Free Memorandum in Opposition - District Court of California - California

Case 5:07-cv-03011-RS

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1 SCOTT N. SCHOOLS, SC SBN 9990 United States Attorney 2 JOANN M. SWANSON, CSBN 88143 Assistant United States Attorney 3 Chief, Civil Division ILA C. DEISS, NY SBN 3052909 4 Assistant United States Attorney 5 6 7 Attorneys for Defendants 8 9 10 11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ) ) Plaintiffs, ) ) v. ) ) MICHAEL CHERTOFF, as Secretary of the ) Department of Homeland Security; ) EMILIO T. GONZALEZ, Director of the U.S. ) Citizenship and Immigration Services; ) DAVID N. STILL, District Director of the U.S. ) Citizenship and Immigration Services for ) San Francisco and San Jose Sub Office; ) FRANCIS D. SICILIANO, Officer-in-Charge ) of the U.S. Citizenship and Immigration Service ) Sub Office for San Jose; ) ROBERT S. MUELLER, III, Director of the ) Federal Bureau of Investigation, ) ) Defendants. ) ) No. C 07-3011 RS 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-7124 FAX: (415) 436-7169

12 RICK G. BREWSTER and DAOMIN YANG, 13 14 15 16 17 18 19 20 21 22 23 24

DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Date: Time: Courtroom:

December 19, 2007 9:30 a.m. 4, 5th Floor

I. INTRODUCTION Plaintiff Rick Brewster, an attorney and United States citizen, and his wife, Daomin Yang, a

25 citizen of China, ask this Court to issue a writ of mandamus, compelling Defendants to reach a 26 decision on the applications for adjustment of status to legal permanent residents (LPR) of 27 Plaintiff Yang, and her son Yufei Zhao. They assert that the delay in adjudicating the adjustment 28 applications is unreasonable as a matter of law, and that they are entitled to a decision on the Defendants' Opposition to Plaintiffs' Motion for Summary Judgment C07-3011 RS 1

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1 applications. To the contrary, the mere existence of delay is insufficient to establish that Plaintiff 2 Yang is entitled to relief. Accordingly, Defendants respectfully ask this Court to deny Plaintiffs' 3 Motion, and grant Defendants' motion for summary judgment. 4 5 6 II. ARGUMENT A. PLAINTIFF BREWSTER CANNOT REPRESENT HIS WIFE IN FEDERAL COURT Briefly, Plaintiff asserts that each of he and his wife are each representing themselves pro se.

7 Pl. Mot. at 3-5. The applications at issue is that of his wife and son. Plaintiff contends that he has 8 a right to join the litigation as an interested party. Defendants' assume that is a request for 9 permissive joinder and oppose the motion. 10 11 12 Plaintiffs cite to an Eastern District of Pennsylvania case to support the argument that all B. THIS COURT SHOULD DISMISS PLAINTIFFS' CLAIMS AGAINST ALL DEFENDANTS EXCEPT CHERTOFF

13 Defendants should remain in the action. Pl. Mem. at 5-6. This Court has repeated held that the 14 only proper Defendant in these mandamus actions, seeking identical relief, is Michael Chertoff. 15 Accordingly, all other defendants should be dismissed. See Konchitsky v. Chertoff, 2007 WL 16 2070325, *6-7 (N.D.Cal. July 13, 2007) (granting motion to dismiss Robert Mueller: "However, 17 courts squarely addressing the issue of whether they have jurisdiction to compel the FBI to 18 perform name checks in connection with adjustment of status petitions have overwhelmingly 19 concluded that they do not.... The court concludes that, while this court has jurisdiction over 20 USCIS with regard to Konchitsky's I-485 application, there is no similar basis for this court to 21 mandate action by the FBI."); see also Clayton v. Chertoff, 2007 WL 2904049, *3 (N.D.Cal. Oct.1, 22 2007) (following Konchitsky and dismissing Robert Mueller: "Although the FBI is responisble for 23 conducting Plaintiff's background check, it is not housed within the DHS or the USCIS, which are 24 charged with acting on Plaintiff's I-485 application."); Dmitriev v. Chertoff, 2007 WL 1319533, 25 *4 (N.D.Cal. May 4, 2007) (dismissing Robert Mueller and stating that the only relevant 26 Defendant is Michael Chertoff). 27 /// 28 /// Defendants' Opposition to Plaintiffs' Motion for Summary Judgment C07-3011 RS 2

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C. PLAINTIFFS HAVE FAILED TO ESTABLISH THAT MANDAMUS IS AVAILABLE Plaintiffs cite to 8 C.F.R. § 103.2(b)(18), which provides for withholding of adjudication,

4 citing to Judge Armstrong's decision in Dong v. Chertoff, 2007 WL 2601107 (N.D. Cal. Sept. 6, 5 2007). Pl. Mot. At 6. As in Dong, that regulation has not been invoked and is not relevant here. 6 Plaintiffs acknowledges that mandamus is available only if they establishes three factors exist:

7 (1) their claim must be clear and certain; (2) the official's duty must be nondiscretionary, 8 ministerial, and so plainly prescribed as to be free from doubt, and (3) no other adequate remedy 9 may be available. Regardless, they present no facts establishing all three. Instead, they plainly 10 assert that they have a clear right to adjudication of their applications. Plaintiff Yang has no such 11 clear right. Indeed, as one Attorney General has stated, "aliens arriving at our shores must 12 understand that residency in the United States is a privilege, not a right." Matter of Jean, 23 I&N 13 Dec. 373, 384 (A.G. 2002); see also Clark v. Smith, 967 F.2d 1329, 1331-32 (9th Cir. 1992) ("An 14 alien seeking admission into the United States only has such rights as Congress has granted him."). 15 Here, contrary to Plaintiff Yang's belief, she has no "right" to adjustment of status. Adjustment of 16 status is a discretionary immigration benefit. 8 U.S.C. § 1255(a). 17 Furthermore, the action Plaintiffs seek to compel is not U.S. Citizenship and Immigration

18 Service's ("USCIS") action to take. Rather, Plaintiffs seek to compel the processing of their 19 Federal Bureau of Investigation ("FBI") name checks. As noted above, no court has held that it 20 has jurisdiction to compel that action. See, e.g., Konchitsky, 2007 WL 2070325, at *6 ("courts 21 squarely addressing the issue of whether they have jurisdiction to compel the FBI to perform name 22 checks in connection with adjustment of status petitions have overwhelmingly concluded that they 23 do not"); Yan v. Mueller, No. H-07-0313, 2007 WL 1521732, at *7 (S.D. Tex. May 24, 2007) 24 ("The precise issue presented in this case is the pace of the petitioner's name check investigation . 25 . . . Congress simply has not imposed a deadline for the FBI to complete the mandatory name 26 check investigations that are required for the adjustment of immigration status and 27 naturalization."). Accordingly, because the Court cannot compel USCIS to issue a decision on 28 Plaintiff Yang's application within a certain time frame without forcing the FBI to take certain Defendants' Opposition to Plaintiffs' Motion for Summary Judgment C07-3011 RS 3

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1 actions, Plaintiff Yang's claim is not clear and certain. Mandamus is not an available remedy. 2 Kildare v. Saenz, 325 F.3d 1078, 1084 (9th Cir. 2003). 3 4 D. ADJUDICATION HAS NOT BEEN UNREASONABLY DELAYED Plaintiffs posit that because their case has not yet been adjudicated, the delay is unreasonable.

5 Pl. Mot. at 7-12. However, as set forth in the Declaration of Hamzeh Sarsour, attached to 6 Defendants' Motion, USCIS monitors cases with pending name checks on a bi-weekly basis to 7 identify those in which a response from the FBI has been received. See Sansour Decl. ¶12. Thus, 8 contrary to Plaintiffs' contention, Defendants are acting diligently in their efforts to complete 9 adjudication in a timely manner. 10 As explained in the Sarsour Declaration, there are three possibilities in this case: First, Plaintiff

11 Yang's name check could be returned with "no record," in which case her application would be 12 adjudicated in short order. Id., ¶16. Second, her name check might be returned with a positive 13 response, necessitating further inquiry and time before reaching a decision on her application. Id. 14 Finally, until the name check is received, USCIS cannot proceed. Id. 15 Aboushaban v. Mueller, No. C 06-1280 BZ, 2006 WL 3041086 (N.D. Cal. Oct. 24, 2006), and

16 Singh v. Still, 470 F. Supp. 2d 1064 (N.D. Cal. 2007), are distinguishable from this case. In 17 Aboushaban, the plaintiff's application had been pending for nearly a decade. Aboushaban, 2006 18 WL 3041086, at *2. Furthermore, when the district court decided the motions for summary 19 judgment, the FBI name check was complete. Id. Accordingly, the facts of Aboushaban do not 20 comport with those of the case at hand. 21 Similarly, in Singh, there was a two and a half year delay between when the plaintiff filed his

22 first adjustment application and his name check was initiated. Singh, 470 F. Supp. 2d at 1068. 23 Here, there was no such delay. See Sarsour Decl. Furthermore, the court in Singh was concerned 24 that the defendants had taken no action on the plaintiff's case until initiation of litigation. Id. 25 Here, as stated above, Plaintiff Yang's application is monitored on a bi-weekly basis. Sarsour 26 Decl. In addition, just weeks after the Singh decision, DHS exercised its discretion to set forth a 27 policy regarding which cases merit expedited name checks. Plaintiff Yang's case meets none of 28 the stated criteria. Id. Defendants' Opposition to Plaintiffs' Motion for Summary Judgment C07-3011 RS 4

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Plaintiff Yang further argues that because the majority of name checks are completed quickly,

2 the delay in processing her name check is therefore unreasonable. See Pl. Mot. 13-15. One does 3 not follow the other. To the contrary, the fact the vast majority of name checks are processed 4 quickly argues against the existence of an unreasonable delay in this case. Eldeeb v. Chertoff, et 5 al., No. 07cv236-T-17EAJ, 2007 WL 2209231, at *5 (M.D. Fla. July 30, 2007). As explained in 6 the Sarsour Declaration, a small percentage of name checks require further investigation. 7 Plaintiffs rest their arguments on a single fact: the passage of time. However, "[t]he passage of

8 time alone is rarely enough to justify a court's intervention in the administrative process, 9 especially since administrative efficiency is not a subject particularly suited to judicial 10 intervention." Singh v. Ilchert, 784 F. Supp. 759, 765 (N.D. Cal. 1992). Plaintiff have failed to 11 establish any facts that show the delay is unreasonable. Further, Defendants have established good 12 cause for the delay in processing Plaintiff Yang's application. Accordingly, Plaintiffs' Motion 13 should be denied, and summary judgment should be granted in Defendants' favor.1 14 15 III. CONCLUSION For the foregoing reasons, the Government respectfully asks the Court to grant Defendants'

16 Motion for Summary Judgment, and deny Plaintiff's Motion. 17 18 Dated: November 28, 2007 19 20 21 22 23 24 25 26 Defendants note that Plaintiffs, pro se, also ask for EAJA fees. Should the Court grant 27 Plaintiffs' motion for summary judgment, Defendants respectfully request the opportunity to 28 fully brief the merits of Plaintiffs' EAJA request. Defendants' Opposition to Plaintiffs' Motion for Summary Judgment C07-3011 RS 5
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Respectfully submitted, SCOTT N. SCHOOLS United States Attorney /s/ ILA C. DEISS Assistant United States Attorney Attorneys for Defendants

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CERTIFICATE OF SERVICE Brewster, et al. v. Chertoff, et al. C 07-3011 RS The undersigned hereby certifies that she is an employee of the Office of the United States

4 Attorney for the Northern District of California and is a person of such age and discretion to be 5 competent to serve papers. The undersigned further certifies that she is causing a copy of the 6 following: 7 DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY 8 JUDGMENT 9 to be served this date upon the party in this action by placing a true copy thereof in a sealed 10 envelope, and served as follows: 11 12 13 14 CERTIFIED MAIL (# ) by placing such envelope(s) with postage thereon fully prepaid in the designated area for outgoing U.S. mail in accordance with this office's practice. PERSONAL SERVICE (BY MESSENGER) X FIRST CLASS MAIL by placing such envelope(s) with postage thereon fully prepaid in the designated area for outgoing U.S. mail in accordance with this office's practice.

15 ____ FEDERAL EXPRESS via Priority Overnight 16 ____ EMAIL 17 ____ FACSIMILE (FAX) 18 to the party(ies) addressed as follows: 19 Rick G. Brewster, Pro Se Daomin Yang, Pro Se 20 1513 Flamingo Way Sunnyvale, CA 94087 21 PH: 408.857.7814 FX: 408.730.6964 Email: [email protected] 22 I declare under penalty of perjury under the laws of the United States that the foregoing is 23 true and correct. 24 Executed this November 28, 2007 at San Francisco, California. 25 ____/s/____________________________ 26 LILY HO-VUONG Legal Assistant 27 28

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