IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHMUL KAPLAN, TASIM MANDIJA, FERIDE MANDIJA, ROUZBEH ALIAGHAEI by and through his parents and guardians ad litem MASHAALAH and MARYAMREZAEI ALIAGHAEI, LIDIA BURTSEVA, NELLI OLEVSKAVA, ESHETU MERI, SARA BACHMAN, MOISEY BACKMAN, JOE BEOPLUE, SONYUNOR BEOPLUE, GLAYON BLOUE, ISAAK ROZENBLIT, SEMEN SAVRANSKIY, LYUDMILA SHIROKAVA, IGOR STEPANOV, YEVGENIYA STRIZHEVSKAVA, individually and on behalf of all others similarly situated,

CLASS ACTION Civil Action No. 06-5304

Plaintiffs,

vs.

MICHAEL CHERTOFF, as Secretary of the Department of Homeland Security, ALBERTO GONZALES, as Attorney General of the United States, EMILIO T. GONZALEZ, as Director of U.S. Citizenship and Immigration Services, ROBERT S. MUELLER, III, as Director of the Federal Bureau of Investigation, JO ANNE B. BARNHART, as Commissioner of Social Security, DONALD MONICA, as District Director of the U.S. Citizenship and Immigration Services, Philadelphia District Office,

Defendants.

FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE AND MANDAMUS RELIEF·

I. INTRODUCTION 1. Named and class plaintiffs are all elderly or disabled humanitarian immigrants

whose Supplemental Security Income (SSI) disability payments have been or will be terminated

because of the actions and omissions of the defendants, in violation of plaintiffs' due process and

equal protection constitutional rights, as well as statutory rights under the Administrative Procedure Act.
2. All plaintiffs have been found eligible for SSI benefits as a result of severe disabilities or advanced age and means-tested poverty. Plaintiffs would all be able to continue receiving this SSI entitlement, but for the defendants' delays in processing their applications for lawful permanent resident (LPR) status and thereafter for United States citizenship. These delays are beyond the control of plaintiffs.
3. Affirmatively welcomed by our nation'simmigration laws, most refugees and asylees obtain employment and achieve self-sufficiency after arrival. But a minority faces barriers to self-sufficiency due to age and medical disabilities often resulting from the persecution they experienced in their countries of origin.
4. Humanitarian immigrants who arrive in the United States after August 22, 1996, are eligible for SSI benefits for seven years from either the date oftheir entry (for refugees) or from the date they were granted asylee status. Congress established a procedural pathway for humanitarian immigrants to avoid the termination of their SSI benefits by becoming United States citizens before the conclusion of their seven-year period of eligibility. Congress expected that the executive branch would promptly process LPR and naturalization applications so that there would be no interruption of SSI. Congress never intended that these refugees and asylees would lose their SSI after seven years if they pursued citizenship.
5. Yet due to the defendants' failure to process LPR and naturalization applications in a timely and expeditious manner, over 6,000 humanitarian immigrants have lost their SSI benefits due to the expiration ofthe seven-year bar. Many of these immigrants have also lost the Medicaid that usually accompanies SSI. The Social Security Administration (SSA) projects that
2

over 46,000 immigrants will be cut off from SSI in the years 2006-2012 as a result ofthe delays in granting citizenship and the operation of the seven year rule.
6. Having been approved for SSI, plaintiffs have a statutory property interest in continued receipt of SSI benefits. Defendants' failure to process LPR and naturalization applications in a timely fashion and their failure to expedite these applications, even while knowing that many impoverished and severely disabled humanitarian immigrants rely upon SSI as subsistence income, denies plaintiffs a timely and fair determination on the merits of their citizenship applications even where they have done everything within their power to become citizens. These failures violate the Constitution and statutes of the United States.
7. Plaintiffs' applications for LPR and naturalization are most commonly delayed because of background and "name check" investigations, despite the fact that du1y admitted refugees and asylees are particularly unlikely to pose a security risk.
8. Plaintiffs therefore seek judicial relief pursuant to the due process and equal protection guarantees of the Fifth Amendment to the United States Constitution and the protections against improper rulemaking and unreasonably delayed or withheld federal agency actions under the Administrative Procedure Act, mandating defendants to reinstate and continue payment of SSI benefits to all named plaintiffs and their class until plaintiffs have been provided a fair opportunity to show that they are eligible for citizenship by completing the LPR and naturalization processes. II. JURISDICTION AND VENUE
9. This action arises under the Constitution of the United States; the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 1570; the Social Security Act, 42 U.S.C. § 405(g); and the Administrative Procedure Act (APA),
3

5 U.S.C. § 701 et seq. This Court has jurisdiction under 28 U.S.c. § 1331 (federal question jurisdiction); 42 U.S.C. § 405(g); 28 U.S.C. §§ 1361 (Mandamus Act) and 2201 (Declaratory Judgment Act); and 5 U.S.C. §§ 701 - 702(Administrative Procedure Act). This Court may grant relief pursuant to 28 U.S.C. §§ 1361 and 2202, and 5 U.S.C. § 702.
10. Further exhaustion of administrative remedies, to the extent that any exist, would be futile. Plaintiffs have no adequate remedy at law.
11. For all plaintiffs who have been terminated from SSI, the Social Security Commissioner has made a final adverse decision, and exhaustion of administrative remedies concerning the Commissioner's actions would be futile.
12. Venue lies in the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1391 (e)(2) because a substantial part of the actions, omissions, or events giving rise to the claim occurred in this judicial district and due to the provisions of 42 U.S.c. § 405(g). In addition, several named plaintiffs and at least one defendant reside in the Eastern District of Pennsylvania. 28 U.S.c. § 1391(e). III. PARTIES Plaintiffs
13. Named and class representative plaintiffs in this action are Shmul Kaplan, Tasim Mandija, Feride Mandija, Rouzbeh Aliaghaei by his parents and guardians ad litem Maryamrezaei and Mashaalah Aliaghaei, Lidia Burtseva, Nelli Olevskaya, Eshetu Meri, Sara Bachman, Moisey Bacman, Joe Beoplue, Sonyunor Beoplue, Glayon Bloue, Isaak Rozenblit, Semen Savranskiy, Lyudmila Shirokaya, Igor Stepanov, and Yevgeniya Strizhevskaya, all of whom are refugees or asylees lawfully residing in the United States.
4

Defendants 14. Michael Chertoffis the Secretary of Homeland Security. He is charged with
"[a]ll authorities and functions of the Department of Homeland Security [DHS] to administer and enforce the immigration laws," 8 C.F.R. § 2.1; 8 U.S.C. § 1103(a). He is sued in his official capacity.
15. Alberto Gonzales is the Attorney General ofthe United States. He is charged with administering and enforcing the nation's immigration laws, 8 U.S.C. § 1103(a), (g). The Attorney General is the head of the Department of Justice (DOJ), of which the Executive Office ofNaturalization is part. He also has the sole authority to naturalize persons as citizens ofthe United States. 8 U.S.C. § 1421. He is sued in his official capacity.
16. Robert S. Mueller, III, is the Director of the Federal Bureau ofInvestigation (FBI). He is charged with administering the FBI's duties to perform investigations in connection with citizenship applications under review by CIS, including performing background and name checks. He is sued in his official capacity.
17. Emilio T. Gonzalez is the Director of United States Citizenship and Immigration Services (CIS). He is charged with administering the immigration laws on behalf of the Secretary of Homeland Security throughout the United States, including the processing and adjudicating ofLPR and citizenship applications. He is sued in his official capacity.
18. Jo Anne Barnhart is the Commissioner of the Social Security Administration (SSA). She is charged with administering the provisions of the Social Security Act, including the SSI program. She is sued in her official capacity.
19. Donald Monica is the District Director of the CIS Philadelphia District Office. He is sued in his official capacity.
5

20. Defendants Michael Chertoff, Alberto Gonzalez, Emilio T. Gonzales and Donald Monica are responsible for the adjudication, grant and denial of applications for LPR and naturalization filed by named plaintiffs and their class pursuant to 8 U.S.C. § 1421; 8 U.S.C. § 1427; 8 U.S.C. § 1446; 8 C.F.R. § 2.1; 8 C.F.R. § 103.l(a); 8 C.F.R. § 310.2 and 8 C.F.R. § 316.3.
21. Defendants Alberto Gonzales and Robert S. Mueller, III, are responsible for providing pertinent background and name check information relating to applicants for LPR and naturalization pursuant to 8 U.S.C. § 1427(d) and (e), and 8 C.F.R. § 316.10(b). Defendant Jo Anne Barnhart is responsible for the administration of the SSI program pursuant to 42 U.S.C. § 1382a et seq. IV. STATUTORY AND REGULATORY SETTING
A. Humanitarian Immigrant Eligibility for SSI 22. "Humanitarian immigrants" are largely refugees and asylees, all of whom are granted permission to reside in the United States because they have demonstrated a reasonable fear of persecution in their country of origin. Refugees are people who, prior to their entry, applied for and received permission to come to the United States due to the threat of persecution in their home country. Asylees are those who have applied for and received protected status after coming to the U.S., likewise due to a threat of persecution. Also included in this classification of humanitarian immigrants are a small number of Cuban and Haitian entrants and certain Amerasians. 23. Supplemental Security Income (SSI) is a federal means-tested program administered by SSA that pays a subsistence cash benefit for necessities of life to very low income elderly, disabled and blind people. Currently, SSI provides a monthly benefit of $603 for an individual and $904 for a couple. In most states, including Pennsylvania, SSI recipients are
6

automatically entitled to receive Medicaid coverage, which insures access to needed health care. This coverage is especially important for those with severe mental and physical disabilities or advanced age.
24. Immigrants who are found eligible for SSI under Title XVI of the Social Security Act have a constitutionally-protected property interest in continued receipt of SSI benefits. Those receiving SSI are, by definition, not expected to work because they are disabled or elderly. Until 1996, humanitarian immigrants, if they were otherwise eligible, could receive SSI without any time limitation, just as United States citizens do.
25. In 1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), which limited SSI benefits for humanitarian immigrants arriving after August 22, 1996, to five years. 8 U.S.C. § 1612(a)(2)(A). It was assumed that during these five years these immigrants could become United States citizens and continue receiving SSI benefits without interruption.
26. Understanding that prompt action by the Executive Branch was key to fulfilling congressional intent, President Clinton, in signing the PRWORA, stated that he was directing the INS (now CIS) to: " ... [remove] all bureaucratic obstacles that stand in the way of citizenship for legal immigrants who are eligible." Statement by President William J. Clinton Upon Signing H.R. 3734, 1996 U.S.C.C.& A.N. 2891, 2892; 32 Weekly Compo Pres. Doc. 1487 (Aug. 26, 1996).
27. After the signing of the PRWORA, the Attorney General issued Order No. 204996 (August 23, 1996) entitled "Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation." The purpose of this order was to protect
7

life and safety by providing certain exceptions to the law's disqualification of non-citizens from receiving various public benefits. Attached as Exhibit A.
28. In the summer of 1997, pursuant to the Balanced Budget Act of 1997, Pub. L. 105-33, 111 Stat. 251, Congress extended the time period for humanitarian immigrants who arrived after August 22, 1996, from five to seven years from the date of entry for refugees, and, similarly, from five to seven years from the grant of asylum for asylees. 8 U.S.c. §§ 1612(a)(2)(A)(i) - (ii).
29. In enacting the extension to seven years, Congress made clear its intent to avoid any interruption in the continuing receipt of SSI benefits. "The 5-year exception in the welfare law was designed to allow refugees and asylees, who often arrive in the U.S. with few possessions, time to adjust to life here. However, because of delays in adjusting to permanent resident status, mandatory residency requirements before applying for citizenship, and recent increases in waiting times in the naturalization process, under the 5-year eligibility period, many would become ineligible for welfare benefits despite their attempting to naturalize at their earliest opportunity. By extending the exception to allow these groups 7 instead of 5 years of eligibility, these noncitizens would be given more time to naturalize while continuing to receive welfare benefits without interruption." H. R. Report No.149, 105th Cong., 1st Sess. 1182 (1997) (emphasis added).
30. Consistent with the President's signing statement and the Attorney General's Order, the Executive Office of Naturalization issued a Policy Memorandum on October 6, 1997, establishing a policy and procedure of giving priority to applicants at risk of losing SSI benefits as "emergent circumstances." Executive Office ofNaturalization Operations Policy
8

Memorandum No. 22: Guidance on Expeditious Naturalization Processing for Applicants Affected by the Welfare Reform Act. Attached as Exhibit B.
31. The procedure concerning expedited applications in "emergent circumstances" was reiterated in further internal guidance on August 23,2000, with the issuance ofField Operations Policy Memorandum No. 70: Processing Expedited Naturalization Applications by the Immigration Services Division. Attached as Exhibit C.
B. Lawful Permanent Residency 32. Immigrants must be lawful permanent residents (LPR) before they can apply for naturalization. Refugees may apply for LPR status one year after they enter the country. 8 C.F.R. § 209.1 (a)(1). Once granted, the LPR status of a refugee is back-dated to the date of entry into the United States. 8 C.F.R. § 209.1(e). 33. Asylees may apply for LPR status one year after they are granted asylee status, but their permanent residency is back-dated only to one year before the date that the LPR status was granted. 8 C.F.R. §209.2(a)(1)(ii). 34. LPR applicants are subjected to various name, background, and security investigations. These investigations have delayed the granting of applications for LPR status, a prerequisite for applying for naturalization.
c. Naturalization
35. The United States Constitution grants Congress the power to "establish a Uniform Rule ofNaturalization." Art. I, § 8, cl. 4.
36. The Attorney General has the "authority to naturalize persons as citizens of the United States," 8 U.S.C. § 1421(a); Pub. L. No. 101-649, Title IV, 104 Stat. 4978, 5038-48 (Nov.29, 1990), and has delegated the authority to administer and enforce the Immigration and
9

Nationality Act and all other laws relating to immigration, naturalization and nationality to the Director ofImmigration and Naturalization Services (INS). 8 C.F.R.§ 100.2(a); 28 C.F.R. § 0.105. On March 1,2003, INS ceased to exist and its principal functions were transferred to the newly created CIS within DHS. Homeland Security Act of2002, Pub.L.No.107-296, § 471, 116 Stat. 2135, 2205 (codified at 6 U.S.C. § 291 (a)); 8 U.S.C. § 1103 (a) (1). Along with this transfer, the authority and responsibility to administer and enforce all laws pertaining to immigration, including the adjudication of applications for naturalization, was transferred from the Commissioner of INS to the Director of CIS. See 6 U.S.C. § 271(b)(2); 8 U.S.c. § 1103(a)(1).
37. Immigrants, including refugees and asylees, are not permitted to apply for naturalization until ninety days prior to the five-year anniversary of the effective date of their LPR status. 8 U.S.C. § 1445(a)-(b); 8 C.F.R. §§ 316.4, 334.1, 334.2. Refugees who are granted LPR status, therefore, can apply for naturalization four years and nine months after their entry into the United States, since their permanent residency status is back-dated to the date of entry. Since asylees only have their LPR status back-dated to one year before the grant of that status, they must wait at least three years and nine months after the grant of LPR status to apply for - naturalization.
38. Applicants for naturalization initiate the process by completing and filing a lengthy application form and paying a $330 application fee. 8 C.F.R. § 334.2(a). Once the application has been filed, CIS conducts a background investigation of the applicant. 8 U.S.C. § 1446(a); 8 C.F.R. §§ 335.1, 335.2. Since 1997, the FBI must also conduct a criminal background check. Pub. L.105-119, Title I; 111 Stat. 2440,2448-49 (1997); 8 U.S.C. §1446; 8 C.F.R. §335.2(b). The applicant must pass tests of English proficiency and civic knowledge (unless CIS
10

waives the tests on medical grounds). 8 C.F.R. §§ 312.1, 312.2. Also, CIS must conduct a faceto-face "examination" interview of the applicant. 8 U.S.C. § 1446(a); 8 C.F.R. §§ 335.2(a), 332.1.
39. The CIS utilizes the FBI's National Name Check Program (NNCP) to access the FBI's Central Records Systems to do the requisite checks for naturalization applicants. In fiscal year 2005, when the FBI processed a total of3.7 million name checks; 45% of the total incoming name check requests were submitted by CIS. The FBI has acknowledged that "CIS's name check requests outpace NNCP available resources." Suppl. Decl. of Michael A. Cannon of Aug. 31,2006, para. 21 filed in Yakubova v. Chertoff, No. 1:06-cv-3203-ERK-RLM (E.D.N.Y.). Since April 2006, or earlier, CIS will not schedule the naturalization "examination" interview until CIS has received a "definitive response" from the FBI that the background investigation has been completed. 8 C.F.R. § 335.2(b).
40. The Inspector General of the Department of Homeland Security has issued a report critical of the inefficiencies and delays in the security check processes which have resulted in "stall[ed] application processing for long periods" and "stalled cases...contributing to hundreds oflawsuits against USCIS." Office oflnspector General, Department of Homeland Security, "A Review of U.S. Citizenship and Immigration Services' Alien Security Checks," pp. 15,24 (OIG06-06, November 2005).
41. As of July 2006, CIS has publicly acknowledged a "gross backlog" of 1.1 million unprocessed naturalization applications with 140,000 under CIS "control," and the other 960,000 not within its "control," the majority of the latter constituting applications which are pending before the FBI, described as "pending law enforcement security checks." CIS News Release,
11

Sept. 15,2006, available at: http://www.uscis.gov/graphics/publicaffairs/newsrelslN400Bklg091506NR.pdf.
42. On information and belief, every year, CIS processes and resolves the applications for LPR status and for naturalization of thousands of humanitarian immigrants within seven years. CIS and the FBI are capable of processing all applications of members of the plaintiff class within that time frame.
43. In theory, CIS (and its predecessor, INS) have, at the direction of President Clinton, had a policy and procedure of expediting naturalization processing for applicants at risk of being cut offSSI due to the seven year limitation. The President's signing statement called for the removal of "all bureaucratic obstacles".
44. Subsequently, the INS issued an Operations Policy Memorandum on October 6, 1997, acknowledging that, "Many LPRs fac[e] ...termination ofSSI... [and] are eligible to apply for citizenship. However, due to increasing naturalization application receipts and current naturalization processing times, many, if not most, will not be able to complete the naturalization process before the termination of benefits." The Memorandum then directed that applicants faced with "emergent circumstances," including "loss of [SSI] benefits," be given a priority in processing. Executive Office ofNaturalization Operations Policy Memorandum No. 22: Guidance On Expeditious Naturalization Processing for Applicants Affected by the Welfare Reform Act, (Oct. 6, 1997), pp. 1-2. Attached as Exhibit B. Although applications are usually processed in chronological order of receipt, "an exception may be permitted... upon showing of emergent circumstances." Id. The INS directive further recognized that "the expeditious processing of naturalization applications from individuals facing the loss of...SSI benefits from
12

the Welfare Reform Act [PRWORA] is in keeping with the spirit of concern for the protection of life and safety in the [Attorney General] order." Id.
45. The procedure for expediting applications in "emergent circumstances" was reiterated in further guidance on August 23,2000, with the issuance ofField Operations Policy Memorandum No. 70: Processing Expedited Naturalization Applications by the Immigration Services Division. Attached as Exhibit C.
46. These expediting policies and procedures, however, have been ineffective for the plaintiff class for a variety of reasons. First, CIS does not inform immigrant service agencies, the public, or, perhaps most importantly, SSI recipients at risk oflosing their eligibility, ofthe existence of these policies and procedures. Further, the policies are not published in the Federal Register nor codified in the Code of Federal Regulations. As a result, the policies and procedures are rarely invoked. Second, in the few cases where expedition is requested, the request is often ignored.
47. Moreover, SSA and CIS have no joint policy or procedure in place to identify applicants whose SSI has been or will be terminated. Thus, they cannot insure the expediting of the LPR and naturalization applications of those humanitarian immigrants. Like CIS, SSA has no policy or procedure for advising recipients, immigration service agencies, or the public that an applicant may seek expeditious handling of his or her applications for LPR status and for citizenship based on the possible effect ofthe seven-year limitation.
48. Indeed, the cases of humanitarian immigrants are often arbitrarily and irrationally delayed well beyond seven years, resulting in the termination of SSI benefits to thousands of refugees and asylees. IV. CLASS ALLEGATIONS
13

49. Pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), named plaintiffs bring this action on behalf of themselves and all similarly situated persons. The plaintiff class consists of:
All people who have been or will be determined eligible to receive monthly benefits under the SSI program but have been or will be determined to be limited by the seven-year period of eligibility pursuant to 8 U.S.C. § 1612(a). 50. The class is so numerous that joinder of all members is impracticable. According to SSA, from 1998 through December 2005, a total of 5,662 humanitarian immigrants have lost their SSI benefits as a result ofthe expiration of the seven-year period. SSA estimates that, in the years 2006-2012, an additional 46,780 humanitarian immigrants will lose their SSI due to such delays. See Freedom of Information Act (FOIA) response from Willie J. Polk, SSA, Oct. 20, 2006, attached as Exhibit D. SSA estimates that each year more humanitarian immigrants will reach the expiration of the seven-year time period without having been approved for citizenship. Id. 51. There are questions of law and fact that are common to the class members, namely whether defendants, in failing to promptly process LPR and naturalization applications, and to properly implement expediting policies for the class, have violated plaintiffs' rights to due process and equal protection under the Fifth Amendment to the United States Constitution, violated the notice and rulemaking requirementsofthe Administrative Procedure Act (APA) and have unlawfully withheld and unreasonably delayed agency action to which plaintiffs are entitled under the APA. 52. The claims ofthe named plaintiffs are typical ofthe claims ofthe class they seek to represent. Named plaintiffs seek to challenge and remedy delays in the LPR and naturalization process resulting in the termination of SSI benefits; these are the very claims made
14

by all class members. There is no conflict between their interests and those of the class they seek to represent.
53. In defending their own rights, the individual named plaintiffs will fairly and adequately defend the rights of all proposed class members. Named plaintiffs are adequate representatives of the class and are represented by counsel with considerable experience and expertise in public benefits, immigration, and class action litigation.
54. Defendants, by their delayed processing, their refusal to announce and implement an effective expediting processes, and their termination or threatened termination of SSI benefits, have acted or refused to act on grounds generally applicable to the class, so that final injunctive, declaratory, and mandamus relief is appropriate with respect to the class as a whole. V. FACTS OF NAMED CLASS REPRESENTATIVE PLAINTIFFS
Shmul Kaplan 55. Shmul Kaplan is an 80-year-old Holocaust survivor and current resident of Levittown, Pennsylvania. He had his right leg amputated above the knee in the former Soviet Union and lives with a prosthesis that does not function properly. His left leg, which had been badly fractured, is now deformed and causes him pain. Mr. Kaplan also has other serious health problems, including prostate and high blood pressure conditions. 56. Mr. Kaplan was the victim of religious persecution in the former Soviet Union because of his Jewish background and activism. He entered the United States in November 1996 at the age of71 and was granted asylum in January 1997. Mr. Kaplan established his eligibility for SSI and Medicaid in March 1997. Five years later, Mr. Kaplan also qualified for the Medicare health insurance program. 57. In 1998, Mr. Kaplan applied for permanent residency status, but defendants delayed ruling upon the application for five years. It was not granted until September 2003. Mr.
15

Kaplan cannot apply for naturalization until June 2007, over ten years after he was granted asylum.
58. Because Mr. Kaplan had been living in the country for seven years, the Social Security Administration terminated his SSI in July 2004. He was also wrongly terminated from the Medicare health insurance program, losing access to his treating urologist, and not reinstated until over two years later.
Tasim Mandija 59. Plaintiff Tasim Mandija is an 80-year-old resident of Philadelphia. He suffers from prostate cancer, cardiovascular disease, poor circulation, and neuropathy. He cannot stand for more than a few minutes at a time and must use a wheelchair or walker for mobility. 60. Mr. Mandija is from Albania, where he was persecuted and spent four years in prison and five years in a concentration camp for his opposition to the government of Albania. He came to the United States with his wife, Feride Mandija, in September 1996. He was granted asylum as ofNovember 24, 1998. 61. Mr. Mandija was authorized to receive SSI and Medicaid benefits starting in November 1998. 62. Mr. Mandija applied for LPR status in February 2000, but defendants delayed ruling upon the application for six years. CIS denied his application in February 2006 because it claimed not to have Mr. Mandija's fingerprints. In fact, Mr. Mandija had submitted his fingerprints to CIS, but the agency apparently lost or misfiled them; In August 2006, on its own motion CIS re-opened Mr. Mandija's application in order to take another set of fingerprints from Mr. Mandija. 63. Even if Mr. Mandija's application for LPR status were granted before the end of 2006, he would not be able to apply for naturalization until late 2009.
16

64. Mr. Mandija's SSI benefits were terminated in December 2005, seven years after he was granted asylum.
Feride Mandija 65. PlaintiffFeride Mandija is a 67-year-old resident of Philadelphia and the wife of Tasim Mandija. She suffers from severe arthritis. 66. Ms. Mandija is originally from Albania, where she was beaten by the Albanian police in order to force her to reveal her husband's whereabouts. She carne to the United States with her husband, Tasim Mandija, in September 1996. She was granted asylum as of November 1998. 67. Based upon her disabilities, Ms. Mandija was approved for SSI starting in November 1998. 68. Ms. Mandija applied for lawful permanent residency status in February 2000, but defendants delayed ruling upon her LPR application for five years. It was finally granted on March 9, 2005, and backdated one year to March 9, 2004. As a result, Ms. Mandija can first apply for naturalization only on December 9,2008. This date is ten years after she was granted asylum. 69. Like her husband's, Ms. Mandija's SSI benefits ended in December 2005, seven years after she was granted asylum. Mashaalah and Maryamrezaei Aliaghaei on behalf of their son, Rouzbeh Aliaghaei 70. Mr. Mashaalah Aliaghaei and his wife, Ms. Maryamrezaei Aliaghaei, immigrated to the United States from Iran. They carne with their children, including their son, Rouzbeh. They are currently residents of the Commonwealth of Virginia. 71. Ms. Aliaghaei had been outspoken in Iran about the lack of freedom and equality for women. As a result, she was fired from her high school teaching job and jailed as a political
17

pnsoner. She was incarcerated for the first three months ofher pregnancy with Rouzbeh and received no prenatal care.
72. Rouzbeh has Bannayan-Riley-Ruvalcaba Syndrome (BRRS), a rare genetic disorder which has caused severe macrocephaly (enlarged head), autism, seizures, impaired mobility, and marked mental retardation.
73. Ms. Aliaghaei and Rouzbeh entered the United States on June 14, 1998. 74. When Rouzbeh arrived in the United States, he was nine years old and suffered from the severe physical and cognitive disabilities associated with BRRS. 75. Political asylum was granted to the entire family on February 12, 1999. Rouzbeh began receiving SS1 on the basis of his severe disabilities in February 1999 upon the grant of asylum. Because he was eligible for SS1, Rouzbeh also received Medicaid. . 76. Mr. Aliaghaei and Rouzbeh's two siblings entered the United States on September 10, 1999. 77. Mr. and Ms. Aliaghaei applied for lawful permanent residency for their entire family in November 2000. Defendants delayed ruling upon the LPR application for five years. The family was not granted legal permanent residency until October 2005. As a result ofthe defendants' delay in granting lawful permanent residency, the Aliaghaeis will not be eligible to apply for naturalization until July 2009. 78. Today, at age 17, Rouzbeh is small in stature, nonverbal, and unresponsive to his surroundings. His estimated level of cognitive functioning is 2-3 years of age. 79. Ms. Aliaghaei currently works as a teacher's aide in Fairfax County, Virginia. Mr. Aliaghaei is Rouzbeh's primary care giver. As a result ofthis major responsibility and the time it demands, Mr. Aliaghaei has been unable to obtain paid employment.
18

80. Rouzbeh's SSI benefits were tenninated in February 2006, because seven years had expired since the grant of asylum. Due to the loss of SSI, Rouzbeh's eligibility for Medicaid also came to an end. 8 U.S.C. § 1612(b)(2)(A)(i)(I). Rouzbeh no longer has access to the physical therapy, speech therapy, and medical treatment he needs.
Lidia Burtseva 81. Lidia Burtseva, aged 59, is a resident of Warminster, Pennsylvania, and was born in the Ukraine - fonnerly part of the USSR - on June 20, 1947. She and her husband suffered persecution in the Ukraine because her husband was Jewish. Although Ms. Burtseva is not Jewish, she was persecuted because her husband was. 82. The couple entered the United States on September 18, 1999, as refugees. Ms. Burtseva applied for lawful pennanent residency status in April 2001 and was approved in September 2002, retroactive to September 1999. 83. Ms. Burtseva initially worked as a home health aide from January 2000 until October 2002, when she became too disabled to work. Ms. Burtseva suffers from hypertension, major depression, and hallucinatory psychosis with reduced ability to recall or memorize basic facts necessary for her to function on a daily basis. 84. Ms. Burtseva applied for SSI in March 2003 and was approved for benefits. Her SSI benefits were her only source of income. In November 2003, she and her husband were divorced. 85. Ms. Burtseva applied for naturalization in October 2004, five years after her entry into the United States. As a result of her severe medical condition, she also applied for a waiver from the English language and United States history and government portions of the naturalization examination, pursuant to the Immigration and Nationality Act §312(b)(1). 8 U.S.C. §1423(b)(1).
19

86. The CIS scheduled Ms. Burtseva's naturalization examination interview for July 11,2005, but then abruptly cancelled it on July 5, 2005.
87. In June 2006, Ms. Burtseva's lawyers at the HIAS and Council Migration Service of Philadelphia (BIAS and Council) wrote to Evangelia Klapakis, Acting District Director ofthe CIS Philadelphia office, requesting "expedite[d] processing" of the case due to Ms. Burtseva's "emergent circumstances" caused by the expected loss of her SSI benefits in September 2006, seven years after her entry as a refugee. See Letter from Ayodele Gansallo, Esq., to Evangelia Klapakis, attached as Exhibit E. Counsel cited the expedited processing policies averred above, namely Executive Office of Naturalization Operations Policy Memorandum No. 22: Guidance On Expeditious Naturalization Processing for Applicants Affected by the Welfare Reform Act (Oct. 6, 1997), attached as Exhibit B, and the Field Operations Policy Memorandum No. 70: Processing Expedited Naturalization Applications, issued by the Immigration Services Division (Aug. 23, 2000). Attached as Exhibit C. HIAS did not receive a response to this letter Ms. Burtseva's SSI benefits were terminated in September 2006.
88. However, following the filing of this initial complaint, Ms. Burtseva received a letter from CIS inviting her to be interviewed regarding her naturalization application. This took place on January 17,2007. She was sworn in immediately thereafter.
Nelli Olevskaya 89. Ms. Olevskaya is a 63-year-old refugee from the Ukraine. As Jews, Ms. Olevskaya and her family suffered severe, open persecution. Following the breakup of the Soviet Union in 1991, she could no longer maintain steady employment as a result of her ethnic origin and religious identity.
20

90. In April 1999, Ms. Olevskaya, along with her husband, Yevegny, entered the United States as refugees. She applied for lawful permanent residency status in May 2000. In May 2001, her LPR status was approved, retroactive to April 1999.
91. Ms. Olevskaya began to receive SSI benefits in 2002 as a result of severe multiple mental and physical impairments, including coronary artery disease, hypertension, hypothyroidism, and major depressive and personality disorders.
92. Ms. Olevskaya applied for naturalization in March 2005. 93. CIS initially scheduled Ms. Olevskaya for an examination on August 18,2005. However, CIS postponed the examination "due to unforeseen circumstances." 94. In June 2006, Ms. Olevskaya's lawyers at HIAS and Council wrote to Evangelia Klapakis, Acting District Director of the CIS Philadelphia, requesting "expedite[d] processing" of the case due to her "emergent circumstances" caused by the loss of her SSI benefits seven years after her entry as a refugee. Counsel cited the expedited processing policies averred above. See Letter from Ayodele Gansallo, Esq., to Evangelia Klapakis, attached as Exhibit E. 95. HIAS did not receive a response to this letter. Ms. Olevskaya's SSI benefits were terminated on May 1, 2006 96. However, following the filing of this initial complaint, Ms. Olevskaya received a letter from CIS inviting her to be interviewed regarding her naturalization application. This took place on January 17, 2007. She was sworn in immediately thereafter. Eshetu Meri 97. Eshetu Meri, age 51, is a blind Ethiopian, now living in Fairfax, Virginia with his wife and three children. 98. In 1993, while still living in Ethiopia, Mr. Meri was fired from his job because of his political beliefs and ethnic identity. In 1998, while visiting the United States in an attempt to
21

treat his failing eyesight, Mr. Meri learned that the Ethiopian government had seized his property and that his life would be in danger ifhe returned to Ethiopia because of his civic activities to promote democracy. Mr. Meri stayed in the United States. He applied for and received political asylum in March 1999. His wife and three children also received asylum and joined him in the United States in 2000.
99. When Mr. Meri was granted asylum in 1999, he was totally blind, diabetic, insulin dependent, and on medication for high blood pressure. Due to these disabilities, Mr. Meri was found eligible for SSI and Medicaid immediately upon the grant of asylum.
100. Mr. Meri has since contracted coronary artery disease, prostate enlargement, and kidney infections, rendering him even more severely disabled and dependent on Medicaid. He had been receiving home health care for eight hours per day due to the life-threatening nature of his illnesses and his blindness.
101. Mr. Meri applied for lawful permanent residency status in 2000, as soon as he was eligible to do so. However, defendants did not act upon his request for five years. It was only on September 30, 2005 that he was granted LPR status, effective September 30, 2004.
102. The earliest Mr. Meri can now apply for naturalization is June 30, 2009, four years and nine months from September 30, 2004.
103. In June 2006, Mr. Meri's SSI benefits were terminated due to the passage of seven years from the grant of asylum. After a failed administrative appeal, his Medicaid benefits
were also terminated in October 2006. 8 U.s.c. § 1612(b)(2)(A)(i)(I). Mr. Meri has not been
able to see a physician nor purchase medications, and his home health care has ended. Other Named Plaintiffs
22

104. Sara Bachman is a 74-year-old refugee from Moldova who is currently living in Philadelphia, Pennsylvania. She applied for naturalization on December 13,2004. She had a naturalization interview scheduled for June 21,2005. Unfortunately, CIS subsequently cancelled the interview. In November 2006, her SSI benefits were discontinued because she reached the end of her seven-year period of eligibility. As of January 2007, she has been without SSI for three months.
105. Moisey Bachman is a 76-year-old refugee from Moldova who is currently living in Philadelphia, Pennsylvania. He applied for naturalization on December 13,2004. He had a naturalization interview scheduled for June 21,2005. Unfortunately, CIS subsequently cancelled the interview. In November 2006, his SSI benefits were discontinued because he reached the end of his seven-year period of eligibility. As of January 2007, he has been without SSI for three months
106. Joe Beoplue is an 85-year-old refugee from Liberia who is currently living in Yeadon, Pennsylvania. He applied for naturalization on November 13,2006. His SSI benefits were terminated in February 2006 because he had reached the end of his seven-year period of eligibility. In January, after his attorney requested that the CIS expedite his naturalization application, he received a notice scheduling him for a naturalization interview on February 9, 2007.
107. Sonyunor Beoplue is a 74-year-old refugee from Liberia who is currently living in Yeadon, Pennsylvania. She applied for naturalization on November 13,2006. Her SSI benefits were terminated in February 2006, because she had reached the end of her seven-year period of eligibility. In January, after her attorney requested that the CIS expedite her naturalization
23

application, she received a notice scheduling her for a naturalization interview on February 9, 2007.
108. Glayon Bloue is a 99-year-old refugee from Liberia who is currently living in Yeadon, Pennsylvania. She applied for naturalization on November 13,2006. Her SSI benefits were terminated in February 2006, because she had reached the end of her seven-year period of eligibility. In January, after her attorney requested that the CIS expedite her naturalization application, she received a notice scheduling her for a naturalization interview on February 9, 2007.
109. Isaak Rozenblit is a 69-year-old refugee from Russia who is currently living in Philadelphia, Pennsylvania. He applied for naturalization on September 6, 2005. He had a naturalization interview scheduled for February 28, 2006. Unfortunately, CIS subsequently cancelled the interview. In July 2007, his SSI benefits are expected to be discontinued because he will reach the end of his seven-year period of eligibility.
110. Semen Savaransky is a 79-year-old refugee from Russia who is currently living in Philadelphia, Pennsylvania. He applied for naturalization on August 25,2005. He had a naturalization interview scheduled for February 21,2006. Unfortunately, CIS subsequently cancelled the interview. In July 2007, his SSI benefits are expected to be discontinued because he will reach the end of his seven-year period of eligibility.
111. Lyudmila Shirokaya is a 67-year-old refugee from the Ukraine who is currently living in Philadelphia, Pennsylvania. She applied for naturalization on August 9, 2004. She had a naturalization interview scheduled for June 7, 2005. Unfortunately, CIS subsequently cancelled the interview. In November 2006, her SSI benefits were discontinued because she reached the end of her seven-year period of eligibility. As of January 2007, she has been without
24

SSI for three months. In December, after her attorney requested that the CIS expedite her naturalization application, she received a notice scheduling her for a naturalization interview on February 21,2007.
112. Igor Stepanov is a 71-year-old refugee from Russia who is currently living in Philadelphia, Pennsylvania. He applied for naturalization on February 3, 2005. He had a naturalization interview scheduled for August 12,2005. Unfortunately, CIS subsequently cancelled the interview. In April 2007, his SSI benefits are expected to be discontinued because he will reach the end of his seven-year period of eligibility.
113. Yevhenia Strizhevskaya is a 70-year-old refugee from Russia who is currently living in Holland, Pennsylvania. She applied for naturalization on February 26,2005. She had a naturalization interview scheduled for January 24,2006. Unfortunately, CIS subsequently cancelled the interview. In April 2007, her SSI benefits are expected to be discontinued because she will reach the end of her seven-year period of eligibility. VI. FACTS COMMON TO THE CLASS
114. Class plaintiffs are humanitarian immigrants who have either applied for legal permanent residency status, or have applied for citizenship after the four year and nine months waiting period as LPRs. Due to a variety of delays at the hands of the defendants, class plaintiffs have not become citizens or will not become citizens within the allotted seven years.
115. Class plaintiffs are all seriously disabled or elderly persons with little or no income or resources. They meet all eligibility criteria for receipt of SSI benefits other than United States citizenship.
116. Class plaintiffs have lost, or are at risk oflosing, eligibility for SSI, due to the expiration of the seven-year SSI limitation. They will not be eligible to have their SSI restored
25

until defendants act to review and make a final determination on their applications for naturalization.
117. Class plaintiffs have actively pursued citizenship during the seven-year period afforded them.
118. Defendants have failed to act in a timely fashion in reviewing and making determinations on applications by these humanitarian immigrants for lawful permanent residency, and thereafter on their applications to become United States citizens. This failure has resulted in unreasonable delays and the loss of eligibility for SSI.
119. CIS and SSA have together failed to implement a joint plan and process to take requisite expediting actions in order to avoid the loss of SSI benefits because ofthe seven-year time period. VII. CLAIMS FOR RELIEF
First Claim - Due Process of Law Violation 120. Plaintiffs hereby incorporate the averments as set forth above. 121. Defendants have violated plaintiffs' rights to due process oflaw under the Fifth Amendment to the United States Constitution, in that they have terminated, or plan to terminate benefits in which plaintiffs possess a statutory property interest. In addition, defendants have deprived plaintiffs of a fair opportunity and process to demonstrate their qualifications for citizenship. 122. Defendants' denial of a fair opportunity and process to achieve United States citizenship in a timely manner, including implementation of an effective expediting procedure, vitiates plaintiffs' interest in the receipt ofSSI benefits which the Congress intended to be maintained without interruption. Second Claim - Equal Protection of the Laws Violation
26

123. Plaintiffs hereby incorporate the averments as set forth above. 124. Defendants have violated plaintiffs' right to equal protection of the laws under the Fifth Amendment to the United States Constitution, in that defendants' actions and delays have caused some humanitarian immigrants to be denied SSI, while other similarly situated humanitarian immigrants have had their applications for citizenship processed in time to avoid interruption in their SSI benefits. This arbitrary treatment oftwo similarly situated groups violates equal protection. 125. Defendants' arbitrary and irrational processing of LPR and naturalization applications results in an unconstitutional and discriminatory application of the seven year provision and the arbitrary termination ofSSI benefits for many humanitarian immigrants. Third Claim - Administrative Procedure Act Violation 126. Plaintiffs hereby incorporate the averments as set forth above. 127. Defendants have violated the Administrative Procedure Act and abused their discretion in that they have unlawfully withheld and unreasonably delayed agency action on plaintiffs' applications for lawful permanent residency and for naturalization. 128. Defendant Gonzalez ofthe CIS has also abused his discretion by refusing to expedite processing of the naturalization applications for members of the class in accordance with CIS' own stated policies and internal operating guidance, and has also abused his discretion by failing to inform plaintiffs, refugee service agencies and the public of the opportunity for expedited processing of naturalization applications. 129. The direct consequence of withholding or delaying the administrative agency actions has been the inability of class members to obtain naturalization and United States citizenship within their first seven years of residency in the U.S., thereby leading to the termination oflife sustaining SSI benefits and the Medicaid which usually accompanies SSI.
27

130. The Administrative Procedure Act provides that persons suffering a legal wrong because of an agency's failure to act are entitled to seek judicial review. 5 U.S.c. § 702. The reviewing court must compel agency action unlawfully withheld or unreasonably delayed, and hold such unlawful agency action to be an abuse of discretion. 5 U.S.C. § 706(1), (2)(A). VIII. REQUESTS FOR RELIEF
Wherefore, named plaintiffs and their class respectfully request that this Court: a. Declare on behalf of named plaintiffs and the certified class that defendants' failure to act in a timely fashion in reviewing and making determinations on plaintiffs' applications for lawful permanent residency and naturalization in accordance with defendants' own stated policies and internal operating guidance, and failure to implement policies to expedite naturalization applications, results in the unlawful termination of SSI benefits, and thus violates the guarantees to due process of law and the equal protection of the laws in the Fifth Amendment to the United States Constitution, and constitutes agency action unlawfully withheld or unreasonably delayed and an abuse of discretion, in violation of the Administrative Procedure Act. b. Issue a preliminary and final injunction, and a mandamus order requiring that SSA reinstate payment of SSI benefits to plaintiffs and those members of the plaintiff class whose SSI benefits have been terminated due to the expiration ofthe seven-year period, and continue SSI benefits to plaintiffs and their class until they have had a fair opportunity to complete the LPR and naturalization processes, and until defendants have fully ceased their arbitrary practices wherein class members' applications for lawful permanent residency and naturalization are unreasonably and arbitrarily delayed beyond the seven-year time period. c. Issue a preliminary and permanent injunction, and a mandamus order requiring that CIS and the FBI promptly process plaintiffs' applications for LPR status and naturalization,
28

including expediting all LPR and naturalization applications where loss of SSI benefits is present

or threatened, to avoid any terminations of SSI benefits after the expiration of the seven year

period.

d. Award plaintiffs the costs of suit and reasonable attorneys' fees pursuant to the

Equal Access to Justice Act. 28 U.S.C. § 2412.

e. Award such other relief as this co~ may dee'M1and pr 11 r.

~.

~

JO THAN M. STEIN, Attorn y I.D. No. 15223

) Validation of Signature Code: jms211

liARD RI

P. WEISHAUPT, Attorney I.D. No. 19382

MI HAEL R. FROEHLICH, Attorney I.D. No. 92767

Community Legal Services, Inc.

1424 Chestnut Street

Philadelphia, PA 19102-2505

Tel. (215) 981-3742

Fax (267) 765-6481

THOMAS B. ROBERTS, Attorney I.D. No. 31196 JORDANA GREENWALD, Attorney I.D. No. 93836 Ballard Spahr Andrews & Ingersoll, LLP 1735 Market Street, 51 st Floor Philadelphia, PA 19103-7599 Tel. (215) 665-8500

Dated: January 31, 2007

JUDITH BERNSTEIN-BAKER, Attorney I.D. No. 41831 Hebrew Immigrant Aid Society and Council Migration Service of Philadelphia 2100 Arch Street Philadelphia, PA 19103 Tel. (215) 832 -0900 Fax (215) 832 -0919
JOHN BOUMAN Sargent Shriver National Center on Poverty Law 50 East Washington Street, Suite 500 Chicago, IL 60602 Tel. (312) 263-3830 Fax (312) 263-3846

29

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHMUL KAPLAN, et al. PlaintiffS,
v. MICHAEL CHERTOFF, et al.,
Defendants.

: CIVIL ACTION : NO. 06-5304 : : : : : : :

ORDER AND NOW, this 19th day of July, 2007, upon the representation of the parties that a settlement has tentatively been reached in this matter, it is hereby ORDERED that Plaintiff’s Motion for a Preliminary Injunction (doc. no. 7) and Plaintiff’s Motion to Certify Class and for Appointment of Class Counsel (doc. no. 8) are DENIED without prejudice.

AND IT IS SO ORDERED.

s/Eduardo C. Robreno EDUARDO C. ROBRENO, J.

 
 481 F.Supp.2d 370 (2007)
Shmul KAPLAN, et al., Plaintiffs, v.
Michael CHERTOFF, et al., Defendants.
Civil Action No. 06-5304. United States District Court, E.D. Pennsylvania.
March 29, 2007. As Amended April 16, 2007. 371234 *371 *372 *373 *374 Ayodele A. Gansallo, Elias and Council Migration Service of Philadelphia, Jonathan M. Stein, Michael R. Froehlich, Richard P. Weishaupt, Community Legal Services, Inc., Jordana L. Greenwald, Sabrina M. Rudnick, Thomas B. Roberts, Ballard, Spahr, Andrews & Ingersoll, LLP, Philadelphia, PA, John Bouman, Chicago, IL, for Plaintiffs. Elizabeth J. Stevens, US Dept. of Justice, Washington, DC, Richard M. Bernstein, U.S. Attorney's Office, Philadelphia, PA, for Defendants.
MEMORANDUM
EDUARDO C. ROBRENO, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION .............................................................376
II. BACKGROUND ..............................................................377
A. Social Security Benefits for Humanitarian Refugees ...................377
B. Procedure for Humanitarian Immigrants to Become United States Citizens ...........................................................378
C. Delays in the LPR and Naturalization Process .........................379
1. Delays for Refugees ...............................................379 2. Delays for Asylees ................................................379
375 *375
D. Alleged Inadequacy of Existing CIS and FBI Policies ..................380
E. Termination of Benefits ..............................................380
III. JURISDICTION ...........................................................380
A. Plaintiffs Have "Presented" Claims for Continued Enrollment in the SSI Program ............................................................381
B. No Practical Purpose Would Be Served By Exhausting Administrative

Remedies ...........................................................381
1. Plaintiffs' claims are collateral to their claim for benefits .....382 2. Plaintiffs have made out a colorable showing of irreparable harm 382 3. Requiring Plaintiffs to exhaust administrative remedies would be
futile ..........................................................383
IV. THE MERITS ..............................................................384
A. Plaintiffs' Due Process Claim ........................................384
1. The Welfare Reform Act's Plain Language ...........................384 2. The Framework for Statutory Construction ..........................384
(a) The plain language of the statute supports a finding that the time limitation is a substantive element of eligibility ...........384
(b) An examination of relevant legislative history also supports a finding that the time limitation is a substantive element of eligibility ...................................................384
(i) Congressional policy with respect to welfare and immigration ..............................................386
(ii) Congress addressed the problem facing Plaintiffs and chose not to indefinitely extend SSI benefits .................387
2. The cases relied upon by Plaintiffs are distinguishable ...........389 3. Plaintiffs do not have an entitlement to the procedures for applying
for LPR status or naturalization ................................390 4. Conclusion ........................................................391
B. Plaintiffs' Equal Protection Claim ...................................391
1. The Standard of Review for Equal Protection .......................392
(a) Disparate treatment claims require intent to Discriminate .....392
(b) Intra-Alien classifications warrant only rational basis .......393
2. Plaintiffs have stated a claim for violation of the Equal Protection Clause ..........................................................395
(a) Unequal treatment as a result of unintended backlogs does not violate equal protection ....................................395
(b) Intentional and arbitrary implementation of the expedited policy, constitutes a violation of equal protection .................396
(i) Plaintiffs have alleged an intentional decision by CIS ....396 (ii) Plaintiffs have alleged CIS's decision to expedite is based on
an arbitrary factor .....................................396
C. Plaintiffs' Claims Under the APA .....................................398

1. Plaintiffs State an APA Claim Against CIS .........................399 2. Plaintiffs State an APA Claim Against the FBI .....................400 3. Whether Alleged FBI Delays Are Attributable to CIS ................401
D. Issue Preclusion .....................................................402
1. The Ngwanyia Case .................................................402 2. Issue preclusion applies only where an issue was necessary to the
adjudication of a prior case .....................................403 3. None of the issues necessary to the adjudication of Ngwanyia are
identical to issues in this case .................................404
V. CONCLUSION ...............................................................404
376 *376 I. INTRODUCTION
Before the Court is a claim by humanitarian refugees and asylees that they are entitled to continue to receive supplemental security income ("SSI") benefits beyond the seven-year limit set by Congress.
The case raises substantial issues of national policy. On the one hand, Plaintiffs' claims implicate a core belief that America continues to be a welcoming home for the "huddled masses" escaping the horror of tyranny. On the other hand, the claims also raise issues of domestic social policy and the allocation of governmental resources among competing populations in need. Which branch of government gets to decide the issue, what process is used to decide it, and the ultimate outcome of the case all say much about the American legal and political system in the dawn of the 21st Century.
Plaintiffs in this case are a proposed class of some 50,000 refugees and asylees who have lost or are at risk of losing their SSI benefits as a result of alleged delays in their applications for legal permanent residency ("LPR") status and naturalization.[1] These humanitarian immigrants, like any United States citizen, qualify for SSI benefits if they are impoverished and either elderly, disabled, or blind. See 42 U.S.C. §§ 1381 et seq. However, unlike United States citizens, their eligibility for SSI benefits is limited to a seven-year period. See 8 U.S.C. § 1612(a)(2). Plaintiffs are humanitarian immigrants who qualify for SSI benefits but have had those benefits subject to termination because of the expiration of the seven-year period of eligibility. Plaintiffs maintain these terminations are unlawful because they result from administrative delays in the processing of their applications for naturalization.
Plaintiffs allege that typical members of the proposed class are Russian Jews and other religious minorities who fled the former Soviet Union, Iraqi Kurds who fled persecution under the Saddam Hussein regime, Cubans fleeing the Castro regime, Hmong immigrants from the highlands of Laos who served on the side of the U.S. military during the Vietnam war, persecuted minorities in Somalia, and persons from various regions of the former Yugoslavia displaced by the Balkan wars. Plaintiffs allege that the termination of SSI benefits puts their very survival at stake, as they receive SSI benefits because they are all both impoverished and either disabled, blind, or elderly.
For example, Shmul Kaplan, the first named plaintiff in the case, is an 80-year old Holocaust survivor. His disabilities include an amputated right leg and a badly fractured and deformed left leg. Mr. Kaplan was persecuted in the former Soviet Union because of his Jewish religion. He entered the United States in 1996 and was granted asylum the following year. In 1998, he applied for LPR status, but Defendants did not rule on his application until September 2003, five years later. Because he was not able to obtain American citizenship within seven years, the Social Security Administration ("SSA") terminated his SSI benefits in 2004. Mr. Kaplan cannot 377 even apply for naturalization until June 2007, over ten years after *377 he was granted asylum, and well past the expiration of his seven-year eligibility for SSI benefits.
Plaintiffs bring essentially two actions in this matter. The first is against the SSA, claiming that Plaintiffs are entitled to continue receiving SSI benefits even after the seven-year period of eligibility has expired. In the first

action, Plaintiffs argue that the SSA has deprived them of their entitlement to SSI benefits without affording due process. Through this first action, Plaintiffs seek restoration of their SSI benefits and an injunction prohibiting further termination of SSI benefits to humanitarian immigrants.
Plaintiffs bring the second action against the Department of Homeland Security's Citizenship and Immigration Services ("CIS") and the Federal Bureau of Investigation ("FBI"). In the second action, Plaintiffs allege that there are procedural deficiencies in the processing of their applications for naturalization. They assert that the different timeliness in the processing of humanitarian immigrants' applications violates the Equal Protection Clause. They also assert that CIS and the FBI have unreasonably delayed the processing of their applications, in violation of the Administrative Procedure Act ("APA"). Through this second action, Plaintiffs seek an injunction compelling the defendants to timely process their applications and other declaratory relief.
Defendants move to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted pursuant to Federal. Rule of Civil Procedure 12(b)(6) (doc. no. 22). Given the importance of the issues raised by Plaintiffs and the claims of irreparable harm, the Court has considered the case on an expedited briefing schedule.[2]
As set forth in more detail below, the Court will grant Defendants' motion as to Plaintiffs' first action, but deny the motion as to the second action. The Court finds it has jurisdiction to hear the first action against the SSA, as it is appropriate to waive the requirement that Plaintiffs exhaust their administrative remedies. Plaintiffs' due process claim, however, must be dismissed because Plaintiffs do not have a property interest in any SSI benefits after the seven-year limitation imposed by Congress. As to the second action, on the other hand, Plaintiffs have stated two viable claims. First, they have stated a claim under the Equal Protection Clause based on their allegations that different applicants receive different treatment because of CIS's arbitrary implementation of an expedition policy. Second, Plaintiffs have stated a valid claim of unreasonable delay against CIS and the FBI under the APA. Finally, the Court finds that the APA claim against CIS and the FBI is not precluded by a settlement in a prior case.
II. BACKGROUND
A. Social Security Benefits for Humanitarian Refugees
378 As a general rule, aliens are not eligible for SSI benefits. 8 U.S.C. 1612(a)(1). *378 Congress has carved out, however, certain exceptions to this general rule. One such exception applies to refugees, asylees, Amerasians,[3] and Cuban and Haitian entrants.[4] 8 U.S.C. § 1612(a)(2)(A). These humanitarian immigrants are eligible to receive SSI benefits for seven years: from the date of entry for refugees and Amerasians, and from the date of the grant of protected status for asylees and Cuban or Haitian entrants. See 8 U.S.C. § 1612(a)(2)(A).
Of course, if humanitarian immigrants obtain American citizenship before the applicable seven-year limitation expires, and are otherwise still eligible, then they can continue to receive SSI benefits just like any other American citizen. In such case, the seven-year limitation no longer applies. However, if they do not receive citizenship, their SSI benefits are terminated at the end of the applicable seven-year period.
B. Procedure for Humanitarian, Immigrants to Become United States Citizens
For humanitarian immigrants, obtaining citizenship is a two-step process. First, they must apply for and become an LPR. Refugees may apply for LPR status after residing in the United States for one year as a refugee. 8 C.F.R. § 209.1(a)(1). Asylees may apply for LPR status one year after a final grant of asylum status. 8 C.F.R. § 209.2(a)(1)(ii). Cuban and Haitian entrants may apply for LPR status after residing in the United States for one year as a parolee. See Pub.L. No. 89-732, 80 Stat. 1161 (Nov 2, 1966), as amended; Pub.L. No. 105-277, 112 Stat. 2681 (Oct. 21, 1998), as amended. Amerasians are admitted with LPR status. Pub.L. No. 100-202, 101 Stat. 1329 (Dec. 22, 1987), as amended.
Second, humanitarian immigrants must apply for naturalization. All classes of immigrants must wait until ninety days prior to the five-year anniversary of the effective date of their becoming LPRs before they may apply for

naturalization, 8 U.S.C. § 1445(a)-(b); 8 C.F.R. §§ 316.4, 334.1, 334.2. Put another way, after receiving LPR status, an immigrant must wait four years and nine months before applying, for naturalization.
The effective date for calculating the four-year and nine-month waiting period for naturalization is calculated differently for different immigrant classifications. The effective date of a refugee's LPR status is backdated to the date of entry into the United States. 8 C.F.R. § 209.1(e). Accordingly, refugees with LPR status may apply for naturalization four years and nine months after entry into the United States. Amerasians are admitted with LPR status. Like refugees, therefore, they can apply for naturalization four years and nine months after entry. The effective date for asylees, on the other hand, is backdated to no more than one year before the grant of LPR status. 8 C.F.R. § 2092(f). Thus, if an asylee enters the United States and does not receive LPR status until three 379 years after *379 entry, she must wait six years and nine months before applying for naturalization.
Once a humanitarian immigrant applies for naturalization, the sole authority to naturalize that immigrant as a citizen of the United States lies with the Secretary of Homeland Security. 8 U.S.C. §§ 1103(a), 1421(a). An LPR seeking naturalization bears the burden of proving his eligibility to receive citizenship by establishing residency; an understanding of the English language and the history, principles, and form of government of the United States; and good moral character. See 8 U.S.C. §§ 1423, 1427(a) & (e), 1429; 8 C.F.R. §§ 316.5, 316.10.
In 1997, Congress for the first time required completion of a full criminal background investigation by the FBI[5] as part of the inquiry into an applicant's "moral character," before CIS could confer citizenship by naturalization. Pub.L. No. 105-119, 111 Stat. 2448.[6] To give effect to this congressional mandate, CIS adopted a regulation that it will not begin any naturalization examination until receipt of the FBI's final report of its full background check. See 8 C.F.R. § 335.2(b).
C. Delays in the LPR and Naturalization Process
Plaintiffs bring this case because a huge backlog of unprocessed applications has built up at CIS, resulting in the termination of their SSI benefits before CIS can consider or decide their applications. The parties agree this problem results from the increased volume of applications, particularly the large volume of applications to adjust humanitarian immigrants' status to LPR and applications for naturalization. The parties also agree that another significant component of the backlog is the time taken by the FBI in processing background checks through its National Name Check Program.
1. Delays for Refugees
Delays at the LPR and naturalization stages can push refugees past the sevenyear period of eligibility in two ways. First, if the LPR application takes more than three years and nine months to be processed, the time when the refugee may file her naturalization application will be postponed, giving the CIS and FBI scant time to process her naturalization application before expiration of the seven-year eligibility. Second, even if a refugee can timely file a naturalization application, CIS and the FBI often take significantly more than two years to process naturalization applications.
2. Delays for Asylees
Asylees are at a greater risk of being terminated because the effective date of their LPR status is only backdated to one year prior of the grant of LPR status, although the seven-year eligibility period starts to run from the grant of asylum. Accordingly, if it takes CIS three years and three months to process an LPR application that was promptly filed one year after the grant of asylum, an asylee cannot even apply for naturalization until the seventh anniversary of the grant of asylum, when SSI benefits will already be subject to termination.
380 *380 D. Alleged Inadequacy of Existing CIS and FBI Policies
As a general matter, CIS processes applications by date of filing: a first-come, first-served system. 8 C.F.R. § 209.2(a)(1); INS Operations Instructions OI 103.2(q). Under this system, applicants must wait years before their application comes to the top of the pile and receives consideration. Plaintiffs allege that, in light of the consequences that such backlogs cause to humanitarian immigrants receiving SSI benefits, CIS and the FBI's method of processing applications is inadequate and unreasonable.

Plaintiffs acknowledge that CIS claims to make exceptions to the first-come, firstserved procedure upon a showing of "emergent circumstances." INS Operations Instructions OI 103.2(q). Moreover, Plaintiffs acknowledge that CIS claims to have an expedition policy targeted at the applications of SSI recipients. Specifically, INS Operations Memorandum 22 states that "due to increasing naturalization application receipts and current naturalization processing times, many, if not most [LPRs receiving SSI benefits], will not be able to complete the naturalization process before the termination of benefits." INS Operations Memorandum 22, p. 2 (Oct. 6, 1997), Ex. 18 to Pls.' Mot. for P.I. ("Memorandum 22"). Memorandum 22 directs that such applicants should be given priority in processing.

Plaintiffs maintain, however, that Memorandum 22 is ineffective for two reasons. First, allegedly, the policy is not widely known by the applicants. CIS does not inform immigrant service agencies, the public, or SSI recipients of its existence. Nor is Memorandum 22 published in the Federal Register or codified in the Code of Federal Regulations. Second, even when the policy is invoked by an applicant, Plaintiffs allege that CIS implements it unevenly, honoring some expedite requests while ignoring others.[7]

E. Termination of Benefits

The SSA issues a yearly reminder notice to humanitarian immigrants receiving SSI benefits indicating when their
eligibility period began and that it will end seven years from that date. At the end of the seven-year period, the benefits are automatically terminated.[8]

III. JURISDICTION

Defendants challenge the Court's jurisdiction over the SSA, arguing that Plaintiffs have failed to exhaust administrative remedies. Plaintiffs argue that requiring them to exhaust their administrative remedies in this case would be impractical and futile. As such, according to Plaintiffs, exhaustion is not required.

Jurisdiction over claims to SSI benefits is provided under the Social Security Act, which states that "[a]ny individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action. . . ." 42 U.S.C. § 405(g) (emphasis added). The requirement in Section 405(g) that there be a final decision:

381

*381 consists of two elements, only one of which is purely "jurisdictional" in the sense that it

cannot be "waived" by the Secretary in a particular case. The waivable element is the requirement

that the administrative remedies prescribed by the Secretary be exhausted. The nonwaivable

element is the requirement that a claim for benefits shall have been presented to the Secretary.

Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); see also Fitzgerald v. Apfel, 148 F.3d 232, 234 (3d Cir.1998).

A. Plaintiffs Have "Presented" Claims for Continued Enrollment in the SSI Program.

The presentment requirement has been interpreted "liberally." Linguist v. Bowen, 813 F.2d 884, 887 (8th Cir.1987); Morrell v. Harris, 505 F.Supp. 1063, 1068 (E.D.Pa.1981). For example, in Liberty Alliance of the Blind v. Califano, the Third Circuit considered the government's interpretation of a Social Security Act provision that grandfathered into the SSI program a class of blind individuals. 568 F.2d 333 (3d Cir.1977). In considering whether jurisdiction was appropriate, the Third Circuit determined that the presentment requirement had been met because "all the plaintiffs are Supplemental Security Income recipients whose benefits have been reduced or terminated." Id. at 344.

The Third Circuit reiterated Liberty Alliance's liberal interpretation of the presentment requirement in Kuehner v. Schweiker, 717 F.2d 813, 817-18 (3d Cir. 1983), superseded by statute and vacated, 469 U.S. 977, 105 S.Ct. 376, 83 L.Ed.2d 312 (1984). In Kuehner, a class of Pennsylvania residents receiving SSI benefits who had "been notified that those benefits have been or are about to be terminated,"[9] alleged that the SSA used the wrong medical standard when terminating their benefits. The plaintiffs sought declaratory and injunctive relief preventing the SSA from continued use of the wrong standard. The district court dismissed for lack of jurisdiction, finding the

plaintiffs had not exhausted their administrative remedies. The Third. Circuit, however, reversed because, as in Liberty Alliance, "all the claimants were benefit recipients whose benefits had been reduced or terminated." Id. at 817.[10]
Like the plaintiffs in Liberty Alliance and Kuehner, Plaintiffs here have met the presentment requirement. They have previously established entitlement to SSI benefits, which entitlement has been, or is at risk of being terminated.[11]
B. No Practical Purpose Would Be Served By Exhausting Administrative Remedies.
The general requirement that plaintiffs exhaust administrative remedies before seeking judicial review is intended 382 to promote *382 efficiency in the administrative process:
Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.
Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). There is no need to apply the exhaustion requirement when doing so would not promote such efficiency. As the Supreme Court has explained:
The ultimate decision of whether to waive exhaustion should not be made solely by mechanical application of the Eldridge factors, but should also be guided by the policies underlying the exhaustion requirement. The purposes of exhaustion would not be served by requiring these class members to exhaust administrative remedies. This case is materially distinguishable from one in which a claimant sues in district court, alleging mere deviation from the applicable regulations in his particular administrative proceeding . . . These claimants stand on a different footing from one arguing merely that an agency incorrectly applied its regulation. . . . Nor did this policy depend on the particular facts of the case before it; rather, the policy was illegal precisely because it ignored those facts.
Bowen v. New York, 476 U.S. 467, 485, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986).
The Third Circuit has also noted "the practical considerations militating against the requirement that claimants go through the motions of administrative review when a court is addressing a claim that the agency applies an illegal standard." Bailey v. Sullivan, 885 F.2d 52, 65 (3d Cir.1989). These practical considerations provide the overriding framework as courts consider the three factors that are balanced in carrying out the exhaustion analysis: (1) whether the claims are collateral to a claim for benefits; (2) whether exhaustion will result in a colorable showing of irreparable harm; and (3) whether exhaustion would be futile. Id. at 64.
1. Plaintiffs' claims are collateral to their claim for benefits.
"[C]laims of systemwide misapplication or invalidity are collateral to the claims for individual benefits." Bailey, 885 F.2d at 65. In the social security context, the clearest example of cases in which plaintiffs' claims are collateral to their claims for individual benefits are those in which plaintiffs present constitutional issues. "Constitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to the courts is essential to the decision of such questions." Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).
Here, Plaintiffs seek not just to adjudicate the merits of their individual requests for SSI benefits. Rather, more ambitiously, they seek to correct how federal agencies are implementing a statute nationwide. Plaintiffs seek constitutional remedies under the Due Process and Equal Protection Clauses, as well as the provisions of the APA. Because the award of individual benefits through a determination of eligibility is not the subject of this lawsuit, Plaintiffs claims are collateral to their claim for benefits.
2. Plaintiffs have made out a colorable showing of irreparable harm.

383 In previous Social Security cases, the Third Circuit "has found that the fact that *383 claimants have severe mental or physical conditions and few resources other than the requested benefits justifies a finding of irreparable harm and a waiver of the exhaustion requirement." Bailey, 885 F.2d at 65 (citing Wilkerson v. Bowen, 828 F.2d 117, 121-22 (3d Cir.1987)). The Supreme Court has also noted that in certain instances "[t]he ordeal of having to go through the administrative appeal process" may also contribute to the irreparable harm. Bowen, 476 U.S. at 483-84, 106 S.Ct. 2022.
In this case, all plaintiffs are, by definition, impoverished and elderly, blind or. disabled. To deprive them of continuing SSI benefits will significantly affect their health. Requiring them to exhaust administrative remedies while deprived of their subsistence income is simply not practical. Hence, Plaintiffs have demonstrated a colorable showing of irreparable harm.
3. Requiring Plaintiffs to exhaust administrative remedies would be futile.
There is no reason to believe that if Plaintiffs appealed their claims for continuation of their SSI benefits through the administrative process that they would achieve any success. Thus, exhaustion would be futile. This conclusion is true for three reasons.
First, Plaintiffs present claims involving constitutional questions, and a "constitutional question is beyond the Secretary's competence." Mathews v. Diaz, 426 U.S. 67, 76, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). In cases that present questions of constitutional law, the Supreme Court has waived the administrative exhaustion requirement. See id.; Salfi, 422 U.S. at 765, 95 S.Ct. 2457.
Second, the SSA has considered and acted on Plaintiffs' claims and has arrived at a final position regarding those claims. The SSA has established procedures for humanitarian immigrants to challenge the termination of their SSI benefits due to the expiration of the seven-year limitation. See SSA-POMS § SI 00502.106.C.3.a, Ex. 15 to Pls.' Mot. for Prel. Inj. Those procedures only allow an SSA officer to evaluate a challenge based on United States residency on August 20, 1996, or lawful presence in the United States on August 22, 1996. They do not allow the officer to continue SSI benefits based on the claims Plaintiffs bring in this case. See id.
In Liberty Alliance, the class members had filed claims with the SSA and, although it had not "finally passed on each of those claims, [the SSA had] taken a final position in one of them . . . at the highest administrative level, on a legal issue common to all of the class members." 568 F.2d at 344. Defendants have argued that they should be given a similar chance here to make a decision at the highest administrative level. Although it is true that no Plaintiff in this action has individually exhausted administrative remedies at the highest level, the SSA's own procedures demonstrate that the SSA has taken a "final position" with respect to Plaintiffs' eligibility. Moreover, as in Liberty Alliance, the "instant suit was not filed until . . . negotiations between [Plaintiffs' attorneys] and the Social Security Administration over the proper interpretation of [the Welfare Reform Act] had proven fruitless." See id.
Third, it is doubtful that the SSA would change its final position through the administrative review process, which was designed to consider the denial of individual SSI claims. As the Supreme Court observed thirty years ago in similarly rejecting the need for a claimant to raise an issue in the administrative process: "It is unrealistic to 384 expect that the Secretary would consider substantial changes in the current administrative review system at *384 the behest of a single aid recipient raising a constitutional challenge in an adjudicatory context, The Secretary would not be required even to consider such a challenge." Eldridge, 424 U.S. at 330, 96 S.Ct. 893.
Thus, the Court will proceed to examine the merits of the motion to dismiss.[12]
IV. THE MERITS
Plaintiffs claim that the Defendants' actions violate the Due Process and Equal Protection Clause of the United States Constitution as well as the APA. The Court will consider these claims seriatim.
A. Plaintiffs' Due Process Claim

It is well established that the Constitution prohibits the deprivation of a property right without due process of law. Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Property rights are not created by the Constitution but must be located in an independent source, such as a statute. Id. at 577, 92 S.Ct. 2701. In the context of government benefits, a claim of entitlement is "grounded in the statute defining eligibility for them."[13]Id. Once a plaintiff establishes a protected property right, "the question remains what process is due" prior to a deprivation of that interest. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
The first task, then, is to determine whether Plaintiffs have a property interest in SSI benefits beyond the applicable seven-year limitation.[14] Central to this determination is the answer to the following question: Is the seven-year limitation a substantive component of a humanitarian immigrant's entitlement to SSI benefits? Or, alternatively, as Plaintiffs suggest, is the limitation a procedural device to ensure that humanitarian immigrants receive SSI benefits beyond seven years only if they have "diligently sought citizenship"? Pls.' Brf. at 34-35. Whether the seven-year limitation is substantive or procedural holds the key to Plaintiffs' due process claim.
1. The Welfare Reform Act's Plain Language
The relevant statute reads as follows: "Notwithstanding any other provision of law and except as provided in paragraph (2), an alien who is a qualified alien . . . is not eligible for any specified Federal program (as defined in 385 paragraph (3))." 8 U.S.C. § 1612. Paragraph (3) includes the SSI program. Id § 1612(a)(3)(A). Congress *385 then carved out a "time-limited exception" for refugees and asylees:
With respect to the specified Federal programs described in paragraph (3), paragraph (1) shall not apply to an alien until 7 years after the date 0907
(i) an alien is admitted to the United States as a refugee . . . ;
(ii) an alien is granted asylum . . . ;
(iii) an alien's deportation is withheld . . . ;
(iv) an alien is granted status as a Cuban and Haitian entrant . . .; or
(v) an alien is admitted to the United States as an Amerasian immigrant
Id. § 1612(a)(2)(A).
2. The Framework for Statutory Construction
The Third Circuit has laid the framework to follow in discerning the meaning of a statutory provision:
Our analysis of this issue of statutory construction must begin with the language of the statute itself. Where statutory language is clear, and admits of no more than one meaning the duty of interpretation does not arise and the rules which are to aid doubtful meanings need no discussion. . . . Congress says in a statute what it means and means in a statute what it says there.
In re American Pad & Paper Co., 478 F.3d 546, 554 (3d Cir.2007) (internal quotation marks and citation omitted). If the statutory language contains some ambiguity, the Court may then look outside the text to the relevant legislative history. See id.
(a) The plain language of the statute supports a finding that the time limitation is a substantive element of eligibility.
The statute at issue here is clear upon its face. It bars SSI benefits to aliens, but then makes an exception to that bar by extending SSI benefits to humanitarian immigrants for seven years. Nothing in the plain language of the statute suggests that Congress intended the seven-year limitation to be a procedural proxy to ensure the diligence of humanitarian immigrants in applying for naturalization. In fact, nothing in the statutory language references the diligence of humanitarian immigrants at all.

(b) An examination of relevant legislative history also supports a finding that the time limitation is a substantive element of eligibility.
Even assuming, arguendo, that the statutory language here contained some ambiguity that required a look outside the text, the legislative history of the seven-year limitation also supports a finding that the time limitation is 386 a substantive element of eligibility, for two reasons.[15] First, the *386 legislative history shows that in imposing a time limitation, Congress sought to promote self-sufficiency, remove SSI benefits as an incentive to immigration, and control financial costs to taxpayers. Congress was not concerned with the diligence of aliens applying for naturalization. Second, even when confronted with the problem of agency delay leading to the termination of benefits, Congress specifically chose not to extend SSI benefits based on a substantive requirement of diligence. Instead, Congress simply extended SSI benefits by an additional two years.
(i) Congressional policy with respect to welfare and immigration
Prior to 1996, humanitarian immigrants were entitled to SSI benefits on the same basis as United States citizens. Provision of such benefits was consistent with the United States' treaty obligations, which pledged the United States to provide benefits to refugees equal to those provided to citizens of the United States. See 1967 Protocol Relating to the Status of Refugees, Nov. 1, 1968, 19 U.S.T. 6223, 606 U.N.T.S. 267.
In 1996, however, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act (the "Welfare Reform Act"), which included the time limitation at issue in this case. Pub.L. No. 104-193, 110 Stat. 2301 (Aug. 22, 1996). When passing the Welfare Reform Act, Congress registered the following statements concerning national policy with respect to welfare and immigration:
(1) Self-sufficiency has been a basic principle of United States immigration law since this country's earliest immigration statutes.
(2) It continues to be the immigration policy of the United States that 0907
(A) aliens within the Nation's borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations, and
(B) the availability of public benefits not constitute an incentive for immigration to the United States
* * *
(5) It is a compelling government interest to enact new rules for eligibility . . . to assure that aliens be self-reliant. . . .
(6) It is a compelling governments interest to remove the incentive for illegal immigration provided by the availability of public benefits.
8 U.S.C. § 1601.
These express statements show that promoting self-sufficiency and removing benefits as an incentive to immigration appear to be what motivated Congress to act. Congress sought to address these "compelling governmental interests" when it limited the provision of SSI benefits to humanitarian immigrants. City of Chicago v. Shalala, 189 F.3d 598, 607 (7th Cir. 1999), cert. denied, 529 U.S. 1036, 120 S.Ct., 1530, 146 L.Ed.2d 345 (2000) (affirming constitutionality of Welfare Reform Act because, "[a]lthough reasonable individuals certainly can 387 disagree on the wisdom of controlling immigration through such a policy, we must conclude that the provisions *387 of the Welfare Reform Act are rationally related to the legitimate governmental goal of discouraging immigration that is motivated by the availability of welfare benefits.").
The legislative history also demonstrates that when Congress passed the Welfare Reform Act it aspired, quite simply, to reduce the rising costs of operating federal benefits programs. For example, in the year before passage of the Act, the Social Security Commissioner testified before Congress about how certain proposals to limit SSI

benefits to legal aliens would address "concern about the growth in the number of aliens on the SSI rolls, particularly in this time of limited Federal resources." Proposals to Reduce Illegal Immigration, Hearing Before the Senate Comm. on the Judiciary, 1995 WL 110439 (F.D.C.H. Mar. 14, 1995). The Commissioner further testified that "[t]he number of SSI recipients who are aliens has been increasing steadily. In December 1994, there were a little, more than 738,000 aliens receiving SSI benefits. This is double the number of aliens receiving benefits 5 years ago. Alien recipients now constitute nearly 12 percent of the total number of SSI recipients." Id.; see also SSI: Problem. Areas and Possible Reforms, Hearing on SSI Before the Senate Comm. on Finance, 1995 WL 128208 (F.D.C.H. Mar. 27, 1995) ("Another factor underlying the growth of SSI . . . is the rapid growth of aliens on the rolls.").
When passing the Welfare Reform Act of 1996, which removed aliens' general eligibility for welfare benefits, Congress also registered its concerns regarding the public fisc:
[A]liens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates. . . . Current eligibility rules for public assistance . . . have proved wholly incapable of assuring that individual aliens not burden the public benefits system.
8 U.S.C. § 1601(3)-(4).
On the other hand, Congress never stated 0907 and there is no other legislative history to support this proposition 0907 that in passing the Welfare Reform Act, Congress intended to encourage diligence in applying for naturalization. [16]
(ii) Congress addressed the problem facing Plaintiffs and chose not to indefinitely extend SSI benefits.
One year after passing the Welfare Reform Act of 1996, Congress confronted the very problem facing Plaintiffs in this case: administrative delays causing the termination of benefits. Faced with this problem, Congress did not choose to indefinitely extend benefits, even to those who diligently applied for naturalization. Instead, it extended the length of eligibility by two years. This extension, right or wrong, reflected Congress's intent as to the appropriate length of time during which humanitarian immigrants would be eligible to receive SSI benefits prior to obtaining citizenship.
388 *388 As originally passed, the Welfare Reform Act extended SSI benefits to humanitarian immigrants for only five years. See Welfare Reform Act of 1996, Pub.L. No. 104-193, 110 Stat. 2301. The risk that the SSI benefits of humanitarian immigrants could be terminated, due to the expiration of the five-year eligibility period before citizenship could be obtained, was immediately recognized by the executive branch. That the failure to timely bestow citizenship on humanitarian immigrants eligible for SSI benefits would have dire consequences appears to have been well understood at the time. President Clinton, in his signing statement, directed INS to remove "all bureaucratic obstacles that stand in the way of citizenship for legal immigrants who are eligible." Statement by President William J. Clinton Upon Signing H.R. 3734, 1996 U.S.C.C.A.N. 2891, 2892; 32 Weekly Comp. Pres. Doc. 1487 (Aug. 26, 1996).
Soon thereafter, Congress also recognized the problem created by the limited eligibility period for SSI benefits provided to humanitarian immigrants. In 1997, recognizing that many humanitarian immigrants would not be able to obtain citizenship within five years, Congress extended the eligibility period to seven years. See The Balanced Budget Act of 1997, Pub.L. No. 105-33, 111 Stat. 251, codified at 8 U.S.C. § 1612(a)(2) (A)(i)-(ii).
Congress formally recorded its intention in enacting this extension:
The 5-year exception in the welfare law was designed to allow refugees and asylees, who often arrive in the U.S. with few possessions, time to adjust to life here. However, because of delays in adjusting to permanent resident status, mandatory residency requirements before applying for citizenship, and recent increases in waiting times in the, naturalization process, under the 5-year eligibility period many would become ineligible for welfare benefits despite their attempting to naturalize at their earliest opportunity. By extending the exception to allow these groups 7 instead of 5 years of eligibility, these noncitizens would be given more time to naturalize while continuing to receive welfare benefits without interruption.

H.R.Rep. No. 149, 105th Cong., 1st Sess. at 1182 (1997).
Faced with the clear problem of humanitarian immigrants becoming "ineligible for welfare benefits despite their attempting to naturalize at the earliest opportunity," Congress could have conditioned continued receipt of such benefits on a requirement of diligence. For example, Congress could have conditioned the continued receipt of SSI benefits on the timely filing of an application for naturalization, say, within seven years of receiving LPR status. Such a condition would ensure that humanitarian immigrants continued receiving SSI benefits, so long as they were diligent. Drafted this way, the seven-year limitation could be read as a procedural device rather than a substantive element of SSI eligibility.[17]
This is not the choice that Congress made. Congress elected instead to simply provide "more time" to receive 389 SSI benefits. Congress did not extend SSI benefits *389 indefinitely. This election is consistent with the policy
statements that Congress expressed just one year earlier, when Congress stated that aliens should "not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations" and that "the availability of public benefits [as] an incentive for immigration to the United States" should be discouraged. 8 U.S.C. § 1601. Congress believed that seven years was sufficient time "to adjust to life here" in the United States and become naturalized. H.R.Rep. No. 149, 105th Cong, 1st Sess. at 1182 (1997). Although the result may be harsh upon some of the applicants, the Court is not free to second guess this policy choice by Congress.
2. The cases relied upon by Plaintiffs are distinguishable.
Plaintiffs rely on Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), to support their contention that the seven-year limitation is procedural, not substantive, in nature. In Logan, the plaintiff timely filed a discrimination claim before the Illinois Fair Employment Practices Commission. Id. at 426, 102 S.Ct. 1148. This filing triggered the Commission's obligation to convene a fact-finding conference within 120 days. Id. The Commission, however, inadvertently scheduled the conference five days too late. Id. The Supreme Court of Illinois held that this failure to comply with the 120-clay period deprived the Commission of jurisdiction to consider the plaintiff's charge and dismissed the complaint. Id at 427-28, 102 S.Ct. 1148.
The United States Supreme Court reversed, holding that the dismissal of the plaintiffs complaint violated his due process rights. Logan, 455 U.S. at 438, 102 S.Ct. 1148. The Supreme Court first determined that the plaintiff had a legitimate claim of entitlement to use the state agency's adjudicatory procedures to pursue his cause of action for discrimination. Id. at 428-29, 102 S.Ct. 1148. In so holding, the Supreme Court found that the 120-day limit was "a procedural limitation on the claimant's ability to assert his rights, not a substantive element of the FEPA claim." Id. at 433, 102 S.Ct. 1148. It then held that termination of the plaintiffs claim without considering its merits violated due process. Id. at 434, 102 S.Ct. 1148.
Logan would help Plaintiffs if they could show that they were entitled to SSI benefits and that the seven-year limit was just a procedural limitation to terminate the SSI benefits of the undiligent, not a substantive element of their eligibility. As discussed above, however, Congress simply did not intend "to condition SSI benefits for humanitarian immigrants upon their diligent pursuit of citizenship." Pls.' Brf. at 38. Rather, the traditional tools of statutory construction show that the time limitation is part of the substantive definition of Plaintiffs' entitlement to SSI benefits.[18] In Logan, the 120-day limitation was a means to an end, not a definition of the plaintiffs entitlement itself. That is not the case here.
390 *390 The case of Shvartsman v. Apfel offers an instructive contrast in this regard. 138 F.3d 1196 (7th Cir.1998). In Shvartsman, the plaintiffs were LPRs who received food stamps and whose applications for naturalization were still pending when Congress passed the Welfare Reform Act of 1996. Id. at 1197. The food stamps program entitled qualified recipients to food stamps for twelve months, after which time benefits terminated automatically. Id. However, as the end of the twelve-month period approached, recipients could engage in a streamlined "recertification process" to establish their continuing eligibility for food stamps. Id.
When Congress passed the Welfare Reform Act of 1996, as with SSI benefits, it added for the first time a citizenship requirement to the food stamp program's eligibility criteria. Shvartsman, 138 F.3d at 1197; 8 U.S.C. §

1612(a)(1). The Act provided transition procedures for applying the new citizenship requirement, but if LPRs could not prove their citizenship in those procedures, their food stamps were terminated. 138 F.3d at 1197. In effect, LPRs receiving food stamps were cut off on August 22, 1997 unless they became citizens prior to that date, even if they had diligently pursued their citizenship. Id.
The LPRs brought a class-action suit alleging that the statutory transition procedure, coupled with the agency delay in processing citizenship applications, violated their due process rights to a fair opportunity to prove continuing eligibility for food stamps. Shvartsman, 138 F.3d at 1197. Perhaps most salient to this case, the plaintiffs "emphasize[d] that they [did] not claim a property right directly in a continuous stream of benefits, which they concede[d] would be a losing claim given the time-limited nature of the entitlement to Food Stamps." Id. at 1198. Instead, citing Logan, the plaintiffs claimed a property interest only in the fair opportunity to establish their continuing eligibility for benefits by, in turn, establishing their eligibility for citizenship. Id. The Seventh Circuit rejected this argument:
The plaintiffs would have a stronger argument under Logan if they could establish a property entitlement to the Food Stamp benefits themselves; in that case, deprivation of the entitlement without a meaningful, fair opportunity to prove continuing eligibility could indeed violate due process. However, the plaintiffs concede that there is no such property right in continuing benefits, and their attempt to make access to the recertification procedures into a substantive right of its own is unavailing.
Id. at 1200. Because the LPRs could not establish deprivation of a property interest, their due process claim failed. Id.
Like the LPRs in Shvartsman, Plaintiffs here stand to lose their benefits because of agency delays in the processing of their applications for naturalization. Moreover, although they have not conceded the point, as in Shvartsman, Plaintiffs do not have an entitlement to benefits given the time-limited nature of their entitlement. Without a property deprivation, Plaintiffs have no argument under Logan. The principles of due process simply do not require that Plaintiffs be provided a fair opportunity to prove their eligibility for citizenship prior to the termination of their benefits.
3. Plaintiffs do not have an entitlement to the procedures for applying for LPR status or naturalization.
At the hearing on this matter, Plaintiffs also claimed a property interest in the orderly and timely processing of their applications. This claim also fails.
Plaintiffs claim that Logan supports an entitlement to "adjudicatory procedures." 455 U.S. at 428-29, 102 S.Ct. 391 1148. Generally, courts have not countenanced claims *391 to a property interest in processes, and as discussed
above, the Seventh Circuit soundly rejected such a claim in Shvartsman. More importantly, in Mudric v. Attorney General, the Third Circuit specifically rejected an immigrant's due process claim based on a claim of entitlement to the timely processing of his application. 469 F.3d 94, 98 (3d Cir.2006). In Mudric, a Serbian immigrant claimed that INS delays in processing his asylum application prevented him from receiving asylum, because by the time the INS processed his claim, conditions in Serbia had changed so as, to no longer warrant asylum. Id. The Court held that the immigrant had neither an entitlement to asylum nor, more importantly, to have his "immigration matter[] adjudicated in the most expeditious manner possible." Id. at 99.
4. Conclusion
In interpreting a statute, the Court's role is not to "assess the relative merits of different approaches" to the problem that Congress faced. Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 13, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000). "Achieving a better policy outcome 0907 if what [Plaintiffs] urge is that 0907 is a task for Congress, not the courts." Id. Nor is the Court licensed to soften the blows of Congressional action (or inaction). The Court's role is, simply, to interpret the laws that Congress has passed, as discerned from examining the statute's plain language and, where appropriate, the legislative history pursuant to the recognized tools of statutory construction. Here, such an examination leads to the inevitable conclusion that humanitarian immigrants have no legitimate claim of entitlement to SSI benefits past the seven-year limitation to establish a

property interest protected by the Due Process Clause. To the extent Plaintiffs seek to change the substance of that entitlement, they must petition Congress, not the Court.[19]
"It is axiomatic that a cognizable liberty or property interest must exist in the first instance for a procedural due process claim to lie." Mudric, 469 F.3d at 98. Because Plaintiffs cannot allege the deprivation of a property interest, they cannot state a claim for violation of their rights to due process. This claim must be dismissed. Furthermore, because the remaining claims involve only the conduct of CIS and the FBI, dismissal of the SSA as a defendant in this case is warranted.
B. Plaintiffs' Equal Protection Claim
Plaintiffs also allege that their rights to equal protection of the laws have been violated "because defendants' actions have caused some humanitarian immigrants diligently pursuing citizenship to be cut off [from] SSI 392 benefits, while other identically situated [humanitarian immigrants] have *392 had their applications for citizenship processed in time to avoid an interruption of SSI benefits." Pls.' Brf. at 50. Plaintiffs allege three types of unequal treatment: (1) applicants who file in a year when the processing backlog is relatively low receive continuous benefits, while those who file in backlogged years have their benefits terminated; (2) applicants who file in a field office with a relatively small backlog receive continuous benefits, while those who file in a more-backlogged office are cut off from benefits; and (3) applicants who file in offices that expedite their applications, pursuant to Memorandum 22, receive continuous benefits, while applicants who file in other offices that do not are cut off from benefits. Id.
1. The Standard of Review for Equal Protection
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that "no state shall . . . deny to any person within its jurisdiction the equal protection of the laws." Although the Fifth Amendment, which applies to the federal government, does not contain an Equal Protection Clause, as does the Fourteenth Amendment which applies only to the states, the principles of the Equal Protection Clause are equally applicable to the federal government. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Moreover, "[i]t is undisputable that our constitution provides due process and equal protection guarantees to aliens as well as citizens." DeSousa v. Reno, 190 F.3d 175, 184 (3d Cir.1999).
(a) Disparate treatment claims require intent to Discriminate.
The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike" under the law. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Its purpose "is to secure every person . against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents." Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). There are two manners in which a statute may be challenged under the Equal Protection Clause. The first challenge involves a claim that the statute, on its face, expressly discriminates in an impermissible way. The second challenge involves a claim that the statute, while perhaps valid on its face, violates the Equal Protection Clause in its execution, because it results in intentional disparate treatment of similarly situated individuals. In this case, Plaintiffs' equal protection challenge is not a facial attack of any particular CIS policy; rather Plaintiffs attack the unequal implementation of CIS policy among different aliens.
The viability of a claim challenging the unequal implementation of a statute is well established. "[D]iscriminatory enforcement of a facially valid law is also unconstitutional under the Equal Protection Clause." Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir.2005) (citing Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 30 L.Ed. 220 (1886)). Public officials engage in unconstitutional discriminatory application or administration of a facially impartial law when they seek to enforce the law "on the basis of an unjustifiable standard, such as race, or religion, or some other arbitrary factor," or when they seek to enforce the law in order "to prevent the exercise of a fundamental right." United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir.), cert. denied, 493 U.S. 995, 110 S.Ct. 546, 107 L.Ed.2d 543 (1989). In Yick Wo, the Supreme Court struck down a statute that required a license 393 to operate a laundromat where such a license had been *393 granted to only one out 200 Asians. 118 U.S. at 374, 6 S.Ct. 1064. The Supreme Court concluded that a law which is "fair on its face and impartial in its

appearance" may nonetheless constitute "illegal discrimination between persons" "if it is applied and administered by public authority with an evil eye and an unequal hand." Id. at 373-74, 6 S.Ct. 1064.
Allegations that a statute has a disparate effect are not sufficient, on their own, to state an equal protection claim. A plaintiff must also show that the defendant intended to discriminate in a manner that led to the disparate effect. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-66, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (holding that equal protection claim failed because there was insufficient evidence that village's refusal to rezone land to allow plaintiff to build racially integrated low-income housing was motivated by race-based discrimination); Washington v. Davis, 426 U.S. 229, 242, 244-45, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (holding that equal protection claim failed, because the plaintiffs showed no discriminatory intent in police department's use of verbal skills test that was failed, disproportionally, by African Americans). In other words, the alleged disparate effect must be the result of "purposeful" discrimination. Washington, 426 U.S. at 253, 96 S.Ct. 2040 (Stevens, J., concurring)[20]
(b) Intra-Alien classifications warrant only rational basis review.
Although the Equal Protection Clause directs, in general, that all persons similarly situated be treated alike, it is, of course, the very nature of legislation to differentiate between different classes and then afford preferential treatment to one class over the other. See, e.g., Toll v. Moreno, 458 U.S. 1, 39, 102 S.Ct. 2977, 73 L.Ed.2d 563 (1982) (Rehnquist, J., dissenting) (asserting that "all laws classify"). Thus, the general rule is that legislation is presumed valid and will be sustained if the classification drawn by the statute, or its implementation, is rationally related to a legitimate government interest. City of Cleburne, 473 U.S. at 439, 105 S.Ct. 3249. These are policy choices and provide the grist of legislative work.
The general rule of rational basis review gives way, however, when a statute classifies by race, alienage, or national origin, in which case a statute must be subjected to strict scrutiny and will be sustained only if the challenged classification is suitably tailored to serve a compelling state interest. Cleburne, 473 U.S. at 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). As Justice Stone explained, in his famous Carolene Products footnote, strict scrutiny of such classifications is warranted because "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." United States v. Carolene Products Co., 304 U.S. 144, 153 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). See also Graham 394 v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) ("[C]lassifications *394 based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny." Aliens as a class are a prime example of a "discrete and insular" minority.).
Here, the classifications that Plaintiffs challenge do not draw lines between aliens and United States citizens. Rather, they distinguish between aliens and other aliens, namely, those that file applications at different times or in different offices from other aliens. Such classifications warrant only rational basis review by the Court.
The Supreme Court addressed such intra-alien classification in Mathews v. Diaz, 426 U.S. 67, 69, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). In that case, the Supreme Court considered an equal protection challenge to 8 U.S.C. 1612, which discriminated among aliens by granting Medicare benefits only to elderly aliens who had LPR status and had resided in the United States for five years. Id. at 69-70, 96 S.Ct. 1883. After noting that Congress is not required to treat citizens and aliens alike in the provision of welfare benefits, id. at 78-80, 96 S.Ct. 1883, the Court, narrowly framed the question raised by the plaintiffs' challenge to the statute: "The real question presented by this case is not whether discrimination between citizens and aliens is permissible; rather, it is whether the statutory discrimination within the class of aliens 0907 allowing benefits to some aliens but not to others 0907 is permissible." Id at 80, 96 S.Ct. 1883 (emphasis in original). The Court answered that question by holding that discrimination between the classes of aliens in the provision of Medicare benefits was permissible, because the line Congress drew reasonably favored those aliens who could be presumed to have a greater affinity to the United States. Id.
In arriving at this decision, the Supreme Court exercised extra caution in reviewing a federal statute that discriminated among aliens in the provision of welfare benefits:

For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government. Since decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary. . . . Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution. The reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.
Id. at 81-82, 96 S.Ct. 1883.
The Third Circuit has also reiterated that the "disparate treatment of different groups of aliens" may violate equal protection, although it "triggers only rational basis review." DeSousa, 190 F.3d at 184 (citing Francis v. Immigration & Naturalization Service, 532 F.2d 268 (2d Cir. 1976)). Under the standard of review applicable to classification among aliens, a classification is accorded "a strong presumption of validity" and "can be upheld as constitutional even when it is based on rational speculation rather than on empirical data." Id. (citing Heller v. Doe, 509 U.S. 312 at 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)). The Third Circuit has directed that "[o]nce a 395 facially legitimate reason for the classification is found, whether such a reason was articulated by *395 Congress or not, [a court] must rule the classification constitutional." Id.
Accordingly, the Court will apply a rational basis standard, exercising the caution called for by Diaz and DeSousa.
2. Plaintiffs have stated a claim for violation of the Equal Protection Clause.
As discussed above, Plaintiffs allege three types of unequal treatment. The Court finds that only the third type states a valid claim under the Equal Protection Clause.
(a) Unequal treatment as a result of unintended backlogs does not violate equal protection.
The first two types of unequal treatment that Plaintiffs' describe do not violate the Equal Protection Clause. Both involve a disparate effect based on the lengths of backlogs in different years or offices. Because they do not involve intentional discrimination, they fail to state a claim under the Equal Protection Clause.
In an equal protection challenge to the application of a law, a plaintiff must allege that disparate treatment is the result of intentional or purposeful discrimination. Village of Arlington Heights, 429 U.S. at 264-66, 97 S.Ct. 555; Washington, 426 U.S. at 242, 96 S.Ct. 2040. Plaintiffs here do not allege that CIS intends for backlogs to build up unequally at different times or in different offices. As Plaintiffs describe them, these backlogs accumulate unequally, by happenstance, in the ordinary course of processing applications. The backlogs are not the result of any design or decision by CIS or the FBI.
The Third Circuit denied a challenge based on unintended backlogs in Knight v. Tape, Inc., 935 F.2d 617, 621 (3d. Cir. 1991). In that case, pursuant to Pennsylvania law, a district court awarded a plaintiff delay damages that constituted prejudgment interest of the compensatory award. Id. The district court had placed the case in its trial pool on May 30, 1989, but due to the court's backlog, did not bring the case to trial until February 5, 1990. Id. The defendant challenged the delay damages as violating the Due Process and Equal Protection Clauses. Id. The challenge was based, in part, on the fact that a portion of the pre-trial delay was caused not by defendant's dilatoriness, but by the court's own backlog of other matters. Id. The Third Circuit found that the statute providing for pre-trial delay damages was rationally related to promoting settlement, and upheld the delay damages under both the Due Process and Equal Protection Clauses. Id. at 629-30.[21]
In similar fashion, where courts have found processing delays to violate the Equal Protection Clause, such delay has been coupled with an intent to discriminate. Cf. Hayes v. Muller, No. 96-3420, 1996 WL 583180, *9 (E.D.Pa. Oct.10, 1996) (no equal protection claim because prisoner did not allege his request for parole review was intentionally "singled out" for delay) with Jubilee v. Horn, 959 F.Supp. 276, 280 (W.D.Pa.1997) (prisoner stated

396 equal protection claim because alleged delays *396 included "an element of intentional or purposeful discrimination").
Accordingly, the Court finds that any difference in treatment that results from the different lengths of unintended backlogs does not violate the Equal Protection Clause.
(b) Intentional and arbitrary implementation of the expedited policy constitutes a violation of equal protection.
Plaintiffs' third allegation of unequal treatment is that humanitarian immigrants who file applications in offices which grant requests for expedition receive continuous benefits, while applicants in other offices, which do not grant such requests, have been cut off. See Pls.' Brf. at 50. This unequal treatment is the result of an intentional decision to expedite applicants in some offices, but not other applicants in other offices, under Memorandum 22. [22] For example, Plaintiffs allege, CIS offices in Boston and Seattle are known to expedite humanitarian immigrants' applications, while most other offices do not. Id. at 13. Plaintiffs further allege that the basis for this decision to expedite is arbitrary and "without rational explanation." Id. at 14. These allegations, if true, constitute a claim for violation of the Equal Protection Clause.
(i) Plaintiffs have alleged an intentional decision by CIS.
The decision to expedite some but not other applications involves CIS officers in different offices making intentional decisions whether to implement Memorandum 22 or, alternatively, CIS intentionally allowing some offices to implement Memorandum 22 while others ignore it. As a result, some applicants are effectively "singled out" for expedition, while other similarly situated applicants are not, depending merely on which office an application is filed and whether that office grants expedition under Memorandum 22. Cf. Hayes, 1996 WL 583180 at *9; Jubilee, 959 F.Supp. at 280 (holding prisoners stated equal protection claim by alleging that some prisoners received expeditious resolution of their parole review, while other prisoners were intentionally singled out for delay in their review); D'Amico v. Hayman, No. 06-3886, 2007 WL 128890 (D.N.J. Jan.12, 2007) (holding that prisoner stated equal protection claim based on intentional disparate treatment that "includ[ed] delays in responding to his requests for a job change and television").
Because Plaintiffs' third allegation involves an element of intent, Plaintiffs have met the requirement that a disparate effect claim allege intentional discrimination. See Village of Arlington, 429 U.S. at 264-66, 97 S.Ct. 555; Washington, 426 U.S. at 242, 244-45, 96 S.Ct. 2040.
(ii) Plaintiffs have alleged CIS's decision to expedite is based on an arbitrary factor.
Intentional discrimination violates the Equal Protection Clause when it is based on an "arbitrary factor." Schoolcraft, 879 F.2d at 68. This prohibition against arbitrary discrimination applies to the context of discrimination between classes of aliens. E.g. Francis, 532 F.2d at 268. In Francis, for example, the Second Circuit struck down the application of a statute that discriminated arbitrarily among deportable aliens. Id. at 271. 397 Specifically, § 212(c) of the Immigration and Nationality Act permitted *397 the Attorney General to waive exclusion of entry into the United States for aliens who had traveled abroad and were seeking entry back into the country, but who would otherwise be excludable based on their criminal convictions, upon a showing of extraordinary hardship to the deportee or his family, or other exceptional circumstances. See former 8 U.S.C. § 1182(c) (1990).
A series of decisions by the Board of Immigration Appeals ("BIA") had extended § 212(c) relief, which on its face applied only to aliens in exclusion proceedings, to certain aliens in deportation proceedings. Id. Through its interpretations, the BIA had effectively created two classes of aliens identical in every respect except for the fact that, after becoming deportable, members of one class had left and returned to the United States without being stopped at the border. See 532 F.2d at 272. Only members of this class were eligible for § 212(c) relief.[23]Id. The Second Circuit held that the extension of § 212 relief on this basis violated the petitioner's right to equal protection. Id. There was simply no rational basis for rewarding a waiver to deportable aliens on the basis that they had simply left and then returned to the country. Id. at 272.[24]See also Tapia-Acura v. INS, 640 F.2d 223, 225 (9th Cir.1981) (agreeing with the Second Circuit that the § 212(c) waiver, as interpreted by the BIA, "create[d] a distinction that lack[ed] a rational basis").

Here, Plaintiffs have alleged that the basis for CIS's decision whether to expedite in different offices is "without rational explanation." Id. at 14. Taking the facts in the light most favorable to the Plaintiffs, as the Court must when deciding a motion to dismiss for failure to state a claim, Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988), the Court finds that Plaintiffs have sufficiently alleged that there is no rational basis for CIS's expediting applications in some offices but not in others. It is true that, under rational basis review, a classification is accorded "a strong presumption of validity" and "can be upheld as constitutional even when it is based on rational speculation rather than on empirical data." DeSousa, 190 F.3d at 184. At this stage of the proceedings, however, CIS has not proffered any rational basis for some offices, but not others, to expedite applications. In fact, at oral argument, Defendants conceded that "a totally arbitrary decision to expedite or not expedite would raise an equal 398 protection claim," *398 but did not attempt to proffer any conceivable reason for CIS's unequal application of Memorandum 22. Trans. of Hrg. of 3/7/07 at 61.
Of course, the Constitution grants no entitlement to aliens to receive SSI benefits on an equal basis as United States citizens, Diaz, 426 U.S. at 80, 96 S.Ct. 1883, which, as Defendants point out, the United States provides to aliens out of its own "largesse," Dfts.' Brf. at 1. Nor does the Constitution obligate CIS to expedite aliens' applications for citizenship so that they may receive uninterrupted SSI benefits. However, where CIS decides to expedite applications, it must do so in a manner consistent with Constitutional safeguards, including the requirement that no person within the jurisdiction of the United States shall be denied "the equal protection of the laws." See, e.g., Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 665, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (The Constitution does not provide that every individual has the right to vote, but "once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause. . . . ").
The Court finds that Plaintiffs' allegations of intentional, unequal, and arbitrary application of the expedition policy state a valid cause of action under the Equal Protection Clause.[25]
C. Plaintiffs' Claims Under the APA
Plaintiffs allege that CIS and the FBI have unreasonably delayed the processing of their applications for LPR status and naturalization, in violation of the APA.
The APA authorizes suit by "[a] person suffering legal wrong because of agency action." 5 U.S.C. § 702. "Agency action" is defined to include "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." Id. § 551(13) (emphasis added).[26] Moreover, "relief' is defined as "taking of other action on the application or petition of, and beneficial to, a person." Id. § 511. The APA further requires that an agency, "[w]ith due regard for the convenience and necessity of the parties," "and within a reasonable time," "conclude a matter presented to it." Id. § 555(b). Finally, the APA permits a "reviewing court [to] 399 compel agency action unlawfully withheld or unreasonably delayed. . . ." 5 *399 U.S.C. § 706(1). Congress need not have set a definitive deadline for an agency to act in order for a court to find a delay in agency action unreasonable; § 706(1) mandates that all action be done within a reasonable amount of time. See Pub. Citizen Health Research Group v. Chao, 314 F.3d 143, 152 (3d Cir.2002) (compelling agency to proceed with rulemaking although enabling legislation set no specific deadline for agency to do so).
A "central point" is that the "only agency action that can be compelled under the APA is action legally required." Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). "Thus, a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Id. at 64, 124 S.Ct. 2373. A court may only compel an agency "to take action upon a matter, without directing how it shall act." Id.
1. Plaintiffs State an APA Claim Against CIS.
Plaintiffs have stated a valid claim of unreasonable delay against CIS. According to Plaintiffs, CIS has either failed to act or has unreasonably delayed taking action on Plaintiffs' applications for LPR status or naturalization. [27]

Moreover CIS has a mandatory non-discretionary obligation to adjudicate such applications within a reasonable amount of time. It cannot simply ignore them. The CIS regulations' use of mandatory rather than permissive language supports this conclusion:
Grant or denial. Subject to supervisory review, the employee of the Service who conducts the examination [on an application for naturalization] shall determine whether to grant or deny the application, and shall provide reasons for the determination, as required under section 335(d) of the Act.
8 C.F.R. § 316.14(b)(1).
The majority of courts have thus concluded that "the CIS simply does not possess unfettered discretion to relegate aliens to a state of `limbo,' leaving them to languish there indefinitely. This result is explicitly foreclosed by the APA." Kim v. Ashcroft, 340 F.Supp.2d 384, 393 (S.D.N.Y. 2004); see also Liu Duan v. Zamberry, No. 06-1351, 2007 WL 626116, 2007 U.S. Dist. LEXIS 12697 (W.D.Pa. Feb. 23, 2007) (CIS violated APA by unreasonably withholding naturalization decision); Alkenani v. Barrows, 356 F.Supp.2d 652, 657 (N.D.Tex.2005) ("[CIS has] a clear duty to process petitioner's application for naturalization within a reasonable time."); Ngwanyia v. Ashcroft, 302 F.Supp.2d 1076, 1083 (D.Minn.2004) (CIS violated APA by unreasonably withholding decision as to LPR status); Yue Yu v. Brown, 36 F.Supp.2d 922, 930 (D.N.M.1999) ("[C]ourts have specifically recognized jurisdiction under § 1331 and the APA to hear challenges to INS delays in processing visa, LPR, and citizen applications."); Fraga v. Smith, 607 F.Supp. 517, 520 (D.Or.1985) (jurisdiction under APA for challenge to INS delay in processing citizen applications for foreign born citizens). But see Mustafa v. Pasquerell, 2006 WL 488399 (W.D.Tex. Jan.10, 2006) (siding "with the minority decisions" to conclude court had no jurisdiction to compel CIS to act on delays in adjudicating applications for LPR status); Badier v. Gonzales, 2006 WL 4079085 (N.D.Ga. 400 Dec.1, 2006) (CIS *400 had no discrete duty to act because there is no statutorily prescribed time period within which the agency must act on an application for naturalization.).
Defendants argue that Plaintiffs' APA claim must fail because they have an adequate remedy at law pursuant to 8 U.S.C. § 1447(b). This argument fails for two reasons. First, the remedy that Defendants point to is clearly not adequate. Section 1447(b) allows an applicant for naturalization to seek relief from a district court when CIS has failed to take action within 120 days of the "examination" of that applicant. Here, Plaintiffs allege that CIS has not even examined them yet.[28] Courts considering whether § 1447 is the only mechanism through which applicants for naturalization may challenge inaction on their application have held that an APA claim is appropriate where § 1447 provides no avenue for the court to adjudicate an application. See, e.g., Alkenani, 356 F.Supp.2d at 656-57. Second, in any event, § 1447 does not apply at all to applications for LPR status; it only applies to applications for naturalization.
2. Plaintiffs State an APA Claim Against the FBI.
Plaintiffs also allege that the FBI has unreasonably delayed the processing of their applications in violation of the APA.
The "only agency action that can be compelled under the APA is action legally required." Norton, 542 U.S. at 63, 124 S.Ct. 2373. Identifying whether a mandatory duty exists is in essence an inquiry into legislative intent. Legislative intent may be revealed in the plain language of a single enactment, or as is the case often times, by examining several legislative enactments side by side, Slatky v. Amoco Oil Co., 830 F.2d 476 (3d Cir.1987) (reviewing different statutes that together revealed Congress's intent in use of the phrase "bona fide"), or by examining a legislative scheme as a whole, see Block v. Community Nutrition Institute, 467 U.S. 340, 349, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984) (congressional intent necessary to overcome the presumption in favor of judicial review of administrative action "may be overcome by inferences of intent drawn from the statutory scheme as a whole"). Thus, an agency's mandatory duty to act may be expressed in a single statute or from several Congressional enactments which, read together, clearly imply a mandatory duty.
Here, there appears to be no single statute that, standing alone, expressly imposes a mandatory duty on the FBI to perform background checks. See Zaytsev v. Gantner,. 2004 WL 2251665, at *1 (S.D.N.Y. 2004) ("The

Zaytsevs have pointed to no authority demonstrating that the FBI owes a duty to conduct background checks, and this Court has found no such authebrity."). However, it appears clear from a number of Congressional enactments that Congress has imposed a mandatory duty on the FBI to perform background checks in these particular circumstances.
As discussed above, CIS has a mandatory duty to process applications for LPR status and naturalization, but Congress prohibited CIS from processing such applications until it receives completed background checks from the FBI. Pub.L. No. 105-119, 111 Stat. 2448 (Nov. 26, 1997).
In turn, Congress has also directed that the. FBI may "establish and collect fees to process fingerprint identification records and name checks for non-criminal justice, non-law enforcement employment and licensing 401 purposes," such as for immigration matters. Pub.L. No. 101-515, 104 Stat. *401 2101, 2112 (1990). The Congressional scheme then provides that aliens must submit application fees to CIS, 8 C.F.R. §§ 316.4, 334.2, a portion of which the CIS pays over to the FBI for fingerprint and name checks for that applicant. See 72 Fed.Reg. 4888-01 (proposed Feb. 1, 2007) (to be codified at 40 C.F.R. pt. 103) (proposing increase in application fee to pay, inter alia, "additional funds [to] the FBI for name check costs to enhance services"). Upon completion of the background check, the FBI submits a final report to CIS. Then, and only then, is CIS permitted to consider the application.
Under these limited circumstances, where Congress has conditioned CIS's mandatory action on the FBI's completion of background checks, and where applicants must pay the FBI, through CIS, to complete the background checks, the Court holds that Congress has, by implication, imposed on the FBI a mandatory duty to complete the background checks.[29] Since the FBI has a mandatory duty to act, the APA requires that the FBI complete the criminal background checks in a reasonable amount of time.
Accordingly, Plaintiffs APA claim against the FBI will not be dismissed.[30]
3. Whether Alleged FBI Delays Are Attributable to CIS
Plaintiffs concede that a "significant component" of the delay in processing their applications for naturalization is due to the FBI not having completed criminal background checks for some Plaintiffs. CIS has no mandatory duty to act on such applications until the FBI completes the checks. Thus, to the extent that Plaintiffs' claim of unreasonable delay against CIS involves allegations that this delay is caused by the FBI, these allegations fail to state a claim upon which relief may be granted.
This is so because CIS does not have a mandatory duty to take action on an application for naturalization until the FBI has completed its background checks. In fact, Congress has forbidden CIS from taking any action until such checks are completed. Specifically, Congress has mandated that "none of the funds appropriated or otherwise made available to [CIS] shall be used to complete adjudication of an application for naturalization unless [CIS] has received confirmation from the Federal Bureau of Investigation that a full criminal background check has been completed." Pub.L. No. 105-119, 111 Stat. 2448 (Nov. 26, 1997). Thus, if CIS is failing to process Plaintiffs' applications for naturalization solely because it is waiting for the FBI to complete criminal background checks, Plaintiffs' APA claim will fail. Without a showing of a mandatory duty to act, there can be no claim under the APA for unreasonable delay.
402 *402 Accordingly, courts have routinely found CIS delays caused by FBI background checks to be justifiable delays. See Alkenani, 356 F.Supp.2d at 657 (finding the delay to be reasonable due to the pending FBI background check); Zaytsev, 2004 WL 2251665, at *1 (stating that CIS "is not required to make any determinations until the requisite security checks have been completed"); Zheng v. INS, 933 F.Supp. 338, 341 (S.D.N.Y.1996) ("The fact that the INS followed a procedure, dictated by statute, of waiting for clearance from the FBI does not amount to a wanton, willful, and reckless delay."); Maldonado-Coronel v. McElroy, 943 F.Supp. 376, 385 (S.D.N.Y.1996). Indeed, the Court is aware of only two instances in which a court compelled CIS to adjudicate applications despite the fact that FBI background checks were still pending. See Singh v. Still, 470 F.Supp.2d 1064 (N.D.Cal. Jan. 8, 2007) (rejecting CIS's argument that it could not be blamed for the slowness of a name check that delayed plaintiff's application for LPR status for seven years because the name check was the responsibility of the FBI, and granting summary judgment to plaintiff who claimed unreasonable delay by CIS);

Paunescu v. INS, 76 F.Supp.2d 896, 903 n. 2 (N.D.Ill.1999) (rejecting defendants' attempts "to deftly transfer blame and responsibility from one governmental entity to another" as a "shell game"; noting that "[t]he INS, the FBI, and the State Department are all arms of the United States of America, a defendant in the instant case").
On the other hand, courts have not hesitated to find the CIS has unreasonably delayed processing of an application where the facts show the delay is fairly attributable to CIS and not the FBI. E.g. Haidari v. Frazier, No. 06-3215, 2006 WL 3544922, at *6 (D.Minn. Dec.8, 2006) ("[T]he FBI's delay here does not negate the USCIS's duty to process the Plaintiffs' applications in a reasonable time, both upfront when receiving the forms from the applicants, and later when receiving the requested information from the FBI.").
Whether the delay is attributable to the FBI or CIS is a factual matter, however, that cannot be resolved at the motion to dismiss stage.
D. Issue Preclusion
Plaintiff-asylees' claim that CIS violated the APA by delaying adjustment of status for those granted asylum is not barred by the settlement in Ngwanyia v. Gonzales, 376 F.Supp.2d 923 (D.Minn. 2005). Although, broadly, both Ngwanyia and this case involve asylees[31] bringing claims against the CIS under a theory of unreasonably delay in the processing of applications for LPR status, the precise facts and legal issues involved in each case are distinct and separate.[32]
1. The Ngwanyia Case
Ngwanyia involved a class of "[a]ll asylees in the United States who have applied for [LPR] status and whose applications for adjustment remain pending." 376 F.Supp.2d at 925. Under the Refugee Act, CIS can adjust up to 403 10,000 asylees already in the United States to LPR status each year. 8 U.S.C § 1159(b). The asylees *403 in Ngwanyia claimed that CIS unlawfully withheld agency action by not adjusting 10,000 asylees each year and sought to compel CIS to use the unused allotments from past years. 302 F.Supp.2d at 1081. CIS, in turn, conceded that it was "obligated to reach the 10,000 allotment for asylee adjustment set by Congress," and that incessant processing errors "almost guarantee[d] that we will not fully use the 10,000 numerical allocation provided by statute" each year. Id. CIS defended its refusal to use allotments from past years, however, by claiming that the allotments available for any given year expired at the end of that year; moreover, there was no statutory authority or requirement to retroactively grant adjustment using a prior year's allotment of adjustment figures. Id.
After the court granted summary judgment in favor of the asylees, the parties settled the case, agreeing that 31,000 asylee adjustment allotments remained available from prior years and would be used within the next three years. See Ngwanyia, 376 F.Supp.2d at 924; Settlement Agreement ¶ 20, Ex. E to Dfts' Brf. The settlement took effect on July 12, 2005. 376 F.Supp.2d at 923.
2. Issue preclusion applies only where an issue was necessary to the adjudication of a prior case.
Under the doctrine of issue preclusion, a determination by a court of competent jurisdiction on an issue necessary to support its judgment is conclusive in subsequent suits based on a cause of action involving a party or one in privity. Del. River Port Auth. v. FOP, Penn-Jersey Lodge 30, 290 F.3d 567, 572 (3d Cir. 2002). Preclusion is appropriate where: "(1) the identical issue was decided in a prior adjudication; (2) there was a final judgment on the merits; (3) the party against whom the bar is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom the bar is asserted had a full and fair opportunity to litigate the issue in question." Id. at 574.
In order for the issues to be identical for preclusion purposes, Defendants must show that the issues litigated in this case were necessary to the adjudication of Ngwanyia. Jean Alexander Cosmetics, Inc. v. L'Oreal USA, Inc., 458 F.3d 244, 250 (3d Cir.2006). The requirement that a preclusive finding must have been necessary to a judgment is rooted in principles of fairness. Id. "[P]arties should be estopped only on issues they actually deem important, and not on incidental matters." Id. (citing Lynne Carol Fashions, Inc. v. Cranston Print Works Co., 453 F.2d 1177, 1183 (3d Cir.1972)). Because litigants are likely to view an issue that is necessary to the resolution of

a case as important and to litigate it vigorously, it is fair to give such a determination preclusive effect. Id. The necessity requirement also ensures that preclusive effect is not given to determinations that did not "receive close judicial attention," or that were unappealable by virtue of being incidental to a decision. Id.
For example, in Lynne Carol, the Third Circuit reversed a district court's dismissal of the plaintiffs action based on grounds of issue preclusion. 453 F.2d at 1179. The plaintiff, a cloth purchaser, bought cloth from a cloth converter but was unhappy with the quality. Id. The plaintiff withheld payment, and the cloth converter sought arbitration under the contract. Id. Plaintiff defended that the goods were not fit for their normal and intended use, but the arbitrator rejected this argument and found for the cloth converter. Id. While the arbitration proceedings were underway, the plaintiff filed an action against a finishing company alleging that the finishing company had caused 404 the damage to the cloth. Id. The district court granted summary *404 judgment to the finishing company on the grounds that the plaintiff was precluded by the arbitration award from asserting the goods were damaged. Id. at 1182. The Third Circuit reversed, finding that the issues in two proceedings were not identical:
Superficially, it appears that the quality of the goods in question was squarely before the arbitrators. However, close analysis reveals that the precise issue as to the quality of the goods presented to the arbitrators . . . was whether the goods sold were not fit for the normal and intended use of such fabric by the purchaser, with the purpose of the use known to the seller. On the other hand, the complaint in the district court alleges that the goods were manufactured, produced, printed and designed by the defendant and were defective when they left the defendant's control.
Id. at 1183.
Important to the Third Circuit's decision was the fact that the plaintiff "would have to introduce different evidence" to prove its claims in each proceeding. Id. In the arbitration, the plaintiff would have to produce evidence that the goods were not fit for their intended use; in the lawsuit, the plaintiff would have to prove that any damage to the goods was caused by the defendant finishing company. Id.
3. None of the issues necessary to the adjudication of Ngwanyia are identical to issues in this case.
Defendants have not met their burden of showing that the issues decided in Ngwanyia are identical to the issues presented by Plaintiff-asylees in this litigation. Both cases involve broad allegations of "unreasonable delay" in CIS's processing of application. In Ngwanyia, however, the adjudication of the reasonableness of CIS's delay turned on the proper interpretation of the statutes allowing CIS to grant 10,000 asylees LPR status each year. It was not necessary in Ngwanyia to determine whether CIS's processing procedures were reasonable or unreasonable. That determination was irrelevant to the deciding whether allotments from prior years had expired or were still available for LPR status. CIS's reasonableness was not deemed important to the parties. In fact, CIS conceded processing errors caused delays but claimed that it could not use "expired" allotments from prior years to cure those delays.
In this case, CIS does not concede any error or unreasonableness in its processing of LPR applications. That is one of the precise issues before the Court, an important issue that was not litigated or necessary to the adjudication of Ngwanyia. Proof of CIS's alleged unreasonable delay will thus require evidence not before the court in Ngwanyia.
At the hearing on this matter, Defendants appeared to concede that Plaintiff-asylees' claim for unreasonable delay in this case was not "specifically before the court" in Ngwanyia, but maintain that because that claim "existed" at that time it was extinguished by settlement. The release in the Settlement Agreement itself undermines such an argument: "Nothing in this Agreement shall limit the right of a class member to . . . exercise any independent statutory or regulatory rights they may have, outside the scope of this Agreement, under the Immigration and Nationality Act. . . ." Settlement Agreement ¶ 43, Ex. E to Dfts.' Brf.
Accordingly, Plaintiff-asylees' claims in this case are not precluded by the Ngwanyia settlement.
V. CONCLUSION

For the reasons set forth above, the Court finds it has jurisdiction to hear the first action against the SSA, as it is 405 appropriate *405 to waive the requirement that Plaintiffs exhaust their administrative remedies. Plaintiffs' due
process claim against the SSA, however, must be dismissed because Plaintiffs do not have a property interest in any SSI benefits after the seven-year limitation imposed by Congress. As to the second action, on the other hand, Plaintiffs have stated two viable claims. First, they have stated a claim under the Equal Protection Clause based on their allegations that different applicants receive different treatment because of CIS's inconsistent implementation of the expedition policy embodied in Memorandum 22. Plaintiffs have also stated a valid claim of unreasonable delay against CIS and the FBI under the APA. Finally, the Court finds that the APA claim against CIS and the FBI is not precluded by a settlement in a prior case.
An appropriate order follows.
ORDER
AND NOW, this 29th day of March, 2007, for the reasons stated in the accompanying Memorandum, it is hereby ORDERED that Defendants' Motion to Dismiss (doc. no. 14) is GRANTED in part and DENIED in part.
The motion is GRANTED to the extent that Defendants' claim that Plaintiffs fail to state a cause of action under the Due Process Clause against the Social Security Administration ("SSA").
The motion is DENIED to the extent that Defendants (1) seek to dismiss this action for lack of subject matter jurisdiction, or (2) claim that Plaintiffs fail to state a cause of action under either the Equal Protection Clause or Administration Procedure Act.
AND IT IS SO ORDERED.
[1] The Social Security Administration ("SSA") estimates that between 1998 and 2005 it terminated the SSI benefits of 5,662 members of the proposed class. The SSA further estimates that approximately 4,500 more will lose SSI benefits in fiscal year 2007. Each year thereafter, the SSA estimates that approximately 4,000 humanitarian immigrants will lose SSI benefits. Overall, the SSA acknowledges that 46,780 SSI recipients are at risk of losing benefits due to the expiration of the seven-year eligibility period between 2006 and 2012. Pls.' Brf. at 2 (citing Freedom of Information Act (FOIA) Response of Willie J. Polk, SSA (Oct. 20, 2006), Tab A, Ex. 14 of Pls.' Mot. for Preliminary Injunction).
[2] Plaintiffs filed the Complaint in this case on December 6, 2006 (doc. no. 3) and served Defendants the next day (doc. no. 4). Plaintiffs then filed motions for a preliminary injunction and class certification on January 31, 2007 (doc. nos. 7, 8). The Court held a status and scheduling conference on February 9, 2007, in which it ordered Defendants to file a motion to dismiss by February 14, 2007, Plaintiffs to respond by February 21, 2007, and Defendants to file any reply by February 28, 2007 (doc. no. 21). The Court heard oral argument on the motion to dismiss on March 7, 2007. This Memorandum follows the Court's Order of March 7, 2007 (doc. no. 34), in which the Court indicated it would issue a memorandum deciding the merits of Defendants' motion and explain its reasoning for that decision.
[3] Congress enacted the Amerasian Act in 1982, Pub.L. No. 97-359, to address the situation of individuals fathered abroad by U.S. servicemen to women of Asian nationalities during World War II and the Korean War. The Amerasian Act provides for the immigration to the United States of such "Amerasian children." To qualify as an Amerasian, an alien must have been born in Cambodia, Korea, Laos, Thailand, or Vietnam after December 31, 1950, and before October 22, 1982, and have been fathered by a U.S. citizen. See 8 C.F.R. § 204.4.
[4] Section 501(e) of the Refugee Education Assistance Act of 1980 defines when an alien may be granted status as a Cuban or Haitian entrant and consequently receive certain benefits. 8 U.S.C. § 1522.
[5] The requisite FBI investigation consists of a fingerprint check and a name check. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1.

[6] Specifically, Congress mandated "What during fiscal year 1998 and each fiscal year thereafter, none of the funds appropriated or otherwise made available to the Immigration and Naturalization Service shall be used to complete adjudication of an application for naturalization unless the Immigration and Naturalization Service has received confirmation from the Federal Bureau of Investigation that a full criminal background check has been completed." Pub.L. 105-119, Tit. I, Nov. 26, 1997, 111 Stat. 2448.
[7] Plaintiffs Lidia Burtseva and Nelli Olevskaya allege they requested that CIS expedite their naturalization applications. They claim, however, that their requests were never acknowledged or even entered into their files.
[8] The SSA first notifies humanitarian immigrants that their SSI benefits are being suspended and explains that they have a certain amount of time to request reconsideration and further appeal of the suspension. See 20 C.F.R. § 416.1400(a)(2). At the end of that time period, the SSA then terminates the benefits.
[9] Kuehner demonstrates that Liberty Alliance's holding extends not only to SSI recipients whose benefits have already been terminated, but also to recipients at risk of having their benefits terminated.
[10] In response to numerous cases being litigated throughout the country regarding the same substantive issue underlying Kuehner, Congress passed legislation to provide relief to persons whose SSI benefits had been terminated because of the SSA's use of the wrong standard. As a consequence, Kuehner was vacated and remanded for the lower courts to apply the new legislation. Heckler v. Kuehner, 469 U.S. 977, 105 S.Ct. 376, 83 L.Ed.2d 312 (1984).
[11] Even more technical approaches to the presentment requirement have been liberally applied. For example in Mathews v. Diaz, the Supreme Court found the presentment requirement satisfied based on an affidavit and stipulation attesting to the fact that an application for benefits had been filed, even though the plaintiff did not file the application until after the filing of the complaint. 426 U.S. 67, 75, 96 S.Ct. 1883, 48 L.Ed.2d. 478 (1976).
[12] Because the Court finds jurisdiction over the SSA proper under § 405(g), it is unnecessary to consider whether mandamus jurisdiction also lies under 28 U.S.C. § 1361. See Mattern v. Mathews, 582 F.2d 248, 253 (3d Cir.1978) (holding that, although authorities recognize that the Social Security Act does not bar mandamus jurisdiction, in light of 405(g) jurisdiction the mandamus question need not be reached).
[13] Claiming that "[t]his is not a statutory case," Plaintiffs ignore the plain language of the statute and instead ask the Court to look to the "House report in 1997 which on its face created a legitimate expectation of continued receipt of benefits after seven years" while ignoring the plain language of the statute. Trans. of Hrg. of 3/7/07 at 81-83. The Supreme Court has made clear, however, that a "`property' interest in welfare payments [is] created and defined by statutory terms." Bd. of Regents v. Roth, 408 U.S. at 578, 92 S.Ct. 2701 (citing Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (due process claim implicated by withdrawal of public assistance benefits)). Plaintiffs do not advance any cases that support the creation of an entitlement to welfare benefits outside of the traditional statutory framework.
[14] There is no dispute that Plaintiffs have a property interest in SSI benefits before the seven-year limitation expires. Welfare benefits, including SSI, "are a matter of statutory entitlement for persons qualified to receive them." Atkins v. Parker, 472 U.S. 115, 128, 105 S.Ct. 2520, 86 L.Ed.2d 81 (1985).
[15] In examining the legislative history to discern Congress's intent, the Court will not rely on the declarations, submitted by Plaintiffs, of Ron Haskins, the Republican staff member responsible for drafting the provision, and Doris Meissner, the former Commissioner of the Immigration and Naturalization Service when the provision was first implemented, as to Congress's intent in enacting the provision. These documents were created years after Congress passed the statute.
As the Federal Court of Appeals has explained:
While a court may seek from the public record to ascertain the collective intent of Congress when it interprets a statute, the subjective intent of any particular person involved in the legislative process is not determinative. Thus the members of Congress, or staffpersons who draft legislation, are not deposed or called on to testify in actions involving statutory interpretation.

Markman v. Westview Instruments, Inc., 52 F.3d 967, 987 (Fed.Cir.1995) (analogizing patent interpretation to statutory interpretation). The Court's interpretive process is not a back door through which members of Congress can continue to advance their own legislative agendas. Thus, the Court cannot allow members of Congress, their staff, or just any individual claiming interest in the legislative drafting process to opine on Congress' intent in passing a particular statute. The Court will only look to the traditional sources of legislative intent, which include the language of the statute itself and other statements made on the public record prior to the passage of the statute.
[16] In Shalala, where the plaintiffs mounted an equal protection challenge to the Welfare Reform Act, the government took the position that one of the legitimate governmental purposes to which the Act was rationally related was "encouraging naturalization." 189 F.3d at 608. The Seventh Circuit rejected the plaintiffs' contention that "it is irrational to use the threat of starvation and homelessness to goad people into naturalization." Id. In finding that the Act "gives resident aliens in need of welfare benefits a strong economic incentive to become naturalized citizens," however, the Seventh Circuit noted that this "justification [is] not found in Congress' statement of policy." Id. Moreover, there was no discussion of how, if at all, the seven-year limitation was specifically related to the goal of encouraging naturalization.
[17] Congress's willingness to provide SSI benefits indefinitely to other classes of humanitarian immigrants is evidenced by other subsections of 8 U.S.C. § 1612(a)(2). For example, Congress extended SSI benefits to any alien "lawfully residing in the United States and who was receiving such benefits on August 22, 1996." Id. at § 1612(a)(2)(E). Congress also extended continuous SSI benefits to aliens who filed an application before January 1, 1979 and "with respect to whom the Commissioner of Social Security lacks clear and convincing evidence that such individual is an alien ineligible for such benefits as a result of the application of this section." Id. at § 1612(a) (2)(H)"
[18] In the alternative, Plaintiffs contend that the "SSA could have interpreted the sevenyear deadline to include a tolling provision and thereby allowed the plaintiffs to continue receiving SSI benefits until they received a determination on the merits of their citizenship applications." Pls.' Brf. at 48. Section 1612 is silent with respect to the issue of equitable tolling, and the SSA's decision not to read into the statute an equitable tolling provision is a permissible construction of the statute. See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Accordingly, the Court will defer to the SSA's interpretation on this matter.
[19] In this case, it cannot be said that Congress has been inattentive to administrative hurdles, perhaps unforeseen, which have been encountered in implementing the statute. Congress has amended the Welfare Reform Act at least four times since its passage in 1996, and each amendment has expanded aliens' eligibility for welfare benefits. See Pub.L. No. 105-33, 111 Stat. 251 (Aug. 5, 1997) (extending benefits to aliens receiving SSI on August 22, 1996, and disabled aliens lawfully residing in the United States on August 22, 1996); Pub.L. No. 105-185; 112 Stat. 523 (June 3, 1998) (extending food stamp eligibility to elderly aliens, children, and certain Hmong and highland Laotians); Pub.L. No. 105-306, 112 Stat. 2926 (Oct. 28, 1998) (clarifying previous extension of SSI benefits); Pub.L. No. 107-171; 116 Stat. 134 (May 16, 2002) (further extending food stamps to aliens who are disabled, children, or have resided in the United States for five years). At oral argument, Plaintiffs' counsel acknowledged that they had not petitioned Congress for relief and were aware of no other such efforts. Trans. of Hrg. of 3/7/07 at 73.
[20] Plaintiffs do not allege that CIS's decision to expedite some applications, but not others, is motivated by any particular invidious intent or ill will harbored against humanitarian immigrants in certain offices. See Willowbrook v. Olech, 528 U.S. 562, 565, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (holding that the plaintiff's allegations that a village "intentionally demanded a 33-foot easement as a condition of connecting [the plaintiff's] property to the municipal water supply where the Village required only a 15-foot easement from, other similarly situated property owners . . ., quite apart from the Village's subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis.")
[21] In addressing the defendant's equal protection claim, the Third Circuit examined the unequal treatment between plaintiffs, who were not subject to delay damages, and defendants, who were subject to delay damages. Knight, 935 F.2d at 629. It did not specifically address whether unequal treatment as a result of backlogs violated

the Equal Protection Clause. Id. Nonetheless, the Third Circuit's conclusion in Knight suggests that unequal treatment as a result of unintended backlogs does not violate the Equal Protection Clause. The Court appeared untroubled by the fact that different backlogs in different courts might result in unequal delay damages for different defendants.
[22] As discussed above, CIS promulgated Memorandum 22, which provides for the expedition of humanitarian immigrants' applications, in recognition that, because of processing delays, many humanitarian immigrants would not be able to complete the naturalization process before the termination of their SSI benefits.
[23] The details are tedious. First, in Matter of G.A., 7 I. & N. Dec. 274 (1956), the BIA found an alien eligible for § 212(c) relief because he had left and then returned to the United States after he had become deportable. Francis, 532 F.2d at 271. The BIA reasoned that since the alien would have been eligible for § 212(c) relief if the INS had placed him into exclusion proceedings at the time he sought reentry, relief could be granted at his later deportation hearing. Id. Second, in Matter of Smith, 11 I. & N. Dec. 325 (1965), the BIA construed § 212(c) to apply to deportation proceedings where an alien had requested an adjustment of status under § 245 of the INA. Id. The BIA concluded that because the § 245 application subjected the alien to all bases for exclusion, the alien should also benefit from the waiver available in exclusion proceedings. Id. At the same time, however, the BIA continued to refuse to grant § 212(c) relief to an individual who did not fall into one of the above two groups of deportable aliens. Id.
[24] In contrast, in DeSousa, the Third Circuit addressed the question unanswered by Francis: "whether a Congressional grant of § 212(c) relief to excludable, but not deportable, aliens violates the Fifth Amendment's equal protection guarantee." 190 F.3d at 184. Applying rational basis review, the Third Circuit found the classification permissible, because "Congress rationally could have decided to encourage [criminal] aliens to voluntarily leave the country as a carrot to a potential waiver of removal when they sought reentry." Id.
[25] Plaintiffs rely heavily on the concurring opinions of Justices Blackmun and Powell in Logan, in which the Justices opined that it was a violation of equal protection for claimants with identical employment discrimination claims to be treated differently, depending on whether the Illinois commission convened a hearing within the 120 days prescribed by statute. See 455 U.S. at 438, 102 S.Ct. 1148 (separate opinion of Blackmun, J., joined by Brennan, Marshall and O'Connor, J.J.); id. at 443, 102 S.Ct. 1148 (concurring opinion of Powell, J., joined by Rehnquist, J.). The Court will not apply Logan to this case. First, the majority opinion in Logan declined to address the plaintiff's equal protection claim, given that he had prevailed on his due process claim. Id. at 438, 102 S.Ct. 1148. Second, Justice Blackmun recognized that the equal protection claim was "an unconventional one." Id. Third, since the Logan decision in 1982, no court in the Third Circuit has relied upon Logan to recognize an equal protection claim, and Plaintiffs have pointed to no other court which has applied the reasoning of Logan's concurring opinions. In any case, that reasoning is not necessary to find that Plaintiffs have stated a violation of equal protection here.
[26] As the Supreme Court has explained, "[t]he final term in the definition, `failure to act,' is . . . properly understood as a failure to take an agency action-that is, a failure to take one of the agency actions (including their equivalents) earlier defined in § 551(13)." Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 62, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004).
[27] While the Court finds that Plaintiffs have stated a claim of unreasonable delay, the question of whether or CIS has in fact delayed unreasonably involves a "fact-intensive" balancing test that the Court need not undergo at this stage of the proceedings. See Oil, Chem., & Atomic Workers Union v. OSHA, 145 F.3d 120, 123 (3d Cir.1998).
[28] The Court does not reach the issue of whether the word "examination" in § 1447(b) refers to the date of the examination interview with a CIS officer, and not the entire "examination process." See, e.g., El-Daour v. Chertoff 417 F.Supp.2d 679 (W.D.Pa.2005).
[29] Of course, Congress could have elected to impose the duty in a single declaratory sentence. That through the vagaries of the legislative process it did so in a more circuitous way, through several enactments rather than a single one, is of no moment.

[30] Defendants also argue that the APA claim against the FBI should be dismissed as moot because "all FBI background checks regarding named plaintiffs are complete." Dfts.' Reply at 16. Plaintiffs have argued, however, that "[o]nly when this lawsuit was filed was anything done to speed up the naturalization process." Pls.' Brf. at 14. While the Court notes "that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot," unless "there is no reasonable expectation that the wrong will be repeated." United States v. W.T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) (quoting United States v. Aluminum Co. of America, 148 F.2d 416, 448 (1945)), the Court need not reach the issue of mootness.
[31] Defendants argue that Ngwanyia only precludes the asylees in this case from re-litigating a claim of unreasonable delay in the processing of their applications for LPR status; they do not raise this argument as to refugees, Cubans, Haitians, or Amerasians.
[32] Generally, motions based on issue preclusion, especially within the class action context, are too factintensive to appropriately decide on a motion to dismiss. E.g. Pryor v. NCAA, 288 F.3d 548, 559-60 (3d Cir.2002). Here, however, there are no facts in dispute that are outcome-dispositive, and the Court may dispose of the motion.
Save trees - read court opinions online on Google Scholar.

 
 Case 2:06-cv-05304-ER Document 71 Filed 01/04/08 Page 1 of 7

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

SHMUL KAPLAN, et al. Plaintiffs,
v. MICHAEL CHERTOFF, Secretary of Homeland Security; et al.
Defendants.

Civil Action No. 06-5304
[PROPOSED] ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT AND APPROVAL OF NOTICE TO CLASS MEMBERS OF PROPOSED SETTLEMENT
Hon. Eduardo C. Robreno

On January __, 2008, this Court held a hearing on Plainti ffs Shmul Kaplan, et al.’s and Defendants Michael Chertoff, et al.’s Joint Motion for Preliminary Approval of Settlement Agreement and Approval of Notice to Class Members of Proposed Settlement. Upon full consideration of all submitted papers and oral arguments in support of the Joint Motion, and for good c ause shown, IT IS HERE BY ORDERED that the parties’ Joint Motion for Prelim inary Approval of Settlem ent Agreement and Approval of Notice to Class Members of Proposed Settlement is GRANTED as follows:
1. The Stipulation and Agreement of Settlement and Release attached hereto as Attachment A is preliminarily approved.
2. Michael Mukasey, Attorney General, is substituted for Alberto Gonzales, former Attorney General.
3. Michael J. Astrue, Commissioner of the Social Security Administration, is substituted for Jo Anne B. Barnhardt.
4. The Notice of Proposed Settlem ent Agreement and Hearing in Class Action Concerning Im migration Benefit Processing Fo r Non-Citizens

Case 2:06-cv-05304-ER Document 71 Filed 01/04/08 Page 2 of 7

Receiving Supplemental Security Income attached hereto as Attachment B is approved. 5. The following satisfies the notice r equirements of Federal Rule of Civil Procedure 23(e)(1)(B): (i) posting the Notice of Proposed Settlem ent Agreement and Stipula ted Agreement of Settlement and Release in appropriate places on the United States Citizenship and Immigration Services (“USCIS”) and Social Secu rity Administration (“SSA”) public websites, and (ii) providing the Notice of Proposed Settlement Agreement and Stipulated Agreement of Settlem ent and Releas e to the USCIS Community Relations Program for distribution within f ive (5) bus iness days of the date of this Order to the existing network of community-based and non-profit organizations who pr ovide advice and assistance to immigrants, including AILA chapters through the AILA national office. 6. A fairness hearing will be held on [date] at [time] by this Court, located at 601 Market Street, Philadelphia, Pennsylvania, in Courtroom 11A. IT IS SO ORDERED.

Dated: ____________________, 2008

Hon. Eduardo C. Robreno UNITED STATES DISTRICT JUDGE

2

Case 2:06-cv-05304-ER Document 71 Filed 01/04/08 Page 3 of 7

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

-------------------------------------------------------------X

SHMUL KAPLAN, et al.,

Civil No. 06-5304

Judge

Robreno

Plaintiffs,

JOINT MOTION FOR

MICHAEL CHERTOFF, et al.,

PRELIMINARY

APPROVAL OF

SETTLEMENT AGREEMENT

Defendants

AND

APPROVAL OF NOTICE

TO CLASS MEMBERS OF

PROPOSED SETTLEMENT

--------------------------------------------------------------X

Plaintiffs Shmul Kaplan, et al. and Defendants Michael Chertoff, et al. will and hereby do
move the Court for entry of an Order:
1. Preliminarily approving the attached Stipulation and Agreement of Settlement and Release (“Settlement”). (Ex. A.)
2. Approving the attached Notice of Proposed Settlement Agreement and Hearing in Class Action (“Notice of Proposed Settlement”). (Ex. B.)
3. Finding that the following satisfies the notice requirements of Federal Rule of Civil Procedure 23(e)(1)(B): (i) posting the Notice of Proposed Settlement Agreement and Stipulated Agreement of Settlement and Release in appropriate places on the United States Citizenship and Immigration Services (“USCIS”) and Social Security Administration (“SSA”) public websites, and (ii) providing the Notice of Proposed Settlement Agreement and Stipulated Agreement of Settlement and Release to the USCIS Community Relations Program for distribution within five (5) business days of the date of this Order to the existing network of community-based and non-profit organizations who provide advice and assistance to immigrants, including AILA chapters through the AILA national office.
4. Setting a fairness hearing for final determination on whether the Settlement is fair, reasonable, and adequate.

Case 2:06-cv-05304-ER Document 71 Filed 01/04/08 Page 4 of 7
I. INTRODUCTION AND BACKGROUND On December 6, 2006, Plaintiffs Shmul Kaplan, et al., filed the above-captioned action
seeking class certification and declaratory and injunctive relief challenging the actions of the SSA in terminating Supplemental Security Income (“SSI”) pursuant to the time limitations set in 8 U.S.C. § 1612(a)(2)(A), and further challenging alleged delays by the government in adjudicating applications for adjustment of status (I-485) and naturalization (N-400) and the resulting actual and potential cut-off of SSI. On March 7, 2007, this Court issued its Order granting in part Defendants’ Motion to Dismiss. Following negotiations conducted under the auspices of Chief Magistrate Judge Rueter, parties have now reached a mutually agreeable settlement, and seek this Court’s preliminary approval of the proposed Settlement and this Court’s approval of the Notice of Proposed Settlement pursuant to Federal Rule of Civil Procedure 23(e). II. PROPOSED SETTLEMENT
As set forth in the proposed Settlement, the parties have agreed to preservation of this Court’s Memorandum Opinion and Order on Defendants’ Motion to Dismiss. As part of the settlement, the parties stipulate to certification of a class pursuant to Fed. R. Civ. P. 23, consisting of:
all non-United States citizens who are receiving or have received Supplemental Security Income (“SSI”) and are or will be subject to termination or suspension of SSI pursuant to 8 U.S.C. § 1612(a)(2)(A), prior to a final decision on their current or future Application for Naturalization, Form N-400, and oath ceremony to become a United States citizen. The key terms of the proposed settlement agreement provide that any class member may request Expedited Processing from USCIS for pending applications for naturalization or adjustment of status, or for future applications for naturalization or adjustment of status filed
2

Case 2:06-cv-05304-ER Document 71 Filed 01/04/08 Page 5 of 7
during the pendency of the Settlement Agreement, if six months have elapsed since the filing of the pertinent application without a decision. USCIS will request priority processing of any pending of future security checks and provide the earliest available appointment for applications requiring an appointment. If an Oath of Allegiance is required, USCIS will administer or schedule that the Oath at the next available opportunity.
USCIS will also, through identifying information provided by SSA, attempt to identify individuals whose SSI benefits have been terminated or suspended, or will be terminated or suspended in the near future and have pending applications for naturalization or adjustment of status. Where those individuals are positively identified, USCIS will automatically expedite the pending applications. The automatic expedites will take place close to the end of the first year of the Settlement Agreement.
If someone has a pending Form I-485 or Form N-400 and has received or is receiving SSI benefits, he or she (or his or her representative) may call USCIS at 1-800-375-5283 (“USCIS I800 number”) and request expedited processing. Expedited processing may also be requested in writing or by going to the local USCIS office.
After the Effective Date of the agreement, if expedited processing has already been requested but the applicant has not received notice of a decision, he or she may call the USCIS 1-800 number to verify that an expedite has been initiated in his or her case. If 45 days have passed since the call to the USCIS 1-800 number with no response, or if the response from USCIS was unsatisfactory, the applicant may contact Class Counsel.
The agreement further provides that, in consideration of the other provisions in the agreement, class members release all defendants from all “Settled Claims.” “Settled Claims” means any and all actions, in law or equity, that were asserted or that could have been asserted
3

Case 2:06-cv-05304-ER Document 71 Filed 01/04/08 Page 6 of 7
by Class Members or anyone acting on behalf of or in place of a Class Member, based upon the facts alleged or that could have been alleged in the Amended Complaint relating to the subject of this action, including but not limited to the Due Process, Equal Protection, and APA claims. Only individual actions against USCIS under 8 U.S.C. § 1447(b) and individual actions against SSA under 42 U.S.C. § 405(g) are excepted from “Settled Claims.” III. NOTICE OF PROPOSED SETTLEMENT
Defendants will provide notice of the proposed settlement by: (i) posting the Notice of Proposed Settlement Agreement and Stipulated Agreement of Settlement and Release in appropriate places on the USCIS and SSA public websites, and (ii) providing the Notice of Proposed Settlement Agreement and Stipulated Agreement of Settlement and Release to the USCIS Community Relations Program for distribution within five (5) business days of the date of this Order to the existing network of community-based and non-profit organizations who provide advice and assistance to immigrants, including AILA chapters through the AILA national office. IV. NO SIDE AGREEMENTS
Pursuant to Federal Rule of Civil Procedure 23(e)(2), the parties declare that there are no other agreements made in connection with the proposed Settlement.
4

Case 2:06-cv-05304-ER Document 71 Filed 01/04/08 Page 7 of 7

V. CONCLUSION Based on the foregoing, the parties respectfully request that this Court enter an order
preliminarily approving the proposed Settlement, approving the Notice of Proposed Settlement, and setting a date for a fairness hearing. A proposed Order is attached. Dated: January 4, 2008 Respectfully submitted

For Defendants:
JEFFREY S. BUCHOLTZ Acting Assistant Attorney General

DAVID KLINE Principal Deputy Director

By:

s/

ELIZABETH J. STEVENS (VA 47443)

Senior Litigation Counsel

Office of Immigration Litigation

Civil Division

United States Department of Justice

1331 Pennsylvania Avenue, N.W.

Washington, D.C. 20044

(202) 616-9752

PATRICK L. MEEHAN United States Attorney
RICHARD M. BERNSTEIN (PA. #23044) Assistant United States Attorney 615 Chestnut Street, Ste. 1250 Philadelphia, PA 19106-4476 (215) 861-8334 (215) 861-8349 (fax)

For Plaintiffs:

By: s/

JONATHAN M. STEIN

SABRINA M. RUDNICK

RICHARD P. WEISHAUPT

JORDANA L. GREENWALD

MICHAEL R. FROEHLICH

Ballard Spahr Andrews & Ingersoll, LLP

Community Legal Services, Inc. of

Market Street, 51st Fl

Philadelphia

Philadelphia,

PA 19103-7599

1424 Chestnut Street

Philadelphia, PA 19102-2505

JOHN BOUMAN

Sargent

Shriver National Center on Poverty Law

THOMAS B. ROBERTS

50 East Washington Street, Suite 500

AYODELE A. GONSALLO

Chicago, IL 60602

JUDITH BERNSTEIN-BAKER

Hebrew Immigrant Aid Society and

Council Migration Service of Philadelphia

2100 Arch Street

Philadelphia, PA 19103

5

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 1 of 27
ATTACHMENT A

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 2 of 27

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

- - - - - - - - - - - - - - - - - - - - -X SHMUL KAPLAN, et al.,

Plaintiffs,

Civil Action No. 06-5304

- against -

MICHAEL CHERTOFF, et al.,

Defendants.

- - - - - - - - - - - - - - - - - - - - -X

STIPULATION AND AGREEMENT OF SETTLEMENT AND RELEASE

Plaintiffs in the above-captioned m atter, on behalf of themselves, the Class and all Class

Members (as defined below), and Defendants Michael Chertoff, Secretary of Homeland

Security; Michael B. Mukasey, Attorney General; Emilio Gonzalez, Director of the United States

Citizenship and Immigration Services (“USCIS”); Robert S. Mueller, III, Director of the Federal

Bureau of Investigation (“FBI” ); Michael J. Astrue, Commissi oner of the Social Security

Administration (“SSA”); and Dona ld Monica, District Director , USCIS Philade lphia District

(together, “Defendants”), by and through their attorneys, hereby en ter into this Stipulation and

Agreement of Settlement and Rele ase (the “Stipulation”), as of the date benea th Defendants’

Counsel’s signature, effective upon the approval of the Court pursuant to Rule 23 of t he Federal

Rules of Civil Procedure.

WHEREAS:

A. Plaintiffs filed suit on behalf of themselves and all oth ers similarly situated

against Defendants in the United States District Court for the Eastern District of Pennsylvania on

December 6, 2006, seeking class certification, designation of Class Counsel and declaratory and

injunctive relief;

DMEAST #9842911 v1

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 3 of 27
B. By Order of March 29, 2007, the Court de nied Defendants’ Motion to Dism iss in part and granted it in part;
C. To date, the Court has not granted class certification, designation of Class Counsel, declaratory or injunctive relief;
D. Defendants deny all liability with resp ect to the Action, deny that they have engaged in any wrongdoing, deny th e allegations in the C omplaint and Am ended Complaint, deny that they committed any violation of law, deny that th ey acted improperly in any way, and deny liability of any kind to the Nam ed Plaintiffs, the Class, or the Class Mem bers, but have agreed to th e settlement and dism issal of the A ction with p rejudice in order to: (i) avoid the substantial expense, inconvenience, and distraction of protracted litigation; and (ii) finally put to rest and terminate the Action and any and all Settled Claims as defined in paragraph 10.
E. Class Counsel have conducted discussi ons and arm ’s length negotiations with Defendants’ Counsel with respect to a compromise and settlement of the Action with a view to settling the issues in dispute and achieving the best relief possible consistent with the interests of the Named Plaintiffs, the Class, and all Class Members.
F. After considering the benefits that the Named Plaintiffs, the Class, and the Class Members will receive from settlement of the Action and the risks of lit igation, Class Counsel have concluded that the term s and conditions of this Stipulation are fair, reasonable, and in the best interests of the Nam ed Plaintiffs, the Class , and the Class Mem bers; have ag reed that the Released Parties should be released from the Settled Claims pursuant to the terms and provisions of this Stipulation; and have agree d to the dism issal with prejudice o f all Settled Claims as defined in paragraph 10. The relief contained in this Stipulation is m eant to p rovide relief to
2

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 4 of 27

those Class Members actually or potentially adversely affected by 8 U.S.C. § 1612(a) prior to or

during the life of the agreement.

NOW, THEREFORE, it is hereby STIPUL ATED AND AGREED, by and a mong the

parties to this Stipulation, through their respective attorneys, subject to the approval of the Court

pursuant to Rule 23(e) of the Fede ral Rules of Civil Procedure, in consideration of the benefits

flowing to the parties hereto from the Settlement, that the Settled Claims as against the Released

Parties shall be com promised, settled, forever re leased, barred, and dism issed with prejudice,

upon and subject to the following terms and conditions:

I.

DEFINITIONS:

Wherever used in this Stipulation, the following terms have the meanings set forth below:

1.

“Action” means the above-captioned action pending in the United States

District Court for the Eastern District of Pennsylvania (docket no. CV 06-5304).

2.

“Class” means, for purp oses of th is settlement only, a plaint iff class certified

pursuant to Rule 23 of the Federal Rules of Ci vil Procedure, comprising all non-United States

citizens who are receiving or have received Su pplemental Security Income (“SSI”) and a re or

may be subject to termination or suspension of SSI pursuant to 8 U.S.C. § 1612(a)(2)(A), prior to

a final decision on their current or future App lication for Naturalization, Form N-400, and oath

ceremony to become a United States citizen. T he Class ceases to exist, and all m embership in

the Class ends, upon the termination of this Stipulation pursuant to paragraph 54.

3.

“Class Member” means any person included in the Class.

4.

“Effective Date of Settlement” or “Effective Date” m eans the date upon which

the Settlement provided for in this Stipulation shall become effective, as set forth in paragraph 50

below.

DMEAST #9842911 v1

3

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 5 of 27

5.

“Plaintiff(s)” or “Nam ed Plaintiff(s)” m eans Shmul Kaplan, Tasim Mandija,

Feride Mandija, Rouzbeh Aliaghaei, Lidiya Burtseva, Nelli Olevska ya, Eshetu Meri, Sa ra

Bachman, Moisey Bachm an, Joe Beoplue, Sonyunor Beoplue, Glayon Bloue, Isaak Rozenblit,

Semen Savaranskiy, Lyudmila Shirokaya, Igor Stepanov, and Yevheniya Strizhevskaya.

6.

“Plaintiffs’ Counsel” or “Class Counsel ” means Community Legal Services,

Inc.; Ballard Spahr Andrews & Ingersoll, LLP ; Hebrew Imm igrant Aid Society and Council

Migration Service of Philadelphi a; and the Sa rgent Shriver National Center on P overty Law.

Should these entities change their nam es or m erge with other entities, those new entities shall

also qualify as Class Counsel.

7.

“Expedite” or “Expedited Processing” re fers to the process by which USCIS

provides priority action on applications for adjustment of status to lawful permanent residence (I-

485) and on applications for natu ralization (N-400), on processes wi thin the control of USCIS.

When implementing Expedited Processing h ereunder, USCIS will (i) provide an d/or request

priority action on any pending or fu ture security checks for the curr ent application; (ii) provide

priority action on any internal processing at US CIS; and (iii) provide the Class Mem ber with

priority for the earliest available appointm ent for applications requiring an appointm ent.

Additionally, USCIS will administer or schedule the Oath of Allegiance for the Class Member at

the next available opportunity.

8.

An Expedite does not m ean that background checks or the adjudication of a n

application will be co mpleted by a date cer tain, nor d oes Expedited Processing guarante e

approval of an application.

4

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 6 of 27

9.

“Released Parties” means any and all of the Defendants, their predecessors and

successors, their departm ents and agencies, and their past or presen t agents, em ployees, and

contractors.

10.

“Settled Claims” means any and all actions, in law or equity, that were asserted

or that could have been asserted by Class Members or anyone acting on behalf of or in place of a

Class Member, based upon the facts alleged or th at could have been a lleged in the Am ended

Complaint relating to th e subject of this ac tion, including b ut not lim ited to the D ue Process,

Equal Protection, and APA clai ms. Only indivi dual actions against US CIS under 8 U.S.C. §

1447(b) and individual actions against SSA unde r 42 U.S.C. § 405(g) are excepted from the

claims settled by this action.

11.

“Settlement” means the settlement provided for in this Stipulation.

II. RELEASE; SCOPE AND EFFECT OF RELEASE

12.

On the Effective Date, the Named Plaintiffs, the Class, and the Class Members,

on behalf of the mselves, their heirs, executors, administrators, representatives, attorneys,

successors, assigns, agents, affiliates, and partners, and any persons the y represent (“Releasing

Parties”), shall be deemed to have, and by ope ration of the Final Judgm ent shall have, fully,

finally, and forever released, relinquished, and disc harged the Released Parties of and from any

and all of the Settled Claims, and the Releasing Parties shall forever be barred and enjoined from

bringing or prosecuting any Settled Claim against any of the Released Parties.

13.

This Stipulation is conti ngent on the preservation of the Order of the Court on

Defendants’ Motion to Dismiss for Lack of Ju risdiction (published at 481 F. Supp. 2d 370 (E.D.

Pa. 2007)). Neither Plaintiffs’ nor Defendants’ concurrence with the preservation of the Order

DMEAST #9842911 v1

5

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 7 of 27

constitutes, and shall n ot be deemed to im ply, their agreem ent with the findings or decisions

contained in that Order.

14.

Class Counsel, as fiduciaries to individual Class Members, agree to any and all

sharing of information between USCIS and SSA required by paragraphs 22, 23, 25 and 26 of this

Stipulation.

15.

In consideration for the releases contained herein, and subject to this

Stipulation’s conditions, USCIS will institute procedur es for the Expedited Proces sing of all

current and future Class Members’ applications for adjustment to lawf ul permanent resident

status and applications for naturalization during the existence of this Stipulation.

III. PROCESSING OF CLASS MEMBERS’ APPLICATIONS

A. General Expedited Processing

16.

Each Class Mem ber may request E xpedited Processing of his or her pending

application for adjustm ent of status, Form I-485, or naturalization, Form N-400, at any time.

USCIS will grant Expe dited Processing where such applications of Class Mem bers have been

pending without a decision for si x months, unless otherwise speci fied in this Settlem ent.

Requests made prior to the passage of six mont hs shall be considered by USCIS once the six

month mark is reached without further action by the individual requesting Expedited Processing.

17.

Expedited Processing may be requested (i) through the USCIS 1-800 telephone

number, (ii) by appearing in person at the loca l USCIS District Offic e, (iii) by written request

included with the filing of the a pplication, or (iv) by m ail to the office at which the application

was filed. USCIS may verify that the individual is a Class Mem ber by requesting the individual

to produce a copy of SSA correspondence addressed to the individual.

18.

Plaintiffs agree that nothing in this Stipulation limits Defendants’ authority

under the law to prom ulgate regulations, issue polic y directives and guidan ce, and to take other

6

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 8 of 27

action, as necessary, without noti ce to Plaintiffs, concerning the pr ocessing of such applications

including, but not lim ited to, th e substantive scope of background and security investigations

conducted on aliens. However, regardless of how the processing of such applications m ay

change, the obligation to provide Expedited P rocessing pursuant to this Stipulation shall be

preserved so long as Expedited Processing pursuant to this S tipulation, including priority

processing of FBI na me checks, is consistent with the b est interest of national s ecurity as

determined by Defendants.

19.

Where USCIS is im plementing Expedited Processing for an application and

the FBI has not com pleted its name check, USCIS will promptly notify the FBI of the need for

priority processing of the pending FBI na me check separately from other priority processing

requests. The FBI shall thereafter prom ptly undertake priority processing of the name check for

the specified individual. However, nothing in th is Stipulation obligates the FBI to accept m ore

than 100 requests for priority processing from USCIS per week. USCIS reserves the right to

prioritize Class m embers within th e group of i ndividuals receiving FBI prio rity name check

processing pursuant to USCIS’s operational needs. As USCIS is the FBI’s cus tomer agency, the

FBI will pr ioritize requests for priority name check processing in acc ordance with USCIS’s

requests, as communicated to the FBI by USCIS. Every other week, USCIS and the FBI will

conduct status checks o n all pending requests for prio rity processing of name checks submitted

pursuant to this Stipulation.

B. Class Members Whose SSI Benefits Were Terminated Or Suspended Pursuant To 8 U.S.C. § 1612(a)(2)(A).

20.

Within 60 days of the Effective Date, Defendants, acting through SSA, shall

compile a m ailing list of all those Class Me mbers whose SSI benefits were ter minated or

suspended pursuant to 8 U.S.C. § 1612(a)(2)(A) and whose benefits have not been restored, and

DMEAST #9842911 v1

7

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 9 of 27

those whose SSI benefits m ay be term inated or suspended prior to the June following the

Effective Date ( “Terminated Members”). Th is mailing list of Terminated Members will

promptly be made available to Class Counsel in paper and electronic format.

21.

Within 75 days of the Effective Date, in conjunction with P laintiffs’ Counsel

pursuant to paragraph 36.a, Defendants USCIS and SSA will join tly prepare and USCIS will

mail a distinctive letter to the Term inated Members. The letter shall include : a) a section

encouraging all who have not yet filed applicati ons for either naturalization or adjustm ent of

status to do so as soon as they are statutorily eligible to file; b) notification of the availability of a

fee waiver application process for naturalizati on (N-400) and adjustm ent of status (I-485)

applications; c) inf ormation on the availability of Expedited Processing for those who have

applications pending with USCIS; and d) a central telephone number for contacting Class

Counsel.

22.

Any letters sent pursuant to paragraph 21 that are retu rned to sender within 90

days of the mailing will be co llected and provided to USCIS. USCIS will p romptly attempt to

identify updated addresses for t hose individuals through its curr ent address change system.

Where an updated address is available, USCIS will promptly resend the letters to th e updated

address. At the end of the 90-day period, USCIS will provide Class Counsel with the mailing list

of the individuals with updated addresses in paper and electronic format.

23.

Six months after the paragr aph 21 lette r has been sent, SSA will provide

USCIS with identifying information for all Terminated Members who have not been restored to

SSI benefits. Within three months thereafter, USCIS will attem pt to match the SSA identif ying

information with information in USCIS’ systems, in order to identify Terminated Members with

pending applications. USCIS will, on its own in itiative and without the need for a request,

8

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 10 of 27

Expedite the processing of all Forms I-485 and N-400 of Terminated Members where USCIS has

positively identified Terminated Members through this matching process, even if the application

has not been pending for more than six months.

C. Class Members Whose SSI Benefits Will Te rminate Or Be Suspended Pursuant to 8 U.S.C. § 1612(a)(2)(A) Within One Year.

24.

In or about May or Ju ne of 2008, De fendant SSA will provide individual

notices to those SSI beneficiaries who face potential termination or suspension of SSI pursuant to

8 U.S.C. § 1612(a)(2)(A) in the tw elve months starting July 1, 2008 (“Pending Members”). A

mailing list of Pending Members will promptly be made available to Class Counsel in paper and

electronic format. The notices, to be developed in conjunction with Plaintiffs’ Counsel pursuant

to paragraph 36.b, shall include: a) a section enc ouraging all who have not yet filed applications

for either naturalization or adjustment of status to do so as s oon as they are statutorily eligible to

file; b) notification of the availability of a fee waiver application p rocess for naturalization (N-

400) and adjustment of status (I-485) app lications; c) infor mation on the availability of

Expedited Processing for those who have applica tions pending with USCIS; and d) a central

telephone number for contacting Class Counsel.

25.

Any letters sent pursuant to paragraph 24 that are re turned to SSA within 90

days of the m ailing will be collecte d by SSA a nd provided to USCIS. USCIS will prom ptly

attempt to identify updated addresses for those individuals through its cu rrent address change

system. Where an upd ated address is available , USCIS will prom ptly resend the le tters to the

updated address. At the end of the 90-day pe riod, USCIS will provid e Class Counsel with the

mailing list of the individuals with updated addresses in paper and electronic format.

26.

Three months after the paragraph 24 le tter has been sen t by SSA, SSA will

provide USCIS with identifying infor mation for all Pending Mem bers. W ithin three m onths

DMEAST #9842911 v1

9

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 11 of 27

thereafter, USCIS will attem pt to m atch the SSA identifying information with inf ormation in

USCIS’ systems, in order to identif y Pending Members with pending applications. USCIS will,

on its own initiative and without the need for a request, Expedite the processing of all Forms

I-485 and N-400 of Pending Mem bers where USCIS has positively identified Pending Members

through this m atching process, even if the application has not been pending for m ore than six

months.

D. Dissemination of Information to Class

27.

In addition to the notices m ailed to individual Class Members pursuant to

subsections B & C herein:

a. Within 63 days of the Effective Date, USCIS will issu e press releases

regarding the availability of Expedited Processing for those non-U.S. citizens currently receiving

SSI benefits and for those whose SSI benefits ha ve been terminated or suspended pursuant to 8

U.S.C. § 1612(a)(2)(A);

b. Within 90 days of the Effective Date, USCIS, through its Community

Relations Program, will communicate the availa bility of Expedited Processing through USCIS’

existing network of community-based and non- profit organizations w ho provide advice and

assistance to immigrants, and to th e private immigration bar, including AILA chapters through

the AILA national office;

c. Within 63 days of the Effective Date, SSA and USCIS will inc lude

information regarding Expedited Processing for Class Members on their respective websites;

d. SSA will provide inf ormation regarding the availability of Expedited

Processing, the im portance of prom pt filing and the availability of a fee waiver application

process in all annual rem inder Notices regardin g the seven-year cut- off provision which SSA

sends to current and future Class Members at least during the pendency of this Stipulation; and

10

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 12 of 27

e. Within 120 days of the Effective Da te, USCIS will prom inently display

posters in all USCIS pu blic areas to address the availability of Expedited Processing for all N-

400 and I-485 applications filed by immigrants subject to the limit on SSI benefits pursuant to 8

U.S.C. § 1612(a).

28.

All communications to Class Members shall be in English, subject to

paragraph 31, and m ay be in ot her languages at the discretion of the governm ent agency. A

separate SSA “fact sheet” for non-citizen SSI recipients, with information about the im portance

of prompt filing, the availability of a fee waiver application process, the availability of Expedited

Processing, and where to obtain ad ditional information, will be availab le within 90 days of the

Effective Date on the SSA “Gateway” website, which provides access to translations of

documents in 15 differe nt languages. In add ition, on request by an individual applicant, SSA

will endeavor to have interpreters and/or translators available to assist with inquiries.

E. Miscellaneous Provisions

29.

Within 63 days of the Effective Date, USCIS will inf orm all relevant staff at

USCIS District Offices and Serv ice Centers about their respons ibilities regarding Expedited

Processing under this Stipulation. This communication will also include a statement that a Class

Member may be applying for a fee waiver; that any application for a fee waiver will be

adjudicated under the applicab le fee waiver gu idance; and that a Class Mem ber will likely

establish eligibility for a fee wa iver. USCIS will p rovide Plaintiffs’ counsel with a copy of the

final signed guidance, solely fo r informational purposes, no less than three days before it is

disseminated to USCIS staf f. The review and comment provision of paragraph 36 will not be

applicable to this guidance, but the dispute re solution provisions of pa ragraph 42 apply to any

dispute. Plaintiffs’ counsel m ay not disseminate nor disclose the guidance outside of Plaintiffs’

DMEAST #9842911 v1

11

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 13 of 27

counsel unless USCIS later m akes the guidance public. Defendant s’ counsel shall immediately

inform Plaintiffs’ counsel when and if the guidance is made public.

30.

Within 63 days of the Eff ective Date, SSA will notif y all re levant staff,

including those at SSA District and Field Offices, about the availa bility of Expedited Processing

and USCIS fee waivers, by issuing an Em ergency Message that will address the issues raised by

this Stipulation. In the Em ergency Message, SSA wil l encourage SSA staff to provide

information to Class Members regarding the availability of Expedited Processing and USCIS fee

waivers, USCIS’ policies concerning expediting of naturalization (N-400) and adjustm ent of

status (I-485) applications, and where to get more information from USCIS. Ultim ately, SSA

will issue a Program Operations Manual System (POMS) instruction to address the issues raised

by this Stipulation.

31.

All mailings to class m embers by Defendant agencies pursuant to paragraphs

20 and 24 will in clude the following paragraph tran slated into the Arabic, Cam bodian, Chinese,

Farsi, French, Haitian-Creole, Laotian, Russian, Spanish, an d Vietnamese languages: “This is a

very important letter about continuing your Supplem ental Security Income (SSI). Please read it

carefully. If you cannot read Engl ish, please take this letter to som eone who can read it to you

right away.”

32.

Where the sharing of inform ation among Defendants USCIS and SSA is

required by this Stipulation, Defendants shall comply with all requirements of the Privacy Act.

33.

When USCIS or SSA provide C lass Counsel with personal identifying

information of Class Members pursuant to paragraphs 20, 22, 24 and 25 of this Stipulation, Class

Counsel shall use the infor mation only to com ply with the Stipulation’s term s. Class Counsel

may not duplicate or dissem inate the pers onal identifying information except where

12

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 14 of 27

dissemination is necessary to com ply with the requirements of the Stipulation, and shall destroy

or return the personal identifying inform ation within 30 days of the te rmination of this

Stipulation pursuant to paragraph 54, except for one cop y which may be retained in Clas s

Counsel’s archive of the Action until 30 days after th e running of the Pennsylvania Statute of

Limitations for an atto rney malpractice claim accruing on or before the term ination of the

obligations of the parties under th is Stipulation pursuant to para graph 54 of this Stipulation.

Class Counsel assum e all obligations and respons ibilities for the storage, retention, use and

release of the data consistent with applicable law.

34.

Released Parties and Plaintiffs’ Counsel will mutually approve (a) all Notices

to the Class under Paragraph 47; and (b) th e Notice of Final Settlem ent Agreement under

Paragraph 49.

35.

A flow chart picturing the various provisions and deadlines shall be attached

to this Stipulation as Exhibit A.

36.

Plaintiffs’ Counsel will have the opport unity to review and provide written

comments to Defendants on the written materials listed below:

a. the letter to Terminated Members under Paragraph 21;

b. the letter to Pending Members under Paragraph 24;

c. the press releases from USCIS under Paragraph 27(a);

d. announcements posted on USCIS’s and SSA’s websites under Paragraph

27(c);

e. the revisions to the annual letter sent by SSA to Class Members under

Paragraph 27(d);

f. the USCIS posters under Paragraph 27(e);

DMEAST #9842911 v1

13

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 15 of 27

g. the revisions to the SSA “fact sheet” for non-citizen SSI recipients under

Paragraph 28; and

h. the Emergency Message and POM S section from SSA under Paragraph

30.

Released Parties will provide draft copies of these materials to Plaintiffs’ Counsel at least

30 days prior to their intended distribution in order to permit Plaintiffs’ Counsel adequate time to

review and comment. Plaintiffs’ Counsel will make comments within 10 day s of receip t.

Released Parties will consider the comments of Plaintif fs’ Counsel and will p rovide Class

Counsel with a final version prior to distribution.

IV. DISPUTE RESOLUTION PROCEDURES; CONTINUING JURISDICTION

37.

The parties agree tha t this Court will r etain continuing jurisdiction f or the

duration of the Stipulation to s upervise the implementation of this Stipulation and to enf orce its

terms, and the te rms of this Stipu lation shall be incorporated into the Order o f the Court

approving the Settlement.

38.

The parties agree th at this Court will not be a sked to exer cise jurisdiction to

supervise the implementation of this Stipulation or to enf orce its te rms until exhau stion of the

dispute resolution process in paragraphs 42-43 has occurred.

39.

In or about January 20 09, Defendants will pro vide Class Counsel with the

following reports:

a. The number of SSI beneficiaries who ha ve lost SSI ben efits due to the

limitations in 8 U.S.C. § 1612(a) since the Effective Date;

b. The number of SSI beneficiaries who, after losing benefits due to the

seven-year limitation, have been reinstated on SSI since the Effective Date;

14

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 16 of 27

c. The number of SSI beneficiaries who w ould be expected to lose their S SI benefits between January 1, 2009 and December 31, 2011;
d. I-485 cycle times for asylees, refugees, and regular adjustment; e. N-400 cycle times; f. The number of SSI Expedites initiated by USCIS per m onth as the result of a call to the USCIS 1-800 telephone number; g. The total number of SSI priority name check requests m ade by USCIS t o the FBI per month; h. The statistical results of the data matches required by paragraphs 23 and 26; i. The FBI Name Check Unit’s Fiscal Year Significant Activity Report.

40.

120 days after USCIS has com pleted the data m atch described in paragraph

23, USCIS will randomly select a 1 00-name sample from the results of the d ata match on the

"Terminated Members". USCIS will p rovide a status report to Class Counsel for each

application reflecting whether each application ha s been expedited and the last of the following

actions that has been completed for the application:

I. A request has been sent to the FBI for priority processing of the name check;

II. The FBI has completed its name check;

III. The case has been assigned to a USCIS adjudicator for review;

IV. A request for additional evidence has been sent to the applicant;

V. An interview has been scheduled;

VI. An oath has been scheduled; or

DMEAST #9842911 v1

15

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 17 of 27

VII. There has been a decision made on the application.

The name, address, and alien registration number for each of the 100 cases will be

forwarded to Class Counsel, in paper and electronic format.

41.

Class Counsel and counsel for Defendants shall attend a single meet and confer

on April 13, 2009, or another day m utually agreeable to counsel, to discuss all issues that have

arisen during the initial period of implementation of the Stipulation.

42.

The following dispute resolution process will be followed:

a. Should Class Counsel learn of an appa rent failure of USCIS to institute

Expedited Processing for an individual applic ation, Class Counsel will promptly notify the

contact for Defendants, in writing, of the fact or facts that form the basis of the contention. Such

notice of apparent failure to institute Expedite d Processing must be substantiated with specific

detailed information sufficient to enable the contact to investigate and respond, and must include

verification that the applicant has contacted the USCIS 1-800 te lephone number no earlier than

64 days after the Effective Date, and that the time periods of subparagraphs (1) or (2) have been

met. The content of every response from USCIS must be included. If 45 days have passed since

the call was m ade to the USCIS 1-800 telephone num ber and no response ha s been received by

the applicant, Class Co unsel may proceed with notifying Defendants of the alleg ed failure to

expedite. Within 45 days after receipt of th e notice from Class Counsel, contact for Defendants

shall notify Class Counsel of USCIS’ position and any action it has taken or intends to take in

connection therewith.

(1) If an applicant has lost his or her SSI benefits or will lose those

benefits before June 30, 2009, the requisite call to the USCIS 1-800 telephone number can be

16

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 18 of 27

made no sooner than either a) 90 days after the date an applicant requested an expedite or b) 90

days after completion of the data match in paragraph 23.

(2) If an applicant is a current SSI beneficiary and will not lose his or

her benefits until after June 30, 2009, the requisite call to the USCIS 1-800 telephone number

can be made after the latter of either a) 6 months after the relevant N-400 or I-485 was filed or b)

90 days after an expedite request was made.

b. Starting from the Effec tive Date, upon le arning of any fact or facts that

constitute the basis for asse rting that a party, without no tice or good cause shown, has

completely and m aterially failed to perform an affirmative act im posed by the Stipulation in

paragraphs 20-31, the initiating party shall prom ptly notify the other party (the “responding

party”) in writing of the fact or facts that support the conten tion and request a written response

with respect thereto. Such allegations of violations of this Stipulation must be substantiated with

specific, detailed, and tim ely information about the violation sufficient to enable the responding

party to investigate and respond. Within 30 days after receipt of the notice, the responding party

shall notify the initiating party in writing of the responding part y’s position and any action it has

taken or intends to take in connection therewith.

c.

Starting from the Effective Date, upon learning of any f act or facts that

constitute the basis for asserting that a party, without notice or good cause shown, has engaged in

a pattern or practice constituting substantial noncompliance with the terms of this Stipulation, or

that any party has expressly repudiated any of its terms, the initiating party shall promptly notify

the other party (the “res ponding party”) in writing of the fact or facts that form the basis of the

contention and request a written response with respect thereto. Such allegations of violations of

this Stipulation m ust be substantiated with sp ecific, detailed, and tim ely information about the

DMEAST #9842911 v1

17

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 19 of 27

violation sufficient to enable the responding party to investigat e and respond. W ithin 90 days

after receipt of the notice, the responding party shall notify the init iating party in writing of the

responding party’s position and any action it has taken or intends to take in connection therewith.

d. During the 90 days following the com pletion of the appropriate process

outlined in subparagraphs a, b, or c, the parties shall negotiate in good faith in an effort to resolve

any remaining disputes. The parties agre e that this negotiation period will b e considered

exhausted if the negotiations have reached an impasse.

43.

Should the parties be unable to resolve any issues ra ised between them, after

exhausting all of the applicable procedures in pa ragraph 42, such issues must be raised before a

Magistrate Judge of the Eastern District of Pennsylvania upon wh ich all parties agree, who shall

hear, mediate, and, to the fullest extent possible, obtain the agr eement of both parties to resolve

the issue(s) in dispute.

44.

The parties agree that the provision in paragraph 43 shall not be used to resolve

any disputes regarding tim eliness or form of th e reports listed in para graphs 39 and 40. The

parties further agree that no claim may be made under the provisions in paragraphs 42 and 43

regarding the pace or extent of security ch eck processing by eith er USCIS or the FBI.

Cognizable claims regarding security check processi ng shall be lim ited to a fa ilure to initiate or

undertake Expedited or priority processing as described in paragraphs 7 and 19.

45.

The parties agree that failure to comply with the deadlines in paragraphs 27-36

of this Stipulation does not const itute a violation of this Stipulation in the case of un foreseeable

circumstances.

46.

The parties agree that the m ediation process shall be conducted confidentially

and no public disclosure shall be made relating to the dispute before or during the m ediation

18

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 20 of 27

process. All docum ents and information disclose d by either party during the mediation process

shall be governed by rule 408 of the Federal Rule s of Evidence and shall not be adm issible in

any judicial proceeding. All statements or conclusions of the mediator shall not be admissible in

any subsequent judicial proceeding.

IV. TERMS OF ORDER FOR NOTICE, HEARING AND FINAL JUDGMENT

47.

Concurrently with their filing of this Stipulation, Class Counsel and

Defendants’ Counsel shall jointly apply to the Court for Pre liminary Court Approval of the

Settlement provided for in this Stipulation and entry of a Prelim inary Approval Order,

substantially in the f orm appended hereto as Exhibit B. Such Prelim inary Approval Order will

seek approval of a Notice to the Class, as we ll as a f inding that the f ollowing satisfies the

publication requirements of Fed. R. Civ. P. 23: within five business days of the date of the

Preliminary Court’s Approval, (i) posting the Notice to the C lass and th is Stipulation in

appropriate places on th e USCIS and SSA public websites, and (ii) pro viding the Notice to th e

Class and this Stipulation to USCI S’ Community Relations Program for distribution to the

existing network of community-based and non- profit organizations w ho provide advice and

assistance to immigrants, including AILA chapters through the AILA national office.

48.

If the Settlem ent contemplated by this Stipulation is approved by the Court,

counsel for the parties shall reque st that the Court enter F inal Judgment substantially in the form

appended hereto as Exhibit C.

49.

Within 60 days following the Court’s entry of the Final Judgm ent, Defendants

will publish a Notice of Final Settlem ent Agreement employing the same methods set forth in

paragraph 47. The language of the Notice of Final Settlement Agreement will be agreed upon by

the parties and will constitute an updated Notice to the Class.

DMEAST #9842911 v1

19

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 21 of 27

V. EFFECTIVE DATE OF SETTLEMENT, WAIVER OR TERMINATION

50.

The Effective Date of this Stipu lation shall be the date when all of the

following shall hav e occurred: a ) entry of the Preliminary Approval Order in all m aterial

respects in the form appended hereto as Exhibit B; b) approval by the Cour t of this Stipulation,

following notice to the Class and a hearing, as pr escribed by Rule 23 of the Federal Rules of

Civil Procedure; and c) entry by th e Court of Final Judgment, in all material respects in the form

appended hereto as Exhibit C.

51.

In the even t that th e District Court’s approval of the Stipulation or the Final

Judgment referenced is voided on appeal, vacat ed, or term inated, the parties’ good- faith

adherence to the terms of this Stipulation prior to said voidance, vacation or termination shall not

be considered unlawful.

52.

Defendants’ Counsel or Class Counsel sh all have the right to term inate the

Settlement and this Stipula tion by providing written n otice of their election to do so

(“Termination Notice”) to all oth er parties hereto within thirty (30) days of (a) the District

Court’s declining to e nter the Pr eliminary Approval Order or m odifying that Prelim inary

Approval Order in any material respect; (b) the District Court’s dec lining to approve the

Settlement embodied in this Stipulation or any m aterial part of it; (c ) the District Court’s

declining to enter the Fi nal Judgment or modifying the Final Judgm ent in any m aterial respect;

(d) the Court of Appeals or the United States Supreme Court’s modifying, reversing, or vacating

in any material respect the Final Judgment; or (e) the District Court, the Court of Appeals or by

the United States Supreme Court’s modifying, reversing, or vacating and entering an Alternative

Judgment in any material respect.

20

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 22 of 27

53.

Except as otherwise pro vided herein, in the even t the Settlement is terminated

or modified in any m aterial respect or fails to becom e effective for any reaso n, then the

Settlement shall be without prejudice and none of its terms shall be effective or enforceab le; the

parties to this Stipulation shall be deemed to have reverted to their respective status in the Action

as of the date and tim e immediately prior to th e execution of this Sti pulation; and except as

otherwise expressly provided, the parties shall proceed in all respec ts as if th is Stipulation and

any related orders had not been en tered. In the event the Settlement is terminated or modified in

any material respect, the Defendants shall be deem ed not to have w aived, modified, or be

estopped from asserting any additional defenses available to them.

VI. TERMINATION OF OBLIGATIONS

54.

The obligations of this Stipulation shall te rminate after two (2) yea rs and

eleven (11) months from the Effective Date without further action by the Court.

VII. NO ADMISSION OF WRONGDOING

55.

This Stipulation, whether or not execut ed, and any proceedings taken pursuant

to it:

a. shall not be construed to waive, reduce or otherwise diminish the authority

of the Def endants to en force the laws of the United S tates against Class Members, consistent

with the Constitution, laws of the United States, and applicable regulations;

b. shall not be offered or received against the Defendants as ev idence of, or

construed as or deemed to be evidence of, any presumption, concession, or admission by any of

the Defendants of the truth of any fact alleged by the Plaintiffs or the valid ity of any claim that

had been or could have been asserted in the Acti on or in any litigation, or the deficiency of any

defense that has been or could have been assert ed in the Action, or of any liability, n egligence,

DMEAST #9842911 v1

21

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 23 of 27

fault, or wrongdoing of the Defendants; or any ad mission by the Defendants of any violations of,

or failure to comply with, the Constitution, laws or regulations; and

c. shall not be offered or received ag ainst the Defendants as evidence of a

presumption, concession, or adm ission of any lia bility, negligence, fault, or wrongdoing, or in

any way referred to for any other reason as against any of the parties to th is Stipulation, in any

other civil, criminal, or administrative action or proceeding, other than such proceedings as may

be necessary to effectuate the provisions of th is Stipulation; provided, however, that if this

Stipulation is approved by the Court, Defendants may refer to it and rely upon it to effectuate the

liability protection granted them hereunder.

VIII. ATTORNEYS’ FEES

56.

Within 120 days of entry of a final a nd nonappealable judgm ent in this case

approving this Stipulation, Defe ndants will deliver to Class Counsel the sum of $275,000, in

settlement of all claims for attorneys’ fees and costs tha t could have been or will b e claimed in

this litigation. Defendants shall bear any costs incurred in connection with notifying the class of

the terms and conditions of this Stipulation as provided in paragraphs 47 and 49.

IX. ADDITIONAL PROVISIONS

57.

This Stipulation, and the obl igations incurred herein, sh all be in full and final

disposition of the Action with prejudice, in cluding any and all S ettled Claims against

Defendants. On the Ef fective Date, Plaintiffs shall be d eemed to have fully, finally, and forever

released, relinquished, and discharged the Defenda nts of and from any and all Settled Claim s,

subject to the provisions of paragraph 53.

58.

All of the exhibits atta ched hereto are hereby incorporated by reference as

though fully set forth herein.

22

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 24 of 27

59.

This Stipulation m ay not be m odified or am ended, nor m ay any of its

provisions be waived except by a writing signed by all p arties hereto or their su ccessors-in-

interest.

60.

The waiver by one party of any breach of this Sti pulation by any other party

shall not be deemed a waiver of any other prior or subsequent breach of this Stipulation.

61.

This Stipulation and its exhibits co nstitute the entire agre ement among the

parties hereto concerning the Settlem ent of the Action, and no representations, warranties, or

inducements have been made by any party hereto other than those contained and memorialized in

such documents.

62.

This Stipulation m ay be ex ecuted in one or m ore counterparts. All executed

counterparts and each of them shall be deemed to be one and the same instrument provided that

counsel for the parties to this Stipulation sh all exchange a mong themselves original signed

counterparts.

63.

This Stipulation shall be binding upon, and inure to the benefit of, the

successors and assigns of the parties hereto.

64.

This Stipulation shall not be con strued more strictly against one pa rty than

another merely by virtue of the fact that it, or any part of it, m ay have been prepared by counsel

for one of the parties, it being recognized by the parties that this Stipulation is the result of arm’s

length negotiations between the pa rties and th at all parties have contributed substantially and

materially to the preparation of this Stipulation.

65.

All counsel and any other person executi ng this Stipulatio n and any of the

exhibits hereto, or any related settlement documents, warrant and represent that they have the full

DMEAST #9842911 v1

23

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 25 of 27

authority to do so and that they have the au thority to take appropr iate action required or

permitted to be taken pursuant to the Stipulation to effectuate its terms.

66.

Class Counsel and Defendants’ Counsel agree to cooperate fully with one

another in seeking Court approva l of the Preliminary Order in Connection with the Settlem ent

Proceedings, the Stipulation and Agreem ent of Settlement, and to p romptly agree upon and

execute all such other documentation as may be reasonably required to obtain final approval by

the Court of the Settlement.

THE PLAINTIFFS

THE DEFENDANTS

BY: Dated:

BY: Dated:

24

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 26 of 27

Case 2:06-cv-05304-ER Document 71-1 Filed 01/04/08 Page 27 of 27

Case 2:06-cv-05304-ER Document 71-5 Filed 01/04/08 Page 1 of 4
ATTACHMENT B

Case 2:06-cv-05304-ER Document 71-5 Filed 01/04/08 Page 2 of 4
NOTICE OF PROPOSED SETTLEMENT AGREEMENT AND HEARING IN CLASS ACTION FOR NON-CITIZENS WHO HAVE
RECEIVED OR ARE RECEIVING SUPPLEMENTAL SECURITY INCOME
KAPLAN, ET AL. v. CHERTOFF, ET AL., Civil Action No. 06-5304 IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TO: All non-United States citizens who are receiving or have received Supplemental Security Income (“SSI”) and are or will be subject to the seven-year limit on receiving SSI pursuant to 8 U.S.C. § 1612(a)(2)(A) (such as refugees and asylees), prior to becoming a naturalized United States citizen.
You are hereby notified that a hearing has been scheduled for [Add date when known], 2008, at [time], before the Honorable Eduardo C. Robreno of the United States District Court for the Eastern District of Pennsylvania, 601 Market Street, Courtroom 11a, Philadelphia, Pennsylvania for consideration of a proposed settlement of the claims that have been brought on your behalf in this law suit.
Purpose Of This Notice
This notice has three purposes: 1) to tell you about the proposed settlement and the fairness hearing; 2) to tell you how to obtain more information, including a copy of the full proposed settlement agreement; and 3) to explain how you may object to the proposed settlement if you disagree with it.
Background
This class action lawsuit (“Kaplan”) was filed on December 6, 2006, to challenge alleged delays by the government in adjudicating applications for adjustment of status (“Form I-485”) and naturalization (“Form N-400”) for those who are receiving or have received SSI benefits and the resulting actual or potential cut-off of SSI benefits. The parties have reached a tentative settlement that the Court has preliminarily approved.
Description Of Proposed Settlement Agreement
The following description is only a summary of the key points in the proposed settlement agreement. Information on obtaining a copy of the full, proposed agreement is provided after this summary. The Effective Date of the agreement is the date that the district court approves it and issues a Final Judgment Order that is materially the same as that proposed by the parties as an exhibit to the full proposed agreement. The duration of the settlement agreement will be for two (2) years and eleven (11) months from the Effective Date.
The key terms of the proposed settlement agreement provide that any class member may request Expedited Processing from the United States Citizenship and Immigration Service (“USCIS”) for pending applications for naturalization or
1

Case 2:06-cv-05304-ER Document 71-5 Filed 01/04/08 Page 3 of 4
adjustment of status, or for future applications for naturalization or adjustment of status filed during the pendency of the Settlement Agreement, if six months have elapsed since the filing of the pertinent application without a decision. USCIS will request priority processing of any pending or future security checks and provide the earliest available appointment for applications requiring an appointment. If an Oath of Allegiance is required, USCIS will administer or schedule the Oath at the next available opportunity.
USCIS will also, through identifying information provided by SSA, attempt to identify individuals whose SSI benefits have been terminated or will be terminated in the near future and have pending applications for naturalization or adjustment of status. Where those individuals are positively identified, USCIS will automatically expedite their pending application. The automatic expedites will take place close to the end of the first year of the Settlement Agreement.
If a class member has a pending Form I-485 or Form N-400 and has received or is receiving SSI benefits, he or she (or his or her representative) may call USCIS at 1-800-375-5283 (“the USCIS I-800 number”) and request Expedited Processing. Expedited Processing may also be requested in writing or by going to the local USCIS office.
After the Effective Date of the agreement if Expedited Processing has already been requested, but the applicant has not received notice of a decision, he or she may call the USCIS 1-800 number to verify that an Expedite has been initiated in his or her case. If 45 days have passed since the call to the USCIS 1-800 number with no response, or if the response from USCIS was unsatisfactory, class members should contact Class Counsel.
The agreement further provides that, in consideration of the other provisions in the agreement, class members release all defendants from all “settled claims.” For a complete description of the releases and “settled claims,” you should obtain a full copy of the proposed settlement agreement. Defendants do not admit any wrongdoing, fault or liability, nor may their agreement to the preservation of the March 29, 2007, decision on the motion to dismiss be construed as either party’s acceptance of any of the findings of fact or conclusions of law contained in that decision. The settlement agreement cannot be used against defendants as evidence of any presumption, concession or admission of any liability, negligence, fault or wrongdoing in future actions.
For Further Information:
THIS IS A SUMMARY OF THE PROPOSED AGREEMENT. TO UNDERSTAND IT FULLY, YOU SHOULD READ THE ENTIRE AGREEMENT. Copies of the proposed settlement may be obtained from: 1) The USCIS website (www.uscis.gov); 2) the SSA website (www.SSA.gov); and local communitybased and non-profit organizations through USCIS’s Community Relations Program.
2

Case 2:06-cv-05304-ER Document 71-5 Filed 01/04/08 Page 4 of 4

Procedures For Agreement Or Objection:
IF YOU AGREE with the proposed settlement, you do not need to do anything at this time. If you wish to attend, you may be present at the public hearing on the proposed settlement as stated above.

IF YOU DISAGREE with the proposed settlement, you have a right to object to it and to the dismissal of the remaining claims in the lawsuit. Your objections will be considered by the Court as it reviews the settlement ONLY IF you follow these procedures:

1. Objections must be filed in writing by mail with the Clerk of the United States District Court for the Eastern District of Pennsylvania, 601 Market Street, Philadelphia, PA 19102.

ALL OBJECTIONS MUST CONTAIN THE FOLLOWING INFORMATION: a. Name, address, and telephone number of the person filing the objection. b. A statement of the reasons for the objection. c. A statement that copies of the objections have also been sent to the attorneys listed at the end of this notice.

2. You must send copies of your objections to all attorneys listed at the end of this notice.

3. The deadline for filing objections and mailing them to the attorneys listed below
is [INSERT DATE]. If Objections are filed by mail, they must be postmarked on or before [INSERT DATE] to be considered timely. Objections filed or mailed on or after that date will not be considered. Class members who fail to file
objections on or before [INSERT DATE] will not be permitted to testify at the settlement hearing.

4. No later than [INSERT DATE], the attorneys for plaintiffs and defendants shall file and serve responses, if any, to objections they timely receive from persons
opposed to the proposed settlement.

Attorneys’ Names and Addresses for Defendants and Plaintiffs:

For the Plaintiffs:

For the Defendants:

Jonathan M. Stein, Esq.

Elizabeth J. Stevens, Esq.

Community Legal Services, Inc. Office of Immigration Litigation

of

Philadelphia

Civil Division, Department of Justice

1424 Chestnut Street

P.O. Box 878

Philadelphia, PA 19102

Ben Franklin Station

[INSERT 800 NUMBER]

Washington, DC 20044

3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHMUL KAPLAN ET AL., Plaintiffs,
v.
MICHAEL CHERTOFF ET AL, Defendants.

: CIVIL ACTION : NO. 06-5304 : : : : : : : :

M E M O R A N D U M EDUARDO C. ROBRENO, J.

JANUARY 24, 2008

Post-September 11, 2001, United States immigration policy has been buffeted by two independent forces. One, a large increase in the number of persons seeking entry (legally or illegally) into the United States. Two, the need for increased security precautions to prevent further terrorist attacks. The confluence of these developments has resulted in the need for the immigration authorities to conduct more thorough background checks for an increased number of persons. Regrettably, because of lack of resources, or inefficiency, or a combination of these and other factors, a backlog has developed of applications for citizenship and adjustment of status, which the immigration authorities are unable to process on a timely basis.
The backlog means that many applicants wait months or even years before any action is taken on their applications. The

-1-

backlog has spawned litigation across the country, with mixed results, leading one federal judge to call for a comprehensive administrative solution rather than piecemeal litigation that simply moves one applicant who has filed suit to the head of the line at the expense of another who has not. See Mocanu v. Mueller, No. 07-445, 2008 WL 154606, at *4-5 (E.D. Pa. Jan. 11, 2008) (Baylson, J.).
The instant case addresses the vicissitudes of one subset of recent arrivals, i.e., a class of approximately 50,000 non-United States citizens who Congress has decided are entitled to receive social security benefits for a certain period of time. However, because of the delay in processing their applications for citizenship or adjustment of status by the United States Citizenship and Immigration Service (“USCIS”), they have been denied, or will be denied, such benefits.
The parties to the case have now reached an amicable settlement. The proposed settlement agreement offers a creative solution to a difficult administrative problem. Rather than putting any one person at the head of the line through the fortuity of litigation, it supplies a process that balances the Government’s need to conduct thorough security background checks of the applicants with the applicants’ rights not to be confined indefinitely to a legal limbo.
The settlement provides relief to members of the class
-2-

who have lost or will lose their SSI benefits because of delays in the processing of their applications by USCIS. Under its terms, applications by class members will be expedited on a rolling basis based on the date an applicant will lose SSI benefits and the amount of time an applicant has already been waiting. In addition to providing relief to the individual class members according to a rational set of principles, the settlement will also allow USCIS and the other agencies involved to focus on the important task of processing applications, rather than spending time litigating the claims of the class members on an individual basis.
Following a hearing on January 18, 2008, the Court has determined that the class satisfies the certification requirements of Rule 23 and is likely to gain final approval under Rule 23(e). Therefore, the Court will conditionally certify the class for settlement purposes only and will order that notice of the proposed settlement and the fairness hearing be given to the class members. The Court will approve the notice proposed by the parties and the proposed method of distributing that notice.
-3-

I. BACKGROUND A. Facts1 Although non-citizens are generally not eligible for
Supplemental Security Income (“SSI”), Congress has created a number of exceptions to this rule, including exceptions for refugees, asylees, Amerasians, and Cuban or Haitian immigrants.2 Each of these groups is eligible for benefits for seven years, starting either at the time of entry into the country or at the time the individual is granted protected status as a member of one of the listed groups. If an individual receiving benefits is naturalized before the expiration of his seven-year eligibility period, the individual may continue receiving benefits on the same basis as any other American citizen. If the individual is not naturalized, benefits are terminated after seven years.
In order to become naturalized, immigrants in the

1

The facts of this case are laid out in detail in the

Court’s Memorandum of March 29, 2007. Kaplan v. Chertoff, 481 F.

Supp. 2d 370 (E.D. Pa. 2007). Therefore, only a brief summary is

provided here.

2

For a variety of policy reasons, Congress has made

certain groups of non-citizens eligible for social security

benefits. 8 U.S.C. § 1612(a)(2)(A). For example, refugees and

asylees, admitted pursuant to 8 U.S.C. §§ 1157 and 1158

respectively, are eligible for benefits. § 1612(a)(2)(A)(i),

(ii). Amerasians, defined as individuals fathered abroad by U.S.

servicemen to women of Asians nationalities during World War II

or the Korean War, are also eligible for benefits.

§ 1612(a)(2)(v); see 8 C.F.R. § 204.4 (defining “Amerasian”).

Finally, individuals granted status as Cuban or Haitian entrants

pursuant to Section 501(e) of the Refugee Education Assistance

Act of 1980 are eligible for benefits. § 1612(a)(2)(iv).

-4-

proposed class undertake a two-step process. First, one must gain legal permanent residency (“LPR”). Proposed class members are either admitted with LPR status (Amerasians, for example, are legal permanent residents when admitted) or may apply for LPR status after a certain period of time (for example, refugees may apply for LPR status after residing in the U.S. as refugees for one year; asylees may apply one year after a final grant of asylum status).
Second, an immigrant with LPR status must apply for naturalization. This application cannot be made until four years and nine months after the effective date for the immigrant’s LPR status. The effect of this waiting period is different for different classes of immigrants because the effective date for LPR status is calculated differently for different classes. For example, when a refugee is granted LPR status, the effective date is backdated to the date of entry into the United States. Similarly, an Amerasian is admitted to the country with LPR status. Thus, a member of one of these two groups may apply for naturalization four years and nine months after entry. On the other hand, the effective date for asylees is backdated to no more than one year before the grant of LPR status. Thus, if an asylee receives LPR status three years after entering the country, the effective date will be two years after the asylee’s entry. The asylee calculates the waiting period from that
-5-

effective date and may apply for naturalization six years and nine months after entry into the country.
USCIS is the government agency charged with administering the immigration laws, including processing and adjudicating applications for LPR and naturalization. As part of the processing of an application, a background check of the applicant is completed. USCIS submits names and fingerprints to the FBI so that the background check can be completed. The naturalization process cannot be completed without notification from the FBI that the background check is complete.
This case arose because of the significant and wellknown backlog in the processing of applications for LPR and naturalization. This backlog manifests itself in delays in processing by USCIS and in delayed responses from the FBI to requests for background checks. Immigrants who diligently pursue citizenship upon arrival find themselves unable to complete the process within seven years and therefore lose SSI benefits while their applications are still pending.
USCIS has adopted Policy Memorandum No. 22 (“Memorandum 22"), which provides that the application of an immigrant facing “emergent circumstances” may receive expedited processing. This policy is a departure from USCIS’s usual practice of processing applications in chronological order, in other words, on a firstcome, first-served basis. “Emergent circumstances” include the
-6-

loss or threatened loss of SSI benefits because of the seven-year time limit on benefit eligibility.
Plaintiffs claim that USCIS has failed to apply Memorandum 22 in an evenhanded manner. Some USCIS offices are known to provide expedited processing while others appear to ignore the requirements of Memorandum 22. Plaintiffs argue that Memorandum 22 is applied arbitrarily in violation of the Equal Protection Clause. They also claim that the delays in processing by USCIS and the FBI are unreasonable and violate the Administrative Procedure Act (“APA”).
B. Procedural History The First Amended Complaint asserted four claims: a due
process claim against the Social Security Administration (“SSA”); an equal protection claim against USCIS; and claims under the APA against USCIS and the FBI. On March 29, 2007, the Court granted defendants’ motion to dismiss as to the due process claim, leaving only the equal protection and APA claims.
The plaintiffs’ equal protection claim is that USCIS intentionally discriminates among aliens either through “USCIS officers in different offices making intentional decisions whether to implement Memorandum 22 or, alternatively, [by] USCIS intentionally allowing some offices to implement Memorandum 22 while others ignore it.” Chertoff v. Kaplan, 481 F. Supp. 2d
-7-

370, 396 (E.D. Pa. 2007). Because, at the pleading stage, USCIS offered no explanation for this discrimination, the Court held that the Complaint sufficiently alleged “intentional, unequal, and arbitrary application of the expedition policy” in violation of the Equal Protection Clause. Id. at 398.
The plaintiffs’ claim under the APA is that both USCIS and the FBI have unreasonably delayed the processing of their applications for LPR status and naturalization. Because the Court held that each agency has a “mandatory, non-discretionary obligation” to act on applications or requests for background checks “within a reasonable amount of time,” the lengthy delays alleged in the Complaint sufficiently state a cause of action under the APA. Id. at 399, 401.
II. MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT The motion for preliminary approval requires the Court
to determine, first, whether the proposed class should be conditionally certified and, second, whether the proposed settlement appears sufficiently likely to warrant final approval to justify giving notice to members of the proposed class
In considering whether to conditionally certify the class, the Court must consider whether the proposed class meets the four requirements of Rule 23(a) and one of the three requirements of Rule 23(b). In re Gen. Motors Corp. Pick-Up
-8-

Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 794-95 (3d Cir.
1995) (“In re G.M.”); Fry v. Hayt, Hayt, & Landau, 198 F.R.D.
461, 467-69 (E.D. Pa. 2000).
If conditional certification is granted, the Court will
proceed to the question of preliminary approval.
“[I]f the proposed settlement appears to be the product of serious, informed, noncollusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, and falls within the range of possible approval, then the [C]ourt [will] direct that . . . notice be given to the class members of a formal fairness hearing.”
Schwartz v. Dallas Cowboys Football Club, Ltd., 157 F. Supp. 2d
561, 570 n.12 (E.D. Pa. 2001). At this hearing, the Court will
consider whether the proposed settlement meets the requirements
of Rule 23(e), applying the nine factors enumerated in Girsh v.
Jepson to “structure the[] final decision[] to approve [a]
settlement[] as fair, reasonable, and adequate.” In re G.M., 55
F.3d at 785 (citing Girsh, 521 F.2d 153 (3d Cir. 1975)). “Only
when the settlement is about to be finally approved does the
court formally certify the class, thus binding the interests of
its members by the settlement.” Id. at 777-78.
Because the Court concludes that conditional
certification is appropriate under Rule 23(b)(2) and that the
settlement appears likely to receive final approval under Rule
23(e), the Court will grant conditional certification and
-9-

preliminary approval of the settlement. The Court will schedule
a fairness hearing and order that notice be distributed to class
members.
A. Terms of the Settlement
1. Definition of the class
The settlement proposes to bind a class composed of
all non-United States citizens who are receiving or have received Supplemental Security Income (“SSI”) and are or will be subject to termination or suspension of SSI pursuant to 8 U.S.C. § 1612(a)(2)(A), prior to a decision on their current or future Application for Naturalization, Form N-400, and oath ceremony to become a United States citizen. The Class ceases to exist, and all membership in the Class ends, upon the termination of this Stipulation pursuant to paragraph 54.
Settlement Agreement ¶ 2, Attachment A, Joint Mot. for Prelim. Approval, Jan. 4, 2008 (doc. no. 71) (“Stipulation” or “Stip.”).
2. Release of claims
Under the Stipulation, class members forever release
all “Settled Claims.” Stip. ¶ 12. “Settled claims” are defined
as
“any and all actions, in law or equity, that were asserted or could have been asserted by Class Members or anyone acting on behalf of or in place of a Class Member, based upon the facts alleged or that could have been alleged in the Amended Complaint relating to the subject of this action, including but not
-10-

limited to the Due Process, Equal Protection, and APA claims.” Id. ¶ 10. Individual actions against USCIS under 8 U.S.C. § 1447(b)3 and individual actions against SSA under 42 U.S.C. § 405(g)4 are excepted from the claims released in the Agreement. Id. While the Stipulation provides for a broad release from which only two types of claims are exempt, the release is limited in time. Like the rest of the Stipulation, it expires two years and eleven months after the Stipulation’s effective date. Thus, a class member with an application pending with USCIS on the termination date ceases to be a class member as of the termination date. That person is no longer barred from bringing a claim if the processing of his or her application continues to be delayed.5

3

Section 1447(b) allows an applicant for citizenship to

challenge delay at a specific point in the application process.

When processing an application for citizenship, USCIS is required

to conduct an examination, similar to a judicial hearing, of the

application. 8 U.S.C. § 1446. If USCIS fails to act on the

application within 120 days of the examination, Section 1447(b)

authorizes the applicant to bring suit in the district court for

the district in which the applicant resides.

4

Section 405(g) provides for judicial review of final

decisions by the Commissioner of Social Security.

5

Paragraph 54 of the Stipulation provides that all

obligations under the Stipulation cease on the Termination Date;

paragraph 2 provides that class membership ceases on that date as

well. However, at the preliminary approval hearing, counsel for

the Government explained to the Court that, under the USCIS

system, an application marked for expedited treatment will

-11-

3. Benefits to Class Members In exchange for the release of claims, USCIS agrees to institute procedures for the expedited processing of all class members’ applications for LPR and naturalization during the existence of the Stipulation.6 Stip. ¶ 15. Any class member who has applied for LPR or naturalization may request expedited processing. Id. ¶ 16. The Agreement provides multiple methods for submitting the request.7 Id. ¶ 17. If the application has been pending for six months or longer, USCIS will grant expedited processing. Id. ¶ 16. If the application has been pending for less than six months, USCIS will consider the request when the

continue to receive expedited treatment until its processing is complete. Preliminary Approval Hr’g Tr. 5:4-11, Jan. 18, 2008 (“1/18/08 Hrg. Tr.”). In other words, as of the Termination Date, any applications that have already qualified for expedited processing will receive expedited processing even after the Stipulation expires. Id. On the other hand, the Government will have no obligation to grant any requests for expedited treatment that are made after the Termination Date. Id. 4:14-17.

6

Expedited processing means that USCIS will “(i) provide

and/or request priority action on any pending or future security

checks for the current application; (ii) provide priority action

on any internal processing at USCIS; and (iii) provide the Class

Member with priority for the earliest available appointment for

applications requiring an appointment. Additionally, USCIS will

administer or schedule the Oath of Allegiance for the Class

Member at the next available opportunity.” Stip. ¶ 7.

7

The Stipulation provides that class members may request

expedited processing by 1) calling the USCIS 1-800 number; 2)

appearing in person at the local USCIS District Office; 3)

including a written request with the application at the time of

filing; or 4) sending a written request to the office at which

the application was filed. Stip. ¶ 17.

-12-

six-month mark is reached. Id. The applicant need not renew the request at the six-month mark; instead, USCIS will act automatically. Id. As part of expedited processing, USCIS will notify the FBI of the need for priority processing of the FBI name check. Id. ¶ 19. However, the FBI is not required to accept more than 100 requests for priority processing from USCIS per week. Id.
Class members who are granted expedited processing but continue to experience delays may contact class counsel and take advantage of the dispute resolution mechanism provided for by the Stipulation. Id. ¶¶ 42-46.
The Agreement contains special provisions applicable to a) class members whose benefits have already been terminated or whose benefits will be terminated within six months and b) class members whose seven-year eligibility will expire within one year.
a. Members who have lost benefits or will lose benefits within six months
Within 60 days of the Effective Date of the Agreement, the SSA will compile a mailing list of all class members whose SSI benefits have been terminated or suspended pursuant to 8 U.S.C. § 1612(a)(2)(A) and all class members whose benefits may be terminated or suspended prior to the June following the Effective Date (collectively, “Terminated Members”). Stip. ¶ 20. A letter will be sent to these Terminated Members within 75 days
-13-

of the Effective Date. Id. ¶ 21. The letter will encourage the class members to file applications for LPR or naturalization if they have not yet done so, will notify them of the availability of a fee waiver application and of the availability of expedited processing, and will provide contact information for class counsel. Id.
Six months after this letter is sent, SSA will provide USCIS with a list of all Terminated Members whose benefits have not yet been restored. Id. ¶ 23. Within three months of receiving the list, USCIS will compare the data from SSA with its own database of pending applications and will expedite the processing of all Terminated Members’ applications pending on the date of the data comparison. Id.
b. Members who will lose benefits within one year
The Agreement provides that the procedure described above will be repeated in May or June of 2008 in order to identify and expedite the applications of any class members who will face termination or suspension of benefits in the twelvemonth period starting on July 1, 2008. Id. ¶¶ 24-26.
-14-

4. Notification provisions8 The Agreement provides that notification of the availability of expedited processing will be provided to class members in the form of press releases, announcements on SSA and USCIS websites, distribution of information through USCIS’s Community Relations Program, display of notices in USCIS public areas, and inclusion of the information in communications from the SSA to class members. See Stip. ¶¶ 27-28. The Agreement also provides that USCIS will instruct its own staff members of their responsibilities under the Agreement. Id. ¶¶ 29-30.
5. Effective and termination dates The Stipulation becomes effective on the date when all of the following have occurred: a) entry of the Preliminary Approval Order; b) approval by the Court of the Stipulation, following notice to the class and a fairness hearing; and c) entry of final judgment. Id. ¶ 50. The obligations of the stipulation terminate two years and eleven months after the effective date. Id. ¶ 54.

8

These provisions do not dictate how class members will

be notified of the proposed settlement; rather, they apply only

if the settlement receives final approval.

-15-

6. Attorneys’ fees Defendants shall pay class counsel $275,000 in attorneys’ fees. This amount is in settlement of all claims for attorneys’ fees and costs. Defendants shall bear any costs incurred in connection with notifying the class of the terms and conditions of the Stipulation. Id. ¶ 56.
B. Conditional Class Certification A class may be certified under Federal Rule of Civil
Procedure 23 only if all four requirements of Rule 23(a) are met and if the class satisfies one of the three criteria of Rule 23(b). This requirement applies equally regardless of whether the class is being certified for settlement or litigation purposes. In re G.M., 55 F.3d at 794-95. Moreover, when reviewing a proposed settlement of a class action, a court must determine whether the proposed class satisfies Rule 23(a) and (b) independently of the evaluation of the settlement’s fairness that the court will conduct under Rule 23(e). In re Cmty. Bank of N. Va., 418 F.3d 277, 299 (3d Cir. 2005).
In evaluating whether a proposed settlement class should be certified, “the court may take the terms of the proposed settlement into consideration. The central inquiry, however, is the adequacy of representation.” Cmty. Bank, 418 F.3d at 300 (citing In re Prudential Ins. Co. Am. Sales Practice
-16-

Litig. Agent Actions, 148 F.3d 283, 308 (3d Cir. 1998)). The question is “whether a proposed class has sufficient unity so that absent members can be fairly bound by decisions of class representatives.” Id. (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 621 (1997)).
Defendants initially opposed class certification; however, the opposition became moot because the motion for certification was denied without prejudice when the parties entered settlement negotiations. Regardless, the Court has an independent duty to determine whether certification is appropriate under Rule 23. Cmty. Bank, 418 F.3d at 299. Arguments raised by the defendants will be considered as part of this determination.
1. Rule 23(a) Rule 23(a) provides that a class may be certified only if the following four requirements are met: 1) “the class is so numerous that joinder of all parties is impracticable”; 2) “there are questions of law or fact common to the class”; 3) “the claims or defenses of the representative parties are typical of the claims or defenses of the class”; and 4) “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a).
-17-

a. Numerosity It is indisputable that the proposed class meets the requirement of numerosity.9 The class contains over 5,500 immigrants who lost their SSI benefits between 1998 and December 2005. It also contains approximately 46,780 immigrants who, in the estimation of the Social Security Administration, are likely to lose their SSI due to delays in the naturalization process. Thus, the class totals over 50,000 people, easily a class “so numerous that joinder of all parties is impracticable.” Fed. R. Civ. P. 23(a); see Cmty. Bank, 418 F.3d at 303 (recognizing that class of 44,000 easily satisfies numerosity requirement).

b. Commonality “[T]he commonality standard of Rule 23(a)(2) is not a high bar; it does not require identical claims or facts among class members, as ‘the commonality requirement will be satisfied if the named plaintiffs share at least one question of law or fact with the grievances of the prospective class.’” Chiang v. Veneman, 385 F.3d 256, 265 (3d Cir. 2004) (quoting Johnston v. HBO Film Mgmt., 265 F.3d 178, 184 (3d Cir. 2001)). “[F]actual differences among the claims of the putative class members do not defeat certification.” Prudential, 148 F.3d at 310.

9

In defendants’ initial opposition to class

certification, defendants did not challenge the numerosity of the

class.

-18-

The commonality requirement is satisfied in this case because the named plaintiffs share at least one question of law in common with the other class members. The question raised by each class member is whether USCIS’s unequal application of Memorandum 22, which results in varying processing times across the nation, violates the Equal Protection Clause.
The named plaintiffs also share questions with the class members regarding the claim under the APA. For example, the question of whether the FBI has a mandatory, nondiscretionary duty to conduct background checks on naturalization and LPR applicants is a question of law common to all class members. The requirement imposed by the APA that USCIS and the FBI complete their mandatory duties in “reasonable” periods of time is relevant to each class member’s claim. The claims appear to vary in strength–a class member who waited longer for processing has a stronger argument that the wait was unreasonable. However, commonality does not require identical facts among class members; the commonality requirement is satisfied by the common questions of law and of fact presented in this case.
c. Typicality “The typicality requirement is designed to align the interests of the class and the class representatives so that the
-19-

latter will work to benefit the entire class through the pursuit of their own goals.” Prudential, 148 F.3d at 311. Like the commonality requirement, typicality does not mandate that named plaintiffs and class members have identical claims. Id. “‘[E]ven relatively pronounced factual differences will generally not preclude a finding of typicality where there is a strong similarity of legal theories’ or where the claim arises from the same practice or course of conduct.” Id. (quoting Baby Neal v. Casey, 43 F.3d 48, 58 (3d Cir. 1994)); Eisenberg v. Gagnon, 766 F.2d 770, 786 (3d Cir. 1985) (describing typicality as “an inquiry whether the named plaintiff's individual circumstances are markedly different” from those of the class members).
Claims of the named plaintiffs are typical of those of the class members. Plaintiffs allege an equal protection violation stemming from “an intentional decision to expedite applicants in some offices, but not other applicants in other offices, under Memorandum 22.” Kaplan, 481 F. Supp. 2d at 396. Although this decision affects class members to differing degrees, all the claims involve a single practice of intentionally allowing some offices to implement Memorandum 22 while others ignore it. Cf. Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994) (Becker, J.) (“Challenges to a program’s compliance with the mandates of its enabling legislation, even where plaintiff-beneficiaries are differently impacted by the
-20-

violations, have satisfied the commonality requirement.”). In their initial opposition to class certification,
defendants argued that the named plaintiffs’ claims are not typical of the class’s claims for three reasons: first, some named plaintiffs did not apply for naturalization until after their SSI benefits had already expired; second, some named plaintiffs, those who are asylees, are barred from bringing a claim against USCIS for unreasonable delay by the settlement in Ngwanyia v. Ashcroft, 376 F. Supp. 2d 923 (D. Minn. 2005). Finally, defendants state that one named plaintiff, Tasim Mandija, was “arguably the recipient of a processing error regarding the submission of fingerprints - an error which is not amenable to class treatment.” Defs.’ Opp. Class Cert. 17 (doc no. 37), March 19, 2007.
These arguments do not defeat typicality. First, the equal protection claim of named plaintiffs and class members does not depend on whether an application for naturalization was made before or after SSI benefits were terminated. Memorandum 22 makes expedited processing available to “[n]aturalization applicants who have lost or who are facing loss of federal meanstested benefits due to welfare reform legislation.” Ex. B, First Am. Cmpl. (doc. no. 11). USCIS does not differentiate between applicants who lost benefits before applying and those who lost benefits after applying. All applicants who lost or will lose
-21-

benefits are equally entitled to expedited processing. The equal protection claim is identical regardless of when the benefit loss occurred.
Second, the Court has already held that the claims of the asylee-plaintiffs are not precluded by the settlement in Ngwanyia. Kaplan, 481 F. Supp. 2d at 402-04. Thus, the asyleeplaintiffs stand on no different footing than other plaintiffs who were not part of the class in Ngwanyia.
Third, and finally, defendants’ argument that Mr. Mandija’s claim is not typical of the claims of class members appears incorrect. The First Amended Complaint alleges that Mr. Mandija applied for LPR status in February 2000. Defendants did not act upon the application until February 2006, when they denied the application claiming not to have Mr. Mandija’s fingerprints. In August 2006, defendants recognized that the denial may have been erroneous, reopened the application and took a new set of fingerprints. According to the complaint, Mr. Mandija’s application is still pending. Defendants argue that a claim arising from USCIS’s error is not amenable to class treatment. This may be true, but the class claims address delay in processing applications, not errors in processing those applications. Even if USCIS was correct to deny Mr. Mandija’s application in February 2006, surely the 6-year delay between February 2000 and February 2006 constitutes the type of delay (or
-22-

lack of expedited processing) that is the focus of the class claims in this case.
d. Adequacy of representation Class representatives must “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “This requires a determination of (1) whether the representatives’ interests conflict with those of the class and (2) whether the class attorney is capable of representing the class.” Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 185 (3d Cir. 2001). The effort to “uncover conflicts of interest between named parties and the class they seek to represent,” Prudential, 148 F.3d at 312, takes on particular importance in the context of settlement-only certification where “collusion, inadequate prosecution, and attorney inexperience are the paramount concerns,” Cmty. Bank, 418 F.3d at 299. Indeed, “the key” to Amchem’s teaching on settlement-only classes “appears to be the careful inquiry into adequacy of representation.” Prudential, 148 F.3d at 308.
i. Alignment of plaintiffs’ interests “[E]valuating the settlement can yield some information relevant to the adequacy of representation determination under 23(a)(4). The settlement evaluation involves two types of evidence: a substantive inquiry into the terms of the
-23-

settlement relative to the likely rewards of litigation and a procedural inquiry into the negotiation process.” In re G.M., 55 F.3d at 796. “The focus on the negotiation process results from the realization that a judge cannot really make a substantive judgment on the issues in the case without conducting some sort of trial on the merits, exactly what the settlement is intended to avoid.” Id. (citing Malchman v. Davis, 706 F.2d 426, 433 (2d Cir. 1983)). “Instead, the court determines whether negotiations were conducted at arms' length by experienced counsel after adequate discovery, in which case there is a presumption that the results of the process adequately vindicate the interests of the absentees.” Id. Here, it does not appear that the interests of the named plaintiffs conflict with those of the absent class members. As described above, all plaintiffs have suffered, or are at risk from, the same course of conduct by defendants: a practice of unevenly enforcing Memorandum 22 and of unreasonably delaying action on applications for naturalization. Although different plaintiffs may have suffered different degrees of injury depending on the length of delay in a particular case, these differences are immaterial since plaintiffs seek declaratory and injunctive relief rather than money damages. All plaintiffs will benefit equally from the proposed settlement, which entitles any applicant in danger of losing benefits to expedited treatment.
-24-

Moreover, the substance of the settlement suggests that the named plaintiffs have adequately represented the interests of the absent class members. The Agreement creates a process which will be available to all class members. To the extent that the Agreement treats different class members differently, it prioritizes the processing of applications in order of when benefits will be lost. This prioritization appears fair and reasonable. All the applications of the class members cannot be processed simultaneously. The prioritization proposed in the Agreement will help those who have already lost benefits, while enabling those in danger of doing so to avoid the loss by seeking expedited processing as the loss approaches.
In comparison to the risk and expense of litigation, the Agreement appears a reasonable choice to protect the interests of all class members. Even if plaintiffs litigated the case and won, the outcome would likely be that USCIS would expedite their applications. Because some ordering of the expedited applications would be necessary even following a victory for plaintiffs, it seems likely that the settlement approximates a likely result if plaintiffs succeed in litigating the case to completion.
In addition to being substantively fair, the settlement appears to be the product of arm’s-length negotiations between counsel. The case was litigated for almost a year before
-25-

settlement was reached. Some discovery was conducted. The motion for approval of the settlement states that there are no side agreements in connection with the settlement.
ii. Qualifications of counsel Plaintiffs are represented by Community Legal Services; Ballard, Spahr, Andrews & Ingersoll, LLP; HIAS and Council Migration Service of Philadelphia; and the Sargent Shriver National Center on Poverty Law. Class counsel appear wellqualified and sufficiently experienced to represent the named plaintiffs and the class members. Defendants did not challenge the qualifications of counsel in their initial opposition to certification.
2. Rule 23(b)(2) Rule 23(b)(2) allows certification of the class if “the party opposing the class has acted or refused 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.” Fed. R. Civ. P. 23(b)(2). “[T]his requirement is almost automatically satisfied in actions primarily seeking injunctive relief.” Baby Neal, 43 F.3d at 58. Plaintiffs here seek a declaration that the defendants’ failure to act on plaintiffs’ applications for LPR and
-26-

naturalization in a timely fashion constitutes unreasonable delay in violation of the APA. They also seek an injunction requiring USCIS and the FBI to promptly process all applications, including expediting applications from applicants who have lost SSI benefits or are threatened with such a loss.
Because of the relief sought, this action “almost automatically” satisfies the requirement of Rule 23(b)(2). Moreover, the requirement is satisfied because defendants’ conduct toward all plaintiffs is governed by the same legal regime and defendants’ failure to act is based on grounds applicable to the whole class: uneven enforcement of Memorandum 22 and failure to act promptly on applications. Some members of the class may not have been injured by defendants’ equal protection violation (for example, if the class member applied in an office that enforces Memorandum 22); however, “the language of (b)(2) does not even require that the defendant’s conduct be directed or damaging to every member of the class.” Baby Neal, 43 F.3d at 58.
Because the proposed settlement class satisfies Rule 23(b)(2) and all four requirements of Rule 23(a), the Court will grant conditional certification.
C. Preliminary Approval of the Proposed Settlement “[I]f the proposed settlement appears to be the product of serious, informed, non-
-27-

collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, and falls within the range of possible approval, then the [C]ourt [will] direct that . . . notice be given to the class members of a formal fairness hearing.” Schwartz, 157 F. Supp. 2d at 570 n.12. The “range of possible approval” is set by Girsh v. Jepson, which enumerates nine factors to be considered by courts assessing the fairness of a settlement under Rule 23(e). These factors are: 1) the complexity, expense and likely duration of the litigation; 2) the reaction of the class to the settlement; 3) the stage of the proceedings and the amount of discovery completed; 4) the risks of establishing liability; 5) the risks of establishing damages; 6) the risks of maintaining the class action through the trial; 7) the ability of the defendants to withstand a greater judgment; 8) the range of reasonableness of the settlement fund in light of the best possible recovery; and 9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. 521 F.2d 153, 157 (3d Cir. 1975). Preliminary approval of the proposed settlement will be granted. As noted above, the settlement agreement appears to be the product of arm’s-length negotiations by experienced counsel. The agreement has no obvious deficiencies. Because it provides injunctive relief in the form of a process that is available to all class members, the settlement does not provide preferential
-28-

treatment to named plaintiffs or a subclass of plaintiffs; rather, it provides equal benefits to all class members.
Finally, a number of the Girsh factors suggest that the settlement will receive final approval. First, the case has already been litigated for over a year; there has been significant motion practice and some discovery has been conducted. Second, as described above, there are risks inherent in proceeding to trial and, even if plaintiffs succeed at trial, they would likely be entitled only to injunctive relief that would have similar results to the proposed settlement. Third, the injuries suffered by plaintiffs result from delays in the processing of their applications. Thus, it is in the interests of the plaintiffs to settle the case in order to prevent the further delay and injury that would result from continuing with the case.
Because the settlement appears likely to secure final approval under Rule 23(e), the Court will schedule a fairness hearing and order that notice be given to the class members.
III. MOTION FOR APPROVAL OF NOTICE TO CLASS MEMBERS Rule 23(e) provides that “[t]he court must direct
notice in a reasonable manner to all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e). “The court should consider both ‘the mode of dissemination and its content
-29-

to assess whether notice was sufficient.’” Bradburn Parent Teacher Store, Inc. v. 3M, 513 F. Supp. 2d 322, 328 (E.D. Pa. 2007) (quoting In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods., 226 F.R.D. 498, 517-18 (E.D. Pa. 2005)).
A. Content of the Notice “‘Rule 23(e) notice is designed to summarize the
litigation and the settlement and to apprise class members of the right and opportunity to inspect the complete settlement documents, papers, and pleadings filed in the litigation.’” In re Bristol-Myers Squibb Sec. Litig., No. 06-2964, 2007 WL 2153284, at *2 (3d Cir. 2007) (unreported) (quoting Prudential, 148 F.3d at 327)). “Although the ‘notice need not be unduly specific, . . . the notice document must describe, in detail, the nature of the proposed settlement, the circumstances justifying it, and the consequences of accepting and opting out of it.’ Bradburn, 513 F. Supp. 2d at 328 (quoting Diet Drugs, 226 F.R.D. at 518).
In Prudential, the Court approved a settlement notice that contained
“a description of the litigation, the settlement class, and the terms of the proposed settlement, including the relief available. It set out the information regarding the fairness hearing, including the date of the hearing, the opportunity for class members to appear at the hearing, and the procedure for filing
-30-

objections with the court. The notice also explained the consequences for class members who remain in the class and provided the full text of the release. Finally, the notice provided class members with the toll-free 800 number established by Prudential to address class member concerns.”
148 F.3d at 327.
The proposed notice in this case is very similar to the
notice in Prudential and other notices that have been approved in
this district. See, e.g., Bradburn, 513 F. Supp. at 329
(approving settlement notice that summarized “the consequences of
class membership” and directed class members to a website for
further information). It describes the litigation, defines the
class and explains the settlement, describing available relief in
detail. The notice explains the fairness hearing and describes
how class members can file objections. It provides contact
information so that class members can write to class counsel with questions.10 Although the notice does not provide the full text
of the release, it notifies class members that they release all
“settled claims” against the defendants. It further directs them
to a website where they can read the Settlement Agreement,
10 Although the proposed notice originally submitted to the Court contained an 800-number, counsel agreed at the January 18, 2008 hearing that the 800-number would be removed from the notice. 1/18/08 Hr’g. Tr. 19:5-12. It was also agreed that an instruction will be added telling class members that they should contact class counsel, not the Court, regarding the fairness hearing. Id. at 19:25-20:2.
-31-

including the release, in full. Because the notice adequately informs class members of
the litigation, the proposed settlement and their right to inspect the full settlement agreement and the other documents in the case, the Court will approve the notice proposed by the parties with the slight modifications discussed at the January 18 hearing, see supra n.7.
B. Method of Distributing Notice Rule 23(e) requires that class members be given
“reasonable” notice of the settlement. In cases certified under Rule 23(b)(2), as this one was, “the stringent requirement of Rule 23(c)(2) that members of the class receive the ‘best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable efforts,’ is inapplicable.” Walsh v. Great Atl. & Pac. Tea Co., 726 F.2d 956, 962 (3d Cir. 1983). “Rule 23(e) makes some form of postsettlement notice . . . mandatory, although the form of notice is discretionary . . . [because] Rule . . . (b)(2) classes are cohesive in nature.” Id. at 962-63 (citing Wetzel v. Liberty Mut. Cas. Co., 508 F.2d 239, 248-50 (3d Cir. 1975)). “[A]n adequate class representative can, as a matter of due process, bind all absent class members by a judgment.” Id. at 963.
Individual notice is not required although “individual
-32-

notice is appropriate, for example, if class members are required to take action–such as filing claims–to participate in the judgment, or if the court orders a settlement opt-out opportunity under Rule 23(e)(3).” Fed. R. Civ. P. 23(e)(1) adv. comm. note.
The parties propose to distribute notice of the proposed settlement in the following ways: 1) posting the Notice in appropriate places on the USCIS and SSA public websites and 2) providing the Notice to the USCIS Community Relations Program for distribution within five business days of the date of the Court’s order approving the Notice. Notice will be distributed by the Community Relations Program to “the existing network of community-based and non-profit organizations who provide advice and assistance to immigrants, including AILA chapters through the AILA national office.” Joint Mot. for Prelim. Approval 4, Jan. 4, 2008 (doc. no. 71).
Distribution by the Community Relations Program will “bring the proposed settlement to the attention of representative class members who may alert the court to inadequacies in representation, or conflicts in interest among subclasses.” Walsh, 726 F.2d at 963. The organizations that receive the notice are well-positioned to spread information regarding the settlement to their clients by posting the notice in their facilities or on their websites.
At the January 18 hearing, the Court inquired about the
-33-

possibility of sending individual notice to the class members. 1/18/08 Hr’g. Tr. 16:20-23. Although individual notices could be sent using the SSA databases, doing so would require that the databases be searched so that a list of all aliens who are or were receiving SSI benefits could be generated. Counsel for the Government advised the Court that this process would take around three months. Id. at 17:10-11. Because of the time-sensitive nature of this case, a three-month delay would result in many more class members losing SSI benefits or remaining without benefits while individual notices were generated. Moreover, the distribution method proposed by the parties appears wellcalculated to reach representative class members who will be able to bring any deficiencies in the settlement to the Court’s attention. Therefore, the Court will approve the distribution method proposed by the parties.
IV. CONCLUSION For the reasons stated above, the Court will grant
conditional class certification and preliminary approval of the proposed settlement. The Court will also approve the proposed notice and method of distributing notice. An appropriate order follows.
-34-

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHMUL KAPLAN ET AL., PlaintiffS,
v. MICHAEL CHERTOFF ET AL.,
Defendants.

: CIVIL ACTION : NO. 06-5304 : : : : : : :

ORDER

AND NOW, this 24th day of January 2008, it is hereby

ORDERED that the joint motion for preliminary approval of the

proposed settlement and approval of notice to the class members (doc. no. 71) is hereby GRANTED.11 The class is conditionally

certified under Rule 23(b)(2) for settlement purposes only.

It is further ORDERED that there will be a hearing to

consider whether the proposed settlement should receive final

approval under Federal Rule of Civil Procedure 23(e) on Friday,

February 29, 2008 at 10:30 a.m. in Courtroom 11A, United States

Courthouse, 601 Market Street, Philadelphia, Pennsylvania.

AND IT IS SO ORDERED.

S/Eduardo C. Robreno EDUARDO C. ROBRENO, J.
11 The proposed notice is approved with the slight changes that were agreed to on the record at the hearing on January 18, 2008.
-35-

 
 For Immediate Release Dec.4, 2006

Contacts:

Jonathan Stein Community Legal Services, Inc. (215) 981-3742
Judi Bernstein-Baker Hebrew and Immigrant Aid Society (HIAS) and Council Migration Service (215) 832-0906
Thomas Roberts Ballard Spahr Andrews & Ingersoll, LLP (215) 864-8211

Disabled and Elderly Refugees and Asylees Sue Federal Government to Restore Supplementary Security Income Benefits
PHILADELPHIA, PA — Elderly and disabled humanitarian immigrants fleeing persecution abroad are filing a class action lawsuit in federal court in Philadelphia against the federal government to restore their Supplemental Security Income (SSI) benefits. These benefits — paid to severely disabled, blind and elderly poor people — were cut off because, despite the immigrants’ best efforts, they have not been able to become U.S. citizens due to governmental delays.
The lawsuit is being filed by Community Legal Services, the Hebrew and Immigrant Aid Society (HIAS) and Council Migration Service and pro bono counsel at the Ballard Spahr Andrews & Ingersoll. The named plaintiffs are refugees and asylees who have been welcomed into the country based on the long-standing national policy offering refuge to those at risk for their lives abroad. These lawful immigrants are being terminated from the subsistence SSI benefit that the Social Security Administration provides to low income disabled, blind and elderly people. SSI pays $603 a month to a person, $904 monthly to a couple.
The 1996 welfare reform law, for the first time required immigrants entering the country after August 22, 1996, to become U.S. citizens in order to continue to receive SSI benefits, even though they met all other eligibility criteria. Refugees and asylees were only allowed to receive SSI during their first seven years in the country. At the time, Congress assumed that these humanitarian immigrants could continue their SSI without interruption by becoming naturalized citizens.
But bureaucratic delays in processing green card and naturalization applications have caused nearly 6,000 disabled and elderly refugees and asylees to be terminated from SSI. Another 46,000 are expected to be terminated between

2006 and 2012, according to Social Security Administration data cited in the complaint.
The class is represented by Shmul Kaplan, an 80-year-old Holocaust survivor and resident of Levittown, PA, who had had his right leg amputated in the former Soviet Union. The victim of anti-Semitic persecution in the former Soviet Union, Mr. Kaplan was granted asylum in 1997 and began receiving SSI and Medicaid. The Government delayed five years in ruling on his application for his “green card” before it was granted in 2003. Mr. Kaplan must now wait to begin to apply for citizenship until mid-2007. Having lived in the country for seven years, Social Security ended his SSI in 2004.
Mr. Kaplan says that, “America is for me a dream, I am thankful to American people, and I wait until I can apply to become a U.S. citizen.”
Other named plaintiffs include Jewish refugees fleeing the former Soviet Union; an elderly couple persecuted and imprisoned in Albania; a 17-year-old Iranian boy with severe cognitive disabilities, whose mother was imprisoned in Tehran for being outspoken about the lack of freedom there; and a blind Ethiopian man who obtained asylum in the U.S. after his life was threatened because of his efforts to promote democracy in his former country. All have been terminated from SSI benefits.
The refugees have sued the Department of Homeland Security and its Citizenship and Immigration Service; the Attorney General and the Federal Bureau of Investigation; and the Social Security Administration. The plaintiffs claim that these agencies have violated the United States Constitution and the federal Administrative Procedure Act by not fairly and promptly processing green card and naturalization applications, resulting in an unintended hardship for a group of humanitarian immigrants who have done all that they could do to become U.S. citizens.
“We have ‘lifted the lamp of freedom’ for these refugees and asylees,” said Jonathan Stein, general counsel at Community Legal Services, “but have not afforded them the fair and humane treatment that would provide these disabled and elderly immigrants with bare necessities of life through SSI.”
This past October, nearly 300 national and local organizations providing services to immigrants and the disabled and elderly wrote a joint letter, led by the Hebrew and Immigrant Aid Society, to Congress urging a change in law. The 1997 bipartisan U.S. Commission on Immigration Reform had criticized placing time limits on a refugee’s eligibility for public benefits, concluding that providing SSI “would strengthen the U.S. capacity to offer resettlement to some of the world’s most vulnerable refugees — the aged and disabled.” Congress has not to date legislated any remedy for this problem.

The lawsuit asks the federal court to reinstate SSI benefits to those terminated to date, and to continue SSI to the class suing until they have had a fair opportunity to complete the Lawful Permanent Resident (known as “green card”) and naturalization processes.
# # #
For 40 years, Community Legal Services Inc. (CLS) of Philadelphia has provided the highest quality legal assistance to low-income Philadelphians who cannot afford legal counsel when they most need it. Created by the Philadelphia Bar Association in 1966, CLS is widely recognized as one of the most sophisticated, respected legal services programs in the nation. It is also the largest and most experienced legal services provider with the broadest scope in Pennsylvania. In the past year alone, CLS has helped over 19,000 Philadelphians, fighting consumer fraud and predatory lending, preventing homelessness, ensuring fair treatment in the workplace, stabilizing families, and protecting women, children and the elderly. Since inception, CLS has served well over a million individuals at the most critical time of their lives. For more information on Community Legal Services of Philadelphia, visit www.clsphila.org.

 
 Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 1 of 21
SEALDC,CLOSED,STANDARD
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:06−cv−05304−ER

KAPLAN et al v. CHERTOFF et al Assigned to: HONORABLE EDUARDO C. ROBRENO Cause: 08:1329 Writ of Mandamus to Adjudicate Visa Petiti
Plaintiff

Date Filed: 12/06/2006 Date Terminated: 03/05/2008 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

SHMUL KAPLAN

represented by AYODELE A. GANSALLO HIAS AND COUNCIL 2100 ARCH ST., 3RD FL PHILADELPHIA, PA 19103 215−832−0900 Fax: 215−832−0919 Email: ayogansallo@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOHN BOUMAN SARGENT SHRIVER NATIONAL CENTER ON POVERTY LAW 50 E. WASHINGTON SUITE 500 CHICAGO, IL 60153 312−368−2671 Fax: 312−263−3846 Email: johnbouman@povertylaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN COMMUNITY LEGAL SERVICES, INC. 1424 CHESTNUT STREET PHILADELPHIA, PA 19102−2505 215−981−3762 Email: jstein@clsphila.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

JORDANA L. GREENWALD U.S. DEPT OF LABOR OFFICE OF THE REGIONAL SOLICITOR SUITE 630 EAST − THE CURTIS CTR 170 S. INDEPENDENCE MALL WEST PHILADELPHIA, PA 19106 215−861−5129 Email: greenwald.jordana@dol.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

SABRINA M. RUDNICK BALLARD SPAHR ANDREWS &INGERSOLL LLP 1735 MARKET ST., 51ST FL PHILADELPHIA, PA 19103−7599 215−665−8500 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 2 of 21

Plaintiff TASIM MANDIJA

MICHAEL R. FROEHLICH COMMUNITY LEGAL SERVICES INC 1424 CHESTNUT ST PHILADELPHIA, PA 19102 215−981−3707 Fax: 267−765−6481 Email: mfroehlich@clsphila.org ATTORNEY TO BE NOTICED
RICHARD P. WEISHAUPT COMMUNITY LEGAL SERVICES, INC. 1424 CHESTNUT STREET PHILADELPHIA, PA 19102−2505 215−981−3773 Fax: 215−981−0436 Email: rweishaupt@clsphila.org ATTORNEY TO BE NOTICED
THOMAS B. ROBERTS Hamburg &Golden, P.C. 1601 Market Street, Suite 3310 PHILADELPHIA, PA 19103−7599 215−255−8594 Fax: 215−255−8583 Email: robertstb@hamburg−golden.com ATTORNEY TO BE NOTICED
represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JONATHAN M. STEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED
RICHARD P. WEISHAUPT (See above for address) ATTORNEY TO BE NOTICED
THOMAS B. ROBERTS (See above for address)

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 3 of 21

ATTORNEY TO BE NOTICED

Plaintiff FERIDE MANDIJA

represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED

RICHARD P. WEISHAUPT (See above for address) ATTORNEY TO BE NOTICED

THOMAS B. ROBERTS (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
ROUZBEH ALIAGHAEI BY AND THROUGH HIS PARENTS AND GUARDIANS AD LITEM

represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 4 of 21

ATTORNEY TO BE NOTICED

MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED

THOMAS B. ROBERTS (See above for address) ATTORNEY TO BE NOTICED

Plaintiff MASHAALAH

represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED

RICHARD P. WEISHAUPT (See above for address) ATTORNEY TO BE NOTICED

THOMAS B. ROBERTS (See above for address) ATTORNEY TO BE NOTICED

Plaintiff MARY AMREZAEI ALIAGHAEI

represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 5 of 21

JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED

THOMAS B. ROBERTS (See above for address) ATTORNEY TO BE NOTICED

Plaintiff LIDIYA BURTSEVA

represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED

THOMAS B. ROBERTS (See above for address) ATTORNEY TO BE NOTICED

Plaintiff NELLI OLEVSKAYA

represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 6 of 21

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED

THOMAS B. ROBERTS (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
ESHETU MERI INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED

represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED

RICHARD P. WEISHAUPT (See above for address) ATTORNEY TO BE NOTICED

THOMAS B. ROBERTS (See above for address) ATTORNEY TO BE NOTICED

Plaintiff SARA BACHMAN

represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 7 of 21

ATTORNEY TO BE NOTICED

JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED

Plaintiff MOISEY BACKMAN

represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED

Plaintiff JOE BEOPLUE

represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOHN BOUMAN (See above for address)

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 8 of 21

LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED

Plaintiff SONYUNOR BEOPLUE

represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED

Plaintiff GLAYON BLOUE

represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 9 of 21

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED

Plaintiff IZAAK ROZENBLIT

represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED

Plaintiff SEMEN SAVRANSKIY

represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 10 of 21

JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED

Plaintiff LYUDMILA SHIROKAYA

represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED

Plaintiff IGOR STEPANOV

represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN M. STEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 11 of 21

Plaintiff
YEVGENIYA STRIZHEVSKAYA INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED

SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED
represented by AYODELE A. GANSALLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JOHN BOUMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JONATHAN M. STEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JORDANA L. GREENWALD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SABRINA M. RUDNICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL R. FROEHLICH (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
MICHAEL CHERTOFF AS SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY

represented by ELIZABETH J. STEVENS US DEPT OF JUSTICE POBOX 878 BEN FRANKLIN STATION WASHINGTON, DC 20044 202−616−9752 Fax: 202−233−0397 Email: elizabeth.stevens@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
RICHARD M. BERNSTEIN U.S. ATTORNEY'S OFFICE 615 CHESTNUT ST SUITE 1250 PHILADELPHIA, PA 19106−4476 215−861−8334 Fax: 215−861−8349 Email: richard.bernstein@usdoj.gov LEAD ATTORNEY

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 12 of 21

ATTORNEY TO BE NOTICED

Defendant
ALBERTO GONZALES AS ATTORNEY GENERAL OF THE UNITED STATES

represented by ELIZABETH J. STEVENS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

RICHARD M. BERNSTEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
EMILIO T. GONZALEZ AS DIRECTOR OF U.S. CITIZENSHIP AND IMMIGRATION SERVICES

represented by ELIZABETH J. STEVENS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

RICHARD M. BERNSTEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
ROBERT S. MUELLER, III AS DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION

represented by ELIZABETH J. STEVENS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

RICHARD M. BERNSTEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
JO ANNE B. BARNHART AS COMMISSIONER OF SOCIAL SECURITY

represented by ELIZABETH J. STEVENS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

RICHARD M. BERNSTEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
DONALD MONICA AS DISTRICT DIRECTOR OF THE U.S. CITIZENSHIP AND IMMIGRATION SERVICES, PHILADELPHIA DISTRICT OFFICE

represented by ELIZABETH J. STEVENS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RICHARD M. BERNSTEIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/04/2006

# Docket Text
1 MOTION for Leave to Proceed in forma pauperis filed by MASHAALAH, MARY AMREZAEI ALIAGHAEI, LIDIYA BURTSEVA, NELLI OLEVSKAYA,

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 13 of 21

12/06/2006 12/06/2006
12/06/2006 12/07/2006
12/22/2006 12/22/2006 01/24/2007 01/31/2007 01/31/2007 01/31/2007 01/31/2007

ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, FERIDE MANDIJA, ROUZBEH ALIAGHAEI.(tj, ) (Entered: 12/05/2006)
2 ORDER THAT THE PLAINTIFF MAY PROCEED IN FORMA PAUPERIS IN THIS MATTER, WITHOUT BEING REQUIRED TO PAY FEES AND COSTS OR GIVE SECURITY FOR THEM. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 12/06/06.12/06/06 ENTERED AND COPIES MAILED AND FAXED. (ac, ) (mk, ). (Entered: 12/06/2006)
3 COMPLAINT AGAINST MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA FILED BY MASHAALAH, MARY AMREZAEI ALIAGHAEI, LIDIYA BURTSEVA, NELLI OLEVSKAYA, ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, FERIDE MANDIJA, ROUZBEH ALIAGHAEI. (IFP STATUS) (ac, ) Additional attachment(s) added on 12/13/2006 (ac, ). (Entered: 12/06/2006)
7 Original Summons(es) Issued as to MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA. Forwarded To: U.S. Marshal on 12/07/06. (ac, ) (Entered: 12/06/2006)
4 Acceptance of Service by U.S. Attorney Re: accepted summons and complaint for MICHAEL CHERTOFF on 12/7/2006, answer due 2/5/2007; ALBERTO GONZALES on 12/7/2006, answer due 2/5/2007; EMILIO T. GONZALEZ on 12/7/2006, answer due 2/5/2007; ROBERT S. MUELLER, III on 12/7/2006, answer due 2/5/2007; JO ANNE B. BARNHART on 12/7/2006, answer due 2/5/2007; DONALD MONICA on 12/7/2006, answer due 2/5/2007. (ac, ) (Entered: 12/07/2006)
5 Praecipe to Issue Summons filed by SHMUL KAPLAN.Praecipe−−Notice to Clerk. (Attachments: # 1) (STEIN, JONATHAN) Modified on 12/27/2006 (np). (Entered: 12/22/2006)
3 Alias Summons(es) Issued as to Robert S. Mueller, III, Donald Monica, and Emilio T. Gonzalez. Forwarded to Counsel 12/27/06. (ac, ) (Entered: 12/27/2006)
6 NOTICE of Appearance by RICHARD P. WEISHAUPT on behalf of MASHAALAH, ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, FERIDE MANDIJA, MARY AMREZAEI ALIAGHAEI, ROUZBEH ALIAGHAEL, LIDIYA BURTSEVA, NELLI OLEVSKAYA (WEISHAUPT, RICHARD) Modified on 1/26/2007 (afm, ). (Entered: 01/24/2007)
7 MOTION for Preliminary Injunction filed by MASHAALAH, MARY AMREZAEI ALIAGHAEI, LIDIYA BURTSEVA, NELLI OLEVSKAYA, ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, FERIDE MANDIJA, ROUZBEH ALIAGHAEI.Memorandum and Certificate of Service.(ROBERTS, THOMAS) (Entered: 01/31/2007)
8 MOTION to Certify Class and for Appointment of Class Counsel filed by MASHAALAH, MARY AMREZAEI ALIAGHAEI, LIDIYA BURTSEVA, NELLI OLEVSKAYA, ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, FERIDE MANDIJA, ROUZBEH ALIAGHAEI.Memorandum of Law and Certificate of Service.(ROBERTS, THOMAS) (Entered: 01/31/2007)
9 APPLICATION OF AYODELE A. GANSALLO, ESQUIRE TO PRACTICE IN THIS COURT BY MASHAALAH, LIDIYA BURTSEVA, NELLI OLEVSKAYA, ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, FERIDE MANDIJA, ROUZBEH ALIAGHAEI, STATEMENT, CERTIFICATE OF SERVICE. (ac, ) (Entered: 02/01/2007)
10 EXHIBITS TO MOTION FOR PRELIMINARY INJUNCTION BY MASHAALAH, MARY AMREZAEI ALIAGHAEI, LIDIYA BURTSEVA, NELLI OLEVSKAYA, ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, FERIDE MANDIJA, ROUZBEH ALIAGHAEI. (Attachments: # 1 Exhibits# 2 Exhiibits# 3 Exhibits# 4 Exhibits# 5 Exhibits# 6 Exhibits# 7 Exhibits# 8 Exhibits)(ac, ) (Entered: 02/01/2007)

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 14 of 21

01/31/2007
01/31/2007 02/01/2007 02/01/2007 02/01/2007 02/01/2007 02/01/2007
02/02/2007 02/05/2007

11 FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE AND MANDAMUS RELIEF AGAINST MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA FILED BY MASHAALAH, MARY AMREZAEI ALIAGHAEI, LIDIYA BURTSEVA, NELLI OLEVSKAYA, ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, SARA BACHMAN, FERIDE MANDIJA, MOISEY BACKMAN, JOE BEOPLUE, SONYUNOR BEOPLUE, GLAYON BLOUE, IZAAK ROZENBLIT, SEMEN SAVRANSKIY, LYUDMILA SHIROKAYA, IGOR STEPANOV, YEVGENIYA STRIZHEVSKAYA, ROUZBEH ALIAGHAEI. (Attachments: # 1 Exhibits# 2 Exhibits)(ac, ) (Entered: 02/01/2007)
7 Original Summons Issued as to MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA. Forwarded To: Counsel on 02/01/07. (ac, ) (Entered: 02/01/2007)
12 CERTIFICATE OF SERVICE by MASHAALAH, MARY AMREZAEI ALIAGHAEI, LIDIYA BURTSEVA, NELLI OLEVSKAYA, ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, SARA BACHMAN, FERIDE MANDIJA, MOISEY BACKMAN, JOE BEOPLUE, SONYUNOR BEOPLUE, GLAYON BLOUE, IZAAK ROZENBLIT, SEMEN SAVRANSKIY, LYUDMILA SHIROKAYA, IGOR STEPANOV, YEVGENIYA STRIZHEVSKAYA, ROUZBEH ALIAGHAEI (FROEHLICH, MICHAEL) (Entered: 02/01/2007)
13 Acceptance of Service by U.S. Attorney Re: accepted summons and complaint for MICHAEL CHERTOFF on 2/1/2007, answer due 4/2/2007; ALBERTO GONZALES on 2/1/2007, answer due 4/2/2007; EMILIO T. GONZALEZ on 2/1/2007, answer due 4/2/2007; ROBERT S. MUELLER, III on 2/1/2007, answer due 4/2/2007; JO ANNE B. BARNHART on 2/1/2007, answer due 4/2/2007; DONALD MONICA on 2/1/2007, answer due 4/2/2007. (ac, ) Additional attachment(s) added on 6/18/2007 (bj, ). (Entered: 02/01/2007)
14 NOTICE of Appearance by MICHAEL R. FROEHLICH on behalf of MASHAALAH, MARY AMREZAEI ALIAGHAEI, LIDIYA BURTSEVA, NELLI OLEVSKAYA, ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, SARA BACHMAN, FERIDE MANDIJA, MOISEY BACKMAN, JOE BEOPLUE, SONYUNOR BEOPLUE, GLAYON BLOUE, IZAAK ROZENBLIT, SEMEN SAVRANSKIY, LYUDMILA SHIROKAYA, IGOR STEPANOV, YEVGENIYA STRIZHEVSKAYA, ROUZBEH ALIAGHAEI with Certificate of Service (Attachments: # 1)(FROEHLICH, MICHAEL) (Entered: 02/01/2007)
15 NOTICE of Appearance by ELIZABETH J. STEVENS on behalf of MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA with Certificate of Service (STEVENS, ELIZABETH) (Entered: 02/01/2007)
16 APPLICATION OF SABRINA M. RUDNICK, ESQUIRE TO PRACTICE IN THIS COURT BY MASHAALAH, MARY AMREZAEI ALIAGHAEI, LIDIYA BURTSEVA, NELLI OLEVSKAYA, ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, SARA BACHMAN, FERIDE MANDIJA, MOISEY BACKMAN, JOE BEOPLUE, SONYUNOR BEOPLUE, GLAYON BLOUE, IZAAK ROZENBLIT, SEMEN SAVRANSKIY, LYUDMILA SHIROKAYA, IGOR STEPANOV, YEVGENIYA STRIZHEVSKAYA, ROUZBEH ALIAGHAEI, STATEMENT, CERTIFICATE OF SERVICE. (ac, ) (Entered: 02/02/2007)
17 NOTICE of Appearance by RICHARD M. BERNSTEIN on behalf of MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA with Certificate of Service (BERNSTEIN, RICHARD) (Entered: 02/02/2007)
18 ORDER THAT THE APPLICATION OF SABRINA M. RUDNICK, ESQUIRE, TO PRACTICE IN THIS COURT IS GRANTED. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 02/02/07. 02/06/07 ENTERED AND COPIES MAILED AND FAXED.(ac, ) Additional attachment(s) added on 6/4/2007 (mbh,

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 15 of 21

02/07/2007 02/08/2007 02/09/2007
02/14/2007 02/14/2007
02/15/2007 02/15/2007 02/15/2007 02/20/2007

). (Entered: 02/06/2007)
19 ORDER THAT THE APPLICATION OF AYODELE A. GANSALLO, ESQUIRE TO PRACTICE IN THIS COURT IS GRANTED. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 02/06/07. 02/07/07 ENTERED AND COPIES MAILED AND FAXED.(ac, ) Additional attachment(s) added on 6/1/2007 (mbh, ). (Entered: 02/07/2007)
20 ORDER THAT A TELEPHONE STATUS CONFERENCE IS SCHEDULED ON FEBRUARY 9, 2007, AT 9:30 A.M. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 02/08/07. 02/08/07 ENTERED AND COPIES MAILED AND FAXED.(ac, ) Additional attachment(s) added on 2/9/2007 (ac, ). (Entered: 02/08/2007)
21 ORDER THAT DEFENDANT SHALL RESPOND TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE AND MANDAMUS RELIEF THROUGH THE FILING OF A MOTION TO DISMISS BY FEBRUARY 14, 2007. PLAINTIFFS SHALL FILE A RESPONSE TO DEFENDANTS' MOTION TO DISMISS BY FEBRUARY 21, 2007. DEFENDANTS MAY FILE A REPLY IN SUPPORT OF THEIR MOTION TO DISMISS, IF ANY, BY FEBRUARY 28, 2007. A HEARING ON DEFENDANTS' MOTION TO DISMISS IS SCHEDULED FOR MARCH 7, 2007, T 9:30 A.M. IN COURTROOM 11A. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 02/09/07. 02/12/07 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) Modified on 2/16/2007 (ac, ). (Entered: 02/12/2007)
22 MOTION to Dismiss filed by MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA.Memorandum, Certificate of Service. (Attachments: # 1 Exhibit List of Exhibits# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Attachment A# 8 Attachment B)(STEVENS, ELIZABETH) (Entered: 02/14/2007)
23 APPLICATION OF JOHN BOUMAN, ESQUIRE TO PRACTICE IN THIS COURT BY MASHAALAH, MARY AMREZAEI ALIAGHAEI, LIDIYA BURTSEVA, NELLI OLEVSKAYA, ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, SARA BACHMAN, FERIDE MANDIJA, MOISEY BACKMAN, JOE BEOPLUE, SONYUNOR BEOPLUE, GLAYON BLOUE, IZAAK ROZENBLIT, SEMEN SAVRANSKIY, LYUDMILA SHIROKAYA, IGOR STEPANOV, YEVGENIYA STRIZHEVSKAYA, ROUZBEH ALIAGHAEI, STATEMENT, CERTIFICATE OF SERVICE. (ac, ) (Entered: 02/15/2007)
24 AMENDED DOCUMENT by MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA. Amendment to 22 MOTION to Dismiss Certificate of Service. (STEVENS, ELIZABETH) (Entered: 02/15/2007)
25 ORDER THAT THE APPLICATION OF JOHN BOUMAN, ESQUIRE TO PRACTICE IN THIS COURT ON BEHALF OF PLAINTIFFS IS GRANTED. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 02/15/07. 02/15/07 ENTERED AND COPIES MAILED AND FAXED.(ac, ) Additional attachment(s) added on 6/4/2007 (mbh, ). (Entered: 02/15/2007)
26 Stipulation and Confidentiality Order filed by MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA.. (Attachments: # 1 Sample Acknowledgement)(STEVENS, ELIZABETH) Modified on 2/16/2007 (afm, ). (FILED IN ERROR BY ATTORNEY, FORWARDED TO JUDGE FOR APPROVAL) (Entered: 02/15/2007)
27 ORDER THAT THE APPLICATION OF JOHN M. BOUMAN, ESQUIRE TO PRACTICE IN THIS COURT IS GRANTED. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 02/20/07. 02/20/07 ENTERED AND COPIES MAILED AND FAXED.(ac, ) Additional attachment(s) added on 6/4/2007 (mbh, ). (Entered: 02/20/2007)

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 16 of 21

02/20/2007
02/20/2007 02/21/2007 02/21/2007
02/28/2007 03/07/2007 03/08/2007
03/08/2007 03/08/2007 03/08/2007 03/09/2007 03/19/2007

28 STIPULATION AND CONFIDENTIALITY ORDER THAT THIS CONFIDENTIALITY ORDER SHALL APPLY TO ALL INITIAL DISCLOSURES AND ALL FUTURE DISCOVERY IN THIS ACTION SUBJECT TO MODIFICATIONS IN WRITING BY THE PARTIES OR BY THE COURT, ETC. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 02/20/07. 02/20/07 ENTERED AND COPIES MAILED AND FAXED.(ac, ) Additional attachment(s) added on 6/4/2007 (mbh, ). (Entered: 02/20/2007)
29 TRANSCRIPT of Proceedings held on 2/9/07 before Judge ROBRENO. Court Reporter: JOSEPH MATKOWSKI. TELEPHONE CONFERENCE (jl, ) (Entered: 02/20/2007)
30 Amended Transcript of Telephone Conference held on 02/09/07 before Judge Robreno. Court Reporter: ESR. (ac, ) (Entered: 02/21/2007)
31 MEMORANDUM OF LAW in Opposition re 22 MOTION to Dismiss , Certificate of Service filed by MASHAALAH, MARY AMREZAEI ALIAGHAEI, LIDIYA BURTSEVA, NELLI OLEVSKAYA, ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, SARA BACHMAN, FERIDE MANDIJA, MOISEY BACKMAN, JOE BEOPLUE, SONYUNOR BEOPLUE, GLAYON BLOUE, IZAAK ROZENBLIT, SEMEN SAVRANSKIY, LYUDMILA SHIROKAYA, IGOR STEPANOV, YEVGENIYA STRIZHEVSKAYA, ROUZBEH ALIAGHAEI. (GREENWALD, JORDANA) Modified on 2/23/2007 (afm, ). Additional attachment(s) added on 2/23/2007 (np, ). (Entered: 02/21/2007)
32 REPLY to Response to Motion re 22 MOTION to Dismiss filed by MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA. (STEVENS, ELIZABETH) (Entered: 02/28/2007)
33 Minute Entry for proceedings held before Judge EDUARDO C. ROBRENO : Hearing on Motion to Dismiss held on 03/07/07. Court Reporter: ESR. (ac, ) (Entered: 03/08/2007)
34 ORDER THAT DEFENDANTS' MOTION TO DISMISS IS GRANTED IN PART AND DENIED IN PART, ETC. DEFENDANTS SHALL FILE AN ANSWER TO BOTH PLAINTIFFS' FIRST AMENDED COMPLANT FOR DECLARATORY, INJUNCTIVE AND MANDAMUS RELIEF AND PLAINTIFFS' MOTION TO CERTIFY CLASS AND FOR APPOINTMENT OF CLASS COUNSEL BY MARCH 19, 2007. PLAINTIFFS MAY FILE A REPLY IN SUPPORT OF THEIR MOTION TO CERTIFY CLASS AND FOR APPOINTMENT OF CLASS COUNSEL, IF ANY, BY MARCH 26, 2007. DISCOVERY IS TO CONTINUE. A STATUS AND SCHEDULING CONFERENCE IS SCHEDULED FOR MARCH 21, 2007,A T 9:30 A.M. IN COURTROOM 11A. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 03/07/07.03/08/07 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 03/08/2007)
Set/Reset Deadlines as to 8 MOTION to Certify Class and for Appointment of Class Counsel. RESPONSES DUE BY 3/19/2007. REPLIES DUE BY 3/26/2007. (ac, ) (Entered: 03/08/2007)
STATUS AND SCHEDULING CONFERENCE SET FOR 3/21/2007 09:30 AM IN COURTROOM BEFORE HONORABLE EDUARDO C. ROBRENO. (ac, ) (Entered: 03/08/2007)
Update Answer Deadline (ac, ) (Entered: 03/08/2007)
35 TRANSCRIPT of Proceedings held on 3/7/07 before Judge ROBRENO. Court Reporter: JOE MATKOWSKI. HEARING ON MOTION TO DISMISS (jl, ) (Entered: 03/12/2007)
36 Defendants' ANSWER to Amended Complaint WITH AFFIRMATIVE DEFENSES For Declaratory, Injunctive And Mandamus Relief by MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA, CERTIFICATE OF SERVICE.(STEVENS, ELIZABETH) Modified on 3/21/2007 (afm, ). (Entered: 03/19/2007)

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 17 of 21

03/19/2007 03/20/2007 03/22/2007 03/23/2007 03/26/2007
03/29/2007 03/30/2007
04/13/2007 04/13/2007 04/17/2007

37 RESPONSE in Opposition re 8 MOTION to Certify Class and for Appointment of Class Counsel filed by MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA, CERTIFICATE OF SERVICE. (Attachments: # 1 Exhibit A)(STEVENS, ELIZABETH) Modified on 3/21/2007 (afm, ). (Entered: 03/19/2007)
38 ORDER THAT THE STATUS AND SCHEDULING CONFERENCE PREVIOUSLY SCHEDULED ON MARCH 21, 2007, IS RESCHEDULED ON MARCH 22, 2007, AT 11:00 A.M. IN COURTROOM 11A. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 03/20/07. 03/20/07 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 03/20/2007)
39 Minute Entry for proceedings held before Judge EDUARDO C. ROBRENO : Status Conference held on 03/21/07. Court Reporter: ESR. (ac, ) (Entered: 03/22/2007)
40 ORDER THAT DISCOVERY SHALL CONTINUE AS OUTLINED HEREIN AND IN FURTHER ORDER THAT PARTIES SHALL MEET AND CONFER TO AGREE UPON POINTS LISTED HEREIN.. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 3/22/07. 3/23/07 ENTERED AND COPIES MAILED, E−MAILED.(mas, ) (Entered: 03/23/2007)
41 REPLY to Response to Motion re 8 MOTION to Certify Class and for Appointment of Class Counsel filed by MASHAALAH, MARY AMREZAEI ALIAGHAEI, LIDIYA BURTSEVA, NELLI OLEVSKAYA, ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, SARA BACHMAN, FERIDE MANDIJA, MOISEY BACKMAN, JOE BEOPLUE, SONYUNOR BEOPLUE, GLAYON BLOUE, IZAAK ROZENBLIT, SEMEN SAVRANSKIY, LYUDMILA SHIROKAYA, IGOR STEPANOV, YEVGENIYA STRIZHEVSKAYA, ROUZBEH ALIAGHAEI, Certificate of Service. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4) (FROEHLICH, MICHAEL) Modified on 3/27/2007 (np). (Entered: 03/26/2007)
42 MEMORANDUM AND ORDER THAT DEFENDANTS' MOTION TO DISMISS IS GRANTED IN PART AND DENIED IN PART, ETC. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 03/29/07. 03/29/07 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 03/29/2007)
43 LETTER TO JUDGE ROBRENO WITH COURT APPROVAL THAT DISCOVERY IS TO BE COMPLETED ON OR BEFORE MAY 25, 2007. ALL PRETRIAL MEMORANDUM IS TO BE FILED BY EACH SIDE ON OR BEFORE MAY 25, 2007. MOTIONS IN LIMINE ARE TO BE FILED BY MAY 29 AND RESPONDED TO BY JUNE 1, 2007.. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 03/29/07. 04/02/07 ENTERED AND COPIES MAILED AND FAXED.(ac, ) Additional attachment(s) added on 7/9/2007 (ac, ). (Entered: 04/02/2007)
44 ORDER THAT THE LETTER TO JUDGE ROBRENO FROM ELIZABETH J. STEVENS, ESQUIRE, DATED 04/10/07, IS TO BE FILED OF RECORD (LETTER ATTACHED). SIGNED BY JUDGE EDUARDO C. ROBRENO ON 04/12/07. 04/13/07 ENTERED AND COPIES MAILED AND FAXED.(ac, ) Additional attachment(s) added on 5/25/2007 (le, ). (Entered: 04/13/2007)
45 ORDER THAT THE LETTER TO JUDGE ROBRENO FROM THOMAS B. ROBERTS, ESQUIRE, DATED 04/11/07 IS TO BE FILED OF RECORD. (LETTER ATTACHED). SIGNED BY JUDGE EDUARDO C. ROBRENO ON 04/12/07. 04/13/07 ENTERED AND COPIES MAILED AND FAXED.(ac, ) Additional attachment(s) added on 5/25/2007 (le, ). (Entered: 04/13/2007)
46 ORDER THAT DEFENDANTS' REQUEST TO CORRECT AND/OR AMEND THE MEMORANDUM AND ORDER DATED MARCH 29, 2007 IS GRANTED IN PART AND DENIED IN PART, ETC. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 04/16/07. 04/18/07 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 04/18/2007)

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 18 of 21

05/03/2007 05/04/2007
05/09/2007 05/10/2007 05/11/2007
05/11/2007
05/11/2007 05/14/2007 05/17/2007

47 ORDER THAT A STATUS AND SCHEDULING CONFERENCE IS SCHEDULED FOR THURSDAY, MAY 10, 2007 AT 2:00 P.M. IN COURTROOM 11A. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 05/03/07. 05/03/07 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 05/03/2007)
48 PLAINTIFFS' MOTION TO COMPEL DEFENDANTS THE DIRECTOR OF USCIS AND THE SECRETARY OF HOMELAND SECURITY TO PRODUCE DOCUMENTS FILED BY MASHAALAH, MARY AMREZAEI ALIAGHAEI, LIDIYA BURTSEVA, NELLI OLEVSKAYA, ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, SARA BACHMAN, FERIDE MANDIJA, MOISEY BACKMAN, JOE BEOPLUE, SONYUNOR BEOPLUE, GLAYON BLOUE, IZAAK ROZENBLIT, SEMEN SAVRANSKIY, LYUDMILA SHIROKAYA, IGOR STEPANOV, YEVGENIYA STRIZHEVSKAYA, ROUZBEH ALIAGHAEI,MEMORANDUM, CERTIFICATE OF SERVICE.(ac, ) (Entered: 05/07/2007)
49 RESPONSE in Opposition re 48 MOTION to Compel Defendants the Director of USCIS and the Secretary of Homeland Security to Produce Documents filed by MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA. (Attachments: # 1 Exhibit A# 2 Exhibit B)(STEVENS, ELIZABETH) (Entered: 05/09/2007)
50 Minute Entry for proceedings held before Judge EDUARDO C. ROBRENO : Status and Scheduling Conference held on 05/10/07. Court Reporter: ESR. (ac, ) (Entered: 05/11/2007)
51 STIPULATION AND SUPPLEMENTAL CONFIDENTIALITY ORDER THAT THE SUPPLEMENTAL CONFIDENTIALITY ORDER SHALL APPLY TO ALL INITIAL DISCLOSURES AND FUTURE DISCOVERY IN THIS ACTION, SUBJECT FO FURTHER STIPULATED AGREEMENTS BY THE PARTIES OR ORDERS BY THE COURT. CONDITIONALLY APPROVED SUBJECT TO COURT REVIEW OF DOCUMENTS DESIGNATED FOR COMPLIANCE WITH FED. R. CIVL. P. 26 (C). SIGNED BY JUDGE EDUARDO C. ROBRENO ON 05/10/07. 05/11/07 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 05/11/2007)
52 ORDER THAT THE HEARING ON PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION SHALL BE CONSOLIDATED WITH A FINAL DETERMINATION ON THE MERITS OF PLAINTIFFS' FIRST AMENDED COMPLAINT FOR DELCLARATORY, INJUNCTIVE AND MANDAMUS RELIFE. IT IS FURTHER ORDERED THAT PLAINTIFF SHALL FILE ANY MOTIONS TO COMPEL DISCOVERY AND DEFENDANTS SHALL FILE ANY MOTIONS FOR A PROTECTIVE ORDER BY MAY 25, 2007.PLAINTIFFS AND DEFENDANTS SHALL FILE THIER RESPECTIVE RESPONSES TO ANY SUCH MOTIONS BY JUNE 15, 2007. IT IS FURTHER ORDERED THAT A HEARING ON PLAINTIFFS' MOTION TO COMPEL DEFENDANTS, THE DIRCTOR OF CIS AND THE SECRETARY OF HOMELAND SECURITY TO PRODUCE DOCUMENTS AND ANY ADDITIONAL MOTION TO COMPEL OR MOTIONS FOR A PROTECTITVE ORDER IS SCHEDULED FOR FRIDAY, JUNE 29, 2007, AT 9:30 A.M., IN COURTROOM 11A MOTIONS DUE BY 5/25/2007.. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 05/10/07. 05/11/07 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 05/11/2007)
Set/Reset Deadlines as to 48 MOTION to Compel. MOTION HEARING SET FOR 6/29/2007 09:30 AM IN COURTROOM BEFORE HONORABLE EDUARDO C. ROBRENO. (ac, ) (Entered: 05/11/2007)
53 Certified Administrative Record for Defendant Robert S. Mueller, III, as Director of the Federal Bureau of Investigation, Certificate of Service. (3 Volumes) (ac, ) (Entered: 05/14/2007)
54 MOTION for Protective Order filed by MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA.Certificate of Counsel; Certificate of

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 19 of 21

05/25/2007
06/12/2007 06/15/2007 06/15/2007 06/22/2007 06/28/2007
07/20/2007 08/10/2007

Service.(STEVENS, ELIZABETH) (Entered: 05/17/2007)
55 Second MOTION to Compel Defendants the Director of USCIS, the Secretary of Homeland Security and the Director of the FBI to Answer Interrogatories and to Produce Documents filed by MASHAALAH, MARY AMREZAEI ALIAGHAEI, LIDIYA BURTSEVA, NELLI OLEVSKAYA, ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, SARA BACHMAN, FERIDE MANDIJA, MOISEY BACKMAN, JOE BEOPLUE, SONYUNOR BEOPLUE, GLAYON BLOUE, IZAAK ROZENBLIT, SEMEN SAVRANSKIY, LYUDMILA SHIROKAYA, IGOR STEPANOV, YEVGENIYA STRIZHEVSKAYA, ROUZBEH ALIAGHAEI.Memorandum of Law and Certificate of Service. (Attachments: # 1 Exhibit P−U# 2 Exhibit V − CC# 3 Exhibit DD − Part 1 of 2# 4 Exhibit DD − Part 2 of 2# 5 Exhibit EE − GG)(GREENWALD, JORDANA) (Entered: 05/25/2007)
56 Supplemental MOTION for Protective Order filed by MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA.Certificate of Counsel, Certificate of Service, Exhibit A, Exhibit B.(STEVENS, ELIZABETH) (Entered: 06/12/2007)
57 Memorandum in Opposition re 56 Supplemental MOTION for Protective Order, 54 MOTION for Protective Order filed by SHMUL KAPLAN, Certificate of Service. (ROBERTS, THOMAS) Modified on 6/20/2007 (fh) (Entered: 06/15/2007)
58 RESPONSE in Opposition re 55 Second MOTION to Compel Defendants the Director of USCIS, the Secretary of Homeland Security and the Director of the FBI to Answer Interrogatories and to Produce Documents, 48 MOTION to Compel filed by MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(STEVENS, ELIZABETH) (Entered: 06/15/2007)
59 ORDER THAT THE HEARING SCHEDULED ON JUNE 29, 2007, IS CANCELLED UNTIL FURTHER ORDER OF THE COURT. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 06/22/07. 06/22/07 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 06/22/2007)
60 REPLY to Response to Motion re 55 Second MOTION to Compel Defendants the Director of USCIS, the Secretary of Homeland Security and the Director of the FBI to Answer Interrogatories and to Produce Documents, 48 MOTION to Compel Answers to Interrogatories and Production of Documents filed by MASHAALAH, MARY AMREZAEI ALIAGHAEI, LIDIYA BURTSEVA, NELLI OLEVSKAYA, ESHETU MERI, SHMUL KAPLAN, TASIM MANDIJA, SARA BACHMAN, FERIDE MANDIJA, MOISEY BACKMAN, JOE BEOPLUE, SONYUNOR BEOPLUE, GLAYON BLOUE, IZAAK ROZENBLIT, SEMEN SAVRANSKIY, LYUDMILA SHIROKAYA, IGOR STEPANOV, YEVGENIYA STRIZHEVSKAYA, ROUZBEH ALIAGHAEI. (GREENWALD, JORDANA) (Entered: 06/28/2007)
61 ORDER THAT MOTION FOR PRELIMINARY INJUNCTION AND MOTION TO CERTIFY CLASS AND FOR APPOINTMENT OF CLASS COUNSEL ARE DENIED WITHOUT PREJUDICE.. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 7/19/2007.7/20/2007 ENTERED AND COPIES MAILED AND E−MAILED.(ap, ) (Entered: 07/23/2007)
62 ORDER THAT PLAINTIFFS' MOTION TO COMPEL DEFENDANTS THE DIRECTOR OF USCIS AND THE SECRETARY OF HOMELAND SECURITY TO PRODUCE DOCUMENTS, DEFENDANTS' MOTION FOR A PROTECTIVE ORDER, AND PLAINTIFFS' SECOND MOTION TO COMPEL DEFENDANTS THE DIRECTOR OF USCIS, THE SECRETARY OF HOMELAND SECURITY AND THE DIRECTOR OF THE FBI TO ANSWER INTERROGATORIES AND TO PRODUCE DOCUMENTS ARE DENIED WITHOUT PREJUDICE. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 08/09/07.08/10/07 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 08/10/2007)

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 20 of 21

09/06/2007 09/21/2007 10/03/2007
11/02/2007 11/30/2007 12/05/2007 12/06/2007 12/12/2007 01/04/2008
01/04/2008
01/08/2008 01/18/2008

63 ORDER THAT THE PARTIES SHALL SUBMIT A JOINT WRITTEN STATUS REPORT TO THE HONORABLE EDUARDO C. ROBRENO AND THE UNDERSIGNED ON OR BEFORE SEPTEMBER 28, 2007. SIGNED BY JUDGE THOMAS J. RUETER ON 09/06/07. 09/06/07 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 09/06/2007)
64 ORDER THAT DEFENDANTS' SUPPLEMENTAL MOTION FOR A PROTECTIVE ORDER IS HEREBY DENIED WITHOUT PREJUDICE. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 09/21/07.09/24/07 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 09/24/2007)
65 ORDER THAT THE PARTIES SHALL SUBMIT A JOINT WRITTEN STATUS REPORT TO MAGISTRATE JUDGE THOMAS R. RUETER AND THE UNDERSIGNED ON OR BEFORE THURSDAY, NOVEMBER 1, 2007. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 10/02/07. 10/03/07 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 10/03/2007)
66 ORDER THAT A TELEPHONE STATUS AND SCHEDULING CONFERENCE IS SET FOR 11/14/2007 04:00 PM BEFORE HONORABLE EDUARDO C. ROBRENO. SIGNED BY JUDGE EDUARDO C. ROBRENO ON 11/2/07. 11/2/07 ENTERED AND COPIES E−MAILED.(stb, ) (Entered: 11/02/2007)
67 Minute Entry for proceedings held before Judge THOMAS J. RUETER : Telephone Conference held on 11/30/07. (ac, ) (Entered: 11/30/2007)
68 Minute Entry for proceedings held before MAGISTRATE JUDGE THOMAS J. RUETER: Telephone Conference held on 12/05/07. (ac, ) (Entered: 12/05/2007)
69 ORDER THAT THERE WILL BE A TELEPHONE STATUS AND SCHEDULING CONFERENCE ON TUESDAY, DECEMBER 18, 2007,A T 3:00 P.M. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 12/05/07. 12/06/07 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 12/06/2007)
70 ORDER THAT THE TELEPHONE CONFERENCE PREVIOUSLY SCHEDULED ON DECEMBER 18, 2007, IS RESCHEDULED ON DECEMBER 13, 2007, AT 9:30 A.M. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 12/12/07. 12/12/07 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 12/12/2007)
71 Joint MOTION for Approval (Preliminary) of Settlement Agreement and Approval of Notice to Class Members of Proposed Settlement filed by MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA.. (Attachments: # 1 Attachment A: Stipulation, # 2 Stipulation Exhibit A, # 3 Stipulation Exhibit B, # 4 Stipulation Exhibit C, # 5 attachment B to Joint Motion)(STEVENS, ELIZABETH) (Entered: 01/04/2008)
72 NOTICE by MICHAEL CHERTOFF, ALBERTO GONZALES, EMILIO T. GONZALEZ, ROBERT S. MUELLER, III, JO ANNE B. BARNHART, DONALD MONICA re 71 Joint MOTION for Approval (Preliminary) of Settlement Agreement and Approval of Notice to Class Members of Proposed SettlementJoint MOTION for Approval (Preliminary) of Settlement Agreement and Approval of Notice to Class Members of Proposed Settlement Certificate of Service (STEVENS, ELIZABETH) (Entered: 01/04/2008)
73 ORDER THAT THERE WILL BE A HEARING ON THE JOINT MOTION FOR PRELIMINARY APPROVAL OF THE SETTLEMENT AGREEMENT AND APPROVAL OF NOTICE TO CLASS MEMBERS ON 1/18/08 AT 10:30 A.M.; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/7/08. 1/8/08 ENTERED AND COPIES MAILED, E−MAILED.(jl, ) (Entered: 01/08/2008)
74 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO: Motion Hearing in re: Joint Motion for Approval held on 1/18/08. (stb, ) (Entered: 01/18/2008)

Case: 2:06-cv-5304 As of: 02/19/2013 11:33 PM EST 21 of 21

01/18/2008 01/23/2008 01/24/2008
01/29/2008 02/29/2008 03/05/2008

75 PARTIAL AGENDA FOR HEARING ON PRELIMINARY APPROVAL OF THE PROPOSED SETTLEMENT WITH COURT APPROVAL. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 01/17/08. 01/22/08 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 01/22/2008)
76 Transcript of Hearing held on 01/18/08 before Judge Robreno. Court Reporter: ESR. (ac, ) (Entered: 01/23/2008)
77 MEMORANDUM AND ORDER THAT THE JOINT MOTION FOR PRELIMINARY APPROVAL OF THE PROPOSED SETTLEMENT AND APPROVAL OF NOTICE TO THE CLASS MEMBERS IS HEREBY GRANTED. IT IS FURTHER ORDERED THAT THERE WILL BE A HEARING TO CONSIDER WHETHER THE PROPOSED SETTLEMENT SHOULD RECRIVE FINAL APPROVAL UNDER FEDERAL RULE OF CIVIL PROCEDURE 23(e) ON FRIDAY, FEBRUARY 29, 2008, AT 10:30 A.M. IN COURTROOM 11A. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 01/24/08. 01/25/08 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 01/25/2008)
78 ORDER THAT THE HEARING THAT WAS PREVIOUSLY SCHEDULED FOR FEBRUARY 29, 2008, AT 10:30 A.M. IS RESCHEDULED FOR FRIDAY, FEBRUARY 29, 2008, AT 2:00 P.M.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 01/28/08. 01/29/08 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 01/29/2008)
79 Minute Entry for proceedings held before HONORABLE EDUARDO C. ROBRENO: Final Approval of Settlement Hearing held on 02/29/08. (ac, ) (Entered: 03/03/2008)
80 ORDER THAT THE PROPOSED SETTLEMENT AGREEMENT (ATTACHED AS EXHIBIT A) IS APPROVED. IT IS FURTHER ORDERED THAT THE CASE IS DISMISSED WITH PREJUDICE. THE COURT SHALL RETAIN JURISDICTION OVER THIS MATTER FOR PURPOSES OF ENFORCING THE SETTLEMENT. THE CLERK OF THE COURT SHALL MARK THIS CASE AS CLOSED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 03/05/08. (Attachments: # 1 Stipulation) 03/05/08 ENTERED AND COPIES MAILED AND E−MAILED.(ac, ) (Entered: 03/05/2008)