Free Motion for Summary Judgment - District Court of California - California

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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

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; AND DECLARATION OF HAMZEH SARSOUR

Date: Time: Courtroom:

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

PLEASE TAKE NOTICE that on December 19, 2007, at 9:30 a.m., or as soon thereafter as

24 the parties may be heard, Federal Defendants Michael Chertoff, Emilio T. Gonzalez, Francis 25 Siciliano, Rosemary Melville and Robert Mueller (hereinafter "Defendants") will bring for hearing 26 a motion for summary judgment of this action. The hearing will take place before the Honorable 27 Richard Seeborg, in Courtroom 4, 280 S. 1 st Street, San Jose, CA 95113. 28 This Motion is based on the Memorandum of Points and Authorities, attached hereto, the Defendants' Motion for Summary Judgment C07-3011 RS 1

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1 declaration of Hamzeh Sarsour and all pleadings, papers and files in this action, and such oral 2 argument as may be presented at the hearing on the motion. 3 Dated: November 5, 2007 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants' Motion for Summary Judgment C07-3011 RS 2 _______________________________ ILA C. DEISS Assistant United States Attorney Attorneys for Defendants JOANN M. SWANSON Assistant United States Attorney Chief, Civil Division Respectfully submitted, SCOTT N. SCHOOLS United States Attorney

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1 2 3

MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Rick Brewster, an attorney and United States citizen, and his wife, Daomin Yang, a

4 citizen of China, ask this Court to issue a writ of mandamus, compelling Defendants to reach a 5 decision on the applications for adjustment of status to legal permanent residents (LPR) of 6 Plaintiff Yang, and her son Yufei Zhao. They also ask the Court to find that Defendants have 7 violated the Administrative Procedure Act (APA), to issue a notice of approval, and to award fees 8 under the Equal Access to Justice Act. Plaintiffs' claims must fail. 9 Plaintiff Brewster is an attorney who is improperly representing his family as a pro se. Further,

10 Plaintiffs' applications remain pending because their name checks are not yet complete and remain 11 with the Federal Bureau of Investigation (FBI). The facts are undisputed, and Defendants are 12 entitled to judgment as a matter of law. Accordingly, Defendants respectfully ask this Court to 13 grant their motion for summary judgment. 14 15 II. FACTS Plaintiff Ricky Brewster is a U.S. citizen and Plaintiffs Daomin Yang and her son, Yufei Zhao

16 are natives and citizen of the People's Republic of China. See Declaration of Hamzeh Sarsour 17 (Sarsour Decl.) ¶ 3 (attached as Exh. A). Mr. Brewster is a practicing attorney in the State of 18 California, bar number 176512. 19 In October 23, 2003, Plaintiffs applied for adjustment of status to LPR based on Plaintiff

20 Yang's marriage to Mr. Brewster. Id. On November 20, 2003 a request for background security 21 name check for Plaintiff Daomin Yang was submitted electronically to the FBI by USCIS's 22 California Service Center. A similar request was submitted for her son Yufei Zhao on June 29, 23 2005, after he turned 14. Those name checks remains pending. Sarsour Decl. ¶ 6.1 24 /// 25 Plaintiff made a request for discovery on September 23, 2007. Upon motion for clarification made by Defendants, the Court issued an Order on October 16, 2007, staying 27 discovery until further order of the Court. Defendants agree with the Court that these matters 28 usually resolve without needing discovery. 26 Defendants' Motion for Summary Judgment C07-3011 RS 3
1

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1 2 3

III. GENERAL PRINCIPLES APPLICABLE TO THIS MOTION A. Legal Standard Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories,

4 and admissions on file, together with the affidavits, if any, show that there is no genuine issue as 5 to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. 6 Civ. P. 56(c). An issue is "genuine" only if there is sufficient evidence for a reasonable fact finder 7 to find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 8 (1986). A fact is "material" if the fact may affect the outcome of the case. See id. at 248. The 9 Ninth Circuit has declared that "[i]n considering a motion for summary judgment, the court may 10 not weigh the evidence or make credibility determinations, and is required to draw all inferences in 11 a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 12 1997). A principal purpose of the summary judgment procedure is to identify and dispose of 13 factually unsupported claims. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986). 14 15 B. Adjustment of Status Section 245 of the Immigration and Nationality Act, codified at 8 U.S.C. § 1255, authorizes

16 the Secretary of the Department of Homeland Security ("Secretary")2 to adjust to permanent 17 residence status certain aliens who have been admitted into the United States. Adjustment of 18 status is committed to the Secretary's discretion as a matter of law. Section 1255(a) expressly 19 provides: The status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the [Secretary], in his discretion and 21 under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence[.] 22 8 U.S.C. 1255(a) (emphasis added). Significantly, the statute does not set forth any time 20 23 frame in which a determination must be made on an application to adjust status. 24 25 On March 1, 2003, the Department of Homeland Security and its United States Citizenship and Immigration Services assumed responsibility for the adjustment program. 6 27 U.S.C. § 271(b). Accordingly, the discretion formerly vested in the Attorney General is now 28 vested in the Secretary of Homeland Security. 6 U.S.C. § 551(d). 26 Defendants' Motion for Summary Judgment C07-3011 RS 4
2

Before a decision is rendered on an alien's application to adjust status, USCIS, in

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1 conjunction with the FBI, conducts several forms of security and background checks to 2 ensure that the alien is eligible for the benefit sought and that she is not a risk to national 3 security or public safety. Sarsour Decl. ¶ 5. USCIS also conducts investigations into the 4 bona fides of petitions and applications that have been filed, in order to maintain the 5 integrity of the application process and to ensure that there is no fraud in the application 6 process. See 8 U.S.C. § 1105(a) (authorizing "direct and continuous liaison with the 7 Directors of the Federal Bureau of Investigation and the Central Intelligence Agency and 8 with other internal security officers of the Government for the purpose of obtaining and 9 exchanging information for use in enforcing the provisions of this chapter in the interest of 10 the internal and border security of the United States"). These checks currently include 11 extensive checks of various law enforcement databases, including the FBI. Id. 12 13 C. Relief Available Under the Mandamus Act and the APA Mandamus is an extraordinary remedy. See Cheney v. United States District Court

14 for the District of Columbia, 542 U.S. 367, 392 (2004) (Stevens, J., concurring); Allied 15 Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980). The United States Supreme Court 16 has stated that "[t]he common law writ of mandamus is intended to provide a remedy for a 17 plaintiff only if . . . the defendant owes him a clear nondiscretionary duty." Heckler v. 18 Ringer, 466 U.S. 602, 616 (1984). The Ninth Circuit has explained that 19 20 21 Kildare v. Saenz, 325 F.3d 1078, 1084 (9th Cir. 2003). Thus, "`mandamus does not lie to 22 review the discretionary acts of officials.'" See Nova Stylings Inc. v. Ladd, 695 F.2d 1179, 23 1180 (9th Cir. 1983), quoting Nelson v. Kleppe, 457 F. Supp. 5, 8 (D. Idaho 1976). 24 Mandamus may not be used to instruct an official how to exercise discretion. Wilmot v. 25 Doyle, 403 F.2d 811, 816 (9th Cir. 1968). 26 Judicial review under the APA, 5 U.S.C. § 701, et seq., is also specifically precluded 27 where "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). 28 Defendants' Motion for Summary Judgment C07-3011 RS 5 [m]andamus . . . is available to compel a federal official to perform a duty only if: (1) the individual's claim is clear and certain; (2) the official's duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and (3) no other adequate remedy is available.

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1 Agency action, as defined under the APA, also includes "a failure to act." 5 U.S.C. § 2 551(13). Where a plaintiff alleges a violation of the APA, the Court must decide whether 3 Defendants' actions. Under 5 U.S.C. § 706(1), a court may compel "agency action 4 unlawfully withheld or unreasonably delayed." The elements of a claim under § 706(1) are 5 the existence of a discrete, ministerial duty; a delay in carrying out that duty; and a 6 determination that the delay was unlawful or unreasonable in light of prejudice to one of the 7 parties. Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 124 S. Ct. 2373, 23788 80, 159 L. Ed. 2d 137 (2004); Rockbridge v. Lincoln, 449 F.2d 567, 569-73 (9th Cir. 1971). 9 10 11 IV. ANALYSIS

A. Plaintiff Brewster, a licensed attorney, Cannot Represent His Wife Pro Se, in Federal Court As an initial matter, litigants in federal court have a statutory right to choose to act as

12 their own counsel. 28 U.S.C. § 1654. Although a non-attorney may appear in pro se in his or 13 her own behalf, that privilege is personal. McShane v. United States, 366 F.2d 286, 288 (9th 14 Cir.1966). "A litigant appearing in propria persona has no authority to represent anyone 15 other than himself [or herself]." Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962). 16 Non-attorney litigants may not represent others. Johns v. County of San Diego, 114 F.3d 874, 17 876 (9th Cir.1997); Church of the New Testament v. U.S., 783 F.2d 771, 774 (9th Cir.1986). 18 As such, to the extent the complaint has been filed on behalf of Plaintiff Brewster's wife, 19 seeking an order from the Court compelling the adjudication of her application for 20 adjustment of status, the claims must be stricken. Moreover, Mr. Brewster is active member 21 of the California Bar and there is no evidence in the record that he is admitted to practice 22 before this Court, or that he has applied for pro hac vice admission. See 28 U.S.C.A. § 1654. 23 24 B. All Defendants Except Chertoff Should Be Dismissed Since March 1, 2003, the Department of Homeland Security has been the agency

25 responsible for implementing the Immigration and Nationality Act. See 6 U.S.C. §§ 26 271(b)(5), 557. Accordingly, the only relevant Defendant here is Michael Chertoff, in his 27 capacity as Secretary of the Department of Homeland Security, and all other Defendants 28 should be dismissed. See Konchitsky v. Chertoff, No. C-07-00294 RMW, 2007 WL Defendants' Motion for Summary Judgment C07-3011 RS 6

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1 2070325, at *6 (N.D. Cal. July 13, 2007); Dmitriev v. Chertoff, No. C 06-7677 JW, 2007 WL 2 1319533, at *4 (N.D. Cal. May 4, 2007). 3 4 5 C. The Mandamus Act and the APA Cannot Provide Plaintiffs the Relief They Seek 1. Plaintiffs Seek To Compel Discretionary Actions

Mandamus is reserved for those situations in which the duty is ministerial,

6 nondiscretionary, and so plainly prescribed as to be free from doubt. Kildare, 325 F.3d at 7 1078. A ministerial act is "devoid of the exercise of judgment or discretion." Harmon Cove 8 Condominium Ass'n, Inc. v. Marsh, 815 F.2d 949, 951 (3d Cir. 1987). A duty is ministerial 9 "where the officer can do only one thing." Work v. United States, 267 U.S. 175, 177 (1925). 10 Here, the statute itself commits the pace of processing Plaintiffs' applications to the

11 discretion of the Attorney General. See 8 U.S.C. § 1255(a) (an alien's status "may be 12 adjusted by the Attorney General, in his discretion and under such regulations as he may 13 prescribe." (emphasis added)). The applicable regulations make it clear that the Secretary 14 wished to vest USCIS with discretion in how to conduct the adjudication. See e.g., 15 8 C.F.R.§ 245.6 (an "interview may be waived . . . when it is determined by the Service that 16 an interview is unnecessary") (emphasis added); see also id. at § 103.2(b)(7) ("[The Service] 17 may direct any necessary investigation") (emphasis added); id. at § 103.2(b)(18) ("A district 18 director may authorize withholding adjudication") (emphasis added). Furthermore, USCIS 19 has exercised its discretion in determining which name checks should be expedited. See 20 Sarsour Decl., ¶ 15. Thus, although USCIS must eventually notify Plaintiffs of its decision 21 on their applications, see 8 C.F.R. § 245.2, they are not entitled to a decision within any 22 particular time-frame. Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 690 (9th Cir. 23 2003); see also Eldeeb v. Chertoff, et al., No. 07cv236-T-17EAJ, 2007 WL 2209231, at *24 24 (M.D. Fla. July 30, 2007) (dismissing mandamus complaint, finding that USCIS does not owe 25 a non-discretionary duty to an applicant to process an adjustment application at a certain 26 pace). 27 Moreover, the FBI name check involves a discretionary function. Yan v. Mueller, No. H-

28 07-0313, 2007 WL 1521732, at *6 (S.D. Tex. May 24, 2007) ("The evidence shows that the Defendants' Motion for Summary Judgment C07-3011 RS 7

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1 delay is due, not only to the volume of requests that the FBI receives, but also to the FBI's 2 exercise of discretion in determining the timing for conducting the many name check requests 3 that it receives and the manner in which to conduct those checks."). Congress has not 4 imposed a time frame on name checks for immigration benefits. Contra Intelligence Reform 5 and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 3001(g), 118 Stat. 3638 (2004) 6 (requiring Government personnel security checks to be completed within a certain time 7 frame). Further, numerous courts have recognized the FBI's discretion "in determining the 8 timing for conducting the many name check requests that it receives and the manner in which 9 to conduct those checks." Yan, No. H-07-0313, 2007 WL 1521732, at *6; see also Cardenas10 Escalante v. Chertoff, No. 07cv0212, slip op., p. 9 (S.D. Cal. May 30, 2007) ("Plaintiffs have 11 not pointed to any statute or regulation requiring the FBI to complete background checks in 12 any period of time, reasonable or not."); Takkallapalli v. Chertoff, 487 F. Supp. 2d 1094, 13 1099 (W.D. Mo. 2007) (stating that where delay was due to incomplete name check, 14 "Defendants' conduct [was] sufficient to avoid judicial intervention."); Li, 482 F. Supp. 2d 15 at1179 (recognizing that USCIS has wide discretion "in matters pertaining to the pace of the 16 adjudication of I-485 applications."); Sozanski v. Chertoff, et al., No. 06-CV-0993 N, 2006 17 WL 4516968, at *1 (N.D. Tex. Dec. 11, 2006) (holding that federal district courts lack 18 jurisdiction to compel the FBI to perform name checks in adjustment of status cases). 19 Compelling USCIS to process Plaintiffs' applications in a certain time frame would amount 20 to compelling the FBI to exercise its discretion in a certain manner. Accordingly, Plaintiffs 21 seek to compel a discretionary action, and relief is unavailable under either the Mandamus 22 Act or the APA. 23 24 2. Plaintiffs Seek To Compel Multiple Actions

The United States Supreme Court's decision in Southern Utah Wilderness Alliance, 542

25 U.S. 55 (2004), mandates against granting relief. There, the Court determined that the 26 APA's reference to "a failure to act" is limited to a discrete action that the agency is required 27 to take. Id. at 64. Here, Plaintiffs ask the Court to compel multiple actions, including issuing 28 a notice of approval. See Complaint, Prayer for Relief. As discussed above, USCIS has Defendants' Motion for Summary Judgment C07-3011 RS 8

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1 exercised its discretion to determine which cases merit being moved to the head of the name 2 check line for expedited processing. Plaintiffs can point to no law requiring USCIS to 3 expedite their name check or setting a time frame upon the FBI's exercise of discretion in 4 conducting the investigation. Accordingly, because these are not actions legally required or 5 unlawfully withheld, relief is unavailable under the APA. 6 7 D. The Delay is Reasonable Even if the actions at issue were not discretionary, Plaintiffs have failed to establish the

8 existence of an unreasonable delay. To determine whether a delay is egregious, such that 9 relief under the APA is warranted, several circuits have adopted the test first articulated in 10 Telecomm. Research and Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) ("TRAC"). As 11 outlined in TRAC, the factors for consideration include: 12 13 14 15 16 17 18 (1) the time agencies take to make decisions must be governed by a rule of reason; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulations are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.

19 750 F.2d at 80. 20 The court in Sze v. INS, No. C 97-0569 SC, 1997 WL 446236, at *8 (N.D. Cal.

21 Jul. 24, 1997), which applied the TRAC test to a similar complained-of delay in the 22 immigration context, found the fourth factor to be the most persuasive. Id.at *8. The court, 23 in refusing to grant relief under the APA, held that "the reasonableness of administrative 24 delays must be judged in light of the resources available to the agency." Id. The court also 25 recognized that by granting relief, it "would, at best, reorder the queue of applications, 26 thereby leading to little net benefit." Id.; see also Liberty Fund, Inc. v. Chao, 394 F. Supp. 27 2d 105, 117 (D.D.C. 2005) (granting deference to agency's decision on how to handle 28 competing applications for permanent labor certifications). Defendants' Motion for Summary Judgment C07-3011 RS 9

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1

In Liberty Fund, the court refused to grant mandamus relief where it was requested solely

2 due to the length of the delay in processing alien labor certifications. 394 F. Supp. 2d at 115. 3 Applying the TRAC factors, the court held that without a statutory timetable governing 4 agency action, the TRAC factor, "that weighs most heavily under the circumstances of the 5 case is the fourth factor - the effect of granting relief on the agency's competing priorities." 6 Id. at 116. The court reasoned that the agency's "first in, first out processing" was deserving 7 of deference because any grant of relief to petitioners would result in no net gain - petitioners 8 would move to the front of the queue at the expense of other similarly situated applicants. 9 After examining the agency's priorities, growing workload, and good faith efforts to 10 alleviate the delays, the court concluded that mandamus relief was not warranted. Id. at 119. 11 Just as in Liberty Fund, Plaintiffs' argument of unreasonable delay in this case must also

12 fail. Plaintiffs ask this Court to find that USCIS has not adjudicated their I-485 applications 13 in a reasonable period of time. Plaintiffs' legal arguments under Sections 555(b) and 706(1) 14 of the APA fail because adjudication has not been unreasonably delayed. Contrary to 15 Plaintiffs' pleadings, the existence of administrative delays does not mean that such delays 16 are unreasonable. Courts have noted that "the reasonableness of such delays must be judged 17 in light of the resources that Congress has supplied to the agency for the exercise of its 18 functions, as well as the impact of the delays on the applicants' interests." Fraga v. Smith, 19 607 F. Supp. 517, 521 (D. Or. 1985) (citing Wright v. Califano, 587 F.2d 345, 353 (7th Cir. 20 1978)). Indeed, "[t]he passage of time alone is rarely enough to justify a court's intervention 21 in the administrative process." Fraga, 607 F. Supp. at 521. 22 23 1. A Rule of Reason Governs the Agency Decisions at Issue

The first TRAC factor requires an agency to govern decisions with a rule of reason.

24 TRAC, 750 F.2d at 80. Given the large volume of petitions and applications requiring 25 adjudication, the extensive background check that is required for national security and public 26 safety, and the limited resources available to it, the FBI is proceeding in an orderly fashion 27 with the completion of name checks in the order in which they are received. See Eldeeb, 28 2007 WL 2209231, at *2. Once the FBI name check in this case has been completed, USCIS Defendants' Motion for Summary Judgment C07-3011 RS 10

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1 will promptly adjudicate Plaintiff Yang and her son's applications. Sarsour Decl. ¶ 9. 2 USCIS monitors the case on a weekly basis to determine whether the name check remains 3 pending. Id., ¶ 13. Public safety requires USCIS to make certain that the background checks 4 have been completed and any outstanding issues resolved before it reaches a decision. 5 In Plaintiff Yang's case, this means that USCIS must await the results of the FBI name

6 check before reaching a decision on her I-485 adjustment application, and the FBI must be 7 given time to perform an accurate and thorough check. Sarsour Decl. ¶ 9. Her son is a 8 beneficiary of her application. The FBI's "first in, first out" processing approach is a method 9 that is "deserving of deference." Liberty Fund, 394 F. Supp. 2d at 118; see also In re Barr 10 Lab. Inc., 930 F.2d 72, 76 (D.C. Cir. 1991) ("The agency is in a unique and authoritative 11 position to view its projects as a whole, estimate the prospects for each, and allocate its 12 resources in the optimal way."). 13 14 2. There Is No Congressionally Mandated Timetable

The second TRAC factor does not apply to the present case because there is neither a

15 statutory requirement that the FBI process the name check nor one requiring USCIS to 16 adjudicate the application within a certain amount of time. Contra Intelligence Reform and 17 Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 3001(g), 118 Stat. 3638 (2004) 18 (requiring Government personnel security checks to be completed within a certain time 19 frame). Additionally, Congress has not provided any clear guidelines indicating the speed at 20 which the FBI and USCIS should conduct its adjudications. Congress has, however, 21 required that USCIS conduct certain criminal and national security background checks to 22 ensure eligibility for adjustment of status. See 8 U.S.C. §§ 1105(b)(1), 1255(a). 23 Where there are no statutory guidelines, and in order to establish a "rule of reason," this

24 Court must consider the factors that contribute to the backlogs that both the FBI and USCIS 25 face. See, e.g., INS v. Miranda, 459 U.S. 14, 18 (1982) ("Both the number of the 26 applications received by the INS and the need to investigate their validity may make it 27 difficult for the agency to process an application as promptly as may be desirable"). In 28 making a request for immigration benefits, "aliens only have those statutory rights granted Defendants' Motion for Summary Judgment C07-3011 RS 11

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1 by Congress," Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996), and no federal statute or 2 regulation prescribes a hard-and-fast deadline for acting upon immigration applications, such 3 as the ones in this case, submitted to the USCIS. See Cordoba v. McElroy, 78 F. Supp. 2d 4 240, 244 (S.D.N.Y. 2000). 5 As discussed in Eldeeb, the FBI name check is a complex process. Eldeeb, 2007 WL

6 2209231, at *2. It involves a check of a variety of sources, and although most name checks 7 are resolved in a matter of hours, approximately 32 percent require additional, manual 8 review. Eldeeb, 2007 WL 2209231, at *2. Of those remaining checks, 22 percent are 9 returned within two months. Id. The FBI processes name checks chronologically, based on 10 the date the name check is submitted. Id. 11 Before September 11, 2001, the FBI processed approximately 2.5 million name checks

12 per year, checking only the "main" files. Id. at *3. In Fiscal Year 2006, the FBI processed 13 over 3.4 million name checks. Id. In addition, the FBI began checking "reference" files. Id. 14 This expansion of the name check procedures prompted USCIS, in December 2002 and 15 January 2003, to resubmit 2.7 million name check requests, for those with pending 16 applications for immigration benefits. Id. at *4. The FBI is currently still working to resolve 17 440,000 of these resubmitted name checks; because the FBI processes name checks 18 chronologically, the processing of regular name checks has been delayed. Id. Name checks 19 that exceed the two month window require personal attention of the processing agent. 20 Eldeeb, 2007 WL 2209231, at *5. The FBI currently processes approximately 340,000 name 21 checks per year by hand. Id. Thus, it is evident that there are substantial factors contributing 22 to the backlog. 23 24 The third TRAC factor is the delay's impact on human health, welfare, and economic 25 harm to Plaintiffs. This factor's analysis overlaps with the analysis of the fifth TRAC factor, 26 the nature and extent of the interests prejudiced by the delay. TRAC, 750 F.2d at 80; Liberty 27 Fund, 394 F. Supp. 2d at 118. Plaintiffs may be inconvenienced by the delay in adjudication, 28 Defendants' Motion for Summary Judgment C07-3011 RS 12 3. The Impact of the Delay is Minimal in Comparison with the National Interest in Complete and Thorough Background Checks

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1 but this individual interest cannot outweigh Defendants' interests in fully and accurately 2 completing each name check. Security background checks for individuals seeking 3 immigration benefits is a key component to our nation's national security. See The 9/11 4 Commission Report, 2004 WL 1634382 at 352 (Jul. 22, 2004) (finding that, "had the 5 immigration system set a higher bar for determining whether individuals are who or what 6 they claim to be....it could have potentially have excluded, removed, or come into further 7 contact with several hijackers who did not appear to meet the terms for admitting short-term 8 visitors."). 9 In most cases, the adverse impact caused by the delay is not substantial. Applicants for

10 adjustment of status who have pending applications may apply for and obtain employment 11 authorization for the entire time the application is pending. Additionally, most applicants 12 may also apply for and receive advance parole to enable them to travel abroad during the 13 pendency of their application. Sarsour Decl. ¶ 16. Even when a more substantial impact is 14 felt by an applicant, this impact, "is unlikely to rise to the level that would significantly 15 change the Court's assessment of the unreasonableness of the delay in light of the 16 importance of the agency's competing priorities." Liberty Fund, 394 F. Supp. 2d at 118. As 17 the highest of priorities, "our national security requires that caution and thoroughness in 18 these matters not be sacrificed for the sake of expediency." Safadi v. Howard, 466 F. Supp. 19 2d 696, 701 (E.D. Va. 2006). Although a delay in processing may have a negative impact, 20 "nevertheless, in this post-9/11 context, agencies must have the freedom to carefully and 21 thoroughly investigate these applications without judicial interference in their priorities." 22 Patil v. Mueller, et al., No. C 07cv71 JCC, 2007 WL 1302752 at *2 (E.D. Va. Apr. 30, 2007) 23 (holding that the Court had no jurisdiction to issue a writ of mandamus due to legal and 24 policy considerations). Thus, when balancing the agencies' interests in defending against 25 threats to national security against the Plaintiffs' interest in adjudication, the interests of the 26 nation must prevail. 27 /// 28 /// Defendants' Motion for Summary Judgment C07-3011 RS 13

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1 2

4.

The Effect of Expedition Would Intrude on Agency Discretion and Prejudice Other "First In Line" Applicants

Similarly, the effect of expediting delayed agency action under the fourth TRAC factor 3 would unquestionably impinge upon agency activities and responsibilities of a higher 4 priority. Such an order would intrude on the agency's discretion and ability to fulfill its 5 highest priority of safeguarding the nation. See Boim v. Quranic Literacy Institute, 291 F.3d 6 1000, 1027 (7th Cir. 2002) ("the government's interest in preventing terrorism is not only 7 important but paramount"); see also Walters v. Reno, 145 F.3d 1032, 1043 (9th Cir. 1998) 8 ("The Government's interests in the administration of its immigration laws and in preventing 9 [immigration related] document fraud are likewise considerable.") 10 Delays in the processing of FBI name checks arise for a variety of reasons. First, USCIS 11 is not the only agency that engages in the FBI name check program. Notably, the FBI and 12 USCIS processes' do not occur in vacuums. Any requirement that the FBI or USCIS process 13 Plaintiffs' name check or applications within a particular time limit will have the unfortunate 14 side effect of slowing the processing for other applicants who are also awaiting action on 15 their applications for immigration benefits. Here, Plaintiffs' applications are under 16 adjudication at the San Jose District Office. Sarsour Decl. ¶ 2. USCIS monitors cases with 17 pending name checks on a weekly basis to identify those in which a response from the FBI 18 has been received. Id. 19 The requests generally processed out-of-order are cases expedited by USCIS for specific 20 health, welfare, or economic reasons. Absent these compelling reasons, moving some 21 individuals to the front of the queue would simply move that group ahead of others who also 22 had been waiting, resulting in no net gain in processing. See In re Barr Lab., 930 F.2d at 75; 23 Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1101 (D.C. Cir. 2003). 24 Furthermore, ordering Plaintiffs' case to the front of the line sets the precedent that the more 25 litigious applicants are most likely to move to the top of the pile at the expense of other 26 applicants that have waited even longer, but may not have the resources to file suit. 27 Manzoor v. Chertoff, 472 F. Supp 2d 801, 809 (E.D. Va. 2007); see also Yan, 2007 WL 28 Defendants' Motion for Summary Judgment C07-3011 RS 14

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1 1521732 at *7 (holding that a grant of review of petitioner's claims would only, "encourage 2 other applicants to file suit to receive expedited treatment rather than wait their turn in 3 line."). 4 Moreover, the courts have been cautioned against "engrafting their own notions of proper

5 procedures upon agencies entrusted with substantive functions by Congress." Vermont 6 Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 525 7 (1978). Here, where "there are no allegations of bad faith, a dilatory attitude, or a lack of 8 evenhandedness on the part of the agency, the reasonableness of the delays in terms of the 9 legislatively imposed `reasonable dispatch' duty must be judged in light of the resources that 10 Congress has supplied, as well as the impact of the delays on the applicants' interests." 11 Wright, 587 F.2d at 353. The complexity of agency investigations, as well as the extent that 12 the individual applicants contributed to delays, also enter into a court's deliberations. See 13 Saleh v. Ridge, 367 F. Supp. 2d 508, 512 (S.D.N.Y. 2005). An agency's good faith efforts to 14 address delays militate against a finding of unreasonableness. See Wright, 587 F.2d at 345. 15 16 5. The Agencies are Exercising Every Effort to Address the Delay

The sixth and last TRAC factor provides that a court need not find impropriety to hold

17 that an agency action is unreasonably delayed. Conversely, "the good faith of the agency in 18 addressing the delay weighs against mandamus." Liberty Fund, 394 F. Supp. 2d at 120. 19 Here, the delay is due to the pendency of Plaintiffs' FBI name check. Sarsour Decl. ¶ 9. As 20 discussed above, the FBI is processing the name checks to the best of its ability, and USCIS 21 is monitoring the case to ensure that once the name check is complete, USCIS can complete 22 adjudication. Thus, balancing the TRAC factors demonstrates the reasonableness of the 23 Government's actions. 24 In addition, Plaintiff Yang has failed to show that USCIS will refuse to adjudicate her

25 application once the FBI completes the requisite name checks. See Saleh, 367 F. Supp. 2d at 26 513; see also Eldeeb, 2007 WL 209231, at *17 (finding that the plaintiff had failed to show 27 that USCIS was refusing to act on his application). On the contrary, the FBI and USCIS are 28 taking active steps towards completing the background checks for adjudication of her Defendants' Motion for Summary Judgment C07-3011 RS 15

Case 5:07-cv-03011-RS

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1 application. Specifically, USCIS is making every effort to complete adjudication as soon as 2 the name check is completed. Sarsour Decl. ¶ 9. 3 Many courts have refused to grant relief under the APA, even when naturalization or

4 other immigration applications were pending for significant time periods. See Clayton v. 5 Chertoff, 2007 WL 2904049 (N.D.Cal. Oct. 1, 2007)(a delay of two years or less is not 6 unreasonable as a matter of law); Saleh, 367 F. Supp. 2d at 513 (finding five-year delay not 7 in violation of APA in part in light of volume of applications); Espin v. Gantner, 381 F. 8 Supp. 2d 261, 266 (S.D.N.Y. 2005) (over three-year delay not unreasonable because of 9 government's limited resources and substantial caseload); Alkenani v. Barrows, 356 F. Supp. 10 2d 652, 656-57 (N.D. Tex. 2005) (no unreasonable delay found in naturalization context 11 because of need to wait for completion of FBI investigation). Just as in these cases, 12 Plaintiffs in the present case insists that this Court find an unreasonable delay based solely 13 on the amount of time passed since receipt of their applications. However, the law requires 14 a more in-depth analysis for mandamus relief under the APA. A review of the six TRAC 15 factors shows that Defendants have not unreasonably delayed actions pertaining to Plaintiff 16 Yang's adjustment of status applications. 17 18 V. CONCLUSION For the foregoing reasons, the Government respectfully asks the Court to dismiss all

19 Defendants except Defendant Chertoff, and grant the remaining Defendant's motion for 20 summary judgment as a matter of law. 21 Dated: November 5, 2007 22 23 24 25 26 27 28 Defendants' Motion for Summary Judgment C07-3011 RS 16 /s/ ILA C. DEISS Assistant United States Attorney Attorneys for Defendants Respectfully submitted, SCOTT N. SCHOOLS United States Attorney