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CECILLIA D. WANG (CSB #187782) LUCAS GUTTENTAG (CSB #90208) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 Email: [email protected] Attorneys for Plaintiffs-Petitioners *Additional counsel listed on following page

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ALIA AHMADI, VLADIMIR MIKULICIC, IGOR OVCHINNIKOV, BILJANA PETROVIC, SERGEI SAPOZHNIKOV, EIMAN TAKY and YAN WANG, Case No. 07-CV-3455-WHA Plaintiffs-Petitioners, v. MICHAEL CHERTOFF, U.S. Secretary of Homeland Security; ROBERT S. MUELLER III, Director of the Federal Bureau of Investigation; PETER KEISLER, Acting Attorney General of the United States; EMILIO T. GONZALEZ, Director, U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services; DAVID STILL, District Director, U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services, San Francisco District, Defendants-Respondents. MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS Judge: Hon. William H. Alsup Date: October 11, 2007 Time: 8:00 a.m.

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Additional counsel: JULIA HARUMI MASS (CSB #189649) ALAN L. SCHLOSSER (CSB #49957) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437 SIN YEN LING* JOREN LYONS (CSB #203403) ASIAN LAW CAUCUS 939 Market Street, Suite 201 San Francisco, CA 94103 Telephone: (415) 896-1701 Facsimile: (415) 896-1702 *Application for admission pro hac vice forthcoming

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Of counsel: TODD GALLINGER (CSB #238666) COUNCIL ON AMERICAN-ISLAMIC RELATIONS (CAIR) ­ SAN FRANCISCO BAY AREA 3000 Scott Boulevard, Suite 212 Santa Clara, CA 95054 Telephone: (408) 986-9874 Facsimile: (408) 986-9875

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TABLE OF CONTENTS TABLE OF AUTHORITIES ...........................................................................................................v INTRODUCTION ...........................................................................................................................1 LEGAL FRAMEWORK .................................................................................................................1 ARGUMENT...................................................................................................................................2 I. DEFENDANTS' MOTION ARGUES THE MERITS OF PLAINTIFFS' FACTUAL ASSERTIONS AND LEGAL CLAIMS AND THEREFORE MUST BE DENIED UNDER RULE 12(B)(6). ....................2 UNDER CONTROLLING NINTH CIRCUIT AUTHORITY, THIS COURT HAS JURISDICTION OVER THE NAMED PLAINTIFFS' CLAIMS FOR DISTRICT COURT NATURALIZATION UNDER 8 U.S.C. § 1447(b). .....................................................................................................3 The District Court Has Jurisdiction Under 8 U.S.C. § 1447(b) Beginning 120 Days After the Naturalization "Examination," Which the Ninth Circuit, the Fifth Circuit, and the Majority of District Courts Have Held To Mean the Naturalization Interview. .....................................................................................................4 Congress Has Never Provided for an FBI Name Check and Did Not Intend for the Government To Evade District Court Jurisdiction Under Section 1447(b) by Indefinitely Delaying Completion of an FBI Name Check or Any Other Investigative Procedure. ....................................................................................................5

A REMAND WITHOUT INSTRUCTION OR DEADLINE WOULD BE CONTRARY TO 8 U.S.C. § 1447(B)....................................9 PLAINTIFFS' CLAIMS ARE PROPERLY JOINED UNDER FEDERAL RULE OF CIVIL PROCEDURE 20...................................................11 PLAINTIFFS STATE A CLAIM FOR RELIEF FROM UNREASONABLE DELAY UNDER THE ADMINISTRATIVE PROCEDURES ACT.............................................................................................12 The First Amended Complaint Alleges Facts to Support a Finding of Unreasonable Delay. ................................................................12 Defendants' Procedural Arguments Are Unavailing. ................................13 1. Section 1447(b) Does Not Provide a Remedy for Systemic Delay. .............................................................................13 Review of Unreasonable Delay under § 706 Is Available Without Final Agency Action. ......................................15 Plaintiffs Seek to Compel Legally Required Agency Action.............................................................................................16 iii
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C.

Plaintiffs State a Claim that CIS and FBI Actions Are Unreasonably Delayed. ..............................................................................18

PLAINTIFFS STATE A CAUSE OF ACTION UNDER THE APA'S NOTICE AND COMMENT REQUIREMENT. ...................................................20 PLAINTIFFS HAVE A LIBERTY OR PROPERTY INTEREST IN A TIMELY ADJUDICATION OF THEIR NATURALIZATION APPLICATION AND IN BEING NATURALIZED. ...........................................22 PLAINTIFFS' ENTITLEMENT TO INJUNCTIVE RELIEF IS NOT A PROPER ISSUE FOR A MOTION TO DISMISS............................................24

CONCLUSION..............................................................................................................................25 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv
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TABLE OF AUTHORITIES FEDERAL CASES Alkenani v. Barrows 356 F. Supp. 2d 652 (N.D. Tex. 2005) ..............................................................................15 Al-Kudsi v. Gonzales No. CV-05-1584, 2006 WL 752556 (D. Or. Mar. 22, 2006).............................................10 Arpin v. Santa Clara Valley Transportation Agency 261 F.3d 912 (9th Cir. 2001) .........................................................................................3, 19 Aslam v. Gonzales No C06-614, 2006 WL 3749905 (W.D. Wash. Dec. 19, 2006).........................................10 Astafieva v. Gonzales No C06-04820, 2007 WL 1031333 (N.D. Cal. Apr. 3, 2007) ...........................................10 In re Barr Laboratories, Inc. 930 F.2d 72 (D.C.Cir. 1991) ........................................................................................16, 19 Board of Pardons v. Allen 482 U.S. 369 (1987)...........................................................................................................23 Board of Regents v. Roth 408 U.S. 564 (1972)...........................................................................................................22 Bell Atlantic Corp. v. Twombly __ U.S. __, 127 S. Ct. 1955 (2007)............................................................................2, 3, 25 Bennett v. Spear 520 U.S. 154 (1997)...........................................................................................................16 Brower v. Evans 257 F.3d 1058 (9th Cir. 2001) .....................................................................................12, 17 Carlo v. City of Chino 105 F.3d 493 (9th Cir. 1997) .............................................................................................22 Chrysler Corp. v. Brown 441 U.S. 281 (1979)...........................................................................................................21 Conn. Board of Pardons v. Dumschat 452 U.S. 458 (1981)...........................................................................................................23 Coughlin v. Rogers 130 F.3d 1348 (9th Cir. 1997) ...........................................................................................11 Danilov v. Aguirre 370 F. Supp. 2d 441 (E.D. Va. 2005) ................................................................................14 Flagstaff Medical Center, Inc. v. Sullivan 962 F.2d 879 (9th Cir. 1992) .............................................................................................20 v
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Forest Guardians v. Babbitt 164 F.3d 1261 (1998)...................................................................................................16, 17 Fraga v. Smith 607 F. Supp. 517 (D. Or. 1985) .........................................................................................21 Gilligan v. Jamco Development Corp. 108 F.3d 246 (9th Cir. 1997) ...............................................................................................3 Greenholtz v. Nebraska Penal Inmates 442 U.S. 1 (1979)...............................................................................................................23 Ky. Department of Corrections v. Thompson 490 U.S. 454 (1989)...........................................................................................................22 League to Save Lake Tahoe v. Tahoe Regional Planning Agency 558 F.2d 914 (9th Cir. 1977) .............................................................................................12 Liberty Fund, Inc. v. Chao 394 F. Supp. 2d 105 (D.D.C. 2005) ...................................................................................19 Mashpee Wampanoag Tribal Council, Inc. v. Norton 336 F.3d 1094 (D.C. Cir. 2003) .........................................................................................19 McNary v. Haitian Refugee Center, Inc. 498 U.S. 479 (1991)...........................................................................................................14 McQuillion v. Duncan 306 F.3d 895 (9th Cir. 2002) .............................................................................................22 Medina v. Argent Mortgage Co. No. 05-CV-2905, 2006 WL 1305230 (N.D. Cal. May 11, 2006)......................................12 Mostovoi v. Sec'y of Dep't of Homeland Security No. 06 Civ. 6388 (GEL), 2007 WL 1610209 (S.D.N.Y. June 4, 2007) ............................10 Norton v. Southern Utah Wilderness Alliance 542 U.S. 55 (2004).................................................................................................15, 16, 17 Olim v. Wakinekona 461 U.S. 238 (1983).....................................................................................................22, 24 Oregon Natural Desert Association v. U.S. Forest Service 465 F.3d 977 (9th Cir. 2006) .............................................................................................16 Roberts v. Spalding 783 F.2d 867 (9th Cir. 1986) .............................................................................................22 Safe Air for Everyone v. Meyer 373 F.3d 1035 (9th Cir. 2004) .............................................................................................3 Said v. Gonzales No. C06-986P, 2006 WL 2711765 (W.D. Wash. Sept. 21, 2006).....................................10 vi
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Sandin v. Connor 515 U.S. 472 (1995)...........................................................................................................22 San Francisco BayKeeper v. Whitman 297 F.3d 877 (9th Cir. 2002) .............................................................................................16 Santillan v. Gonzalez 388 F. Supp. 2d 1065 (N.D. Cal. 2005) .............................................................................17 Scheuer v. Rhodes 416 U.S. 232 (1974).......................................................................................................3, 25 Singh, 470 F. Supp. 2d at 1067-71.....................................................................................17, 18, 19 Steisberg v. State of Calif. 80 F.3d 353 (9th Cir. 1996) ...............................................................................................23 Sweirkiewicz v. Sorema N.A. 534 U.S. 506 (2002).............................................................................................................3 Telecommunications Research & Action Ctr. V. FCC ("TRAC") 750 F.2d 70 (D.C. Cir. 1984) .................................................................................12, 14, 17 Tutun v. United States 270 U.S. 568 (1926)...........................................................................................................23 United States v. Ginsberg 243 U.S. 472 (1917)...........................................................................................................24 United States v. Hovsepian 359 F.3d 1144 (9th Cir. 2004) .........................................................................................4, 9 U.S. v. Fausto 484 U.S. 439 (1988)...........................................................................................................15 Valdez v. Rosenbaum 302 F.3d 1039 (9th Cir. 2002) ...........................................................................................22 W. Watersheds Project v. Matejko 468 F.3d 1099 (9th Cir. 2006) ...........................................................................................17 Walji v. Gonzales, No. 06-20937 __ F.3d __, 2007 WL 2685028 (5th Cir. Sept. 14, 2007) .......................................4, 6, 9,13 Walji v. Gonzales No. 06-20937, slip op., (5th Cir. June 19, 2007) (vacated and rev'd on reh'g)...................3 Whitman v. America Trucking Association 531 U.S. 457 (2001)...........................................................................................................16 Yakubova v. Chertoff No. 06-CV-3203, slip op., (E.D.N.Y.) (copy attached as Exhibit A) ................................15

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FEDERAL STATUTES 8 U.S.C. § 1421(c) .........................................................................................................................24 8 U.S.C. § 1423................................................................................................................................1 8 U.S.C. § 1427(a)-(c)......................................................................................................................1 8 U.S.C. § 1427(d) ...........................................................................................................................1 8 U.S.C. § 1445................................................................................................................................1 8 U.S.C. § 1446(a) .......................................................................................................................2, 6 8 U.S.C. § 1446(b) ...........................................................................................................................2 8 U.S.C. § 1446(d) .........................................................................................................................23 8 U.S.C. § 1447(b) ............................................................................................................. 2, passim 8 U.S.C. § 1571..........................................................................................................................2, 17 5 U.S.C. § 552(a) ...........................................................................................................................21 5 U.S.C. § 553 .........................................................................................................................20, 21 5 U.S.C. § 553(b) ...........................................................................................................................21 5 U.S.C. § 553(b)(3) ......................................................................................................................20 5 U.S.C. § 555 ...............................................................................................................................18 5 U.S.C. § 702 ...............................................................................................................................12 5 U.S.C. § 706 ...............................................................................................................................16 5 U.S.C. § 706(1) ...........................................................................................................................15 63 Fed. Reg. 12,987 (March 17, 1998) ..........................................................................................21 28 U.S.C. § 1331............................................................................................................................15 Pub. L. No. 105-119, Tit. I, 111 Stat. 2440, 2448 (Nov. 26, 1997).................................................7 FEDERAL RULES AND REGULATIONS 8 C.F.R. § 310.3 ...............................................................................................................................5 8 C.F.R. § 312.2(c)...........................................................................................................................5 8 C.F.R. § 312.5 ...............................................................................................................................5 8 C.F.R. § 320.4 ...............................................................................................................................5 viii
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8 C.F.R. § 322.4 ...............................................................................................................................5 8 C.F.R. §§ 334.1, 334.2 ..................................................................................................................1 8 C.F.R. § 334.4 ...............................................................................................................................5 8 C.F.R. § 335.1 ...............................................................................................................................2 8 C.F.R. § 335.2 .......................................................................................................................2, 5, 7 8 C.F.R. § 335.2(b) ..................................................................................................................2, 7, 8 8 C.F.R. § 335.3 .........................................................................................................................2, 17 8 C.F.R. § 335.3(a).....................................................................................................................1, 23 8 C.F.R. § 335.6 ...............................................................................................................................5 Fed. R. Civ. P. 8(a)(2)......................................................................................................................3 Fed. R. Civ. P. 12(b) ......................................................................................................................19 Fed. R. Civ. P. 20(b) ......................................................................................................................12 Fed. R. Civ. P. 21...........................................................................................................................11 Fed. R. Civ. P. 42(b) ......................................................................................................................11 OTHER AUTHORITIES 56 Fed. Reg. 50,475 (Oct. 7, 1991)................................................................................................21 60 Fed. Reg. 38,371 (July 26, 2005)..............................................................................................21 135 Cong. Rec. H4539-02, 4542 ...............................................................................................9, 10

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INTRODUCTION This proposed class action seeks a remedy to the systemic and unreasonable delays in Defendants' processing of naturalization applications. Those unlawful delays are caused by Defendants' policy and practice of indefinite and prolonged delays in an "FBI name check" procedure that has never been required or even authorized under statute or regulation. As a result of Defendants' policies and practices, Plaintiffs and other members of the proposed class are suffering enormous prejudice, while they wait indefinitely to pledge their allegiance to this nation after contributing to it for many years as lawful permanent residents. Defendants move to dismiss all of Plaintiffs' claims. The motion to dismiss is contrary to settled Ninth Circuit and Supreme Court precedent. In addition, Defendants' motion relies upon extrinsic evidence to dispute Plaintiffs' allegations, which is improper under Federal Rule of Civil Procedure 12(b)(6). The motion to dismiss should be denied in its entirety. LEGAL FRAMEWORK Under the Immigration and Nationality Act, an applicant for naturalization must meet specified requirements. First, an applicant must be a lawful permanent resident of at least five years' standing and meet certain residence and continuous physical presence requirements. 8 U.S.C. § 1427(a)-(c). Second, the applicant must be a person of good moral character. 8 U.S.C. § 1427(d). And third, unless the applicant obtains a waiver due to disability or age, the applicant must demonstrate an understanding of the English language and U.S. history and principles of government. 8 U.S.C. § 1423. If the applicant complies with these statutory requirements, naturalization regulations require that the application for naturalization shall be granted. 8 C.F.R. § 335.3(a) ("The Service officer shall grant the application if the applicant has complied with all requirements for naturalization under this chapter.") (emphasis added). The naturalization applicant demonstrates compliance with the three statutory requirements through a process set forth in the immigration statute and regulations. The applicant first submits an application for naturalization, known as a Form N-400. 8 U.S.C. § 1445; 8 C.F.R. §§ 334.1, 334.2. The applicant also must appear for an interview, referred to in 1
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the statute and regulations as an "examination," before a CIS officer. 8 U.S.C. § 1446(b); 8 C.F.R. § 335.2. While the naturalization application is pending, CIS may conduct a "personal investigation" of the applicant in the "vicinity or vicinities" in which the applicant has lived and worked. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1. Pursuant to regulation, the "investigation shall consist, at a minimum, of a review of all pertinent records, police department checks, and a neighborhood investigation," although the last procedure may be waived by CIS. 8 C.F.R. § 335.1. A separate regulation requires CIS to complete a "criminal background check" prior to the naturalization examination. 8 C.F.R. § 335.2(b). As set forth below in Part II(B), the "criminal background check" consists solely of a fingerprint-based criminal records check. Contrary to Defendants' contention, and as set forth below, nothing in any of the naturalization regulations or statutes requires the FBI name check at issue in this lawsuit. The naturalization statutes and regulations state in clear terms that CIS should complete the naturalization process and render a final decision within 120 days of the naturalization examination. 8 U.S.C. § 1447(b); 8 C.F.R. § 335.3. Further, Congress has expressed its intent that naturalization applications, like other applications for immigration benefits, should be decided within 180 days of submission of the application. 8 U.S.C. § 1571. ARGUMENT I. DEFENDANTS' MOTION ARGUES THE MERITS OF PLAINTIFFS' FACTUAL ASSERTIONS AND LEGAL CLAIMS AND THEREFORE MUST BE DENIED UNDER RULE 12(B)(6). Defendants devote much of their motion and accompanying declarations to asserting the reasonableness of their actions and disputing the merits of Plaintiffs' allegations and claims. Mot. to Dismiss ("MTD") at 3-5, 9-11, 17-19, 22-23. Under Federal Rule of Civil Procedure 12(b)(6), however, the Court's consideration of the motion is limited to whether the facts alleged, if true, would entitle plaintiffs to some form of legal remedy. In order to survive a motion to dismiss for failure to state a claim, plaintiffs need only plead a "cognizable legal theory," with facts sufficient to "raise a right to relief above a speculative level." Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1964-65 (2007) (citations omitted). Allegations 2
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in the complaint are assumed to be true and "a well pleaded complaint may proceed even if it appears that `a recovery is very remote and unlikely.'" Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Rule 12(b)(6) motions are viewed with "disfavor" and "rarely granted." Gilligan v. Jamco Development Corp., 108 F.3d 246, 249 (9th Cir. 1997). Under these standards, Plaintiffs' First Amended Complaint ("FAC") more than meets the requirements of a "short and plain statement of the claim showing that the pleader is entitled to relief." Sweirkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Fed. R. Civ. P. 8(a)(2)). Unless the court converts the Rule 12(b)(6) motion into a summary judgment motion, or the defense is apparent from matters of which a court may take judicial notice, courts may not consider material outside the complaint in ruling on a Rule 12(b)(6) motion. Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912, 925 (9th Cir. 2001). Thus the declarations filed in support of defendants' motions should not be considered by the Court.1 In the event the Court chooses to consider the proffered evidence and treat the motion as one for summary judgment, Plaintiffs must be provided an opportunity to discover and present evidence relevant to the motion.2 II. UNDER CONTROLLING NINTH CIRCUIT AUTHORITY, THIS COURT HAS JURISDICTION OVER THE NAMED PLAINTIFFS' CLAIMS FOR DISTRICT COURT NATURALIZATION UNDER 8 U.S.C. § 1447(b). Defendants argue that this Court does not have jurisdiction over the named Plaintiffs' claims for district court adjudication of their naturalization applications under 8 U.S.C. § 1447(b). In doing so, Defendants rely upon a Fifth Circuit case, Walji v. Gonzales, No. 0620937 (5th Cir. June 19, 2007) (see Attachment A, Decl. of Jeffrey S. Robins), that had already been vacated pending rehearing at the time Defendants filed their motion to dismiss. The Fifth
1

While extrinsic facts may be introduced in a "factual attack" on jurisdiction under Rule 12(b)(1), in this case, defendants mount purely legal arguments in their jurisdictional challenges. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The declarations submitted in support of defendants' motion therefore should be disregarded in their entirety. 2 Plaintiffs dispute many of the factual assertions made in defendants' declarations and exhibit, but do not respond by filing declarations of their own due to defendants' styling of the motion as one made under Rule 12 and the need for discovery prior to a full presentation of evidence. Plaintiffs expressly reserve the right to present contradictory evidence and to object to the form of defendants' evidence if such evidence is to be considered by the Court. 3
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Circuit has since reversed itself and rejected the government's position. Walji v. Gonzales, No. 06-20937, __ F.3d __, 2007 WL 2685028 (5th Cir. Sept. 14, 2007). Under the new Walji decision ­ and more important, under the controlling Ninth Circuit authority, United States v. Hovsepian, 359 F.3d 1144, 1161 (9th Cir. 2004) ­ there is no question that this Court has jurisdiction to decide the named Plaintiffs' claims for naturalization under 8 U.S.C. § 1447(b). A. The District Court Has Jurisdiction Under 8 U.S.C. § 1447(b) Beginning 120 Days After the Naturalization "Examination," Which the Ninth Circuit, the Fifth Circuit, and the Majority of District Courts Have Held To Mean the Naturalization Interview.

All of the named Plaintiffs passed their naturalization examinations more than 120 days 9 ago. FAC ¶¶ 14-20. Indeed, all of them passed their naturalization examinations more than two 10 years ago, and six of the seven passed their examinations more than three years ago. Id. Thus, 11 under 8 U.S.C. § 1447(b), each named Plaintiff may be naturalized by this Court. Section 12 1447(b) provides that if CIS fails to make a determination on an application within 120 days of 13 "the date on which the examination is conducted," the Court "has jurisdiction over the matter and 14 may either determine the matter or remand the matter, with appropriate instructions, to the 15 Service to determine the matter." In Hovsepian, the Ninth Circuit held en banc that "8 U.S.C. § 16 1447(b) requires the INS to make a decision regarding a naturalization application within 120 17 days of the INS's initial interview of the applicant." 359 F.3d at 1161 (emphasis added). The 18 Fifth Circuit followed suit, exhaustively analyzing 8 U.S.C. § 1447(b) and joining the 19 overwhelming majority of district courts in reaching its conclusion. As the Fifth Circuit 20 explained, "the statute's language that the 120-day period begins to run after `the date on which 21 the examination is conducted,' 8 U.S.C. § 1447(b), `contemplates that the examination occurs on 22 23 24 25 26 27 28 Defendants also cite five district court decisions holding that 8 U.S.C. § 1447(b) jurisdiction is not triggered until after the FBI name check is completed. MTD at 7 n.5. However, Defendants fail to mention that the overwhelming majority of district courts have reached the opposite conclusion and have held that district courts have jurisdiction beginning 120 days after the naturalization interview. See Walji, 2007 WL 2685028 at *2 (noting that "a handful of district courts have agreed with government's interpretation, while "the majority of courts" have concluded that "examination" refers to a discrete event, i.e., the naturalization interview); Mostovoi v. Sec'y of Dep't of Homeland Security, No. 06 Civ. 6388 (GEL), 2007 WL 1610209 at 4
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a particular, identifiable date.'" Walji, 2007 WL 2685028 at *3 (citations omitted).3

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The naturalization regulations further support the prevailing interpretation that the word "examination" refers to the naturalization interview. The key regulation describing the naturalization "examination," 8 C.F.R. § 335.2 (titled "Examination of the applicant"), refers to the "examination" as a discrete event. Section 335.2(a) provides that each applicant "shall appear in person before a Service officer designated to conduct examinations" and that the applicant may request the presence of an attorney at the "examination." Section 335.2(c) provides that the applicant "shall be questioned, under oath or affirmation," at the examination, and that the officer "shall maintain, for the record, brief notations of the examination for naturalization," which "[a]t a minimum, ... shall include a record of the test administered to the applicant on English literacy and basic knowledge of the history and government of the United States."4 Thus, the "examination" cannot refer to an ongoing investigative process, as Defendants claim here. B. Congress Has Never Provided for an FBI Name Check and Did Not Intend for the Government To Evade District Court Jurisdiction Under Section 1447(b) by Indefinitely Delaying Completion of an FBI Name Check or Any Other Investigative Procedure.

The government asks this Court to ignore the controlling decision in Hovsepian and the reasoning of the majority of other courts on the alternative ground that "because Congress understood a completed criminal background check as a precondition to an interview, and the *2 & n.3 (S.D.N.Y. June 4, 2007) (same). Walji cites 27 representative district court decisions holding that the 120-day period under 8 U.S.C. § 1447(b) begins to run at the time of the naturalization interview, rather than upon completion of an investigation. 2007 WL 2685028 at *2 n.5.
4

Other regulations also make it abundantly clear that the naturalization "examination" refers to the applicant's interview. See 8 C.F.R. § 335.6 (describing consequences of applicant's failure to appear "for the examination"); 8 C.F.R. § 310.3 (providing that applicant may elect "at the time of filing of, or at the examination on, the application" to have the citizenship oath administered by public ceremony or by a court); 8 C.F.R. § 312.2(c) (referring to "[t]he examination of an applicant's knowledge of the history and form of government of the United States"); 8 C.F.R. § 312.5 (providing that if applicant "fails the English literacy or history and government test at the first examination," he will "be afforded a second opportunity to pass the test(s) within 90 days after the first examination"); 8 C.F.R. § 320.4 (enumerating persons who "must appear for examination" for derivative naturalization of child born outside United States); 8 C.F.R. § 322.4 (same); 8 C.F.R. § 334.4 (establishing procedure when applicant is "unable, because of sickness or other disability, to appear for the initial examination on the application or for any subsequent interview"). 5
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interview as a precondition to the running of the 120-day clock, it follows that the completed criminal background check is also a precondition to the running of the 120-day clock." MTD at 7 (citing vacated original panel decision in Walji v. Gonzales). That argument was rejected by the Fifth Circuit in Walji, 2007 WL 2685028 at *5, and it fails for two reasons. First, as set forth above, Congress clearly expressed its intent through the plain language of 8 U.S.C. § 1447(b). Nothing in 8 U.S.C. § 1447(b) conditions the grant of district court jurisdiction on completion of an FBI name check or any event other than the passage of 120 days from the time of the examination. Thus, Defendants' argument is simply contrary to the words of the statute. Moreover, Defendants' argument rests on a false premise, as Congress has never provided that completion of an FBI name check ­ as distinguished from an "investigation" or "criminal background check" ­ is a prerequisite for naturalization. Defendants contend that "Congress codified this policy [of conducting the name check] into statute in 1997 with the passage of 8 U.S.C. § 1446(a), which prohibited the use of Congressional appropriations to "`complete adjudication of an application for naturalization, prior to receipt of confirmation from the FBI that a `full criminal background check has been completed.'" MTD at 20. This statement is incorrect in several respects. First, the statute cited by Defendants, 8 U.S.C. § 1446(a), does not refer a "criminal background check" at all. Section 1446(a) provides only that [b]efore a person may be naturalized, an employee of the Service, or 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. The 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. 8 U.S.C. § 1446(a) (emphasis added). The statute does not specify what the "personal investigation" should entail. Moreover, the statute itself provides that the "personal investigation" may be waived. Elsewhere, Congress has mentioned a "full criminal background check," but that term also does not encompass the FBI name check. In an uncodified portion of a 1997 appropriations 6
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act, Congress provided that beginning in fiscal year 1998, "none of the funds 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...." Pub. L. No. 105-119, Tit. I, 111 Stat. 2440, 2448 (Nov. 26, 1997) (emphasis added). Defendants make two incorrect claims about this provision. First, contrary to the government's claim, MTD at 7, Congress provided that the "criminal background check" be completed before adjudication, not before the examination. Second, there is no mention in the appropriations provision of an "FBI name check" and the provision itself does not explain what the "full criminal background check" should entail. Despite the absence of any statutory definition of the "full criminal background check," Defendants nonetheless assert, in the form of a declaration from an CIS employee, that it consists of three "mandatory" procedures: an FBI fingerprint check for criminal history; a check of the applicant's name against the Interagency Border Inspection System ("IBIS") database; and the FBI name check. See Decl. of Jonah Hadary ¶ 4 (attached as Exh. 2 to Decl. of Jeffrey S. Robins). That assertion is not correct under the plain terms of the implementing regulations, which make it clear that the required "criminal background check" refers to a fingerprint-based criminal records check and does not include an FBI name check. The relevant regulation, 8 C.F.R. § 335.2, provides that the applicant should not be scheduled to appear for an "initial examination" until after the agency has received "a definitive response from the [FBI] that a full criminal background check" has been completed. 8 C.F.R. § 335.2(b). The regulation defines a "definitive response" as one of the following: (1) FBI confirmation that the applicant "does not have an administrative or criminal record"; (2) FBI confirmation that the applicant does have such a record; or (3) FBI confirmation that the applicant's fingerprint cards "have been determined unclassifiable for the purpose of conducting a criminal background check and have been rejected." Id. Thus, 8 C.F.R. § 335.2(b) contemplates that the "criminal background check," which is required under regulation and mentioned in Congress's uncodified 1997 7
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appropriations act, is one based upon fingerprint records ­ i.e., not a name check. In addition to the plain terms of the regulation indicating that the "criminal background check" is based upon fingerprint records, substantive analysis of the FBI name check demonstrates that it does not pertain to "criminal background." As set forth in the FAC, the FBI name check is run against a database that contains the names of many innocent persons who have no criminal history and are not under any suspicion of criminal activity. FAC ¶¶ 36-38. FBI field agents may include the names of persons who happen to be mentioned in the course of an investigation, such as innocent witnesses and even victims of crimes. Id. For that reason, running an FBI name check does not determine whether an applicant for naturalization has criminal history or poses a criminal threat, or indeed whether there is any derogatory information about the applicant. Thus, Defendants' implicit suggestion that the FBI name check is a "criminal background check" required by statute or regulation, MTD at 3-4, is not accurate. But more important for purposes of Defendants' jurisdictional argument, even if the "criminal background check" mentioned in the uncodified 1997 appropriations act and the regulations were meant to include the FBI name check ­ which is clearly not the case ­ Defendants' argument still fails under the plain language of 8 U.S.C. § 1447(b) and test of common sense. In 8 U.S.C. § 1447(b), Congress expressed its intent that CIS should decide naturalization applications within 120 days of the interview, and that if CIS fails to do so, then a district court may step in to make the decision. The appropriations act certainly did not amend 8 U.S.C. § 1447(b) to add completion of an "FBI name check" as another precondition, in addition to the passage of 120 days from the naturalization examination, for district court jurisdiction in cases of delay. Rather, Congress simply expressed its intent that CIS should complete the "criminal background check" before granting naturalization. In other words, if CIS wishes to conduct an FBI name check, it should do so in a timely manner so that the naturalization application can be decided within 120 days of the examination. Under the government's interpretation, CIS could indefinitely delay completion of the "criminal background check" and therefore the district court would never have jurisdiction under 8
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8 U.S.C. § 1447(b). As the Fifth Circuit has pointed out, the government's interpretation would render 8 U.S.C. § 1447(b) a dead letter and is at odds with the plain language of the statute. Walji, 2007 WL 2685028 at *5. III. A REMAND WITHOUT INSTRUCTION OR DEADLINE WOULD BE CONTRARY TO 8 U.S.C. § 1447(B). The government suggests that even though each of the named Plaintiffs has been waiting for more than two years since his or her naturalization examination without a decision, the Court should simply remand to CIS without setting any deadlines. As an initial matter, whether the Court should adjudicate the naturalization application or remand to CIS is a question of remedy that is not ripe for decision on a motion to dismiss. In any event, government's suggestion of a remand without any instructions or deadlines is contrary to Congress's intent as plainly expressed in 8 U.S.C. § 1447(b). Section 1447(b) provides that a district court "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) (emphasis added). Thus, as the Ninth Circuit has pointed out, "Congress empowered the district court to remand the matter to the INS with the court's instructions." Hovsepian, 359 F.3d at 1160 (emphasis in original). A remand without any instructions, as the Defendants urge upon this Court, is not permitted under 8 U.S.C. § 1447(b). Congress evidently chose to specify that a district court may remand only "with appropriate instructions" because it intended for 8 U.S.C. § 1447(b) to provide a real remedy for agency delays in naturalization. In enacting section 1447(b), Congress specifically intended that the immigration agency should not be permitted to delay naturalization decisions indefinitely, and that applicants should have recourse to a judicial remedy in cases of delay. Hovsepian, 359 F.3d at 1163 ("A central purpose of the statute was to reduce the waiting time for naturalization applicants."). The legislative history demonstrates that Congress was deeply troubled by backlogs in the naturalization process. See 135 Cong. Rec. H4539-02, 4542 (statement of Rep. Morrison) ("This legislation ... addresses a very substantial concern that so many of all of our 9
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constituents have faced, and that is the problem of long backlogs in moving through the naturalization process ...."); id. at 4543 (statement of Rep. Richardson) ("Those seeking American citizenship fulfill several needed obligations....It is unfair, however, that we postpone their citizenship because of administrative backlog."). As one district court has noted, "when Congress has clearly granted jurisdiction, it is the Court's responsibility to exercise it." Mostovoi v. Sec'y of Dep't of Homeland Security, No. 06 Civ. 6388 (GEL), 2007 WL 1610209 at *3 (S.D.N.Y. June 4, 2007). One judge in this District has granted naturalization outright after the government failed to comply with court-imposed deadlines. Astafieva v. Gonzales, No C06-04820, 2007 WL 1031333, at *3 (N.D. Cal. Apr. 3, 2007). Even when district courts have chosen not to grant naturalization outright, they have set hard deadlines for agency action and have imposed penalties for failure to comply with those deadlines. See, e.g., Mostovoi, 2007 WL 1610209, at *5 (remanding to CIS with instruction to "take whatever steps are necessary" to make a determination within 30 days, and in the event to a positive determination to swear in the applicant within the next 30 days, and retaining jurisdiction to monitor compliance); Aslam v. Gonzales, No C06-614, 2006 WL 3749905 (W.D. Wash. Dec. 19, 2006) (holding case in abeyance for 60 days for FBI to complete name check, and ordering government to show cause why applicant should not be immediately naturalized if name check is not complete within 60 days); Said v. Gonzales, No. C06-986P, 2006 WL 2711765 *4 (W.D. Wash. Sept. 21, 2006) (ordering that government must complete status report on name check by date certain and that if government failed to provide information supporting assertion of a name check problem, court would approve application and administer oath of citizenship); Al-Kudsi v. Gonzales, No. CV-05-1584, 2006 WL 752556 (D. Or. Mar. 22, 2006) (ordering FBI to complete name check within 90 days; ordering that if FBI fails to comply, CIS is to deem the name check completed with no adverse information; that naturalization should be granted within next 30 days after such event; and ordering CIS to forward naturalization certificate to court so that court may administer the oath of citizenship to applicant). What the Court cannot do is remand without any directions or deadlines. 10
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IV.

PLAINTIFFS' CLAIMS ARE PROPERLY JOINED UNDER FEDERAL RULE OF CIVIL PROCEDURE 20. Contrary to the Defendants' contention, Plaintiffs' claims for relief under 8 U.S.C. §

1447(b) are properly joined in this lawsuit. Federal Rule of Civil Procedure 20(a) provides that plaintiffs may join in one action "if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action." Plaintiffs clearly meet this standard. While the government may raise separate issues of fact relating to the merits of each named Plaintiff's claim to naturalization,5 all of the Plaintiffs raise common issues of law and fact as they are all being denied a timely adjudication of his or her naturalization application solely because of a systemic delay in processing of the FBI name check.6 FAC ¶¶ 45-46, 51-52, 56, 58, 61, 65, 68-69, 73-74. All Plaintiffs therefore assert a right to relief "in respect of or arising out of the same ... series of transactions or occurrences" and also raise common questions of law and fact about the FBI name check as a cause of naturalization delays. Defendants have failed to make the requisite showing of prejudice to justify severing the trials of Plaintiffs' 8 U.S.C. § 1447(b) claims. Federal Rule of Civil Procedure 20(b) provides that the Court "may order separate trials or make other orders to prevent delay or prejudice." See also Fed. R. Civ. P. 21 (providing that "[a]ny claim against a party may be severed and proceeded with separately"); Fed. R. Civ. P. 42(b) ("The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim ...

5

The existence of such separate issues is purely speculative at this point, as the Defendants have not identified any. 6 Each of the named Plaintiffs raises identical issues of law and fact relating to a specific practice and policy of delay due to FBI name checks, both on his or her own behalf and on behalf of a proposed class. Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997), involving a "allegation of general delay," and therefore is inapposite. 11
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or of any issue"). Defendants have not shown any prejudice that would result from the joint trial of Plaintiffs' section 1447(b) claims, and indeed, the same defendants and counsel will try all of the claims in any event, whether the claims are severed or not. On the other hand, joint trial will serve the interests of judicial economy as each of the Plaintiffs will raise common issues of law and fact concerning the Defendants' policies and practices regarding FBI name checks. League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 558 F.2d 914, 917 (9th Cir. 1977) (Rule 20(a) should be construed liberally in order to promote trial convenience and to expedite the final determination of disputes, thereby preventing multiple lawsuits). At the least, Defendants' motion to sever is premature. See Medina v. Argent Mortgage Co., No. 05-CV-2905 RS, 2006 WL 1305230 at *4 (N.D. Cal. May 11, 2006) (noting that denial of severance does not mean all claims ultimately will be tried together, as court retains discretion to sever under Fed. R. Civ. P. 20(b) as case progresses). V. PLAINTIFFS STATE A CLAIM FOR RELIEF FROM UNREASONABLE DELAY UNDER THE ADMINISTRATIVE PROCEDURES ACT. A. The First Amended Complaint Alleges Facts to Support a Finding of Unreasonable Delay.

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7

The Administrative Procedures Act ("APA") provides for judicial review of agency action (or inaction) that causes a person to suffer a legal wrong or to be otherwise aggrieved or adversely affected. 5 U.S.C. § 702. In particular, the APA provides a remedy for an agency's failure to carry out a required action in a timely manner. Under § 706(1), a court "shall . . . compel agency action unlawfully withheld or unreasonably delayed." The Ninth Circuit has adopted a six-factor test for determining when the administrative delay of a required action is unreasonable. Brower v. Evans, 257 F.3d 1058, 1068-69 (9th Cir. 2001) (citing Telecommunications Research & Action Ctr. V. FCC ("TRAC"), 750 F.2d 70, 80 (D.C. Cir. 1984)).7

The TRAC factors include: (1) whether the time taken by the agency meets the "rule of reason," (2) whether the time taken by the agency comports with congressional timetables or other indications of the speed at which the agency is expected to act, (3) whether the delays occur in 12
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Plaintiffs have clearly stated a claim of unreasonable delay under the APA, as they allege that Defendants have unreasonably delayed carrying out their ministerial duties of completing name checks and adjudicating naturalization applications, to the extreme prejudice of members of the proposed class. The FAC alleges the elements of the unreasonable delay claim, including support for a number of the factors in the extremely fact-intensive TRAC test. FAC ¶¶ 21-25 (defendants are responsible for processing FBI name checks submitted by CIS and/or adjudicating naturalization applications); 28-32 (by statute, CIS must grant or deny a naturalization application within 120 days of holding an interview with the applicant and 180 days of the filing of the application and must grant naturalization to applicants who meet the statutory requirements); 38-42 and 77-83 (FBI name check procedure is likely to identify applicants erroneously as being "of interest" and to result in years-long delays for Plaintiffs and proposed class members; delays are not justified by asserted national security interests; and defendants do not use mechanisms to track or minimize delays); and 86-91 (prejudice suffered by applicants with delayed cases). By these allegations, plaintiffs have clearly stated a cause of action for unreasonable delay under the APA. At this stage of the litigation, before Plaintiffs have had an opportunity to conduct discovery and present evidence, consideration of the merits of this claim would be premature. B. Defendants' Procedural Arguments Are Unavailing. 1. Section 1447(b) Does Not Provide a Remedy for Systemic Delay.

Ironically, after arguing that this court lacks jurisdiction to consider plaintiffs' individual claims for relief under 8 U.S.C. § 1447(b), the government goes on to claim that plaintiffs' APA claim fails because § 1447(b) provides an adequate legal remedy.8 Section 1447(b) provides judicial review for individuals whose applications are not the sphere of economic regulation or impact human health and welfare, (4) the effect of expediting delayed action on agency activities of a higher or competing priority, (5) the nature and extent of the interests prejudiced by delay, and (6) that a finding of impropriety is not necessary for a finding of unreasonable delay. Brower, 257 F.3d at 1068-69. 8 It is worth noting that the government has repeatedly sought to vitiate judicial review under § 1447(b) not only in this case, but in cases throughout the country. See Walji, 2007 WL 2685028 at *2 (citing cases). 13
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adjudicated within 120 days of their interviews, but cannot provide the systemic relief sought by this proposed class action. Plaintiffs have put into issue Defendants' policy and practice of unreasonably delaying naturalization adjudications for at least hundreds of applicants. FAC ¶ 77-85; Corrected Memo. of P. & A. in Support of Mot. for Class Certification at 4-6. This Court's consideration of Plaintiffs' unreasonable delay claim will necessarily include discovery and presentation of evidence of the government's practices and policies, analysis of whether the same objectives could be met in a more efficient and timely manner, evaluating the current practices' actual value to national security, and balancing the relative hardships to the parties. TRAC, 750 F.2d at 80. Resolution of these questions will save judicial, government, and private resources that might otherwise be devoted to seriatim 1447(b) petitions and provide opportunities for addressing root causes of the delay that would be outside the scope of an individual § 1447(b) petition. Perhaps most important, Plaintiffs' APA claim can provide relief to the many people suffering from unreasonable delay who do not have the resources to bring individual petitions. See FAC ¶ 93 (as of June 2007, there were 31,144 naturalization applicants for whom FBI name check cases were pending more than 33 months).9 The government cites Danilov v. Aguirre, 370 F.Supp.2d 441 (E.D. Va. 2005), in support of its position that § 1447(b) precludes the Court's jurisdiction over Plaintiffs' APA challenge. MTD at 13. However, in addition to having been disapproved by the majority of district courts to consider jurisdiction under § 1447(b), Danilov concerned only an individual petitioner's claim of unreasonable delay in the processing of his naturalization application. See 370 F. Supp. 2d at 442. Where, as here, a class of plaintiffs seeks systemic relief, the existence of a more specific remedial scheme does not thwart district court jurisdiction. McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991) (statute providing for administrative review and precluding district court review of agency decisions denying "special agricultural worker" status did not strip In addition, judicial review of the name check system may provide relief to many individuals who, the government asserts, have no remedy under §1447(b) ­ i.e., individuals whose naturalization applications are unreasonably delayed before the interview. See FAC ¶¶ 43 (In April 2006, CIS implemented policy of delaying naturalization examinations until after the FBI name check is completed in order to defeat district court jurisdiction over delays in the 14
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district court of jurisdiction over class action due process claim challenging agency's practices and procedures in the processing of such applications).10 Other district courts have asserted jurisdiction over APA claims challenging delays in the adjudication of naturalization petitions. In Yakubova v. Chertoff, No. 06-CV-3203 (E.D.N.Y.), the district court retained jurisdiction over class claims of unreasonable delay under the APA without ruling on the government's argument that § 1447(b) provided an exclusive remedy. Slip op. at * 7 (retaining jurisdiction of related claim to avoid waste of judicial resources) (copy attached hereto as Exhibit A). See also Alkenani v. Barrows, 356 F. Supp. 2d 652, 656 (N.D. Tex. 2005) (court has subject matter jurisdiction over a challenge to the immigration agency's delay in adjudicating his naturalization petition under the APA and 28 U.S.C. § 1331). Section 1447(b) does not provide meaningful relief as to the broad systemic challenges brought on behalf of Plaintiffs' proposed class, and therefore does not preclude review of Plaintiffs' unreasonable delay claim under the APA. 2. Review of Unreasonable Delay under § 706 Is Available Without Final Agency Action.

Defendants assert that APA review is unavailable because the agency has not yet 16 adjudicated Plaintiffs' naturalization applications and therefore there is no "final agency action" 17 to review. MTD at 13. However, "agency action" for purposes of the APA is defined to include 18 "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial 19 thereof, or failure to act." Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 62 (2004) 20 (emphasis in original) (quoting 5 U.S.C. § 551(13)). Indeed, the APA's creation of a judicial 21 remedy for an agency's unreasonable delay would be meaningless if it required an action to be 22 taken before court jurisdiction was conferred. 5 U.S.C. § 706(1). Because plaintiffs challenge 23 the failures of CIS and FBI to execute non-discretionary, ministerial duties within a reasonable 24 25 26 27 28 naturalization process). 10 U.S. v. Fausto, 484 U.S. 439, 441-442 (1988), cited by the government for the proposition that a specific grant of jurisdiction precludes jurisdiction on a more general basis, also involved an individual claim that was inconsistent with the governing statutory scheme rather than a systemic challenge to an agency's practices and policies. 15
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time, they assert valid claims under the APA. Norton, 542 U.S. at 62-63.11 3. Plaintiffs Seek to Compel Legally Required Agency Action.

In their final procedural challenge to Plaintiffs' unreasonable delay claim, Defendants argue that the Court may only compel agency action that is legally required. MTD at 14. This argument is a red herring, as the Defendants do have a legal obligation to act. Defendants assert that they are under no obligation to act because there are no statutory deadlines, but that assertion is false. First, it is legally correct that courts may only compel "agency action unreasonably delayed or unlawfully withheld" if the delayed or withheld action is legally required. Norton, 542 U.S. at 63. This presents no problem for Plaintiffs' APA claim, however, because CIS is legally required to adjudicate naturalization applications. See infra Part VII. Second, the APA provides a remedy for unreasonable delays in agency action even when the delayed actions are not subject to a specific statutory deadline. The Tenth Circuit has held that there are two distinct cognizable claims under § 706(1): when an agency does not act within a statutory deadline, the action must be compelled as "unlawfully withheld"; in addition, when an agency fails to take an action that is legally required, but for which there is no statutory deadline, the court should compel the action if it is "unreasonably delayed." Forest Guardians v. Babbitt, 164 F.3d 1261, 1270-72 (1998) (citing 5 U.S.C. § 706). Cf. In re Barr Labs, Inc., 930 F.2d 72 (D.C.Cir. 1991) (analyzing unreasonable delay beyond statutorily imposed deadline through consideration of TRAC factors). In San Francisco BayKeeper v. Whitman, the Ninth Circuit cited this passage from Forest Guardians, but distinguished the claim before it on the basis that the agency action sought to be compelled in that case was not legally required at all. 297 F.3d 877, 885-86 (9th Cir. 2002) (plaintiffs' argument that unreasonable delay finding is
11

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The cases cited by defendants in support of its argument are not unreasonable delay case