and subclass to individuals who “properly submit” their naturalization applications and “who have taken all actions requested of them by USCIS.” Pl. Br. at 38. This attempt to cure the problem of individualized decision-making presented by plaintiffs’ claims, however, simply moves the inherently individualized inquiry to the process of determining which of the thousands of individuals with applications pending more than six months “properly” submitted their applications and “have taken all actions requested of them by USCIS.” Id.
Plaintiffs suggest no process by which this determination could be made, but simply state generally that they would rely on (undefined) “internal records” of defendants “from which the exact size and identify of the class can be determined.” Pl. Br. at 40. However, although certain factors evidencing an applicant’s failure to comply with instructions could be deduced from USCIS’s databases, other factors, such as whether applicants’ applications contained errors or whether applicants failed to appear for more than one scheduled examination, would require an individualized review of the individuals’ paper files and case history and would require the parties to present evidence concerning each individuals’ efforts, and even that extensive review might be inconclusive. Because the Court would be unable to “determine who is in the class and bound by its ruling without engaging in numerous fact-intensive inquiries,” Bakalar, 237 F.R.D. at 64, class certification would be improper.
B. Plaintiffs Cannot Demonstrate Typicality Plaintiffs cannot satisfy the requirement that their “claims or defenses [be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). All of the named plaintiffs except
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plaintiff Milanes – including Sanchez, the only plaintiff who claims to be a representative of the Proposed Post-Interview Subclass – have already had their naturalization applications adjudicated, with the result that they are no longer members of their own purported class.25 “[A] class representative must be part of the class . . . .” General Telephone Co., 457 U.S. at 156; see also In re Initial Pub. Offering Secs. Litig., Nos. 01 Civ. 3020 (SAS), et al., 2008 WL 2050781, at *3 (S.D.N.Y. May 13, 2008) (“Plaintiffs have cited no case where a court permitted a class representative that was not a member of the class.”). Because “[n]o other members of the class have come forward to take the place of the named representatives,” the Post-Interview Subclass must be denied, Robinson v. First Nat’l City Bank, 482 F. Supp. 92, 100 (S.D.N.Y. 1979), and plaintiff Milanes is the only potential class representative for the Proposed Class. Milanes, in turn, is not typical of the class because her FBI name check has already been completed, with the result that she not longer has a stake in the principal legal theory advanced by the class, that the FBI name check is causing allegedly inappropriately long processing times.
In any event, neither plaintiff Milanes nor any of the other class members can satisfy the typicality requirement, because the claims of plaintiffs and the class are “highly individualized and differ[] from case to case.” Lewis Tree Service, Inc. v. Lucent Technologies Inc., 211 F.R.D. 228, 234 (S.D.N.Y. 2002); see also Balbuena v. Mattingly, Nos. 05 Civ. 2986(TPG) & 07 Civ. 3308 (TPG), 2008 WL 759348, at *2 (S.D.N.Y. Mar. 21, 2008) (finding a lack of typicality where “the particular facts of each case are highly relevant to determining whether any . . . rights were violated”). Even the assertion of“a common legal theory does not establish typicality when
25 Additionally, the individual claims of the named plaintiffs other than Milanes should be dismissed as moot, as they have already obtained an adjudication of their applications.
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proof of a violation requires individualized inquiry.” Elizabeth M. v. Montenez, 458 F.3d 779, 787 (8th Cir. 2006); see generally Central States Southeast & Southwest Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 245 (2d Cir. 2007) (noting that typicality requires that “each class member’s claim arises from the same course of events” (internal quotation marks omitted)). Here again, as described with regard to the class definition, each class member’s claim of injury inherently requires consideration of individualized issues relating to whether, under the circumstances, the agency’s actions with respect to a particular individual, who may or may not have contributed to his or her own processing times, warrants the exercise of injunctive relief as to that individual. For example, as discussed above, plaintiff Castro initially failed her English test, requiring the rescheduling of a re-examination. Further, as noted above, it appears that mail sent by USCIS to Milanes was returned as undeliverable. Although the Government does not know the reason for the postal service’s inability to deliver this mail, it is possible that this was the fault of Milanes or someone at her residence. Because such issues would need to be explored as to each class member to determine his or her entitlement to relief, class certification is inappropriate.
C. With Regard to the Proposed Post-Interview Class, Plaintiffs Cannot Demonstrate Adequacy
In addition to their inability to satisfy the “typicality” requirement of Rule 23, plaintiffs also cannot satisfy the rule’s “adequacy” requirement, see Fed. R. Civ. P. 23(a)(4), because of a “conflict of interest between the named plaintiffs and other members of the plaintiff class.” Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir. 1997). As noted above, the only purported class representative of the subclass is plaintiff Sanchez, who is no longer a member of the class. Even if a member of the subclass were to come forward to replace Sanchez, however, he or she
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could not possibly be an adequate representative because of an inherent conflict of interest with the other members of the subclass.
As described above, 8 U.S.C. § 1447(b) is the only provision providing jurisdiction for individuals who have already had their naturalization examination. Under section 1447(b), applicants who have waited 120 days following their examination without receiving a determination by USCIS may seek relief in court, and the “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). The district court’s jurisdiction to “determine the matter” includes the discretion to render a prompt, post-discovery ruling on the merits of the individual’s application, as well as the authority to render a more limited ruling remanding to the agency with instructions. Id. Because the Court could not realistically render naturalization decisions on the merits as to each individual in plaintiffs’ Proposed Post-Interview Subclass, however, plaintiffs are only seeking from the Court the more limited relief of an order instructing the agency to act within a given period of time. Although this approach might be plaintiffs’ best solution as to how to make a class action manageable, it precludes those individual subclass members who would otherwise chose to bring their § 1447(b) action in the hopes of having the Court decide their individualized applications on the merits from doing so. In short, plaintiffs are not adequate class members because of the conflict between their willingness to limit the subclass’s section 1447(b) relief to an order instructing prompt decisionmaking, and the right of such subclass members to seek an immediate ruling on the merits of their applications from the district court.
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Although one court has held to the contrary, Roshandel v. Chertoff, No. C07-1739MJP, 2008 WL 1929894, at *7 (W.D. Wash. Apr. 25, 2008), this is not a scenario where the Court can remove this conflict of interests through the creation of an opt-out regime. First, plaintiffs’ proposed subclass includes any individual, now or in the future, who may become eligible for section 1447(b) relief. Future class members have no basis to exercise any opt-out rights that are currently available to them. Second, because of the expedited posture of the case, it would be impossible for plaintiffs to provide adequate notice even to all current section 1447(b) subclass members, let alone give them an opportunity to remove themselves from the case. In any event, because plaintiffs have not even proposed a plain for notice and opt-outs, they cannot meet their burden of demonstrating adequacy.
D. Plaintiffs Cannot Satisfy the Rule 23(b)(2) Requirement that Injunctive or Declaratory Relief Be Appropriate as to the Class as a Whole
Not only are plaintiffs unable to meet the requirements of Rule 23(a), but also they are unable to satisfy the requirement of Rule 23(b)(2), pursuant to which they purport to bring this class action, that this be an action in which “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
As an initial matter, the Supreme Court’s decision in Heckler v. Day, 467 U.S. 104 (1984), discussed above, precludes a finding that class-wide injunctive or declaratory relief would be appropriate. The Supreme Court held in Heckler that the courts could not impose class-wide deadlines for agency adjudications where, as here, Congress had not imposed such deadlines and, to the contrary, had demonstrated its intent to the contrary to chose other methods of addressing agency backlogs. See id. at 116-19. In a footnote, the Heckler Court emphasized
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that its ruling related only to class-wide relief, and that in appropriate cases a court could issue individualized relief. See id. at 118 n.33.
Even aside from the holding in Heckler, plaintiffs cannot satisfy the Rule 23(b)(2) requirement because “certification under Rule 23(b)(2) is improper where an element of liability must be proven on an individualized basis,” Freeland v. AT & T Corp., 238 F.R.D. 130, 157 (S.D.N.Y. 2006), with the result that plaintiffs cannot show that “class treatment would be efficient and manageable,” id.; see Velez v. Novartis Pharmaceuticals Corp., 244 F.R.D. 243, 270 (S.D.N.Y. 2007) (noting requirement that “class treatment . . . be efficient and manageable”). As described above, whether processing times in excess of the 180 days are “unreasonable,” as plaintiffs claim, depends in part on individualized questions of fact, regarding “the extent to which the [individual challenging alleged delay] participated in delaying the proceeding.” Reddy, 191 F.3d at 121 (2d Cir. 1999). These individualized factors include not only the things that plaintiffs have attempted (unsuccessfully, as described above) to screen out through their class definition limiting the class to individuals who have properly submitted their applications and have taken all actions requested of them by USCIS, see supra Part III.A, but also other factors that plaintiffs have not purported to screen out, such as whether class members have significant criminal histories or other factors that require more than the ordinary time for agency consideration of whether to grant or deny the application. Because reasonableness of the processing times for a given applicant cannot be decided without individualized inquiry, the requirements of Rule 23(b)(2) are not satisfied. See Maldonado v. Ochsner Clinic Foundation, 493 F.3d 521, 524 (5th Cir. 2007) (holding that Rule 23(b)(2) is not satisfied where plaintiffs’ claims require an inquiry into whether charges were “reasonable,” which is “necessarily an
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individual inquiry that will depend [among other things] on the specific circumstances of each class member”).
E. Members of the Kaplan Class Should be Excluded from Any Class in this Case Further, to the extent that, notwithstanding the above, the Court deems it appropriate to certify a class in this case, the class should be defined to exclude any individual who released his or her claims as a class-member participating in the settlement of Kaplan v. Chertoff, No. 06-5304 (E.D.Pa.). In that case, the Government reached a settlement that involved certification of a nationwide class of individuals for whom naturalization processing times would lead to a denial of Social Security SSI benefits. These individuals claimed, among other things, that the Government “fail[ed] to process . . . naturalization applications in a timely and expeditious manner,” First Amended Complaint for Declaratory, Injunctive, and Mandamus Relief ¶ 5, Kaplan v. Chertoff, No. 06-5304 (E.D. Pa. filed Jan. 31, 2007); that the Kaplan plaintiffs' "naturalization applications are most commonly delayed because of background and ‘name check' investigations,” id. ¶ 7, and that the application processing times amounted to action "unreasonably delayed or withheld" pursuant to the APA and a violation of Due Process, id. ¶ 8. The Kaplan plaintiffs also claimed that the Government violated the notice and rulemaking requirements of the Administrative Procedure Act. See id. ¶ 51. By Order dated March 5, 2008, the Kaplan Court certified for settlement purposes a class composed of the following: all non-United States citizens who are receiving or have received Supplemental Security Income ("SSI") and are or will be subject to termination or suspension of SSI pursuant to 8 U.S.C. § 1612(a)(2)(A), prior to a decision on their current or future Application for Naturalization, Form N-400, and oath ceremony to become a United States citizen.
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Case 1:08-cv-02354-LMM -KNF Document 39 Filed 06/19/08 Page 99 of 100 Stipulation of Settlement and Release, at ¶ 2 (CIS006249). Pursuant to this settlement, all class members released all claims “that were asserted or could have been asserted by Class Members or anyone acting on behalf of or in place of a Class Member, based upon the facts alleged or that could have been alleged in the Amended Complaint relating to the subject of this action, including but not limited to the Due Process, Equal Protection, and APA claims related to the subject matter of the Kaplan case,” except for “individual” (i.e., non-class) actions brought pursuant to 8 U.S.C. § 1447(b) and certain actions under the Social Security laws. Id. ¶ 10. (CIS006251) (definition of released claims); see ¶ 12 (CIS006251) (release). Because any members of the Proposed Class or Proposed Post-Interview Subclass have released their claims in exchange for the benefits they are eligible for pursuant to the Kaplan settlement, the class should be defined to exclude those class members.
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CONCLUSION

For the foregoing reasons, the Government respectfully requests that the Court grant its

motion to dismiss in part and remand in part or, in the alternative, for summary judgment, and

deny plaintiffs’ motion for preliminary injunction and class certification.

Dated:

June 19, 2008 New York, New York

MICHAEL J. GARCIA United States Attorney for the Southern District of New York

By: /s/ Robert William Yalen TOMOKO ONOZAWA KIRTI VAIDYA REDDY ROBERT WILLIAM YALEN Assistant United States Attorneys 86 Chambers Street New York, New York 10007 Tel.: (212) 637-2751 (Reddy) Tel.: (212) 637-2721 (Onozawa) Tel.: (212) 637-2722 (Yalen) Fax: (212) 637-2687 E-mail: kirti.reddy@usdoj.gov E-mail: robert.yalen@usdoj.gov E-mail: tomoko.onozawa@usdoj.gov

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------X VIRGINIA MILANES, OMAR MIGUEL FARFAN, MANUEL ALBERTO MARTINEZ, ANDRES GIOVANNY SANCHEZ, NANCY CASTRO, and MARGOTH PEREZ DE CHALAMPA, on behalf of themselves and all other similarly situated individuals,
Plaintiffs,
-against-

08 CV 2354 (ECF CASE)

MICHAEL CHERTOFF, in his official capacity as Secretary of the Department of Homeland Security, EMILIO GONZALEZ, in his official capacity as Director of the United States Citizenship and Immigration Services, ANDREA QUARANTILLO, in her official capacity as District Director of the New York City District of the United States Citizenship and Immigration Services, MICHAEL B. MUKASEY, in his official capacity as Attorney General of the United States, and ROBERT S. MUELLER, III, in his official capacity as Director of the Federal Bureau of Investigation,

Defendants. ------------------------------------------------------------------X

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR RECONSIDERATION OF THE COURT’S
AUGUST 7, 2008 JUDGMENT ON COUNTS I AND II OF THE COMPLAINT

Plaintiffs respectfully move, pursuant to Fed. R. Civ. P. 59(e) and Local

Civil Rule 6.3, for reconsideration of the Court’s August 7, 2008 judgment (the “August

7 Order”) dismissing Counts I and II of their Complaint and denying Plaintiffs’ motion

for a preliminary injunction based on those Counts.

Preliminary Statement

In its August 7, 2008 decision, with respect to Count II of the Complaint

(seeking to compel the United States Citizenship and Immigration Service (“USCIS”) to

Case 1:08-cv-02354-LMM -KNF Document 57 Filed 08/19/08 Page 2 of 13
act upon those class members’ naturalization applications that have been pending for more than 120 days after their interviews), the Court found that for “cases in which the 120 days has expired but the [Federal Bureau of Investigation (“FBI”)] name check has not been completed, it follows the USCIS regulation C.F.R. section 335.3(a) and the 1998 Appropriations Act are in conflict.”1 August 7 Order at 17:15-18:11. Based on this “conflict,” the Court dismissed Plaintiffs’ claim, holding that “plaintiffs have not alleged a cognizable claim to adjudication of the subclass.” Id.
The Court erred in its dismissal of Count II because, according to undisputed evidence in the record and submitted to the Court by Defendants, the FBI name check of most members of the sub-class – all of whom have been waiting more than 120 days after the date of their interviews for their applications to be adjudicated, and in a lot of cases, much longer – has been completed.
Indeed, in connection with their reply brief submitted to the Court on July 19, 2008,2 Defendants submitted a declaration from a USCIS sub-contractor, David Keevis, that stated that, contrary to the Court’s finding, as of July 14, 2008, 1,853 of the 1,889 members of the preliminary injunction sub-class, all of whom had been waiting for adjudication of their applications for more than 120 days after their interviews, had already had their FBI name checks completed. See Declaration of David J. Keevis, July 1 The Court found that Congress has made clear that the term “full criminal background check” includes both an FBI name check and a fingerprint check. See August 7 Order at 16:6-7. Plaintiffs disagree with this interpretation of the 1998 Appropriations Act and its legislative history but do not seek reconsideration of this issue. 2 Because Defendants submitted this information – that directly contradicts the Defendants’ prior representations concerning the source of delay in this case – to the Court after submission of Plaintiffs’ reply brief and after oral argument, Plaintiffs have never previously had an opportunity to address the implications of the data contained therein.
2

Case 1:08-cv-02354-LMM -KNF Document 57 Filed 08/19/08 Page 3 of 13
17, 2008, (Docket No. 51, Milanes v. Chertoff, No. 08 Civ. 2354 (LMM)) (“Keevis Supp. Decl.”) at Ex. A. Mr. Keevis’s declaration demonstrates that for the vast majority of naturalization applicants who were members of the proposed sub-class as of April 3, 2008 – all of whom have been waiting six months or longer for USCIS to adjudicate their naturalization applications – the name check is not the source of the delay. Rather, the name checks of approximately 98% of the preliminary injunction sub-class have been completed. See id. Thus, as to these individuals, the Court’s dismissal is erroneous because there is no “conflict” between the 1998 Appropriations Act as construed by the Court and 8 C.F.R. § 335.3, the agency regulation requiring adjudication of naturalization applications within 120 days of the naturalization interview.
With respect to Count I of the Complaint (seeking to compel USCIS to act upon those class members’ naturalization applications that have been pending for more than 180 days), the Court stated that “the only agency action that can be compelled under the APA is action ‘legally required.’” August 7 Order at 15:10-23, citing Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004). The Court then found that Plaintiffs could not state an unreasonable delay claim under 5 U.S.C. § 706(1) because “[w]hile USCIS is required by law to adjudicate naturalization applications, it is not under 5 U.S.C. sections 555(b) and/or 706(1), or by reason of the sense of Congress expressed in 8 U.S.C. section 1571(b), required to do so within some specific period of time” (August 7 Order at 15:23-16:07), and that in any event, the delay was not unreasonable “in light of Congress’ mandate in the 1998 Appropriations Act that USCIS not adjudicate a naturalization application without completion of a full criminal
3

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background check, which Congress has made clear includes both a name and a fingerprint check.” Id. at 16:3-7.
The Court erred in its dismissal of Count I because (1) the Court’s novel reading of Norton requiring that there be a “specific period of time” to trigger the APA unreasonable delay protections is inconsistent with a plain reading of Norton and subsequent cases addressing this issue and (2) the Court overlooked undisputed evidence in the record demonstrating that the delay in adjudicating naturalization applications for approximately 90% of the preliminary injunction class is not caused by delays in obtaining FBI name check results. See Keevis Supp. Decl. at Ex. A. For those class members whose name checks have been completed, the delay in adjudicating their applications for more than six (6) months is unreasonable. See Declaration of Prakash Khatri, dated July 8, 2008 (“Khatri Decl.”) ¶¶ 3-4 (USCIS delays arose “due to several administrative actions, or non-actions, by USCIS” including “the misallocation of resources and creation of unreasonable administrative burdens; and the failure of USCIS to adequately anticipate and plan for the surge of applicants and other benefit requests in 2007. What is tragic, if not inexcusable, about these problems and the tremendous burdens they have imposed on applicants and the agency itself is that they were entirely avoidable.”). Indeed, Defendants have offered no persuasive justification for USCIS’s delay in adjudicating the applications of naturalization applicants whose name checks have been completed.
Standard of Review The court may grant a motion for reconsideration if the moving party demonstrates (1) the need to correct a clear error of law or to prevent manifest injustice;
4

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(2) an intervening change in controlling law; and/or (3) the availability of evidence not previously available. See, e.g., Doe v. New York City Dep’t of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983). The moving party may satisfy this standard by identifying “controlling decisions or data that the court overlooked . . . that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Espinosa v. Delgado Travel Agency, Inc., No. 05 Civ. 6917 (SAS), 2007 WL 1222858, at *2 (S.D.N.Y. Apr. 24, 2007) (motion for reconsideration granted because “Court overlooked both controlling law and controlling facts, thereby requiring reconsideration”); In re AllianceBernstein Mut. Fund Excessive Fee Litig., No. 04 Civ. 4885 (SWK), 2006 WL 74439, at *4 (S.D.N.Y. Jan. 11, 2006) (motion for reconsideration granted because moving party pointed “to relevant case law, legislative history, and public securities filings that undermine this Court’s previous calculation”); U.S. Fid. & Guar. Co. v. Frosty Bites, Inc., 350 F. Supp. 2d 508, 512 (S.D.N.Y. 2004) (motion to reconsider granted because prior opinion “was based on clear error which, if uncorrected, could result in manifest injustice”).
As set forth herein, reconsideration of the Court’s dismissal of Plaintiffs’ claims under Counts I and II and the Court’s denial of Plaintiffs’ motion for a preliminary injunction on those Counts is necessary with respect to those class members whose name checks have already been completed in order to correct a clear error of law and to prevent manifest injustice. Reconsideration of the Court’s August 7 Order is also necessary because the Court committed clear error in interpreting Norton in a manner inconsistent with the plain language of that decision and contrary to every court to address the issue since Norton was decided. Otherwise, thousands of eligible naturalization applicants will
5

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be disenfranchised as their applications will not be adjudicated in time to allow them to register to vote in this year’s presidential election.
Argument I. The Court Should Reconsider Its Holding On Count II Because the 1998
Appropriations Act has no Bearing on the Question of Whether USCIS is Obligated to Adjudicate Applications Within 120 Days of Interview for Class Members for Whom the FBI Name Checks Have Been Completed
The Court denied Plaintiffs’ motion for preliminary injunction and granted Defendants’ motion to dismiss Count II on the ground that the 1998 Appropriations Act purportedly requires completion of the FBI name check prior to adjudication of a naturalization application. See August 7 Order at 10:25-11:11. This name check requirement, the Court found, conflicted with the requirement of 8 C.F.R. § 335.3 that defendant USCIS adjudicate the naturalization applications of post-interview applicants within 120 days of their interviews. Id.
Yet, as of July 14, 2008, only 36 of the 1,889 proposed subclass members whose naturalization applications had not yet been adjudicated had FBI name checks still pending. See Keevis Supp. Decl. at Ex. A. Even on April 3, 2008, the date Plaintiffs’ motion for preliminary injunction was filed, only 292 of the 2,219 proposed subclass members whose naturalization applications had not yet been adjudicated had FBI name checks still pending. Id.
Thus, contrary to the Court’s ruling, for the vast majority of the proposed subclass members, the Court’s interpretation of the 1998 Appropriations Act has absolutely no bearing on and does not bar their claim under section 706(1) of the APA that USCIS has unlawfully withheld adjudication of their naturalization applications. For this considerable majority of the proposed sub-class, the requirement of 8 C.F.R. § 335.3
6

Case 1:08-cv-02354-LMM -KNF Document 57 Filed 08/19/08 Page 7 of 13
that USCIS adjudicate naturalization applications within 120 days of the interview is therefore not in conflict with the 1998 Appropriations Act. Accordingly, Plaintiffs have stated a claim for relief under section 706(1) of the APA.
Indeed, for the reasons set forth in Plaintiffs’ Reply Memorandum (“Pl. Reply Mem.”) at 39, Plaintiffs have demonstrated a substantial likelihood of success on the merits of Count II. Only two facts are material to judgment on Count II for those persons whose name checks have been completed: that the proposed subclass members have been interviewed, and that 120 days have passed since their interviews. Defendants do not dispute either of these facts. See June 19, 2008 Declaration of David J. Keevis, (Docket No. 41, Milanes v. Chertoff, No. 08 Civ. 2354 (LMM)). Plaintiffs have therefore shown a substantial likelihood of success on the merits of this claim, and a preliminary injunction in favor of Plaintiffs on this count is warranted.
Plaintiffs therefore respectfully request that the Court reconsider its ruling as to Count II of Plaintiffs’ Complaint, reinstate the claims of those members of the subclass whose name checks are complete, and grant a preliminary injunction in favor of Plaintiffs on this count with respect to those members of the proposed subclass.
II. The Court Should Reconsider Its Dismissal of Count I Because the Court’s Reliance on Norton is Misplaced and Defendants Have Offered No Persuasive Justification for USCIS’s Delay for those Class Members for Whom the FBI Name Checks Have Been Completed Citing Norton, 542 U.S. at 62, the Court found that because USCIS is not
required to act “within some specific period of time,” August 7 Order at 16:1-2, Plaintiffs cannot state a claim for unreasonable delay under sections 555(b) and 706(1) of the APA. This decision is erroneous because (a) the Court’s interpretation of Norton is not
7

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supported by either the case itself or its progeny; and (b) the Court’s holding is contrary to well settled law, both within the Second Circuit and other jurisdictions, holding that USCIS’s adjudication of immigration benefits applications – even those applications for which there is no clear statutory deadline – is governed by section 555(b) of the APA (requiring government agencies to conclude matters presented to them within a reasonable time).
The Court plainly erred in relying on Norton to limit plaintiffs’ ability to compel agency action under section 706(1) solely to those actions for which a concomitant deadline or timetable for action had already been set by statute. August 7 Order at 15:19-16:13. First, this novel interpretation of Norton is not supported by the case itself. Norton addressed the type of agency action subject to APA sections 555(b) and 706(1) and held that “discrete,” “legally required” agency action can be compelled under section 706(1).3
Indeed, it is axiomatic that unreasonable delay claims under the APA can succeed without the existence of a statutory or regulatory deadline. When a plaintiff claims that an agency has failed to take action as required by a specific deadline, he states a claim that agency action has been unlawfully withheld, not unreasonably delayed. The
3 While the Norton Court stated in dicta that section 706 would authorize courts to compel an agency to comply with a statutory deadline, it in no way suggested that section 706 was limited to compelling action under those circumstances. Norton, 542 U.S. at 65; see also Alkeylani v. Dep’t of Homeland Sec., 514 F. Supp. 2d 258, 265 (D. Conn. 2007) (finding in an adjustment of status case that “[b]ecause USCIS’s obligation to adjudicate . . . applications is clearly prescribed, the failure to do so within a ‘reasonable’ period of time constitutes ‘an agency[’s] fail[ure] to take a discrete action that it is required to take”) (quoting Norton, 542 U.S. at 64) (emphasis in original); Saleem v. Keisler, 520 F. Supp. 2d 1048, 1058 (W.D. Wisc. 2007) (noting that the Norton Court “made statements in dicta that § 706 would authorize courts to compel an agency to comply with a statutory deadline, but the Court did not suggest . . . that § 706 was limited to compelling action under those circumstances”) (internal citations omitted).
8

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very purpose of the “unreasonable delay” provision is thus to govern those cases in which
no specific deadline has been set. As the Tenth Circuit explained in Forest Guardians v.
Babbitt:
[T]he distinction between agency action “unlawfully withheld” and “unreasonably delayed” turns on whether Congress imposed a date-certain deadline on agency action. See Sierra Club v. Thomas, 828 F.2d 783, 794-95 & nn.77-80 (D.C. Cir. 1987) (citing cases and drawing a distinction between an agency’s refusal to comply with an absolute time requirement for action and an agency’s more generalized unreasonable delay in acting). In our opinion, when an agency is required to act-either by organic statute or by the APA-within an expeditious, prompt, or reasonable time, § 706 leaves in the courts the discretion to decide whether agency delay is unreasonable. However, when Congress by organic statute sets a specific deadline for agency action, neither the agency nor any court has discretion. The agency must act by the deadline. If it withholds such timely action, a reviewing court must compel the action unlawfully withheld. To hold otherwise would be an affront to our tradition of legislative supremacy and constitutionally separated powers.
174 F.3d 1178, 1190 (10th Cir. 1999); see also Ren v. Mueller, No. 6:07-CV-790-ORL-
19DAB, 2008 WL 191010, at * 9 (M.D. Fla. Jan. 22, 2008) (explaining that “the concept
of an unreasonable delay exists separate and distinct from any statutorily imposed
deadline” (citing Tang v. Chertoff, 493 F. Supp. 2d 148, 155 (D. Mass. 2007))).
Moreover, not only is the Court’s decision unsupported by the authority on
which it is based, it also directly conflicts with other cases decided within the Southern
District holding that USCIS’s adjudication of immigration benefit applications –
including naturalization applications – is subject to section 555(b) of the APA. In Kim
v. Ashcroft, 340 F. Supp. 2d 384 (S.D.N.Y. 2004), a frequently cited opinion, Judge
Scheindlin held that although there is no statutory or regulatory deadline by which
USCIS must adjudicate an application, at some point, USCIS’s failure to take any action
runs afoul of section 555(b) of the APA. See id. at 393 (“Were it otherwise, the CIS
could hold adjustment applications in abeyance for decades without providing any 9

Case 1:08-cv-02354-LMM -KNF Document 57 Filed 08/19/08 Page 10 of 13
reasoned basis for doing so. Such an outcome defies logic – the CIS simply does not possess unfettered discretion to relegate aliens to a state of ‘limbo,’ leaving them to languish there indefinitely.”); see also Nigmadzhanov v. Mueller, 550 F. Supp. 2d 540, 547 (S.D.N.Y. 2008) (“[A] duty to decide [immigration benefit applications] that is unconstrained by a reasonableness requirement makes little sense.”); Am. Acad. of Religion v. Chertoff, 463 F. Supp. 2d 400, 419-23 (S.D.N.Y. 2006) (quoting Kim and holding that government failed to adjudicate plaintiff’s pending B-visa application within a reasonable period of time). Other courts to consider this issue agree. See, e.g., Ceken v. Chertoff, 536 F. Supp. 2d 211, 216 (D. Conn. 2008) (finding that “[w]hile the defendants possess the discretion to determine the outcome of plaintiff's application, they do not have the discretion over whether the outcome of the application is determined at all”); Eid v. Chertoff, No. 07-CV-201 (JBA), 2008 WL 905927, at *15 (D. Conn. Mar. 31, 2008) (finding that “[defendant’s] position that his unreviewable discretion to grant or deny applications under § 1255(a) extends to discretion to adjudicate those requests at the pace of his choosing no matter how slow is inconsistent with its obligation under the APA to conclude the matter presented it within a reasonable time”); Shaikh v. Gonzales, No. C07-0506, 2007 WL 4259410, at *2-4 (N.D. Cal. Dec. 3, 2007) (finding that while USCIS’s discretion to set the procedures by which it adjudicates applications gives it some flexibility in determining the timing of a decision, each application must ultimately be completed within a reasonable time); Aslam v. Mukasey, 531 F. Supp. 2d 736, 742 (E.D. Va. 2008) (finding that the Department of Homeland Security is subject to the catchall time requirement of the APA); Tang v. Chertoff, 493 F. Supp. 2d 148, 154-58 (D. Mass. 2007) (reasoning that Congress’ use of the word “unreasonable” in § 706 (1) to
10

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describe delay meant judicial review was appropriate to determine the legality of delay when there was no fixed deadline set out in a separate statute or regulation); Yue Yu v. Brown, 36 F. Supp. 2d 922, 931-32 (D.N.M. 1999) (finding that the APA imposes a duty upon USCIS to complete action on immigration benefit application within a reasonable time).
Furthermore, the Court erred by overlooking the fact that tens of thousands of immigrants in the proposed class have had their applications unreasonably delayed notwithstanding that their FBI name checks are complete. As of July 14, 2008, 26,748 of the 29,975 proposed class members whose naturalization applications had not yet been adjudicated already had their FBI name checks completed. See Keevis Supp. Decl. at Ex. A. Thus, the Court’s reasoning in support of its dismissal of Count I simply does not apply to approximately 90 percent of the members of the proposed class. Even on April 3, 2008, the date Plaintiffs’ motion for preliminary injunction was filed, of the 55,405 proposed class members whose naturalization applications had not yet been adjudicated, approximately 87 percent (48,082) had already had their FBI name checks completed. Id. In other words, for the vast majority of class members in this action, the FBI name check is not the cause of the delays they challenge here.
The Court found that Plaintiffs’ Complaint does not sufficiently plead unreasonableness in light of the congressional mandate that USCIS not adjudicate naturalization applications prior to completion of a full criminal background check. However, the Court failed to take into consideration the rights of those plaintiffs whose names checks have been completed. The Court did not address whether USCIS’s failure to adjudicate the naturalization applications of these class members constitutes
11

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unreasonable delay under section 555(b) of the APA, despite being presented with significant evidence that delays caused by USCIS apart from any delays caused by the FBI name check program are unreasonable. See Pl. Reply Mem. at 18; Khatri Decl. ¶ 47 (USCIS “understaffing was so substantial that thousands of applications sat for months, some as long as six months, in large room-sized containers before being opened up to begin being processed”); Declaration of William Yates, dated July 8, 2008 ¶ 17 (“Since the mid-1990s, USCIS . . . [has] demonstrated a history of repeated cycles of unwarranted and harmful delays in the adjudication of naturalization applications.”); Defendants’ Reply Memorandum at 26 (“lengthy processing times for naturalization and other immigrant benefit applications have long existed”). For all of the reasons set forth in Plaintiffs’ Opening Memorandum (“Pl. Mem.”) and Reply Memorandum, USCIS’s failure to timely adjudicate these class members’ naturalization applications violates section 555(b) of the APA. See Pl. Mem. at 28-32; Pl. Reply Mem. at 28-33.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court reconsider its ruling as to Counts I and II of Plaintiffs’ Complaint with respect to those members of the proposed class and sub-class whose name checks have been completed, reinstate the Counts as to those class members, and issue a preliminary injunction directing USCIS Defendants to adjudicate the applications of those class members in time for those found eligible to be naturalized to register to vote in the November 2008 election.
12

Case 1:08-cv-02354-LMM -KNF Document 57 Filed 08/19/08 Page 13 of 13

Dated: New York, New York August 19, 2008

Respectfully Submitted,
Weil, Gotshal & Manges LLP
By: _/s/ Richard W. Slack___________
James W. Quinn Richard W. Slack Malick Ghachem Caroline Zalka
767 Fifth Avenue New York, NY 10153 212-310-8000
Puerto Rican Legal Defense and Education Fund
Foster Maer Jose Perez Jackson Chin
99 Hudson Street, 14th Floor New York, NY 10013 212-219-3360
New York Legal Assistance Group Yisroel Schulman Jane Greengold Stevens Jason Parkin
450 West 33rd Street, 11th Fl New York, NY 10001 212-613-5000
Attorneys for Plaintiffs

13

 Case 1:08-cv-02354-LMM -KNF Document 72 Filed 09/10/08 Page 1 of 7

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-----------------------------------x

:IUSDCSDNY
,.DOCUMENT
:; ELEcrRONICALLY flL=D .

VIRGINIA MILANES, et al.,

Plaintiffs, - against -

08 Civ. 2354 (LMM) MEMORANDUM AND ORDER

MICHAEL CHERTOFF, et al.,

Defendants.

-----------------------------------x

McKENNA, D. J. ,

1.

Plaintiffs move for reconsideration of the Court's

decision of August 7, 2008 (dismissing the complaint and denying

plaintiffs' motion for a preliminary injunction) to the extent

that, in that decision, the Court dismissed Counts I and II of the

complaint and denied a preliminary injunction. l Plaintiffs seek an

order

[rJeinstating Counts I and II as to those members of the proposed class and sub-class whose FBI name checks have been completed and for issuance of a preliminary injunction directing USCIS Defendants to adjudicate the applications of those class members in time for those found eligible to be naturalized to register to vote in the November 2008 election.

(Notice of Motion, Aug. 19, 2008, at 2.)

1 The decision is set forth in the transcript of proceedings on August 7, 2008. Some corrections to the transcript have been made. (See Gov't Letter to Court, Aug. 13, 2008, Exs. A & B, so ordered by the Court.) Familiarity with the August 7, 2008 decision is assumed.

Case 1:08-cv-02354-LMM -KNF Document 72 Filed 09/10/08 Page 2 of 7

"The standard for granting

a motion [for

reconsideration] is strict, and reconsideration will generally be

denied unless the moving party can point to controlling decisions

or data that the court overlooked -- matters, in other words, that

might reasonably be expected to alter the conclusion reached by the

court.ff Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257 (2d

Cir. 1995) (citations omitted) .

2.

Count I of the complaint alleges that the "failure to

adjudicate proposed class members' applications for naturalization

within 180 days of the date of their submission or an otherwise

reasonable amount of time violates 5 U.S.C. § 555(b) and 706(1) and

8 U.S.C. § 1571(b).ff (Complaint, First Claim for Relief, ~ 133.)

The specific reasons for its dismissal are set forth in the August

7, 2008 Transcript, at 14-16.

As to Count I, plaintiffs urge that the Court "plainly

erred in relying on [Norton v. Southern Utah Wilderness Alliance,

542 U.S. 55 (2004)] to limit plaintiffs' ability to compel agency

action under section 706 (1) solely to those actions for which a

concomitant deadline or timetable for action had already been set by statute. ff (Pl. Mem. at 8 (citing Aug. 7, 2008 Transcript, at

15:19-16:13).) That is not what the Court said, however. It said

that Norton says that "the only agency action that can be compelled

under the Administrative Procedure Act is action , legally

2

Case 1:08-cv-02354-LMM -KNF Document 72 Filed 09/10/08 Page 3 of 7
required, '" (id. at 15 (citing Norton, 542 u.s. at 63)), and went
on to conclude that neither the sections of the Administrative
Procedure Act or the ~sense of Congress" expressed in 8 U.S.C. §
1571(b) require the relevant agency action within a specific period
of time and that the complaint did not sufficiently plead
unreasonableness in light of Congress' mandate that naturalization
applications not be adjudicated without completion of a full FBI
background check, including a name check. (Id. at 15-l6.)
The Court did not overlook Norton and believes it did not
misconstrue it, and, in this regard, plaintiffs' argument for
reconsideration is not persuasive.
Plaintiffs go on to argue that
the Court erred by overlooking the fact that tens of thousands of immigrants in the proposed class have had their applications unreasonably delayed notwithstanding that their FBI name checks are complete. As of July 14, 2008, 26,748 of the 29,975 proposed class members whose naturalization applications had not yet been adjudicated already had their FBI name checks completed. Thus, the Court's reasoning in support of its dismissal of Count I simply does not apply to approximately 90 percent of the members of the proposed class. Even on April 3, 2008, the date Plaintiffs' motion for preliminary injunction was filed, of the 55,405 proposed class members whose naturalization applications had not yet been adjudicated, approximately 87 percent (48,082) had already had their FBI name checks completed.
(Pl. Mem. at 11 (citing Supp. Decl. of David J. Keevis, July 17,
2008, Ex. A, submitted by the government).) Plaintiffs conclude
that, ~[iln other words, for the vast majority of class members in
3

Case 1:08-cv-02354-LMM -KNF Document 72 Filed 09/10/08 Page 4 of 7
this action, the FBI name check is not the cause of the delays they challenge here." (Id. )
This argument, which seeks relief for a redefined class (or, in relation to Count II, a subclass) that now excludes applicants for naturalization whose FBI name checks have been completed (see Notice of Motion at 2), was not previously made. The original class and subclass did not exclude such applicants for naturalization. (See Complaint, 'll'll 45, 46; Transcript, Aug. 7, 2008, at 2-3.)
A motion for reconsideration is not the place to raise a new argument. Stephens v. Shuttle Assocs., L.L.C., 547 F.Supp.2d 269, 280 (S.D.N.Y. 2008) (Local Rule 63 not to be used °to advance different theories not previously argued"); Hamilton v. Garlock, Inc., 115 F.Supp.2d 437,439 (S.D.N.Y. 2000) (party may not advance facts, issues or arguments not previously presented); and Yurman Design Inc. v. Chaindom Enterprises, Inc., No. 99 Civ. 9307, 2000 WL 217480, at *1 (S.D.N.Y. Feb. 22, 2000) (ORule 6.3 'precludes a party from advancing new facts, issues or arguments not previously presented to the court.'" (quoting Bank Leumi Trust Co. of New York v. Istim, Inc., 902 F. Supp. 46, 48 (S.D.N.Y. 1995))).
Plaintiffs suggest that they did not have an opportunity to raise the argument on the original motion because it is based on information first made available to them by the government in the Keevis Supplemental Declaration of July 17, 2008 which they
4

Case 1:08-cv-02354-LMM -KNF Document 72 Filed 09/10/08 Page 5 of 7
received only with the government's reply brief on July 19, 2008, which closed briefing. (See Pl. Mem. at 2 & n.2; but see Gov't Mem. at 6-7 & n.7.) This argument, however, misses the point, which is not precisely how many applicants' FBI name checks have been completed, but the fact that FBI name checks were being completed, and that was certainly apparent to plaintiffs in time to raise the argument now raised.
In the complaint (dated March 6, 2008), it is alleged that the naturalization applications of none of the six named plaintiffs had been adjudicated (Complaint, 'II'll 2, 15-20.) In a Declaration dated June 19, 2008 (almost a month prior to the Declaration of Mr. Keevis relied on by plaintiffs), Mr. Keevis set forth the facts that the naturalization applications of five of the named plaintiffs had been adjudicated in April, Mayor June of 2008 (indicating as to one, Virginia Milanes, that mail sent to her record address had been returned as undeliverable) (Keevis Decl., June 19, 2008, 'Il'Il 2-8), as well as the facts that the naturalization applications of other members of the class (and the subclass for whom Count II seeks relief) were being adjudicated. (Id. 'Il'Il 9-13.) Since naturalization applications will not be adjudicated without the FBI name check first being completed, it
5

Case 1:08-cv-02354-LMM -KNF Document 72 Filed 09/10/08 Page 6 of 7
follows that plaintiffs were aware of the continuing completion of FBI name checks throughout the pendency of this action.'
3. Count II of the complaint (Complaint, Second Claim for Relief, 'll 134) alleges that the "failure to adjudicate proposed sub-class members' applications for naturalization within 120 days of the date of their initial examination violates 8 U.S.C. § 1447(b), 8 C.F.R. § 335.3 and 5 U.S.C. §§ 555(b) and 706(1)." Id. The specific reasons for its dismissal are set forth in the August 7, 2008 Transcript, at 16-18. As to Count II, the Court pointed out that, while it did not find that there was any statutory mandate for adjudication of naturalization applications within 120 days, there was an administrative one in C.F.R. § 335.3(a), but that that nonstatutory provision could not operate to permit adjudication absent a full criminal background check, including a full FBI name check which is mandated by statute. Id. at 17-18. While the Court's decision as to Count II raises an issue different than that raised as to Count I, nevertheless, plaintiffs' arguments as to Count II, just as in the case of those relating to Count I, are made on behalf of a different class than those for
~ This, of course, is a natural consequence of the construction of plaintiffs' proposed classes as composed of persons "who have submitted
or will submit" applications that "have not been or will not be adjudicated" within the alleged Count I and Count II periods. (Complaint, 'll'll 45, 46.)
6

Case 1:08-cv-02354-LMM -KNF Document 72 Filed 09/10/08 Page 7 of 7

whom plaintiffs sought relief originally, as explained above; just

as in the case of Count I, a motion for reconsideration is not an

appropriate vehicle for raising such new arguments. See Stephens,

Hamilton and Yurman Design, cited above.

For the reasons set forth above, the Court denies the motion for reconsideration insofar as it seeks reinstatement of

Count II.

4.

Reinstatements of Counts I and II having been denied,

there is no adequate ground for reconsideration of the denial of a

preliminary injunction.

*

*

*

Motion for reconsideration denied.

Dated: September 10, 2008

SO ORDERED.

Lawrence M. McKenna U.S.D.J.

7

 Case 1:08-cv-02354-LMM -KNF Document 77 Filed 01/29/10 Page 1 of 5
MANDATE

0R-4749-cv
Mllanes v. :-Iapolitano

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

USDCSJ)NY DOCUMENT
"N. ELECTRONICALLY FILED
DDAOTECF#IL:E_D: ". J,'e •

SUMMARY ORDER
RULINGSBYSUMMARYORDERDONOTHAVEPRECEDENTIALEFFECT, CITATION TOSUMl\1ARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY TIDS COURT'S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH 1"ARAGRAPH IN WIDCH A CITATION APPEARS, AT LEAST ONE CITATIONMUSTEITHERBETOTHE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)." A PARTY CITING A Su"MMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGEmER WIm TIlE PAl'ER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSmLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CAl.USCOURTS.GOVI). [FNO COpy [S SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE,THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 2nd day of December, two thousand nine.

PRESENT:

REENA RAGGI, PETER W. HALL,
Circuit Judges, BRIAN M. COGAN,
District Judge.-

------------------------_._----_._----
VIRGINIA MILANES, OMAR MIGUEL FARFAN, MANUEL ALBERTO MARTINEZ, ANDRES GIOVANNY SANCHEZ, NANCY CASTRO, MARGOTH PEREZ DE CHALAMPA, on behalf of themselves and all others similarly situated,
Plain tiffi -Appellants,"
v.

No.08-4749-cv

JANET NAPOLITANO, in her official capacity as

,. District Judge Brian M. Cogan of the United States District Court for the Eastern
District of New York, sitting by designation.
•• We direct the Clerk of Court to amend the official caption as noted.

Case 1:08-cv-02354-LMM -KNF Document 77 Filed 01/29/10 Page 2 of 5

Secretary of the Department of Homeland Security, JONATHAN SCHARFEN, in his official capacity as the Acting Director of the United States Citizenship and Innnigration Services, ANDREA QUARANTILLO, in her official capacity as District Director of the New York City District of the United States Citizenship and Immigration Services, ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, ROBERT S. MUELLER, III, in his official capacity as Director of the Federal Bureau of Investigation,
Defendants-Appellees...•

APPEARING FOR APPELLANTS:

JANE GREENGOLD STEVENS, New York Legal Assistance Group (James W. Quinn,
Richard W. Slack, Malick W. Ghachem, Caroline Zalka, Morgan F. Frontczak, Wei! Gotshal & Manges LLP, Yisroel Schulman, Jason Parkin, New York Legal Assistance Group, Foster Maer, Jackson Chin, Alan Levine, LarinoJustice, on the brief), New York, New York.

APPEARING FOR APPELLEES:

ROBERT WILLIAM YALEN, Assistant United
States Attorney (Tomoko Onozawa, Kirti Vaidya
Reddy, Elizabeth Wolstein, Assistant United States Attorneys, on the briej),for Lev L. Dassin, Acting United States Attorney for the Southern District of New York, New York, New York.

Appeal from the United States District Court for the Southern District of New York

(Lawrence M. McKenna, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgments entered on August 7, 2008, and September II, 2008, are

••• Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Janet Napolitano, Jonathan Scharfen, and Eric H. Holder, Jr., are automatically substituted for their predecessors as defendants in this case.
2

Case 1:08-cv-02354-LMM -KNF Document 77 Filed 01/29/10 Page 3 of 5
VACATED in part, and the case is REMANDED to the district court. When they filed this putative class action, plaintiffs were six lawful permanent
residents awaiting decisions on their naturalization applications. They sued (1) to expedite the processing oftheir naturalization applications and those ofputative class members, and (2) to invalidate the policy of conducting Federal Bureau of Investigation name checks on each naturalization application. Theynow appeal the dismissal oftheir complaint, the denial of class certification, and the denial of their motion for reconsideration. We assume the parties' familiarity with the facts and the record of prior proceedings, which we reference
only as necessary to explain our decision, Preliminarily, we must consider whether we have jurisdiction over the appeal.
Because the six named plaintiffs have been naturalized, the government urges us to dismiss the appeal as moot. See. e.g., Lillbask ex reI. Mauclaire v. State of Conn. DQl't ofEduc.• 397 F.3d 77, 84 (2d Cir. 2005) ("When the issues in dispute between the parties are no longer live, a case becomes moot, and the court - whether trial, appellate, or Supreme - loses jurisdiction over the suit, which therefore must be dismissed." (internal citations and quotation marks omitted)). When a class action has been certified, mooiness ofthe dispute between the named plaintiffand the defendant does not render other class members' claims nonjusticiable. See. e.g., Sosna v. Iowa. 419 U.S. 393, 401 (1975). Here, however, no class has yet been certified. In such cases, the Supreme Court has allowed named plaintiffs whose
3

Case 1:08-cv-02354-LMM -KNF Document 77 Filed 01/29/10 Page 4 of 5
individual claims have become moot to appeal only the denial of class certification. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 404 (1980).
Plaintiffs' opening brief mentions the class certification issue in a lone footnote. While we generally "do not consider an argument mentioned only -in a footnote to be adequately raised or preserved for appellate review," United States v. Restrepo, 986 F.2d 1462,1463 (2dCir. 1993), weneverthelessretain "ample discretion to excuse such a failure," Salahuddin v. Goor!!, 467 F.3d263, 276n.6 (2d Cir. 2006). We do so here because (a) there was no surprise to the government, (b) the district court rested its class certification decision on the merits ofplaintiffs' claims, and (c) plaintiffs have now extensively argued the issue.
See ill; Mitchel] v. Fishbein, 377 F.3d 157, 164-65 (2d CiT. 2004).
Because the district court did not address the requirements for class certification separately from the merits ofplaintiffs' claims and ourjurisdiction depends on resolution of that issue, we vacate the denial of class certification and remand for the district court to consider class certification in the first instance. In considering, on remand, whether the prerequisites for a class action are satisfied, ~ Fed. R. Civ. P. 23(a), the district court will need to decide who, if anyone, can "fairly and adequately" represent the class. including representing the class on appeal from dismissal, iQ..; see also United States Parole Comm'n v. Geraghty, 44S U.S. at 405-07. It may also consider whether to construct sub-classes based. in part, on the discrete agency action that particular class members ask the court to compel.
4

Case 1:08-cv-02354-LMM -K•NF Document 77 Filed 01/29/10 Page 5 of 5
Sec Fed. R. Civ. P. 23(c)(5); sec also 5 U.S.C. § 706(1); Norton y. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004).
Accordingly, we VACATE the judgments in part, and REMAND the case to the district court for further proceedings consistent with this order,
FOR THE COURT: CATHERINE O'HAGAN OLFE, Clerk of Court
5
A TRUE COpy Cath«ine O'Hagan Wolfe, Clerk

 UNITED STATES DISTRICT COURT SOUTHERN DlSTR'lCT OF NEW YORK -------.----------------------------------------------------------- x VIRGINIA MILANES, OMAR MIGUEL FARFAN, MANUEL ALBERTO MARTINEZ, ANDRES GIOVANNY SANCHEZ, NANCY CASTRO, and MARGOTH PEREZ DE CHALAMPA, on behalf of themselves and all other similarly situated individuals,

r ' lee',VY4;.F::""
ORIGINAL

Plaintiffs,

JANET NAPOUTANO, I in her official capacity as
Secretary of the Department of Homeland Security.
ALEJANDRO MAYORKAS, in his official capacity as Director of the United States Citizenship and Immigration Services, ANDREA QUARANTILLO, in her official capacity as District Director of the New York City District of the United States Citizenship and Immigration Services, ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, and ROBERT S. MUELLER, III, in his official capacity as Director of the Federal Bureau of Investigation,

ECFCase
08 Civ. 2354 (LMM)
STIPULATION AND ORDER OF DISMISSAL

Defendants. ------------------------------------------------------------------- x

Plaintiffs Virginia Milanes, Omar Miguel Farfan, Manuel Alberto Martinez, Andres

Giovanny Sanchez, Nancy Castro, and Margoth Perez De Chalampa (collectively, "Plaintiffs"),

and Defendants Janet Napolitano, in her official capacity as Secretary of the Department of

Homeland Security; Alejandro Mayorkas. in his official capacity as Director of the United States

Citizenship and lmmigration Services; Andrea Quarantillo, in her official capacity as District

.. Director of the New York City District of USCIS; Eric H. Holder, Jr., in his official capacity as •
Attorney General of the United States; and Robert S. Mueller, III, in his official capacity as

Director of the Federal Bureau of Investigation (collectively. "Defendants"), by and through their

I Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Janet Napolitano,
Alejandro Mayorkas and Eric H. Holder, Jr., are automatically substituted for their predecessors as defendants in this case.

counsel, hereby enter i,nto this Stipulation and Order of Dismissal ("Stipulation of Dismissal"),
as of the date it is executed by all the parties hereto and effective upon order of the Court. WHEREAS, on March 6, 2008, Plaintiffs, on behalf of themselves and all other similarly
situated individuals, commenced the above-captioned civil action (the "Action") against Defendants seeking class certification, and declaratory and injunctive relief.
WHEREAS, on September 11,2008, this Court entered judgment dismissing this action. WHEREAS , on September 24, 2008, Plaintiffs filed a notice of appeal from the judgment to the United States Court of Appeals for the Second Circuit. WHEREAS, by Mandate issued on January 26, 2010, the United States Court of Appeals for the Second Circuit vacated the judgment in part, and remanded the case to this Court to consider the merits of Plaintiffs' class certification motion. WHEREAS, t!1:e parties agree to settlement of this Action in order (i) to avoid the substantial expense, inconvenience, and distraction of protracted litigation; (ii) to obtain dismissal of this Action, with prejudice, with the parties waiving any right to further appeal, except if the case is reinstated pursuant to the tenns of the Agreement of Settlement and Release (the "Settlement Agreement") WHEREAS, the parties, by their counsel, have executed a Settlement Agreement, annexed hereto as Exhibit A. IT IS HEREBY ORDERED, pursuant to this Stipulation of Dismissal, that:
1. The above-referenced action be, and hereby is, held in abeyance until July 29, 2011.
2. On July 29, 2011 , in the event that plaintiffs have not sought reinstatement of this action pursuant to paragraphs 22 through 27 of the Settlement Agreement, the
Page 2 of3

above-captioned action shall be dismissed with prejudice, and plaintiffs waive any rights they may have to further appeal in this above-captioned Action.

Dated: New York, New York September 17, 2010
For Plaintiffs:
LATlNOJUSTICE PRLDEF

For D. efen.dants:

ter aer, 'Esq.

'-----

Jose-Luis Perez, Esq.

Jackson Chin, Esq.

99 Hudson Street, 14th Floor

New York, NY 10013

Ph: (212) 219-3360

NEW YORK LEGAL A SSISTANCE GROUP
Jane Greengold Stevens, Esq. 450 West 33rd Street, II th Floor New York, NY 10001 Ph: (212) 613-5000

WElL GOTSHAL AND MANGES LLP
James W. Quinn, Esq. Richard W. Slack, Esq. Caroline Hickey Zalka, Esq. Daniel B. Hodes, Esq. 767 Fifth Avenue New York, NY 10153 Ph: (212) 310-8000

SO ORDERED:
DATED: q/~ Iro

HONORABLE LAWRENCE M. MCKENNA ~

r

UNITED STATES DISTRlCT JUDGE

Page 3 of3

 Case: 1:08-cv-02354-LMM -KNF As of: 03/31/2012 11:58 AM EDT 1 of 17
STAYED, CLOSED, CASREF, ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:08−cv−02354−LMM −KNF

Milanes et al v. Chertoff et al Assigned to: Judge Lawrence M. McKenna Referred to: Magistrate Judge Kevin Nathaniel Fox Cause: 05:0701 Maritime Subsidy Board
Plaintiff

Date Filed: 03/06/2008 Date Terminated: 07/29/2011 Jury Demand: Plaintiff Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Virginia Milanes on behalf of themselves and all others similarly situated individuals

represented by Alan H. Levine Law Offices of Alan Levine 99 Hudson Street 14th Floor New York, NY 10013 (212) 739−7506 Fax: (212) 431−4276 Email: alevine@latinojustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Foster S. Maer Puerto Rican Legal Defense and Education Fund, Inc 99 Hudson Street 14th Floor New York, NY 10013 (212)−219−3360 Fax: (212)−431−4276 Email: foster_maer@prldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jackson Chin Puerto Rican Legal Defense and Education Fund, Inc 99 Hudson Street 14th Floor New York, NY 10013 (212)−739−7572 Fax: (212)−431−4276 Email: jackson_chin@prldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Quinn Weil, Gotshal &Manges LLP (NYC) 767 Fifth Avenue, 25th Fl. New York, NY 10153 2123108000 Fax: 2128333148 Email: james.quinn@weil.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Greengold Stevens New York Legal Assistance Group 450 West 33rd Street 11th Floor New York, NY 10001 212 613 5031 Fax: 212 750 0820

Case: 1:08-cv-02354-LMM -KNF As of: 03/31/2012 11:58 AM EDT 2 of 17

Email: jstevens@nylag.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Malick W. Ghachem Weil, Gotshal &Manges, L.L.P. 100 Federal Street, 34th floor Boston, MA 02110 (617) 772−8300 Fax: (617) 772−8333 Email: malick.ghachem@weil.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard William Slack Weil, Gotshal &Manges LLP (NYC) 767 Fifth Avenue, 25th Fl. New York, NY 10153 2123108000 Fax: 2128333148 Email: richard.slack@weil.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason David Parkin New York Legal Assistance Group 450 West 33rd Street 11th Floor New York, NY 10001 (212) 613−5091 Fax: (212) 750−0820 Email: jparkin@nylag.org TERMINATED: 09/24/2010

Jose−Luis Perez Puerto Rican Legal Defense and Education Fund 99 Hudson Street 14th floor New York, NY 10019 (212) 219−3360 ATTORNEY TO BE NOTICED

Michael David Sant'Ambrogio New York Legal Assistance Group 450 West 33rd Street 11th Floor New York, NY 10001 (212) 613−5085 Fax: (212) 750−0820 Email: msantambrogio@nylag.org ATTORNEY TO BE NOTICED

Plaintiff
Omar Miguel Farfan on behalf of themselves and all others similarly situated individuals

represented by Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jackson Chin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-02354-LMM -KNF As of: 03/31/2012 11:58 AM EDT 3 of 17

James W. Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Greengold Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Malick W. Ghachem (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard William Slack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason David Parkin (See above for address) TERMINATED: 09/24/2010

Jose−Luis Perez (See above for address) ATTORNEY TO BE NOTICED

Michael David Sant'Ambrogio (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Manuel Alberto on behalf of themselves and all others similarly situated individuals

represented by Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jackson Chin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Greengold Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Malick W. Ghachem (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard William Slack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason David Parkin

Case: 1:08-cv-02354-LMM -KNF As of: 03/31/2012 11:58 AM EDT 4 of 17

(See above for address) TERMINATED: 09/24/2010

Jose−Luis Perez (See above for address) ATTORNEY TO BE NOTICED

Michael David Sant'Ambrogio (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Martinez on behalf of themselves and all others similarly situated individuals

represented by Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jackson Chin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Greengold Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Malick W. Ghachem (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard William Slack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason David Parkin (See above for address) TERMINATED: 09/24/2010

Jose−Luis Perez (See above for address) ATTORNEY TO BE NOTICED

Michael David Sant'Ambrogio (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Andres Giovanny Sanchez on behalf of themselves and all others similarly situated individuals

represented by James W. Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Greengold Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-02354-LMM -KNF As of: 03/31/2012 11:58 AM EDT 5 of 17

Plaintiff
Nancy Castro on behalf of themselves and all others similarly situated individuals

Malick W. Ghachem (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard William Slack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer Puerto Rican Legal Defense and Education Fund, Inc 99 Hudson Street 14th Floor New York, NY 10013 (212)−739−7507 Fax: (212)−431−4276 Email: foster_maer@prldef.org ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) ATTORNEY TO BE NOTICED
Jason David Parkin (See above for address) TERMINATED: 09/24/2010
Jose−Luis Perez (See above for address) ATTORNEY TO BE NOTICED
Michael David Sant'Ambrogio (See above for address) ATTORNEY TO BE NOTICED
represented by Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James W. Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane Greengold Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Malick W. Ghachem (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard William Slack

Case: 1:08-cv-02354-LMM -KNF As of: 03/31/2012 11:58 AM EDT 6 of 17

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason David Parkin (See above for address) TERMINATED: 09/24/2010

Jose−Luis Perez (See above for address) ATTORNEY TO BE NOTICED

Michael David Sant'Ambrogio (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Margoth Perez De Chalampa on behalf of themselves and all others similarly situated individuals

represented by Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jackson Chin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James W. Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Greengold Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Malick W. Ghachem (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard William Slack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason David Parkin (See above for address) TERMINATED: 09/24/2010

Jose−Luis Perez (See above for address) ATTORNEY TO BE NOTICED

Michael David Sant'Ambrogio (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

represented by

Case: 1:08-cv-02354-LMM -KNF As of: 03/31/2012 11:58 AM EDT 7 of 17

Michael Chertoff in his official capacity as Secretary of the Department of Homeland Security

Kirti Vaidya Reddy U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637−2751 Fax: (212) 637−2786 Email: kirti.reddy@usdoj.gov ATTORNEY TO BE NOTICED

Robert William Yalen U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212)−637−2722 Fax: (212)−637−2687 Email: robert.yalen@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Emilio Gonzalez in his official capacity as Director of the United States Citizenship and Immigration Services

represented by Kirti Vaidya Reddy (See above for address) ATTORNEY TO BE NOTICED
Robert William Yalen (See above for address) ATTORNEY TO BE NOTICED

Defendant
Andrea Quarantillo in her official capacity as District Director of the New York City of the United States Citizenship and Immigration Services

represented by Kirti Vaidya Reddy (See above for address) ATTORNEY TO BE NOTICED
Robert William Yalen (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michael B. Mukasey in his official capacity as Attorney General of the United States

represented by Kirti Vaidya Reddy (See above for address) ATTORNEY TO BE NOTICED

Robert William Yalen (See above for address) ATTORNEY TO BE NOTICED

Defendant
Robert S. Mueller, III in his official capacity as Director of the Federal Bureau of Investigation

represented by Kirti Vaidya Reddy (See above for address) ATTORNEY TO BE NOTICED

Robert William Yalen (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/06/2008

# Docket Text
1 COMPLAINT against Andrea Quarantillo, Michael B. Mukasey, Robert S. Mueller, III, Michael Chertoff, Emilio Gonzalez. (Filing Fee $ 350.00, Receipt Number 644032)Document filed by Virginia Milanes, Omar Miguel Farfan,

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03/06/2008 03/06/2008 03/06/2008 03/06/2008 03/06/2008 03/06/2008 03/10/2008 03/10/2008 03/10/2008 04/02/2008 04/02/2008 04/02/2008 04/03/2008 04/03/2008
04/07/2008

Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa.(laq) (mbe). (Entered: 03/10/2008)
SUMMONS ISSUED as to Andrea Quarantillo, Michael B. Mukasey, Robert S. Mueller, III, Michael Chertoff, Emilio Gonzalez. (laq) (Entered: 03/10/2008)
2 NOTICE OF APPEARANCE by Jackson Chin on behalf of Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa. (laq) (Entered: 03/10/2008)
3 NOTICE OF APPEARANCE by Foster S. Maer on behalf of Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa. (laq) (Entered: 03/10/2008)
4 NOTICE OF APPEARANCE by Jose−Luis Perez on behalf of Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa. (laq) (Entered: 03/10/2008)
Magistrate Judge Kevin N. Fox is so designated. (laq) (Entered: 03/10/2008)
Case Designated ECF. (laq) (Entered: 03/10/2008)
5 NOTICE OF APPEARANCE by Michael David Sant'Ambrogio on behalf of Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa (Sant'Ambrogio, Michael) (Entered: 03/10/2008)
6 NOTICE OF APPEARANCE by Jason David Parkin on behalf of Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa (Parkin, Jason) (Entered: 03/10/2008)
7 NOTICE OF APPEARANCE by Jane Greengold Stevens on behalf of Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa (Stevens, Jane) (Entered: 03/10/2008)
8 NOTICE OF APPEARANCE by Alan H. Levine on behalf of Virginia Milanes (Levine, Alan) (Entered: 04/02/2008)
9 NOTICE OF APPEARANCE by Richard William Slack on behalf of Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa (Slack, Richard) (Entered: 04/02/2008)
10 NOTICE OF APPEARANCE by James W. Quinn on behalf of Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa (Quinn, James) (Entered: 04/02/2008)
11 ENDORSED LETTER addressed to Judge Lawrence M. McKenna from Foster Maer dated 4/3/08 re: plaintiff requsts permission to file a combined brief of no more than 50 pages. ENDORSEMENT: granted. So Ordered. (Signed by Judge Lawrence M. McKenna on 4/3/08) (pl) (Entered: 04/03/2008)
Minute Entry for proceedings held before Judge Lawrence M. McKenna: All parties present. The Court present. The Court establishes a briefing schedule for preliminary discovery as to plaintiffs motion (unfiled) by Order To Show Cause, as follows: Plaintiffs to serve request upon Defendants for expedited discovery by 4:00 p.m. on 4/4/08; Defendants to respond to Court (copy of Plaintiff ) by 1:00 p.m. on 4/10/08 "why expedited discovery should not be granted". Next Court conference set for 4/11/087 at 2:00 p.m..in re: expedited discovery issues, et al. No transcript taken. (pl) Modified on 4/23/2008 (pl). Modified on 4/23/2008 (pl). (Entered: 04/07/2008)
12 NOTICE OF APPEARANCE by Kirti Vaidya Reddy on behalf of Andrea Quarantillo, Michael B. Mukasey, Robert S. Mueller, III, Michael Chertoff, Emilio Gonzalez (Reddy, Kirti) (Entered: 04/07/2008)

Case: 1:08-cv-02354-LMM -KNF As of: 03/31/2012 11:58 AM EDT 9 of 17

04/07/2008 04/11/2008
04/21/2008 04/23/2008 04/28/2008 05/08/2008 05/13/2008
05/19/2008

13 NOTICE OF APPEARANCE by Robert William Yalen on behalf of Andrea Quarantillo, Michael B. Mukasey, Robert S. Mueller, III, Michael Chertoff, Emilio Gonzalez (Yalen, Robert) (Entered: 04/07/2008)
MEMORANDUM TO THE DOCKET CLERK: Court addresses preliminary issues on the record prior to hearing oral argument on Plaintiffs Motion to Compel Discovery, as follows: As to briefing schedule outlined in the 4/10/08 letter to the Court from AUSA Robert Yalen, the Government will file motions by 5/23/08, which Govt. Motions shall include a motion for an Order to Deny Class Certification of all Plaintiffs and to Dismiss the Complaint in its entirety. See Transcript. Oral argument held and concluded to Plaintiffs' Motion, by Order Show Cause, to Compel Discovery of Defendants. All parties present (Court Reporter: Christine Sellin present). Judges decision: The Court grants the Plaintiffs motion , by Order to Show Cause. The letter of the Government dated 4/10/08 is memo−endorsed by the Court, as follows: the Government is to produce the FBI Administrative record to Plaintiffs counsel within fifteen days from today; the CIS Administrative record is to be produced to Plaintiffs counsel within thirty days from today; Government is to produce A Files of all Plaintiffs in this case w2ithin fifteen days. The Government is to produce the Yakubova Case file within fifteen days from today (with the condition that the parties will first engage on consent in a written Confidentiality Order to be signed by the Court). See transcript. So Ordered. See transcript. (rw) Modified on 4/23/2008 (pl). Modified on 4/23/2008 (pl). (Entered: 04/15/2008)
14 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement). Referred to Magistrate Judge Kevin Nathaniel Fox. (Signed by Judge Lawrence M. McKenna on 4/21/08) (js) (Entered: 04/22/2008)
15 ENDORSED LETTER addressed to Judge Lawrence M. McKenna from Kirti Vaidya Reddy dated 4/22/08 re: Counsel for defendant requests the Court's permission to file its administrative records with the Clerk of Court by manually filing a hard copy and computer disks, rather than through the ECF system. ENDORSEMENT: Granted. So Ordered. (Signed by Judge Lawrence M. McKenna on 4/23/08) (js) (Entered: 04/23/2008)
16 TRANSCRIPT of proceedings held on 4/11/2008 before Judge Lawrence M. McKenna. (ama) (Entered: 04/28/2008)
17 STIPULATED PROTECTIVE ORDER: Regarding procedures to be followed that shall govern the handling of confidential material. (Signed by Judge Lawrence M. McKenna on 5/8/2008) (jpo) (Entered: 05/08/2008)
18 MEMORANDUM AND ORDER: First, the Court has neither ruled that all discovery is permissible notwithstanding the normal restrictions on going outside of the administrative record on APA issues, nor left that issues to Judge Fox to rule on as an abstract question. The administrative record rule is to be respected, but the Court recognizes as well that there may be exceptions in this case as to particular factual issues, not all of which can be foreseen. The Court expects and party seeking discovery beyond the FBI and USCIS administrative records, The Yakubova production and the A files to show that the discovery it seeks is necessary for a particular reason, e.g., to fill a gap in an administrative record, or to obtain and explanation, or probe an explanation, for delay. Hopefully, counsel can meet and agree in such cases, but, if not, the issues will be presented to Judge Fox. (Signed by Judge Lawrence M. McKenna on 5/13/2008) (jfe) (Entered: 05/13/2008)
19 ENDORSED LETTER addressed to Judge Lawrence M. McKenna from Richard W. Slack dated 5/15/2008, Plaintiff respectfully requests that the court deny defendants request to vacate the briefing schedule previously set by the Court, also that the Court adopt the following schedule: Fact Discovery in connection with Motion for Preliminary Injunction completed by May 27, 2008. The parties will disclose any expert and the subject of their testimony by May 30, 2008. The parties shall conduct any depositions of fact and expert witness for purpose of the Preliminary Injunction hearing by June 12, 2008. Plaintiff shall serve their Opposition to Defendants Motion to dismiss and reply to Defendants Opposition to

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05/22/2008 05/23/2008
05/28/2008 05/28/2008 05/28/2008 05/28/2008 05/28/2008 05/28/2008 05/28/2008 05/28/2008 05/28/2008 05/28/2008 05/28/2008 05/28/2008 05/28/2008
05/28/2008

plaintiffs' Motion for Preliminary Injunction and Class Certification no later than June 16, 2008. The parties shall be ready for a hearing on the Motion for Preliminary Injunction on or after June 18, 2008. ENDORSEMENT: Defendants' motion for an extension until 6/6/2008 to file their opposition to plaintiffs' motion for a preliminary injunction and class certification and defendants' motion for dismissal and remand is granted. The schedule proposed above in this letter is adopted with the exception, that each date in it is moved one week into the future. So Ordered,(Signed by Judge Lawrence M. McKenna on 5/19/2008) (jfe) (Entered: 05/19/2008)
20 Certification of Administrative Record (FBI). Document filed by Robert S. Mueller, III. (cd) (Entered: 05/23/2008)
21 ORDER, a telephonic conference will be held on 5/28/08, at 10:30 am, to be initiated by counsel to plaintiff to (212)805−6705. ( Telephone Conference set for 5/28/2008 at 10:30 AM before Magistrate Judge Kevin Nathaniel Fox.) (Signed by Magistrate Judge Kevin Nathaniel Fox on 5/23/08) (cd) (Entered: 05/27/2008)
22 CIS Administrative Record for Backlog in processing Naturalization Applications. (Volume 6). (pl) Modified on 5/28/2008 (pl). (Entered: 05/28/2008)
23 CIS Administrative Record for 2002 Change in scope of FBI name checks Naturalization Process. (Volume 1). (pl) Modified on 5/28/2008 (pl). (Entered: 05/28/2008)
24 CIS Administrative Record for Backlog in processing Naturalization Applications. (Volume 4). (pl) Modified on 5/28/2008 (pl). (Entered: 05/28/2008)
25 CIS Administrative Record for Backlog in processing Naturalization Applications. (Volume 5). (pl) Modified on 5/28/2008 (pl). (Entered: 05/28/2008)
26 CIS Administrative Record for Backlog in processing Naturalization Applications. (Volume 3). (pl) Modified on 5/28/2008 (pl). (Entered: 05/28/2008)
27 CIS Administrative Record for 2002 Change in scope of FBI name checks Naturalization Process. (Volume 2). (pl) (Entered: 05/28/2008)
28 CIS Administrative Record for Backlog in processing Naturalization Applications. (Volume 8). (pl) Modified on 5/28/2008 (pl). (Entered: 05/28/2008)
29 CIS Administrative Record for Backlog in processing Naturalization Applications. (Volume 7). (pl) (Entered: 05/28/2008)
30 CIS Administrative Record for Backlog in processing Naturalization Applications. (Volume 10). (pl) Modified on 5/28/2008 (pl). (Entered: 05/28/2008)
31 CIS Administrative Record for Backlog in processing Naturalization Applications. (Volume 9). (pl) Modified on 5/28/2008 (pl). (Entered: 05/28/2008)
32 CIS Administrative Record for Backlog in processing Naturalization Applications. (Volume 2). (pl) Modified on 5/28/2008 (pl). (Entered: 05/28/2008)
33 CIS Administrative Record for Backlog in processing Naturalization Applications. (Volume 12). (pl) Modified on 5/28/2008 (pl). (Entered: 05/28/2008)
34 ORDER: (1) on or before May 30, 2008, Gregory Smith shall certify that a copy of the complete and accurate administrative record has been provided to the plaintiffs; (2) on or before June 2, 2008, the defendants shall provide data responsive to the plaintiffs' discovery demands in hard copy format, as discussed during the conference, and thereafter, supplement that disclosure with the data maintained in an electronic format with the understanding that the electronic data will be provided to the plaintiffs on a rolling basis; (3) on or before June 9, 2008, the defendants must respond completely to the plaintiffs' outstanding discovery demands; and (4) on or before June 2, 2008, the plaintiffs shall respond to the defendants' outstanding discovery demands. (Signed by Magistrate Judge Kevin Nathaniel Fox on 5/28/08) (rw) (Entered: 05/28/2008)
35 LETTER addressed to J. Michael McMahon, Clerk of Court from Tomoko Onozawa dated 5/22/08 re: Government submits for filing with the Clerk of Court,

Case: 1:08-cv-02354-LMM -KNF As of: 03/31/2012 11:58 AM EDT 11 of 17

05/28/2008 06/05/2008
06/11/2008
06/19/2008 06/19/2008 06/19/2008 06/19/2008 06/19/2008 06/19/2008

the administrative record for this case comprised of the documents that are set forth in this letter. Document filed by U.S. Department of Justice.(pl) Modified on 5/29/2008 (pl). (Entered: 05/29/2008)
Minute Entry for proceedings held before Magistrate Judge Kevin Nathaniel Fox: Telephone Conference held on 5/28/2008. (cd) (Entered: 06/02/2008)
36 ENDORSED LETTER addressed to Judge Lawrence M. McKenna and Magistrate Judge Kevin. Fox from Robert William Yalen dated 6/3/08 re: The Government submits this letter to request certain modifications to the upcoming schedule in this case as follows: Government to complete production of Hard−Copy Documents due by 6/6/08 (all hard copy documents except those of Scharfen); 6/10/08 (hard copy documents of Scharfen); Service of Privilege Log for Hard Copy Documents due by 6/9/08 (for hard copy documents except those of Scharfen); 6/10/08 (for hard copy documents of Scharfen); Government to provide Plaintiffs with dates for Completion of Production of Documents from Eletronic−Sources due by 6/9/08; Disclosures of Expert Witnesses due by 6/6/08 (no change); Government's Papers due by 6/13/08; Government's Response to Interrogatories No. 5 and 6 to USCIS due by 6/9/08 (no change); Completion of depositions 6/27/08; Plaintiffs' papers due by 7/2/08; date when parties shall be ready for a preliminary injunction hearing 7/7/08. ENDORSEMENT: The above schedule is approved &so ordered. The preliminary injunction hearing will be held on 7/9/08 at 9:30 a.m. (and extended to 7/10/08 (to be set), if necessary). (Signed by Judge Lawrence M. McKenna on 6/5/08) (tro) (Entered: 06/06/2008)
37 ENDORSED LETTER addressed to Judge Lawrence M. McKenna from Robert William Yalen dated 6/11/08 re: Counsel for the Government request a one−week extension for the service of their papers and to submit a 75−page memorandum of law with papers. ENDORSEMENT: The government's time to serve &file the responsive submissions is extended to 6/19/08 at 1PM; the plaintiffs' time to serve &file its reply submissions is extended to 7/8 at 1PM. Page limitations for such submissions are waived. (Signed by Judge Lawrence M. McKenna on 6/11/08) (tro) (Entered: 06/12/2008)
38 MOTION to Dismiss in Part and Remand in Part, or in the Alternative for Summary Judgment. Document filed by Andrea Quarantillo, Michael B. Mukasey, Robert S. Mueller, III, Michael Chertoff, Emilio Gonzalez.(Yalen, Robert) (Entered: 06/19/2008)
39 MEMORANDUM OF LAW in Support re: 38 MOTION to Dismiss in Part and Remand in Part, or in the Alternative for Summary Judgment. and in Opposition to Plaintiffs' Motions for a Preliminary Injunction and Class Certification. Document filed by Andrea Quarantillo, Michael B. Mukasey, Robert S. Mueller, III, Michael Chertoff, Emilio Gonzalez. (Yalen, Robert) (Entered: 06/19/2008)
40 DECLARATION of Michael A. Cannon in Support re: 38 MOTION to Dismiss in Part and Remand in Part, or in the Alternative for Summary Judgment.. Document filed by Andrea Quarantillo, Michael B. Mukasey, Robert S. Mueller, III, Michael Chertoff, Emilio Gonzalez. (Yalen, Robert) (Entered: 06/19/2008)
41 DECLARATION of David J. Keevis in Support re: 38 MOTION to Dismiss in Part and Remand in Part, or in the Alternative for Summary Judgment.. Document filed by Andrea Quarantillo, Michael B. Mukasey, Robert S. Mueller, III, Michael Chertoff, Emilio Gonzalez. (Yalen, Robert) (Entered: 06/19/2008)
42 DECLARATION of Robert William Yalen in Support re: 38 MOTION to Dismiss in Part and Remand in Part, or in the Alternative for Summary Judgment.. Document filed by Andrea Quarantillo, Michael B. Mukasey, Robert S. Mueller, III, Michael Chertoff, Emilio Gonzalez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C (part 1), # 4 Exhibit C part 2, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F part 1, # 8 Exhibit F part 2)(Yalen, Robert) (Entered: 06/19/2008)
43 RULE 56.1 STATEMENT. Document filed by Andrea Quarantillo, Michael B. Mukasey, Robert S. Mueller, III, Michael Chertoff, Emilio Gonzalez. (Yalen, Robert) (Entered: 06/19/2008)

Case: 1:08-cv-02354-LMM -KNF As of: 03/31/2012 11:58 AM EDT 12 of 17

06/24/2008
07/10/2008 07/11/2008 07/14/2008 07/14/2008 07/15/2008 07/15/2008 07/18/2008 07/18/2008
07/18/2008
07/21/2008 08/05/2008 08/07/2008

44 ENDORSED LETTER addressed to Judge Lawrence M. McKeena from Robert William Yalen dated 6/23/08 re: that the parties requests that the Court enter an order modifying the current schedule so as to permit depositions to be taken through 7/2/08. This extension would not modify any other deadlines in the case. ENDORSEMENT: Granted. So Ordered. (Signed by Judge Lawrence M. McKenna on 6/24/08) (pl) (Entered: 06/24/2008)
45 MOTION for Malick W. Ghachem to Appear Pro Hac Vice. Document filed by Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa.(dle) (Entered: 07/11/2008)
47 SUPPLEMENT TO CIS ADMINISTRATIVE RECORD FOR BACKLONG IN PROCESSING NATURALIZATION APPLICATIONS filed by Donald Neufeld. (pl) (Entered: 07/14/2008)
48 ORDER granting 45 Motion for Malick W. Ghachem to Appear Pro Hac Vice. (Signed by Judge Lawrence M. McKenna on 7/9/08) (rw) (Entered: 07/14/2008)
Transmission to Attorney Admissions Clerk. Transmitted re: 48 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (rw) (Entered: 07/14/2008)
49 UNSIGNED ORDER TO SHOW CAUSE: Defendants shall show cause as to why an order Granting a preliminary Injunction, and class certification should not be issued, set forth herein. Oral Argument held July 15, 2008. See transcript. (jpo) (Entered: 07/16/2008)
MEMORANDUM TO THE DOCKET CLERK: All parties present. Oral argument held and concluded of plaintifs' motion, by order to show cause, for a preliminary injunction granting miscellaneous rewlief as to..; (djc) (Entered: 07/16/2008)
50 REPLY MEMORANDUM OF LAW in Support re: 38 MOTION to Dismiss in Part and Remand in Part, or in the Alternative for Summary Judgment.. Document filed by Andrea Quarantillo, Michael B. Mukasey, Robert S. Mueller, III, Michael Chertoff, Emilio Gonzalez. (Yalen, Robert) (Entered: 07/18/2008)
51 REPLY AFFIRMATION of David J. Keevis in Support re: 38 MOTION to Dismiss in Part and Remand in Part, or in the Alternative for Summary Judgment.. Document filed by Andrea Quarantillo, Michael B. Mukasey, Robert S. Mueller, III, Michael Chertoff, Emilio Gonzalez. (Attachments: # 1 Exhibit)(Yalen, Robert) (Entered: 07/18/2008)
52 REPLY AFFIRMATION of Kirti Vaidya Reddy in Support re: 38 MOTION to Dismiss in Part and Remand in Part, or in the Alternative for Summary Judgment.. Document filed by Andrea Quarantillo, Michael B. Mukasey, Robert S. Mueller, III, Michael Chertoff, Emilio Gonzalez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Yalen, Robert) (Entered: 07/18/2008)
CASHIERS OFFICE REMARK on 48 Order on Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 07/10/2008, Receipt Number 656441. (jd) (Entered: 07/21/2008)
53 TRANSCRIPT of proceedings held on 7/16/08 before Judge Lawrence M. McKenna. (ama) (Entered: 08/05/2008)
54 MEMO ENDORSED on DEFENDANTS' REPLY MEORANDUM OF LAW IN FURTHER SUPPORT OF THEIR MOTION TO DISMISS IN PART AND REMAND IN PART, OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT. ENDORSEMENT: For the reasons set forth on the record on 8/7/2008, plaintiffs' motion for preliminary injunction motion for dismissal under F.R.C.P. 12(a)(6) is granted as to all claims in the complaint without prejudice to the continued pursuit by the named plaintiffs putative class members was one not yet naturalized of their naturalization proceedings. Defendants' motion for remand is denied and defendants' motion for summary judgment (not reached) is denied as moot. So ordered. (Signed by Judge Lawrence M. McKenna on 8/7/2008) (jpo) (Entered: 08/07/2008)

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08/07/2008 08/14/2008
08/19/2008 08/19/2008 08/22/2008
09/03/2008 09/04/2008 09/05/2008 09/05/2008 09/05/2008 09/05/2008 09/05/2008 09/05/2008

MEMORANDUM TO THE DOCKET CLERK: Post−motion conference held on oral argument of Plaintiffs' and defendants' Motions (see Doc. #38). Court issues a decision from the bench − Memorandum endorsed. See transcript. (djc) (Entered: 08/08/2008)
55 ENDORSED LETTER addressed to Judge Lawrence M. McKenna from Tomoko Onozawa dated 8/13/08 re: The parties jointly propose the corrections to the transcript indicated on the attached Exhibit A. The Government proposes the additional correction listed on the attached Exhibit B; Plaintiff do not agree to this additional correction. ENDORSEMENT: All proposed corrections including that on exhibit B. Are approved. So Ordered. (Signed by Judge Lawrence M. McKenna on 8/14/08) (js) (Entered: 08/14/2008)
56 MOTION for Reconsideration re; 54 Order on Motion to Dismiss,,. Document filed by Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa.(Slack, Richard) (Entered: 08/19/2008)
57 MEMORANDUM OF LAW in Support re: 56 MOTION for Reconsideration re; 54 Order on Motion to Dismiss,,.. Document filed by Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa. (Slack, Richard) (Entered: 08/19/2008)
58 ENDORSED LETTER addressed to Judge Lawrence M. McKenna from Kirti Vaidya Reddy dated 8/21/2008 re: Counsel respectfully request that the deadline for its service of an opposition to the motion for reconsideration be set for September 3, 2008. ENDORSEMENT: Plaintiff's application for expedited briefing is denied. Defendant's response to plaintiff's motion is to be filed by 9/3/08. Plaintiff's may have until 9/10/08 to reply (but may, of course reply earlier) if the Court finds that a hearing and/or oral argument is needed, it will so notify all counsel. So Ordered. (Signed by Judge Lawrence M. McKenna on 8/22/2008) (jfe) Modified on 9/16/2008 (jfe). (Entered: 08/22/2008)
59 MEMORANDUM OF LAW in Opposition re: 56 MOTION for Reconsideration re; 54 Order on Motion to Dismiss,,.. Document filed by Andrea Quarantillo, Michael B. Mukasey, Robert S. Mueller, III, Michael Chertoff, Emilio Gonzalez. (Yalen, Robert) (Entered: 09/03/2008)
60 TRANSCRIPT of proceedings held on 8/07/08 before Judge Lawrence M. McKenna. (ama) (Entered: 09/04/2008)
61 MEMORANDUM OF LAW in Support re: 49 Order to Show Cause − Unsigned. Document filed by Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa. (Slack, Richard) (Entered: 09/05/2008)
62 DECLARATION of Foster S. Maer in Support re: 61 Memorandum of Law in Support. Document filed by Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa. (Slack, Richard) (Entered: 09/05/2008)
63 DECLARATION of Andres Giovanny Sanchez in Support re: 61 Memorandum of Law in Support. Document filed by Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa. (Slack, Richard) (Entered: 09/05/2008)
64 DECLARATION of Nancy Castro in Support re: 61 Memorandum of Law in Support. Document filed by Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa. (Slack, Richard) (Entered: 09/05/2008)
65 DECLARATION of Arturo Vargas in Support re: 61 Memorandum of Law in Support. Document filed by Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa. (Slack, Richard) (Entered: 09/05/2008)
66 DECLARATION of Omar M. Farfan in Support re: 61 Memorandum of Law in Support. Document filed by Virginia Milanes, Omar Miguel Farfan, Manuel

Case: 1:08-cv-02354-LMM -KNF As of: 03/31/2012 11:58 AM EDT 14 of 17

09/05/2008 09/05/2008 09/05/2008 09/05/2008
09/05/2008
09/08/2008 09/10/2008 09/11/2008
09/24/2008 09/25/2008 09/25/2008 10/23/2008 11/10/2008

Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa. (Slack, Richard) (Entered: 09/05/2008)
67 DECLARATION of Manuel Alberto Martinez in Support re: 61 Memorandum of Law in Support. Document filed by Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa. (Slack, Richard) (Entered: 09/05/2008)
68 DECLARATION of Virginia Milanes in Support re: 61 Memorandum of Law in Support. Document filed by Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Margoth Perez De Chalampa, Michael Chertoff. (Slack, Richard) (Entered: 09/05/2008)
69 AFFIDAVIT of Margoth Perez De Chalampa in Support re: 61 Memorandum of Law in Support. Document filed by Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa. (Slack, Richard) (Entered: 09/05/2008)
70 DECLARATION of Michael D. Sant'Ambrogio in Support re: 61 Memorandum of Law in Support. Document filed by Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa. (Attachments: # 1 Part 2, # 2 Part 3, # 3 Part 4, # 4 Part 5, # 5 Part 6)(Slack, Richard) (Entered: 09/05/2008)
71 DECLARATION of Michael D. Sant'Ambrogio in Support re: 61 Memorandum of Law in Support, 70 Declaration in Support,. Document filed by Virginia Milanes, Omar Miguel Farfan, Manuel Alberto, Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa. (Attachments: # 1 Part 8, # 2 Part 9)(Slack, Richard) (Entered: 09/05/2008)
Transmission to Judgments and Orders Clerk. Transmitted re: 54 Order on Motion to Dismiss, to the Judgments and Orders Clerk. (jpo) (Entered: 09/08/2008)
72 MEMORANDUM AND ORDER: Reinstatements of Counts I and II having been denied, there is no adequate ground for reconsideration of the denial of preliminary injunction. Motion for reconsideration denied. (Signed by Judge Lawrence M. McKenna on 9/10/2008) (jfe) (Entered: 09/10/2008)
73 CLERK'S JUDGMENT That for the reasons stated in the Court's Memo Endorsed Order dated August 7, 2008, plaintiffs motions for a preliminary injunction and for class certification are denied; defendants motion for dismissal is granted under Fed. R. Civ. P. 12(b)(6) as to all claims in the complaint (without prejudice to the continued pursuit by the named plaintiffs and putative class members who have not yet been naturalized at their naturalization proceedings); defendants motion for remand is denied; and defendants motion for summary judgment (not reached) is denied as moot. (Signed by J. Michael McMahon, clerk on 9/11/08) (Attachments: # 1 notice of right to appeal)(ml) (Entered: 09/11/2008)
74 NOTICE OF APPEAL from 73 Clerk's Judgment. Document filed by Virginia Milanes, Omar Miguel Farfan, Manuel Alberto Martinez, Andres Giovanny Sanchez, Nancy Castro, Margoth Perez De Chalampa. Filing fee $ 455.00, receipt number E 664036. (tp) (Entered: 09/25/2008)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 74 Notice of Appeal,. (tp) (Entered: 09/25/2008)
Transmission of Notice of Appeal to the District Judge re: 74 Notice of Appeal. (tp) (Entered: 09/25/2008)
75 TRANSCRIPT of proceedings (CORRECTED) held on 8/7/08 before Judge Lawrence M. McKenna. (ja) (Entered: 10/31/2008)
76 Appeal Record Sent to USCA (Index). Notice that the Original index to the record on Appeal for 74 Notice of Appeal, filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes USCA Case Number 08−47749, 3 Copies of the index, Certified Clerk Certificate and Certified Docket Sheet were transmitted to the U.S. Court of Appeals. (tp) (nd). (Entered: 11/10/2008)

Case: 1:08-cv-02354-LMM -KNF As of: 03/31/2012 11:58 AM EDT 15 of 17

11/17/2008

First Supplemental ROA Sent to USCA (Electronic File). Certified Supplemental Indexed record on Appeal Electronic Files for 11 Endorsed Letter, 43 Rule 56.1 Statement filed by Michael Chertoff, Robert S. Mueller, III, Andrea Quarantillo, Michael B. Mukasey, Emilio Gonzalez, 42 Declaration in Support of Motion, filed by Michael Chertoff, Robert S. Mueller, III, Andrea Quarantillo, Michael B. Mukasey, Emilio Gonzalez, 7 Notice of Appearance filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 58 Endorsed Letter, Set Motion and RRDeadlines/Hearings,,,, 44 Endorsed Letter, Set Deadlines/Hearings,, 72 Order on Motion for Reconsideration, 52 Reply Affirmation in Support of Motion, filed by Michael Chertoff, Robert S. Mueller, III, Andrea Quarantillo, Michael B. Mukasey, Emilio Gonzalez, 37 Endorsed Letter, Set Deadlines/Hearings,,,, 66 Declaration in Support filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 50 Reply Memorandum of Law in Support of Motion, filed by Michael Chertoff, Robert S. Mueller, III, Andrea Quarantillo, Michael B. Mukasey, Emilio Gonzalez, 15 Endorsed Letter, Set Deadlines/Hearings,, 56 MOTION for Reconsideration re; 54 Order on Motion to Dismiss,,. filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 57 Memorandum of Law in Support of Motion, filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 5 Notice of Appearance filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 13 Notice of Appearance filed by Michael Chertoff, Robert S. Mueller, III, Andrea Quarantillo, Michael B. Mukasey, Emilio Gonzalez, 48 Order on Motion to Appear Pro Hac Vice, 21 Order, Set Deadlines/Hearings,, 67 Declaration in Support, filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 63 Declaration in Support, filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 54 Order on Motion to Dismiss,, 68 Declaration in Support, filed by Andres Giovanny Sanchez, Michael Chertoff, Omar Miguel Farfan, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 12 Notice of Appearance filed by Michael Chertoff, Robert S. Mueller, III, Andrea Quarantillo, Michael B. Mukasey, Emilio Gonzalez, 65 Declaration in Support filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 61 Memorandum of Law in Support filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 38 MOTION to Dismiss in Part and Remand in Part, or in the Alternative for Summary Judgment. filed by Michael Chertoff, Robert S. Mueller, III, Andrea Quarantillo, Michael B. Mukasey, Emilio Gonzalez, 69 Affidavit in Support, filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 40 Declaration in Support of Motion, filed by Michael Chertoff, Robert S. Mueller, III, Andrea Quarantillo, Michael B. Mukasey, Emilio Gonzalez, 8 Notice of Appearance filed by Virginia Milanes, 62 Declaration in Support filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 34 Order,,, 55 Endorsed Letter, Set Deadlines/Hearings,, 1 Complaint, filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 10 Notice of Appearance filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 19 Endorsed Letter, Set Deadlines/Hearings,,,,,,,,,, 45 MOTION for Malick W. Ghachem to Appear Pro Hac Vice. filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 36 Endorsed Letter, Set Deadlines/Hearings,,,,,,,,,, 64 Declaration in Support filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 59 Memorandum of Law in Opposition to Motion filed by Michael Chertoff, Robert S. Mueller, III, Andrea Quarantillo, Michael B. Mukasey, Emilio Gonzalez, 70 Declaration in Support, filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 9 Notice of

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01/29/2010 01/29/2010 02/04/2010 04/09/2010 04/29/2010 05/14/2010 06/17/2010 07/30/2010

Appearance filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 71 Declaration in Support, filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 41 Declaration in Support of Motion, filed by Michael Chertoff, Robert S. Mueller, III, Andrea Quarantillo, Michael B. Mukasey, Emilio Gonzalez, 39 Memorandum of Law in Support of Motion, filed by Michael Chertoff, Robert S. Mueller, III, Andrea Quarantillo, Michael B. Mukasey, Emilio Gonzalez, 17 Protective Order, 6 Notice of Appearance filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 18 Order,,, 74 Notice of Appeal, filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes, 73 Clerk's Judgment,, 14 Order Referring Case to Magistrate Judge, 51 Reply Affirmation in Support of Motion, filed by Michael Chertoff, Robert S. Mueller, III, Andrea Quarantillo, Michael B. Mukasey, Emilio Gonzalez USCA Case Number 08−4749, were transmitted to the U.S. Court of Appeals. (tp) (Entered: 11/17/2008)
77 MANDATE of USCA (Certified Copy) as to 74 Notice of Appeal, filed by Andres Giovanny Sanchez, Omar Miguel Farfan, Nancy Castro, Margoth Perez De Chalampa, Manuel Alberto, Martinez, Virginia Milanes USCA Case Number 08−4749−cv. Ordered, Adjudged and Decreed that the judgments of the District Court is VACATED in part and the case is REMANDED. Catherine O'Hagan Wolfe, Clerk USCA. Issued As Mandate: 1/26/2010. (nd) (Entered: 01/29/2010)
Transmission of USCA Mandate/Order to the District Judge re: 77 USCA Mandate,. (nd) (Entered: 01/29/2010)
78 ENDORSED LETTER addressed to Judge Lawrence M. McKenna from Tomoko Onozawa dated 2/3/2010 re: The parties jointly respectfully request that the Court schedule the forthcoming status conference for a date convenient to the Court on or after March 15, 2010. ENDORSEMENT: Conference scheduled for 3/19/10 at 3:00 P.M. So ordered. (Signed by Judge Lawrence M. McKenna on 2/4/2010) (tve) (Entered: 02/04/2010)
79 ENDORSED LETTER addressed to Judge Lawrence M. McKenna from Tomoko Onozawa dated 4/8/2010 re: The parties to the above−referenced matter jointly request an adjournment of the status conference scheduled for April 9, 2010. ENDORSEMENT: Conference adjourned to 4/28/10 at 3 p.m. So ordered. (Signed by Judge Lawrence M. McKenna on 4/9/2010) (tve) (Entered: 04/09/2010)
80 ENDORSED LETTER addressed to Judge Lawrence M. McKenna from Tomoko Onozawa, Kirti Vaidya Reddy and Robert William Yalen dated 4/28/2010 re: The parties jointly request an adjournment of the status conference scheduled for 4/28/2010 at 3 p.m. ENDORSEMENT: Conference adjourned to 5/14/10 at 10:30 A.M. So ordered. (Signed by Judge Lawrence M. McKenna on 4/29/2010) (tve) Modified on 4/30/2010 (ae). (Entered: 04/29/2010)
81 ENDORSED LETTER: addressed to Judge Lawrence M. McKenna from Tomoko Onozawa dated 5/13/2010 re: The parties to the above referenced matter jointly request an adjournment of the status conference scheduled for tomorrow, May 14, 2010, at 10:30 a.m. ENDORSEMENT: Conference adjourned to 6/16/2010 at 4:00 p.m. So Ordered.) (Signed by Judge Lawrence M. McKenna on 5/14/2010) (js) Modified on 5/21/2010 (js). (Entered: 05/14/2010)
82 ENDORSED LETTER addressed to Judge Lawrence M. McKenna from Kirti Vaidya Reddy dated 6/16/10 re: counsel requests an adjournment of the status conference scheduled for today, June 16, 2010 to July 29, 2010 at 3:00 p.m. ENDORSEMENT: So Ordered. ( Status Conference set for 7/29/2010 at 03:00 PM before Judge Lawrence M. McKenna.) (Signed by Judge Lawrence M. McKenna on 6/17/10) (djc) (Entered: 06/17/2010)
83 ENDORSED LETTER addressed to Judge Lawrence M. McKenna from Tomoko Onozawa, Kirti Vaidy Reddy, Robert Willian Yalen dated 7/28/2010 re: The parties to the above−referenced matter jointly request a final adjournment of the status conference scheduled for tomorrow, July 29, 2010, at 3:00 p.m. This is the parties' sixth joint request for an adjournment of the status conference. The

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09/13/2010 09/20/2010
09/23/2010 09/23/2010 09/24/2010 07/11/2011

adjournment will permit plaintiffs to review and discuss the form and substance of proposed settlement documents drafted by the Government. ENDORSEMENT: Conference adjourned to 9/10/10 at 3:00 p.m. So Ordered. (Signed by Judge Lawrence M. McKenna on 7/30/2010) (rw) (Entered: 07/30/2010)
84 ENDORSED LETTER addressed to Judge Lawrence M. McKenna from Kirti Vaidya Reddy dated 9/10/2010 re: Requesting an adjournment of the status conference scheduled for September 10, 2010. ENDORSEMENT: Granted. So Ordered. (Signed by Judge Lawrence M. McKenna on 9/13/2010) (jpo) (Entered: 09/13/2010)
85 STIPULATION AND ORDER OF DISMISSAL that the action be, and hereby is, held in abeyance until 7/29/11. On 7/29/11, in the event that plaintiffs have not sought reinstatement of this action pursuant to paragraphs 22 through 27 of the Settlement Agreement, the action shall be dismissed with prejudice, and plaintiffs waive any rights they may have to further appeal in this Action. (Signed by Judge Lawrence M. McKenna on 9/20/10) (cd) (Entered: 09/20/2010)
86 MOTION for Jason Parkin to Withdraw as Attorney for Plaintiffs. Document filed by Manuel Alberto, Nancy Castro, Margoth Perez De Chalampa, Omar Miguel Farfan, Martinez, Virginia Milanes, Andres Giovanny Sanchez.(Parkin, Jason) (Entered: 09/23/2010)
87 DECLARATION of Jason Parkin in Support re: 86 MOTION for Jason Parkin to Withdraw as Attorney for Plaintiffs.. Document filed by Manuel Alberto, Nancy Castro, Margoth Perez De Chalampa, Omar Miguel Farfan, Martinez, Virginia Milanes, Andres Giovanny Sanchez. (Attachments: # 1 Exhibit A)(Parkin, Jason) (Entered: 09/23/2010)
88 ORDER granting 86 Motion to Withdraw as Attorney. Attorney Jason David Parkin terminated. (Signed by Judge Lawrence M. McKenna on 9/24/10) (jmi) (Entered: 09/24/2010)
89 ENDORSED LETTER addressed to Judge Lawrence M. McKenna from Kirti Vaidya Reddy dated 7/1/11 re: counsel for defendant writes respectfully to request dismissal of the above−referenced action. As USCIS has completed its reporting obligations pursuant to the terms of the Agreement of Settlement and Release and plaintiffs have not sought reinstatement, the action should be dismissed with prejudice. ENDORSEMENT: The above action is dismissed with prejudice as of 7/29/11. So Ordered. (Signed by Judge Lawrence M. McKenna on 7/11/11) (pl) (Entered: 07/11/2011)


On March 6, 2008 attorneys with the Puerto Rican Legal Defense Fund and Education Fund and New York Legal Assistance Group filed a class action lawsuit against the Department of Homeland Security, USCIS, Attorney General of the U.S. and the FBI. in the U.S. District Court for the Southern District of New York (Foley Square Division), challenging the U.S. government's failure to timely adjudicate applications for naturalization made in New York City District Office of the U.S. Citizenship and Immigration Services ("USCIS").  Plaintiffs sought declaratory and injunctive relief under the Administrative Procedure Act, 5 U.S.C. §§ 555(b), 551(13), 706(1) and 553, and the Immigration and Nationality Act § 336(b), codified at 8 U.S.C. § 1447(b). 

Plaintiffs sought certification of a class consisting of:  lawful permanent residents residing in the counties served by the New York City District Office of USCIS, who have submitted or will submit applications to be naturalized as U.S. citizens, and whose applications have not been or will not be adjudicated within 180 days of the date of submission, and on behalf of a sub-class composed of those members of the class who reside in the Southern District of New York and whose applications have not been or will not be adjudicated within 120 days of the date of their initial examinations. 

On June 19, 2008, Defendants filed its motion to dismiss. On August 7, 2008, the District Court (Judge Lawrence M. McKenna) denied Plaintiffs' motions for a preliminary injunction and for class certification, and granted Defendants' motion to dismiss. On August 19, 2008, Plaintiffs filed a motion for reconsideration, which the District Court denied on September 10, 2008. 

Plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit. On January 29, 2008, in a summary order, the Second Circuit vacated the judgments entered by the District Court on August 7 and September 10 of 2008, and remanded the case to the District Court for further proceedings consistent with the order. 

The parties entered settlement negotiations after the case went back to the District Court. On September 20, 2010, the District Court (Judge Lawrence M. McKenna) entered a Stipulation and Order of Dismissal which specified that it would place the matter in abeyance until July 29, 2011, and if Plaintiffs have not sought reinstatement by July 29, 2011, pursuant to the Settlement Agreement dated September 17, 2010, the action would be dismissed with prejudice. The action was dismissed with prejudice as of July 29, 2011.

(Updated on 03/31/2012)

