Free Reply to Response to Motion - District Court of California - California

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1 SCOTT N. SCHOOLS, SC 9990 United States Attorney 2 JOANN M. SWANSON, CSBN 88143 Assistant United States Attorney 3 Chief, Civil Division EDWARD A. OLSEN, CSBN 214150 4 Assistant United States Attorney 5 6 7 PETER D. KEISLER 8 United States Department of Justice Assistant Attorney General, Civil Division 9 ELIZABETH J. STEVENS VSBN 47445 Senior Litigation Counsel 10 Office of Immigration Litigation JEFFREY S. ROBINS NY SBN 4355244 11 Trial Attorney 12 13 14 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 SAN FRANCISCO DIVISION 18 ALIA AHMADI, et al., 19 Plaintiffs, 20 v. 21 MICHAEL CHERTOFF, et al., 22 23 24 25 26 27 28
Reply in Support of Defendants' Motion to Dismiss C-07-3455-W HA

450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-6915 FAX: (415) 436-6927

P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 616-1246 FAX: (202) 233-0397 Attorneys for Defendants

Defendants.

) ) ) ) ) ) ) ) ) ) )

No. C-07-3455-WHA REPLY IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS Date: October 11, 2007 Time: 8:30 a.m. Courtroom: 9, 19th Floor

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1 2 I. 3 II. 4 5 6 7 8 9 10 11 12 13 III. 14 15 16 17 18 19 20 21 IV. 22 23 24 25 26 27 28

TABLE OF CONTENTS Plaintiffs Lack of Entitlement to Injunctive Relief is a Proper Issue for a Motion to Dismiss. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Individual Plaintiffs' Claims Should Be Remanded to USCIS Because Adjudication of a Naturalization Application Without the Benefit of a Full and Complete Background Investigation Would be Improper and Incomplete. . . . . . . . . . . . . . . . . . . . . . . 2 A. The Requirement that Defendant USCIS Receive Completed FBI Name Checks Prior to Adjudication of Naturalization Applications is Appropriate. . . . . . . . . . . . . . . . . . . . . 3 B. Remand of Individual Naturalization Applications is Appropriate to Allow For Completion of FBI Name Checks or to Allow for USCIS's Adjudicatory Expertise after Name Checks are Completed.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Court May, and Should Remand To USCIS Without Instructions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Severance of Individual 1447(b) Claims Is Appropriate Where Defendants Would Be Prejudiced.. . . . . . . . . . . . . . . . . . . . . . . . . 6

C. D.

Plaintiffs' Fail to State Claim for Which Relief Can be Granted Under the Administrative Procedures Act .. . . . . . . . . . . . . . . . . . . . . 7 A. B. 8 U.S.C. § 1447(b) Provides An "Adequate Remedy in Court" and Precludes Review Under the Administrative Procedures Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Alternatively, Plaintiffs Fail to State that USCIS or the FBI Have Mandatory Duties Regarding the Pace of Adjudication of Applications, Completion of Name Checks, or the Pace of Completion of Name Checks.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 As a Final Alternative, the Court May Dismiss Plaintiffs' APA Claims If It Finds that Defendants' Actions are Reasonable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

C.

V. VI.

Plaintiffs Fail to State a Cause of Action Under the APA's Notice and Comment Requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Plaintiffs Fail to State a Liberty or Property Interest in Timely Adjudication of Their Naturalization Application. . . . . . . . . . . . . . . . . . . . . . 13 Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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TABLE OF AUTHORITIES FEDERAL CASES Abbas v. Gonzales, No. 06-4553 (N.D. Ill. August 24, 2006). . . . . . . . . . . . . . . . . . . . . . . . 7 Antonishin v. Keisler, No. 06-CV-2518 (E.D. Ill. Sept. 20, 2007). . . . . . . . . . . . . . . 4, passim Alkenani v. Barrows,
356 F. Supp. 2d. 652 (N.D. Tex. 2005) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Alsamir v. USCIS, No. 0-cv-07151-WDM-BNB, 2007 WL 1430719 (D. Colo. May 14, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Bown v. Massachusetts, 487 U.S. 879 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Center for Biological Diversity v. Veneman, 394 F.3d 1108 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Coughlin v. Rogers, 130 F.3d 1348 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Espin v. Gantner, 381 F. Supp. 2d 261 (S.D.N.Y. 2005). . . . . . . . . . . . . . . . . . . . . . . . . 11 Essa v. USCIS, No. 05-1449, 205 Dist. LEXIS 38803 (D. Minn. Dec. 14, 2005). . . . . . . 4 Federenko v. U.S., 449 U.S. 490 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Flagstaff Medical Center, Inc. v. Sullivan, 962 F.2d 879 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Fraga v. Smith, 607 F. Supp. 517 (D. Or. 1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Ibrahim v. Still, 2007 WL 841790 (N.D. Cal. Mar. 30, 2007). . . . . . . . . . . . . . . . . . . . . 5 INS v. Aguirre- Aguirre, 526 U.S. 415 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 INS v. Pangilinan, 486 U.S. 875 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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INS v. Ventura, 537 U.S. 12 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Khan v. Chertoff, 2006 U.S. Dist. LEXIS 48937 (D. Az. July 14, 2006). . . . . . . . . . . . . . 5 Khelifa v. Chertoff, 433 F. Supp. 2d 836 (E.D. Mich. 2006). . . . . . . . . . . . . . . . . . . . . . . . . 5 Konchitsky v. Chertoff,
No C-07-00294 RNW 2007 WL 2070325 (N.D. Cal. July 13, 2007) . . . . . . . . 11

Land v. Dollar, 330 U.S. 731 (1947). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Manzoor v. Chertoff, 472 F. Supp. 2d 801 (E.D. Va. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 4 McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S. 178 (1936). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556 (E.D.N.Y. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Paul Kadair, Inc. v. Sony Corp. of America, 694 F.2d 1017 (5th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Saleh v. Ridge, 367 F. Supp. 2d 508 (S.D.N.Y. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . 11 Shalabi v. Gonzales, 2006 WL 3032413 (E.D. Mo. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Stepchuck v. Gonzales, No C06-570RSL, 2007 WL 185013 (W.D. Wash, Jan 18, 2007). . . . 12 United States v. Fausto, 484 U.S. 439 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 United States v. Ginsberg, 243 U.S. 472 (1917). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13 United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Walji, v. Gonzales, No. 06-20937 (5th Cir. Sept. 14, 2007).. . . . . . . . . . . . . . . . . . . . 2, 5, 12
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Walters v. Reno, 143 F.3d 1032 (9th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Yakubova v. Chertoff, No. 06-CV-3203 (E.D.N.Y).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Yang. v. California Department of Social Services, 183 F.3d 953 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 FEDERAL STATUTES 5 U.S.C. 704. . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 8 U.S.C. § 1446(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 8 U.S.C. § 1447(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, passim 8 U.S.C. §1571(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 18 U.S.C. § 923(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Pub. L. No. 105-119, Title I, 111 Stat. 2448 (Nov. 26, 1997). . . . 3, 4, 10 REGULATIONS 8 C.F.R. § 335.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4 8 C.F.R. § 335.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 FEDERAL RULES OF CIVIL PROCEDURE : Fed. R. Civ. P. 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. Civ. P. 12(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Fed. R. Civ. P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Fed. R. Civ. P. 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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1

Defendants Michael Chertoff, Robert S. Mueller III, Peter D. Keisler,1 Emilio T. Gonzalez,

2 and David Still (collectively "Defendants" or "Government"), by and through their undersigned 3 counsel, hereby file their reply in support of their preceding motion to dismiss under Fed. R. Civ. 4 P. 12, or alternatively request that the Court remand this matter to the United States Citizenship 5 and Immigration Services ("USCIS"), pursuant to 8 U.S.C. § 1447(b). 6 I. 7 Plaintiffs argue that allegations "that they have sustained and will continue to sustain 8 irreparable injury unless the [C]ourt grants injunctive relief," are sufficient to state a claim for 9 injunctive relief. Plaintiffs' Opposition to Defendants' Motion to Dismiss ("Opp.") at 25. To 10 qualify for injunctive relief, the class members must demonstrate that they will sustain irreparable 11 injury and that remedies at law are inadequate. Walters v. Reno, 143 F.3d 1032, 1048 (9th Cir. 12 1998) (citation omitted). However, Plaintiffs' claims of a right to injunctive relief fail to state 13 more than mere labels, conclusions, or formulaic recitations of the elements of causes of action, 14 and thus this Court should find them insufficient to establish injury. See Bell Atlantic Corp. v. 15 Twombly, 127 S.Ct. 1955, 1965 (2007). The Court should not find that Plaintiffs' allegations of 16 irreparable injury are valid just because the Plaintiffs say so. 17 Plaintiffs allege that the named and putative class members are suffering prejudice from the 18 delay of their naturalization applications including: 1) inability to participate in civil society by 19 voting and jury service; 2) the effective inability to sponsor immediate relatives for lawful 20 permanent resident status; 3) the inability to travel freely as U.S. citizens, and 4) the harm of 21 having an uncertain status in the country they have made their home and where they have 22 established themselves as part of a community. Opp. at ¶ 97. Additional claims of individual 23 Plaintiffs include the claimed difficulty for a citizen of Afghanistan to receive a travel visa from 24 other governments, and the inability to obtain security clearances or travel abroad for extended 25 periods. Opp. at ¶¶ 48, 53. 26 27 28
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Plaintiffs Lack of Entitlement to Injunctive Relief is a Proper Issue for a Motion to Dismiss

Pursuant to Fed. R. Civ. P. 25(d)(1), Defendants substitute Peter D. Keisler, Acting Attorney General for the previously named Attorney General, Alberto Gonzales.
Reply in Support of Defendants' Motion to Dismiss C-07-3455-W HA

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Plaintiffs' claims of injury, however, are cognizable if and only if their claim is based upon

2 a clear right to be naturalized. But no alien has an absolute right to be naturalized. See United 3 States v. Ginsberg, 243 U.S. 472, 475 (1917) ("No alien has the slightest right to naturalization 4 unless all statutory requirements are complied with . . . . "); see also Federenko v. United States, 5 449 U.S. 490, 506 (1981). Plaintiffs' claimed injuries would be the same if their naturalization 6 applications were denied. 7 Even if Plaintiffs' claims are that they have a right to an adjudication of their applications

8 for naturalization, they have failed to allege any harms stemming from the length of time USCIS 9 and/or the FBI has taken to complete their investigations prior to a final adjudication. Even a 10 finding that Plaintiffs are owed a procedural Due Process right to an adjudication is not 11 determinative of their claimed ultimate right to be naturalized; thus, the harms the plaintiffs allege 12 are merely hypothetical. Alternatively, even if the Court were to find that Plaintiffs have a 13 substantive Due Process right to be naturalized -- which Defendants oppose and do not concede 14 -- Plaintiffs' allegedly irreparable harms are perfectly reparable via this Court's exercise of 15 jurisdiction under 1447(b) and the subsequent determination whether to remand the individual 16 cases to USCIS or to hold individual naturalization hearings. 17 II. 18 19 The Individual Plaintiffs' Claims Should Be Remanded to USCIS Because Adjudication of a Naturalization Application Without the Benefit of a Full and Complete Background Investigation Would be Improper and Incomplete. Defendants' Motion to Dismiss argued that Plaintiffs' claims pursuant to 8 U.S.C. §

20 1447(b) should be dismissed in accordance with the reasoning found in Walji v. Gonzales, No. 0621 20937 (5th Cir. June 19, 2007), vacated and reversed by Walji v. Gonzales, No. 06-20937, -- F.3d 22 --, 2007 WL 2685028 (5th Cir. Sept. 14, 2007).2 Additionally, Plaintiffs reliance on United States 23 v. Hovsepian, 359 F.3d 1144, 1161 (9th Cir. 2004), is misguided because Hovsepian dealt 24 primarily with the exclusivity of district court jurisdiction in the event a plaintiff established 25 jurisdiction under 8 U.S.C. § 1447(b), and its findings regarding jurisdiction are dicta. 26 Plaintiffs' suggest that the Walji opinion cited by Defendants was vacated at the time Defendants' 27 filed their Motion to Dismiss on August 31, 2007. However, pursuant to the Local Rules of the Fifth Circuit Court of Appeals, although the decision relied on by Defendants was removed from 28 publication, it was not vacated until September 14, 2007, when the Fifth Circuit granted the petition for rehearing, and overturned the panel decision.
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1 Nonetheless, even if the Court finds jurisdiction pursuant to 8 U.S.C. § 1447(b), this Court should 2 remand to USCIS and dismiss Plaintiffs individual claims under 8 U.S.C. § 1447(b) 3 Plaintiffs assert, without citation, that remand to USCIS is a question of remedy that is not

4 ripe for a decision on a motion to dismiss. Opp. at 9. However, the Court may still exercise its 5 discretion under 1447(b) to remand the individual cases to USCIS at this point in the litigation if 6 the Court would be unable to grant Plaintiffs the relief they seek. As such a remand is appropriate, 7 and the Court may act to order such remands in response to this Motion to Dismiss. Moreover, 8 contrary to Plaintiffs' assertions, nothing in the plan language precludes remand without 9 instructions. 10 11 Plaintiffs argue that the investigatory aids on which USCIS may rely when adjudicating a 12 naturalization application include only a "personal investigation," 8 U.S.C. § 1446(a), and a "full 13 criminal background check," Pub. L. No. 105-119, Title I, 111 Stat. 2448 (Nov. 26, 1997). 14 Plaintiffs further allege that neither the personal investigation nor the full criminal background 15 check may include an FBI name check because the statute does not specify what the a personal 16 investigation or full criminal background check should entail. Opp. at 7. Rather, Plaintiffs proffer 17 their own interpretation of USCIS regulations at 8 C.F.R. § 335.2(b) to suggest that USCIS is 18 limited to using fingerprint responses. Opp. at 7-8. 19 Plaintiffs, however, ignore one of the core functions of administrative agencies like USCIS 20 ­ to interpret statutes and regulations when gaps exist. This Court should afford such 21 interpretations deference where they do not conflict with existing statues or regulations. See 22 United States v. Mead Corp., 533 U.S. 218, 220 (2001) ("an agency's interpretation may merit 23 some deference whatever its form, given the `specialized experience and broader investigations 24 and information' available to the agency. . . ."), citing Skidmore v. Swift, 323 U.S. 134, 139 25 (1944); Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543 (1978). 26 Here, Plaintiffs agree that the statute does not specify what personal investigation or a full 27 criminal background check should entail, and despite Plaintiffs' opportunistic reading of USCIS 28
Reply in Support of Defendants' Motion to Dismiss C-07-3455-W HA

A.

The Requirement that Defendant USCIS Receive Completed FBI Name Checks Prior to Adjudication of Naturalization Applications is Appropriate.

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1 regulations, nothing in 8 C.F.R. § 335.2(b) precludes the interpretation of subsections (1) or (2) to 2 encompass something other than a fingerprint check. See 8 C.F.R. § 335.2(b). Accordingly, in the 3 course of carrying out its mission, USCIS interprets the scope of a personal investigation and full 4 criminal background check to necessitate the completion of, among other things, an FBI Name 5 Check. See USCIS Fact Sheet, Immigration Security Checks ­ How and Why the Process Works 6 (Exhibit 3 to Motion to Dismiss); Declaration of Jonah J. Hadary at ¶ 4 ("Hadary Decl.") (Exhibit 7 2 to Motion to Dismiss). In fact, one of the stated purposes of the 1997 mandate via 8 appropriations was to rectify a problem of naturalization applications that were approved without 9 completion of criminal background checks. 143 Cong. Rec. S11864-01 (1997) (statement of Sen. 10 Abraham). 11 Other Courts have recognized the validity of USCIS's interpretation, and found that

12 conducting a naturalization hearing without the completion of a background check "would 13 contravene Congress's intent that an FBI background check is to be completed prior to the 14 adjudication of every naturalization application." Essa v. USCIS, No. 05-1449, 205 Dist. LEXIS 15 38803, at *8 (D. Minn. Dec. 14, 2005), citing Pub. L. No. 105-119, Title I, 111 Stat. 2448 (Nov. 16 26, 1997); see also Antonishin v. Keisler, No. 06-CV-2518, slip op. at * 9 (N.D. Ill. Sept. 20, 17 2007) (Attachment A). While the plain language of Congress's mandate is only directed to 18 USCIS's adjudication of naturalization applications, it would be ill advised for courts who find 19 jurisdiction pursuant to 8 U.S.C. § 1447(b) to have hearings on naturalization applications without 20 receipt of information that USCIS deems necessary to determine an applicant's eligibility for 21 naturalization. 22 23 24 B. Remand of Individual Naturalization Applications is Appropriate to Allow for Completion of FBI Name Checks or to Allow for USCIS's Adjudicatory Expertise after Name Checks are Completed.

The vast majority of courts that addressed the option of remand in the course of considering

25 jurisdiction under 8 U.S.C. 1447(b) have concluded that remand is an appropriate course of action. 26 See Antonishin, No. 06-CV-2518, slip op. at * 9, citing Manzoor v. Chertoff, 472 F. Supp. 2d 801, 27 810 (E.D. Va. 2007). Contrary to Plaintiffs' argument, Defendants' position is appropriately 28 raised in the Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1), where 8 U.S.C. § 1447(b)
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1 grants the Court discretion to keep jurisdiction or remand, and also pursuant to Fed. R. Civ. P. 2 12(b)(6) for those named Plaintiffs whose FBI Name Checks remain pending. 3 At least one district court, addressing the issue of remand in response to a motion to

4 dismiss, found jurisdiction pursuant to 8 U.S.C. § 1447(b), remanded to USCIS, and ­ in the same 5 Order ­ dismissed the 1447(b) claim. Antonishin, No. 06-CV-2518, slip op. at ** 10, 24 6 (reasoning that "[o]nce plaintiffs' name checks are complete `there should be no impediment to 7 prompt resolution' of their applications."), quoting Walji, 2007 WL 2685028, at *6. Here, like in 8 Antonishin, there are a number of named Plaintiffs whose FBI Name Checks remain pending, 9 Plaintiffs Sapozhinkov and Ovchinnikov. Because such name checks are required prior to 10 adjudication of naturalization applications, this Court may follow Antonishin in remanding the 11 applications to USCIS to await receipt of the FBI Name Checks and concurrently dismissing those 12 Plaintiffs' claims pursuant to 8 U.S.C. § 1447(b). 13 Even where the named Plaintiffs' FBI Name Checks have been completed, the Court should

14 remand to USCIS and concurrently dismiss the Plaintiffs' claims pursuant to 8 U.S.C. § 1447(b). 15 The only impediment to the prompt resolution of those cases at this point is the fact that pursuant 16 to Hovsepian, USCIS can not adjudicate those cases until this Court has acted on Defendants' 17 Motion to Dismiss. The parties are presently conferring regarding the stipulated voluntary 18 dismissal of Plaintiffs Wang, Petrovic, Taky, and Muculicic because of the completion of those 19 Plaintiffs' FBI name checks. Thus, the only named Plaintiff whose FBI Name Check has been 20 completed and who will remain a Plaintiff is Ahmadi, who has challenged Defendant USCIS's 21 request for a second interview. See Hadary Decl. at ¶ 25. Remand of Plaintiff Ahmadi's 1447(b) 22 claim ­ and any remaining named Plaintiffs who are similar situated -- is still appropriate where 23 courts often defer to USCIS's expertise in adjudication applications for immigrant benefits, 24 including naturalization applications. See e.g., INS v. Ventura, 537 U.S. 12, 16-17 (2002); INS v. 25 Aguirre- Aguirre, 526 U.S. 415, 425 (1999); Antonishin, No. 06-CV-2518, slip op. at * 9; Ibrahim 26 v. Still, 2007 WL 841790, at * 3 (N.D. Cal. Mar. 30, 2007); Khan v. Chertoff, 2006 U.S. Dist. 27 LEXIS 48937, at * 6 (D. Az. July 14, 2006); Khelifa v. Chertoff, 433 F. Supp. 2d 836, 845 (E.D. 28 Mich. 2006).
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C.

The Court May, and Should Remand to USCIS Without Instructions.

Plaintiffs' Opposition argues that where a court decides that remand is appropriate pursuant

3 to 8 U.S.C. § 1447(b), the statute requires "remand only `with appropriate instructions.'" Opp. at 4 9 (emphasis added). Plaintiffs' interpretation of the statute is misplaced. Rather, the statute is 5 permissive, and allows the court to determine what constitutes appropriate instructions. Thus, a 6 court may determine that no instructions are appropriate. See e.g., Antonishin, No. 06-CV-2518, 7 slip op. at * 11. Here, if the Court is compelled to remand to USCIS, the Court should find that no 8 instructions are appropriate. As discussed in Section III below, Plaintiffs have failed to establish 9 that the 120-day period in 8 U.S.C. § 1447(b) is more than a jurisdictional shifting statute. 10 Plaintiffs similarly fail to support their allegation that a deadline should be imposed on the FBI 11 because of USCIS's alleged deadline. 12 Finally, the implications of remands with instructions in this case are troublesome. A

13 remand with instructions to complete the agency adjudication by an arbitrary date could create an 14 injustice. USCIS is under an obligation to reasonably evaluate the information on each applicant 15 provided by the FBI. Limiting the time to conduct such an evaluation may require USCIS and/or 16 the FBI to cut short a promising lead in an ongoing investigation. 17 18 Should the Court not defer to USCIS's reasonable interpretation of the statute, the Court 19 must either hold individual hearings for each named plaintiff, remand the individual matters to 20 USCIS for completion of the individual examinations and adjudication, or both. Plaintiffs argue 21 that the Court should not remand the matters to USCIS, but rather hold individualized hearings for 22 each plaintiff. If the Court determines that such individual hearings are necessary, the Court 23 should sever the individual plaintiffs under Fed. R. Civ. P. 21. See Coughlin v. Rogers, 130 24 F.3d 1348, 1350 (9th Cir. 1997) (finding joinder inappropriate due to unique nature of each 25 application). In determining whether severance is appropriate, a court considers: (1) whether the 26 claims arise out of the same transaction or occurrence; (2) whether the claims present common 27 questions of law or fact; (3) whether settlement of the claims or judicial economy would be 28
Reply in Support of Defendants' Motion to Dismiss C-07-3455-W HA

D.

Severance of Individual Claims Under 8 U.S.C. § 1447(b) is Appropriate Where Defendants Would be Prejudiced.

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1 facilitated; (4) whether prejudice would be avoided if severance was granted; and (5) whether 2 different witnesses and documentary proof are required for the separate claims. See Morris v. 3 Northrop Grumman Corp., 37 F. Supp. 2d 556, 580 (E.D.N.Y. 1999). 4 Here, no substantial rights of the Plaintiffs would be prejudiced by severance. Plaintiffs'

5 claims do not arise out of the same transaction or occurrence. Rather, each application is filed 6 separately and is independent from another. Moreover, what constitutes a alleged delay in 7 adjudication of one case (the very issue here) may not constitute a delay in another, and therefore 8 the claims do not involve common questions of law or fact. Id. Plaintiffs would not be prejudiced 9 by severance, as they would continue to receive the individual hearing envisioned under 8 U.S.C. § 10 1447(b). On the other hand, Defendants are prejudiced if Plaintiffs' cases are not severed, because 11 lumping all of Plaintiffs' claims into one undermines the ability to provide defenses relevant to 12 particular individual cases. Furthermore, judicial economy would be facilitated by severance due 13 to the often diverse nature of the claims. Different witnesses and documentary evidence are 14 needed to defend against different claims. See, e.g., Abbas v. Gonzales, No. 06-4553 (N.D. Ill. 15 August 24, 2006) (unpublished Memorandum Order) (Attachment B). Moreover, contrary to 16 Plaintiffs' assertion, Defendants may not be represented by the same counsel in the event the 17 individual hearings are severed. Finally, a 1447(b) hearing would not, as Plaintiffs contend, raise 18 "issues of law and fact concerning the Defendants' policies and practices regarding FBI name 19 checks." Rather, such individual hearing, should the Court not remand to USCIS, would be for 20 this Court to determine each individual's eligibility for naturalization. Thus, the Court should 21 sever the matters and either hold individual hearings for each named plaintiff, remand the 22 individual matters to USCIS for completion of the individual examinations and adjudication, or 23 both. 24 III. 25 Plaintiffs' Opposition argues that they have stated a claim for relief from unreasonable 26 delay under the Administrative Procedures Act ("APA"). Opp. at 12. However, this Court should 27 dismiss Plaintiffs' claims under the APA where Plaintiffs are unable to establish that 8 U.S.C. § 28
Reply in Support of Defendants' Motion to Dismiss C-07-3455-W HA

Plaintiffs Fail to State Claim for Which Relief Can be Granted Under the Administrative Procedures Act

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1 1447(b) does not provide an adequate remedy; and alternatively, where Plaintiffs are unable to 2 establish mandatory duties of USCIS regarding the pace of adjudication nor duties of the FBI 3 mandating completion of name checks or the pace of such completion, necessary to support 4 Plaintiffs' prayers for relief. 5 6 As stated in Defendants' Motion to Dismiss, the Administrative Procedures Act only 7 provides right of judicial review of agency action ". . . for which there is no other adequate remedy 8 in a court." 5 U.S.C. § 704. Here, that remedy is found in the availability of district court 9 jurisdiction when an application for naturalization has been pending with USCIS for more than 10 120-days after the examination. 8 U.S.C. § 1447(b). Plaintiffs contend, however, that 1447(b) 11 does not provide a remedy for systemic delay. Opp. at 13. The only controlling legal authority 12 that Plaintiffs rely on in support of their contention is McNary v. Haitian Refugee Center, Inc., 498 13 U.S. 479 (1991). 14 The statute the Court reviewed in McNary, however, was different from the statute 15 presently before the Court. In McNary, the Court considered whether a statute that provided for 16 administrative review but specifically precluded district court review was an adequate remedy in 17 court for a class action. Id. at 497-498. The fact that McNary also dealt with APA review of class 18 claims is not determinative. What is determinative is that unlike the statute in McNary, the statute 19 presently at issue, 8 U.S.C. § 1447(b), does not strip district court jurisdiction, but specifically 20 provides a basis for district court jurisdiction. 21 Thus, Plaintiffs cannot prevail on their APA claims alleging that defendants have 22 unlawfully withheld or unreasonably delayed adjudication of their applications because 8 U.S.C. § 23 1447(b), which deals specifically with naturalization applications and delay, provides an "adequate 24 remedy in court," and is the only statute under which such a claim can be asserted. See United 25 States v. Fausto, 484 U.S. 439, 448-49 (1988) (general grants of jurisdiction cannot be relied upon 26 in the face of a specific statute that confers and conditions jurisdiction); Bown v. Massachusetts, 27 487 U.S. 879, 903 (1988) ("Congress did not intend the general grant of review in the APA to 28
Reply in Support of Defendants' Motion to Dismiss C-07-3455-W HA

A.

8 U.S.C. § 1447(b) Provides An "Adequate Remedy in Court" and Precludes Review Under the Administrative Procedures Act.

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1 duplicate existing procedures for review of agency action."); Antonishin, No. 06-CV-2518, slip op. 2 at * 13, citing Alsamir v. USCIS, No. 0-cv-07151-WDM-BNB, 2007 WL 1430719, at *2 (D. Colo. 3 May 14, 2007) (concluding that the availability of s 1447(b) review precludes mandamus and APA 4 relief). Plaintiffs' reliance on Yakubova v. Chertoff, No. 06-CV-3203 (E.D.N.Y) (attached as 5 Exhibit A to Plaintiffs' Opposition to Defendants' Motion to Dimiss) is not compelling because 6 there, the court delayed ruling on a motion to dismiss plaintiffs' APA claims for purposes of 7 avoiding a waste of judicial resources. Here, the Court may dismiss where Plaintiffs have 8 established a basis to dismiss Plaintiffs' APA claims because of the exclusive remedy provided by 9 8 U.S.C. § 1447(b). 10 11 12 B. Alternatively, Plaintiffs Fail to State that USCIS or the FBI Have Mandatory Duties Regarding the Pace of Adjudication of Applications, Completion of Name Checks, or the Pace of Completion of Name Checks.

Plaintiffs' Opposition argues that USCIS is legally required to adjudicate naturalization

13 applications. Opp. at 16. Additionally, Plaintiffs argue that the APA "provides a remedy for 14 unreasonable delays in agency action even when the delayed actions are not subject to a specific 15 statutory deadline. Id. However, Plaintiffs fail to state a claim for which relief can be granted 16 when Plaintiffs seek relief in the form of actions that are not required. The Supreme Court found 17 in Norton v. Southern Utah Wilderness Alliance, that the APA does not provide federal courts with 18 oversight "over the manner and pace of agency compliance" with congressional mandates where 19 such manner or pace is not otherwise required. 542 U.S. 55, 67 (2004); see also Center for 20 Biological Diversity v. Veneman, 394 F.3d 1108, 1112 (9th Cir. 2005). The relevant provisions of 21 Plaintiffs' prayer for relief, (4) through (8), each request that the Court impose timelines on 22 Defendants actions, or declare that Defendants' failure to abide by such timelines unlawful. First 23 Amended Complaint at 30. Where the actions Plaintiffs seek to compel are not required, Plaintiffs 24 have failed to state a claim for which relief can be granted. Additionally, Defendants maintain that 25 even if the Court determines that Defendant USCIS or FBI has some mandatory temporal 26 requirement, that the requirement that name checks been completed prior to action on a 27 naturalization application would modify any temporal requirements the Court deemed mandatory. 28 Motion to Dismiss at 15-16.
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1

With regard to Defendant USCIS, Plaintiffs have not established a mandatory duty on

2 USCIS to act on a naturalization application within 120-days from the completion of an 3 examination or 180-days from receipt of an application. Plaintiffs' position that 8 U.S.C. § 4 1571(b) creates an actionable duty under the APA to take action within 180-days of receipt of an 5 application is just wrong where the controlling authority in this jurisdiction recognizes that Sense 6 of Congress resolutions, like the one codified at 8 U.S.C. § 1571(b), create no enforceable federal 7 rights. See Yang. v. California Dept. of Social Services, 183 F.3d 953, 958 (9th Cir. 1999) 8 (citations omitted). Similarly, the plain language of 8 U.S.C. § 1447(b) does not place a time limit 9 on acting on applications, but only serves as a jurisdictional provision. Compare 8 U.S.C. § 10 1447(b) ("If there is a failure to make a determination [on a naturalization application]. . . before 11 the end of the 120-day period after the date on which the examination is conducted under such 12 section, the applicant may apply to the United States district court for the district in which the 13 applicant resides for a hearing on the matter."), with 18 U.S.C. § 923(d)(2) ("The Attorney General 14 must approve or deny an application for a license [to deal or manufacture firearms] within the 6015 day period beginning on the date it is received. If the Attorney General fails to act within such 16 period, the applicant may file an action. . .") (emphasis added). Even if the Court is compelled by 17 the mandatory language of USCIS regulations at 8 C.F.R § 335.3 that require adjudication of a 18 naturalization within 120-days of an examination, those regulations have been superseded by 19 Congress's statutory mandate that USCIS may not adjudicate a naturalization application until 20 completion of a full criminal background check, which includes completion of an FBI name check. 21 Pub. L. No. 105-119, Title I, 111 Stat. 2448 (Nov. 26, 1997). 22 With regard to Defendant FBI, Plaintiffs have also failed to establish a mandatory duty that

23 the FBI complete background checks in a certain amount of time if at all. Plaintiffs offer the 24 unsupported argument that "where the FBI agrees to provide the name check service for the 25 purpose of an application process that is non-discretionary and subject to statutory time limits, the 26 FBI's actions must also be carried out with unreasonable delay. Opp. at 18. Such argument is 27 contrary to, and fails to refute Defendants' position in the Motion to Dismiss that the FBI has no 28 duty to Plaintiffs to complete background checks. Motion to Dismiss at 16. Defendants note that
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1 Judge Whyte of this Court is among those that have concluded that the FBI has no duty to 2 complete background checks. Konchitsky v. Chertoff, No C-07-00294 RNW 2007 WL 2070325, at 3 * 6 (N.D. Cal. July 13, 2007) ("[C]ourts squarely addressing the issue of whether they have 4 jurisdiction to compel the FBI to perform name checks in connection with adjustment of status 5 petitions have overwhelmingly concluded that they do not."). 6 7 This Court may dismiss Plaintiffs' APA claims if it finds that Defendants' actions are 8 reasonable. Other courts addressing this issue have found defendants' action reasonable where 9 defendants were facing a resource strain in processing the applications. See Saleh v. Ridge, 367 F. 10 Supp. 2d 508, 513 (S.D.N.Y. 2005) (finding five-year delay not an APA violation in light of 11 volume of applications); Espin v. Gantner, 381 F. Supp. 2d 261, 266 (S.D.N.Y. 2005) (three year 12 delay not unreasonable because of government's limited resources and substantial caseload); 13 Alkenani v. Barrows, 356 F. Supp. 2d. 652, 656-57 (N.D. Tex. 2005) (no unreasonable delay found 14 in naturalization context because of need to wait for completion of FBI investigation). 15 Additionally, the Court may find any alleged delays reasonable where Defendants' have refuted 16 the factual assumption of Plaintiffs' First Amended Complaint, and demonstrated that Defendants 17 are acting on Plaintiffs' applications for naturalization. 18 IV. 19 20 Plaintiffs Fail to State a Cause of Action Under the APA's Notice and Comment Requirement. Plaintiffs argue that the APA's notice and comment requirements should apply not only to C. As a Final Alternative, the Court May Dismiss Plaintiffs' APA Claims If It Finds that Defendants' Actions are Reasonable.

21 the expansion of the name check requirement to include reference files, but also to the entirety of 22 the name check requirement because the requirement is a substantive rule, rather than an 23 interpretive rule. Opp. at 20. This argument is improperly broader than that alleged in Count 24 Three of Plaintiffs' First Amended Complaint, which was concerned with only the expansion of 25 the name check program. First Amended Complaint at ¶¶ 113-14. Additionally, Plaintiffs' 26 pleadings are lacking where Plaintiffs fail to request relief pursuant to success on the merits of 27 their Third Count. First Amended Complaint at 30-31. If Plaintiffs do not seek relief on the basis 28 of this Count, then the Court should dismiss Plaintiffs claim.
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1

Even if Plaintiffs amend their procedural defects, Plaintiffs would still be unable to

2 maintain a cause of action under the APA's notice and comment requirement. First, numerous 3 courts addressing claims under 8 U.S.C. § 1447(b) have found that the FBI name check may 4 properly be read into the requirement of a full background check. See e.g., Walji, 2007 WL 5 2685028, *5-6 ("We are mindful of Congress's intent that an FBI background check is to be 6 completed before the adjudication of every naturalization application."); Stepchuck v. Gonzales, 7 No C06-570RSL, 2007 WL 185013, at *2 (W.D. Wash, Jan 18, 2007); Shalabi v. Gonzales, 2006 8 WL 3032413, at *2 (E.D. Mo. 2006). 9 Second, USCIS's determination that an FBI name check should be included as part of a

10 "full criminal background check" or personal investigation is internal policy that "did not create a 11 new law, right, or duty." Antonishin, No. 06-CV-2518, slip op. at * 19 (finding that USCIS's 12 inclusion of FBI name checks was interpreting the scope of the "full criminal background check."). 13 Plaintiffs' reliance on Flagstaff Medical Center, Inc. v. Sullivan, 962 F.2d 879, 886 (9th Cir. 1992) 14 (crux of determination whether a rule was interpretative "focus[ed] primarily on the rules 15 themselves and their impact on agency decisionmaking, rather than their impact on the public.") 16 (citations omitted) (emphasis added), and Fraga v. Smith, 607 F. Supp. 517, 23 (D. Or. 1985) 17 (requiring notice where applicants were not informed of additional documentary evidence burden), 18 is thus inapposite. 19 Here, such internal policy changes had no substantive impact on agency decisionmaking.

20 USCIS adjudications still apply the same standards to naturalization applicants; they simply have 21 additional tools at their disposal to determine whether applicants can meet the requisite standards. 22 Moreover, applicants incur no additional burden in the application process other than having to 23 wait for extended periods of time in limited circumstances. However, unlike in Fraga, the 24 standards that are applied to applications for naturalization are unchanged. Thus, where the Court 25 may find that Defendants' policies regarding FBI Name Checks are interpretive in nature, the 26 Court may dismiss Plaintiffs' claims under the APA's notice and comment requirements. 27 28
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1 V. 2

Plaintiffs Fail to State a Liberty or Property Interest in Timely Adjudication of Their Naturalization Applications. Plaintiffs' opposition focuses on a line of cases that suggest a liberty interest is created

3 when statue or regulation set forth "a specific directive to the decisionmaker that mandates a 4 particular outcome if the substantive predicates have been met." Opp. at 22 (citations omitted). 5 Each of the cases Plaintiff relies upon defines some inherent liberty interest at stake, whether it be 6 freedom, various other prisoners rights, or a property right to employment. However, Plaintiff 7 provides no authority to establish a liberty or property interest in the timely adjudication or final 8 determination on a naturalization application. 9 In contrast with the authority Plaintiff relies upon, Plaintiff does not respond to 10 Defendants' authority that questions the right to naturalization. See United States v. Ginsberg, 243 11 U.S. 472, 475 (1917) (there is no "right to naturalization unless all statutory requirements are 12 complied with); see also INS v. Pangilinan, 486 U.S. 875, 884 (1988) ("An alien who seeks 13 political rights as a member of this Nation can rightfully obtain them only upon terms and 14 conditions specified by Congress."). 15 Even if the Court finds that Plaintiffs have properly asserted a liberty or property interest, 16 Plaintiffs' Due Process claim fails to state a claim for which relief can be granted because, as 17 discussed in the preceding sections, Plaintiffs have been afforded the process intended by 18 Congress, and they seek to continue to exercise the right to that process in this case through their 19 claims under 8 U.S.C. § 1447(b). 20 VI. 21 When considering a motion to dismiss pursuant to Rule 12, the district court may review 22 evidence outside the pleadings to resolve factual disputes concerning the existence of jurisdiction 23 without converting the motion to one for summary judgment. See, e.g., Land v. Dollar, 330 U.S. 24 731, 735 n. 4 (1947) ("when a question of the District Court's jurisdiction is raised. . . the court 25 may inquire by affidavits or otherwise, into the facts as they exist."). Because the party invoking 26 jurisdiction bears the burden of establishing its requirements, Lujan v. Defenders of Wildlife, 504 27 U.S. 555, 559-60 (1992), the plaintiff must come forward with "competent proof supporting its 28
Reply in Support of Defendants' Motion to Dismiss C-07-3455-W HA

Standard of Review.

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1 jurisdictional allegations. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 2 (1936). 3 Defendants' affidavits assist the Court in determining whether plaintiffs have indeed

4 provided sufficient factual allegations to support their assorted claims. The affidavits provide the 5 parameters of the process, and refute Plaintiffs claim that the alleged delays are not indefinite. 6 Therefore, Defendants' affidavits are appropriate for consideration at this state of the litigation. 7 If the Court does not accept Defendants' reasoning regarding the purpose of Defendant's

8 affidavits, the Court need not, as Plaintiffs suggest, covert the motion into a summary judgment 9 motion. The Court may also rule on the motion to dismiss without considering the content of the 10 affidavits. In the event the Court converts Defendants' Motion to Dismiss to a summary judgment 11 motion, the Court need not provide Plaintiffs an opportunity for discovery if the Court finds that 12 the points of Plaintiffs' factual contention are not relevant to the matters at bar. See First Nat'l 13 Bank of Arizona v. Cities Service Co., 391 U.S. 253, 298 (1968) (A party has no absolute right to 14 discovery); Paul Kadair, Inc. v. Sony Corp. of America, 694 F.2d 1017, 1029 (5th Cir. 1983) 15 (courts will "not open the discovery net to allow a fishing expedition."). 16 17 CONCLUSION Plaintiffs' First Amended Complaint should be dismissed for lack of jurisdiction in part,

18 and for failure to state a claim in part. In the alternative, the Court should find that Plaintiffs' 19 claims under 8 U.S.C. § 1447(b) are improperly joined, and to the extent that this Court takes any 20 action, it should at most remand the individual cases to the USCIS without instructions. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28
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1 2 3 4 5 6 7 8 9 Dated: September 27, 2007 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Reply in Support of Defendants' Motion to Dismiss C-07-3455-W HA

Respectfully submitted, SCOTT N. SCHOOLS United States Attorney JOANN M. SWANSON Assistant United States Attorney Chief, Civil Division EDWARD A. OLSEN Assistant United States Attorney PETER D. KEISLER United States Department of Justice Assistant Attorney General, Civil Division ELIZABETH J. STEVENS Senior Litigation Counsel By: /s/ JEFFREY S. ROBINS Trial Attorney

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1 2 Case No. C-07-3455-WHA

CERTIFICATE OF SERVICE

I hereby certify that on this 27th day of September 2007, one copy of the foregoing Reply in Support of Defendants' Motion to Dismiss was served on counsel for Plaintiffs via the district 4 court ECF system which will send notification of such filing to the following ECF filers: 3 5 Julia Harumi Mass [email protected] 6 Alan L. Schlosser [email protected] 7 Cecillia D. Wang [email protected] 8 ACLU Foundation of Northern California Lucas Guttentag 9 [email protected] ACLU Immigrants' Rights Project 10 Christopher Joren Lyons [email protected] 11 Asian Law Caucus Edward A. Olsen 12 [email protected] United States Attorney's Office 13 Elizabeth J. Stevens [email protected] 14 Department of Justice, Office of Immigration Litigation In addition, I hereby certify that on this 27th day of September 2007, true and correct copies of the Reply in Support of Defendants' Motion to Dismiss were served by Federal Express 16 next-day delivery on the following non-ECF filers: 15 17 Sin Yen Ling Asian Law Caucus 18 939 Market Street, Suite 201 San Francisco, CA 94103 19 20 21 22 23 24 25 26 27 28
Reply in Support of Defendants' Motion to Dismiss C-07-3455-W HA

Todd Gallinger Council on American-Islamic Relations (CAIR) 3000 Scott Boulevard, Suite 212 Santa Clara, CA 95054 /S/ JEFFREY S. ROBINS Trial Attorney Office of Immigration Litigation Civil Division U.S. Department of Justice Post Office Box 878, Ben Franklin Station Washington, D.C. 20044

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