1 AlanR. Diamant~ (Cal. SBN 180149) LAW OFFICE Or ALAN R. DIAMANTE / by
2 Brent W. Renison (Ore. SBN 96475) PARRILLI RENISDN LLC
3 5285 SW Meadows Rd;< Ste 175 Lake Oswego, Oregon ~7035
4 Telephone: (503) 5')7-7190 FacsImile: (503) 726-0730
5 brent@entrylaw.com

6 Attorneys for Plaintiffs-Petitioners and Class Members
7

8

UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11

12 CAROLYN ROBB HOOTKINS, ANA ) CVNO.

13 MARIA MONCAYO-GIGAX, (cont.), on )

behalf of themselves and all others

)

14 similarly situated,
15 Plaintiffs-petitioners,
16

) PETITION FOR WRIT OF ) MANDAMUS AND COMPLAINT FOR ) DECLARATORY AND INJUNCTIVE
) RELIEF

17

vs.

)

) CLASS ACTION

18 MICHAEL CHERTOFF, Secretary, U.S. )

19 Department of Homeland Security;

)

20 EMILIO GONZALEZ, Director, U.S.

)

Citizenship and Immigration Services; )

21 CONDOLEEZZA RICE, Secretary of )

22 State, U.S. Department of State; MADRA )

HARTY, Assistant Secretary for Consular )

23 Affairs, U.S. Department of State,

)

24

)

25 ________~D~e~fu=n~d=an=t~s-~re=srP=on=d=e=n=ts~.____)

26

27

28

-1CLASS ACTION COMPLAINT

1

2

3

4

5

6

7

8

9

10

11

12 (Plaintiffs-petitioners cont.) SUZANNE 13 HENRIETTE DE MAILLY, SARA CRUZ

14 VARGAS DE FISHER, RAYMOND

15 LOCKETT, ELSA CECILIA BRENTESON, PAULINE MARIE
16 GOBEIL, DAHIANNA HEARD, ROSE

17 FREEDA FISHMAN-CORMAN, KHIN

18 THIDAR WIN, DIANA GEJAC

19 ENGSTROM, MARIA DEL CARMEN
m DIAZ-RUIZ, GLADYS WALSH, LI

20 LU, YELENA ARIAS ANGULO, PURITA

21 MANUEL POINTDEXTER, TRACY LEE

22 RUDL, DIEU NGOC NGUYEN,

23 AGNIESZKA BERNSTEIN, SARAH BAYOR, STELLA STANDIFER, AND
24 FARAH BATOOL, on behalf of

25 themselves and all others similarly situated,

26

Plaintiffs-petitioners

27

28

-2CLASS ACTION COMPLAINT

1

PETITION FOR WRIT OF MANDAMUS AND

2 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

3

Plaintiffs-petitioners challenge defendants-respondents'

spouses of each tragically died while plaintiffs-petitioners' immigration
7
applications were filed and awaiting agency action. Plaintiffs-petitioners 8
respectfully petition this Court for injunctive, declaratory and mandamus 9
relief to compel defendants-respondents and their subordinates to: (a) find 10
that, as a matter of statutory interpretation, plaintiffs-petitioners remain 11 12 "immediate relatives" under INA § 20l(b)(2)(A)(i), 8 U.S.C.
13 § l15l(b)(2)(A)(i) due to marriage to United States citizens; (b) reopen and 14 readjudicate the immigrant petitions (1-130 petitions) that were filed on
15 behalf ofplaintiffs-petitioners by the U.S. citizen spouse; and (c) reopen and
16 readjudicate the (i) adjustment of status applications (1-485 applications) that
17 plaintiffs-petitioners filed as immediate relative spouses of U.S. citizens; or
18 (ii) the immigrant visa applications (DS-230 applications) that plaintiffs-
19 petitioners filed as immediate relative spouses of U.S. citizens. Plaintiffs-
20 petitioners allege as follows:

21

JURISDICTION

22

1. This action arises under the Immigration and Nationality Act of

23 1952 ("INA"), 8 U.S.c. § l15l(b)(2)(A)(i) and 8 U.S.C. § 1255. This Court

24 has jurisdiction over this action under 28 U.S.C. § 1331 (federal question),

25 the INA, the Administrative Procedure Act, 5 U.s.C. § 701 et seq., and the

26 Mandamus Act, 28 U.S.c. § 1361. Plaintiffs-petitioners additionally seeks

27 relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et. seq.

28 (declaratory relief).

-3CLASS ACTION COMPLAINT

I

. VENUE

2

2. Venue is proper in this Court under 28 U.S.C. § 1391(e)

3 because defendants Michael Chertoff, Emilio Gonzalez, Condoleezza Rice
4 and Maura Harty are officers of the United States acting in their official
5 capacities, and the Department of Homeland Security ("DHS"), the United 6 States Citizenship and Immigration Services ("USerS") and the United 7 States Department of State ("State Department") are agencies of the United 8
States. Additionally, plaintiffs-petitioners Carolyn Robb Hootkins, Ana 9
Maria Moncayo-Gigax, Susanne De Mailly, Sara Cruz Vargas De Fisher, 10
and many class members reside in this judicial district. Further, a substantial 11 12 part of the events giving rise to the claim occurred in this district, in that the

13 Los Angeles District Office of USCIS, an agency ofDHS located at 300 Los 14 Angeles Street, Los Angeles, California 90012, was the local office that

15 denied many of plaintiffs-petitioners' immigration petitions and 16 applications, as well as petitions and applications filed by class members.

17

EXHAUSTION

18

3. There are no administrative remedies available for plaintiffs-

19 petitioners to exhaust.

20

4. There is no administrative appeal ofthe denial of an application

21 for adjustment of Status (I-485). 8 CFR § 245.2(a)(5)(ii).

22

5. There is no administrative appeal of a denial of an immigrant

23 visa application (DS-230) abroad. 22 C.F.R. § 42.81.

24

6. While plaintiffs-petitioners who filed to adjust status (1-485)

25 may renew the adjustment of status application in removal proceedings 26 before the Executive Office for Immigration Review ("EOIR"), initiation of 27 removal proceedings is at the sole discretion ofDHS, and DHS has not 28 elected to initiate removal proceedings against most plaintiffs-petitioners

-4CLASS ACTION COMPLAINT

1 and class members. One cannot apply for initiation of removal proceedings.

2 As such this is not a mandatory exhaustion requirement and cannot be

3 imposed on Petitioner's APA action. See Darby v. Cisneros, 509 U.S. 137

4 (1993).

5

7. There also is no administrative appeal of the 1-130 immigrant

6 petition, even before EOIR, because the Board ofImmigration Appeals

7 ("BIA") has held that the immigration courts (within EOIR) and the BIA

8 (administrative courts of limited and not general jurisdiction) lack
9 jurisdiction under the administrative regulations to review such a denial.
10 See Matter ojSano, 19 I&N Dec. 299 (BIA 1985). Both procedures for
11 obtaining lawful permanent resident status, the adjustment of status (1-485)
12

and immigrant visa (DS-230) applications, require an approved 1-130 13

14 immigrant petition.

15

DEFENDANTS

16

8. Defendant-respondent Michael Chertoffis sued in his official

17 capacity as Secretary of Department of Romeland Security ("DRS"). As

18 Secretary of DRS, Mr. Chertoff is responsible for the administration and

19 enforcement of the immigration laws of the United States.

20

9. Defendant-respondent Emilio Gonzalez is sued in his official

21 capacity as Director of the United States Department of Romeland Security,

22 United States Citizenship and Immigration Services ("USCIS"). As Director

23 of USCIS, Dr. Gonzalez is responsible for the overall administration of

24 USCIS and the implementation of the immigration laws of the United States.

25

10. Defendant-respondent Condoleezza Rice is sued in her official

26 capacity as Secretary of State of the United States Department of State. As

27 Secretary of State, Dr. Rice is responsible for the overall administration the

28 Department of State, including the Bureau of Consular Affairs which is

-5CLASS ACTION COMPLAINT

1 responsible for issuance of immigrant visas under the immigration laws of

2 the United States.

3

11. Defendant-respondent Maura Harty is sued in her official

4 capacity as Assistant Secretary for the Bureau of Consular Affairs within the
5 United States Department of State. As Assistant Secretary, Ms. Harty is
6 responsible for the overall administration of the immigrant visa issuance 7
process under the immigration laws of the United States. 8
STATUTORY AND REGULATORY BACKGROUND 9
12. Plaintiffs-petitioners seek lawful permanent resident status, and 10
applied for such status. Plaintiffs-petitioners challenge defendants11
respondents' determinations that, as a matter oflaw, plaintiffs-petitioners 12 13 lost status as "immediate relative" spouses of United States citizens when

14 the citizen spouses of each tragically died while plaintiffs-petitioners'

15 immigration applications were awaiting adjudication.

16

13. A United States citizen who marries a non-citizen may apply

17 for his or her spouse to reside permanently in the United States with the

18 citizen. Pursuant to 8 US.c. § 1154(1)(A)(i), a United States citizen may

19 file a petition (Form 1-130) on behalf of a spouse claiming the spouse is

20 entitled to classification as an "immediate relative." The term "immediate

21 relative", as applicable to the United States citizen's petition, is set forth in

22 the first sentence of8 US.C. § 1151(b)(2)(A)(i) as the "children, spouses,

23 and parents of a citizen of the United States, except that, in the case of

24 parents, such citizens shall be at least 21 years of age."

25

14. An alien spouse whose United States citizen neverfiled a

26 petition on the alien's behalf, may also file a petition (Form 1-360 self-

27 petition) on his or her own behalf, pursuant to 8 US.C. § 1154(1)(A)(ii),

28 which states, "An alien spouse described in the second sentence of section

-6CLASS ACTION COMPLAINT

1 20l(b)(2)(A)(i) also may file a petition...". Id., (emphasis supplied) In such
2 a case, the immediate relative definition set out in the second sentence of 8 3 U.S.c. § 115 1(b)(2)(A)(i) is applicable: "In the case of an alien who was the
4 spouse of a citizen of the United States for at least 2 years at the time of the 5 citizen's death and was not legally separated from the citizen at the time of 6 the citizen's death, the alien (and each child of the alien) shall be considered, 7 for purposes of this subsection, to remain an immediate relative after the 8 date of the citizen's death but only if the spouse files a petition under section 9 204(a)(1)(A)(ii) of this title within 2 years after such date and only until the 10
date the spouse remarries." 11
15. Defendants-respondents have uniformly applied the incorrect 12 13 immediate relative definition to plaintiff-petitioners' petitions and
14 applications. Specifically, defendants-respondents have taken the position
15 that ifthe citizen spouse dies before the second anniversary of the marriage,
16 the alien spouse is no longer considered a "spouse" entitled to immediate
17 relative status. In doing so, defendants-respondents have confused the
18 immediate relative definition applicable to 1-130 petitions filed by United
19 States citizen spouses (the first sentence of8 U.S.C. § 1151(b)(2)(A)(i» with
20 the immediate relative definition applicable to 1-360 self-petitions filed by
21 alien spouses (the second sentence of 8 U.S.C. § 1151 (b)(2)(A)(i». Courts
22 have refused to follow the government's position. See Freeman v.
23 Gonzales, 444 F.3d 1031 (9th Cir. 2006); Robinson v. ChertofJ, No.
24 Civ.A.06-5702 (SRC), 2007 WL 1412284 (D.N.J. May 14,2007)
25 government notice ofappeal filed July 2, 2007. But see Burger v. McElroy,
26 97 Civ. 8775 (RPP), 1999 U.S. Dist. LEXIS 4854 (S.D.N.Y. Apr. 12, 1999);
27 and Turekv. Dep'tofHomeland Security, 450 F. Supp. 2d 736 (E.D. Mich.
28 2006).
-7CLASS ACTION COMPLAINT

1

16. Through the consistent, nation-wide application of the improper

2 standard, defendants-respondents have compounded the loss of innumerable 3 surviving spouses of United States citizens across the country. Defendants-

4 respondents have stripped plaintiffs-petitioners of immediate relative status,

5 denied their applications for adjustment of status and for immigrant visas,

6 and denied work and travel authorization. These actions have exacted grief,
7 suffering, loss of work authorization, loss of travel authorization, separation
S of family members, and countless other injuries flowing from forced
9 unlawful status such as loss of entitlement to estate benefits, loss of driving
10 privileges due to state laws requiring proof onegal status, and loss of
11 accrued lawful residence time that is a prerequisite for eventual United
12
States citizenship. 13

14

PLAINTIFFS-PETITIONERS

15

Plaintiff-petitioner HOOTKINS

16

17. Plaintiff-petitioner Carolyn Robb Hootkins was born in South

17 Africa in 1966. Plaintiff-petitioner is a citizen of the United Kingdom.

IS

IS. Plaintiff-petitioner has lived in Santa Monica, California since

19 2006. Plaintiff-petitioner entered the United States in nonimmigrant status,

20 and was inspected and admitted. She is currently the beneficiary of an 0-1

21 nonimmigrant work visa (Alien of Extraordinary Ability) as a chef of

22 international renown, having served as Head Chef for TRH Prince Charles

23 and Princess Diana.

24

19. On July 24,2005, plaintiff-petitioner married William "Bill"

25 Hootkins, a United States citizen and well-known actor, having been cast in

26 the movies Star Wars and Raiders ofthe Lost Ark, among others.

27

The Petition and Application

2S

20. On September 23, 2005, plaintiff-petitioner's U.S. citizen

-8CLASS ACTION COMPLAINT

1 spouse filed with the required fee a Form 1-130, Petition for Alien Relative

2 ("Petition") establishing his citizenship and that his spouse is an immediate

3 relative. On the same day, plaintiff-petitioner filed with the required fee a

4 Form 1-485, Application to Register Permanent Residence or to Adjust

5 Status ("Application"), seeking adjustment of status to lawful permanent

6 resident, relying on the citizen spouse's Petition attesting to the alien's status

7 as spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

8 which is A96 637 769.

9

21. On October 23,2005, plaintiff-petitioner's spouse Bill Hootkins

10 died of pancreatic cancer.
11 The Denial
12 22. On March 16, 2006, defendants-respondents denied the Petition
13 and Application that were jointly filed by the couple solely on the basis that
14

plaintiff-petitioner was no longer the spouse of a U.S. citizen. On Augnst 15

16 21,2006, plaintiff-petitioner filed a motion to reopen with the required fee

17 which was granted on Augnst 3, 2007. No action has been taken on the

18 Petition and Application, however, and plaintiff-petitioner has not been

19 accorded adjustment of status to lawful permanent resident status.

20

Plaintiff-petitioner MONCAYO-GIGAX

21

23. Plaintiff-petitioner Ana Maria Moncayo-Gigax was born in

22 Ecuador in 1972. Plaintiff-petitioner is a citizen of Ecuador.

23

24. Plaintiff-petitioner has lived in Santa Clarita, California since

24 2000. Plaintiff-petitioner entered the United States on a nonimmigrant F-1

25 student visa, and was inspected and admitted. Plaintiff-petitioner later

26 changed status to an H-lB work visa.

27

25. On Augnst 28, 1998, plaintiff-petitioner married John Charles

28 Gigax, a United States citizen and United States Border Patrol Agent serving

-9CLASS ACTION COMPLAINT

1 with legacy Immigration and Naturalization Service.

2

The Petition and Application

3

26. . On April 29, 1999, plaintiff-petitioner's U.S. citizen spouse

4 filed with the required fee a Form 1-130, Petition for Alien Relative

5 ("Petition") establishing his citizenship and that his spouse is an immediate

6 relative. On the same day, plaintiff-petitioner filed with the required fee a

7 Form 1-485, Application to Register Permanent Residence or to Adjust

8 Status ("Application"), seeking adjustment of status to lawful permanent
9 resident, relying on the citizen spouse's Petition attesting to the alien's status
10 as spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",
11
which is An 128 166.
12

13

27. On November 7, 1999, plaintiff-petitioner's spouse John

14 Charles Gigax was killed in a car accident in Virginia while on duty with the

15 United States Border Patrol, traveling in a U.S. government vehicle from a

16 ternporaryassignment in Washington, D.C.

17

The Denial

18

28. On March 2,2004, defendants-respondents denied the Petition

19 and Application that were jointly filed by the couple solely on the basis that

20 plaintiff-petitioner was no longer the spouse of a U.S. citizen. A motion to

21 reopen was filed in November 2006, which was granted on February 10,

22 2007. Although the motion to reopen has been granted, defendants-

23 respondents have not approved plaintiff-petitioner' s adjustment of status

24 following the initial denial.

25

Plaintiff-petitioner DE MAILLY

26

29. Plaintiff-petitioner Suzanne Henriette De Mailly was born in

27 the Belgian Congo in 1953. Plaintiff-petitioner is a citizen of Belgium.

28

30. Plaintiff-petitioner lived in Los Angeles, California until June

-10CLASS ACTION COMPLAINT

1 2005 when she was forced by defendants-respondents to return to Belgium

2 following the denial of her application and revocation of work authorization.

3 Plaintiff-petitioner entered the United States as a visitor prior to her

4 application, and was inspected and admitted.

5

31. On February 13, 2003, plaintiff-petitioner married Mark

6 William Rubel, a United States citizen.

7 The Petition and Application

8 32. On February 21,2003, plaintiff-petitioner's U.S. citizen spouse
9 filed with the required fee a Form 1-130, Petition for Alien Relative
10 ("Petition") establishing his citizenship and that his spouse is an immediate
11

12 relative. On the same day, plaintiff-petitioner filed with the required fee a

13 Form 1-485, Application to Register Permanent Residence or to Adjust

14 Status ("Application"), seeking adjustment of status to lawful permanent

15 resident, relying on the citizen spouse's Petition attesting to the alien's status

16 as spouse. The petition and application were filed with the Los Angeles

17 office of USCIS, and plaintiff-petitioner was assigned an Alien Number

18 "A-Number", which is A95 623420.

19

33. Plaintiff-petitioner's spouse Mark William Rubel died on

20 October 13, 2003 ..

21

The Denial

22

34. On july 1,2004, defendants-respondents denied the Petition

23 and Application that were jointly filed by the couple solely on the basis that

24 plaintiff-petitioner was no longer the spouse of a U.S. citizen.

25

Plaintiff-petitioner VARGAS DE FISHER

26

35. Plaintiff-petitioner Sara Cruz Vargas de Fisher was born in

27 Mexico in 1961. Plaintiff-petitioner is a citizen of Mexico.

28

36. Plaintiff-petitioner has lived in Riverside, California since

-11CLASS ACTION COMPLAINT

1 2001. Plaintiff-petitioner entered the United States on a nonimmigrant B-1

2 visa in 2001, and was inspected and admitted.

3

37. On JUly 19, 2004, plaintiff-petitioner married Newton Edgar

4 Fisher, a United States citizen.

5

38. Plaintiff-petitioner has two children from a previous marriage,

6 Aldo David Angrade Vargas (born 1988) and Edson Daniel Andrade Vargas

7
(born 1989).
8 The Petition and Application
9 39. On November 22,2004, plaintiff-petitioner's U.S. citizen
10 spouse filed with the required fee a Form 1-130, Petition for Alien Relative
11
("Petition") establishing his citizenship and that his spouse is an immediate 12
relative. On the same day, plaintiff-petitioner filed with the required fee a 13

14 Form 1-485, Application to Register Permanent Residence or to Adjust

15 Status ("Application"), seeking adjustment of status to lawful permanent

16 resident, relying on the citizen spouse's Petition attesting to the alien's status

17 as spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

18 which is A95 692 884.

19

40. On June 27,2005, p1aintiff-petitioner's spouse Newton Edgar

20 Fisher died of cancer.

21

The Denial

22

41. On May 13, 2005, defendants-respondents denied the Petition

23 filed by the couple solely on the basis that plaintiff-petitioner was no longer

24 the spouse of a U.S. citizen. No action has been taken on the Application for

25 adjustment of status. By denying the Petition and withholding approval on

26 the Application, defendants-respondents in effect denied the Petition and

27 Application that were jointly filed by the couple solely on the basis that

28 plaintiff-petitioner was no longer the spouse of a U.S. citizen.

-12CLASS ACTION COMPLAINT

1

Plaintiff-petitioner LOCKETT

2

42. Plaintiff-petitioner Raymond Lockett was born in the United

3 Kingdom in 1964. Plaintiff-petitioner is a citizen of the United Kingdom.

4

43. Plaintiff-petitioner has lived in Washougal, Washington since

5 2006. Plaintiff-petitioner entered the United States as a visitor in January

6 2006 and was inspected and admitted.

7
44. On March 25, 2006, plaintiff-petitioner married Catharine

8 Martinet, a United States citizen.
9 The Petition and Application
10 45. On June 1,2006, plaintiff-petitioner's U.S. citizen spouse filed
11
with the required fee a Form 1-130, Petition for Alien Relative ("Petition") 12

13 establishing her citizenship and that her spouse is an immediate relative. On

14 the same day, plaintiff-petitioner filed with the required fee a Form 1-485, 15 Application to Register Permanent Residence or to Adjust Status 16 ("Application"), seeking adjustment of status to lawful permanent resident,

17 relying on the citizen spouse's Petition attesting to the alien's status as 18 spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

19 which is A96 857 050

20

46. On June 5, 2006, plaintiff-petitioner's spouse Catharine

21 Martinet died of spontaneous pneumothorax leading to respiratory failure."

22

The Denial

23

47. On September 26,2006 defendants-respondents interviewed

24 plaintiff-petitioner and withheld approval, indicating that guidance from

25 headquarters would be required. By withholding approval, defendants-

26 respondents in effect denied the Petition and Application that were jointly 27 filed by the couple solely on the basis that plaintiff-petitioner was no longer
28 the spouse ofa U.S. citizen.

-13CLASS ACTION COMPLAINT

1

Plaintiff-petitioner BRENTESON

2

48. Plaintiff-petitioner Elsa Cecilia Brenteson was born in Costa

3 Rica in 1958. Plaintiff-petitioner is a citizen of Costa Rica.

4

49. Plaintiff-petitioner has lived in Phoenix, Arizona since 2006.

5 Plaintiff-petitioner entered the United States on a nonimmigrant B-IIB-2
6 visa in 1998, and was inspected and admitted.
7 50. On January 18, 2003, plaintiff-petitioner married Donald Irvin
8 Brenteson, a United States citizen.
9 The Petition and Application
10 51. On May 14, 2003, plaintiff-petitioner's U.S. citizen spouse filed
11 with the required fee a Form 1-130, Petition for Alien Relative ("Petition")
12
13 establishing his citizenship and that his spouse is an immediate relative. On

14 the same day, plaintiff-petitioner filed with the required fee a Form 1-485,

15 Application to Register Permanent Residence or to Adjust Status 16 ("Application"), seeking adjustment of status to lawful permanent resident,

17 relying on the citizen spouse's Petition attesting to the alien's status as

18 spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

19 which is A99 278 074.

20

52. On January 16,2005, Plaintiff-petitioner's spouse Donald Irvin

21 Brenteson died of cardiac arrest.

22

The Denial

23

53. On December 19,2005, Defendants-respondents denied the

24 Petition and Application that were jointly filed by the couple solely on the

25 basis that plaintiff-petitioner was no longer the spouse of a U.S. citizen. On 26 May 24, 2006, plaintiff-petitioner filed a motion to reopen which has not

27 been acted upon. 28

Plaintiff-petitioner GOBEIL

-14CLASS ACTION COMPLAINT

1

54. Plaintiff-petitioner Pauline Gobeil was born in Canada in 1944.

2 Plaintiff-petitioner is a citizen of Canada.

3

55. Plaintiff-petitioner has lived in Mesa, Arizona since 2003.

4 Plaintiff-petitioner entered the United States as a nonimmigrant visitor in

5 2003, and was inspected and admitted.

6

56. On August 7, 2003, plaintiff-petitioner married Leon Max

9 57. On September 30, 2003, plaintiff-petitioner's U.S. citizen
10 spouse filed with the required fee a Form 1-130, Petition for Alien Relative
11 ("Petition") establishing his citizenship and that his spouse is an immediate
12 13 relative. On the same day, plaintiff-petitioner filed with the required fee a
14 Form 1-485, Application to Register Permanent Residence or to Adjust

15 Status ("Application"), seeking adjustment of status to lawful permanent 16 resident, relying on the citizen spouse's Petition attesting to the alien's status

17 as spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

18 which is A97 339 035.

19

58. On October 7,2004, plaintiff-petitioner's spouse Leon Max

20 Everitt died of cardiac arrest

21

The Denial

22

59. On May 31,2005, defendants-respondents denied the Petition

23 and Application that were jointly filed by the couple solely on the basis that

24 plaintiff-petitioner was no longer the spouse of a u.S. citizen.

25

Plaintiff-petitioner HEARD

26

60. Plaintiff-petitioner Dahianna Heard was born in Venezuela in

27 1971. Plaintiff-petitioner is a citizen of Venezuela.

28

61. Plaintiff-petitioner has lived in Orlando, Florida since March

-15CLASS ACTION COMPLAINT

1 2007. Plaintiff-petitioner entered the United States on a nonimmigrant B-

2 lIB-2 visa in 2001, and was inspected and admitted.

3

62. On JUly 9, 2004, plaintiff-petitioner married Jeffrey Loren

4 Heard, a United States citizen and an Army veteran.

5

63. Plaintiff-petitioner and her husband have a son, Bryan Harley

6 Heard, age one and one-half years old. Their son is a United States citizen.

7 The Petition and Application
8 64. On October 27,2004, plaintiff-petitioner's US. citizen spouse
9 filed with the required fee a Form 1-130, Petition for Alien Relative
10 ("Petition") establishing his citizenship and that his spouse is an immediate
11 relative. On the same day, plaintiff-petitioner filed with the required fee a
12
13 Form 1-485, Application to Register Permanent Residence or to Adjust

14 Status ("Application"), seeking adjustment of status to lawful permanent

15 resident, relying on the citizen spouse's Petition attesting to the alien's status

16 as spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

17 which is A99 204 406.

18

65. On March 20, 2006, plaintiff-petitioner's spouse Jeffrey Loren

19 Heard was killed in an ambush outside Fallujah, Iraq, while working for a

20 private security contractor in Iraq assisting United States military operations

21 through the delivery of supplies to US. troops. Mr. Heard died of a gunshot

22 wound to the head. 23

The Denial

24

66. On September 27, 2006, Defendants-respondents denied the

25 Petition and Application that were jointly filed by the couple solely on the

26 basis that plaintiff-petitioner was no longer the spouse of a US. citizen.

27

Plaintiff-petitioner FISHMAN-CORMAN

28

67. Plaintiff-petitioner Rose Freeda Fishman-Corman was born in

-16CLASS ACTION COMPLAINT

1 Canada in 1930. Plaintiff-petitioner is a citizen of Canada.

2

68. Plaintiff-petitioner has lived in Clearwater, Florida since 2005.

3 Plaintiff-petitioner entered the United States as a nonimmigrant visitor in

4 2004, and was inspected and admitted.

5

69. On December 2,2004, plaintiff-petitioner married Irving Jacob

6 Connan, a United States citizen.

7
The Petition and Application

8 70. On April 14, 2005, plaintiff-petitioner's U.S. citizen spouse
9 filed with the required fee a Fonn 1-l30, Petition for Alien Relative
10 ("Petition") establishing his citizenship and that his spouse is an immediate
11

12 relative. On the same day, plaintiff-petitioner filed with the required fee a

l3 Fonn 1-485, Application to Register Pennanent Residence or to Adjust

14 Status ("Application"), seeking adjustment of status to lawful pennanent 15 resident, relying on the citizen spouse's Petition attesting to the alien's status

16 as spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

17 which is A95 711 606.

18

71. Plaintiff-petitioner's spouse Irving Jacob Connan died on

19 September 1, 2005 in California.

20

The Denial

21

72. On May 19, 2006, defendants-respondents denied the Petition

22 and Application that were jointly filed by the couple solely on the basis that

23 plaintiff-petitioner was no longer the spouse of a U.S. citizen.

24

Plaintiff WIN

25

73. Plaintiff-petitioner Khin Thidar Win was born in Sri Lanka in

26 1981. Plaintiff-petitioner is a citizen of Myanmar (Bunna).

27

74. Plaintiff-petitioner has lived in Las Vegas, Nevada since 2002.

28 Plaintiff-petitioner entered the United States on a nonimmigrant F-l student

-17CLASS ACTION COMPLAINT

1 visa, and was inspected and admitted in 2002.

2

75. On March 5, 2005, plaintiff-petitioner married Donn Stephen

3 Mauro, a United States citizen.

4

The Petition and Application

5

76. On May 22, 2005, p1aintiff-petitioner's U.S. citizen spouse filed

6 with the required fee a Form 1-130, Petition for Alien Relative ("Petition")

7 establishing his citizenship and that his spouse is an immediate relative. On

8 the same day, plaintiff-petitioner filed with the required fee a Form I-485,
9 Application to Register Permanent Residence or to Adjust Status
10 ("Application"), seeking adjustment of status to lawful permanent resident,
11

relying on the citizen spouse's Petition attesting to the alien's status as 12

13 spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

14 which is A96 533 069.

15

77. On February 6, 2006, plaintiff-petitioner's spouse Donn Stephen

16 Mauro was killed by a drunk driver.

17

The Denial

18

78. On March 2,2006, defendants-respondents denied the Petition

19 and Application that were jointly filed by the couple solely on the basis that

20 plaintiff-petitioner was no longer the spouse of a U.S. citizen.

21

79. On September 26,2006, plaintiff-petitioner filed a motion to

22 reconsider the denial, which was granted on March 12, 2007 in an order

23 which stated, "Upon review of the file, it has been determined that the

24 applicant may be eligible for the benefit sought." No action has been taken

25 on the Petition and Application, however, and plaintiff-petitioner has not

26 been accorded adjustment of status to lawful permanent resident status.

27

Plaintiff-petitioner ENGSTROM

28

80. Plaintiff-petitioner Diana Gejac Engstrom was born in Kosovo

-18CLASS ACTION COMPLAINT

1 in 1980. Plaintiff-petitioner is a citizen of Kosovo, the former Yugoslavia.

2

81. Plaintiff-petitioner has lived in Bloomington, Illinois since

3 May,2005. Plaintiff-petitioner entered the United States on a nonimmigrant

4 B-2 visa in 2003, and was inspected and admitted.

5

82. On December 29,2003, plaintiff-petitioner married Todd

6 Engstrom, a United States citizen and United States Army Contractor

7
responsible for training Iraqi security forces in Iraq.

8 The Petition and Application
9
83. On January 29,2004, plaintiff-petitioner's U.S. citizen spouse 10
filed with the required fee a Form 1-130, Petition for Alien Relative
11
("Petition") establishing his citizenship and that his spouse is an immediate 12

13 relative. On the same day, plaintiff-petitioner filed with the required fee a

14 Form 1-485, Application to Register Permanent Residence or to Adjust

15 Status ("Application"), seeking adjustment of status to lawful permanent

16 resident, relying on the citizen spouse's Petition attesting to the alien's status

17 as spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

18 which is A99 103420.

19

84. On September 14,2004, plaintiff-petitioner's Todd Engstrom

20 was killed in Iraq when his convoy was hit by a rocket-propelled grenade.

21

The Denial

22

85. Defendants-respondents have not denied the Petition and

23 Application that were jointly filed by the couple. Based on defendants-

24 respondents actions in other cases, plaintiff-petitioner fears that defendants-

25 respondents may deny her application solely on the basis that plaintiff26 petitioner was no longer the spouse of a U.S. citizen. In addition, no action

27 has been taken on the Petition and Application, and plaintiff-petitioner has 28 not been accorded adjustment of status to lawful permanent resident status.

-19CLASS ACTION COMPLAINT

1

Plaintiff-petitioner DIAZ-RUIZ

2

86. Plaintiff-petitioner Maria Del Carmen Diaz-Ruiz was born in

3 Spain in 1973. Plaintiff-petitioner is a citizen of Spain.

4

87. Plaintiff-petitioner has lived in Glencoe, Illinois since July

5 2005. Plaintiff-petitioner entered the United States on a nonimmigrant B-
6 lIB-2 visa, and was inspected and admitted.
7 88. On June 29,2004, plaintiff-petitioner married Christopher
8 Rodriguez, a United States citizen.
9 The Petition and Application
10 89. On December 30,2004, plaintiff-petitioner's U.S. citizen spouse
11 filed with the required fee a Form 1-130, Petition for Alien Relative
12 ("Petition") establishing his citizenship and that his spouse is an immediate
13
14 relative. On the same day, plaintiff-petitioner filed with the required fee a

15 Form 1-485, Application to Register Permanent Residence or to Adjust

16 StatUs ("Application"), seeking adjustment of status to lawful permanent 17 resident, relying on the citizen spouse's Petition attesting to the alien's status

18 as spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

19 which is A99 235 659.

20

90. On June 13, 2005, plaintiff-petitioner's spouse Christopher

21 Rodriguez died of congenital heart disease.

22

The Denial

23

91. On December 22, 2005, defendants-respondents denied the

24 Petition and Application that were jointly filed by the couple solely on the

25 basis that plaintiff-petitioner was no longer the spouse of a U.S. citizen. On

26 May 18, 2006, plaintiff-petitioner filed a motion to reopen which was denied

27 in a written opinion October 25, 2006.

28

Plaintiff-petitioner WALSH

-20CLASS ACTION COMPLAINT

1

92. Plaintiff-petitioner Gladys Walsh was born in Columbia in

2 1961. Plaintiff-petitioner is a citizen of Columbia.

3

93. Plaintiff-petitioner has lived in Hopkinton, MA since 2002.

4 Plaintiff-petitioner entered the United States on a nonimmigrant B-1/B-2

5 visa, and was inspected and admitted.

6

94. On January 20, 200 I, plaintiff-petitioner married Jeffrey John

7 Walsh, a United States citizen.

8 95. Plaintiff-petitioner and her husband have a son, Anthony

9 Patrick Walsh, born October 2001. Their son is a United States citizen, and
10

is being treated for severe club feet deformity in Springfield, Massachussetts 11

- treatment not available in Columbia. He will need treatment until he is 12

13 eighteen years old.

14

The Petition and Application

15

96. In 2001, plaintiff-petitioner's U.S. citizen spouse filed with the

16 required fee a Form 1-130, Petition for Alien Relative ("Petition")

17 establishing his citizenship and that his spouse is an immediate relative.

18 Because plaintiff-petitioner was physically in Columbia, the U.S.

19 Department of State began immigrant visa processing. Plaintiff-petitioner

20 was assigned an immigrant visa case number, BGT2002002012.

21

97. On September 11,2002 while in the United States, plaintiff-

22 petitioner's spouse died of a heart attack. Plaintiff-petitioner, then in

23 Columbia, was issued a visitor visa to attend her husband's funeral.

24

The Denial

25

98. On September 16,2002, defendants-respondents notified

26 plaintiff-petitioner through counsel that her petition was automatically

27 revoked solely on the basis that plaintiff-petitioner was no longer the spouse

28 of a U.S. citizen.

-21CLASS ACTION COMPLAINT

I

Plaintiff-petitioner LV

2

99. Plaintiff-petitioner Li Ju LU was born in China in 1972.

3 Plaintiff-petitioner is a citizen of China.

4

100. Plaintiff-petitioner resides in Guangzhou, China

5

101. On February 25, 2005, plaintiff-petitioner married Paul Michel

6 Unger, a United States citizen.

7
The Petition and Application

8 102. On April 28, 2005, plaintiff-petitioner's U.S. citizen spouse
9 filed with the required fee a Form 1-130, Petition for Alien Relative
10 ("Petition") with the California Service Center of USCIS, located in Laguna
11
Niguel, California, establishing his citizenship and that his spouse is an 12

13 immediate relative. The Petition was assigned a case number WAC-05-l47-

14 54736 and was approved. Because plaintiff-petitioner was physically in

15 China, the approval was forwarded to the U.S. Department of State and the

16 Consulate in Guangzhou, China began immigrant visa processing. Plaintiff-

17 petitioner was assigned an immigrant visa case number GUZ20058221347.

18

103. On February 3,2006, plaintiff-petitioner's spouse died of a

19 heart attack while in the United States.

20

The Denial

21

104. Following the death, defendants-respondents notified plaintiff-

22 petitioner that her petition was automatically revoked solely on the basis that

23 plaintiff-petitioner was no longer the spouse of a U.S. citizen. Plaintiff-

24 petitioner was unable to receive a visa to attend her husband's funeral, and

25 has not been allowed to visit her husband's grave site or visit the family of

26 her husband.

27

Plaintiff-petitioner ARIAS-ANGULO

28

105. Plaintiff-petitioner Yelena Arias Angulo was born in Bolivia in

-22CLASS ACTION COMPLAINT

1 1970. Plaintiff-petitioner is a citizen of Bolivia.

2

106. Plaintiff-petitioner has lived in Falls Church, Virginia since

3 December 2001. Plaintiff-petitioner entered the United States on a

4 nonimmigrant B-l/B-2 visa in 2001, and was inspected and admitted.

5

107. On May 27,2005, Plaintiff-petitioner married Donald Arias, a

6 Um'tedStates cI.t.Izen.
7 The Petition and Application
8 108. On September 21, 2005, plaintiff-petitioner's U.S. citizen
9 spouse filed with the required fee a Form 1-130, Petition for Alien Relative
10 ("Petition") establishing his citizenship and that his spouse is an immediate
11 12 relative. On the same day, plaintiff-petitioner filed wi.th the required fee a
13 Form 1-485, Application to Register Permanent Residence or to Adjust

14 Status ("Application"), seeking adjustment of status to lawful permanent 15 resident, relying on the citizen spouse's Petition attesting to the alien's status 16 as spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

17 which is A96 628 021.

18

109. On March 3, 2006, plaintiff-petitioner's spouse Donald Arias

19 died.

20

The Denial

21

110. In June 2006, defendants-respondents interviewed plaintiff-

22 petitioner and withheld approval, asking plaintiff-petitioner to instead file a

23 widow self-petition (I-360) for which she is not eligible because she was not

24 married two years at the time of her spouse's death. On August 2, 2007,

25 defendants-respondents denied the Petition and Application that were jointly

26 filed by the couple solely on the basis that plaintiff-petitioner was no longer

27 the spouse of a U.S. citizen.

28

Plaintiff-petitioner POINDEXTER

-23CLASS ACTION COMPLAINT

1

Ill. Plaintiff-petitioner Purita Manuel Poindexter was born in the

2 Philippines in 1954. Plaintiff-petitioner is a citizen of the Philippines.

3

112. Plaintiff-petitioner has lived in Hercules, California since April

4 2007. Plaintiff-petitioner entered the United States on a nonimmigrant B-2

5 visa in 2002, and was inspected and admitted.

6

113. On November 10,2006, plaintiff-petitioner married Richard

The Petition and Application 9
114. On December 3, 2006, plaintiff-petitioner's U.S. citizen spouse 10
filed with the required fee a Fonn 1-130, Petition for Alien Relative 11
("Petition") establishing his citizenship and that his spouse is an immediate 12
relative. On the same day, plaintiff-petitioner filed with the required fee a 13
14 Fonn 1-485, Application to Register Pennanent Residence or to Adjust

15 Status ("Application"), seeking adjustment of status to lawful pennanent

16 resident, relying on the citizen spouse's Petition attesting to the alien's status

17 as spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

18 which is A89 629 770.

19

115. Plaintiff-petitioner's spouse Richard Daniel Poindexter died on

20 January 29,2007.

21

The Denial

22

116. Plaintiff-petitioner was scheduled by defendants-respondents

23 for an interview on February 15, 2007. Plaintiff-petitioner did not attend the

24 interview because her husband had only recently passed away. On March 7,

25 2007, defendants-respondents denied the Petition and Application that were

26 jointly filed by the couple due to abandonment, but plaintiff-petitioner filed 27 a motion to reopen with fee which is currently pending. Had plaintiff-

28 petitioner appeared at the interview, defendants-respondents would have

-24CLASS ACTION COMPLAINT

1 denied the Petition and Application solely on the basis that Petitioner was no

2 longer the spouse of a US. citizen.

3

Plaintiff-petitioner RUDL

4

117. Plaintiff-petitioner Tracy Lee Rudl was born in Canada in 1972.

5 Plaintiff-petitioner is a citizen of Canada.

6

118. Plaintiff-petitioner has lived in La Jolla, California since 2002.

7 Plaintiff-petitioner entered the United States on a nonimmigrant H-lB work

8 visa in 2002, and was inspected and admitted.

9 119. On July 24, 2004, plaintiff-petitioner married Corey Nicholas
10
Rudl, a United States citizen and well-known internet marketing guru. 11

The Petition and Application 12

120. On March 30, 2005, plaintiff-petitioner's US. citizen spouse 13

14 filed with the required fee a Form 1-130, Petition for Alien Relative

15 ("Petition") establishing his citizenship and that his spouse is an immediate 16 relative. On the same day, plaintiff-petitioner filed with the required fee a

17 Form 1-485, Application to Register Permanent Residence or to Adjust

18 Status ("Application"), seeking adjustment of status to lawful permanent

19 resident, relying on the citizen spouse's Petition attesting to the alien's status

20 as spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

21 which is A98 806945.

22

121. On June 2, 2005, plaintiff-petitioner's spouse Corey Nicholas

23 Rudl was killed while riding as a passenger in a car on a raceway.

24

The Denial

25

122. On November 14,2005, defendants-respondents denied the

26 Petition and Application that were jointly filed by the couple solely on the

27 basis that plaintiff-petitioner was no longer the spouse of a US. citizen. On

28 June 13,2006, plaintiff-petitioner filed a motion to reopen which has not

-25CLASS ACTION COMPLAINT

1 been acted upon.

2

Plaintiff-petitioner NGUYEN

3

123. Plaintiff-petitioner Dieu Ngoc Nguyen was born in Vietnam in

4 1966. Plaintiff-petitioner is a citizen of Vietnam.

5

124. Plaintiff-petitioner has lived in Elk Grove, California since

6 2004. Plaintiff-petitioner entered the United States on a K-1 visa as the

7 fiancee of a United States citizen, and was inspected and admitted on March

8 20,2004.

9

125. On April 19, 2004, plaintiff-petitioner married Loc Van

10 Nguyen, a naturalized United States citizen, within the 90 days from her
11 entry as required by the K-l visa.
12 The Petition and Application
13 126. Plaintiff-petitioner's spouse, pursuant to 8 C.F.R § 2l4.2(k)(1),
14 15 previously filed a Form 1-129F Petition for Alien Fiance(e) (Petition) which

16 was approved, and plaintiff-petitioner was subjected to quasi-immigrant visa

17 processing through defendants-respondents United States Department of

18 State prior to receiving her K-l visa. On May 4, 2004, following plaintiff-

19 petitioner's lawful entry In K-l status and marriage to her husband within

20 the required 90 day period, and pursuant to 8 C.F.R § 214.2(k)(6)(ii),

21 plaintiff-petitioner filed with the required fee a Form 1-485, Application to

22 Register Permanent Residence or to Adjust Status ("Application"), also

23 within the 90 day period, seeking adjustment of status to lawful permanent

24 resident. Pursuant to 8 C.F.R. § 245.1 (c)(6)(i), plaintiff-petitioner is eligible

25 for adjustment of status without the 1-130 petition requirement, because

26 plaintiff-petitioner's spouse filed the 1-129F petition. Plaintiff-petitioner

27 was assigned an Alien Number "A-Number", which is A96 350 330.

28 Plaintiff-petitioner and her husband were interviewed by defendants-

-26CLASS ACTION COMPLAINT

(

1 respondents on October 4, 2004, but no action was taken on the Application

2 at that time due to backlogs in security checks.

3

127. Plaintiff-petitioner's spouse died on March 24,2005 while

4 security checks continued to be backlogged.

5

The Denial

6

128. On November 30, 2005, defendants-respondents denied the

7 Petition and Application that were jointly filed by the couple solely on the

8 basis that plaintiff-petitioner was no longer the spouse of a U.S. citizen.

9 Plaintiff-petitioner filed a motion to reconsiderwhich was denied on March

10

3,2006. 11

Plaintiff-petitioner BERNSTEIN 12

13

129. Plaintiff-petitioner Agnieszka Bernstein was born in Poland in

14 1974. Plaintiff-petitioner is a citizen of Poland.

15

130. Plaintiff-petitioner has lived in Spring Valley, New York since

16 April 2005. Plaintiff-petitioner entered the United States on a nonimmigrant

17 J-1 visa, and was inspected and admitted September 14, 1998.

18

131. On April 17, 2005, plaintiff-petitioner married Bryan Bernstein,

19 a United States citizen.

20

The Petition and Application

21

132. On July 25,2005 plaintiff-petitioner's U.S. citizen spouse filed

22 with the required fee a Form 1-130, Petition for Alien Relative ("Petition")

23 establishing his citizenship and that his spouse is an immediate relative. On

24 the same day, plaintiff-petitioner filed with the required fee a Form 1-485,

25 Application to Register Permanent Residence or to Adjust Status

26 ("Application"), seeking adjustment of status to lawful permanent resident,

27 relying on the citizen spouse's Petition attesting to the alien's status as 28 spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

-27CLASS ACTION COMPLAINT

1 which is A 96 588 669.

2

133. Plaintiff-petitioner's spouse Bryan Bernstein died on March 10,

3 2006.

4

The Denial

5

134. On March 29,2006, defendants-respondents denied the Petition

6 and Application that were jointly filed by the couple solely on the basis that

7 plaintiff-petitioner was no longer the spouse of a U.S. citizen.
8 Plaintiff-petitioner BAYOR
9 135. Plaintiff-petitioner Sarah Bayor was born in the Philippines in
10 1966. Plaintiff-petitioner is a citizen of the Philippines
11
136. Plaintiff-petitioner has lived in Jamaica, New Yark since 2002. 12
Plaintiff-petitioner entered the United States on a nonimmigrant C-l visa, 13

14 and was inspected and admitted.

15

137. On January 5,2006 plaintiff-petitioner married Stephen R.

16 Bayor, a United States citizen.

17

The Petition and Application

18

138. On February 20, 2006, plaintiff-petitioner's U.S. citizen spouse

19 filed with the required fee a Form 1-130, Petition for Alien Relative

20 ("Petition") establishing his citizenship and that his spouse is an immediate

21 relative. On the same day, plaintiff-petitioner filed with the required fee a

22 Form I-485, Application to Register Permanent Residence or to Adjust

23 Status ("Application"), seeking adjustment of status to lawful permanent

24 resident, relying on the citizen spouse's Petition attesting to the alien's status

25 as spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

26 which is A99 806 135.

27

139. On May 5, 2007 plaintiff-petitioner's spouse Stephen R. Bayar

28 died.

-28CLASS ACTION COMPLAINT

1

The Denial

2

140. On August 9, 2007 defendants-respondents denied the Petition

3 and Application that were jointly filed by the couple solely on the basis that

4 plaintiff-petitioner was no longer the spouse of a U.S. citizen.

5

Plaintiff-petitioner STANDIFER

6

141. Plaintiff-petitioner Stella Standifer was born in Kenya in 1974.

7 Plaintiff-petitioner is a citizen of Kenya.

8

142. Plaintiff-petitioner has lived in Philadelphia, Pennsylvania since

9 2003. Plaintiff-petitioner entered the United States on a nonimmigrant F-1
10 student visa in 1999, and was inspected and admitted. She is currently in H-
11 1B nonimmigrant work status.
12 143. On October 11,2003, plaintiff-petitioner married Glenn Collin
13 Standifer, a United States citizen.
14 The Petition and Application
15
144. On March 31, 2004, plaintiff-petitioner's U.S. citizen spouse 16

17 filed with the required fee a Form 1-130, Petition for Alien Relative

18 ("Petition") establishing his citizenship and that his spouse is an immediate

19 relative. On the same day, plaintiff-petitioner filed with the required fee a

20 Form 1-485, Application to Register Permanent Residence or to Adjust

21 Status ("Application"), seeking adjustment of status to lawful permanent

22 resident, relying on the citizen spouse's Petition attesting to the alien's status

23 as spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

24 which is A98 085 420.

25

145. On December 9, 2004, plaintiff-petitioner's spouse Glenn Collin

26 Standifer suffered a sudden heart attack and died.

27

The Denial

28

146. On June 8, 2005, defendants-respondents denied the Petition

-29CLASS ACTION COMPLAINT

1 and Application that were jointly filed by the couple solely on the basis that

2 plaintiff-petitioner was no longer the spouse of a U.S. citizen. On July 5,

3 2007, plaintiff-petitioner filed a motion to reopen which is currently

4 pend·mg.

5

Plaintiff-petitioner BATOOL

6

147. Plaintiff-petitioner Farah Batool was born in Pakistan in 1970.

7 Plaintiff-petitioner is a citizen of Pakistan.

8 148. Plaintiff-petitioner has lived in Floral Park, New York since
9 2006. Plaintiff-petitioner entered the United States on a nonimmigrant B-
10 1/B-2 visa in 2003, and was inspected and admitted.
11

149. On July 14, 2003, plaintiff-petitioner married Dale Allen Davis, 12

a United States citizen. 13

14

The Petition and Application

15

150. On February 23,2004, plaintiff-petitioner's U.S. citizen spouse

16 filed with the required fee a Form 1-130, Petition for Alien Relative

17 ("Petition") establishing his citizenship and that his spouse is an immediate

18 relative. On the same day, plaintiff-petitioner filed with the required fee a

19 Form 1-485, Application to Register Permanent Residence or to Adjust

20 Status ("Application"), seeking adjustment of status to lawful permanent

21 resident, relying on the citizen spouse's Petition attesting to the alien's status

22 as spouse. Plaintiff-petitioner was assigned an Alien Number "A-Number",

23 which is A98 067 884.

24

151. On July 24,2004, p1aintiff-petitioner's spouse Dale Allen Davis

25 died of cancer.

26

The Denial

27

152. Plaintiff-petitioner was scheduled by defendants-respondents

28 for an interview on March 11, 2005. Plaintiff-petitioner did not attend the

-30CLASS ACTION COMPLAINT

1 interview because her attorney at that time advised her on January 20,2005

2 in a letter that the application would be denied solely due to her husband's 3 death. On May 17, 2005, defendants-respondents denied the Petition and

4 Application that were jointly filed by the couple due to abandonment, but
5 plaintiff-petitioner filed a motion to reopen with the required fee on August
6 5, 2005 which is currently pending. Had plaintiff-petitioner appeared at the 7
interview, defendants-respondents would have denied the Petition and 8
Application solely on the basis that Petitioner was no longer the spouse of a
9 u.s. citizen.
10 CLASS ACTION ALLEGATIONS
11 153. The named plaintiffs-petitioners bring this action pursuant to
12 Rule 23 of the Federal Rules of Civil Procedure on behalf of themselves and
13
14 all other persons similarly situated in the following classes. Thenamed

15 plaintiffs-petitioners seek to represent the following class and subclasses:

16

Class:

All beneficiaries of immediate relative petitions

17

whose petitioning relatives died prior to

18

beneficiaries' adjudication and approval of lawful

19

permanent resident status.

20

Subclass I: All beneficiaries of immediate relative petitions

21

who applied for adjustment of status in the United

22

States, and whose petitioning relatives died prior to

23

beneficiaries' adjudication and approval oflawful

24

permanent resident status.

25

Subclass II: All beneficiaries of immediate relative petitions

26

who applied for immigrant visas abroad, and

27

whose petitioning relatives died prior to

28

beneficiaries' adjudication and approval oflawful

-31CLASS ACTION COMPLAINT

1

permanent resident status.

2

154. Class members may belong to more than one class.

3

155. The members ofthe plaintiffs-petitioners classes warrant class

4 action treatment because they fulfill the certifying requirements under Rule

5 23(a) of the Federal Rules of Civil Procedure.

6

156. The proposed classes meet the commonality requirement of

7 Fed. R. Civ. P. 23(a)(2) because there are questions oflaw and fact common

8 to the class. Common questions oflaw include whether defendants-
9 respondents improperly stripped plaintiffs-respondents of immediate relative
10 status upon the death of their petitioning relative, and the proper definition
11
of "spouse" for purposes of 8 U.S.C. § 1151 (b)(2)(A)(i). Common questions 12

of fact include whether plaintiffs-respondents met the essentialprerequisites 13

14 for immediate relative status including marriage to a United States citizen

15 and the filing by the citizen of a petition.

16

157. The variances in the class members' and plaintiffs-petitioners

17 marriage and are irrelevant to their complaints against defendants-

18 respondents for immediate relative status.

19

158. The proposed classes meet the numerosity requirement of Fed.

20 R. Civ. P. 23(a)(1) because the members of each ofthe two classes are so

21 numerous that joinder of all members is impractical. Counsel for p1aintiffs-

22 petitioners are aware of 86 class members across the country. Because

23 counsel learned of these cases through lawyer-to-lawyer referrals, it is

24 believed that the numbers of class members across the country is

25 substantially greater, by many times, than the number of identified class

26 members. Counsel for plaintiffs-petitioners, for example, have not been able

27 to locate any surviving spouses of Hurricane Katrina victims, although U.S.

28 Representative F. James Sensenbrenner, Jr. (R-WI) introduced legislation in

-32CLASS ACTION COMPLAINT

1 the 109th Congress (never voted upon) to assist such surviving spouses, 2 leading counsel to believe such victims do, in fact, exist. It is believed that

3 there are many hundreds, if not thousands, of surviving spouses throughout

4 the country whose petitioning relatives died prior to beneficiaries'

5 adjudication and approval of lawful permanent resident status.

6

159. The proposed classes meet the typicality requirement of Fed. R.

7 Civ. P. 23(a)(3) because the claims of the named plaintiffs-petitioners are

8 typical of the claims of each of the class members. The named plaintiffs-
9 petitioners complain of the defendants-respondents misinterpretation of the
10 term "spouse" for purposes of the immediate relative definition found at 8
11

US.C. § 1151(b)(2)(A)(i), and of defendants-respondents illegal actions in 12

13 denying or withholding lawful permanent resident status to plaintiffs-

14 petitioners solely due to the death of their spouse. The claims of each class

15 representative are typical ofthe claims of each member of that class.

16

160. The named plaintiffs-petitioners will fairly and adequately

17 protect the interests of the classes as required by Fed. R. Civ. P. 23(a)(4)

18 because their interests are identical to those of the other members ofthe

19 classes. Plaintiffs-petitioners know of no conflicts between their interests

20 and those of the class they seek to represent.

21

161. Fair and adequate protection of the interests ofthe classes will

22 be further ensured because the named plaintiffs-petitioners are represented

23 by competent legal counseL Plaintiffs-petitioners' counsel are experienced

24 in federal litigation, and with respect to the narrow issue raised in the instant

25 action are among the most knowledgeable in the country. Plaintiffs-

26 petitioners' counsel are undertaking representation on a pro bono basis, and

27 have adequate resources and commitment to represent the class as a whole.

28

162. The instant action should be maintained as a class action under

-33CLASS ACTION COMPLAINT

1 Fed. R. Civ. P. 23(b)(2) because the defendants-respondents have acted on

2 grounds generally applicable to each member of the classes by

3 misinterpreting the term "spouse" for purposes of the immediate relative

4 definition found at 8 U.S.C. l15l(b)(2)(A)(i), and of defendants-respondents
5 illegal actions in denying lawful permanent resident status to plaintiffs-
6 petitioners solely due to the death of their spouse.
7
163. Furthermore, as contemplated by Fed. R. Civ. P. 23(b)(1), if the 8
individual members ofthe classes were to bring separate suits to address the 9
defendants-respondents' policies, practices and actions and inactions, the 10
defendants-respondents may address the cases of the named plaintiffs11
petitioners but ignore the applications and concerns ofthe remaining class 12 13 members, thereby exacerbating the defendants-respondents violations of the

14 law. Resolving this matter as a class action would also serve judicial

15 economy since the courts would not be burdened with lawsuits by many

16 individual adjustment of status and immigrant visa applicants. Such lawsuits

17 are already beginning to emerge. Robinson v. Chertoff, No. Civ.A.06-5702 18 (SRC), 2007 WL 1412284 (D.N.J. May 14, 2007) government notice of

19 appeal filed July 2,2007; Taing v. Gonzales, 07 Civ. 10499 (WGY)

20 (E.D.Mass. filed March 14, 2007); Lockhart v. Chertoff, 07 Civ. 00823

21 (KMO) (N.D. Ohio filed March 20, 2007).

22

CLAIMS FOR RELIEF

23

FIRST CAUSE OF ACTION

24

164. Plaintiffs-petitioners reallege and incorporate by reference·

25 paragraphs 1 through 163 above.

26

165. Plaintiffs-petitioners are immediate relatives for purposes of

27 INA § 201(b)(2)(A)(i), 8 U.S.c. § 1151 (b)(2)(A)(i) and are eligible for 28 adjustment of status under INA § 245(a), 8 U.S.c. § l255(a) (Subclass I)

-34CLASS ACTION COMPLAINT

1 and for issuance of an immigrant visa under INA § 204(b), 8 U.S.C. l154(b)

2 (Subclass II).

3

166. Plaintiffs-petitioners were not stripped of the status of an

4 "immediate relative" spouse by the death of plaintiffs-petitioners' spouses.

5

167. Plaintiffs-petitioners remain eligible to receive adjustment of

6 status or an immigrant visa as the "immediate relative" surviving spouse of a

7 United States citizen.
8 168. Plaintiffs-petitioners are admissible to the United States as
9 lawful permanent residents.
10 169. An immigrant visa was immediately available to plaintiffs-
11 petitioners at the time plaintiffs-petitioners' applications were filed, pursuant
12

13 to INA § 245(a), 8 U.S.C. l255(a).

14

170. Plaintiffs-petitioners have suffered and will continue to suffer

15 significant and irreparable harm because of defendants-respondents'

16 policies, procedures, acts and failures to act as described herein.

17

171. Defendants-respondents violated plaintiffs-petitioners' statutory

18 right to apply for relief which Congress has provided under the INA,

19 depriving plaintiffs-petitioners of the opportunity to adjust status to lawful·

20 permanent resident and live lawfully in the United States under INA § 245, 8

21 U.S.C. 1255(a), or t6 obtain an immigrant visa to enter as lawful permanent

22 residents and live lawfully in the United States under INA § 204(b), 8 U.S.C.

23 1154(b).

24

SECOND CAUSE OF ACTION

25

172. Plaintiffs-petitioners reallege and incorporate by reference

26 paragraphs 1 through 171 above.

27

173. Plaintiffs-petitioners have suffered a "legal wrong" or have

28 been "adversely affected or aggrieved" by agency action. 5 U.S.C. § 702.

-35CLASS ACTION COMPLAINT

1 Plaintiffs-petitioners are each a person aggrieved by agency action, for

2 which there is no other adequate remedy in a court. 5 U.S.C. § 704.

3

174. Defendants-respondents have unlawfully and erroneously

4 interpreted the definition of the term "immediate relative" in INA §

5 201 (a)(b)(2)(A)(i). Based on this erroneous interpretation, defendants-

6 respondents have erroneously denied both the immediate relative petitions

7 filed on plaintiffs-petitioners' behalf and plaintiffs-petitioners' adjustment of

8 status or immigrant visa applications in violation of Congressional intent.

9 Plaintiffs-petitioners are entitled to injunctive relief to "compel agency

10 action unlawfully withheld or unreasonably delayed" and to hold unlawful
11

and set aside agency action that, as here, is not in accordance with the law. 12

5U.S.C. §§ 706(1) and (2). 13

14

TIDRD CAUSE OF ACTION

15

175. Plaintiffs-petitioners reallege and incorporate by reference

16 paragraphs 1 through 174 above.

17

176. Defendants-respondents owe plaintiffs-petitioners a clear and

18 certain duty to adjudicate plaintiffs-petitioners' applications on the basis that

19 each remains an "immediate relative" spouse of a United States citizen, and

20 were not stripped of this status by the death of plaintiffs-petitioners, spouses.

21 See Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006).

22

177. Defendants-respondents denied or withheld approval of

23 plaintiffs-petitioners' applications solely on the basis that each was stripped

24 of the status of spouse, and not for discretionary reasons. Defendants-

25 respondents have failed to perform their duties by determining that 26 plaintiffs-petitioners were no longer the "spouses" of U.S. citizens and

27 therefore not entitled to adjustment of status and for issuance of an 28 immigrant visa, and by failing to exercise discretion.

-36CLASS ACTION COMPLAINT

1

178. Plaintiffs-petitioners have no other adequate remedy.

2

PRAYER FOR RELIEF

3

WHEREFORE, Plaintiffs-petitioners respectfully request that this

4 Court:

5

1. Assume jurisdiction over this action;

6

2. Declare that plaintiffs-petitioners filed the necessary petition

7 and application for lawful permanent resident status, and were
8 not stripped of the status of "spouse" of a United States citizen
9 upon the death of the citizen spouse;
10 3. Declare that plaintiffs-petitioners are entitled to the process that
11
flows from a properly filed application, and must be considered 12

13

a spouse for purposes of the application;

14

4. Issue an injunction prohibiting defendants-respondents from

15

using the death of the U.S. citizen spouse as a discretionary

16

factor in the adjudication ofthe application;

17

5. Issue an injunction prohibiting defendants-respondents from

18

using factors flowing from the unlawful denial of the

19

application to again deny the application upon reopening,

20

including but not limited to claims of abandonment of the

21

application due to departure from the United States, and bars to

22

admissibility related to "unlawful presence" caused by the

23

wrongful denial;

24

6. Issue a writ of mandamus compelling defendants-respondents

25

to (a) reopen plaintiffs-petitioners' adjustment of status and

26

immigrant visa applications on the ground that the applications

27

were unlawfully denied on the basis of defendants-respondents'

28

erroneous determination that plaintiffs-petitioners' status as

-37CLASS ACTION COMPLAINT

1

"immediate relative" spouses of United States citizens were

2

stripped by the death of plaintiffs-petitioners' spouses, (b) treat

3

plaintiffs-petitioners as "immediate relative" spouses and

4

adjudicate the immigrant petitions ("petitions") filed on their

5

behalf accordingly, and (c) treat plaintiffs-petitioners as

6

"immediate relative" spouses and exercise discretion to

7

adjudicate their adjustment of status and immigrant visa

8

applications ("applications");

9

7. Award plaintiffs-petitioners reasonable costs and attorney's fees

10 under the Equal Access to Justice Act; and

11 8. Award such further relief as the Court deems just or
12

appropriate. 13

DATED this 30th day of August, 2007.

14

~

/

15

By __~__~~~______________

16

BRENT W. RENISON, Oregon SBN. 96475

17

PARRlLLI RENISON LLC

18

5285 SW Meadows Rd., Ste 175 Lake Oswego, Oregon 97035

19

(503) 597-7190

20

(503) 726-0730 fax

E-mail: brent@entrylaw.com

21

22

ALAN R. DIAMANTE, Cal. SBN 180149

LAW OFFICE OF ALAN R. DIAMANTE

23

523 W. Sixth Street, Ste. 210

24

Los Angeles, California 90014

25

(213) 943-4555 (213) 943 4553 fax

26

E-mail: diamantelaw@aol.com

27 Attorneys for Plaintiffs-petitioners
28

-38CLASS ACTION COMPLAINT

 
 Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 1 of 34 Page ID #:312

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11 CAROLYN ROBB HOOTKINS, ET AL. ) Case No. CV 07-5696 CAS

)

12

Plaintiff(s),

)

) ORDER GRANTING IN P ART AND

13 vs.

) DENYING IN P ART DEFENDANTS’

) MOTION TO DISMISS COMPLAINT

14 M I C H A E L C H E R T O F F , U . S . ) UNDER FED. R. CIV. P. 12(b)(1) and

DEPARTMENT OF HOMELAND ) 12(b)(6)

15 SECURITY, ET AL.

)

)

16

Defendant(s).

)

_______________________________ )

17

18 I. INTRODUCTION

19

On August 30, 2007, plaintiffs, 1 on behalf of them selves and others sim ilarly

20 situated, filed the instant class action case. Plaintiffs seek injunctive, declaratory, and

21 mandamus relief against defendants Michael Ch ertoff, Secretary of the Department of

22 Homeland Security (“DHS”); Emilio Gonzalez, Director of United States Citizenship and

23

24 1 Plaintiffs are Carolyn Robb Hootkins , Ana Maria Moncayo-Gigax, Suzanne
25 Henriette De Mailly, S ara Cruz Vargas de Fisher, Raym ond Lockett, Elsa Cecilia

26 Brenteson, Pauline Marie Gobeil, Dahianna Heard, Rose Freeda Fishman-Corman, Khin

27

Thidar Win, Diana Gejac Engstrom, Maria Del Carmen Diaz-Ruiz, Gladys Walsh, Li Ju Lu, Yelena Arias Angulo, Purita Manuel Pointdexter, Tracy Lee Rudl, Dieu Ngoc Nguyen,

28 Agnieszka Bernstein, Sarah Bayor, Stella Standifer, and Farah Batool.

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 2 of 34 Page ID #:313

1 Immigration Services (“USCIS”); Condoleezza Rice,United States Secretary of State; and

2 Maura Harty, Assistant Secretary for the Bur eau of Consular Affairs, in their official

3 capacities (collectively, “defendants” or the “government”). The complaint alleges that

4 defendants wrongfully determined that plaintiffs are not entitled to im mediate relative

5 status for purposes of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1151 et

6 seq. Plaintiffs request that theCourt compel defendants (1) to find, as a matter of statutory

7 construction, that plaintiffs are “immediate relative” spouses for purposes of the INA; (2)

8 to reopen and adjudicate their deceased citizenspouses’ immigrant visa petitions; and (3)

9 to reopen and adjudicate (a) plaintiffs’ appli cations for adjustm ent of status or (b)

10 plaintiffs’ immigrant visa applications.

11

On November 13, 2007, defe ndants filed the instant m otion to dism iss. On

12 November 26, 2007, plaintiffs filed an oppoistion thereto, and a cross-motion for summary

13 judgment. On January 16, 2008, defendants filed their repl y. A hearing was held on

14 January 28, 2008. The Court denied plaintiffs’ motion for summary judgment without

15 prejudice to its being renewed, continued defendants’ motion to dismiss, and ordered the

16 parties to file further briefing. Defendants filed their supplemental memorandum to their

17 motion to dismiss on February 11, 2008. Plaintiffs filed their supplem ental opposition

18 thereto on February 15, 2008. A hearing wa s held on March 3, 2008. After carefully

19 considering the parties’ arguments, the Court finds and concludes as follows.

20 II. FACTUAL BACKGROUND

21

Plaintiffs are all aliens who were previously married to United States citizens. The

22 United States citizen spouses, except for pl aintiff Nguyen’s spouse, filed a Form I-130,

23 Petition for Alien Relative (“I-130 petition”), on behalf of plaintiffs pursuant to 8 U.S.C.

24 § 1154(a)(1)(A)(i).2 The same day that their citizenspouses filed the I-130 petitions, each

25

26

2 Plaintiff Nguyen previously filed and received a Form I-129F, Petition for Alien

27

Fiancé. Plaintiff Nguyen then married her United States citizen spouse within ninety days from entry into the United States under K-1 visa status, and applied for adjustm ent of

28

(continued...)

2

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 3 of 34 Page ID #:314

1 of the alien plaintiffs, except for plaintiffs Walsh and Lu, filed a Form I-485, Application

2 to Register Permanent Resident Status or to Adjust Status (“I-485 application”).3

3

Except for plaintiffs Walsh and Lu, plaintiffs’ United States citizen spouses each

4 died after filing their respective I-130 petitions, but before adjudication of said petitions.

5 USCIS then denied the I-130 petitions based on defendants’ determination that plaintiffs

6 were not “immediate relative[s]” for purposes of the INA because plaintiffs’ ci tizen

7 spouses died before the two-year marriage anniversary of the citizen spouse and the alien

8 spouse. Pla intiffs Walsh and Lu’s I-130 pe titions were initially approved, but the n

9 automatically revoked by USCIS upon the death oftheir spouses. USCIS has not yet acted

10 upon plaintiff Engstrom’s petition and application.

11 III. STATUTORY AND LEGAL CONTEXT

12

The INA imposes a numerical quota on the number of immigrant visas that may be

13 issued and/or the number of aliens who may otherwise be admitted into the United States

14 for permanent residence. See 8 U.S.C. § 1151(a). However, aliens who are “immediate

15 relative[s]” of United Statescitizens are exemptfrom these numerical limitations. 8 U.S.C.

16 § 1151(b)(2)(A). To receive an immigrant visa by virtue of one’s status as an “immediate

17 relative” spouse, the alien’s United States citizen spouse must first petition the Attorney

18 General claiming that the alien is entitled to “immediate relative” status. 8 U.S.C. §

19 1154(a)(1)(A)(I). “Immediate relative” is a term defined in 8 U.S.C. § 1154(b)(2)(A)(I):

20

For purposes of . . . subscetion [1154(b)(2)(A)(I)], the termimmediate relative

21

means the children, spouses, and parent s of a citizen of the United States,

22

except that, in the case of parents, such citizens shall be at least 21 years of

23

24

2(...continued)

25 status.

26

3 Because plaintiffs Walsh and Lu were not in the United States, the United States

27

Department of State began processing thei r immigrant visas after the I-130 petitions of their citizen spouses were approved.

28

3

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 4 of 34 Page ID #:315

1

age. In the case of an alien who was the spouse of a citizen of the United

2

States for at least 2 years at the time of the citizen’s death and was not legally

3

separated from the citizen atthe time of the citizen'sdeath, the alien (and each

4

child of th e alien) shall be consider ed, for purposes of this subsection, to

5

remain an immediate relative after the date of the citizen’s death but only if

6

the spouse files a petition under section 204(a)(1)(A)(ii) [8 U.S.C. §

7

1154(a)(1)(A)(ii)] within 2 years after such date and only until the date the

8

spouse remarries. For purposes of this clause, an alien who has filed a

9

petition under clause (iii) or (iv) of section 204(a)(1)(A) of this Act [8 U.S.C.

10

§ 1154(a)(1)(A)] remains an immediate relative in the event that the United

11

States citizen spouse or parent loses United States citizenship on account of

12

the abuse.

13 8 U.S.C. § 1154(b)(2)(A)(I) (internal quotations omitted). After the citizen spouse files the

14 I-130 petition, the Attorney General conducts an investigation to determine whether

15 “the facts stated in the petition are true and that the alien on behalf of whom the petition

16 is made is an immediate relative.” 8 U.S.C. § 1154(b). If the Attorney General determines

17 that the aforementioned is true , then “[t]he Secretary of St ate shall . . . authorize the

18 consular officer concerned to grant [the alien beneficiary immediate relative] status.” Id.

19

Once the I-130 petition is approved, the a lien-beneficiary may then request an

20 adjustment of immigrant status to that of legal permanent resident pursuant to 8 C.F.R. §

21 245.2(a)(2) by filing an I-485 application for adjustment of status.4 See8 U.S.C. § 1255(a).

22 8 U.S.C. 1255(a) provides

23

The status of an alien who was inspect ed and admitted or paroled in to the

24

United States . . . may be adjusted by the Attorney General, in his discretion

25

and under such regulations as he may prescribe, to that of an alien lawfully

26

27

4 The I-130 petition and I-485 application may also be filed simultaneously. See 8

28 U.S.C. §§ 1151(b)(2)(A)(i), 1255(a); 8 C.F.R. § 245.2.

4

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 5 of 34 Page ID #:316

1

admitted for permanent residence if (1 ) the alien makes an application for

2

such adjustment, (2) the alien is eligible to receive an immigrant visa and is

3

admissible to the United States for permanent residence, and (3) an immigrant

4

visa is immediately available to him at the time his application is filed.

5 Thus, to have one’s status adjusted fromalien to that of legal permanent resident, the alien

6 must be eligible to receive an immigrant visaand the immigrant visamust be immediately

7 available at the tim e that the alien’s I-485 application is adjudi cated. 8 C.F.R. §

8 245.2(a)(2)(I). Accordingly, the alien must have an approved I-130 petition to be eligible

9 for adjustment of status.5

10

If the citizen spouse dies after the I-130 petition has been approved, but before final

11 decision on the alien’s I-485 application, th e I-130 petition is autom atically revoked. 8

12 C.F.R. § 205.1. 8 C.F.R. § 205.1(a)(3) affords an exception to this rule of autom atic

13 revocation allowing USCIS, at its discretiont,o reinstate the I-130 petition for humanitarian

14 reasons if another relative is“willing and able to file an affidavit of support as a substitute

15 sponsor.” Mot. to Dismiss at 5. Defendants argue that according to Abboud v. INS, 140

16 F.3d 843 (9th Cir. 1998)and Dodig v. INS, 9 F.3d 1418 (9th Cir. 1993), this humanitarian

17 relief exception is not available if the citizen spouse dies before his or her I-130 petition

18 has been approved.

According to defendants,

19 in order to be considered an “im mediate relative” for purposes of 8 U.S.C. §

20 1115(b)(2)(A)(I), the alien spouse must have been married to his or her petitioning citizen

21 spouse for at least two-years at the time of the citizen spouse’s death. Defendants argue

22 that when an alien’s United States citizen spouse dies before the couple’s two year

23 marriage anniversary, the alien loses his or her spousal status. Defendants rely primarily

24

25

5 The determination to ultimately grant the alien’s I-485 application for adjustment

26 of status is entirely within the discretion of the Attorney General. 8 U.S.C. § 1255(a);

27

Matter of Tanahan, 18 I. & N. Dec. 339, 342 (B.I.A. 1981) (“An applicant who meets the objective prerequisites for adjustment of status is in no way entitled to that relief.”); INS

28 v. Chadha, 462 U.S. 919, 937 (1983) (same).

5

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 6 of 34 Page ID #:317

1 on the Board of Im migration Appeals’ (som etimes referred to herein as the “Board”)

2 decision in Matter of Varela, 13 I. & N. Dec. 453 (B.I.A. 1973), to support their arguemnts.

3 In Matter of Varela, the Board held that if the petitioning citizen spouse dies before the

4 Attorney General has approved the citizen spouse’s I-130 petition, the alien beneficiary

5 may no longer be considered “the spouse of a United States citizen” for purposes of the

6 INA. Matter of Varela, 13 I. & N. Dec. at 454. According to Matter of Varela, the death

7 of the citizen spouse ends the legal marriage, and thereby strips the alien spouse of his or

8 her “immediate relative” status. Id.

9

Defendants argue that the Board later affirmed this holding in Matter of Sano, 19 I.

10 & N. Dec. 299 (B.I.A. 1985). In Matter of Sano, the Board held thatan alien spouse lacks

11 standing to appeal from the denial of the citizen spouse’s I-130 petition. Matter of Sano,

12 19 I. & N. Dec. at 301. The Board concludedthat it thereby “lacks jurisdiction to address

13 an appeal by the beneficiary fromthe denial of a visa petition.” Id.at 300-01. The Board

14 further stated that its prior review of the beneficiary’s appeal in Matter of Varelawas thus

15 “inappropriate” because it was “extra-jurisdictional.” Id. at 300. Defendants contend that

16 the Board’s decisions in Matter of Varelaand Matter of Sanoare in accord with the general

17 rule in the United States that marriage ends upon the death of a spouse. Defendants further

18 contend that the Board’s construction of the“immediate relative” statute is in accord with

19 the ordinary meaning of “spouse.”

20

In Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), the Court of Appeals for the

21 Ninth Circuit rejected the arguments now advanced by defendants. Carla Freeman, (“Mrs.

22 Freeman”), an alien, married Robert Freeman (“Mr. Freeman”), a United States citizen.

23 Id. at 1033. Mr. Freeman filed an I-130 petition on Mrs. Freeman’s behalf. Id. That same

24 day, Mrs. Freeman filed an I-485 application fo r adjustment of status to that of lawful

25 permanent resident. Id. Just prior to the couple’s frist wedding anniversary, Mr. Freeman

26 was killed in a car accident. Id. Mr. Freeman’s I-130 petition and Mrs. Freeman’s I-485

27 application were still pending. Id. USCIS then denied Mrs.Freeman’s I-485 application.

28 Id. USCIS found that Mrs. Freeman was notentitled to “immediate relative” status because

6

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 7 of 34 Page ID #:318

1 she was no longer the spouse of a United States citizen. Id.USCIS ordered Mrs. Freeman

2 to leave the United States. Id. She petitioned for a writ of habeas corpus in federal district

3 court challenging this decision. Id.The district court denied her petition, and she appealed

4 to the Ninth Circuit. Id. The government advanced largely the same arguments before the

5 Ninth Circuit as it does now before this Court:

6

The government, relying primarily on the statute’s second sentence (“In the

7

case of an alien who wa s the spouse of a citizen . . .”), read[]

§

8

1151(b)(2)(A)(I) as “requiring that in order to be an ‘im mediate relative’

9

under immigration law the alien ‘spouse’ (wife) must have been married to

10

the United States citizen ‘spouse’ (husband) ‘for at least 2 years at the time

11

of the citizen”s [sic] death.’” Under the government’s proffered reading, if

12

the citizen spouse dies before the second anniversary of the qualifying

13

marriage, the alien spouse is no longerconsidered a ‘spouse’ and is no longer

14

entitled to an adjustment of status.

15 Id. at 1038.

16

The Ninth Circuit rejected the government’s interpretation:

17

[C]onclud[ing], through [its] review of the language, structure, purpose and

18

application of the statute, that Congress clearly intended an alien widow

19

whose citizen spouse has filed the nece ssary forms to be and to rem ain an

20

immediate relative (spouse) for purposes of § 1151(b)(2)(A)(I), even if the

21

citizen spouse dies within two years of the marriage. As such, the widowed

22

spouse remains entitled to the proce ss that flows from a properly filed

23

adjustment of status application. The two-year durational language in the

24

second sentence of § 1151(b)(2)(A)(I) grants a separate right to an alien

25

widow to self-petition, within two years of the citizen spouse’s death, by

26

filing a form I-360 where the citizen spouse had not filed an im mediate

27

relative petition prior to his death.

28 Id. at 1039. The court held that because Mrs. Freeman had filed all necessary forms, she

7

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 8 of 34 Page ID #:319

1 “must be considered a spouse for purposes of her adjustment of status application.” Id.

2

Plaintiffs are now before this Court seeking to have Freeman applied to all of their

3 cases, or alternatively, as to plaintiffs whose cases arose outside of the jurisdiction of the

4 Ninth Circuit, requesting that the Court inde pendently conclude that the death of their

5 United States citizen spouses did not deprive them of their “immediate relative” statuses.

6 Defendants, on the other hand, assert (1) that USCIS will apply Freem an only for cases

7 arising within the jurisdiction of the Ninth Circuit and only if the alien spouse filed an I-

8 485 application before the death of his or her citizen spouse and (2) that USCIS will apply

9 Matter of Varela and Matter of Sano for cases arising outside of the jurisdiction of the

10 Ninth Circuit.

11 IV. LEGAL STANDARD

12

A. MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1)

13

A motion to dismiss an action under Fed. R. Civ. P. 12(b)(1) raises the question of

14 the federal court’s subject matter jurisdiction over the action. The objection presented by

15 this motion is that the court has no authority tohear and decide the case. This defect may

16 exist despite the formal sufficiency ofthe allegations in the complaint. SeeT.B. Harms Co.

17 v. Eliscu, 226 F. Supp. 337, 338 (S.D. N.Y. 1964), aff'd 339 F.2d 823 (2d Cir. 1964) (the

18 formal allegations m ust yield to the substa nce of the claim when a motion is filed to

19 dismiss the complaint for lack of subject matter jurisdiction). When considering a Fed. R.

20 Civ. P. 12(b)(1) motion challenging the substance of jurisdictional allegations, the Court

21 is not restricted to the f ace of the pleadings, but may review any evidence, such as

22 declarations and testimony, to resolve any factual disputes concerning the existence of

23 jurisdiction. See McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).

24

The burden of proof in a Fed. R. Civ. P. 12(b)(1) motion is on the party asserting

25 jurisdiction. SeeSopcak v. Northern Mountain Helicopter Serv,.52 F.3d 817, 818 (9th Cir.

26 1995); Ass’n of Am. Med. Coll. v. United States, 217 F.3d 770, 778-79 (9th Cir. 2000).

27 If jurisdiction is based on a federal question, the pleader must show that he has alleged a

28 claim under federal law and that the claim is not frivolous. See 5B Charles A. Wright &

8

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 9 of 34 Page ID #:320

1 Arthur R. Miller, Federal Practice and Procedure, § 1350, pp. 211, 231 (3d ed. 2004). On

2 the other hand, if jurisdiction is based on diversity of citizenship, the pleader must show

3 real and complete d iversity, and also th at his asserted claim exceeds the requisite

4 jurisdictional amount of $75,000. See id.

5

B. MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6)

6

A Fed. R. Civ. P. 12(b)(6) motion tests the legal sufficiency of the claims asserted

7 in a complaint. “While a co mplaint attacked by a [Fed. R. Civ. P.] 12(b)(6) motion to

8 dismiss does not need detailed factual allegati ons, a plaintiff’s obligation to provide the

9 ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a

10 formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp.

11 v. Twombly, 127 S. Ct. 1955, 1964-65 (2007). “[F]actual allegations must be enough to

12 raise a right to relief above the speculative level.” Id. at 1965.

13

In considering a motion pursuant to Fed. R.Civ. P. 12(b)(6), a court must accept as

14 true all material allegations in the com plaint, as well as al l reasonable inferences to be

15 drawn from them. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). The complaint

16 must be read in the light most favorable to the nonmoving party. Sprewell v. Golden State

17 Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d

18 1480, 1484 (9th Cir. 1995). However , a cou rt need not accept as true unreasonable

19 inferences or conclusory legal allegations cast in the form of factual allegations. Sprewell,

20 266 F.3d at 988; W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

21

Dismissal pursuant to Fed. R. Civ. P. 12(b)(6) is proper only where there is either

22 a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a

23 cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.

24 1990).

25

Furthermore, unless a court converts a Fed.R. Civ. P. 12(b)(6) motion into a motion

26 for summary judgment, a court cannot consider m aterial outside of the com plaint (e.g.,

27 facts presented in briefs, affidavits, or discovery materials). In re American Cont’l

28 Corp./Lincoln Sav. & Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other

9

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 10 of 34 Page ID #:321

1 grounds sub nom Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26

2 (1998). A court m ay, however, consider exhibits submitted with or alleged in the

3 complaint and matters that may be judicially noticed pursuant to Fed. R. Evid. 201. In re

4 Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); Lee v. City of Los

5 Angeles, 250 F.3d 668, 689 (9th Cir. 2001).

6

For all of these reasons, it is only under extraordinary circumstances that dismissal

7 is proper under Fed. R. Civ. P. 12(b)(6). United States v. City of Redwood City, 640 F.2d

8 963, 966 (9th Cir. 1981).

9

As a general rule, leave to amend a complaint which has been dismissed should be

10 freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the

11 court determines that the allegation of other facts consistent with the challenged pleading

12 could not possibly cure thedeficiency.” SchreiberDistrib. Co. v. Serv-Well Furniture Co.,

13 806 F.2d 1393, 1401 (9th Cir. 1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.

14 2000).

15 V. DISCUSSION

16

A. MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1)

17

1. SUBJECT MATTER JURISDICTION

18

Defendants contest subject m atter jurisdiction, arguing that the Court lacks

19 jurisdiction to hear plaintiffs’ claims becauseof (1) plaintiffs’ failure to exhaust available

20 administrative remedies and (2) for lack of final agency action.

21

a. Federal Question Jurisdiction

22

The complaint alleges that this Courthas federal question jurisdiction pursuant

23 to 28 U.S.C. § 1331. The complaint further alleges that the Court has jurisdiction under

24 the INA, the Adm inistrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq ., and the

25 Mandamus and Venue Act (“Mandamus Act”), 28 U.S.C. §§ 1361 et seq.6

26

27

6 “[W]hile beyond dispute that the APA does not provide an independent basis for

28

(continued...)

10

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 11 of 34 Page ID #:322

1

Federal question jurisdiction “refers to th e subject matter jurisdiction of federal

2 courts for claim s ‘arising under’ the U.S. Constitution, treaties, federal statutes,

3 administrative regulations, or common law.” W. Schwarzer, A. Tashima & J. Wagstaffe,

4 The Rutter Group Guide: Fed. Civ. Proc. Before Trial, § 2:54 (2006); 28 U.S.C. § 1331.

5 Here, plaintiffs ask the Court to interp ret the m eaning of “spouse” under 8 U.S.C. §

6 1151(b)(2)(A)(I). This presents a “purely legal question[].” Freeman v. Gonzales, 444

7 F.3d 1031, 1037 (9th Cir. 2006). Sim ilarly, the issue of “whether an alien is statutorily

8 eligible for adjustment of status” is a “legal question.” Ortega-Cervantes v. Gonzales, 501

9 F.3d 1111, 1113 (9th Cir. 2007); see also Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir.

10 2005) (“Determination of eligibility for adjustm ent of status - unlike the granting of

11 adjustment itself - is a purely legal question and does not implicate agency discretion.”).

12

The Real ID Act of 2005, enacted on May 112, 005, limits judicial review of denials

13 of discretionary relief. See 8 U.S.C. § 1252(a)(2)(B). Specifically, 8 U.S.C. §

14 1252(a)(2)(B) provides that

15

no court shall jurisdiction to review . . . any other decision or action of the

16

Attorney General or the Secretary of Homeland Security the authority for

17

which is specified under this title [8 U.S.C. §§ 1151 et seq.] to be in the

18

discretion of the Attorney General or the Secretary of Homeland Security,

19

other than the granting of relief under section 208(a) [8 U.S.C. § 1158(a)].

20 However, in Freeman, the Ninth Circuit, in concluding that it had jurisdiction over the alien

21 plaintiff’s final order of deportation, found that this limitation does not apply to “purely

22 legal claims.” Freeman, 444 F.3d at 1037. Based on the foregoing, the Court concludes

23 that it has subject m atter jurisdiction over plaintiffs’ instant claim s which present only

24

25

6(...continued)

26 subject matter jurisdiction, a federal court has jurisdiction pursuant to 28 U.S.C. § 1331

27

over challenges to federal agency action as claims arising under federal law, unless a statute expressly precludes review.” GalloCattle Co. v. United States Dep’t of Agric,.159

28 F.3d 1194, 1198 (9th Cir. 1998).

11

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 12 of 34 Page ID #:323

1 questions of interpretation of a federal statute.

2

b. Claims under the APA and/or the Mandamus Act

3

Defendants argue that the Court is deprived of jurisdiction to adjudicate plaintiffs’

4 claims because plaintiffs did not ex haust their administrative remedies prior to seeking

5 judicial review and for lack of final agencyaction. Defendants concede that exhaustion is

6 not statutorily required. However, citing to Laing v. Ashcroft , 370 F.3d 994 (9th Cir.

7 2004), defendants nonetheless urge the Court to require exhaustion. Id. at 997 (requiring

8 habeas petitioner to exhaust administrative remedies before seeking judicial review of the

9 Board’s decision of removal, although exhaustion is not required by statute).

10

The Court thus turns to whether it has jurisdiction to adjudicate plaintiffs’ claims

11 under the Mandamus Act and/or the APA.7

12

13

7 During the hearing held on March 3, 2008,defendants’ counsel asserted that R.T.

14

Vanderbilt Co. v. Babbitt , 113 F.3d 1061 (9th Cir. 1997), instructs that a court is not required to conduct a separate APA and Mandamus Act analysis. Defendants’ counsel

15 further argued that the Court should look only to the APA, and notthe Mandamus Act, to

16

determine whether it has jurisdiction because the AP A provides the “primary basis of jurisdiction.” Tr. of March 3, 2008 hearing (rough draft) at 2.

17

Defendants’ reliance on R.T. Vanderbilt Co. is misplaced. In R.T. Vanderbilt

18

Co., the Ninth Circuit analyzed the m erits of the plaintiff’s claim to determine if it was entitled to relief. While in In dependence Mining Co. v. Babbitt, 105 F.3d 502 (9th Cir.

19 1997), on which R.T. Vanderbilt Co. relied, the Ninth Circu it may have expressed a

20 preference for first analyzing jurisdiction under the APA, this is because where the court has jurisdiction under the APA there is no ne ed to a nalyze jurisdiction under the
21 Mandamus Act if the relief sought under the APA and the Mandamus Act is essentially the

22 same. See Jianhua Dong v. Chertoff, 513 F. Supp. 2d 1158, 1162 (N.D. Cal. 2007) (“[I]f the Court has jurisdiction pursuant to one, it need not analyze jurisdiction with respect to
23 the other.”); Abbasfar v. Chertoff , 2007 U.S. Dist. LEXIS 65050, at *11-12 (N.D. Cal.

24 2007) (“Because the same relief is sought and jurisdiction is present under the APA, this order need not address whether mandamus jurisdiction exists in the context of petitioner’s
25 claim.”); Yufeng Liu v. Chertoff, 2007 U.S. Dist. LEXIS 65687, at *12-13 (D. Or. 2007)

26 (analyzing its jurisdiction under the APA first because unlike the Mandamus Act, the APA

27

does not require exhaustion of remedies, and reasoning that if there is jurisdiction under the APA the court need not address the quetsion of jurisdiction under the Mandamus Act);

28

(continued...)

12

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 13 of 34 Page ID #:324

1

i. The APA

2

The APA permits “[a] person suffering legal wrong because of agency action, or

3 adversely affected or aggrieved by agency action within the meaning of a relevant statute”

4 to bring suit against the agency. 5 U.S.C. § 702. As defined, “agency action” includes

5 “failure to act.” 5 U.S.C. §551(13). The district court is explicitly empowered to “compel

6 agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). For relief

7 pursuant to 28 U.S.C. § 1331 and the APA, plai ntiff must show that defendant had a

8 nondiscretionary duty to act, and unreasonably delayed in processing his application for

9 naturalization. Singh v. Still, 470 F. Supp. 2d 1064, 1067 (N.D. Cal. 2007).

10

1. Exhaustion of Administrative Remedies

11

In Darby v. Cisneros, 509 U.S. 137 (1993), the United States Supreme Court held

12 that federal courts may not require a plaintiff to exhaust administrative remedies before

13 seeking review under the APA unless exhaustionis expressly required by statute, or by an

14 agency rule. Id.at 143-44; seealso W. Schwarzer, A. Tashima & J. Wagstaffe, The Rutter

15 Group Guide: Fed. Civ. Proc. Before Trial , §§ 1:202.5, 1:205.1 (2006) (“Absent such

16 statute or agency rules, federal courts may not require plaintiffs to seek reconsideration or

17 exhaust appeals to higher adm inistrative remedies before pursuing judicial review.”)

18 (emphasis in original). Here, it is undisputed that the INA does not require plaintiffs to

19 exhaust their administrative remedies prior toseeking judicial review. Defendants contend

20

21

7(...continued)

22 see also Sun v. Gonzales , 2007 U.S. Dist. LEXIS 84459, at *6-14 (D. Wash. 2007) (conducting separate jurisdic tional analysis under the Mandam us Act and the APA);
23 Deepakkumar Himatlal Soneji v. Dep’t of Homeland Sec., 525 F. Supp. 2d 1151, 1154-57

24 (N.D. Cal. 2007) (same). In light of the fact that (1) the Court can require prudential exhaustion under the Mandamus Act, see Hironymous v. Bowen, 800 F.2d 888, 892 (9th
25 Cir. 1986), (2) the Court cannot require prudential exhaustion under the APA, see Darby

26 v. Cisneros, 509 U.S. 137, 143-44 (1993), and (3) the Court’s ruling herein that the Court

27

lacks jurisdiction under the APA over certain pl aintiffs’ claims for lack of final agency action, see discussion infra section V.A.1.b.i.2, a separate jurisdictional analysis under the

28 Mandamus Act and the APA is necessary.

13

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 14 of 34 Page ID #:325

1 that the Court should require prudential exhaustion under the Ninth Circuit’s decision in

2 Laing. Thus, defendants appear to concede thatexhaustion is not required by agency rule.

3 See e.g., Bangura v. Hansen, 434 F.3d 487, 499 (6th Cir. 2006) (“This is because Plaintiffs

4 do not appeal an order of rem oval but the denial of spousal i mmigration petition. In

5 contrast to orders of removal, the INA does not require aliens to appeal denials of spousal

6 immigration petitions to the BIA before seekingrelief in federal court . . . . Therefore, this

7 Court does not have the authority to require Plani tiffs to appeal to the BIA before bringing

8 their claims under the APA in federal court. ”). However, this Court cannot judicially

9 require exhaustion under the APA where the same is not mandated by statute or agency

10 rule.

11

While on the one hand defendants argue that the Court should require exhaustion as

12 a “prudential m atter,” thereby conced ing that exhaustion is not required by statute or

13 agency rule, on the other hand defendants ur ge this Court to follow Rivera-Durm az v.

14 Chertoff, 456 F. Supp. 2d 943 (D. Ill. 2006), and

to conclude that “8 C.F.R. §

15 245.2(a)(5)(2) (2006) . . . imposes a mandatory exhaustion requirement.” Mot. to Dismiss

16 at 1. With respect to the latter contention, defendants argue that this Court does not have

17 jurisdiction under the APA over plaintiffs who are not in removal proceedings, nor with

18 respect to those plaintiffs who are in rem oval proceedings, because plaintiffs hav e not

19 exhausted their remedies as required by 8 C.F.R. § 245.2(a)(5)(2), i.e., by agency rule.

20

For the reasons stated below, seediscussion infra, V.A.1.b.ii.2, the Court concludes

21 that Rivera-Durmaz is inapposite. To the extent that Rivera-Durm az is applicable, the

22 Court declines to follow the court’s holding therein. 8 C.F.R. § 245.2(a)(5)(ii) does not

23 expressly require that an alien renew a denied I-485 application in removal proceedings.

24 Instead, 8 C.F.R. § 245.2(a)(5)(ii) states thatan alien “may renew a denied application” in

25 removal proceedings. This language is perm issive. Courts are split on the question of

26 whether an applicant for adjustment of status may seek judicial review before renewing the

27 request during removal proceedings. SeeDavies v. Gonzalez, 2007 WL 2120312, at *3-4

28 (M.D. Fl. 2007) (recognizing split); Hillcrest Baptist Church v. United States, 2007 U.S.

14

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 15 of 34 Page ID #:326

1 Dist. LEXIS 12782, at *16 (D. Wash. 2007) (citingsplit of authority). However, according

2 to Ninth Circuit precedent, whi ch binds this Court, a court may exercise jurisdiction to

3 review the denial of an alien’s adjustm ent of status application where the al ien has not

4 renewed the denied application in t he context of removal proceedings. Jaa v. INS , 779

5 F.2d 569, 579 (9th Cir. 1986) (citing 8U.S.C. § 1329; Cheng Fan Kwok v. INS, 392 U.S.

6 206, 210 (1968); Galvez v. Howerton, 503 F. Supp. 35, 38 (C.D. Cal. 1980) (concluding

7 that district court had jurisdiction to review palintiff’s challenge to denial of her application

8 for adjustment of status); Chan v. Reno, 113 F.3d 1068, 1071 (9th Cir. 1997) (citing Yu

9 Xian Tang and Jaa in concluding that di strict court had jurisdiction over plaintiffs’

10 challenge to the denial of their applications for adjustment of status); Hillcrest Baptist

11 Church v. United States, 2007 U.S. Dist. LEXIS 12782, at *16 (D. Wash. 2007); Mart v.

12 Bebee, 2001 WL 13624, at *3-4 (D. Or. 2001); seaelso Young v. Reno, 114 F.3d 879, 881-

13 82 (9th Cir. 1997) (concluding that 8 C.F.R. § 205.2, providing that United States citizen

14 petitioner “may appeal” denial or revocation of a petition for preferential status, is not

15 mandatory) (emphasis added); Chang v. United States, 327 F.3d 911, 922 (9th Cir. 2003)

16 (“Absent language foreclosing immediate judicial review, a district court’s subject matter

17 jurisdiction is unaffected by the availabilityof non-mandatory administrative procedures.”).

18 Accordingly, the Court concludes that 8 C.F.R. § 245.2(a)(5)(ii) does not im pose a

19 mandatory exhaustion requirement.

20

Based on the foregoing, the Court conclude s that plaintiffs are not required to

21 exhaust administrative remedies to pursue their claims under the APA.

22

2. Lack of Final Agency Action

23

Defendants next contend that plaintiffs Hootkins, Moncayo-Gigax, Vargas de Fisher,

24 Lockett, Brenteson, Win, Engstrom , Pointdexter, Rudl, Standife r, and Batool are not

25 entitled to judicial review under the APA for lackof final agency action. Defendants assert

26

27

28

15

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 16 of 34 Page ID #:327

1 that these plaintiffs have “applicationsor motions to reopen pending before USCIS.”8 Mot.

2 to Dismiss at 13. Defendants argue that acco rdingly, USCIS has not yet given the “last

3 word” as to these plaintiffs. Id. Defendants assert that because USCIS allows its field

4 adjudicators to follow Freeman as to applicants living within the jurisdiction of the Ninth

5 Circuit, “it is reasonable [sic] assume that the m otions will lead to approval of the visa

6 petitions, at least for those plaintiffs who canshow that their marriages were bona fide and

7 that they have substitute affidavit of support sponsors.” Id. Plaintiffs do not address

8 defendants’ argument regarding lack of final agency action. The APA permits “[a]

9 person suffering legal wrong because of agency action, or adversely affected or aggrieved

10 by agency action within the meaning of a relevant statute” to bring suit. 5 U.S.C. § 702.

11 Under the APA, a court m ay review “final agency action for which there is no other

12 adequate remedy in a court.” 5 U.S.C. § 704. To determine whether an agency action is

13 final, a court must apply the following two-part test:

14

First, the action m ust mark the “consummation” of the agency’s

15

decisionmaking process -- it must not be ofa merely tentative or interlocutory

16

nature. And second, the action must be one by which “rights or obligations

17

have been determined,” or from which “legal consequences will flow.”

18 Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal citations omitted).

19

Here, the complaint alleges that plainti ffs Hootkins, Moncayo-Gigax, Vargas de

20 Fisher, Lockett, Brenteson, Win, Engstrom, Pointdexter, Rudl, Standifer, and Batool all

21 have applications or motions to reopen pending before USCIS9. Therefore, there is no final

22

23

8 The Court notes that the failure to f ile a motion to reopen does not deprive the

24 Court of jurisdiction under the APA. Castillo-Villagra v. INS , 972 F.2d 1017, 1024-25

25 (9th Cir. 1992).

26 9 During the March 3, 2008 hearing, plain tiffs’ counsel asserted that plaintiffs
27 Brenteson’s and Standifer’s pending applica tions and/or m otions to reopen have been

28

(continued...)

16

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 17 of 34 Page ID #:328

1 agency action. Accordingly, judicial reviewunder the APA is not available as to plaintiffs

2 Hootkins, Moncayo-Gigax, Vargas de Fish er, Lockett, Brenteson, Win, Engstrom ,

3 Pointdexter, Rudl, Standifer, and Batool. See e.g., M.A. v. Reno, 114 F.3d 128 (9th Cir.

4 1997) (dismissing case because agency decisi on was not final). However, this Court

5 retains jurisdiction to adjudicate their claims under the Mandamus Act.

6

ii. Mandamus and Venue Act

7

Under the Mandamus Act, the district court is vested with “original jurisdiction of

8 any action in the nature of mandamus to compel an officer or employee of the United States

9 or any agency thereof to perform a duty owed to the plaintiff.” In order to obtain

10 mandamus relief pursuant to 28 U.S.C. § 1361, a plaintiff must demonstrate that “(1) [his

11 or her] claim is clear and certain; (2) the offciial’s duty is nondiscretionary, ministerial, and

12 so plainly prescribed as to be free fro m doubt; and (3) no othe r adequate rem edy is

13 available.” Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1997).

14

1. Whether Exhaustion is Required?

15

The United States Supreme Court has made clear that a plaintiff must exhaust his or

16 her administrative remedies before a writ ofmandamus may issue. Heckler v. Ringer, 466

17 U.S. 602, 615 (1984) (“The com mon-law writ of mandamus, as codified in 28 U.S.C. §

18 1361, is intended to provide a rem edy for a pl aintiff only if he has exhausted all other

19 avenues of relief and only if the defendant owes him a clear nondiscretionary duty.”).

20 However, the Suprem e Court did not state “whether the [exhaustion] requirement is

21 jurisdictional or instead goes to the merits of the question whether the plaintiff is entitled

22 to relief.” Hironymous v. Bowen, 800 F.2d 888, 891 (9th Cir. 1986). In Hironymous, the

23 Ninth Circuit Court of Appeal explained that “only when a plaintiff has failed to exhaust

24 administrative remedies made exclusive by statute will a court generally be deprived of

25 jurisdiction. In other cases, there is jurisdiction and a court has discretion in its application

26 9(...continued)
27 denied. However, plaintiffs’counsel has not submitted any declaration or affidavit to that 28 effect.

17

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 18 of 34 Page ID #:329

1 of the exhaustion doctrine.” Id. at 892.

2

Here, it is not disputed that exhaustion is not required by statute. Thus, the Court

3 is not deprived of subject m atter jurisdiction by plaintiffs’ allege d failure to exhaust

4 administrative remedies.

5

Nonetheless, a court may require exhaustion in certain circumstances. Hironymous,

6 800 F.2d at 892; see also Leorna v. United States Dep’t of State, 105 F.3d 548, 550 (9th

7 Cir. 1997) (“Generally, a party must exhaust her administrative remedies before she can

8 obtain judicial review of an agency decision.”); Hoeft v. Tucson Unified Sch. Dist., 967

9 F.2d 1298, 1302 (9th Cir. 1992) (“When a st atute does not provide for exhaustion of

10 administrative remedies, a trial court m ay require exhaustion in the exercise of its

11 discretion.”). A court m ay require exhausti on if “(1 ) agency expertise makes agency

12 consideration necessary to gener ate a prope r record and reach a proper decision; (2)

13 relaxation of the requirement would encourage the deliberate bypass of the administrative

14 scheme; and (3) adm inistrative review is likel y to allow th e agency to correct its own

15 mistakes and to preclude the need for judicial review. United States v. Cal. Care Corp. ,

16 709 F.2d 1241, 1248 (9th Cir. 1983).

17

The Court concludes that prudential exhaustion should not be required in this case.

18 First, the government’s position in this matter is clear. SeeMot. to Dismiss, Ex. 1 (USCIS

19 Interoffice Mem. from Mike Aytes, Assoc. Dir. of Domestic Operations, USCIS, to Field

20 Leadership (Nov. 8, 2007) (“USCIS Memorandum”) at 1 (“This memorandum reaffirms

21 for cases outside the 9th Circuit USCIS policy concerning the effect of a visa petitioner’s

22 death, while the petition is still pending, on theauthority to approve the petition. For cases

23 within the 9th Circuit, the memorandum directs USCIS adjudicators to follow Freeman v.

24 Gonzales, 444 F.3d 1031 (9 th Cir. 2006), in cases involving the sam e essential facts.”).

25 Second, allowing plaintiffs to seek judicialreview will not encourage the deliberate bypass

26 of the administrative process. All plaintiffs have petitioned the government for approval

27 of their I-130 applications. Defendants have not adduced any facts or otherwise suggested

28 that plaintiffs are seeking judicial review ina bad faith attempt to avoid the administrative

18

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 19 of 34 Page ID #:330

1 process. Instead, plaintiffs seek judicial review here because there is a dispute regarding

2 proper statutory interpretation, i.e., because the government does not consider plaintiffs to

3 be “immediate relative” spouses for the pur poses of the INA. Third , the USCIS

4 Memorandum makes clear that it is USCIS’ position that the death of a United States

5 citizen spouse strips the surviving alien spouse of his or her “immediate relative” spousal

6 status for purposes of the INA.

7

The Court finds that Laing, on which defendants rely, does not compel a contrary

8 ruling. Laing involved a plaintiff’s suit for habeasreview under 28 U.S.C. § 2241. Laing

9 v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004). AfteLr aing was convicted of a drug related

10 felony, the INS initiated rem oval proceedings against him . Id. at 996. Laing filed a

11 petition for cancellation of removal pursuant to 8 U.S.C. § 1229(b). Id. His petition was

12 denied by an im migration judge, and the Bo ard of Immigration Appeals affirmed this

13 denial. Id. at 996-97. Laing petitioned the Ninth Circuit for review; the court denied his

14 petition because it was untimely. Id.at 997. Then, Laing filed a petition for writ of habeas

15 corpus pursuant to 28 U.S.C. § 22 41 in district court. Id. The district court assumed

16 jurisdiction and denied Laing’s petition. Id. Laing appealed to the Ninth Circuit. Id. On

17 appeal, the court determined that the distri ct court erred i n reviewing Laing’s habeas

18 petition because Laing had failed to exhaust administrative remedies, and his failure was

19 not excusable. The Ninth Circuit held that while 28 U.S.C. § 2241 does not specifically

20 require exhaustion, exhaustion is required as a “‘prudential matter.’” Id. (citing Castro-

21 Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)).

22

A habeas petitioner must exhaust administrative remedies before seeking judicial

23 review because

24

“The requirement of exhaustion of re medies will aid judicial review by

25

allowing the appropriate development of a factual record in an expert forum;

26

conserve the court’s time because of the possibility that the relief applied for

27

may be granted at the adm inistrative level; and allow the adm inistrative

28

agency an opportunity to correct errors occurring in the course of

19

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 20 of 34 Page ID #:331

1

administrative proceedings.”

2 Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir. 1984) (quoting Ruiwat v.

3 Smith, 701 F.2d 844, 845 (9th Cir. 1983) (per curiam)).

4

Thus, Laing employed essentially the same three-factor analysis set forth above in

5 deciding that exhaustion should be judicially rqeuired. However, for the reasons discussed

6 herein, the Court concludes that under the facts of this case, plaintiffs are not required to

7 exhaust their administrative remedies.

8

2. Whether Nonexhaustion May be Excused?

9

Alternatively, the Court concludes that plaintiffs are excused from exhausting any

10 administrative remedies.

11

Where the exhaustion requirement is not required by statute but judicially created,

12 a plaintiff’s failure to exhaust m ay be ex cused if “the rem edies are inadequate,

13 inefficacious, or futile, where pursuit of them would irreparably injure the plaintiff, or

14 where the administrative proceedings themselves are void.” United Farm Workers of Am.

15 v. Ariz. Agric. Emp. Rel. Bd., 669 F.2d 1249, 1253 (9th Cir.1982) (citation omitted); see

16 also Ramona-Sepulveda v. I.N.S. , 824 F.2d 749, 757 (9th Cir. 1987) (in case where

17 petitioner sought a writ of mandamus termintaing deportation proceedings, court found that

18 it “was [] not precluded from issuing mandamus relief by petitioner’s failure to exhaust

19 administrative remedies” where it “[i] t would be futile and unreasonable to req uire

20 petitioner to exhaust administrative remedies when” the government ignored the court’s

21 previous order) (internal citations omitted).

22

Defendants acknowledge that a court m ay excuse a judicially created exhaustion

23 requirement. However, defendants argue thatplaintiffs residing within the jurisdiction of

24 the Ninth Circuit should not be excused from exhausting administrative remedies because

25 USCIS has indicated that it will follow th e Freeman decision in the Ninth Circuit.

26 Specifically, defendants assert, relying on the USCIS Memorandum attached as Exhibit 1

27 to their instant motion, that USCIS adjudicators may approve an I-130 petition after the

28 United States citizen spouse dies, provided tha“tthe case involve[s]the same essential facts

20

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 21 of 34 Page ID #:332

1 [as Freeman], including the fact that alien filed the adjustm ent application before the

2 petitioner died, and if alien proves that the nowterminated marriage was legally valid, and

3 that the spouses did not m arry to confer an immigration benefit on the alien.” Mot. to

4 Dismiss at 5-6 (citing Mot. to Dismiss, Ex. 1 (USCIS Memorandum)). Further, defendants

5 contend that plaintiffs Walsh’s and Lu’s claims should be di smissed for nonexhaustion

6 because they have not requested hum anitarian reinstatement of their I-130 petitions

7 pursuant to 8 C.F.R. § 205.1(a)(3)(i)(C)(3).10

8

Plaintiffs respond that USCIS has errone ously interpreted the Ninth Circuit’s

9 decision in Freeman, and consequently, 8 U.S.C. § 1151(b)(2)(A)(i). Plaintiffs assert that

10 while the USCIS Memorandum instructs that Freeman is inapplicable unless an alien files

11 an I-485 a pplication before the death of the alien’s citizen spouse , Freeman did not

12 condition its ruling on the pre-death filing of anI-485 application for adjustment of status.

13 Additionally, plaintiffs assert that USCIS improperly attempts to revoke the post-death

14 approval of an I-130 petition “unless the [alienb] eneficiary presents a request under 8 CFR

15 205.(a)(3)(i)(C)(2) for hum anitarian reinstatement, supported by a properly com pleted

16 Form I-864 from an individual who qualifies under section 213(A)(f)(5)(B) of the Act as

17 a qualifying substitute sponsor.” Mot. to Dismiss, Ex. 1 (USCIS Mem orandum) at 7.

18 According to plaintiffs, an I-130 petition must be granted so long as the alien beneficiary

19

20

10 8 C.F.R. § 205.1(a)(3)(i)(C)(3) provides that the approval of I-130 petition will be

automatically revoked upon the death of the petitioning United States citizen spouse ,

21 unless:

22

[USCIS] determines, as a matter of discretion exercised for hum anitarian

23

reasons in light of the facts of a par ticular case, that it is inappropriate to

24

revoke the approval of the petition. USCIS may make this determination only

if the principal beneficiary of the visa petition asks for reinstatement of the

25

approval of the petition and establishes that a person related to the principal

26

beneficiary in one of the ways described in section 213A(f)(5)(B) of the Act

27

is willing and able to file an affidavit of support under 8 CFR part 213a as a substitute sponsor.

28

21

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 22 of 34 Page ID #:333

1 entered into a bona fide marriage with a United States citizen and the marriage was not

2 entered into when the alien was subject to deportation or removal proceedings, i.e., when

3 these conditions are m et, the decision to grant an I-130 petition is m andatory, not

4 discretionary. Plaintiffs ar gue that by allowing the Attorn ey General to exercise his

5 discretion to automatically revoke a properly approved I-130 petition, the government is

6 effectively making a nondiscretionary decision, discretionary.

7

Finally, plaintiffs challenge the propr iety of 8 C.F.R. § 205.1(a)(3)(C)(2). 11

8 According to plaintiffs, 8 C.F.R. § 205.1(a)(3)(C)(2), which provides that an I-130 petition

9 will be automatically revoked upon the death of the citizen spouse, is an im permissible

10 interpretation of 8 U.S.C. § 1155, which allows the Attorney General to exercise his

11 discretion to revoke an I-130 petition.12 Plaintiffs argue that because the regulation lacks

12

13

11 The complaint does not allege that 8 C. F.R. § 205.1(a)(3)(C)(3) is invalid as a

14 matter of law. To the extent that plaintiffs now seek to amend the complaint to add such

a claim, the Court hereby GRANTS plaintiffs’ request.

15

16

12 8 C.F.R. § 205.1(a)(3)(C)(2) provides that a previously approved I-130 petition will be automatically revoked upon the death ofthe United States citizen petitioner unless

17 the Attorney General m akes a discretionary determination that revocation would be

18

inappropriate for humanitarian reasons. Thisregulation is apparently based upon 8 U.S.C. § 1155, which provides that

19

20

The Secretary of Homeland Security may, at any time, for what he deems to

be good and sufficient cause, revoke the approval of anypetition approved by

21

him under section 1154 of this title. Such revocation shall be effective as of

22

the date of approval of any such petition.

23 While 8 U.S.C. § 1252(a)(2)(B)(ii) prohibits judicial review of any decision or action that

24 is “specified . . . to be under the discretion of the Attorney General,” the statute does not absolutely bar judicial review of 8 U.S.C. § 1155. “The ‘m ay, at any time, for what he
25 deems to be’ portion of the key phrase plainl y authorizes some measure of discretion.”

26 Ana Int’l v. Way, 393 F.3d 886, 893 (9th Cir. 2004). However, the “‘good and sufficient

27

cause’” language means that there must be some cause which has a logical relationship to the decision to revoke any petition. Id. at 893-94.

28

(continued...)

22

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 23 of 34 Page ID #:334

1 statutory basis, it is invalid.

2

Requiring plaintiffs whose cases arise outsideof the jurisdiction of the Ninth Circuit

3 to exhaust administrative remedies would be futile in light of the USCIS Mem orandum

4 instructing its field adjudicators to follow Matter of Varela and Matter of Sano, and not

5 Freeman, outside of the Ninth Circuit.

6

The Court further concludes that plaintiffswhose cases arise within the jurisdiction

7 of the Ninth Circuit and whose I-130 petitionsare approved after the death of their citizen

8 spouse under the Freeman decision need not exhaust admni istrative remedies because they

9 are challenging (1) USCIS’interpretation of Freeman and (2) the legality of the USCIS rule

10 that requires them to request humanitarian reinstatement under 8 C.F.R.

11 205.1(a)(3)(i)(C)(2) and to come forward with a substitute sponsor of support. While it is

12 true that courts rarely excuse the exhaustionrequirement, they have doneso “where . . . the

13 [plaintiff] challenge[s] . . . the adequacy of the agency procedure itself.” W. Schwarzer,

14 A. Tashima & J. Wagstaffe, The Rutter GroupGuide: Fed. Civ. Proc. Before Tria,l § 1:207

15 (2006); see also Espinoza-Gutierrez v. Smith , 94 F.3d 1270, 1273 (9th Cir. 1996);

16 Legalization Assistance Project v. INS, 976 F.2d 1198, 1203-04 (7th Cir. 1992); Heinl v.

17 Godici, 143 F. Supp. 2d 593, 601 (D. Va. 2001) (stating that court should excuse

18 exhaustion requirements where an administrative agency “acts in ‘brazen defiance’ of its

19 statutory authority”) (quoting Philip Morris, Inc. v. Block, 755 F.2d 368 (4th Cir. 1985));

20 Coit Independence Joint Venture v. Fed. Sav. & Loan Ins. Corp. , 489 U.S. 561 (1989);

21 Heldman v. Sobol , 962 F.2d 148, 159 (2d Cir. 1992) (“The policies underlying the

22 exhaustion requirement do not come into play, however, when pursuit of adm inistrative

23 remedies would be futile because the agency either was acting in violation of the law or

24 was unable to remedy the alleged injury.”); DCP Farms v. Yeutter, 957 F.2d 1183, 1189

25 (5th Cir. 1992) (stating that court m ay waive exhaustion requirement where a plaintiff

26

27

12(...continued)

28

23

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 24 of 34 Page ID #:335

1 challenges the administrative system as unlawful or unconstitutional or where it “‘ would

2 be futile to comply with the administrative procedures because it is clear that the claim will

3 be rejected’”) (quoting Patsy v. Fl. Int’l Univ., 634 F.2d 900, 904 (5th Cir.1981); Bavido

4 v. Apfel, 215 F.3d 743, 748 (7th Cir. 2000) (statingthat exhaustion is not required where

5 the plaintiff challenges the agency procedure itself); cf. Boise Cascade Corp. v. FTC, 498

6 F. Supp. 772, 778 (D. Del. 1980) (“Claim s of burdensome litigation expense, combined

7 with merely colorable claims that an agency is acting ultra vires or unconstitutionally, do

8 not establish irreparable injury, and are insufficient to trigger judicial intervention prior to

9 exhaustion of administrative remedies.”). Plaintiffs are challenging the legality of 8 C.F.R.

10 § 205.2(a)(3)(C)(2) and it does not appear that there is an administrative forum in which

11 plaintiffs can do so. Thus, exhaustion is unnecessary.

12

Defendants also urge the Court to follow Rivera-Durmaz, 456 F. Supp. 2d 943 (N.D.

13 Ill. 2006), and to require plaintiffs to assert their instant grievances in the context of

14 removal proceedings before the Executiv e Office for Immigration Review (“EOIR”).

15 Defendants argue that those plaintiffs whose I-485 applications have been denied, but for

16 whom removal proceedings have not yet be initiated or who are in removal proceedings,

17 have failed to exhaust administrative remedies.

18

In Rivera-Durmaz, the defendants approved plaintfif, Rossy Laura Rivera-Durmaz’s

19 I-130 petition for immediate relative status; however, defendants denied plaintiff Mahmut

20 Erhan Durmaz’s I-48 5 application for adjustme nt of status because the Durmazes had

21 apparently misrepresented facts to an immigration officer. Rivera-Durmaz, 456 F. Supp.

22 2d at 946. The Durm azes filed suit challenging the denial of Mr. Durm az’s I-485

23 application, arguing that the defendants’ actions were “arbitrary, capricious, and contrary

24 to the law .” Id. at 945. The defendants m oved to dismiss the com plaint due to the

25 Durmazes’ failure to exhaust administrative remedies. Id. at 951. The Durmazes argued

26 that 8 C.F.R. § 245.2(a)(5)(ii) permitted them to renew Mr. Durmaz’s I-485 application in

27 removal proceedings before the EOIR, but that it did not require them to do so. Id.at 952.

28 The court rejected the Durmazes’ interpretatoi n, reasoning that “Seventh Circuit case law”

24

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 25 of 34 Page ID #:336

1 mandated a contrary interpretation. Id. The Rivera-Durmaz court concluded that while 8

2 C.F.R. § 245.2(a)(5)(ii) states that an alie n “retains the right to renew his, or her

3 application” in proceedi ngs before the EOIR, the regulation imposed a mandatory

4 requirement to do the same. Id. at 952.

5

Rivera-Durmaz is inapposite. Unlike Mr. Durmaz, whose I-130 petition had been

6 approved, plaintiffs’ I-130 petitions have either not been approved or their approval has

7 been revoked. Plaintiffs are before thisCourt challenging defendants’ determination that

8 they are not “spouse s” for purpose s of 8 U .S.C. § 1154(b)(2)(A )(i), and there is no

9 administrative proceeding in which plaintiffs canchallenge this determination. According

10 to Matter of Sano, the Board of Immigration Appeals lacks jurisdiction to address an appeal

11 of the denial of an I-130 petition brought byan alien beneficiary. Matter of Sano, 19 I. &

12 N. Dec. 299, 301 (B.I.A. 1985). Moreover, plaintiffs cannot appeal the denial of an I-485

13 application for adjustment of status. See8 C.F.R. 245.2(a)(5)(ii)(“No appeal lies fromthe

14 denial of an [I-485] application by the director, but the applicant, if not an arriving alien,

15 retains the right to renew his or her application in proceedings under 8 CFR part 240.”).

16 “Because [plaintiffs’] Form I-485 application[s] [are] entirely dependent on an approved

17 Form I-130 petition[s], it would befutile for [them] to renew theapplication in . . . removal

18 proceedings.” Lockhart v. Chertoff, 2008 U.S. Dist. LEXIS 889, at *15-16 (D. Ohio 2008)

19 (citing Freeman, 444 F.3d 1031, 1037 (9th Cir. 2006); Taing v. Chertoff, 2007 U.S. Dist.

20 LEXIS 91411, at *7-8 (D. Mass. 2007); Robinson v. Chertoff, 2007 WL 1412284, at *1

21 (D. N.J. 2007)). Accordingly, the Court concludes that requiring plaintiffs to renew their

22 I-485 applications in the context of removal proceedings would be futile.13 T h u s , i f

23 arguendo plaintiffs are required to exhaust ad ministrative remedies, the Cou rt hereby

24 exercises its discretion to excuse any nonexhaustion (1) as futile, (2) as ineffective, and/or

25 (3) because plaintiffs are challengi ng (a) USCIS’ interpretation of Freem an and (b) the

26 13 Moreover, district courts do not have jurisdiction to review a final order of
27 removal. 8 U.S.C. § 1282(b)(2). 28

25

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 26 of 34 Page ID #:337

1 USCIS regulations that require them to request humanitarian reinstatement and to come

2 forward with substitute sponsors of suppor t before USCIS will approve their I-130

3 petitions.

4

2. THE DOCTRINE OF CLAIM PRECLUSION (RES JUDICATA)

5

Defendants alternatively arguethat various plaintiffs are barred fromprosecuting the

6 instant action by the doctrine of res judicata forfailure to file timely appeals of the denial

7 of their respective I-485 applications. Relying on Federated Departm ent Stores, Inc v.

8 Moitie, 452 U.S. 394 (1981) and Avila-Sanchez v. Mukasey , 509 F.3d 1037 (9th C ir.

9 2007), defendants argue that any plaintiff whose I-485 application was adjudicated prior

10 to the Freeman decision, and who failed to either a ppeal the denial of his or her I-485

11 application or to file a motion to reopen said denial after theNinth Circuit issued its ruling

12 in Freeman, is barred by the doctrine of res judicaat from having his or her denial reviewed

13 under the post-Freeman interpretation of therelevant statutory language. Defendants assert

14 that of the plaintiffs residing in the Ninth Circuit, none filed his or her application for

15 adjustment of status after April 21, 2006, the date of the Freeman decision, and all but one

16 application was initially denied prior to April 21, 2006. Defendants claim that plaintiffs,

17 De Mailly, Gobeil, and Nguyen failed to file timely appeals of their final, pre-April 2006,

18 agency decisions. Defendants further argue thathe doctrine of res judicata bars “plaintiffs

19 residing outside of the Ninth Circuit with final agency decisions”– plaintiffs Heard,

20 Fishman-Corman, Arias Angulo, Bernstein , and Bayor– from prosecuting the instant

21 action.

22

Plaintiffs contest the applicability of the doctrine of claim preclusion.

23

Under the doctrine of claim preclusion (or res judicata), “a final judgment on the

24 merits of an action precludes the parties or their privies from relitigating issues that were

25 or could have been raised in that action.” Allen v. McCurry , 449 U.S. 90, 93 (1980).

26 “Claim preclusion is a broad doctrine that bars bringing claims that were previously

27 litigated as well as some claims that were never before adjudicated.” Clements v. Airport

28 Auth. of Washoe County, 69 F.3d 321, 327 (9th Cir. 1995).

26

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 27 of 34 Page ID #:338

1

For a prior action to have preclusive eff ect, an adjudication m ust (1) involve the

2 same “claim” as the later suit, ( 2) have reached a final judgm ent on the m erits, and (3)

3 involve the same parties or their privies. Blonder-Tongue Laboratories v. Univ. of Ill.

4 Found., 402 U.S. 313, 323-24 (1971); Nordhorn v. Ladish Co., Inc,. 9 F.3d 1402 (9th Cir.

5 1993). In conducting claimpreclusion analysis, what matters is not whether the new claims

6 were brought before, but whether they c ould have been brought. Tahoe-Sierra Pres.

7 Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1078 (9th Cir. 2003). The

8 Ninth Circuit determines whether or not tw o claims are the same for purposes of res

9 judicata with reference to the following criteria:

10

(1) whether rights or interests estab lished in the prior judgm ent would be

11

destroyed or im paired by prosecution of the second action; (2) whether

12

substantially the same evidence is presented in the two actions; (3) whether

13

the two suits involve infringement of the same right; and (4) whether the two

14

suits arise out of the same transactional nucleus of facts.

15 Costantini v. Trans World Airline, 681 F.2d 1199, 1201-02 (9th Cir. 1982) (quoting Harris

16 v. Jacobs, 621 F.2d 341, 343 (9th Cir. 1980)).

17

Defendants cited cases are unpersuasive. In Federated Department Stores plaintiff

18 retail customers brought seven, separate parallel lawsuits . Federated Dep’t Stores , 452

19 U.S. at 395-96. The cases were all assigned toa single district court judge who eventually

20 dismissed all the cases for failure to state a claim. Id. at 396. The plaintiffs Moitie and

21 Brown did not appeal that adverse ruling. Id. Instead, they filed two separate suits in the

22 state court. Id. However, the other five plaintiffs successfully appealed to the Ninth

23 Circuit. Id. Moitie and Brown’s state court actions were eventually removed to federal

24 court. Id. The federal court then dism issed Moitie’s and Brown’s ac tions based on th e

25 doctrine of claim precl usion. Id. at 396-97. The Suprem e Court held that Moitie and

26 Brown were bound by their first unappealed judgments, and the fact that the legal principle

27 on which their first case was dismissed had been overturned, did not change this result. Id.

28 at 398, 402.

27

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 28 of 34 Page ID #:339

1

Similarly, in Avila-Sanchez , Avila was placed in removal proceedings and an

2 immigration judge determined that he was ineligible for cancellation of removal. Avila-

3 Sanchez, 509 F.3d at 1038. Avila filed a motion for reconsideration with the Board. Id.

4 The Board denied his motion. Id. at 1039. Avila did not challenge that decision through

5 a petition for review of habeas corpus or otherwise, and he was deported. Id. Later he

6 illegally returned to the United States. Id. He was again placed in removal proceedings.

7 Id. It is only at this point that Avila attempted to challenge his prior removal. Id.

8

Unlike both of those cases, plaintiffs havenever before sought review of the denial

9 of their citizen spouses’ I-130 petitions or their I-485 applications before a federal court,

10 an immigration judge, or the Board of Immigration Appeals. The filing of an I-130 petition

11 or an I-485 application, by itself, does not preclude a putative plaintiff from later seeking

12 redress in federal court; a contrary holding would prevent a federal court from ever

13 reviewing an administrative agency decision. Additionally, defendants do not cite to any

14 prior final decision that is allegedly being collaterally attacked.14

15

Defendants, as the party asserting the defense of claim preclusion, bear the burden

16 of showing that the doctrine applies. Clark v. Bear Stearns & Co. , 966 F.2d 1318, 1321

17 (9th Cir. 1992). The Court concludes that they have failed to meet their burden, and that

18 therefore, the doctrine of claim preclusion does not bar plaintiffs’ instant suit.

19

B. MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6)

20

1. THE CLAIMS OF PLAINTIFFS WHOSE CASES ARISE

21

OUTSIDE OF THE JURISDICTION OF THE NINTH CIRCUIT

22

Defendants argue that the complaint fails to state a claim upon which relief may be

23 granted with respect to plaintiffs residing outside of the Ninth Circuit. According to

24

25

14 Further, at the hearing held on Ja nuary 28, 2008, the Court requested that

defendants address whether plaintiffs were required to file a civil action within a specified

26 period of time and whether pl aintiffs had failed to do so. In their supplem ental

27 memorandum, defendants do not argue that plaintiffs’ instant action is untimely. Thus, it appears that plaintiffs’ instant lawsuit is timely.
28

28

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 29 of 34 Page ID #:340

1 defendants, the Board of Im migration Appeals’ decisions are binding on the DHS.

2 Defendants assert that where a United States Court of Appeals renders a decision that is

3 contrary to the position of the Board’s, that decision must be followed only as to cases

4 arising within the circuit in which the case was decided. However, defendants adhere to

5 the Board’s position for cases arising outside the court’s circuit. Defendants further claim

6 that a federal district court’s ruling is bindingonly as to the particular case before the court.

7 Defendants argue that accordingly, they are not required to follow Freemanin cases arising

8 outside of the jurisdiction of the Ninth Circuit. Defendants further assert that no other

9 Court of Appeals has rendered a published decision in line with Freeman.15 Based on the

10 foregoing, defendants argue that the Board’s decisions govern cases arising outside of the

11 jurisdiction of the Ninth Circuit. According to defendants, in Matter of Sano, 19 I. & N.

12 Dec. 299 (B.I.A. 1985) and Matter of Varela, 13 I. & N. Dec. 453 (B.I.A. 1970), the Board

13 held that an I-130 petition is tobe denied if the United Statescitizen spouse has died before

14 his or her two-year marriage anniversary.

15

Plaintiffs respond that because the statutory language at issue here is am biguous,

16 plaintiffs residing outside of the jurisdiction of the Ninth Circuit have stated claims for

17 relief. According to plaintiffs, federal courts outside of the Ninth Circuit have found that

18 8 U.S.C. § 1151(b)(2)(A)(i) is ambiguous and have held in accordance with Freeman.

19

The Court is mindful of the importance of allowing the government to litigate legal

20 issues before different courts throughout th e country. As Justice Rehnquist explained,

21 preventing the government from doing so “would deprive [the] [Supreme] Court of the

22 benefit it receives from permitting several court of appeals to explore a difficult question

23 before [the] [Supreme] Court grants certiorari.” United States v. Mendoza, 464 U.S. 154,

24 159 (1984) (holding that the United States may not be collaterallyestopped from litigating

25 an issue that was adjudicatedagainst it in a prior lawsuit bor ught by a different party). The

26 Court is also aware that “[i]t is standard practice for an agency to litigate the same issue in

27 15 It is not clear whether defendants are aware of an unpublished court of appeals
28 decision addressing this issue; the Court has found none.

29

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 30 of 34 Page ID #:341

1 more than one circu it and to seek to enfo rce the agency’s interpretation selectively on 2 persons subject to the agency’s jurisdiction inthose circuits where its interpretation has not 3 been judicially repudiated.” R y. Labor Executives’ Assoc. v. Interstate Commerce 4 Comm’n, 784 F.2d 959, 964 (9th Cir. 1986); seealso Nielsen Lithographing Co. v. NLRB, 5 854 F.2d 1063, 1066-67 (7th Cir. 1988) (holding that a circuit shouldo not m ake rulings 6 interpreting administrative regulations, which rulings purport to affect other circuits, and 7 that an agency therefore does not have toaccept one circuit’s ruling as binding throughout 8 the country). It was with these concerns in mind that the Court asked the government to 9 submit further briefing explaining, inter alia, why this Court should not exercise 10 jurisdiction over plaintiffs residing outside of the jurisdiction of the Ninth Circuit and/or 11 why this Court should not apply the Freeman decision, or its reasoning, to those plaintiffs. 12 However, defendants have failed to sufficiently address these issues in their supplemental 13 brief, and instead, have advanced largely the same argumentsas before. Defendants have 14 not offered an appropriate jurisdictional basis which would prevent the Court from 15 adjudicating the claims of the plaintiffs resi ding outside of the jurisdiction of the Ninth 16 Circuit. Nor have defendants argued thatplaintiffs choice of venue is improper.16 See e.g.,

17

18

16 “A defendant must object to venue by motion or in his answer to the complaint or

19

else his objection is waived.” Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). A defendant waives his or her right to object to venue by making a motion pursuant to Fed.

20 R. Civ. P. 12 and omitting the defense. Fed. R. Civ. P. 12(h)(1)(A). At the hearing held

21

herein, defendants’ counsel argued that defendants did not raisethe issue of venue in their instant motion because this case is being prosecuted as a class action. This Court has not

22 yet certified a class. Moreover, in a class action, a court looks only to the named plaintiffs

23 to determine whether venue is proper. Shell v. Shell Oil Co., 165 F. Supp. 2d 1096, 1107 n.5 (C.D. Cal. 2001) (“Notwithstanding the relaxation of venue and personal jurisdiction
24 requirements as to unnamed members of a plaintiff class, it is by nowwell settled that these

25 requirements to suit must be satisfied for eachand every named plaintiff for the suit to go forward.”); Cook v. UBS Fin. Servs., Inc. , 2006 U.S. Dist. LEXIS 12819, 2006 WL
26 760284, at *6 n.2 (S.D.N.Y. 2006) (“The law is clear that in determining whether venue

27 for a putative class action is proper, courts are to look only atthe allegations pertaining to

the named representatives.”); Dunn v. Sullivan , 758 F. Supp. 210, 216 (D. Del. 1991)

28

(continued...)

30

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 31 of 34 Page ID #:342

1 Samuel Estreicher & Richar d L. Revesz, Nonacquiescence by Federal Administrative

2 Agencies, 98 Yale L.J. 679, 709, 765-68(1989) (noting that while courts have been uneasy

3 with forum shopping by both adm inistrative agencies and by plaintiffs, they are often

4 unable to transfer a case to a circuit with more substantial contacts absent some defect in

5 venue).

6

Although Ninth Circuit law does not bind thisCourt with respect tothese plaintiffs,

7 the Court finds Freemanto be persuasive authority. Disrtict courts fromother jurisdictions

8 have agreed with Freeman in concluding that the death ofan alien’s citizen spouse before

9 the couple’s two-year marriage anniversary does not deprive the alien spouse of his or her

10 “immediate relative” status. Seee.g., Robinson v. Chertoff, 2007 U.S. Dist. LEXIS 34956,

11 at *4 (D. N.J. 2007) (“[T]he Court is convinced that the Ninth Circuit’s interpretation of

12 the statute is correct.”); Taing v. Chertoff, 2007 U.S. Dist. LEXIS 91411, at *28 (D. Mass.

13 2007) (“This Court agrees with the Ninth Circuit’s interpretation of [8 U.S.C. §

14 1151(b)(2)(A)(i)].”); Lockhart v. Chertoff, 2008 U.S. Dist. LEXIS 889, at *30 (D. Ohio

15 2008) (“As the well-reasoned opinions of the Ninth Circuit (Freeman ), Massachusetts

16 District Court (Taing ) and New Jersey District Court (Robinson ) conclude, the plain

17 language of the statute sim ply does not im pose a two year requirem ent on ‘immediate

18

19 (...continued)

20 (“Venue in a class action suit is proper for the entire class if it is proper for the nam ed

21

plaintiffs.”); 17 James Wm. Moore et al., Moore’s Fed. Practice§ 110.07 (2007) (“Venue in class actions is determined by the same statutes that would apply if the action were not

22 a class action. Venue is pr oper if the statutory requirements are met with respect to the

23 named parties.”). Thus, as to the nam ed plaintiffs, defendants could have objected to venue. Because defendants filed the instant motion pursuant to Fed. R. Civ. P. 12(b) and
24 omitted any mention of venue, they have waived any such objection. When a defendant

25 waives his or her objection to venue, the dist rict court may not raise the issue of venue sua sponte. See Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986) (holding that a
26 district court may raise the issue of venue sua sponte as the long the defendant has not

27 already waived objections to venue). Thus , the Court cannot raise the issue on its own motion.
28

31

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 32 of 34 Page ID #:343

1 relative’ status for a surviving alien-spouse.”).17

2

While other districts courts have adopted interpretations contrary to Freeman, see

3 e.g., Turek v. Dep’t of Homeland Sec., 450 F. Supp. 2d 736 (E.D. Mich. 2006); Burger v.

4 McElroy, 1999 U.S. Dist. LEXIS 4854 (S.D.N.Y. 1999), these decisions have b een

5 criticized. For example, in Lockhart, the district court criticized both Turek and Burger:

6

[I]n light of the plain language and grma matical structure of the statute, Turek

7

and Burger improperly apply Chevron deference. Turek and Burger thus

8

grossly over-emphasize the precedential value of In re Varela , the agency

9

opinion interpreting § 1151(b)(2)(A )(i). In addition, Turek is factually

10

distinguishable given that the m arriage at issue in Turek was subject to an

11

automatic presumption of invalidity because, unlike Ms. Lockhart’s marriage,

12

it was entered into while the alien-spouse was in removal proceedings.

13 Id., at *32; seealso Taing, at *29 (criticizing Turekand Burger); Robinson, 2007 U.S. Dist.

14 LEXIS 34956, at *10-13 (same). This Court finds Lockhart’s reasoning to be persuasive.

15 It is not clear that the statutory inte rpretation adopted by USCIS and advanced by

16 defendants is enti tled to Chevron deference. See Chevron U.S.A., Inc. v. Natural

17 Resources Defense Council, Inc. , 467 U.S. 837, 842-43 (1984). Nor is it clear that

18 USCIS’s statutory interpretation is appropriate.

19

Defendants have cited no c onflicting law from another circuit, and the Court has

20 found none. In light of the fact that no

other circuit has interpreted 8 U.S.C. §

21 1151(b)(2)(A)(1) differently from the court in Freeman, it does not appear that there is any

22 conflict to be resolved at this point. Acco rdingly, the Court conc ludes that plaintiffs

23 residing outside of the jurisdiction of the Ninth Circuit have sufficiently stated claims for

24 relief based on the record before the Court.18

25

26

17 While defendants argued at the March 3, 2008 hearing herein that many of these district court cases are on appeal, the fact remains that they are final judgments.

27

18 When and if another circuit reaches aocnclusion that is inconsistent with Freeman,

28

(continued...)

32

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 33 of 34 Page ID #:344

1

2. THE DEPARTMENT OF STATE

2

Defendants assert for the first tim e in their supplemental memorandum, that the

3 Department of State should be dismissed as a defendant because itdoes not grant or revoke

4 any I-130 petitions. Defendants further argue that to the extent plaintiffs are challenging

5 the “decision of consular officers in denying im migrant visas, such determ inations are

6 precluded from the subject matter jurisdiction ofthe Court.” Suppl. Mem. in Supp. of Mot.

7 to Dismiss at 10.

8

In their supplemental opposition plaintiffs clarify that they are not challenging the

9 Department of State’s “admissibility decisions.” Suppl. Mem. in Opp’n at 15. However,

10 plaintiffs contend that the Department of State is a proper party because “[it] has been

11 acting in concert with USCIS in the challenged conduct.” Id.

12

Plaintiffs concede that the Department of State does not grant or revoke any I-130

13 petition. In fact, plaintiffs assert that theDepartment of State “returns I-130 petitions back

14 to USCIS for autom atic revocation.” Id. ; see also (U.S. Dep’t of St ate Foreign Affairs

15 Manual (Vol. 9), Procedural Notes, 9 FAM 42.42 n.2(a) (stating that a consular officer amy

16 prepare and forward a memorandum to DHS requesting that a petition revoked under 8

17 C.F.R. 205.1(a)(3) be reinstated for humanitarian reasons). Thus, it is clear that USCIS,

18 not the Department of State, granted, denied, and/or revoked plaintiffs’ citizen spouses’ I-

19 130 petitions. Because the Department of State has not engaged in any of the challenged

20 conduct, i.e., because it has not denied or revokedany plaintiffs’ I-130 petition, the Court

21 concludes that it is not a proper party to theinstant action. Accordingly, the Court grants

22 defendants’ motion to dismiss the Department of State as a defendant.

23

C. MOTION TO SEVER THE PLAINTIFFS PURSUANT TO FED. R.

24

CIV. P. 20(a)

25

Alternatively, should the Court decline to dismiss plaintiffs’ complaint for lack of

26 jurisdiction or for failure to state a claim, defendants request that the Court sever the claims

27 18(...continued)
28 defendants may bring such ruling to the attention of this Court.

33

Case 2:07-cv-05696-CAS-MAN Document 36 Filed 03/17/08 Page 34 of 34 Page ID #:345

1 of all plaintiffs not presently within the jurisdiction of the Ninth Circuit pursuant to Fed.

2 R. Civ. P. 21.

3

The Court declines to sever the plaintiffs at this time. However, defendants m ay

4 renew this argument at the time of the hearing regarding class certification.

5 VI. CONCLUSION

6

In accordance with the foregoing, the Court finds and concludes as follows:

7

(1) The Court DENIES defendants’ motion to dismiss plaintiffs’ claims under the

8

Mandamus Act for failure to exhaust administrative remedies.

9

(2) The Court GRANTS defe ndants’ motion to dism iss plaintiffs Hootkins’,

10

Moncayo-Gigax’s, Vargas de Fishe r’s, Lockett’s, Brenteson’s, Win’s,

11

Engstrom’s, Pointdexter’s, Rudl’s, Standifer’s, and Batool’s claims under the

12

APA for lack of final agency action.

13

(3) The Court DENIES defendants’ motion to dismiss the complaint based on the

14

doctrine of claim preclusion.

15

(4) The Court DENIES defendants’ m otion to dismiss the claims of plaintiffs

16

residing outside of the jurisdiction of the Ninth Circuit for failure to state a

17

claim.

18

(5) The Court reserves judgement on defendants’ motion to sever the claims of

19

plaintiffs residing outside of the jurisdiction of the Ninth Circuit until the

20

hearing regarding class certification.

21

(6) The Court GRANTS defendants’ motion to dismiss the complaint as to the

22

Department of State.

23

IT IS SO ORDERED.

24 25 Date: March 17, 2008

26

_______________________________

27

CHRISTINA A. SNYDER UNITED STATES DISTRICT JUDGE

28

34

 
 Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 1 of 43 Page ID #:346

1 Alan R. Diamante, (Cal. SBN 180149) LAW OFFICE OF ALAN R. DIAMANTE / by
2 Brent W. Renison (Ore. SBN 96475) PARRILLI RENISON LLC
3 5285 SW Meadows Rd., Ste 175 Lake Oswego, Oregon 97035
4 Telephone: (503) 597-7190 Facsimile: (503) 726-0730
5 brent@entrylaw.com Admitted pro hac vice
6 Attorneys for Plaintiffs-Petitioners and
7 Class Members

8

UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11

12 CAROLYN ROBB HOOTKINS, ANA ) Case No. CV 07-5696 CAS (MANx)

13 MARIA MONCAYO-GIGAX, (cont.), on )

behalf of themselves and all others

)

14 similarly situated,

) FIRST AMENDED COMPLAINT FOR

15

) DECLARATORY AND INJUNCTIVE

16

Plaintiffs-petitioners,

) RELIEF AND PETITION FOR WRIT ) OF MANDAMUS

17

vs.

)

18

MICHAEL CHERTOFF, Secretary, U.S.

) CLASS ACTION )

19 Department of Homeland Security;

)

20 EMILIO GONZALEZ, Director, U.S.

)

Citizenship and Immigration Services, )

21

)

22

Defendants-respondents.

)

)

23

)

24

)

25

)

26

27

28
-1FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 2 of 43 Page ID #:347

1

2

3

4

5

6

7

8

9

10

11

12

13 (Plaintiffs-petitioners cont.) SUZANNE
14 HENRIETTE DE MAILLY, SARA CRUZ VARGAS DE FISHER, RAYMOND
15 LOCKETT, ELSA CECILIA

16 BRENTESON, PAULINE MARIE

17 GOBEIL, DAHIANNA HEARD, ROSE
18 FREEDA FISHMAN-CORMAN, KHIN THIDAR WIN, DIANA GEJAC
19 ENGSTROM, MARIA DEL CARMEN

20 DIAZ-RUIZ, GLADYS WALSH, LI JU

21 LU, YELENA ARIAS ANGULO, PURITA
22 MANUEL POINTDEXTER, TRACY LEE RUDL, DIEU NGOC NGUYEN,
23 AGNIESZKA BERNSTEIN, SARAH

24 BAYOR, STELLA STANDIFER, AND

25 FARAH BATOOL, on behalf of

26 themselves and all others similarly situated,

27

Plaintiffs-petitioners

28
-2FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 3 of 43 Page ID #:348

1

2

PETITION FOR WRIT OF MANDAMUS AND

3 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

4

This first amended complaint is filed as a matter of right pursuant to

5 Fed. R. Civ. P. 15(a)(1)(A), because plaintiffs-petitioners have not been

6 served with a responsive pleading. The Ninth Circuit has held that “a

7 motion to dismiss is not a ‘responsive pleading’ within the meaning of the

8 Rule.” Doe v. U.S., 58 F.3d 494, 497 (9th Cir. 1995). This amended

9 pleading is necessitated, in part, due to actions taken by defendants
10 following the filing of the initial complaint. See Mot. to Dismiss, Ex. 1
11 (USCIS Interoffice Mem. From Mike Aytes, Assoc. Dir. Of Domestic
12 Operations, USCIS, to Field Leadership (Nov. 8, 2007) (USCIS
13
Memorandum)). 14

15

Plaintiffs-petitioners challenge defendants-respondents’

16 determinations that, as a matter of law, plaintiffs-petitioners lost status as

17 “immediate relative” spouses of United States citizens when the citizen

18 spouses of each tragically died while plaintiffs-petitioners’ immigration

19 applications were filed and awaiting agency action. Plaintiffs-petitioners

20 respectfully petition this Court for injunctive, declaratory and mandamus

21 relief to compel defendants-respondents and their subordinates to: (a) find

22 that, as a matter of statutory interpretation, plaintiffs-petitioners remain

23 “immediate relatives” under INA § 201(b)(2)(A)(i), 8 U.S.C.

24 § 1151(b)(2)(A)(i) due to marriage to United States citizens; (b) reopen and

25 readjudicate the immigrant petitions (I-130 petitions) that were filed on

26 behalf of plaintiffs-petitioners by the U.S. citizen spouse; and (c) reopen and

27 readjudicate the (i) adjustment of status applications (I-485 applications) that
28
-3FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 4 of 43 Page ID #:349

1 plaintiffs-petitioners filed as immediate relative spouses of U.S. citizens; or

2 (ii) the immigrant visa applications (DS-230 applications) that plaintiffs-

3 petitioners filed as immediate relative spouses of U.S. citizens. Plaintiffs-

4 petitioners allege as follows:

5

JURISDICTION

6

1. This action arises under the Immigration and Nationality Act of

7 1952 ("INA"), 8 U.S.C. § 1151(b)(2)(A)(i) and 8 U.S.C. § 1255. This Court

8 has jurisdiction over this action under 28 U.S.C. § 1331 (federal question),
9 the INA, the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and the
10 Mandamus Act, 28 U.S.C. § 1361. Plaintiffs-petitioners additionally seeks
11 relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et. seq.
12
13 (declaratory relief).

14

VENUE

15

2. Venue is proper in this Court under 28 U.S.C. § 1391(e)

16 because defendants Michael Chertoff and Emilio Gonzalez are officers of

17 the United States acting in their official capacities, and the Department of

18 Homeland Security (“DHS”), the United States Citizenship and Immigration

19 Services (“USCIS”) are agencies of the United States. Additionally,

20 plaintiffs-petitioners Carolyn Robb Hootkins, Ana Maria Moncayo-Gigax,

21 Susanne De Mailly, Sara Cruz Vargas De Fisher, and many class members

22 reside in this judicial district. Further, a substantial part of the events giving

23 rise to the claim occurred in this district, in that the Los Angeles District

24 Office of USCIS, an agency of DHS located at 300 Los Angeles Street, Los

25 Angeles, California 90012, was the local office that denied many of
26 plaintiffs-petitioners’ immigration petitions and applications, as well as 27 petitions and applications filed by class members. 28
-4FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 5 of 43 Page ID #:350

1

3. Defendants waived objection to venue by making a motion

2 pursuant to Fed. R. Civ. P. 12 and omitting the defense. Fed. R. Civ. P.

3 12(h)(1)(A).

4

EXHAUSTION

5

4. There are no administrative remedies available for plaintiffs-

6 petitioners to exhaust.

7

5. There is no administrative appeal of the denial of an application

8 for adjustment of Status (I-485). 8 CFR § 245.2(a)(5)(ii).
9 6. There is no administrative appeal of a denial of an immigrant
10 visa application (DS-230) abroad. 22 C.F.R. § 42.81.
11 7. While plaintiffs-petitioners who filed to adjust status (I-485)
12
13 may renew the adjustment of status application in removal proceedings

14 before the Executive Office for Immigration Review ("EOIR"), initiation of

15 removal proceedings is at the sole discretion of DHS, and DHS has not

16 elected to initiate removal proceedings against most plaintiffs-petitioners

17 and class members. One cannot apply for initiation of removal proceedings.

18 As such this is not a mandatory exhaustion requirement and cannot be

19 imposed on Petitioner’s APA action. See Darby v. Cisneros, 509 U.S. 137

20 (1993).

21

8. There also is no administrative appeal of the I-130 immigrant

22 petition, even before EOIR, because the Board of Immigration Appeals

23 (“BIA”) has held that the immigration courts (within EOIR) and the BIA

24 (administrative courts of limited and not general jurisdiction) lack

25 jurisdiction under the administrative regulations to review such a denial.
26 See Matter of Sano, 19 I&N Dec. 299 (BIA 1985). Both procedures for 27 obtaining lawful permanent resident status, the adjustment of status (I-485) 28
-5FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 6 of 43 Page ID #:351

1 and immigrant visa (DS-230) applications, require an approved I-130

2 immigrant petition.

3

DEFENDANTS

4

9. Defendant-respondent Michael Chertoff is sued in his official

5 capacity as Secretary of Department of Homeland Security ("DHS"). As

6 Secretary of DHS, Mr. Chertoff is responsible for the administration and

7 enforcement of the immigration laws of the United States.

8 10. Defendant-respondent Emilio Gonzalez is sued in his official
9 capacity as Director of the United States Department of Homeland Security,
10 United States Citizenship and Immigration Services ("USCIS"). As Director
11 of USCIS, Dr. Gonzalez is responsible for the overall administration of
12

13 USCIS and the implementation of the immigration laws of the United States.

14

STATUTORY AND REGULATORY BACKGROUND

15

11. Plaintiffs-petitioners seek lawful permanent resident status, and

16 applied for such status. Plaintiffs-petitioners challenge defendants-

17 respondents’ determinations that, as a matter of law, plaintiffs-petitioners

18 lost status as “immediate relative” spouses of United States citizens when

19 the citizen spouses of each tragically died while plaintiffs-petitioners’

20 immigration applications were awaiting adjudication.

21

12. A United States citizen who marries a non-citizen may apply

22 for his or her spouse to reside permanently in the United States with the

23 citizen. Pursuant to 8 U.S.C. § 1154(1)(A)(i), a United States citizen may

24 file a petition (Form I-130) on behalf of a spouse claiming the spouse is

25 entitled to classification as an “immediate relative.” The term “immediate
26 relative”, as applicable to the United States citizen’s petition, is set forth in 27 the first sentence of 8 U.S.C. § 1151(b)(2)(A)(i) as the “children, spouses, 28
-6FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 7 of 43 Page ID #:352

1 and parents of a citizen of the United States, except that, in the case of

2 parents, such citizens shall be at least 21 years of age.”

3

13. An alien spouse whose United States citizen never filed a

4 petition on the alien’s behalf, may also file a petition (Form I-360 self-

5 petition) on his or her own behalf, pursuant to 8 U.S.C. § 1154(1)(A)(ii),
6 which states, “An alien spouse described in the second sentence of section 7 201(b)(2)(A)(i) also may file a petition…”. Id., (emphasis supplied) In such 8
a case, the immediate relative definition set out in the second sentence of 8 9
U.S.C. § 1151(b)(2)(A)(i) is applicable: “In the case of an alien who was the 10
spouse of a citizen of the United States for at least 2 years at the time of the 11
citizen’s death and was not legally separated from the citizen at the time of 12 13 the citizen’s death, the alien (and each child of the alien) shall be considered, 14 for purposes of this subsection, to remain an immediate relative after the
15 date of the citizen’s death but only if the spouse files a petition under section
16 204(a)(1)(A)(ii) of this title within 2 years after such date and only until the

17 date the spouse remarries.”

18

14. Defendants-respondents have uniformly applied the incorrect

19 immediate relative definition to plaintiff-petitioners’ petitions and

20 applications. Specifically, defendants-respondents have taken the position

21 that if the citizen spouse dies before the second anniversary of the marriage,

22 the alien spouse is no longer considered a “spouse” entitled to immediate

23 relative status. In doing so, defendants-respondents have confused the

24 immediate relative definition applicable to I-130 petitions filed by United

25 States citizen spouses (the first sentence of 8 U.S.C. § 1151(b)(2)(A)(i)) with
26 the immediate relative definition applicable to I-360 self-petitions filed by 27 alien spouses (the second sentence of 8 U.S.C. § 1151(b)(2)(A)(i)). 28
-7FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 8 of 43 Page ID #:353

1

15. Courts have refused to follow the government’s position. See

2 Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006); Robinson v. Chertoff,

3 2007 WL 1412284 (D.N.J. May 14, 2007) appeal docketed, No. 07-2977 (3d

4 Cir. July 5, 2007); Taing v. Chertoff, 2007 U.S. Dist. LEXIS 911411 (D.

5 Mass 2007), appeal docketed, No. 08-1179 (1st Cir. Feb. 11, 2008);
6 Lockhart v. Chertoff, 2008 U.S. Dist. LEXIS 889 (D. Ohio 2008); But see 7 Burger v. McElroy, 97 Civ. 8775 (RPP), 1999 U.S. Dist. LEXIS 4854 8
(S.D.N.Y. Apr. 12, 1999); and Turek v. Dep’t of Homeland Security, 450 F. 9
Supp. 2d 736 (E.D. Mich. 2006). 10
16. Through the consistent, nation-wide application of the improper 11
standard, defendants-respondents have compounded the loss of innumerable 12 13 surviving spouses of United States citizens across the country. Defendants14 respondents have stripped plaintiffs-petitioners of immediate relative status,
15 denied their applications for adjustment of status and for immigrant visas,
16 and denied work and travel authorization. These actions have exacted grief,

17 suffering, loss of work authorization, loss of travel authorization, separation

18 of family members, and countless other injuries flowing from forced

19 unlawful status such as loss of entitlement to estate benefits, loss of driving

20 privileges due to state laws requiring proof of legal status, and loss of

21 accrued lawful residence time that is a prerequisite for eventual United

22 States citizenship.

23

PLAINTIFFS-PETITIONERS

24

Plaintiff-petitioner HOOTKINS

25

17. Plaintiff-petitioner Carolyn Robb Hootkins was born in South

26 Africa in 1966. Plaintiff-petitioner is a citizen of the United Kingdom.

27

18. Plaintiff-petitioner has lived in Santa Monica, California since

28

-8-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 9 of 43 Page ID #:354

1 2006. Plaintiff-petitioner entered the United States in nonimmigrant status,

2 and was inspected and admitted. She is currently the beneficiary of an O-1

3 nonimmigrant work visa (Alien of Extraordinary Ability) as a chef of

4 international renown, having served as Head Chef for TRH Prince Charles

5 and Princess Diana.

6

19. On July 24, 2005, plaintiff-petitioner married William “Bill”

7 Hootkins, a United States citizen and well-known actor, having been cast in

8 the movies Star Wars and Raiders of the Lost Ark, among others.
9 The Petition and Application
10 20. On September 23, 2005, plaintiff-petitioner's U.S. citizen
11 spouse filed with the required fee a Form I-130, Petition for Alien Relative
12
13 ("Petition") establishing his citizenship and that his spouse is an immediate

14 relative, and executed an I-864 Affidavit of Support. On the same day,

15 plaintiff-petitioner filed with the required fee a Form I-485, Application to

16 Register Permanent Residence or to Adjust Status ("Application"), seeking

17 adjustment of status to lawful permanent resident, relying on the citizen

18 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner

19 was assigned an Alien Number "A-Number", which is A96 637 769.

20

21. On October 23, 2005, plaintiff-petitioner's spouse Bill Hootkins

21 died of pancreatic cancer.

22

The Denial

23

22. On March 16, 2006, defendants-respondents denied the Petition

24 and Application that were jointly filed by the couple solely on the basis that

25 plaintiff-petitioner was no longer the spouse of a U.S. citizen. On August
26 21, 2006, plaintiff-petitioner filed a motion to reopen with the required fee 27 which was granted on August 3, 2007. No action has been taken on the 28
-9FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 10 of 43 Page ID #:355

1 Petition and Application, however, and plaintiff-petitioner has not been

2 accorded adjustment of status to lawful permanent resident status.

3

Plaintiff-petitioner MONCAYO-GIGAX

4

23. Plaintiff-petitioner Ana Maria Moncayo-Gigax was born in

5 Ecuador in 1972. Plaintiff-petitioner is a citizen of Ecuador.

6

24. Plaintiff-petitioner has lived in Santa Clarita, California since

7 2000. Plaintiff-petitioner entered the United States on a nonimmigrant F-1

8 student visa, and was inspected and admitted. Plaintiff-petitioner later
9 changed status to an H-1B work visa.
10 25. On August 28, 1998, plaintiff-petitioner married John Charles
11 Gigax, a United States citizen and United States Border Patrol Agent serving
12
13 with legacy Immigration and Naturalization Service.

14

The Petition and Application

15

26. On April 29, 1999, plaintiff-petitioner's U.S. citizen spouse

16 filed with the required fee a Form I-130, Petition for Alien Relative

17 ("Petition") establishing his citizenship and that his spouse is an immediate

18 relative, and executed an I-864 Affidavit of Support. On the same day,

19 plaintiff-petitioner filed with the required fee a Form I-485, Application to

20 Register Permanent Residence or to Adjust Status ("Application"), seeking

21 adjustment of status to lawful permanent resident, relying on the citizen

22 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner

23 was assigned an Alien Number "A-Number", which is A77 128 166.

24

27. On November 7, 1999, plaintiff-petitioner's spouse John

25 Charles Gigax was killed in a car accident in Virginia while on duty with the
26 United States Border Patrol, traveling in a U.S. government vehicle from a 27 temporary assignment in Washington, D.C. 28
-10FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 11 of 43 Page ID #:356

1

The Denial

2

28. On March 2, 2004, defendants-respondents denied the Petition

3 and Application that were jointly filed by the couple solely on the basis that

4 plaintiff-petitioner was no longer the spouse of a U.S. citizen. A motion to

5 reopen was filed in November 2006, which was granted on February 10,

6 2007. Although the motion to reopen has been granted, defendants-

7 respondents have not approved plaintiff-petitioner’s adjustment of status

8 following the initial denial.
9 Plaintiff-petitioner DE MAILLY
10 29. Plaintiff-petitioner Suzanne Henriette De Mailly was born in
11 the Belgian Congo in 1953. Plaintiff-petitioner is a citizen of Belgium.
12

13

30. Plaintiff-petitioner lived in Los Angeles, California until June

14 2005 when she was forced by defendants-respondents to return to Belgium

15 following the denial of her application and revocation of work authorization.

16 Plaintiff-petitioner entered the United States as a visitor prior to her

17 application, and was inspected and admitted.

18

31. On February 13, 2003, plaintiff-petitioner married Mark

19 William Hubel, a United States citizen.

20

The Petition and Application

21

32. On February 21, 2003, plaintiff-petitioner's U.S. citizen spouse

22 filed with the required fee a Form I-130, Petition for Alien Relative

23 ("Petition") establishing his citizenship and that his spouse is an immediate

24 relative, and executed an I-864 Affidavit of Support. On the same day,

25 plaintiff-petitioner filed with the required fee a Form I-485, Application to
26 Register Permanent Residence or to Adjust Status ("Application"), seeking 27 adjustment of status to lawful permanent resident, relying on the citizen 28
-11FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 12 of 43 Page ID #:357

1 spouse's Petition attesting to the alien's status as spouse. The petition and

2 application were filed with the Los Angeles office of USCIS, and plaintiff-

3 petitioner was assigned an Alien Number "A-Number", which is A95 623

4 420.

5

33. Plaintiff-petitioner's spouse Mark William Hubel died on

6 October 13, 2003.

7

The Denial

8 34. On July 1, 2004, defendants-respondents denied the Petition

9

and Application that were jointly filed by the couple solely on the basis that

10

plaintiff-petitioner was no longer the spouse of a U.S. citizen.

11

Plaintiff-petitioner VARGAS DE FISHER 12

13

35. Plaintiff-petitioner Sara Cruz Vargas de Fisher was born in

14 Mexico in 1961. Plaintiff-petitioner is a citizen of Mexico.

15

36. Plaintiff-petitioner has lived in Riverside, California since

16 2001. Plaintiff-petitioner entered the United States on a nonimmigrant B-1

17 visa in 2001, and was inspected and admitted.

18

37. On July 19, 2004, plaintiff-petitioner married Newton Edgar

19 Fisher, a United States citizen.

20

38. Plaintiff-petitioner has two children from a previous marriage,

21 Aldo David Angrade Vargas (born 1988) and Edson Daniel Andrade Vargas

22 (born 1989).

23

The Petition and Application

24

39. On November 22, 2004, plaintiff-petitioner's U.S. citizen

25 spouse filed with the required fee a Form I-130, Petition for Alien Relative
26 ("Petition") establishing his citizenship and that his spouse is an immediate 27 relative, and executed an I-864 Affidavit of Support. On the same day, 28
-12FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 13 of 43 Page ID #:358

1 plaintiff-petitioner filed with the required fee a Form I-485, Application to

2 Register Permanent Residence or to Adjust Status ("Application"), seeking

3 adjustment of status to lawful permanent resident, relying on the citizen

4 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner

5 was assigned an Alien Number "A-Number", which is A95 692 884.

6

40. On June 27, 2005, plaintiff-petitioner's spouse Newton Edgar

7 Fisher died of cancer.

8 The Denial
9 41. On May 13, 2005, defendants-respondents denied the Petition
10 filed by the couple solely on the basis that plaintiff-petitioner was no longer
11 the spouse of a U.S. citizen. No action has been taken on the Application for
12
13 adjustment of status. By denying the Petition and withholding approval on

14 the Application, defendants-respondents in effect denied the Petition and

15 Application that were jointly filed by the couple solely on the basis that

16 plaintiff-petitioner was no longer the spouse of a U.S. citizen.

17

Plaintiff-petitioner LOCKETT

18

42. Plaintiff-petitioner Raymond Lockett was born in the United

19 Kingdom in 1964. Plaintiff-petitioner is a citizen of the United Kingdom.

20

43. Plaintiff-petitioner has lived in Washougal, Washington since

21 2006. Plaintiff-petitioner entered the United States as a visitor in January

22 2006 and was inspected and admitted.

23

44. On March 25, 2006, plaintiff-petitioner married Catharine

24 Martinet, a United States citizen.

25

The Petition and Application

26

45. On June 1, 2006, plaintiff-petitioner's U.S. citizen spouse filed

27 with the required fee a Form I-130, Petition for Alien Relative ("Petition")

28

-13-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 14 of 43 Page ID #:359

1 establishing her citizenship and that her spouse is an immediate relative, and

2 executed an I-864 Affidavit of Support. On the same day, plaintiff-

3 petitioner filed with the required fee a Form I-485, Application to Register

4 Permanent Residence or to Adjust Status ("Application"), seeking

5 adjustment of status to lawful permanent resident, relying on the citizen
6 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner 7 was assigned an Alien Number "A-Number", which is A96 857 050 8
46. On June 5, 2006, plaintiff-petitioner's spouse Catharine 9
Martinet died of spontaneous pneumothorax leading to respiratory failure. 10
The Denial 11
47. On September 26, 2006 defendants-respondents interviewed 12 13 plaintiff-petitioner and withheld approval, indicating that guidance from 14 headquarters would be required. By withholding approval, defendants-
15 respondents in effect denied the Petition and Application that were jointly
16 filed by the couple solely on the basis that plaintiff-petitioner was no longer

17 the spouse of a U.S. citizen.

18

Plaintiff-petitioner BRENTESON

19

48. Plaintiff-petitioner Elsa Cecilia Brenteson was born in Costa

20 Rica in 1958. Plaintiff-petitioner is a citizen of Costa Rica.

21

49. Plaintiff-petitioner has lived in Phoenix, Arizona since 2006.

22 Plaintiff-petitioner entered the United States on a nonimmigrant B-1/B-2

23 visa in 1998, and was inspected and admitted.

24

50. On January 18, 2003, plaintiff-petitioner married Donald Irvin

25 Brenteson, a United States citizen.

26

The Petition and Application

27

51. On May 14, 2003, plaintiff-petitioner's U.S. citizen spouse filed

28

-14-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 15 of 43 Page ID #:360

1 with the required fee a Form I-130, Petition for Alien Relative ("Petition")

2 establishing his citizenship and that his spouse is an immediate relative, and

3 executed an I-864 Affidavit of Support. On the same day, plaintiff-

4 petitioner filed with the required fee a Form I-485, Application to Register

5 Permanent Residence or to Adjust Status ("Application"), seeking

6 adjustment of status to lawful permanent resident, relying on the citizen

7 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner

8 was assigned an Alien Number "A-Number", which is A99 278 074.

9

52. On January 16, 2005, Plaintiff-petitioner's spouse Donald Irvin

10

Brenteson died of cardiac arrest.

11

The Denial 12

13

53. On December 19, 2005, defendants-respondents denied the

14 Petition and Application that were jointly filed by the couple solely on the

15 basis that plaintiff-petitioner was no longer the spouse of a U.S. citizen. On

16 May 24, 2006, plaintiff-petitioner filed a motion to reopen. On February 21,

17 2008, defendants-respondents requested a Form I-864 from an individual

18 who qualifies as a substitute sponsor under section 213A(f)(5)(B). Mrs.

19 Brenteson is unable to comply with this unlawful requirement, and through

20 counsel has advised defendants-respondents of this fact. According to the

21 policy of defendants-respondents under the USCIS Memorandum (See Mot.

22 to Dismiss, Ex. 1, USCIS Interoffice Mem. From Mike Aytes, Assoc. Dir.

23 Of Domestic Operations, to Field Leadership, Nov. 8, 2007), Mrs.

24 Brenteson’s petition and application will be denied.

25

Plaintiff-petitioner GOBEIL

26

54. Plaintiff-petitioner Pauline Gobeil was born in Canada in 1944.

27 Plaintiff-petitioner is a citizen of Canada.

28

-15-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 16 of 43 Page ID #:361

1

55. Plaintiff-petitioner has lived in Mesa, Arizona since 2003.

2 Plaintiff-petitioner entered the United States as a nonimmigrant visitor in

3 2003, and was inspected and admitted.

4

56. On August 7, 2003, plaintiff-petitioner married Leon Max

5 Everitt, a United States citizen.

6

The Petition and Application

7

57. On September 30, 2003, plaintiff-petitioner's U.S. citizen

8 spouse filed with the required fee a Form I-130, Petition for Alien Relative
9 ("Petition") establishing his citizenship and that his spouse is an immediate
10 relative, and executed an I-864 Affidavit of Support. On the same day,
11 plaintiff-petitioner filed with the required fee a Form I-485, Application to
12
13 Register Permanent Residence or to Adjust Status ("Application"), seeking

14 adjustment of status to lawful permanent resident, relying on the citizen

15 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner

16 was assigned an Alien Number "A-Number", which is A97 339 035.

17

58. On October 7, 2004, plaintiff-petitioner's spouse Leon Max

18 Everitt died of cardiac arrest

19

The Denial

20

59. On May 31, 2005, defendants-respondents denied the Petition

21 and Application that were jointly filed by the couple solely on the basis that

22 plaintiff-petitioner was no longer the spouse of a U.S. citizen.

23

Plaintiff-petitioner HEARD

24

60. Plaintiff-petitioner Dahianna Heard was born in Venezuela in

25 1971. Plaintiff-petitioner is a citizen of Venezuela.

26

61. Plaintiff-petitioner has lived in Orlando, Florida since March

27 2007. Plaintiff-petitioner entered the United States on a nonimmigrant B-

28

-16-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 17 of 43 Page ID #:362

1 1/B-2 visa in 2001, and was inspected and admitted.

2

62. On July 9, 2004, plaintiff-petitioner married Jeffrey Loren

3 Heard, a United States citizen and an Army veteran.

4

63. Plaintiff-petitioner and her husband have a son, Bryan Harley

5 Heard, age one and one-half years old. Their son is a United States citizen.

6

The Petition and Application

7

64. On October 27, 2004, plaintiff-petitioner's U.S. citizen spouse

8 filed with the required fee a Form I-130, Petition for Alien Relative
9 ("Petition") establishing his citizenship and that his spouse is an immediate
10 relative, and executed an I-864 Affidavit of Support. On the same day,
11 plaintiff-petitioner filed with the required fee a Form I-485, Application to
12

13 Register Permanent Residence or to Adjust Status ("Application"), seeking

14 adjustment of status to lawful permanent resident, relying on the citizen

15 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner

16 was assigned an Alien Number "A-Number", which is A99 204 406.

17

65. On March 20, 2006, plaintiff-petitioner's spouse Jeffrey Loren

18 Heard was killed in an ambush outside Fallujah, Iraq, while working for a

19 private security contractor in Iraq assisting United States military operations

20 through the delivery of supplies to U.S. troops. Mr. Heard died of a gunshot

21 wound to the head.

22

The Denial

23

66. On September 27, 2006, Defendants-respondents denied the

24 Petition and Application that were jointly filed by the couple solely on the

25 basis that plaintiff-petitioner was no longer the spouse of a U.S. citizen. On
26 January 16, 2008, defendants-respondents approved the I-130 petition filed 27 by Mr. Heard on behalf of Mrs. Heard, under section 1703(a) of Public Law 28
-17FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 18 of 43 Page ID #:363

1 108-136, a different section of law. Her adjustment of status application was

2 approved on February 7, 2008.

3

Plaintiff-petitioner FISHMAN-CORMAN

4

67. Plaintiff-petitioner Rose Freeda Fishman-Corman was born in

5 Canada in 1930. Plaintiff-petitioner is a citizen of Canada.

6

68. Plaintiff-petitioner has lived in Clearwater, Florida since 2005.

7 Plaintiff-petitioner entered the United States as a nonimmigrant visitor in

8 2004, and was inspected and admitted.

9

69. On December 2, 2004, plaintiff-petitioner married Irving Jacob

10

Corman, a United States citizen.

11

The Petition and Application 12

13

70. On April 14, 2005, plaintiff-petitioner's U.S. citizen spouse

14 filed with the required fee a Form I-130, Petition for Alien Relative

15 ("Petition") establishing his citizenship and that his spouse is an immediate

16 relative, and executed an I-864 Affidavit of Support. On the same day,

17 plaintiff-petitioner filed with the required fee a Form I-485, Application to

18 Register Permanent Residence or to Adjust Status ("Application"), seeking

19 adjustment of status to lawful permanent resident, relying on the citizen

20 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner

21 was assigned an Alien Number "A-Number", which is A95 711 606.

22

71. Plaintiff-petitioner's spouse Irving Jacob Corman died on

23 September 1, 2005 in California.

24

The Denial

25

72. On May 19, 2006, defendants-respondents denied the Petition

26 and Application that were jointly filed by the couple solely on the basis that

27 plaintiff-petitioner was no longer the spouse of a U.S. citizen.

28

-18-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 19 of 43 Page ID #:364

1

Plaintiff WIN

2

73. Plaintiff-petitioner Khin Thidar Win was born in Sri Lanka in

3 1981. Plaintiff-petitioner is a citizen of Myanmar (Burma).

4

74. Plaintiff-petitioner has lived in Las Vegas, Nevada since 2002.

5 Plaintiff-petitioner entered the United States on a nonimmigrant F-1 student

6 visa, and was inspected and admitted in 2002.

7

75. On March 5, 2005, plaintiff-petitioner married Donn Stephen

8 Mauro, a United States citizen.
9 The Petition and Application
10 76. On May 22, 2005, plaintiff-petitioner's U.S. citizen spouse filed
11 with the required fee a Form I-130, Petition for Alien Relative ("Petition")
12

13 establishing his citizenship and that his spouse is an immediate relative, and

14 executed an I-864 Affidavit of Support. On the same day, plaintiff-

15 petitioner filed with the required fee a Form I-485, Application to Register

16 Permanent Residence or to Adjust Status ("Application"), seeking

17 adjustment of status to lawful permanent resident, relying on the citizen

18 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner

19 was assigned an Alien Number "A-Number", which is A96 533 069.

20

77. On February 6, 2006, plaintiff-petitioner's spouse Donn Stephen

21 Mauro was killed by a drunk driver.

22

The Denial

23

78. On March 2, 2006, defendants-respondents denied the Petition

24 and Application that were jointly filed by the couple solely on the basis that

25 plaintiff-petitioner was no longer the spouse of a U.S. citizen.

26

79. On September 26, 2006, plaintiff-petitioner filed a motion to

27 reconsider the denial, which was granted on March 12, 2007 in an order

28

-19-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 20 of 43 Page ID #:365

1 which stated, “Upon review of the file, it has been determined that the

2 applicant may be eligible for the benefit sought.” No action has been taken

3 on the Petition and Application, however, and plaintiff-petitioner has not

4 been accorded adjustment of status to lawful permanent resident status.

5

Plaintiff-petitioner ENGSTROM

6

80. Plaintiff-petitioner Diana Gejac Engstrom was born in Kosovo

7 in 1980. Plaintiff-petitioner is a citizen of Kosovo, the former Yugoslavia.

8 81. Plaintiff-petitioner has lived in Bloomington, Illinois since
9 May, 2005. Plaintiff-petitioner entered the United States on a nonimmigrant
10 B-2 visa in 2003, and was inspected and admitted.
11 82. On December 29, 2003, plaintiff-petitioner married Todd
12
13 Engstrom, a United States citizen and United States Army Contractor

14 responsible for training Iraqi security forces in Iraq.

15

The Petition and Application

16

83. On January 29, 2004, plaintiff-petitioner's U.S. citizen spouse

17 filed with the required fee a Form I-130, Petition for Alien Relative

18 ("Petition") establishing his citizenship and that his spouse is an immediate

19 relative, and executed an I-864 Affidavit of Support. On the same day,

20 plaintiff-petitioner filed with the required fee a Form I-485, Application to

21 Register Permanent Residence or to Adjust Status ("Application"), seeking

22 adjustment of status to lawful permanent resident, relying on the citizen

23 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner

24 was assigned an Alien Number "A-Number", which is A99 103 420.

25

84. On September 14, 2004, plaintiff-petitioner's Todd Engstrom

26 was killed in Iraq when his convoy was hit by a rocket-propelled grenade.

27

The Denial

28

-20-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 21 of 43 Page ID #:366

1

85. Defendants-respondents have not denied the Petition and

2 Application that were jointly filed by the couple. Based on defendants-

3 respondents actions in other cases, plaintiff-petitioner fears that defendants-

4 respondents may deny her application solely on the basis that plaintiff-

5 petitioner was no longer the spouse of a U.S. citizen. In addition, no action

6 has been taken on the Petition and Application, and plaintiff-petitioner has

7 not been accorded adjustment of status to lawful permanent resident status.

8 Plaintiff-petitioner DIAZ-RUIZ
9 86. Plaintiff-petitioner Maria Del Carmen Diaz-Ruiz was born in
10 Spain in 1973. Plaintiff-petitioner is a citizen of Spain.
11 87. Plaintiff-petitioner has lived in Glencoe, Illinois since July
12
13 2005. Plaintiff-petitioner entered the United States on a nonimmigrant B-

14 1/B-2 visa, and was inspected and admitted.

15

88. On June 29, 2004, plaintiff-petitioner married Christopher

16 Rodriguez, a United States citizen.

17

The Petition and Application

18

89. On December 30, 2004, plaintiff-petitioner's U.S. citizen spouse

19 filed with the required fee a Form I-130, Petition for Alien Relative

20 ("Petition") establishing his citizenship and that his spouse is an immediate

21 relative, and executed an I-864 Affidavit of Support. On the same day,

22 plaintiff-petitioner filed with the required fee a Form I-485, Application to

23 Register Permanent Residence or to Adjust Status ("Application"), seeking

24 adjustment of status to lawful permanent resident, relying on the citizen

25 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner

26 was assigned an Alien Number "A-Number", which is A99 235 659.

27

90. On June 13, 2005, plaintiff-petitioner's spouse Christopher

28

-21-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 22 of 43 Page ID #:367

1 Rodriguez died of congenital heart disease.

2

The Denial

3

91. On December 22, 2005, defendants-respondents denied the

4 Petition and Application that were jointly filed by the couple solely on the

5 basis that plaintiff-petitioner was no longer the spouse of a U.S. citizen. On

6 May 18, 2006, plaintiff-petitioner filed a motion to reopen which was denied

7 in a written opinion October 25, 2006.

8 Plaintiff-petitioner WALSH
9 92. Plaintiff-petitioner Gladys Walsh was born in Columbia in
10 1961. Plaintiff-petitioner is a citizen of Columbia.
11 93. Plaintiff-petitioner has lived in Hopkinton, MA since 2002.
12
13 Plaintiff-petitioner entered the United States on a nonimmigrant B-1/B-2

14 visa, and was inspected and admitted.

15

94. On January 20, 2001, plaintiff-petitioner married Jeffrey John

16 Walsh, a United States citizen.

17

95. Plaintiff-petitioner and her husband have a son, Anthony

18 Patrick Walsh, born October 2001. Their son is a United States citizen, and

19 is being treated for severe club feet deformity in Springfield, Massachussetts

20 – treatment not available in Columbia. He will need treatment until he is

21 eighteen years old.

22

The Petition and Application

23

96. In 2001, plaintiff-petitioner's U.S. citizen spouse filed with the

24 required fee a Form I-130, Petition for Alien Relative ("Petition")

25 establishing his citizenship and that his spouse is an immediate relative, and
26 executed an I-864 Affidavit of Support. Because plaintiff-petitioner was 27 physically in Columbia, the U.S. Department of State began immigrant visa 28
-22FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 23 of 43 Page ID #:368

1 processing. Plaintiff-petitioner was assigned an immigrant visa case

2 number, BGT2002002012.

3

97. On September 11, 2002 while in the United States, plaintiff-

4 petitioner's spouse died of a heart attack. Plaintiff-petitioner, then in

5 Columbia, was issued a visitor visa to attend her husband’s funeral.

6

The Denial

7

98. On September 16, 2002, defendants-respondents notified

8 plaintiff-petitioner through counsel that her petition was automatically

9

revoked solely on the basis that plaintiff-petitioner was no longer the spouse

10

of a U.S. citizen.

11

Plaintiff-petitioner LU 12

13

99. Plaintiff-petitioner Li Ju LU was born in China in 1972.

14 Plaintiff-petitioner is a citizen of China.

15

100. Plaintiff-petitioner resides in Guangzhou, China.

16

101. On February 25, 2005, plaintiff-petitioner married Paul Michel

17 Unger, a United States citizen.

18

The Petition and Application

19

102. On April 28, 2005, plaintiff-petitioner's U.S. citizen spouse

20 filed with the required fee a Form I-130, Petition for Alien Relative

21 ("Petition") with the California Service Center of USCIS, located in Laguna

22 Niguel, California, establishing his citizenship and that his spouse is an

23 immediate relative. The Petition was assigned a case number WAC-05-147-

24 54736 and was approved. Because plaintiff-petitioner was physically in

25 China, the approval was forwarded to the U.S. Department of State and the
26 Consulate in Guangzhou, China began immigrant visa processing. Plaintiff27 petitioner was assigned an immigrant visa case number GUZ20058221347. 28
-23FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 24 of 43 Page ID #:369

1

103. On February 3, 2006, plaintiff-petitioner's spouse died of a

2 heart attack while in the United States.

3

The Denial

4

104. Following the death, defendants-respondents notified plaintiff-

5 petitioner that her petition was automatically revoked solely on the basis that

6 plaintiff-petitioner was no longer the spouse of a U.S. citizen. Plaintiff-

7 petitioner was unable to receive a visa to attend her husband’s funeral, and

8 has not been allowed to visit her husband’s grave site or visit the family of
9 her husband.
10 Plaintiff-petitioner ARIAS-ANGULO
11 105. Plaintiff-petitioner Yelena Arias Angulo was born in Bolivia in
12
13 1970. Plaintiff-petitioner is a citizen of Bolivia.

14

106. Plaintiff-petitioner has lived in Falls Church, Virginia since

15 December 2001. Plaintiff-petitioner entered the United States on a

16 nonimmigrant B-1/B-2 visa in 2001, and was inspected and admitted.

17

107. On May 27, 2005, Plaintiff-petitioner married Donald Arias, a

18 United States citizen.

19

The Petition and Application

20

108. On September 21, 2005, plaintiff-petitioner's U.S. citizen

21 spouse filed with the required fee a Form I-130, Petition for Alien Relative

22 ("Petition") establishing his citizenship and that his spouse is an immediate

23 relative, and executed an I-864 Affidavit of Support. On the same day,

24 plaintiff-petitioner filed with the required fee a Form I-485, Application to

25 Register Permanent Residence or to Adjust Status ("Application"), seeking
26 adjustment of status to lawful permanent resident, relying on the citizen 27 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner 28
-24FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 25 of 43 Page ID #:370

1 was assigned an Alien Number "A-Number", which is A96 628 021.

2

109. On March 3, 2006, plaintiff-petitioner's spouse Donald Arias

3 died.

4

The Denial

5

110. In June 2006, defendants-respondents interviewed plaintiff-

6 petitioner and withheld approval, asking plaintiff-petitioner to instead file a

7 widow self-petition (I-360) for which she is not eligible because she was not

8 married two years at the time of her spouse’s death. On August 2, 2007,
9 defendants-respondents denied the Petition and Application that were jointly
10 filed by the couple solely on the basis that plaintiff-petitioner was no longer
11 the spouse of a U.S. citizen.
12

13

Plaintiff-petitioner POINDEXTER

14

111. Plaintiff-petitioner Purita Manuel Poindexter was born in the

15 Philippines in 1954. Plaintiff-petitioner is a citizen of the Philippines.

16

112. Plaintiff-petitioner has lived in Hercules, California since April

17 2007. Plaintiff-petitioner entered the United States on a nonimmigrant B-2

18 visa in 2002, and was inspected and admitted.

19

113. On November 10, 2006, plaintiff-petitioner married Richard

20 Daniel Poindexter, a United States citizen.

21

The Petition and Application

22

114. On December 3, 2006, plaintiff-petitioner's U.S. citizen spouse

23 filed with the required fee a Form I-130, Petition for Alien Relative

24 ("Petition") establishing his citizenship and that his spouse is an immediate

25 relative, and executed an I-864 Affidavit of Support. On the same day,
26 plaintiff-petitioner filed with the required fee a Form I-485, Application to 27 Register Permanent Residence or to Adjust Status ("Application"), seeking 28
-25FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 26 of 43 Page ID #:371

1 adjustment of status to lawful permanent resident, relying on the citizen

2 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner

3 was assigned an Alien Number "A-Number", which is A89 629 770.

4

115. Plaintiff-petitioner's spouse Richard Daniel Poindexter died on

5 January 29, 2007.

6

The Denial

7

116. Plaintiff-petitioner was scheduled by defendants-respondents

8 for an interview on February 15, 2007. Plaintiff-petitioner did not attend the
9 interview because her husband had only recently passed away. On March 7,
10 2007, defendants-respondents denied the Petition and Application that were
11 jointly filed by the couple due to abandonment, but plaintiff-petitioner filed
12
13 a motion to reopen with fee which is currently pending. Had plaintiff-

14 petitioner appeared at the interview, defendants-respondents would have

15 denied the Petition and Application solely on the basis that Petitioner was no

16 longer the spouse of a U.S. citizen.

17

Plaintiff-petitioner RUDL

18

117. Plaintiff-petitioner Tracy Lee Rudl was born in Canada in 1972.

19 Plaintiff-petitioner is a citizen of Canada.

20

118. Plaintiff-petitioner has lived in La Jolla, California since 2002.

21 Plaintiff-petitioner entered the United States on a nonimmigrant H-1B work

22 visa in 2002, and was inspected and admitted.

23

119. On July 24, 2004, plaintiff-petitioner married Corey Nicholas

24 Rudl, a United States citizen and well-known internet marketing guru.

25

The Petition and Application

26

120. On March 30, 2005, plaintiff-petitioner's U.S. citizen spouse

27 filed with the required fee a Form I-130, Petition for Alien Relative

28

-26-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 27 of 43 Page ID #:372

1 ("Petition") establishing his citizenship and that his spouse is an immediate

2 relative, and executed an I-864 Affidavit of Support. On the same day,

3 plaintiff-petitioner filed with the required fee a Form I-485, Application to

4 Register Permanent Residence or to Adjust Status ("Application"), seeking

5 adjustment of status to lawful permanent resident, relying on the citizen
6 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner 7 was assigned an Alien Number "A-Number", which is A98 806 945. 8
121. On June 2, 2005, plaintiff-petitioner's spouse Corey Nicholas 9
Rudl was killed while riding as a passenger in a car on a raceway. 10
The Denial 11
122. On November 14, 2005, defendants-respondents denied the 12 13 Petition and Application that were jointly filed by the couple solely on the 14 basis that plaintiff-petitioner was no longer the spouse of a U.S. citizen. On
15 June 13, 2006, plaintiff-petitioner filed a motion to reopen which has not
16 been acted upon.

17

Plaintiff-petitioner NGUYEN

18

123. Plaintiff-petitioner Dieu Ngoc Nguyen was born in Vietnam in

19 1966. Plaintiff-petitioner is a citizen of Vietnam.

20

124. Plaintiff-petitioner has lived in Elk Grove, California since

21 2004. Plaintiff-petitioner entered the United States on a K-1 visa as the

22 fiancée of a United States citizen, and was inspected and admitted on March

23 20, 2004.

24

125. On April 19, 2004, plaintiff-petitioner married Loc Van

25 Nguyen, a naturalized United States citizen, within the 90 days from her

26 entry as required by the K-1 visa.

27

The Petition and Application

28

-27-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 28 of 43 Page ID #:373

1

126. Plaintiff-petitioner’s spouse, pursuant to 8 C.F.R § 214.2(k)(1),

2 previously filed a Form I-129F Petition for Alien Fiance(e) (Petition) which

3 was approved, and plaintiff-petitioner was subjected to quasi-immigrant visa

4 processing through defendants-respondents United States Department of

5 State prior to receiving her K-1 visa. On May 4, 2004, following plaintiff-
6 petitioner’s lawful entry in K-1 status and marriage to her husband within 7 the required 90 day period, and pursuant to 8 C.F.R § 214.2(k)(6)(ii), 8
plaintiff-petitioner filed with the required fee a Form I-485, Application to 9
Register Permanent Residence or to Adjust Status ("Application"), also 10
within the 90 day period, seeking adjustment of status to lawful permanent 11
resident. Plaintiff-petitioner’s spouse executed an I-864 Affidavit of 12 13 Support. Pursuant to 8 C.F.R. § 245.1(c)(6)(i), plaintiff-petitioner is eligible 14 for adjustment of status without the I-130 petition requirement, because
15 plaintiff-petitioner’s spouse filed the I-129F petition. Plaintiff-petitioner
16 was assigned an Alien Number "A-Number", which is A96 350 330.

17 Plaintiff-petitioner and her husband were interviewed by defendants-

18 respondents on October 4, 2004, but no action was taken on the Application

19 at that time due to backlogs in security checks.

20

127. Plaintiff-petitioner's spouse died on March 24, 2005 while

21 security checks continued to be backlogged.

22

The Denial

23

128. On November 30, 2005, defendants-respondents denied the

24 Petition and Application that were jointly filed by the couple solely on the

25 basis that plaintiff-petitioner was no longer the spouse of a U.S. citizen.
26 Plaintiff-petitioner filed a motion to reconsider which was denied on March 27 3, 2006. 28
-28FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 29 of 43 Page ID #:374

1

Plaintiff-petitioner BERNSTEIN

2

129. Plaintiff-petitioner Agnieszka Bernstein was born in Poland in

3 1974. Plaintiff-petitioner is a citizen of Poland.

4

130. Plaintiff-petitioner has lived in Spring Valley, New York since

5 April 2005. Plaintiff-petitioner entered the United States on a nonimmigrant

6 J-1 visa, and was inspected and admitted September 14, 1998.

7

131. On April 17, 2005, plaintiff-petitioner married Bryan Bernstein,

8 a United States citizen.
9 The Petition and Application
10 132. On July 25, 2005 plaintiff-petitioner's U.S. citizen spouse filed
11 with the required fee a Form I-130, Petition for Alien Relative ("Petition")
12

13 establishing his citizenship and that his spouse is an immediate relative, and

14 executed an I-864 Affidavit of Support. On the same day, plaintiff-

15 petitioner filed with the required fee a Form I-485, Application to Register

16 Permanent Residence or to Adjust Status ("Application"), seeking

17 adjustment of status to lawful permanent resident, relying on the citizen

18 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner

19 was assigned an Alien Number "A-Number", which is A 96 588 669.

20

133. Plaintiff-petitioner's spouse Bryan Bernstein died on March 10,

21 2006.

22

The Denial

23

134. On March 29, 2006, defendants-respondents denied the Petition

24 and Application that were jointly filed by the couple solely on the basis that

25 plaintiff-petitioner was no longer the spouse of a U.S. citizen.

26

Plaintiff-petitioner BAYOR

27

135. Plaintiff-petitioner Sarah Bayor was born in the Philippines in

28

-29-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 30 of 43 Page ID #:375

1 1966. Plaintiff-petitioner is a citizen of the Philippines

2

136. Plaintiff-petitioner has lived in Jamaica, New York since 2002.

3 Plaintiff-petitioner entered the United States on a nonimmigrant C-1 visa,

4 and was inspected and admitted.

5

137. On January 5, 2006 plaintiff-petitioner married Stephen R.

6 Bayor, a United States citizen.

7

The Petition and Application

8 138. On February 20, 2006, plaintiff-petitioner's U.S. citizen spouse

9

filed with the required fee a Form I-130, Petition for Alien Relative

10

("Petition") establishing his citizenship and that his spouse is an immediate

11

relative, and executed an I-864 Affidavit of Support. On the same day, 12

13 plaintiff-petitioner filed with the required fee a Form I-485, Application to

14 Register Permanent Residence or to Adjust Status ("Application"), seeking

15 adjustment of status to lawful permanent resident, relying on the citizen

16 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner

17 was assigned an Alien Number "A-Number", which is A99 806 135.

18

139. On May 5, 2007 plaintiff-petitioner's spouse Stephen R. Bayor

19 died.

20

The Denial

21

140. On August 9, 2007 defendants-respondents denied the Petition

22 and Application that were jointly filed by the couple solely on the basis that

23 plaintiff-petitioner was no longer the spouse of a U.S. citizen.

24

Plaintiff-petitioner STANDIFER

25

141. Plaintiff-petitioner Stella Standifer was born in Kenya in 1974.

26 Plaintiff-petitioner is a citizen of Kenya.

27

142. Plaintiff-petitioner has lived in Philadelphia, Pennsylvania since

28

-30-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 31 of 43 Page ID #:376

1 2003. Plaintiff-petitioner entered the United States on a nonimmigrant F-1

2 student visa in 1999, and was inspected and admitted. She is currently in H-

3 1B nonimmigrant work status.

4

143. On October 11, 2003, plaintiff-petitioner married Glenn Collin

5 Standifer, a United States citizen.

6

The Petition and Application

7

144. On March 31, 2004, plaintiff-petitioner's U.S. citizen spouse

8 filed with the required fee a Form I-130, Petition for Alien Relative
9 ("Petition") establishing his citizenship and that his spouse is an immediate
10 relative, and executed an I-864 Affidavit of Support. On the same day,
11 plaintiff-petitioner filed with the required fee a Form I-485, Application to
12
13 Register Permanent Residence or to Adjust Status ("Application"), seeking

14 adjustment of status to lawful permanent resident, relying on the citizen

15 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner

16 was assigned an Alien Number "A-Number", which is A98 085 420.

17

145. On December 9, 2004, plaintiff-petitioner's spouse Glenn Collin

18 Standifer suffered a sudden heart attack and died.

19

The Denial

20

146. On June 8, 2005, defendants-respondents denied the Petition

21 and Application that were jointly filed by the couple solely on the basis that

22 plaintiff-petitioner was no longer the spouse of a U.S. citizen. On July 5,

23 2007, plaintiff-petitioner filed a motion to reopen. On February 11, 2008,

24 defendants-respondents denied the motion.

25

Plaintiff-petitioner BATOOL

26

147. Plaintiff-petitioner Farah Batool was born in Pakistan in 1970.

27 Plaintiff-petitioner is a citizen of Pakistan.

28

-31-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 32 of 43 Page ID #:377

1

148. Plaintiff-petitioner has lived in Floral Park, New York since

2 2006. Plaintiff-petitioner entered the United States on a nonimmigrant B-

3 1/B-2 visa in 2003, and was inspected and admitted.

4

149. On July 14, 2003, plaintiff-petitioner married Dale Allen Davis,

5 a United States citizen.

6

The Petition and Application

7

150. On February 23, 2004, plaintiff-petitioner's U.S. citizen spouse

8 filed with the required fee a Form I-130, Petition for Alien Relative
9 ("Petition") establishing his citizenship and that his spouse is an immediate
10 relative, and executed an I-864 Affidavit of Support. On the same day,
11 plaintiff-petitioner filed with the required fee a Form I-485, Application to
12
13 Register Permanent Residence or to Adjust Status ("Application"), seeking

14 adjustment of status to lawful permanent resident, relying on the citizen

15 spouse's Petition attesting to the alien's status as spouse. Plaintiff-petitioner

16 was assigned an Alien Number "A-Number", which is A98 067 884.

17

151. On July 24, 2004, plaintiff-petitioner's spouse Dale Allen Davis

18 died of cancer.

19

The Denial

20

152. Plaintiff-petitioner was scheduled by defendants-respondents

21 for an interview on March 11, 2005. Plaintiff-petitioner did not attend the

22 interview because her attorney at that time advised her on January 20, 2005

23 in a letter that the application would be denied solely due to her husband’s

24 death. On May 17, 2005, defendants-respondents denied the Petition and

25 Application that were jointly filed by the couple due to abandonment, but
26 plaintiff-petitioner filed a motion to reopen with the required fee on August 27 5, 2005 which is currently pending. Had plaintiff-petitioner appeared at the 28
-32FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 33 of 43 Page ID #:378

1 interview, defendants-respondents would have denied the Petition and

2 Application solely on the basis that Petitioner was no longer the spouse of a

3 U.S. citizen.

4

CLASS ACTION ALLEGATIONS

5

153. The named plaintiffs-petitioners bring this action pursuant to

6 Rule 23 of the Federal Rules of Civil Procedure on behalf of themselves and

7 all other persons similarly situated in the following classes. The named

8 plaintiffs-petitioners seek to represent the following class and subclasses:

9

Class:

All beneficiaries of immediate relative petitions

10

whose petitioning relatives died prior to

11

beneficiaries’ adjudication and approval of lawful 12

13

permanent resident status.

14

Subclass I: All beneficiaries of immediate relative petitions

15

who applied for adjustment of status in the United

16

States, and whose petitioning relatives died prior to

17

beneficiaries’ adjudication and approval of lawful

18

permanent resident status.

19

Subclass II: All beneficiaries of immediate relative petitions

20

who applied for immigrant visas abroad, and

21

whose petitioning relatives died prior to

22

beneficiaries’ adjudication and approval of lawful

23

permanent resident status.

24

154. Class members may belong to more than one class.

25

155. The members of the plaintiffs-petitioners classes warrant class

26 action treatment because they fulfill the certifying requirements under Rule

27 23(a) of the Federal Rules of Civil Procedure.

28

-33-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 34 of 43 Page ID #:379

1

156. The proposed classes meet the commonality requirement of

2 Fed. R. Civ. P. 23(a)(2) because there are questions of law and fact common

3 to the class. Common questions of law include whether defendants-

4 respondents improperly stripped plaintiffs-respondents of immediate relative

5 status upon the death of their petitioning relative, and the proper definition

6 of “spouse” for purposes of 8 U.S.C. § 1151(b)(2)(A)(i). Common questions

7 of fact include whether plaintiffs-respondents met the essential prerequisites

8 for immediate relative status including marriage to a United States citizen
9 and the filing by the citizen of a petition.
10 157. The variances in the class members’ and plaintiffs-petitioners
11 marriage and are irrelevant to their complaints against defendants-
12

13 respondents for immediate relative status.

14

158. The proposed classes meet the numerosity requirement of Fed.

15 R. Civ. P. 23(a)(1) because the members of each of the two classes are so

16 numerous that joinder of all members is impractical. Counsel for plaintiffs-

17 petitioners are aware of 136 class members across the country. Because

18 counsel learned of these cases through lawyer-to-lawyer referrals, it is

19 believed that the numbers of class members across the country is

20 substantially greater, by many times, than the number of identified class

21 members. Counsel for plaintiffs-petitioners, for example, have not been able

22 to locate any surviving spouses of Hurricane Katrina victims, although U.S.

23 Representative F. James Sensenbrenner, Jr. (R-WI) introduced legislation in

24 the 109th Congress (never voted upon) to assist such surviving spouses,

25 leading counsel to believe such victims do, in fact, exist. It is believed that

26 there are many hundreds, if not thousands, of surviving spouses throughout
27 the country whose petitioning relatives died prior to beneficiaries’ 28
-34FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 35 of 43 Page ID #:380

1 adjudication and approval of lawful permanent resident status.

2

159. The proposed classes meet the typicality requirement of Fed. R.

3 Civ. P. 23(a)(3) because the claims of the named plaintiffs-petitioners are

4 typical of the claims of each of the class members. The named plaintiffs-

5 petitioners complain of the defendants-respondents misinterpretation of the
6 term “spouse” for purposes of the immediate relative definition found at 8 7 U.S.C. § 1151(b)(2)(A)(i), and of defendants-respondents illegal actions in 8
denying or withholding lawful permanent resident status to plaintiffs9
petitioners solely due to the death of their spouse. The claims of each class 10
representative are typical of the claims of each member of that class. 11
160. The named plaintiffs-petitioners will fairly and adequately 12 13 protect the interests of the classes as required by Fed. R. Civ. P. 23(a)(4) 14 because their interests are identical to those of the other members of the
15 classes. Plaintiffs-petitioners know of no conflicts between their interests
16 and those of the class they seek to represent.

17

161. Fair and adequate protection of the interests of the classes will

18 be further ensured because the named plaintiffs-petitioners are represented

19 by competent legal counsel. Plaintiffs-petitioners’ counsel are experienced

20 in federal litigation, and with respect to the narrow issue raised in the instant

21 action are among the most knowledgeable in the country. Plaintiffs-

22 petitioners’ counsel are undertaking representation on a pro bono basis, and

23 have adequate resources and commitment to represent the class as a whole.

24

162. The instant action should be maintained as a class action under

25 Fed. R. Civ. P. 23(b)(2) because the defendants-respondents have acted on
26 grounds generally applicable to each member of the classes by 27 misinterpreting the term “spouse” for purposes of the immediate relative 28
-35FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 36 of 43 Page ID #:381

1 definition found at 8 U.S.C. 1151(b)(2)(A)(i), and of defendants-respondents

2 illegal actions in denying lawful permanent resident status to plaintiffs-

3 petitioners solely due to the death of their spouse.

4

163. Furthermore, as contemplated by Fed. R. Civ. P. 23(b)(1), if the

5 individual members of the classes were to bring separate suits to address the
6 defendants-respondents’ policies, practices and actions and inactions, the 7 defendants-respondents may address the cases of the named plaintiffs8
petitioners but ignore the applications and concerns of the remaining class 9
members, thereby exacerbating the defendants-respondents violations of the 10
law. Resolving this matter as a class action would also serve judicial 11
economy since the courts would not be burdened with lawsuits by many 12 13 individual adjustment of status and immigrant visa applicants. Such lawsuits 14 are already beginning to emerge. Robinson v. Chertoff, 2007 WL 1412284
15 (D.N.J. May 14, 2007) appeal docketed, No. 07-2977 (3d Cir. July 5, 2007);
16 Taing v. Chertoff, 2007 U.S. Dist. LEXIS 911411 (D. Mass 2007), appeal

17 docketed, No. 08-1179 (1st Cir. Feb. 11, 2008); Lockhart v. Chertoff, 2008

18 U.S. Dist. LEXIS 889 (D. Ohio 2008).

19

CLAIMS FOR RELIEF

20

FIRST CAUSE OF ACTION

21

164. Plaintiffs-petitioners reallege and incorporate by reference

22 paragraphs 1 through 163 above.

23

165. Plaintiffs-petitioners are immediate relatives for purposes of

24 INA § 201(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i) and are eligible for

25 adjustment of status under INA § 245(a), 8 U.S.C. § 1255(a) (Subclass I)
26 and for issuance of an immigrant visa under INA § 204(b), 8 U.S.C. 1154(b) 27 (Subclass II). 28
-36FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 37 of 43 Page ID #:382

1

166. Plaintiffs-petitioners were not stripped of the status of an

2 "immediate relative" spouse by the death of plaintiffs-petitioners’ spouses.

3

167. Plaintiffs-petitioners remain eligible to receive adjustment of

4 status or an immigrant visa as the "immediate relative" surviving spouse of a

5 United States citizen.

6

168. Plaintiffs-petitioners are admissible to the United States as

7 lawful permanent residents.

8 169. An immigrant visa was immediately available to plaintiffs-
9 petitioners at the time plaintiffs-petitioners’ applications were filed, pursuant
10 to INA § 245(a), 8 U.S.C. 1255(a).
11 170. Plaintiffs-petitioners have suffered and will continue to suffer
12
13 significant and irreparable harm because of defendants-respondents’

14 policies, procedures, acts and failures to act as described herein.

15

171. Defendants-respondents violated plaintiffs-petitioners’ statutory

16 right to apply for relief which Congress has provided under the INA,

17 depriving plaintiffs-petitioners of the opportunity to adjust status to lawful

18 permanent resident and live lawfully in the United States under INA § 245, 8

19 U.S.C. 1255(a), or to obtain an immigrant visa to enter as lawful permanent

20 residents and live lawfully in the United States under INA § 204(b), 8 U.S.C.

21 1154(b).

22

172. Defendants-respondents improperly attempt to revoke the

23 approval of an I-130 petition unless plaintiffs-petitioners present a request

24 under 8 CFR § 205.1(a)(3)(C)(2) for humanitarian reinstatement, supported

25 by a Form I-864 executed by an individual who qualifies under section
26 213A(f)(5)(B) of the Immigration and Nationality Act as a qualifying 27 substitute sponsor. 28
-37FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 38 of 43 Page ID #:383

1

173. The regulation found at 8 CFR § 205.1(a)(3)(C)(2) is invalid as

2 a matter of law.

3

174. The substitute sponsor provisions of section 213A(f)(5)(B) of

4 the Immigration and Nationality Act (INA) do not apply to plaintiffs-

5 petitioners whose U.S. citizen spouses executed an I-864 Affidavit of

6 Support under section 213A(f)(1) of the INA, thereby fulfilling the

7 requirement of section 212(a)(4)(C)(ii) of the INA that the person

8 petitioning for the alien’s admission has executed an I-864 Affidavit of
9 Support.
10 SECOND CAUSE OF ACTION
11 175. Plaintiffs-petitioners reallege and incorporate by reference
12
13 paragraphs 1 through 174 above.

14

176. Plaintiffs-petitioners have suffered a “legal wrong” or have

15 been “adversely affected or aggrieved” by agency action. 5 U.S.C. § 702.

16 Plaintiffs-petitioners are each a person aggrieved by agency action, for

17 which there is no other adequate remedy in a court. 5 U.S.C. § 704.

18

177. Defendants-respondents have unlawfully and erroneously

19 interpreted the definition of the term “immediate relative” in INA §

20 201(a)(b)(2)(A)(i). Based on this erroneous interpretation, defendants-

21 respondents have erroneously denied both the immediate relative petitions

22 filed on plaintiffs-petitioners’ behalf and plaintiffs-petitioners’ adjustment of

23 status or immigrant visa applications in violation of Congressional intent.

24 Plaintiffs-petitioners are entitled to injunctive relief to “compel agency

25 action unlawfully withheld or unreasonably delayed” and to hold unlawful
26 and set aside agency action that, as here, is not in accordance with the law. 27 5 U.S.C. §§ 706(1) and (2). 28
-38FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 39 of 43 Page ID #:384

1

THIRD CAUSE OF ACTION

2

178. Plaintiffs-petitioners reallege and incorporate by reference

3 paragraphs 1 through 177 above.

4

179. Defendants-respondents owe plaintiffs-petitioners a clear and

5 certain duty to adjudicate plaintiffs-petitioners’ applications on the basis that
6 each remains an "immediate relative" spouse of a United States citizen, and
7 were not stripped of this status by the death of plaintiffs-petitioners’ spouses. 8
See Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006). 9
180. Defendants-respondents denied or withheld approval of 10
plaintiffs-petitioners’ applications solely on the basis that each was stripped 11
of the status of spouse, and not for discretionary reasons. Defendants12 13 respondents have failed to perform their duties by determining that 14 plaintiffs-petitioners were no longer the "spouses" of U.S. citizens and
15 therefore not entitled to adjustment of status and for issuance of an

16 immigrant visa, and by failing to exercise discretion.

17

181. Plaintiffs-petitioners have no other adequate remedy.

18

PRAYER FOR RELIEF

19

WHEREFORE, Plaintiffs-petitioners respectfully request that this

20 Court:

21

1. Assume jurisdiction over this action;

22

2. Declare that plaintiffs-petitioners filed the necessary petition

23

and application for lawful permanent resident status, and were

24

not stripped of the status of "spouse" of a United States citizen

25

upon the death of the citizen spouse;

26

3. Declare that plaintiffs-petitioners are entitled to the process that

27

flows from a properly filed petition and application, and must

28

-39-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 40 of 43 Page ID #:385

1

be considered a spouse for purposes of the petition and

2

application;

3

4. Declare that plaintiffs-petitioners are immediate relatives under

4

8 USC § 1151(b)(2)(A)(i) and for the purposes of adjudicating

5

an I-130 petition;

6

5. Declare that defendants-respondents improperly attempt to

7

revoke the approval of an I-130 petition unless plaintiffs-

8 petitioners present a request under 8 CFR § 205.1(a)(3)(C)(2)

9

for humanitarian reinstatement, supported by a Form I-864

10

executed by an individual who qualifies under section

11

213A(f)(5)(B) of the Immigration and Nationality Act as a 12

13

qualifying substitute sponsor;

14

6. Declare that 8 CFR § 205.1(a)(3)(C)(2) is invalid as a matter of

15

law;

16

7. Declare that plaintiffs-petitioners whose citizen spouses

17

executed a Form I-864 Affidavit of Support have satisfied the

18

requirements of 212(a)(4)(C)(ii) of the INA in that the person

19

petitioning for the alien’s admission has executed an I-864

20

Affidavit of Support, and that plaintiffs-petitioners are not

21

required to submit a Form I-864 from a qualifying substitute

22

sponsor under section 213A(f)(5)(B) of the INA;

23

8. Declare that I-130 petition procedure is not the forum for

24

determining substantive questions of admissibility under the

25

immigration laws, and when eligibility for immediate relative

26

classification is established, the petition shall be granted;

27

9. Issue an injunction prohibiting defendants-respondents from

28

-40-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 41 of 43 Page ID #:386

1

using the death of the U.S. citizen spouse as a discretionary

2

factor in the adjudication of the petition and application;

3

10. Issue an injunction prohibiting defendants-respondents from

4

using factors flowing from the unlawful denial of the

5

application to again deny the petition and application upon

6

reopening, including but not limited to claims of abandonment

7

of the application due to departure from the United States, and

8 bars to admissibility related to "unlawful presence" caused by

9

the wrongful denial;

10

11. Issue an injunction prohibiting defendants-respondents from

11

revoking approval of an I-130 petition where plaintiffs12

13

petitioners do not present a request under 8 CFR §

14

205.1(a)(3)(C)(2) for humanitarian reinstatement, supported by

15

a Form I-864 executed by an individual who qualifies under

16

section 213A(f)(5)(B) of the Immigration and Nationality Act

17

as a qualifying substitute sponsor, where plaintiffs-petitioners’

18

citizen spouse previously executed a Form I-864.

19

12. Issue a writ of mandamus compelling defendants-respondents

20

to (a) reopen plaintiffs-petitioners’ adjustment of status and

21

immigrant visa applications on the ground that the applications

22

were unlawfully denied on the basis of defendants-respondents’

23

erroneous determination that plaintiffs-petitioners’ status as

24

"immediate relative" spouses of United States citizens were

25

stripped by the death of plaintiffs-petitioners’ spouses, (b) treat

26

plaintiffs-petitioners as "immediate relative" spouses and

27

adjudicate the immigrant petitions ("petitions") filed on their

28

-41-
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 42 of 43 Page ID #:387

1

behalf accordingly, and (c) treat plaintiffs-petitioners as

2

"immediate relative" spouses and exercise discretion to

3

adjudicate their adjustment of status and immigrant visa

4

applications ("applications");

5

13. Award the relief sought by plaintiffs-petitioners to class

6

members;

7

14. Award plaintiffs-petitioners reasonable costs and attorney's fees

8 under the Equal Access to Justice Act; and
9 15. Award such further relief as the Court deems just or
10 appropriate.
11 DATED this 20th day of March, 2008.
12

13

14

By Brent W. Renison BRENT W. RENISON, Oregon SBN. 96475

15

PARRILLI RENISON LLC

16

5285 SW Meadows Rd., Ste 175

Lake Oswego, Oregon 97035

17

(503) 597-7190

18

(503) 726-0730 fax

E-mail: brent@entrylaw.com

19

Admitted pro hac vice

20

ALAN R. DIAMANTE, Cal. SBN 180149

21

LAW OFFICE OF ALAN R. DIAMANTE

22

523 W. Sixth Street, Ste. 210

23

Los Angeles, California 90014 (213) 943-4555

24

(213) 943 4553 fax

25

E-mail: diamantelaw@aol.com

26

Attorneys for Plaintiffs-petitioners

27

28
-42FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF MANDAMUS CLASS ACTION

Case 2:07-cv-05696-CAS-MAN Document 37 Filed 03/20/08 Page 43 of 43 Page ID #:388

1 PROOF OF SERVICE
2 I, the undersigned, say: my business address is 5285 SW Meadows Rd., Ste 175,
3 Lake Oswego, Oregon 97035. I am over the age of eighteen years and not a party to the 4 above-entitled action.

5

On March 20, 2008, true and correct copies of the plaintiffs’: FIRST AMENDED

6 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION

7

FOR WRIT OF MANDAMUS CLASS ACTION, were served pursuant to the district court’s ECF system as to ECF filers, to the following ECF filers:

8

9 Elizabeth Stevens Office of Immigration Litigation
10 USDOJ Civil Division

11 P.O. Box 878 Ben Franklin Station
12 Washington, DC 20044

13

14

Sheri R. Glaser Office of Immigration Litigation

15 USDOJ Civil Division

16 P.O. Box 878 Ben Franklin Station
17 Washington, DC 20044

18 Melissa S. Leibman
19 Office of Immigration Litigation
20 USDOJ Civil Division P.O. Box 878
21 Ben Franklin Station
22 Washington, DC 20044

23

I declare under penalty of perjury under the laws of the United States of America

24 that the foregoing is true and correct.

25 EXECUTED on March 20, 2008, at Lake Oswego, Oregon.
26

27

S/ Brent W. Renison

Brent W. Renison, Declarant 28

-43-

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS CLASS ACTION

 
 Case 2:07-cv-05696-CAS-MAN Document 44 Filed 04/07/08 Page 1 of 8 Page ID #:438

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date April 7, 2008

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

Present: The Honorable CHRISTINA A. SNYDER

CATHERINE JEANG Deputy Clerk

LAURA ELIAS Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Brent Renison

Elizabeth Stevens Sheri Glaser

Proceedings: Plaintiffs’ Motion for a Preliminary Injunction (filed 11/28/07)

I. INTRODUCTION

On August 30, 2007, plaintiffs, on behalf of themselves and others similarly situated, filed the instant putative class action case. Plaintiffs seek injunctive, declaratory, and mandamus relief against defendants Michael Chertoff, Secretary of the Department of Homeland Security (“DHS”); Emilio Gonzalez, Director of United States Citizenship and Immigration Services (“USCIS”); Condoleezza Rice, United States Secretary of State; and Maura Harty, Assistant Secretary for the Bureau of Consular Affairs, in their official capacities (collectively, “defendants” or the “government”). The complaint alleges that defendants wrongfully determined that plaintiffs are not entitled to immediate relative status for purposes of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1151 et seq. Plaintiffs request that the Court compel defendants (1) to find, as a matter of statutory construction, that plaintiffs are “immediate relative” spouses for purposes of the INA; (2) to reopen and adjudicate their deceased citizen spouses’ immigrant visa petitions; and (3) to reopen and adjudicate (a) plaintiffs’ applications for adjustment of status or (b) plaintiffs’ immigrant visa applications.

On November 13, 2007, defendants moved to dismiss the complaint, arguing, inter alia, that the complaint fails to state a claim upon which relief may be granted with respect to plaintiffs residing outside of the Ninth Circuit. According to defendants, the Board of Immigration Appeals’ decisions are binding on the DHS. These decisions hold that an alien whose United States citizen spouse dies before the couple’s two-year marriage anniversary is not a “surviving spouse” for purposes of the INA. Matter of

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 8

Case 2:07-cv-05696-CAS-MAN Document 44 Filed 04/07/08 Page 2 of 8 Page ID #:439

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date April 7, 2008

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

Varela, 13 I. & N. Dec. 453 (B.I.A. 1973); Matter of Sano, 19 I. & N. Dec. 299 (B.I.A. 1985). Defendants argued that where a United States Court of Appeals renders a decision that is contrary to the position of the Board of Immigration Appeals’, that decision must be followed only as to cases arising within the circuit in which the case was decided. However, defendants follow the Board of Immigration Appeals’ position for cases arising outside the circuit, which has decided a case contrary to the interpretation of the Board of Immigration Appeals. Defendants further assert that a federal district court’s ruling is binding only as to the particular case before the court. Defendants thus argued that they were not required to follow the Ninth Circuit’s decision in Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 1997), for cases arising outside of the jurisdiction of the Ninth Circuit. In Freeman, the Ninth Circuit held that “an alien widow [or widower] whose citizen spouse filed the necessary immediate relative petition form but died within two years of the qualifying marriage nonetheless remains a spouse for purposes of 8 U.S.C. § 1151(b)(2)(A)(i), and is entitled to be treated as such when DHS adjudicates her [or his] adjustment of status application.” Freeman, 444 F.3d at 1034.

On November 28, 2007, plaintiffs filed their present motion for a preliminary injunction pursuant to Fed. R. Civ. P. 65(a). Defendants filed their opposition thereto on January 8, 2008. Plaintiffs filed a reply on January 18, 2008.

A hearing was held on defendants’ motion to dismiss and on plaintiffs’ motion for a preliminary injunction on January 28, 2008. The Court continued defendants’ motion to dismiss to March 3, 2008. The Court also continued plaintiffs’ present motion for a preliminary injunction to March 31, 2008. Then, by order dated February 19, 2008, the Court continued plaintiffs’ motion for a preliminary injunction to April 7, 2008, pursuant to a stipulation of the parties.

On March 3, 2008, a hearing was held on defendants’ motion to dismiss. Thereafter, by order dated March 17, 2008, the Court denied defendants’ motion to dismiss the claims of plaintiffs residing outside of the jurisdiction of the Ninth Circuit. March 17, 2008 Order (Docket No. 36) at 32, and granted plaintiffs leave to add allegations challenging the legality of 8 C.F.R. § 205.1(a)(3)(C)(3). The Court held that defendants did not offer an appropriate jurisdictional basis which would prevent the Court from adjudicating the claims of the plaintiffs residing outside of the jurisdiction of the Ninth Circuit, and that defendants had waived any improper venue arguments. Id. at

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 2 of 8

Case 2:07-cv-05696-CAS-MAN Document 44 Filed 04/07/08 Page 3 of 8 Page ID #:440

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date April 7, 2008

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

30. The Court further held that although Ninth Circuit law does not bind it with respect to these plaintiffs, Freeman is persuasive authority. Id. at 31.

A hearing was held on plaintiffs’ motion for a preliminary injunction on April 7, 2008. After carefully considering the parties’ arguments, the Court finds and concludes as follows.

II. LEGAL STANDARD

A preliminary injunction is appropriate when the moving party shows either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) the existence of serious questions going to the merits and that the balance of hardships tips sharply in the moving party’s favor. See Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987). These are not two distinct tests, but rather “the opposite ends of a single ‘continuum in which the required showing of harm varies inversely with the required showing of meritoriousness.’” Id. A “serious question” is one on which the movant “has a fair chance of success on the merits.” Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir. 1984).

III. DISCUSSION

Plaintiffs who filed I-485 applications for adjustment of status to lawful permanent resident, move, on behalf of themselves and all other similarly situated, for a preliminary injunction prohibiting defendants from withholding Employment Authorization Documents (“EADs”) and Advance Parole Travel Documents (“APs”). Plaintiffs also request a preliminary injunction prohibiting defendants from initiating removal proceedings.

As a preliminary matter, because no class has been certified in this case, the Court does not grant class-wide injunctive relief. Accordingly, the Court addresses plaintiffs’ motion as it pertains to the named plaintiffs.

A.
CV-90 (06/04)

PROHIBITION OF WITHHOLDING OF EADs AND APs
CIVIL MINUTES - GENERAL

Page 3 of 8

Case 2:07-cv-05696-CAS-MAN Document 44 Filed 04/07/08 Page 4 of 8 Page ID #:441

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date April 7, 2008

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

Assuming arguendo that the Court may prohibit defendants from withholding EADs and APs, the Court concludes that plaintiffs have not made a sufficient showing to justify its doing so.

First, plaintiffs have not sufficiently demonstrated that they will be irreparably harmed. Among other things, it appears that some plaintiffs have valid EADs. Nor is there any evidence supporting plaintiffs’ contention that they were working or that they need to work. Finally, there is no evidence showing that plaintiffs need to travel.

Second, for the same reasons, plaintiffs have not demonstrated that the balance of hardships tips in their favor.

B. PROHIBITION OF REMOVAL PROCEEDINGS

1. JURISDICTION

Defendants argue that 8 U.S.C. § 1252(g) deprives the Court of jurisdiction to enter a preliminary injunction prohibiting the initiation of removal proceedings.

8 U.S.C. § 1252(g) provides that except under certain limited circumstances not present here, “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.” The United States Supreme Court has explained that “[8 U.S.C. § 1252(g)] applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (emphasis in original). “Because those three terms are to be read narrowly and precisely, [8 U.S.C.] § 1252(g) does not proscribe review over even the generality of deportation matters, much less other collateral decisions, which may be reached on the path to such action. Evangelical Lutheran Church in Am. v. INS, 288 F. Supp. 2d 32, 43 (D.D.C. 2003) (internal quotations and citations omitted) (plaintiffs claimed that INS’ interpretation of 8 C.F.R. § 214.1(c)(4) was arbitrary and capricious, in violation of the APA, and that it constituted a de facto revocation of the regulation without any prior notice or opportunity

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 4 of 8

Case 2:07-cv-05696-CAS-MAN Document 44 Filed 04/07/08 Page 5 of 8 Page ID #:442

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date April 7, 2008

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

for public comment, in violation of the APA, the Freedom of Information Act, 5 U.S.C. § 552, and the Due Process Clause, and the court found, where removal proceedings had not yet been initiated, that 8 U.S.C. § 1252(g) did not prevent it from entering a preliminary injunction preventing the government from taking any adverse actions against the plaintiffs during the pendency of the litigation); see also Catholic Soc. Services, Inc. v. INS, 232 F.3d 1139, 1150 (9th Cir. 2000) (concluding that 8 U.S.C. § 1252(g) does not apply “to all claims relating in any way to deportation proceedings”).

In Reno v. American-Arab Anti-Discrimination Committee, et al., 525 U.S. 471 (1999), the United States Supreme Court found that 8 U.S.C. § 1252(g) deprived the district court of jurisdiction to adjudicate a suit against the Attorney General and other federal parties for allegedly violating the plaintiffs’ First and Fifth Amendment rights by targeting the plaintiffs for deportation because of their affiliation with the Popular Front for the Liberation of Palestine. Id. at 487. The Court observed that there may exceptions to the general rule of divestiture, for example, in a “rare case in which the alleged basis of discrimination is [] outrageous.” Id. at 491. However, the Court found that “[w]hen an alien’s continuing presence in this country is in violation of the immigration laws, the Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity.” Id. at 491-92; see also American-Arab Anti-Discrimination Comm. v. Ridge, 2003 U.S. Dist. LEXIS 25100, at *14-15 (C.D. Cal. 2003) (concluding that pursuant to 8 U.S.C. § 1252(g), the court did not have jurisdiction to hear plaintiffs’ constitutional challenges to the timing of and decision to commence removal proceedings); Momtazian v. Ashcroft, 2002 U.S. Dist. LEXIS 27263, at *8 (C.D. Cal. 2002) (where plaintiff challenged special call-in registration procedures, the court declined to issue a preliminary injunction, holding, inter alia, that the plaintiff “has not demonstrated that he has been detained for some improper reason beyond the jurisdiction of the INS, nor should the Court interfere with the administrative discretion to commence proceedings or adjudicate the case against this plaintiff”); Saleh Jafar Roudnahal v. Ridge, 310 F. Supp. 2d 884, 891 (D. Ohio 2003) (concluding that 8 U.S.C. § 1252(g) divested the court of jurisdiction to hear plaintiffs’ claims challenging defendants’ attempt to remove them from the United States as violative of constitutional, statutory, and regulatory law).

Unlike American-Arab Anti-Discrimination Committee, et al., the claims here do

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 5 of 8

Case 2:07-cv-05696-CAS-MAN Document 44 Filed 04/07/08 Page 6 of 8 Page ID #:443

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date April 7, 2008

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

not arise from the Attorney General’s decision to initiate removal proceedings. Rather, plaintiffs’ claims arise from USCIS’ allegedly erroneous interpretation of 8 U.S.C. § 1115(b)(2)(A)(i), and from plaintiffs’ challenge to 8 C.F.R. § 205.1(a)(3)(C)(2), as an impermissible interpretation of 8 U.S.C. § 1155. See Catholic Soc. Servs. v. Reno, 134 F.3d 921, 927 (9th Cir. 1997) (finding that 8 U.S.C. § 1252(g) did not prevent the district court from issuing a preliminary injunction enjoining the government from executing final orders of removal or from revoking or denying any class member’s work authorization, where plaintiffs filed a class action challenging the INS’ advance parole policy as inconsistent with the Immigration Reform and Control Act of 1986 and challenging § 377 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 as inconsistent with the equal protection component of the Due Process Clause of the Fifth Amendment); Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir. 1998) (“Because the district court clearly had jurisdiction to hear the claims regarding constitutional violations in the context of the document fraud proceedings, it had jurisdiction to order adequate remedial measures, including injunctive provisions that ensure that the effects of the violation do not continue.”); Barahona-Gomez v. Reno, 167 F.3d 1228, 1234 (9th Cir. 1999) (finding that district court had jurisdiction to grant injunctive relief to the certified class “staying deportation pending resolution of their constitutional claims”).

On April 4, 2008, plaintiffs notified this Court that USCIS has initiated removal proceedings against Angulo. It appears that USCIS has done so based on its denial of Angulo’s deceased citizen spouse’s I-130 petition and Angulo’s I-485 application for adjustment of status. This denial in turn appears to based on USCIS’ determination that Angulo is not a “surviving spouse” for purposes of the INA. At the hearing held herein, defendants’ counsel conceded, that to her knowledge, the foregoing is true. The Court directs defendants to provide, on or before May 1, 2008, the basis upon which USCIS seeks to remove plaintiff Angulo.

Based on the present record, it appears that the only basis for placing the named plaintiffs in removal proceedings is USCIS’ determination that the named plaintiffs are out of legal status, which is in turn based on USCIS’ determination that plaintiffs are not “surviving spouses” for purposes of the INA. If this is the basis for commencing removal proceedings or for prosecuting pending removal proceedings, the Court concludes that it may prohibit the government from doing so if such action can be said to be in aid of jurisdiction in this case. However, before finally adjudicating the present request for

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 6 of 8

Case 2:07-cv-05696-CAS-MAN Document 44 Filed 04/07/08 Page 7 of 8 Page ID #:444

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date April 7, 2008

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

preliminary injunction, the Court will consider the reasons underlying USCIS’ decision to commence removal proceedings against Angulo.

2. MERITS OF PLAINTIFFS’ REQUEST FOR A PRELIMINARY INJUNCTION

The Court concludes that in light of Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), and district court decisions from other jurisdictions agreeing with Freeman, see e.g., Robinson v. Chertoff, 2007 U.S. Dist. LEXIS 34956, at *4 (D. N.J. 2007); Taing v. Chertoff, 2007 U.S. Dist. LEXIS 91411, at *28 (D. Mass. 2007); Lockhart v. Chertoff, 2008 U.S. Dist. LEXIS 889, at *30 (D. Ohio 2008), there are serious questions going to the merits of this case. Specifically, it appears that defendants have improperly determined that the death of a United States citizen spouse before the two-year marriage anniversary of the citizen spouse and alien spouse, deprives the alien spouse of his or her “surviving spouse” status.

If plaintiffs were removed from the United States they would undoubtably be irreparably harmed.

Further, the balance of hardships tips in plaintiffs’ favor, in that plaintiffs will suffer serious harm if deported and inappropriately separated from their relatives. On the other hand, defendants will not suffer hardship if they are required to refrain from commencing removal proceedings or from prosecuting pending removal proceedings during the pendency of this action. Defendants argue that they will be harmed if they are enjoined from “enforcing statutes enacted by the duly elected representations of the people.” Opp’n at 15 (citing Coalition for Economic Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (“Further, balancing the equities, we are persuaded that the State has demonstrated the clear possibility of irreparable injury to its citizens if a stay of the mandate is granted; it is clear that a state suffers irreparable injury whenever an enactment of its people or their representatives is enjoined.”)). However, it appears that defendants’ decision to initiate removal proceedings is based on their allegedly erroneous determination that plaintiffs are not “surviving spouses”; preventing defendants from improperly enforcing the law does not constitute hardship.

IV. CONCLUSION
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 7 of 8

Case 2:07-cv-05696-CAS-MAN Document 44 Filed 04/07/08 Page 8 of 8 Page ID #:445

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date April 7, 2008

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

In accordance with the foregoing, the Court DENIES plaintiffs’ motion for a classwide preliminary injunction. The Court further DENIES plaintiffs’ motion for a preliminary injunction prohibiting defendants from withholding Employment Authorization Documents and Advance Parole Travel Documents. The Court reserves for further consideration, plaintiffs’ request for a preliminary injunction prohibiting defendants from commencing removal proceedings against plaintiffs. However, the Court orders that no further adverse action be taken against the named plaintiffs until further order of the Court.

Further, the Court hereby orders supplemental briefing of no more than fifteen (15) pages in length to be filed as follows:

On or by April 28, 2008: On or by May 1, 2008:
On or by May 12, 2008:

Plaintiffs’ supplemental brief in support of their motion for class certification. Defendants’ brief explaining the reasons for having commenced removal proceedings against any of the named plaintiffs. Defendants’ reply to plaintiffs’ supplemental brief in support of plaintiffs’ motion for class certification.

Finally, the Court schedules a hearing on plaintiffs’ motion for class certification on June 9, 2008 at 10:00 A.M.

IT IS SO ORDERED.

Deputy Clerk:

00:17 CMJ

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 8 of 8

 
 Case No. Title

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date January 6, 2009

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

Present: The Honorable CHRISTINA A. SNYDER

CATHERINE JEANG Deputy Clerk

Not Present Court Reporter / Recorder

N/A Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings: (In Chambers:) Order Granting Plaintiffs’ Motion for Class Certification (filed 11/28/07)

I. INTRODUCTION AND BACKGROUND
On August 30, 2007, plaintiffs,1 on behalf of themselves and others similarly situated, filed the instant class action case. On March 20, 2008, plaintiffs filed their operative first amended complaint (“FAC”). Plaintiffs seek injunctive, declaratory, and mandamus relief against defendants Michael Chertoff, Secretary of the Department of Homeland Security (“DHS”); Jonathan Scharfen, Acting Director of United States Citizenship and Immigration Services (“USCIS”), in their official capacities, (collectively, “defendants” or the “government”).2 Further details concerning this action

1 Plaintiffs are Carolyn Robb Hootkins, Ana Maria Moncayo-Gigax, Suzanne Henriette De Mailly, Sara Cruz Vargas de Fisher, Raymond Lockett, Elsa Cecilia Brenteson, Pauline Marie Gobeil, Dahianna Heard, Rose Freeda Fishman-Corman, Khin Thidar Win, Diana Gejac Engstrom, Maria Del Carmen Diaz-Ruiz, Gladys Walsh, Li Ju Lu, Yelena Arias Angulo, Purita Manuel Pointdexter, Tracy Lee Rudl, Dieu Ngoc Nguyen, Agnieszka Bernstein, Sarah Bayor, Stella Standifer, and Farah Batool.

2 The original complaint also named Condoleezza Rice, United States Secretary of

State, and Maura Harty, Assistant Secretary for the Bureau of Consular Affairs, in their

official capacities, as defendants. By order dated March 16, 2008, the Court dismissed

the United States Department of State as a defendant. The plaintiffs terminated Maura

(continued...)

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date January 6, 2009

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

are set forth in the Court’s March 28, 2008 Order granting in part and denying in part defendants’ motion to dismiss the complaint.

A. FIRST CLAIM FOR RELIEF

The FAC alleges that defendants wrongfully determined that plaintiffs are not
entitled to immediate relative status for purposes of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1151 et seq.3 Specifically, it is defendants’ position that in order to

2(...continued)
Harty as a defendant when they filed their FAC.
3 “Immediate relative” is a term defined in 8 U.S.C. § 1154(b)(2)(A)(I):

For purposes of . . . subsection [1154(b)(2)(A)(I)], the term immediate relative means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age. In the case of an alien who was the spouse of a citizen of the United States for at least 2 years at the time of the citizen’s death and was not legally separated from the citizen at the time of the citizen's death, the alien (and each child of the alien) shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen’s death but only if the spouse files a petition under section 204(a)(1)(A)(ii) [8 U.S.C. § 1154(a)(1)(A)(ii)] within 2 years after such date and only until the date the spouse remarries. For purposes of this clause, an alien who has filed a petition under clause (iii) or (iv) of section 204(a)(1)(A) of this Act [8 U.S.C. § 1154(a)(1)(A)] remains an immediate relative in the event that the United States citizen spouse or parent loses United States citizenship on account of the abuse.

8 U.S.C. § 1154(b)(2)(A)(I) (internal quotations omitted).

To receive an immigrant visa by virtue of one’s status as an “immediate relative”

(continued...)

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 2 of 16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date January 6, 2009

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

be considered an “immediate relative” spouse for purposes of 8 U.S.C. § 1115(b)(2)(A)(I), the alien spouse must have been married to his or her petitioning citizen spouse for at least two years. Relying primarily on the Board of Immigration Appeals’ (sometimes referred to herein as the “Board”) decision in Matter of Varela, 13 I. & N. Dec. 453 (B.I.A. 1973), defendants argue that when an alien’s United States citizen spouse dies before the couple’s two year marriage anniversary, the alien loses his or her status as a spouse, and must reapply for citizenship.

However, in Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), the Court of Appeals for the Ninth Circuit rejected this argument, holding that

an alien widow [or widower] whose citizen spouse has filed the necessary forms to be and to remain an immediate relative (spouse) for purposes of § 1151(b)(2)(A)(I), even if the citizen spouse dies within two years of the marriage. As such, the widowed spouse remains entitled to the process that flows from a properly filed adjustment of status application.

Id. at 1039. District courts from other jurisdictions have agreed with Freeman in concluding that the death of an alien’s citizen spouse before the couple’s two-year marriage anniversary does not deprive the alien spouse of his or her “immediate relative” status. See e.g., Robinson v. Chertoff, 2007 U.S. Dist. LEXIS 34956, at *4 (D. N.J. 2007); Taing v. Chertoff, 2007 U.S. Dist. LEXIS 91411, at *28 (D. Mass. 2007); Lockhart v. Chertoff, 2008 U.S. Dist. LEXIS 889, at *30 (D. Ohio 2008). No other Court of Appeals has yet rendered a decision on the issue.

3(...continued)

spouse, the alien’s United States citizen spouse must first petition the Attorney General,

by filing a Form I-130 petition, claiming that the alien spouse is entitled to “immediate

relative” status. 8 C.F.R. § 204.1(a)(1). With respect to aliens who entered the United

States on a K-1 fiancé visa, the citizen spouse must file a Form I-129F with USCIS. 8

C.F.R. § 214.2(k). The citizen spouse, or a permissible alternative sponsor, must also

execute a Form I-864, affidavit of support. 8 U.S.C. § 1182(a)(4)(C)(ii). Further details

about this process are set forth in this Court’s order granting in part and denying in part

defendants’ motion to dismiss the complaint. See March 28, 2008 Order at 3-5.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 3 of 16

Case No. Title

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date January 6, 2009

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

Defendants assert that they are only required to follow Freeman, a United States Court of Appeals’ decision that is contrary to the Board’s interpretation, in cases that arise within the Ninth Circuit, in which Freeman was decided. Defendants argue that therefore, Freeman is binding law only as to cases that arise within the jurisdiction of the Ninth Circuit. Defendants contend that the Board’s decisions govern cases arising outside of the jurisdiction of the Ninth Circuit, and those decisions require USCIS to deny an I-130 petition if the United States citizen spouse died before the two-year marriage anniversary. See Matter of Sano, 19 I. & N. Dec. 299 (B.I.A. 1985); Matter of Varela, 13 I. & N. Dec. 453 (B.I.A. 1970).
Further, defendants read Freeman narrowly. The November 8, 2007, USCIS Interoffice Memorandum from Mike Aytes, Associate Director of Domestic Operations, USCIS, to the Field Leadership instructs that although USCIS will follow Freeman in the Ninth Circuit, it will do so only if an alien spouse has filed an I-485 application before the death of the alien’s citizen spouse. Such a requirement is, according to USCIS, exacted by Freeman because there an I-485 application for adjustment of status had been filed before the death of the citizen spouse.4 Additionally, USCIS will revoke the postdeath approval of an I-130 petition unless the alien spouse can present a request under for humanitarian reinstatement under 8 C.F.R. 205.(a)(3)(i)(C)(2).
With respect to plaintiffs’ challenge to defendants’ interpretation of 8 U.S.C. § 1151(b)(2)(A)(i), plaintiffs request that the Court compel defendants (1) to find, as a matter of statutory construction, that plaintiffs are “immediate relative” spouses for purposes of the INA; (2) to reopen and adjudicate their deceased citizen spouses’ immigrant visa petitions; and (3) to reopen and adjudicate (a) plaintiffs’ applications for adjustment of status or (b) plaintiffs’ immigrant visa applications. Plaintiffs also seek an injunction prohibiting defendants from using the death of a citizen spouse as a discretionary factor in the adjudication of I-130 petitions and I-485 applications, and

4 Plaintiffs argue that Freeman did not condition its ruling on the pre-death filing of

an I-485 application for adjustment of status.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 4 of 16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date January 6, 2009

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

from using factors flowing from the unlawful denial of an I-485 application to deny the I130 petition and I-485 application.

B. SECOND CLAIM FOR RELIEF

The FAC also challenges the legality of the USCIS rule that requires alien spouses
to request humanitarian reinstatement under 8 C.F.R. 205.1(a)(3)(i)(C)(2), and to come forward with a substitute sponsor of support.5

In this regard, plaintiffs seek a declaration to the effect that it is improper to revoke the approval of an I-130 petition unless the alien spouse seeks request humanitarian reinstatement under 8 C.F.R. § 205.1(a)(3)(C)(2), and that 8 C.F.R. § 205.1(a)(3)(C)(2) is invalid as a matter of law. Plaintiffs also seek an injunction prohibiting defendants from revoking, in cases in which the United States citizen spouse previously executed a Form I-864, the approval of an I-130 petition under 8 C.F.R. § 205.1(a)(3)(C)(2).

C. PROCEDURAL HISTORY

On November 28, 2007, plaintiffs filed their instant motion for class certification. Defendants filed their opposition on January 15, 2008. Plaintiffs filed a reply thereto on January 16, 2008. On January 28, 2008, the Court held a hearing on plaintiffs’ motion for class certification, and continued the hearing. At the Court’s request, the parties filed supplemental briefing. Specifically, plaintiffs filed a supplemental memorandum in support of their motion for class certification on April 28, 2008. On May 19, 2008, defendants filed a response to plaintiffs’ supplemental memorandum. On June 30, 2008, the Court held a hearing on plaintiffs’ motion, and issued a tentative order. The Court

5 If the citizen spouse dies after the I-130 petition has been approved, but before

final decision on the alien’s I-485 application, the I-130 petition is automatically revoked.

8 C.F.R. § 205.1. 8 C.F.R. § 205.1(a)(3) affords an exception to this rule of automatic

revocation allowing USCIS, at its discretion, to reinstate the I-130 petition for

humanitarian reasons if another relative is willing and able to file an affidavit of support,

Form I-864, under 8 C.F.R. § 213(a) as a substitute sponsor.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 5 of 16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date January 6, 2009

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

ordered the parties to file proposed class definitions in light of the tentative ruling. Plaintiffs filed their proposed class definition on July 2, 2008. Defendants filed their proposed class definition on July 3, 2008. After carefully considering the parties’ arguments, the Court certifies a Ninth Circuit class as set forth below.

II. LEGAL STANDARD

“Class actions have two primary purposes: (1) to accomplish judicial economy by avoiding multiple suits, and (2) to protect rights of persons who might not be able to present claims on an individual basis.” Haley v. Medtronic, Inc., 169 F.R.D. 643, 647 (C.D. Cal. 1996) (citing Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983)). Federal Rule of Civil Procedure 23 governs class actions. A class action “may be certified if the trial court is satisfied after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982).

To certify a class action, plaintiffs must set forth prima facie facts that support the four requirements of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Dunleavy v. Nadler (In re Mego Fir. Corp. Sec. Litig.), 213 F.3d 454, 462 (9th Cir. 2000) (internal quotations omitted). These requirements effectively “limit the class claims to those fairly encompassed by the named plaintiff's claims.” Falcon, 457 U.S. at 155 (quoting Califano v. Yamasaki, 442, U.S. 682, 701 (1979)).

If the district court finds that the action meets the prerequisites of Rule 23(a), the court must then consider whether the class is maintainable under one or more of the three alternatives set forth in Rule 23(b). Plaintiffs seek certification under Rule 23(b)(3). A class is maintainable under Rule 23(b)(3) where “questions of law or fact common to the members of the class predominate over any questions affecting only individual members,” and where “a class action is superior to other available methods for fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3) (emphasis added). “The Rule 23(b)(3) predominance inquiry tests whether the proposed classes are sufficiently cohesive to warrant adjudication by representation.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998) (citing Amchem Products, Inc. v. Windsor,

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 6 of 16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date January 6, 2009

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

521 U.S. 591 (1997)). The predominance inquiry measures the relative weight of the common to individualized claims. Id. “Implicit in the satisfaction of the predominance test is the notion that the adjudication of common issues will help achieve judicial economy.” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1189 (9th Cir. 2001) (citing Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996)). In determining superiority, the court must consider the four factors of Rule 23(b)(3): (1) the interests members in the class have in individually controlling the prosecution or defense of the separate actions; (2) the extent and nature of any litigations concerning the controversy already commenced by or against members of the class; (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (4) the difficulties likely encountered in the management of a class action. Id. at 11901993. “If the main issues in a case require the separate adjudication of each class member's individual claim or defense, a Rule 23(b)(3) action would be inappropriate.” Id. (citing 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1778 at 535-39 (2d. ed. 1986) (hereinafter “Wright, Miller & Kane”)).

III. DISCUSSION

A. PROPOSED CLASS

Plaintiffs seek to certify a class consisting of

All beneficiaries of immediate relative petitions whose petitioning relatives died prior to beneficiaries’ adjudication and approval of lawful permanent resident status.

FAC ¶ 153.

Plaintiffs also seek to certify two subclasses, defined as follows

Subclass I:
CV-90 (06/04)

All beneficiaries of immediate relative petitions who applied for adjustment of status in the United States, and whose petitioning relatives died prior to beneficiaries’ adjudication and approval of lawful permanent resident

CIVIL MINUTES - GENERAL

Page 7 of 16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date January 6, 2009

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

status.

Subclass II: Id.

All beneficiaries of immediate relative petitions who applied for immigrant visas abroad, and whose petitioning relatives died prior to beneficiaries’ adjudication and approval of lawful permanent resident status.

Defendants argue that the class definition for the proposed nationwide class is over broad. Specifically, defendants argue that the proposed class includes all immediate relatives, not just spouses, i.e., the proposed class also includes the children and parents of United States citizens. The Court agrees. The subject of plaintiffs’ FAC, and of this litigation, has been plaintiffs’ alleged entitlement to immediate relative spouse status. Further, all class representatives are spouses of United States citizens. Therefore, the Court finds that this litigation must be limited to issues concerning plaintiffs’ immediate relative spousal status.

Next, defendants argue that a nationwide class should not be certified because different law will apply to each plaintiff, depending on his or her residence. Specifically, defendants argue that the Ninth Circuit’s decision in Freeman is only binding as to cases arising within the jurisdiction of the Ninth Circuit. Defendants argue that the Board’s decisions govern cases arising outside of the jurisdiction of the Ninth Circuit. According to defendants, in Matter of Sano, 19 I. & N. Dec. 299 (B.I.A. 1985) and Matter of Varela, 13 I. & N. Dec. 453 (B.I.A. 1970), the Board held that an I-130 petition is to be denied if the United States citizen spouse has died before his or her two-year marriage anniversary. As this Court stated in its March 17, 2008 Order, the Court is mindful of the importance of allowing the government to litigate legal issues before different courts throughout the country. Further, other circuits clearly have an interest in having their own Courts of Appeals decide the question of the proper interpretation of 8 U.S.C. § 1151(b)(2)(A)(i).6

6 The Court is aware of three presently pending appeals, in the First, see Taing v.

Chertoff, Case No. CV 07-10499 (D. Mass. 2007), Third, see Robinson v. Chertoff, Case

(continued...)

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 8 of 16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date January 6, 2009

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

In the interest of comity, the Court declines to certify a nationwide class. However, because Ninth Circuit law clearly applies to all cases arising within the jurisdiction of the Ninth Circuit, and because Freeman is binding on this Court as to those cases, the Court will address plaintiffs’ motion for class certification as it pertains to cases arising within the jurisdiction of the Ninth Circuit.

B. RULE 23(A) REQUIREMENTS

1. NUMEROSITY

Rule 23(a)(1) requires the members of a proposed class to be so numerous that joinder of all of the class members would be impracticable. Fed. R. Civ. P. 23(a). However, “[i]mpracticability does not mean ‘impossibility,’ but only the difficulty or inconvenience in joining all members of the class.” Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14 (9th Cir. 1964) (quoting Advertising Specialty Nat. Ass’n v. FTC, 238 F.2d 108, 119 (1st Cir. 1956)).

Defendants do not dispute that the plaintiffs’ proposed class is sufficiently numerous to satisfy Rule 23(a)(1). Joinder is impracticable. As such, there is no dispute that the numerosity requirement of Rule 23(a)(1) is therefore met.

2. COMMONALITY

Commonality requires “questions of law or fact common to the class.” Rule 23(a)(2). The commonality requirement is generally construed liberally; the existence of only a few common legal and factual issues may satisfy the requirement. Jordan v.

6(...continued)

No. CV 06-5702 (D. N.J. 2007), and Sixth Circuits, see Lockhart v. Chertoff, Case No.

CV 07-823 (D. Ohio 2008), which deal with the issue of the proper interpretation of 8

U.S.C. § 1151(b)(2)(A)(i). In all three cases, the district court agreed with Freeman, and

concluded that the death of an alien’s citizen spouse before the couple’s two-year

marriage anniversary did not deprive the alien spouse of his or her “immediate relative”

status.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 9 of 16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date January 6, 2009

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

County of L.A., 669 F.2d 1311, 1320 (9th Cir. 1982).

Defendants argue that factual differences between the class representatives’ cases and the proposed class members’ cases preclude certification. According to defendants, these

differences include, but are not limited to whether the Plaintiff’s I-130 was denied because the spouse died before its adjudication; whether the plaintiff’s I-130 was initially approved then revoked after the spouse’s death; whether the plaintiff and spouse had been married for more than two years; whether the plaintiff has a substitute for his or her former spouse is willing and able to submit a Form I-864; and whether the plaintiff can demonstrate that his or her marriage to the petitioner was legally valid [sic].

Opp’n at 10.

The Court finds that the class members’ claims share common legal issues. These legal issues include the questions of whether the death of an alien’s citizen spouse before their two-year wedding anniversary deprives the alien spouse of his or her “immediate relative” status, and whether the alien spouse was required to file an I-485 application before the citizen spouse’s death to be entitled to immediate relative status.7 Further, the Court finds that the class members’ claims derive from a common set of salient facts. All class members will have to prove that they married a United States citizen, that the United States citizen spouse filed an I-130 petition on their behalf, and that the United States citizen spouse died before his or her two-year wedding anniversary. The foregoing can be proved on a class-wide basis by submitting proof of a marriage license, a death certificate, and if necessary, an I-864 affidavit of support. The differences that exist here do not justify requiring persons who have been subject to the same harm, based on the

7 As stated above, defendants argue that the alien spouse’s failure to file an I-485

application before the citizen spouse’s death renders Freeman inapplicable. Plaintiffs,

however, argue that Freeman did not condition its ruling on the pre-death filing of an I-

485 application for adjustment of status.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 10 of 16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date January 6, 2009

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

same conduct, to prosecute separate actions. The commonality requirement of Rule 23(a)(2) is met. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).

3. TYPICALITY

Typicality requires a determination of whether the named plaintiff’s claims are typical of those of the proposed class that they seek to represent. Rule 23(a)(3). “[R]epresentative claims are ‘typical’ if they are reasonably co-extensive with those of absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020; Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985) (“A plaintiff’s claim meets this requirement if it arises from the same event or course of conduct that gives rise to claims of other class members and the claims are based on the same legal theory”).

According to defendants, plaintiffs’ declarations demonstrate that each of their claims is predicated on its own unique factual circumstances, which facts include

(1) lawful entry into the United States or remaining aborad [sic] for consular processing, (2) marriage to a United States citizen, (3) Plaintiffs’ former spouse filing an I-130 petition on their behalf, (4) Plaintiffs’ former spouse’s death, and (5) Plaintiffs becoming “subject to defendants’ automatic termination practices.

Supplemental Opp’n at 9. Defendants assert that the declarations also show that this litigation will focus on defenses that are unique to certain plaintiffs. Finally, defendants argue that some of named plaintiffs are inadequate class representatives. Specifically, defendants contend that plaintiffs whose I-130 petition and I-485 application have not been adjudicated should not represent class members whose petitions and applications have been denied, and that plaintiff De Mailly, who was self-removed and under 8 C.F.R. § 1003.23(b)(1) cannot reopen her case, is not an appropriate class representative.8

8 8 C.F.R. § 1003.23(b)(1) states in pertinent part

A motion to reopen or to reconsider[, before the Board,] shall not be made

(continued...)

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 11 of 16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date January 6, 2009

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

The typicality requirement is designed to assure that the class representatives’ interests are aligned with the interests of the class. Here, the challenged conduct -USCIS’ interpretation of Freeman -- similarly affects all class members. Because the class representatives’ claims arise from the same practice or conduct that forms the basis of the class claims, and because the claims are predicated on the same legal theory, the factual differences that do exist are insufficient to defeat typicality. See Smith v. B & O R.R., 473 F. Supp. 572, 581 (D. Md. 1979). To the extent that a named plaintiff may be subject to a defense that is unique to that plaintiff, the Court finds that because these defenses do not “threaten to become the focus of the litigation,” they are not a basis for denying class certification. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992).

4. ADEQUACY OF REPRESENTATION

The adequacy of representation requirement of Rule 23(a)(4) involves a two-part inquiry: “(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Hanlon, 150 F.3d at 1020.

Defendants argue that the class representatives “have different interests than the interests of the proposed class members[] because of the diverse and disparate nature of the proposed class.” Opp’n at 15.

Defendants’ argument is unpersuasive. It does not appear that there are any conflicts between the named plaintiffs and other members of the proposed class; their interests are aligned because the named plaintiffs, like members of the proposed class, seek a determination that they are immediate relative spouses for purposes of the INA. Defendants do not appear to dispute that plaintiffs’ counsel are able to prosecute this

8(...continued)
by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 12 of 16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date January 6, 2009

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

action vigorously. The Court concludes that the named plaintiffs and their counsel will adequately represent the class. Accordingly, the requirements of Rule 23(a) are satisfied. The Court next turns to the requirements of Rule 23(b)(3).

B. RULE 23(B)(3) REQUIREMENTS

Certification under Rule 23(b)(3) is proper “whenever the actual interests of the parties can be served best by settling their differences in a single action.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998) (internal quotations omitted). As noted above, Rule 23(b)(3) calls for two separate inquiries: (1) do issues common to the class “predominate” over issues unique to individual class members, and (2) is the proposed class action “superior” to other methods available for adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). The latter requirement requires consideration of the difficulties likely to be encountered in the management of this litigation as a class action, including, especially, whether and how the case may be tried. In making these determinations, the Court does not decide the merits of any claims or defenses, or whether the plaintiffs are likely to prevail on their claims. Rather, the Court must determine whether plaintiffs have shown that there are plausible class-wide methods of proof available to prove their claims.

1. PREDOMINANCE AND COMMONALITY

“Implicit in the satisfaction of the predominance test is the notion that the adjudication of common issues will help achieve judicial economy.” See Valentino, 97 F.3d at 1234. Thus, the Court must determine whether common issues constitute such a significant aspect of the action that “there is a clear justification for handling the dispute on a representative rather than on an individual basis.” 7A Wright, Miller, & Kane § 1778 (3d ed. 2005). For the proponent to satisfy the predominance inquiry, it is not enough to establish that common questions of law or fact exist, as it is under Rule 23(a)(2)’s commonality requirement -- the predominance inquiry under Rule 23(b) is more rigorous. Amchem Prods., Inc., 521 U.S. at 624. The predominance question “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Id. at 623. The Court, therefore, must balance concerns regarding the litigation of issues common to the class as a whole with questions affecting individual

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 13 of 16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date January 6, 2009

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

class members. Abed v. A. H. Robins Co. (In re Northern District of California, Dalkon Shield IUD Products Liability Litigation), 693 F.2d 847, 856 (9th Cir. 1982).

The primary issue in this case, with respect to plaintiffs whose cases arise within the jurisdiction of the Ninth Circuit, is (1) the proper interpretation of “immediate relative” spouse for purposes of 8 U.S.C. § 1154(a)(1)(A)(ii) and (2) the proper interpretation of Freeman. Adjudication of this common issue in one action will help achieve economy and efficiency. Although there are issues that may affect individual class members, at this stage of the litigation, those issues do not appear to interfere with the predominance of the common issue. Thus, a class should be certified in this case. If in further development of the litigation it becomes apparent that individual issues predominate, then decertification may be appropriate.

2. SUPERIORITY

In addition to a predominance of common questions, a class proponent must also demonstrate that the class action is superior to other methods of adjudicating the controversy. See Valentino, 97 F.3d at 1235 (explaining that the party seeking certification needs to make a “showing [as to] why the class mechanism is superior to alternative methods of adjudication”). A class action may be superior where “class-wide litigation of common issues will reduce litigation costs and promote greater efficiency.” Valentino, 97 F.3d at 1234. Rule 23(b)(3) provides the following non-exhaustive list of four factors to consider in this assessment:

(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum;
(D) the difficulties likely to be encountered in the management of a class action.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 14 of 16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date January 6, 2009

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

Fed. R. Civ. P. 23(b)(3).

The greater the number of individual issues to be litigated, the more difficult it will be for the court to manage the class action. See, e.g., Dalkon Shield, 693 F.2d at 856. Thus, a class action is improper where an individual class member would be compelled to try “numerous and substantial issues to establish his or her right to recover individually, after liability to the class is established.” Schwarzer et al., supra, at § 10:361. On the other hand, the fact that individual members seek separate damages is not fatal to class treatment. Id.

Defendants argue that a class action is not appropriate in this case because “[t]here are factual disparities that affect each individual’s adjudication; and each class member has an interest in ensuring the Court’s decision is based on his or her individual factual scenario.” Opp’n at 18.

As stated above, the overarching issue in this case is whether defendants have denied plaintiffs “immediate relative” status by improperly interpreting (1) the phrase “immediate relative” spouse for purposes of the INA and (2) the Freeman decision. Each plaintiff complains of defendants’ determination that they are not immediate relative spouses for purposes of the INA. Additionally, because this class will consist only of persons whose cases arose within the jurisdiction of the Ninth Circuit, this Court is an appropriate forum to resolve the claims at issue. Finally, the complexities of class action treatment do not weigh against class certification.

IV. CONCLUSION

In accordance with the foregoing, the Court provisionally GRANTS plaintiffs’ motion for class certification as to plaintiffs whose cases arise within the jurisdiction of the Ninth Circuit. The class is as follows

All aliens whose United States citizen spouse died before the couple’s twoyear wedding anniversary, and whose citizen spouse filed an I-130 petition and a Form I-864 or I-864EZ affidavit of support on behalf of the alien spouse, so long as he or she can also demonstrate that (1) the Form I-130

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 15 of 16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES - GENERAL

CV 07-5696 CAS (MANx)

Date January 6, 2009

Carolyn Robb Hootkins, et al. v. Michael Chertoff, U.S. Department of Homeland Security, et al.

petition is now pending with or was adjudicated by a USCIS office located within the jurisdiction of the Ninth Circuit, or (2) at the time of the citizen spouse’s death, either the citizen spouse or the alien spouse resided within the jurisdiction of the Ninth Circuit.

The Court further certifies a subclass of alien spouses who entered the United States on fiancé visas. This subclass is as follows

All aliens who, within ninety days of admission to the United States as a nonimmigrant fiancé, married the petitioning United States citizen, and whose citizen spouse died before the couple’s two-year wedding anniversary, so long as he or she can also demonstrate that the citizen spouse filed an I129F petition and a Form I-864 or I-864EZ affidavit of support on behalf of the alien spouse, and (1) the Form 1-129F petition is now pending with or was adjudicated by a USCIS office located within the jurisdiction of the Ninth Circuit, or (2) at the time of the citizen spouse’s death, either the citizen spouse or the alien spouse resided within the jurisdiction of the Ninth Circuit.

IT IS SO ORDERED.

CV-90 (06/04)

Initials of Preparer

00 : 00 CMJ

CIVIL MINUTES - GENERAL

Page 16 of 16

 
 Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 1 of 37 Page ID #:1418

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11 Carolyn Robb Hootkins, et al.

)

)

12

)

)

13

Plaintiffs,

)

)

14 vs.

)

)

15 Janet Napolitano, U.S. Department of )

Homeland Security, et al.

)

16

)

Defendants.

)

17

)

________________________________ )

18

Case No. CV 07-5696-CAS (MANx) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO ALL PLAINTIFFS OUTSIDE THE NINTH CIRCUIT; DENYING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO PLAINTIFFS IN THE NINTH CIRCUIT; AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ RENEWED MOTION FOR SUMMARY JUDGMENT

19

20 I.
21 22

INTRODUCTION AND BACKGROUND On August 30, 2007, plaintiffs,1 on behalf of themselves and others similarly

23

24

1 Plaintiffs included in the com plaint are Carolyn Robb Hootkins, Ana Maria Moncayo-Gigax, Suzanne Henriette De Mailly, Sara Cruz Vargas de Fisher, Raym ond

25 Lockett, Elsa Cecilia Brenteson, Pauline Ma rie Gobeil, Dahianna Heard, Rose Freeda

26

Fishman-Corman, Khin ThidarWin, Diana Gejac Engstrom, Maria Del Carmen Diaz-Ruiz, Gladys Walsh, Li Ju Lu, Yelena Arias AnguloP, urita Manuel Pointdexter, Tracy Lee Rudl,

27 Dieu Ngoc Nguyen, Agnieszka Bernstein, Sarah Bayor, Stella Standifer, and Farah Batool.

28 On April 28, 2009, plaintiffs and defendants filed a joint stipulation dismissing plaintiffs Heard, Walsh, Win, Simmons (Rudl), and Poindexter, on the ground that these plaintiffs

(continued...)

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 2 of 37 Page ID #:1419

1 situated, filed the instant class action case. On January 28, 2008, the Court denied

2 plaintiffs’ motion for summary judgment without prejudice to its being renewed. On

3 March 17, 2008, the Court granted in part and denied in part defendants’ motion to

4 dismiss plaintiffs’ complaint. Specifically, the Court granted defendants’ motion to

5 dismiss plaintiffs Hootkins’, Moncayo-Gigax, Vargas de Fisher’s, Lockett’s,

6 Brenteson’s, Win’s, Engstrom’s, Pointdexter’s, Rudl’s, Standifer’s, and Batool’s claims

7 under the Administrative Procedure Act (“APA”) for lack of final agency action, but

8 denied defendants’ motion to dismiss plaintiffs claims under the Mandamus Act and

9 denied defendants’ motion to dismiss the claims of those plaintiffs residing outside of

10 the jurisdiction of the Ninth Circuit.

11

On March 20, 2008, plaintiffs filed their operative first amended complaint

12 (“FAC”). Plaintiffs seek injunctive, declaratory, and mandamus relief under the

13 Administrative Procedure Act (the “APA”), 5 U.S.C. § 701 et seq.; the Mandamus Act,

14 28 U.S.C. § 1361; and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. against

15 Michael Chertoff, Secretary of the Department of Homeland Security (“DHS”); and

16 Jonathan Scharfen, Acting Director of United States Citizenship and Immigration

17 Services (“USCIS”), in their official capacities.2 The current defendants in this action

18 are Janet Napolitano, Secretary of DHS, and Michael Aytes, Acting Deputy Director of

19 USCIS, in their official capacities (collectively, “defendants” or the “government”).

20

The FAC alleges that defendants wrongfully determined that plaintiffs are not

21 entitled to immediate relative status for purposes of the Immigration and Nationality Act

22

23 1(...continued)
24 have been granted Lawful Permanent Resident status.

25

2 The original complaint also named Condoleezza Rice, United States Secretary of

26 State, and Maura Harty, Assistant Secretary for the Bureau of Consular Affairs, in their

27 official capacities, as defendants. By order dated March 16, 2008, the Court dismissed the United States Department of State as a defendant. The plaintiffs terminated Maura Harty
28 as a defendant when they filed their FAC.

2

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 3 of 37 Page ID #:1420

1 (“INA”), 8 U.S.C. §§ 1151 et seq. due to the death of their U.S. citizen spouses.3 In

2 contrast, defendants assert that in order to be considered an “immediate relative” spouse

3 for purposes of 8 U.S.C. § 1151 et seq., a surviving alien spouse must have been married

4 to his or her petitioning citizen spouse for at least two years prior to the U.S. citizen

5 spouse’s death.

6

With respect to plaintiffs’ challenge to defendants’ interpretation of 8 U.S.C. §

7 1151(b)(2)(A)(i), plaintiffs request that the Court compel defendants (1) to find, as a

8 matter of statutory construction, that plaintiffs are “immediate relative” spouses for

9

10

3 “Immediate relative” is a term defined in 8 U.S.C. § 1154(b)(2)(A)(i):

11

12

For purposes of . . . subsection [1154(b)(2)(A)(i),]the termimmediate relative

means the children, spouses, and parent s of a citizen of the United States,

13

except that, in the case of parents, such citizens shall be at least 21 years of

14

age. In the case of an alien who was the spouse of a citizen of the United

States for at least 2 years at the timeof the citizen’s death and was not legally

15

separated from the citizen at the time ofthe citizen's death, the alien (and each

16

child of the alien) shall be considered, for purposes of this subsection, to

remain an immediate relative after the date of the citizen’s death but only if

17

the spouse files a petition under section 204(a)(1)(A)(ii) [8 U.S.C. §

18

1154(a)(1)(A)(ii)] within 2 years after such date and only until the date the

spouse remarries. For purposes of this clause, an alien who has filed a

19

petition under clause (iii) or (iv) of section 204(a)(1)(A) of this Act [8 U.S.C.

20

§ 1154(a)(1)(A)] remains an immediate relative in the event that the United

21

States citizen spouse or parent loses United States citizenship on account of the abuse.

22

23 8 U.S.C. § 1154(b)(2)(A)(I) (internal quotations omitted).

24

To receive an immigrant visa by virtue of one’s status as an “immediate relative”

25 spouse, the alien’s United States citizen spouse must first petition the Attorney General, by filing a Form I-130 petition, claiming that the alien spouse is entitled to “im mediate
26 relative” status. 8 C.F.R. § 204.1(a)(1). W ith respect to aliens who entered the United

27 States on a K-1 fiancé visa, the citizen spouse must file a Form I-129F with USCIS. 8 C.F.R. § 214.2(k). The citizen spouse, or a perm issible alternative sponsor, m ust also
28 execute a Form I-864, affidavit of support. 8 U.S.C. § 1182(a)(4)(C)(ii).

3

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 4 of 37 Page ID #:1421

1 purposes of the INA and were not stripped of their status of “spouse” of a United States

2 citizen upon the death of their citizen spouse; (2) to reopen and adjudicate their deceased

3 citizen spouses’ immigrant I-130 petitions; and (3) to reopen and adjudicate (a)

4 plaintiffs’ applications for adjustment of status or (b) plaintiffs’ immigrant visa

5 applications. Plaintiffs also seek an injunction prohibiting defendants from using the

6 death of a citizen spouse as a discretionary factor in the adjudication of I-130 petitions

7 and I-485 applications.4

8

The FAC also challenges the legality of 8 C.F.R. § 205.1(a)(3)(C), which calls for

9 automatic revocation of an I-130 upon the death of the citizen spouse in cases where: (1)

10 the I-130 petition has been approved but (2) there has been no final decision on the

11 alien’s I-485 application. 8 C.F.R. § 205.1(a)(3)(C)(2) affords relief from revocation,

12 but requires alien spouses whose U.S. citizen petitioning spouses have died to request

13 humanitarian reinstatement of their I-130 petition, and to come forward with a substitute

14 affidavit of support from a relative willing to serve as a substitute sponsor. In this

15 regard, plaintiffs seek a declaration to the effect that it is improper to revoke the

16 approval of an I-130 petition unless the alien spouse requests humanitarian reinstatement

17 under 8 C.F.R. § 205.1(a)(3)(C)(2), and that 8 C.F.R. § 205.1(a)(3)(C)(2) is invalid as a

18 matter of law. Plaintiffs also seek an injunction prohibiting defendants from revoking,

19 in cases in which the United States citizen spouse previously executed a Form I-864, the

20 approval of an I-130 petition under 8 C.F.R. § 205.1(a)(3)(C)(2).

21

On January 6, 2009, the Court certified a Ninth Circuit class, defined as

22

All aliens whose United States citizen spouse died before the

23

couple’s two-year wedding anniversary, and whose citizen spouse

24

filed an I-130 petition and a Form I-864 or I-864EZ affidavit of

25

support on behalf of the alien spouse, so long as he or she can also

26

27 4 An I-485 is an application to Register Perm anent Resident Status or to Adjust
28 Status.

4

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 5 of 37 Page ID #:1422

1

demonstrate that (1) the Form I-130 petition is now pending with

2

or was adjudicated by a USCIS office located within the

3

jurisdiction of the Ninth Circuit, or (2) at the time of the citizen

4

spouse’s death, either the citizen spouse or the alien spouse resided

5

within the jurisdiction of the Ninth Circuit.

6 The Court further certified a subclass of alien spouses who entered the United States on

7 fiancé visas, defined as

8

All aliens who, within ninety days of admission to the United

9

States as a nonimmigrant fiancé, married the petitioning

10

United States citizen, and whose citizen spouse died before

11

the couple’s two-year wedding anniversary, so long as he or

12

she can also demonstrate that the citizen spouse filed an I-

13

129F petition and a Form I-864 or I-864EZ affidavit of

14

support on behalf of the alien spouse, and (1) the Form 1-

15

129F petition is now pending with or was adjudicated by a

16

USCIS office located within the jurisdiction of the Ninth

17

Circuit, or (2) at the time of the citizen spouse’s death, either

18

the citizen spouse or the alien spouse resided within the

19

jurisdiction of the Ninth Circuit.

20 However, the Court declined to certify a nationwide class, finding that “other circuits

21 clearly have an interest in having their own Courts of Appeals decide the question of the

22 proper interpretation of 8 U.S.C. § 1151(b)(2)(A)(i).”

23

On March 9, 2009, plaintiffs filed the instant renewed motion for summary

24 judgment. On March 13, 2009, defendants filed the instant motion for partial summary

25 judgment as to the Ninth Circuit plaintiffs and the instant motion for partial summary

26 judgment as to plaintiffs outside the Ninth Circuit. On March 23, 2009, defendants filed

27 an opposition to plaintiffs’ renewed motion for summary judgment. On March 27, 2009,

28 plaintiffs filed oppositions to defendants’ motions. Replies were filed on April 6, 2009.

5

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 6 of 37 Page ID #:1423

1 A hearing was held on April 22, 2009. After carefully considering the arguments set

2 forth by the parties, the Court finds and concludes as follows.

3 II. FACTUAL BACKGROUND

4

The facts underlying this action are not materially in dispute. Plaintiffs are all

5 aliens who were previously married to United States citizens. With the exception of

6 plaintiff Nguyen’s spouse, the U.S. citizen spouses all filed a Form I-130, Petition for

7 Alien Relative (“I-130 petition”), on behalf of plaintiffs pursuant to 8 U.S.C.

8 §1154(a)(1)(A)(i).5 The same day that their citizen spouses filed the I-130 petitions,

9 each of the alien plaintiffs, except for plaintiff Lu, filed a Form I-485, Application to

10 Register Permanent Resident Status or to Adjust Status (“I-485 application”).6 Citizen

11 petitioners also submitted an affidavit of support (“I-864”) in support of their I-485s.

12

Except for plaintiff Lu, plaintiffs’ United States citizen spouses each died after

13 filing their respective I-130 petitions, but before adjudication of said petitions.7 For the

14 majority of plaintiffs, USCIS then denied the I-130 petitions based on defendants’

15 determination that plaintiffs were not “immediate relative[s]” for purposes of 8 U.S.C. §

16 1151 et seq. because plaintiffs’ citizen spouses died before their two-year marriage

17 anniversary.8 Plaintiff Lu’s I-130 petition was initially approved, but was then

18

19

5 Plaintiff Nguyen previously filed and received a Form I-129F, Petition for Alien

20 Fiancé. Plaintiff Nguyen then lawfully entered the United States under the K-1 visa and married her United States citizen fiancé within ninety days of entry. Plaintiff Nguyen
21 subsequently applied for adjustment of status to lawful permanent resident.

22

6 Because plaintiff Lu was not in the United States, the United States

23 Department of State began processing Lu’simmigrant visa after the I-130 petition of Lu’s

24 citizen spouse was approved.

25

7 In the cases of plaintiff Lu, plaintiffs’ ictizen spouse died before the issuance of the

26

immigrant visa, thus resulting in the revocationof the prior approval of their FormI-130's under 8 C.F.R. § 205.1(a)(3)(i)(C).

27 8 In the case of plaintiff Lockett, defnedants ultimately approved the FormI-130 that

28

(continued...)

6

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 7 of 37 Page ID #:1424

1 automatically revoked by USCIS upon the death of plaintiff Lu’s spouse.

2 III. LEGAL STANDARD

3

Summary judgment is appropriate where “there is no genuine issue as to any

4 material fact” and “the movant is entitled to a judgment as a matter of law.” Fed. R. Civ.

5 P. 56(c). The moving party has the initial burden of identifying relevant portions of the

6 record that demonstrate the absence of a fact or facts necessary for one or more essential

7 elements of each cause of action upon which the moving party seeks judgment. See

8 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

9

If the moving party has sustained its burden, the nonmoving party must then

10 identify specific facts, drawn from materials on file, that demonstrate that there is a

11 dispute as to material facts on the elements that the moving party has contested. See

12 Fed. R. Civ. P. 56(c). The nonmoving party must not simply rely on the pleadings and

13 must do more than make “conclusory allegations [in] an affidavit.” Lujan v. National

14 Wildlife Fed’n, 497 U.S. 871, 888 (1990). See also Celotex Corp., 477 U.S. at 324.

15 Summary judgment must be granted for the moving party if the nonmoving party “fails

16 to make a showing sufficient to establish the existence of an element essential to that

17 party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322.

18 See also Abromson v. American Pacific Corp., 114 F.3d 898, 902 (9th Cir. 1997).

19

In light of the facts presented by the nonmoving party, along with any undisputed

20 facts, the Court must decide whether the moving party is entitled to judgment as a matter

21 of law. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631

22 n.3 (9th Cir. 1987). When deciding a motion for summary judgment, “the inferences to

23 be drawn from the underlying facts . . . must be viewed in the light most favorable to the

24

25

8(...continued)

Lockett’s spouse had filed before her death. Plaintiff Batool’s petition was denied on the

26 grounds of abandonment, but defendants adm it that the death of the citizen petitioner

27 would have otherwise warranted denial of plaintiff Batool’s I-130. See Defs’ Statement of Uncontroverted Facts (“SUF”) ¶ 2g. Plaintiff Engstrom’s petition has not been denied
28 and is currently pending before USCIS.

7

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 8 of 37 Page ID #:1425

1 party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

2 U.S. 574, 587 (1986) (citation omitted); Valley Nat’l Bank of Ariz. v. A.E. Rouse & Co.,

3 121 F.3d 1332, 1335 (9th Cir. 1997). Summary judgment for the moving party is proper

4 when a rational trier of fact would not be able to find for the nonmoving party on the

5 claims at issue. See Matsushita, 475 U.S. at 587.

6 IV. DISCUSSION

7

A. Construction of the Immediate Relative Provisions of the Statute

8

The INA imposes a numerical quota on the number of immigrant visas that may

9 be issued and/or the number of aliens who may otherwise be admitted into the United

10 States for permanent residence. See 8 U.S.C. § 1151(a). However, aliens who are

11 “immediate relative[s]” of United States citizens are exempt from these numerical

12 limitations and may obtain immigrant visas by petitioning for “immediate relative”

13 status.

14

The definition of “immediate relative” is set forth in 8 U.S.C. § 1151(b)(2)(A)(i).

15 The first sentence of 8 U.S.C. § 1151(b)(2)(A)(i) defines “immediate relatives” as

16 “children, spouses, and parents of a citizen of the United States, except that, in the case

17 of parents, such citizens shall be at least 21 years of age.” The second sentence of 8

18 U.S.C. § 1151(b)(2)(A)(i) states

19

In the case of an alien who was the spouse of a citizen of the United

20

States for at least 2 years at the time of the citizen's death and was

21

not legally separated from the citizen at the time of the citizen's

22

death, the alien (and each child of the alien) shall be considered, for

23

purposes of this subsection, to remain an immediate relative after the

24

date of the citizen's death but only if the spouse files a petition under

25

section 204(a)(1)(A)(ii) [8 USCS § 1154(a)(1)(A)(ii)] within 2 years

26

after such date and only until the date the spouse remarries

27 8 U.S.C. § 1151(b)(2)(A)(i).

28

8 U.S.C. § 1154(a)(1)(A) sets forth the petitioning procedure for immediate

8

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 9 of 37 Page ID #:1426

1 relative status. Clause (i) of 8 U.S.C. § 1154(a)(1)(A), governs petitions filed by United

2 States citizens on behalf of their alien spouses, and provides that

3

any citizen of the United States claiming that an alien is entitled to

4

classification by reason of . . . an immediate relative status under section

5

201(b)(2)(A)(i) [8 USCS § 1151(b)(2)(A)(i)] may file a petition with the

6

Attorney General for such classification.

7

Clause (ii) of 8 U.S.C. § 1154(a)(1)(A) governs petitions filed by alien spouses on

8 behalf of themselves and provides

9

An alien spouse described in the second sentence of section 201(b)(2)(A)(i)

10

[8 USCS § 1151(b)(2)(A)(i)] also may file a petition with the Attorney

11

General under this subparagraph for classification of the alien (and the

12

alien's children) under such section.

13

The crux of plaintiffs’ position in this action is that the relevant statutes create two

14 separate “tracks” by which an alien spouse of a U.S. citizen may obtain “immediate

15 relative status.” In the case where a U.S. citizen spouse files a petition for his or her

16 alien spouse under clause (i) of 8 U.S.C. § 1154(a)(1)(A), plaintiffs argue, the second

17 sentence of 1151(b)(2)(A)(i) does not apply; in these cases, the term “spouse” is defined

18 by its plain meaning, which, plaintiffs argue, includes a “surviving” spouse of a U.S.

19 citizen. However, if the alien spouse on his or her own files a petition under clause (ii)

20 of 8 U.S.C. § 1154(a)(1)(A), the second sentence of 1151(b)(2)(A)(i) applies, and the

21 alien spouse may only petition where the alien was a spouse for at least two years at the

22 time of death of the citizen spouse. Defendants, however, interpret the statute

23 differently. Defendants contend that even in the case where a U.S. citizen spouse files a

24 petition for his or her alien spouse prior to death, in order to be considered an

25 “immediate relative” for the purposes of 8 U.S.C. § 1151(b)(2)(A)(i), the alien spouse

26 must have been married to his or her petitioning citizen spouse for at least two years at

27 the time of the citizen spouse’s death.

28

The Court begins by noting that three circuit courts have to date addressed the

9

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 10 of 37 Page ID #:1427

1 issues present in the instant action: Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006);

2 Robinson v. Napolitano, 554 F.3d 358 (3rd Cir. 2009); and, most recently Lockhart v.

3 Napolitano, __ F.3d __, 2009 U.S. App. LEXIS 7305 (6th Cir. 2009).9 The Ninth

4 Circuit and the Sixth Circuit holdings are in conflict with the holding of the Third

5 Circuit. While the certified class in this action contains only Ninth Circuit plaintiffs,

6 many of the named plaintiffs in this action reside outside of the Ninth Circuit.

7

1. The Ninth Circuit Freeman Holding

8

In Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), the Court held that the

9 interpretation of the statute proposed by plaintiffs in the instant action is the correct

10 interpretation. Carla Freeman, (“Mrs. Freeman”), an alien, married Robert Freeman

11 (“Mr. Freeman”), a United States citizen. Id. at 1033. Mr. Freeman filed an I-130

12 petition on Mrs. Freeman’s behalf. Id. That same day, Mrs. Freeman filed an I-485

13 application for adjustment of status to that of lawful permanent resident. Id. Just prior

14 to the couple’s first wedding anniversary, Mr. Freeman was killed in a car accident. Id.

15 Mr. Freeman’s I-130 petition and Mrs. Freeman’s I-485 application were still pending at

16 the time. Id. USCIS then denied Mrs. Freeman’s I-485 application. Id. USCIS found

17 that Mrs. Freeman was not entitled to “immediate relative” status because she was no

18 longer the spouse of a United States citizen. Id. USCIS ordered Mrs. Freeman to leave

19 the United States. Id. She petitioned for a writ of habeas corpus in federal district court

20 challenging this decision. Id. The district court denied her petition, and she appealed to

21 the Ninth Circuit. Id. The government advanced largely the same arguments before the

22 Ninth Circuit as it does now before this Court:

23

The government, relying primarily on the statute’s second sentence

24

(“In the case of an alien who was the spouse of a citizen . . .”),

25

read[] § 1151(b)(2)(A)(i) as “requiring that in order to be an

26

27 9 The decision in Lockhart was issued on April 8, 2009, subsequent to the filing of
28 briefs in the instant action. The Court nevertheless considers it herein.

10

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 11 of 37 Page ID #:1428

1

‘immediate relative’ under immigration law the alien ‘spouse’

2

(wife) must have been married to the United States citizen ‘spouse’

3

(husband) ‘for at least 2 years at the time of the citizen’s [sic]

4

death.’” Under the government’s proffered reading, if the citizen

5

spouse dies before the second anniversary of the qualifying

6

marriage, the alien spouse is no longer considered a ‘spouse’ and is

7

no longer entitled to an adjustment of status.

8 Id. at 1038.

9

The Ninth Circuit rejected the government’s interpretation, finding that based on

10 its review of the language, structure, purpose, and application of the statute:

11

Congress clearly intended an alien widow [or widower]

12

whose citizen spouse has filed the necessary forms to be and

13

to remain an immediate relative (spouse) for purposes of

14

§1151(b)(2)(A)(i), even if the citizen spouse dies within two

15

years of the marriage. As such, the widowed spouse remains

16

entitled to the process that flows from a properly filed

17

adjustment of status application. The two-year durational

18

language in the second sentence of § 1151(b)(2)(A)(i) grants

19

a separate right to an alien widow to self-petition, within two

20

years of the citizen spouse's death, by filing a form I-360

21

where the citizen spouse had not filed an immediate relative

22

petition prior to his death.

23 Id. at 1039 (emphasis in original).

24

Furthermore, the Freeman court noted that defendants’ proposed interpretation

25 would lead to incongruous results:

26

The government concedes that it had the power to grant the

27

Freemans' application prior to Mr. Freeman's death (and the

28

Freemans' second anniversary). Had it done so, Mrs. Freeman's LPR

11

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 12 of 37 Page ID #:1429

1

could not then have been voided by her husband's death, as the

2

statute expressly states. See § 1186a(a), (b)(1) (providing that an

3

alien spouse who receives permanent resident status as an immediate

4

relative before the second anniversary of her qualifying marriage

5

does so on a conditional basis, and if the Attorney General

6

determines that prior to the second anniversary of the alien's

7

obtaining status the alien's marriage ‘has been judicially annulled or

8

terminated, other than through the death of a spouse,’ the Attorney

9

General ‘shall terminate the permanent resident status of the alien.’

10

(emphasis added)). This is compelling evidence that Congress did

11

not intend its provision for a widow's self-petition for adjustment of

12

status to have an implicit collateral consequence of terminating a

13

spouse's already pending petition--particularly when the effect

14

would be to foreclose a grieving widow from any adjustment at all

15

‘through the death of [her] spouse.’

16 Freeman, 444 F.3d at 1042. In other words, the Freeman court found that Congress did

17 not intend for the alien spouses who had been accorded a quick adjudication of his or her

18 permanent resident status to be insulated from having that status terminated at the death

19 of their spouse, but that those who experienced a long administrative delay would have

20 their petition terminated at the death of their spouse.

21

2. The Sixth Circuit Lockhart Holding

22

On April 8, 2009, the Sixth Circuit in Lockhart v. Napolitano, __ F.3d ___, 2009

23 U.S. App. LEXIS 7305 *9 (6th Cir. 2009) stated that it was “persuaded by the reasoning

24 of the Ninth Circuit [in Freeman]” and found that “[t]he two-year marriage-duration

25 language in the second sentence of the immediate relative provision appears to be a

26 procedural requirement for a self-petition in the event that the citizen-spouse dies, rather

27 than a restriction on who is considered a ‘spouse’ when the citizen-spouse petitions on

28 behalf of the alien spouse.” Id. at *2, *16. Therefore, the court held that a “‘surviving

12

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 13 of 37 Page ID #:1430

1 alien-spouse’ is a ‘spouse’ within the ‘immediate relative’ provision of the INA.” Id. at

2 *8.

3

3. Application to Plaintiffs in the Ninth and Sixth Circuits

4

The Court is bound by the holdings of the decisions of Freeman and Lockhart as

5 to plaintiffs in the Sixth and Ninth Circuits. Therefore, the Court finds that plaintiffs in

6 the Sixth and Ninth Circuits, as surviving spouses of U.S. citizen petitioners, are entitled

7 to “immediate relative” classification under 8 U.S.C. § 1154(a)(1)(A).10

8

4. Application to Plaintiffs Outside the Sixth and Ninth Circuits

9

10

10 Defendants argue that Freeman is not entitled to any weight, even in the Ninth

11 Circuit, because its holding is inconsistent with prior Ninth Circuit precedent. Specifically,

12 defendants cite Dodig v. INS, 9 F.3d 1418 (9th Cir. 1993) in which a petitioner’s I-130, filed by her U.S. citizen spouse,was revoked due to the citizenspouse’s death. The Ninth
13 Circuit rejected the petitioner’s argum ent that she should have been granted relief for

14 “humanitarian” reasons under 8 C.F.R. § 205.1a()(3) because her U.S. citizen husband died prior to the adjudication of the I-130 petition that he had filed on her behalf. Defendants
15 argued that, in so holding, the Ninth Circu it “implicitly endorsed the construction that a

16 widow(er) was not considered a spouse such taht she could proceed under the first sentence of § 1151(b)(2)(A)(i). Defs’ Mot. as to Ninth Cir. Pls’ (“Defs’ 9th Cir. Mot.”) at 14; see
17 also Abboud v. INS , 140 F.3d 843 (9th Cir. 1998) (citing Dodig and finding that

18 “humanitarian relief is not available under [8 C.F.R. § 205.1a()(3)] where the petitioner has

died prior to the approval of the Relative Petition.”). Defendants argue that “[b]ecause the 19 Freeman panel was not free to overturn the holdingsof the prior panels absent clarification

20 en banc or by the Supreme Court” the Freeman decision should not be given any weight

21 by the Court. Defs’ 9th Cir. Mot. at 14.

22

However, defendants are incorrect. In Freeman, the Ninth Circuit explicitly stated

23

that the issue of the proper definition of “spouse” was a matter of first impression before the Court. 444 F. 3d at 1033. While Dodig and Abboud could be read as im plicitly

24 accepting defendants’ construction of the term “spouse” under the statute, it does not

25 appear that the issue of the proper constructoi n of the term“spouse” was ever raised by the parties in either of those cases. Instead, the narrower question in those cases was the
26 application of the humanitarian reinstatement provision. Because the Court in Dodigand

27 Abboud did not explicitly address the issue of the proper construc tion of spouse, the holding of Freeman is not inconsistent with prior Ninth Circuit precedent.
28

13

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 14 of 37 Page ID #:1431

1

Defendants argue that Freeman (and, by extension, Lockhart) are binding only as

2 to cases that arise within the jurisdiction of the Ninth (and Sixth) Circuits. Defendants

3 argue that the Court should therefore apply defendants’ statutory construction to all other

4 plaintiffs in this action.

5

First, defendants argue that their interpretation of the statute is entitled to Chevron

6 deference. See Chevron U.S.A., Inc. v NRDC, Inc., 467 U.S. 837, 842-43 (1984). The

7 first step of the Chevron statutory construction analysis is to determine whether the

8 intent of Congress is clear; if so, that clear intent controls. See Chevron, 467 U.S. at

9 842-43. Defendants argue that their construction of the statute is clearly correct because,

10 by its plain terms, the term “spouse” refers to someone who is currently married. Defs’

11 9th Cir. Mot. at 8. Therefore, defendants argue, when their U.S. citizen spouses died,

12 plaintiffs no longer qualified as an “immediate relative” because they were no longer a

13 “spouse” of a U.S. citizen. Defs’ 9th Cir. Mot. at 8, 12, citing Black’s Law Dictionary

14 1438-39 (8th ed. 2007) (defining spouse as a “married person”); 1 U.S.C. § 7 (“In

15 determining the meaning of any Act of Congress, or of any ruling, regulation, or

16 interpretation of the various administrative bureaus and agencies of the United States . . .

17 the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a

18 wife.”).

19

As a result, defendants argue, the first sentence of 8 U.S.C. § 1151(b)(2)(A)(i) –

20 which states that “spouses” of U.S. citizens are “immediate relatives” for immigration

21 purposes – does not apply to former spouses of deceased U.S. citizens. Instead,

22 defendants argue, the only part of the statute that may apply is the second sentence of

23 §1151(b)(2)(A)(i), which creates a narrow exception for an alien who “was the spouse of

24 a citizen of the United States for at least 2 years at the time of the citizen’s death . . .”

25 Defs’ 9th Cir. Mot. at 9, quoting 8 U.S.C. § 1151(b)(2)(A)(i) (emphasis added). In other

26 words, when an alien is no longer the spouse of a U.S. citizen due to the U.S. citizen’s

27 death, the alien is not entitled to “immediate relative” status unless his or her marriage

28 lasted two years or more. Defs’ Opp’n at 7.

14

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 15 of 37 Page ID #:1432

1

Defendants next argue that, even if the plain language of the statute is ambiguous,

2 defendants’ interpretation is nevertheless entitled to deference under the second step of

3 Chevron, because it is consistent with BIA decisions and long-standing administrative

4 interpretations See 467 U.S. at 842-43l see also 8 C.F.R. 1003.1(g)(“[e]xcept as Board

5 decisions may be modified or overruled by the Board or the Attorney General, decisions

6 of the Board . . . shall be binding on all officers and employees of the Department of

7 Homeland Security or immigration judges in the administration of the immigration laws

8 of the United States.”).

9

Defendants cite the decision of the Board of Immigration Appeals in Matter of

10 Varela, 13 I&N Dec. 453 (B.I.A. 1970). In Matter of Varela, the Board found that

11 because the alien’s United States citizen spouse died before the couple’s two year

12 marriage anniversary, the alien lost his or her status as a spouse. See Matter of Varela, at

13 454 (“[s]imply stated, at the time of his decision the beneficiary was not the spouse of a

14 United States citizen. His death had stripped her of that status”). Defendants argue that

15 the Board reaffirmed the result in a later decision, Matter of Sano, 19 I&N Dec. 299

16 (BIA 1985). In Matter of Sano, an alien’s petition was denied based on the death of her

17 U.S. citizen spouse. The Board held that it lacked jurisdiction to hear the appeal of the

18 denial of the petition, because such an appeal may only be filed by the visa petitioner

19 (the U.S. citizen spouse), who was deceased.11

20

21

11 In Freeman, the Court specifically addressed defendants’ contentions regarding

22 Matter of Varela, 13 I&N Dec. 453, and dismissed them. First, the Court in Freeman found

23

that, contrary to defendants’ argum ents, the decision in Matter of Sano actually undermines, rather than supports, Matter of Varela. In Matter of Sano, 19 I&N Dec. 299

24 (BIA 1985), the BIA held that it lacked jurisdiction to hear an appeal from a beneficiary,

25 and instead could only hear an appeal froma petitioner. Id. at *300-01 The BIA therefore held that its decision in Matter of Varella was “inappropriate” and that “to the extent that
26 our decision in Matter of Varela , supra, conflicts with this conclusion, it is hereby

27 modified.” Id. at *300-01. The Freeman court therefore found that the Varela opinion’s

weight was undercut by the BIA’s finding in Matter of Sano

that it was “extra-

28

(continued...)

15

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 16 of 37 Page ID #:1433

1

Furthermore, defendants argue that their interpretation is supported by long-

2 standing administrative interpretations. Defendants argue that “prior to the enactment of

3 the INA, the visa petitioner’s death has been a basis for revoking the approval of the visa

4 petition (e.g., the I-130) since at least 1938.” Defs’ Opp’n at 16, citing, e.g., 8 C.F.R. §

5 25.2. Defendants also argue that their interpretation is consistent with the purpose of

6 family-based immigration policy, which is family unity; “once the U.S. citizen passes

7 away, the purpose is no longer necessarily served by giving the alien widow the ability

8 to adjust her status.”12 Defs’ Opp’n at 18.

9

Defendants further argue that the claim of plaintiff Standifer, who resides in the

10 Third Circuit, is governed by the holding in Robinson v. Napolitano, 554 F.3d 358 (3rd

11 Cir. 2009), which upheld defendants’ construction of the statute. In Robinson, the court

12 held that “the two-year marriage requirement applies to both groups of surviving

13 spouses, those for whom the citizen spouse had filed the petition before his death and

14 those for whom the citizen spouse had not filed the petition.” 13 14 Robinson, 554 F.3d at

15

16

11(...continued)

17 jurisdictional.” Freeman, 444 F.3d at 1038. Furthermore, the Freeman court found that

“the BIA’s interpretation [in Varela], to the extent it is entitled to some deference, is not 18 a permissible construction of the statute.” Id. at 1038.

19

12 Plaintiffs, however, argue that “allowing the U.S. citizen’s express wish . . . to be

20 fulfilled by granting his or her spouse im mediate relative classification does, in fact,

21 promote family unity. In many cases, there are children born of the marriage, and grandparents who wish to see their deceasedson or daughter’s children remain with them
22 as a family unit in the United States.” Pls’ Reply at 9.

23

13 The m ajority opinion in Robinson held 8 U.S.C. 1151(b)(2)(A)(i) to be

24 unambiguous, finding that “the two-year marriage requirement applies to both groups of

25 surviving spouses, those for whomthe citizenspouse had filed the petition before his death and those for whom the citizen spouse had not filed the petition.” Id. at 364; see also id.
26 at 366 (holding tha t “[t]he fact that Black’s Law Dictionary’s entry for spouse defines

27 ‘surviving spouse’ separately disproves Robinson' s hypothesis” and “to conclude that

‘spouse’ and ‘surviving spouse’ have the identical meaning is illogical and is contrary to

28

(continued...)

16

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 17 of 37 Page ID #:1434

1 363.

2

Plaintiffs, however, contend that the reasoning set forth in Freeman is persuasive,

3 and that, therefore, the Court should apply Freeman, 444 F.3d 1031, to the claims of all

4 plaintiffs, even those residing outside of the Ninth and Sixth Circuits. Plaintiffs also

5 argue that the Court should decline to apply Robinson to plaintiff Standifer’s claim

6 because the holding in Robinson was “fatally flawed.” Pls’ 9th Cir. Opp’n at 2, citing

7

8 13(...continued)
9 our understanding of the legal effect of death on a marriage.”). The court went on to hold

10 that “eligibility for an immediate relative visa depends upon the alien's status at the time USCIS adjudicates the I-130 pe tition, not whe n that petition wa s filed.” Id . at 364.
11 Because an alien is not a “spouse” of a U.S. c itizen after the spouse’s death, the alien

12 automatically becomes ineligible for immediate relative status after the death of his or her

13

spouse, unless the two-year marriage exception applies. In soholding, the Robinson court found the verb tense used in 8 U.S.C. § 1154(b)to be instructive. That provision provides

14

15

After an investigation of the facts in eachcase, . . . the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien

16

in behalf of whom the petition is made is an immediate relative specified in

17

section 201(b) . . . approve the petition.

18 U.S.C. § 1154(b) (emphasis added). The majority in Robinson held that “[t]he use of the 19 present tense in 8 U.S.C. § 1154(b) belies Robi nson’s contention that an alien’s m arital
status at the time of filing the I-130 petition controls, and makes plain that the facts in the 20 petition - including the alien's spousal status - must be true at the time USCIS decides the 21 petition.” Id.; but see id. at 368 (Nygaard, J., dissenting) (“[I]t is inconceivable to me that
Congress intended an alien’s status to be contingent upon the am ount of time that the 22 executive department takes to process a timely and proper petition – a factor completely 23 outside of the control of the alien”).

24

14 Defendants also note that, in addition to the Third Circuit holding in Robinson,

25 other district courts ha ve upheld their construction of the statute. See , e.g., Burger v. McElroy, 1999 WL 203353 (S.D.N.Y. 1999) (“Plaintiff Burger married Stephen Burger
26 on July 20, 1996, and had been married to him for less than three months when Stephen

27 Burger died on October 7, 1996. Therefore, ne ither she nor her daughter are eligible for classification as immediate relatives . . . .”)
28

17

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 18 of 37 Page ID #:1435

1 Robinson, 554 F.3d at 367 (Nygaard, J., dissenting).15

2

Despite plaintiff’s arguments, the Court declines to apply the holdings in Freeman

3 and Lockhart to plaintiffs outside of the Ninth and Sixth Circuits. The Court is mindful

4 of the importance of allowing the government to litigate legal issues before different

5 courts throughout the country. As Justice Rehnquist explained, preventing the

6 government from doing so “would deprive [the] [Supreme] Court of the benefit it

7 receives from permitting several court of appeals to explore a difficult question before

8 [the] [Supreme] Court grants certiorari.” United States v. Mendoza, 464 U.S. 154, 159

9 (1984) (holding that the United States may not be collaterally estopped from litigating an

10 issue that was adjudicated against it in a prior lawsuit brought by a different party); see

11 also Nielsen Lithographing Co. v. NLRB, 854 F.2d 1063, 1066-67 (7th Cir. 1988)

12 (holding that a circuit should not make rulings interpreting administrative regulations,

13 which ruling purport to affect other circuits, and that an agency therefore does not have

14 to accept one circuit’s ruling as binding throughout the country.). Furthermore the Ninth

15 Circuit, in the context of conflicting circuit law on statutory construction, has recognized

16 that “[t]he courts do not require an agency of the United States to accept an adverse

17

18

15 Specifically, plaintiffs argue that in Robinson,

19

[t]he majority opinion evinced a fundamental misunderstanding of the

20

routine processing tim es for adm inistrative adjudication, assum ing

21

that USCIS rarely if ever acts fastenough to grant applications before two years of marriage. During oral argument, Circuit Judge Sloviter,

22

who authored the majority opinion, asked the government about the

23

‘rare case’ in which the agency acts within two years of m arriage. Contrary to the government response, which was to say that they

24

could not say it never happens, it is not the rare case that an

25

application is approved where the marriage has not lasted two years,

but the norm.

26

27 Pls’ Mot. at 22-23, citing http://www.uscis .gov/ articles, in which average wait times are listed as below 24 months.
28

18

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 19 of 37 Page ID #:1436

1 determination . . .by any of the Circuit Courts of Appeals as binding on the agency for

2 all similar cases throughout the United States” and “[i]t is standard practice for an

3 agency to litigate the same issue in more than one circuit” where the circuit has not yet

4 developed precedent. U.S. v. AMC Entertainment, Inc., 549 F.3d 760, 771-72 (9th Cir.

5 2008) (citing Railway Labor Executives’ Ass’n v. I.C.C., 784 F.2d 959 (9th Cir. 1986)

6 (internal quotations omitted). Therefore, the Court declines to apply Freeman and

7 Lockhart to plaintiffs outside the Ninth and Sixth Circuits.16

8

Furthermore, just as the Court applies the decisions in Freeman in the Ninth

9 Circuit and Lockhart in the Sixth Circuit, the Court applies the holding of Robinson to

10 plaintiff Standifer in the Third Circuit.17 “In general, a federal circuit applies its own

11 interpretation of federal law, not that of another circuit.” Crowther v. INS, 1995 U.S.

12 App. LEXIS 24352 (9th Cir. 2005). However, to prevent forum shopping, a court may

13 apply a different circuit’s law where the forum-changing party has “no contacts” with

14 the chosen forum.” Crowther, 1995 U.S. LEXIS 24352; see also Maldonado-Cruz v.

15 U.S. Dep’t of Immigration & Naturalization, 883 F.2d 788, 790 (9th Cir. 1989)

16 (analyzing alien’s contacts with the Ninth Circuit and the Fifth Circuit and determining

17 that, based on the contacts, it was appropriate to apply Ninth Circuit law). Plaintiffs do

18

19

16 Plaintiffs argued at the hearing that defendants have waived the right to have the

claims of non-Ninth Circuit plaintiffs decidedin another Court, because they did not raise

20 improper venue, and did not m ove with reasonable promptness for a transfer of venue.

21 However, because the non-Ninth Circuit plaintiffs do not appear to have any Ninth Circuit contacts in this case, in the interests ofboth preventing forum shopping and allowing other
22 circuits to interpret the lawsand regulations challenged herein, the Court declines to apply

23 the Ninth Circuit’s holding in Freeman to plaintiffs outside of the Ninth Circuit.

24

17 Plaintiffs further request that ifthe Court determines that Robinson controls, that

25 the Court nevertheless “hold in abeyance a decision on her case until the U.S. Suprem e Court has denied certiorari or issued an au thoritative decision.” Pls’ Mot at 28.
26 Defendants, however, note that “whether a petition for certiorari will in fact be filed in

27 Robinson at some future date, and whether the Suprem e Court will grant certiorari, are both speculative.” Defs’ Opp’n at 25. The Court therefore declines to hold in abeyance
28 plaintiff Standifer’s claim.

19

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 20 of 37 Page ID #:1437

1 not allege that plaintiff Standifer has any Ninth Circuit contacts. Therefore, in the

2 interests of preventing forum shopping, the Court applies the holding of Robinson to

3 plaintiff Standifer.

4

4. Plaintiff Nguyen

5

Defendants argue that, even under Freeman, 444 F.3d 1031, a Ninth Circuit

6 plaintiff cannot qualify for adjustment of status due to the termination of her marriage

7 upon the death of her U.S. citizen spouse. See Defs’ Ninth Cir. Mot. at 30. Unlike other

8 plaintiffs, Nguyen entered the United States on a K-1 fiance(e) visa. Plaintiff married

9 her husband within 90 days of entry, on April 19, 2004, as required by 8 C.F.R. §

10 214.2(k)(6)(ii). Plaintiff Nguyen and her spouse timely filed a Form I-485 to adjust

11 status, and her spouse timely filed the requisite I-864 Affidavit of Support. Plaintiff

12 Nguyen’s spouse died on March 24, 2005, and her petition was denied on November 30,

13 2005.

14

8 U.S.C. § 1255(d) provides that “[t]he Attorney General may not adjust . . . the

15 status of a nonimigrant alien . . .” who entered on a K-1 visa except “on a conditional

16 basis . . . as a result of the marriage of the nonimmigrant . . . to the citizen who filed the

17 petition to accord the alien’s nonimmigrant status . . .” Similarly, 8 CFR § 245.1(c)(6)(i)

18 states that an alien is ineligible for adjustment of status on the basis of a K-1 visa unless

19 “the alien is applying for adjustment of status based upon the marriage of the K-1

20 fiance(e) which was contracted within 90 days of entry with the United States citizen

21 who filed a petition on behalf of the K-1 fiance(e) . . . .” The statutory scheme further

22 provides that, after two years of conditional permanent resident status, the couple may

23 jointly file to have the “conditional” nature of the permanent resident status removed. If

24 the non-citizen has become ineligible for permanent resident status due to the

25 termination of her marriage “other than through the death of a spouse,” he or she may

26 apply for a waiver of the petition requirement by attesting that the marriage was entered

27 into in good faith. 8 U.S.C. § 1186a(c)(4)(B).

28

Defendants begin by correctly noting that the “statutory scheme clearly requires

20

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 21 of 37 Page ID #:1438

1 that an alien who enters the United States as a K-1 (like plaintiff Nguyen) may only

2 adjust on a conditional basis after marriage within 90 days of entry to the citizen who

3 filed the fiance(e) petition which allowed the alien entry.” Defs’ 9th Cir. Mot. at 31.

4 However, defendants next argue that defendants were entitled to determine that plaintiff

5 Nguyen was statutorily ineligible for adjustment of status to conditional permanent

6 resident status under 8 U.S.C. § 1255(a) and (d) “due to the fact that upon the death of

7 her husband, her marriage no longer existed and she could not qualify as the current

8 spouse of a U.S. citizen.” Defs’ 9th Cir. Mot. at 31. Defendants argue that because,

9 under the law of every state, marriage ends when one spouse dies, Nguyen is no longer

10 in a legal marriage, and is thus no longer eligible for adjustment of status. Defs’ 9th Cir.

11 Mot. at 31, citing 52 Am. Jur. 2d, Marriage, § 8 (“under American law all valid

12 marriages continue in force during the joint lives of the parties or until divorce or

13 annulment”).

14

However, in Choin v. Mukasey, 537 F.3d 1116 (9th Cir. 2008), the Ninth Circuit

15 held that the “as a result of the marriage” language in 8 U.S.C. § 1255(d) was

16 ambiguous. The Court stated

17

The language of [8 U.S.C. § 1255] specifying that a nonimmigrant

18

may adjust status ‘as a result of the marriage’ can plausibly be

19

interpreted in two ways. As the government argues, it could be

20

interpreted to exclude those petitioners whose marriages no longer

21

exist on the date of adjudication. On the other hand, as Choin

22

argues, it could also be interpreted to mean that the application

23

must be based on the fact of the marriage.

24 Id. at 1119-20.

25

Furthermore, although defendants argue that the holding of Freeman is

26 inapplicable to Nguyen, because her spouse filed an I-129F rather than an I-130, this

27 argument is contradicted by the holding in Choin, 537 F.3d 1116. In Choin, the

28 Ninth Circuit relied on Freeman in examining a case regarding K-1 fiancé visas.

21

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 22 of 37 Page ID #:1439

1 Although the facts of Choin are somewhat different from those in the instant action,

2 the findings in Choin are instructive. In Choin, plaintiff entered the United States on

3 a K-1 visa and married her U.S. citizen fiancé within the 90 day period. Id. at 1119.

4 However, the Immigration and Naturalization Service (“INS”) did not timely process

5 her application for conditional permanent resident status, and after two and a half

6 years, when she and her husband divorced, she had not yet been granted conditional

7 permanent resident status. Id. The government argued that, to receive conditional

8 permanent resident status, “an immigrant on [a] K visa must stay married until the

9 government gets around to adjudicating her application for adjustment of status.” Id.

10 at 1121. The Court disagreed, stating “[a]s in Freeman, we here similarly find

11 nothing in the plain language of [8 U.S.C. § 1255(d)] suggesting that an application

12 that was valid when submitted should be automatically invalid when the petitioner’s

13 marriage ends by divorce two years later.” Id. The Ninth Circuit therefore

14 remanded to the Board for further proceedings consistent with the opinion.18

15

Based on the holding in Choin, the Court finds that plaintiff Nguyen is entitled

16 to summary judgment in her favor. As the court stated in Choin, nothing in the plain

17 language of 8 U.S.C. § 1255(d) suggests that plaintiff Nguyen’s application, which

18 was valid when submitted, should be automatically invalid because her marriage later

19 ended due to the death of her spouse. See Choin, 537 F.3d at 1121. Therefore,

20 defendants acted improperly when they denied plaintiff Nguyen’s application solely

21 on the basis that plaintiff Nguyen is no longer married to her deceased United States

22

23

18 Defendants argue that Choin 537 F.3d 1116, is not valid precedent, arguing that once the Ninth Circuit in Choin found the statute ambiguous, “the panel was not free to

24 make its own interpretation of the governinglaw. Rather, the remand necessarily required

25 that the issue be addressed by the Board itself”. Defs’ 9th Cir. Reply at 19, citing Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (“A court of appeals is not generally empowered to
26 conduct a de novo inquiry into the matter being reviewed andto reach its own conclusions

27 based on such an inquiry. . . Rather, the proper course, except in rare circumstances, is to remand to the agency for additional in vestigation or explanation.”). Once again,
28 defendants fail to recognize that the Court must follow the holding of Choin.

22

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 23 of 37 Page ID #:1440

1 citizen spouse.19

2

B. Whether Defendants’ Application of Freeman is Permissible

3

The issue before the Court is not only to whom Freeman, 444 F.3d 1031,

4 applies, but in addition, whether defendants are currently applying Freeman in the

5 Ninth Circuit correctly. Defendants read the Freeman decision narrowly. In a

6 November 8, 2007, USCIS Interoffice Memorandum from Mike Aytes, then Associate

7 Director of Domestic Operations, USCIS, to the Field Leadership, (the “Aytes

8 Memorandum”), Aytes instructs that although USCIS will follow Freeman in the

9 Ninth Circuit, it will do so only if, prior to the death of the alien’s U.S. citizen spouse,

10 the alien and the alien’s U.S. citizen spouse had filed, in addition to the I-130 form

11 (the immediate relative petition), an I-485 application (i.e. an application to register

12 permanent residence or adjust status). Such a requirement is, according to USCIS,

13 consistent with the holding in Freeman. Additionally, the Aytes Memorandum states

14 that USCIS will automatically revoke the approval of an I-130 petition for an alien

15 whose spouse has died unless the alien spouse presents a request for humanitarian

16 reinstatement under 8 C.F.R. 205.1(a)(3)(i)(C)(2) and submits a substitute affidavit of

17 support (Form I-864) from a qualified substitute sponsor.

18

1. Whether Freeman Applies Where an I-485 Application Was

19

Not Filed Prior to the U.S. Citizen Spouse’s Death

20

Plaintiffs argue that defendants cannot limit the holding of Freeman to those

21 cases where the alien spouse and his or her U.S. citizen spouse filed an I-485, in

22 addition to the I-130, before the U.S. citizen spouse’s death. The crux of plaintiffs’

23 argument is that defendants are impermissibly basing the outcome of a petition for

24

25

19 Defendants also cit e Kalal v. Gonzales, 402 F.3d 948, 950 (9th Cir. 2005) to

26 support their argument. However, this case in inapposite. In Kalal, the court found that

27 plaintiff was not entitled to adjustment of status, because she never married her petitioner fiancé, and instead married someone else, in direct contravention to the requirements of the
28 8 U.S.C. § 1255(d). 402 F.3d at 950.

23

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 24 of 37 Page ID #:1441

1 immediate relative status (i.e. the approval of an I-130) on the filing of a form

2 governing an alien’s admissibility (the I-485). Plaintiffs argue that “[d]efendants

3 cannot escape the fundamental rule governing immigrant petitions which states that

4 admissibility concerns are not relevant to petition procedure.” Pls’ Ninth Cir. Opp’n

5 at 2, citing Matter of O, 8 I&N Dec. 295 (BIA 1959). In Matter of O, the Board

6 determined that “[t]he visa petition procedure is concerned merely with the question

7 of status. It does not concern itself with substantive questions of inadmissibility . . .”).

8

Plaintiffs argue that Freeman, 444 F.3d 1031, supports their position. In

9 Freeman, the Court held that an “alien widow whose citizen spouse filed the necessary

10 immediate relative petition form but died within two years of the qualifying marriage

11 nonetheless remains a spouse for purposes of 8 U.S.C. § 1151(b)(2)(A)(i), and is

12 entitled to be treated as such when DHS adjudicates her adjustment of status

13 application.” 444 F.3d at 1039. Plaintiffs essentially argue that the “necessary

14 immediate relative petition form” is the I-130, because the I-130 is the form that

15 establishes eligibility for immediate relative status. Pls’ Ninth Cir. Opp’n at 9.

16 Plaintiffs acknowledge that the I-485 is also a “necessary form” in that it is necessary

17 to establish an alien’s admissibility, but argue that these grounds for admissibility are

18 found at 8 U.S.C. § 1182(a), and are wholly separate from the grounds for immediate

19 relative status found in 8 U.S.C. § 1154(a)(1)(A)(i) and 8 U.S.C. § 1151(b)(2)(A)(i).

20 Plaintiffs argue that, unlike admissibility considerations, the determination of

21 immediate relative status is non-discretionary, and that “[d]efendants[’] efforts to

22 import discretionary criteria into determination under 8 U.S.C. § 1154(a)(1)(A)(i) and

23 8 U.S.C. § 1151(b)(2)(A)(i) are improper, and subject to judicial review as a matter of

24 law.” Pls’ Ninth Cir. Opp’n at 3. In other words, while defendants are free to apply

25 lawful grounds of admissibility to plaintiffs’ applications for adjustment of status,

26 plaintiffs argue, defendants are not entitled to apply these grounds to a determination

27 of plaintiffs’ petition for immediate relative status. Pls’ Ninth Cir. Opp’n at 4.

28

Defendants respond that the holding in Freeman was expressly based on the

24

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 25 of 37 Page ID #:1442

1 spouse having filed the “necessary forms” which includes, according to defendants,

2 the I-485. The plaintiff in Freeman had filed an I-485 prior to her spouse’s death, and

3 the Court repeatedly noted that fact. See Freeman, 444 F.3d at 1039-40 (“Mrs.

4 Freeman qualified as the spouse of a U.S. citizen when she and her husband petitioned

5 for adjustment of status . . .”); Id. at 1043 (“Mrs. Freeman completed all the

6 formalities required for an adjustment of [her] status, . . . but the immigration

7 authorities had, through no fault of [her or her husband's], failed as yet to act on [her

8 husband's] petition.”) (internal citations omitted).20

9

The Court finds unconvincing defendants’ argument that the Freeman, 444 F.3d

10 1031 holding only applies to those aliens whose petitioning U.S. citizen spouses

11 submitted an I-485 form. Although plaintiff and her U.S. citizen spouse in Freeman

12 had filed an I-485 form prior to Mr. Freeman’s death, it does not appear that the

13 Court’s holding in Freeman depended on this fact. Instead, Freeman states that where

14 plaintiff and his or her U.S. citizen spouse filed the “necessary immediate relative

15 petition form” – i.e. the I-130 – plaintiff is entitled to be treated as a spouse for

16 purposes of 8 U.S.C. § 1151(b)(2)(A)(i). See 444 F.3d at 1039. Furthermore, the

17 Court agrees with plaintiffs that defendants appear to be improperly conflating

18 immediate relative status classification and admissibility criteria, by conditioning

19 classification as an immediate relative on the submission of an I-485. See Matter of

20

21

20 In addition, defendants arguethat, regardless, their contested interpretation of the statute has no effect on plaintiff class members.Defs’ Ninth Cir. Mot. at 21. Specifically,

22 defendants note that, by definition, class members have submitted, in addition to an I-130

23

form, an I-864 form, which is an affidavit of support. SeeNinth Circuit Class Definition, Part I., supra. Because the I-864 form is related to admissibility, it is not relevant to the

24 I-130 proceedings, and is instead filed in conujnction with an I-485. Defendants argue that

25 if “an alien has not submitted a Form I-485, it is necessarilythe case that the visa petitioner did not submit a Form I-864.” Defs’ 9th Cir. Mot. at 21. However, nothing in the certified
26 class definition requires that plaintiffs in th is action to have necessarily filed an I-485.

27 Therefore, the Court finds defendants arguments that all plaintiffs would have filed an I485 to be speculative.
28

25

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 26 of 37 Page ID #:1443

1 O., 81 I&N Dec. 295 (BIA 1959). Therefore, the Court finds and concludes that

2 defendants may not limit the application of the Freeman decision to those cases where

3 the alien spouse and his or her U.S. citizen spouse filed an I-485 before the U.S.

4 citizen spouse’s death.

5

B. Whether Defendants May Automatically Revoke Approved I-

6

130s, and Require a Request for Humanitarian Reinstatement

7

and Substitute Affidavit of Support

8

Plaintiffs also seek declaratory relief that, in the case in which an alien spouse

9 dies, defendants act improperly when, in spite of the holding in Freeman, they “revoke

10 the approval of an I-130 petition unless plaintiffs-petitioners present a request under 8

11 C.F.R. § 205.1(a)(3)(C)(2) for humanitarian reinstatement, supported by a Form I-864

12 executed by an individual who qualifies under section 213(A)(f)(5)(B) of the

13 Immigration and Nationality Act as a qualifying substitute sponsor.”21 FAC ¶ 172.

14

The challenged regulation at issue is 8 C.F.R. § 205.1(a)(3)(i)(C)(2), which

15 provides that an approved I-130 is revoked upon the “death of the petitioner” unless

16 USCIS determines “as a matter of discretion exercised for humanitarian reasons . . .

17 that it is inappropriate to revoke the approval of the petition. USCIS may make this

18 determination only if the principal beneficiary of the visa petition asks for

19 reinstatement of the approval of the petition and establishes that a person related to the

20

21

21 Defendants argued for the first tim e at the hearing that plaintiffs do not have standing to challenge 8 C.F.R.§ 205.1(a)(3)(i)(C)(2),because the only named plaintiff who

22 has been subject to autom atic revocation of the I-130 petition under 8 C.F.R. §

23

205.1(a)(3)(i)(C)(2) was otherwise inadmissible and, therefore, revocation had no adverse immigration impact. However, defendants’ argument is without merit. First, there is no

24 indication that unnamed class members who may be otherwise admissible do not face an

25 immediate threat of harm under this regulation, in that their approved I-130 petitions may be improperly revoked upon the death of their spouses. Furtherm ore, it appears to the

26 Court that an alien may be harmed by automatic revocation of the I-130 petition, even if

27 the alien is ultimately judged to be otherwise inadmissible, because such revocation forces the alien to expend time and resources requesting humanitarian reinstatement of his or her
28 I-130 petition.

26

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 27 of 37 Page ID #:1444

1 principal beneficiary in one of the ways described in section 213A(f)(5)(B) of the Act

2 is willing and able to file an affidavit of support under 8 C.F.R. part 213a as a

3 substitute sponsor.”).

4

Plaintiffs argue that, by requiring plaintiffs to petition for humanitarian

5 reinstatement of their approved I-130 after their U.S. citizen spouse dies, defendants

6 are importing discretionary factors into the determination of immediate relative status

7 (i.e. the I-130 process), which is a non-discretionary decision. Pls’ Mot. at 19, citing

8 Hernandez v. Ashcroft, 345 F.3d 824, 833-34 (9th Cir. 2003) (“determinations that

9 require application of law to factual determinations are nondiscretionary”); 8 U.S.C.

10 1154(b) (“the Attorney General shall, if he determines that the facts stated in the

11 petition are true and that the alien in behalf of whom the petition is made is an

12 immediate relative . . . approve the petition. . . ”) (emphasis added). Plaintiffs argue

13 that “[d]efendants’ efforts to import discretionary criteria into the determination under

14 8 U.S.C. § 1154(a)(1)(A)(i) and 8 U.S.C. § 1151(b)(2)(A)(i) are illegal, and subject to

15 judicial review as a matter of law. Pls’ Mot. at 19.

16

The statutory provision governing revocation of approved petitions is 8 U.S.C.

17 § 1155, which states that “[t]he Secretary of Homeland Security may, at any time, for

18 what he deems to be good and sufficient cause, revoke the approval of any petition

19 approved by him under section 204 [8 USC § 1154].” Plaintiffs argue that the

20 automatic revocation upon the death of the petitioner, as codified in 8 C.F.R. § 205.1

21 goes “far afield” of this statutory provision. Pls’ Mot. at 19. Specifically, plaintiffs

22 argue that the death of a spouse does not constitute “good and sufficient cause” under

23 8 U.S.C. § 1155. Pls’ Mot at 20.

24

Plaintiffs first note that the BIA has held that in determining what constitutes

25 “good and sufficient cause” under 8 U.S.C. § 1155, the relevant question is whether

26 the evidence “would have warranted a denial based on the petitioner’s failure to meet

27 his or her burden of proof.” Pls’ 9th Cir. Opp’n at 12-13, quoting Matter of Estime,

28 19 I&N Dec. 450, 451 (BIA 1987). Plaintiffs argue that because Freeman holds that

27

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 28 of 37 Page ID #:1445

1 death of the petitioning spouse cannot form the basis for the denial of an I-130 2 petition, Matter of Estime requires that the death of a spouse cannot form the basis of 3 a revocation of the approval of an I-130 petition. Pls’ 9th Cir. Opp’n at 13.

4

Furthermore, plaintiffs cite Pierno v. INS, 397 F.2d 949, 950 (2d Cir. 1968), in

5 which the INS had automatically denied plaintiffs’ application for adjustment of status

6 due to her spouse’s death. The Second Circuit stated that 8 U.S.C. § 1155 “should not

7 be interpreted to authorize the Attorney General's wooden application of rules for

8 automatic revocation.” Id. The Court stated

9

We can hardly imagine that Congress would have intended Mrs. Pierno

10

to be deported as a result of her husband's death had he been, for

11

instance, a member of the armed forces killed in action while the status

12

adjustment proceedings were pending. Yet, such a result would follow

13

from the Service's decision. The purpose of placing such discretion

14

regarding immigration in the hands of the Attorney General, rather than

15

having that field governed by a detailed statute, is to give some flexibility

16

in treating a myriad of possible situations. Regulations issued by the

17

Attorney General should not be so applied as to frustrate that

18

Congressional intent.

19 Id. at 951. See also Leano v. Immigration & Naturalization Service, 460 F.2d 1260,

20 1260-61 (9th Cir. 1972) (INS’s automatic order of deportation after plaintiff’s

21 petitioning father died was improper, finding that “strict position taken by the Service

22 was not required”).

23

Defendants, however, argue that Pierno, 397 F.2d 949 (2d Cir. 1968), is not

24 controlling, because subsequent case law demonstrates that agencies have wide

25 discretion to promulgate generalized rules, such as the automatic revocation regulation

26 at issue here, as long as Congress has not clearly expressed a contrary intent. Defs’ 9th

27 Cir. Mot. at 28, citing American Hospital Ass’n v. NLRB, 499 U.S. 606, 612 (1991)

28 (“even if a statutory scheme requires individualized determinations, the decisionmaker

28

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 29 of 37 Page ID #:1446

1 has the authority to rely on rulemaking to resolve certain issues of general

2 applicability unless Congress clearly expresses an intent to withhold that authority”);

3 see also Heckler v. Campbell, 461 U.S. 458, 467 (1983) (agency not required to

4 “continually . . . relitigate issues that may be established fairly and efficiently in a

5 single rulemaking proceeding.”). Defendants argue that “the purpose of family-based

6 immigration policy – to promote family unity for the U.S. citizen – establishes that the

7 death of the citizen spouse constitutes ‘good and sufficient cause’ for terminating the

8 petition approval.” Defs’ 9th Cir. Reply at 15.

9

Defendants further argue that it is clear that Congress has not evinced a contrary

10 intent that would bar the automatic revocation regulation. In fact, defendants argue

11 that revocation of visa petitions has been automatic at the death of the visa petitioner

12 since 1952. Defs’ 9th Cir. Mot. at 30. Furthermore, defendants argue that, in enacting

13 the substitute sponsor provision through Public Law 107-150 in 2001, Congress

14 expressly took note of the regulation that revokes approval of a Form I-130 on the

15 petitioners’ death, and did not alter it. Defs’ 9th Cir. Mot. at 30, citing H. Rep. 107-

16 127 at 6 (2001) (“The Committee does not intend this bill to restrict the Attorney

17 General’s ability to revoke any petition, whether as a result of the death of the

18 petitioner or otherwise, for good sufficient cause. . .”).

19

Defendants also argue that the automatic revocation of an I-130 at the citizen’s

20 spouse’s death is valid, because it gives effect to the principle that “an alien cannot

21 immigrate if he or she is not actually eligible when he or she seeks admission with an

22 immigrant visa . . .” Defs’ 9th Cir. Mot. at 29, citing 8 U.S.C. 1154(e) (“Nothing in

23 this section shall be construed to entitle an immigrant, in behalf of whom a petition

24 under this section is approved . . . as an immediate relative under section 201(b) [8

25 USCS § 1151(b)] if upon his arrival at a port of entry in the United States he is found

26 not to be entitled to such classification.”). Specifically, defendants argue that, when

27 the petitioning spouse dies, the affidavit of support filed by the alien’s petitioning

28 spouse – a prerequisite to admissibility – is no longer valid, and, therefore, the alien is

29

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 30 of 37 Page ID #:1447

1 not admissible. Hence, defendants argue, they are entitled to automatically revoke,

2 and to require an alien to request reinstatement and to file a substitute affidavit of

3 support from a new sponsor.

4

In general, an affidavit of support (the I-864 form) is a prerequisite to an alien’s

5 admissibility. Under 8 U.S.C. § 1182(a)(4)(C), family-sponsored immigrants (like

6 plaintiffs in this action) are inadmissible unless “the person petitioning for the alien’s

7 admission (and any additional sponsor required under section 213A(g)) or any

8 alternative sponsor permitted under paragraph 5(B) of such section) has executed an

9 affidavit of support described in section 213A [8 U.S.C. 1183(a)] with respect to such

10 alien.” Under 8 U.S.C. § 1183a(a)(1),

11

No affidavit of support may be accepted by the Attorney General or by

12

any consular officer to establish that an alien is not excludable as a public

13

charge under section 212(a)(4) [8 USCS § 1182(a)(4)] unless such

14

affidavit is executed by a sponsor of the alien as a contract-- . . . (B) that

15

is legally enforceable against the sponsor.

16

However, 8 U.S.C. § 1183a(f)(5)(B) provides that a person who is not

17 petitioning on behalf of an alien may nevertheless file an affidavit of support, if such

18 person is a family member of the alien and

19

(i) the individual petitioning under section 204 [8 USCS § 1154] for

20

the classification of such alien died after the approval of such petition;

21

and

22

(ii) the Attorney General has determined for humanitarian reasons that

23

revocation of such petition under section 205 [8 USCS § 1155] would

24

be inappropriate.

25

Plaintiffs argue that defendants’ requirement that plaintiffs submit a substitute

26 affidavit of support in order to reinstate their approved I-130 form is improper,

27 because, like the I-485, an affidavit of support is related to the section of the statute

28 governing admissibility (8 U.S.C. § 1182, and specifically 8 U.S.C. § 1182(a)(4)

30

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 31 of 37 Page ID #:1448

1 (“Public Charge”)), and admissibility is not relevant to an I-130 petition proceeding.

2 First Opp’n at 2, citing Matter of O, 8 I&N Dec. 295 (BIA 1959). Plaintiffs again

3 argue that defendants may not utilize admissibility concerns to withhold approval or

4 revoke approval of an immediate relative petition. Pls’ Mot. at 2, 14.

5

Defendants, however, argue that the imposition of a substitute affidavit of

6 support requirement does not read admissibility criteria into the petition procedure.

7 Instead, the requirement merely addresses “how, once the Form I-130 is approved

8 under Freeman, the alien can ‘overcome inadmissibility on public charge grounds.’”

9 Defs’ 9th Cir. Mot. at 23. Defendants argue that an enforceable affidavit of support

10 (I-864) is a requirement of admissibility. See 8 U.S.C. § 1183a(a)(1)(B) (affidavit of

11 support must be “legally enforceable against the sponsor by the sponsored alien”).

12 Defendants further note that an alien’s eligibility for adjustment of status is decided

13 based on the facts as they exist on the date of decision, and argue that “[u]nder

14 Freeman, an alien may still qualify as the spouse of a citizen, even though the

15 qualifying marriage has terminated by death. All other admissibility factors, however,

16 must still be satisfied at the time of the decision.” Defs’ 9th Cir. Mot. at 23, citing

17 Matter of Alarcon, 20 I&N Dec. 557, 562 (BIA 1992) (“An application for admission

18 to the United States is a continuing application, and admissibility is determined on the

19 basis of the facts and the law at the time the application is finally considered.”).

20 Therefore, defendants argue, an affidavit of support must be legally enforceable at the

21 time of adjudication of admissibility. Because in plaintiffs’ cases admissibility is to

22 be determined after the death of the U.S. citizen spouse who filed the affidavit of

23 support, a substitute affidavit is required, or else the alien is inadmissible.

24

Defendants acknowledge that, by employing the “revoke and reinstate”

25 mechanism, defendants revoke the I-130 form – a form that does not deal with

26 admissibility – but argues that it does so because 8 U.S.C. § 1183a(f)(5)(B) is the only

27 statutory mechanism available which allows for the submission of a substitute I-864

28 after a petitioning U.S. citizen has died. Defs’ 9th Cir. Mot. at 24. Defendants further

31

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 32 of 37 Page ID #:1449

1 argue that the mechanism used is largely irrelevant, because “[w]ithout an enforceable 2 Form I-864 from a substitute sponsor, the alien is inadmissible under 8 U.S.C. § 3 1182(a)(4)(C) and therefore ineligible for adjustment of status as a matter of law.” 4 Defs’ 9th Cir. Mot. at 24. In other words, the question of whether automatic 5 revocation is valid is “largely academic” because “whether the approval of Form I-130 6 is revoked or not, there must still be a Form I-864 from a qualified substitute sponsor . 7 . .”22 Defs’ 9th Cir. Mot. at 27.

8

9

22 Plaintiffs, however, dispute not only defendants’ use of the revoke and reinstate

10

mechanism, but also defendants’ argument that a “valid affidavit” is required, arguing that, in fact, all that is required is that the a lien’s spouse “executed” the requisite I-864 form

11 prior to his or her death. Pls’ 9th Cir. Opp’n at 6, citing 8 U.S.C. § 1183a(a)(1) (“No

12 affidavit of support may be accepted . . . unless such affidavit is executed by a sponsor . . . as a contract – (B) that is legal ly enforceable against the sponsor”). Because the
13 petitioning citizen spouses in plaintiff’s cases all executed affidavits of support prior to

14 death, plaintiffs argue, substitute affidavits are not required. First Opp’n at 6. Plaintiffs argue that
15

16

[t]he fact that the duly executed affidavit of support becom es

unenforceable does not make the alien inadmissible under 8 U.S.C.

17

§ 1182(a)(4) [which governs public charge adm issibility grounds],

18

because the petitioner and alien spouse have done all that is required

under the statute. Enforceability is not required for the sponsored

19

immigrant to be admissible – only execution of the affidavit by the

20

petitioning sponsor.

21 Pls’ Mot. at 16. Defendants, however, argue that the language of 8 U.S.C. § 1183a(a)(1) 22 – “no affidavit of support may be accepted” unless it is “legally enforceable” – means that 23 the affidavit must establish that the alien is not “excludable as a public charge.”

24

The mere filing of a FormI-864 by a sponsor in support of an alien’s

25

Form I-485 does not mean that ‘acceptance’ in the relevant sense has

occurred. . . ‘Acceptance’ in othe r words, must mean an act of

26

adjudication – a decision that the Form I-864 is sufficient to establish

27

that the requirements of section 213A are met.

28

(continued...)

32

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 33 of 37 Page ID #:1450

1

2

The Court, however, finds defendants’ arguments unpersuasive. By

3 automatically revoking the I-130’s of plaintiffs who, under the holdings in Freeman,

4 444 F.3d 1031, qualify as immediate relatives spouses, and by requiring them to

5 request humanitarian reinstatement, defendants are improperly importing discretionary

6 considerations into the non-discretionary determination of whether an alien is an

7 “immediate relative.” See 8 U.S.C. 1154(b) (“the Attorney General shall, if he

8 determines that the facts stated in the petition are true and that the alien in behalf of

9

10

22(...continued)

11 Pls’ Reply at 13.

12 Furthermore, plaintiffs argue that ev en if an enforceable affidavit is required for
13 admission, defendants’ requirement of a subs titute affidavit is improper, because the

14 affidavit of support executed by the U.S. citizen spouse prior to his or her death is, in fact, enforceable. Once the affidavit was executed, plaintiffs argue, it is a legally enforceable
15 contract against the sponsor, and the d eath of the sponsor who executed it does not

16 foreclose its enforceability. First Opp’n at 7. Plaintiffs acknowledge that 8 C.F .R. § 213a.2(e)(2)(ii) explicitly states that “enforcement ends in death.” Pls’ Mot. at 17; see8
17 C.F.R. § 213a.2(e)(2)(ii) (“The support obligation under Form I-864 also terminates if the

18 sponsor, substitute sponsor or joint sponsor di es.”). However, plaintiff argues that this

regulation is contrary to congressional intent. Specifically, plaintiffs note that Congress 19 explicitly provided that an affidavit of support may become unenforceable when the alien

20 works 40 qualifying quarters of coverage; plai ntiffs argue that the fact that Congress

21

specifically stated one way that an affidavit of support could become enforceable, but did not state that an affidavit of support becom es unenforceable upon death, indicates that

22 Congress clearly did not m ean for the death of the spouse to re nder the affidavit

23

unenforceable. Pls’ Ninth Cir. Opp’n at 7-8; see8 U.S.C. 1183a(a)(3)(A). In other words, plaintiffs argue that if Congress intended for an affidavit to be unenforceable at death, it

24 would have so provided in the statute.

25 Defendants dispute that a petition is en forceable against a deceased petitioner,
26 arguing that because the s tatute clearly requires that a sponsor be an “individual,” the
27 deceased’s estate cannot qualify. See 8 U.S.C. § 1183a(f)(1) (“the term “sponsor” in relation to a sponsored alien means an individual who executes an affidavit of support . .
28 . ”) (emphasis added).

33

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 34 of 37 Page ID #:1451

1 whom the petition is made is an immediate relative . . . approve the petition . . .”)

2 (emphasis added). Furthermore, it is untenable under the holding of Freeman that the

3 death of a U.S. citizen spouse could constitute “good and sufficient cause” for

4 automatic revocation pursuant 8 U.S.C. § 1155.

5

Furthermore, in requiring plaintiffs to submit a substitute affidavit of support –

6 a requirement related to the alien’s admissibility – as a prerequisite to reinstating the

7 alien’s I-130 petition for immediate relative status, defendants are impermissibly

8 basing a non-discretionary decision regarding immediate relative status on criteria

9 governing admissibility.23 See Matter of O, 8 I&N Dec. 295 (BIA 1959) (“[t]he visa

10 petition procedure is concerned merely with the question of status. It does not

11 concern itself with substantive questions of inadmissibility . . .”). Therefore, the Court

12 finds 8 C.F.R. § 205.1(a)(3)(i)(C)(2) invalid under the holdings in Freeman and

13 Lockhart.

14

C. Arguments Regarding Specific Individual Plaintiffs

15

1. Plaintiff Lockett

16

Defendants argue that plaintiff Lockett has returned to the United Kingdom, and

17 that, therefore, his challenge to the denial of his I-485 is moot. Defs’ 9th Cir. Mot. at

18 33. Under 8 C.F.R. § 245.2(a)(4)(B), “[t]he travel outside of the United States by an

19 applicant for adjustment who is not under exclusion, deportation, or removal

20 proceedings shall not be deemed an abandonment of the application if he or she was

21 previously granted advance parole by the Service for such absence.” (emphasis

22 added). Plaintiffs argue that plaintiff Lockett in fact obtained an advance parole travel

23 document prior to his departure, but due to personal circumstances, did not return

24

25

23 The Court finds that it cannot determine, based on the arguments set forth by the

parties as summarized in footnote 22, that plaintiffs have established that defendants may

26 not require a substitute affidavit of suppor t as a grounds for adm issibility. The Court

27 therefore declines to so find, and limits its holding herein to a finding that defendants may not require such an affidavit of support as a prerequisite to reinstatement of the alien’s I-
28 130 petition.

34

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 35 of 37 Page ID #:1452

1 before the expiration date of the document. Pls’ 9th Cir. Opp’n at 16. Plaintiffs

2 further argue that defendants currently refuse to issue a renewal document, and that

3 this denial derives from defendants’ unlawful interpretation of the term “spouse.” Pls’

4 9th Cir. Opp’n at 16. Defendants, however, correctly note that the decision of whether

5 to grant advance parole is purely a matter of agency discretion not subject to judicial

6 review. Defs’ Reply at 21; see Hassan v. Chertoff, 543 F.3d 564, 566 (9th Cir. 2008)

7 (affirming the district court’s holding that it lacked jurisdiction over plaintiff’s claim

8 regarding revocation of his advance parole “because the revocation of advance parole,

9 like the grant of advance parole, is discretionary.”).

10

2. Plaintiff De Mailly

11

Defendants argue that plaintiff De Mailly has abandoned her adjustment of

12 status application, because she has left the United States and now resides in Belgium.

13 Defs’ Opp’n at 24, citing Decl. of Suzanne DeMailly ¶ 2 (“I currently live in

14 Bruxelles, Belgium. I entered the United States lawfully, and lived in Los Angeles,

15 California, but was forced to return to Belgium following the denial of my application

16 for permanent resident status.”).

17

Defendants argue that “as an alien who is not in the United States after having

18 been admitted to the United States, and who does not reside in the United States,

19 Plaintiff De Mailly has no right to judicial review of an administrative decision that

20 she is not eligible to immigrate.” Defs’ Opp’n at 24. Defendants cite Kleindienst v.

21 Mandel, 408 U.S. 753, 762 (1974) in which the Court held that “an unadmitted and

22 nonresident alien . . . had no constitutional right of entry to this country as a

23 nonimmigrant or otherwise” and Braud v. Wirtz, 350 F.2d 702, 706 (9th Cir. 1965)

24 (finding no right of judicial review where appellant aliens, who challenged

25 administrative determinations affecting appellants’ eligibility to obtain immigrant

26 visas to enter United States, had not sought admission).

27

4. Conclusion

28

The Court cannot determine, based on the limited evidence before it, the exact

35

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 36 of 37 Page ID #:1453

1 status of the I-130 petitions and adjustment of status and visa applications of plaintiffs

2 Lockett and De Mailly. However, to the extent that the Court’s holding herein

3 regarding the application of Freeman and Lockhart affects the disposition of any of

4 these plaintiffs’ petitions and applications, defendants are hereby ordered to apply the

5 holding herein and to adjudicate them accordingly. Furthermore, defendants are

6 cautioned that they may not use factors arising from their improper denial of

7 plaintiffs’ applications to again deny the petition and application upon reopening

8 them.

9 V. CONCLUSION

10

The Court herein GRANTS in part and DENIES in part defendants’ motion for

11 summary judgment as to all plaintiffs outside of the Ninth Circuit. Specifically, the

12 Court DENIES defendants’ motion with regard to the Sixth Circuit plaintiffs. The

13 Court GRANTS defendants’ motion with regard to the Third Circuit plaintiffs. The

14 Court DENIES plaintiffs’ and defendants’ motions with regard to plaintiffs outside the

15 Ninth, Sixth, and Third Circuits.24 The Court DENIES defendants’ motion for partial

16 summary judgment as to plaintiffs in the Ninth Circuit. The Court GRANTS in part

17 and DENIES in part plaintiffs’ renewed motion for summary judgment.

18

Specifically, the Court finds that plaintiffs who reside in the Ninth and Sixth

19 Circuits are entitled to “immediate relative” classification based on their status as

20 surviving spouses of deceased United States citizens.

21

Furthermore, the Court finds defendants’ application of Freeman to Ninth

22 Circuit plaintiffs, in the manner set forth in the Aytes Memorandum, to be invalid.

23 First, the Court holds that the Freeman holding applies equally to those cases in which

24

25

24 At the hearing, the parties raised the issue of the proper disposition of the claims

26 of plaintiffs outside the Third, Sixth, and Ninth Circuits, and in particular whether such

27 plaintiffs’ claims should be dismissed or transferred. This issue has not been briefed by the parties, and the Court has insufficient information before it to decide this question at
28 this time.

36

Case 2:07-cv-05696-CAS-MAN Document 151 Filed 04/28/09 Page 37 of 37 Page ID #:1454

1 an I-485 application was not filed prior to the U.S. citizen spouse’s death.

2 Furthermore, the Court finds 8 C.F.R. § 205.1(a)(3)(C)(2), which revokes an alien’s I-

3 130 form on the basis of the death of the alien’s U.S. citizen spouse and requires the

4 alien to petition for humanitarian reinstatement and to file a substitute affidavit of

5 support as a prerequisite to reinstatement of the I-130, to be invalid as a matter of law

6 as applied to plaintiffs in the Ninth and Sixth Circuits.

7

Defendants are hereby ordered to reopen the immediate relative petitions and

8 applications for adjustment of status and immigrant visas of plaintiffs in the Sixth and

9 Ninth Circuits, and to adjudicate them in a manner consistent with the holding of the

10 Court.25

11

IT IS SO ORDERED

12

13

Dated: April 28, 2009

14

15

________________________________ CHRISTINA A. SNYDER
UNITED STATES DISTRICT JUDGE

16

17

18

19

20

21

22

23

24

25

26

27

25 At the hearing, defendant s requested clarification of the scope of the Court’s

holding. The instant holding applies to named plaintiffs in the Ninth and Sixth Circuits,

28 as well as unnamed members of the Ninth Circuit class.

37

 
 Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 1 of 18 Page ID #:1476

1 TONY WEST

2

United States Department of Justice Assistant Attorney General

3 ELIZABETH J. STEVENS VSB 47445 Assistant Director, District Court Section

4 PATRICIA E. BRUCKNER NYSB 2632156

5

Trial Attorney, District Court Section Office of Immigration Litigation

6

P.O. Box 868, Ben Franklin Station

Washington, D.C. 20044

7

Telephone: (202) 532-4325

8

Facsimile: (202) 616-8962 E-mail: Patricia.Bruckner@usdoj.gov

9
Attorneys for Defendants.
10

11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13

WESTERN DIVISION

14 CAROLYN ROBB HOOTKINS, 15 et al.,
Plaintiffs,
16

17

v.

18 JANET NAPOLITANO, Secretary,

U.S. Department of Homeland

19 Security; Alejandro Mayorkas,1

20

Director, U.S. Citizenship and Immigration Services,

21
Defendants.
22

23

24

) Case No. CV07-05696 (CAS) ) ) Date: March 1, 2010 ) Time: 10:00 a.m. ) Courtroom: 5 ) Honorable Christina A. Snyder ) ) NOTICE OF MOTION AND ) JOINT MOTION FOR ) PRELIMINARY APPROVAL OF ) CLASS ACTION SETTLEMENT ) AND APPROVAL OF NOTICE ) TO CLASS, AND MEMORANDUM ) OF POINTS AND AUTHORITIES ) IN SUPPORT OF MOTION )

25

26

1 Pursuant to Fed. R. Civ. P. 25(d), Alejandro Mayorkas, as the confirmed

successor to Michael Aytes, is automatically substituted as the proper party

27 Defendant.

28 Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 2 of 18 Page ID #:1477

1

PLEASE TAKE NOTICE that on March 1, 2010, at 10:00 a.m., or as soon

2 thereafter as the parties may be heard, Plaintiffs Carolyn Robb Hootkins, Ana
3
Maria Moncayo-Gigax, Suzanne Henriette De Mailly, Sara Cruz Vargas de Fisher,
4
5 Raymond Lockett, Elsa Cecilia Brenteson, Pauline Marie Gobeil, Rose Freeda
6 Fishman-Corman, Khin Thidar Win, Li Ju Lu, Purita Manuel Poindexter, Tracy

7 Lee Rudl, and Dieu Ngoc Nguyen, on behalf of themselves, the Class and all Class

8 Members and Defendants (collectively, the “Settling Parties” or “Plaintiffs”); and
9
Defendants Janet Napolitano, Secretary of Homeland Security; and Alejandro
10
11 Mayorkas, Director, U.S. Citizenship and Immigration Services (“USCIS”)
12 (collectively, the "Defendants") will bring for hearing a Joint Motion for

13 Preliminary Approval of Class Action Settlement and Approval of Notice to Class.

14

The parties respectfully request that the Court:

15
(a) Grant preliminary approval of the Stipulation and Agreement of Settlement and
16

17 Release (the “Settlement Agreement”) (attached hereto as Exhibit 1);

18 (b) Approve the form and method of notifying the class of the settlement;

19 (c) Set a schedule for the Fairness Hearing and other appropriate dates;
20 (d) After the Fairness Hearing, grant final approval to the settlement; and
21
(e) After granting final approval to the settlement, vacate the injunction entered by
22
23 the Court on April 28, 2009 (dkt 151).

24

The hearing will take place before the Honorable Christina A. Snyder,

25 Courtroom 5, 312 North Spring Street, Los Angeles, California 90012.

26

This motion is based on the Memorandum of Points and Authorities

27

28 Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

2

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 3 of 18 Page ID #:1478

1 attached hereto; all pleadings, papers and files in this action; the proposed

2 settlement agreement; and such oral argument as may be presented at the hearing

3
on this motion.
4

5

This motion is made following the conference of counsel pursuant to L.R.

6 7-3 which took place on January 4, 2010.

7
8 Dated: January 25, 2010

9
10
11 Attorneys for Defendants:
12

Respectfully submitted,
TONY WEST United States Department of Justice Assistant Attorney General

13 14 15 16 17 18 19 20 21
Attorneys for Plaintiffs
22 23 24 25 26 27

/s/ Elizabeth J. Stevens ELIZABETH J. STEVENS VSB 47445 Assistant Director, District Court Section Office of Immigration Litigation Civil Division Elizabeth.Stevens@usdoj.gov
/s/ Patricia E. Bruckner PATRICIA E. BRUCKNER NYSB 2632156 Trial Attorney Office of Immigration Litigation Civil Division Patricia.Buckner@usdoj.gov
Alan R. Diamante, Esq. Law Office of Alan R. Diamante 523 W. Sixth Street, Suite 210 Los Angeles, California 90014
/s/ Brent W. Renison Brent W. Renison, Esq. Parrilli Renison LLC 5285 SW Meadows Road, Suite 175 Lake Oswego, Oregon 97035

28 Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

3

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 4 of 18 Page ID #:1479

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

I. INTRODUCTION

3
Plaintiffs and Defendants jointly submit this Memorandum in Support of the
4

5 Joint Motion for Preliminary Approval of Class Action Settlement and Approval

6 of Notice to Class. For the reasons articulated in the motion and this supporting

7 memorandum, the parties respectfully request that the Court preliminarily approve

8 the Settlement Agreement and approve the class notice and procedures, and
9
schedule a date for the Fairness Hearing. The parties further request final
10
11 approval of the settlement after the hearing, followed by vacatur of the injunction
12 entered by the Court on April 28, 2009 (dkt 151).

13

II. STATEMENT OF FACTS

14 A. Procedural History of the Case
15
Plaintiffs, on behalf of themselves and those who are similarly situated, are
16
17 widows or widowers of now deceased citizens who are intended beneficiaries of

18 Form I-130 alien relative petitions filed by the citizens, with the exception of one

19 Plaintiff who entered the United States on a K-1 fiancé visa. Plaintiffs reside in
20 the Ninth Circuit and either filed Form I-485 applications for adjustment of status
21
or Form DS-230 immigrant visa applications. Along with additional plaintiffs
22
23 who are not members of the Settling Parties, Plaintiffs filed a putative class action

24 challenging Defendants' determinations that Plaintiffs are not entitled to

25 "immediate relative" classifications under 8 U.S.C. § 1151(b)(2)(A)(i) due to the
26 deaths of their citizen spouses before the aliens received lawful permanent resident
27

28 Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 5 of 18 Page ID #:1480

1 status. Defendants maintained that, in order to be considered an "immediate

2 relative" spouse for purposes of section 1151 et seq., the widow(er) must have

3
been married to the citizen for at least two years prior to the citizen spouse's death.
4

5

The complaint, initially filed in August 2007 and amended in March of

6 2008, sought mandamus and Administrative Procedure Act review of the

7 adjustment-of-status denials, including requests for declaratory and injunctive

8 relief, alleging that USCIS improperly denied the visa petitions despite contrary
9
Ninth Circuit precedent in Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006),
10
11 improperly revoked previously approved petitions, improperly issued guidance to
12 USCIS adjudicators regarding how to handle such cases in the Ninth Circuit, and

13 improperly denied the adjustment application of the fiancé visa entrant.

14

Defendants filed a motion to dismiss in December 2007, and the parties

15
filed opposing motions for summary judgment in March 2009. In January 2009,
16

17 the Court had certified a Ninth Circuit-wide class and a fiancé sub-class but denied

18 the nationwide class sought by the original plaintiffs (dkt 108). The class and

19 sub-class certified by the Court include future class members whose citizen
20 spouses die prior to their second wedding anniversary, as long as the citizen
21
spouse filed the Form I-130 alien relative petition or Form I-129F petition for
22
23 alien fiance(e) and Form I-864 or I-864EZ affidavit of support on behalf of the

24 alien spouses and the other class requirements are met.

25

Following briefing on cross-motions for summary judgment, on April 28,

26 2009, the district court issued an order finding, inter alia, that plaintiffs who

27
reside in the Ninth Circuit and the Sixth Circuit, of which there were no named
28 Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

2

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 6 of 18 Page ID #:1481

1 plaintiffs, are entitled to immediate relative classification as surviving spouses of

2 deceased U.S. citizens (dkt 151). The Court further found USCIS's former policy
3
guidance concerning the application of the decision in Freeman v. Gonzales, 444
4
5 F.3d 1031, to Ninth Circuit plaintiffs to be invalid. The policy guidance said that
6 USCIS will follow Freeman in the Ninth Circuit only if, prior to the death of the

7 citizen spouse, the alien filed an adjustment application. Additionally, the

8 guidance said that USCIS will automatically revoke the approval of a Form I-130
9
petition for an alien whose spouse has died, unless the alien widow or widower
10
11 presents a request for humanitarian reinstatement under 8 C.F.R.
12 § 205.1(a)(3)(i)(C)(2) and submits a substitute affidavit of support from a

13 qualified substitute sponsor. The Court held that Freeman applies equally to those
14 cases in which the Form I-485 application was not filed prior to the citizen
15
spouse's death, and that the automatic revocation regulation, 8 C.F.R. § 205.1, is
16
17 invalid as a matter of law as applied to Ninth and Sixth Circuit plaintiffs. The
18 Court ordered Defendants to reopen the alien relative petitions, adjustment

19 applications, and immigrant visa applications for Plaintiffs in the Ninth and Sixth
20 Circuits, and to adjudicate them in a manner consistent with the order.2 That
21
injunction, not the entirety of the order issued on April 28, 2009, is the subject of
22
23 this motion. Pursuant to the terms of the Settlement Agreement, the parties jointly
24 apply for vacatur of the injunction.

25

26

2 The Court also found that Plaintiffs in the Ninth Circuit subclass who

27 entered on K-1 fiancé visas are entitled to summary judgment based upon Choin v.

28

Mukasey, 537 F.3d 1116 (9th Cir. 2008).
Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

3

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 7 of 18 Page ID #:1482

1

Defendants filed a notice of appeal on June 29, 2009. The Ninth Circuit has

2 dismissed that appeal without prejudice to reinstatement pending this Court’s 3 determination on the Settlement Agreement.
4
B. Subsequent Legislation
5
On October 28, 2009, President Barack Obama signed into law the
6
7 Department of Homeland Security Appropriations Act of 2010 ("DHSAA"), which
8 included an amendment to 8 U.S.C. § 1151(b)(2)(A)(i) striking the phrase

9 requiring that an alien who applies to adjust status as an immediate relative spouse

10 of a U.S. citizen must be married to the U.S. citizen spouse-petitioner for at least 11 two years, and providing other assorted relief. Pub. L. 111-83, § 568(c)-(e), 123
12
Stat. 2142, 2186-88 (2009). The amendment became effective immediately upon
13
enactment, and applies to any visa petition or adjustment application pending on
14
15 or after the date of enactment. On December 14, 2009, USCIS published a new
16 guidance memorandum on the processing of applications filed by surviving

17 spouses of deceased U.S. citizens ("Guidance") (attached hereto as Exhibit 2).

18 C. Proposed Settlement Agreement

19

The parties reached a settlement that will dispose of this action. The terms

20
of the parties’ settlement are embodied in the Settlement Agreement. See Exhibit
21
1. The settlement confers significant benefits on Plaintiffs and all Class Members.
22

23 The key terms of the Settlement Agreement provide for both parties to file a joint

24 motion in the Court of Appeals for a remand to the district court for approval of

25 the settlement. In addition, the Settlement Agreement requires the parties to jointly

26 move the district court for vacatur of the injunction. The agreement also requires

27 adjudication of all cases of class members in accordance with the Guidance.

28 Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

4

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 8 of 18 Page ID #:1483

1

In summary, USCIS will re-open any Class Member's Form I-130 petition

2 that is still pending or was denied and convert it to a widow(er)'s Form I-360 3 self-petition, to be adjudicated under 8 U.S.C. § 1151(b)(2)(A)(i), as amended by
4
§ 568(c) of Public Law 111-83. Form I-130 petitions that were approved but later
5
revoked under 8 C.F.R. § 205.1(a)(3)(i)(C) will be deemed reinstated. USCIS will
6
7 also adjudicate any Class Member's Form I-485 application under the new law if
8 the Class Member is still in the United States and if USCIS still has jurisdiction

9 over the Form I-485, i.e., removal proceedings have not been commenced. USCIS

10 will re-open Forms I-485 that were denied.

11

The settlement's terms also cover surviving spouses admitted to the United

12
States as K non-immigrant fiancés. Class Members who abandoned his or her
13
adjustment applications by departing the United States will be able to apply for an
14

15 immigrant visa following approval of the Class Member's Form I-360 self-

16 petition. For purposes of 8 U.S.C. § 1182(a)(9)(B), a Class Member shall be

17 deemed not to have accrued any unlawful presence within the United States on or

18 before October 28, 2009. All converted Form I-360 self-petitions will carry the 19 filing date of the Form I-130 petition originally filed. As a result, under 8 U.S.C.
20
§ 1151(f)(1), any unmarried sons or daughters of Class Members who were under
21
21 years of age at the time the Form I-130 petition was filed will still be
22
23 considered to be under 21 years of age, for purposes of determining whether they
24 qualify as derivative beneficiaries of the Form I-360 self-petition.

25

The Settlement Agreement sets up a dispute resolution structure, and will

26 remain in effect for two years after district court approval. Pursuant to Fed. R.

27 Civ. P. 23(h), the parties agreed in the Settlement Agreement to the payment by

28 Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

5

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 9 of 18 Page ID #:1484

1 Defendants of the sum of $125,000.00 in settlement of all claims for attorneys’

2 fees and costs that could have been or will be claimed in this litigation. This total 3 includes $4,787.80 in costs taxable under 28 U.S.C. § 1920. This issue was
4
negotiated separately from the other terms included in the Settlement Agreement.
5
Pursuant to Rule 23(e)(3), the parties hereby notify the Court that, other
6
7 than as stated in the Settlement Agreement, there are no agreements requiring
8 disclosure that were “made in connection with the propos[ed settlement].” See

9 Fed. R. Civ. P. 23(e)(3).

10 D. Proposed Notice to the Class

11

Notice of the proposed settlement is to be provided to Class Members by

12
publication. See Exhibit 1 ¶ 25. The Notice contains a summary of the terms of
13

the settlement, a description of who qualifies as a Class Member, instructions on
14

15 how to obtain further information about the settlement, and procedures for

16 objecting and appearing at the Fairness Hearing. See Proposed Notice, Exhibit 3.

17 The Notice and the Settlement Agreement will be prominently displayed by the

18 parties in appropriate places on the USCIS and Parrilli Renison public websites; 19 Class Counsel will provide the Notice to the Class and the Settlement Agreement
20
for posting on the American Immigration Lawyers Association website, in
21
addition to a number of popular websites utilized by immigrants and immigration
22
23 lawyers, and including the website for the non-profit group Surviving Spouses
24 Against Deportation; and Defendants will distribute the Notice and the Settlement

25 Agreement through the USCIS Community Relations Program to the existing

26 network of community-based and non-profit organizations which provide advice

27 and assistance to immigrants.

28 Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

6

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 10 of 18 Page ID #:1485

1

Class Members will be notified of the Settlement Agreement both before

2 and after the settlement is given final approval. These notices are appropriate

3 under Rule 23(e)(1) and will enable Class Members to obtain the relief they are
4
entitled to under the Settlement Agreement.
5
III. ARGUMENT
6
7 A. Standard of Review

8

Settlements and voluntary conciliation are “the preferred means of dispute

9 resolution.” In re Syncor Erisa Litigation, 516 F.3d 1095, 1101 (9th Cir. 2008)

10 (additional citation omitted). The public policy favoring settlement agreements is 11 particularly strong in complex class action litigation. Id. The Federal Rules of
12
Civil Procedure and the Local Rules of the United States District Court, Central
13
District of California, also encourage settlement of cases. Id., citing Fed. R. Civ.
14
15 P. 16(a)(5) (one of the five purposes of a pretrial conference is to facilitate
16 settlement); L.R. 16-2.9 (requiring parties to exhaust all possibilities of

17 settlement); L.R. 16-15 to 15.9 (setting forth policies and procedures for

18 settlement including encouraging disposition of civil litigation by settlement by 19 any reasonable means).
20
The court's role in the settlement of a class action is to protect unnamed
21
class members from unfair settlements affecting their rights. Id. at 1100-02
22
23 (additional citations omitted). Under Fed. R. Civ. P. 23, the court evaluates
24 whether the proposed settlement is fundamentally fair, reasonable and adequate.

25 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) (additional citation

26 omitted). One requirement is that adequate notice of the settlement be provided to

27 the class members. Id. at 1025; Fed. R. Civ. P. 23(e)(1).

28 Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

7

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 11 of 18 Page ID #:1486

1 B. The Proposed Settlement Is Fair, Reasonable, and Adequate

2

The Court should promptly grant preliminary approval of the Settlement

3 Agreement and approval of the form and method of notifying the class of the
4
settlement because the terms of the settlement are fair, reasonable, and beyond
5
adequate. While the Court has discretion in evaluating preliminarily the
6
7 settlement’s fairness and reasonableness, courts in this Circuit are generally

8 guided at this stage by the same factors that govern final approval of class action

9 settlements:

10

the strength of the plaintiffs' case; the risk, expense, complexity, and

11

likely duration of further litigation; the risk of maintaining class

action status throughout the trial; the amount offered in settlement;

12

the extent of discovery completed and the stage of the proceedings;

the experience and views of counsel; the presence of a governmental

13

participant; and the reaction of the class members to the proposed

14

settlement.

15 Hanlon, 150 F.3d at 1026 (additional citations omitted). Additionally, the

16 settlement must not be the result of collusion. Id.

17

The Settlement Agreement was negotiated between the parties at arm’s

18
length, and there is no suggestion of fraud or collusion. “As a general principle,
19
‘the courts respect the integrity of counsel and presume the absence of fraud or
20

21 collusion in negotiating the settlement, unless evidence to the contrary is

22 offered.’” Hemphill v. San Diego Ass’n of Realtors, Inc., 225 F.R.D.

23 616, 621 (S.D. Cal. 2005) (citing A. Conte and H. Newberg, Newberg on Class

24 Actions § 11.51(4th ed. 2002) at 158-59). This case has been vigorously contested

25 by both sides. The parties engaged in extensive briefing and have negotiated – at

26
arm’s length – a resolution of the action, resulting in the Settlement Agreement.

27

Furthermore, because Plaintiffs sued for declaratory and injunctive relief and do
28 Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

8

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 12 of 18 Page ID #:1487

1 not seek monetary damages, and any attorneys’ fees awarded must be separately

2 approved by the court, there is no danger that Plaintiffs colluded with the

3 government Defendants to sacrifice the interests of Class Members for their own
4
monetary gain. As this Settlement Agreement was the result of the fair
5
functioning of the adversarial process, the parties did not collude to reach the
6

7 settlement.

8

The parties note that the factors set forth in Hanlon are not particularly

9 useful to determining whether the terms of the settlement reached in this case are

10 fair, reasonable, and adequate because of the unusual procedural posture of the 11 case. The litigation has been terminated following the issuance of a permanent
12
injunction by the Court. Therefore, factors such as the strength of Plaintiffs' case,
13
and the complexity and likely duration of further litigation are no longer relevant.
14
15 Class counsel is of the opinion that this settlement is a favorable outcome for the
16 class. Class counsel arrived at this conclusion after extensive investigation and

17 negotiations with Defendants’ counsel. Further, there has been no indication that

18 individual Class Members will oppose the settlement.

19

The Court should preliminarily approve the Settlement Agreement because

20
the terms of the settlement are fair, reasonable, and beyond adequate. The
21
Settlement Agreement provides the settlement class with the most important relief
22

23 sought by the Second Amended Complaint. Specifically, in the Settlement

24 Agreement, Defendants agree to adjudicate Class Members’ applications in

25 accordance with the Guidance. Therefore, the death of the citizen petitioner will

26 no longer disqualify an immediate relative from lawful permanent resident status.

27 Accordingly, the Settlement Agreement falls within the reasonable range of

28 Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

9

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 13 of 18 Page ID #:1488

1 possible recovery for Plaintiffs, and its fairness counsels for preliminary approval

2 of the agreement.

3 C. The Court Should Approve Parties’ Proposed Form and Method of Class 4 Notice

5

Rule 23(e)(1) requires that the court “direct notice in a reasonable manner to

6 all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1).
7 Notice is satisfactory if it ‘generally describes the terms of the settlement in
8
sufficient detail to alert those with adverse viewpoints to investigate and to come
9
forward and be heard.’” Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th
10
11 Cir.2004) (quoting Mendoza v. Tucson Sch. Dist. No. 1, 623 F.2d 1338, 1352 (9th
12 Cir.1980)). Here, the proposed notice procedures involve the posting of the

13 Notice and the Settlement Agreement on the USCIS and Parrilli Renison public

14 websites, and the American Immigration Lawyers Association website, in addition
15 to a number of popular websites utilized by immigrants and immigration lawyers, 16 and including the website for the non-profit group Surviving Spouses Against
17
Deportation. Defendants will also distribute the Notice and the Settlement
18
19 Agreement through the USCIS Community Relations Program to the existing
20 network of community-based and non-profit organizations which provide advice

21 and assistance to immigrants.

22

These notification procedures are specifically tailored to ensure that Class

23 Members will be informed of the settlement and their rights to object. In
24
particular, the parties believe that notice by means of the various websites and
25
distribution through the USCIS Community Relations Program is reasonably
26
27 calculated to inform Class Members of the settlement, as these are the most likely

28 Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

10

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 14 of 18 Page ID #:1489

1 locations potential applicants will search for adjudication and/or class-related

2 information pertinent to surviving spouses of U.S. citizens.3

3

The contents of the Notice are adequate to inform Class Members of their

4 rights. The Notice contains a description of the certified class and sub-class; a
5
summary of the litigation, subsequent legislation, and the proposed settlement; and
6
instructions about how to file an objection. The proposed Notice here provides
7
8 ample information to enable potential Class Members to determine whether they

9 qualify for relief, what relief the settlement will provide, and how to file an

10 objection. The Notice is therefore reasonable and satisfies Rule 23(e)’s

11 requirements.
12 D. The Attorneys’ Fees and Expenses Provided for by the Settlement 13 Agreement Are Reasonable

14

As part of the Settlement Agreement, Defendants have agreed to pay

15 attorneys’ fees and costs to Class Counsel. The Court may award reasonable
16 attorneys’ fees and nontaxable costs that are authorized by the parties’ agreement
17
in a class action settlement. See Fed. R. Civ. P. 23(h). The negotiated fee award
18
19 of $125,000.00 is entirely reasonable, and fully consistent with the law of this

20 District, given the complexity of this case, the substantial work and time invested

21 to litigate and ultimately negotiate a settlement, and the significant benefits and

22 relief provided to the putative class as a result. The parties thus submit that the
23

24

25

3 Individual Class Members cannot be readily identified to warrant

individual notice by mail, as USCIS does not maintain records in a manner that

26 would enable the affirmative identification of applicants who would qualify as

27 Class Members. Such notice also is not required by Rule 23(e) or the U.S.

28

Constitution.
Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

11

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 15 of 18 Page ID #:1490

1 award of fees and costs provided by the Settlement Agreement should be

2 preliminarily approved by the Court.

3 E. The Court Should Vacate the Injunction Contained Within The Order 4 of April 28, 2009.

5

As part of the settlement agreement, the parties agrees to seek vacatur of the

6 portion of the Court’s Order of April 28, 2009, enjoining USCIS to adjudicate all

7 alien relative petitions and adjustment applications of class members in a manner
8 consistent with the order. The parties do not seek vacatur of the entire decision.
9
Under Fed. R. Civ. P. 60(b), a court may relieve a party or its legal
10
representative from an order where applying the order prospectively is no longer
11
12 equitable, or any other reason that justifies relief. Both parties agree that DHSAA
13 § 568 and USCIS’s Guidance regarding the processing of applications under that

14 section provide potential benefits to Class Members not contained within the four

15 corners of this Court’s April 28, 2009 Order. Moreover, as the Order interprets a

16 section of the Immigration and Nationality Act not specifically amended by
17
DHSAA § 568, Defendants arguably are bound by the injunction and would be
18
unable to adjudicate Class Member’s petitions and application under the new
19
20 provisions.

21

Accordingly, as part of the final Order approving the settlement agreement,

22 both parties request that this Court vacate the injunction contained within the

23 Order of April 28, 2009, as it prospectively is no longer equitable.
24 //
25
//
26
//
27

28 Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

12

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 16 of 18 Page ID #:1491

1

IV. CONCLUSION

2

For the foregoing reasons, the Court should preliminarily approve the

3 Settlement Agreement, approve the form and method of the notice to the class,
4 schedule appropriate dates for the Fairness Hearing and other proceedings
5
necessary to give final approval to the settlement. Following the Fairness Hearing,
6
the Court should enter final judgment and vacate the injunction.
7
8 Dated: January 25, 2010

9

10

Respectfully submitted,

11 Attorneys for Defendants:
12 13

TONY WEST United States Department of Justice Assistant Attorney General Civil Division

14 15 16 17 18 19 20 21 22 23
24 Attorneys for Plaintiffs
25 26 27

/s/Elizabeth J. Stevens Elizabeth J. Stevens Assistant Director District Court Section Office of Immigration Litigation
/s/ Patricia E. Bruckner Patricia E. Bruckner Trial Attorney, District Court Section Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 532-4325 Facsimile: (202) 616-8962 Email: Patricia.Bruckner@usdoj.gov
Alan R. Diamante, Esq. Law Office of Alan R. Diamante 523 W. Sixth Street, Suite 210 Los Angeles, California 90014

28 Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

13

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 17 of 18 Page ID #:1492

1

/s/ Brent W. Renison

Brent W. Renison, Esq.

2

Parrilli Renison LLC

3

5285 SW Meadows Road, Suite 175 Lake Oswego, Oregon 97035

4
Attorneys for Plaintiffs
5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

14

Case 2:07-cv-05696-CAS-MAN Document 160 Filed 01/25/10 Page 18 of 18 Page ID #:1493

1
CERTIFICATE OF SERVICE
2
3 Case No. CV07-05696 (CAS)

4

I hereby certify that on this 25th day of January 2010, true and correct

copies of the foregoing NOTICE OF MOTION AND JOINT MOTION FOR

5 PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND

6

APPROVAL OF NOTICE TO CLASS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION was served pursuant to the

7 district court's ECF system as to the following ECF filers:

8 Alan R. Diamante, Esq.

9

Law Office of Alan R. Diamante 523 W. Sixth Street, Suite 210

10 Los Angeles, California 90014

11 Brent W. Renison, Esq.

12

Parrilli Renison LLC 5285 SW Meadows Road, Suite 175

13 Lake Oswego, Oregon 97035

14

15

/s/ Elizabeth J. Stevens Elizabeth J. Stevens

16

Assistant Director, District Court Section

Office of Immigration Litigation

17

18

19

20

21

22

23

24

25

26

27

28 Notice of Motion and Joint Motion For Preliminary Approval of Class Action Settlement and Approval of Notice to

Class, and Memorandum of Points and Authorities in Support of Motion

CV07-05696 (CAS)

Case 2:07-cv-05696-CAS-MAN Document 160-2 Filed 01/25/10 Page 1 of 14 Page ID #:1494

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

- - - - - - - - - - - - - - - - - - - - - - - - - - - - -X CAROLYN ROBB HOOTKINS, et al.,

Plaintiffs,

Case No. CV07-5696 (CAS)

- against -

Protected under F.R.E. 408

JANET NAPOLITANO, et al.,

Defendants.

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

STIPULATION AND AGREEMENT OF SETTLEMENT AND RELEASE

Plaintiffs in the above-captioned matter, on behalf of themselves, the Class and all Class Members (as defined below), and Defendants Janet Napolitano, Secretary of Homeland Security and Alejandro Mayorkas, Director of the United States Citizenship and Immigration Services (“USCIS”) (together, “Defendants”), by and through their attorneys, hereby enter into this Stipulation and Agreement of Settlement, and Release (the “Stipulation”), as of the Approval date as defined in paragraph 4. WHEREAS:
A. Plaintiffs filed suit on behalf of themselves and all others similarly situated against Defendants in the United States District Court for the Central District of California on August 30, 2007, seeking class certification and declaratory and injunctive relief, and filed an Amended Complaint on March 20, 2008;
B. By Order of January 6, 2009, the Court granted Plaintiffs’ Motion for Class Certification in part and denied it in part;

Case 2:07-cv-05696-CAS-MAN Document 160-2 Filed 01/25/10 Page 2 of 14 Page ID #:1495
C. By Order of April 28, 2009, the Court granted Plaintiffs’ Motion for Summary Judgment in part and denied it in part, granting injunctive relief;
D. On October 28, 2009, President Barack Obama signed into law the Department of Homeland Security Appropriations Act of 2010, which included an amendment to 8 U.S.C. § 1151(b)(2)(A)(i) striking the words “for at least two years at the time of the citizen’s death” from the second sentence, and providing other assorted relief. Pub. L. 111-83, § 568(c)-(e), 123 Stat. 2142, 2186-88 (2009). The amendments became effective immediately upon enactment, and apply to any visa petition or adjustment application pending on or after the date of enactment.
E. Defendants deny all liability with respect to the Action, deny that they have engaged in any wrongdoing, deny the allegations in the Amended Complaint filed in the Action, deny that they committed any violation of law, deny that they acted improperly in any way, and deny liability of any kind to Plaintiffs, the Class, or the Class Members, but have agreed 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 the Action and any and all Settled Claims.
F. Class 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 negotiating a settlement which is consistent with the interests of Plaintiffs, the Class, and all Class Members.
G. Class Counsel have concluded that the terms and conditions of this Stipulation are fair, reasonable, and in the interests of Plaintiffs, the Class, and all Class Members; have agreed that Defendants should be released from the Settled Claims pursuant to the terms and provisions of this Stipulation; and have agreed to the dismissal of the Action with prejudice, after considering the substantial benefits that Plaintiffs, the Class, and all Class Members will

Case 2:07-cv-05696-CAS-MAN Document 160-2 Filed 01/25/10 Page 3 of 14 Page ID #:1496
receive from settlement of the Action, the risks of litigation, and the desirability of permitting the Settlement to be consummated as provided by the terms of this Stipulation.
NOW, THEREFORE, it is hereby STIPULATED AND AGREED, by and among the parties to this Stipulation, through their respective attorneys, subject to the approval of the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, in consideration of the benefits flowing to the parties hereto from the Settlement, that the Settled Claims as against Defendants shall be compromised, settled, forever released, barred, and dismissed with prejudice, upon and subject to the following terms and conditions:
I. DEFINITIONS Wherever used in this Stipulation, the following terms have the meanings set forth below:
1. “Action” means the above-captioned action pending in the United States District Court for the Central District of California (docket no. CV07-5696).
2. “Class” means, for purposes of this settlement only, a Plaintiff class and subclass pursuant to Rule 23 of the Federal Rules of Civil Procedure as certified by the Court on January 6, 2009, comprising:
A. All aliens whose United States citizen spouse died before the couple’s two-year wedding anniversary, and whose citizen spouse filed an I-130 petition and a form I-864 or I-864EZ affidavit of support on behalf of the alien spouse, so long as he or she can also demonstrate that (1) the Form I-130 petition is now pending with or was adjudicated by a USCIS office located within the jurisdiction (2) at the time of the citizen spouse’s death, either the citizen spouse or the alien spouse resided within the jurisdiction of the Ninth Circuit; AND
B. All aliens who, within ninety days of admission to the United States as a nonimmigrant fiancé, married the petitioning United States citizen, and whose citizen spouse died before the couple’s two-year wedding anniversary, so long as he or she can also demonstrate that the citizen 3

Case 2:07-cv-05696-CAS-MAN Document 160-2 Filed 01/25/10 Page 4 of 14 Page ID #:1497
spouse filed an I-129F petition and a form I-864 or I-864EZ affidavit of support on behalf of the alien spouse, and (1) the Form I-129F petition is now pending with or was adjudicated by a USCIS office located within the jurisdiction of the Ninth Circuit, or (2) at the time of the citizen spouse’s death, either the citizen spouse or the alien spouse resided within the jurisdiction of the Ninth Circuit. The class ceases to exist, and all membership in the Class ends, upon the termination of this Stipulation pursuant to paragraph 35. 3. “Class Member” means any Person included in the Class. 4. “Approval Date” means the date upon which the Settlement contemplated by this Stipulation shall become effective, as set forth in paragraph 28 below. 5. “Plaintiff(s)” means Carolyn Robb Hootkins, Ana Maria Moncayo-Gigax, Suzanne Henriette De Mailly, Sara Cruz Vargas de Fisher, Raymond Lockett, Elsa Cecilia Brenteson, Pauline Marie Gobeil, Rose Freeda Fishman-Corman, Khin Thidar Win, Li Ju Lu, Purita Manuel Poindexter, Tracy Lee Rudl, and Dieu Ngoc Nguyen. 6. “Class Counsel” means Parrilli Renison LLC, 5285 S W Meadows Road, Suite 175, Lake Oswego, Oregon 97035; and Alan R. Diamante Law Offices, 523 W. Sixth Street, Suite 210, Los Angeles, California, 90014. Should these entities change their names or merge with other entities, those new entities shall also qualify as Class Counsel. 7. “Defendants” means any and all Defendants, their predecessors and successors, their departments and agencies, and their past or present agents, employees, and contractors. 8. “Settled Claims” means any and all actions, suits, claims, demands, rights, liabilities, and causes of action, of every nature and description, whether known or unknown, accrued or unaccrued, whether based on federal, state, local, statutory, or common law or any other law, rule, or regulation, that were asserted or that could have been asserted or could be asserted in this Action in any forum, that Plaintiffs, the Class, the Class Members or any of them, or any of their heirs, representatives, attorneys, successors, assigns, and any person
4

Case 2:07-cv-05696-CAS-MAN Document 160-2 Filed 01/25/10 Page 5 of 14 Page ID #:1498
they represent, in the past had, now have, or during the pendency of the Stipulation might have against Defendants or any claims, which regard, concern, relate to, refer to, arise out of, or are based upon, in any way: (a) the allegations, transactions, facts, matters, occurrences, representations, omissions, disclosures, statements, failure to disclose, or failure to act involved, set forth, referred to or that were, could be, or could have been asserted in the Action, including known and Unknown Claims as herein defined, and whether or not concealed or hidden; and (b) Defendants’ defense of or settlement of the Action except that Plaintiffs and Class members may raise Settled Claims, where applicable, in removal proceedings following a denial of their applications for adjustment of status or in a petition for review arising from such removal proceedings.
9. “Settlement” means the settlement contemplated by this Stipulation. 10. As used herein, “Unknown Claims” shall mean any and all actions, suits, claims, demands, rights, liabilities, and causes of action relating to or arising from the allegations in the Action that Plaintiffs, the Class, or any of the Class Members do not know of or suspect to exist in their favor at the time of the release of Defendants, including but not limited to those that, if known by them, might have affected their agreement to the Settlement. 11. “Widows Guidance” means the December 2, 2009, USCIS Memorandum, entitled “Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children (REVISED),” which has been posted on the USCIS website.
II. RELEASE; SCOPE AND EFFECT OF RELEASE 12. This Stipulation shall be a full and final disposition of the Action with prejudice and of any and all Settled Claims as against all Defendants. 13. On the Approval Date, Plaintiffs, the Class, and the Class Members, on behalf of themselves, their heirs, executors, administrators, representatives, attorneys, successors, assigns, agents, affiliates, and partners, and any Persons they represent, shall be deemed to have, and by operation of the Final Judgment shall have, fully, finally, and forever released, relinquished, and discharged Defendants of and from any and all of the Settled Claims, and
5

Case 2:07-cv-05696-CAS-MAN Document 160-2 Filed 01/25/10 Page 6 of 14 Page ID #:1499
Plaintiffs, the Class, and the Class Members shall forever be barred and enjoined from bringing or prosecuting any Settled Claim against any Defendants.
III. PROCESSING OF CLASS MEMBERS’ PETITIONS AND APPLICATIONS 14. USCIS will adjudicate Class Members’ claims according to the Widow’s
Guidance. In particular: A. Any Class Member’s Form I-130 that is still pending with USCIS is
converted to, and will be adjudicated as, a widow(er)’s Form I-360. B. If USCIS denied the Form I-130, the Form I-130 is reopened, as of
December 2, 2009, and converted to a Form I-360. C. Any pending or reopened Form I-130 that is converted to a Form I-360 will
be adjudicated under 8 U.S.C. § 1151(b)(2)(A)(i) as amended by § 568(c) of Public Law 111-83. The Class Member must establish that he or she was married to the deceased citizen when the deceased citizen died, that their marriage was bona fide, that they were not divorced or legally separated when the deceased citizen died, and that the Class Member has not remarried. All other requirements for approval of a visa petition apply to the adjudication of the case, including 8 U.S.C. §§ 1154(c), 1154(g) and 1255(e)(3), if applicable.
D. If, as in the case of Liju LU and Class Members represented by her, a Form I-130 was approved, but the approval was revoked under 8 C.F.R. § 205.1(a)(3)(i)(C), the approval is deemed reinstated as of October 28, 2009.
E. USCIS will also adjudicate any Class Member’s Form I-485 in light of 8 U.S.C. § 1151(b)(2)(A)(i) as amended by § 568(c) of Public Law 111-83, if the Class Member is still in the United States and USCIS still has jurisdiction of the Form I-485. If USCIS had denied the Form I-485, the Form I-485 is reopened, as of December 2, 2009.
6

Case 2:07-cv-05696-CAS-MAN Document 160-2 Filed 01/25/10 Page 7 of 14 Page ID #:1500
F. For a Class Member in the subclass as defined in paragraph 2(B) (relating to aliens admitted as K nonimmigrants) there will be no Form I-130 if the couple married within 90 days of the K-1’s admission. In this situation, for purposes of adjudicating of a Form I-485 that was pending on October 28, 2009, the K-1 nonimmigrant, and any K-2 children, will be deemed to be the beneficiaries of an approved Form I-360.
G. If a Class Member had abandoned his or her adjustment application by departing the United States without a grant of advance parole, or by leaving with a grant of advance parole but not returning before the expiration of the advance parole period, the approval of the Class Member’s Form I-360 will permit the Class Member to apply for an immigrant visa.
H. For purposes of 8 U.S.C. § 1182(a)(9)(B), a Class Member shall be deemed not to have accrued any unlawful presence within the United States on or before October 28, 2009.
I. Any Class Member who was removed from the United States will be required to file an individual Form I-212, Application for Permission to Reapply for Admission, to waive inadmissibility under 8 U.S.C. § 1182(a)(9)(A). The Form I-212 will be accepted without regard to the length of time the Class Member has remained outside of the United States.
J. All converted Form I-360 Self-Petitions will carry the filing date of the Form I-130 Petition originally filed. As a result, under 8 U.S.C. § 1151(f)(1), any unmarried sons or daughters of Class Members who were under 21 years of age at the time the Form I-130 Petition was filed will still be considered to be under 21 years of age, for purposes of determining whether they qualify as derivative beneficiaries of the Form I-360 Self-Petition.
7

Case 2:07-cv-05696-CAS-MAN Document 160-2 Filed 01/25/10 Page 8 of 14 Page ID #:1501
15. If USCIS denies a Class Member’s converted Form I-360, the Class Member may seek administrative appeal or judicial review to the extent permitted by law.
16. If USCIS denies a Class Member’s Form I-485, then, unless the alien is in a lawful nonimmigrant status, or is not entitled to a removal proceeding, USCIS will initiate a removal proceeding. The Class Member may apply for adjustment of status before the immigration judge, unless the immigration judge lacks jurisdiction under 8 C.F.R. § 1245.2(a)(1).
IV. DISSEMINATION OF INFORMATION 17. On December 2, 2009, USCIS issued the Widow’s Guidance to inform all relevant staff at USCIS District Offices and Service Centers about their responsibilities under section 568(c) of Public Law 111-83. This written guidance is also posted on the USCIS website. 18. USCIS also provided a copy of the December 2, 2009, Widow’s Guidance to the U.S. Department of State so that the U.S. Department of State can inform embassies and consulates overseas regarding section 568(c) of Public Law 111-83 and its effect on Class Members who may seek immigrant visas, rather than adjustment of status. 19. Plaintiffs agree that nothing in this Stipulation shall limit Defendants’ authority to promulgate regulations, issue policy directives and guidance, or to take other appropriate action, as necessary, without any notice to Plaintiffs, concerning the processing of related applications including, but not limited to, applications for adjustment of status and affidavit of support requirements. V. DISPUTE RESOLUTION PROCEDURES; CONTINUING JURISDICTION 20. The parties agree that this Court will retain continuing jurisdiction for the duration of the Stipulation to supervise the implementation of this Stipulation and to enforce its terms, and that the terms of this Stipulation shall be incorporated into the Order of the Court approving the Settlement.
8

Case 2:07-cv-05696-CAS-MAN Document 160-2 Filed 01/25/10 Page 9 of 14 Page ID #:1502
21. The parties agree that this Court will not be asked to exercise jurisdiction to supervise the implementation of this Stipulation or to enforce its terms until exhaustion of the dispute resolution process in paragraphs 22-24 has occurred.
22. Starting from the Approval Date, upon learning of any fact or facts that constitute the basis for asserting that a party, without notice or good cause shown, has completely and materially failed to perform an affirmative act imposed by the Stipulation in paragraphs 14-18, the initiating party shall promptly notify the other party in writing of the fact or facts that support the contention and request a written response with respect thereto. Such allegations of violations of this Stipulation must be substantiated with specific, detailed, and timely information about the violation sufficient to enable the responding party to investigate and respond. Within 30 days after receipt of the notice, the responding party shall notify the initiating party in writing of the responding party’s position and any action it has taken or intends to take in connection therewith.
23. During the 60 days following the completion of the appropriate process outlined in paragraph 22, the parties shall negotiate in good faith in an effort to resolve any remaining disputes. The parties agree that this negotiation period will be considered exhausted if the negotiations have reached an impasse.
24. Should the parties be unable to resolve any issues raised between them, after exhausting all of the applicable procedures in paragraph 22-23, such issues must be raised before a Magistrate Judge of the Central District of California upon whom all parties agree, who shall hear, mediate, and, to the fullest extent possible, obtain the agreement of both parties to resolve the issue(s) in dispute.
V. TERMS OF ORDER FOR NOTICE, HEARING AND FINAL JUDGMENT 25. Concurrently with their filing of this Stipulation, Class Counsel and Defendants’
Counsel shall jointly apply to the Court for preliminary Court approval of the Settlement contemplated by this Stipulation, vacatur of the injunction entered by the Court on April 28,
9

Case 2:07-cv-05696-CAS-MAN Document 160-2 Filed 01/25/10 Page 10 of 14 Page ID #:1503
2009 as superseded by section 568 of the Department of Homeland Security Appropriations Act of 2010, and entry of a Preliminary Approval Order, substantially in the form appended hereto as Exhibit A. Such Preliminary Approval Order will include approval of a Notice to the Class, as well as a finding that the following satisfies the publication requirements of Fed. R. Civ. P. 23: within five business days of the date of the Court’s preliminary approval of this Stipulation (A) both parties will post the Notice to the Class and this Stipulation in appropriate places on the USCIS and Parrilli Renison public websites, (B) Class Counsel will provide the Notice to the Class and this Stipulation for posting on the American Immigration Lawyers Association website, in addition to a number of popular websites utilized by immigrants and immigration lawyers, and including the website for the non-profit group Surviving Spouses Against Deportation, and (C) Defendants will distribute the Notice to the Class and this Stipulation through the USCIS Community Relations Program to the existing network of community-based and non-profit organizations which provide advice and assistance to immigrants.
26. If the Settlement contemplated by this Stipulation is approved by the Court, counsel for the parties shall request that the Court enter Final Judgment, vacating the injunction and dismissing all claims against Defendants with prejudice, substantially in the form appended hereto as Exhibit B.
27. Within 10 days following the Court’s entry of the Final Judgment, the Parties will publish a Notice of Final Settlement Agreement according to the methods set forth in paragraph 25. The language of the Notice of Final Settlement Agreement will be agreed upon by the parties and will constitute an updated Notice to the Class.
VI. EFFECTIVE DATE OF SETTLEMENT, WAIVER OR TERMINATION 28. This Stipulation will be in effect as of the date when all of the following shall have occurred: (A) entry of the Preliminary Approval Order in all material respects in the form appended hereto as Exhibit A; (B) approval by the Court of this Stipulation, following Notice to the Class and a hearing, as prescribed by Rule 23 of the Federal Rules of Civil Procedure;
10

Case 2:07-cv-05696-CAS-MAN Document 160-2 Filed 01/25/10 Page 11 of 14 Page ID #:1504
and (C) entry by the Court of Final Judgment, in all material respects in the form appended hereto as Exhibit B.
29. In the event that the District Court’s approval of the Stipulation or the Final Judgment referenced in paragraph 28(C) is voided on appeal, vacated, or terminated, the parties’ good-faith adherence to the terms of this Stipulation prior to said voidance, vacatur or termination shall not be considered unlawful.
30. Defendants’ Counsel or Class Counsel shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) days of (A) the Court’s declining to enter the Preliminary Approval Order or modification of that Preliminary Approval Order in any material respect; (B) the Court’s declining to approve the Settlement embodied in this Stipulation, or any material part of it; (C) the Court’s declining to enter the Final Judgment or modification of the Final Judgment in any material respect; (D) the date upon which the Final Judgment is modified, reversed, or vacated in any material respect by the Court, the Court of Appeals or the United States Supreme Court; or (E) the date upon which an Alternative Judgment is modified, reversed, or vacated in any material respect by the Court, the Court of Appeals or by the United States Supreme Court.
31. Except as otherwise provided herein, in the event the Settlement is terminated or modified in any material respect or fails to become effective for any reason, then the Settlement shall be without prejudice and none of its terms shall be effective or enforceable; the parties to this Stipulation shall be deemed to have reverted to their respective status in the Action as of the date and time immediately prior to the execution of this Stipulation; and except as otherwise expressly provided, the parties shall proceed in all respects as if this Stipulation and any related orders had not been entered. In the event the Settlement is terminated or modified in any material respect, the Defendants shall be deemed not to have waived, modified, or be estopped from asserting any additional defenses available to them.
11

Case 2:07-cv-05696-CAS-MAN Document 160-2 Filed 01/25/10 Page 12 of 14 Page ID #:1505
VII. TERMINATION OF OBLIGATIONS 32. The obligations set forth in this Stipulation shall terminate after two (2) years from the Approval Date without further action by the Court.
VIII. NO ADMISSION OF WRONGDOING 33. 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 Defendants to enforce the laws of the United States against Class Members notwithstanding the terms of this Stipulation, consistent with the Constitution, laws of the United States, and applicable regulations;
B. shall not be offered or received against Defendants as evidence of, or construed as or deemed to be evidence of, any presumption, concession, or admission by any Defendant of the truth of any fact alleged by 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 Defendants; or any admission by Defendants of any violations of, or failure to comply with, the Constitution, laws or regulations; and
C. shall not be offered or received against 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 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, Defendants may refer to it and rely upon it to effectuate the liability protection granted them hereunder.
IX. ATTORNEYS’ FEES 34. Within 120 days of entry of a final judgment in this case approving this Stipulation, Defendants will deliver to Class Counsel the sum of $125,000, in settlement of all
12

Case 2:07-cv-05696-CAS-MAN Document 160-2 Filed 01/25/10 Page 13 of 14 Page ID #:1506
claims for attorneys’ fees and costs that could have been or will be claimed in this litigation. This total includes $4,787.80 in costs taxable under 28 U.S.C. § 1920. Defendants shall bear any costs incurred in connection with notifying the class of the terms and conditions of this Stipulation.
X. ADDITIONAL PROVISIONS 35. This Stipulation, and the obligations incurred herein, shall be in full and final disposition of the Action with prejudice and any and all Settled Claims against Defendants. On the Approval Date, Plaintiffs shall be deemed to have fully, finally, and forever released, relinquished, and discharged Defendants of and from any and all Settled Claims. 36. All of the exhibits attached hereto are hereby incorporated by reference as though fully set forth herein. 37. 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. 38. 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. 39. This Stipulation and its exhibits constitute 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. 40. 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. 41. This Stipulation shall be binding upon, and inure to the benefit of, the successors and assigns of the parties hereto. 42. This Stipulation shall not be construed more strictly against one party than another merely by virtue of the fact that it, or any part of it, may have been prepared by
13

Case 2:07-cv-05696-CAS-MAN Document 160-2 Filed 01/25/10 Page 14 of 14 Page ID #:1507

Case 2:07-cv-05696-CAS-MAN Document 160-7 Filed 01/25/10 Page 1 of 5 Page ID #:1533

1 TONY WEST

United States Department of Justice 2 Assistant Attorney General

3 ELIZABETH J. STEVENS VSB 47445 Assistant Director, District Court Section
4 PATRICIA E. BRUCKNER NYSB 2632156

5

Trial Attorney, District Court Section Office of Immigration Litigation

6

P.O. Box 868, Ben Franklin Station

Washington, D.C. 20044

7

Telephone: (202) 532-4325

8

Facsimile: (202) 616-8962 E-mail: Patricia.Bruckner@usdoj.gov

9 Attorneys for Defendants.
10

11 UNITED STATES DISTRICT COURT

12 CENTRAL DISTRICT OF CALIFORNIA
13

14

WESTERN DIVISION

15

CAROLYN ROBB HOOTKINS, 16 et al.,

17

Plaintiffs,

18

v.

19 JANET NAPOLITANO,
20 Secretary, U.S. Department of
21 Homeland Security, et al.,
22

23

Defendants.

) ) ) ) ) ) Case No. CV07-05696 (CAS) ) )[PROPOSED] )ORDER GRANTING PRELIMINARY )APPROVAL OF CLASS ACTION )SETTLEMENT AND APPROVAL OF NOTICE )TO CLASS )

24

25

26

27

28

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND APPROVAL OF NOTICE TO CLASS

CV07-05696 (CAS)

Case 2:07-cv-05696-CAS-MAN Document 160-7 Filed 01/25/10 Page 2 of 5 Page ID #:1534

1

Before the Court is the Joint Motion for Preliminary

2 Approval of Class Action Settlement and Approval of Notice To
3 Class (the “Motion”) filed by Plaintiffs Carolyn Robb Hootkins,
4 Ana Maria Moncayo-Gigax, Suzanne Henriette De Mailly, Sara Cruz
5 Vargas de Fisher, Raymond Lockett, Elsa Cecilia Brenteson,
6
7 Pauline Marie Gobeil, Rose Freeda Fishman-Corman, Khin Thidar

8 Win, Li Ju Lu, Purita Manuel Poindexter, Tracy Lee Rudl, and Dieu

9 Ngoc Nguyen, on behalf of themselves, the Class and all Class

10 Members and Defendants (collectively, the “Settling Parties”).
11 Whereas the Settling Parties have reached an agreement to settle,
12 subject to approval of the Court pursuant to 23(e) of the Federal
13 Rules of Civil Procedure; the Court has read and considered the
14
15 Stipulation and Agreement of Settlement and Release (the

16 “Settlement Agreement”) signed by the Settling Parties, which

17 sets forth the terms and conditions of the proposed settlement of

18 the Action; and the Settling Parties have consented to the entry

19 of this Order;
20 The Court has decided to GRANT the Motion.
21
IT IS THEREFORE ORDERED THAT: 22

23

1. This Order (the “Preliminary Approval Order”)

24 incorporates by reference the definitions in the Settlement

25 Agreement, and all terms used herein have the same meanings as

26 set forth in that Settlement Agreement, unless otherwise defined
27 herein.
28

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND APPROVAL OF NOTICE TO CLASS

CV07-05696 (CAS)

Case 2:07-cv-05696-CAS-MAN Document 160-7 Filed 01/25/10 Page 3 of 5 Page ID #:1535

1

2. The terms of the Settlement Agreement are preliminarily

2 approved. The Court finds that the Settlement Agreement has no

3 obvious deficiencies, is within the bounds of a reasonable
4 settlement, and that the amount of attorneys’ fees and expenses
5
is within the bounds of a reasonable settlement. 6

7

3. The Court approves, as to form and content, the Notice

8 to the Class (“Notice”), attached as Exhibit A to the Motion.

9

4. Within ten (10) days following the date of this Order,

10 Plaintiffs and Defendants shall publish the Notice as specified
11 in Paragraphs 25 and 27 of the Settlement Agreement.
12 5. Compliance with the procedures specified in Paragraph
13 25 of the Settlement Agreement satisfies the notice requirements
14
15 of Federal Rule of Civil Procedure 23(e).

16

6. The Court will hold a Final Settlement Hearing

17 (“Fairness Hearing”) on ______, 2010, at ________, to determine

18 whether the terms of the Settlement Agreement are fair,
19 reasonable, and adequate and should be approved by the Court, and
20 to rule upon such other matters as the Court may deem
21 appropriate; and whether a Final Judgment, attached as Exhibit B
22
23 to the Settlement Agreement, should be entered and the Released

24 Parties should be released from the Settled Claims by the

25 Releasing Parties, as provided in the Settlement Agreement.

26

7. Any Class Member may appear at the Fairness Hearing and

27 show cause why the Settlement Agreement should not be approved as
28

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND APPROVAL OF NOTICE TO CLASS

CV07-05696 (CAS)

Case 2:07-cv-05696-CAS-MAN Document 160-7 Filed 01/25/10 Page 4 of 5 Page ID #:1536

1 fair, reasonable, and adequate; provided, however, that no Class

2 Member shall be entitled to contest the approval of the terms and

3 conditions of the Settlement Agreement, or, if approved, the
4 judgment thereon, unless he/she first submits written objections
5
in accordance with the instructions contained in the Notice. 6

7

8. Any Class Member who intends to make an appearance at

8 the Fairness Hearing, either in person or through counsel at that

9 Class Member’s expense, must deliver to Class Counsel and

10 Defendants’ Counsel and file with the Court, no later than five
11 (5) business days before the Fairness Hearing, a notice of
12 intention to appear and a statement identifying any documents the
13 Class Member will seek to introduce or witnesses the Class Member
14
15 will seek to call at the Fairness Hearing.

16

9. Any Class Member who fails to comply with paragraphs 7

17 and 8 of this Order shall waive and forfeit any and all rights

18 that Class Member may have to appear separately or object, or to
19 take any appeal of the orders of judgment in this action, and
20 shall be bound by all the terms of this Settlement Agreement, and
21 any other orders of the Court, upon final approval of the
22
23 settlement.

24

10. The Court may continue or adjourn the Fairness Hearing

25 from time to time and without further notice to the Class. The

26 Court reserves the right to approve or modify the Settlement
27 Agreement at any time as may be consented to by the Settling
28

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND APPROVAL OF NOTICE TO CLASS

CV07-05696 (CAS)

Case 2:07-cv-05696-CAS-MAN Document 160-7 Filed 01/25/10 Page 5 of 5 Page ID #:1537

1 Parties and without further notice to the Class. The Court

2 further reserves the right to enter an order of final judgment

3 and dismissal, dismissing the action with prejudice as to the
4 Defendants and against the Plaintiffs and the Class Members at
5
any time and without further notice to the Class. 6

7

11. The Court further reserves the right to vacate the

8 portions of the Order dated April 28, 2009 (docket 151) enjoining

9 and mandating actions by Defendants in adjudicating Class

10 Members’ Form I-130 Petitions and Applications for Adjustment of
11 Status.
12 12. Without further order of the Court, the Settling
13 Parties may agree to reasonable extensions of time to carry out
14
15 any of the provisions of the Preliminary Approval Order.

16

17 IT IS SO ORDERED.

18

19 Date:
20
21

_____________________________ HON. CHRISTINA A. SNYDER UNITED STATES DISTRICT JUDGE

22

23

24

25

26

27

28

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND APPROVAL OF NOTICE TO CLASS

CV07-05696 (CAS)

 
 Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 1 of 20
(MANx),CLOSED,DISCOVERY,MANADR,REOPENED
UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA (Western Division − Los Angeles)
CIVIL DOCKET FOR CASE #: 2:07−cv−05696−CAS−MAN

Carolyn Robb Hootkins et al v. Michael Chertoff et al Assigned to: Judge Christina A. Snyder Referred to: Magistrate Judge Margaret A. Nagle Case in other court: 9th CCA, 09−56019 Cause: 05:0701 Maritime Subsidy Board
Plaintiff

Date Filed: 08/30/2007 Date Terminated: 04/05/2010 Jury Demand: None Nature of Suit: 540 Mandamus &Other Jurisdiction: U.S. Government Defendant

Carolyn Robb Hootkins on behalf of themselves and all others similarly situated

represented by Alan R Diamante Alan R Diamante Law Offices 523 W Sixth Street Suite 210 Los Angeles, CA 90014 213−943−4555 Email: diamantelaw@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brent W Renison Parrilli Renison 5285 S W Meadows Road, Suite 175 Lake Oswego, OR 97035 503−597−7190 Email: brent@entrylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Ana Maria Moncayo−Gigax on behalf of themselves and all others similarly situated

represented by Alan R Diamante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brent W Renison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Suzanne Henriette De Mailly On behalf of themselves and all others similarly situated

represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Sara Cruz Vargas De Fisher On behalf of themselves and all others similarly situated

represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Raymond Lockett On behalf of themselves and all others similarly situated

represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Elsa Cecilia Brenteson On behalf of themselves and all others

represented by Brent W Renison (See above for address)

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 2 of 20

similarly situated

ATTORNEY TO BE NOTICED

Plaintiff
Pauline Marie Gobeil On behalf of themselves and all others similarly situated

represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Dahianna Heard On behalf of themselves and all others similarly situated TERMINATED: 04/30/2009

represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Rose Freeda Fishman−Corman On behalf of themselves and all others similarly situated

represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Khin Thidar Win On behalf of themselves and all others similarly situated TERMINATED: 04/30/2009

represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Diana Gejac Engstrom On behalf of themselves and all others similarly situated TERMINATED: 05/05/2009

represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Maria Del Carmen Diaz−Ruiz On behalf of themselves and all others similarly situated TERMINATED: 05/05/2009

represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Gladys Walsh On behalf of themselves and all others similarly situated TERMINATED: 04/30/2009

represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Li Ju Lu On behalf of themselves and all others similarly situated

represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Yelena Arias Angulo On behalf of themselves and all others similarly situated TERMINATED: 05/05/2009

represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Purita Manuel Pointdexter On behalf of themselves and all others similarly situated TERMINATED: 04/30/2009

represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 3 of 20

Plaintiff
Tracy Lee Rudl On behalf of themselves and all others similarly situated TERMINATED: 04/30/2009
Plaintiff
Dieu Ngoc Nguyen On behalf of themselves and all others similarly situated
Plaintiff
Agnieszka Bernstein On behalf of themselves and all others similarly situated TERMINATED: 05/05/2009
Plaintiff
Sarah Bayor On behalf of themselves and all others similarly situated TERMINATED: 05/05/2009
Plaintiff
Stella Standifer On behalf of themselves and all others similarly situated
Plaintiff
Farah Batool On behalf of themselves and all others similarly situated TERMINATED: 05/05/2009

represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED
represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED
represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED
represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED
represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED
represented by Brent W Renison (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Michael Chertoff Secretary, US Department of Homeland Security

represented by Elizabeth J Stevens United States Department of Justice Office of Immigration Litigation − Civil Division PO Box 878 Ben Franklin Station Washington, DC 20044 202−616−9752 Fax: 202−305−7000 Email: elizabeth.stevens@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia E Bruckner US Department of Justice Office of Immigration Litigation −DCS 450 Fifth Street NW Suite 6028 Washington, DC 20530 202−532−4325 Fax: 202−616−8962 Email: patricia.bruckner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 4 of 20

Sheri R Glaser US Department of Justice Office of Immigration Litigation − Civil Division PO Box 868 Ben Franklin Station Washington, DC 20044 202−616−1231 Fax: 202−616−8962 Email: sheri.glaser@usdoj.gov TERMINATED: 03/18/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John P Devaney US Dept of Justice − Office of Immigration Litigation Ben Franklin Station P O Box 878 Washington, DC 20044 202−305−4831

Melissa S Leibman US Department of Justice Office of Immigration Litigation Ben Franklin Station PO Box 868 Washington, DC 20044 202−305−7016 Fax: 202−305−7000 Email: Melissa.Leibman@usdoj.gov TERMINATED: 03/13/2009 ATTORNEY TO BE NOTICED

Defendant
Jonathan Scharfen Acting Director, US Citizenship and Immigration Services Substituted for Emilio Gonzalez

represented by Elizabeth J Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia E Bruckner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheri R Glaser (See above for address) TERMINATED: 03/18/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John P Devaney (See above for address)

Melissa S Leibman (See above for address) TERMINATED: 03/13/2009 ATTORNEY TO BE NOTICED

Defendant
Condoleezza Rice Secretary of State, US Department of State TERMINATED: 03/20/2008

represented by Alan R Diamante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 5 of 20

Defendant
Maura Harty Assistant Secretary for Consular Affairs, US Department of State TERMINATED: 03/20/2008

Brent W Renison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth J Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheri R Glaser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John P Devaney (See above for address)
Melissa S Leibman (See above for address) TERMINATED: 03/13/2009 ATTORNEY TO BE NOTICED
represented by Elizabeth J Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia E Bruckner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheri R Glaser (See above for address) TERMINATED: 03/18/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John P Devaney (See above for address)
Melissa S Leibman (See above for address) TERMINATED: 03/13/2009 ATTORNEY TO BE NOTICED

Date Filed 08/30/2007
08/30/2007 08/30/2007 08/30/2007

# Docket Text
1 COMPLAINT against defendants−respondents Condoleezza Rice, Maura Harty, Michael Chertoff, Emilio Gonzalez.(Filing fee $ 350)Fee paid, filed by plaintiffs−petitioners Carolyn Robb Hootkins, Maria Moncayo−Gigax.(bb) (Entered: 09/07/2007)
FAX number for Attorney Alan R Diamante, Brent W Renison is 503−726−0730. (bb) (Entered: 09/07/2007)
2 Notice of Interested Parties filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (bb) (Entered: 09/07/2007)
3 NOTICE TO PARTIES OF ADR PILOT PROGRAM filed.(bb) (Entered: 09/07/2007)

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 6 of 20

08/30/2007 08/30/2007 08/30/2007 09/04/2007 09/17/2007
10/09/2007
11/13/2007 11/26/2007 11/26/2007 11/28/2007 11/28/2007 11/28/2007

60 days Summons Issued re Complaint − (Discovery) 1 as to Carolyn Robb Hootkins, Maria Moncayo−Gigax. (bb) (Entered: 09/07/2007)
4 APPLICATION of Non−Resident Attorney Brent W. Renison to appear on behalf of Plaintiffs Carolyn Robb Hootkins and Maria Moncayo−Gigax. FEE PAID. Lodged Proposed Order. (gk) (Entered: 09/08/2007)
FAX number for Attorney Alan R Diamante is 213−943−4553. (gk) (Entered: 09/08/2007)
5 ORDER by Judge Christina A. Snyder granting Application of Non−Resident Attorney Brent W. Renison to appear on behalf of Plaintiffs Carolyn Robb Hootkins and class plaintiffs 4 , and designating local counsel Alan R. Diamante. (gk) (Entered: 09/11/2007)
6 NOTICE TO COUNSEL: This case has been assigned to the calendar of udge Christina A. Snyder. This Notice to Counsel shall be to all parties appearing propria persona, and for pursposes of this notice, the term "counsel" shall include any person appearing in pro per. Counsel are advised that the Court expects strict compliance with the provisions of the LR and the Fed Rules of Civil Procedure (see document for further details) by Judge Christina A. Snyder,(yl) (Entered: 09/17/2007)
7 PROOF OF SERVICE Executed by Plaintiffs upon Defendants Michael Chertoff served on 9/13/2007, answer due 11/13/2007; Condoleezza Rice served on 9/13/2007, answer due 11/13/2007; Maura Harty served on 9/13/2007, answer due 11/13/2007; Emilio Gonzalez served on 9/13/2007, answer due 11/13/2007. The Summons and Complaint were served by personal service, by Federal statute. Service accepted by Genoveva Ortega, Legal Clerk on behalf of Leon W. Weidman, Chief U.S. Attorney's Office. Also attached original return receipts addressed to: (1) Condoleezza Rice, Secretary of State, U.S. Dept. of State, acknowledged by Debbie (last name illegible) on 9/24/2007; (2) Alberto Gonzales, U.S. Attorney General, acknowledged by rubber stamp imprint of Ernest L. Parker on 9/21/2007; (3) Maura Harty, Assistant Secretary for Consular Affairs, U.S. Department of State, acknowledged by Debbie (last name illegible) on 9/24/2007; and (4) Emilio Gonzalez, Dir. U.S.C.I.S. without acknowledgment on return receipt, a copy of the U.S. Postal Service Track &Confirm reflects delivery on 9/21/2007. Original Summons not returned. (gk) (Entered: 10/14/2007)
8 NOTICE OF MOTION AND MOTION to Dismiss filed by Defendants Michael Chertoff, Emilio Gonzalez, Condoleezza Rice, and Maura Harty; memorandum of points and authorities. Motion set for hearing on 12/10/2007 at 10:00 AM before Judge Christina A. Snyder. (gk) (Entered: 11/19/2007)
9 CROSS MOTION for Summary Judgment as to a matter of law pursuant of FRCP 56(c) filed by Plaintiff−Petitioners and Class Members Condoleezza Rice, Carolyn Robb Hootkins, Maria Moncayo−Gigax.Motion set for hearing on 12/10/2007 at 10:00 AM before Judge Christina A. Snyder. (vh) (Entered: 11/30/2007)
PLAINTIFFS' MEMORANDUM in Opposition to Motion to Dismiss re 8 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (vh) (Entered: 11/30/2007)
10 NOTICE OF MOTION AND MOTION for Class Certification filed by Plaintiffs−Petitioners and Class Members Carolyn Robb Hootkins, Maria Moncayo−Gigax.Motion set for hearing on 1/28/2008 at 10:00 AM before Judge Christina A. Snyder. Lodged Order. (vh) (Entered: 12/03/2007)
11 MEMORANDUM of Points and Authorities in Support of Motion for Class Certification, re 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (vh) (Entered: 12/03/2007)
12 NOTICE OF MOTION AND MOTION for Preliminary Injunction re: pursuant to FRCP 65(a) filed by Plaintiffs−Petitioners and Class Members Carolyn Robb Hootkins, Maria Moncayo−Gigax.Motion set for hearing on 1/28/2008 at 10:00 AM before Judge Christina A. Snyder. Lodged Order. (vh) (Entered: 12/03/2007)

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 7 of 20

11/28/2007 12/05/2007
01/07/2008 01/08/2008 01/14/2008 01/15/2008 01/15/2008
01/15/2008 01/16/2008 01/16/2008 01/16/2008

13 MEMORANDUM in Support of Motion for Preliminary Injunction re: pursuant to FRCP 65(a), 12 filed by Plaintiffs−Petitioners and Class Members Carolyn Robb Hootkins, Maria Moncayo−Gigax. (vh) (Entered: 12/03/2007)
14 STIPULATION FOR CONTINUANCE OF 12/10/2007 HEARING, JOINT BRIEFING SCHEDULE, AND REQUEST TO FILE BRIEFS IN EXCESS OF PAGE LIMITATIONS AND ORDER by Judge Christina A. Snyder continuing hearing as to Defendants' Motion to Dismiss 8 and Motion for Summary Judgment [9 ] to 1/28/2008 at 10:00 AM before Judge Christina A. Snyder, a date already agreed upon for hearing on Plaintiffs' Motion for Class Certification 10 and Motion for a Preliminary Injunction 12 . On or before 12/15/2007, Plaintiffs will file their Statement of Uncontroverted Facts and Conclusions of Law and their proposed judgment. Defendants' Reply Memorandum, Opposition to Plaintiffs' Motion for Summary Judgment, Opposition to Plaintiffs' Motion for Class Certification, and Opposition to Plaintiffs' Motion for a Preliminary Injunction due by 1/7/2008. Plaintiffs to file Reply Memoranda, if any, by 1/18/2008. Parties have leave to file briefs up to 35 pages in length. (gk) (Entered: 12/06/2007)
16 NOTICE OF DISCREPANCY AND ORDER: by Judge Christina A. Snyder, ORDERING Notice of change of address information submitted by Defendant Emilio Gonzalez received on 1/4/08 is not to be filed but instead rejected. Denial based on: LR 11−3.8, LR 11−4.1, FRCiv Rule 5(d), Pursuant to GO 07−08, case is designated for electronic fling. (yl) (Entered: 01/08/2008)
15 OPPOSITION to MOTION for Preliminary Injunction re: pursuant to FRCP 65(a) MOTION for Preliminary Injunction re: pursuant to FRCP 65(a) 12 filed by Defendants Condoleezza Rice, Maura Harty, Michael Chertoff, Emilio Gonzalez. (Attachments: # 1 Exhibit 1 and 2# 2 Proposed Order)(Stevens, Elizabeth) (Entered: 01/08/2008)
17 NOTICE of Change of Attorney Information for attorney Sheri R Glaser counsel for Defendants Condoleezza Rice, Maura Harty, Michael Chertoff, Emilio Gonzalez. Adding Sheri R. Glaser as attorney as counsel of record for Defendants for the reason indicated in the G−06 Notice. Filed by Attorney for Defendants Defendants (Glaser, Sheri) (Entered: 01/14/2008)
18 OPPOSITION to MOTION to Certify Class 10 filed by Defendants Condoleezza Rice, Maura Harty, Michael Chertoff, Emilio Gonzalez. (Attachments: # 1 Exhibit Request for Evidence# 2 Proposed Order)(Leibman, Melissa) (Entered: 01/15/2008)
19 REPLY in support of motion to dismiss and opposition to motion for cross summary judgment MOTION for Summary Judgment as to as a matter of law pursuant of FRCP 56(c) MOTION for Summary Judgment as to as a matter of law pursuant of FRCP 56(c) 9 , MOTION to Dismiss Case 8 filed by Defendants Condoleezza Rice, Maura Harty, Michael Chertoff, Emilio Gonzalez. (Attachments: # 1 Exhibit Attachment A)(Leibman, Melissa) (Entered: 01/15/2008)
20 STATEMENT of Genuine Issues filed by Defendants Condoleezza Rice, Maura Harty, Michael Chertoff, Emilio Gonzalez (Leibman, Melissa) (Entered: 01/15/2008)
21 REPLY in support MOTION for Summary Judgment as to as a matter of law pursuant of FRCP 56(c) MOTION for Summary Judgment as to as a matter of law pursuant of FRCP 56(c) 9 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Attachments: # 1 Appendix Attachment A − Matter of O −)(Renison, Brent) (Entered: 01/16/2008)
22 REPLY in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 01/16/2008)
23 AMENDED DOCUMENT filed by Defendants Condoleezza Rice, Maura Harty, Michael Chertoff, Emilio Gonzalez. Amendment to Response in Opposition to Motion 18 Amended Certificate of Service (Leibman, Melissa) (Entered: 01/16/2008)

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 8 of 20

01/16/2008 01/16/2008 01/18/2008 01/28/2008
02/02/2008 02/02/2008 02/02/2008 02/07/2008 02/11/2008 02/15/2008 02/19/2008 03/03/2008

24 AMENDED DOCUMENT filed by Defendants Condoleezza Rice, Maura Harty, Michael Chertoff, Emilio Gonzalez. Amendment to Statement 20 Amended Certificate of Service (Leibman, Melissa) (Entered: 01/16/2008)
25 AMENDED DOCUMENT filed by Defendants Condoleezza Rice, Maura Harty, Michael Chertoff, Emilio Gonzalez. Amendment to Reply (Motion related), Reply (Motion related) 19 Amended Certificate of Service (Leibman, Melissa) (Entered: 01/16/2008)
26 REPLY in support of MOTION for Preliminary Injunction re: pursuant to FRCP 65(a) MOTION for Preliminary Injunction re: pursuant to FRCP 65(a) 12 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Attachments: # 1 Appendix Attachment A# 2 Appendix Attachment B# 3 Appendix Attachment C)(Renison, Brent) (Entered: 01/18/2008)
27 MINUTES OF Motion Hearing held before Judge Christina A. Snyder: The Court continues defendants' Motion to Dismiss 8 to 3/3/2008 at 10:00 AM before Judge Christina A. Snyder, and orders further briefing as follows: defendant's opening shall be filed on or before 1/11/2008; plaintiffs' opposition shall be filed on or before 2/19/2008; and defendants' reply shall be filed on or before 2/25/2008. The Court DENIES plaintiffs' Motion for Summary Judgment as to a Matter of Law Pursuant to FRCP 56 (c) 9 without prejudice subject to being renewed. The Court stays plaintiffs Motion for Class Certification 10 to be addressed at the 3/3/2008 hearing on defendants motion to dismiss. The Court continues Plaintiffs Motion for Preliminary Injunction 12 to 3/31/2008 at 10:00 AM before Judge Christina A. Snyder. Court Reporter: Laura Elias. (gk) (Entered: 01/31/2008)
28 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following deficiency was found: Incorrect event selected. Correct event is Proof of Service (subsequent document). Title page is missing: RE Amended Certificate of Service filed 1/16/2008 23 . (gk) (Entered: 02/03/2008)
29 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following deficiency was found: Incorrect event selected. Correct event is Proof of Service (subsequent document). Title page is missing: RE Amended Certificate of Service filed 1/16/2008 24 . (gk) (Entered: 02/03/2008)
30 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following deficiency was found: Incorrect event selected. Correct event is Proof of Service (subsequent document). Title page is missing: RE Amended Certificate of Service filed 1/16/2008 25 . (gk) (Entered: 02/03/2008)
31 STIPULATION to Continue Hearing on Motion for Preliminary Injunction from March 31, 2008 at 10:00 a.m. to April 7, 2008 at 10:00 a.m. Re: Motion Hearing,,,, Link Motions to Minutes,,,, Set Motion and RRDeadlines,,, 27 filed by plaintiff Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Attachments: # 1 Proposed Order)(Renison, Brent) (Entered: 02/07/2008)
32 SUPPLEMENT to MOTION to Dismiss Case 8 Supplemental Memorandum of Law in Support of Motion to Dismiss filed by Defendants Condoleezza Rice, Maura Harty, Michael Chertoff, Emilio Gonzalez. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Stevens, Elizabeth) (Entered: 02/11/2008)
33 OPPOSITION to MOTION to Dismiss Case 8 Response in Opposition to Defendants' Supplemental Memorandum of Law filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Attachments: # 1 Appendix Exhibit A# 2 Appendix Exhibit B# 3 Appendix Exhibit C)(Renison, Brent) (Entered: 02/15/2008)
34 ORDER by Judge Christina A. Snyder, re: Stipulation to Continue 31 . IT IS HEREBY ORDERED: The Court continues Plaintiffs' Motion for Preliminary Injunction to 4/7/2008 at 10:00 a.m. IT IS SO ORDERED. (mmu) (Entered: 02/20/2008)
35 MINUTES OF Motion Hearing held before Judge Christina A. Snyder: The Court takes defendants' motion under submission. The Court will issue a final order. Court Reporter: Laura Elias. (mmu) (Entered: 03/07/2008)

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 9 of 20

03/17/2008 03/20/2008 03/25/2008 03/25/2008 04/02/2008 04/02/2008 04/02/2008 04/02/2008 04/07/2008
04/11/2008 04/28/2008

36 ORDER by Judge Christina A. Snyder re MOTION to Dismiss Case 8 Granting in part and denying in part (see Order for complete details) (kd) (Entered: 03/17/2008)
37 FIRST AMENDED COMPLAINT against defendants Michael Chertoff, Emilio Gonzalez; Party Condoleezza Rice terminated amending Complaint − (Discovery) 1 Party Maura Harty terminated,filed by plaintiff Carolyn Robb Hootkins, Maria Moncayo−Gigax (Renison, Brent) (Entered: 03/20/2008)
38 STIPULATION to Clarify This Court's February 19, 2008 order filed by Attorney for Defendants Maura Harty, Michael Chertoff, Emilio Gonzalez. (Attachments: # 1 Proposed Order)(Glaser, Sheri) (Entered: 03/25/2008)
39 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following deficiency was found document title does not match docket entry: RE Stipulation to Clarify 38 (mmo) (Entered: 04/01/2008)
40 DECLARATION of David Asser, Esq. in support of MOTION for Preliminary Injunction re: pursuant to FRCP 65(a) MOTION for Preliminary Injunction re: pursuant to FRCP 65(a) 12 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/02/2008)
41 DECLARATION of Yelena Arias Angulo in support of MOTION for Preliminary Injunction re: pursuant to FRCP 65(a) MOTION for Preliminary Injunction re: pursuant to FRCP 65(a) 12 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/02/2008)
42 DECLARATION of Maria Paula Robledo in support of MOTION for Preliminary Injunction re: pursuant to FRCP 65(a) MOTION for Preliminary Injunction re: pursuant to FRCP 65(a) 12 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/02/2008)
43 DECLARATION of Maria Raquel Pascoal Williams in support of MOTION for Preliminary Injunction re: pursuant to FRCP 65(a) MOTION for Preliminary Injunction re: pursuant to FRCP 65(a) 12 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/02/2008)
44 MINUTES OF Motion Hearing held before Judge Christina A. Snyder Re: Plaintiffs' Motion for a Preliminary Injunction 12 . The Court DENIES plaintiffs motion for a classwide preliminary injunction. The Court further DENIES plaintiffs' motion for a preliminary injunction prohibiting defendants from withholding Employment Authorization Documents and Advance Parole Travel Documents. The Court reserves for further consideration, plaintiffs' request for a preliminary injunction prohibiting defendants from commencing removal proceedings against plaintiffs. However, the Court orders that no further adverse action be taken against the named plaintiffs until further order of the Court. Further, the Court hereby orders supplemental briefing of no more than 15 pages in length to be filed as follows: On or by 4/28/2008, Plaintiffs' supplemental brief in support of their motion for class certification. On or by 5/1/2008, Defendants' brief explaining the reasons for having commenced removal proceedings against any of the named plaintiffs. On or by 5/12/2008, Defendants' reply to plaintiffs' supplemental brief in support of plaintiffs' motion for class certification. Court schedules a hearing on Plaintiffs' Motion for Class Certification 10 on 6/9/2008 at 10:00 AM before Judge Christina A. Snyder. Court Reporter: Laura Elias. (gk) (Entered: 04/10/2008)
45 ANSWER to Amended Complaint, 37 Defendants' Answer to Plaintiffs' First Amended Complaint For Declaratory and Injunctive Relief and Petition for Writ of Mandamus filed by Counsel for Defendants Maura Harty, Michael Chertoff, Emilio Gonzalez.(Glaser, Sheri) (Entered: 04/11/2008)
46 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Title page lacks counsel's name, California bar number, office address, telephone and facsimile numbers and e−mail address, commencing with line 1 at the left margin, pursuant to Local Rule 11−3.8(a) RE: Declaration of David Asser filed 4/2/2008 40 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (gk) (Entered:

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 10 of 20

04/28/2008
04/28/2008
04/28/2008
04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008

04/28/2008)
47 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Title page lacks counsel's name, California bar number, office address, telephone and facsimile numbers and e−mail address, commencing with line 1 at the left margin, pursuant to Local Rule 11−3.8(a) RE: Declaration of Yelena Arias Angulo filed 4/2/2008 41 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (gk) (Entered: 04/28/2008)
48 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Title page lacks counsel's name, California bar number, office address, telephone and facsimile numbers and e−mail address, commencing with line 1 at the left margin, pursuant to Local Rule 11−3.8(a) RE: Declaration of Maria Paula Robledo filed 4/2/2008 42 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (gk) (Entered: 04/28/2008)
49 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Title page lacks counsel's name, California bar number, office address, telephone and facsimile numbers and e−mail address, commencing with line 1 at the left margin, pursuant to Local Rule 11−3.8(a) RE: Declaration of Maria Raquel Pascoal Williams filed 4/2/2008 43 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (gk) (Entered: 04/28/2008)
50 MEMORANDUM in Support of MOTION to Certify Class 10 Supplemental Memorandum of Law in Support of Motion for Class Certification filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
51 DECLARATION of Yelena Arias Angulo in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
52 DECLARATION of Farah Batool in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
53 DECLARATION of Sarah Bayor in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
54 DECLARATION of Agnieszka Bernstein in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
55 DECLARATION of Dodzener Naomi Clarke Blackstock in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
56 DECLARATION of Elsa Brenteson in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
57 DECLARATION of Xiuru Chen in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
58 DECLARATION of Suzanne De Mailly in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
59 DECLARATION of Maria Diaz Ruiz in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison,

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 11 of 20

04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008

Brent) (Entered: 04/28/2008)
60 DECLARATION of Diana Engstrom in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
61 DECLARATION of Rose Fishman Corman in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
62 DECLARATION of Pauline Marie Gobeil in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
63 DECLARATION of Zainab M. Hassan in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
64 DECLARATION of Carolyn Pera Robb Hootkins in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
65 DECLARATION of Philip Hornik in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
66 DECLARATION of Raymond W. Lockett in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
67 DECLARATION of Ana Maria Moncayo Gigax in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
68 DECLARATION of Monika Monroe in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
69 DECLARATION of Ngoc Dieu Nguyen in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
70 DECLARATION of Purita Manuel Poindexter in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
71 DECLARATION of Elaine Nodado Pulley in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
72 DECLARATION of Brent W. Renison in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
73 DECLARATION of Markku Tapio Ripatti in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
74 DECLARATION of Maria Jasmin Algo Simpson in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
75 DECLARATION of Stella Standifer in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
76 DECLARATION of Juntanee Tamborello in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 12 of 20

04/28/2008 04/28/2008 04/28/2008 04/28/2008 04/30/2008 05/09/2008
05/12/2008 05/13/2008 05/19/2008 05/20/2008 05/29/2008
06/02/2008 06/03/2008

77 DECLARATION of Gladys Walsh in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
78 DECLARATION of Maria Raquel Pascoal Williams in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
79 DECLARATION of Khin Win in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
80 DECLARATION of Ju−Hui Yang in support of MOTION to Certify Class 10 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/28/2008)
81 NOTICE To Court Regarding Removal proceedings filed by Defendants Maura Harty, Michael Chertoff, Emilio Gonzalez. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Stevens, Elizabeth) (Entered: 04/30/2008)
84 MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: Based on these representations, the Court finds that there is no imminent threat of harm that would justify the entry of a preliminary injunction 12 . Accordingly, the Court DENIES plaintiffs' request for a preliminary injunction prohibiting defendants from commencing removal proceedings against plaintiffs without prejudice to the request being renewed if further adverse action is taken, or threatened to be taken, against named plaintiffs. (gk) (Entered: 05/13/2008)
82 OPPOSITION to MOTION to Certify Class 10 Defendants' Response to Plaintiffs' Supplemental Memorandum of Law In Support of Motion For Class Certification filed by Defendants Michael Chertoff, Emilio Gonzalez. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Declaration Exhibit 3)(Glaser, Sheri) (Entered: 05/12/2008)
83 SUPPLEMENT Supplemental Statement To Defendants' Response To Plaintiffs' Supplemental Memorandum Of Law In Support Of Motion For Class Certification filed by Defendants Michael Chertoff, Emilio Gonzalez. (Glaser, Sheri) (Entered: 05/13/2008)
85 REPLY in support of MOTION to Certify Class 10 Plaintiffs' Reply in Support of Supplemental Memorandum of Law in Support of Motion for Class Certification filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) ** DOCUMENT STRICKEN PURSUANT TO ORDER FILED 6/6/2008 92 ** Modified on 6/9/2008 (gk). (Entered: 05/19/2008)
86 STIPULATION File Gobeil Decl. (Doc. No. 62); Standifer Decl. (Doc. No. 75); Ex. 1 to Def. Mot. (Doc. No. 82−2) Under Seal filed by plaintiff Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Attachments: # 1 Proposed Order)(Renison, Brent) (Entered: 05/20/2008)
87 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Application to file documents under seal should be manually filed and a Notice of Manual Filing should be electronically filed pursuant to General Order 08−02. RE: Stipulated Motion to Seal filed 5/20/2008 86 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (gk) (Entered: 05/29/2008)
91 MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: On the Court's own motion, the Court continues Plaintiff's Motion for Class Certification to 6/30/2008 at 10:00 AM before Judge Christina A. Snyder. Court Reporter: Not Present. (gk) (Entered: 06/03/2008)
88 NOTICE of Change of Attorney Information for attorney Sheri R Glaser counsel for Defendants Michael Chertoff, Jonathan Scharfen. Changing address to P.O. Box 868, Ben Franklin Station, Washington, D.C. 20044. Changing fax number to 202−616−8962. Filed by Counsel for Defendants Sheri R. Glaser (Glaser, Sheri) (Entered: 06/03/2008)

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 13 of 20

06/03/2008
06/03/2008
06/06/2008 06/30/2008
07/02/2008 07/03/2008 07/08/2008 07/09/2008 07/10/2008 07/17/2008 08/15/2008 08/15/2008 08/21/2008

89 First EX PARTE APPLICATION to Strike Reply (Motion related) 85 In Support of Supplemental Memorandum of Law In Support of Motion for Class Certification, or in the alternative, First EX PARTE APPLICATION for Leave to File A Surreply To Plaintiffs' Unauthorized Reply In Support of Supplemental Memorandum Of Law In Support of Motion For Class Certification filed by Counsel for Defendants Michael Chertoff, Jonathan Scharfen. (Attachments: # 1 Surreply, # 2 Proposed Order)(Glaser, Sheri) (Entered: 06/03/2008)
90 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: account information was not updated in the ECF system RE: Notice of Change of Attorney Information (G−06), Notice of Change of Attorney Information (G−06) 88 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (vh) (Entered: 06/03/2008)
92 ORDER by Judge Christina A. Snyder granting Defendants' Ex Parte Application to Strike Plaintiffs' Unauthorized Reply in Support of Supplemental Memorandum in Support of Motion for Class Certification 89 . Plaintiffs' reply in support of supplemental memorandum of law in support of motion for class certification 85 is stricken. (gk) (Entered: 06/09/2008)
95 MINUTES OF Motion Hearing held before Judge Christina A. Snyder: Hearing held and counsel are present. Tentative provided. The Court confers with counsel and counsel argue. The Court takes plaintiffs motion under submission and orders each side to submit revised proposed definitions forthwith, as stated in Court and on the record. The Court will issue a final order thereafter.Court Reporter: Laura Elias. (pso) (Entered: 07/07/2008)
93 Proposed Class Definition filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax re: MOTION to Certify Class 10 (Renison, Brent) (Entered: 07/02/2008)
94 Proposed Class Definition filed by Defendants Michael Chertoff, Jonathan Scharfen (Glaser, Sheri) (Entered: 07/03/2008)
96 Joint STIPULATION to Stay Case pending determination on settlement in 48 hours filed by Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (Attachments: # 1 Proposed Order)(Stevens, Elizabeth) (Entered: 07/08/2008)
98 ORDER GRANTING STIPULATION TO HOLD THE COURT'S CLASS CERTIFICATION RULING IN ABEYANCE FOR FORTY−EIGHT HOURS by Judge Christina A. Snyder: Upon Stipulation 96 , IT IS SO ORDERED, that the Court will hold its ruling on class certification in abeyance for forty−eight hours. (gk) (Entered: 07/11/2008)
97 STIPULATION to Stay Case pending Settlement Discussions filed by Counsel for Defendants Michael Chertoff, Jonathan Scharfen. (Attachments: # 1 Proposed Order)(Glaser, Sheri) (Entered: 07/10/2008)
99 ORDER GRANTING STIPULATION TO HOLD THE CASE IN ABEYANCE PENDING SETTLEMENT DISCUSSIONS by Judge Christina A. Snyder: Upon Stipulation 97 , IT IS SO ORDERED, that the Court will hold this case in abeyance pending settlement discussions. Counsel are directed to submit a status report every 30 days. (gk) (Entered: 07/18/2008)
100 STATUS REPORT Joint Status Report filed by Defendants Michael Chertoff, Jonathan Scharfen. (Glaser, Sheri) (Entered: 08/15/2008)
101 STIPULATION to Stay Case pending Legislation filed by Counsel for Defendants Michael Chertoff, Jonathan Scharfen. (Attachments: # 1 Proposed Order)(Glaser, Sheri) (Entered: 08/15/2008)
102 STIPULATION AND ORDER by Judge Christina A. Snyder: 101 ORDER STAYING CASE pending further order of the Court and the status of 3369, H.R. 6034, or any other legislation that may affect this case by Judge Christina A. Snyder. (MD JS−6. Case Terminated) (rmo) (Entered: 08/22/2008)

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 14 of 20

10/15/2008 12/12/2008 12/12/2008 12/24/2008 01/06/2009
01/06/2009
01/30/2009
02/06/2009 02/27/2009 03/02/2009
03/09/2009 03/09/2009 03/09/2009

103 STATUS REPORT Joint Status Report filed by Defendants Michael Chertoff, Jonathan Scharfen. (Glaser, Sheri) (Entered: 10/15/2008)
104 NOTICE OF MOTION AND First MOTION to Lift Stay re proceedings filed by plaintiff Carolyn Robb Hootkins, Maria Moncayo−Gigax. Motion set for hearing on 1/12/2009 at 10:00 AM before Judge Christina A. Snyder. (Attachments: # 1 Proposed Order Lifting Stay)(Renison, Brent) (Entered: 12/12/2008)
105 MEMORANDUM in Support of First MOTION to Lift Stay re proceedings 104 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 12/12/2008)
106 NOTICE OF NON−OPPOSITION to First MOTION to Lift Stay re proceedings 104 filed by Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (Stevens, Elizabeth) (Entered: 12/24/2008)
107 MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: Proceedings: Motion for Order Lifting Stay 104 . The Court finds this motion appropriate for decision without oral argument. Accordingly, the hearing date of January 12, 2008 is hereby vacated and the matter taken under submission. The Court GRANTS plaintiffs' motion and hereby liftsthe stay in the instant action. MD JS−5 Case Reopened. (mg) (Entered: 01/07/2009)
108 MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: Proceedings: Order GRANTING Plaintiffs' MOTION for Class Certification 10 . The Court provisionally GRANTS plaintiffs' motion for class certification as to plaintiffs whose cases arise within the jurisdiction of the Ninth Circuit. The Court further certifies a subclass of alien spouses who entered the United States on fiance visas. (mg) (Entered: 01/07/2009)
109 NOTICE of Change of Attorney Information for attorney Patricia E Bruckner counsel for Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. Changing e−mail to patricia.bruckner@usdoj.gov. Adding Patricia E. Bruckner as attorney as counsel of record for Michael Chertoff; Maura Harty; Jonathan Scharfen for the reason indicated in the G−06 Notice. Filed by Defendants Michael Chertoff; Jonathan Scharfen; Maura Harty (Bruckner, Patricia) (Entered: 01/30/2009)
110 NOTICE of Decision: The Third Circuit Court of Appeals In Robinson filed by Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (Attachments: # 1 Exhibit)(Stevens, Elizabeth) (Entered: 02/06/2009)
111 STIPULATION for Order Directing Notice to Class filed by plaintiff Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Attachments: # 1 Exhibit A Declaration, # 2 Exhibit B Proposed Notice, # 3 Proposed Order Directing Notice to Class)(Renison, Brent) (Entered: 02/27/2009)
112 ORDER DIRECTING NOTICE TO CLASS (see document for detailed specifics) 111 . In accordance with the dates set out in the proposed notice, Counsel for Plaintiffs and Defendants agree that both parties will file renewed Motions (and Cross− Motions) for Summary Judgment on or before March 9, 2009 and notice a hearing for April 20, 2009. Both parties agree to file their respective Responses on or before March 23, 2009, and optional Replies on or before April 6, 2009. 13. The Parties will file separate dispositive motions as to the non−Class Plaintiffs from outside the Ninth Circuit according to the same schedule by Judge Christina A. Snyder (lc) (Entered: 03/03/2009)
113 NOTICE OF MOTION AND Renewed MOTION for Summary Judgment filed by plaintiff Carolyn Robb Hootkins, Maria Moncayo−Gigax. Motion set for hearing on 4/20/2009 at 10:00 AM before Judge Christina A. Snyder. (Attachments: # 1 Proposed Order)(Renison, Brent) (Entered: 03/09/2009)
114 MEMORANDUM in Support of Renewed MOTION for Summary Judgment 113 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 03/09/2009)
115 STATEMENT of Uncontroverted Facts and Conclusions of Law [proposed] in support of Renewed MOTION for Summary Judgment 113 filed by Plaintiffs

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 15 of 20

03/09/2009 03/11/2009 03/11/2009
03/13/2009
03/13/2009 03/13/2009 03/13/2009 03/13/2009 03/13/2009 03/13/2009 03/13/2009 03/13/2009 03/13/2009

Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 03/09/2009)
116 STIPULATION for Extension of Time to File Motions for Summary Judgment filed by Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (Attachments: # 1 Proposed Order)(Bruckner, Patricia) (Entered: 03/09/2009)
117 MINUTES OF IN CHAMBERS ORDER by Judge Christina A. Snyder. The Court, on its own motion, sets a Telephone Conference for 3/23/2009 at 11:45 AM before Judge Christina A. Snyder. (pp) (Entered: 03/11/2009)
118 ORDER GRANTING STIPULATION FOR MINOR MODIFICATION OF BRIEFING SCHEDULE by Judge Christina A. Snyder. Defendants are to file Motions for Summary Judgment on or before 3/13/09 for hearing on 4/20/09 and file a Response to Plaintiff's motion by 3/23/09. Plaintiffs are to file a Response by 3/27/2009 and optional Replies are due by 4/6/2009, for both parties. (pp) (Entered: 03/12/2009)
119 NOTICE of Change of Attorney Information for attorney Melissa S Leibman counsel for Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. Melissa Leibman will no longer receive service of documents from the Clerks Office for the reason indicated in the G−06 Notice. Filed by defendant Maura Harty, Michael Chertoff, Jonathan Scharfen (Leibman, Melissa) (Entered: 03/13/2009)
120 NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Plaintiffs Outside the Ninth Circuit filed by defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. Motion set for hearing on 4/20/2009 at 10:00 AM before Judge Christina A. Snyder. (Bruckner, Patricia) (Entered: 03/13/2009)
121 STATEMENT of Uncontroverted Facts and Conclusions of Law in Support of MOTION for Partial Summary Judgment as to Plaintiffs Outside the Ninth Circuit 120 filed by Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (Bruckner, Patricia) (Entered: 03/13/2009)
122 DECLARATION of Michael J. Sheridan in support of MOTION for Partial Summary Judgment as to Plaintiffs Outside the Ninth Circuit 120 filed by Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (Bruckner, Patricia) (Entered: 03/13/2009)
123 PROPOSED ORDER GRANTING DEFENDANTS' re MOTION for Partial Summary Judgment as to Plaintiffs Outside the Ninth Circuit 120 filed by Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (Bruckner, Patricia) (Entered: 03/13/2009)
124 NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Ninth Circuit Class Plaintiffs filed by defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. Motion set for hearing on 4/20/2009 at 10:00 AM before Judge Christina A. Snyder. (Attachments: # 1 Proposed Order Granting Defendants' Motion for Partial Summary Judgment)(Bruckner, Patricia) (Entered: 03/13/2009)
125 STATEMENT of Uncontroverted Facts MOTION for Partial Summary Judgment as to Ninth Circuit Class Plaintiffs 124 filed by Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (Bruckner, Patricia) (Entered: 03/13/2009)
126 DECLARATION of Michael J. Sheridan In Support of MOTION for Partial Summary Judgment as to Ninth Circuit Class Plaintiffs 124 filed by Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (Bruckner, Patricia) (Entered: 03/13/2009)
127 EXHIBIT A to MOTION for Partial Summary Judgment as to Ninth Circuit Class Plaintiffs 124 filed by Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (Bruckner, Patricia) (Entered: 03/13/2009)
128 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: This document tendered for the judge's approval should have been submitted as a separate PDF attachment to the Motion for Summary Judgment [#113] or a Notice of Lodging. RE: Statement (Motion related)

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 16 of 20

03/13/2009 03/17/2009 03/17/2009 03/18/2009 03/18/2009 03/18/2009 03/18/2009 03/19/2009 03/23/2009

115 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (pp) (Entered: 03/16/2009)
129 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Local Rule 11−6, Memorandum/brief exceeds 25 pages. RE: Plaintiffs' Memorandum in Support of Renewed Motion for Summary Judgment 114 . In response to this notice the court may order: (1) an amended or corrected document to be filed, (2) the document stricken, or (3) take other action as the court deems appropriate. (mg) (Entered: 03/16/2009)
130 NOTICE of Change of Attorney Information for attorney Sheri R Glaser counsel for Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen.Sheri R. Glaser is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−06 Notice. Filed by counsel for Defendant Sheri R. Glaser (Glaser, Sheri) (Entered: 03/17/2009)
131 STIPULATION to Exclude Alan Diamante from Telephonic Status Conference filed by plaintiff Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Attachments: # 1 Proposed Order, # 2 Exhibit A; Notice of Hearing in Removal Proceedings)(Renison, Brent) (Entered: 03/17/2009)
132 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error was found: DOCUMENT SHOULD HAVE BEEN PROVIDED FOR THE JUDGE'S APPROVAL AS A SEPARATE PDF ATTACHMENT TO THE MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. No. 120) OR TO A NOTICE OF LODGING. RE: Motion Related Document 123 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (pp) (Entered: 03/18/2009)
133 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error was found: DOCUMENT SHOULD HAVE BEEN SUBMITTED AS A SEPARATE PDF ATTACHMENT TO THE MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO THE NINTH CIRCUIT CLASS PLAINTIFFS (Doc. No. 124) or to a NOTICE OF LODGING. RE: Statement (Motion related) 125 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (pp) (Entered: 03/18/2009)
134 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error was found: DOCUMENT SHOULD HAVE BEEN SUBMITTED AS A SEPARATE PDF ATTACHMENT TO THE MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. No. 120) OR TO A NOTICE OF LODGING. RE: Statement (Motion related) 121 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (pp) (Entered: 03/18/2009)
135 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following errors were found: (1) TITLE PAGE IS MISSING; (2) EXHIBITS COULD BE ATTACHED TO THE MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO THE NINTH CIRCUIT CLASS PLAINTIFFS (Doc. No. 124) AS A SEPARATE PDF ATTACHMENT. RE: Exhibit to Motion 127 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (pp) (Entered: 03/18/2009)
136 ORDER by Judge Christina A. Snyder Excusing Alan Diamante From Telephonic Status Conference. The Court ordered a Telephonic Status Conference re: Case on March 23, 2009 at 11:45 A.M. Pacific Daylight Time (PDT), and ordered the telephone conference call to include all counsel of record. The parties agree that Mr. Diamante may be excluded from participation in the telephonic status conference. Re: Stipulation to Exclude 131 . (mg) (Entered: 03/20/2009)
137 MEMORANDUM in Opposition to Renewed MOTION for Summary Judgment 113 filed by Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Statement of Genuine

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 17 of 20

03/23/2009 03/27/2009 03/27/2009 04/06/2009 04/06/2009 04/06/2009 04/08/2009 04/17/2009
04/20/2009 04/20/2009 04/22/2009
04/28/2009 04/28/2009
04/29/2009

Issues of Material Fact)(Bruckner, Patricia) (Entered: 03/23/2009)
138 MINUTE ORDER re Telephonic Status Conference held before Judge Christina A. Snyder. The Court confers with counsel regarding the above−referenced action and confirms that the Court will proceed on track with this action as scheduled.Court Reporter: Laura Elias. (pp) (Entered: 03/25/2009)
139 OPPOSITION to MOTION for Partial Summary Judgment as to Ninth Circuit Class Plaintiffs 124 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 03/27/2009)
140 OPPOSITION to MOTION for Partial Summary Judgment as to Plaintiffs Outside the Ninth Circuit 120 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Attachments: # 1 Exhibit A Walsh Approval)(Renison, Brent) (Entered: 03/27/2009)
141 REPLY in support of MOTION for Partial Summary Judgment as to Ninth Circuit Class Plaintiffs 124 filed by Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (Bruckner, Patricia) (Entered: 04/06/2009)
142 REPLY in support of MOTION for Partial Summary Judgment as to Plaintiffs Outside the Ninth Circuit 120 filed by Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (Bruckner, Patricia) (Entered: 04/06/2009)
143 REPLY in support of Renewed MOTION for Summary Judgment 113 filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered: 04/06/2009)
144 NOTICE of Decision: Lockhart v. Napolitano filed by plaintiff Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Attachments: # 1 Exhibit A)(Renison, Brent) (Entered: 04/08/2009)
145 MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: On the Court's own motion, the Court continues the following motions from 4/20/09 to 4/22/09 at 10:00 AM: Plaintiffs' MOTION for Summary Judgment 113 ; Defendants' MOTION for Partial Summary Judgment 120 ; and Defendants' MOTION for Partial Summary Judgment as to Ninth Circuit Class Plaintiffs 124 . Therefore, counsel are ordered not to appear on 4/20/09 at 10:00 a.m. (mg) (Entered: 04/17/2009)
146 STATUS REPORT filed by Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (Bruckner, Patricia) (Entered: 04/20/2009)
147 DECLARATION of Michael J. Sheridan filed by Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bruckner, Patricia) (Entered: 04/20/2009)
148 MINUTES OF Motion Hearing by Judge Christina A. Snyder: Hearing held and counsel are present. Tentative provided to counsel on April 20, 2009by facsimile. The Court confers with counsel and counsel argue. The Court takes the motions under submission. The Court will issue a final ruling.Court Reporter: Laura Elias. (pp) (Entered: 04/23/2009)
149 Joint STIPULATION for Order dismissing plaintiffs Heard, Walsh, Win, Simmons (Rudl) and Poindexter filed by plaintiff Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Attachments: # 1 Proposed Order)(Renison, Brent) (Entered: 04/28/2009)
151 ORDER by Judge Christina A. Snyder: Granting in part and denying in part Defendants' 120 Motion for Partial Summary Judgment as to All Plaintiffs Outside the Ninth Cirucuit; Denying Defendants' 124 Motion for Partial Summary Judgment as to Plaintiffs in the Ninth Circuit; and Granting in part denying in part Plaintiffs' 113 Renewed Motion for Summary Judgment. (mg) (Entered: 05/01/2009)
150 STATUS REPORT (JOINT) AS TO PLAINTIFFS WHOSE CASES ARISE OUTSIDE THE NINTH, SIXTH AND THIRD CIRCUITS filed by Plaintiffs Carolyn Robb Hootkins, Maria Moncayo−Gigax. (Renison, Brent) (Entered:

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 18 of 20

04/30/2009 05/05/2009 06/29/2009 06/30/2009 06/30/2009 07/29/2009 10/21/2009 01/22/2010
01/25/2010

04/29/2009)
152 ORDER by Judge Christina A. Snyder: Plaintiffs and Defendants, by and through their undersigned counsel, enter the following Stipulation 149 : Lawful Permanent Resident status has been granted by Defendants to Plaintiffs Dahianna Heard, Gladys Walsh, Khin Thidar Win, Tracy Lee Rudl, and Purita Manuel Pointdexter. Based upon Plaintiffs' and Defendants' stipulation, it is ORDERED that the claims of the LPR Plaintiffs are DISMISSED as moot. (mg) (Entered: 05/01/2009)
153 Joint STIPULATION to Dismiss plaintiffs Maria Diaz−Ruiz, Diana Engstrom, Yelena Arias Angulo, Agnieszka Bernstein, Sarah Bayor, Farah Batool filed by plaintiff Carolyn Robb Hootkins.(Renison, Brent) (Entered: 05/05/2009)
154 NOTICE OF APPEAL to the 9th CCA filed by defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. Appeal of Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment,,,, 151 . (Filing Fee waived.) (Bruckner, Patricia) (Entered: 06/29/2009)
155 NOTICE OF APPEAL NOTIFICATION form issued regarding Notice of Appeal to 9th Circuit Court of Appeals 154 as to Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (lr) (Entered: 06/30/2009)
156 NOTIFICATION by Circuit Court of Appellate Docket Number 09−56019, 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals 154 as to Defendants Maura Harty, Michael Chertoff, Jonathan Scharfen. (lr) (Entered: 07/01/2009)
157 TRANSCRIPT DESIGNATION AND ORDERING FORM For Dates: April 22, 2009; Court Reporter: Laura Elias; Court of Appeals Case Number: 09−56019; Re: 154 (Bruckner, Patricia) (Entered: 07/29/2009)
158 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 154 filed by Michael Chertoff, Maura Harty, Jonathan Scharfen, CCA # 09−56019. The court has received and reviewed the responses to the order to show cause. The order to show cause is discharged. If appellants have not already done so, appellants shall within 10 calendar days after the date of this order, designate any repoter's transcripts or serve on appellees a statement indicating that appellants do not intent to order any transcripts. (cbr) (Entered: 10/23/2009)
159 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 154 filed by Michael Chertoff, Maura Harty, Jonathan Scharfen, CCA # 09−56019. The court is in receipt of appellant's correspondence dated January 19, 2010, requesting dismissal of the appeal without prejudice to reinstatement should the district court not approve the parties' pending settlement in this class action litigation. The court construes the request as a motion to dismiss without prejudice to reinstatement. So construed, the motion to dismiss the appeal without prejudice is granted. The appeal is dismissed without prejudcie to reinstatement in the event the district court does not approve the parties' pending settlement agreement. reinstatement shall be by notice filed by any party in this court and served on the other parties and the undersigned within 28 days of the district court order not approving the settlement, but in any event August 17, 2010. If no notice of reinstatement is filed and served by Augsut 17, 2010, the appeal will be deemed dismissed with prejudice. The parties shall bear their own costs on appeal as specified in the settlement agreement. This order served on the district court shall act as and for the mandate of this court. Order received in this district on 1/22/2010. (lr) Modified on 1/25/2010 (lr). (Entered: 01/25/2010)
160 NOTICE OF MOTION AND Joint MOTION for Settlement Approval of Class Action Settlement (Preliminary) and for Approval of Notice to Class filed by defendants Michael Chertoff, Jonathan Scharfen. Motion set for hearing on 3/1/2010 at 10:00 AM before Judge Christina A. Snyder. (Attachments: # 1 Exhibit 1: Stipulation adn Agreement of Settlement and Release, # 2 Exhibit A to Stipulation, # 3 Exhibit B to Stipulation, # 4 Exhibit 2 to Motion: USCIS Guidance, # 5 Exhibit 3 to Motion: Proposed Notice, # 6 Proposed Order)(Stevens, Elizabeth) (Entered: 01/25/2010)

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 19 of 20

01/27/2010 01/29/2010 02/01/2010 02/24/2010 02/24/2010
03/01/2010 03/01/2010
03/02/2010

161 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Memorandum/brief exceeding 10 pages shall contain table of contents, Local Rule 11−8 RE: Notice of Motion and Joint Motion for Preliminary Approval of Class Action Settlement and Approval of Notice to Class filed 1/25/2010 160 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (gk) (Entered: 01/27/2010)
162 Amendment to Joint MOTION for Settlement Approval of Class Action Settlement (Preliminary) and for Approval of Notice to ClassJoint MOTION for Settlement Approval of Class Action Settlement (Preliminary) and for Approval of Notice to ClassJoint MOTION for Settlement Approval of Class Action Settlement (Preliminary) and for Approval of Notice to Class 160 Adding Table of Contents and Authorities filed by Defendants Michael Chertoff, Jonathan Scharfen. (Stevens, Elizabeth) (Entered: 01/29/2010)
163 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Title page does not indicate that this is an Amendment to the Motion (document 160), and instead is entitled as a new Motion. RE: Notice of Motion and Joint Motion for Preliminary Approval of Class Action Settlement, etc. 162 , (docketed as Amendment (Motion related). In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (mg) (Entered: 02/01/2010)
164 NOTICE OF MOTION AND MOTION for Leave of Brent W. Renison to Appear for plaintiff by telephone filed by plaintiff Carolyn Robb Hootkins. Motion set for hearing on 3/1/2010 at 10:00 AM before Judge Christina A. Snyder. (Attachments: # 1 Proposed Order)(Renison, Brent) (Entered: 02/24/2010)
165 ORDER by Judge Christina A. Snyder granting Motion for Leave of Brent W. Renison to Appear for plaintiff by telephone 164 . The undersigned counsel for plaintiffs respectfully requests the Courts permission to appear via telephone at the hearing for settlement approval of the class action settlement (preliminary) and for approval of notice to class, scheduled for 3/1/2010 at 10:00 AM. Intervening legislation has aided the parties reach a settlement favorable to plaintiffs, and no opposition is anticipated at the hearing. Counsel for plaintiffs Alan Diamante is prepared to appear in person at the hearing. Counsel for defendants do not object to this motion. Brent W. Renison can be reached on his direct office line at (503) 597−7190. (jp) (Entered: 02/25/2010)
166 MINUTES OF Motion Hearing on Joint Motion for Preliminary Approval of Class Action Settlement and Approval of Notice to Class 160 held before Judge Christina A. Snyder: The Court inquires of counsel regarding the anticipated date for the Final Settlement Hearing is to be scheduled and orders parties to return on 4/5/2010 10:00 AM before Judge Christina A. Snyder. The Court advises counsel that the proposed order will be executed and provided to counsel later today. Court Reporter: Laura Elias. (gk) (Entered: 03/01/2010)
167 ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND APPROVAL OF NOTICE TO CLASS by Judge Christina A. Snyder: The Court has decided to GRANT the Joint Motion for Preliminary Approval of Class Action Settlement and Approval of Notice To Class 160 . The Court will hold a Final Settlement Hearing ("Fairness Hearing") on 4/5/2010, at 10:00 AM, to determine whether the terms of the Settlement Agreement are fair, reasonable, and adequate and should be approved by the Court, and to rule upon such other matters as the Court may deem appropriate; and whether a Final Judgment, attached as Exhibit B to the Settlement Agreement, should be entered and the Released Parties should be released from the Settled Claims by the Releasing Parties, as provided in the Settlement Agreement. See document for details. (gk) (Entered: 03/02/2010)
168 MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: The Court orders this matter statistically reopened. (Case reopened. MD JS−5.) Court Reporter: Not Present. (gk) (Entered: 03/02/2010)

Case: 2:07-cv-5696 As of: 02/17/2013 04:53 PM PST 20 of 20

03/29/2010
03/30/2010 04/05/2010 04/05/2010

169 NOTICE OF MOTION AND MOTION for Leave of Brent W. Renison to Appear for plaintiffs by telephone filed by plaintiff Carolyn Robb Hootkins. Motion set for hearing on 4/5/2010 at 10:00 AM before Judge Christina A. Snyder. (Attachments: # 1 Proposed Order)(Renison, Brent) (Entered: 03/29/2010)
170 ORDER by Judge Christina A. Snyder granting 169 Motion for Leave to Appear of Brent Renison for plaintiffs at the telephonic Final Settlement Hearing on 4/5/10 @ 10:00 a.m. (pp) (Entered: 04/01/2010)
171 FINAL ORDER AND JUDGMENT by Judge Christina A. Snyder. (MD JS−6, Case Terminated). (pp) (Entered: 04/05/2010)
172 MINUTES OF FINAL SETTLEMENT HEARING held before Judge Christina A. Snyder.Court Reporter: Laura Elias. (pp) (Entered: 04/05/2010)