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1 DAVID BLAIR-LOY (CSB #229235) ACLU Foundation of San Diego & Imperial Counties
2 P.O. BOX 87131 San Diego, CA 92138-7131
3 Telephone: 619.232.2121 ext. 23

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07 AUG 22 Pi'l 3: 56-

4 CECILLIA D. WANG (CSB #187782) American Civil Liberties Union Foundation
5 Immigrants' Rights Project 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415)'343-0775
7 Facsimile: (415) 395-0950

8 NANCY O. DIX (CSB #129150) MIKE TRACY (CSB #101456)
9 DLA PIPER US LLP 401 B Street, Suite 1700
10 San Diego, CA 92101-4297 Tel: 619.699.2700
11 Fax: 619.699.2701

12 Attorneys for Petitioners
13

14

UNITED STATES DISTRICT COURT

15

SOUTHERN DISTRICT OF CALIFORNIA

7.~.__ BEN .- ~J 16 .

SAN DIEGO DIVISION , , ' t i l l > .\

17 DANIEL TARTAKOVSKY, MOHAMMAD

CASENQ! CV 166

1

HASHIM NASEEM, ZAHRA JAMSHIDI,

18 MEHDI HORMOZAN,

COMPLAINT FOR DECLARATORY

19

Plainti~fs-Petitioners,

AND INJUNCTIVE RELIEF AND PETITION FOR NATURALIZATION

20

v.

PURSUANT TO 8 U.S.C. § 1447(B)

21

PAUL M. PIERRE, District Director, U.S. Department of Homeland Security, Bureau of

CLASS ACTION

22

Citizenship and Immigration Services, San Diego District; EMILIO T. GONZALEZ, Director, U.S.

23

Department of Homeland Security, Bureau of Citizenship and Immigration Services; MICHAEL

24

CHERTOFF, Secretary of Homeland Security; ROBERT S. MUELLER III, Director of the

25

Federal Bureau ofInvestigation; ALBERTO GONZALES, Attorney General of the United

26 States,

Defendants-Respondents. 27

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INTRODUCTION 1. Plaintiffs-Petitioners, Daniel Tartakovsky, Mohammad Hashim Naseem, lahra Jamshidi, and Mehdi Hormozan (referred to collectively as Plaintiffs), respectfully submit this Complaint for Declaratory and Injunctive Relief and Petition for Naturalization pursuant to 8 U.S.C. § 1447(b). A motion for class certification will be filed in due course. 2. Plaintiffs are all long-time lawful permanent residents of the United States. Having met all statutory requirements each of them has sought to become a citizen of this country by applying for naturalization, . However, despite successfully undergoing their naturalization interviews and clearing criminal background checks more than two or three years ago, none of the Plaintiffs has received an adjudication from the U.S. Bureau of Citizenship and Immigration Services ("CIS") because a so-called "FBI name check" for each remains pending. 3. Defendants-Respondents (referred to collectively as Defendants) are officers of . CIS, the Federal Bureau ofInvestigation ("FBI") and the Attorney General of the United States and are responsible for the naturalization process, including the FBI name check, which CIS requires for naturalization despite the absence of any promulgated rule or regulation requiring it. 4. Each Plaintiff therefore seeks to be naturalized by this Court, as Congress has authorized through the Immigration and Nationality Act. See 8 U.S.C. § 1447(b) (district court may make a determination of a naturalization application if there has been no adjudication within 120 days of an initial examination - i.e., the applicant's naturalization interview.) See United States v. Hovsepian, 359 FJd 1144, 1151 (9th Cir. 2004) (en bane). 5. In failing to adjudicate the Plaintiffs' naturalization applications, Defendant officers of CIS have violated CIS regulations requiring that such applications be adjudicated within 120 days of the initial examination. 8 C.F.R. § 335. 6. In addition, Defendant officers of both CIS and the Federal Bureau of Investigation ("FBI") have engaged in unreasonable and extraordinary delay in adjudicating Plaintiffs' naturalization applications, in violation of the Administrative Procedures Act, 5 U.S.C. §§ 555: 706, and the Due Process Clause. IIIII
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7. Defendants' rationale for the unreasonable delays - that the delays are required to

2 complete "FBI name checks" - highlights an independent violation of the Administrative

3 Procedures Act: Defendants' failure to follow the notice and comment requirements of 5 U.S.C.

4 § 553. CIS has promulgated no regulations concerning a "name check," but nonetheless has

5 imposed the FBI name check as a requirement for five years - without any deadlines for

6 completion of the checks. In contrast, immigration regulations do provide for criminal records

7 checks based on Plaintiffs' fingerprints and biographical data. 8 U.S.C. § 335.2(b). Each of the

8 Plaintiffs has passed those specific background checks. Because Defendants' addition of the FBI

9 name check constituted a substantive rule and causes undue burden and prejudice to Plaintiffs and

10 other members of the proposed class, the public should have been provided notice and an

11 opportunity to comment prior to its implementation.

12

8. The CIS Ombudsman has questioned the name check process; On June 11, 2007,

13 the Ombudsman issued his 2007 Annual Report, which singled out name checks as a significant

14 problem, stating, "FBI name checks, one of the security screening tools used by USCIS, continue

15 to significantly delay adjudication of immigration benefits for many customers, hinder backlog

16 reduction efforts, and may not achieve their intended national security objectives. FBI name

17 checks may be the single biggest obstacle to the timely and efficient delivery of immigration

18 benefits, and the problem of long-pending FBI name check cases worsened during the reporting

19 period."

20

9. The Ombudsman further noted, "Unlike FBI name checks, other types of

21 background and security checks - e.g., fingerprint checks, the Interagency Border Inspection

22 Systems name checks (IBIS), and the Automated Biometric Identification System (IDENT)

23 checks - return results within a few days, if not a few minutes. These law enforcement and watch

24 list checks do not significantly prolong USCIS processing times or contribute to the USCIS

25 backlog."

26

10. This CIS Ombudsman reports that FBI name checks cover not only a "principal

27 subject of an investigation," but also any "person referenced in a file," such as a crime victim,

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witness, or other person innocent of any wrongdoing. "Name checks are not conducted by the

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FBI as part of ongoing investigations or from a need to learn more about an individual because of

2 any threat or risk perceived by the FBI:"

3

11. According to the Ombudsman, "Completion of the name check process may take

4 considerable time because manual reviews of FBI files are sometimes required. This review may

5 include FBI reporting on fragments of names of people who are not necessarily central or directly

6 related to an investigation or law enforcement matter.... The delay caused by the FBI name check

7 has substantial consequences to applicants and their families, as well as to our country and the

8 economy."

9

12. The 2007 Annual Report further states, "The Ombudsman agrees with the

10 assessment of many case workers and supervisors at USCIS field offices and service centers that

11 the FBI name check process has limited value to public safety or national security, especially

12 because in almost every case the applicant is in the United States during the name check process,

13 living or working without restriction.... USCIS maintains that the name check process is of value,

14 but it remains unclear whether the process has added any additional value over the security,

15 processes already in place."

16

13. The Ombudsman recommends, "Considering the protection the FBI name check

17 provides, the cost of government resources used, and mental and actual hardships to applicants

18 and their families, USCIS should reassess the continuation of its policy to require FBI name

19 checks in their current form."

20

14. Plaintiffs all have spent many years in the United States and have made this Nation

21 their home. They seek to' pledge their allegiance to their adopted country and to participate fully

22 in U.S. society as citizens. Each of the Plaintiffs has met the statutory requirements to become a

23 U.S. citizen, and have sought relief through requests to representatives in Congress and through

24 formal inquiries with the government. Nonetheless, each of the Plaintiffs has been stymied in his

25 or her efforts by the unreasonable and extraordinary delay of the Defendants.

26

15. Defendants' failure to abide by the law is inconsistent with properly promulgated

27 regulations and wit~ the statutes passed by Congress. As a result, Plaintiffs are unable to

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1 sponsor for lawful permanent residency immediate relatives living abroad including, in some

2 cases, their parents, spouses and children. Plaintiffs also are unable to participate freely as U.S.

3 citizens in the yisa Waiver Program and to travel abroad and return to the United States without

4 fear of exclusion.

5

16. Plaintiffs seek not only their own naturalization through 8 U.S.C. § 1447(b), but

6 also seek declaratory and injunctive relief as representatives of a class of other individuals who

7 have satisfied all statutory requirements for naturalization and are suffering similar unreasonable

8 delays of over 120 days since their naturalization interviews. Plaintiffs ask the Court to declare

9 that the Defendants are violating the due process rights of the Plaintiffs, as well as the

10 . Administrative Procedures Act and the immigration laws and regulations, in failing to complete

11 all background checks necessary for adjudication of Plaintiffs' naturalization applications within

12 120 days of their interviews.

13

JURISDICTION AND VENUE

14

17. The Court has subject matter jurisdiction over this case pursuant to 8 U.S.C.

15 § 1447(b) (district court jurisdiction to adjudicate delayed naturalization applications) and

16 28 U.S.C. § 1331 (federal question). The court may grant declaratory judgment under 28 U.S.C.

17 §§ 2201, 2202 and Fed. R. Civ. P. 57. The Court may grant injunctive relief under Fed. R. Civ. P.

18 65.

19

18. Venue is proper in the Southern District of California pursuant to 28 U.S.C.

20 § 1391(e). Plaintiffs sue the Defendants in their official capacities as officers and employees of

21 the United States. A substantial portion of the events giving rise to this Complaint occurred

22 within this District, where the Plaintiffs' applications for naturalization are pending before the

23 San Diego District of the CIS. In addition, venue is proper in this District pursuant to 8 U.S.C.

24 § 1447(b), which provides that a petition for de novo review of a naturalization application shall

25 be filed in the district in which the applicant resides. All of the Plaintiffs live withinthis District.

26

PARTIES

27

19. Plaintiff Daniel Tartakovsky is a native and citizen of Russia. He is a lawful

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permanent resident of the United States and lives in San Diego, California. He applied for -5-
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1 naturalization with CIS on November 4,2002 and passed his naturalization examination on June

2 4, 2003. His naturalization application has not been adjudicated.

3

20. Plaintiff Mohammad Naseem is a native and citizen ofIraq. He is a lawful

4 permanent resident of the United States and lives in EI Cajon, California. He applied for

5 naturalization with CIS on August 23,2004 and passed his naturalization examination on March

6 15,2005. His naturalization application has not been adjudicated.

7

21. Plaintiff Zahra Jamshidi is a native and citizen of Iran. She is a lawful permanent

8 resident of the United States and resides in San Diego, California. She applied for naturalization

9 with CIS on May 1, 2003 and passed her naturalization examination on February 2, 2004. Her

10 naturalization application has not been adjudicated.

11

22. Plaintiff Mehdi Hormozan is a native and citizen of Iran. He is a lawful permanent

12 resident of the United States, and resides in San Diego, California. He applied for naturalization

13 with CIS on October 2,2002 and passed his naturalization examination on September 4,2003.

14 His naturalization application has not been adjudicated.

15

23. Respondent Michael Chertoffis the Secretary of Homeland Security, which

16 encompasses CIS. Mr. Chertoff is ultimately responsible for the administration of all

17 immigration and naturalization laws, including the processing and determination of applications

18 for naturalization. He is sued in his official capacity.

19

24. Respondent Robert S. Mueller, III is the Director of the Federal Bureau of

20 Investigation. Mr. Mueller is ultimately responsible for the processing of "name checks"

21 submitted by ~IS to the FBI during the naturalization process. Mr. Mueller is sued in his official

22 capacity.

23

25. Respondent Alberto Gonzales is the Attorney General of the United States. He is

24 the head of the U.S. Department of Justice, which encompasses the FBI. Mr. Gonzales is also

25 jointly responsible with Mr. Chertoff for enforcement of immigration laws. Mr. Gonzales is sued

26 in his official capacity.

27

26. Respondent Emilio T. Gonzalez is the Director of the Bureau of Citizenship and

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Immigrations Services, and is responsible for the implementation of immigration and -6-
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naturalization laws, including the processing and determination of applications for naturalization.

2 He is sued in his official capacity.

3

27. Respondent Paul M. Pierre is the District Director of the Bureau of Citizenship and

4 Immigration Services, San Diego District, is also responsible for the implementation of

5 immigration and naturalization laws, including the processing and determination of applications

6 for naturalization. He is sued in his official capacity.

7

LEGAL FRAMEWORK

8

28. Federal immigration law allows persons who have been residing in the United

9 States as lawful permanent residents to become United States citizens through a process known as

10 naturalization.

11

29. A person seeking to naturalize must meet certain requirements, including an

12 understanding of the English language and history and civics of the United States; a sufficient

13 period of lawful permanent resident status and physical presence in the United States; and good

14 moral character. 8 U.S.C. §§ 1423, 1427(a).

15

30. Persons seeking to naturalize must submit an application for naturalization to CIS.

16 8 U.S.C. § 1445. CIS is the agency that is responsible for adj':ldicating naturalization

17 applications. 8 C.F.R. § 100.2.

18

31. Once an application is submitted, CIS conducts a background investigation of each

19 naturalization applicant. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1.

20

32. According to CIS regulations, the background investigation includes a full

21 criminal background check performed by the FBI. 8 C.F.R. § 335.2. After the background

22 investigation is completed, CIS schedules a naturalization examination, at which an applicant

23 meets with a CIS examiner who is authorized to ask questions and take testimony. The CIS

24 ·examiner must determine whether to grant or deny the naturalization application. 8 U.S.C.

25 § 1446(d).

26

33. CIS must grant a naturalization application if the applicant has complied with all

27 requirements for naturalization. 8 C.F.R. § 335.3. Naturalization isnot a discretionary benefit,

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34. CIS must grant or deny a naturalization application at the time of the examination

2 or, at the latest, within 120 days after the date of the examination. 8 C.F.R. § 335.3. Once an

3 application is granted, the applicant is sworn in as a United States citizen.

4

35. In general, Congress has provided that applications for immigration benefits

5 should be adjudicated within 180 days of the initial filing of the application. 8 U.S.C. § 1571.

6 The President has also expressed that view. See Remarks by the President at INS Naturalization

7 Ceremony (July 10,2001), available at http://www.whitehollse.gov/news/releases

8 12001107/print/200 1071 0-I.html (urging immigration agencies to adopt standard of six-month

9 processing time for applications for immigration benefits).

10

36. Plaintiffs are infonned and believe that in 2002, CIS drastically expanded the

11 scope of one type of background check known as.an "FBI name check." A "name check" is a

12 check of FBI records based on the name of the applicant. The FBI conducts the "name check"

13 through manual and electronic searches of the FBI's centralized records. CIS requests the FBI to

14 . conduct "name checks" on all applications for naturalization.

15

37. Plaintiffs are informed and believe that the FBI name check requirement is

16 implemented in such a manner that it is highly likely that an applicant may be identified

17 erroneously as a person "of interest" to the FBI, thereby delaying adjudication of the

18 naturalization application, even though the applicant has committed no crimes and has never been

19 a suspect in any investigation. For example, the name check may identify a different person with

20 a name similar to the applicant's, or result in a "hit" when the applicanCs name is mentioned in

21 FBI records because he has been an innocent witness or victim of a crime, has undergone

22 employment-related security clearances in the past, or has assisted the FBI in its work.

23

38. Plaintiffs are infonned and believe that CIS does not adjudicate applications for

24 naturalization until it receives a completed "name check" from the FBI. CIS has not promulgated

25 any regulations setting forth the "name check" as a prerequisite for naturalization. Neither CIS

26 nor the FBI imposes any time limits for completion of"name checks." The FBI claims that CIS

27 detennines the order of resolution of the requested "name checks," and CIS claims that it cannot

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39. Plaintiffs are informed and believe that in April 2006, CIS implemented a new

2 .policy or practice of delaying naturalization examinations until after the "name check" is

3 completed. Thus, for certain applicants for naturalization, lengthy delays in adjudication now

4 occur prior to the examination, rather than after the examination. The April 2006 policy change

5 has resulted in delayed scheduling of the naturalization examination for tens of thousands of

6 applicants. CIS's expressed purpose for the policy change was to discourage litigation under 8

7 U.S.C. § 1447(b).

8

40. When CIS fails to adjudicate a naturalization application within 120 days of the

9 examination, the applicant may seek de novo review of the application by a district court.

10 8 U.S.C. § 1447(b). When the applicant requests district court review, the district court gains

11 exclusive jurisdiction over the application, United States v. Hovsepian, 359 F.3d 1144 (9th Cir.

12 2004), and it rna)' naturaJize the applicant. 8 U.S.C. § 1447(b).

13

FACTS

14

Plaintiffs

15

41. . Daniel Tartakovsky is a native and citizen of Russia. He entered the United States

16 in August 1993 on an F-l student visa to pursue doctoral studies in hydrology at the University of

17 Arizona. Upon completing his Ph.D., Dr. Tartakovsky worked at Los Alamos National

18 Laboratory (LANL) in New Mexico in a post-doctoral position, then as a technical staff member,

19 and more recently as a Team Leader. Dr. Tartakovsky has been a lawful permanent resident of·

20 the United States since January 2000 and is married to a native-born citizen of the United States.

21 Dr. Tartakovsky is currently on leave of absence from LANL. He presently works at the

22 University of California, San Diego as a tenured professor in the mechanical and aerospace

23 engineering department. Dr. Tartakovsky lives in San Diego, California with his wife and

24 daughter. ,

25

42. Dr. Tartakovsky submitted his naturalization application on November 4, 2002.

26 On June 4, 2003, Dr. Tartakovsky was interviewed by CIS and informed that he had successfully

27 completed his naturalization interview.

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1

. 43. Dr. Tartakovsky meets all statutory requirements for naturalization. He has been

2 waiting over four years since his interview, and has yet to receive an adjudication of his .

3 application. In October 200S and October 2006, Dr. Tartakovsky contacted the CIS Ombudsman,

4 Mr. Prakash Kharti. He received two separate letters indicating the FBI name check remains

S pending.

6

44. Because he is not a United States citizen, Dr. Tartakovsky's job opportunities and

7 ability to apply for certain grants and conduct research in certain areas are limited. He also has

8 been unable to petition for his aging parents, who live in Russia, to become lawful permanent

9 residents of the United States. See 8 U.S.C. § IISI (b)(2)(A)(i) (providing that children, spouses,

10 and parents of U.S. citizens are not subject to worldwide limitations on numbers of visas issued);

11 8 U.S.C. § IIS3(a) (setting forth preferences for issuance of visas to unmarried sons or daughters

·12 of U.S. citizens, spouses and unmarried sons or daughters of lawful permanent residents, married

13 sons and daughters of U.S. citizens, and brothers or sisters of U.S. citizens, in that order).

14

4S. Dr. Tartakovsky's work requires him to travel abroad for professional conferences

IS and research exchanges. Without a United States passport, it is significantly more difficult for

16 him to travel to various countries, due to visa requirements.

17

46. Mohammad Hashim Naseem is a native and citizen of Iraq. He is of Kurdish

18 descent. Mr. Naseem, along with his wife and four daughters, were sponsored by the World

19 Relief Organization. They entered the United States in 1996 after being granted asylum by the

20 U.S. government. Mr. Naseem and his family currently live in EI Cajon, California.

21

47. After participating as a security guard at a military airport as part of the U.S.-

22 . sponsored Operation Provide Comfort to establish a safe zone in the Kurdish region of Iraq in

23 , 1990, Mr. Naseem was given the opportunity to relocate. He and his wife and four daughters

24 came to the United States after spending three months at Camp Haven in Guam, where they

2S passed iriterviews and physical examinations conducted by U.S. Immigration Officers.

26

48. On August 23,2004, Mr. Naseem applied/or citizenship. He successfully

27 completed his naturalization interview on March IS, 200S. At the end of the interview, the CIS

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1 remained pending. A further inquiry by Mr. Naseem in October 2006 reflected no change in

2 status. Mr. Naseem's wife has also applied for naturalization, successfully completed her

3 interview, and has been waiting for her FBI name check to clear.. Mr. Naseem meets all statutory
I'
4 requi~ements for naturalization. Nonetheless, his application has not been adjudicated.

5

49. Mr. Naseem and his family have suffered harm from the delay of his

6 naturalization. All four daughters are lawful permanent residents. His oldest daughter will tum

7 18 next year. If Mr. Naseem is not naturalized before his daughter's eighteenth birthday, she will

8 lose the opportunity to obtain automatic derivative citizenship along with her father. 8 U.S.C. §

9 1431.

10

50. Zahra Jamshidi is a native and citizen of Iran. She has been a lawful permanent

11 resident of the United States since July 23, 1998, after arriving in the United States as a refugee

12 with her husband and children, who were also born in Iran.

13

51. She filed her naturalization application on May 1, 2003. She was interviewed by

14 CIS on February 2, 2004 and informed that she successfully passed her naturalization

15 examination. She meets all statutory requirements for naturalization.

16

52. Ms. Jamshidi's husband applied for naturalization and was interviewed by CIS on

17 or about the same date as Ms. Jamshidi. Her husband's application was approved, and he became

18 a naturalized citizen of the United States shortly after his interview. Her children are also

19 naturalized citizens of the United States.

20

53. Without a United States passport, Ms. Jamshidi has been unable to travel to visit

21 her parents, who remained in Iran. Her parents were unable to travel far from Iran but could have

22 traveled to a nearby third country, such as Turkey or Dubai, to visit Ms. Jamshidi. But without a

23 United States passport, Ms. Jamshidi is unable to travel to those countries.

24

54. While her naturalization application has been pending, Ms. Jamshidi's father died

25 on July 23,2005 without having seen her in over 15 years. Ms. Jamshidi's. mother is currently 78

26 years old. However, until her naturalization application is approved, Ms. Jamshidi is unable to

27 travel to a third country to visit her mother.

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55. Mehdi Hormozan is a native and .citizen ofIran. Before coming to the United

2 States, Mr. Hormozan worked for the Iranian Air Force as a doctor and also maintained a private

3 practice. Mr. Hormozan became a lawful permanent resident of the United States on June 28,

4 1994. He is married to a naturalized United States citizen and has two sons, one of whom is a

5 United States citizen and one of whom is a lawful permanent resident who has applied for

6 naturalization.

7

56. Mr. Hormozan filed his naturalization application on October 2,2002. He was

8

interviewed

by

CIS

on

September

4,

2003(

and

was

told

he

successfully .

passed

his

naturalization

9 examination. He meets all statutory requirements for naturalization.

10

57. All Plaintiffs have been informed that their naturalization applications remain

11 pending and cannot be decided due to uncompleted "security checks" or "name checks."

12

58. All Plaintiffs have suffered and continue to suffer prejudice from the delay ~ftheir

13 naturalizations. They have been and continue to be deprived of the substantial and unique rights

14 and duties of U.S. citizenship, including the right to vote, the right to obtain a U.S. passport, the

15 right to travel freely, and the right to receive certain governmental and non-governmental

16 benefits.

17

DEFENDANTS' POLICIES AND PRACTICES

18

59. Plaintiffs are informed and'believe that Defendants Pierre, Emilio Gonzalez and

19 Chertoff have a policy, pattern, and practice of failing to adjudicate the applications for

20 naturalization of the proposed plaintiff class within 120 days of the date of naturalization

21 examinations, because of years-long delays in the processing of "FBI name checks."

22

60. Plaintiffs are informed and believe that Defendants Pierre, Emilio Gonzalez and

23 Chertoffhave a policy, pattern, and practice of unlawfully withholding and unreasonably

24 delaying the adjudication of applications for naturalization of the proposed plaintiff class, because

25 of years-long delays in the processing of "FBI name checks."

26

61. Plaintiffs are informed and believe that Defendants Mueller and Alberto Gonzales

27 have a policy, pattern, and practice of unlawfully withholding and unreasonably delaying the

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1 completion of "name checks," with the full knowledge that CIS requires the completion of such
I
2 "name checks" for adjudication of applications for naturalization of the proposed plaintiff class.

3

62. Plaintiffs are informed and believe that Defendants have a policy, pattern and

4 practice of failing to set deadlines for completing ~'name checks" and taking all the other

5 reasonable steps necessary to complete the adjudication of applications for naturalization of the

6 proposed plaintiff class.

7

63. Plaintiffs are informed and believe that Defendants Pierre, Chertoff, Emilio

8 Gonzalez and Chertoffhave a policy, pattern and practice of requiring "name checks" for

9 adjudication of applications for naturalization of the proposed plaintiff class, despite the absence

10 of any statutory or regulatory authorization for such "name checks."

11

64. Plaintiffs are informed and believe that Defendants do not have or use any

12 mechanisms to identify the number and status of naturalization cases in which applicants satisfy

13 all eligibility criteria, have passed naturalization interviews, and are awaiting adjudication solely

14 on the basis of FBI name checks. In addition, USCIS and FBI do not have any policies or

15 practices in place to ensure timely final adjudication of those naturalization applications.

16

65. Plaintiffs are informed and believe that Defendants do not have or use any

17 mechanisms to track the number and status of naturalization cases in which applicants satisfy· all

18 eligibility criteria, have passed naturalization examinations, and are awaiting adjudication for

19 more than 120 days after their naturalization examinations. In addition, USCIS·and FBI do not

20 have any policies or practices in place to ensure final adjudication of those naturalization

21 applications.

22 .

66. Plaintiffs are informed and believe that Defendants Pierre, Gonzalez and Chertoff

23 implemented the requirement of FBI name checks for naturalization without giving notice to the

24 public and allowing a period for public comment. The Administrative Procedures Act requires

25 such notice and comment because the FBI name check requirement is a substantive change in

26 prior CIS policy and because the requirement has an adverse effect on individuals by causing a

27 delay in adjudication of their naturalization applications.

28
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IIIII
So\1751249.1

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Case 3:07-cv-01667-BEN-BLM Document 1 Filed 08/22/07 Page 14 of 24

1

67. As a result of the Defendants' policies, practices, actions and omissions, members

2 of the proposed plaintiff class have suffered injury, in that they have been unlawfully denied the

3 rights and benefits ofU;S. citizenship for at least two years or more.

4

CLASS ALLEGATIONS

5

68. Plaintiffs bring this action on behalf of themselves and all other persons similarly

6 situated pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). The class, as proposed

7 by Plaintiffs, consists of:

8

All persons residing within the Southern District of California who have

9 submitted or will submit applications for naturalization to CIS, and who have met all

10 statutory requirements for naturalization, and whose applications f~r naturalization are

11 not adjudicated within 120 days of the date of their initial examination.

12

69. The requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(2) are met

13 in that the class is so numerous that joinder of all members is impracticable. Counsel for

14 Plaintiffs are aware of numerous other proposed class members who are similarly situated to the

15 named Plaintiffs in this District alone. Counsel are aware of many others similarly situated

16 elsewhere in California. Plaintiffs are not aware of the exact numbers of putative class members

17 because Defendants' are in the best position to make that determination.

1'8

70. There are' questions of law and fact common to the proposed class that

19 predominate over any questions affecting only the individually named Plaintiff~, including:

20 (1) whether CIS's failure to adjudicate the applications for naturalization of the proposed plaintiff,

21 class within 120 days of the date of naturalization examinations, due to delays in "name checks,"

22 violates the Due Process Clause, the Immigration and Nationality Act and implementing

23 regulations and the Administrative Procedures Act; (2) whether CIS's imposition of a name check

24 requirement violates the notice and comment provision of the Administrative Procedures Act;

25 (3) whether the FBI's actions in unlawfully withholding and unreasonably delaying the

26' completion of "name checks," with the full knowledge that CIS requires the completion of such

27 "name checks" for adjudication of applications for naturalization of the proposed plaintiff class,

28
DLA PIPER US LLP
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violates the Constitution and laws of the United States, including the Administrative Procedures . -14-
So\1751249.1

Case 3:07-cv-01667-BEN-BLM Document 1 Filed 08/22/07 Page 15 of 24

Act; and (4) whether CIS and the FBI's failure to set deadlines for completing "name checks" and

2 failure to ta~e all the other reasonable steps necessary to complete the adjudication of applications

3 for naturalization of the proposed plaintiff class, violates the Constitution and laws of the United

4 States, including the Administrative Procedures Act.

5

71. The claims of the named Plaintiffs are typical of the claims ,of the proposed class.

6 The named Plaintiffs, like,all class members, have not had their applications for naturalization

7 adjudicated despite the passage of over 120 days since their naturalization examinations, and'they

8 have been denied timely completion of "name checks" which CIS requires for adjudication of

9 their applications; and their applications for naturalization have been unla~lly withheld or

10 unreasonably delayed on the basis of "name checks." .

11

72, Like the named Plaintiffs, members of the proposed class are suffering prejudice

12 from the delay of their naturalization applications, including the inability to participate in civic

l3 society by voting and jury service, the effective inability to sponsor immediate relatives for lawful

14 permanent resident status, the inability to travel freely as U.S. citizens, and the harm of having an"

15 uncertain status in the country they have made their home and where they have established

16 themselves as part of a community.

17

73. The named Plaintiffs will fairly and adequately represent the interests of all

18 members of the proposed class because they seek relief on behalf of the class as a whole and have

19 no interests antagonistic to other members of the class. The named Plaintiffs are represented by

20 pro bono counsel from the ACLU Immigrants' Rights Project, the ACLU Foundation of San

21 Diego & Imperial Counties, and DLA Piper US LLP, who have extensive expertise in class action

22 litigation and/or immigrants' rights cases. Finally, the Defendants have acted on grounds

23 generally applicable to the class, thereby making appropriate final injunctive relief with respect to

24 the class as a whole.

25

DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS

26

74. An actual and substantial controversy exists between' Plaintiffs and Defendants as

27 to their respective legal rights and duties. Plaintiffs contend that Defendants' actions violate

28
DLA PIPER US LLP
SAN DIF.GO

Plaintiffs' rights and the rights of proposed class members. Defendants contend the opposite. -15-
SD\17S1249,1

Case 3:07-cv-01667-BEN-BLM Document 1 Filed 08/22/07 Page 16 of 24

75. . Defendants' failure to timely process Plaintiffs' naturalization applications,

2 including any name check, has caused and will continue to cause irreparable injury to Plaintiffs

3 and other class members. Plaintiffs have no plain, speedy, and adequate remedy at law.

4

CAUSES OF ACTION

5

COUNT ONE

6

RIGHT TO DE NOVO JUDICIAL DETERMINATION OF APPLICATION

7

FOR NATURALIZATION

8

'. 8 U.S.C. § 1447(b)

9

[By the Named Plaintiffs Against Defendants Pierre, Gonzalez and Chertoff)

10

76. The allegations contained in paragraphs 1 through 75 above are repeated and

11 incorporated as though fully set forth herein.

12

77. Because Respondents have failed to adjudicate each named Plaintiffs

13 naturalization application within 120 days after the date of his naturalization examination, each

14 named Plaintiff is entitled to de novo adjudication of his naturalization application by this Court

15 under 8 U.S.C. § 1447(b).

16

78. This.Court should grant each named Plaintiffs naturalization application pursuant

17 to 8 U.S.C. § 1447(b), because each named Plaintiff meets all of the requirements for

18 naturalization under chapter 2 of the Immigration and Nationality Act, 8 U.S.C. § 1421 et seq.,

19 and therefore has a right to become a naturalized citizen of the United Stat~s.

20 .

COUNT TWO

21

UNREASONABLE DELAY

22

IN VIOLATION OF THE ADMINISTRATIVE PROCEDURES ACT

23

[By the Named Plaintiffs on Behalf of the Proposed Class Against All Defendants)

24

79. The allegations contained in paragraphs 1 through 78 above are repeated and .

25 incorporated as though fully set forth herein.

26

80. The Administrative Procedures Act requires administrative agencies to conclude

27 matters presented to them "within a reasonable time." 5 U.S.C. § 555. A district court reviewing

28
DLA PIPER US LLP
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agency action may "compel agency action unlawfully withheld or unreasonably delayed." -16-
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·e Case 3:07-cv-01667-BEN-BLM Document 1 Filed 08/22/07 Page 17 of 24

1 5 U.S.C. § 706(1). The court also may hold unlawful and set aside agency action that, inter alia,

2 is found to be: "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

3 law," 5 U.S.C. § 706(2)(A); "in excess of statutory jurisdiction, authority, or limitations, or short

4 of statutory right," 5 U.S.C. § 706(2)(C); or "without observance of procedure required by law,"

5 5 U.S.C. § 706(2)(D). "Agency action" includes, in relevant part, "an agency rule, order, license,

6 sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13).

7

81. The failure of Defendants Pierre, Emilio Gonzalez and Chertoff to adjudicate the

8 applications for naturalization of the proposed plaintiff class within 120 days of the date of

9 naturalization examinations on the basis of uncompleted "name checks," in violation of 8 U.S.C.

10 . § 1446(d) and 8 C.F.R. § 335, violates the Administrative Procedure Act, 5 U.S.C. § 555(b);

11 5 U.S.C. §§ 706(1), 706(2)(A), 706(2)(C), 706(2)(D).

12

82. The failure of Defendants Alberto Gonzales and Mueller to timely complete "name.

13 checks," with the full knowledge that CIS requires the completion of such "name checks" for

14 adjudication of applications for naturalization of the proposed plaintiff class, violates the

15 Administrative Procedure Act, 5 U.S.C. § 555(b); 5 U.S.C. §§ 706(1), 706(2)(A), 706(2)(C),
\
16 706(2)(D).

17

83. Defendants' failure to set deadlines for completing "name checks," to track the

18 number and status of nat~alization cases awaiting final adjudication solely on the basis of FBI

19 name checks, to track the number and status of naturalization cases awaiting final adjudication for

20 more than 120 days after the naturalization examinations, and to take all the other reasonable

21 steps necessary to complete the adjudication of applications for naturalization of the proposed

22 plaintiff class, in violation of 8 U.S.C. § 1446(d) and 8 C.F.R. § 335, violates the Administrative

23 Procedures Act, 5 U.S.C. § 555(b); 5 U.S.C. §§ 706(1), 706(2)(A), 706(2)(C), 706(2)(D).

24

84. As a result of Defendants' actions, Plaintiffs and members of the proposed class

25 have suffered and continue to suffer injury. Declaratory and injunctive relief are therefore

26 warranted.

27 IIIII

28
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SO\1751249.1

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- - - - - - - - - - .---------~--------------
Case 3:07-cv-01667-BEN-BLM Document 1 Filed 08/22/07 Page 18 of 24

COUNT THREE

2

FAILURE TO FOLLOW NOTICE-AND-COMMENT REQUIREMENTS OF THE

3

ADMINISTRATIVE PROCEDURES ACT

4

[By the Named Plaintiffs on Behalf of the Proposed Class Against All Defendants)

5

85. The allegations contained in paragraphs 1 through 84 above are repeated and

6 'incorporated as though fully set forth herein. '

7

86. By r~gulation, CIS is required to conduct a criminal background check before a

8 naturalization application can be granted. 8 C.F.R. § 335.2(b). Prior to about November 2002,

9 CIS used criminal databases such as NCIC to complete this process.

10

87. In or about November 2002, CIS implemented an expanded version of another

11 background check known as an FBI name check, which goes beyond the criminal background

12 check required by statute and regulation. Unlike the databases searched during the criminal
a 13 background checks, the expanded FBI name' check runs applicants ~ames against database

14 containing names of persons who have never been convicted of, arrested for, or even suspected of

15 a crime - including innocent witnesses and even crime victims. This added requirement of a

16 name check constitutes a substantive rule that departed from prior policy and practice.

17

88. Defendants implemented the expanded FBI name check requirement for

18 naturalization without giving notice and providing a period for public comment; even though the

19 name check requirement constitutes a substantive rule that departed from prior policy and

20 practice.

21

89. ~efendants' failure to provide a notice-and-comment period prior to implementing

22 the FBI name check requirement violates the Administrative Procedures Act, 5 U.S.C. § 553.

23

COUNT FOUR

24

VIOLATION OF FIFTH AMENDMENT DUE PROCESS CLAUSE

,

'

25

[By the Named Plaintiffs on Behalf of the Proposed Class Against All Defendants)

26

90. The allegations contained in paragraphs 1 through 89 above are repeated and

27 incorporated as though fully set forth herein.

28
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SO\1751249,1

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Case 3:07-cv-01667-BEN-BLM Document 1 Filed 08/22/07 Page 19 of 24

1

91. The Due Process Clause of the Fifth Amendment prohibits the government from

2 depriving any person of life, liberty or property without due process of law. Plaintiffs have a

3 liberty or property interest in adjudication of their naturalization applications within 120 days of

4 their naturalization interviews.

5

92. Defendants Pierre, Emilio Gonzalez and Chertoff have a pattern, practice or policy

6 of failing to adjudicate the applications for naturalization of the proposed plaintiff class within

7 120 days of the date of naturalization examinations because of delays in "name checks," in

8 violation of8 U.S.C. § 1446(d) and 8 C.F.R. § 335. Defendants Alberto Gonzales and Mueller

9 have a pattern, practice or policy of failing to timely complete "name checks," with the full

10 knowledge that CIS requires the completion of such "name checks" for adjudication of

11 applications for naturalization of the proposed plaintiff class. Defendants have a pattern, practice

12 or policy of failing to set deadlines for completing "name checks" and to take all the other

13 reasonable steps necessary to complete the adjudication of applications for· naturalization of the

14 proposed plaintiff class, in violation of 8 U.S.C. § 1446(d) and 8 C.F.R. § 335. These actions by

15 Defendants violate Plaintiffs' rights to due process oflaw.

16

93. As a result of Defendants' actions, Plaintiffs and members of the proposed class

17 have suffered and continue to suffer injury. Declaratory and injunctive relief are therefore

18 warranted.

19

PRAYER FOR RELIEF

20

WHEREFORE, in view of the arguments and authority noted herein, Petitioner prays for

21 the following relief:

22

a. Assume jurisdiction over the matter;

23

b. Certify this case as a class action lawsuit, as proposed herein;

24

c. Review de novo and grant the named Plaintiffs' applications for naturalization,

25 pursuant to 8U.S.C. § 1447(b);

26

d. Order Defendants to promptly adjudicate, in a time period not to exceed 90 days,

27 the currently pending applications for naturalization of all members of the proposed class;

28
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IIIII
So\1751249.1

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Case 3:07-cv-01667-BEN-BLM Document 1 Filed 08/22/07 Page 20 of 24

e. .Order Defendants to adjudicate, within 180 days of the application date, all

2 applications for naturaHzation that shall be submitted in the future by members of the proposed

3 class, as required by governing law;

"4

f.

Order that any name checks Defendants choose to conduct shall be completed in a

5 manner that does not delay adjudication of naturalization applications by members of the

6 proposed class beyond 120 days of the applicant's naturalization examination;

7

g. Order Defendants to adopt a procedure for identifying naturalization cases

8 awaiting final adjudicatio!l based solely on FBI name checks, and for identifying naturalization

9 cases awaiting final adjudication for more than 120 days after successful completion of

10 naturalization examinations;

11

h. Issue a declaratory judgment holding unlawful: (a) the failure of Defendants

12 Pierre, Emilio Gonzalez and Chertoff to adjudicate applications for naturalization within 120 days

13 of the date of the naturalization examination; (b) the failure of Defendants Alberto Gonzales and

14 Mueller to complete "name checks" within a reasonable time; and (c) Defendants' failures to take

15 all necessary steps to adjudicate applications for naturalization within 120 qays of the date of the

16 naturalization examinations.

11 IIIII

18 IIIII

19 IIIII

20 IIIII

21 IIIII

22 IIIII

23 IIIII

24 IIIII

25 IIIII

26 IIIII

27 IIIII

28
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IIIII
So\1751249.1

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Case 3:07-cv-01667-BEN-BLM Document 1 Filed 08/22/07 Page 21 of 24

1

1. Award reasonable attorney fees and costs pursuant to the Equal Access to Justice

2 Act,S U.S.C. § 504,28 U.S.C. § 2412; and

3

J. Grant any and all further relief this Court deems just and proper.

4
5 Dated: ~ 2007
6 7 8 9 10 11 12 13 14 15

Respectfully submitted,

DAVID BLAIR-LOY ACLU Foundation of San Diego & Imperial Counties P.O. BOX 87131 San Diego, CA 92138-7131

CECILLIA D. WANG

_

. American Civil Liberties Union Foundation

Immigrants' Rights Project

39 Drumm Street

San Francisco, CA 94111

.NANCY O. DIX
MIKE TRACY DLA PIPER US LLP 401 B Street, Suite 1700 San Diego, CA 9210 -4297

16

17

18

19

20

21

22

23

24

25

26

27

28
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. So\1751249.1

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~JS44 (Rev.II!04) Case 3:07-cv-01667-BCEINV-BILMCODVocEuRmeSnHt 1EEFTiled 08/22/07 Page 22 of 24

thinS 44 ciVil cover sheet and the information contained . e i t h e r replace nor supplement the tiling and service of P i e . or other papers as required by law, except as provided

by local rules of court. This form, approved by the Judicial

rence of the United States in September 1974, is required

use of the Clerk of Court for the purpose of initiating

the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS DANIEL TARTAKOVSKY, MOHAMMAD HASHIM NASEEM, ZAHRA JAMSHIDI, MEHDI HORMOZAN,

DEFENDANTS

SEE
.

ATTACHED

LIST

FOR

ALL

DEFE:N. DA! NLT.S..l[N::A~ M!.'E:S.

(b) County of Residence of First Listed Plaintiff SAN DIEGO
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) Attorney's (Firm Name, Address, imd Telephone Number)

PH 3: 55 County of Residence of First Listed _ _ ~07 Bllr,??

(IN u.s. PLAINTIFF CA§E'S b~'7)

.

THE NOTE:

IN LAND CONDEMNATION LAND INVOLVED.

C"'SE~; USE
. ".1",':"';'
,', v I n :,,;'-J

.[J;':1~"·LI.QYflICJ:A~' rTrl~OO:FNIGCOT.FHTCIHHfHEHIRHtTIA

Attorneys (If Known)

DA VID BLAIR-LOY &

NANCY O. DIX

CECILLIA D. WANG

MIKE TRACY

'J y'

fJEPUT Y

ACLU Foundation of San Diego

DLA PIPER US LLP

P.O. Box 87131 San Diego, CA 92138-7131

'07 CV 1667._ 401 B St., #1700
San Diego, CA 92101

Ph: 619-232-2121, Ext. 23

Ph: 619-699-2700

II. BASIS OF JURISDICTION (Pla~e an "X" in One Box Only)

III. CITIZENSHIP OF PRINCIPAL PARTIES (place an "X" in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

01 U.S. Government Plaintiff

03 Federal Question (U.S. Government Not a Party)

Citizen ofThis State

0 I 0 I Incorpomted orPrincipal Place

0 4

0 4

of Business In This State

1812 U.S. Government Defendant

04 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State 02 02 Incorporated and Principal Place Os

Os

of Business In Another State

Citizen or Subject of a Foreign Country

03 03 Foreign Nation

06

06

IV. NATURE OF SUIT (Place an "X" in One Box Only)

CONTRACT

TORTS

FORFEITUREIPENALTY

BANKRUPTCY

OTHER STATUTES

l-
o Ci I-
I-
o I-

110 Insurance
120 Marine
130 Miller Act 140 Negotiable Instrument
Iso Recovery of Overpayment

PERSONAL INJURY
IEl31 0 Airplane 315 Airplane Product Liability
0320 Assault, Libel &

I

PERSONAL INJURY
362 Personal InjuryMed. Malpractice
365 Personal Injury Product Liability

o ""';qoo, ..... & Enforcement of Judgment

Slander

368 Asbestos Personal

J 610 Agriculture

I~ 422 Appeal 28 USC 158

620 Other Food & Drug

423 Withdrawal

625 Drug Related Seizure

28 USC 157

of Property 21 USC 881

~
640 R.R. & Truck

PROPERTY RIGHTS

_ 400 State Reapportionment
410 Antitrust : 430 Banks and Banking
450 Commerce .. 460 Deportati~n
470 Racketeer Influenced and

B I§. 151 Medicare Act 152 Recovery of Defaulted Student Loans o (Excl. Vetemns)
o § 153 Recovery of Overpayment of Vetemn's Benefits
B o : 160 Stockholders' Suits
_ 190 Other Contract
o B _ 195 Contract Product Liability
S.","", Act". 196 Fmnchise

0330 Federal Employers' Liability
8340 Marine . 345 Marine Product Liability
350 Motor Vehicle 355 Motor Vehicle
Product Liability 0360 Other Personal Injury

Injury Product Liability
PERSONAL PROPERTY
370 Other Fmud 371 Truth in Lending 380 Other Personal
Property Damage 385 Property Damage
Product Liability

650 Airline Regs. 660 Occupational
SafetylHealth

820 Copyrights 830 Patent 840 Trademark

Corrupt Organizations
~480 C~'m~ CmO'
490 Cable/Sat TV

690 Other

810 Selective Service

LABOR

SOCIAL SECURITY

850 Securities/Commodities! Exchange

710 Fair Labor Standards Act

~ 886612 HBlIaAck(IL3u9n5gft()923)

0875 Customer Challenge 12 USC 3410

720 LaborlMgmt. Relations 730 LaborlMgmt.Reporting

863 864

D1WCIDIWW (405(g))
ssm Title XVI

~'90
891

AOg<rhic.ultural

Acts

REAL PROPERTY
o § ~ 222100 .F.o..re..c"lo's"ur,e_mJ"
230 Rent Lease & Ejectment
o 240 Torts to Land
245 Tort Product Liability
o 290 All Other Real Property

CIVIL RIGHTS PRISONER PETITIONS

8441 Votmg 442 Employment

510 Motions to Vacate Sentence

443 Housing!

Habeas Corpus:

Accommodations 8444 Welfare

~ "53O5 GD~ea.th1Penalty

445 Amer. wlDisabihties - 540 Mandamus & Other

Employment

550 Civil Rights

& Disclosure Act
740 Railway Labor Act 790 Other Labor Litigation 791 Empl. Ret. Inc.
Security Act

865 RSI (405(g))
FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff or Defendant) 871 IRS-Third Party 26 USC 7609

892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Infonnation
Act 0900Appeal of Fee Detennination
Under Equal Access to Justice 0950 Constitutionality of

o 446 Amer wlDisabihties 555 Prison Condition

State Statutes

Other

181 440 Other Civil Rights

o V. ORIGIN (Place an "X" in One Box Only)

181 I' Original

2 Removed from 0 3 Remanded from

o o 4 Reinstated or

.Transferred from 5 another district

o 6 Muitidistrict

o Appeal to District 7 Judge from

Proceeding

State Court

Appellate Court

Reopened

(specify)

Litigation

Magistrate

Jud ment

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

VI. CAUSE OF ACTION

8 U.S.C. Section 1447 B
Brief description of cause:

Com laint for Declarato and In'unctive Relief and Petition for Naturalization

VII. REQUESTED IN COMPLAINT:

181 CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23

DEMAND $

CHECK YES only if demanded in complaint:

JURY DEMAND:

0 Yes 181 No

VIII. RELATED CASE(S) IF ANY
DATE

(See instructions): JUDGE

DOCKET NUMBER

FRECORD
(Nancy

o.

Dix)

RECEIPT # "--4....!:.-L--

MAG. JUDGE
I !Amerlean LegalNet, Inc. fNWW.USCourtForms.coml

....,-

• • Case 3:07-cv-01667-BEN-BLM Document 1 Filed 08/22/07 Page 23 of 24

ATTACHMENT TO CIVIL COVER SHEET

LIST OF ALL DEFENDANTS' NAMES

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

ALL NAMED DEFENDANTS:
PAUL M. PIERRE, District Director, U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services, San Diego District; EMILIO T. GONZALEZ, Director,.U.S. Deptment of Homeland Security, Bureau of Citizenship and Immigration Services; MICHAEL CHERTOFF, Secretary of. Homeland Security; ROBERT S. MUELLER III, Director of the Federal Bureau of Investigation; ALBERTO GONZALES, Attorney General of the United States.

SD\ 1753311.1

• • Case 3:07-cv-01667-BEN-BLM Document 1 Filed 08/22/07 Page 24 of 24

\ 1

UNITED STATES DISTRICT COURT . SOUTHERN DISTRICT OF CALIFORNIA
SAN DIEGO DIVISION
:It 141795 - KD
* * COP Y * *
August 22. 2007 15:57:57

Civ Fil Non-Pris

USAO #.: CIVIL FILING; 07CV1667

Judge .. : ROGER T BENITEZ

Amount.:

$350.00 CK

Check#.: BC 716152

Total-> $350.00
FROM: TARTAKOVOSKY, ET AL V. PIERRE, CIVIL FILING

 
 Case 3:07-cv-01667-BEN-BLM Document 19 Filed 02/08/08 Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DLA PIPER US LLP
SAN DIEGO

DAVID BLAIR-LOY (CSB #229235) ACLU Foundation of San Diego & Imperial Counties P.O. BOX 87131 San Diego, CA 92138-7131 Telephone: 619.232.2121 ext. 23
CECILLIA D. WANG (CSB #187782) American Civil Liberties Union Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950
NANCY O. DIX (CSB #129150) MICHAEL S. TRACY (CSB #101456) M. RAY HARTMAN III (CSB #211205) DLA PIPER US LLP 401 B Street, Suite 1700 San Diego, CA 92101-4297 Tel: 619.699.2700 Fax: 619.699.2701

Attorneys for Petitioners

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

SAN DIEGO DIVISION

DANIEL TARTAKOVSKY, MOHAMMAD HASHIM NASEEM, ZAHRA JAMSHIDI, MEHDI HORMOZAN,
Plaintiffs-Petitioners,
v.
PAUL M. PIERRE, District Director, U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services, San Diego District; EMILIO T. GONZALEZ, Director, U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services; MICHAEL CHERTOFF, Secretary of Homeland Security; ROBERT S. MUELLER III, Director of the Federal Bureau of Investigation; MICHAEL MUKASEY, Attorney General of the United States,

CASE NO. 07-CV-1667 (BEN)
NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
(Oral Argument Requested)
CLASS ACTION
Date: April 7, 2008 Time: 10:30 a.m. Courtroom: 3 Judge: Honorable Roger T. Benitez

Defendants-Respondents.

SD\1777350.1

07-CV-1667 (BEN)

Case 3:07-cv-01667-BEN-BLM Document 19 Filed 02/08/08 Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DLA PIPER US LLP
SAN DIEGO

NOTICE OF MOTION TO THE COURT, ALL PARTIES AND COUNSEL OF RECORD:

PLEASE TAKE NOTICE that on April 7, 2008, at 10:30 a.m., before the Honorable

Roger T. Benitez, at the United States Courthouse at 940 Front Street, San Diego, California,

Plaintiffs will and hereby do move the Court for an order certifying a class in this matter as

follows: All persons residing within the jurisdiction of the United States District Court for the

Southern District of California who have submitted or will submit applications for naturalization

to CIS, and who have met all statutory requirements for naturalization, and whose applications for

naturalization are not adjudicated within 120 days of the date of their naturalization examinations

because of a pending FBI name check.

Plaintiffs further will and hereby do move for an order appointing them as representatives

of the class defined above, appointing Plaintiffs’ counsel as counsel for the class, and requiring

the government to identify members of the class.

This Motion is made pursuant to the Federal Rule of Civil Procedure 23(a) and 23(b)(2).

Plaintiffs move for certification of a class with regard to the second, third and fourth causes of

/////

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/////

/////

/////

/////

/////

/////

/////

/////

/////

/////

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SD\1777350.1

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Case 3:07-cv-01667-BEN-BLM Document 19 Filed 02/08/08 Page 3 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DLA PIPER US LLP
SAN DIEGO

action in the Complaint. The Motion is based upon this Notice of Motion, the attached Memorandum of Points and Authorities, and all papers on file in this matter.

Dated: February 8, 2008

Respectfully submitted,
DAVID BLAIR-LOY ACLU Foundation of San Diego & Imperial Counties P.O. BOX 87131 San Diego, CA 92138-7131
CECILLIA D. WANG American Civil Liberties Union Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111
NANCY O. DIX MICHAEL S. TRACY M. RAY HARTMAN III DLA PIPER US LLP 401 B Street, Suite 1700 San Diego, CA 92101-4297

By: /s/ M. Ray Hartman III M. RAY HARTMAN III ray.hartman@dlapiper.com Attorneys for Plaintiffs

SD\1777350.1

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07-CV-1667 (BEN)

 
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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

10 DANIEL TARTAKOVSKY, MOHAMMAD HASHIM NASEEM, ZAHRA JAMSHIDI,
11 MEHDI HORMOZAN,

12 vs.
13

Plaintiffs,

14 PAUL M. PIERRE, District Director, U.S.

15

Department of Homeland Security, Bureau of Citizenship and Immigration Services, San

16 Diego District, et al.

17

Defendants.

Case No.: 07cv1667-BEN (CAB)
ORDER REMANDING ADJUDICATION OF NATURALIZATION APPLICATIONS
[Dkt. No. 9]

18

I. INTRODUCTION

19

Plaintiffs filed claims under 8 U.S.C. § 1447(b) requesting this Court adjudicate and grant

20 Plaintiffs’ naturalization applications. Plaintiffs additionally included claims for violations of the

21 Administrative Procedures Act (“APA”) and Due Process. Defendants move to remand or dismiss

22 all claims. Plaintiffs oppose the motion. For the reasons that follow, Plaintiffs’ claims for

23 adjudication of their naturalization applications are REMANDED and Plaintiffs’ additional claims

24 are DISMISSED without prejudice.

25

II. BACKGROUND

26

Plaintiffs, Daniel Tartakovsky, native of Russia, Mohammad Hashim Naseem, native of

27 Iraq, Zahra Jamshidi, native of Iran, and Mehdi Hormozan, native of Iran (“Plaintiffs”), are

28 permanent residents of the United States awaiting naturalization to United States citizenship.

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1 Plaintiffs claim Defendants, Paul M. Pierre, District Director, U.S. Department of Homeland

2 Security, Bureau of Citizenship and Immigration Services, San Diego District, Emilo T. Gonzalez,

3 Director, U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services

4 (“USCIS”), Micheal Chertoff, Secretary of Homeland Security, Robert S. Mueller III, Director of

5 the Federal Bureau of Investigation (“FBI”), Michael Mukasey, Attorney General of the United

6 States (collectively “Defendants”) have failed to timely adjudicate Plaintiffs’ naturalization

7 applications. Each Plaintiff has filed an application for naturalization and each received an initial

8 interview from USCIS. Each Plaintiff’s interview occurred before completion of a full criminal

9 background check required under 8 C.F.R. § 335.2 which includes a “FBI name check.” Each

10 Plaintiff has claimed some delay in processing their applications to adjudication.

11

On August 22, 2007, Plaintiffs filed this action pursuant to 8 U.S.C. § 1447(b). Plaintiffs

12 seek to be naturalized by this Court and allege violations of the APA and Due Process. On

13 October 29, 2007, Defendants filed a motion to remand or dismiss Plaintiffs’ claims.

14

III. DISCUSSION

15

A. Determination of Naturalization Under § 1447(b)

16

1. Subject Matter Jurisdiction

17

This Court has subject matter jurisdiction of Plaintiffs’ claim for naturalization under 8

18 U.S.C. § 1447(b). A lawful permanent resident alien is only eligible for naturalization as a U.S.

19 citizen if he or she: (1) satisfies a five-year statutory residency requirement; (2) has resided

20 continuously in the United States from the date of his or her application to the time of his or her

21 admission as a citizen; and (3) is of good moral character. 8 U.S.C § 1427. If USCIS fails to

22 make a determination on an applicant’s naturalization within 120 days of that applicant’s

23 “examination,” the applicant may seek a hearing on the matter from the United States District

24 Court in the district in which the applicant resides. 8 U.S.C. 1447(b). The statute specifically

25 grants the District Court jurisdiction to “determine the matter or remand the matter, with

26 appropriate instructions” to USCIS for determination. Id.

27

Plaintiffs’ Complaint alleges that each Plaintiff’s examination was completed more than

28 120 days ago and none of the Plaintiffs’ applications for naturalization have been granted or

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1 denied. Under Ninth Circuit precedent, the 120-day period under § 1447(b) begins to run with the

2 initial interview of the applicant. U.S. v. Hovsepian, 359 F.3d 1144, 1161 (9th Cir. 2004).

3 Plaintiff Tartakovsky’s examination was conducted on June 4, 2003. Plaintiff Naseem’s

4 examination was conducted on March 15, 2005. Plaintiff Jamshidi’s examination was conducted

5 on February 4, 2004. Plaintiff Hormozan’s examination was conducted on September 4, 2003.

6

The passage of 120 days since the “date on which the examination [was] conducted” allows

7 Plaintiffs to apply to this Court for a hearing on the matter, giving this Court jurisdiction over

8 Plaintiffs’ claims for adjudication of naturalization.

9

2. Determination of Application for Naturalization - § 1447(b)

10

USCIS is responsible for investigating applicants for naturalization. 8 U.S.C. § 1446. The

11 naturalization decision rests in part on the results of an investigation by the FBI. In 1997,

12 Congress prohibited USCIS from using any appropriation to adjudicate an application for

13 naturalization until USCIS received confirmation of completion of an FBI investigation of the

14 applicant. Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies

15 Appropriations Act, Pub. L. No. 105-119, 111 Stat. 2448-49 (1997).

16

In addition to this restriction, under 8 C.F.R. § 335.2, USCIS cannot adjudicate an

17 applicant’s application until the agency receives confirmation from the FBI that a full criminal

18 background check has been completed. The in-person initial examination of the applicant required

19 for naturalization should only occur after USCIS receives confirmation of completion of the full

20 criminal background check on the applicant. 8 C.F.R. § 335.2. This limitation precludes

21 naturalization by USCIS prior to completion of the FBI’s full criminal background check. In the

22 case of the four named Plaintiffs, USCIS conducted the applicant’s interviews before completion

23 of the FBI background checks.

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3. District Court’s Options

25

In filing this action, Plaintiffs have invoked the exclusive jurisdiction of this Court for

26 adjudication of their naturalization. Hovsepian, 359 F.3d at 1164 (finding the courts have

27 exclusive jurisdiction over naturalization applications properly before the court under § 1447(b)).

28 USCIS may not make a decision on Plaintiffs’ naturalization applications while this Court retains

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1 jurisdiction. This is the case, even if the FBI has completed the name checks on all Plaintiffs, as

2 Defendants have asserted in their motion. This Court has two options. The Court may conduct a

3 hearing and adjudicate Plaintiffs’ naturalization applications on its own, or the Court may remand

4 the matter to USCIS with instructions, thus returning jurisdiction to USCIS. 8 U.S.C. § 1447(b);

5 Hovsepian, 359 F.3d at 1164.

6

4. Remanding to USCIS

7

This Court remands adjudication of Plaintiffs’ naturalization to USCIS with instructions.

8 The requirements within statutes and regulations to complete investigation and a full criminal

9 background check before decision on an application for naturalization evidences the importance of

10 this check to any proper determination of naturalization. This Court declines to make a

11 determination of naturalization absent completion of the full criminal background check and

12 required investigation.

13

Even with investigation and a background check completed, USCIS is in a much better

14 position to interpret those results for determination of naturalization. See Khelifa v. Chertoff, 843-

15 44 (E.D. Mich. 2006) (finding the USCIS has the expertise and experience to make an appropriate

16 assessment). Generally, Courts should remand cases for agency determination of matters that

17 “statutes place primarily in agency hands.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002).

18 While this Court may be empowered to make this decision under § 1447(b), it is a decision that

19 generally falls to USCIS.

20

USCIS is in a better position because it brings its expertise to the matter. Ventura, 537

21 U.S. at 16 (discussing how an “agency can bring its expertise to bear upon the matter” and its role

22 evaluating the evidence). The statutory and regulatory schemes established to process citizenship

23 applications evidence the deference accorded the executive branch in immigration matters. 8

24 U.S.C. § 1446; 8 U.S.C. § 1421. USCIS has greater expertise than this Court in identifying

25 problems in the background checks and resolving any problems identified.

26

There may be circumstances which justify this Court making a naturalization determination

27 under § 1447(b). For instance, if the agency’s conduct becomes extreme or abusive. But here, the

28 Complaint alleges USCIS has failed to grant or deny Plaintiffs’ applications for naturalization due

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1 to delays in processing background checks. This Court’s jurisdiction is invoked under § 1447(b)

2 because USCIS conducted the Plaintiffs’ initial interviews before completion of the full criminal

3 background check, resulting in passage of 120 days while awaiting completion of those checks. 8

4 C.F.R. 335.2(b). This conduct does not raise serious concerns about the agency’s ability to

5 complete the investigation process or grant or deny Plaintiffs’ applications, nor does it suggest the

6 agency is acting in an extreme or abusive manner.

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Under 8 U.S.C. § 1447(b), if the adjudication decision is remanded to USCIS, the order is

8 made with “appropriate instructions.” The Court will not impose a definitive time line for the

9 completion of a full criminal background check or a decision on Plaintiffs’ applications for

10 naturalization. While the Court notes that a significant amount of time has passed in processing

11 Plaintiffs’ applications, this appears to be a result of USCIS awaiting completion of the full

12 criminal background checks, a required part of the naturalization determination.

13

USCIS is in the best position to determine when an application or background check

14 warrants expedited treatment to achieve completion on a particular date. Ordering USCIS to

15 complete background checks or make decisions by a date certain does not take into account

16 practical considerations. This Court is not in a position to evaluate these four applications in

17 relation to others and deem a particular Plaintiff a priority in the completion of background checks

18 over other needed background checks.

19

The Court is not insensitive to the position of the Plaintiffs who have patiently waited

20 through this lengthy process to become naturalized citizens. USCIS shall, as it must under statutes

21 and regulations, await completion of the FBI’s full criminal background check. But, the Court

22 instructs USCIS to complete Plaintiffs’ naturalization applications without unreasonable delay.

23

Therefore, Plaintiffs’ claims for naturalization adjudication are REMANDED to USCIS

24 with instruction to complete processing of Plaintiffs’ naturalization applications without

25 unreasonable delay.

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B. Administrative Procedures Act - Unreasonable Delay

27

Having remanded Plaintiffs’ claims under 8 U.S.C. 1447(b), Plaintiffs’ additional claims

28 must invoke the subject matter jurisdiction of this Court. Plaintiffs’ seek declaratory and

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1 injunctive relief for unreasonable delay in adjudicating Plaintiffs’ naturalization applications.

2 Plaintiff asserts this delay is in violation of 8 U.S.C. § 1446(d) and 8 C.F.R. § 335 which, in turn,

3 violates the APA, 5 U.S.C. § 555. Plaintiffs request this court compel USCIS to act under 5

4 U.S.C. § 706(1), hold the agency’s conduct unlawful, and set it aside under 5 U.S.C. § 706(2).

5

Federal courts are courts of limited jurisdiction. Kokken v. Guardian Life Ins. Co. of

6 America, 511 U.S. 375, 377 (1994). The APA alone does not provide subject matter jurisdiction

7 to this Court. California v. Sanders, 430 U.S. 99, 107 (1977). Jurisdiction is only present under

8 the APA when combined with 28 U.S.C. § 1331, providing that “the district courts shall have

9 jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United

10 States.”

11

Plaintiffs are only entitled to the jurisdiction of this Court under the APA if they allege

12 they are: (1) suffering a wrong because of the agency’s failure to act; (2) there is no other adequate

13 remedy in a court; (3) the action Plaintiffs seek to compel is discrete; and (4) the action Plaintiffs

14 seek to compel is legally required. Agencies “shall proceed to conclude a matter presented to it.”

15 5 U.S.C. 555(b). A Plaintiff “suffering legal wrong because of agency action, or adversely

16 affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to

17 judicial relief.” 5 U.S.C. § 702; Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 62

18 (2004). Final agency actions are subject to judicial review only if “there is no other adequate

19 remedy in a court.” 5 U.S.C. § 704; Bennett v. Spear, 520 U.S. 154, 161-62 (1997). Agency

20 action includes an agency’s failure to act which is “the omission of an action without formally

21 rejecting a request.” Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 62 (2004). A

22 court “shall . . . compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. §

23 706(1); Norton, 542 U.S. at 62.. “A claim under § 706(1) can proceed only where a plaintiff

24 asserts that an agency failed to take a discrete agency action that it is required to take.” Norton,

25 542 U.S. at 64.

26

Plaintiffs’ Complaint includes an allegation that they suffered a wrong because USCIS

27 failed to adjudicate their naturalization applications and a discrete act. However, Plaintiffs have

28 an adequate remedy in this Court and the action they seek to compel is not currently legally

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1 required. Therefore, their claim for relief under the APA lacks jurisdiction.

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1. Adequate Legal Remedy

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First, Plaintiffs have an adequate remedy in this Court under 8 U.S.C. § 1447(b). As

4 previously discussed, this Court has jurisdiction to adjudicate or remand Plaintiffs’ naturalization

5 applications, the remedy available through 8 U.S.C. § 1447(b). In opposing the motion, Plaintiffs

6 have argued that because they allege a systemic problem in USCIS processing, § 1447(b) is

7 inadequate. However, the review process outlined in § 1447(b) provides a remedy to each

8 Plaintiff in this case and any applicant facing the same situation as the Plaintiffs in this case. Any

9 applicant can seek relief from the District Court in the form of review and potentially adjudication

10 of naturalization under § 1447(b) if the facts of that Plaintiff’s case warrant such action. Plaintiffs

11 accurately note that resolution of all individual claims brought under § 1447(b) may be time

12 consuming for the courts, but that is the process outlined in the statutory scheme and it is adequate

13 to resolve the claims of these Plaintiffs and any other applicants facing the same situation. 8

14 U.S.C. § 1447(b).

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2. Legally Required Agency Action

16

Second, the action Plaintiffs seek to compel is not currently legally required. USCIS is

17 required to grant or deny an applicant’s petition for naturalization, but not until the statutory

18 requirements to reach that decision have been met.

19

The time lines specified within the statutory scheme are only implicated when certain

20 criteria have been met. The criteria implicating a time line for USCIS have not been met. USCIS

21 is required to make “a decision to grant or deny the application . . . at the time of the initial

22 examination or within 120-days after the date of the initial examination of the applicant for

23 naturalization under § 335.2.” 8 C.F.R. 335.3 (emphasis added). However, the section referenced

24 in § 335.3 with this mandate, 8 C.F.R. § 335.2, has not been satisfied. The examination specified

25 under § 335.2, that triggers the 120-day time line, should only occur following “a definitive

26 response from the Federal Bureau of Investigation that a full criminal background check of an

27 applicant has been completed.” 8 C.F.R. 335.2. Additionally, Pub. L. No. 105-119, 111 Stat.

28 2448-49 specifies that USCIS cannot process an application for naturalization until USCIS

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1 receives confirmation of completion of an FBI investigation of the applicant. These provisions

2 indicate that a full criminal background investigation is a prerequisite for USCIS to conduct the

3 applicants’ interviews and to grant or deny applicants’ applications for naturalization. That

4 USCIS conducted Plaintiffs’ interviews before completion of a full criminal background

5 investigation, does not negate the necessity of a complete full criminal background check before

6 USCIS is required to grant or deny the applications. Until the full criminal background checks are

7 complete, USCIS is not legally required to grant or deny Plaintiffs’ applications for naturalization.

8

The only other time lines potentially implicated are found in 8 U.S.C. 1447(b) and 8 U.S.C.

9 § 1571. These time lines also do not compel a legally required action. As previously discussed,

10 the 120-day time frame dictated in 8 U.S.C.§ 1447(b) provides this Court with jurisdiction to take

11 appropriate action on Plaintiffs’ applications. That time line does not legally require any action by

12 USCIS, rather it is a mechanism for frustrated applicants to seek the review of the District Court.

13

Congress’ expression of their desire that immigration applications be processed in 180 days

14 is not a mandatory time line sufficient to legally require agency action. In 2000, Congress

15 expressed “its sense that the processing of an immigration benefit application should be completed

16 not later than 180 days after the initial filing of the application.” 8 U.S.C. § 1571(b). Under Ninth

17 Circuit precedent, provisions using the language “should” and “sense of the Congress” yield the

18 conclusion that the “provision is precatory” and does not bestow a right. Yang v. Cal. Dep’t of

19 Soc. Servs., 183 F.3d 953, 958 (9th Cir. 1999). The Court went on to note that the heading

20 “Congressional Statement” describes the provision as a “policy statement that does not create

21 positive, enforceable law.” Id. at 959 (emphasis added). Similarly, 8 U.S.C. § 1571 falls under the

22 heading “Policy,” further indicating it is not an enforceable time line, but rather the desire of the

23 Congress to improve the speed of immigration services.

24

In conclusion, Plaintiffs have an adequate legal remedy in this Court under 8 U.S.C.

25 1447(b) and neither USCIS nor the FBI are required to take action because Plaintiffs’ full criminal

26 background checks are not complete. In the absence of these elements, this Court does not have

27 jurisdiction to review Plaintiffs’ claim under the APA. This claim is DISMISSED for lack of

28 subject matter jurisdiction.

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C. Administrative Procedures Act - Notice and Comment

2

Plaintiffs claim Defendants’ use of the “FBI name check” constitutes a substantive rule that

3 was implemented without giving notice and providing a period for public comment in violation of

4 5 U.S.C. § 553. Defendants move to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a

5 claim. Defendants assert the notice and comment procedures are not required because inclusion of

6 the “FBI name check” is only an interpretive rule.

7

A court may dismiss a case for “failure to state a claim upon which relief can be granted.”

8 Fed. R. Civ. P. 12(b)(6). Under this standard, the Court accepts as true the factual allegations of

9 Plaintiffs’ Complaint. Church of Scientology of California v. Flynn, 744 F.2d 694, 696 (9th Cir.

10 1984). Plaintiff’s “factual allegations must be enough to raise a right to relief above the

11 speculative level.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007).

12

Federal agencies are generally required to provide notice of proposed rules and consider

13 comments about those rules. 5 U.S.C. § 553. However, “interpretive” rules are exempt from this

14 process. 5 U.S.C. 553(b)(3)(A); Gunderson v. Hood, 268 F.3d 1149, 1155 (9th Cir. 2001).

15 Interpretive rules generally clarify or explain, but cannot be inconsistent with or amend an existing

16 rule. Gunderson, 268 F.3d at 1155. The question before this Court is whether the “FBI name

17 check” is an interpretive rule, encompassed by existing regulations and exempt from the notice

18 and comment procedures.

19

USCIS is required to investigate applicants for naturalization. The “minimum”

20 investigation shall include “a review of all pertinent records.” 8 C.F.R. § 335.1. The “full

21 criminal background check” includes the applicants “administrative” record, in addition to the

22 applicant’s “criminal”record. 8 C.F.R. § 335.2.

23

The requirement that USCIS investigate, at a minimum, all pertinent records and the

24 separate listing of criminal and administrative records indicates that the “FBI name check” is an

25 interpretive rule. The search is both consistent with and encompassed by the mandates of these

26 regulations. An FBI record on an applicant or connected to an applicant is surely “pertinent” to

27 investigation of that applicant. Even if these records were not pertinent, the regulation only

28 requires review of pertinent records at a “minimum,” suggesting that even broader investigations

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1 are acceptable under the regulation. Additionally, the inclusion of “administrative” records in

2 addition to “criminal” records within 8 C.F.R. § 335.2 indicates more than the applicant’s specific

3 criminal history is encompassed in the full criminal background check mandated by the regulation.

4

Use of the “FBI name check”as part of the required “full criminal background check” is an

5 interpretation of the investigations required under 8 C.F.R. § 335.1 & 335.2 and is consistent with

6 these regulations. Plaintiffs’ claim for violation of the notice and comment procedures of the APA

7 is DISMISSED for failure to state a claim.

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D. Due Process

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Plaintiffs claim Defendants have violated Plaintiffs’ rights under the Due Process Clause of

10 the Fifth Amendment by depriving them of their liberty interest in adjudication of their

11 naturalization applications. Although not stated in the Complaint, Plaintiffs are presumed to assert

12 a procedural due process claim based on Plaintiffs’ use of the Valdez rule articulated by the Ninth

13 Circuit in reviewing a procedural due process claim. Defendants move to dismiss under Fed. R.

14 Civ. P. 12(b)(6) for failure to state a claim. Specifically, Defendants assert that Plaintiffs do not

15 have a protected interest.

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Plaintiffs must have a protected liberty or property interest to sustain a due process claim.

17 The Fifth Amendment’s Due Process Clause prohibits the deprivation of “life, liberty, or property,

18 without due process of law.” U.S. Const. amend. V. A statute or regulation only creates the

19 liberty interest necessary for a due process violation if it meets two requirements. Valdez v.

20 Rosenbaum, 302 F.3d 1039, 1044 (9th Cir. 2002). “First, the law must set forth ‘substantive

21 predicates’ to govern official decisionmaking and, second, it must contain ‘explicitly mandatory

22 language’ i.e., a specific directive to the decisionmaker that mandates a particular outcome if the

23 substantive predicates have been met.” Id (emphasis added).

24

As previously discussed, with regard to Plaintiffs’ claim of unreasonable delay under the

25 APA, Plaintiffs do not have a legal right to the adjudication of their naturalization applications at

26 this point. The 120-day time line under 8 U.S.C. 1447(b) invokes the right to review by this

27 Court. Plaintiffs have exercised this right. Other time lines within the regulations are not of a

28 mandatory nature as required for a due process violation because those time lines are dependent on

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1 completion of Plaintiffs’ full criminal background checks. The required protected interest

2 necessary to sustain a due process claim is not present. Plaintiffs’ Due Process Claim is

3 DISMISSED for failure to state a claim.

4

IV. CONCLUSION

5

Therefore, for the reasons discussed above, determination of Plaintiffs’ application for

6 naturalization is REMANDED to USCIS, with instructions that USCIS adjudicate Plaintiffs’

7 naturalization without unreasonable delay. Plaintiffs’ claim of unreasonable delay in violation of

8 the APA is DISMISSED WITHOUT PREJUDICE. Plaintiffs’ claim for violation of the notice

9 and comment provisions of the APA is DISMISSED WITHOUT PREJUDICE. Plaintiffs’

10 claim for violation of due process is DISMISSED WITHOUT PREJUDICE.

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IT IS SO ORDERED.

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DATED: March 11, 2008

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Hon. Roger T. Benitez United States District Judge

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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10 DANIEL TARTAKOVSKY, et ai.,

CASE NO. 07CV1667 BEN (BLM)

11

12

vs.

13

Plaintiffs,

ORDER DENYING MOTION FOR ATTORNEY'S FEES AND COSTS
[Dkt. No. 49]

14 PAUL M. PIERRE, et ai.,

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Defendants.

16

INTRODUCTION

17

Plaintiffs' motion for attorney's fees and costs pursuant to the Equal Access to Justice Act

18 ("EAJA") is presently before the Court. Dkt. No. 49. The Government opposed the motion. Dkt. No.

19 58. Because the Court finds that Plaintiffs are not prevailing parties, the motion is DENIED.

20

BACKGROUND

21

Plaintiffs filed this action requesting the Court naturalize Plaintiffs pursuant to 8 U.S.C. §

22 1447(b). Plaintiffs were legal permanent residents of the United States awaiting naturalization to

23 United States citizenship and claimed Defendants failed to timely adjudicate Plaintiffs' naturalization

24 applications. Each Plaintiffhad filed an application for naturalization and received an initial interview

25 from U.S. Citizenship and Immigration Services ("USCIS"), however, the interviews occurred before

26 completion of all background checks. Because of the delays in completing the background checks,

27 more than 120 days passed from the interview, allowing Plaintiffs to seek relief from this Court

28 pursuant to § 1447(b).

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1

Defendants moved to remand the matter to USCIS for completion ofthe required background

2 checks and adjudication of Plaintiffs' applications. Plaintiffs opposed remand. The Court remanded

3 the matter to USCIS with instructions to adjudicate Plaintiffs' applications without unreasonable delay

4 and imposed no specific deadline for adjudication.

5

DISCUSSION

6

The EAJA provides for an award of attorneys fees and costs in a civil action against the United

7 States if: (1) the claimant is a "prevailing party;" (2) "the Government's position was not substantially

8 justified;" (3) "no special circumstances make an award unjust;" and (4) a complete application for

9 fees was timely filed. INSv.Jean,496U.S.154, 158(1990)(citing28US.C. §2412(d)(1)(B)). The

10 Government contends Plaintiffs are not prevailing parties and that the Government's position was

11 substantially justified.

12

A prevailing party is one who has "receive[d] at least some relief on the merits of his claim."

13 Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't ofHealth & Human Res., 532 US. 598, 603

14 (2001). "The touchstone of the prevailing party inquiry is ... the material alteration of the legal

15 relationship ofthe parties." Sole v. Wyner, 551 U.S. 74, 82 (2007)(citing Texas State Teachers Ass 'n

16 v. Garland Independent School District, 489 US. 782, 792-793 (1989)). It is not enough that "a

17 plaintiff ... achieves the desired result because the lawsuit brought about a voluntary change in the

18 defendant's conduct." Buckhannon, 532 U.S. at 601 (rejecting the "catalyst theory"). The Court's

19 order remanding the matter to USCIS did not afford Plaintiffs relief on the merits oftheir claims nor

20 did it materially alter the legal relationship between the parties.

21

Plaintiffs sought a de novo review of the Plaintiffs' applications and naturalization by the

22 Court. Additionally, Plaintiffs opposed remand and argued that if the Court did remand, it should

23 impose a hard deadline by which the Government must adjudicate Plaintiffs' applications and asked

24 the Court to retain jurisdiction to enforce a deadline.

25

The Court remanded to USCIS, specifically declining to set a deadline for adjudication and

26 finding USCIS was in a better position to interpret the results of the full background checks for

27 determination regarding naturalization. Additionally, the Court indicated that remand was necessary

28 to give jurisdiction back to USCIS to complete the applications. This was particularly important in

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1 this case, given that it appeared Defendants had actually completed the background checks that delayed

2 adjudication in the first place and this Court maintaining jurisdiction was preventing adjudication of

3 the applications. The Court's instruction to adjudicate the applications "without unreasonable delay,"

4 taking into account the practical considerations USCIS faced and acknowledging the agency must

5 await completion of the full background checks, did not afford Plaintiff any of the relief sought or

6 change the legal relationship between the parties. Accordingly, Plaintiffs are not prevailing parties and
(
7 are not entitled to attorneys fees and costs pursuant to the EAJA.

8

CONCLUSION

9

Plaintiffs' motion for attorneys fees and costs pursuant to the EAJA is DENIED.

10

11 IT IS SO ORDERED.

12
13 DATED: AUgU~, 2009

14

on. R

. Benitez

United States District Court Judge

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07cvl667

 
 Case: 3:07-cv-1667 As of: 11/10/2013 09:30 AM PST 1 of 11
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:07−cv−01667−BEN−BLM

CLOSED

Tartakovsky et al v. Pierre et al Assigned to: Judge Roger T. Benitez Referred to: Magistrate Judge Barbara Lynn Major Case in other court: USCA, 08−56678 Cause: 8:1446 Petition for Naturalization Hearing
Plaintiff

Date Filed: 08/22/2007 Date Terminated: 03/11/2008 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Daniel Tartakovsky

represented by Cecillia D Wang American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 (415)343−0770 Fax: (415)395−0950 Email: CWang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

John David Loy ACLU Foundation of San Diego and Imperial Counties PO Box 87131 San Diego, CA 92138 (619) 232−2121 Fax: (619)232−0036 Email: davidloy@aclusandiego.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy O Dix DLA Piper US LLP 401 B Street Suite 1700 San Diego, CA 92101−4297 619−699−2921 Fax: 619−699−2701 Email: nancy.dix@dlapiper.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Connor Riordan ACLU Foundation of San Diego &Imperial Counties PO Box 87131 San Diego, CA 92138−7131 (619)398−4485 Fax: (619)232−0036 Email: sriordan@aclusandiego.org LEAD ATTORNEY

Karen S Chen DLA Piper US LLP 401 B Street Suite 1700 San Diego, CA 92101−8213 (619) 699−2794 Fax: (619) 764−6794 Email: karen.chen@dlapiper.com

Case: 3:07-cv-1667 As of: 11/10/2013 09:30 AM PST 2 of 11

ATTORNEY TO BE NOTICED

M Ray Hartman , III COOLEY LLP 4401 Eastgate Mall San Diego, CA 92121 858−550−6000 Fax: 858−550−6420 Email: rhartman@cooley.com ATTORNEY TO BE NOTICED

Plaintiff Mohammad Hashim Naseem

represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John David Loy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy O Dix (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Connor Riordan (See above for address) LEAD ATTORNEY

Karen S Chen (See above for address) ATTORNEY TO BE NOTICED

M Ray Hartman , III (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Zahra Jamshidi

represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John David Loy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy O Dix (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Connor Riordan (See above for address) LEAD ATTORNEY

Karen S Chen (See above for address) ATTORNEY TO BE NOTICED

M Ray Hartman , III

Case: 3:07-cv-1667 As of: 11/10/2013 09:30 AM PST 3 of 11

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mehdi Hormozan

represented by Cecillia D Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John David Loy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy O Dix (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Connor Riordan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen S Chen (See above for address) ATTORNEY TO BE NOTICED

M Ray Hartman , III (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Paul M. Pierre District Director , U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services, San Diego

represented by U S Attorney CV U S Attorneys Office Southern District of California Civil Division 880 Front Street Suite 6253 San Diego, CA 92101 (619)557−5662 Fax: (619)557−7122 Email: Efile.dkt.civ@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
C. Barrington Wilkins Department of Justice Po Box 878 Ben Franklin Station Washington, DC 20044 (202)305−4831 Fax: (202)307−8801 Email: c.barrington.wilkins@usdoj.gov ATTORNEY TO BE NOTICED
John R. Bunker US Department of Justice PO Box 868 Ben Franklin Station Washington, DC 20044 (202)532−4135

Case: 3:07-cv-1667 As of: 11/10/2013 09:30 AM PST 4 of 11

Email: jack.bunker@usdoj.gov ATTORNEY TO BE NOTICED

Kathryn Moore US Department of Justice Civil Division, Office of Immigration Litigation 450 5th Street NW Washington, DC 20044 (202)305−7099 Fax: (202)305−7000 Email: kathryn.moore@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED

Raven M Norris U S Attorney's Office 880 Front Street Suite 6293 San Diego, CA 92101 619−546−7621 Fax: 619−546−7751 Email: raven.norris@usdoj.gov ATTORNEY TO BE NOTICED

Thomas C Stahl U S Attorneys Office Southern District of California 880 Front Street Room 6293 San Diego, CA 92101 (619)546−7767 Email: Thomas.Stahl@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Emilio T. Gonzalez Director , U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services, San Diego

represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

C. Barrington Wilkins (See above for address) ATTORNEY TO BE NOTICED

John R. Bunker (See above for address) ATTORNEY TO BE NOTICED

Kathryn Moore (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Raven M Norris (See above for address) ATTORNEY TO BE NOTICED

Thomas C Stahl (See above for address) ATTORNEY TO BE NOTICED

Defendant

represented by

Case: 3:07-cv-1667 As of: 11/10/2013 09:30 AM PST 5 of 11

Michael Chertoff Secretary of Homeland Security

U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

C. Barrington Wilkins (See above for address) ATTORNEY TO BE NOTICED

John R. Bunker (See above for address) ATTORNEY TO BE NOTICED

Kathryn Moore (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Raven M Norris (See above for address) ATTORNEY TO BE NOTICED

Thomas C Stahl (See above for address) ATTORNEY TO BE NOTICED

Defendant
Robert S Mueller, III Director of the Federal Bureau of Investigation

represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

C. Barrington Wilkins (See above for address) ATTORNEY TO BE NOTICED

John R. Bunker (See above for address) ATTORNEY TO BE NOTICED

Kathryn Moore (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Raven M Norris (See above for address) ATTORNEY TO BE NOTICED

Thomas C Stahl (See above for address) ATTORNEY TO BE NOTICED

Defendant
Alberto Gonzales Attorney General of the United States

represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

C. Barrington Wilkins (See above for address) ATTORNEY TO BE NOTICED

John R. Bunker

Case: 3:07-cv-1667 As of: 11/10/2013 09:30 AM PST 6 of 11
(See above for address) ATTORNEY TO BE NOTICED
Kathryn Moore (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Raven M Norris (See above for address) ATTORNEY TO BE NOTICED
Thomas C Stahl (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/22/2007 08/22/2007 08/27/2007 09/06/2007 09/06/2007 09/06/2007 09/06/2007 09/06/2007
10/29/2007 11/06/2007

# Docket Text
1 COMPLAINT against Paul M. Pierre, Emilio T. Gonzalez, Michael Chertoff, Robert S Mueller, III, Alberto Gonzales ( Filing fee $ 350 receipt number 141795.), filed by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan.(ldp)(bar ). (Entered: 08/23/2007)
2 Summons Issued as to Paul M. Pierre, Emilio T. Gonzalez, Michael Chertoff, Robert S Mueller, III, Alberto Gonzales. (ldp) (Entered: 08/23/2007)
3 CERTIFICATE OF SERVICE by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan re 1 Complaint, Certificate of Service Regarding the United States of America (Dix, Nancy) (Entered: 08/27/2007)
4 CERTIFICATE OF SERVICE by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan re 1 Complaint, Certificate of Service Regarding Michael Chertoff, Secretary of Homeland Security (Dix, Nancy) (Entered: 09/06/2007)
5 CERTIFICATE OF SERVICE by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan re 1 Complaint, Certificate of Service Regarding Alberto Gonzales, Attorney General of the United States (Dix, Nancy) (Entered: 09/06/2007)
6 CERTIFICATE OF SERVICE by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan re 1 Complaint, Certificate of Service Regarding Emilio T. Gonzales, Director, U.S. Dept. of Homeland Security, Bureau of Citizenship and Immigration Services (Dix, Nancy) (Entered: 09/06/2007)
7 CERTIFICATE OF SERVICE by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan re 1 Complaint, Certificate of Service Regarding Robert S. Mueller, III, Director, Federal Bureau of Investigation (Dix, Nancy) (Entered: 09/06/2007)
8 CERTIFICATE OF SERVICE by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan re 1 Complaint, Proof of Service of Summons and Complaint on Defendant, Paul M. Pierre, District Director, U.S. Dept. of Homeland Security, Bureau of Citizenship &Immigration Services (Dix, Nancy) (Entered: 09/06/2007)
9 MOTION to Dismiss by Paul M. Pierre, Emilio T. Gonzalez, Michael Chertoff, Robert S Mueller, III, Alberto Gonzales. (Attachments: # 1 Notice of Motion to Dismiss# 2 Memo of Points and Authorities # 3 Exhibit to Motion to Dismiss# 4 Proof of Service)(Stahl, Thomas) (joeh, ). (Entered: 10/29/2007)
10 PRO HAC VICE APPOINTED: C. Barrington Wilkins appearing for Defendants Paul M. Pierre, Emilio T. Gonzalez, Michael Chertoff, Robert S Mueller, III, Alberto Gonzales (mkz)(mam). (Entered: 11/06/2007)

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11/08/2007 12/03/2007 12/03/2007
12/04/2007 12/04/2007 12/04/2007 12/07/2007 12/14/2007 02/08/2008 02/08/2008 02/14/2008 02/20/2008
02/20/2008

11 Minute Entry: Judge Cathy Ann Bencivengo hereby recuses herself and is no longer assigned to this case. Judge Barbara Lynn Major added. (vrp) (Entered: 11/08/2007)
12 MOTION for Leave to File Excess Pages Motion to Extend the Page Limit of Local Civil Rule 7.1(h) by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Attachments: # 1 Proof of Service)(Chen, Karen) (vet, ). (Entered: 12/03/2007)
13 RESPONSE in Opposition re 9 MOTION to Dismiss Memorandum of Points and Authorities in Opposition to Defendants' Motion to Dismiss filed by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Attachments: # 1 Proof of Service)(Chen, Karen) Modified on 12/4/2007 (tkl, ). Efiled in error. Atty to re−efile 12/4/07. (Entered: 12/03/2007)
14 MOTION for Leave to File Excess Pages Motion to Extend the Page Limit of Local Civil Rule 7.1(h) by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Attachments: # 1 Proof of Service)(Dix, Nancy) (joeh, ). (Entered: 12/04/2007)
15 RESPONSE in Opposition re 9 MOTION to Dismiss Memorandum of Points and Authorities in Opposition to Defendants' Motion to Dismiss filed by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Attachments: # 1 Proof of Service)(Dix, Nancy) (joeh, ). (Entered: 12/04/2007)
16 NOTICE of Appearance by M Ray Hartman, III on behalf of Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan (Hartman, M) (joeh, ). (Entered: 12/04/2007)
17 ORDER granting 12 Motion for Leave to File Excess Pages; granting 14 Motion for Leave to File Excess Pages. Signed by Judge Roger T. Benitez on 12/07/07. (joeh)(mam). (Entered: 12/07/2007)
18 MINUTE ORDER issued by the Honorable Roger T. Benitez submitting [9−1] Motion to Dismiss. Court to issue Order. Motion Hearing date of 12/17/2007 10:30AM is hereby vacated. (gxr) (Entered: 12/14/2007)
19 MOTION to Certify Class Notice of Motion and Motion for Class Certification by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Attachments: # 1 Memo of Points and Authorities # 2 Exhibit A)(Hartman, M)(joeh, ). (Entered: 02/08/2008)
20 CERTIFICATE OF SERVICE by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan re 19 MOTION to Certify Class Notice of Motion and Motion for Class Certification Proof of Service (Hartman, M) (joeh, ). (Entered: 02/08/2008)
21 Ex Parte MOTION to Stay Ruling on Plaintiffs' Motion for Class Certification by Paul M. Pierre, Emilio T. Gonzalez, Michael Chertoff, Robert S Mueller, III, Alberto Gonzales. (Wilkins, C.) (joeh, ). (Entered: 02/14/2008)
22 RESPONSE in Opposition re 21 Ex Parte MOTION to Stay Ruling on Plaintiffs' Motion for Class Certification Opposition to Defendants' Ex Parte Application Seeking a Stay on the Ruling of Plaintiffs' Motion for Class Certification filed by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Attachments: # 1 Proof of Service)(Hartman, M) (joeh, ). (Entered: 02/20/2008)
23 ORDER granting 21 Motion request for Defendant's opposition to Plaintiff's Motion for Class Certification be due 30 days after the Court's ruling on the Defendant's pending motion to dismiss or partial motion to dismiss. Dft's opposition ddl set for 30 calendar days after the Court's order on Defendants motion to dismiss is entered. Plaintiff's reply shall be due seven calendar days after the due date for Defendant's opposition. The hearing date for Plaintiffs Motion for Class Certification, currently set for April 7, 2008, is vacated. The motion for class certification shall be deemed taken under submission upon the receipt of the reply. Signed by Judge Roger T. Benitez on 02/20/08. (joeh) Modified text on 2/21/2008 (joeh, ). (av1, ). (Entered: 02/21/2008)

Case: 3:07-cv-1667 As of: 11/10/2013 09:30 AM PST 8 of 11

03/03/2008 03/06/2008 03/11/2008
04/28/2008 04/30/2008
04/30/2008
05/05/2008 05/05/2008 05/16/2008 05/22/2008 05/22/2008

24 RESPONSE in Opposition re 9 MOTION to Dismiss Notice of Recent Authority filed by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Attachments: # 1 Exhibit A# 2 Proof of Service)(Hartman, M) (joeh, ). (Entered: 03/03/2008)
25 REPLY re 24 Response in Opposition to Motion To Dismiss Notice of Recent Authority filed by Paul M. Pierre, Emilio T. Gonzalez, Michael Chertoff, Robert S Mueller, III, Alberto Gonzales. (Wilkins, C.) (joeh, ). (Entered: 03/06/2008)
26 ORDER DISMISSING CASE, Determination of Plaintiffs application for naturalization is remanded to United States Citizenship and Immigration Services, with instructions that USCIS adjudicate plaintiffs naturalization without unreasonable delay. Plaintiffs claim of unreasonable delay in violation of the Administrative Procedures Act (APA) is dismissed without prejudice. Plaintiffs claim for violation of the notice and comment provisions of the APA is dismissed without prejudice. Plaintiffs claim for violation of due process is dismissed without prejudice. Signed by Judge Roger T. Benitez on 03/11/08. CC to USCIS.(joeh) (Entered: 03/12/2008)
27 STRIKEN PER ORDER 29 FIRST AMENDED COMPLAINT First Amended Complaint for Declaratory and Injunctive Relief and Petition for Naturalization against all defendants, filed by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Attachments: # 1 Notice)(Hartman, M). Modified on 4/30/2008 (joeh, D). (Entered: 04/28/2008)
28 STRIKEN PER ORDER 29 Amended MOTION to Certify Class Plaintiff's Notice of Amended Motion and Amended Motion for Class Certification by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration David Blair−Loy, # 3 Exhibit Exhibits 1 − 5 of Blair−Loy Declaration, # 4 Declaration Aaron H. Caplan, # 5 Exhibit Exhibits A − D of Caplan Declaration, # 6 Declaration Karen C. Tumlin, # 7 Declaration Cecillia D. Wang, # 8 Proof of Service)(Chen, Karen) Modified on 4/30/2008 (joeh, D). (Entered: 04/30/2008)
29 Discrepancy Order by Judge Roger T. Benitez rejecting document: First Amended Complaint, Amended Motion to Certify Class from Plaintiffs Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan, non−compliance with local rule s, Motions terminated: 28 Amended MOTION to Certify Class Plaintiff's Notice of Amended Motion and Amended Motion for Class Certification filed by Zahra Jamshidi, Mohammad Hashim Naseem, Mehdi Hormozan, Daniel Tartakovsky. Signed by Judge Roger T. Benitez on 04/30/08. (joeh) (av1). (Entered: 04/30/2008)
30 MOTION for Reconsideration by Daniel Tartakovsky. (Attachments: # 1 Motion for Reconsideration, # 2 Declaration David Blair−Loy, # 3 Declaration Wang, # 4 Declaration Tumlin, # 5 Declaration Caplan, # 6 Proof of Service)(Chen, Karen) (ag). Modified on 6/8/2009 to terminate motion, per chambers (asw). (Entered: 05/05/2008)
31 MOTION for Reconsideration by Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Attachments: # 1 Motion for Reconsideration, # 2 Declaration David Blair−Loy, # 3 Declaration Wang, # 4 Declaration Tumlin, # 5 Declaration Caplan, # 6 Proof of Service)(Chen, Karen) (aje). Modified on 6/8/2009 to terminate motion, per chambers (asw). (Entered: 05/05/2008)
32 Joint MOTION for Extension of Time to File Response/Reply / Defendant's opposition by Paul M. Pierre, Emilio T. Gonzalez, Michael Chertoff, Robert S Mueller, III, Alberto Gonzales. (Norris, Raven) (joeh). (Entered: 05/16/2008)
33 NOTICE of Appearance by John R. Bunker on behalf of all defendants (Bunker, John) (joeh). (Entered: 05/22/2008)
35 ORDER granting 32 Motion for Extension of Time to File Response/Reply re 30 MOTION for Reconsideration, 31 MOTION for Reconsideration Responses due by 5/30/2008. Signed by Judge Roger T. Benitez on 05/22/08. (joeh) (av1). (Entered: 05/23/2008)

Case: 3:07-cv-1667 As of: 11/10/2013 09:30 AM PST 9 of 11

05/23/2008
05/30/2008 05/30/2008
06/18/2008
07/08/2008
10/07/2008 10/08/2008 10/10/2008 10/10/2008 10/14/2008 10/14/2008 10/20/2008 10/22/2008 10/27/2008

34 RESPONSE in Opposition re 31 MOTION for Reconsideration, 28 Amended MOTION to Certify Class Plaintiff's Notice of Amended Motion and Amended Motion for Class Certification, 30 MOTION for Reconsideration, 32 Joint MOTION for Extension of Time to File Response/Reply / Defendant's opposition filed by Paul M. Pierre, Emilio T. Gonzalez, Michael Chertoff, Robert S Mueller, III, Alberto Gonzales. (Attachments: # 1 Exhibit PLAINTIFFS' FIRST AMENDED COMPLAINT)(Bunker, John) (jpp). (Entered: 05/23/2008)
36 Minute Order issued by the Honorable Roger T. Benitez: Submitting [30−1] Motion for Reconsideration; submitting [31−1] Motion for Reconsideration. Court to issue Order. Motion Hearing date of 6/2/2008 10:30AM is hereby vacated. (gxr) (Entered: 05/30/2008)
37 REPLY re 31 MOTION for Reconsideration, 30 MOTION for Reconsideration Reply Memorandum of Points and Authorities in Support of Plaintiffs' Motion to Reconsider Order Striking First Amended Complaint and Amended Motion for Class Certification, or in the Alternative, Requesting Leave to File filed by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Attachments: # 1 Proof of Service)(Chen, Karen) (joeh). (Entered: 05/30/2008)
38 NOTICE by Paul M. Pierre, Emilio T. Gonzalez, Michael Chertoff, Robert S Mueller, III, Alberto Gonzales of adjudication of naturalization application of Cristobal Sanchez (Attachments: # 1 Exhibit Copy of Naturalization Certificate of Cristobal Sanchez, # 2 Declaration Declaration of Celia Kynoch)(Bunker, John)(joeh). (Entered: 06/18/2008)
39 NOTICE by Paul M. Pierre, Emilio T. Gonzalez, Michael Chertoff, Robert S Mueller, III, Alberto Gonzales of ADJUDICATION of NATURALIZATION APPLICATION of YULIYA PAST (Attachments: # 1 Exhibit A−−Declaration of Michael Hartsfield, # 2 Exhibit B−−Copy of Naturalization Certificate of Yuliya Past)(Bunker, John) (mdc) (Entered: 07/08/2008)
40 NOTICE OF APPEAL as to 29 Discrepancy Order Rejecting Document, 26 Order Dismissing Case, by Cristobal Sanchez, Yuliya Past, Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Filing Fee: Paid, Receipt No. 155783). (akr) (Entered: 10/08/2008)
Transmission of Notice of Appeal (t/w Representation Statement) and Docket Sheet to US Court of Appeals re 40 Notice of Appeal. (akr) (Entered: 10/08/2008)
41 USCA Case Number 08−56678 for 40 Notice of Appeal, filed by Cristobal Sanchez, Yuliya Past, Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (akr) (Entered: 10/10/2008)
42 USCA Time Scheduling Order as to 40 Notice of Appeal, filed by Cristobal Sanchez, Yuliya Past, Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (akr) (Entered: 10/10/2008)
43 TRANSCRIPT REQUEST by Cristobal Sanchez, Yuliya Past, Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan: No Transcripts Designated re 40 Notice of Appeal. (akr) (Entered: 10/14/2008)
44 Certificate of Record transmitted to USCA re 40 Notice of Appeal. (akr) (Entered: 10/14/2008)
45 PRO HAC VICE APPOINTED: Kathryn Moore appearing for Defendants Paul M. Pierre, Emilio T. Gonzalez, Michael Chertoff, Robert S Mueller, III, Alberto Gonzales (mkz) (Entered: 10/21/2008)
46 ORDER Staying Plaintiffs' Motions for Reconsideration 30 and 31 . Signed by Judge Roger T. Benitez on 10/22/08. (All non−registered users served via U.S. Mail Service).(asw) (av1). (Entered: 10/23/2008)
47 NOTICE of USCA Receipt of Certificate of Record re 40 Notice of Appeal, filed by Cristobal Sanchez, Yuliya Past, Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. USCA Case Number 08−56678. (akr) (Entered: 10/27/2008)

Case: 3:07-cv-1667 As of: 11/10/2013 09:30 AM PST 10 of 11

11/05/2008 11/05/2008
11/13/2008 11/18/2008 11/20/2008 11/21/2008 11/26/2008 12/02/2008 12/10/2008 12/17/2008 01/16/2009 01/26/2009

48 NOTICE of Appearance by Sean Connor Riordan on behalf of Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan (Attachments: # 1 Proof of Service)(Riordan, Sean)(asw). (Entered: 11/05/2008)
49 MOTION for Attorney Fees and Costs by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Attachments: # 1 Memo of Points and Authorities In Support of Motion for Attorneys Fees and Costs, # 2 Declaration Cecillia D. Wang, # 3 Exhibit EX.1 to Cecillia Wang Declaration, # 4 Declaration David Blair−Loy, # 5 Exhibit EX.1 to David Blair−Loy Declaration, # 6 Declaration EX.2 to David Blair−Loy Declaration, # 7 Declaration Sean Riordan, # 8 Exhibit EX.1 to Sean Riordan Declaration, # 9 Exhibit EX.2 to Sean Riordan Declaration, # 10 Declaration Karen S. Chen, # 11 Exhibit EX.1 to Karen Chen Declaration, # 12 Exhibit EX.2 to Karen Chen Declaration, # 13 Declaration M. Ray Hartman III, # 14 Declaration Nancy Dix, # 15 Declaration Mohammad Hashim Naseem, # 16 Proof of Service)(Blair−Loy, John)(asw). (Entered: 11/05/2008)
50 DECLARATION of Daniel Tartakovsky re 49 MOTION for Attorney Fees and Costs Declaration of Daniel Tartakovsky by Plaintiffs Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Attachments: # 1 Proof of Service)(Blair−Loy, John) Modified on 11/19/2008 to clarify text (asw). (Entered: 11/13/2008)
51 DECLARATION of Zahra Jamshidi re 49 MOTION for Attorney Fees and Costs Zahra Jamshidi Declaration by Plaintiffs Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Attachments: # 1 Proof of Service)(Blair−Loy, John) Modified on 11/19/2008 to clarify text (asw). (Entered: 11/18/2008)
52 DECLARATION re 49 MOTION for Attorney Fees and Costs Declaration of Mehdi Hormozan by Plaintiffs Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Attachments: # 1 Proof of Service)(Blair−Loy, John)(asw). (Entered: 11/20/2008)
53 Joint MOTION for Extension of Time to File Response/Reply by Paul M. Pierre, Emilio T. Gonzalez, Michael Chertoff, Robert S Mueller, III, Alberto Gonzales. (Moore, Kathryn)(asw). (Entered: 11/21/2008)
54 NOTICE by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan re 49 MOTION for Attorney Fees and Costs (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration, # 5 Proof of Service)(Blair−Loy, John)(asw). (Entered: 11/26/2008)
55 ORDER granting 53 Joint Motion to Continue Hearing and Briefing Schedule on Plaintiffs−Petitioners' Motion for Attorney's Fees: The Court GRANTS the Motion and ORDERS that the hearing date is continued until 1/5/09, at 10:30 AM. The Court further ORDERS that the parties' response and reply deadlines are based on the new hearing date. Signed by Judge Roger T. Benitez on 12/1/08. (asw) (kaj). Modified on 12/15/2008 to correct hearing time (asw). (Entered: 12/03/2008)
56 Joint MOTION to Continue Hearing and Response and Reply Dates For Plaintiffs−Petitioners' Motion for Attorneys Fees by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. (Attachments: # 1 Proof of Service)(Blair−Loy, John)(asw). (Entered: 12/10/2008)
57 Minute Order issued by the Honorable Roger T. Benitez: The Court GRANTS the Joint Motion to Continue Hearing and Briefing Schedule on Plaintiffs Motion for Attorney's Fees (Dkt. No. 56) and orders the hearing date continued from 1/5/09 to 2/2/09 10:30 AM in Courtroom 03 before Judge Roger T. Benitez. Deadlines for briefing the Motion (Dkt. No 49) are based on the new hearing date. (gxr) (Entered: 12/17/2008)
58 RESPONSE in Opposition re 49 MOTION for Attorney Fees and Costs filed by Paul M. Pierre, Emilio T. Gonzalez, Michael Chertoff, Robert S Mueller, III, Alberto Gonzales. (Moore, Kathryn) (cap). (Entered: 01/16/2009)
59 REPLY to Response to Motion re 49 MOTION for Attorney Fees and Costs filed by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi

Case: 3:07-cv-1667 As of: 11/10/2013 09:30 AM PST 11 of 11

01/28/2009 01/29/2009 04/06/2009
04/22/2009 08/10/2009

Hormozan. (Attachments: # 1 Declaration Sean Riordan, # 2 Exhibit to declaration, # 3 Exhibit to declaration, # 4 Proof of Service)(Blair−Loy, John)(asw). (Entered: 01/26/2009)
60 Minute Order issued by the Honorable Roger T. Benitez: Submitting 49 MOTION for Attorney Fees and Costs. Court to issue Order. Motion Hearing date of 2/2/2009 10:30AM is hereby vacated. (gxr) (Entered: 01/28/2009)
61 NOTICE by Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan re 49 MOTION for Attorney Fees and Costs (Attachments: # 1 Exhibit Exhibit 1, # 2 Proof of Service)(Blair−Loy, John)(asw). (Entered: 01/29/2009)
62 ORDER of USCA as to 40 Notice of Appeal, filed by Cristobal Sanchez, Yuliya Past, Daniel Tartakovsky, Mohammad Hashim Naseem, Zahra Jamshidi, Mehdi Hormozan. Pursuant to the stipulation of the parties, this appeal is voluntarily dismissed. The parties shall bear their own costs and attorneys' fees on appeal. This order served on the USDC shall act as and for the mandate of the USCA. (akr) (Entered: 04/06/2009)
63 NOTICE re 58 Response in Opposition to Motion Relevant Recent Decisions by Paul M. Pierre, Emilio T. Gonzalez, Michael Chertoff, Robert S Mueller, III, Alberto Gonzales (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Moore, Kathryn)(asw). (Entered: 04/22/2009)
64 ORDER denying 49 Motion for Attorney Fees and Costs. Because the Court finds that Plaintiffs are not prevailing parties, the motion is DENIED. Signed by Judge Roger T. Benitez on 8/10/09. (asw) (jrl). (Entered: 08/10/2009)