Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 1 of 36

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------X RAISA YAKUBOVA, EMMA UNGURYAN, BELLA VESNOVSKAYA, DAVID VESNOVSKIY, VYACHESLAV VOLOSIKOV, and SHEHATA AWAD IBRAHIM, on behalf of themselves and all others similarly situated,

Plaintiffs,
- against -
MICHAEL CHERTOFF, in his official capacity as Secretary of the Department of Homeland Security, EMILIO GONZALEZ, in his official capacity as the Director of the United States Citizenship and Immigration Services, MARY ANN GANTNER, in her official capacity as District Director of the New York City District of the United States Citizenship and Immigration Services, ALBERTO GONZALES, in his official capacity as Attorney General of the United States, and ROBERT S. MUELLER, in his official capacity as the Director of the Federal Bureau of Investigation,
Defendants. ---------------------------------------------------------------------X

06 Civ. 3203 (ECF CASE)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR A PRELIMINARY
INJUNCTION AND CLASS CERTIFICATION PRELIMINARY STATEMENT
Plaintiffs bring this class action for declaratory and injunctive relief against Defendants MICHAEL CHERTOFF, EMILIO GONZALEZ, MARY ANN GANTNER, ALBERTO R. GONZALES and ROBERT S. MUELLER pursuant to 5 U.S.C. § 706(1) and 8 U.S.C. § 1447(b), to redress and enjoin (1) the wrongful failure of Defendants CHERTOFF, GONZALEZ,
-1-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 2 of 36
and GANTER ("USCIS Defendants") and Defendant GONZALES to grant or deny proposed class members’ applications for naturalization within 120 days of their initial examinations in violation of 8 U.S.C. § 1447(b) and 8 C.F.R. § 335.3, and within a reasonable time in violation of 5 U.S.C. § 555(b); (2) the wrongful failure of Defendants MUELLER and GONZALES to complete all background checks that are necessary for the adjudication of proposed class members’ naturalization applications, for which the Federal Bureau of Investigation (“FBI”) is responsible, within a reasonable time in violation of 5 U.S.C. § 555(b); and (3) the wrongful failure of Defendants CHERTOFF, GONZALEZ, GANTNER, GONZALES and MUELLER (“all Defendants”) to collectively take all steps necessary to adjudicate proposed class members’ applications for naturalization within a reasonable time in violation of 5 U.S.C. § 555(b).
Plaintiffs submit this memorandum of law in support of their motion for a preliminary injunction (1) immediately remanding the naturalization applications of the Named Plaintiffs and other members of the proposed class identified in Paragraph 65 of the complaint (hereinafter collectively “identified class members”) to USCIS Defendants and Defendant GONZALES; (2) ordering Defendants GONZALES and MUELLER within twenty-five days of the remand to complete all background checks for which the FBI is responsible that are necessary to adjudicate the naturalization applications of identified class members; (3) ordering all Defendants collectively within thirty-five days of the remand to complete all steps necessary to adjudicate the naturalization applications of identified class members; and (4) ordering USCIS Defendants and Defendant GONZALES to grant or deny the naturalization applications of identified class members within forty-five days of the remand, and in support of their motion for class certification.
-2-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 3 of 36
STATUTORY AND REGULATORY SCHEME A. IMMIGRATION AND NATIONALITY ACT The federal Constitution grants Congress the power to “establish a Uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. In the Immigration Act of 1990, Congress vested the Attorney General with “sole authority to naturalize persons as citizens of the United States.” 8 U.S.C. § 1421(a). The Attorney General has delegated the authority to administer and enforce the Immigration and Nationality Act and all other laws relating to immigration, naturalization and nationality to the Director of United States Citizenship and Immigration Services (“USCIS”). 6 U.S.C. § 271(b); 8 U.S.C. § 1103(a) (1); 8 C.F.R. § 100.2(a); 28 C.F.R. 0.105.1 In order to apply for naturalization, a lawful permanent resident must file an application for naturalization with USCIS. 8 U.S.C. § 1445(a) (b); 8 C.F.R. §§, 316.4, 334.1, 334.2. A USCIS immigration officer must conduct an examination of the applicant for naturalization. 8 U.S.C. § 1446(a); 8 C.F.R. §§ 335.2, 332.1. The immigration officer must then determine whether the application should be granted or denied, with reasons therefore. 8 U.S.C. § 1446(d). Subsequent to the filing of an application for naturalization and before a person may be naturalized, USCIS must conduct a background investigation of the applicant. 8 U.S.C. § 1446(a); 8 C.F.R. §§ 335.1, 335.2. Since 1997, Congress has also required that a complete FBI criminal background investigation be conducted on each applicant for citizenship. Pub.L. 105119, Title I, 111 Stat. 2440, 2448- 49 (1997); 8 C.F.R. § 335.2(b).
1 On March 1, 2003, the Immigration and Naturalization Service (“INS”) ceased to exist and its principal functions were transferred to the newly created USCIS within the Department of Homeland Security. See Homeland Security Act of 2002, Pub. L. No. 107-296, §471, 116 Stat. 2135, 2205 (codified at 6 U.S.C. § 291(a)). Authority and responsibility to administer and enforce all laws pertaining to immigration, including the adjudication of naturalization applications, was transferred from the Commissioner of the INS to the Director of the USICS. See 6 U.S.C. § 271(b)(2).
-3-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 4 of 36
USCIS shall grant naturalization applications if applicants have met all requirements for naturalization. 8 C.F.R. § 335.3(a). A decision to grant or deny the naturalization application must take place “at the time of the initial examination or within 120-days after the date of the initial examination.” 8 C.F.R. § 335.3(a). USCIS may conduct a reexamination to afford the applicant an opportunity to overcome any deficiencies on the application that may arise during the examination. 8 C.F.R. § 335.3(b). A reexamination on the continued case must be scheduled within 120 days after the initial examination. 8 C.F.R. § 335.3(b).
If USCIS fails to make a determination on a naturalization application within 120 days of an initial examination, the applicant may appeal to the district court in the district in which he or she resides for a hearing, pursuant to 8 U.S.C. § 1447(b) and 8 C.F.R. § 310.5.
8 U.S.C. § 1447(b), provides that: If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.
8 C.F.R. § 310.5 states “[a]n applicant for naturalization may seek judicial review of a pending application for naturalization in those instances where the Service fails to make a determination under section 335 of the Act within 120 days after an examination is conducted under part 335 of this chapter.” 8 C.F.R. § 310.5.
8 U.S.C. § 1571 directs that “it is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application... .” 8 U.S.C. § 1571. The term "immigration benefit application" means
-4-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 5 of 36

any application or petition to confer, certify, change, adjust, or extend any status granted under

the Immigration and Nationality Act [8 U.S.C.A. § 1101 et seq.], including naturalization. 8

U.S.C. § 1572.

“The Attorney General shall take such measures as may be necessary to-- (1) reduce the

backlog in the processing of immigration benefit applications, with the objective of the total

elimination of the backlog 1 year after November 25, 2002; (2) make such other improvements

in the processing of immigration benefit applications as may be necessary to ensure that a

backlog does not develop after such date; and (3) make such improvements in infrastructure as

may be necessary to effectively provide immigration services.” 8 U.S.C. § 1573.

B. THE ADMINISTRATIVE PROCEDURE ACT

The Administrative Procedure Act (“APA”) directs agencies to conclude matters

presented to them “within a reasonable time.” 5 U.S.C. § 555(b). When an agency fails to

conclude a matter presented to it within a reasonable time, the APA grants judicial review to

“compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1).

“Agency action” is defined by the APA as “the whole or part of an agency rule, order, license,

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

STATEMENT OF FACTS

A.

Background

USCIS Defendants and Defendant GONZALES have a custom and practice of failing to

grant or deny proposed class members’ applications for naturalization within 120 days of their

initial examinations, and of unlawfully withholding and unreasonably delaying the adjudication

of proposed class members’ applications for naturalization. Defendants GONZALES and

-5-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 6 of 36

MUELLER have a custom and practice of failing to complete within a reasonable time the

background checks that are necessary for adjudication of proposed class members’ naturalization

applications, for which the FBI is responsible. Collectively, all Defendants have a custom and

practice of failing to take all steps necessary to adjudicate proposed class members’ applications

for naturalization within 120 days of the date of their initial examinations.

As a result, proposed class members routinely wait six months or longer after the date of

their initial examinations to receive a determination on their naturalization applications. When

inquiries are made regarding the status of proposed class members’ naturalization applications,

USCIS Defendants routinely respond that the naturalization application cannot be determined

because of pending “security checks” and/or “name checks” and/or “agency checks” and/or

“background checks”.

Plaintiffs’ Counsel have identified and listed over 100 members of the proposed class, in

addition to the Named Plaintiffs, whose pending naturalization applications have not been

adjudicated within 120 days of the date of their initial examinations. (Complaint ¶65).

This delay causes them substantial and irreparable harm.

B.

Individual Plaintiffs

RAISA YAKUBOVA

RAISA YAKUBOVA (“Ms. YAKUBOVA”) is a lawful permanent resident of the

United States and native of Uzbekistan. (Yakubova Decl. ¶ 2). She immigrated to the United

States as a refugee on November 27, 1998. (Yakubova Dec. ¶ 3). Ms. YAKUBOVA suffers

from high blood pressure, kidney problems, arthritis and depression, and was entitled to receive

SSI benefits from the date of her arrival. (Yakubova Decl. ¶ 5). Ms. YAKUBOVA submitted

-6-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 7 of 36
an application for naturalization to USCIS on February 13, 2004, after five years of lawful permanent residency. (Yakubova Decl. ¶ 6).
On April 21, 2005, Ms. YAKUBOVA had her initial examination in connection with her naturalization application at USCIS. (Yakubova Decl. ¶ 7). The Service Officer informed Ms. YAKUBOVA that she had passed all of the relevant examinations and congratulated her. (Yakubova Decl. ¶ 8). The Service Officer further advised Ms. YAKUBOVA that she would be scheduled for an oath ceremony. (Yakubova Decl. ¶ 8).
Well over a year has passed since Ms. YAKUBOVA’s examination and her naturalization application has not yet been granted or denied. (Yakubova Decl. ¶ 16). In July of 2005, Ms. YAKUBOVA contacted USCIS and inquired about the status of her application. (Yakubova Decl. ¶ 10). By letter dated July 28, 2005, USCIS informed Ms. YAKUBOVA that her application was “pending required agency checks.” (Yakubova Decl. ¶ 11). In November of 2005, Ms. YAKUBOVA contacted U.S. Representative Anthony David Weiner and asked him to make an inquiry to USCIS about the status of her naturalization application. (Yakubova Decl. ¶ 12). On November 28, 2005, Representative Weiner received a memorandum from the U.S. Department of Homeland Security that said “applicant’s case is currently pending security agency checks.” (Yakubova Decl. ¶ 12). Also in November of 2005, Ms. YAKUBOVA again personally contacted USCIS about her application. (Yakubova Decl. ¶ 13). In a letter dated December 3, 2005, USCIS informed Ms. YAKUBOVA that “the processing of your case has been delayed. We are currently awaiting the results of required security checks. . .” (Yakubova Decl. ¶ 13). In February of 2006, a representative contacted USCIS on Ms. YAKUBOVA’s behalf about her application. (Yakubova Decl. ¶ 14). By letter dated February 10, 2006, USCIS
-7-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 8 of 36
informed her representative that “we have to perform additional review on this case and this has caused a longer processing time.” (Yakubova Decl. ¶ 14). In March of 2006, another representative contacted USCIS on Ms. YAKUBOVA’s behalf about her application. (Yakubova Decl. ¶ 15). By letter dated May 4, 2006, USCIS informed her representative that “the processing of your case has been delayed. A check of our records establishes that your case is not yet ready for decision, as the required investigation into your background remains open.” (Yakubova Decl. ¶ 15). On June 21, 2006 USCIS sent Ms. YAKUBOVA a notice scheduling her for a fingerprinting appointment, stating “[t]o continue processing your N-400 application, INS must send your fingerprints to the Federal Bureau of Investigation.” (Complaint ¶53). Ms. YAKUBOVA had already submitted her fingerprints to USCIS as required prior to her initial examination on June 3, 2004. (Complaint ¶53). It appears that Ms. YAKUBOVA has been scheduled for fingerprinting for a second time because her first set of fingerprints have expired due to Defendants’ delay in processing her naturalization application.
Ms. YAKUBOVA has been and continues to be substantially injured by this delay. In December of 2005, Ms. YAKUBOVA lost her SSI benefits because refugees are only entitled to receive SSI benefits for seven years, although she had applied for citizenship over nineteen months prior. (Yakubova Decl. ¶ 17). 2 As a result, Ms. YAKUBOVA’s depression is
2 The Personal Responsibility and Work Opportunity Reconciliation Act (“PRWORA”), among other things, limits the eligibility of certain categories of aliens to receive the benefits of certain federal programs, including SSI and “supplementary payments pursuant to an agreement for Federal administration. . .”8 USC § 1612(a) (3). PRWORA dictates that humanitarian-based immigrants, arriving in the United States after August 22, 1996, are only eligible to receive SSI for seven years. 8 USC § 1612(a) (2) (A). “Humanitarian-based immigrants” are refugees, asylees, and persons granted withholding of deportation, all of whom are granted indefinite residency in the United States because they face persecution in their home country. 8 USC § 1612(a) (2) (A); 8 U.S.C.A. § 1157; 8 U.S.C.A. § 1158.
-8-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 9 of 36
becoming more and more severe and her general health condition has deteriorated. (Yakubova Decl. ¶ 20). Her kidney problems and hypertension have continued to worsen. (Yakubova Decl. ¶ 20). Ms. YAKUBOVA has begun to lose hope that she will ever become a citizen. (Yakubova Decl. ¶ 21). Ms. YAKUBOVA’s life has been substantially stalled. EMMA UNGURYAN
EMMA UNGURYAN (“Ms. UNGURYAN”) is a 63-year-old lawful permanent resident of the United States and native of Ukraine. (Unguryan Decl. ¶¶ 1, 2). She immigrated to the United States on February 11, 1998, and was granted refugee status because in Ukraine, Ms. UNGURYAN was persecuted because she is Jewish. (Unguryan Decl. ¶ 2). Ms. UNGURYAN is a Holocaust survivor. (Unguryan Decl. ¶ 2). During 2002, Ms. UNGURYAN fell ill and became entitled to receive SSI benefits. (Unguryan Decl. ¶4). Ms. UNGURYAN submitted an application for naturalization to USCIS on January 12, 2004, after five years of lawful permanent residency. (Unguryan Decl. ¶ 5, 6). At that time, she requested a “Disability Exception” from the requirement that all applicants demonstrate English language ability and knowledge of United States history and government. (Unguryan Decl. ¶ 7). On October 13, 2004, Ms. UNGURYAN was examined by a Service Officer at USCIS in relation to her naturalization applications. (Unguryan Decl. ¶ 8). The Service Officer informed her at that interview that her request for a Disability Exception had been granted and that she would receive a letter via mail advising her of the time, date and location of her oath ceremony. (Unguryan Decl. ¶ 9). Over nineteen months have passed since the date of Ms. UNGURYAN’s initial examination, and USCIS has not contacted her regarding the status of her naturalization application. (Unguryan Decl. ¶ 11).
-9-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 10 of 36
Ms. UNGURYAN has been and continues to be substantially injured by this delay. In February 2005, Ms. UNGURYAN lost her SSI benefits because she was not a U.S. citizen, even though she had submitted her naturalization application over a year earlier in January of 2004. (Unguryan Decl. ¶ 16). Although she receives cash public assistance, it has become impossible for Ms. UNGURYAN to survive financially, and she has become dependent upon her daughter for basic life necessities. (Unguryan Decl. ¶ 17).
Over the past nineteen months, Ms. UNGURYAN has been increasingly anxious and worried about her immigration status. (Unguryan Decl. ¶ 19). Her blood pressure has become more unstable and her insomnia has worsened. (Unguryan Decl. ¶ 19). She has become very depressed. (Unguryan Decl. ¶ 19). Ms. UNGURYAN’s life has been substantially stalled. BELLA VESNOVSKAYA & DAVID VESNOVSKIY
BELLA VESNOVSKAYA (“Ms. VESNOVSKAYA”) is a 68-year-old lawful permanent resident of the United States and native of Russia. (Vesnovskaya Decl. ¶¶ 1, 2). DAVID VESNOVSKIY (“Mr. VESNOVSKIY”) is a 72-year-old lawful permanent resident of the United States and native of Russia. (Vesnovskiy Decl. ¶¶ 1, 2). Mr. VESNOVSKIY and Ms. VESNOVSKAYA have been married for 47 years, and emigrated together from Novosibirsk, Russia to the United States as refugees on October 1, 1999. (Vesnovskiy Decl. ¶ 3; Vesnovskaya Decl. ¶¶ 1, 3). They were granted refugee status because in their country of origin they faced substantial persecution because they are Jewish. (Vesnovskiy Decl. ¶ 4; Vesnovskaya Decl. ¶¶ 4, 5). Mr. VESNOVSKIY suffers from multiple medical problems, and was entitled to receive SSI benefits from the date of his arrival. (Vesnovskiy Decl. ¶¶ 7, 8). Ms. VESNOVSKAYA was entitled to receive SSI benefits from her sixty-fifth birthday, in 2001. (Vesnovskaya Decl. ¶
-10-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 11 of 36
7). On December 13, 2004, after five years of lawful permanent residence in the United States, Mr. VESNOVSKIY and Ms. VESNOVSKAYA applied for naturalization. (Vesnovskiy Decl. ¶ 9; Vesnovskaya Decl. ¶ 8). At that time, Mr. VESNOVSKIY requested a “Disability Exception” from the requirement that all applicants demonstrate English language ability and knowledge of United States history and government. (Vesnovskiy Decl. ¶ 9). While Ms. VESNOVSKAYA is also disabled, she did not apply for a Disability Exception because she had spent a significant amount of time learning English and wanted to take and pass the naturalization exam. (Vesnovskaya Decl. ¶ 9).
On November 17, 2005, Ms. VESNOVSKAYA was examined by a Service Officer at USCIS, and was informed by that Service Officer that she had passed the naturalization exam. (Vesnovskaya Decl. ¶10). On November 18, 2005, Mr. VESNOVSKIY was examined by a Service Officer at USCIS and was informed that USCIS had granted his request for a Disability Exception. (Vesnovskiy Decl. ¶ 10). At that time, he received a “Congratulations!” letter stating “[y]our application has been recommended for approval, At the time, it appears that you have established your eligibility for naturalization. If final approval is granted, you will be notified when and where to report for the Oath Ceremony.” (Vesnovskiy Decl., Exhibit A).
Since that time, neither Mr. VESNOVSKIY nor Ms. VESNOVSKAYA have been scheduled for the oath administration ceremony, and they have not been notified as to whether their naturalization applications were granted or denied. (Vesnovskiy Decl. ¶ 11; Vesnovskaya Decl. ¶ 13). In February of 2006, Mr. VESNOVSKIY and Ms. VESNOVSKAYA’s assemblyman, William Colton, made an inquiry to the USCIS about the status of their applications. (Vesnovskaya Decl. ¶ 12). He received a memorandum dated March 9, 2006 that
-11-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 12 of 36
stated, “please be advised that according to USCIS records, applicants’ cases are currently pending security agency checks.” (Vesnovskaya Decl., Exhibit B).
Both Mr. VESNOVSKIY and Ms. VESNOVSKAYA have been and are being substantially injured by Defendants’ failure to process their naturalization applications in a timely manner. They will be further irreparably injured if their applications are not processed and adjudicated in the immediate future, as Mr. VESNOVSKIY and Ms. VESNOVSKAYA will both lose their life sustaining SSI benefits on October 1, 2006. (Vesnovskiy Decl. ¶ 12; Vesnovskaya Decl. ¶ 14). If they both lose their benefits, they will face a loss of over $500 per month. (Vesnovskiy Decl. ¶ 14; Vesnovskaya Decl. ¶ 14). They will no longer be able to afford their rent and will be in danger of becoming homeless. (Vesnovskiy Decl. ¶ 14; Vesnovskaya Decl. ¶ 15). This looming deadline causes Mr. VESNOVSKIY and Ms. VESNOVSKAYA extreme anxiety and stress. (Vesnovskiy Decl. ¶ 14; Vesnovskaya Decl. ¶ 15). Mr. VESNOVSKIY’s existing medical conditions have been greatly exacerbated by the stress of waiting for a decision on his naturalization application. (Vesnovskiy Decl. ¶ 17). He has begun to suffer memory loss, does not sleep well, and gets tired very quickly. (Vesnovskiy Decl. ¶ 17). Ms. VESNOVSKAYA has been increasingly anxious about the determination and now has trouble sleeping. (Vesnovskaya Decl. ¶ 16). Her depression has worsened and she feels increasingly despondent. (Vesnovskaya Decl. ¶ 16).
Additionally, Mr. VESNOVSKIY and Ms. VESNOVSKAYA are afraid to take a vacation for even a short period because they fear missing their swearing in ceremonies. (Vesnovskiy Decl. ¶ 15; Vesnovskaya Decl. ¶ 17). They are not able to travel and see their daughter and her husband and their grandchildren who live in Israel. (Vesnovskiy Decl. ¶ 15;
-12-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 13 of 36
Vesnovskaya Decl. ¶ 18). This summer, their granddaughter is scheduled to start the Army service that is mandated in Israel for all Israeli citizens and their daughter offered to pay for plane tickets for Mr. VESNOVSKIY and Ms. VESNOVSKAYA to fly to Israel. (Vesnovskiy Decl. ¶ 15; Vesnovskaya Decl. ¶ 18). Mr. VESNOVSKIY and Ms. VESNOVSKAYA are heartbroken that they cannot see their granddaughter before she begins her service, but will not risk missing their opportunity to become citizens of the United States. (Vesnovskaya Decl. ¶ 18). Mr. VESNOVSKIY and Ms. VESNOVSKAYA’s lives have been substantially stalled. VYACHESLAV VOLOSIKOV
VYACHESLAV VOLOSIKOV (“Mr. VOLOSIKOV”) is a 71-year-old lawful permanent resident of the United States and native of Russia. (Volosikov Decl. ¶¶ 1, 2). He immigrated to the United States on November 19, 1999, as a “Lautenberg parolee” (a parolee in the public interest). (Volosikov Decl. ¶ 3). Mr. VOLOSIKOV is severely disabled and suffers from a variety of illnesses. (Volosikov Decl. ¶ 5). Mr. VOLOSIKOV submitted an application for naturalization to USCIS on November 17, 2004, after five years of lawful permanent residency. (Volosikov Decl. ¶ 6). At that time, he requested a “Disability Exception” from the requirement that all applicants demonstrate English language ability and knowledge of United States history and government. (Volosikov Decl. ¶ 6). On November 10, 2005, Mr. VOLOSIKOV was examined by a Service Officer at USCIS. (Volosikov Decl. ¶ 6). That Service Officer informed him at that examination that his request for a Disability Exception had been granted. (Volosikov Decl. ¶ 7). The Service Officer further informed Mr. VOLOSIKOV that he had to submit a “Good Conduct Certificate” because the results of his fingerprints were not acceptable. (Volosikov Decl. ¶ 7). On December 1, 2005, Mr. VOLOSIKOV’s attorneys
-13-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 14 of 36
sent the required “Good Conduct Certificate” to the USCIS by certified mail. (Volosikov Decl., Exhibit D).
Since that day over six months ago, Mr. VOLOSIKOV has not been contacted by USCIS Defendants, he has not been scheduled for the oath ceremony, and he has not been notified as to whether his application was granted or denied. (Volosikov Decl. ¶ 9). The delay is causing Mr. VOLOSIKOV severe anxiety and depression. (Volosikov Decl. ¶ 14). He cannot sleep at all, and sleep medication does not help him. (Volosikov Decl. ¶ 14). Additionally, Mr. VOLOSIKOV has recently developed angina and his doctors have told him that he needs a catheterization procedure to treat it. (Volosikov Decl. ¶ 15). However, he will not undergo this serious procedure for fear that while he is incapacitated, his invitation to take the naturalization oath will come and he will miss his long awaited opportunity. (Volosikov Decl. ¶ 15). Mr. VOLOSIKOV’s life has been substantially stalled.
Mr. VOLOSIKOV is further harmed because he may not be able to vote in upcoming elections. (Volosikov Decl. ¶ 17). A journalist from a Russian weekly newspaper called Vechriniy New York has decided to run for a city council position in the upcoming election for Mr. VOLOSIKOV’s district. (Volosikov Decl. ¶ 17). The candidate is a very famous journalist in the Russian community and Mr. VOLOSIKOV strongly supports his position. (Volosikov Decl. ¶ 17). Mr. VOLOSIKOV follows local and national politics in the United States very closely, and is deeply upset that he has not been able to and may not be able to participate as a citizen. (Volosikov Decl. ¶¶ 17, 18).
-14-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 15 of 36
SHEHATA AWAD IBRAHIM SHEHATA AWAD IBRAHIM (“Mr. IBRAHIM”) is an 80-year-old lawful permanent
resident of the United States and native of Egypt. (Ibrahim Decl. ¶¶ 1, 2). He immigrated to the United States on September 13, 1996. (Ibrahim Decl. ¶ 3). Mr. IBRAHIM suffers from the early stages of Alzheimer’s disease, and has very poor vision and hearing. (Ibrahim Decl. ¶ 5). Mr. IBRAHIM submitted an application for naturalization to USCIS on April 28, 2004. (Ibrahim Decl. ¶ 6). At that time, he requested a “Disability Exception” from the requirement that all applicants demonstrate English language ability and knowledge of United States history and government. (Ibrahim Decl. ¶ 6). During his initial examination for naturalization, his interviewer told him that he did not have the correct medical documentation to be granted a “Disability Exception” and gave him the proper form to fill out. (Ibrahim Decl. ¶ 7). Mr. IBRAHIM then resubmitted his request for a “Disability Exception.” (Ibrahim Decl. ¶ 8). On October 27, 2005, Mr. IBRAHIM was examined with regard to his naturalization application by a Service Officer at USCIS. (Ibrahim Decl. ¶¶ 9, 10). The Service Officer informed him at that interview that his request for a Disability Exception had now been granted. (Ibrahim Decl. ¶ 10). Mr. IBRAHIM was then advised that an invitation letter to participate in an oath ceremony would be mailed to him. (Ibrahim Decl. ¶ 11).
Over 7 months have elapsed since his examination but Mr. IBRAHIM has not been scheduled for the oath ceremony as promised. (Ibrahim Decl. ¶ 12). Mr. IBRAHIM has been and continues to be substantially injured by this delay. Mr. IBRAHIM has been subjected to great anxiety waiting for his application to be adjudicated. (Ibrahim Decl. ¶ 14). This anxiety is causing him to suffer insomnia and depression. (Ibrahim Decl. ¶ 14). Additionally, as an Arab
-15-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 16 of 36
who is not a citizen of the United States, in the current political and social climate Mr. IBRAHIM feels scrutinized and uncomfortable. (Ibrahim Decl. ¶ 15). Mr. IBRAHIM despairs that he will not become a citizen of the United States while he is still able to participate effectively. (Ibrahim Decl. ¶ 16). Mr. IBRAHIM’s life has been substantially stalled.
ARGUMENT I. PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION Plaintiffs are entitled to a preliminary injunction (1) immediately remanding the naturalization applications of the identified class members to USCIS Defendants and Defendant GONZALES; (2) ordering Defendants GONZALES and MUELLER within twenty-five days of the remand to complete all criminal background checks for which the FBI is responsible that are necessary to adjudicate the naturalization applications of identified class members; (3) ordering all Defendants collectively within thirty-five days of the remand to complete all steps necessary to adjudicate the naturalization applications of identified class members; and (4) ordering USCIS Defendants and Defendant GONZALES to adjudicate the naturalization applications of identified class members within forty-five days of the remand. Plaintiffs satisfy the test established by courts in this Circuit for the granting of preliminary injunctive relief by showing (1) a threat of irreparable injury; (2) either a probability of success on the merits or sufficiently serious questions going to the merits of the claims to make them a fair ground of litigation; and (3) a balance of hardships tipping decidedly in their favor. Tunick v. Safir, 209 F.3d 67, 70 (2d Cir. 2000); Time Warner Cable of New York City v. Bloomberg L.P., 118 F.3d 917, 923 (2d Cir. 1997). Plaintiffs have suffered and continue to
-16-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 17 of 36
suffer irreparable injury because they are being unlawfully deprived of the many unique benefits of citizenship, including the right to vote and to receive life sustaining federal SSI benefits.
Plaintiffs are likely to succeed on the merits because Defendants have failed to complete all steps necessary to adjudicate Plaintiffs’ naturalization applications within a reasonable period, and USCIS Defendants and Defendant GONZALES have failed to adjudicate Plaintiffs’ naturalization applications within 120 days of their initial examinations and within a reasonable time, in violation of federal law and regulations. Finally, the balance of hardships tips decidedly in Plaintiffs’ favor, as Plaintiffs have been and continue to be denied all of the benefits of citizenship while Defendants unlawfully fail to comply with statutory and regulatory mandates that they make determinations within the legally required time frame.
A. Identified Class Members Are Suffering Irreparable Harm The Second Circuit has noted that the finding of irreparable harm is perhaps the single
most important factor necessary to the proper issuance of a preliminary injunction. Citibank, N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir. 1985). Irreparable harm is defined as an “injury for which a monetary award cannot be adequate compensation.” Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979).
A monetary award cannot redress the injury Plaintiffs suffer as a result of being deprived of citizenship. Many of Plaintiffs are elderly and/or infirm. Delays in the provisions of any benefits thus cause them particular injury, as they despair of living long enough or being well enough to enjoy entitlements not granted promptly. They are being denied, inter alia, the right to vote, the right to obtain United States passports, the right to file visa petitions for immediate
-17-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 18 of 36
relatives as U.S. citizens, the protection of the United States government when outside the United States and the right to life sustaining federal benefits.
Preventing injury such as that suffered by Plaintiffs was, in fact, one of the reasons that Congress enacted 8 U.S.C. 1447(b). See, Zaranska v. U.S. Dept. of Homeland Security, 400 F.Supp.2d 500, 510-511 (E.D.N.Y. 2005). This court, in reviewing the House Judiciary Committee Report regarding the enactment of section 1447(b), quoted the Congressional observation that “[n]aturalization is an act of great personal consequence to American Immigrants, involving major reorganizations in their sense of identity and offering a new beginning for many" and the Congressional observation that "citizenship is the most valued governmental benefit of this land.” Zaranska, 400 F.Supp.2d at 510-511 (citing H.R.Rep. No. 101-187, at 8, 12-13 (1989); 135 Cong. Rec. H4539-02, H4542 (statements of Rep. Morrison and Smith)).
In Campos v. I.N.S., 70 F.Supp.2d 1296, 1300 (S.D.Fla. 1998), a class of legal permanent residents (“LPRs”) who had submitted naturalization applications brought an action against the Immigration and Naturalization Service (“INS”), challenging the INS' practices in its Miami District for evaluating requests for medical waivers of the English language and civics components of the naturalization exam. The Campos plaintiffs argued that if a preliminary injunction were not granted, they would be irreparably harmed in that they would “lose the opportunity to vote, receive benefits, or otherwise fully participate in our democracy as United States citizens.” Id. at 1309. The court agreed, holding that “[t]he law is well established that denial of the opportunity to vote is irreparable injury per se,” and that the “plaintiffs have demonstrated irreparable injury because they have shown that in light of their advanced age and
-18-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 19 of 36
infirmities, it is likely that the plaintiffs may not survive the lengthy administrative appeals process and they may also be deprived of an opportunity to be heard on the issues presented by the class complaint.” Id. at 1309-1310. So too in the instant case, wherein many members of proposed Plaintiff class are elderly and/or infirm, and may be deprived of the opportunity to become citizens altogether but for this Court’s grant of the requested preliminary relief.
The Campos court also noted that, as in the case at bar, “[a]lthough not relied on by the court in determining whether this preliminary injunction should be granted, there is evidence in the record that shows that some of the applicants have been receiving life-sustaining supplemental income benefits which will, or have been discontinued. The court is concerned that the loss of these benefits will place the plaintiffs in jeopardy.” 70 F.Supp.2d at 1309. Such jeopardy also exists in this case, where a future monetary award cannot possibly redress Plaintiffs’ current and imminent loss of their life sustaining SSI benefits.
Courts consistently find the loss of life sustaining welfare benefits, even for a short period, to constitute irreparable injury. For instance, in Abreu v. Callahan, 971 F.Supp. 799, 803 (S.D.N.Y. 1997), the City of New York and a class of LPRs who would be rendered ineligible to receive SSI and food stamps by the newly enacted Welfare Reform Act brought an action alleging that the application of the Welfare Reform Act to them violated their equal protection rights, and sought a preliminary injunction against its enforcement. The court, in finding that the plaintiff class satisfied the threat of irreparable harm standard, stated:
Here, the threat of irreparable injury is manifest. Persons who establish eligibility for SSI benefits and food stamps are living at society's edge, well below the poverty line. While welfare benefits are money or money's equivalent, their denial almost universally has been regarded as irreparable injury because welfare recipients depend upon them not merely as a convenient medium of exchange, but to sustain life.
-19-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 20 of 36
Abreu, 971 F.Supp. at 821; See also, Cullins v. Bowen, No. 84 CIV. 5094 (CBM), 1987 WL 10737, *5 (S.D.N.Y. May 06, 1987) (finding “the economic straits of the plaintiff class, which are by definition desperate, compel a finding that plaintiffs meet the ‘irreparable harm’ prong of this test.”); Laboratories, Inc. v. I.N.S, 523 F.2d 79, 81 (2d Cir. 1975) (“substantial loss of income” may constitute irreparable harm justifying a preliminary injunction); Becker v. Toia, 439 F. Supp. 324, 336 (S.D.N.Y. 1977) (requirement that select Medicaid recipients make copayments not to exceed 50 cents causes irreparable harm).
B. Plaintiffs Are Likely to Prevail on The Merits i. Plaintiffs Are Likely to Prevail on the Merits
Of Their Claim that USCIS Defendants and Defendant GONZALES Have Violated 8 U.S.C. §1447(b) and 8 C.F.R. § 335.3 Plaintiffs are likely to prevail on their claim that USCIS Defendants and Defendant GONZALES’ failure to adjudicate Plaintiffs’ applications for naturalization within 120 days of their initial examinations violates 8 U.S.C. §1447(b) and 8 C.F.R. § 335.3. Plaintiffs are all individuals who have submitted or will submit applications to be naturalized to the USCIS and who have not received or will not receive determinations on their applications within 120 days of their initial examinations, as required by 8 C.F.R. § 335.3. When USCIS fails to make a determination on a naturalization application within 120 days of the applicant’s initial examination, the applicant can seek relief in federal court under 8 U.S.C. § 1447(b). Courts, in proceedings pursuant to 8 U.S.C. § 1447 (b), routinely grant the very relief Plaintiffs seek herein, remanding the applications with instructions for timely adjudication. See e.g., Al-Kudsi v. Gonzales, No. CV 05-1584-PK, 2006 WL 752556. *2-3 (D.Or. Mar 22, 2006) (because “more than 120 days ha[d] expired since the date of Al-Kudsi's examination without a
-20-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 21 of 36
ruling on his application by CIS,” court remanded application and ordered it adjudicated within “ninety days of the date of this Opinion”); Essa v. U.S.C.I.S., No. CIV051449 (DSD/JJG), 2005 WL 3440827, *3 (D.Minn. Dec 14, 2005) (because applications for naturalization had not been adjudicated within 120 days of initial examinations, court remanded applications to USCIS); ElDaour v. Chertoff, 417 F.Supp.2d 679, 683-684 (W.D.Pa. 2005) (because “CIS did not process El-Daour's application within 120 days of his examination,” court ordered “a remand of this action to the CIS under 8 U.S.C. § 1447(b)”). Castracani v. Chertoff, 377 F.Supp.2d 71, 74-75 (D.D.C. 2005) (because “well over the 120 days” had elapsed “between Castracani's naturalization examination and the filing of this action,” court remanded the application to the Department of Homeland Security); Sweilem v. U.S.C.I.S., No. 1:05 CV 125, 2005 WL 1123582, *4-5 (N.D.Ohio May 10, 2005) (because application for naturalization had not been adjudicated within 120 days of initial examination, court remanded application to the USCIS).
Plaintiffs are likely to prevail on the merits of their claim that USCIS Defendants and Defendant GONZALES' custom and practice of failing to make a determination on Plaintiffs' naturalization applications within 120 days of their initial examinations violates 8 C.F.R. § 335.3, and on their request for remand of their applications for naturalization with instructions for immediate adjudication, pursuant to 8 U.S.C. § 1447(b).
ii. Plaintiffs Are Likely to Prevail on the Merits Of Their Claim that USCIS Defendants and Defendant GONZALES Have “Unlawfully Withheld” and “Unreasonably Delayed” the Adjudication of Their Applications in Violation of the APA
The APA provides judicial review to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1); see also Brock v. Pierce County, 476 U.S. 253, 260 n.7, 106 S.Ct. 1834, 1839 n.7 (1986) (noting that the APA permits district court to compel
-21-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 22 of 36
agency action). This court should compel USCIS Defendants and Defendant GONZALES to make determinations granting or denying Plaintiffs’ naturalization applications within a set time as such determinations have been “unlawfully withheld” or, at a minimum, “unreasonably delayed.”
An action is “unlawfully withheld” when an agency fails to meet a clear deadline prescribed by Congress. Forest Guardians v. Babbitt, 164 F.3d 1261, 1272 (10th Cir. 1998). The Tenth Circuit, in Forest Guardians, held that “when Congress by organic statute sets a specific deadline for agency action, neither the agency nor any court has discretion. The agency must act by the deadline. If it withholds such timely action, a reviewing court must compel the action unlawfully withheld.” (Emphasis added). Forest Guardians, 164 F.3d at 1272; See also, Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166, 1178 (9th Cir. 2002) (holding “[t]he Service's failure to complete the listing determinations within the mandated time frame compelled the court to grant injunctive relief. The court had no discretion to consider the Service's stated priorities”) (Emphasis added).
This Court is therefore compelled to grant the injunctive relief requested. Congress, in enacting 8 U.S.C. 1447(b), set a clear “specific deadline” within which the USCIS is to adjudicate applications. Forest Guardians, 164 F.3d at1272. USCIS clearly understands this statute to create a specific deadline: the regulation created by USCIS itself implementing this statute states “a decision to grant or deny the application shall be made at the time of the initial examination or within 120-days after the date of the initial examination of the applicant for naturalization.” 8 C.F.R. § 335.3. Thus, USCIS Defendants and Defendant GONZALES do not have any “discretion,” and “must act by the [120 day] deadline.” Forest Guardians, 164 F.3d at
-22-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 23 of 36
1272. As the USCIS Defendants and Defendant GONZALES have withheld “such timely action,” this court “must compel” them to take the “action unlawfully withheld.” Id. (emphasis added).
At minimum, this Court should hold that Defendants have unreasonably delayed in the adjudication of Plaintiffs’ naturalization applications. Agency action is “unreasonably delayed” when an agency fails to act within a reasonable time even when the governing statute does not require action by a date certain. The USCIS, like other government agencies, is governed by the APA's general rule that it conclude matters presented to it “within a reasonable amount of time.” Patel v. I.N.S., No. 98CV1937 JCH, 2000 WL 298921, at *2 (E.D.Mo. Jan 20, 2000). “A contrary position would permit the [USCIS] to delay indefinitely. Congress could not have intended to authorize potentially interminable delays.” Yu v. Brown, 36 F.Supp.2d 922, 932 (D.N.M. Jan 28, 1999) (quoting Agbemaple v. I.N.S., No. 97 C 8547, 1998 WL 292441, at *2 (N.D.Ill. May 18, 1998).
The elements of a claim for unreasonable delay under 5 U.S.C. § 706(1) are (1) a discrete, ministerial duty; (2) a delay in carrying out that duty; and (3) a determination that the delay was unlawful or unreasonable in light of prejudice to one of the parties. Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 62-66, 124 S.Ct. 2373, 2378-80 (2004). USCIS Defendants and Defendant GONZALES clearly have a discrete, ministerial duty to adjudicate applications for naturalization. See, 8 U.S.C.A. § 1446; Yu, 36 F.Supp.2d at 931 (“All other courts. . . have held that INS has a non-discretionary duty to process. . . immigration applications.”). Likewise, Defendants have unquestionably delayed in the processing of proposed class members’ naturalization applications -- proposed class members routinely wait
-23-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 24 of 36
six months or longer after the date of their initial examinations to receive a determination on their naturalization applications, and two of the named plaintiffs have waited over one year since their initial examinations without being contacted by USCIS Defendants and Defendant GONZALES. See e.g., Declaration of Emma Unguryan (19-month delay); Declaration of Raisa Yakubova (13-month delay).
In determining whether an agency delay is unreasonable, courts are guided by the following considerations, described by the District of Columbia Circuit in the case of Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 80 (D.C.Cir.1984) known as the “TRAC factors”
(1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’” Tummino v. Von Eschenbach, --- F.Supp.2d ----, 2006 WL 963876, *14-15 (E.D.N.Y. Feb 24, 2006) (NO. CV 05-366 ERK/VVP) ((quoting Telecommunications Research & Action Ctr. v.
-24-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 25 of 36
FCC, 750 F.2d 70, 80 (D.C.Cir.1984)); see also Natural Resources Defense Council, Inc. v. Thomas, 689 F.Supp. 246, 260 (S.D.N.Y. 1988), aff’d, 885 F.2d 1067 (2d Cir. 1989). Federal courts consistently employ the TRAC factors to determine whether agency inaction in the immigration context is unreasonable. See e.g., Santillan v. Gonzales, 388 F.Supp.2d 1065, 1073 (N.D.Cal. 2005); Yu, 36 F.Supp.2d at 934. A review of the TRAC factors implicated in the instant matter dictate that this Court should find the present delay in the adjudication of Plaintiffs’ applications “unreasonable.”
If not providing a specific deadline (see supra at 22), at minimum, the statute and regulation relied on herein, form a guide by which to judge the reasonableness of the length of USCIS Defendants and Defendant GONZALES’ delays. Congress provided a clear timetable in enacting 8 U.S.C. § 1447(b), indicating that after an applicant has an initial examination, USCIS Defendants and Defendant GONZALES shall take all steps necessary to adjudicate and shall adjudicate that application for naturalization within 120 days. USCIS’ own regulation mandates that a “decision to grant or deny the application shall be made at the time of the initial examination or within 120-days after the date of the initial examination of the applicant for naturalization.” 8 C.F.R. § 335.3. A fundamental principle of federal law is that a federal agency must follow its own rules. Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 1074 (1974) (“[W]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.”). These statutory and regulatory directives, at minimum, establish a clear guideline by which to measure the reasonableness of USCIS Defendants and Defendant GONZALES’ delay.
-25-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 26 of 36
USCIS Defendants and Defendant GONZALES’ delay is all the more unreasonable in the instant matter, where many Plaintiffs have lost or will lose life sustaining SSI benefits. The TRAC factors instruct that when human health and welfare are at stake, delays are even less tolerable. See, Santillan v. Gonzales, 388 F.Supp.2d 1065, 1084 (N.D.Cal. 2005) (“[h]ere, where the failure to present documentation precludes lawful employment and obtaining certain state benefits, the effect on the welfare of plaintiffs is obvious and undisputed”). Delays that place the plaintiffs in serious financial jeopardy are likewise unreasonable. See, Air Line Pilots Ass'n, Intern. v. C.A.B., 750 F.2d 81, 86 (D.C.Cir. 1984).
Moreover, Plaintiffs are suffering substantial prejudice due to Defendants’ illegal delay. As explained more fully supra, USCIS Defendants and Defendant GONZALES’ delay in adjudicating Plaintiffs’ applications has caused Plaintiffs substantial anxiety and fear, deprives Plaintiffs of the substantial benefits of citizenship, including the right to vote, and deprives many Plaintiffs of life sustaining federal benefits. Such deprivation constitutes substantial prejudice.
Thus, Plaintiffs are likely to succeed on the merits of their claim that USCIS Defendants and Defendant GONZALES failed to grant or deny Plaintiffs’ naturalization applications within a reasonable time in violation of 5 U.S.C. § 555(b). After all, “the CIS simply does not possess unfettered discretion to relegate aliens to a state of limbo, leaving them to languish there indefinitely. This result is explicitly foreclosed by the APA.” Kim v. Ashcroft, 340 F.Supp.2d 384, 393 (S.D.N.Y. 2004); see also, Santillan, 388 F.Supp.2d at 1073 (using the TRAC factors to determine that USCIS’ delay in issuing documentation of status to certain LPRs was unreasonable under § 706(1)); Yu, 36 F.Supp.2d at 934 (using the TRAC factors to determine
-26-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 27 of 36
that a delay of more than one year in processing immigrant benefit application was not reasonable as a matter of law).
iii. Plaintiffs Are Likely to Prevail on the Merits Of Their Claim that Defendants GONZALES and MUELLER Have “Unreasonably Delayed” Completion of Plaintiffs’ Criminal Background Checks in Violation of the 5 U.S.C. 555(b)
Plaintiffs are also likely to succeed on their claim that Defendants GONZALES and MUELLER have violated their rights under 5 U.S.C. 555(b) by failing to complete the criminal background checks necessary for adjudication of Plaintiffs’ naturalization applications within a reasonable time. Defendants GONZALES and MUELLER are bound by the 5 U.S.C. 555(b) mandate that agencies must conclude matters presented to them within a “reasonable time.” See e.g., Basova v. Ashcroft, 373 F.Supp.2d 192, 199 (E.D.N.Y. 2005), vacated on reconsideration on other grounds, 383 F.Supp.2d 390 (E.D.N.Y. 2005).
Plaintiffs clearly satisfy the elements of a claim of unreasonable delay under 5 U.S.C. 706(1). Norton, 542 U.S. at 62-66, 124 S.Ct. at 2378-80. Defendants GONZALES and MUELLER have a clear ministerial duty to complete criminal background investigations on each applicant for citizenship before that applicant can be naturalized. Pub.L. 105-119, Title I, 111 Stat. 2440, 2448- 49 (1997); 8 C.F.R. § 335.2(b); See also, Basova, 373 F.Supp.2d at 199 (finding that the defendants, including the Attorney General and the FBI, had “a nondiscretionary duty to issue a decision on the plaintiffs' applications within a reasonable time”). Equally clearly, there has been substantial delay in the completion of such background investigations.
Applying the TRAC factors to Defendants GONZALES and MUELLER’s conduct reveals that this delay is entirely unreasonable. Congress has provided clear guidance regarding
-27-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 28 of 36
the entire time in which it believes applications for immigration benefits should be processed, including the time Defendants GONZALES and MUELLER have to complete the criminal background checks. 8 U.S.C. § 1571 states, “it is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application. . .”
With regard to Plaintiffs’ applications, Defendants GONZALES and MUELLER regularly take more than 180 days to complete the criminal background checks, guaranteeing that USCIS Defendants and Defendant GONZALES will not be able to complete the processing of Plaintiffs’ naturalization applications within “180 days after the initial filing of the application.” See, e.g., Declaration of Raisa Yakubova (had initial examination on 4/21/05 and over a year later, received a letter from USCIS dated 5/4/06 stating “the required investigation into your background remains open”); Declaration of Bella Vesnovskaya (had initial examination on November 17, 2005 and received letter from USCIS dated March 9, 2006 stating that her application was “currently pending security agency checks”).
Moreover, as explained in detail supra, Defendants GONZALES and MUELLER’s delays in completing the criminal background checks, which work to deprive Plaintiffs of the opportunity of becoming citizens, have a considerable impact on Plaintiffs’ health and welfare and substantially prejudice them. All of these factors militate towards this Court’s finding that the delay in Defendants GONZALES and MUELLER’s completion of Plaintiffs’ criminal background investigations, thereby delaying the adjudication of Plaintiffs’ naturalization applications, is unreasonable.
-28-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 29 of 36
C. A Balance Of Hardships Tips Decidedly In Plaintiffs’ Favor In the case at bar, Plaintiffs’ hardship far outweighs that of Defendants. Plaintiffs have
waited well beyond the statutorily prescribed 120 days to be apprised of the determination of their naturalization applications. During that time, Plaintiffs have been denied all of the benefits of citizenship, including the right to vote, and many have lost or are facing the imminent loss of SSI benefits. This deprivation is due solely to Defendants’ continued and pronounced failure to make determinations on their naturalization applications within the statutorily and regulatorily prescribed period.
Defendants' burden, adjudicating naturalization applications within the prescribed period, is minimal compared to Plaintiffs' hardship. “[D]elays of [a significant] magnitude, particularly when they occur over uncomplicated matters of great importance to the individuals involved, may not be justified merely by assertions of overwork.” Dabone v. Thornburgh, 734 F.Supp. 195, 203 (E.D.Pa. 1990); see also, Galvez v. Howerton, 503 F.Supp. 35, 39 (C.D.Cal.1980) (lack of sufficient personnel to process INS application not an acceptable excuse for delays).
In this case, the balance of hardships tips decidedly towards Plaintiffs. II.
THE PROPOSED PLAINTIFF CLASS SHOULD BE CERTIFIED The named plaintiffs seek to represent a class defined as follows:
All persons residing in Kings, Nassau, Queens, Richmond, and Suffolk counties in New York State, who have properly submitted or will properly submit applications to be naturalized as U.S. citizens whose naturalization applications are not adjudicated within 120 days after the date of their initial examinations.
-29-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 30 of 36
Because the proposed class satisfies the requirements of Rule 23(a) and 23(b) of the Federal Rules of Civil Procedure, and because class certification is essential to the fair and efficient adjudication of this controversy, Plaintiffs’ motion for class certification should be granted.
A. The Proposed Class Is So Numerous That Joinder Of All Members Is Impracticable Rule 23(a) (1) of the Federal Rules of Civil Procedure requires that the class be “so
numerous that joinder of all members is impracticable.” Impracticability means difficulty or inconvenience of joinder, not impossibility of joinder. See, Fogarazzao v. Lehman Bros., Inc., 232 F.R.D. 176, 179 (S.D.N.Y. 2005); In re Blech Securities Litigation, 187 F.R.D. 97, 103 (S.D.N.Y. 1999).
Currently, Plaintiffs’ counsel has identified over 100 applicants for naturalization residing in Kings, Nassau, Queens, Richmond, and Suffolk counties who have waited far longer than 120 days since their initial examinations for citizenship. See, Complaint ¶65. The Second Circuit has held that “numerosity is presumed at a level of 40 members.” Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). Joinder of such a large number of persons is clearly impracticable. See, McCoy v. Ithaca Hous. Auth., 559 F. Supp. 1351, 1355 (N.D.N.Y. 1983) (stating that a class of 100 to 200 persons “would make joinder clearly impracticable”).
In addition, that the exact size of the class and the identity of its members are not known is no barrier to class certification. See, Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993) (“Courts have not required evidence of exact class size or identity of class members to satisfy the numerosity requirement.”); Reynolds v. Giuliani, 118 F. Supp.2d 352, 389 (S.D.N.Y. 2000); 1
-30-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 31 of 36
Herbert B. Newberg, Newberg on Class Actions, § 3.05 (3rd ed. 1992). In addition, the fluidity of the class supports class certification. See, Reynolds, 118 F. Supp.2d at 388.
Furthermore, many Plaintiffs rely upon public benefits for survival, and it is therefore impracticable for them to obtain legal services on an individual basis for their individual claims. See Reynolds, 118 F. Supp.2d at 388 (“Class members’ lack of financial resources also makes joinder difficult.”) (citing Robidoux, 987 F.2d at 936). This means that their right to be naturalized in a timely manner will not be vindicated without a class action. Since class certification would maximize the available legal resources and provide for uniform redress of Plaintiffs’ common grievances against Defendants, it is appropriate in this case.
B. All Questions Of Law Are Common To The Proposed Plaintiff Class Rule 23(a) (2) of the Federal Rules of Civil Procedure requires that there be questions of
law and fact common to the class. The commonality requirement is satisfied when defendants apply a common course of prohibited conduct to the plaintiff class. See, Escalera v. New York City Hous. Auth., 425 F.2d 853, 867 (2d Cir.), cert. denied, 400 U.S. 853 (1970). “[V]ariations in the fact patterns of individual plaintiffs do not vitiate the commonality and typicality claims.” Reynolds, 118 F. Supp.2d at 389 (citing Robidoux, 987 F.2d at 937 & Jane B. v. New York City Dept. of Social Services, 117 F.R.D. 64, 70 (S.D.N.Y. 1987)).
The common questions of law here are (1) whether USCIS Defendants and Defendant GONZALES’ custom and practice of failing to adjudicate Plaintiffs’ applications for naturalization within 120 days of their initial examinations violates 8 C.F.R. § 335.3 and 8 U.S.C. § 1447(b) or within a reasonable time violates 5 U.S.C. § 555(b); (2) whether Defendants GONZALES and MUELLER’s custom and practice of failing to complete the criminal
-31-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 32 of 36
background checks necessary for adjudication of proposed class members’ naturalization applications within a reasonable time violates 5 U.S.C. § 555(b); and (3) whether all Defendants’ custom and practice of failing to collectively take all steps necessary to adjudicate proposed class members’ applications for naturalization within a reasonable time violates 5 U.S.C. § 555(b).
C. The Claims Of The Named Plaintiffs Are Typical Of The Claims Of The Proposed Plaintiff Class Rule 23(a) (3) of the Federal Rules of Civil Procedure requires that the claims or defenses
of the class representatives be typical of the claims or defenses of the class. The typicality requirement is met where, as here, the named plaintiffs’ claims arise from the same conduct that gives rise to the claims of other proposed class members and if the claims share the same legal theory. Dura-Bilt Corp. v. Chase Manhattan Corp., 89 F.R.D. 87, 99 (S.D.N.Y. 1981).
The typicality requirement is met here because the claims of both the named plaintiff class representatives and the proposed class arise from the same conduct by Defendants, that is, the failure of USCIS Defendants and Defendant GONZALES to adjudicate their applications for naturalization in a timely manner, the failure of Defendants GONZALES and MUELLER to complete criminal background checks in a timely manner and the failure of all Defendants to collectively take all steps necessary to adjudicate proposed class members’ applications for naturalization in a timely manner.
D. The Named Plaintiffs Will Fairly And Adequately Protect The Interests Of The Proposed Plaintiff Class Rule 23(a) (4) of the Federal Rules of Civil Procedure allows a class action to be
maintained if the named plaintiffs fairly and adequately protect the interests of the class. Two
-32-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 33 of 36
elements are incorporated into this requirement: (1) “the interests of the named plaintiffs cannot be antagonistic to those of the remainder of the class”; and (2) the named plaintiffs and their attorneys must be able to prosecute the action vigorously and competently. Reynolds, 118 F. Supp.2d at 390; accord Brown v. Giuliani, 158 F.R.D. 251, 268 (E.D.N.Y. 1994); Dean v. Coughlin, 107 F.R.D. 331, 334 (S.D.N.Y. 1985). The named plaintiffs in this case meet both elements of Rule 23(a) (4).
First, the interests of the named plaintiffs and the proposed class members are entirely coextensive. The named plaintiffs and the proposed class members seek declaratory and injunctive relief to ensure that their applications for naturalization will be determined in a timely manner. Second, counsel for Plaintiffs and the proposed plaintiff class are experienced in class action litigation in federal and state courts, including matters relating to the naturalization of aliens, and will prosecute this action vigorously and competently. Accordingly, Plaintiffs will fairly and adequately protect the interests of the proposed class.
E. This Action Meets The Requirements Of Rule 23(b) (2) Of The Federal Rules Of Civil Procedure The proposed class meets the criteria for certification set forth in Rule 23(b) (2) of the
Federal Rules of Civil Procedure. First, Defendants’ conduct or failure to act is “generally applicable to the class,” and second, final injunctive or corresponding declaratory relief is appropriate for the proposed class as a whole. See, Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 120, 114 S.Ct. 1359, 1361 (1994); Parker v. Time Warner Entertainment Co., L.P., 331 F.3d 13, 18 (2d Cir. 2003); 7A Charles A. Wright et al., Federal Practice and Procedure § 1775, at 44748 (2d ed. 1986).
-33-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 34 of 36 Defendants’ violation of these requirements affects all members of the proposed class.
The applicable law and regulations require USCIS Defendants and Defendant GONZALES to determine all applications for naturalization under 8 U.S.C. § 1446 within 120 days of the initial examination, and require all Defendants collectively to take all steps necessary to adjudicate those applications in a reasonable time.
Plaintiffs seek preliminary and class-wide final declaratory and injunctive relief to compel Defendants to adjudicate those applications in a timely fashion. Any order entered by this court would, by its terms, inure to the benefit of all members of the proposed plaintiff class. Class certification is therefore appropriate under Rule 23(b) (2).
-34-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 35 of 36
CONCLUSION For all of the foregoing reasons, Plaintiffs respectfully request that their motions for preliminary injunctive relief and class certification be granted. Dated: New York, New York June 28, 2006
Respectfully submitted,
____________________ YISROEL SCHULMAN, (YS-3017) NEW YORK LEGAL ASSISTANCE GROUP Jane Greengold Stevens, Of Counsel (JS-4790) Irina Matiychenko, Of Counsel (IM-5858) Elvira Pinkhasova, Of Counsel (EP-5027) Olga Avrasina, Of Counsel (OA- 1600) Helen Drook, Of Counsel (HD-4694) Caroline Hickey, Of Counsel (CH-1410) Deborah Berkman, Of Counsel (DB-9491) Alla Kazakina, On the Brief 450 West 33rd Street, 11th Floor New York, New York 10001 Tel. (212) 613-5000
-35-

Case 1:06-cv-03203-ERK-RLM Document 3 Filed 06/29/2006 Page 36 of 36

 
 "
Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 1 of 26

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------------)(
RAISA YAKUBOVA, EMMA UNGURYAN, BELLA VESNOVSKAVA, DAVID VESNOVSKIY, VYACHESLAV VOLOSIKOV, and SHEHATA AWAD IBRAHIM, on behalf of themselves and all other similarly situated individuals,

a

06 3203
BLOCK J.

Plaintiffs,
-against-
MICHAEL CHERTOFF, in his official capacity as Secretary of the Department of Homeland Security, EMILIO GONZALEZ, in his official capacity as the Director of the United States Citizenship and Immigration Services, MARY ANN GANTNER, in her official capacity as District Director of the New York City District of the United States Citizenship and Immigration Services, ALBERTO GONZALES, in his official capacity as Attorney General of the United States, and ROBERT S. MUELLER, in his official capacity as the Director of the Federal Bureau ofInvestigation,
Defendants.
------------------------------------------------------------------)(

ItAA"' ' (0E6.CCFiCv ASE)

All !
. .

COMPLAINT

'* * JU:~ 28 2006
BROOKLYN OFFICE

PRELIMINARY STATEMENT

1. Plaintiffs bring this class action under the Immigration and Nationality Act

§ 336(b), codified at 8 U.S.c. § 1447(b), and the Administrative Procedure Act, 5 U.S.c. §

706(1) on behalf of themselves and a proposed class of similarly situated individuals residing in

Kings, Nassau, Queens, Richmond, and Suffolk counties in New York State, who have properly

submitted or will properly submit applications to be naturalized as U.S. citizens, whose

-1-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 2 of 26

"

applications for naturalization are not adjudicated within 120 days after the date of their initial examinations.
2. Plaintiffs challenge the custom and practice of Defendants CHERTOFF, GONZALEZ, and GANTNER (hereinafter "USCIS Defendants") and Defendant GONZALES of failing to grant or deny proposed class members' naturalization applications (1) within 120 days after the date of their initial examinations in violation of8 C.F.R. § 335.3 and 8 U.S.c. § 1447(b) and (2) within a reasonable time in violation 0[5 U.S.c. § 555(b).
3. Plaintiffs challenge the custom and practice of Defendants GONZALES and MUELLER of failing to complete within a reasonable time the criminal background checks for which the Federal Bureau of Investigation ("FBI") is responsible and that are necessary for the adjudication of proposed class members' naturalization applications in violation of5 U.S.c. § 555(b),
4. Plaintiffs challenge the custom and practice of Defendants CHERTOFF, GONZALEZ, GANTNER, GONZALES and MUELLER (hereinafter "all Defendants") of collectively failing to take all steps necessary to adjudicate proposed class members'
naturalization applications within a reasonable time in violation of 5 U.S.c. § 555(b).
5. As a result of all Defendants' failure to take all steps necessary to adjudicate Plaintiffs' naturalization applications and to grant or deny their naturalization applications within 120 days and a reasonable time as required by federal law, Plaintiffs have been prevented from receiving the many substantial and unique benefits of citizenship, including the right to vote, the right to obtain United States passports, the right to file visa petitions for immediate relatives as

-2-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 3 of 26 "

"

United States citizens, the protection of the United States government when outside the United

States and the right to life sustaining federal benefits,

6, Plaintiffs seek a preliminary injunction (1) immediately remanding the

naturalization applications of the Named Plaintiffs and other members of the proposed class

identified in Paragraph 65 of this complaint (collectively hereinafter "identified class members")

to USCIS Defendants and Deferidant GONZALES; (2) ordering Defendants GONZALES and

MUELLER to complete all criminal background checks of identified class members for which

the FBI is responsible within twenty-five (25) days of the remand; (3) ordering all Defendants

collectively to complete all steps necessary to adjudicate the naturalization applications of
identified class members within thirty-five (35) days of the remand and; (4) ordering uscrs

Defendants and Defendant GONZALES to grant or deny the naturalization applications of

identified class members within forty-five (45) days of the remand.
7. Plaintiffs seek a pelmanent injunction ordering: (1) users Defendants and

Defendant GONZALES, within thirty (30) days of this Court granting pennanent relief, to

identify all proposed class members as of that date, whose pending naturalization applications

have not been adjudicated within 120 days ofthe date of their initial examinations; and (2) all

Defendants collectively to establish and implement a plan of correction whereby the

naturalization applications of all proposed class members identified pursuant to (1) above are

granted or denied within ninety (90) days of this Court granting pennanent relief.

8.

Plaintiffs further seek a pennanent injunction ordering: (1) users Defendants

and Defendant GONZALES to grant or deny the naturalization applications of all applicants

residing in Kings, Nassau, Queens, Richmond, and Suffolk counties in New York State within

-3-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 4 of 26
120 days of the date of the applicants' ini1ial examinations; (2) Defendants GONZALES and MUELLER to complete within a reasonable time all background checks for which the FBI is responsible and that are necessary to adjudicate the naturalization applications of all applicants residing in Kings, Nassau, Queens, Richmond, and Suffolk counties in New York State; (3) all Defendants collectively to complete all steps necessary to adjudicate the naturalization applications of all applicants residing in Kings, Nassau, Queens, Richmond, and Suffolk counties in New York State within a reasonable time.
JURISDICTION AND VENUE 9. This Court has jurisdiction over this action under the Administrative Procedure Act, 5 U.S.c. § 701 et~, and 28 U.S.c. § 1331 which vests United States district courts with jurisdiction over civil actions arising under the Constitution, law, or treaties of the United States. 10. Jurisdiction is further conferred by 8 U.S.C. § 1447(b), which grants jurisdiction to the United States district court in the district in which an individual applying for naturalization resides if the individual's application for naturalization has not resulted in a detennination within 120 days after the date on which an examination is conducted pursuant to 8 U.S.c. § 1446. Such district court has jurisdiction either to "determine the matter or remand the matter, with appropriate instructions, to the Service1 to detennine the matter." 8 U.S.c. § 1447(b).
11. Venue properly lies with this district pursuant to 28 U.S.C. § 1391 (b) as Plaintiffs reside within this judicial district and a substantial part of the activities complained of occurred within this judicial district.
I In all statutory and regulatory provisions cited in this Complaint, the term "Service" refers to the USCIS. 8 U.S.c. § 1101(a)(34); 6 U.s.c. § 271.
-4-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 5 of 26
PARTIES Plaintiffs
12. PlaintiffRAISA YAKUBOVA resides in Queens, New York and had her naturalization examination by the United States Citizenship and Immigration Services ("USCIS") on April 21, 2005. Her application has not yet been adjudicated, although it has been over 427 days since her examination.
13. Plaintiff EMMA UNGURYAN resides in Staten Island, New York and had her naturalization examination by USeIS on October 13, 2004. Her application has not yet been adjudicated, although it has been over 617 days since her examination.
14. Plaintiff BELLA VESNOVSKAYA resides in Brooklyn, New York and had her naturalization examination by USeIS on November 17, 2005. Her application has not yet been adjudicated, although it has been over 217 days since her examination.
15. Plaintiff DAVID VESNOVSK1Y resides in Brooklyn, New York and had his naturalization examination by USCIS on November 18, 2005. His application has not yet been adjudicated, although it has been over 216 days since his examination.
16. Plaintiff VYACHESLAV VOLOSIKOV resides in Brooklyn, New Yark and had his naturalization examination by USCIS on November 10, 2005. His application has not yet been adjudicated, although it has been over 224 days since his examination.
17. PlaintiffSHEHATA AWAD IBRAHIM resides in Queens, New York and had his second naturalization examination by USCIS on October 27, 2005. His application has not yet been adjudicated, although it has been over 238 days since his examination.
-5-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 6 of 26
Defendants 18. Defendant MICHAEL CHERTOFF is the Secretary of the Department of
Homeland Security ("DHS"). As such, he is responsible for, inter alia, administering USCIS and assuring the implementation and enforcement of the Immigration and Nationality Act.
19. Defendant EMILIO GONZALEZ is the Director of the USCIS. As such, he is responsible for, inter alia, the administration of immigration benefits and services including the processing of naturalization applications of immigrants residing in the United States.
20. Defendant MARY ANN GANTNER is the District Director of the New York City District of the USCIS. As such, she is responsible for, inter alia, administering the immigration laws in the five New York Boroughs and nine surrounding Counties of the New York City District, including Nassau and Suffolk counties.
21. Defendant ALBERTO GONZALES is the Attorney General ofthe United States. As such, he is responsible for, inter alia, controlling detennination of all issues oflaw pertaining to immigration pursuant to 8 U.S.c. § 1103 and has the sole authority to naturalize citizens of the United States pursuant to 8 U.S.c. § 1421(a). He has delegated authority and responsibility to administer all laws pertaining to immigration, naturalization and nationality to the Director of USCIS. 8 U.S.c. § I 103(a) (1); 8 C.F.R. § 100.2; 6 U.S.c. § 271(b). The Attomey General is the head of the Department of Justice, and as such, is responsible for administering the FBI, which is part of the Department ofIustice. 28 U.S.C.A. § 503; 28 U.S.C. § 531.
22. Defendant ROBERT S. MUELLER is the Director of the FBI. As such he is responsible for, inter alia, ensuring that a full criminal background check is completed for each
·6·

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 7 of 26
individual applying to be naturalized as a U.S. citizen. Pub.L. 105-119, tit. I, 111 Stat. 2440,
2448- 49 (1997); 8 C,F.R. § 335.2(b), CLASS ACTION ALLEGATIONS
23. Named Plaintiffs bring this action pursuant to Fed R. Civ. P. 23(a) and 23(b)(2), on behalf of themselves and a proposed class of:
All persons residing in Kings, Nassau, Queens, Richmond, and Suffolk counties in New York State, who have properly submitted or will properly submit applications to be naturalized as U.S. citizens whose naturalization applications are not adjudicated within 120 days after the date of their initial examinations. 24. This proposed class is so numerous that joinder of all members is impracticable. Already identified in paragraph 65 of this complaint are more than 100 members of the proposed class seeking the same relief as the Named Plaintiffs. 25. There are questions of fact and law common to the proposed class that predominate over any questions affecting only the individual named plaintiffs, including (1) whether USCIS Defendants' custom and practice of failing to grant or deny proposed class members' naturalization applications within 120 days of their initial examinations violates 8
C,F.R. § 335.3 and 8 u'S,c' § 1447(b) and within a reasonable time violates 5 U,S,c' § 555(b);
(2) whether Defendants GONZALES and MUELLER's custom and practice of failing to complete within a reasonable time the criminal background checks of proposed class members for which the FBI is responsible violates 5 U,S,c' § 555(b); and (3) whether all Defendants' custom and practice of collectively failing to take all steps necessary to adjudicate proposed class members' applications for naturalization within a reasonable time violates 5 U.S.C. § 555(b).
-7-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 8 of 26
26. The individual plaintiffs' claims are typical of the claims of the proposed class. All the named plaintiff class representatives have experienced unreasonable delay in the processing of their naturalization applications; they have properly submitted applications to be naturalized, but have not received any determinations granting or denying their naturalization applications within 120 days of the dates of their initial examinations.
27. The named plaintiffs will adequately and fairly protect the interests of all members of the proposed class, because they have the requisite personal interest in the outcome of this litigation, have no interest antagonistic to others in the proposed class, and they are represented by the New York Legal Assistance Group~ whose attorneys are experienced in class action litigation generally and specifically including the rights of immigrants.
28. Declaratory and injunctive relief is appropriate with respect to the proposed class as a whole because Defendants have acted on grotmds generally applicable to the proposed class as a whole.
STATUTORY AND REGULATORY SCHEME 29. The United States Constitution grants Congress the power to "establish a Uniform Rule ofNaturalizatioD." Art. I., § 8, cl. 4. 30. The Attorney General has the "sole authority to naturalize persons as citizens of the United States." 8 U.S.C. § 1421(a); Pub.L. No. 101·649, Title IV, 104 Stat. 4978, 5038·48 (Nov. 29, 1990). 31. The Attorney General has delegated the authority to administer and enforce the Immigration and Nationality Act and all other laws relating to immigration, naturalization and
·8·

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 9 of 26
nationality to the Director of Immigration and Naturalization Service ("INS"). 8 C.F.R. § 100.2(a); 28 C.F.R. 0.105.
32. On March 1, 2003, INS ceased to exist and its principal functions were transferred to the newly created USCIS within Department of Homeland Security. See Homeland Security Act of2002, Pub. L. No. 107-296, §471, 116 Stat. 2135, 2205 (codified at 6 U.S.c. § 291 (a)); 8 U.S.c. § 1103(a) (1). Authority and responsibility to administer and enforce all laws pertaining to immigration, including the adjudication of naturalization applications, was transferred from
the Commissioner of the INS to the Director of the uscrs. See 6 U.S.C. § 271(b)(2) ; 8 U.S.c. §
1103(a) (1). 33. In order to apply for naturalization, a lawful pennanent resident must file an
application for naturalization with USCIS. 8 U.S.c. § 1445(a), (b); 8 C.F.R. §§ 316.4, 334.1, 334.2.
34. USCIS immigration officers must conduct examinations of applicants for naturalization. 8 U.S.c. § 1446(a); 8 C.F.R. §§ 335.2, 332.1. The immigration officer must determine whether the application should be granted or denied, with reasons therefore. 8 U.S.c. § 1446(d).
35. Subsequent to the filing of an application for naturalization and before a person may be naturalized, USCIS must conduct a background investigation of the applicant. 8 US.c. § 1446(a); 8 C.F.R. §§ 335.1, 335.2.
36. Since 1997, Congress has also required that a complete FBI criminal background investigation be conducted on each applicant for citizenship. Pub.L. 105-119, Title I, 111 Stat. 2440,2448- 49 (1997); 8 C.F.R. § 335.2(b).
-9-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 10 of 26
37. USeIS shall grant naturalization applications if applicants have complied with all requirements for naturalization. 8 C.F.R. § 335.3(a).
38. A decision to grant or deny the naturalization application must take place "at the time of the initial examination or within l20-days after the date of the initial examination." 8 C.F.R. § 335.3(a).
39. USCIS may conduct a reexamination to afford the applicant an opportunity to overcome any deficiencies on the application that may arise during the initial examination. 8 C.F.R. § 335.3(b). The reexamination on the continued case must be scheduled within 120 days after the initial examination. Id.
40. 8 U.S.C. § 1447(b) and its implementing regulation, 8 C.F.R. § 310.5, grant the applicant the right, if his or her application for naturalization has not resulted in a determination within 120 days of the date of his or her examination, to apply to the United States district court for the district in which the applicant resides for a hearing on the matter.
41. Such district court has jurisdiction over the matter and may either detennine the matter or remand the matter to USeIS, with appropriate instructions to determine the matter. 8 U.S.C. § 1447(b); 8 C.F.R. § 310.5.
42. 8 V.S.c. § 1571 directs that "it is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing ofthe application, except that a petition for a nonimmigrant visa under section 1184(c) of this title should be processed not later than 30 days after the filing of the petition."
~10~

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 11 of 26
43. The tellTI "immigration benefit application" means any application or petition to confer, certify, change, adjust, or extend any status granted under the Immigration and Nationality Act [8 U.S.C.A. § 1101 et seq.], including naturalization. 8 U.S.c. § 1572.
44. "The Attomey General shall take such measures as may be necessary to-- (1) reduce the backlog in the processing of immigration benefit applications, with the objective of the total elimination of the backlog 1 year after November 25, 2002; (2) make such other improvements in the processing of immigration benefit applications as may be necessary to ensure that a backlog does not develop after such date; and (3) make such improvements in
infrastructure as may be necessary to effectively provide immigration services." 8 U.S.C. §
1573. 45. Section Six of the Administrative Procedure Act ("APA") directs agencies to
conclude matters presented to them "within a reasonable time." 5 U.S.c. § 555(b). When an agency fails to conclude a matter presented to it within a reasonable time, the APA grants judicial review to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.c. § 706(1). "Agency action" is defined by the APA as "the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13).
FACTUAL ALLEGATIONS COMMON TO THE CLASS
46. users Defendants and Defendant GONZALES have a custom and practice of
failing to grant or deny proposed class members' applications for naturalization within 120 days of their initial examinations, and of unlawfully withholding and unreasonably delaying the adjudication of proposed class members' applications for naturalization.
-11-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 12 of 26 "
47. Defendants GONZALES and MUELLER have a custom and practice of failing to complete within a reasonable time the criminal background checks for which the FBI is responsible and that arc necessary for adjudication of proposed class members' naturalization applications.
48. All Defendants have a custom and practice of failing collectively to take all steps necessary to adjudicate proposed class members' applications for naturalization within a reasonable time.
49. Proposed class members routinely wait six months or longer after the date of their
initial examinations to receive a determination on their naturalization applications.
50. When inquiries are made regarding the status of proposed class members' naturalization applications, users Defendants routinely respond that the naturalization application cannot be determined because of pending "security checks" and/or "name checks" and/or "agency checks" and/or "background checks."
FACTS PERTAINING TO THE NAMED PLAINTIFFS 51. PlaintiffRAISA YAKUBOVA immigrated to the United States as a refugee on
November 27, 1998. Ms. YAKUBOVA submitted an application for naturalization to users on
February 13, 2004, after five years of lawful pennanent residency. 52. On April 21, 2005, Ms. YAKUBOVA was interviewed by a Service Officer at
USeIS in connection with her naturalization application. 53. After her initial examination, users did not contact Ms. YAKUBOVA until June
21,2006 when users sent her a notice scheduling her for a fingerprinting appointment, stating "To continue processing your N-400 application, INS must send your fingerprints to the Federal
-12-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 13 of 26 "
Bureau of Investigation." Ms. YAKUBOVA had already submitted her fingerprints to USeIS as required prior to her initial examination on June 3, 2004.
54. It appears that Ms. YAKUBOVA has been scheduled for fingerprinting for a second time because her first set of fingerprints have expired due to Defendants' delay in processing her naturalization application. Her application for naturalization has not yet been adjudicated.
55. Plaintiff EMMA UNGURYAN immigrated to the United States as a refugee on Febmary 19, 1998. Ms. UNGURYAN submitted an application for naturalization to USeIS on January 12,2004, after five years oflawful pennanent residency.
56. On October 13,2004, Ms. UNGURYAN was interviewed by a Service Officer at USeIS in connection with her naturalization application. USeIS has not contacted Ms. UNGURYAN since the date of her initial examination, over a year and a half ago. Her application for naturalization has not yet been adjudicated.
57. Plaintiff BELLA VESNOVSKAYA immigrated to the United States as a refugee on October 1, 1999. Ms. VESNOVSKAYA submitted an application for naturalization to USCIS on December 13, 2004, after five years of lawful permanent residency.
58. On November 17. 2005, Ms. VESNOVSKAYA was interviewed by a Service Officer at USCIS in connection with her naturalization application. USCIS has not contacted Ms. VESNOVSKAYA since the date of her initial examination, over seven months ago. Her application for naturalization has not yet been adjudicated.
59. Plaintiff DAVID VESNOVSKIY immigrated to the United States as a refugee on October 1, 1999. Mr. VESNOVSKIY is married to Ms. VESNOVSKAYA. Mr.
-13-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 14 of 26
VESNOVSKIY submitted an application for naturalization to USCIS on December 13, 2004, after five years of lawful permanent residency.
60. On November 18, 2005, Mr. VESNOVSKIY was interviewed by a Service Officer at USCIS in connection with his naturalization application. USCIS has not contacted Mr. VESNOVSKIY since the date of his initial examination, over seven months ago. His application for naturalization has not yet been adjudicated.
61. PlaintiffVYACHESLAV VOLOSIKOV immigrated to the United States as a parolee in the public interest on November 19,1999. Mr. VOLOSIKOV submitted an application for naturalization to USCIS on November 17, 2004, after five years oflawful permanent residency.
62. On November 10, 2005, Mr. VOLOSIKOV was interviewed by a Service Officer at USCIS in connection with his naturalization application. USCIS has not contacted Mr. VOLOSIKOV since the date of his initial examination, over seven months ago. His application for naturalization has not yet been adjudicated.
63. PlaintiffSHEHATA AWAD IBRAHIM immigrated to the United States on September 13, 1996. Mr. IBRAHIM submitted an application for naturalization to USCIS on April 28, 2004.
64. On October 27, 2005, Mr. IBRAHIM was interviewed by a Service Officer at
uscrs in connection with his naturalization application. users has not contacted Mr.
IBRAHIM since the date of his examination, over seven months ago. His application for naturalization has not yet been adjudicated.
-14-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 15 of 26
65. Also known to Plaintiffs' Counsel are the following members of the proposed
class whose pending naturalization applications have not been adjudicated within 120 days of the
date of their initial examinations:
1. Boris Iakovenko, Alien Registration No. 071-501-993, interviewed on
03/03/2005;
2. Rita Stires, Alien Registration No. 071-370-782, interviewed on 09/27/2005;
3. Elvira Raybshteyn, Alien Registration No. 071-314-016, interviewed on
02109/2006;
4. Sergey Kurgan, Alien Registration No. 074-278-972, interviewed on
01/3112006;
5. Leonid lones, Alien Registration No. 071-353-013, interviewed on
09128/2005;
6. Anatoliy Chernogor, Alien Registration No. 071-317-738, interviewed on
12/0112005 ;
7. Ran Aldoubi, Alien Registration No. 074-884-413, interviewed on
02/0112006;
8. Mikhail Khazan, Alien Registration No. 071-404-838, interviewed on
11108/2005;
9. Galina Bukrinskaya, Alien Registration No. 071-384-962, interviewed on
01120/2006;
10. Inna Alpina, Alien Registration No. 071-425-805, interviewed on 1111712005;
11. Yakov Alpin, Alien Registration No. 071-053-318, interviewed on
06/23/2004;
12. Santoryna Bobchynska, Alien Registration No. 046-459-687, interviewed on
06/23/2005;
13. Valeriy Goncharov, Alien Registration No. 047-138-045, interviewed on
07/22/2005;
14. Stanislava 19o1nikova, Alien Registration No. 071-165-290, interviewed on
0211 012006; -15-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 16 of 26
15. Vladimir Kovmir, Alien Registration No. 045-663-806, interviewed on 02/23/2005;
16. Elena Kuriss, Alien Registration No. 021-458-469, interviewed on 11/23/2005;
17. Lidiya Mindyuk, Alien Registration No. 071-403-857, interviewed on 09/02/2005;
18. David Mindyuk, Alien Registration No. 071-403-856, interviewed on 09/02/2005;
19. Leonid Nirenberg, Alien Registration No. 071-425-960, interviewed on 08/17/2004;
20. Matvey Shpitzel, Alien Registration No. 071-356-741, interviewed on 08/1112005;
21. Anton Slautskiy, Alien Registration No. 046-796-159, interviewed on 11104/2005;
22. Galina Vaynem1aI1, Alien Registration No. 071-361-865, interviewed on 02/1 0/2006;
23. Bella Dolinov, Alien Registration No. 027-013-840, interviewed on 7/20/2004;
24. Boris Alayev, Alien Registration No. 071-343-296, interviewed on 01125/2006;
25. Ella Aleshinskaya, Alien Registration No. 076-053-302, interviewed on 11/18/2005;
26. Lyudmila Arefyeva, Alien Registration No. 071-393-941, interviewed on 10/25/2005 ;
27. Boris Azizov, Alien Registration No. 076-041-525, interviewed on 12/07/2005;
28. Ilya Babayev, Alien Registration No. 071-303-231, interviewed on 03/30/2005;
29. Izyaslav Benimovich, Alien Registration No. 076-051-152, interviewed on 12/14/2005;
-16-

" Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 17 of 26
30. Leonid Belman, Alien Registration No. 071-296-124, interviewed on 09114/2005 ;
31. Tatyana Bezdezhsky, Alien Registration No. 047- 521-786, interviewed on 01120/2006;
32. Feliks Bolotin, Alien Registration No. 071-060-931, interviewed on 06108/05;
33. Vladimir Fishman, Alien Registration No. 071-361-934, interviewed on 11116/2005;
34. Sofia Flyuis, Alien Registration No. 045-662-979, interviewed on 08117/2005;
35. Leonid Gindin, Alien Registration No. 071-403-272, interviewed on 11102/2005;
36. Nina Gindina, Alien Registration No. 071-403-273, interviewed on 11115/2005;
37. Nina Guttsayt, Alien Registration No. 071- 215-861, interviewed on 02110/2005;
38. Yuri Intskirveli, Alien Registration No. 73-556-719, interviewed on 11117/2005;
39. Roman Keselman, Alien Registration No. 071-362-994, interviewed on 02/08/2005;
40. Yelena Keselman, Alien Registration No. 071-362-995, interviewed on 02/08/2005;
41. Yuliy Khaykin, Alien Registration No. 071-289-513, interviewed on 05112/2005;
42. Roza Kozlenko, Alien Registration No. 071-274-050, interviewed on 06/23/2005;
43. Vladimir Krymskiy, Alien Registration No. 071-366-382, interviewed on 12117/2003;
44. Sergey Larin, Alien Registration No. 071-393-129, interviewed on 0111112006;
-17-

.. Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 18 of 26
45. Nadezhda Lerner, Alien Registration No. 071-398-422, interviewed on 05/06/2005
46. Dora O. Levina, Alien Registration No. 071-263-830, interviewed on 11129/2005;
47. Boris Laboy, Alien Registration No. 071-344-771, interviewed on 11103/2005;
48. Aleksandr Marmulevskiy, Alien Registration No. 071-376-996, interviewed on 08/04/2004;
49. Marina Koulbitskaya, Alien Registration No. 072-556-468, interviewed on 03110/2005;
50. Alexandre Koulbitskiy, Alien Registration No. 074-888-588, interviewed on 0311 0/2005;
51. Dora Mostovaya, Alien Registration No. 071-360-921, interviewed on 05110/2005;
52. Tamara Shusterman, Alien Registration No. 071-140-777, interviewed on 06/0612005;
53. Raisa Okun, Alien Registration No. 029-814-682, interviewed on 10/04/2005;
54. LyudmiJa Olomutskaya, Alien Registration No. 076-048A55, interviewed on
11104/2005;
55. Aleksandra Ovsyannikova, Alien Registration No. 071-289-584, interviewed on 10/26/2005;
56. Yuliya Pavlov, Alien Registration No. 046-438-131, interviewed on 12116/2005 ;
57. Marat Polunovskiy, Alien Registration No. 076-058-604, interviewed on 02/03/2006;
58. Rita Rakhunova, Alien Registration No. 076-051-153, interviewed on 12114/2005;
59. Valentina Rudenko, Alien Registration No. 047-141-778, interviewed on 01113/2006;
-18-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 19 of 26
60. Peter Sapozhnikov, Alien Registration No. 047-197-475, interviewed on
01104/2006;
61. Lyudmila Serebro, Alien Registration No. 071-379-119, interviewed on
11/30/2005;
62. Arkadiy Sheynin, Alien Registration No. 071-422-293, interviewed on
10/26/2005;
63. Yakov Shklyarov, Alien Registration No. 071-304-342, interviewed on
02103/2005;
64. Aleksandra Shnayder, Alien Registration No. 076-042-742, interviewed on
11108/2005;
65. Boris Shulgin, Alien Registration No. 076-051-343. interviewed on
12/02/2005;
66. Yevgeniya Shulman, Alien Registration No. 071-380-616, interviewed on
10/02/2005;
67. Aida Sofyan, Alien Registration No. 071-131-348, interviewed on
08/03/2005;
68. Mikhail Stoyanov, Alien Registration No. 071-356-975, interviewed on
1210712005;
69. Emil Vitebskiy, Alien Registration No. 071-407-779, interviewed on
08/19/2005;
70. Dariy Zabezhinksiy, Alien Registration No. 071-393-940, interviewed on
10104/2005;
71. Anatoliy Zaychik, Alien Registration No. 073-165-206, interviewed on
09/13/2005;
72. Nauru Budnitskiy, Alien Registration No. 071-363-425, interviewed on
11118/2005;
73. lawala Singh, Alien Registration No. 042-157-340, interviewed on 11 /16/2005;
74. Yuriy Shlapakov, Alien Registration No. 071-384-677, interviewed on
02/15/2006;

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 20 of 26
75. Bazya Martsinkovskaya, Alien Registration No. 076-042-984, interviewed on 0111112006;
76. Khanuk Abramov, Alien Registration No. 076-050-381, interviewed on 12/13/2005;
77. Aleksandr Stoyanov, Alien Registration No. 071-356-974, interviewed on 0511112004;
78. Victoria Arkhipova, Alien Registration No. 076-559-242, interviewed on 03/30/2004;
79. Schmul Azimov, Alien Registration No. 070-647-778, interviewed on 11116/2005;
80. Sima Berezanskaya, Alien Registration No. 073-159-229, interviewed on 05101/2003;
81. Yevgeniy Blekhennan, Alien Registration No. 071-182-213, interviewed on 11/04/2005;
82. Mei Ying Wang, Alien Registration No. 045-413-175, interviewed on 03117/2005;
83. Samuil Bykov, Alien Registration No. 072-262-170, interviewed on 02/24/2006;
84. Mei Fen Chen, Alien Registration No. 073-099-049, interviewed on 12/07/2005 ;
85. Qj Chen, Alien Registration No. 073-776-367, interviewed on 8125/05;
86. Xiu Chen, Alien Registration No. 055-436-247, interviewed on 01150612006;
87. Zhong ShuChen, Alien Registration No. 072-483-204, interviewed on 11118/2005;
88. Mei Woon Cheng, Alien Registration No. 029-791-956, interviewed on 09/08/2005;
89. Lyudmila Chudnovskaya, Alien Registration No. 071-426-178, interviewed on 0311112005;
90. Bella Funnanova, Alien Registration No. 071-115-108, interviewed on 11104/2005;
-20-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 21 of 26

91. Boris GuIleI', Alien Registration No. 071-378-878, interviewed on 6/15/2005;

92. Rakhil Gurevich, Alien Registration No. 076-053-968, interviewed on 12/09/2005;

93. IosifKominar, Alien Registration No. 071-282-792, interviewed on 02116/2006;

94. Khai Musya Rukhamanova, Alien Registration No. 071-961-663, interviewed on 08/04/2005;

95. Robert Kharson, Alien Registration No. 076-057-0-89, interviewed on 12/28/2005;

96. Aleksandr Krapivin, Alien Registration No. 076-040-537, interviewed on 05/06/2005;

97. Aleksander Krayets, Alien Registration No. 01119/2004;

071-337-223, interviewed on

98. Meri Kupershtokh, Alien Registration No. 076-040-488, interviewed on 12115/2005;

99. Fang Chin Lau, Alien Registration No. 042-732-500, interviewed on 10/28/2005 ;

100. Yu Nang Li, Alien Registration No. 073-163-948, interviewed on 08/16/2005;

101. Qin Lin, Alien Registration No. 047-176-919, interviewed on 11116/2005;

102. Li Ying Zheng, Alien Registration No. 047-555-491, interviewed on 01111/2006;

103. Arkadiy Mekhov, Alien Registration No. 071-306-485, interviewed on 01122/2005;

104. Cai Ping Mu, Alien Registration No. 046-874-140, interviewed on 05/10/2005;

105. Bahman Niknam, Alien Registration No. 071-754-447, interviewed on 12/20/2005;

-21-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 22 of 26
106. Sevil Orudzheva, Alien Registration No. 071-303-239, interviewed on OS/03/2005;
107. Samuil Rubinchik, Alien Registration No. 076-048-606, interviewed on 12/06/2005;
108. Lev Shapiro, Alien Registration No. 071-390-713, interviewed on 04114/2005;
109. Xe Juan Zhang, Alien Registration No. 046-473-974, interviewed on 03/1612005;
110. Grgoriy Tauber, Alien Registration No. 074-844-652, interviewed on 06/08/2005;
111. Teymur Khaimov, Alien Registration No. 071-068-639, interviewed on OS104/2005;
112. Nataliya Titova, Alien Registration No. 045-193-940, interviewed on 12/27/2005;
113. Galina Usherenko, Alien Registration No. 071-369-525, interviewed on 11122/2005 ;
114. Galina Veksler, Alien Registration No. 071-376-597, interviewed on OS/02/2005;
115. Olga Vinokurova, Alien Registration No. 076-059-081, interviewed on 02112/2006;
116, Hun Zhuang Xiao, Alien Registration No. 047-165-867, interviewed on 09113/2005 ;
117. Yu Yun Xiao, Alien Registration No. 070-174-480, interviewed on 04/20/2005; and
118. Ye Qing Yang, Alien Registration No. 070-307-095, interviewed on 04119/2005.
-22-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 23 of 26 \
STATEMENT OF CLAIMS FIRST CLAIM FOR RELIEF 66. USCTS Defendants' custom and practice of failing to grant or deny proposed class members' applications for naturalization within 120 days oftbe date of their initial examinations violates 8 CF.R. § 335.3 and 8 U.S.C § 1447(b). SECOND CLAIM FOR RELIEF 67. USeIS Defendants' custom and practice of failing to grant or deny proposed class members' applications for naturalization within a reasonable time violates 5 U.S.c. § 555(b). THIRD CLAIM FOR RELIEF 68. Defendants GONZALES and MUELLER's custom and practice offailing to complete within a reasonable time the background checks for which the FBI is responsible and that are necessary to adjudicate proposed class members' applications for naturalization violates 5 U.S.C. § 555(b). FOURTH CLAIM FOR RELIEF 69. All Defendants' custom and practice of collectively failing to take all steps necessary to adjudicate proposed class members' applications for naturalization within a reasonable time violates 5 V.S.c. § 555(b).
REOUEST FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court enter a judgment in their favor as follows: 70. Certify this action as a class action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2) with a Plaintiff class defined as:
-23-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 24 of 26 \
All persons residing in Kings, Nassau, Queens, Richmond and Suffolk counties in New York State, who have properly submitted or will properly submit applications to be naturalized as U.S. citizens, whose naturalization applications are not adjudicated within 120 days after the date of their initial examinations. 71. Issue a declaratory judgment declaring that: (a) USCIS Defendants and Defendant GONZALES' custom and practice of failing to grant or deny class members' applications for naturalization within 120 days of the date of their initial examination violates 8 C.F.R § 335.3(a) and 8 U.S.c. § 1447(b); (b) USCIS Defendants and Defendant GONZALES' custom and practice of failing 10 grant or deny class members' naturalization applications within a reasonable time violates 5 U.S.c. § 555(b); (c) Defendants GONZALES and MUELLER's custom and practice of failing to complete within a reasonable time the background checks for which the FBI is responsible and that are necessary to detennine class members' naturalization applications violates 5 U.S.c. § 555(b); (d) All Defendants' custom and practice of collectively failing to take all steps necessary to adjudicate class members' naturalization applications within a reasonable time violates 5 U.S.c. § 555(b). 72. Issue a preliminary injunction: (a) immediately remanding the naturalization applications of identified class members to USCIS Defendants and Defendant GONZALES; and
-24-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 25 of 26 \
(b) ordering Defendants GONZALES and MUELLER to complete all background checks for which the FBI is responsible of identified class members, within twenty-five (25) days of the remand; and (c) ordering all Defendants collectively to complete all steps necessary to adjudicate the naturalization applications of identified class members within thirty-five (35) days of the remand; and (d) ordering USeIS Defendants and Defendant GONZALES to grant or deny the naturalization applications of identified class members within forty-five (45) days of the remand. 73. Issue a pelmanent injunction ordering: I. (a) USCIS Defendants and Defendant GONZALES, within thirty (30) days of this Court granting pennanent relief, to identify all class members as of that date whose pending naturalization applications have not been adjudicated within 120 days of the date of their initial examinations; (b) all Defendants collectively to establish and implement a plan of correction whereby the naturalization applications of all class members identified pursuant to paragraph I. (a) above are granted or denied within ninety (90) days of this Court granting pennanent relief; and II. (a) USCIS Defendants and Defendant GONZALES to grant or deny the naturalization applications of all applicants residing in Kings, Nassau, Queens, Richmond, and Suffolk counties in New York State within 120 days ofthe date of the applicants' initial examinations;
-25-

Case 1:06-cv-03203-ERK-RLM Document 1 Filed 06/28/2006 Page 26 of 26

(b) Defendants GONZALES and MUELLER to compicte within a reasonable

time all background checks for which the FBI is responsible and that are

necessary to adjudicate the naturalization applications ofa11 applicants residing in

Kings, Nassau, Queens, Richmond, and Suffolk counties in New York State;

(c) all Defendants collectively to complete all steps necessary to adjudicate

the naturalization applications of all applicants residing in Kings, Nassau, Queens,

Richmond, and Suffolk counties in New York State within a reasonable time;

74. Award reasonable attorneys fees, costs and disbursements pursuant to the Equal

Access to Justice Act, 28 U.S.C. § 2412(d)(I)(A); and

75. Granting such other relief as the Court may deem proper and just.

Dated: New York, New York June 28, 2006

.~;!J,',-",,",,\i11e d,

;;"~~~~~~L~M~A~Ni,(YS-3017) EGAL ASSISTANCE GROUP e gold Stevens, Of Counsel (1S-4790) a atiychenko, Of Counsel (IM-5858) Elvira Pinkhasova, Of Counsel (EP-5027) Olga Avrasina, Of Counsel (OA- 1600) Helen Drook, Of Counsel (HD-4694) Caroline Hickey, Of Counsel (CH-141O) Deborah Berkman, Of Counsel (DB-9491) AlIa Kazakina, On the Brief 450 West 33rd Street, 11th Floor New York, New York 10001 TeL (212) 613-5000

-26-

 
 Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 1 of 38

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
RAISA YAKUBOVA, EMMA UNGURYAN, BELLA VESNOVSKAYA, DAVID VESNOVSKIY, VYACHESLAV VOLOSIKOV, and SHEHATA AWAD IBRAHIM, on behalf of themselves and all other similarly situated individuals,

- -x

SD 6041/ES 2663

aintiffs,
- against -
MICHAEL CHERTOFF, in his official capacity as Secretary of the Department of Homeland Security, EMILIO GONZALEZ, in his official capacity as the Director of the United States Citizenship and Immigration Services, MARY ANN GANTNER, in her official capacity as the District Director of the New York City District of the United States Citizenship and Immigration Services, ALBERTO GONZALES, in his official capacity as the Attorney General of the United States, and ROBERT S. MUELLER, in his of cial capacity as Director of the Federal Bureau of Investigation,

Civil Action No. CV-06-3203
(Korman, C.J.)

Defendants.
- - - - - - - - - -x

MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS' MOTION FOR ~ PRELIMINARY INJUNCTION AND FOR CLASS CERTIFICATION

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 2 of 38

PRELIMINARY STATEMENT

Plaintiffs, individuals seeking the privilege of

naturalization whose applications have allegedly been pending over

120 days after their naturalization interview, seek a preliminary

inj unction from this Court. Under the terms of the mandatory

injunction sought by the plaintiffs, the Court would remand their

cases to the United States Citizenship and Immigration Services

(USCIS), would order the Federal Bureau of Investigation (FBI) to

complete its background checks on all of the plaintiffs within

twenty-five days of the remand, would direct the USCIS to

adjudicate the plaintiffs' naturalization applications within

thirty-five days of the remand, and would order the USCIS to grant

or deny those applications within forty-five days of the remand.

In addition, plaintiffs seek certification of a class, comprised of

other naturalization applicants residing in this District whose

applications have also been pending 120 days after their

naturalization interview.

The standards for issuance of a mandatory injunction against

the government - a clear showing of entitlement to the relief

requested, and a clear showing that extreme or serious damage will

result unless relief is granted

are extremely high, and

plaintiffs have failed to meet them in this case.

Plaintiffs have made no showing at all, much less a clear

showing, that extreme or serious damage will result unless the

1

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 3 of 38

Court orders the mandatory injunctive relief they are requesting.

Indeed, of the six plaintiffs named in the caption and the 118

individuals referenced in the complaint, 77 have already had their

cases adjudicated, with most being naturalized or scheduled for an

oath ceremony. Of the remaining 47, all but 10 have now cleared

the FBI background clearance process, and many of those are in the

final stages of the administrative adjudication process for their

naturalization applications. The remaining cases are being worked

through the process and the particular problems existing in their

cases, such as pending fraud investigations or requests for

additional evidence, are being addressed.

Given that the

government has already taken action to resolve the bottleneck

involving the vast majority of the 124 individuals specifically

referenced in the complaint, emergency relief is not necessary.

Plaintiffs have also failed to establish that they are clearly
enti tIed to the relief they seek. Indeed, neither 8 U. s. C.

§ 1447(b) nor the Administrative Procedure Act (APA) , cited by

plaintiffs, serves as a basis for permitting the type of broad-

based relief plaintiffs seek, namely an across-the-board remand of

their cases with an order that their background investigations be

completed within specific limited time frames.

Finally, class certification is neither necessary nor

appropriate. In particular, because naturalization applications

are "delayed" for many different reasons, and each case has its own

2

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 4 of 38
unique set of facts, plaintiffs have failed to demonstrate the commonality of interests required for certification of a plaintiff class.
BACKGROUND I. THE NATURALIZATION PROCESS
The sole authority to naturalize persons as citizens of the United States lies with the Secretary of Homeland Security. 8 U.S.C. § 1103(a) [INA § 103(a)]. During fiscal year 2005, the USCIS New York District Office completed 102,461 naturalization cases. Declaration of Mary Ann Gantner (Gantner Decl.), at 1 26. During fiscal year 2006, as of June 30, 2006, the office completed 92,447 cases. Id. Currently, the office generally processes naturalization applications in approximately 6 months. Id. at 1 27.
A lawful permanent resident seeking naturalization squarely bears the burden of proving his eligibility to receive the privilege of United States citizenship by establishing the requisites for naturalization which include residency, good moral character and an understanding of the English language and the history, principles and form of government of the United States. See 8 U. S . C . § 1423 [ INA § 312]; 8 U. S . C . § 1427 (a), (e) [ INA § 316 (a), (e) ]; 8 U. S . C. § 1429 [ INA § 318]; 8 C. F. R. § § 316. 5, 316.10.
3

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 5 of 38
Indeed, "[n]o alien has the slightest right to naturalization unless all the statutory rights are complied with." U. S. v. Ginsberg, 243 U.S. 472, 474 (1917). Any doubts concerning the alien's naturalization application are resolved against the applicant and in favor of the government. See INS v. Pangilinan, 486 U.S. 875, 876 (1988). "American citizenship is the treasured and worthy goal of most immigrants in this country. It is, appropriately, a goal that is not easily attained; the path is often long and arduous. Some applicants stumble or falter along this path; some fail in their quest." Laryea v. United States, 300 F. Supp. 2d 404, 405 (E.D. Va. 2004).
Under the Immigration and Nationality Act [INA], the applicant completes and submits a naturalization application (N-400) and the requisite fee. 8 U.S.C. §§ l427(a)i 1445(a); 8 C.F.R. §§ 316.4, 334.2. With the application, an applicant must provide supporting information pertaining to the applicant's good moral character, and must provide a complete account of any criminal background. 1
When USCIS receives an application at a service center, it keys specific information into its computer systems, including the applicant's name, date of birth, country of birth, sex, race,
In November 1996, USCIS modified its naturalization application process by establishing Naturalization Quality Procedures (NQP). As part of the NQP, an applicant is no longer required to attach a fingerprint form with his or her naturalization application. Rather, USCIS schedules the applicant for an appointment to get fingerprinted directly by USCIS.
4

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 6 of 38

current address and residency history, employment history, marital

and children information, basis of eligibility and responses to

eligibility questions. The system makes a fingerprint appointment

for the applicant at an Application Support Center, and initiates

an examination of the applicant, including but not limited to

review of all pertinent USCIS records and a full background check,

which includes both the fingerprint check and the name check.2 8

U.S.C. § 1446(a) [INA § 335(a)): 8 C.F.R. § 335.1. See Gantner

Decl. at ~ 10. Once the fingerprints are received, USCIS initiates

the fingerprint checks. These law enforcement checks have in many

cases revealed significant derogatory information about

naturalization applicants

information which resulted in the

denial of the applications, or in the applicants' being arrested,

or in the applicants' being charged with removability from the

United States. Gantner Decl. at ~ 11. I f a background check

reveals derogatory information, USCIS is called upon to investigate

that information. Gantner Decl. at ~ 12.

As part of the examination, once USCIS receives the results of

the FBI fingerprint check, the applicant is scheduled for a

naturalization interview and then interviewed by a designated USCIS

2 During the naturalization process, the review of an applicant's USCIS record and police record is critical in confirming that the applicant has established good moral character and is eligible for naturalization. See 8 U.S.C. § l446(a) [INA § 335(a)): 8 C.F.R. § 335.1. Neither the INA nor the regulations mandate a time period within which this investigation must be completed.
5

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 7 of 38
officer (a naturalization officer), who has discretion to grant or deny the application, once USCIS receives the FBI name check results. 8 U.S.C. § 1446(b), (d) [INA § 33S(b), (d)); 8 C.F.R. § 33S.3. The interview encompasses all factors relating to the naturalization application, but centers primarily on proficiency in the English language and knowledge of American government and history. See 8 C.F.R. §§ 312.1-312.S, 33S.2(a)
Next, the application is decided. 3 If denied, an applicant may, within 180 days, request an administrative hearing before a senior immigration officer. 8 U.S.C. § 1447(a) [INA § 336(a}); 8 C.F.R. § 336.2. If denied again, the applicant, if he has exhausted his administrative remedies, may file for judicial review of the denial of his naturalization application in United States District Court, which then exercises de novo review over the denial of the naturalization application. 8 U.S.C. § 1410(c) [INA § 310(c))i 8 C.F.R. § 336.9(b), (c), (d). If approved, the applicant is required to take the oath of allegiance to become a
United States citizen. 8 U.S.C. § 1447(a) (INA § 337(a)); 8 C.F.R.
§ 337.1-337.10. In 1997, in response to heightened national security concerns,
Congress required completion of a full criminal background
3 Pursuant to 8 U.S.C. § 1447(b), see infra at IS, if USCIS fails to adjudicate the application within 120 days after the examination under 8 U.S.C. § 1446, the applicant may seek a hearing in district court.
6

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 8 of 38

investigation of the applicant before citizenship by naturalization

could be conferred. Pub. L. 105-119, Tit. I, Nov. 26,1997,111

Stat. 2448, provides in part that:

During fiscal year 1998 and each fiscal year thereafter, none of the funds appropriated or otherwise made available to the Immigration and Naturalization Service shall be used to complete adjudication of an application for naturalization unless the Immigration and Naturalization Service has received confirmation from the Federal Bureau of Investigation that a full criminal background check has been completed, except for those exempted by regulation as of January 1, 1997.

To give effect to Congress' statutory requirement, USCIS

adopted a regulation in 1998 requiring that no naturalization

examination can begin until after USCIS has received the FBI's

final report of its criminal background check. The regulation, 8

C.F.R. § 335.2(b), provides:

(b) Completion of criminal background checks before
examination. The Service [i. e., USCIS J will notify
applicants for naturalization to appear before a Service officer for initial examination on the naturalization application only after the Service has received a definitive response from the Federal Bureau of Investigation that a full criminal background check of an applicant has been completed. A definitive response that a full criminal background check on an applicant has been completed includes:

(1)

Confirmation from the Federal Bureau of

Investigation that an applicant does not have an

administrative or a criminal record;

(2)

Confirmation from the Federal Bureau of

Investigation that an applicant has an administrative or

a criminal record; or

(3)

Confirmation from the Federal Bureau of

Investigation that two properly prepared fingerprint

cards (Form FD-258) have been determined unclassifiable

for the purpose of conducting a criminal background check

and have been rejected.

7

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 9 of 38
8 C.F.R. § 335.2(b), adopted March 17, 1998, 63 FR 12987. Under this regulation, USCIS may not complete its adjudication
of a naturalization application until a complete background check is done. Additionally, in 2002, USCIS and the FBI responded to even greater national security concerns and provided for a more stringent security check review. The agencies have expanded the search criteria, from ordinary criminal background investigations to matters of national security, a step that necessarily involves the cooperation of foreign governments. 4
II . FBI BACKGOUND CHECKS
The FBI's National Name Check Program (NNCP) is responsible for disseminating information from the Central Records System (CRS) in response to requests from federal agencies, congressional committees, the federal judiciary, friendly foreign police, intelligence agencies, and state and local criminal justice agencies. Declaration of Michael A. Cannon (Cannon Decl.) at ~ 4.
In recent years, the NNCP has grown exponentially, with more customers seeking background information from FBI files on
4 In an effort to more expeditiously adjudicate naturalization applications, some USCIS offices, including the New York District Office, began scheduling interviews with applicants before the FBI had completed its name check, assuming that the name check would be completed by the time of the interview date. See,~, Damra v.
Chertoff, 2006 WL 1786246, at * 3 (N.D. Ohio June 23, 2006).
While this approach served more than ninety percent of nationwide applicants well, it also resulted in cases such as this, in which a response from the FBI was not received before the interview, and thus individuals left those interviews with their applications still pending. This practice has now ended. Gantner Dec. at ~ 25.
8

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 10 of 38
individuals before bestowing a privilege - whether that privilege is government employment; appointment; security clearance; attendance at a White House function; naturalization; admission to the bar; or a visa to our country. More than 70 federal, state, and local agencies regularly request FBI name searches. Id. In addition to serving its regular government customers, the FBI conducts numerous name searches for the FBI's counterintelligence, counterterrorism, and homeland security efforts. Id.
The FBI's system of records contains an index of approximately 94.6 million records of investigative and administrative cases. Id. at ~ 9(c). When the FBI searches for a person's name, the name is electronically checked against this index, seeking all instances of the individual's name, approximate date of birth, and social security number. Id. at ~ 11. Each name is searched in a number of different permutations, switching the order of first, last, and middle names, as well as permutations with just the first and last, first and middle, et cetera. Id.
Approximately 68% of name checks are returned as having "No Record" within 48 hours. Id. at ~ 13. A "No Record" result indicates that the FBI's CRS contains no identifiable information regarding a particular individual. Id. The remaining 32% of name checks are subj ected to a secondary, manual name search, which results in an additional 22% of the name check requests being returned as having a "No Record" within 30 to 60 days. Id. at
9

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 11 of 38
~ 14. Thus, a total of 90% of all name checks result in a final response of "No Record" within three months. Id. The remaining 10% are identified as possibly the subject of an FBI record. Id. For this 10%, the FBI's electronic and paper records are reviewed, and a more thorough investigation is conducted. Overall, less than 1% of the total name check requests result in a response containing possible derogatory information. Id. at ~ 15. If applicable, the FBI forwards a summary of the derogatory information to USeIS. Ibid.
Prior to September 11, 2001, the FBI processed approximately 2.5 million name check requests per year. Id. at ~ 16. As a result of the FBI's post-September 11 counter-terrorism efforts, the number of FBI name checks has grown steadily. Id. For fiscal year 2005, the FBI processed in excess of 3.7 million name checks. Id.
Due to heightened national security concerns, a review of the background check procedures employed by the then-INS was conducted in November 2002. Id. at ~ 17. It was determined that, to better protect our country, a more intensive clearance procedure was required. Id. One of these procedures involved the name check clearance performed by the FBI. Id. At that time, only those "main" files that could be positively identified with an individual were considered responsive. Id. The risk of missing possible derogatory information by restricting the search scope was too
10

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 12 of 38
great, and therefore the search scope was expanded to include references. Id. at ~ 17; ~ id. at ~ 10. Accordingly, additional time was required for processing. Id.
In December 2002 and January 2003, the then-INS resubmitted 2.7 million name check requests to the FBI for all then-pending applications for benefits under the INA for which name checks were required. Id. at ~ 18. The 2.7 million requests were in addition to the approximately 2.5 million regular submissions by all entities. Id.; see id. at ~ 4. Approximately sixteen percent of these resubmitted name checks (over 440,000) indicated that the FBI may have information that related to the subject of the inquiry.
19..:.. at 18. These 440,000 requests are still in the process of
resolution.. Id. The FBI's processing of the more than 440,000 residual name
check requests has delayed the processing of regular submissions from USeIS. Id. at ~ 19. As directed by USeIS specifically, the FBI processes regular name check requests on a first-in, first-out basis unless useIS directs that a name check be expedited. Id. III. FACTS
Prior to the commencement of this action, plaintiffs submitted a list of 49 names to defendants asking for assistance in securing the adj udication of their cases. See list, annexed hereto. Defendants completed the processing of approximately 40 of these cases prior to the commencement of this action and have since
11

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 13 of 38
adjudicated four more cases. 5 Id. The remaining cases all have issues that need to be resolved prior to adjudication.
Independent of this, a number of individuals have filed actions in this district under 8 U.S.C. § 1447(b)/ seeking adjudication of their naturalization applications. Since the beginning of the fiscal year to date, over 40 such actions have been filed, and approximately 20 have already been adjudicated.
To date, all of the FBI name checks for the six named plaintiffs have been completed. See Declaration of Glen Andrew Scott (Scott Decl.) at ~ 6. Of the six named plaintiffs/ one, Raisa Yakubova/ has already been naturalized/ and one, Emma Unguryan, has been scheduled for a naturalization ceremony. Two other plaintiffs/ David Vesnovskiy and Vyacheslav Volosikov, are in the final stages of the administrative adjudication process. Gantner Decl. at ~ 28. The FBI just completed the background check for Bella Vesnovskaya. See Scott Decl. at ~ 6. The application of the sixth and final plaintiff, Shehata Awad Ibrahim/ has issues which remain to be resolved. See Gantner Decl. at 28.
Likewise, of the 118 putative class members referenced in the Complaint, Complaint at ~ 65, approximately 75 have had their cases adjudicated with most being naturalized or scheduled for naturalization. Gantner Decl. at ~ 29. Of the remaining 43
5 In addition, USCIS has demonstrated its willingness to assist naturalization applicants who face difficulties relating to SSI benefits. See Gantner Decl. at ~ 30.
12

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 14 of 38
individuals, the FBI name check has been completed for all but 10. Scott Decl. at ~ 5. 6 Of the remaining 33 individuals, some have issues to resolve, including issues relating to fraud and inadequate documentation. Gantner Decl. at ~ 29. However, with the potential exception of this last group of individuals, it is anticipated that most of the remaining cases will be adjudicated shortly.
ARGUMENT I. Plaintiffs Have failed To Establish Entitlement To The
Mandatory Injunctive Relief They Seek. Plaintiffs have moved this Court for a preliminary injunction
requiring that naturalization applications of the 124 individuals referenced in the Complaint be remanded to USCIS, that the FBI complete background clearances within 25 days of the remand, that USCIS adjudicate the naturalization applications of these individuals within 35 days of the remand, and that USCIS grant or deny the naturalization applications of these individuals within 45 days of the remand. Order to Show Cause. As plaintiffs fail to establish entitlement to inj unctive relief, their motion for a preliminary injunction should be denied.
A preliminary injunction is a drastic remedy, and it should only be granted in extraordinary circumstances. Borey v. Nat'l
6 The Gantner declaration indicated that 18 name checks have yet to be completed by the FBI. Gantner Decl. at ~ 29. This difference is because 8 names have yet to be downloaded into the USCIS computer system.
13

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 15 of 38
Union Fire Ins., 934 F.2d 30, 33 (2d Cir. 1991) (preliminary injunctive relief is "drastic" remedy); Patton v. Dole, 806 F.2d 24, 28 (2d Cir. 1986) (preliminary injunctive relief is "extraordinary" remedy). A party seeking preliminary injunctive relief ordinarily must show that it will suffer irreparable harm in the absence of the injunction and a likelihood of success on the merits. See Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). However, where, as here, a party seeks relief that will alter the status quo or provide the movant with substantially all the relief he seeks, the party must make a clear showing of entitlement to the relief sought. See Tom Doherty Assocs., Inc. v. Saban Entm't, Inc. 60 F.3d 27, 33 (2d Cir. 1995). In addition, the public interest is always "a factor to be considered in the granting of a preliminary injunction." Carey v. Klutznick, 637 F.2d 834, 839 (2d Cir. 1980).
Here, plaintiffs have failed to establish any of the prerequisites for the issuance of a preliminary injunction. As described above, a system is in place to ensure that the applications of the 124 referenced individuals are promptly addressed. Indeed, the majority of those applications either have already been addressed or are in the final stages of being addressed. Gantner Decl. at ~~ 28-29; Scott Decl. at ~~ 5-6.
Plaintiffs also do not show they are clearly entitled to the relief that they seek. Asserting jurisdiction under 8 U. S. C.
14

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 16 of 38
§ 1447(b} and the APA, Plaintiffs request that this Court remand plaintiffs' cases to USCIS, and they demand that this Court set specific time lines for completion of the FBI background investigation and for the adjudication of their naturalization applications. However, plaintiffs have wholly failed to establish a clear entitlement to such relief under any theory.
A. Plaintiffs Are Not Entitled to Relief Under The INA. Pursuant to 8 U.S.C. § 1447(b}, if there is a failure to make a determination under § 1446 [(investigation and examination of naturalization applicants] . . . before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter. With a single exception, courts which have found jurisdiction for claims such as this one, brought under 8 U.S.C. § 1447(b), have refused to provide time limitations to the immigration adjudication authorities upon remand of naturalization applications. See Daami v. Gonzales, No. 05-3667, 2006 WL 1457862 (D.N.J. May 22, 2006); Essa v. USCIS, No. Civ 051449, 2005 WL 3440827(D. Minn. Dec. 14, 2005}; El Dour v. Chertoff, 417 F. Supp. 2d 679 (W.D. Pa. 2005). See also Plaintiffs' Memorandum at pp. 20-21 (cases cited). And the one court that did provide a time limitation, Al-Kudsi v. Gonzales, No. 05-1584, 2006 WL 752556 (D. Or. Mar 22,2006), did so only after an individual hearing, concluding that Al-Kudsi had
15

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 17 of 38

satisfied all the requirements for naturalization. Id. at * 3.

Accordingly, with this single exception,7 if courts have found it

inappropriate to remand with time restrictions when dealing with a

single plaintiff, how much more inappropriate would a remand be in

a case such as this, where the plaintiffs seek a broad-based remand

affecting dozens of aliens?B

Alternatively, other courts have found that 8 U.S.C. § 1447(b)

is not available to naturalization applicants until later in the

adjudicative process. Danilov v. Aguirre, 370 F. Supp. 2d 441, 443

(E.D. Va. 2005); Damra, 2006 WL 1786246; Abdelkhaleg v. BCIS

Director, 2006 U.S. Dist. LEXIS 50949 (N.D. Ind. July 26, 2006).

USCIS considers the interview to be part of the examination

process.

~ Johnny N. Williams Nov. 13, 2002 Memorandum

(attached); William R. Yates Apr. 5, 2004 Memorandum (attached);

William R. Yates Aug. 4, 2004 Memorandum (attached). Under the

well-established rubric of Chevron v. NRDC, 467 U.S. 837 (1984), a

court must defer to an agency's reasonable interpretation of an

ambiguous statute that the agency is charged with enforcing.

7 This decision serves to reinforce the individualized nature of claims under 8 U.S.C. § 1447(b). Indeed, that statute refers to a hearing being conducted prior to remand, which is exactly what occurred. Accordingly, consistent with the language of this statute, which appears to require an individual hearing, the issuance of a general remand with an across-the-board time mandate would be inappropriate.
8 Independent of the above, 8 U.S.C. § 1447(b), by its very terms, only allows for a remand with instructions to the USCIS and would not allow for any order relating to the FBI.
16

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 18 of 38

Because USCIS has made a reasonable interpretation of ambiguous

terms in the statute regarding the examination process, that

interpretation is entitled to deference.

The term "examination" in 8 U.S.C. §§ 1446(b) & 1447{a)&{b) is

ambiguous, as it does not require that the "exam" be a discrete

event. See 8 U.S.C. §§ 1446(b) & 1447(a)&(b). Instead, it

describes a process of examining the applicant and background

materials to determine whether the applicant has met the standards

of naturalization. The ambiguity of the term "examination" is

reinforced due to the lack of a discussion of the relationship

between the "investigation" in § 1446(a) and the "examination" in

§ 1446 (b) .

The "examination" could be one aspect of the

"investigation" (the "examination" could turn up information about

the applicant's residence and employment history over the past five

years); the "examination" and "investigation" could overlap; or the

"investigation" and "examination" could cover two different areas

completely. Therefore, the INA creates an ambiguity as to the

extent and process under which an "examination" may be conducted.

Cf. Forbes v. Napolitano, 236 F.3d 1009, 1011 (9th Cir. 2000)

(finding that terms such as "investigation" and "routine

examination" were inherently ambiguous in upholding vagueness

challenge). Because the term "examination" is ambiguous, Chevron

step 1 has been satisfied and USCIS is entitled to provide a

17

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 19 of 38

reasonable interpretation of the term. 9

The argument that the initial interview constitutes the

"examination" is at most one of several competing interpretations,

but is not compelled by the terms of the statute. It is not enough

for this Court to determine that another interpretation of the

relevant statute and regulations is a better interpretation than

that offered by defendants; this Court must determine simply

whether the interpretation offered by defendants is reasonable.

USCIS has taken the reasonable view that the examination is a

process and that process cannot be complete without a finalized

background check. The "'examination' is a process, not an isolated

event, which necessarily may include one or more in-person

interviews, as well as other activities." Danilov v. Aguirre, 370

F. Supp. 2d 441, 443 (E.D. Va. 2005).

Indeed, USCIS's

interpretation of "examination" is reasonable because Congress does

not allow that process to be completed until a full background

check has occurred. See Pub. L. 105-119, Tit. I, Nov. 26, 1997,

111 Stat. 2448. As the required security check that is without a

statutory time restriction has not been completed, the time allowed

9 Deference to USCIS is particularly appropriate in this

circumstance because of the national security and international

relationship aspects of immigration. INS v. Aguirre-Aguirre, 526

U.S. 415, 425 (1999).

In addition, absent constitutional

constraints or compelling circumstances, an agency must be

permitted to fashion its own procedures to optimize its resources

to most effectively discharge its multitude of administrative

responsibilities. Vermont Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519, 543 (1978).

18

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 20 of 38
by law for USCIS to adjudicate an application has not yet expired. 8 C.F.R. § 336.9(d); Danilov, 370 F. Supp. 2d at 443.
B. Plaintiffs' APA Claims Fail To Make A Clear Showing Of Entitlement To The Relief Sought.
Plaintiffs are also not likely to prevail on their APA claim alleging that defendants have "unlawfully withheld" or "unreasonably delayed" adjudication of their applications or completion of their background checks. The only statute under which a claim such as this can be asserted is 8 U.S.C. § 1447(b), which deals specifically with naturalization applications and delay. See U.S. v. Fausto, 484 U.S. 439, 448-49 (1988) (general grants of jurisdiction cannot be relied upon in the face of a specific statute that confers and conditions jurisdiction); Danilov, 370 F. Supp. 2d at 445 (finding APA inapplicable to claim that naturalization adjudication delayed in light of 8 U.S.C. § 1447(b)). Accordingly, the APA is not available to plaintiffs.
IN any event, plaintiffs' claim under the APA also must fail because any delay caused by the backlog in the completion of the background checks is not "agency action unlawfully withheld or unreasonably delayed". 5 U.S.C. § 706(2). Many courts have refused to grant relief under the APA, even when naturalization or other immigration applications were pending for significant time periods. See Saleh v. Ridge, 367 F. Supp. 2d 508, 513 (S.D.N.Y. 2005) (finding 5-year delay not in violation of APA in part in light of volume of applications); Espin v. Gantner, 381 F. Supp. 2d
19

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 21 of 38

261, 266 (S.D.N.Y. 2005) (over 3-year delay not unreasonable

because of government's limited resources and substantial

caseload); Alkenani v. Barrows 356 F. Supp. 2d. 652, 656-657 (N.D.

Tex. 2005) (no unreasonable delay found in naturalization context

because of need to wait for completion of FBI investigation).

Plaintiffs assert, however, that 8 U.S.C. § 1447(b}, which

references a 120-day time period after interview, provides a clear

deadline for USCIS to meet, and therefore that failure to

adjudicate an application within that time frame means that action

has been "unlawfully withheld" under the APA. Pl. Mem. at 22.

Plaintiffs also claim, that, at the least, the statute forms a

guide by which to judge reasonableness.

Pl. Mem. at 25.

Plaintiffs are incorrect. Rather, much like 28 C.F.R. § 2675, the

statute merely provides a jurisdictional basis through which an

individual can secure judicial review, but does not speak to any

issues of reasonableness. Indeed, it effectively ends the inquiry

by providing the individual with a forum for his claim relating to

the naturalization application. Moreover, given that a separate

statute precludes adjudication until the FBI name checks are

complete, it cannot be said that the USCIS is unlawfully

withholding adjudication of the application or acting unreasonably

in failing to adjudicate the application. Alkenani, 356 F. Supp.

2d at 657 (not unreasonable for USCIS to await results of the name

check) .

20

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 22 of 38
In any event, concerning the FBI's name-check backlog, as explained previously, the backlog of name checks applies to only a small number of the overall applications for naturalization (less than 1 percent). Cannon Decl. at ~ 15. In addition, defendants must use limited resources to complete the background checks required, not only for plaintiffs, but also for other naturalization applicants and for other individuals. Cannon Decl. at ~ 4 (name checks are performed for "Federal agencies, congressional committees, the Federal judiciary, friendly foreign police and intelligence agencies, and state and local criminal justice agencies"). Because defendants have required background checks in a broader range of circumstances post-9/11, a resource strain has been placed on defendants. "[W]here resource allocation is the source of delay, courts have declined to expedite action because of the impact of competing priorities." Liberty Fund, Inc. v. Chao, 394 F. Supp. 2d 105, 117 (D. D.C. 2005). Even in the face of a statutory deadline, moving some individuals to the front of the queue has not been authorized by the courts because granting such relief for one group of petitioners would simply move that group ahead of others who had also been waiting, resulting in no net gain in processing. See In re Barr Lab., 930 F.2d 72, 75 (D.C. Cir. 1991); Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336
21

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 23 of 38
F.3d 1094, 1101 (D.C. Cir. 2003) .10
Defendants also continue to address the backlog of background
checks and have generally been processing the backlog on a first-
in, first-out basis. Cannon Decl. at ~~ 18-19. Courts have been
reluctant to find that such a process violates the undue delay
standard. Liberty Fund, 394 F. Supp. 2d at 116-17 (denying such a
claim against the Department of Labor for backlog processing of
employer applications for permanent labor certifications on behalf
of aliens).11
10 Citing to Forest Guardians v. Babbit, 164 F.3d 1261 (10th Cir. 1998), plaintiffs argue that when Congress sets a specific deadline by which an agency must comply, that the agency's failure to adhere to the deadline constitutes action "unlawfully withheld" or "unreasonably delayed". Pl. Mem. at 22-23. Forest Guardians, however, is inapposite. As a threshold matter, here, unlike in Forest Guardians, there is no statutory deadline that an agency must meet. Rather, as stated, there is a statute which gives a district court jurisdiction under certain circumstances to address unadj udicated naturali zation applications. Moreover, and most important, here, there is no statute that requires the FBI to complete its adjudication by any time period. Finally, as the Court in Forest Guardians recognized itself, its decision is not compatible with In re Barr Lab.
11 Plaintiffs also reference 8 U.S.C. § 1571, which provides that it is the "sense" of Congress that immigration benefit applications be completed within 6 months of filing, in support of the claim that defendants have unreasonably delayed adjudication of their naturalization applications. Of course, such non-binding language has no legal effect in general, but is particularly inapplicable here given that 8 U.S.C. § 1447(b)itself even provides a period of four months from the examination, but leaves open ended any time period for processing prior to the interview, a time period which may be more extensive. Further, under general circumstances, in the naturalization context, applications can be and are adjudicated in 6 months. This "sense" of Congress provision, however, does not speak, of course, to the specific circumstances present in this action.
22

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 24 of 38

Not all of the plaintiffs' cases remain unadjudicated because

of the backlog. While the time required to complete the FBI name

check is certainly the primary reason that some of the plaintiffs'

cases have not been adjudicated, a myriad of reasons exist as to

why other cases remain pending final adjudication, including fraud

investigations and pending evidence requests. Gantner Decl. at ~

29. As for these cases, plaintiffs have failed to show that they

clearly will prevail on their claims of unreasonable delay.

Indeed, without an individual hearing, evaluating the particular

facts of each case, including the length of the delay, plaintiffs

cannot possibly make out a claim on these cases. For that matter,

without an individual hearing, they cannot make out a claim on any

of their cases, including those relating to delays because of the

names check process, much less establish the higher standard for

the issuance of a mandatory injunction.

Finally, the public interest is always "a factor to be

considered in the granting of a preliminary injunction. H Carey v.

Klutznick, 637 F.2d at 839. Here, particularly in light of

heightened security concerns in the post-September 11, 2001, world,

as well as the importance of the benefit sought, it would not be in

the public interest to in any way order the FBI or USCIS to rush

through these applications or to limit their investigations to a

specific duration.

Limiting the time to conduct an FBI

investigation may require the FBI to cut short a promising lead in

23

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 25 of 38
an ongoing investigation relating to a terrorist group or criminal concerns, and may also require the FBI to channel resources in a way that limits its ability to conduct other investigations. The weight of plaintiffs' arguments regarding public interest are lessened by the fact that they have the benefits of lawful permanent resident status, including the ability to work and travel. Thus, the public interest weighs against plaintiffs' request for a preliminary injunction.
Accordingly, plaintiffs' claims fail to establish that they are clearly entitled to the rel f sought, whether under 8 U.S.C. § 1447(b) or under the APA.
B. The Motion for Class Certification Plaintiffs request that the following class be certified: All persons residing in Kings, Nassau, Queens, Richmond, and Suffolk count s in New York state, who have properly submitted or will properly submit applications to be naturalized as U. S. Citizens whose naturalization applications are not adjudicated within one hundred and twenty days after the date of initial examinations. Complaint, <]I 23. A party seeking class certi cation must prove that the proposed class meets the four requirements of Federal Rule of Civil Procedure 23(a): (1) the class is so numerous that the joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the c ims or defenses of the representative parties are typical of the claims or defenses of the class; and 4) the representative parties will irly and adequately
24

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 26 of 38

protect the interests of the class. In re Visa Check/Master Money

Antitrust Litig. 280 F.3d 124, 133 (2d Cir. 2001). In addition,

the party seeking class certification must show that the proposed

class action falls within one of the types of class actions

maintainable under Rule 23 (b) . For the proposed class to be

certified, plaintiffs must satisfy all of these requisites.

Marisol A. v. Guiliani, 126 F.3d 372, 375-76 (2d Cir. 1997).

In evaluating whether class certification is appropriate, the

Supreme Court has held that a court must make a "rigorous analysis"

to determine if the requirements of Rule 23 have been met. Gen

Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982). The

party seeking class certification bears the burden of establishing

the requirements of Rule 23. Amchem Prods. Inc. v. Windsor, 1

U.S. 591, 614 (1997). Finally, the determination of whether an

action can be maintained as a class action, and particularly

whether a class action is the superior method of resolving the

controversy, is one which is peculiarly within the discretion of

the al judge. Becker v. Shenley Indus., 557 F.2d 346, 348 (2d

Cir. 1977).

For the reasons set forth above, it is not necessary to

certify a class in this matter. Indeed, defendants are steadily

processing plaintiffs' cases.

Gantner Decl. at ~~ 28-29.

Moreover, as set forth in the Gantner declaration, USCIS will no

longer conduct an interview prior to the completion of the

25

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 27 of 38
background checks, making this class unnecessary for the future. Gantner Decl. at ~ 25.
Second, and consistent with 8 U.S.C. § 1447 (b), classwide relief is inappropriate in this case. Indeed, and as reflected by the courts adjudicating cases under the statute, the statute calls
an individual hearing to determine what action a court will follow with regard to each naturalization applicant, based on the particular facts of that case. Accordingly, classwide reI f is inappropriate.
Third, while there are some common issues of law and fact, ultimately, as set forth in the Cannon and Gantner declarations, the nature of the wait for final adjudication depends on the facts of each individual case. Indeed, the wait could be because of the backlog, or because of the need for further evidence, or because of a fraud investigation, or for any number of reasons. And even if the wait had been because of the backlog, the case could still be with the FBI because of a more extensive FBI investigation, or with the USCIS for further investigation or processing. Finally, the length of the wait will vary in each case; a 121-day wait is different from a three-year wait.
"[What] constitutes an unreasonable delay in the context of immigration applications depends to a great extent on the facts of the particular case." Saleh, 367 F. Supp. 2d at 512. Accordingly, where individual issues predominate over the common ones, class
26

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 28 of 38

action reI f is not appropriate. See Continental Orthopedic

Appliances v. Health Ins. Plan of Greater New York, 198 F.R.D. 41,

47-48 (E.D.N.Y. 2000).

In addition, Plaintif cannot show that they are adequate

representatives of the class they purport to represent. See Fed.

R. Civ. P. 23(a) (4). A showing of adequate representation requires

named plaintiffs to demonstrate that their claims and the class

claims are so interrelated that the interests of the class members

will be fairly and adequately protected in the class members'

absence. Falcon, 457 U.S. at 158 n.13. 12 Moreover, plaintiffs must

demonstrate that they do not have interests that are antagonistic

to those of the class. See Achem Products, Inc., 521 U.S. at 625-

26. By seeking a preliminary injunction that would require

adjudication of their applications before those of the putative

ss, even where the putative class members' applications were

filed before those of plaintiffs, plaintiffs have created an

interest antagonistic to

interests of the class as a whole.

As a result, plaintiffs have failed to demonstrate that they

meet all of the required elements for class certification under

Rule 23 (a) .

Finally, Plaintiffs have also failed to demonstrate that the

proposed class is maintainable under one of the subsections of Rule

12 Defendants do not assert that counsel for Plaintiffs are not adequate to represent the interests of the putative class.
27

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 29 of 38

23(b). Here, Plaintif assert that their ass is maintainable

under subsection (b) (2), which applies if the "party opposing the

class has acted or refused to act on grounds generally applicable

to the class, thereby making appropr e final injunctive reI f or

corresponding declaratory relief with respect to the class as a

who " Fed. R. Ci v. P. 23 (b) (2); In re Visa Check/Master Money

Antitrust Litig., 280 F.3d at 146. Plaintiffs assert that

defendants have iled to act by failing to take action on their

naturalization applications within 120 days of the interview and

within a reasonable time. Defendants contend however, that they

have not "refused" to act. In

, they have taken various steps

to adjudicate plaintif ' applications, and have yet to adjudicate

only 37 of 124 applications for a variety of reasons,

the

name check backlog, a need for additional evidence, or a need for

further investigation.

Accordingly, as plaintiffs

il to

demonstrate that they meet the additional requirements of Rule

23(b), the Court should deny class certification.

28

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 30 of 38

CONCLUSION

For the reasons set forth above, plaintiffs' motion for

injunctive relief and for class certification should be denied.

Dated:

Brooklyn, New York July 31, 2006

Respectfully submitted,

ROSLYNN R. MAUSKOPF United States Attorney Eastern District of New York One Pierrepont Plaza, 14th Floor Brooklyn, New York 11201

By: SCOTT DUNN Assistant United States Attorney (718) 254-6029

PETER D. KEISLER Assistant Attorney General
DAVID KLINE Principal Deputy Director
DANIEL J. DAVIS Special Counsel to the Assistant Attorney General

By: ELIZABETH J. STEVENS (ES2663) Attorney Office of Immigration Litigation Civil Division United States Department of Justice 1331 Pennsylvania Avenue, N.W. Washington, D.C. 20044 (202) 616-9752

29

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 31 of 38

July 31, 2006

Last Name
Flyuis Egiazaryan Goncharov

First Name

A·No.

Sofia Vladimir Valeriy

45-662-979 46-314-712 47-138-045

NYLAG Natz Interviews (by A-number)

Interview Date

Resolution

Comments:

August 17,2005 January 15, 2004 July 22, 2005

--------

GC

GC

I June 2, 2006

1Naturalized

GC

I June 30, 2006

I Naturalized

Bela Nina Yevgenia Vladimir Seraf.•.

71-214-995 71-215-861 71-217-559

March 10,2005 February 10, 2005

I 71-282-510 I June 10. 2005

I GC

71-307-157 71-307-521 71-307-990

March 15,2005

GC

November 9, 2004

GC

Seotember 27.2005

GC

January 27,2006 July 21, 2006

I Mav 31. 2006
April 24, 2006 May4,2006 April 28, 2006 May 23, 2006 May 3, 2006
y 3,2006

I Naturalized Naturalized Naturalized Naturalized Naturalized Naturalized Naturalized

IncOInplete Hr,t names are illegible.

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 32 of 38

Last Name

First Name

A-No.

NYLAG Natz Interviews (by A-number)

Interview Date

Resolution

July 31, 2006 Comments:

Smirnova Chesakova Begun

Naturalized Naturalized Naturalized

Reznikova

I Emma

I 76-044-725 I June 17. 2005

July 20, 2006

May 3, 2006

GC

GC

June 1, 2006

GC

May 3,2006

GC

June 14, 2006

GC

May 6,2006

Awaiting related Naturalized Naturalized Naturalized Naturalized

2

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 33 of 38

.....
Office of the Executive Auocille Commissioner

U.S. Department ofJustice Immigration and Naturalization Service
HQISD70
425 J Strut NW Wtuldngton. DC 20136
NOV I 32002

MEMO .KAi'OiIO.M
FROM:
SUBJECT:
Over the past several years we have instituted processes to identify law enforcement interest in persons who apply for immigration benefits. The purpose ofthis memorandum is to reiterate and stress the importance ofthese processes and to refme. these processes to ensure that benefits are not granted to ineligible applicants. The instructions in this memorandum apply to the adjudication of all applications and petitions for benefits and to all officers who adjudicate those applications and petitions.
District Directors and Service Center Directors must take steps to ensure that aU employees assigned to adjudications responsibilities have received a copy ofthis memorandum. Supervisors should take immediate action to explain the contents ofthis memorandum to all employees assigned to the adjudication ofapplications and petitions for benefits. A record bearing the signature ofeach employee must be maintained.
General Requirements
There is substantial information available to our adjudicators. This includes a system of national checks such as electronic fingerprinting, automated background checks. etc. It remains, however. the
responsibiUty ofeach and every officer to determine eligibility for a benefit In .arrivlngat that
determloatioo omcers are requJred to obtalo aod review aoy aod aU Informatloo

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 34 of 38

-.
Memorandum to Distribution List,
Subject: Responsibilities of Adjudicators

Page 2

provided through national or local background checks. It also is a responsibility of adjudicators to review the full contents of the A-file or petition for any potentially disqualifying information or evidence that such information may exist.
1. Officers reviewing the results of IBIS checks must determine whether the file contains aliases and must initiate further checks ofIBIS ifaliases are present in the file.
2. i( in response to a name check, the FBI indicates to the INS that a record may possibly exist (referred to in Service guidance as "IP" or "indices popular") the application may not be decided until the adjudicator obtains and reviews the information or receives a specific determination from the FBI that the record does not relate to the applicant. The disposition of the IP response must be documented in the file.
Adjudicating applications and petitions from a Temporary A-file
Extra care must be taken in adjudicating applicationS and petitions from a Temporary A-file. Applications that are adjudicated from a Temporary A-file nnm..undergo all the normally required background checks, and must include the following additional steps. These additional requirements amplify the current guidelines contained in the N-400 NQP, and create new guidelines for other adjudications.
1. The Central Index System (CIS) printout must be reviewed to determine if records exist in other INS systems. If so, the adjudicator must obtain, review, and attach to the file that information prior to adjudicating the application.
2. If background checks are negative (no record). this fact and the data checks that were made/reviewed must be noted on a processing sheet that is attached to the file. A supervisory adjudications officer must review and approve the adjudication ofthat application on the temporary A-file.
3. Ifbackground checks are positive (a record or possible record exists), this fact and the data checks that were made must be recorded on the processing sheet. In any instance where a check is positive the information must be obtained. resolved and made a part of the record. In addition, the adjudication may not proceed until the Assistant District Director for Adjudications, or the Assistant Service Center Director, or the Officer in Charge having jurisdiction over the adjudication has reviewed and approved the decision. This authority may not be delegated.
4. Because special precautions must be taken in adjudicating applications on a Temporary A-file, and to permit supervisors adequate time to review records, no same-day oath ceremony may take place if the adjudication involves a Temporary A-file. The ASsistant Director for Adjudications, or the Assistant Service Center Director, or the Officer in Charge may waive this requirement in appropriate cases. Such waivers shall be in writing and placed in the file.

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 35 of 38

• '

f'

Memorandum to Distribution List ,SUbject: ResponlibilitiOS ofAdjudicators
DISTRIBUTION LIST
Regional Directors District Directors Service Center Directors
Officers in Charge
Acting Director, Office ofIntemational Affairs Director, Immigration Officer Academy EAC, Office ofPolicy and Planning General Counsel DEAC, Immigration Services Division

Pqe3

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 36 of 38

Interoffice Memorandum

April 05. 2004

.Citizabip aad JmmiaratiOD SorviccI (CIS) OODdlicts Jaw eotorcemerrtcbecb on an peuctinl applicadona aad.
a» , petitiou for two purpoICI to e.abaDoe public ..relyby initiatina appropIiate Jaw. eDf'orceD.t acticm. in
~ CIIOI that WIirIDt it, aad to obtlin iDformation that may be reJ.mnt to thO a&VudfcatiOD of
application. ,Iti. importIDt that CIS coiltinueI1o aure both papolel are mot in an ca..

Thia memorandum IUpercedu the Jolmay WilJiamJ Memorandum ofNovember 13.2002. '8opmonaihjljtict of . Miu4iCltog, U it. relate. to FBI name cheoD, lDClany other limilar inatructiou.

Bffeotiw with thiI mimorIbdum, applioations 'WIDIDtina denial may be lcUudicaUd prior to obtainiq tho

final reruIta ofall requiroclJaw eafor;cemem cbeckI. Officoa _)'ina an application, without tile reauitl6om.

tho law'caforocment cheob, will.be l'upouibl4= for J11OIlitoriq tho fiuheau1t1 wbeD they become &'VIili.ble.

and iIJdna'appropriate IC1:ioD ti'pubHc safety CODCemI Ire ideatifiec:L OmCCII will benquind to cMMiop·a pOa-adit I)'Itemto recOive, roviewand forward refeIrala to tho aPJl'Oimte Jaw ~ entity after ID

applioatioit bu been dcDied. 1'hif poIHwtit I)'Item ~ &.lao requirocl for all CIICI when In NJ'Ahili boeR

iIIuecl in accorcJaDoe with the WiUiIm R. V. .Memorandum ofMaroh 2. 2004. eatitled SepUritycwi

Bpg.pimmcpta Pmerl"o, Notice to _ _ 19uapce.

.

.

Ifprefemd, offiCCI may oontinue to withhold fiDIl acijudication umilan required law CIDforceme:I1tcblJck .
reaultl are rccciwd. 0ffiC0I continuiD8 to follow the auidIDco outliDId in the abcMH'efCll'eDClCl Jolmny Williama M.monndum reIatiq to FBI DIlDO ohecb will complete fiDal ~ lad laweDf'orcemeDt .
re1'erra1a at the I8lDe time. with DO polt-tludit I)IItem ~
Ifyou lave any qucltionl reprdiDa thiI memorandum. pleue cordICt Patricia NoJiD, Field 0perati0nI, at
2021514-2982.

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 37 of 38

us. Clt1zensht,p
and Immtgratfon Services

Interoffice Memorandum

To:' RBOIONAL DIRBCTORS

DISTRICT DIRBCTORS

." SERVICE! CEN'I'Ea DIRBCTORS .

NATIONAL ~

.....-,........~...

Prom:

i.e:' Requinld Security ebecb

. Tbia ~ updatea IDd explabu alatiDa policy reprdbla R1quJred securlty cbecb. .Faeld.Of8c:ea are remlndod that prior to IuuiDa cIocUQllll~ e~cbIa or reaultiDa fmm a pIDt of lawful penDaent J:eaidIi1t (LPR) ItItUI or uy1um. iDcludbJc aD 1-551 ABeD Docu.maD1IdoD J'dentlficatica TecbDoloaY Slimp
(:ADlI'). aD UY.~ ArrivaIIDepartu Record (1-94). or aD Bmpioymem AudnizatioD Document (EAD) buecl \lpOQ 8 CPR 2741.12(a)(5). ... of the IeCUrlt)' c~ UsIed below muat be com;letecL· TbIIo
cbecb IDIIIt be ICc:oqJUlbe41n all cirCumItaace.. whether the fiDal ....ofLPR ItaaII or uylum·bas beJD
PID by U.S. CitiMDibip ad Immip.tioo SeJYice (USCIS) or the &ecutive Office for Jaimiaration Review
(BOIR.) ua form ofrelW fmm l'CJmval. In thole IDataDcel whim USCIS 1. uoaUft! wbetber die apprqxiate
Security Qecb have been coaductcd. the followiDa cbeckI.1DIlIt ~ ~aaip1etecl by USCIS..

InterasencyBorder lDIpecdcm SYltem (mIS). mIS i. amulti.:apacy effort ItIned by the Immtaradan and
NaturaUzatian Service. DepanmeDt ofAaricU1ture. US'Cuatoma $eIvice.1Dd die Department ofS_
Twenty-four Individual apIIClel have contributed iDfmnatioD to thillookout 1yMem. An mlS query 11110
iDcludea a cbeck ofdie National Crime Infcxmatlan Center (NCIC), DIInapd by tile Federal Bureau of InveatiptioD (FBI) far federal.ltate, IDd loca1law enfan:emeDt entitiea to Ibare data coacemiDa wanted . penoDI, crimiDaia. penoDI Of iDIeIeIt,. and routine lip! edmbri...tiv~ matreI:L
TeD.pnm ftnaspriDt. ThiI cbeck ilcamp~ tbroUah tile tatiaa offiD&erpliJIrIlt the local App.licatioD
Suppc»1.QIDter (ASe). Tbe ~ JUItico Informatioo Servicol (CJIS) Dtvillaa <?f die PDI caadaCti PIJIaerpdDt Backp'ouDd ~ tbrouah the aubmi" offiD&erpriDta IbCi • aearch ofthe PDr. Cr1miul
HiataEy Muter PlIe. 'fbi PIDprpriDt Bac:kpxDid Oieck w1Il iDf;lude aaly informatioD that bas beeD lubmitted to tile PDI by l~ . .federal. or Intemational crimlDaI.jUldce apaciea.' In ""Utian to tile
finaerpriut aeareb. a JWDe aearch Oaly 11 CODducted apinat the Nce GaDa ad TerrmiIt Orpdptlan File..

PDI Naa Qeck. ThiI check 11 CODduetecl apiDlt two separate databuel. A Mj,ip Index IWdl Dlliebel tile

app1icaDt'1 name apiDat. the ~ of people who are, or have been. the IUbject of aoiDvesdptiOD.. a

.

Case 1:06-cv-03203-ERK-RLM Document 16 Filed 07/31/2006 Page 38 of 38

..
IIquind Securliy 0II0kI : Pap 2 : . . . '

. . . .1IIIOh.matIihea the app1iclDt'. DID ap1DIt~ tbat'appeuin inveaiaauw ripcxti. evtIl

tboUp 1liiie mAy Dot'bi tbI~oflbeinw~~

.

PoIlowiDatbollllCb.afSeptembir li,2001~ 1aW"~II"J_lIiPQO"aaeDcleibav.iDcnuicl .

users mfaimadoluhadD.. 'AIl lBIS'dIec:k p8fCllllMld today providea ~ from1UUDII'OIII eatOlQtaGt ad

bltaWpllCO~· AI. IIlIIUh oItbo1o etterta.lt·iI DO 1.~';fOr

IO~ llIpIftIta .

. ·oiaual. . . . .~ (CIA}Qeck. IIfl'IctiW ......,...., 1Wcl otaqetaay .......Ibe pnctb ,

af~ 6Oda)'ltor iUilpO"from the'aA:- :" ' . , ' . ,

.

IfyOU bave lay queaticlaI ~·thiJ ~ plIIIo coatIct·PIDfc1a ~o1ID. PloW OpeiadCIII.1t

2021514-2982.

.

.

<,

, \

, '
, ,
~
..,

, .

. '

"

 
 Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 1 of 63

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
- - - - - -x
RAISA YAKUBOVA, EMMA UNGURYAN, BELLA VESNOVSKAYA, DAVID VESNOVSKIY, VYACHESLAV VOLOSIKOV, and SHEHATA AWAD IBRAHIM, on behalf of themselves and all other similarly situated individuals,

SD 6041/ES 2663

ntiffs,
- against -
MICHAEL CHERTOFF, in his official capacity as Secretary of the Department of Homeland Security, EMILIO GONZALEZ, in his of cial capacity as the Director of the Unit States Citizenship and Immigration Services, MARY ANN GANTNER, in her official capacity as the District Director of the New York City District of the United States C izenship and Immigration Services, ALBERTO GONZALES, in s official capacity as the Attorney General of the United States, and ROBERT S. MUELLER, in his official capacity as Director of the Federal Bureau of Investigation,

Civil Action No. CV-06 3203
(Korman, C. J. )

Defendants.

- - -x

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS AND IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 2 of 63

PRELIMINARY STATEMENT

Defendants submit this memorandum in support of their motion

to dismiss this action under Federal Rules of Civil Procedure 12 &

20.

Plaintiffs are individuals who have been granted the

privi

s of permanent resident status in the United States,

including, for many, a safe haven from persecution and various

welfare-related benef s.

Now seeking the privilege of

naturalization, plaintiffs all that their applications have been

pending over 120 days after their naturalization interview, and

seek declaratory relief and a permanent injunction from this Court.

This Court lacks j sdiction over certain of plaintiffs'

claims because the statutory requis es for jurisdiction have not

been met, making this case unripe for review. In addition, the

remainder of the claims in Plaintiffs' complaint fail to state

claims upon which the relief that they seek may be granted.

Moreover, the relief under 8 U.S.C. § 1447(b) that the individual

plaintiffs seek requires an individualized adjudication for each

plaintiff, and thus plaintiffs are misjoined.

Finally, class certification is neither necessary nor

appropriate. As naturalization applications remain pending final

adjudication for many different reasons, and each case has sown

unique set of facts, plaintiffs have failed to demonstrate the

commonality of interests required for certification of a plaintiff,

class.

aintiffs also fail to demonstrate that they are typical

1

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 3 of 63
of the class, or adequately represent the class that they seek to represent.
BACKGROUND I. THE NATURALIZATION PROCESS
The so authority to naturalize persons as citizens of the United States lies with the Secretary of Homeland Security. 8
U.S.C. §§ 1103(a) & 1421(a). During fiscal year 2005, the uscrs
New York District Office completed 102,461 naturalization cases. Declaration of Mary Ann Gantner (Gantner Decl.), at ~ 26. During fiscal year 2006, as of August 31, 2006, the New York Office completed 106,179 cases. Declaration of Gwynne K. MacPherson (MacPherson Decl.), at ~ 5. The New York Of ce currently processes naturalization applications within five to six months. Gantner Decl. at ~ 27.
A lawful permanent resident seeking naturalization bears the burden of proving his eligibility to receive the privilege of United States citizenship by establishing the requisites for naturalization which include residency, good moral character,l and an understanding of the English language and the history,
During the naturalization process, the review of an applicant1s USCIS record, police record, and information concerning the applicant in other law enforcement databases is critical in confirming that the applicant has established good moral character and is eligible for natura zation. See 8 U.S.C. § 1446(a); 8 C. F. R. § 335.1. Nei ther the Immigration and Nationality Act ("INA") nor the regulations mandate a time period within which this investigation must be completed.
2

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 4 of 63

principles and form of government of the United States. See 8

U.S.C. § 1423; 8 U.S.C. § 1427 (a), (e); 8 U.S.C. § 1429; 8 C.F.R.

§§ 316.S, 316.10.

Under the INA, the applicant completes and submits a

naturalization application (N-400) and the requisite

8 U.S.C.

§§ 1427(a), 144S(a); 8 C.F.R. §§ 316.4, 334.2.

With the

application, an applicant must provide supporting information

pertaining to the applicant's good moral character, and must

provide a complete account of any criminal background. 2

When USCIS receives an application at a service center, it

keys specific information into its computer systems. The computer

system makes a fingerprint appointment for the applicant at an

Application Support Center, and initiates an examination of the

applicant, including but not limited to review of all pertinent

USCIS records and a 1 background ck, which includes inquiries

run by both USCIS and the FBI.3 Gantner Decl. at ~~ 4, 6, 10.

2 Naturalization applicants are no longer required to attach a fingerpr int form with their naturalization application; rather, USCIS schedules the applicant for an appointment to get fingerprinted directly by USCIS. See Gantner De . at ~ 8.
3 In 1997, in response to heightened national security concerns, Congress required completion of a full criminal background investigation of the applicant before citizenship by naturalization could be conferred. Pub. L. lOS 119, Tit. I, Nov. 26, 1997, 111 Stat. 2448; Complaint, ~ 36. To give effect to Congress' statutory requirement, USCIS adopted a regulation in 1998 requiring that no naturalization examination can begin until after USCIS has received the FBI's final report of its full criminal background check. 8 C.F.R. § 33S.2(b). Under this regulation, USCIS may not complete
s adjudication of a naturalization application until a complete
3

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 5 of 63

The FBI portions of the background checks consist of the

fingerprint check and the name check. 8 U.S.C. § 1446(a); 8 C.F.R.

§ 335.1. See Gantner Decl. at ~ 10. The name check is requested

from the FBI once the applicant's information is keyed into the

USCIS database.

See Gantner Decl. at ~~ 6, 7.

Once the

fingerprints are received, USCIS requests the fingerprint checks.

See id. at 8.

The gamut of background checks, performed by USCIS and the

FBI, have in many cases revealed significant derogatory information

about naturalization applicants information which resulted in the

denial of the applications, or in the applicants' being arrested,

or in the applicants' being charged with removability from the

United States. Gantner Decl. at ~ 11. If any of the checks reveal

derogatory information, USCIS investigates that information.

Gantner Decl. at ~ 12.

As part of the examination, once USCIS receives results from

the background checks,4 the applicant is scheduled for a

background check is done.
4 In an effort to more expeditiously adjudicate naturalization applications, some USCIS offices, including the New York District Office, began scheduling interviews with applicants after receipt of the fingerprint check results but before the FBI had completed its name checks (but after receiving the initial name check results from the FBI. USCIS assumed that the name check would be completed by the time of the interview date. See,~, Damra v. Chertoff,
2006 WL 1786246, at * 3 (N.D. Ohio June 23, 2006). Whi this
approach served to speed the processing time for more than ninety percent of nationwide applicants, see infra at p. 7, it also resulted in cases such as this, in which a final response from the
4

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 6 of 63

naturalization interview and then interviewed by a designated USCIS

officer (a naturalization of cer), who has discretion to grant or

deny the application, once USCIS receives the results of the

various background checks. 8 U.S.C. § 1446(b), (d); 8 C.F.R. §

335.3. The interview encompasses all factors relating to the

naturalization application, but centers primarily on proficiency in

the English language and knowledge of American government and

history. See 8 C.F.R. §§ 312.1-312.5, 335.2(a). The of cer may

require the applicant to provide additional documentation or return

for additional interviews and/or pro ciency tests. Once all of

the investigations are complete, the examination phase ends. Next, the application is decided. s If denied, an applicant

may, within 180 days, request an administrative hearing before a

senior immigration of cer. 8 U.S.C. § 1447(a); 8 C.F.R. § 336.2.

If denied again, the applicant, if he has exhausted his

administrative remedies, may fi for judicial review of the denial

of his naturalization application in United States District Court,

which then exercises de novo review over the denial of the

naturalization application.

8 U.S.C. § 1410(c); 8 C.F.R.

FBI was not received before the interview, and thus individuals left those interviews with their applications still pending. This practice has now ended. Gantner Dec. at ~ 25.
5 Pursuant to 8 U.S.C. § 1447(b), ~ infra at p. 22, if uscrs
fails to adjudicate the application within 120 days after the examination under 8 U.S.C. § 1446, the applicant may seek a hearing in district court.
5

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 7 of 63

§ 336.9(b), (c), (d). If approved, the applicant is required to

take the oath of allegiance to become a United States citizen. 8

U.S.C. § 1447(a)i 8 C.F.R. § 337.1-337.10.

II. FBI BACKGOUND CHECKS

The FBI's National Name Check Program (NNCP)is responsible for

disseminating information from the FBI's Central Records System

(CRS) in response to requests from federal agencies, congressional

committees, the federal judiciary, friendly foreign police,

intelligence agencies, and state and local criminal justice

agencies. Declaration of Michael A. Cannon dated July 20, 2006

(Cannon Decl.) at ~ 4.

In recent years, the NNCP has grown exponentially, with more

"customers" seeking background information from FBI files on

individuals before bestowing a privilege -- whether that privilege

is government employment; appointment: security clearance:

attendance at a White House function; naturalization; admission to

the bar; or a sa to our country. Cannon Decl. at ~ 4. More than

70 federal, state, and local agencies regularly request FBI name

searches.

In addition to serving its regular government

customers, the FBI conducts numerous name searches for the FBI's

counterintelligence, counterterrorism, and homeland security

efforts. Id.

The FBI's system of records includes the Oniversal Index

("UNI"), an index of approximately 94.6 million records of

6

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 8 of 63
investigative and administrative cases. Id. at ~ 9(c). The first stage of the name check process, Batch Processing, consists of a fully computerized search of the UNI for all mentions of the individual's name, a close date of birth, and social security number. Id. at ~ 11; Supplemental Declaration of Michael A. Cannon dated August 31, 2006 (Supp. Cannon Decl.) at ~ 12. Each name is searched in a number of different permutations, switching the order of rst, last, and middle names, as well as permutations with just the first and st, rst and middle, et cetera. Id~ Approximately 68% of name checks are returned to USCIS as having "No Record" within 48 hours. Supp. Cannon Decl. at ~ 12. A "No Record" result indicates that the UNI database contains no identifiable information regarding a particular individual. L~
The remaining 32% of name checks require additional investigation, and so they are moved to the second stage of the name check process, "Name Searching". Id. at ~ 13. In Name Searching, the remaining names undergo a secondary, manual name search of the computerized databases, which results in the return within 30 to sixty days of an additional 22% of the name check requests as having a "No Record". Id. Thus, a total of 90% of all name check requests result in a final response of "No Record" in less than three months. See id.
The remaining 10% of name check requests is identified as the probable subject of an FBI record, and moved to File Review. Id.
7

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 9 of 63

at <J[ 14. In

Review, the FBI's paper records are located and

retrieved from one, or more, of the 56 FBI

d offices. Paper

records exist for all documents pre-dating the implementation of

the FBI's Automated Case Support system on or about October 16,

1995. Id. at <J[ 14, 25. If the paper records are responsive to a

particular name check, these records are currently scanned. Id. at

30. Once all of the identified files are gathered, the remaining

name check requests are then rwarded to "Dissemination". Id. at

<J[ 14, In Dissemination, FBI analysts review the various records to

verify the information linked to the individual's name, to

ascertain whether the information both pertains to the individual

and whether any information is potentially derogatory. Id. Where

derogatory information is identified, if appropriate, the FBI

forwards a summary of the derogatory information to USCIS. Id.

Pr r to September 11, 2001, the FBI processed approximately

2.5 million name check requests per year from all sources. Id. at

<J[ 16. As a result of the government's post-Septerrrber 11 counter-

terrorism efforts, the number of FBI name checks has grown

steadily. Id. at <J[<J[ 16, 33. For fiscal year 2005, the FBI

processed in excess of 3.7 million name checks. I~ at <J[<J[ 16, 35.

In scal year 2006, as of August 23, 2006, the FBI has processed

over 3.1 million name checks. Id. at <J[ 36.

Due to heightened national security concerns, a review of the

background check procedures employed by the then-INS was conducted

8

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 10 of 63

in November 2002. Cannon Decl. at ~ 17. It was determined that,

to better protect our country, a more intensive clearance procedure

was required. Id. One of these procedures involved

name check

clearance performed by the FBI. Id. At that time, only those

"main" files that could be pos ively identif with an individual

were considered responsive. Id. The risk of missing possible

derogatory information by restricting the search scope was too

great, and therefore the search scope was expanded to include

references. 7 Id. at ~ 17. Accordingly, additional time was

required for processing because many more files were required to be

reviewed for each individual. Id.

In December 2002 and January 2003, the then-INS resubmitted

2. 7 mil on name check requests to the FBI under the expanded

search scope. Id. at ~ 18. The 2.7 million requests were in

addition to the regular submissions by all entit s. Id.; ~ id.

at ~ 4. Approximately sixteen percent of these resubmitted name

checks (over 440,000) indicated that the FBI might have information

that related to the subject of the inquiry. Id.:... at 18. These

440,000 requests are still in the process of resolution, but the

Completion of an FBI background check as part of the full criminal background check prior to adjudication of an application for naturalization has been included in the naturalization adjudication process for decades. The scope of the search has been adjusted occasionally, due to national security/public safety considerations.
7 References are those instances where an individual or an organization appears in another individual's or organization's main
leo See Cannon Decl. at ~ 8(b).
9

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 11 of 63

number pending is now under 13,000.

Supp. Cannon Decl. at

<j[ 19. These pending requests remain the oldest USCIS name check

requests in

system.

The FBI's process in ssemination of the more than 440,000

resubmissions has layed the processing of regular submiss s

from USCIS. Id. at <j[ 20. To reduce these del , the FBI created

a team dedicated to completing the remaining resubmissions, which

permits other staff to process regular name check requests on a

first in, rst-out basis. Id. at <j[<j[ 20, 21. The FBI also permits

USCIS to request expedited treatment for a limited number

pending requests. Id. at <j[ 26. 8

Various circumstances impact the amount of time necessary to

complete a single name check request in File Review and

ssemination. Fi s must be requested from field offices located

across the country,

records could be located at one of 265

poss

locations. Id. at <j[ 25. Common names (such as Mohammed,

Singh, or Smith) may result in hundreds of potential matches. Id.

at <j[ 24. Many potential file matches are ruled out in the Name

Check process, but others require analysis in Dissemination.

The sheer volume the requests has also resulted in delays.

Supp. Cannon Declo at <j[<j[ 21, 33. To meet the expanding

wor oad, the NNCP continues to look r ways to improve its

A case can be expedited if the applicant les an action

federal court, will lose SSI benefits, or for other compelling

reasons.

MacPherson Decl. at <j[ 4.

10

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 12 of 63

processes and expand s resource base. Id. at ~~ 27, 31,32. It

is developing partnerships with other agencies to provide

contractors and personnel for various portions of the name check

process. Id. at ~ 28. To speed replacement of rsonnel due to

turnover, it has implement an employee development program to

streamline training of new employees, reducing the necessary

tra ng riod.

at ~ 29. All newly accessed paper files are

being scanned to build an electronic records system, speeding up

future access to those records, allowing for easier transmission of

the

to

analysts in dissemination, and allowing

future

automation of portions of the final process. Id. at ~~ 27, 30, 32.

III. FACTS

to

commencement of s act , plaintiffs submitted

a list of 49 names to defendants, asking for assistance in securing

the adjudication of their cases. See Macpherson Decl. at ~ 3.

Defendants completed the

ssing of approximately 40 of

se

cases prior to the filing of this action and have since udicated

more cases.

remaining cases all have issues that

need to be resolved prior to USCIS's adjudication of their

naturalization applicat s. Id.

Four

the named plaintiffs,

sa Yakubova, Emma Unguryan,

David Vesnovskiy and Vyacheslav Volosikov, have been naturalized.

Gantner Decl. at ~ 28; see also Mac rson

at ~ 3. USCIS is

waiting for plaintiff Bella Vesnovskaya to appear for fingerprints,

11

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 13 of 63

as her fingerprint clearance has expired.

MacPherson Decl. at

~ 3; see also Gantner Decl. at ~ 16. The background checks

. plaintiff Shehata Awad Ibrahim revealed a duplicate file another

USCIS district, which has been requested. Gantner Decl. at ~ 28.

The FBI name chec on 1 of the named plaintiffs have been

completed. Declaration of Glenn Andrew Scott (Scott Decl.) at ~ 6.

Of the 118 putative class members referenced in the Complaint,

Complaint at ~ 65, approximately 109 have had their cases

adjudicated .with most being naturalized or scheduled for

naturalization. Gantner Decl. at ~ 29; MacPherson Decl. at ~ 3.

Of the remaining 9 individuals, the examinations of the applicants

remain to be resolved, including issues relating to fraud and

inadequate documentation. Gantner Decl. at ~ 29; MacPherson Decl.

at ~ 3.

Independent of this case, a number of individuals have filed

actions in this district under 8 U.S.C. § l447(b), seeking

adjudication of their naturalization applications. Since the

beginning of the 2006 scal year, approximate 43 such actions

have been filed, and approximately 22 have already been adjudicated

and the cases dismissed upon stipulation. Interestingly, of 22

cases adjudicated and dismissed by stipulation, 14 were filed by

plaintiffs' counsel.

Tsitron v. Gonzales, 05-CV-3661 (JG)

(dismissed by stipulation December 1, 2005); Osepyan v. Ashcroft,

05-CV-3659 (NGG) (dismissed by stipulation March 7, 2006); Kolesova

12

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 14 of 63

v. Gonzales, 05-CV-3657 (RJD) ( smiss by stipulation November 30,

2005) i Yezerets v. Gonzales, 05-CV-3656(SJ) (dismissed by

stipulation January 27, 2006); Reym v. Gonzales, 05-CV-3654 (CBA)

(dismissed by stipulation December 6,2005); Bobrovsva v. Gonzales,

05-CV-3653 (SJF) ( smissed by stipulation November 16,2005); Revm

v. Gonzales, 05-CV-3652 (DLI) (dismiss by stipulation November 29,

2005); Rubin v. Gonzales, 05-CV-3651 (RJD) (dismissed by stipulation

December 8,2005); Arutyunvants v. Gonzales, 05-3650(JG) (dismissed

by stipulation December 1, 2005); Kompanevets v. Gonzales, 05-CV-

3646(ARR) (dismis by stipulation December 13, 2005) i Badalova v.

Gonzales, 05-CV-3645 (dismissed by stipulation January 31, 2006);

Kholopkina v. Gonzales, 05-CV-3644 (DLI) (dismissed by stipulation

November 29, 2005); Smirnovskava v. Gonzales, 05-CV-3643 (ERK)

(dismissed by stipulation December 9, 2005) i Kostanets v. Gonzalez,

05-CV-3642 (RJD) (dismissed by stipulation April 28, 2006).

Lastly, USCIS has a process place whereby individuals who

claim they will lose benef s if the adjudication of their

applications is delayed, or have other compelling reasons, can

receive an expedited adj udication of

ir applications.

MacPherson De

at 'lI 4. USCIS

always demonstrated its

willingness to assist naturalization applicants who

di culties

ing to SSI benefits. See Gantner Decl. at 'lI 30.

ARGUMENT

In reviewing a motion raising a facial attack to jurisdiction,

13

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 15 of 63

the Court must accept all well-pleaded allegations in the complaint

as true and draw all reasonable inferences in the plaintiff's

Dangler v. New York City Off Track Betting Corp., 193 F.3d

130, 138 (2d Cir. 1999) (citations omitt ). However, when

presented with a factual attack to jurisdiction, the court may look

beyond the jurisdictional allegations of the complaint and view

whatever evidence has been submitted to determine whether in fact

subject matter jurisdiction exists. See Exchange Nat'l Bank of

Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130 31 (2d Cir. 1976)

(discussing differences between Rule 12(b) (1) and Ru 12(b) (6)

motions) .

A complaint should be dismissed under Federal Rule of Civil

Procedure 12(b) (6) if it appears "that the plaintiff can prove no

set of facts

support of his claim that would entitle him to

relief". Gmurzynska v. Hutton, 355 F.3d 206, 209 (2d Cir. 2004)

(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In deciding

a Rule 12 (b) (6) motion, the Court accepts as true all factual

allegations in the complaint and draws all inferences in favor of

the plaintiff. Cargo Partner AG v. Albatrans Inc., 352 F.3d 41, 44

(2d Cir. 2003). However, this is limited to factual allegations,

and does not include allegations which are statements of legal

conclusions.

14

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 16 of 63
I. Plaintiffs Have Failed To Establish Entitlement To The Relief They Seek. Plaintiffs have moved this Court for a permanent injunction9
requiring USCIS to identify all naturalization applicants residing in this dist ct whose applications are pending 120 days after initial interview, implement a plan of correction to grant or deny the applications of these individuals within 90 days, grant or deny the applications of all naturalization applicants residing within this district within 120 days of interview, requiring the FBI to complete all background checks within a reasonable time, and requiring USCIS and the FBI to complete all steps necessary to adjudicate the naturalization applications of indi duals residing in this district within a reasonable time. Complaint, <][ 73. As this Court lacks jurisdiction over plaintiffs' claims, plainti are improperly joined, and plaintiffs fail to state a claim upon which their requests for relief may be granted, this Court should dismiss the complaint. Indeed, neither 8 U.S.C. § 1447(b) nor the Administrative Procedure Act (APA), cited by plaintif , serves as a basis for permitting the type of broad-based relief plaintiffs seek, namely an across-the-board order that their background investigations be completed, and their applications adjudicated, within speci c limited time frames.

9 Plaintiffs originally led a motion injunction, but subsequently withdrew it.
15

a preliminary

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 17 of 63

A. Plaintiffs Have Not Established The Prerequisites For A Mandatory, Permanent Injunction.

An inj unction is a drastic remedy, and

should only be

granted in extraordinary circumstances. Silverstein v. Penguin

Putnam, Inc. 368 F.3d 77, 84 (2d r. 2004), cert~ den., 543 U.S.

1039 (2004) .

A party seeking permanent injunctive relief

ordinarily must show that, in the absence of an injunction, it will

suffer irreparable harm. Cablevision Systems Corp. v. Town of

East Hampton, 862 F. Supp. 875, 888 (E.D.N.Y. 1994). The party

must also succeed on the merits. Id. However, where, as here, a

party seeks relief that will alter the status quo a "greater

showing" is applied. See Vaughn v. Consumer Mortg. 293 F. Supp. 2d

206, 214 (E.D.N. Y. 2003). Further, because injunctive relief is

equitable in nature, a plaintiff must establi that no adequate

remedy at law exists. Carlos v. Santos, 123 F. 3d 61, 67 (2d Cir.

1997) . Moreover, the public interest is always a factor to be

considered in the granting

a mandatory, permanent injunction.

Carpenter Technology Corp. v. City of Bridgeport, 180 F.3d 93, 98

(2d Cir. 1999).

An award of an injunction is not something that a plaintiff is

entitled to as a matter of right, Ticor Title Ins. Co v. Cohen, 173

F.3d 63, 68 (2d Cir. 1999), and a federal judge is not obligated to

issue an injunction for every violation of law. Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) , Inc., 8 U.S. 167, 192

(2000) . Moreover, in determining whether inj unctive rel f is

16

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 18 of 63

appropriate, courts are restrained by respect for t integrity of

an ins tution to mange its own affairs. See generally, Knox v.

Salins, 193 F.3d 123, 130 (2d r.1999). In addition, a court

should avoid issuing an injunction which would involve continuous

duties of supervision. See 8600 Assoc. v. Wearguard, 737 F. Supp.

44, 46 (E.D. Mich. 1998). Finally, as

unctive relief

an

extraordinary remedy, the movant must unequivocally show the need

for its issuance. Valley v. Rapides Parish School Bd., 118 F.3d

1047, 1050

h C

1997) . Here, plaintiffs have iled to

establish any of the prerequisites for the issuance of a permanent,

mandatory injunction.

As a threshold matter, an adequate remedy at law already

exists. 8 U. S . C. § 1447 (b) provides a remedy for those whose

applications have been allegedly been pending

over 120 days

after completion of the naturalization examination. In this

district alone, over 175 individuals have secured adjudication of

ir naturalization applications. Moreover, this remedy at law,

repeatedly and successfully use~ by plainti

and their counsel,

is readily available and accessible to others and, as shown, has

been regularly used ·this strict by others. ·Instructions on

how to bring such actions are readily available on the internet and

provide, with clear and concise detail, instructions on seeking

relief, including instructions on how to proceed forma pauperis.

These instructions also indicate the ease

which a su can be

17

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 19 of 63

filed and indicate that the process can be completed within two to

three months. See e.g., http!!en.wikibooks.org!wiki!FBI name check.

Moreover, because an adequate remedy at law does exist,

plaintiffs have failed to establish irreparable harm. In addition,

even prior to the commencement of this action, USCIS has a process

in place where individuals may obta expedited processing of their

applications, where those individuals are in da,nger of losing

benefits or have other emergencies. MacPherson Decl. at ~ 4;

Gantner Decl. at ~ 30.

Furthermore, it should be understood that, independent of

these claims relating to loss of benefits, plaintiffs are lawful

permanent residents and possess the benefits of that status,

including the right to work and travel. ,?ee Saxbe v. Bustos, 419

U. S. 65, 72 (1974). Accordingly, plaintiffs have failed to

establish that they are being harmed, much less that the harm is

irreparable, if their applications remain pending adjudication.

Finally, the public interest is always a factor to be

considered in the granting of a mandatory, permanent injunction.

Carpenter Technology, 180 F.3d at 98. Here, particularly in light

of heightened security concerns in the post-September 11, 2001,

world, as well as the importance of the benefit sought, it would

not be in the public interest to order the FBI or USCIS at

s .

point to rush through these applications or to limit their

investigations to a specific duration. Limi ting the time to

18

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 20 of 63

conduct an FBI investigation may require the FBI to cut short a

promising lead in an ongoing investigation relating to a terrorist

or criminal group, and may require the FBI to channel resources in

a way that limits its ability to conduct other investigations. The

weight of plaintiffs' arguments regarding public interest are

lessened by the fact that they have the benefits of lawful

permanent resident status, including the ability to work and

travel.

Thus, the public interest clearly weighs against

plaintiffs' request for an mandatory permanent injunction.

B. The Court Should Dismiss The Complaint For Lack of Jurisdiction.

Plaintiffs cannot prevail on the merits of their aims.

Asserting jurisdiction under 8 U.S.C. § 1447 (b) and the APA,

plaintif request that this Court order USCIS to adjudicate the

applications within 90 days, adjudicate all naturalization

applications within 120 days of the date of the initial

examination, that the FBI complete background checks within a
reasonable time and that uscrs and the FBI adj udicate their

naturalization applications within a reasonable time. Complaint 'l1

73. In addition, plaintiffs seek a declaratory judgment stating

that defendants' policies and practices violate 5 U.S.C. § 555(b),

8 U.S.C. § 1447(b), and 8 C.F.R. § 335.3(a); and certification of

a class, comprised of naturalization applicants residing in this

District whose applications have been pending 120 days after their

initial naturalization interview.

19

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 21 of 63

However,

aintiffs

wholly

iled to establish

entitlement to such relief under any theory.

1. Plaintiffs Are Not Properly Joined

Rule 20 of the

Rule of C 1 Procedure provides

pertinent

1 persons may join in one action as aintiffs

if they assert any right to relief j

ly, several

or in the alternative in respect of or arising out of

the same transaction, occurrence, or series

of transactions or occurrences and if any question

of law or ct common to all these

sons will

arise in

action.

If

test for joinder is not satisfi

a court,

its

discretion, may, under F.R.C.P. 21, sever

misjoined

ies so

long as no substantial right 11 be prej ced. See Coughlin v.

130 F.3d 1348, 1350 (9th Cir. 1997). In determining

whether severance is appropriate, a court considers: (1) whether the

claims arise out of the same transaction or occurrence; (2)whether

claims

ent common questions

law or

; (3) whether

settlement of the cIa or judicial economy would facilitated;

4)whether prejudice would be avoided if severance was granted; and

5)whether different witnesses and documentary proof are requi

for the separate cl

. See Morris v. Northrop Grumman Corp., 37

F. Supp. 2d 556, 580 (E.D.N.Y. 1999). Here, as a

shold matter,

plaintiffs' claims do not arise out of the same transact

or

occurrence. Rather, each application is

separately and is

independent from another.

130 F.3d at 1351 (

that

20

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 22 of 63
joinder inappropriate due to unique nature of each application); see also Abbas v. Gonzales, No 06-4553 (N.D. Ill. August 24, 2006) (unpublished) (attached).
Moreover, what constitutes a delay in adjudication of one case (the very issue here) may not constitute the delay in another, and therefore the claims do not involve common questions of law or fact. Id. Indeed, as evidenced at the time this lawsuit was filed, plaintif Yakubova and Unguyran had already completed the name check process and were awaiting the oath ceremony. Cannon Decl. at ~~ 24-25; Gantner Decl. at ~ 28. Plaintiff Ibrahim also had already completed the name check process, but issues remained regarding a duplicate benefits fi at another district 0 ceo Gantner Decl. at ~ 28; MacPherson Decl. at ~ 3. The name checks for plaintiffs Volosikov and Vesnovskiy were completed a er the institution of this action and they have been naturalized. Cannon Declo at ~~ 27-28; MacPherson Declo at ~ 3. Finally, the name check for plaintiff Vesnovskaya has been completed, but USCIS has no record that she has appeared to fingerprinted to update her (now expired) fingerprint checks. MacPherson Dec . at ~ 3.
Furthermore, judicial economy would not be facilitated due to the often diverse nature of the claims. Different witnesses and documentary evidence are needed to defend against different claims.
Plaintiffs would not be prejudiced by severance. Indeed, as described supra at pp. 12-13, 17, a highly successful and adequate
21

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 23 of 63

remedy exists r the treatment of their claims under 8 U.S.C. §

1447(b). On the other hand, defendants are prejudiced if

plainti

cases are not severed, because lumping 1 of

plaintiffs' claims into one undermines their ability to provide

defenses relevant to particular individual cases.

Finally, the statute referenced by plaintiffs in support of

their claim, 8 U.S.C. § 1447 (b), supports the conclusion that

joinder of these individual cases is inappropriate. Indeed, that

statute requires that the "applicant" have a "hearing", thereby

reinforcing the individual nature of these claims.

2. P intiffs Are Not Entitled to Relief Under The INA.

In any event, plaintiffs c ims under 8 U.S.C § 1447(b) are

not ripe for adjudication, and this Court must dismiss the 1447(b)

claim for lack of jurisdiction.

Pursuant to 8 U.S.C. § 1447(b},

if there is a ilure to make a determination under § 1446

[(investigation and examination of naturalization applicants]

. before the end of the 120-day period after the date on

which the examination is conducted under such section, the

applicant may apply to the United States district court for

the district in which the applicant resides for a hearing on

the matter. Such court

jurisdiction over the matter and

may either determine the matter or remand the matter, with

appropriate instructions, to the Service to determine the

matter.

Here, plaintiffs ask that this Court order USCIS to complete

the adjudicatory process within 90 days for those plaintiffs whose

applications have been pending over 120 days after an init

22

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 24 of 63

interview. However,

Court cannot order this relief, because

USCIS cannot, by law, adjudicate these applications until a

background check has been completed. See supra at p. 3, . 3. 10

Indeed, with a single exception, courts which have found

jurisdiction for claims such as this one, brought under 8 U.S.C.

§ 1447(b), have refused to require time limitations on the

immigration adjudication authorities upon remand of naturalization

applications. See Oaami v. Gonzales, No. 05-3667, 2006 WL 14578

(O.N.J. May 22, 2006); Essa v. USCIS, No. Civ 051449, 2005 WL

3440827(0. Minn. Dec. 14, 2005); El Dour v. Chertoff, 417 F. Supp.

2d 679 (W.D. Pa. 2005).

also Plaintiffs' Memorandum at pp. 20-

21 (cases cit ). And the one court that did provide a time

limitation, AI-Kudsi v. Gonzales, No. 05 1584, 2006 WL 2556 (D.

Or. Mar 22, 2006), did so only a er an individual

ng,

concluding that AI-Kudsi had satisfied 1 the requirements

naturalization. Id. at * 3. Accordingly, with this single
exception,ll if courts find it inappropriate to remand with t

restrictions when dealing with a single plaintiff, £ fortiori, it

would be inappropriate to remand with a t

restriction in a case

10 In this regard, the Court cannot find

the USCIS

"unreasonably delayed" adjudication of these applications, as

cannot adjudicate the application until the FBI name check process

lS complete.

supra at p. 3, fn. 3.

11 This decis

serves to

force the individualized nature

claims under 8 U.S.C. § 1447(b). Indeed, the statute, states "the

applicant may apply. . for a hearing on the matter," whi is

exactly what occurred.

23

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 25 of 63

like this one, where plaintiffs affecting numerous aliens. 12

seek a broad-bas

remand

Other courts have found that 8 U.S.C. § 1447 (b) is not

available to naturalization applicants until later

the

adjudicative process. Danilov v. Aguirre, 370 F. Supp. 2d 441, 443

(E.D. Va. 2005); Campbell v. Hudson, No. H-O 0339 (S.D. Tex. Aug.

23, 2006) (unpublished) (copy of decision attached); Damra, 2006 WL

1786246; Abdelkhaleg v. BCIS Director, 2006 U.S. Dist. LEXIS 50949

(N.D. Ind. July 26, 2006). The interview is part of the

examination process. See Johnny N. Williams Nov. 13, 2002

Memorandum (attached); William R. Yates Apr. 5, 2004 Memorandum

(attached); William R. Yates Aug. 4, 2004 Memorandum (attached).

Under Chevron v. NRDC, 467 U.S. 837 (1984), a court must defer to

an agency's reasonable interpretation of an ambiguous statute that

the agency is charged with enforcing. Because USCIS has made a

reasonable interpretation of ambiguous terms in the statute

regarding the examination process, that interpretation is entitled

to deference.

The term "examination" in 8 U.S.C. §§ l446(b) & 1447(a)&(b) is

ambiguous, as it does not require that the "exam" be a discrete

event. See 8 U.S.C. §§ 1446(b) & l447(a)&(b). Instead, it

describes a process of examining the applicant and background

12 Independent of the above, 8 U.S.C. § 1447 (b), by its very terms,
only allows for a remand with instructions to the uscrs and does
not allow for any order relating to the FBI.
24

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 26 of 63

materials to determine whether the applicant has met the standards

of naturalization. The ambiguity of the term "examinationll is

reinforced due to the lack

a discussion of the relationship

between the "investigationll in § 1446(a) and the "examinationll in

§ 1446 (b) .

The "examinationll could be one aspect of the

"investigationll (t "examinationll could turn up information about

the applicant's residence and employment story over the past five

years); the "examinationll and "investigationll could overlap; or the

"investigationll and "examinationll could cover two different areas

completely. Therefore, the INA creates an ambiguity as to the

extent and process under which an "examinationll may be conducted.

Forbes v. NaDolitano, 236 F.3d 1009, 1011 (9th Cir. 2000)

(finding that terms such as "investigationll and "routine

examination" were inherently ambiguous in upholding vagueness

challenge) . Because the term "examinationll is ambiguous, under

Chevron, the agency is ent led to provide a reasonable

interpretation of the term. l3

The argument that the initial interview constitutes the

"examinationll is at most one of several competing interpretations,

13 Deference to USCIS is particularly appropriate in this

circumstance because of the national security and international

relationship aspects of immigration. INS v. Aguirre-Aquirre, 526

U.S. 415, 425 (1999).

In addition, absent constitutional

constraints or compelling circumstances, an agency must be

permitted to fashion its own procedures to optimize its resources

to most effectively discharge its multitude of administrat

respons lit s. Vermont Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519, 543 (1978).

25

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 27 of 63

but it is not compelled by the terms of the statute. It is not

enough for t6is Court to determine that another interpretat of

the relevant statute and regulations is a better interpretation

than that offered by defendants; this Court must

ermine simply

whether the interpretation offered by defendants is reasonable.

USCIS has taken the reasonable view that the examination is a

process and that process cannot be complete without a finalized

background check. The "'examination' is a process, not an isolated

event, which necessarily may

ude one or more in-person

interviews, as well as other activities." Danilov v. Aguirre, 370

F. Supp. 2d 441, 443 (E.D. Va. 2005).

Indeed, USCIS's

interpretation of "examination" is reasonable because Congress does

not low that process to be completed until a full background

check has occurred. See Pub. L. 105-119, Tit. I, Nov. 26, 1997,

111 Stat. 2448. As the required security check that is without a

statutory time restriction has not been completed, the time allowed

by law for USCIS to adjudicate an application has not yet expired.

8 C.F.R. § 336.9(d}; Danilov, 370 F. Supp. 2d at 443.

3. Plaintiffs' APA Claims Fail.

a. The Statute Does Not Impose A Deadline For the Discretionary Determination At Issue.

Plaintiffs also seek an order from this Court requiring the

FBI and USCIS to adjudicate their background clearances within a

reasonable time. As a threshold matter, plaintif have failed to

include any claim for relief under APA § 706(1} in their complaint.

26

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 28 of 63

See Compla at ~ 66-69. Thus, plaintiffs cannot prevail on their

APA argument (in their motion

class certification) that

defendants have "unlawfully withheld" or "unreasonably delayed"

adjudication of their applications or completion of their

background checks. 14

Moreover, the only statute under which a claim such as this

can be asserted is 8 U.S.C. § 1447(b), which deals specifically

with naturalization applications and delay. See U.S. v. Fausto,

484 U.S. 439, 448-49 (1988) (gene grants of jurisdiction cannot

be relied upon in the

of a speci c statute that con sand

conditions jurisdiction) i Danilov, 370 F. Supp. 2d at 445 (finding

APA inapplicable to claim that naturalization adjudication layed

in light of 8 U.S.C. § 1447 (b)). Accordingly, the APA is not

available to plaintiffs.

In addition, a grant of naturalization is discretionary, as

"[n]o alien has the slightest right to naturalization unless all

the statutory ghts are complied with." U. S. v. Ginsberg, 243

U.S. 4721 474 (1917). "[Arne can citizenship] iS I appropriatelYI

a

that is not easily attained; the path is often long and

arduous." Laryea v. United States l 300 F. Supp. 2d 404 1 405 (E.D. Va. 2004). Any doubts concerning the alienI s naturalization

14 Strictly

king l the Administrative Procedure Act ("APA") I 5

U. S. C. §§ 701 et

. I does not I i tselC grant subj ect matter

jurisdiction in any controversy. See Califano v. Sanders, 430 U.S.

99, 107-08 (1977). Rather l 28 U.S.C.A. § 1331 serves as the jurisdictional basis for federal courts "to review agency action."

Id. at 105.

27

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 29 of 63

ion are resolved

applicant and in

of the

government. See INS v. Panailinan, 486 U.S. 875, 876 (1988).

Here, although plaintiffs

filled many of

rements

for naturalization, the issue of good moral

remains,

pending resolution of

inquiries into plainti , backgrounds.

As a result, there is no screte ministerial action, but rather

the discretiona determination of

r plaintiffs have

satisfied

good moral conduct port

of the naturalization

prerequisites.

In

event, plaintiffs' legal arguments under APA § 706 so

must

because any delays in adj cation are not "agency act

unlawfully withheld or unreasonably delayed". Many courts

re

to grant relief under

APA, even when naturali

or

r immigration appl

were pending for signi cant time

iods. See Saleh v. Ridge, 367 F. Supp. 2d 508, 513 (S.D.N.Y.

2005) (finding 5 year

not in violation of APA in part in

light of volume of

ications); Espin v. Gantner, 381 F. Supp. 2d

261, 266 (S.D.N.Y. 2005) (over 3-year de y not unreasonable

because of government's limited resources and substantial

caseload); Alkenani v. Barrows 356 F. Supp. 2d. 652, 656-57 (N.D.

Tex. 2005) (no unreasonable delay found naturalization context

because of

to wait for complet

iffs assert, however,

FBI investigation).
8 U. S. c. § 1447 (b), which

re

s a 120-day time pe

a r interview, provides a clear

28

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 30 of 63

deadl

for uscrs to meet, and therefore that ilure to

udicate an application within that time frame means

action

has

"unlawfully withheld" under the APA. Pl. Mem. at 22.

Plaintiffs also claim, that, at the least, the statute forms a

guide by which to judge reasonableness.

Pl. Mem. at 25.

Plaintiffs are incorrect. Rather, much like 28 U.S.C. § 2675, the

statute merely provides a jurisdictional sis through which an

individual can secure judicial review,

s not speak to any

issues of a mandatory adjudicatory t

period or reasonableness.

Moreover, uscrs is acting reasonably,

that it has adjudicat

over 100,000 applications to

2006, processing most

appl ions .in a timely fashion, and has established a

to expedite cases where an applicant indicates a need, by filing a

lawsuit, showing a potential loss of benef s or

other

compelling reasons. MacPherson Decl. at <]I 4-5; Gantner Decl. at Cf[

24. And, as shown,

s s tern is clearly wor

Finally, given that Congress has precluded udication until

the FBr name

are complete, Pub. L. 105-119, 111 Stat. 2448,

Tit. I (Nov. 26, 1997), it is clear that uscrs is not unlawfully

withholding udication of the application or acting unreasonably

in failing to adjudicate the applicat

Alkenani, 356 F. Supp.

2d at 657 (not unreasonable for uscrs to await results of the name

check) .

29

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 31 of 63

As for the FBI, as explained previously, the

klog of name

checks appl

to only a small number of the ove 1 applications

for naturaliz

(less than 10 percent). Cannon Decl. at , 14.

Over 90 rcent of all USCIS requests for FBI background checks a~e

completed within 60 days; to date

2006, the FBI has completed

over 1.3 million of such requests.

Cannon Decl. at , 36.

De

the system occur for

legitimate reasons. Id. at

" 20-26. In addition, de

must use limited resources to

complete the name checks required, not only for pla i , but

also for other naturalizat

applicants and for other

s.

Cannon Decl. at , 4 (name checks are performed for "

agencies,

sional committees, the Federal judi

friendly

foreign police

intelligence agencies, and state and local

criminal justice agencies"). Because background checks are

required a broader range of circumstances st-9/11, a resource

strain s

placed on defendants. "[WJ

resource allocation

is

source of delay, courts have

1

to expedite action

of the impact of competing

s." Liberty Fund, Inc.

394 F. Supp. 2d 105, 117 (D.D.C. 2005). Even with a

statutory deadline, which is not the case here, moving some

individuals to the front

the queue has not been autho

by

the courts because granting such relief for one group would simply

move that group

of others who had also

waiting,

resulting in no net gain in processing.

==~~~~~~===., 930

30

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 32 of 63

F.2d 72, 75 (D.C. Cir. 1991) i Mashpee Wampanoag Tribal Council,

Inc. v. Norton, 336 F.3d 1094, 1101 (D.C. Cir. 2003).

Plaintiffs argue that when

s sets a specific deadline

by which an agency must comply,

agency's failure to adhere

to the deadline constitutes action "unlawfully withheld" or

"unreasonably 1

Mem. at 22-23 (citing

164 F.3d 1261 (10th Cir. 1998)).

, is inapposite. As a threshold matter, re,

unli

Forest Guardians, there is no statutory deadl

an

must meet. Rather, as stated, there is a statute wh

s a district court jurisdiction under cert circumstances to

address unadjudicated naturalization applications. Moreover, and

most important, in this case, there is no statute that requires the

FBI to complete its investigation by

time period. Thus, APA

§ 706(1) is not available to

i

b.

s Have Not Unreasonably Delayed

Action on Plaintiffs' Applications.

Similarly, pi

if

that defendants' actions

violate 5 U.S.C. § 555(b) also il. 5 U.S.C. § 555(b) provides

that, [wJ

rd r the convenience and necessities of the

or

resentatives and within a reasonable time, each

iffs also refer to 8 U.S.C. § 1571, which provides

is the "sense" of Congress that immigration bene appl

be completed within 6 months of filing, in support of the

that defendants have unreasonably delayed adjudicat

of

naturalization applications. Of course, such

language

has no legal effect.

31

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 33 of 63

agency should proceed to conclude a matter

sented to it."

However, contrary to plaintiffs'

existence of

administrative delays does not mean that ~uch delays are

unreasonable. "[T]he reasonableness of such delays must be judged

in light of the resources

s has supplied to the agency

for the exercise of s

ions, as well as the impact of the

delays on the applicants

sts." Fraga v. Smith, 607 F. Supp.

517, 521 (D. Or. 1985) (citing Wright v. Califano, 587 F.2d 345,

353 (7th r. 1 8)). "The passage of time alone is rarely enough

to justi a court's intervention in the administrat

s."

Moreover, the courts have been cautioned

inst "

fting

ir own notions of proper procedures upon

ent

with

substantive functions by Congress."

435 U.S. at

525. Here, where "there are no all

s of bad faith, a

dilatory attitude, or a lack of

s on the part of the

agenc [ies], the reasonableness of

delays in terms of the

legislatively imposed 'reasonable di

ch' duty must be judged in

light of the resources

ss has supplied, as well as the

impact of the de

applicants' interests." Wright, 587

F.2d at 353.

ity agency investigations, as well as

the extent

the individual applicants contributed to delays,

so enter

the court's deliberations. Saleh, 367 F. Supp. 2d

at 512. An agency's good faith efforts to address delays mil ate

32

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 34 of 63

a finding of unreasonableness.

587 F.2d at

345.

As also stated, a number of

contribute to the backlog.

Supp. Cannon Decl. at ~~ 20-26. As a

ld matter, to date,

the FBI has completed over 1.3 mill USCIS name checks in fiscal

year 2006, and the

appl s to only those name check

requests that end up in ssemination (10% of the total number

requests

) . Supp. Cannon Decl. at ~~ 14, 36. The FBI

continues to

s the backlog of background checks and

generally

sing the backlog on a first-in, first-out

is. Cannon Decl. at ~~ 18-19. Under such circumstances, courts

reluctant to find that such a

ss olates

undue

lay standard. Liberty Fund, 394 F. Supp. 2d at 116 17 (denying

such a claim against the Department of

backlog processing

of employer applications for

labor certifications on

behalf of aliens). Further, the FBI has

diligently working to

ameliorate the problem,

resource constraints. See Supp.

Cannon Decl. at ~~ 19

background check delays are not the

result of a re 1 to complete the investigation; rather,

individuals must wa

r turn in line while the request wor

its ,!lay through

process. Supp. Cannon Decl. At ~~ 23 5.

However, further highlighting the reasonableness of t

ss is

the ct

when a request is made by USCIS to expedite the

Sf

request is accommodated.

33

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 35 of 63

1

any requirement that de

FBI process

plainti

cases within a particular t

limit will have the

unfortunate side effect of slowing the processing for ot

applicants nationwide who are also await

final action

the

Dissemination stage of the FBI process. It may also divert

resources from processing in important and critical terrorism

related investigat

As for de

useIS, useIS is not acting unreasonably,

because they have adjudicated over 100,000 cases this year alone,

but cannot adjudicate applicat s prior to completion of the FBI

name check. Moreover, as shown, useIS will request expedited name

check

ssing upon a showing of need, by filing a lawsuit,

showing a potential loss of benefits or

o':her compell

reasons. MacPherson

at <J[ 4.

not all of

pla iffs' cases remain unadjudicated

e of the FBI name

check backlog. While the time requi

to complete the FBI name

k is the primary reason that some of the plaintiffs' cases have

not been adjudicated, a myriad of reasons exist as to why

cases remain

final adjudication, including fraud

investigations and pending evidence

s. Gantner Decl. at <J[

29; MacPherson De . at <J[ 3. Moreover, plaintiffs

not shown

that useIS will refuse to adj udicate the applications once the

information gathering phase,

examination, is complete.

Saleh, 367 F. Supp_ 2d at 513.

34

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 36 of 63

Ultimately, without an individual hearing, evaluating the

p~rticular facts of each case, including the length of the lay,

plaintiffs cannot possibly make out a claim on these cases. For

that matter, without an individual hearing, they cannot rna out a

claim on any of their claims, including those relating to delays

because of the name check process, much less establish the higher

standard for the issuance of a mandatory permanent inj unction.

Accordingly, pla 1 S 1 to establish that they are ent led to

the

ief sought, whether under 8 U.S.C. § 1447(b) or under the

APA.

II. The Motion for Class Certification

Plaintiffs request that the following class be certified:

All persons residing in Kings, Nassau, Queens, Richmond, and Suffolk counties in New York state, who have properly submitted or will properly submit applications to be naturalized as U. S. Citizens whose naturalization applications are not adjudicated within one hundred and twenty days after the date of initial examinations.

Complaint, 'IT 23.

A party seeking class certification must prove that the

proposed class meets the four requirements of Federal Rule of Civil

Procedure 23(a): (1) the class is so numerous that the joinder of

all members is impracticable; (2) there are questions of law or

fact common to the class; (3) the claims or defenses of the

representative parties are typical of the claims or defenses of the

class; and 4) the representative part swill irly and adequately

protect the interests of the class. In re Visa Check/Master Money

35

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 37 of 63

Antitrust Litig; 280 F.3d 124, 133 (2d Cir. 2001). In addition,

the party seeking class certification must show

the propos

class action falls within one of the types of class actions

rna

inable under Rule 23 (b) . For the proposed class to

certi fied, pI

ffs must satis all of

se requirements.

Marisol A. v. Guiliani, 126 F.3d 372, 375-76 (2d eire 1997).

In evaluating whether ass certifi on is appropriate, the

Supreme Court has held that a court must rna a "ri90rous

ysis"

to determine if the requirements of Rule 23 have been met. Gen

Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982). The

party seeking class certification bears

burden of establishing

the

rements of

23. Amchem Prods. Inc. v. Windsor, 521

U.S. 591, 614 (1997). Finally, the determination of whether an

action can be maintained as a ass action,

particularly

a class action is the

rior method of resolving

controversy, is one which is

iarly wi

the discretion of

trial judge. Becker v. Shenley Indus., 557 F.2d 346, 348 (2d

r. 1977).

For the reasons set forth above, it is neither necessary nor

appropriate to certify a

ss in this matter. Indeed, Congress

has established a mechanism to

with delays in the

naturalization process, 8 U.S.C. § 1447(b), which, as evidenced by

the number of cases already adjudicated, is readily available to

plaintiffs for adjudication of their cases. Gantner Decl. at

36

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 38 of 63

<Jl<Jl 28-29.

In this

certifying a ass would be as

inappropriate as certifying a class of individuals whose

administrative tort aims have not been

ssed within 6 months.

In both instances, re under 8 U.S.C. § 1447(b), and

a tort

case under 28 U.S.C. § 2675, the method r remedying the lay, is

specifically provided for by statute, and the decision on whether

to sue is an individual one and thus should be Ie up to the

individual. 16

Second, and consistent

8 U.S.C. § 1447(b), classwide

relief is inappropriate in this case. As reflect by the courts

adjudicating cases under the statute, the statute calls for an

individual hearing to determine what action a court will follow

with

rd to each naturalization applicant, based on

pa

facts of

case. Accordingly, classwide reli is

inappropriate. See ~~~~~ 131 F.3d 1451 (joinder inappropriate

adjudicating act

based on del as each case

s

individualized attention by the Court) .

Third, whi there are some common issues of law and fact,

ultimately, as set forth in the Cannon and Gantner

ions,

the nature of

wait for final udication depends on the facts

of each individual case. Indeed,

wait could be because of the

backlog, or because of the need

further

, or because of

16 Moreover, USCIS will no longer conduct an

completion of the background checks, making

for

future. Gantner Decl. at <Jl 25.

37

rview prior to the s class unnecessary

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 39 of 63

a fraud investigation, or for any number of reasons. Even if the

wa had been so ly because of the backlog, the case could still

remain with the FBI because of an ongoing FBI investigation, or

with the USCIS for further investi on or processing. Finally,

the length of the wait will vary in each case; a 121-day wait is

different from a three-year wait. Indeed, at the time this lawsuit

was instituted, name checks for approximately 40 of the referenced

plaintiffs were complete, and the applications were in various

stages of the process. MacPherson Decl. at ~ 3.

That diverse reasons exist for the "delays" is amply shown by

two cases brought by plaintiffs' counsel, Kurkin v. Gonzales, 05-

3641 (NGG), and Kurkina v. Gonzales, 05 3640 (JG). Both of these

cases were brought under 8 U.S.C. § 1447(b) and both individuals

cleared the FBI name check. However,

the case of plainti

Kurkin, a warrant

his arrest s been issued by a

gn

country and the subsequent investigation s prevented adjudication

of

app1 ion. In the case of plaintiff Kurkina, an issue has

a sen as to whether she was lawfully admitted to

United States

as a lawful permanent resident, and that issue is being

investigated.

imately, "[what] constitutes an unreasonable delay in the

context of immigration app cations depends to a great extent on

the facts of

particular case." Saleh, 367 F. Supp. 2d at 512.

Accordingly, where individual issues predominate over the common

38

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 40 of 63
ones, class action relief is not appropriate.· See Continental Orthopedic Appliances v. Health Ins. Plan of Greater New York, 198 F.R.D. 41, 47-48 (E.D.N.Y. 2000); Coughlin, 131 F. 3d at 1351 (no common questions of law or fact regarding claims of delay, as what constitutes delay in one case may not be in another) .
Plaintiffs also cannot show that their claims are typical and that they are adequate representatives of the class they purport to represent. See Fed. R. Civ. P. 23 (a) (3) and (4). A showing of typicali ty and adequate representation requires named plaintiffs to demonstrate that their claims and the class claims are interrelated and that the interests of the class members will be fairly and adequately protected in the class members' absence. Falcon, 457 u.S. at 158 n.13. Moreover, plaintiffs must demonstrate that they do not have interests that are antagonistic to those of the class. See Achem Products, Inc., 521 u.S. at 625-26.
First, plaintiffs for the most part, appear to raise harms relating to SSI benefits. See Order to Show Cause, affidavits. There is no reason to believe that these harms are typical of the class at large. Indeed, most naturalization applicants are under 65. MacPherson Decl. at ~ 5. Moreover, there is already a system in place to handle these types of emergency situations. Id. at ~ 4.
Additionally, plaintiffs are not typical of the class they seek to represent, in that they comprise a group who wishes to sue
39

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 41 of 63

government. As evidenced by the limited number of lawsuits

brought in this district, most naturalization applicants

plaintiffs'

ition do not wi to sue

government over their

naturalization applications and therefore plaintiffs' claims are

not typical

the class that they wish to represent. In

s

regard, neither are they adequate

entatives in that their

action is antagonistic to the general wishes the class they seek

to represent. Indeed, most naturalizat

applicants would have

little interest in beginning their

ationship as a c izen of

this country by suing , and this prospective has

effects in

all aspects of representing the putat plaintiff class, including

the settlement of this

on.

As a result, plaintiffs have fa

to demonstrate that they

meet all of

required elements for class certi cation under

Rule 23(a).

lly, aintiffs have also led to demonstrate that the

proposed class is maintainable under one of the sUbsections Rule

23 (b) . Here, Plaintiffs assert that their ass is maintainable

under subs on (b) (2), which applies if the "party opposing the

class s acted or refused to act on grounds generally applicable

to the class, thereby making appropriate final injunctive rei or

corresponding declaratory relief with respect to the class as a

whole." Fed. R. Civ. P. 23(b) (2); In re Visa Check/Master Money

Antitrust Litig., 280 F.3d at 146. Plainti

assert that

40

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 42 of 63

defendants have failed to act by failing to take act

on their

natura zation applications within 120 days of the interview and

within a reasonable time. Defendants contend, however, that they

have not "refused" to act. In fact, they have taken various steps

to adjudicate plaintiffs' applications, and, in fact, have

adjudicated applications. Accordingly, as plaintiffs fail to

demonstrate that they meet the additional requirements of Rule

23(b), the Court should deny class certification.

41

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 43 of 63

CONCLUSION

For the reasons set forth above, plaintiffs' Complaint should

be dismissed for lack of jurisdictiQn in part and for failure to

state a claim upon which relief may be granted in part, and

plaintiffs' motion for class certification should be denied.

Dated:

Brooklyn,' New York . September I, 2006

Respectfully submitted,

ROSLYNN R. MAUSKOPF United States Attorney Eastern District of New York One Pierrepont Plaza, 14th Floor Brooklyn, New York 11201

By: SCOTT DUNN (SD6041) Assistant United State~s Attorney (718) 254-6029

PETER D. KEISLER Assistant Attorney General

DAVID KLINE Principal Deputy Director

DANIEL.J. DAVIS Special Counsel

the Assistant Attorney General

By: ~~-""""EVENS (ES2663)
At orney Office of Immigration Litigation Civil Division United States Department of Justice 1331 pennsylvania Avenue, N.W. Washington, D.C. 20044 (202) 616 9752

42

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 44 of 63

Case 1:06-cv-04553

Document 7

Filed 08/24/2006

A[ Page 1of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MOHAMED ABBAS, et al.,

Plaintiffs,

v.

No. 06 C 4553

ALBERTO R. GONZALES, et al.,

Defendants.

MEMORANDUM ORDER

This Court has just received by random assignment this

action in which each of 11 plaintiffs, all asserting that they are lawful permanent residents of the United States whose

applications for naturalization have been pending for extended

periods of time, seek immediate naturalization. Although it thus

seems likely that the several claims may present one or more

common questions of law, and although it is possible that common

questions of fact may be involved as well, it does not appear

that plaintiffs' rights to relief naris[e] out of the same

transaction, occurrence, or series of transactions or

occurrences" within the meaning of Fed. R. Civ. P. ("Rule")

20 (a) :

All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same tr~nsaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.]

[Footnote by this Court] It is of course obvious that the individual claims here do not fit under the compulsory

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 45 of 63 Case 1:06-cv-04553 Document 7 Filed 08/24/2006 Page 2 of 2
What that means is that each of the plaintiffs, although he advances a claim similar to the others, ought to have brought his own lawsuit. If after such individual filings the plaintiffs with higher-numbered cases believe that they may qualify for reassignment of those cases to this Court's calendar on grounds of relatedness under this District Court's LR 40.4, they may of course file motions seeking such treatment--not at all a guaranteed matter, for the hurdle of LR 40.4 (b) (4) (an issue on which the present Complaint is not sufficiently informative) would have to be overcome.
Accordingly plaintiffs' counsel is granted until September 5, 2006 to elect which plaintiff is to remain in the case and, having done so, to dismiss the other plaintiffs without prejudice. In the meantime this Court is contemporaneously issuing its customary initial scheduling order and is also bringing this action to the attention of the Assistant United States Attorney who handles such immigration and naturalization matter.

Date: August 24; 2006

Milton I. Shadur Senior United States District Judge

joinder rubric of Rule 19. 2

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 46 of 63

Document 2

1 2

Plaintiff,

STATES DISTRICT
SOUTHERN DISTR1CT
DIVISION
§ § §

MICHAEL CHERTOFF, etal,

§

§

Defendant.

NO. H~06-0J49

the Court is pe1[m;::mt~r Sal1iay Gupta's. petition for a hearing on

After review of the application, and

issues are

joined,

case should Slit? sponte be rernalldea to the

Citizenship and

The

March

petitioner has completed an IftU'1"Vl'PU!

the

that the

or

nam..:' check

told that the name Satyay Gupta had not cle,are.cl.

Title 8 U § 1447(0) pem1its a

examination his

aplplu:atlon by a district court on the end

after an ex:t\mUUllt!():t't 'ivhere the

apIPUi:;atlon has not been approved or denied,

rwC\Af"l'lv before

Court

to

accept such a petition

has not

triggered, See

v.

Ginsberg.

(1

1/2

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 47 of 63 Case 4:06-mc-00349 Document 2 Filed 08/2412006 Page 2 of 2
In the case at bar, the mandatory national security FBI name check process has not been completed. lIenee, exhaustion of the administrative process has not been completed and the i 20day period has not been triggered. It is, therefore,
Ordered that the case is REMANDED to the United States Citizenship and Immigration Service, pursuant to FRep, Rule 12(b}(l) and § 1447(b),
S!GNED and ENTERED this 24th day of August, 2006.
2/2

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 48 of 63

1

IN THE UNITED STATES DJSTRICT COURT FOR THE SOUTHERN DISTRICT TEXAS
HOnSl'ON DIVISION

AUG 22

GUPTA,

§

s s

§

§

flIBd4lUliDly,Ud

§ §
§ § § ""'"'"'''''' §
§

PLAINTIFF'S ORIGINAL COMPLAINT

FOR

THE NATURE OF MANDAMUS,

FOR H~:ARING ON

FOR

would sho\\' unto the
L

GUPTA,

in

case, and for cause

Uelenaiams to f;Unlpf;;! action on an U.VVIll.c".UVU lor

remain

to the detrnnent of the

i..nn;r"",,,",,j,, withheld action on

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 49 of 63

PARTIES

2. Plaintiff,

isa year

as a

permanent reS]tde.lrlt

of India. was granted status

on

2000.

9.

tlDUSlon. Texas district

the U.S .•"Hn'"",

at

Westheimer ""V~""""l""', Houston,

3. UCjen(]!am Michael

is

~
U"'''JlU,",''' of Homeland Security,

and this action is brought against him in his vU.!"""" C1'il'a:dtv. Effective March 1.

the

n.\)""';'''''''-I Security

responsibility

of the agency

formerly

Naturalization Service." TIle

the

is now vested with

and

functiOns

immigration

laws.. 8

1(a).

4.

Alberto

....n ......:w".... is the Attorney

of the

and

brCfUIDli: against him in his official capacity. The £'<:;'=1""

housed

and subject to

certain

checks required naturalization.

Defendant Sharon

district office

PLA!NTlff'S ORIGiNAL COMPLAINT

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 50 of 63

1

.3 14

Security responsible accepting and

and is

genera.Uy ueleg~.WO

Secretary of

s\lpervisory am.1101m:y over aU

operations of

their district 8

§§U(o), 2.1.

shown,

Sharon HUDSON is the official with

was properly

JURISDICTION

case is proper

States "'''.'-V'.'''U''IJ is a"federal

28 U.S.C. §

because the

of mandamus to C01ntxt}t an agent or agents

the United

owed to Plaintiff. requested reHef is

empowers

court to

agenty action

withheld or unreas'DDably delilved.

is requested pursuant to of the said ",..."u.....,,,,,

§220l. Relief

7,

also clearly exists pursuant to §336(b) oftIle Iml'nl~:ratlOn

which provides jurisdiction for this Court to ...,n.,",,"'..,,

a naturaH.zation hearing "(i} [there is a failure to a determination...before the

after the date on

the "A"uuu«,<vuis conducted...." INA

8

U.S.c.

As will

Plaimiffsapp!icationfor naturali:~ati()n has renl~lU:1ed

the 120 days Tf",nUfU''''' his statutory v"'u..,,,....u'""

secure a

proven futile.

FLAI1\'11FF'S ORIGINAL COMPLAINT

PAGE 3

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 51 of 63

4 14

VENUE

is proper in this was properly

to

in

is an action

United States

brought in the

and

part

to

naturalization

for "'''l''''''''.b'>R'V

the 'him l'tlflWlf>t1IJ';; "~'>'n",i..." vv•.,"'.......

tioillstcm

9. Mr,

FACTS

the USCIS on

States

submitted

2005 by

Skinner. At

by the """'<>4>'''''''5 officer that he· had

A However,

a decision could not

made on his aplJiic:atiDfl

'''''''''''7"\/'11> check \vas still

00 was

After

status

sent. On June

to the "1nill~t{m users district

Plaintiff requested 1dll".JU!';U his attorney a. ease

See Exhibit

00 response was

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 52 of 63 5

sent a P' •• ';",I iH"c \"'''Ul,L:>''-'*

on

2,2006, over

over a year

the time of the initial <lViWlU''''''''uu fd On

stating,

C~ IS

National the checks to take well over six "",,,..,tilt,

is 11.0!

over a year. no response was

cmmsf:l. Finally, on June 14,

sent a letter to

background checks.

been received to

\le1"",1'!,,"" remedies as formal reQUe:5,ts and

to

have not

11. a

ACTION
now remained
to

over one

application

over one year

initiai

over 18 months sine<::

2005" over 16 m(llultlS

the

n,.",."",,,,,,,,,,, for lnlJllZfttlcln were

PLAINTiff'S ORIGiNAL COMPLAiNi

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 53 of 63

Case4:06-m

Document 1 Filed 08/2212

P;3ge 6 of 14

met in March 2005, This amount of time is extremely excessive, and is far beyond normal
processing times for a naturalization application in the Houston users districL Despite
numerous attempts to obtain a decision following the interview, Defendants have failed to complete the processing of the naturnlj7~tion application.

13. As a result of Defendant,>' unreasonable delays, Plaintiff has been unablle to register to vote

in elections, and has been otherwise denied the various benefits ofUnited States citizenship

that are often taken fb[ granted.

I >

14. Defendants' refusal to act in this case is, as a matter of law, arbitrary and not in accordance

I

with the Jaw. Defendants have willfully and unreasonably delayed and refused to adjudicate

Plaintifr s application for well over 18 months, thereby depriving Plaintiff of the right to a

decision on his immigration status, as well a~ the peace ofmind to which Plaintiffis entitled,

15, The Defendants, by unlawfully withholding or unreasonably delaying action on Plaintiffs application and by their failure to carry out the adjudicative functions delegated to them by law with respect to his case, arc in dear violation the Administrative Procedures Act, codified at 5 U.S,C. §106(1),

16. Alternatively, Plaintiff is emitled IYursuant to §336 of the Immigration ttnd Nationality Act to seek a hearing in the United States district court if a determination on un application for naturalization is not made within 120 days following the examination, and the U.S. district court bas jurisdiction and may either determine tbe matter or remand the matter along v.1th
appropriate instructions to the users to determine the matter. INA §336, SlJ.S.C §1447.

PJ.AiNT1FF'S ORIGIKALCOMI'I..AINT

PAGE 6

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 54 of 63

1

7 14

clearly not made a determination

the allowable umt}-I!'aIDe. me.fet)y

seeking a \~C:lJcnlHH'lt1\J on the apl:m(;fttl

lusnnoo, and·has res1u1te:ain his
the .f\.cce~iS to Justice

PRAYER

PiaintiffSal'\iuy

that,

due COIlSl(ltmalicnl

Court

enter an

arguments
LJe][eI11Jal11s..~)ecited to

(a)

Ue:ten,jants and those

perform

duty to complete remaining· processes

ap\:lhc.atwiU for

lUHYHiIU.<,,,,,,,'';U, including pr{)~e£lSU1lg DI"i.,fiH·'" ~"ft"'"r>rn"'nt" and r''''...CLUlL the

no just grounds to '>'''''lJ\rl.'''' issuance doournents to PI:limtat;

(c) In

u.s.c, ",...",,-,,a.vu pursuant to 8

§

PLAINTIFF'S OIUG!NAL COj\'IPLA!Nr

the and

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 55 of 63

Case

8 of

fees costs

to

Act

to Plaintiff pursuant to the Equal Access

orin equity as

prays any such and
may

reliefto

may be ent1Ue:d at

submitted,

A

F0n11

aturailzatlQ:n Interview Results,"

13

Status

March

PLAINTIFF'S ORIGINAL COMPLAINT

PAGES

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 56 of 63 Case 4:06-mc-00339 Document 3 Filed 08/23/2006 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

LINDA TWUMASI CAMPBELL,
Plaintiff, VS.
SHARON HUDSON, et ai,
Defendant.

§ § § § MISCELLANEOUS NO. H-06-0339 § § § §

ORDER FOR REMAND

Before the Court is the petitioner, Linda Twumasi Campbell's, petition for a hearing on her naturalization application pursuant to 8 U.S.C. § 1447(b). After review of the application, and
before issues are joined, the Court determines that the case should sua sponte be remanded to the
Director, U. S. Citizenship and Immigration Service. The petitioner's application was filed, according to pleadings, on or about May 8, 2003.
Since that time, the petitioner has completed an interview. At the conclusion of the interview, the plaintiff was informed that the sole impediment to approval was an FBI or G-325 name check. The plaintiff was told that the name Linda Twumasi Campbell had not cleared.
Title 8 U.S.C. § 1447(b) permits a petitioner under § 1446 to seek examination of her application by a district court on the end of an 120-day period after an examination where the application has not been approved or denied. Thus, the petitioner's application is properly before the Court in respect to § 1446. However, a district court lacks jurisdiction under 1447(b) to accept such a petition where the 120-day period has not been triggered. See United States v. Ginsberg, 243 U.S. 472, 475 (1917).

112

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 57 of 63 Case 4:06-mc-00339 Document 3 Filed 08/23/2006 Page 2 of 2
In the case at bar, the mandatory national security FBI name check process has not been completed. Hence, exhaustion of the administrative process has not been completed and the 120day period has not been triggered. It is, therefore,
Ordered that the case is REMANDED to the United States Citizenship and Immigration Service, pursuant to FRCP, Rule 12(b)(1) and § 1447(b).
SIGNED and ENTERED this 23rd day of August, 2006.
2/2

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 58 of 63

Office of the Executive Associate Commissioner

U.S. Department ofJustice Immigration and Naturalization Service
. HQISD70
425 J Strut NW Warhingtmt. DC 20.536
NOV I 32002

MEMO RAl'i~M
FROM:
SUBJECT:
Over the past several years we have instituted processes to identify law enforcement interest in persons who apply for immigration benefits. The purpose ofthis memorandum is to reiterate and stress
The the importance ofthese processes and to refine, these processes to ensure that benefits are not granted
to ineligible applicants. instructions in this memorandum apply to the adjudication of all applications and petitions for benefits and to all officers who adjudicate those applications and petitions.
District Directors and Service Center Directors must take steps to ensure that all employees assigned to adjudications responsibilities have received a copy ofthis memorandum. Supervisors
should take immediate action to explain the contents ofthis memorandum to all employees assigned to
the adjudication ofapplications and petitions for benefits. A record bearing the signature ofeach. employee must be maintained.
General Requirements
There is substantial infonnation available to our adjudicators. This includes a system ofnational
In checks such as electronic fmgerprinting, automated background checks, etc. It remains, however, the
responsibility ofeach and every officer to determine eligibility for a benefit. .arrlvlng at that
determination omeers are required to obtain and review any and aD information

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 59 of 63

-.
Memorandum to Distribution List,
Subject: Responsibilities ofAdjudicators .

Page 2

provided through national or local background checks. It also is a responsibility of adjudicators to review the full contents of the A-file or petition for any potentially disqualifying information or evidence that such information may exist.
1. Officers reviewing the results ofmIS checks must determine whether the file contains . aliases and must initiate further checks ofmIS ifaliases are present in the tile.
2. it in response to a name check. the FBI indicates to the INS that a record may possibly exist (referred to in Service guidance as nIP" or "indices popular") the application may not be decided until the adjudicator obtains and reviews the information or receives a specific determination from the FBI that the record does not relate to the applicant. The disposition of the IP response must. be documented in the tile.

Adjudicating applications and petitions from a Temporary A-file
Extra care must be taken in adjudicating applications and petitions from a Temporary A-file. Applications that are adjudicated from a Temporary A-tile Dl!.W..undergo all the normally required background checks, and must include the following additional steps. These additional requirements amplify the current guidelines contained in the N-400 NQP, and create new guidelines for other adjudications.

1. The Central Index System (CIS) printout must be reviewed to determine if records exist in other

INS systems. If so, the adjudicator must obtain, review, and attach to the tile that information

prior to adjudicating the application.

.

2. If background checks are negative (no record). this fact and the data checks that were

mad~reviewed must be noted on a processing sheet that is attached to the me. A

supervisory adjudications officer must review and approve the adjudication. ofthat

application on the temporary A-tile.

3. Ifbackground checks are positive (a record or possible record exists), this fact and the

data checks that were made must be recorded on the processing sheet. In any instance

where a check is positive the information must be obtained, resolved and made a part ofthe

record. In addition, the adjudication may not proceed until the Assistant Di!;trict Director for

AdjudicatiOns, or the Assistant Service Center Director, or the officer in Charge having

jurisdiction over the adjudication has reviewed and approved the decision. This authority may

not be delegated.

4. Because special precautions must be taken in adjudicating applications on a Temporary A-tile,

and to permit supervi!lors adequate time to review records, no same-day oath ceremony may

take place iethe adjudication involves a Temporary A-tile. The Assistant Director for

Adjudications, or the Assistant Service Center Director, or the Officer in Charge may waive this

requirement in appropriate cases. Such waivers shall be in writing and placl~ in the file.

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 60 of 63

·<:
Memorandum to Distribution List .Subject: ResPOJlSibilities ofMludicators
DISTRIBUTION LIST
Regional Directors District Directors Service Center Directors
Officers in Charge
Acting Director, Office ofIntemationai Affairs Director, Immigration Officer Academy EAC, Office ofPolicy and Planning General Counsel DEAC, Immigration Services Division

Page 3

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 61 of 63
u.s.~.,. . . . . . . . . . . . ,

Interoffice Memorandum

April 05. 2004

Re: C1oai:na ofCuea with PeDding Law Eaforcement Checki

.Citizensbip and JmmiaratiOD Services (CIS) conducts law CDf'orcemeDtchecb on all Pelildina applications and. petitiODl for two pulpOecl-tO cabance public safety by initiatina appropriate law CDf'orceine.nt action. in .
those Cuoa that waiDnt it. and to obtain information that may be relevant to the attiudication of~ .
application. ,It is importmt that CIS coiltinuesw eDIUl'I both purpolCllrC met in all cues.

This memorandum supercedel the Joay Williams Memorandum ofNovembcr 13.2002. Rep1sibilitiea of .
Miudicatm. 18 it.relate. to FBI name cbccb. and lID)' other similar instructions.

Etreotiw with tbi.lilOmorI.bdum, applications warrantina denial may be Icljudicatcd prior to obtainina the

final rcsuIts ofall required law enfO(CClDmlt checks. Offices cIenyina an application..without tbe results ftom

the law'cafon:ement c~ will,be n"pODlib~ for lDOllitoriq tho final-fCIUlts when tl:icy become available.

recem. and taJdna'appropriato action ifpublic Wety ooacems _ ideotified. (>ffices will bercquincl to deVelop a

pOat-audit syatcm.to

reviewlDd forward nd'emlI to the appropriate law ~mHII1t entity after an

applioatioD hal been denied. This poat-eudit system ~ tJao required for all CIIeI where an NTA bU been

iuued in ICcordat1co with the William R. Vue. Memorandmn ofMarch 2. 2004. entitled SecurUyQwj

RUill"_ Prwdio. Notice tg ARRear JpUance. .

.

.

If'pmerred, offiCCl may contirlue to withhold 6na1 adjudicatiOD UDti1.all required law Olilforeement check

results_ rccciwd. Officca continuina to follow the JUidancc outlined
Williams Memorandum. relating tg FBI Dt.mC checb will complete final

ian4tjhuedfacbaotiwoDMimefderleanwceCdDJfo'olmrcenmymit·

referra1a at the same time. with no post-audit system ~

at If'you have lID)' queltions reaardinl this memorandum, pleuc contact Patrieia Nolin, Field Operations.
2021514-2982.

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 62 of 63
, UJL Deputlll.eat ofBom..... SecuStJ S1reel Addros. ,City, Slate ~

US. Citizenship .

and lInm.1gratfon

• :

, Servi.c1es.

Interoffice Memorandum

To:' REGIONAL DlRBCTORS
DISTRICI'DlRECTORS
,- SERVICE CBNTBR DlRBcroas '
NATIONAL ~ rml.PIRBCj;otv

From:

l

I

Re: ' Required SecQrity Checks

Tbis momoraDd.um updates aDd explaiDs aiatiDa policy reprdina required sccurity cbllcb. ,Field,OfficeI are reminded that prior to iuuiDa ~tatioD e~ciq or reau1tiDa from a sraat of li.wfui pemlanent
i:eaideDt (LPR) ItatUI er uylum, mcludJDa: aD 1-551 AlieD DocumIm.tIdon Jdentifir.titiOll Tecbaoloay Stamp
an CADII'}.ID uy.~.A:irivaJIDepar R.eccri (I-94)~ er aD Bmploymem Authorizadon Document
(BAD) baed upon 8 (pR 2741.12(a)(5), of tho aecarity cbecks lilted below must be compJetecl. 'IbeIe
.chCcb must be acrompUlhe41n all ciICumstanceI. whetberthe final graDtOtLPR IWOI or uylumbas beI'D
Jiven by U.S. Citizeusbip aDd Immigration SeJVice (USCISj Or the Bxecutive Office tor Immipation Review
(BOlJl.) u a form ofrelief' from ~val. In those instancel when uses is WlI1Ue wbetber the apPrQpriate
. Security Cbecb have been conducted. tbe followiq checks ,must:be CODipleted by USCIS•.

InteraaencyBorder l1lIpectioD System. (IBIS).' IBIS is a multi.;qeocy effort started by the Immigration aDd

Naturalization Service. Depattmcnt ofAaricUltme. US, CuatoiDa $ervice. aDd the Department of Statcl.

TwePty.four individual 8IeDclel have contributed mtmnatton to tbiJ lookout ayatem. An IBIS query also

includes a check ofthe National CriDJ8 Information Centei (NCIe). manapl by the Pedcnl Bumau of

Investigation (FBI) fer fedenl.ltate. aDd local law enforoement 'eDtitiea'fO share data coacemin& wanted

of . persons, criminall. peflOlll , "

interest. aDd routine legal admiDistrati~ m. atters.

T e . fiDprpriDL ThiJ check isCompleted tbroUah the taking offiD&etprintI at the local Application

Suppcxt'Ceoter (ASe). Tbie'Qiqlinal JUIti.ce Information Services (CJIS) Dtvilim oftbe FBI CODduCia

:finaetpdm Backp'ouDd Checb throuah the aubmia,aiOD offinaerprinta aDd I: search01 tho FBrl Crimiaal

Hiltory Muter FUeo The FiDprprhU Backaromid Qeck wUl-=lude caly informatiOllI that baa been

submitted to the FBI by loCal. . .federal. or IDtematicmal criminaljuatk:e apnciea.' In additiOD to the

f1nprpriDt aeui:h. a name search omy is conducted api11st the NCIC GaDa and Terroriat OrpnlZldon File.

FBI Name Qeck. TbiJ check is conducted apinlt two separate databuea. A Miip Inds search matches die . applicaDt'lllIZm qaiDst, the name of people who are. or have been, the lubject of III investigation, a

Case 1:06-cv-03203-ERK-RLM Document 23 Filed 09/01/2006 Page 63 of 63

,~ .

.. ..

.' .

,..,2 :,'" .. .

.

1Iq"ScIcurity QIcb .: .

we... .

.

~mard1eI the .p,U...-. DID aaimat~ tbatappe&rin iDveaiaattw rOporta. even

thoGp ~.Y Dot'bIt tba ~jeet oftheiDw~oL

'.

FoUowiDatbe IUICkI of~ n. 2001~ 1aw'~
iDfofmItloa·1buiq. :An lIJJ$'check,ea~ today JifOVldea

eDtorcem.u IIId lDtelUpD"'qelicJiei baV" ~
~ from1lUlDllOUl

. and

~~. AI, I reault oftblle eflbrtI.ltll DO 1oDI"~ll,t'ytbr.USCIS to,ooaduct IIOpIrIte .

. ·CeDtnl ~ ~ (CIA)OJect. Bffecdve immDcU.i&ely field ~.Y dJJCaDtimll the pncdce .

of~ 60 da)'l tor. rUpoa. from the:~

.

.

.

.

.

lfyOUbavo.y queatlau ~·tbia ~ pleuo coaiact·Patricla Nolin. Field 0p0tadcma••

2021514-2982.

,,'

.

'.

I
f .'~.

.. , ."

. \
'.
"

..,

/. .

~.. ' .'
. i

 
 Case 1:06-cv-03203-ERK-RLM Document 31 Filed 11/02/2006 Page 1 of 9

Not For Publication

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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

:

RAISA YAKUBOVA, EMMA UNGURYAN,

:

BELLA VESNOVSKAYA, DAVID VESNOVSKIY, :

VYACHESLAV VOLOSIKOV, and

:

SHEHATA AWADIBRAHIM, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs,

:

v.

:

:

MICHAEL CHERTOFF, in his official capacity as

:

Secretary of the Department of Homeland Security,

:

EMILIO GONZALEZ, in his official capacity as the

:

Director of the United States Citizenship and

:

Immigration Services, MARY ANN GANTER, in her :

official capacity as District Director of the New York City :

District of the United States Citizenship and Immigration :

Services, ALBERTO GONZALES, in his official capacity :

as Attorney General of the United States, and

:

ROBERT S. MUELLER, in his official capacity as the :

Director of the Federal Bureau of Investigation,

:

:

Defendants.

:

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

06 CV 3203 (ERK) (RLM)
MEMORANDUM & ORDER

KORMAN, C.J.

The authority to naturalize persons as citizens of the United States has been delegated to the

United States Citizenship and Immigration Service (“CIS” or the “Service”) within the Department

of Homeland Security. 6 U.S.C. § 271; 8 U.S.C. § 1103(a); 8 C.F.R. § 100.2(a). Under the

Immigration and Nationality Act (“INA”), a naturalization applicant submits an application to CIS

and is examined by a designated Service officer. 8 U.S.C. §§ 1445, 1446; 8 C.F.R. §§ 335.2(a),

335.3(a). The applicant bears the burden of proving, among other things, good moral character,

including an account of criminal history. 8 U.S.C. § 1427(d); 8 C.F.R. § 316.10. In 1997, Congress

Case 1:06-cv-03203-ERK-RLM Document 31 Filed 11/02/2006 Page 2 of 9
required that applicants receive a Federal Bureau of Investigation (“FBI”) criminal background check before citizenship by naturalization could be conferred. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. 105-119, Title I, 111 Stat. 2440, 2448-49. Accordingly, the Service adopted 8 C.F.R. § 335.2(b), which provides that the Service will only notify a naturalization applicant to appear for an “initial examination” once his or her FBI background check is completed.
Pursuant to 8 U.S.C. § 1447(b), if after 120 days from the date of examination there is no determination of the application by the CIS, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. The district court may either determine the matter on the merits or remand it with appropriate instructions to the Service. Id.; see also 8 C.F.R. § 335.3(a) (“A decision to grant or deny the application shall be made at the time of the initial examination or within 120-days after the date of the initial examination of the applicant for naturalization under § 335.2.”); 8 U.S.C. § 1571(b) (“It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.”). The Administrative Procedure Act (“APA”) requires all agencies to conclude matters presented to it “within a reasonable time,” 5 U.S.C. § 555(b), and provides that a reviewing court can “compel agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1).
Plaintiffs have brought this action under 8 U.S.C. § 1447(b) and the APA. The six named plaintiffs in this action are individuals residing in this District who, at the time of the Complaint was filed, had naturalization applications pending with the CIS for more than 120 days since their interview with a Service officer. They seek to represent a class of similarly situated individuals
2

Case 1:06-cv-03203-ERK-RLM Document 31 Filed 11/02/2006 Page 3 of 9
residing in this District and allege that defendants Chertoff, Gonzalez, Gantner, and Gonzales (collectively the “CIS defendants”) have established a CIS custom and practice of failing to grant or deny naturalization applications: (i) within 120 days after the date of initial examinations in violation of 8 C.F.R. § 335.3 and 8 U.S.C. § 1447(b); and (ii) within a reasonable time in violation of 5 U.S.C. § 555(b). Plaintiffs further allege that defendants Gonzales and Mueller have implemented an FBI custom and practice of failing to complete, within a reasonable time, the criminal background checks necessary for the adjudication of naturalization applications. Finally, plaintiffs assert that all defendants have collectively failed to take all steps necessary to adjudicate naturalization applications within a reasonable time.
The plaintiffs moved for class certification on June 29, 2006. On September 1, 2006, the defendants filed motions to dismiss and to sever the action. I address below the reasons denying defendants’ motion to dismiss. Plaintiffs’ motion for class certification and defendants’ motion to sever are both premature and are denied without prejudice to renewal after the completion of discovery.
DISCUSSION 1. Ripeness Under 8 U.S.C. § 1447(b)
Section 1447(b) of Title 8 provides for the exercise of jurisdiction over a complaint by a citizenship applicant “if there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section.” 8 U.S.C. § 1447(b) (emphasis added). The U.S. Attorney argues that the term “examination” referred to in the statute is ambiguous and could reasonably describe the entire “process” of examining the applicant, including his or her FBI background check. Under
3

Case 1:06-cv-03203-ERK-RLM Document 31 Filed 11/02/2006 Page 4 of 9
defendants’ construction of section 1447(b) jurisdiction does not lie because plaintiffs cannot show that 120 days have passed since their full examination, which defendants argue includes FBI clearance. Plaintiffs, on the other hand, argue that “examination” refers specifically to the date of the applicant’s interview with the CIS officer and, because 120 days have passed since those respective dates for all plaintiffs, their claims are ripe under 8 U.S.C. § 1447(b).
The U.S. Attorney’s reading of the statute has failed to garner the support of the vast majority of other district courts that have considered the issue for three main reasons. First, the language of § 1447(b) relates to “the date on which the examination is conducted” (emphasis added). Thus, the statutory language “strongly implies that there is a single date on which the examination occurs.” Khan v. Chertoff, CV-05-005602006 (SRB), 2006 WL 2009055, at *2 (D. Ariz. July 14, 2006); see also El-Daour v. Chertoff, 417 F. Supp. 2d 679, 681 (The statutory language “contemplates that the examination occurs on a particular, identifiable, date. A ‘process’ does not occur on one particular and identifiable date.”); Daami v. Gonzales, No. 05 Civ. 3667 (KSH), 2006 WL 1457862, at *5 (D. N.J. May 22, 2006) (“The majority position is that the word ‘examination’ in § 1447(b) refers to the date of the examination interview with a CIS officer, and not the entire ‘examination process.’”). Second, by distinguishing between examinations and investigations in 8 U.S.C. § 1446, Congress has evinced an understanding that the investigation, including the FBI background check, is separate from the examination. Daami, 2006 WL 1457862, at *5. Third, the pertinent CIS regulations evidence the agency’s own understanding that an “examination” is a discrete event rather than a prolonged process with multiple components. Khelifa v. Chertoff, 433 F. Supp. 2d 836, 841 (E.D. Mich. 2006). Indeed, the regulation entitled “Examination of applicant” provides that the requisite examination consists of the applicant’s
4

Case 1:06-cv-03203-ERK-RLM Document 31 Filed 11/02/2006 Page 5 of 9
“appear[ance] in person before a Service officer designated to conduct examinations” and that “[t]he Service will notify applicants for naturalization to appear before a Service officer for initial examination on the naturalization application only after the Service has received a definitive response from the Federal Bureau of Investigation that a full criminal background check of an applicant has been completed.” 8 C.F.R. § 335.2(a)-(b) (emphasis added). By referring separately to the FBI background check and the “initial examination,” this provision plainly contemplates that the background check is independent from, as opposed to a part of, the “examination.” See Khelifa, 433 F. Supp. 2d at 841; El-Daour, 417 F. Supp. 2d at 683 (“Section 335.2 can only be understood as equating the ‘examination’ with the ‘interview’ conducted by the Service officer.”).
Because the meaning of “examination” is unambiguous and the agency’s position in this litigation is contrary to its own regulations, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), deference is not appropriate. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988) (“We have never applied the principle of [Chevron] to [an] agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice. . . . Deference to what appears to be nothing more than an agency’s convenient litigating position would be entirely inappropriate.”). Under these circumstances, I agree with the majority position that the decision-making period commences when an applicant “appear[s] in person before a Service officer,” 8 C.F.R. § 335.2, and that subject matter jurisdiction lies over this action under 8 U.S.C. § 1447(b).
5

Case 1:06-cv-03203-ERK-RLM Document 31 Filed 11/02/2006 Page 6 of 9
2. Claims Under the APA
Defendants also move to dismiss the Complaint for a failure to state a claim under the APA. The statute provides that, “[w]ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it,” 5 U.S.C. § 555(b), and that a reviewing court can “compel agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1). The plaintiffs argue that the delays of their naturalization applications and prerequisite FBI background checks are in violation of the APA.
An application is unlawfully withheld if the agency fails to meet a clear deadline prescribed by Congress. See Forest Guardians v. Babbitt, 164 F.3d 1261, 1272 (10th Cir. 1998). Here, the plaintiffs admit that no mandatory deadline applies to the FBI checks. Instead they argue that the FBI’s actions have been unreasonably delayed, which is forbidden by 5 U.S.C. § 555 even in the absence of a Congressionally mandated deadline. Id. (a court may compel agency action that is unreasonably delayed where an agency has no concrete deadline establishing a date by which it must act). The reasonableness of an agency’s delay is determined by examining the following considerations, known as the TRAC factors:
“(1) the time agencies take to make decisions must be governed by a ‘rule of reason;’ (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’”
6

Case 1:06-cv-03203-ERK-RLM Document 31 Filed 11/02/2006 Page 7 of 9
Tummino v. Von Eschenbach, 427 F. Supp. 2d 212, 231 (E.D.N.Y. 2006) (Pohorelsky, Mag. J.) (citing In re Barr Laboratories, Inc., 930 F.2d 72, 74-75 (D.C. Cir. 1991) (quoting Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984)).
Plaintiffs aver that they have stated allegations consistent with the TRAC factors – including that sections 1447(b) and 1571(b) should inform the FBI standard of reasonableness – and that they are entitled to discovery on the facts surrounding the agency delays. Defendants rely on the proof that they have submitted with their papers to argue that plaintiffs will not be able to show that they have been acting unreasonably. Indeed, defendants argue that it is resource constraints, especially in the face of a post-9/11 increase in volume and scope for background checks, that prevent them from eliminating the backlogs. Defendants also cite to cases where courts have upheld agency delays up to five years as reasonable, see, e.g., Saleh v. Ridge, 367 F. Supp. 2d 508, 513 (S.D.N.Y. 2005), to argue that plaintiffs’ claims here should fail as a matter of law.
While defendants have submitted persuasive evidence that they have been acting reasonably given the competing priorities of the Executive Branch, none of defendants’ submissions on this motion have been tested by discovery and plaintiffs should be allowed some discovery on this issue. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998); Kim v. Ashcroft, 340 F. Supp. 2d 384, 393 (S.D.N.Y. 2004) (“Although it is entirely possible that this delay is reasonable, there is insufficient information upon which to base such a determination at this [motion to dismiss] stage in the proceedings.”); Cordoba v. McElroy, 78 F. Supp. 2d 240, 245 (S.D.N.Y. 2000) (motion to dismiss denied because “although the government’s statistics seem impressive, they do not necessarily carry the day. . . . Perhaps plaintiffs here might establish facts which, notwithstanding the volume of cases before the INS, would make out a nonfrivolous claim of a violation of Section
7

Case 1:06-cv-03203-ERK-RLM Document 31 Filed 11/02/2006 Page 8 of 9
6 of the APA”). The U.S. Attorney also argues that the APA is not available to plaintiffs in connection with
the CIS defendants because 8 U.S.C. § 1447(b) is the exclusive means to challenge delayed naturalization applications. At this stage, I need not address the issue of whether the APA claim survives in connection with the CIS defendants. Plaintiffs have stated proper claims against them under 8 U.S.C. § 1447 and “[i]f one of a number of integrally related causes of action have to be tried, it makes little sense to grant a motion to dismiss as to one or more of them, as it may prove necessary to hold yet another trial in the event that it is determined on appeal that the motion to dismiss was improperly granted.” Friedman v. New York City Admin. for Children’s Services, No. 04 Civ. 3077, 2005 WL 2436219, at *9 (E.D.N.Y. Sept. 30, 2005) (Korman, C.J.). 3. Claim for a Mandatory Injunction
Finally, defendants argue that the plaintiffs’ claim for injunctive relief should be dismissed because plaintiffs have not established the prerequisites for a mandatory injunction. Defendants argue that plaintiffs do not suffer from irreparable harm because lawful residents have the ability to work and travel and because expedited CIS processes exist for applicants that are in danger of losing benefits or have other emergencies. Defendants further aver that plaintiffs have an adequate remedy at law to pursue individual lawsuits under 8 U.S.C. § 1447(b) and that the injunction would be against the public interest in light of post-9/11 security concerns. However, I need not address whether plaintiffs have met the criteria for a mandatory injunction at this stage of litigation. Plaintiffs are also seeking declaratory relief and the appropriate remedy may be determined if plaintiffs successfully prove their claims. See Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F. 2d 1568, 1576 (5th Cir. 1988) (holding that requests for permanent injunctive relief were
8

Case 1:06-cv-03203-ERK-RLM Document 31 Filed 11/02/2006 Page 9 of 9 not the proper subject of a motion to dismiss).
CONCLUSION The defendants’ motion to dismiss is denied except as to plaintiff Shehata Awadibrahim, as to whom the motion is granted without prejudice due to his imminent naturalization by CIS. The plaintiffs’ motion for class certification and defendants’ motion to sever the action are denied as premature without prejudice to renewal after the completion of discovery. SO ORDERED. Brooklyn, New York November 1, 2006
/s/ Edward R. Korman Edward R. Korman United States Chief District Judge
9

 
 Case 1:06-cv-03203-ERK-RLM Document 68 Filed 07/07/2008 Page 1 of 10

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------------)( RAISA YAKUBOVA, EMMA UNGURYAN, BELLA VESNOVSKAYA, DAVID VESNOVSKIY, VYACHESLAV VOLOSIKOV, ALEKSANDER GOLDBERG, MUHAMMAD SHEBBIRSAJID, and EFIM KATS on behalf of themselves and all other similarly situated individuals,

-against-

Plaintiffs,

06 CV 3203 (ERK)(RLM) (ECF CASE)

MICHAEL CHERTOFF, in his official capacity as Secretary of the Department of Homeland Security, JONATHAN SCHARFEN, I in his official capacity a, Acting Director of the United States Citizenship and Immigration Services, ANDREA QUARANTlLLO, in her official capacity as District Director of the New York City District of the United States Citizenship and Immigration Services, MICHAEL MUKASEY, in his official capacity a, Attorney General of the United States, and ROBERT S. MUELLER, in his official capacity as Director of the Federal Bureau oflnvestigation,

FILED

IN ClEl'IK'S OFFtd!' •

r- U.s.D"8mlCT COU'RT, E.DN.V...

I
,

~j

.

JUt..

.llj\J~ "Ii' '

.BROOKLY1\f OfFI'ce:

Defendants.
------------------------------------------------------------------)(
STIPULATION AND AGREEMENT OF SETTLEMENT AND RELEASE
Named Plaintiffs in the above-captioned matter and Defendants Michael Chertoff, Secretary of

Homeland Security: Michael B. Mukasey, Attorney General; Jonathan Scharfen, Acting Director of the United

States Citizenship and Immigration Services ("USClS"); Robert S. Mueller, III, Director of the Federal Bureau
ofInvestigation ("FBI"); and Andrea Quarantillo, District Director, uscrs New York District (together,

I The complaint names Alberto Gonzales ("Gonzales"), then-ADomey General of the United States, as a defendant in his official capacity, Gonzales has been succeeded in office by Michael Mukasey, who became Anomey General on November 9, 2007. The complaint names Mary Ann Gantner ("Gantner"), then-District Director of the New York City District of USCIS, as a defendant in her official capacity. Gantner has been succeeded in office by Andrea Quarantillo, who became District Director of the New York City District of USCIS on November 6, 2006. The complaint mImes Emilio Gonzalez (uGonzalezll), then-Director of USCIS, as a defendant in his official capacity, Gonzalez has been succeeded in office by Jonathan Scharfen CtScharfen"), who became Acting Director of USCIS on April 21, 2008. Accordingly, pursuanl to Rule 25(d) of the Federal Rules of Civil Procedure, Mukasey, Quarantillo and Scharfen have been automatically substituted for Gonzales, Gantner and Gonzalez as defendants.

Case 1:06-cv-03203-ERK-RLM Document 68 Filed 07/07/2008 Page 2 of 10
"Defendants"), by and through their attorneys, hereby enter into this Stipulation and Agreement of Settlement and Release (the "Stipulation"), as of the date beneath Defendants' Counsel's signature. WHEREAS:
A. Plaintiffs filed suit on behalf of themselves and all others similarly situated against Defendants in the United States District Court for the Eastern District of New York on June 28, 2006, seeking class certification, designation of Class Counsel and declaratory and injunctive relief.
B. By Order of November 2,2006, the Court denied Defendants' Motion to Dismiss. C. To date, the Court has not granted class certification, designation of Class Counsel, or declaratory or injunctive relief. D. Defendants deny all liability with respect to the Action, deny that they have engaged in any wrongdoing, deny the allegations in the Complaint and Amended Complaint, deny that they committed any violation of law, deny that they acted improperly in any way, and deny liability of any kind to the Named Plaintiffs, the putative Class, or the putative Class Members, but agree to the settlement and dismissal of the Action with prejudice in order to: (i) avoid the substantial expense, inconvenience, and distraction of protracted litigation; and (ii) finally put to rest and terminate thc Action and any and all Settled Claims as defined in paragraph 9. E. Plaintiffs' Counsel have conducted discussions and arm's length negotiations with Defendants' Counsel with respect to a compromise and settlement of the Action with a view to settling the issues in dispute and achieving the best relief possible consistent with the interests of the Named Plaintiffs, the putative Class, and all putative Class Members. F. After considering the benefits that the Plaintiffs, the putative Class, and the putative Class Members will receive from settlement of the Action and the risks of litigation, Plaintiffs' Counsel have concluded that the terms and conditions of this Stipulation are fair, reasonable, and in the best interests of the Plaintiffs, the putative Class, and the putative Class Members; have agreed that the Released Parties should be
2

Case 1:06-cv-03203-ERK-RLM Document 68 Filed 07/07/2008 Page 3 of 10

released from the Settled Claims pursuant to the terms and provisions ofthis Stipulation; and have agreed to the

dismissal with prejudice of all Settled Claims as defined in paragraph 9.

NOW, THEREFORE, it is hereby STIPULATED AND AGREED, by and among the parties to this

Stipulation, through their respective attorneys, in consideration of the benefits flowing to the parties hereto from

the Settlement, that the Settled Claims of Plaintiffs as against the Released Parties shall be compromised,

settled, forever released, barred, and dismissed with prejudice, upon and subject to the following terms and

conditions:

1.

DEFINITIONS

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

1.

"Action" means the above-captioned action pending in the United States District Court for the

Eastern District of New York (Docket No. 06 cv 3203).

2.

"Defendants" means Michael ChertolT, in his ofiicial capacity as Secretary of the Department

of Homeland Security; Jonathan Scharfen, in his official capacity as Acting Director of USCIS; Andrea

Quarantillo, in her official capacity as District Director ofthe New York City District of USCIS; Michael

Mukasey, in his official capacity as Attorney General of the United States, and Robert S. Mueller, in his official

capacity as Director of the Federal Bureau of Investigation.

3.

"USCIS Defendants" or "USCIS" means Michael Chertoff, in his official capacity as

Secretary of the Department of Homeland Security; Jonathan Scharfen, in his official capacity as Acting

Director of USCIS; and Andrea QuarantilJo, in her official capacity as District Director of the New York City

District of USCIS.

4.

"Yakubova applicants" means, for purposes of this settlement only, all individuals residing

within the jurisdiction of the United States District COll11 for the Eastern District of New York, whose

naturalization applications had been pending for more than J20 days without adjudication after the applicants'

initial interviews by US CIS, as of June 12,2008. Defendants have represented that as of June 12,2008, there

were a total of 1,426 Yakubova applicants. Not included within this group are 225 individuals who would

3

Case 1:06-cv-03203-ERK-RLM Document 68 Filed 07/07/2008 Page 4 of 10

otherwise fit within the Yakubova applicants definition but whose naturalization applications, according to

Defendants' representations, remain pending without adjudication due to active investigations related to

national security, public safety or fraud that may preclude a grant of naturalization.

5.

"Effective Date of Settlement" or "Effective Date" means the date upon which the Settlement

provided for in this Stipulation shall become effective, as set forth in paragraph 21 below.

6.

"Plaintiff(s)" or "Named Plaintiff(s)" means Raisa Yakubova, Emma Unguryan, Bella

Vesnovskaya, David Vesnovksiy, Vyacheslav Volosikov, Aleksander Goldberg, Muhammad Shebbir Sajid, and

Efim Kats.

7.

"Plaintiffs' Counsel" means the New York Legal Assistance Group. Should this entity

change its name or merge with other entities, those new entities shall also qualify as Plaintiffs' Counsel.

8.

"Released Parties" means any and all of the Defendants, their predecessors and successors,

their departments and agencies, and their past or present agents, employees, and contractors.

9.

"Settled Claims" means any and all claims, in law or equity, that were asserted or that could

have been asserted by Plaintiffs in the within action, based upon the facts alleged or that could have been

alleged in the Amended Complaint relating to the subject of this action.

10.

"Settlement" means the settlement provided for in this Stipulation.

II.

RELIEF AND REPORTING

II.

On or before August 25, 2008, Defendants shall take all necessary steps to adjudicate, and

USCIS Defendants shall adjudicate, at least 90 percent of the naturalization applications submitted by

Yakubova applicants which, as of August 25, 2008, are able to be adjudicated ("adjudicable Yakubova

applicants"). Cases not able to be adjudicated as of August 25,2008 because of the Yakubova applicant's

failure to provide information requested by USCIS Defendants or failure to take Some other action required by

USCIS Defendants, or because Defendants-are awaiting receipt of information from the Yakubova applicant,

shall be excluded from the computation of the percentage. USCIS shall schedule those Yakubova applicants

whose naturalization applications are approved for an oath of citizenship to take place within 45 days of the

4

Case 1:06-cv-03203-ERK-RLM Document 68 Filed 07/07/2008 Page 5 of 10

approval of the Yakubova applicant's application, barring unforeseen circumstances or any action taken by the

applicant which precludes such scheduling.

12.

On or about July 29, 2008 (reporting from July 26, 2008), USCIS Defendants will provide

Plaintiffs' Counsel with the following reports:

a.

The number of Yakubova applicants whose naturalization applications are

pending receipt of the result of their FBI name check; and

b.

The number ofYakubova applicants whose naturalization applications remain

unadjudicated and/or are pending Oath Ceremonies.

13.

On or before September 2, 2008 (repol1ing information as of August 25, 2008), USCIS

Defendants will provide Plaintiffs' Counsel with the following information:

a.

The number ofYakubova applicants whose naturalization applications are

pending receipt of the result of their FBI name check;

b.

The number of Yakubova applicants whose naturalization applications are

pending due to active investigations related to national security, public safety, or fraud that may preclude a

grant of naturalization;

c.

The number of Yakubova applicants whose naturalization applications, as of that

date, are not adjudicable because of the Yakubova applicant's failure to provide information requested by

USCIS Defendants or take some other action required by USCIS Defendants, or because Defendants are

awaiting receipt of information from the Yakubova applicant;

d.

The number of Yakubova applicants whose naturalization applications have not

been adjudicated for reasons other than those listed in paragraphs 13.a, 13.b, and 13.c; and

e.

The number of Yakubova applicants whose naturalization applications have been

approved but have not yet participated in an Oath Ceremony, and the dates those Yakubova applicants are

scheduled to attend their Oath Ceremonies.

5

Case 1:06-cv-03203-ERK-RLM Document 68 Filed 07/07/2008 Page 6 of 10

14.

If the report provided on September 2, 2008 indicates that USCIS has adjudicated the

naturalization applications of at least 90 percent of the adjudicable Yakubova applicants:

a.

USCIS will provide an individual notice ("the notice"), the content of which is to

be agreed upon by counsel for all parties on or before August 7,2008, to all Yakubova applicants whose

naturalization applications have nol been adjudicated as of August 25,2008. The notice shall advise the

remaining Yakubova applicants of, inter alia, their right to challenge the delay in the adjudication of their

naturalization applications. USCIS shall mail the notices no later than September 8, 2008.

b.

Once USClS mails the notices, Defendants' Counsel shall inform Plaintiffs'

Counsel that the notices have been mailed, and the Court's jurisdiction over the enforcement of the Stipulation

shall end, except that the Court shaIJ retain jurisdiction over the enforcement of the obligations set forth in

paragraph 23 of this Stipulation.

15.

If the report provided on September 2, 2008 indicates that USCIS Defendants have

adjudicated the naturalization applications of fewer than 90 percent of the adjudicable Yakubova applicants:

a.

Plaintiffs' Counsel and Defendants' Counsel will meet and confer on September

5, 2008 to attempt to resolve any outstanding disputes.

b.

Plaintiffs' counsel will inform Defendants' Counsel on or before September 12,

2008 whether they will seek relief from the COUlt.

c.

The Court shall hear, mediate, and, to the fullest extent possible, obtain the

agreement of both parties to resolve the dispute.

d.

If Plaintiffs seek relief pursuant to this paragraph, the only issues to be determined

by the Court will be I) whether Defendants' failure to take all necessary steps to adjudicate and/or USCIS

Defendants' failure to adjudicate at least 90 percent of the adjudicable Yakubova applicants' naturalization

applications was reasonable, and 2) if the Court determines that Defendants' failure to take all necessary steps

to adjudicate and/or USCIS Defendants' failure to adjudicate at least 90 percent of the adjudicable Yakubova applicants' naturalization applications was not reasonable, what relief should be ordered. Plaintiffs agree that

6

Case 1:06-cv-03203-ERK-RLM Document 68 Filed 07/07/2008 Page 7 of 10

they shall not seek contempt or sanctions to enforce this Stipulation. The Court's jurisdiction over the

enforcement of this Stipulation shall terminate upon Defendants' compliance with any Order issued to enforce

paragraph 11 of this Stipulation, but not before Defendants' compliance with the obligations set forth in

paragraph 23 of this Stipulation.

e.

If Plaintiffs do not seek relief from the Court pursuant to this paragraph,

Defendants shall, on or before September 19, 2008, provide the notice described in paragraph 14.a to all

Yakubova applicants whose naturalization applications are not adjudicated as of August 25, 2008. Once USCIS

mails the notices, Defendants' Counsel shall inform Plaintiffs' Counsel that the notices have been mailed, and

the Court's jurisdiction over the enforcement of this Stipulation shall end, except that the Courl shall retain

jurisdiction over the enforcement of the obligations set forth in paragraph 23 of this Stipulation.

III. RELEASE; SCOPE AND EFFECT OF RELEASE

16.

Plaintiffs withdraw their motion for certification of the class in this action.

17.

On the Effective Date, this case will be dismissed with prejudice, and the Named Plaintiffs, on

behalf of themselves, their heirs, executors, administrators, representatives, attorneys, successors, assigns,

agents, affiliates, and parlners ("Releasing Parties"), shall be deemed to have fully, finally, and forever released,

relinquished, and discharged the Released Pal1ies of and from any and all of the Settled Claims, and the

Releasing Parties shall forever be barred and enjoined from bringing or prosecuting any Settled Claim against

any of the Released Parties.

18.

Plaintiffs' Counsel shall amend the definition of the putative class in Milanes et al. v. Chertoff

et aI., 08 CV 2354 (S.D.N.Y.), to exclude the following individuals from the Milanes putative class:

All individuals residing within the jUrisdiction of the United States District Court for the Eastern District of New York, Whose naturalization applications, as of June 12,2008, had been pending for more than 120 days without adjudication after the applicants' initial interviews by USCIS, except the 225 individuals whose naturalization applications, as of June 12,2008, remained pending without adjudication due to active investigations related to national security, pUblic safety or fraud that may preclude a grant of naturalization.

Should Plaintiffs' Counsel fail to request amendment of the putative class definition from the Court in

Milanes by July 10, 2008, or within one business day of the Effective Date of this Stipulation, whichever comes 7

Case 1:06-cv-03203-ERK-RLM Document 68 Filed 07/07/2008 Page 8 of 10

later, or should the Milanes Court certify a class without the above exclusion during the pendency of any

actions pursuant to this Stipulation, this agreement will be void.

IV. CONTINUING JURISDICTION

19.

The parties agree that this COUlt will retain continuing jurisdiction for the duration of the

Stipulation to supervise the implementation of this Stipulation and to enforce its terms. The Court's jurisdiction

shall terminate pursuant to the provisions of paragraph 14.b, paragraph 15.d, or paragraph 15.e.

V. EFFECTIVE DATE OF SETTLEMENT, WAIVER OR TERMINATION

20.

Upon all parties' execution of the Stipulation, the parties shall jointly present the Stipulation

to the Court for approval.

21.

The Effective Date of this Stipulation shall be the date on which the parties are infonned that

the Court has so-ordered this Stipulation and granted voluntary dismissal of all claims.

VI. NO ADMISSION OF WRONGDOING

22.

This Stipulation, whether or not executed, and any proceedings taken pursuant to it:

a.

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

Defendants to enforce the laws of the United States against Yakubova applicants, consistent with the

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

b.

shall not be offered or received against the Defendants as evidence of, or

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

of the truth of any fact alleged by the Plaintiffs or the validity of any claim that had been or could have been

asserted in the Action or in any litigation, or the deficiency of any defense that has been or could have been

asserted in the Action, or of any liability, negligence, fault, or wrongdoing of the Defendants; or any admission

by the Defendants of any violations of, or failure to comply with, the Constitution, laws or regulations; and

c.

shall not be offered or received against the Defendants as evidence of a

presumption, concession, or admission of any liability, negligence, fault, or wrongdoing, or in any way referred

to for any other reason as against any of the parties to this Stipulation, in any other civil, criminal, or

8

Case 1:06-cv-03203-ERK-RLM Document 68 Filed 07/07/2008 Page 9 of 10

administrative action or proceeding, other than such proceedings as may be necessary to effectuate the

provisions of this Stipulation; provided, however, that if this Stipulation is approved by the Court, the parties

may refer to it and rely upon it to effectuate the liability protection granted them hereunder.

VII. ATTORNEYS' FEES

23.

Within 120 days of the Effective date, Defendants will deliver to Plaintiffs' Counsel the sum

of $90,000, in settlement of all claims for attorneys' fees and costs that could have been or will be claimed in

this litigation.

VIII. ADDITIONAL PROVISIONS

24.

This Stipulation, and the obligations incurred herein, shall be in full and final disposition of

the Action with prejudice, inclUding any and all Settled Claims against Defendants. On the Effective Date,

Plaintiffs shall be deemed to have fully, finally, and forever released, relinquished, and discharged the

Defendants of and from any and all Settled Claims.

25.

This Stipulation may not be modified or amended, nor may any of its provisions be waived

except by a writing signed by all parties hereto or their successors-in-interest.

26.

The waiver by one party of any breach of this Stipulation by any other party shall not be

deemed a waiver of any other prior or subsequent breach of this Stipulation.

27.

This Stipulation constitutes the entire agreement among the parties hereto concerning the

Settlement of the Action, and no representations, warranties, or inducements have been made by any party

hereto other than those contained and memorialized in such documents.

28.

This Stipulation may be executed in one or more counterparts. All executed counterparts and

each of them shall be deemed to be One and the same instrument provided that counsel for the parties to this

Stipulation shall exchange among themselves original signed counterparts.

29.

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

of the parties hereto.

9

Case 1:06-cv-03203-ERK-RLM Document 68 Filed 07/07/2008 Page 10 of 10

30.

This Stipulation shall not be construed more strictly against one party than another merely by

virtue of the fact that it, or any part ofil, may have been prepared by counsel for one ofthe parties, it being

recognized by the parties that this Stipulation is the result ofarm's length negotiations between the parties and

that all parties have contributed substantially and materially to the preparation of this Stipulation.

31.

All counsel and any other person executing this Stipulation and any of the exhibits hereto, or

any related settlement documents, warrant and represent that they have the full authority to do so and that they

have the authority to take appropriate action required or permitted to be taken pursuant to the Stipulation to

W YISROEL SCHULMAN NEW YORK LEGAL ASSISTANCE GROUP Jane Greengold Stevens Deborah Berkman Jason Parkin 450 West 33rd Street, ll'h Floor New York, NY 10001
Allorneysjor Plail7t!/ft
Dated: ~(.:=;O:.....''Z-=--_ _

ELIZA TI-J~ NS Nanc safavi Sheri Glaser Office of Immigration Litigation Civil Division United States Department of Justice 1331 Pennsylvania Avenue, N.W. Washington, D.C. 20044
BENTON J. CAMPBELL United States Attorney
.U~ Eastern .m:trict ofNe}(?r~,
XC.Q.Q.tC ,.) Q/-

Allomeysjor Dejendants

J 6' ,.{.L Dated:c3

2.GO

J

SO ORDERED: ---s:/E:-d:w-a-rd--R=.-K:o,r.m..a-n~c_t::---~---­
Hon. Edward R.tKorman United Stales District Judge Eastern District of New York

Dated: _ _I-jL..::-/--"''£L_ _ 10

 
 Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 1 of 34 PageID #: 488

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------------X RAISA YAKUBOVA, EMMA UNGURYAN, BELLA VESNOVSKAYA, DAVID VESNOVSKIY, VYACHESLAV VOLOSIKOV, ALEKSANDER GOLDBERG, MUHAMMAD SHEBBIR SAJID, and EFIM KATS on behalf of themselves and all other similarly situated individuals,

Plaintiffs,
-against-
MICHAEL CHERTOFF, in his official capacity as Secretary of the Department of Homeland Security, EMILIO GONZALEZ, in his official capacity as Director of the United States Citizenship and Immigration Services, MARY ANN GANTNER, in her official capacity as District Director of the New York City District of the United States Citizenship and Immigration Services, ALBERTO GONZALES, in his official capacity as Attorney General of the United States, and ROBERT S. MUELLER, in his official capacity as Director of the Federal Bureau of Investigation,

06 CV 3203 (ERK)(RLM) (ECF CASE)
AMENDED COMPLAINT

Defendants. ------------------------------------------------------------------X

PRELIMINARY STATEMENT

1. Plaintiffs bring this class action under the Immigration and Nationality Act

§ 336(b), codified at 8 U.S.C. § 1447(b), and the Administrative Procedure Act, 5 U.S.C.

§ 706(1) on behalf of themselves and a proposed class of similarly situated individuals

residing in Kings, Nassau, Queens, Richmond, and Suffolk counties in New York State,

who have properly submitted or will properly submit applications to be naturalized as

U.S. citizens, whose applications for naturalization are not adjudicated within 120 days

after the date of their initial examinations.

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 2 of 34 PageID #: 489
2. Plaintiffs challenge the custom and practice of Defendants CHERTOFF, GONZALEZ, and GANTNER (hereinafter “USCIS Defendants”) and Defendant GONZALES of failing to grant or deny proposed class members’ naturalization applications (1) within 120 days after the date of their initial examinations in violation of 8 C.F.R. § 335.3 and 8 U.S.C. § 1447(b) and (2) within a reasonable time in violation of 5 U.S.C. § 555(b).
3. Plaintiffs challenge the custom and practice of Defendants GONZALES and MUELLER of failing to complete within a reasonable time the criminal background checks for which the Federal Bureau of Investigation (“FBI”) is responsible and that are necessary for the adjudication of proposed class members’ naturalization applications in violation of 5 U.S.C. § 555(b).
4. Plaintiffs challenge the custom and practice of Defendants CHERTOFF, GONZALEZ, GANTNER, GONZALES and MUELLER (hereinafter “all Defendants”) of collectively failing to take all steps necessary to adjudicate proposed class members’ naturalization applications within a reasonable time in violation of 5 U.S.C. § 555(b).
5. As a result of all Defendants’ failure to take all steps necessary to adjudicate Plaintiffs’ naturalization applications and to grant or deny their naturalization applications within 120 days and a reasonable time as required by federal law, Plaintiffs have been prevented from receiving the many substantial and unique benefits of citizenship, including the right to vote, the right to obtain United States passports, the right to file visa petitions for immediate relatives as United States citizens, the protection of the United States government when outside the United States and the right to life sustaining federal benefits.
2

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 3 of 34 PageID #: 490
6. Plaintiffs seek a permanent injunction ordering: (1) USCIS Defendants and Defendant GONZALES, within thirty (30) days of this Court granting permanent relief, to identify all proposed class members as of that date, whose pending naturalization applications have not been adjudicated within 120 days of the date of their initial examinations; and (2) all Defendants collectively to establish and implement a plan of correction whereby the naturalization applications of all proposed class members identified pursuant to (1) above are granted or denied within ninety (90) days of this Court granting permanent relief.
7. Plaintiffs further seek a permanent injunction ordering: (1) USCIS Defendants and Defendant GONZALES to grant or deny the naturalization applications of all applicants residing in Kings, Nassau, Queens, Richmond, and Suffolk counties in New York State within 120 days of the date of the applicants’ initial examinations; (2) Defendants GONZALES and MUELLER to complete within a reasonable time all background checks for which the FBI is responsible and that are necessary to adjudicate the naturalization applications of all applicants residing in Kings, Nassau, Queens, Richmond, and Suffolk counties in New York State; (3) all Defendants collectively to complete all steps necessary to adjudicate the naturalization applications of all applicants residing in Kings, Nassau, Queens, Richmond, and Suffolk counties in New York State within a reasonable time.
JURISDICTION AND VENUE 8. This Court has jurisdiction over this action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and 28 U.S.C. § 1331 which vests United States
3

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 4 of 34 PageID #: 491
district courts with jurisdiction over civil actions arising under the Constitution, law, or treaties of the United States.
9. Jurisdiction is further conferred by 8 U.S.C. § 1447(b), which grants jurisdiction to the United States district court in the district in which an individual applying for naturalization resides if the individual's application for naturalization has not resulted in a determination within 120 days after the date on which an examination is conducted pursuant to 8 U.S.C. § 1446. Such district court has jurisdiction either to “determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.”1 8 U.S.C. § 1447(b).
10. Venue properly lies with this district pursuant to 28 U.S.C. § 1391(b) as Plaintiffs reside within this judicial district and a substantial part of the activities complained of occurred within this judicial district.
PARTIES Plaintiffs
11. Plaintiff RAISA YAKUBOVA resides in Queens, New York and had her naturalization examination by the United States Citizenship and Immigration Services (“USCIS”) on April 21, 2005. At the time of the filing of the original Complaint in the within action (hereinafter “the Complaint”), her application had not yet been adjudicated, although it had been over 427 days since her examination.
12. Plaintiff EMMA UNGURYAN resides in Staten Island, New York and had her naturalization examination by USCIS on October 13, 2004. At the time of the
1 In all statu tory and regulatory provisions cited in this Complaint, the term “Service” refers to the USCIS. 8 U.S.C. § 1101(a)(34); 6 U.S.C. § 271.
4

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 5 of 34 PageID #: 492
filing of the Complaint, her application had not yet been adjudicated, although it had been over 617 days since her examination.
13. Plaintiff BELLA VESNOVSKAYA resides in Brooklyn, New York and had her naturalization examination by USCIS on November 17, 2005. At the time of the filing of the Complaint, her application had not yet been adjudicated, although it had been over 217 days since her examination.
14. Plaintiff DAVID VESNOVSKIY resides in Brooklyn, New York and had his naturalization examination by USCIS on November 18, 2005. At the time of the filing of the Complaint, his application had not yet been adjudicated, although it had been over 216 days since his examination.
15. Plaintiff VYACHESLAV VOLOSIKOV resides in Brooklyn, New York and had his naturalization examination by USCIS on November 10, 2005. At the time of the filing of the Complaint, his application had not yet been adjudicated, although it had been over 224 days since his examination.
16. Plaintiff ALEKSANDER GOLDBERG resides in Brooklyn, New York and had his naturalization examination by USCIS on March 7, 2006. His application has not yet been adjudicated, although it has been over 603 days since his examination.
17. Plaintiff MUHAMMAD SHEBBIR SAJID resides in Brooklyn, New York and had his naturalization examination by USCIS on September 9, 2005. His application has not yet been adjudicated, although it has been over 782 days since his examination.
5

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 6 of 34 PageID #: 493
18. Plaintiff EFIM KATS resides in Brooklyn, New York and had his naturalization examination by USCIS on February 11, 2003. His application has not yet been adjudicated, although it has been over 1,723 days since his examination. Defendants
19. Defendant MICHAEL CHERTOFF is the Secretary of the Department of Homeland Security (“DHS”). As such, he is responsible for, inter alia, administering USCIS and assuring the implementation and enforcement of the Immigration and Nationality Act.
20. Defendant EMILIO GONZALEZ is the Director of the USCIS. As such, he is responsible for, inter alia, the administration of immigration benefits and services including the processing of naturalization applications of immigrants residing in the United States.
21. Defendant MARY ANN GANTNER is the District Director of the New York City District of the USCIS. As such, she is responsible for, inter alia, administering the immigration laws in the five New York Boroughs and nine surrounding Counties of the New York City District, including Nassau and Suffolk counties.
22. Defendant ALBERTO GONZALES is the Attorney General of the United States. As such, he is responsible for, inter alia, controlling determination of all issues of law pertaining to immigration pursuant to 8 U.S.C. § 1103 and has the sole authority to naturalize citizens of the United States pursuant to 8 U.S.C. § 1421(a). He has delegated authority and responsibility to administer all laws pertaining to immigration, naturalization and nationality to the Director of USCIS. 8 U.S.C. § 1103(a) (1); 8 C.F.R. § 100.2; 6 U.S.C. § 271(b). The Attorney General is the head of the Department of
6

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 7 of 34 PageID #: 494
Justice, and as such, is responsible for administering the FBI, which is part of the Department of Justice. 28 U.S.C.A. § 503; 28 U.S.C. § 531.
23. Defendant ROBERT S. MUELLER is the Director of the FBI. As such he is responsible for, inter alia, ensuring that a full criminal background check is completed for each individual applying to be naturalized as a U.S. citizen. Pub.L. 105-119, tit. I, 111 Stat. 2440, 2448- 49 (1997); 8 C.F.R. § 335.2(b).
CLASS ACTION ALLEGATIONS 24. Named Plaintiffs bring this action pursuant to Fed R. Civ. P. 23(a) and 23(b)(2), on behalf of themselves and a proposed class of:
All persons residing in Kings, Nassau, Queens, Richmond, and Suffolk counties in New York State, who have properly submitted or will properly submit applications to be naturalized as U.S. citizens whose naturalization applications are not adjudicated within 120 days after the date of their initial examinations. 25. This proposed class is so numerous that joinder of all members is impracticable. Already identified in paragraph 105 of this Amended Complaint are more than 100 members of the proposed class seeking the same relief as the Named Plaintiffs. 26. There are questions of fact and law common to the proposed class that predominate over any questions affecting only the individual named plaintiffs, including (1) whether USCIS Defendants’ custom and practice of failing to grant or deny proposed class members’ naturalization applications within 120 days of their initial examinations violates 8 C.F.R. § 335.3 and 8 U.S.C. § 1447(b) and within a reasonable time violates 5 U.S.C. § 555(b); (2) whether Defendants GONZALES and MUELLER’s custom and practice of failing to complete within a reasonable time the criminal background checks of proposed class members for which the FBI is responsible violates 5 U.S.C. § 555(b);
7

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 8 of 34 PageID #: 495
and (3) whether all Defendants’ custom and practice of collectively failing to take all steps necessary to adjudicate proposed class members’ applications for naturalization within a reasonable time violates 5 U.S.C. § 555(b).
27. The individual plaintiffs’ claims are typical of the claims of the proposed class. All the named plaintiff class representatives have experienced unreasonable delay in the processing of their naturalization applications; they have properly submitted applications to be naturalized, but did not receive any determinations granting or denying their naturalization applications within 120 days of the dates of their initial examinations.
28. The named plaintiffs will adequately and fairly protect the interests of all members of the proposed class, because they have the requisite personal interest in the outcome of this litigation, have no interest antagonistic to others in the proposed class, and they are represented by the New York Legal Assistance Group, whose attorneys are experienced in class action litigation generally and specifically including the rights of immigrants.
29. Declaratory and injunctive relief is appropriate with respect to the proposed class as a whole because Defendants have acted on grounds generally applicable to the proposed class as a whole.
STATUTORY AND REGULATORY SCHEME 30. The United States Constitution grants Congress the power to “establish a Uniform Rule of Naturalization.” Art. I., § 8, cl. 4. 31. The Attorney General has the “sole authority to naturalize persons as citizens of the United States.” 8 U.S.C. § 1421(a); Pub.L. No. 101-649, Title IV, 104 Stat. 4978, 5038-48 (Nov. 29, 1990).
8

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 9 of 34 PageID #: 496
32. The Attorney General has delegated the authority to administer and enforce the Immigration and Nationality Act and all other laws relating to immigration, naturalization and nationality to the Director of Immigration and Naturalization Service (“INS”). 8 C.F.R. § 100.2(a); 28 C.F.R. 0.105.
33. On March 1, 2003, INS ceased to exist and its principal functions were transferred to the newly created USCIS within Department of Homeland Security. See Homeland Security Act of 2002, Pub. L. No. 107-296, §471, 116 Stat. 2135, 2205 (codified at 6 U.S.C. § 291(a)); 8 U.S.C. § 1103(a) (1). Authority and responsibility to administer and enforce all laws pertaining to immigration, including the adjudication of naturalization applications, was transferred from the Commissioner of the INS to the Director of the USCIS. See 6 U.S.C. § 271(b)(2) ; 8 U.S.C. § 1103(a) (1).
34. In order to apply for naturalization, a lawful permanent resident must file an application for naturalization with USCIS. 8 U.S.C. § 1445(a), (b); 8 C.F.R. §§ 316.4, 334.1, 334.2.
35. USCIS immigration officers must conduct examinations of applicants for naturalization. 8 U.S.C. § 1446(a); 8 C.F.R. §§ 335.2, 332.1. The immigration officer must determine whether the application should be granted or denied, with reasons therefore. 8 U.S.C. § 1446(d).
36. Subsequent to the filing of an application for naturalization and before a person may be naturalized, USCIS must conduct a background investigation of the applicant. 8 U.S.C. § 1446(a); 8 C.F.R. §§ 335.1, 335.2.
9

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 10 of 34 PageID #: 497
37. Since 1997, Congress has also required that a complete FBI criminal background investigation be conducted on each applicant for citizenship. Pub.L. 105119, Title I, 111 Stat. 2440, 2448- 49 (1997); 8 C.F.R. § 335.2(b).
38. USCIS shall grant naturalization applications if applicants have complied with all requirements for naturalization. 8 C.F.R. § 335.3(a).
39. A decision to grant or deny the naturalization application must take place “at the time of the initial examination or within 120-days after the date of the initial examination.” 8 C.F.R. § 335.3(a).
40. USCIS may conduct a reexamination to afford the applicant an opportunity to overcome any deficiencies on the application that may arise during the initial examination. 8 C.F.R. § 335.3(b). The reexamination on the continued case must be scheduled within 120 days after the initial examination. Id.
41. 8 U.S.C. § 1447(b) and its implementing regulation, 8 C.F.R. § 310.5, grant the applicant the right, if his or her application for naturalization has not resulted in a determination within 120 days of the date of his or her examination, to apply to the United States district court for the district in which the applicant resides for a hearing on the matter.
42. Such district court has jurisdiction over the matter and may either determine the matter or remand the matter to USCIS, with appropriate instructions to determine the matter. 8 U.S.C. § 1447(b); 8 C.F.R. § 310.5.
43. 8 U.S.C. § 1571 directs that “it is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application, except that a petition for a nonimmigrant visa under
10

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 11 of 34 PageID #: 498
section 1184(c) of this title should be processed not later than 30 days after the filing of the petition.”
44. The term "immigration benefit application" means any application or petition to confer, certify, change, adjust, or extend any status granted under the Immigration and Nationality Act [8 U.S.C.A. § 1101 et seq.], including naturalization. 8 U.S.C. § 1572.
45. “The Attorney General shall take such measures as may be necessary to-(1) reduce the backlog in the processing of immigration benefit applications, with the objective of the total elimination of the backlog 1 year after November 25, 2002; (2) make such other improvements in the processing of immigration benefit applications as may be necessary to ensure that a backlog does not develop after such date; and (3) make such improvements in infrastructure as may be necessary to effectively provide immigration services.” 8 U.S.C. § 1573.
46. Section Six of the Administrative Procedure Act (“APA”) directs agencies to conclude matters presented to them “within a reasonable time.” 5 U.S.C. § 555(b). When an agency fails to conclude a matter presented to it within a reasonable time, the APA grants judicial review to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). “Agency action” is defined by the APA as “the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13).
FACTUAL ALLEGATIONS COMMON TO THE CLASS 47. USCIS Defendants and Defendant GONZALES have a custom and practice of failing to grant or deny proposed class members’ applications for
11

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 12 of 34 PageID #: 499
naturalization within 120 days of their initial examinations, and of unlawfully withholding and unreasonably delaying the adjudication of proposed class members’ applications for naturalization.
48. Defendants GONZALES and MUELLER have a custom and practice of failing to complete within a reasonable time the criminal background checks for which the FBI is responsible and that are necessary for adjudication of proposed class members’ naturalization applications.
49. All Defendants have a custom and practice of failing collectively to take all steps necessary to adjudicate proposed class members’ applications for naturalization within a reasonable time.
50. Proposed class members routinely wait six months or longer after the date of their initial examinations to receive a determination on their naturalization applications.
51. When inquiries are made regarding the status of proposed class members’ naturalization applications, USCIS Defendants routinely respond that the naturalization application cannot be determined because of pending “security checks” and/or “name checks” and/or “agency checks” and/or “background checks.”
FACTS PERTAINING TO THE NAMED PLAINTIFFS 52. Plaintiff RAISA YAKUBOVA immigrated to the United States as a refugee on November 27, 1998. Ms. YAKUBOVA submitted an application for naturalization to USCIS on February 13, 2004, after five years of lawful permanent residency.
12

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 13 of 34 PageID #: 500
53. On April 21, 2005, Ms. YAKUBOVA was interviewed by a Service Officer at USCIS in connection with her naturalization application.
54. After her initial examination, USCIS did not contact Ms. YAKUBOVA until June 21, 2006 when USCIS sent her a notice scheduling her for a fingerprinting appointment, stating “To continue processing your N-400 application, INS must send your fingerprints to the Federal Bureau of Investigation.” Ms. YAKUBOVA had already submitted her fingerprints to USCIS as required prior to her initial examination on June 3, 2004.
55. It appears that Ms. YAKUBOVA had been scheduled for fingerprinting for a second time because her first set of fingerprints have expired due to Defendants’ delay in processing her naturalization application. At the time of the filing of the Complaint, her application for naturalization had not yet been adjudicated.
56. Ms. YAKUBOVA became a citizen of the United States on July 18, 2006. 57. Plaintiff EMMA UNGURYAN immigrated to the United States as a refugee on February 19, 1998. Ms. UNGURYAN submitted an application for naturalization to USCIS on January 12, 2004, after five years of lawful permanent residency. 58. On October 13, 2004, Ms. UNGURYAN was interviewed by a Service Officer at USCIS in connection with her naturalization application. At the time of the filing of the Complaint, USCIS had not contacted Ms. UNGURYAN since the date of her initial examination, over a year and a half before. At the time of the filing of the Complaint, her application for naturalization had not yet been adjudicated. 59. Ms. UNGURYAN became a citizen of the United States on July 27, 2006.
13

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 14 of 34 PageID #: 501
60. Plaintiff BELLA VESNOVSKAYA immigrated to the United States as a refugee on October 1, 1999. Ms. VESNOVSKAYA submitted an application for naturalization to USCIS on December 13, 2004, after five years of lawful permanent residency.
61. On November 17, 2005, Ms. VESNOVSKAYA was interviewed by a Service Officer at USCIS in connection with her naturalization application. At the time of the filing of the Complaint, USCIS had not contacted Ms. VESNOVSKAYA since the date of her initial examination, over seven months before. At the time of the filing of the Complaint, her application for naturalization had not yet been adjudicated.
62. Ms. VESNOVSKAYA became a citizen of the United States on October 4, 2006.
63. Plaintiff DAVID VESNOVSKIY immigrated to the United States as a refugee on October 1, 1999. Mr. VESNOVSKIY is married to Ms. VESNOVSKAYA. Mr. VESNOVSKIY submitted an application for naturalization to USCIS on December 13, 2004, after five years of lawful permanent residency.
64. On November 18, 2005, Mr. VESNOVSKIY was interviewed by a Service Officer at USCIS in connection with his naturalization application. At the time of the filing of the Complaint, USCIS had not contacted Mr. VESNOVSKIY since the date of his initial examination, over seven months before. At the time of the filing of the Complaint, his application for naturalization had not yet been adjudicated.
65. Mr. VESNOVSKIY became a citizen of the United States on August 16, 2006.
14

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 15 of 34 PageID #: 502
66. Plaintiff VYACHESLAV VOLOSIKOV immigrated to the United States as a parolee in the public interest on November 19, 1999. Mr. VOLOSIKOV submitted an application for naturalization to USCIS on November 17, 2004, after five years of lawful permanent residency.
67. On November 10, 2005, Mr. VOLOSIKOV was interviewed by a Service Officer at USCIS in connection with his naturalization application. At the time of the filing of the Complaint, USCIS had not contacted Mr. VOLOSIKOV since the date of his initial examination, over seven months before. At the time of the filing of the Complaint, his application for naturalization had not yet been adjudicated.
68. Mr. VOLOSIKOV became a citizen of the United States on August 16, 2006.
69. Plaintiff ALEKSANDER GOLDBERG became a legal permanent resident of the United States on June 30, 2000.
70. Mr. GOLDBERG submitted an application for naturalization to USCIS on September 30, 2005, after five years of lawful permanent residency.
71. On March 7, 2006, Mr. GOLDBERG was interviewed by a Service Officer at USCIS in connection with his naturalization application. At that interview, Mr. Goldberg was told that he had passed the United States history and government and English tests, but that a decision about his application could not be made at that time. He was then told that he would be sent a letter informing him of USCIS’ decision on his application.
72. During the summer of 2006, having heard nothing from USCIS about his naturalization application, a social services organization contacted Congressman Jerrold
15

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 16 of 34 PageID #: 503
Nadler on Mr. GOLDBERG’s behalf and asked Congressman Nadler for his help in finding out the status of Mr. GOLDBERG’s naturalization application. On July 10, 2006, Congressman Nadler wrote to USCIS requesting information about Mr. GOLDBERG’s application.
73. Congressman Nadler received a response from the Department of Homeland Security dated July 18, 2006 indicating that Mr. GOLDBERG’s case was “PENDING SECURITY CHECKS.” (Emphasis in original)
74. When Mr. GOLDBERG had received no word from USCIS by September of that year, he himself contacted Congressman Nadler. On September 11, 2006, Congressman Nadler again wrote to USCIS requesting information about Mr. GOLDBERG’s application. Congressman Nadler again received a response from the Department of Homeland Security, dated September 14, 2006, indicating that Mr. GOLDBERG’s case was “PENDING SECURITY CHECKS.” (Emphasis in original)
75. When Mr. GOLDBERG had received no further communication from USCIS by November of that year, he again contacted Congressman Nadler. On November 22, 2006, Congressman Nadler again wrote to USCIS requesting information about Mr. GOLDBERG’s application. That time, Congressman Nadler received a response from the Department of Homeland Security indicating that Mr. GOLDBERG’s case was “PENDING MANDATORY SECURITY CHECKS.” (Emphasis in original)
76. When Mr. GOLDBERG had received no further communication from USCIS by February of 2007, he again contacted Congressman Nadler. On February 13, 2007, Congressman Nadler again wrote to USCIS requesting information about Mr. GOLDBERG’s application. Congressman Nadler received a response from the
16

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 17 of 34 PageID #: 504
Department of Homeland Security, dated February 20, 2007, stating that Mr. GOLDBERG was “SCHEDULED FOR A FINGERPRINT APPOINTMENT ON MARCH 9, 2007. HOWEVER, HER [sic] MANDATORY CLEARANCE BY THE FBI HAS NOT YET BEEN COMPLETED. AS SOON AS HER [sic] FINGERPRINTS AND BACKGROUND CHECKS ARE COMPLETED THE SERVICE WILL CONTACT HER [sic] REGARDING AN OATH CEREMONY.” (Emphasis in original)
77. In early March of 2006, Mr. GOLDBERG received a letter from USCIS stating that “[t]o continue processing your N-400 application, INS must send your fingerprints to the Federal Bureau of Investigation.” Mr. GOLDBERG had already submitted his fingerprints to USCIS as required prior to his initial examination.
78. Since that day, Mr. GOLDBERG has not heard from USCIS again. He attempted to call USCIS twice to get status updates on his application but was unable to get through to a representative. His application for naturalization has not yet been adjudicated.
79. Mr. GOLDBERG suffers greatly from the delay in the adjudication of his naturalization application. Mr. GOLDBERG works as a security guard, and there are many higher paying security positions for which he would like to apply but which are available only to United States citizens. Additionally, Mr. GOLDBERG is very interested in politics and longs for the day when he will be able to vote and fully participate in the democratic process of this country.
80. Plaintiff MUHAMMAD SHEBBIR SAJID immigrated to the United States with his wife and children via the Diversity Immigrant Visa Program on October
17

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 18 of 34 PageID #: 505
29, 1999. Mr. SAJID submitted an application for naturalization to USCIS during 2004, after five years of lawful permanent residency.
81. On September 9, 2005, Mr. SAJID was interviewed by a Service Officer at USCIS in connection with his naturalization application. At Mr. SAJID’s interview, he was told that he had passed the United States history and government and English tests, but that a decision about his application could not be made at that time because his case was pending with the FBI.
82. Thereafter, Mr. SAJID received no word about his application from USCIS. He tried to telephone USCIS on several occasions, but was never able to obtain any information.
83. During 2006, Mr. SAJID emailed Congressman Vito Fossella, asking Congressman Fossella to find information about Mr. SAJID’s application. In an email response, Congressman Fossella stated that he had made an inquiry to USCIS about Mr. SAJID’s case, and that USCIS said that Mr. SAJID’s case was pending.
84. During that same period, Mr. SAJID emailed and wrote a letter to Senator Charles Schumer requesting help obtaining information about his naturalization application. Senator Schumer replied to Mr. SAJID that he had contacted USCIS and that USCIS had said that Mr. SAJID’s case was pending. The letter further stated that Senator Schumer requested that Mr. SAJID’s application be expedited, and that USCIS would inform Mr. SAJID when his case had cleared.
85. During the spring of 2007, Mr. SAJID wrote a letter to USCIS’s Vermont Service Center, requesting an update about the status of his naturalization application. By letter dated March 27, 2007, the Director of the Vermont Service Center informed
18

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 19 of 34 PageID #: 506
him that the processing of his case had been delayed because “the required security checks remain pending.”
86. Since that letter, Mr. SAJID has not heard from USCIS. His application for naturalization has not yet been adjudicated.
87. Mr. SAJID suffers greatly from the delay in the adjudication of his naturalization application. Mr. SAJID’s wife and five children are all citizens of the United States, making Mr. SAJID the only member of his immediate family not to attain citizenship. Mr. SAJID greatly wants to be a citizen of the same country as his family. Additionally, Mr. SAJID wants to be able to vote and participate in the democratic process of the United States. He feels stuck in limbo, and wonders if his application will ever be adjudicated.
88. Plaintiff EFIM KATS immigrated to the United States with his wife and son via the Diversity Immigrant Visa Program in October of 1995. Mr. KATS submitted an application for naturalization to USCIS during the summer of 2002.
89. On February 11, 2003, Mr. KATS was interviewed by a Service Officer at USCIS in connection with his naturalization application. At Mr. KATS’s interview, he was told that he had passed the United States history and government and English tests, and that he would have to submit additional documentation to the Service Officer. The Service Officer also told Mr. KATS that USCIS would reach a decision on his application within two to three months.
90. Shortly thereafter, Mr. KATS mailed the requested documentation to USCIS via certified mail.
19

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 20 of 34 PageID #: 507
91. Mr. KATS heard nothing from USCIS about his naturalization application for approximately one year. He attempted to telephone USCIS on numerous occasions, but was never able to reach a representative.
92. In January of 2004, Mr. KATS received a letter from USCIS requesting that he be fingerprinted again. Mr. KATS had already been fingerprinted by USCIS as required prior to his initial examination.
93. In April of 2004, Mr. KATS received another letter from USCIS, requesting that he appear for a second naturalization interview. Mr. KATS attended this interview on April 19, 2004. At that interview, the Service Officer told Mr. KATS that he should expect to receive an invitation to an OATH ceremony in the mail within three weeks.
94. After the second interview, Mr. KATS waited without word from USCIS and without receiving an invitation to the OATH ceremony. In June of 2005, Mr. KATS’s wife and son contacted Congressman Jerrold Nadler and asked Congressman Nadler for his help to find out the status of Mr. KATS’s naturalization application. On June 2, 2005, Congressman Nadler wrote to USCIS requesting information about Mr. KATS’s application.
95. Congressman Nadler received a response from the Department of Homeland Security dated June 7, 2005 indicating that Mr. KATS’s case was “PENDING MANDATED AGENCY CHECKS.” (Emphasis in original)
96. In August of 2005, Mr. KATS again contacted Congressman Nadler requesting help finding out the status of his naturalization application. On August 16,
20

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 21 of 34 PageID #: 508
2005, Congressman Nadler again wrote to USCIS requesting information about Mr. KATS’s application.
97. In response to Congressman Nadler’s inquiries to USCIS, DHS again indicated that Mr. KATS’s application was “PENDING MANDATED AGENCY CHECKS.” (Emphasis in original)
98. In October of 2005, Mr. KATS again contacted Congressman Nadler requesting help finding out the status of his naturalization application. On October 26, 2005, Congressman Nadler again wrote to USCIS requesting information about Mr. KATS’s application. In response to Congressman Nadler’s inquiry, DHS indicated that Mr. KATS’s “FILE WAS REVIEWED ON 11/8/05. APPLICANT’S RELATED FILE IS LOCATED AT ANOTHER SERVICE CENTER. THE SERVICE CENTER WAS CONTACTED TO REQUEST THE FILE.” (Emphasis in original)
99. In January of 2006, Mr. KATS again contacted Congressman Nadler requesting help finding out the status of his naturalization application. On January 3, 2006, Congressman Nadler again wrote to USCIS requesting information about Mr. KATS’s application. In response to Congressman Nadler’s inquiry, DHS indicated that Mr. KATS’ “FILE WAS REVIEWED ON 1/13/06. APPLICANT’S RELATED FILE IS LOCATED AT ANOTHER SERVICE CENTER. THE SERVICE CENTER WAS CONTACTED TO REQUEST THE FILE.” (Emphasis in original)
100. In April of 2006, Mr. KATS again contacted Congressman Nadler requesting help finding out the status of his naturalization application. On April 6, 2006, Congressman Nadler again wrote to USCIS requesting information about Mr. KATS’s application. In response to Congressman Nadler’s inquiry, DHS once again indicated
21

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 22 of 34 PageID #: 509
that Mr. KATS’s application was “PENDING MANDATED AGENCY CHECKS.” (Emphasis in original)
101. In June of 2006, Mr. KATS again contacted Congressman Nadler requesting help finding out the status of his naturalization application. Congressman Nadler again wrote to USCIS requesting information about Mr. KATS’s application. In response to Congressman Nadler’s inquiry to USCIS, DHS indicated that Mr. KATS’s “FILE WAS REVIEWED ON 7/19/06. THE APPLICANT’S RELATED FILE IS LOCATED AT ANOTHER SERVICE CENTER. THE SERVICE CENTER WAS CONTACTED TO REQUEST THE FILE.” (Emphasis in original)
102. In November of 2006, Mr. KATS again contacted Congressman Nadler requesting help finding out the status of his naturalization application. On November 7, 2006, Congressman Nadler wrote to USCIS that “[y]our letter indicates that CIS/NY requested Mr. Kats’s related file from another Service Center. Insamuch as your request for this file was originally made in November of 2005, a second request for the file appears to be warranted.” (Emphasis in original) In response to Congressman Nadler’s letter, DHS once again indicated that Mr. KATS’s application was “PENDING MANDATED AGENCY CHECKS.” (Emphasis in original)
103. Mr. KATS has also contacted other government officials and has attempted to contact USCIS himself, to no avail. His application for naturalization has not yet been adjudicated.
104. Mr. KATS suffers greatly from the delay in the adjudication of his naturalization application. Mr. KATS’s wife and two children, his mother, father, brother and sister and other extended family members are all citizens of the United States,
22

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 23 of 34 PageID #: 510
making Mr. KATS the only member of his family not to attain citizenship. Mr. KATS
greatly wants to be a citizen of the same country as his family, and wants to be able to
vote and participate in the democratic process of the United States. Additionally, Mr.
KATS must travel frequently in Europe and worldwide for his work and, because he is
not a United States citizen, must often obtain costly visas before entering a country.
105. Also known to Plaintiffs’ Counsel are the following members of the
proposed class whose naturalization applications had not been adjudicated within 120
days of the date of their initial examinations as of the date Plaintiffs filed the Complaint:
1. Boris Iakovenko, Alien Registration No. 071-501-993, interviewed on 03/03/2005;
2. Rita Stires, Alien Registration No. 071-370-782, interviewed on 09/27/2005;
3. Elvira Raybshteyn, Alien Registration No. 071-314-016, interviewed on 02/09/2006;
4. Sergey Kurgan, Alien Registration No. 074-278-972, interviewed on 01/31/2006;
5. Leonid Iones, Alien Registration No. 071-353-013, interviewed on 09/28/2005;
6. Anatoliy Chernogor, Alien Registration No. 071-317-738, interviewed on 12/01/2005;
7. Ran Aldoubi, Alien Registration No. 074-884-413, interviewed on 02/01/2006;
8. Mikhail Khazan, Alien Registration No. 071-404-838, interviewed on 11/08/2005;
9. Galina Bukrinskaya, Alien Registration No. 071-384-962, interviewed on 01/20/2006;
10. Inna Alpina, Alien Registration No. 071-425-805, interviewed on 11/17/2005;
11. Yakov Alpin, Alien Registration No. 071-053-318, interviewed on 06/23/2004;
23

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 24 of 34 PageID #: 511
12. Santoryna Bobchynska, Alien Registration No. 046-459-687, interviewed on 06/23/2005;
13. Valeriy Goncharov, Alien Registration No. 047-138-045, interviewed on 07/22/2005;
14. Stanislava Igolnikova, Alien Registration No. 071-165-290, interviewed on 02/10/2006;
15. Vladimir Kovmir, Alien Registration No. 045-663-806, interviewed on 02/23/2005;
16. Elena Kuriss, Alien Registration No. 021-458-469, interviewed on 11/23/2005;
17. Lidiya Mindyuk, Alien Registration No. 071-403-857, interviewed on 09/02/2005;
18. David Mindyuk, Alien Registration No. 071-403-856, interviewed on 09/02/2005;
19. Leonid Nirenberg, Alien Registration No. 071-425-960, interviewed on 08/17/2004;
20. Matvey Shpitzel, Alien Registration No. 071-356-741, interviewed on 08/11/2005;
21. Anton Slautskiy, Alien Registration No. 046-796-159, interviewed on 11/04/2005;
22. Galina Vaynerman, Alien Registration No. 071-361-865, interviewed on 02/10/2006;
23. Bella Dolinov, Alien Registration No. 027-013-840, interviewed on 7/20/2004;
24. Boris Alayev, Alien Registration No. 071-343-296, interviewed on 01/25/2006;
25. Ella Aleshinskaya, Alien Registration No. 076-053-302, interviewed on 11/18/2005;
26. Lyudmila Arefyeva, Alien Registration No. 071-393-941, interviewed on 10/25/2005;
27. Boris Azizov, Alien Registration No. 076-041-525, interviewed on 12/07/2005;
24

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 25 of 34 PageID #: 512
28. Ilya Babayev, Alien Registration No. 071-303-231, interviewed on 03/30/2005;
29. Izyaslav Benimovich, Alien Registration No. 076-051-152, interviewed on 12/14/2005;
30. Leonid Berman, Alien Registration No. 071-296-124, interviewed on 09/14/2005;
31. Tatyana Bezdezhsky, Alien Registration No. 047- 521-786, interviewed on 01/20/2006;
32. Feliks Bolotin, Alien Registration No. 071-060-931, interviewed on 06/08/05;
33. Vladimir Fishman, Alien Registration No. 071-361-934, interviewed on 11/16/2005;
34. Sofia Flyuis, Alien Registration No. 045-662-979, interviewed on 08/17/2005;
35. Leonid Gindin, Alien Registration No. 071-403-272, interviewed on 11/02/2005;
36. Nina Gindina, Alien Registration No. 071-403-273, interviewed on 11/15/2005;
37. Nina Guttsayt, Alien Registration No. 071- 215-861, interviewed on 02/10/2005;
38. Yuri Intskirveli, Alien Registration No. 73-556-719, interviewed on 11/17/2005;
39. Roman Keselman, Alien Registration No. 071-362-994, interviewed on 02/08/2005;
40. Yelena Keselman, Alien Registration No. 071-362-995, interviewed on 02/08/2005;
41. Yuliy Khaykin, Alien Registration No. 071-289-513, interviewed on 05/12/2005;
42. Roza Kozlenko, Alien Registration No. 071-274-050, interviewed on 06/23/2005;
43. Vladimir Krymskiy, Alien Registration No. 071-366-382, interviewed on 12/17/2003;
25

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 26 of 34 PageID #: 513
44. Sergey Larin, Alien Registration No. 071-393-129, interviewed on 01/11/2006;
45. Nadezhda Lerner, Alien Registration No. 071-398-422, interviewed on 05/06/2005
46. Dora G. Levina, Alien Registration No. 071-263-830, interviewed on 11/29/2005;
47. Boris Lobov, Alien Registration No. 071-344-771, interviewed on 11/03/2005;
48. Aleksandr Marmulevskiy, Alien Registration No. 071-376-996, interviewed on 08/04/2004;
49. Marina Koulbitskaya, Alien Registration No. 072-556-468, interviewed on 03/10/2005;
50. Alexandre Koulbitskiy, Alien Registration No. 074-888-588, interviewed on 03/10/2005;
51. Dora Mostovaya, Alien Registration No.071-360-921, interviewed on 05/10/2005;
52. Tamara Shusterman, Alien Registration No. 071-140-777, interviewed on 06/06/2005;
53. Raisa Okun, Alien Registration No. 029-814-682, interviewed on 10/04/2005;
54. Lyudmila Olomutskaya, Alien Registration No. 076-048-455, interviewed on 11/04/2005;
55. Aleksandra Ovsyannikova, Alien Registration No. 071-289-584, interviewed on 10/26/2005;
56. Yuliya Pavlov, Alien Registration No. 046-438-131, interviewed on 12/16/2005;
57. Marat Polunovskiy, Alien Registration No. 076-058-604, interviewed on 02/03/2006;
58. Rita Rakhunova, Alien Registration No. 076-051-153, interviewed on 12/14/2005;
59. Valentina Rudenko, Alien Registration No. 047-141-778, interviewed on 01/13/2006;
26

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 27 of 34 PageID #: 514
60. Peter Sapozhnikov, Alien Registration No. 047-197-475, interviewed on 01/04/2006;
61. Lyudmila Serebro, Alien Registration No. 071-379-119, interviewed on 11/30/2005;
62. Arkadiy Sheynin, Alien Registration No. 071-422-293, interviewed on 10/26/2005;
63. Yakov Shklyarov, Alien Registration No. 071-304-342, interviewed on 02/03/2005;
64. Aleksandra Shnayder, Alien Registration No. 076-042-742, interviewed on 11/08/2005;
65. Boris Shulgin, Alien Registration No. 076-051-343, interviewed on 12/02/2005;
66. Yevgeniya Shulman, Alien Registration No. 071-380-616, interviewed on 10/02/2005;
67. Aida Sofyan, Alien Registration No. 071-131-348, interviewed on 08/03/2005;
68. Mikhail Stoyanov, Alien Registration No. 071-356-975, interviewed on 12/07/2005;
69. Emil Vitebskiy, Alien Registration No. 071-407-779, interviewed on 08/19/2005;
70. Dariy Zabezhinksiy, Alien Registration No. 071-393-940, interviewed on 10/04/2005;
71. Anatoliy Zaychik, Alien Registration No. 073-165-206, interviewed on 09/13/2005;
72. Naum Budnitskiy, Alien Registration No. 071-363-425, interviewed on 11/18/2005;
73. Jawala Singh, Alien Registration No. 042-157-340, interviewed on 11/16/2005;
74. Yuriy Shlapakov, Alien Registration No. 071-384-677, interviewed on 02/15/2006;
75. Bazya Martsinkovskaya, Alien Registration No. 076-042-984, interviewed on 01/11/2006;
27

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 28 of 34 PageID #: 515
76. Khanuk Abramov, Alien Registration No. 076-050-381, interviewed on 12/13/2005;
77. Aleksandr Stoyanov, Alien Registration No. 071-356-974, interviewed on 05/11/2004;
78. Victoria Arkhipova, Alien Registration No. 076-559-242, interviewed on 03/30/2004;
79. Schmul Azimov, Alien Registration No. 070-647-778, interviewed on 11/16/2005;
80. Sima Berezanskaya, Alien Registration No. 073-159-229, interviewed on 05/01/2003;
81. Yevgeniy Blekherman, Alien Registration No. 071-182-213, interviewed on 11/04/2005;
82. Mei Ying Wang, Alien Registration No. 045-413-175, interviewed on 03/17/2005;
83. Samuil Bykov, Alien Registration No. 072-262-170, interviewed on 02/24/2006;
84. Mei Fen Chen, Alien Registration No. 073-099-049, interviewed on 12/07/2005;
85. Qi Chen, Alien Registration No. 073-776-367, interviewed on 8/25/05;
86. Xiu Chen, Alien Registration No. 055-436-247, interviewed on 01/506/2006;
87. Zhong Shu Chen, Alien Registration No. 072-483-204, interviewed on 11/18/2005;
88. Mei Woon Cheng, Alien Registration No. 029-791-956, interviewed on 09/08/2005;
89. Lyudmila Chudnovskaya, Alien Registration No. 071-426-178, interviewed on 03/11/2005;
90. Bella Furmanova, Alien Registration No. 071-115-108, interviewed on 11/04/2005;
91. Boris Guller, Alien Registration No. 071-378-878, interviewed on 6/15/2005;
28

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 29 of 34 PageID #: 516
92. Rakhil Gurevich, Alien Registration No. 076-053-968, interviewed on 12/09/2005;
93. Iosif Kominar, Alien Registration No. 071-282-792, interviewed on 02/16/2006;
94. Khai Musya Rukhamanova, Alien Registration No. 071-961-663, interviewed on 08/04/2005;
95. Robert Kharson, Alien Registration No. 076-057-089, interviewed on 12/28/2005;
96. Aleksandr Krapivin, Alien Registration No. 076-040-537, interviewed on 05/06/2005;
97. Aleksander Krayets, Alien Registration No. 071-337-223, interviewed on 01/19/2004;
98. Meri Kupershtokh, Alien Registration No. 076-040-488, interviewed on 12/15/2005;
99. Fong Chin Lau, Alien Registration No. 042-732-500, interviewed on 10/28/2005;
100. Yu Nong Li, Alien Registration No. 073-163-948, interviewed on 08/16/2005;
101. Qin Lin, Alien Registration No. 047-176-919, interviewed on 11/16/2005;
102. Li Ying Zheng, Alien Registration No. 047-555-491, interviewed on 01/11/2006;
103. Arkadiy Mekhov, Alien Registration No. 071-306-485, interviewed on 01/22/2005;
104. Cai Ping Mu, Alien Registration No. 046-874-140, interviewed on 05/10/2005;
105. Bahman Niknam, Alien Registration No. 071-754-447, interviewed on 12/20/2005;
106. Sevil Orudzheva, Alien Registration No. 071-303-239, interviewed on 08/03/2005;
107. Samuil Rubinchik, Alien Registration No. 076-048-606, interviewed on 12/06/2005;
29

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 30 of 34 PageID #: 517
108. Lev Shapiro, Alien Registration No. 071-390-713, interviewed on 04/14/2005;
109. Xe Juan Zhang, Alien Registration No. 046-473-974, interviewed on 03/16/2005;
110. Grgoriy Tauber, Alien Registration No. 074-844-652, interviewed on 06/08/2005;
111. Teymur Khaimov, Alien Registration No. 071-068-639, interviewed on 08/04/2005;
112. Nataliya Titova, Alien Registration No. 045-193-940, interviewed on 12/27/2005;
113. Galina Usherenko, Alien Registration No. 071-369-525, interviewed on 11/22/2005;
114. Galina Veksler, Alien Registration No. 071-376-597, interviewed on 08/02/2005;
115. Olga Vinokurova, Alien Registration No. 076-059-081, interviewed on 02/12/2006;
116. Hun Zhuang Xiao, Alien Registration No. 047-165-867, interviewed on 09/13/2005;
117. Yu Yun Xiao, Alien Registration No. 070-174-480, interviewed on 04/20/2005; and
118. Ye Qing Yang, Alien Registration No. 070-307-095, interviewed on 04/19/2005. STATEMENT OF CLAIMS FIRST CLAIM FOR RELIEF
106. USCIS Defendants' custom and practice of failing to grant or deny proposed class members’ applications for naturalization within 120 days of the date of their initial examinations violates 8 C.F.R. § 335.3 and 8 U.S.C. § 1447(b).
30

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 31 of 34 PageID #: 518
SECOND CLAIM FOR RELIEF 107. USCIS Defendants' custom and practice of failing to grant or deny proposed class members’ applications for naturalization within a reasonable time violates 5 U.S.C. § 555(b).
THIRD CLAIM FOR RELIEF 108. Defendants GONZALES and MUELLER’s custom and practice of failing to complete within a reasonable time the background checks for which the FBI is responsible and that are necessary to adjudicate proposed class members' applications for naturalization violates 5 U.S.C. § 555(b).
FOURTH CLAIM FOR RELIEF 109. All Defendants’ custom and practice of collectively failing to take all steps necessary to adjudicate proposed class members' applications for naturalization within a reasonable time violates 5 U.S.C. § 555(b).
REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment in their favor as follows: 110. Certify this action as a class action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2) with a Plaintiff class defined as:
All persons residing in Kings, Nassau, Queens, Richmond and Suffolk counties in New York State, who have properly submitted or will properly submit applications to be naturalized as U.S. citizens, whose naturalization applications are not adjudicated within 120 days after the date of their initial examinations. 111. Issue a declaratory judgment declaring that:
31

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 32 of 34 PageID #: 519
(a) USCIS Defendants and Defendant GONZALES’ custom and practice of failing to grant or deny class members’ applications for naturalization within 120 days of the date of their initial examination violates 8 C.F.R § 335.3(a) and 8 U.S.C. § 1447(b);
(b) USCIS Defendants and Defendant GONZALES’ custom and practice of failing to grant or deny class members’ naturalization applications within a reasonable time violates 5 U.S.C. § 555(b);
(c) Defendants GONZALES and MUELLER’s custom and practice of failing to complete within a reasonable time the background checks for which the FBI is responsible and that are necessary to determine class members' naturalization applications violates 5 U.S.C. § 555(b);
(d) All Defendants’ custom and practice of collectively failing to take all steps necessary to adjudicate class members' naturalization applications within a reasonable time violates 5 U.S.C. § 555(b). 112. Issue a permanent injunction ordering:
(a) USCIS Defendants and Defendant GONZALES, within thirty (30) days of this Court granting permanent relief, to identify all class members as of that date whose pending naturalization applications have not been adjudicated within 120 days of the date of their initial examinations;
(b) all Defendants collectively to establish and implement a plan of correction whereby the naturalization applications of all class
32

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 33 of 34 PageID #: 520
members identified pursuant to paragraph 81(a) above are granted or denied within ninety (90) days of this Court granting permanent relief;
(c) USCIS Defendants and Defendant GONZALES to grant or deny the naturalization applications of all applicants residing in Kings, Nassau, Queens, Richmond, and Suffolk counties in New York State within 120 days of the date of the applicants’ initial examinations;
(d) Defendants GONZALES and MUELLER to complete within a reasonable time all background checks for which the FBI is responsible and that are necessary to adjudicate the naturalization applications of all applicants residing in Kings, Nassau, Queens, Richmond, and Suffolk counties in New York State;
(e) all Defendants collectively to complete all steps necessary to adjudicate the naturalization applications of all applicants residing in Kings, Nassau, Queens, Richmond, and Suffolk counties in New York State within a reasonable time; 113. Award reasonable attorneys fees, costs and disbursements pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A); and
33

Case 1:06-cv-03203-ERK-RLM Document 50 Filed 11/13/07 Page 34 of 34 PageID #: 521

 
 Case: 1:06-cv-3203 As of: 05/07/2013 03:23 PM EDT 1 of 8
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:06−cv−03203−ERK−RLM

CLOSED

Yakubova et al v. Chertoff et al Assigned to: Judge Edward R. Korman Referred to: Magistrate Judge Roanne L. Mann Cause: 05:702 Administrative Procedure Act
Plaintiff Raisa Yakubova

Date Filed: 06/28/2006 Date Terminated: 07/03/2008 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by Caroline Jane Hickey New York Legal Assistance Group 450 West 33rd Street 11th Floor New York, NY 10001 212−613−5077 Fax: 212−750−0820 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Greengold Stevens New York Legal Assistance Group 450 West 33rd Street 11th Floor New York, NY 10001 (212) 750−0800 ext. 207 Fax: (212) 750−0820 Email: jstevens@nylag.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Parkin Jerome N. Frank Legal Services Organization Yale Law School P.O. Box 209090 New Haven, CT 06520−9090 203−432−8294 Fax: 203−432−1426 Email: jason.parkin@yale.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah Berkman New York Legal Assistance Group 450 West 33rd Street 11th Floor New York, NY 10001 UNITE 212−613−5000 Fax: 212−750−0800 Email: dberkman@nylag.org ATTORNEY TO BE NOTICED

Michael D. Sant 'Ambrogio 261 West 21st Street, #25 New York, NY 10011 917−957−9424 Email: mdsantambrogio@gmail.com ATTORNEY TO BE NOTICED

Case: 1:06-cv-3203 As of: 05/07/2013 03:23 PM EDT 2 of 8

Plaintiff Emma Unguryan
Plaintiff Bella Vesnovskaya
Plaintiff David Vesnovskiy

represented by Caroline Jane Hickey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Parkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Berkman (See above for address) ATTORNEY TO BE NOTICED
Jane Greengold Stevens (See above for address) ATTORNEY TO BE NOTICED
Michael D. Sant 'Ambrogio (See above for address) ATTORNEY TO BE NOTICED
represented by Caroline Jane Hickey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Parkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Berkman (See above for address) ATTORNEY TO BE NOTICED
Jane Greengold Stevens (See above for address) ATTORNEY TO BE NOTICED
Michael D. Sant 'Ambrogio (See above for address) ATTORNEY TO BE NOTICED
represented by Caroline Jane Hickey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Parkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Berkman (See above for address) ATTORNEY TO BE NOTICED
Jane Greengold Stevens

Case: 1:06-cv-3203 As of: 05/07/2013 03:23 PM EDT 3 of 8

(See above for address) ATTORNEY TO BE NOTICED

Michael D. Sant 'Ambrogio (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Vyacheslav Volosikov

represented by Caroline Jane Hickey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Deborah Berkman (See above for address) ATTORNEY TO BE NOTICED

Jane Greengold Stevens (See above for address) ATTORNEY TO BE NOTICED

Michael D. Sant 'Ambrogio (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Shehata Awad Ibrahim on behalf of themselves and all other similarly situated individuals

represented by Caroline Jane Hickey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Deborah Berkman (See above for address) ATTORNEY TO BE NOTICED

Jane Greengold Stevens (See above for address) ATTORNEY TO BE NOTICED

Michael D. Sant 'Ambrogio (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Michael Chertoff in his offical capacity as Secretary of the Department of Homeland Security

represented by Scott Dunn United States Attorneys Office Civil Division Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201−1820

Case: 1:06-cv-3203 As of: 05/07/2013 03:23 PM EDT 4 of 8
(718) 254−6029 Fax: 718−254−6081 Email: Scott.Dunn@usdoj.gov ATTORNEY TO BE NOTICED
Defendant
Emilio Gonzalez in his official capacity as the Director of the United States Citizenship and Immigration Services
Defendant
Mary Ann Gantner in her official capacity as the Director of the United States Citizenship and Immigration Services
Defendant
Alberto Gonzales in his official capacity as Attorney General of the United States
Defendant
Robert S. Mueller in his official capacity as the Director of the Federal Bureau of Investigations

Date Filed 06/28/2006
06/28/2006
06/29/2006 06/29/2006 06/29/2006 06/29/2006 06/29/2006 06/29/2006 06/29/2006 06/29/2006

# Docket Text
1 COMPLAINT against Emilio Gonzalez, Mary Ann Gantner, Alberto Gonzales, Robert S. Mueller, Michael Chertoff Summons not issued., filed by Raisa Yakubova, Emma Unguryan, Bella Vesnovskaya, David Vesnovskiy, Vyacheslav Volosikov, Shehata Awad Ibrahim. (Attachments: # 1 Civil Cover Sheet)(Bowens, Priscilla) (Entered: 06/29/2006)
2 MOTION for Leave to Proceed in forma pauperis by Raisa Yakubova, Emma Unguryan, Bella Vesnovskaya, David Vesnovskiy, Vyacheslav Volosikov, Shehata Awad Ibrahim. (Bowens, Priscilla) (Entered: 06/29/2006)
3 MOTION for Preliminary Injunction and Class Certification by all plaintiffs. (Stevens, Jane) (Entered: 06/29/2006)
4 AFFIDAVIT of Raisa Yakubova in Support of Order to Show Cause by Raisa Yakubova. (Stevens, Jane) (Entered: 06/29/2006)
5 AFFIDAVIT of Emma Unguryan in Support of Order to Show Cause by Emma Unguryan. (Stevens, Jane) (Entered: 06/29/2006)
6 AFFIDAVIT of Bella Vesnovskaya in Support of Order to Show Cause by Bella Vesnovskaya. (Stevens, Jane) (Entered: 06/29/2006)
7 AFFIDAVIT of David Vesnovskiy in Support of Order to Show Cause by David Vesnovskiy. (Stevens, Jane) (Entered: 06/29/2006)
8 AFFIDAVIT of Vyacheslav Volosikov by Vyacheslav Volosikov. (Stevens, Jane) (Entered: 06/29/2006)
9 AFFIDAVIT of Shehata Awad Ibrahim in Support of Order to Show Cause by Shehata Awad Ibrahim. (Stevens, Jane) (Entered: 06/29/2006)
10 AFFIDAVIT of Deborah Berkman in Support of Order to Show Cause by Raisa Yakubova. (Stevens, Jane) (Entered: 06/29/2006)

Case: 1:06-cv-3203 As of: 05/07/2013 03:23 PM EDT 5 of 8

06/29/2006 06/30/2006 06/30/2006 06/30/2006 07/06/2006 07/06/2006 07/19/2006
07/31/2006
07/31/2006 07/31/2006 07/31/2006 08/02/2006
08/08/2006 08/10/2006
09/01/2006
09/01/2006 09/01/2006 09/22/2006
10/06/2006 10/06/2006

11 NOTICE of Appearance by Caroline Jane Hickey on behalf of all plaintiffs (Hickey, Caroline) (Entered: 06/29/2006)
12 NOTICE of Appearance by Deborah Berkman on behalf of all plaintiffs (Berkman, Deborah) (Entered: 06/30/2006)
Email Notification Test − DO NOT REPLY (Fernandez, Erica) (Entered: 06/30/2006)
Judge Edward R. Korman added. Judge Frederic Block no longer assigned to case. (Brown, Marc) (Entered: 06/30/2006)
13 AFFIDAVIT OF SERVICE OF SUMMONS AND COMPLAINT by Raisa Yakubova. (Berkman, Deborah) (Entered: 07/06/2006)
14 AFFIDAVIT AFFIRMATION OF SERVICE OF SUMMONS AND COMPLAINT by Raisa Yakubova. (Berkman, Deborah) (Entered: 07/06/2006)
15 Letter dated 7/5/06 from Scott Dunn to Judge Korman, requesting that the Order to Show Cause be set for 7/27/06 at 2:00, or another date and time near that date convenient to the court. (Piper, Francine) (Entered: 07/19/2006)
16 MEMORANDUM in Opposition TO PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION AND FOR CLASS CERTIFICATION by Michael Chertoff. (Dunn, Scott) (Entered: 07/31/2006)
17 AFFIDAVIT in Opposition DECLARATION OF GLEN ANDREW SCOTT by Michael Chertoff. (Dunn, Scott) (Entered: 07/31/2006)
18 AFFIDAVIT in Opposition DECLARATION OF MICHAEL A. CANNON by Michael Chertoff. (Dunn, Scott) (Entered: 07/31/2006)
19 AFFIDAVIT in Opposition DECLARATION OF MARY ANN GANTNER by Michael Chertoff. (Dunn, Scott) (Entered: 07/31/2006)
20 Letter withdrawing request for preliminary injunction and requesting adjournment of that part of plaintiffs' Order to Show Cause regarding class certification by Raisa Yakubova. (Berkman, Deborah) (Entered: 08/02/2006)
21 Letter regarding scheduling by Raisa Yakubova. (Berkman, Deborah) (Entered: 08/08/2006)
22 Letter dated 8/2/06 from Jane Greengold Stevens to Judge Korman, writing to inform the court that as a result of successful negotiations, pltfs. withdraw without prejudice to renew their request for a preliminary injunction. (Greene, Donna) (Entered: 08/10/2006)
23 MEMORANDUM in Support MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS AND IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION by Michael Chertoff. (Dunn, Scott) (Entered: 09/01/2006)
24 AFFIDAVIT in Support DECLARATION OF GWYNNE K. MacPHERSON by Michael Chertoff. (Dunn, Scott) (Entered: 09/01/2006)
25 AFFIDAVIT in Support SUPPLLEMENTAL DECLARATION OF MICHAEL A. CANNON by Michael Chertoff. (Dunn, Scott) (Entered: 09/01/2006)
26 MEMORANDUM in Opposition to Defendants Motion to Dismiss and in Further Support of Plaintiffs' Motion for Class Certification by all plaintiffs. (Hickey, Caroline) (Entered: 09/22/2006)
27 NOTICE by Michael Chertoff NOTICE OF MOTION (Dunn, Scott) (Entered: 10/06/2006)
28 REPLY in Support REPLY MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS by Michael Chertoff. (Attachments: # 1 Attachment)(Dunn, Scott) (Entered: 10/06/2006)

Case: 1:06-cv-3203 As of: 05/07/2013 03:23 PM EDT 6 of 8

10/18/2006 10/18/2006 10/26/2006 11/02/2006
11/02/2006 11/09/2006
11/21/2006 12/06/2006 12/07/2006
12/15/2006 02/27/2007 03/01/2007 03/02/2007 03/02/2007 05/03/2007 05/04/2007 06/11/2007 06/12/2007
10/02/2007

NOTICE:The hearing currently scheduled for 10/20/2006 @ 10:00am is ADJOURNED to Thurs., Oct. 26, 2006 @ 3:00pm. The parties are to confirm with each other. (Korman, Edward) (Entered: 10/18/2006)
29 Letter by Michael Chertoff. (Attachments: # 1)(Dunn, Scott) (Entered: 10/18/2006)
30 Minute Entry for proceedings held before Edward R. Korman : Motion Conference held on 10/26/2006. Argument heard. Decision entered on the record. Written order to issue. (Court Reporter Loan Hong.) (Piper, Francine) (Entered: 11/01/2006)
31 ORDER denying 3 Motion for Preliminary InjunctionThe defendants? motion to dismiss is denied except as to plaintiff Shehata Awadibrahim, as to whom the motion is granted without prejudice due to his imminent naturalization by CIS. The plaintiffs? motion for class certification and defendants? motion to sever the action are denied as premature without prejudice to renewal after the completion of discovery. . Ordered by JudgeEdward R. Korman on Nov. 1, 2006. (Korman, Edward) (Entered: 11/02/2006)
32 SCHEDULING ORDER: Initial Conference set for 12/7/2006 12:00 PM in 13C South before Magistrate−Judge Roanne L. Mann. Ordered by Judge Roanne L. Mann on 11/02/06. (Maynard, Pat) (Entered: 11/02/2006)
33 ORDER endorsed on letter dated 6/28/06 from Scott Dunn to Mag. Mann. The applicationis is granted. OSC on 7/27/06 at 3pm before J. Korman. Movant to notify all parties. Ordered by Judge Edward R. Korman on 7/7/06. (Greene, Donna) (Entered: 11/09/2006)
34 ANSWER to Complaint by Michael Chertoff.(Dunn, Scott) (Entered: 11/21/2006)
35 NOTICE of Appearance by Jason Parkin on behalf of all plaintiffs (Parkin, Jason) (Entered: 12/06/2006)
36 Minute Entry for proceedings held before Roanne L. Mann : Initial Conference Hearing held on 12/7/2006. Fact discovery to be completed by 6/29/07. Next settlement conference scheduled for 7/31/07 at 2:00 p.m. (Maynard, Pat) (Entered: 12/07/2006)
37 TRANSCRIPT of Civil Cause for Conference held on 10/26/06 before Judge Edward R. Korman. Court Reporter: Rosalie Lombardi. (Drayton, Lorraine) (Entered: 12/15/2006)
38 STIPULATION AND CONFIDENTIALITY ORDER by Michael Chertoff (Dunn, Scott) (Entered: 02/27/2007)
39 ORDER re 38 Stipulation filed by Michael Chertoff. This Court approves the Stipulation and Confidentiality Order. Ordered by Judge Roanne L. Mann on 02/28/07. (Maynard, Pat) (Entered: 03/01/2007)
40 Stipulation and Confidentiality order. Ordered by Judge Edward R. Korman on 3/1/07. C/M by Chambers. (DiLorenzo, Krista) (Entered: 03/02/2007)
41 Mail Returned as Undeliverable. Order sent to William Costigan, Esq. (DiLorenzo, Krista) (Entered: 03/02/2007)
42 STIPULATION − Supplemental Stipulation and Confidentiality Order by Michael Chertoff (Dunn, Scott) (Entered: 05/03/2007)
43 ORDER re 42 Stipulation filed by Michael Chertoff. SO−ORDERED. Ordered by Judge Roanne L. Mann on 05/04/07. (Maynard, Pat) (Entered: 05/04/2007)
44 Letter Requesting Extension of Discovery Deadlines by Raisa Yakubova (Berkman, Deborah) (Entered: 06/11/2007)
45 ORDER re 44 Letter filed by Raisa Yakubova. Application granted. Fact discovery is extended to 10/22/07. The 7/31/07 settlement conference is adjourned to 12/7/07 at 9:30 a.m. Ordered by Judge Roanne L. Mann on 06/12/07. (Maynard, Pat) (Entered: 06/12/2007)
46 Letter Requesting Extension of Discovery Deadlines by Raisa Yakubova (Berkman, Deborah) (Entered: 10/02/2007)

Case: 1:06-cv-3203 As of: 05/07/2013 03:23 PM EDT 7 of 8

10/02/2007 10/03/2007 11/13/2007 11/13/2007 11/14/2007 12/06/2007 12/07/2007 12/20/2007 05/27/2008 05/29/2008 05/29/2008 05/30/2008 06/04/2008 06/04/2008 06/16/2008
06/23/2008

47 ENDORSED ORDER re 46 Letter filed by Raisa Yakubova. The parties' joint application to extend discovery is granted. The 12/7/07 settlement conference is adjourned to 5/30/07 at 10:00 a.m. Ordered by Judge Roanne L. Mann on 10/02/07. (Maynard, Pat) (Entered: 10/02/2007)
48 CORRECTED ENDORSED ORDER re 47 Order. Letter filed by Raisa Yakubova. The parties' joint application to extend discovery is granted. The 12/7/07 settlement conference is adjourned to 5/30/08 at 10:00 a.m. Disregard docket #47.. Ordered by Judge Roanne L. Mann on 10/02/07. (Maynard, Pat) (Entered: 10/03/2007)
49 STIPULATION to File an Amended Complaint by Raisa Yakubova, Emma Unguryan, Bella Vesnovskaya, David Vesnovskiy, Vyacheslav Volosikov, Shehata Awad Ibrahim (Parkin, Jason) (Entered: 11/13/2007)
50 AMENDED COMPLAINT against all defendants, filed by Raisa Yakubova, Emma Unguryan, Bella Vesnovskaya, David Vesnovskiy, Vyacheslav Volosikov, Shehata Awad Ibrahim. (Parkin, Jason) (Entered: 11/13/2007)
51 SO−ORDERED re 49 Stipulation To File An Amended Complaint filed by Vyacheslav Volosikov, Raisa Yakubova, Emma Unguryan, Bella Vesnovskaya, David Vesnovskiy, Shehata Awad Ibrahim. Ordered by Magistrate−Judge Roanne L. Mann on 11/14/07. (Maynard, Pat) (Entered: 11/14/2007)
52 DEFENDANT'S ANSWER to 50 Amended Complaint by Michael Chertoff. (Dunn, Scott) (Entered: 12/06/2007)
53 NOTICE by Michael Chertoff Defendant's Electronic Filing As Of December 6, 2007 (Dunn, Scott) (Entered: 12/07/2007)
54 NOTICE of Appearance by Michael D. Sant 'Ambrogio on behalf of Raisa Yakubova, Emma Unguryan, Bella Vesnovskaya, David Vesnovskiy, Vyacheslav Volosikov, Shehata Awad Ibrahim (aty to be noticed) (Sant 'Ambrogio, Michael) (Entered: 12/20/2007)
55 Letter to Honorable Roanne L. Mann in anticipation of the conference now scheduled in this matter for May 30, 2008 by Emilio Gonzalez, Mary Ann Gantner, Alberto Gonzales, Robert S. Mueller, Michael Chertoff (Attachments: # 1 FBI BP) (Dunn, Scott) (Entered: 05/27/2008)
56 Letter to Magistrate Judge Mann in advance of the conference scheduled for May 30, 2008 by Raisa Yakubova (Berkman, Deborah) (Entered: 05/29/2008)
57 Letter to Honorable Roanne L. Mann in response to plaintiffs' letter dated May 29, 2008 by Emilio Gonzalez, Mary Ann Gantner, Alberto Gonzales, Robert S. Mueller, Michael Chertoff (Attachments: # 1 E−mails) (Dunn, Scott) (Entered: 05/29/2008)
58 Minute Entry for proceedings held before Magistrate Judge Roanne L. Mann:Settlement Conference held on 5/30/2008. Next status conference scheduled for 6/5/08 9:00 a.m. (by phone). (Maynard, Pat) (Entered: 05/30/2008)
59 Letter to Honorable Roanne L. Mann requesting adjournment by Michael Chertoff (Dunn, Scott) (Entered: 06/04/2008)
60 ORDER re 59 : Application granted, on consent. Tomorrow's conference is adjourned to 6/16/08 at 9:30 a.m. Ordered by Magistrate Judge Roanne L. Mann on 6/4/08. (Maynard, Pat) (Entered: 06/04/2008)
61 Minute Entry for proceedings held before Magistrate Judge Roanne L. Mann:Status Conference and Telephone Conference held on 6/16/2008. The parties are close to settlement and are granted an additional week to resolve their remaining issues. Next telephonic status conference scheduled for 6/23/08 at 12:30 p.m. (Maynard, Pat) (Entered: 06/16/2008)
62 Minute Entry for proceedings held before Magistrate Judge Roanne L. Mann:Telephone Conference held on 6/23/2008. At the parties' request, the Court schedules a follow−up settlement conference. The parties shall submit a status report by 6/25/08. Next settlement conference scheduled for 6/27/08 at 11:30 a.m. (Maynard, Pat) (Entered: 06/23/2008)

Case: 1:06-cv-3203 As of: 05/07/2013 03:23 PM EDT 8 of 8

06/25/2008 06/26/2008 07/02/2008 07/02/2008
07/03/2008
07/07/2008 07/07/2008

63 Letter to inform Magistrate Judge Mann of status of settlement negotiations and to request adjournment of settlement conference by Raisa Yakubova (Berkman, Deborah) (Entered: 06/25/2008)
64 ENDORSED ORDER re 63 Letter filed by Raisa Yakubova. Application granted. Tomorrow's settlement conference is adjourned sine die. A telephonic status conference will be held on Wednesday, 7/2/08 at 12:15 p.m. Ordered by Magistrate Judge Roanne L. Mann on 06/26/08. (Maynard, Pat) (Entered: 06/26/2008)
65 Letter to Magistrate Judge Mann regarding telephone status conference by Raisa Yakubova (Berkman, Deborah) (Entered: 07/02/2008)
66 ENDORSED ORDER re 65 Letter filed by Raisa Yakubova. The parties have informed the Court that the case has settled and requests that the telephone conference scheduled for today be cancelled. The parties application is granted. Ordered by Magistrate Judge Roanne L. Mann on 07/02/08. (Maynard, Pat) (Entered: 07/02/2008)
Civil Case Terminated. It having been reported to the Court that the above action has been settled, it is ORDERED that the action is hereby discontinued, without prejudice to the right to reopen the action if the settlement is not consummated. Ordered by Senior Judge Edward R. Korman on July 3, 2008. (Susi, PaulaMarie) (Entered: 07/03/2008)
67 STIPULATION AND AGREEMENT OF RELEASE by Michael Chertoff (Dunn, Scott) (Entered: 07/07/2008)
68 STIPULATION AND AGREEMENT OF SETTLEMENT AND RELEASE. Ordered by Senior Judge Edward R. Korman on 7/8/08. (Greene, Donna) (Entered: 07/07/2008)