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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; ALBERTO GONZALES, 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. CORRECTED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Judge: Hon. William A. 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 .......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 STATEMENT OF RELEVANT FACTS ........................................................................................1 ARGUMENT...................................................................................................................................3 I. THIS CASE MEETS THE REQUIREMENTS FOR CLASS CERTIFICATION UNDER RULE 23. ...................................................................4 Federal Rule of Civil Procedure 23(a) .........................................................4 Numerosity and Impracticability of Joinder ....................................4 Commonality....................................................................................6 Typicality .........................................................................................9 Adequacy .......................................................................................10

Federal Rule of Civil Procedure 23(b)(2) ..................................................10

COURTS HAVE GRANTED CLASS CERTIFICATION IN SIMILAR CASES INVOLVING UNREASONABLE AGENCY DELAYS................................................................................................................11 TO THE EXTENT THERE ARE ANY QUESTIONS AS TO WHETHER CLASS CERTIFICATION IS WARRANTED, PLAINTIFFS SHOULD HAVE AN OPPORTUNITY FOR DISCOVERY.........................................................................................................13

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

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TABLE OF AUTHORITIES FEDERAL CASES

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Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997)...............................................................................................3, 4, 7 Ansari v. New York University, 179 F.R.D. 112 (S.D.N.Y. 1998) ...................................................................................5 Celano v. Marriott International, Inc., 242 F.R.D. 544 (N.D. Cal. 2007)...........................................................................5, 8, 9 Barahona-Gomez v. Reno, 167 F.3d 1228 (9th Cir. 1999) .......................................................................................6 Cockrum v. Califano, 475 F. Supp. 1222 (D.D.C. 1979), remanded without opinion sub nom. Cockrum v. Harris, 634 F.2d 1358 (D.C. Cir. 1980).............................................11, 12 Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995).............................................................................................5 Del Campo v. Kennedy, 236 F.R.D. 454 (N.D. Cal. 2006).................................................................................13 Doe v. Los Angeles Unified Sch. District, 48 F. Supp. 2d 1233 (C.D. Cal. 1999) ...........................................................................8 Dukes v. Wal-Mart, Inc., 474 F.3d 1214 (9th Cir. 2007) .................................................................................7, 10 Forbush v. J.C. Penney Co., Inc., 994 F.2d 1101 (5th Cir. 1993) .......................................................................................8 General Telegraph Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318 (1980).......................................................................................................5 Haley v. Medtronic, Inc., 169 F.R.D. 643 (C.D. Cal. 1996) ...................................................................................6 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ...................................................................................7, 9 Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992) .........................................................................................9 Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909 (9th Cir. 1964) .........................................................................................4 Krzesniak v. Cendant Corp., No. C-05-05156-MEJ, 2007 WL. 1795703 (N.D. Cal. June 20, 2007).........................9

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Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) .........................................................................................5 Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507 (9th Cir. 1978) .......................................................................................10 Linney v. Cellular Alaska Partnership, 151 F.3d 1234 (9th Cir. 1998) .....................................................................................10 Lynch v. Rank, 604 F. Supp. 30 (N.D. Cal.), aff'd, 747 F.2d 528 (9th Cir. 1984) .................................6 Moeller v. Taco Bell Corp., 220 F.R.D. 604 (N.D. Cal. 2004)...................................................................................6 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978).....................................................................................................13 Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993)...................................................................................12, 13 Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022 (9th Cir. 2006) .......................................................................................5 Santillan v. Ashcroft, No. C-04-2686-MHP, 2004 WL. 2297990 (N.D. Cal. Oct. 12, 2004) ................6, 9, 11 Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) .........................................................................................7 Tonya K. v. Chicago Board of Education, 551 F. Supp. 1107 (N.D. Ill. 1982) ..............................................................................12 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) .................................................................................8, 10 FEDERAL STATUTES, REGULATIONS AND RULES

20 Administrative Procedures Act, 5 U.S.C. § 553 ..........................................................................1, 8 21 Fed. R. Civ. P. 23.............................................................................................................................3 22 Fed. R. Civ. P. 23(a) ....................................................................................................................3, 4 23 Fed. R. Civ. P. 23(a)(2)....................................................................................................................7 24 Fed. R. Civ. P. 23(a)(4)..................................................................................................................10 25 Fed. R. Civ. P. 23(b)(2)..............................................................................................................3, 10 26 Fed. R. Evid. 201 .............................................................................................................................5 27 28 iii
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GOVERNMENT REPORTS CIS Ombudsman, Annual Report 2007 ...................................................................................1, 2, 5 Yearbook of Immigration Statistics: 2006, Table 23 .......................................................................5

TREATISES 1 Newberg on Class Actions § 3:6...................................................................................................6 California Practice Guide: Federal Civil Procedure Before Trial § 10:740...................................13 California Practice Guide: Federal Civil Procedure Before Trial at 10-44 .....................................5

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INTRODUCTION Plaintiffs respectfully submit this Memorandum of Points and Authorities in support of their Motion for Class Certification. Plaintiffs move for certification of a class consisting of all persons residing within the jurisdiction of the United States District Court for the Northern District of California who have submitted or will submit applications for naturalization to CIS, and who have met all statutory requirements for naturalization, and whose applications for naturalization are not adjudicated within 120 days of the date of their naturalization examinations because of a pending FBI name check. Plaintiffs move for certification of the class because they seek declaratory and injunctive relief in the form of an order establishing reasonable deadlines for completion of FBI name checks and for processing of naturalization applications. Such relief would benefit the class as a group. STATEMENT OF RELEVANT FACTS Plaintiffs filed this lawsuit in order to challenge the government's practice and policy of delaying naturalization applications for prolonged periods of time ­ often years ­ pending so-called "FBI name checks." As the government itself has acknowledged, the "FBI name checks, one of several security screening tools used by USCIS [U.S. Citizenship and Immigration Services] continue to significantly delay adjudication of immigration benefits for many customers, hinder backlog reduction efforts, and may not achieve their intended national security benefits." See First Am. Compl. ("FAC") ¶ 8 (citing CIS Ombudsman, Annual Report 2007, at 37 (emphasis in original), available at http://www.dhs.gov/xabout/structure/gc_1183751418157.shtm). The government implemented these FBI name checks as a requirement for naturalization without providing the public with an opportunity for notice and comment, in violation of the Administrative Procedures Act, 5 U.S.C. § 553. In their implementation of the FBI name check, Defendants have caused nationwide, systemic delays in the processing of naturalization applications. These delays have caused serious harm to Plaintiffs and other members of the proposed class, who are all long-time lawful permanent residents who 1
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meet all statutory requirements for naturalization and wish to pledge allegiance to their adopted country and to participate fully in civic life in the United States. Through the instant motion, Plaintiffs seek certification of a class of persons who, like Plaintiffs, are still waiting for a decision on their naturalization applications even though more than 120 days have passed since their naturalization examinations. Through the second, third and fourth causes of action in the First Amended Complaint, Plaintiffs seek declaratory and injunctive relief in the form of an order requiring the government to complete its FBI name checks and to render final decisions on naturalization applications within a reasonable time period. This case meets every requirement for class certification under Rule 23. Indeed, without class certification, there can be no effective remedy for the government's policies and practices, which have affected tens of thousands of people nationwide. According to publicly available records, as of May 2007, U.S. Citizenship and Immigration Services ("CIS") reported that nationwide, there were 211,341 naturalization applications that had been pending for more than 90 days due to an FBI name check and 106,738 applications that had been pending for more than one year. See FAC ¶ 93 (citing CIS Ombudsman, Annual Report 2007, at 37). As of June 2007, there were 31,144 naturalization cases that had been pending for more than 33 months due to an FBI name check. Id. Plaintiffs' counsel at the American Civil Liberties Union, Asian Law Caucus and the Council on American-Islamic Relations have been contacted by at least 361 individuals who meet the proposed class definition. Moreover, the problem appears to be worsening. From 2006 to 2007, the number of delayed naturalization cases increased by 93,358 nationwide. Id. While the exact number of persons affected in this District is unknown to Plaintiffs, they have made more than an adequate showing that the number is sufficient to justify certification of a class. In this action, Plaintiffs raise questions of law and fact that are common to every member of the proposed class. Plaintiffs allege that the Defendants' policies and 2
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practices of prolonged delay in the processing of FBI name checks and naturalization applications violate the Administrative Procedures Act and the Due Process Clause. Regardless of the individual merits of any given naturalization application ­ i.e., whether an applicant is granted or denied naturalization ­ each member of the proposed class raises identical legal questions about the lawfulness of the government's policies and procedures causing the delay. If Plaintiffs are successful in their claims for declaratory and injunctive relief, the entire class would benefit from the imposition of reasonable deadlines that are consistent with Congress's intent as expressed in statutes relating to naturalization and more generally in the Administrative Procedures Act. ARGUMENT Plaintiffs move for certification of a class of persons affected by Defendants' policies and practices, defined as follows: All persons residing within the jurisdiction of the United States District Court for the Northern District of California who have submitted or will submit applications for naturalization to CIS, and who have met all statutory requirements for naturalization, and whose applications for naturalization are not adjudicated within 120 days of the date of their naturalization examinations because of a pending FBI name check. As thus defined, this action meets the requirements for class certification under Federal Rule of Civil Procedure 23, which requires (1) that the number of persons is so numerous that joinder of all members as parties is impracticable; (2) that there are common questions of law or fact; (3) that the claims of the proposed named plaintiffs are typical of those of the class; and (4) that the named plaintiffs and their counsel will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a); Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997). This action also meets the additional requirements for class certification set forth in Federal Rule of Civil Procedure 23(b)(2), which requires that "the party opposing the class has acted or refused to act on grounds 3
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generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." See Amchem Products, 521 U.S. at 614 (in addition to meeting four requirements of Rule 23(a), case must be maintainable under Rule 23(b)(1), (2) or (3)). As set forth in the First Amended Complaint, the government has implemented practices and policies of delaying the processing of FBI name checks and naturalization applications that affect the proposed class as a group. I. THIS CASE MEETS THE REQUIREMENTS FOR CLASS CERTIFICATION UNDER RULE 23. A. Federal Rule of Civil Procedure 23(a) 1. Numerosity and Impracticability of Joinder

As set forth in the First Amended Complaint and the Declarations of Sin Yen Ling, Yumna Daimee, Leona Kwon and Helen Sterling, Plaintiffs are aware of at least 361 individuals in the Northern District of California who are suffering from delays in excess of 120 days from the time of their naturalization examinations, and who are suffering delay because of a pending FBI name check. See Decl. of Sin Yen Ling in Support of Plaintiffs' Mot. for Class Certification ¶ 2 (Asian Law Caucus contacted by at least 230 individuals); Decl. of Yumna Daimee in Support of Plaintiffs' Mot. for Class Certification ¶ 2 (Council on American-Islamic Relations contacted by at least 71 individuals); Decl. of Leona Kwon in Support of Plaintiffs' Mot. for Class Certification ¶ 2 (ACLU contacted by 55 individuals); Decl. of Helen Sterling in Support of Plaintiffs' Mot. for Class Certification ¶ 2 (ACLU contacted by additional five individuals). This showing is more than sufficient to meet the numerosity requirement of Rule 23(a)(1). Given the large number of potential class members, joinder of all of them would be impracticable. See Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14 (9th Cir. 1964) (numerosity inquiry asks whether joinder is impracticable, not whether it is impossible). Although there is no numerical cut-off for certification under Rule 23, 4
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General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330 (1980), courts have presumed that the numerosity requirement is met when there are more than 40 putative class members. Celano v. Marriott Int'l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007) (noting that courts generally will find numerosity requirement satisfied if class comprises 40 or more members); 2 William W. Schwarzer et al., California Practice Guide: Federal Civil Procedure Before Trial at 10-44 (citing Ansari v. New York Univ., 179 F.R.D. 112, 114 (S.D.N.Y. 1998); Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995)). In addition to the 361 putative class members who have been in contact with Plaintiffs' counsel, there are undoubtedly many other persons in this District who fall within the proposed class, unknown to Plaintiffs. According to the government's own publicly released figures, as of May 2007, there were 211,341 naturalization applications nationwide that had been pending for more than 90 days due to an FBI name check and 106,738 applications that had been pending for more than one year. FAC ¶ 93 (citing CIS Ombudsman, Annual Report 2007, at 37). As of June 2007, there were 31,144 naturalization cases nationwide that had been pending for more than 33 months due to an FBI name check.1 Id. The number of delayed applications increased by 93,358 from 2006 to 2007. Id. Thus, joinder of all putative class members is impracticable not only
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It is likely that a significant percentage of these delayed applications arise in the Northern District of California. According to statistics published by the government, two geographical areas encompassed by this judicial district are ranked sixth and ninth nationally in numbers of naturalizations. See Yearbook of Immigration Statistics: 2006, Table 23, Persons Naturalized by Core Based Statistical Area (CBSA) of Residence: Fiscal Years 1997 to 2006, available at http://www.dhs.gov/ximgtn/statistics/publications/YrBk06Na.shtm (copy attached hereto as Exhibit A). In 2006, there were 38,171 naturalizations in the "San Francisco-Oakland-Fremont" and "San Jose-Sunnyvale-Santa Clara" areas combined, which represented approximately 5.43% of 702,589 naturalizations nationwide. Id. The Court may take judicial notice of these public records. Fed. R. Evid. 201; Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) (citing Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001)). Based on these figures, one could estimate roughly that if delays are spread proportionally by geographical area, there may be approximately 5,795 naturalization applications in this region that have been delayed more than one year, based on a calculation of 5.43% of the 106,738 applications reported to have been pending for more than one year by the CIS Ombudsman in his 2006 report. But in any event, the declarations in support of this motion establish sufficient numerosity based on 361 known individuals. 5
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because of their numerosity, but also because their identities are unknown to the Plaintiffs.2 While the exact size of the class is unknown to Plaintiffs, it certainly numbers at least in the hundreds and is highly likely to number in the thousands. The Court may determine based on general knowledge and common sense, in addition to the large number of known putative class members, that the numerosity requirement is met. Moeller v. Taco Bell Corp., 220 F.R.D. 604, 608 (N.D. Cal. 2004) (citing 1 Newberg on Class Actions § 3:6; Haley v. Medtronic, Inc., 169 F.R.D. 643, 648 (C.D. Cal. 1996)). In addition, joinder of all the class members is impracticable for logistical reasons. First, many members of the putative class do not have the resources to file individual lawsuits. As set forth in the accompanying declarations of Sin Yen Ling and Yumna Daimee, many persons suffering from naturalization delays are low-income immigrants. Decl. of Sin Yen Ling in Support of Motion for Class Certification ¶ 4; Decl. of Yumna Daimee in Support of Motion for Class Certification ¶ 4. Under those circumstances, joinder of all putative class members is impracticable. Santillan v. Ashcroft, No. C-04-2686-MHP, 2004 WL 2297990 at *10 (N.D. Cal. Oct. 12, 2004) ("Limited economic resources may indeed limit the ability of class members to bring individual lawsuits and provide one factor in assessing whether joinder is impracticable.") (citing Lynch v. Rank, 604 F. Supp. 30 (N.D. Cal.), aff'd, 747 F.2d 528 (9th Cir. 1984)). Second, the proposed class definition includes persons who will become class members in the future. The impracticability of joinder of such future class members is also a factor warranting class certification. Santillan, 2004 WL 2297990 at *9. This case clearly meets Rule 23(a)'s numerosity requirement. 2. Commonality

Plaintiffs seek certification of a class of persons whose naturalization applications
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Under such circumstances, where Defendants are in the best position to identify class members, they should be required to do so. Cf. Barahona-Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir. 1999) (although ordinarily plaintiffs are responsible for providing notice to class members, government could be required to do so where it may perform that task with less difficulty or expense). 6
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have been pending for more than 120 days since their naturalization examinations as the result of a delay in an FBI name check. In order to succeed in this motion, Plaintiffs must show that there is a common issue of law or fact. Fed. R. Civ. P. 23(a)(2); Dukes v. WalMart, Inc., 474 F.3d 1214, 1225 (9th Cir. 2007); Amchem Products, 521 U.S. at 613. Courts have recognized that the commonality requirement does not impose a heavy burden. Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003) ("Rule 23(a)(2) has been construed permissively"); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998) (same); Dukes, 474 F.3d at 1225 ("all questions of law and fact need not be common to satisfy the rule"). Plaintiffs easily meet this requirement as this action raises multiple questions of both law and fact that are common to all members of the putative class. First, all of the members of the proposed class share the factual background of (1) having their naturalization delayed for at least 120 days since their naturalization examinations; (2) meeting all statutory requirements for naturalization; and (3) being subject to delay because of a pending FBI name check. In addition, this case raises factual questions common to the class, including but not limited to: · Whether CIS's practices and policies have resulted in systemic and unreasonable delays in processing of naturalization applications; · Whether FBI's practices and policies have resulted in systemic and unreasonable delays in processing of naturalization applications; · Whether CIS violated the Administrative Procedures Act by failing to promulgate a regulation, with notice to the public and an opportunity for comment, in implementing the FBI name check as a requirement for naturalization. This case also raises numerous legal questions common to the class, including but not limited to: · Whether CIS's practices and policies relating to the FBI name check for naturalization applicants violate the Administrative Procedures Act's 7
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requirement that government agencies conclude matters within a reasonable time; Whether FBI's practices and policies relating to the FBI name check for naturalization applicants violate the Administrative Procedures Act's requirement that government agencies conclude matters within a reasonable time; Whether CIS's failure to promulgate a regulation with public notice and comment violates the Administrative Procedures Act, 5 U.S.C. § 553; Whether CIS's practices and policies of systemic, prolonged delays in naturalization violate the Due Process Clause; and Whether FBI's practices and policies of systemic, prolonged delays in processing of FBI name checks for naturalization applicants violate the Due Process Clause. While members of the class may differ in whether they ultimately should be granted citizenship, those issues are not present in this case as Plaintiffs do not ask the Court to naturalize the entire class. Rather, the class claims (the second, third and fourth causes of action in the First Amended Complaint) challenge the government's policies and practices with respect to FBI name check-related delays in the naturalization process and seek declaratory and injunctive relief to force the government to adjudicate applications in a reasonably timely manner. Thus, there are no divergent issues of law or fact within the proposed class that would defeat class certification. See Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998) (differences among class members regarding merits of individual cases were "simply insufficient to defeat the propriety of class certification"); Celano, 242 F.R.D. at 551; see also Forbush v. J.C. Penney Co., Inc., 994 F.2d 1101, 1106 (5th Cir. 1993) (need for subsequent individual proceedings "does not supply a basis for concluding that [named plaintiff] has not met the commonality requirement"); Doe v. Los Angeles Unified Sch. Dist., 48 F. Supp. 2d 1233, 1241 (C.D. Cal. 1999) ("[C]ommonality exists if plaintiffs share a common harm or violation of their rights, even if individualized facts 8
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supporting the alleged harm or violation diverge."). Even a single common issue that is central to the case can justify class certification. Celano, 242 F.R.D. at 551; Hanlon, 150 F.3d at 1019 (commonality requirement is met either by common legal issue with divergent factual predicates or by common core of facts with disparate legal remedies); Krzesniak v. Cendant Corp., No. C05-05156-MEJ, 2007 WL 1795703 at *7 (N.D. Cal. June 20, 2007) ("The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.). As set forth above, there are several such common issues in this case. Thus, the commonality requirement is met. 3. Typicality

Plaintiffs' claims are typical of the claims of the proposed class, as required for class certification under Rule 23(a)(3). "Under the rule's permissive standards, representative claims are typical if they are reasonably co-extensive with those of absent class members; they need not be substantially identical." Hanlon, 150 F.3d at 1020; see also Krzesniak, 2007 WL 1795703 at *9 (quoting Hanlon). "While typicality and commonality `tend to merge' ... typicality focuses on whether the named plaintiffs possess the `same interest and suffer the same injury' as class members." Krzesniak, 2007 WL 1795703 at *8 (citation omitted). In this case, the named Plaintiffs and all the members of the proposed class are suffering from prolonged delays in the processing of their naturalization applications because of a pending FBI name check. They have identical claims for declaratory and injunctive relief and an identical interest in enforcing reasonable time limits on the government's processing of naturalization applications. Any possible differences in the reasons for delay in the FBI name checks of the individual plaintiffs are not relevant. See Krzesniak, 2007 WL 1795703 at *8 (citing Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (typicality inquiry goes to "the nature of the claim ... of the class representative, and not to the specific facts from which it arose"); Santillan, 2004 WL 2297990 *11 (certifying class and rejecting government's argument that length of delay differed among individuals because of different investigation results). Thus Rule 23's typicality requirement is met. 9
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4.

Adequacy

Plaintiffs meet the final requirement of Rule 23(a) as they will fairly and adequately protect the interests of the proposed class. Fed. R. Civ. P. 23(a)(4). In order to satisfy the adequacy requirement, Plaintiffs must show (1) that their interests are common with, and not antagonistic to, the interests of the class; and (2) that they are able to prosecute the action vigorously through qualified and competent counsel. Dukes, 474 F.3d at 1233; Linney v. Cellular Alaska Partnership, 151 F.3d 1234, 1238-39 (9th Cir. 1998); Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978). As already set forth above, Plaintiffs share a common interest with the proposed class members in enforcing reasonable time limits on the government's processing of naturalization applications. Plaintiffs also will be able to prosecute this action vigorously. Plaintiffs are represented by pro bono attorneys with the ACLU Immigrants' Rights Project, the ACLU of Northern California and Asian Law Caucus, along with the Coalition on American-Islamic Relations. These nonprofit organizations and the attorneys representing the Plaintiffs collectively have extensive experience in immigration law and class action litigation, and have the necessary resources and commitment to pursuing the interests of the class vigorously. B. Federal Rule of Civil Procedure 23(b)(2)

This case meets the requirements for certification of a class under Federal Rule of Civil Procedure 23(b)(2), as Defendants "ha[ve] either acted or failed to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." The requirements of Rule 23(b)(2) are satisfied if the class members complain of a pattern or practice that is generally applicable to the class as a whole. Walters, 145 F.3d at 1047. This requirement is met, as Plaintiffs challenge Defendants' practices and policies leading to systemic delays in the processing of naturalization applications and FBI name checks. See FAC ¶¶ 77-85, 105-21. Plaintiffs seek declaratory and injunctive relief from those practices and policies.

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CORRECTED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 07-CV-3455-WHA

II.

COURTS HAVE GRANTED CLASS CERTIFICATION IN SIMILAR CASES INVOLVING UNREASONABLE AGENCY DELAYS As set forth above, this case meets all the requirements of Rule 23(a) and (b)(2) for

certification of a class. In similar cases challenging the government's policies and practices of delay, courts have granted motions for class certification. In Santillan v. Ashcroft, No. C-042686-MHP, 2004 WL 2297990 (N.D. Cal. Oct. 12, 2004), a group of plaintiffs sought to certify a class in an action challenging delays in issuance of documentation of lawful permanent resident status due to the government's insistence that no such documents could be issued until after certain security checks were complete. Id. at *1. The district court held that class certification was warranted under Rule 23(a) and (b)(2). First, the court held that the Plaintiffs met the numerosity requirement of Rule 23(a)(1) in that they identified 49 individuals who were affected by the alleged delays, demonstrated that economic and legal resources of the plaintiff class were likely to be a barrier to individual prosecution of actions, and demonstrated that "inclusion of unknown future class members supports the impracticability of joinder." Id. at *9-10. The court also concluded that the Plaintiffs met the commonality and typicality requirements of Rule 23(a)(2) and (3), in that they were challenging a policy resulting in delay, and therefore shared "substantially identical questions of law." Id. at *10. In particular, the district court noted that while there might have been differences in the length of delay suffered by individuals, due to different investigation results or the size of the agency's backlog, the class members all shared common interests and harms. Id. at *11. Finally, the court held that the Plaintiffs satisfied the requirements for certification under Rule 23(b)(2), in that they were seeking injunctive relief to change a "a set of national policies and practices in place for background and security checks." Id. at *12. Based upon similar reasoning, in Cockrum v. Califano, 475 F. Supp. 1222 (D.D.C. 1979), remanded without opinion sub nom. Cockrum v. Harris, 634 F.2d 1358 (D.C. Cir. 1980), a district court certified a class in an action challenging delays in appeals of denial, termination or

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reduction of certain benefits by the Social Security Administration. Id. at 1225. The plaintiffs sought to certify a class defined as "residents of the District of Columbia who have filed claims for benefits under ... the Social Security Act, and who have suffered a delay of 120 days or longer in obtaining a final decision on their appeal...." Id. at 1231 (first ellipsis in original). The district court granted the motion for class certification, holding that the proposed class "unites people with the factual similarity of suffering delays of 120 days or longer in receiving a decision on their appeals..." and that there was a common legal issue as to whether the defendants had breached a duty to render decisions within a reasonable time. Id. at 1236. The court concluded that "[a]ll class members share a common interest in prompt decisions on their appeals; plaintiffs seek to advance that interest." Id. Similarly, in Tonya K. v. Chicago Bd. of Educ., 551 F. Supp. 1107 (N.D. Ill. 1982), the district court certified a class of disabled children who were excluded from public schools because of their disabilities, and who were not provided with a timely placement in a private educational facility. Id. at 1108. The plaintiffs sought relief from the school board's delays in placing them in private facilities. Id. The district court granted the class certification motion, holding that the plaintiffs had presented a common legal issue as to whether the defendants' actions constituted an unlawful, untimely delay in the plaintiffs' legal rights. In doing so, the court rejected the defendants' arguments that the delay in placement was too vague for judicial oversight, id. at 1110, and that the plaintiffs did not present a common issue because the delays were caused by individual circumstances, id. at 1111. And finally, in Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993), the Second Circuit vacated a district court order denying class certification in a case challenging delays in processing public assistance benefits. The court of appeals held that class certification should be granted, finding that the named plaintiffs had met all the requirements of Rule 23(a) and (b)(2). The court noted, among other things, that consolidation of over 100 individual cases in a class action served judicial economy and that the potential class members were economically disadvantaged and therefore would be hard-pressed to bring individual suits. Id. at 936. The 12
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court also determined that an injunction requiring timely decisions by the defendant agency would affect all potential class members, while individual suits could lead to potentially inconsistent results. Id. The foregoing cases present class certification issues that are materially similar to those in the instant case. In the instant case, like those discussed above, a group of named plaintiffs seek to represent a class of similarly situated individuals who are suffering from particular government policies and practices leading to delay in processing a benefit. The plaintiffs seek injunctive and declaratory relief from those policies and practices and raise common legal and factual issues. Under these circumstances, and because Plaintiffs have met all the requirements of Rule 23, class certification is warranted. III. TO THE EXTENT THERE ARE ANY QUESTIONS AS TO WHETHER CLASS CERTIFICATION IS WARRANTED, PLAINTIFFS SHOULD HAVE AN OPPORTUNITY FOR DISCOVERY As set forth above, this case is ideally suited to class certification because of the nature of the injury being suffered by the named plaintiffs and a class of at least hundreds of other individuals in this district. To the extent the Court has any question as to whether class certification is warranted under Rule 23, it should permit Plaintiffs to conduct discovery in order to satisfy those questions. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13 (1978); Del Campo v. Kennedy, 236 F.R.D. 454, 459 (N.D. Cal. 2006) (citing Oppenheimer Fund and 2 William W. Schwarzer et al., California Practice Guide: Federal Civil Procedure Before Trial § 10:740).

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CONCLUSION For the foregoing reasons, the Court should grant the Plaintiffs' motion, certify this matter as a class action as defined above, and appoint Plaintiffs' counsel as class counsel. Plaintiffs also respectfully request that the Court order Defendants to identify members of the class. To the extent that the Court believes additional information is necessary, it should permit the Plaintiffs to conduct limited discovery on issues relating to class certification.

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Dated: September 12, 2007

Respectfully submitted, CECILLIA D. WANG LUCAS GUTTENTAG AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 JULIA HARUMI MASS ALAN L. SCHLOSSER AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 SIN YEN LING JOREN LYONS ASIAN LAW CAUCUS 939 Market Street, Suite 201 San Francisco, CA 94103 Telephone: (415) 896-1701 Facsimile: (415) 896-1702 TODD GALLINGER Of Counsel 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 By: _________/s/_______________________ CECILLIA D. WANG Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I, Cecillia D. Wang, declare as follows: I hereby certify that today I electronically filed the foregoing CORRECTED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION with the Clerk of the Court using the ECF system, which will send notification of such filing to the following email addresses: Alan Lawrence Schlosser American Civil Liberties Union Foundation of Northern California Via ECF at [email protected] Via ECF at [email protected] Via ECF at [email protected] Via ECF at [email protected] Via ECF at [email protected] Via ECF at [email protected] Via ECF at [email protected]

Lucas Guttentag American Civil Liberties Union Immigrants' Rights Project Julia Harumi Mass American Civil Liberties Union Foundation of Northern California Edward A. Olsen United States Attorney's Office Elizabeth J. Stevens United States Department of Justice Jeffrey S. Robins United States Department of Justice

In addition, I hereby certify that on this 12th day of September 2007, true and correct copies of the CORRECTED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION were served by U.S. Mail on the following counsel not registered for ECF: Sin Yen Ling Asian Law Caucus 939 Market Street, Suite 201 San Francisco, CA 94103 Todd Gallinger Council on American-Islamic Relations 3000 Scott Boulevard, Suite 212 Santa Clara, CA 95054

I declare under penalty of perjury under the laws of the State of California that the above

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is true and correct. Dated: September 12, 2007 San Francisco, California _________/s/______________ CECILLIA D. WANG