Free Memorandum in Opposition - District Court of California - California

Case 5:07-cv-02754-JF

Document 24

Filed 10/29/2007

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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 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 ZHONG ZHANG, 12 JIE MA, 13 14 15 16 17 18 19 20 21 Plaintiffs Zhong Zhang and Jie Ma ask this Court to issue a writ of mandamus, compelling ) ) ) Plaintiffs, ) ) v. ) ) EMILIO T. GONZALEZ, Director of the U.S. ) Citizenship and Immigration Services; ) ALBERTO R. GONZALES, as Attorney General ) of the United States; ) MICHAEL CHERTOFF, in his Official Capacity, ) Secretary, United States Department of Homeland) Security, ) ) Defendants. ) ) No. C 07-2754 JF DEFENDANTS' CROSS-OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-7124 FAX: (415) 436-7169

22 Defendants to make a determination on their applications for adjustment of status. They also ask 23 the Court to find that Defendants have violated the Administrative Procedure Act ("APA"), and to 24 grant relief under the Declaratory Judgment Act. Plaintiffs' claims must fail. Plaintiffs' 25 applications remain pending because lead Plaintiff Zhang's name check is not yet complete. The 26 facts are undisputed, and Defendants are entitled to judgment as a matter of law. Accordingly, 27 Defendants respectfully oppose Plaintiffs' motion for summary judgment ask this Court to grant 28 their motion for summary judgment. Defendants' Cross-Opposition to Plaintiff's Motion for Summary Judgment C07-2754 JF 1

Case 5:07-cv-02754-JF

Document 24

Filed 10/29/2007

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Plaintiffs have not addressed Defendants' argument that the agency's delay is reasonable

2 because there is no firm deadline and Plaintiff Zhang's name check is pending with the Federal 3 Bureau of Investigation and Defendants have shown that they are doing everything to quicken the 4 process. Brower v. Evans, 257 F.3d 1058, 1068 (9th Cir. 2001) (applying Telecomm. Research 5 and Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) ("TRAC")). Plaintiff Ma's name check 6 was completed, but she is a derivative applicant and her application cannot be adjudicated until her 7 husband's is. 8 Plaintiffs do argue that while the Immigration and Nationality Act contains no timetable for

9 adjudication of applications for adjustment of status, Congress sets a normative expectation and 10 standard in "The Immigration Services and Infrastructure Improvements Act of 2000" of a 11 reasonable processing time for an immigrant benefit application as no more than 180 days after 12 initial application. See 8 USC § 1571. Firstly, this provision was passed prior to 9/11. Secondly, 13 this provision is entitled to little weight as it is precatory and does not give Plaintiffs a right to 14 adjudication of their applications in a particular time frame. Cf. Chong Yia Yang v. Cal. Dep't 15 Social Svcs., 183 F.3d 953 (9th Cir. 1999). 16 Again, a review of the six TRAC factors laid out in Defendants' motion for summary judgment

17 show that Defendants' have not unreasonably delayed actions pertaining to Plaintiffs' adjustment 18 of status applications. Additionally, Plaintiffs have failed to establish that mandamus is 19 appropriate. For the foregoing reasons, the Government respectfully asks that the Court grant 20 Defendants' motion for summary judgment as a matter of law and dismiss the action. 21 Dated: October 26, 2007 22 23 24 25 26 27 28 Defendants' Cross-Opposition to Plaintiff's Motion for Summary Judgment C07-2754 JF 2 /s/ ILA C. DEISS Assistant United States Attorney Attorney for Defendants Respectfully submitted, SCOTT N. SCHOOLS United States Attorney