Case 2:17-cv-00094-JCC Document 17 Filed 02/01/17 Page 1 of 35

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UNITED STATES DISTRICT COURT

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FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 8

ABDIQAFAR WAGAFE and MEHDI 9 OSTADHASSAN on behalf of themselves and
others similarly situated, 10
Plaintiffs, 11

COMPLAINT-CLASS ACTION

v. 12

Case No: 2:17-cv-00094-JCC

DONALD TRUMP, President of the United 13 States; UNITED STATES CITIZENSHIP

AMENDED COMPLAINT FOR

AND IMMIGRATION SERVICES; JOHN F. DECLARATORY AND INJUNCTIVE 14 KELLY, in his official capacity as Secretary of RELIEF

the U.S. Department of Homeland Security; 15 LORI SCIALABBA, in her official capacity as

Acting Director of the U.S. Citizenship and 16 Immigration Services; MATTHEW D.

EMRICH, in his official capacity as Associate 17 Director of the Fraud Detection and National

Security Directorate of the U.S. Citizenship 18 and Immigration Services; DANIEL

RENAUD, in his official capacity as Associate 19 Director of the Field Operations Directorate of

the U.S. Citizenship and Immigration Services, 20

Defendants. 21

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AMENDED COMPLAINT
Case No. 2:17-cv-00094-JCC

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1

INTRODUCTION

2 1. This class action lawsuit seeks to stop the federal government from unconstitutionally preventing

3 Plaintiffs, and others like them, from obtaining immigration benefits, including, but not limited to,

4 asylum, naturalization, lawful permanent residence, and employment authorization.

5 2. On January 27, 2017, President Trump issued an Executive Order entitled “Protecting the Nation

6 from Foreign Terrorist Entry into the United States.”

7 3. Section 3 of the Executive Order suspends entry into the United States of citizens or nationals of

8 Syria, Iraq, Iran, Yemen, Somalia, Sudan, and Libya, all of which are predominantly Muslim countries,

9 for 90 days or more. Although the Executive Order says nothing about suspending adjudications, U.S.

10 Citizenship and Immigration Service (“USCIS”) has determined that the Executive Order requires it to

11 suspend adjudication or final action on all pending petitions, applications, or requests involving citizens

12 or nationals of those seven countries with the exception of naturalization applications.

13 4. Section 4 of the Executive Order further directs federal agencies to create and implement a

14 policy of extreme vetting of all immigration benefits applications to identify individuals who are seeking

15 to enter the country based on fraud and with the intent to cause harm or who are at risk of causing harm

16 after admission. Any such “extreme vetting” policy will expand a current USCIS program called the

17 Controlled Application Review and Resolution Program (“CARRP”). CARRP imposes extra-statutory

18 rules and criteria to delay and deny immigration benefits to which applicants are entitled.

19 5. Plaintiff Abdiqafar Wagafe is a Somali national who has applied for and is eligible to naturalize

20 as a United States citizen. He has been waiting three and a half years for a decision on his naturalization

21 application.

22 6. Plaintiff Mehdi Ostadhassan is an Iranian national who has applied for and is eligible to adjust

23 his status to that of a permanent resident. He has waited three years for a decision on his adjustment of

24 status application.

25 7. Both Plaintiffs are practicing Muslims and long-term residents of the United States.

26 Adjudication of Plaintiff Ostadhassan’s application is now suspended. This suspension, as well as the

27 inordinate delays both he and Plaintiff Wagafe have faced, have held and will hold the lives of Plaintiffs,

28 and others like them, in a state of limbo. They are prevented from having certainty about their future

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1 residence in the United States, from being able to travel overseas, from petitioning for immigration

2 benefits for family members, from obtaining jobs available only to U.S. citizens, and from voting in U.S.

3 elections.

4 8. On behalf of themselves, and others similarly situated, Plaintiffs request that this Court order

5 USCIS to resume adjudications of immigration benefits applications for citizens or nationals of Syria,

6 Iraq, Iran, Yemen, Somalia, Sudan, and Libya. They also seek to enjoin the federal government from

7 subjecting them and others like them—immigrants who are living in the United States and who are

8 applying for naturalization or adjustment of status as permanent residents—to any “extreme vetting” and

9 screening program that imposes unlawful criteria for adjudication and approval of their applications and

10 that is ultra vires to the Constitution and immigration laws and is based on unconstitutional animus

11 towards people of the Muslim faith or from Muslim-majority countries. 12 9. The Executive Order and application of CARRP1 to pending immigration applications are

13 unlawful and unconstitutional. The Executive Order reflects a preference for one religious faith over

14 another in the adjudication of immigration applications, and, inter alia, discriminates against immigrants

15 who are Muslim or from Muslim-majority countries on the basis of their religion and country of origin.

16 CARRP and the “extreme vetting” program to be established under the Executive Order are similarly

17 unlawful and ultra vires. The Constitution expressly assigns to Congress, not the executive branch, the

18 authority to establish uniform rules of naturalization. The Immigration and Nationality Act (“INA”) sets

19 forth those rules, along with the requirements for adjustment of status to lawful permanent residence,

20 asylum, and all other immigration benefits. By creating additional, non-statutory, substantive criteria for

21 adjudicating immigration applications, CARRP and any successor “extreme vetting” program violate the

22 INA, Article I of the Constitution, and the Due Process Clause.

23 10. Without intervention by this Court, the applications of Plaintiff Ostadhassan and proposed class

24 members will be unlawfully suspended due to the application of the Executive Order, and adjudications

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26

1 As set forth below in paragraph 70, USCIS did not make information about CARRP public, and the program only was discovered through fortuity during federal court litigation. To the extent the program

27 has shifted in name, scope, or method, Plaintiffs may have no way to obtain that information. Thus, Plaintiffs’ reference to “CARRP” incorporates any similar non-statutory and sub-regulatory successor

28 vetting policy.

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1 of both Plaintiff’s and proposed class members’ applications will be unlawfully subject to, and

2 adjudicated under, CARRP or a successor “extreme vetting” program.

3 11. Plaintiffs therefore request that the Court order USCIS to resume adjudications of immigration

4 benefits applications for citizens and nationals of the seven countries identified in the Executive Order

5 and enjoin USCIS from applying CARRP (or any similar ultra vires policy/successor “extreme vetting”

6 program) to their immigration applications and the applications of similarly situated individuals.

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JURISDICTION AND VENUE

9 12. Plaintiffs allege violations of the INA, the Administrative Procedure Act (“APA”), and the U.S.

10 Constitution. This Court has subject matter jurisdiction under 28 U.S.C. § 1331. This Court also has

11 authority to grant declaratory relief under 28 U.S.C. §§ 2201 and 2202, and injunctive relief under 5

12 U.S.C. § 702 and 28 U.S.C. § 1361.

13 13. Venue is proper in the Western District of Washington under 28 U.S.C. §§ 1391(b) and 1391(e)

14 because (1) Plaintiff Abdiqafar Wagafe, a lawful permanent resident of the United States, resides in this

15 district and no real property is involved in this action; (2) a substantial part of the events giving rise to

16 the claims occurred in this district; and (3) Plaintiffs sue Defendants in their official capacity as officers

17 of the United States.

18

PARTIES

19 14. Plaintiff Abdiqafar Wagafe is a thirty-two-year-old Somali national and a lawful permanent

20 resident of the United States. He has lived in the United States since May 2007 and currently resides in

21 SeaTac, Washington. He is Muslim. He applied for naturalization in November 2013. Even though he

22 satisfies all statutory criteria for naturalization, USCIS has subjected his application to CARRP or its

23 successor “extreme vetting” program, and as a result, a final decision has not been issued.

24 15. Plaintiff Mehdi Ostadhassan is a thirty-three-year-old national of Iran. He has lived in the

25 United States since 2009 and resides in Grand Forks, North Dakota. He applied for adjustment to lawful

26 permanent resident status in February 2014. He is Muslim. Even though he satisfies all statutory

27 criteria for adjustment of status, USCIS has suspended adjudication of his application under the

28 Executive Order and subjected his application to CARRP or its successor “extreme vetting” program,

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1 and as a result, a final decision has not been issued.

2 16. Defendant Donald Trump is the President of the United States. Plaintiffs sue Defendant Trump

3 in his official capacity.

4 17. Defendant USCIS is a component of the Department of Homeland Security (“DHS”), and is

5 responsible for overseeing the adjudication of immigration benefits. USCIS implements federal law and

6 policy with respect to immigration benefits applications.

7 18. Defendant John F. Kelly is the Secretary of DHS, the department under which USCIS and

8 several other immigration agencies operate. Accordingly, Secretary Kelly has supervisory responsibility

9 over USCIS. Plaintiffs sue Defendant Kelly in his official capacity.

10 19. Defendant Lori Scialabba is the Acting Director of USCIS. Acting Director Scialabba

11 establishes and implements immigration benefits applications policy for USCIS and its subdivisions.

12 Plaintiffs sue Defendant Scialabba in her official capacity.

13 20. Defendant Matthew D. Emrich is the Associate Director of the Fraud Detection and National

14 Security Directorate of USCIS (“FDNS”), which is ultimately responsible for determining whether

15 individuals filing applications for immigration benefits pose a threat to national security, public safety,

16 or the integrity of the nation’s legal immigration system. Associate Director Emrich establishes and

17 implements policy for FDNS. Plaintiffs sue Defendant Emrich in his official capacity.

18 21. Defendant Daniel Renaud is the Associate Director of the Field Operations Directorate of

19 USCIS, which is responsible for and oversees the processing and adjudication of immigration benefits

20 applications through the USCIS field offices and the National Benefits Center. Plaintiffs sue Defendant

21 Renaud in his official capacity.

22

LEGAL FRAMEWORK

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A. Naturalization

24 22. To naturalize as a U.S. citizen, an applicant must satisfy certain eligibility criteria under the INA

25 and its implementing regulations. See generally 8 U.S.C. §§ 1421-1458; 8 C.F.R. §§ 316.1-316.14.

26 23. Applicants must prove that they are “at least 18 years of age,” 8 C.F.R. § 316.2(a)(1); have

27 “resided continuously, after being lawfully admitted” in the United States, “for at least five years”; and

28 have been “physically present” in the United States for “at least half of that time,” 8 U.S.C.

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1 § 1427(a)(1).

2 24. Applicants must also demonstrate “good moral character” for the five years preceding the date of

3 application, “attach[ment] to the principles of the Constitution of the United States, and favorabl[e]

4 dispos[ition] toward the good order and happiness of the United States . . . .” 8 C.F.R. § 316.2(a)(7).

5 25. An applicant is presumed to possess the requisite “good moral character” for naturalization

6 unless, during the five years preceding the date of the application, he or she is found (1) to be a habitual

7 drunkard, (2) to have committed certain drug-related offenses, (3) to be a gambler whose income derives

8 principally from gambling or has been convicted of two or more gambling offenses, (4) to have given

9 false testimony for the purpose of obtaining immigration benefits; or if the applicant (5) has been

10 convicted and confined to a penal institution for an aggregate period of 180 days or more, (6) has been

11 convicted of an aggravated felony, or (7) has engaged in conduct such as aiding Nazi persecution or

12 participating in genocide, torture, or extrajudicial killings. 8 U.S.C. § 1101(f)(6).

13 26. The statutory and regulatory requirements set forth in paragraphs 23-24 are less stringent for

14 certain persons who married U.S. citizens and employees of certain nonprofit organizations, in that less

15 than five years of residency and good moral character are required. See generally 8 U.S.C. § 1430; 8

16 C.F.R. §§ 319.1 and 319.4.

17 27. An applicant is barred from naturalization for national security-related reasons in circumstances

18 limited to those codified in 8 U.S.C. § 1424, including, inter alia, if the applicant has advocated, is

19 affiliated with any organization that advocates, or writes or distributes information that advocates, “the

20 overthrow by force or violence or other unconstitutional means of the Government of the United States,”

21 the “duty, necessity, or propriety of the unlawful assaulting or killing of any officer . . . of the

22 Government of the United States,” or “the unlawful damage, injury, or destruction of property.”

23 28. Once an individual submits an application, USCIS must conduct a background investigation, see

24 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1, which includes a full criminal background check by the Federal

25 Bureau of Investigation (“FBI”), see 8 C.F.R. § 335.2.

26 29. After completing the background investigation, USCIS must schedule a naturalization

27 examination at which the applicant meets with a USCIS examiner for an interview.

28 30. In order to avoid inordinate processing delays and backlogs, Congress has stated “that the

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1 processing of an immigration benefit application,” which includes naturalization, “should be completed

2 not later than 180 days after the initial filing of the application.” 8 U.S.C. § 1571(b). USCIS must

3 either grant or deny a naturalization application within 120 days of the date of the examination. 8 C.F.R.

4 § 335.3.

5 31. If the applicant has complied with all requirements for naturalization, federal regulations state

6 that USCIS “shall grant the application.” 8 C.F.R. § 335.3(a) (emphasis added).

7 32. Courts have long recognized that “Congress is given power by the Constitution to establish a

8 uniform Rule of Naturalization. . . . And when it establishes such uniform rule, those who come within

9 its provisions are entitled to the benefit thereof as a matter of right. . . .” Schwab v. Coleman, 145 F.2d

10 672, 676 (4th Cir. 1944) (emphasis added); see also Marcantonio v. United States, 185 F.2d 934, 937

11 (4th Cir. 1950) (“The opportunity having been conferred by the Naturalization Act, there is a statutory

12 right in the alien to submit his petition and evidence to a court, to have that tribunal pass upon them,

13 and, if the requisite facts are established, to receive the certificate.” (quoting Tutun v. United States, 270

14 U.S. 568, 578 (1926))).

15 33. Once an application is granted, the applicant is sworn in as a United States citizen.

16

B. Adjustment of Status to Lawful Permanent Resident

17 34. Federal law allows certain non-citizens to adjust their immigration status to that of a lawful

18 permanent resident (“LPR”).

19 35. Several events may trigger eligibility to adjust to LPR status, including, but not limited to, an

20 approved petition through a family member, such as a U.S. citizen spouse, or employer. See, e.g., 8

21 U.S.C. § 1255(a); 8 C.F.R. § 245.1.

22 36. In general, a noncitizen who is the beneficiary of an approved immigrant visa petition and who is

23 physically present in the United States may adjust to LPR status if he or she “makes an application for

24 such adjustment,” was “inspected and admitted or paroled” into the United States, is eligible for an

25 immigrant visa and admissible to the United States, and the immigrant visa is immediately available to

26 the applicant at the time the application is filed. 8 U.S.C. §§ 1255(a)(1)-(3); 8 C.F.R. § 245.1.

27 37. An adjustment applicant may be found inadmissible, and therefore ineligible to become an LPR,

28 if certain security-related grounds apply, including, inter alia, the applicant has engaged in terrorist

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1 activity, is a representative or member of a terrorist organization, endorses or espouses terrorist activity,

2 or incites terrorist activity. See 8 U.S.C. § 1182(a)(3). USCIS’s definition of a national security concern

3 in CARRP is significantly broader than these security-related grounds of inadmissibility set by

4 Congress.

5 38. Congress has directed USCIS to process immigration benefit applications, including for

6 adjustment of status, within 180 days. 8 U.S.C. § 1571(b).

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C. Other Immigration Benefits

8 39. Federal laws provide noncitizens living within the United States the opportunity to apply for a

9 myriad of other immigration benefits apart from either naturalization or adjustment of status.

10 40. For example, persons fleeing persecution or torture may apply for asylum under 8 U.S.C. § 1158,

11 or withholding of removal, under 8 U.S.C. § 1231(b)(3). Victims of certain crimes and trafficking who

12 have suffered serious harm and who have cooperated with law enforcement may apply for nonimmigrant

13 visas under 8 U.S.C. §§ 1101(a)(15)(T), (U). Certain noncitizens from designated countries may apply

14 for Temporary Protected Status (“TPS”) in the event of, inter alia, a natural disaster or political

15 upheaval in their country of origin. 8 U.S.C. § 1254a. In addition, a significant number of noncitizens

16 within the United States are eligible for employment authorization based on either their current

17 immigration status, their employment status, or their temporary immigration status, including while

18 other applications for immigration benefits are pending. See generally 8 C.F.R. § 274.12a(a)-(c).

19 41. Every immigration benefit has enumerated statutory and/or regulatory requirements that

20 applicants must affirmatively establish to demonstrate eligibility. In addition, each applicant generally

21 must show that they are admissible under 8 U.S.C. § 1182 and/or are that any past immigration violation

22 or criminal conduct does not disqualify them for the benefit sought. See, e.g., 8 U.S.C., §§ 1158(b)(2)

23 (precluding asylum eligibility to individuals found to have persecuted others, to have been convicted of

24 “a particularly serious crime,” or to present a danger to national security); 1231(b)(3)(B) (precluding

25 applicants from receiving withholding of removal based on national security grounds); 1254a(c)(2)(B)(i)

26 (precluding applicants from qualifying for TPS if they have been convicted of a felony or two or more

27 misdemeanors).

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FACTUAL BACKGROUND

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A. Executive Order of January 27, 2017

2 42. President Donald Trump campaigned for election on promises to ban Muslims from coming to

3 the United States.

4 43. On December 7, 2015, the Trump campaign issued a press release stating that “Donald J. Trump

5 is calling for a total and complete shutdown of Muslims entering the United States until our country’s

6 representatives can figure out what is going on.” The press release is attached hereto as Exhibit A.

7 44. In March 2016, Defendant Trump said, “Frankly, look, we’re having problems with the Muslims,

8 and we’re having problems with Muslims coming into the country.” Alex Griswold, Trump Responds to

9 Brussels Attacks: ‘We’re Having Problems with the Muslims,’ MEDIAITE, Mar. 22, 2016, available at

10 http://www.mediaite.com/tv/trump-responds-to-brussels-attack-were-having-problems-with-the-

11 muslims/ (last visited: Feb. 1, 2017).

12 45. On June 14, 2016, Defendant Trump promised to ban all Muslims entering this country until “we

13 as a nation are in a position to properly and perfectly screen those people coming into our country.” The

14 transcript of his speech is attached hereto as Exhibit B.

15 46. In a speech on August 15, 2016, Defendant Trump said that the United States could not

16 “adequate[ly] screen[]” immigrants because it admits “about 100,000 permanent immigrants from the

17 Middle East every year.” Defendant Trump proposed creating an ideological screening test for

18 immigration applicants, which would “screen out any who have hostile attitudes towards our country or

19 its principles—or who believe that Sharia law should supplant American law.” During the speech, he

20 referred to his proposal as “extreme, extreme vetting.” A copy of his prepared remarks are attached

21 hereto as Exhibit C. A video link to the delivered speech is available at: https://www.c-

22 span.org/video/?413977-1/donald-trump-delivers-foreign-policy-address (quoted remarks at 50:46).

23 47. During an August 2016 speech, Michael Flynn, who is now President Trump’s National Security

24 Advisor, called Islam “a political ideology,” suggesting it is not a religion, and called it “a vicious

25 cancer inside the body of 1.7 billion people on this planet and it has to be excised.” A copy of a news

26 article reporting this speech is attached hereto as Exhibit D. A video link with clips of his speech is

27 available at: http://www.cnn.com/2016/11/22/politics/kfile-michael-flynn-august-speech/.

28 48. On January 20, 2017, Donald Trump was inaugurated as the President of the United States.

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1 49. In his first television appearance as President, he again referred to his plan for “extreme vetting.”

2 The transcript of this interview is attached hereto as Exhibit E.

3 50. On January 27, 2017, one week after taking office, Defendant Trump signed an executive order

4 entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” The Executive

5 Order is attached hereto as Exhibit F and is hereinafter referred to as the “EO.” On information and

6 belief, and in light of the statements by Mr. Trump and his advisors set forth above, the EO was intended

7 to target Muslims.

8 51. Citing the threat of terrorism committed by foreign nationals, the EO directs a variety of changes

9 to the processing of certain immigration benefits. Most relevant to the instant action is Section 3 of the

10 EO, which falls within a section entitled “Suspension of Issuance of Visas and Other Immigration

11 Benefits,” in which President Trump orders, in Section 3(a), an immediate “review to determine the

12 information needed from any country to adjudicate any visa, admission, or other benefit under the INA

13 (adjudications) in order to determine that the individual seeking the benefit is who the individual claims

14 to be and is not a security or public-safety threat.” In Section 3(c), the order then explains that to reduce

15 the burden of the reviews described in Section 3(a), “immigrant and nonimmigrant entry into the United

16 States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would

17 be detrimental to the interests of the United States,” and that Defendant Trump is therefore

18 “suspend[ing] entry into the United States, as immigrants and nonimmigrants, of such persons for 90

19 days from the date of this order.”

20 52. There are seven countries that fit the criteria in 8 U.S.C. § 1187(a)(12): Iraq, Iran, Libya,

21 Somalia, Sudan, Syria, and Yemen. The populations of those countries are overwhelmingly Muslim.

22 53. The EO purports to rely on 8 U.S.C. § 1182(f) for the authority to suspend entry into the United

23 States.

24 54. On information and belief, USCIS relies on Section 3 of the EO to suspend processing immigrant

25 visas and immigration benefits.

26 55. Section 4 of the EO orders the creation of a screening program for all immigration benefits

27 applications, which will seek to identify individuals “who are seeking to enter the United States on a

28 fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their

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1 admission” and “a process to evaluate the applicant’s likelihood of becoming a positively contributing

2 member of society and the applicant’s ability to make contributions to the national interest.”

3 56. Sections 5(a) and (b) of the EO suspends the U.S. Refugee Admissions Program in its entirety

4 for 120 days and then, upon its resumption, directs the program to prioritize refugees who claim

5 persecution on the basis of religious-based persecution, “provided that the religion of the individual is a

6 minority religion in the individual’s country of nationality.” Section 5(e) states that notwithstanding the

7 suspension of the Refugee Program, on a case-by-case basis, the United States may admit refugees “only

8 so long as they determine that the admission of such individuals as refugees is in the national interest—

9 including when the person is a religious minority in his country of nationality facing religious

10 persecution.”

11 57. In a January 27, 2017, interview with the Christian Broadcasting Network, President Trump

12 confirmed his intent to prioritize Christians in the Middle East for admission as refugees. A copy of the

13 report of this interview is attached hereto as Exhibit G (David Brody: “As it relates to persecuted

14 Christians, do you see them as kind of a priority here?” President Trump: “Yes.”).

15

B. Ban on the Adjudication of Immigration Benefits Applications for Immigrants from

16

the Seven Countries

17 58. After the issuance of the EO, at least two department heads within USCIS sent internal

18 communications barring any final action on any petition or benefits application involving citizens or

19 nationals of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya.

20 59. On January 28, 2017, Associate Director of Service Center Operations for USCIS, Donald

21 Neufeld, issued instructions to Service Center directors and deputies in an email message directing the

22 suspension of the “adjudication of all applications, petitions or requests involving citizens or nationals of

23 the [seven] listed countries.” The email continues, “At this point there are no exceptions for any form

24 types, to include I-90s or I-765s. Please physically segregate any files that are impacted by this

25 temporary hold pending further guidance.” Photographs of the internal email communication are

26 attached hereto as Exhibit H.

27 60. In another email to staff from Daniel M. Renaud, Associate Director of Field Operations for

28 USCIS, on January 28, 2017, Mr. Renaud stated, “Effectively [sic] immediately and until additional

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1 guidance is received, you may not take final action on any petition or application where the applicant is

2 a citizen or national of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya.” Alice Speri and Ryan

3 Devereaux, Turmoil at DHS and State Department, THE INTERCEPT, Jan. 30, 2017, available at

4 https://theintercept.com/2017/01/30/asylum-officials-and-state-department-in-turmoil-there-are-people-

5 literally-crying-in-the-office-here/. The email continued, “Offices are not permitted [to] make any final

6 decision on affected cases to include approval, denial, withdrawal, or revocation. Please look for

7 additional guidance later this weekend on how to process naturalization applicants from one of the seven

8 countries listed above who are currently scheduled for oath ceremony or whose N-400s have been

9 approved and they are pending scheduling of oath ceremony.” Id.; see also Michael D. Shear and Ron

10 Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos, NEW YORK TIMES

11 (Jan. 29, 2017), available at https://www.nytimes.com/2017/01/29/us/politics/donald-trump-rush-

12 immigration-order-chaos.html.

13 61. On January 31, 2017, U.S. Customs and Border Protection, a subdivision of DHS, published a

14 clarification on its website regarding whether the EO applies to people with pending naturalization

15 applications. The site reported that the EO does not so apply and that “USCIS will continue to

16 adjudicate N-400 applications for naturalization and administer the oath of citizenship consistent with

17 prior practices.” Protecting the Nation from Foreign Terrorist Entry into the United States, CBP,

18 https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states.

19 62. Referencing the hold on adjudications for people from the seven countries, a USCIS official told

20 The Intercept, “We know what is coming. These cases will all be denied after significant waits.” Alice

21 Speri and Ryan Devereaux, Turmoil at DHS and State Department, THE INTERCEPT, Jan. 30, 2017.

22 63. The application of the EO to immigration benefits applications for immigrants from the seven

23 countries will effectuate the intent of the EO to target Muslims.

24

C. “Extreme Vetting” of Muslim Immigrants

25 64. As described above, Section 4 of the EO orders the Secretary of State, the Secretary of

26 Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of

27 Investigation to “implement a program, as part of the adjudication process for immigration benefits” to

28 identify individuals “who are at risk of causing harm.” The EO calls for the implementation of a

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1 “program [that] will include the development of a uniform screening standard and procedure,” including

2 “a process to evaluate the applicant’s likelihood of becoming a positively contributing member of

3 society and the applicant’s ability to make contributions to the national interest,” as well as “a

4 mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after

5 entering the United States.”

6 65. Upon information and belief, this “extreme vetting” program will dramatically expand CARRP,

7 an existing program USCIS has implemented since April 2008.

8 66. CARRP is an agency-wide policy for identifying, processing, and adjudicating immigration

9 applications that raise “national security concerns.” As described below, however, CARRP unlawfully

10 imposes extra statutory rules and criteria to delay and deny applicants immigration benefits to which

11 they are entitled.

12 67. Congress did not enact CARRP, and USCIS did not promulgate it as a proposed rule with the

13 notice-and-comment procedures mandated by the APA. See 5 U.S.C. § 553(b)-(c).

14 68. Upon information and belief, prior to CARRP’s enactment, USCIS simply delayed the

15 adjudication of many immigration applications that raised possible national security concerns, in part

16 due to backlogs created by the FBI Name Check process (one of many security checks utilized by

17 USCIS).

18 69. Indeed, the U.S. District Court for the Western District of Washington previously certified a

19 district class of hundreds of naturalization applicants whose cases were delayed due to FBI Name

20 Checks, see Roshandel v. Chertoff, 554 F. Supp. 2d 1194 (W.D. Wash. 2008), and denied the

21 defendants’ motion to dismiss the suit, see Roshandel, 2008 WL 1969646 (W.D. Wash. May 5, 2008).

22 The case resulted in a settlement in which the defendants agreed to adjudicate class member applications

23 within a specified time period. See Roshandel, No. C07-1739MJP, Dkt. 81 (W.D. Wash. Aug. 25,

24 2008).

25 70. Now, in lieu of delays based on the FBI Name Check process, USCIS delays applications by

26 applying CARRP. Since CARRP’s inception, USCIS has not made information about CARRP available

27 to the public, except in response to Freedom of Information Act (“FOIA”) requests and litigation to

28 compel responses to those requests. See ACLU of Southern California v. USCIS, No. CV 13-861

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1 (D.D.C. filed June 7, 2013). In fact, the program was unknown to the public, including applicants for

2 immigration benefits, until it was discovered in litigation challenging an unlawful denial of

3 naturalization in Hamdi v. USCIS, No. EDCV 10-894 VAP (DTBx), 2012 WL 632397 (C.D. Cal. Feb.

4 25, 2012), and then revealed in greater detail through the government’s response to a FOIA request.

5 71. CARRP directs USCIS officers to screen citizenship and immigration benefits applications for

6 national security concerns.

7 72. If a USCIS officer determines that an application presents a national security concern, he or she

8 will take the application off a routine adjudication track and—without notifying the applicant—place it

9 on a CARRP adjudication track where it is subject to distinct procedures, heightened scrutiny, and, most

10 importantly, extra-statutory criteria that result in lengthy delays and prohibit approvals, except in limited

11 circumstances, regardless of an applicant’s statutory eligibility.

12

1. CARRP’s Definition of a National Security Concern

13 73. According to the CARRP definition, a national security concern arises when an individual or

14 organization has been determined to have an articulable link—no matter how attenuated or

15 unsubstantiated—to prior, current, or planned involvement in, or association with, an activity,

16 individual, or organization described in sections 212(a)(3)(A), (B), or (F), or 237(a)(4)(A) or (B) of the

17 Immigration and Nationality Act. Those sections of the INA make inadmissible or removable any

18 individual who, inter alia, “has engaged in terrorist activity” or is a member of a “terrorist

19 organization.” 8 U.S.C. §§ 1182(a)(3) and 1227(a)(4).

20 74. For the reasons described herein, an individual need not be actually suspected of engaging in any

21 unlawful activity or joining any proscribed organization to be branded a national security concern under

22 CARRP.

23 75. CARRP distinguishes between two types of national security concerns: those ostensibly

24 involving “Known or Suspected Terrorists” (“KSTs”), and those ostensibly involving “non-Known or

25 Suspected Terrorists” (“non-KSTs”).

26 76. USCIS automatically considers an applicant a KST, and thus a national security concern, if his or

27 her name appears in the Terrorist Screening Database, also referred to as the Terrorist Watchlist

28 (“TSDB” or “Watchlist”). USCIS, therefore, applies CARRP to any applicant whose name appears in

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1 the TSDB.

2 77. Upon information and belief, the TSDB includes approximately one million names, many of

3 whom present no threat to the United States.

4 78. The government’s Watchlisting Guidance sets a very low “reasonable suspicion” standard for

5 placement on the Watchlist. Under the Guidance, concrete facts are not necessary to satisfy the

6 reasonable suspicion standard, and uncorroborated information of questionable or even doubtful

7 reliability can serve as the basis for blacklisting an individual. The Guidance further reveals that the

8 government blacklists non-U.S. citizens, including LPRs, even where it cannot meet the already low

9 reasonable suspicion standard of purported involvement with terrorist activity. The Guidance permits

10 the watchlisting of noncitizens simply for being associated with someone else who has been watchlisted,

11 even if there is no known involvement with that person’s purportedly suspicious activity. The Guidance

12 also states explicitly that noncitizens may be watchlisted based on information that is very limited or of

13 suspected reliability. These extremely loose standards significantly increase the likelihood that the

14 TSDB contains information on individuals who are neither known nor appropriately suspected terrorists.

15 79. Furthermore, the Terrorist Screening Center (“TSC”), which maintains the TSDB, has failed to

16 ensure that individuals who do not meet the Watchlist’s criteria are promptly removed from the TSDB

17 (or not blacklisted in the first place). In 2013 alone, the watchlisting community nominated 468,749

18 individuals to the TSDB, and the TSC rejected only approximately one percent of those nominations.

19 Public reports also confirm that the government has nominated or retained people on government

20 watchlists as a result of human error.

21 80. The federal government’s official policy is to refuse to confirm or deny any given individual’s

22 inclusion in the TSDB or provide a meaningful opportunity to challenge that inclusion. Nevertheless,

23 individuals can become aware of their inclusion due to air travel experiences. In particular, individuals

24 may learn that they are on the “Selectee List” or the “Expanded Selectee List,” subsets of the TSDB, if

25 their boarding passes routinely display the code “SSSS” or they are routinely directed for additional

26 screening before boarding a flight over U.S. airspace. They may also learn of their inclusion in the

27 TSDB if U.S. federal agents regularly subject them to secondary inspection when they enter the United

28 States from abroad. Such individuals are also often unable to check-in for flights online or at airline

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1 electronic kiosks at the airport.

2 81. Where the KST designation does not apply, CARRP instructs officers to look for indicators of a

3 non-Known or Suspected Terrorist (“non-KST”) concern.

4 82. These indicators fall into three categories: (1) statutory indicators; (2) non-statutory indicators;

5 and (3) indicators contained in security check results.

6 83. Statutory indicators of a national security concern arise when an individual generally meets the

7 definitions described in Sections 212(a)(3)(A), (B), and (F), and 237(a)(4)(A) and (B) of the INA

8 (codified at 8 U.S.C. § 1182(a)(3)(A), (B), and (F) and § 1227(a)(4)(A) and (B)), which list the security 9 and terrorism grounds of inadmissibility and removability.2 However, CARRP expressly defines

10 statutory indicators of a national security concern more broadly than the statute, stating that the facts of

11 the case do not need to satisfy the legal standard used in determining admissibility or removability under

12 those provisions of the INA to give rise to a non-KST national security concern.

13 84. For example, CARRP policy specifically directs USCIS officers to scrutinize evidence of

14 charitable donations to organizations later designated as financiers of terrorism by the U.S. Treasury

15 Department and to construe such donations as evidence of a national security concern, even if an

16 individual had made such donations without any knowledge that the organization was engaged in

17 proscribed activity. Such conduct would not make an applicant inadmissible for a visa, asylum, or LPR

18 status under the statute, see 8 U.S.C. § 1182(a)(3)(B), nor does it have any bearing on a naturalization

19 application.

20 85. Under CARRP, non-statutory indicators of a national security concern include travel through or

21 residence in areas of known terrorist activity; a large scale transfer or receipt of funds; a person’s

22 employment, training, or government affiliations; the identities of a person’s family members or close

23 associates, such as a roommate, co-worker, employee, owner, partner, affiliate, or friend; or simply other

24

25 2 These security and terrorism grounds of inadmissibility, if applicable, may bar an applicant from

26

obtaining lawful permanent resident status, asylum, or a visa. However, they do not bar an applicant who is already a lawful permanent resident from naturalization, which is governed by the statutory

27 provisions specific to naturalization. See 8 U.S.C. §§ 1421-1458. The security and terrorism provisions may also render a non-citizen removable, see 8 U.S.C. § 1227(a)(4), but the government has not charged

28 Plaintiffs with removability under these provisions.

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1 suspicious activities.

2 86. Finally, security check results are considered indicators of a national security concern in

3 instances where, for example, the FBI Name Check produces a positive hit on an applicant’s name and

4 the applicant’s name is associated with a national security-related investigatory file. Upon information

5 and belief, this indicator leads USCIS to label applicants national security concerns solely because their

6 names appear in a law enforcement or intelligence file, even if they were never the subject of an

7 investigation. For example, an applicant’s name could appear in a law enforcement file in connection

8 with a national security investigation because he or she once gave a voluntary interview to an FBI agent,

9 he or she attended a mosque that was the subject of FBI surveillance, or he or she knew or was

10 associated with someone under investigation.

11 87. Upon information and belief, CARRP labels applicants national security concerns based on

12 vague and overbroad criteria that often turn on national origin or innocuous and lawful activities or

13 associations. These criteria are untethered from the statutory criteria that determine whether a person is

14 eligible for the immigration status or benefit they seek, and are so general that they necessarily ensnare

15 individuals who pose no threat to the security of the United States.

16

2. Delay and Denial

17 88. Once a USCIS officer identifies a CARRP-defined national security concern, the application is

18 subjected to CARRP’s rules and procedures that guide officers to deny such applications or, if an officer

19 cannot find a basis to deny the application, to delay adjudication as long as possible.

20

a) Deconfliction

21 89. One such procedure is called “deconfliction,” which requires USCIS to coordinate with—and,

22 upon information and belief, subordinate its authority to—the law enforcement agency, often the FBI,

23 that possesses information giving rise to the supposed national security concern.

24 90. During deconfliction, the relevant law enforcement agency has authority: to instruct USCIS to

25 ask certain questions in an interview or to issue a Request for Evidence (“RFE”); to comment on a

26 proposed decision on the benefit; and to request that USCIS deny, grant, or hold the application in

27 abeyance for an indefinite period of time.

28 91. Upon information and belief, deconfliction allows law enforcement or intelligence agencies such

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1 as the FBI to directly affect the adjudication of a requested immigration benefit, and also results in the

2 agencies conducting independent interrogations of the applicant—or the applicant’s friends and family.

3 92. Upon information and belief, USCIS often makes decisions to deny immigration benefit

4 applications because the FBI requests or recommends the denial, not because the person is statutorily

5 ineligible for the benefit.

6 93. The FBI often seeks to use the pending immigration application to coerce the applicant to act as

7 an informant or otherwise provide information.

8

b) Eligibility Assessment

9 94. In addition to deconfliction, once officers identify an applicant as a national security concern,

10 CARRP directs officers to perform an “eligibility assessment” to determine whether the applicant is

11 eligible for the benefit sought.

12 95. Upon information and belief, at this stage, CARRP instructs officers to look for any reason to

13 deny an application so that time and resources are not expended to investigate the possible national

14 security concern. Where no legitimate reason supports denial of an application subjected to CARRP,

15 USCIS officers often utilize spurious or pretextual reasons to deny the application.

16

c) Internal Vetting

17 96. Upon information and belief, if, after performing the eligibility assessment, an officer cannot

18 find a reason to deny an application, CARRP instructs officers to first “internally vet” the national

19 security concern using information available in DHS systems and databases, open source information,

20 review of the applicant’s file, RFEs, and interviews or site visits.

21 97. After conducting the eligibility assessment and internal vetting, USCIS officers are instructed to

22 again conduct deconfliction to determine the position of any interested law enforcement agency.

23

d) External Vetting

24 98. If the national security concern remains and the officer cannot find a basis to deny the benefit,

25 the application then proceeds to “external vetting.”

26 99. During external vetting, USCIS instructs officers to confirm the existence of the national security

27 concern with the law enforcement or intelligence agency that possesses the information that created the

28 concern and obtain additional information from that agency about the concern and its relevance to the

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1 individual.

2 100. CARRP policy instructs USCIS officers to hold applications in abeyance for periods of 180 days

3 to enable law enforcement agents and USCIS officers to investigate the national security concern.

4 According to CARRP policy, the USCIS Field Office Director may extend the abeyance periods as long

5 as the investigation remains open.

6 101. Upon information and belief, CARRP provides no outer limit on how long USCIS may hold a

7 case in abeyance, even though the INA requires USCIS to adjudicate a naturalization application within

8 120 days of examination, 8 C.F.R. § 335.3, and Congress has made clear its intent that USCIS

9 adjudicate immigration applications, including visa petitions and accompanying applications for

10 adjustment of status to lawful permanent residence, within 180 days of filing the application. 8 U.S.C. §

11 1571(b).

12

e) Adjudication

13 102. When USCIS considers an applicant to be a KST national security concern, CARRP policy

14 forbids USCIS adjudications officers from granting the requested benefit even if the applicant satisfies

15 all statutory and regulatory criteria.

16 103. When USCIS considers an applicant to be a non-KST national security concern, CARRP policy

17 forbids USCIS adjudications officers from granting the requested benefit in the absence of supervisory

18 approval and concurrence from a senior level USCIS official.

19 104. In Hamdi, 2012 WL 632397, when asked whether USCIS’s decision to brand naturalization

20 applicant Tarek Hamdi as a national security concern affected whether he was eligible for naturalization,

21 a USCIS officer testified that “it doesn’t make him statutorily ineligible, but because he is a—he still has

22 a national security concern, it affects whether or not we can approve him.” The officer testified that,

23 under CARRP, “until [the] national security concern [is] resolved, he won’t get approved.”

24 105. Upon information and belief, USCIS routinely delays adjudication of applications subject to

25 CARRP when it cannot find a reason to deny the application. When an applicant files a mandamus

26 action to compel USCIS to finally adjudicate his or her pending application, it often has the effect of

27 forcing USCIS to deny a statutorily-eligible application on pretextual grounds because CARRP prevents

28 agency field officers from granting an application involving a national security concern.

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1 106. CARRP effectively creates two substantive regimes for immigration application processing and

2 adjudication: one for those applications subject to heightened scrutiny and vetting under CARRP and

3 one for all other applications. CARRP rules and procedures create substantive eligibility criteria that

4 indefinitely delay adjudications and unlawfully deny immigration benefits to noncitizens who are

5 statutorily eligible and entitled by law.

6 107. At no point during the CARRP process is the applicant made aware that he or she has been

7 labeled a national security concern, nor is the applicant ever provided with an opportunity to respond to

8 and contest the classification.

9 108. Upon information and belief, CARRP results in unauthorized adjudication delays, often lasting

10 many years, and pre-textual denials of statutorily-eligible immigration applications.

11

B. Facts Specific To Each Plaintiff

12

Abdiqafar Wagafe

13 109. Plaintiff Abdiqafar Aden Wagafe is a thirty-two-year-old Somali national who currently resides

14 in SeaTac, Washington.

15 110. Between 2001 and 2007, Mr. Wagafe lived in refugee camps and temporary refugee housing in

16 Kenya and Ethiopia.

17 111. On May 24, 2007, he moved to the United States with nine family members and was admitted as

18 a refugee. He has lived in the United States since then.

19 112. After arriving in the United States, Mr. Wagafe briefly stayed in Minneapolis, Minnesota with

20 his brother. He then moved to Seattle, where his two sisters and another brother live.

21 113. All of the nine family members who moved to the United States with Mr. Wagafe have become

22 U.S. citizens.

23 114. From July 2007 until February 2011, Mr. Wagafe worked for Delta Global Services until

24 widespread layoffs left him without a job. Since February 2011, he has worked at a Somali restaurant,

25 which he currently co-owns and manages.

26 115. On May 28, 2008, Mr. Wagafe filed an application for refugee adjustment of status to become an

27 LPR.

28 116. USCIS granted his application on November 3, 2008, retroactively granting him LPR status as of

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1 May 24, 2007, the date he was admitted to the U.S. as a refugee. See 8 C.F.R. § 209.1(e).

2 117. Mr. Wagafe filed his first application for naturalization on July 3, 2012. USCIS interviewed him

3 on October 29, 2012, but he failed the English-language portion of the exam. USCIS interviewed Mr.

4 Wagafe a second time on January 3, 2013, but he again failed the English writing portion of the exam.

5 He also did not understand English sufficiently to comprehend the Oath of Allegiance. On these bases,

6 USCIS denied his first application for naturalization on January 9, 2013.

7 118. Mr. Wagafe has since improved his English skills significantly.

8 119. Mr. Wagafe filed a second application for naturalization on November 8, 2013. USCIS

9 scheduled his interview for February 25, 2014, but cancelled it on January 29, 2014 without explanation.

10 120. Mr. Wagafe has made various inquiries concerning his case to USCIS, but he has not received an

11 explanation for the delay. USCIS last responded to his queries in July 2015, instructing his attorney to

12 have patience and that the agency would let him know when the agency was ready to interview him. His

13 subsequent inquiries have gone unanswered.

14 121. Mr. Wagafe has resided continuously in the United States for at least five years preceding the

15 date of filing his application for naturalization, and has resided continuously within the United States

16 from the date of filing his application until the present.

17 122. Mr. Wagafe has never been convicted of a crime.

18 123. There is no statutory basis for denying his naturalization application.

19 124. Mr. Wagafe is Muslim and regularly attends Mosque. He also frequently sends small amounts of

20 money to his relatives in Somalia, Kenya, and Uganda. He has been married to a woman in Uganda

21 since December 2015 and makes visits to see her. He has been unable to bring her to the United States

22 because of the delays in his case.

23 125. Mr. Wagafe’s immigration Alien file (“A-file”) makes clear that USCIS subjected his pending

24 application to CARRP. The A-file states that a CARRP officer handled his case. In addition, a

25 document in the A-File shows that on December 8, 2013, there was a hit on Mr. Wagafe’s name in the

26 FBI Name Check and that the Name Check result contained “derogatory information.” The document

27 also states that Mr. Wagafe appears eligible for naturalization absent confirmation of national security

28 issues. The document then states that the case is being forwarded for external vetting.

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1 126. Upon information and belief, Mr. Wagafe’s naturalization application is subject to CARRP or its

2 successor “extreme vetting” program, which is causing the delay in adjudication of his naturalization

3 application, despite the fact that he is statutorily entitled to naturalize.

4 127. Mr. Wagafe has suffered significant harm due to the delay in adjudication of his naturalization

5 application. Although he is married to a Ugandan woman, he has been unable to bring her to live with

6 him in the United States, because he must become a United States citizen in order for her to qualify as

7 an immediate relative, see generally 8 U.S.C. § 1151, and thus avoid the waiting list for petitions filed

8 by lawful permanent residents on behalf of their spouses. CARRP has also has harmed his professional

9 options and prevented him from voting in local and national elections.

10

Mehdi Ostadhassan

11 128. Plaintiff Mehdi Ostadhassan is a thirty-three-year-old national of Iran. He resides in Grand

12 Forks, North Dakota.

13 129. Mr. Ostadhassan moved to the United States in 2009 on a student visa and studied at the

14 University of North Dakota. He earned his Ph.D. in Petroleum Engineering, and, after graduation, was

15 immediately hired by the University of North Dakota as an Assistant Professor of Petroleum

16 Engineering.

17 130. At the University of North Dakota, Mr. Ostadhassan met Bailey Bubach, a United States citizen.

18 In January 2014, they were married in a small religious ceremony in California, and then obtained their

19 marriage license in Grand Forks, North Dakota. Their first child was born in July 2016.

20 131. In February 2014, Ms. Bubach filed an immigrant visa petition (USCIS Form I-130) for Mr.

21 Ostadhassan and he concurrently filed an application to adjust status (USCIS Form I-485) based upon

22 his marriage.

23 132. Mr. Ostadhassan has never been convicted of a crime.

24 133. USCIS scheduled Mr. Ostadhassan for an interview on May 19, 2014, but when he appeared for

25 the interview, USCIS informed him that it was cancelled.

26 134. USCIS rescheduled and conducted an interview almost a year and a half later, on September 24,

27 2015. At that interview, a USCIS officer told Mr. Ostadhassan that the agency still could not make a

28 decision and that it needed to complete further background and security checks. To date, Mr.

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1 Ostadhassan is still waiting for a decision from USCIS.

2 135. Mr. Ostadhassan and Ms. Bubach are Muslim and active participants in their religious

3 community. Each year they donate to Muslim charities in accordance with the teachings of Islam. They

4 are both involved in the Muslim Student Association at the University of North Dakota. In addition,

5 they run a Muslim Sunday School. Mr. Ostadhassan also coordinates the Muslim Congress’s Koran

6 competition every year.

7 136. Upon information and belief, USCIS considers Mr. Ostadhassan a non-KST national security

8 concern and is subjecting him to CARRP. USCIS may have subjected Mr. Ostadhassan’s adjustment

9 application to CARRP because he has resided in and traveled through what the government considers

10 areas of known terrorist activity—namely, Iran—and because of his donations to Islamic charities and

11 involvement in the Muslim community.

12 137. In October 2014, an FBI agent contacted Mr. Ostadhassan and asked to meet to discuss his recent

13 trip to Iran to visit family. Mr. Ostadhassan declined to meet with the FBI, and his lawyer informed the

14 agent that any further communications should go through the attorney. The FBI has not contacted Mr.

15 Ostadhassan since.

16 138. Upon information and belief, the request for a visit by the FBI was a product of CARRP’s

17 deconfliction process. As Mr. Ostadhassan is a citizen of Iran, one of the seven countries listed in the

18 EO, his application for adjustment of status is subject to the EO. Upon information and belief,

19 adjudication of his application therefore has been suspended indefinitely.

20 139. Upon information and belief, Mr. Ostadhassan’s application for adjustment of status is also

21 subject to CARRP or its successor “extreme vetting” program, which is has delayed the adjudication of

22 his application, despite the fact that he is statutorily eligible for adjustment of status.

23 140. Mr. Ostadhassan has been significantly harmed by the delay in adjudication of his adjustment of

24 status application. Because of his temporary nonimmigrant status, and without an approved adjustment

25 application, he cannot travel outside the United States. He recently was unable to travel to Iran to

26 introduce his American wife and infant to his Iranian family; his wife and child traveled to Iran without

27 him. He has also lost out on significant professional opportunities. He is a college professor, and his

28 unapproved adjustment application has prevented him from attending conferences overseas. Due to the

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1 delay, he and his wife feel that their lives and future in the United States are suspended in limbo, not

2 knowing whether they have a future in the United States.

3

CLASS ACTION ALLEGATIONS

4 141. Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), Plaintiffs bring this action on

5 behalf of themselves and all other similarly-situated individuals. Plaintiffs do not bring claims for

6 compensatory relief. Instead, Plaintiffs seek injunctive relief broadly applicable to members of the

7 Plaintiff Classes, as defined below. The requirements for Rule 23 are met with respect to the classes

8 defined below.

9 142. Plaintiffs seek to represent the following nationwide classes:

10

A Muslim Ban Class defined as:

A national class of all persons currently and in the future (1) who are in the United States,

11

(2) have or will have an application for an immigration benefit pending before USCIS

12

that is not a naturalization application, and (3) are a citizen or national of Syria, Iraq, Iran,

Yemen, Somalia, Sudan, or Libya.

13

An Extreme Vetting Naturalization Class defined as:

14

A national class of all persons currently and in the future (1) who have or will have an

15

application for naturalization pending before USCIS, (2) that is subject to CARRP or its successor “extreme vetting” program, and (3) that has not been or will not be adjudicated

16

by USCIS within six months of having been filed.

17 18 19 20 143.

An Extreme Vetting Adjustment of Status Class defined as: A national class of all persons currently and in the future (1) who have or will have an application for adjustment of status pending before USCIS, (2) that is subject to CARRP or its successor “extreme vetting” program, and (3) that has not been or will not be adjudicated by USCIS within six months of having been filed.
Plaintiff Ostadhassan is an adequate class representative of the Muslim Ban class. Plaintiff

21 Wagafe is an adequate representative of the Extreme Vetting Naturalization Class. Plaintiff Ostadhassan

22 is also an adequate representation of the Extreme Vetting Adjustment of Status Class.

23 144. The Proposed Classes are each so numerous that joinder of all members is impracticable.

24 145. Although Plaintiffs do not know the total number of people from the seven countries targeted in

25 the EO who have pending immigration benefits applications (excluding naturalization applications) at

26 any given time, publicly available USCIS data reveals that in 2015, there were 83,109 people from those

27 seven countries who were granted applications for lawful permanent residence, asylum, and refugee

28 admission.

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1 146. Similarly, although Plaintiffs do not know the total number of people subject to CARRP or any

2 successor “extreme vetting” program at any given time, USCIS data reveals that between Fiscal Year

3 2008 and Fiscal Year 2012, more than 19,000 people from twenty-one Muslim-majority countries or

4 regions were subjected to CARRP. Upon information and belief, between 2008 and 2016, USCIS

5 opened 41,805 CARRP cases.

6 147. This data includes individuals with pending naturalization and adjustment of status applications.

7 For example, in March 2009, there were 1,437 adjustment of status (I-485) applications subject to

8 CARRP that had been pending for at least six months and 1,065 naturalization (N-400) applications

9 subject to CARRP that had been pending for at least six months.

10 148. The exact number of individuals subject to the EO, CARRP or any successor “extreme vetting”

11 program at any given time fluctuates as applications are filed and USCIS applies these policies and

12 practices to the applications. Moreover, members of the class reside in various locations across the

13 country. For these and other reasons, joinder of the members of the Classes would create substantial

14 challenges to the efficient administration of justice. Joinder is thus impracticable here.

15 149. In addition, there are questions of law and fact common to the members of the Classes. The

16 Muslim Ban and Extreme Vetting Adjustment of Status Class are subject to Defendants’ unauthorized

17 suspension of immigration benefits adjudications. All classes are subject to CARRP (or a successor

18 “extreme vetting” program). Accordingly, common questions of law and fact include, but are not

19 limited to, the following:

20

• Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

21

EO violates Defendants’ duty to timely adjudicate immigration benefit applications authorized

by the Immigration and Nationality Act;

22

• Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

23

EO to Plaintiff Ostadhassan’s application violates the Establishment Clause of the First

24

Amendment to the United States Constitution by not pursuing a course of neutrality with regard

to different religious faiths;

25

• Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

26

EO and application of CARRP (or a successor “extreme vetting” program) to Plaintiffs’

applications discriminates against Plaintiffs on the basis of their country of origin, and without

27

sufficient justification, and therefore violates the equal protection component of the Due Process

28

Clause of the Fifth Amendment to the United States Constitution.

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1

• Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the EO and application of CARRP (or a successor “extreme vetting” program) to Plaintiffs’

2

applications is substantially motivated by animus toward—and has a disparate effect on—

Muslims in violation of the equal protection component of the Due Process Clause of the Fifth

3

Amendment to the United States Constitution;

4

• Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

5

EO and application of CARRP or a successor “extreme vetting” program to Plaintiffs’

applications for immigration benefits, for which they are statutorily eligible and to which they

6

are legally entitled, constitutes an arbitrary denial in violation of Plaintiffs’ right to substantive

due process under the Fifth Amendment to the United States Constitution;

7

8

• Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the EO and application of CARRP (or a successor “extreme vetting” program) to Plaintiffs’

9

applications violates the INA by creating additional, non-statutory, substantive criteria that must

be met prior to a grant of a naturalization or adjustment of status application;

10

• Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

11

EO and application of CARRP (or a successor “extreme vetting” program) to Plaintiffs’

12

applications violates the APA, 5 U.S.C. § 706, as final agency action that is arbitrary and capricious, contrary to constitutional law, and in excess of statutory authority;

13

• Whether Defendants’ the application of CARRP (or a successor “extreme vetting” program) to

14

Plaintiffs’ applications constitutes a substantive rule and, as a result, Defendants violated the

APA, 5 U.S.C. § 553, when they promulgated CARRP without providing a notice-and-comment

15

period prior to implementing it;

16 • Whether Defendants’ failure to give Plaintiffs notice of their classification under CARRP (or a

17

successor “extreme vetting” program), a meaningful explanation of the reason for such

classification, and a process by which Plaintiffs can challenge their classification violates the

18

Due Process Clause of the Fifth Amendment to the United States Constitution; and

19

• Whether Defendants’ application of CARRP (or a successor “extreme vetting” program) to

20

Plaintiff Wagafe’s application violates the Uniform Rule of Naturalization, Article I, Section 8,

Clause 4 of the United States Constitution by establishing criteria for naturalization not

21

authorized by Congress.

22
150. The claims of the named Plaintiffs are typical of their respective Plaintiff Classes. Plaintiffs 23
know of no conflict between their interests and those of the Plaintiff Classes they seek to represent. In 24
defending their own rights, the named Plaintiffs will defend the rights of all proposed Plaintiff Class 25
members fairly and adequately. The members of the Classes are readily ascertainable through notice 26
and discovery. 27
151. Plaintiffs are represented by counsel with particular expertise in immigration and constitutional 28

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1 law, and extensive experience in class action and other complex litigation.

2 152. Defendants have acted or refused to act on grounds generally applicable to each member of the

3 Plaintiff Classes by unlawfully applying the EO and/or CARRP (or its successor “extreme vetting”

4 program) to their immigration applications—thus applying additional non-statutory, substantive

5 requirements for naturalization and adjustment of status, and causing them to have suffered and continue

6 to suffer injury in the form of unreasonable delays and denials of their applications.

7 153. A class action is superior to other methods available for the fair and efficient adjudication of this

8 controversy because joinder of all members of the Classes is impracticable. Absent the relief they seek

9 here, there would be no other way for the Plaintiff Class members to individually redress the wrongs

10 they have suffered and will continue to suffer.

11

CAUSES OF ACTION

12

FIRST CLAIM FOR RELIEF

13

Immigration and Nationality Act and the Administrative Procedure Act

14

(Plaintiff Ostadhassan on behalf of himself and the Muslim Ban Class)

15 154. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

16 155. Section 212(f) of the Immigration and Nationality, 8 U.S.C. § 1182(f), is entitled “Suspension of

17 Entry or Imposition of Restrictions by President.” That provision authorizes the President to suspend

18 entries or impose restrictions on entries. That provision does not authorize the President to suspend

19 adjudication of immigration petitions, applications, or requests of any class of persons.

20 156. Defendants have interpreted the EO to authorize the suspension of immigration petitions,

21 applications, or requests involving Plaintiff Ostadhassan and members of the Muslim Ban Class.

22 157. Accordingly, Defendants have suspended adjudication of such immigration benefits petitions,

23 applications, or requests.

24 158. Defendants’ actions in suspending adjudications violates 8 U.S.C. § 1182(f) and is arbitrary,

25 capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional

26 right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short

27 of statutory right; and without observance of procedure required by law, in violation of the

28 Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)-(D).

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1

SECOND CLAIM FOR RELIEF

2

Mandamus (28 U.S.C. § 1361)

3

(Plaintiff Ostadhassan on behalf of himself and the Muslim Ban Class)

4 159. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

5 160. Defendants have a duty to adjudicate all immigrant benefits petitions, applications or requests

6 authorized by the Immigration and Nationality Act, implementing regulations, or other law.

7 161. The EO does not authorize the suspension of adjudication of immigration benefits petitions,

8 applications, or requests.

9 162. Defendants have interpreted the EO to authorize the suspension of immigration benefit

10 applications for petitions, applications, or requests involving Plaintiff Ostadhassan and members of the

11 Muslim Ban Class.

12 163. Accordingly, Defendants have suspended adjudication of immigration benefits petitions,

13 applications, or requests.

14 164. Defendants’ refusal to adjudicate immigration benefits petitions, applications, or requests

15 violates Defendants’ statutory and constitutional duty to adjudicate these matters, and to do so in a

16 nondiscriminatory manner.

17

THIRD CLAIM FOR RELIEF

18

First Amendment (Establishment Clause)

19

(Plaintiff Ostadhassan on behalf of himself and the Muslim Ban Class)

20 165. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

21 166. The EO was intended to target a specific religious faith, Islam, and gives preference to other

22 religious faiths, principally Christianity, and it has that intended effect when applied to Plaintiffs and

23 members of the Muslim Ban Class. Defendants’ application of the EO to Plaintiffs and members of the

24 Plaintiff Classes violates the Establishment Clause of the First Amendment to the United States

25 Constitution by not pursuing a course of neutrality with regard to different religious faiths.

26

FOURTH CLAIM FOR RELIEF

27

Fifth Amendment (Procedural Due Process)

28

(All Plaintiffs on behalf of themselves and the Plaintiff Classes)

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1 167. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

2 168. Defendants’ failure to give Plaintiffs and members of the Extreme Vetting Naturalization and

3 Extreme Vetting Adjustment of Status Classes notice of their classification under CARRP (or successor

4 “extreme vetting” program), a meaningful explanation of the reason for such classification, and any

5 process by which Plaintiffs can challenge their classification, violates the Due Process Clause of the

6 Fifth Amendment to the United States Constitution.

7 169. The EO’s directive to screen applicants for immigration benefits based on “the applicant’s

8 likelihood of becoming a positively contributing member of society and the applicant’s ability to make

9 contributions to the national interest” also is void because it is unconstitutionally vague under the Due

10 Process Clause of the Fifth Amendment to the United States Constitution.

11 170. Because of these violations of their constitutional rights, Plaintiffs and members of the Plaintiff

12 Classes have suffered and continue to suffer injury in the form of unreasonable delays and unwarranted

13 denials of their immigration applications.

14

FIFTH CLAIM FOR RELIEF

15

Fifth Amendment (Substantive Due Process)

16

(All Plaintiffs on behalf of themselves and the Plaintiff Classes)

17 171. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

18 172. Defendants’ unauthorized and indefinite suspension of the adjudication of Plaintiffs’ and the

19 Proposed Classes’ applications for immigration benefits violates their right to substantive due process

20 under the Fifth Amendment to the United States Constitution, because Plaintiffs cannot be denied

21 immigration benefits for which they are statutorily eligible, and to which they are entitled by law, in an

22 arbitrary manner.

23

SIXTH CLAIM FOR RELIEF

24

Fifth Amendment (Equal Protection)

25

(All Plaintiffs on behalf of themselves and the Plaintiff Classes)

26 173. Plaintiffs incorporate the allegations of the proceeding paragraphs as if fully set forth herein.

27 174. Defendants’ indefinite suspension of the adjudication of Plaintiffs’ applications for immigration

28 benefits on the basis of their country of origin, and without sufficient justification, violates the equal

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1 protection component of the Due Process Clause of the Fifth Amendment.

2 175. Additionally, Defendants’ indefinite suspension of the adjudication of Plaintiff Ostadhassan and

3 the Muslim Ban Class applications for immigration benefits under the EO was substantially motivated

4 by animus toward—and has a disparate effect on—Muslims, which also violates the equal protection

5 component of the Due Process Clause of the Fifth Amendment.

6 176. Applying a general law in a fashion that discriminates on the basis of religion violates Plaintiffs’

7 and the Plaintiff Classes’ rights to equal protection under the Fifth Amendment Due Process Clause.

8 177. The EO is intended and will be applied primarily to exclude individuals on the basis of their

9 national origin and religion. Further, the President has promised that preferential treatment will be given

10 to Christians, unequivocally demonstrating the special preferences and discriminatory impact that the

11 EO has upon Plaintiffs and the Proposed Classes.

12 178. Defendants have applied the EO with discriminatory animus and discriminatory intent in

13 violation of the equal protection component of the Fifth Amendment.

14

SEVENTH CLAIM FOR RELIEF

15

Immigration and Nationality Act and Implementing Regulations

16

(Plaintiffs on behalf of themselves and the Extreme Vetting Naturalization and

17

Extreme Vetting Adjustment of Status Classes)

18 179. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

19 180. To secure naturalization and adjustment of status, an applicant must satisfy certain statutorily-

20 enumerated criteria.

21 181. By its terms, CARRP creates additional, non-statutory, substantive adjudicatory criteria.

22 182. Accordingly, CARRP violates 8 U.S.C. § 1427, 8 C.F.R. § 316.2, and 8 C.F.R. § 335.3, as those

23 provisions set forth the exclusive applicable statutory and regulatory criteria for a grant of naturalization.

24 183. CARRP also violates 8 U.S.C. § 1255, 8 U.S.C. § 1159, 8 C.F.R. § 245.1, and 8 C.F.R. § 209.1,

25 as those provisions set forth the applicable statutory and regulatory criteria for individuals present in the

26 United States to adjust their status.

27 184. Because of these violations and/or because CARRP’s additional, non-statutory, substantive

28 criteria have been applied to their applications, Plaintiffs and Plaintiff Class members have suffered and

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1 will continue to suffer injury in the form of unreasonable delays and unwarranted denials of their

2 applications for naturalization and adjustment of status.

3

EIGHTH CLAIM FOR RELIEF

4

Administrative Procedure Act (5 U.S.C. § 706)

5

(Plaintiffs on behalf of themselves and the Extreme Vetting Naturalization and

6

Extreme Vetting Adjustment of Status Classes)

7 185. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

8 186. CARRP constitutes final agency action that is arbitrary and capricious because it “neither

9 focuses on nor relates to a [noncitizen’s] fitness to” obtain the immigration benefits subject to its terms.

10 Judulang v. Holder, 132 S. Ct. 476, 485 (2011).

11 187. CARRP is also not in accordance with law, is contrary to constitutional rights, and is in excess of

12 statutory authority because it violates the INA and exceeds USCIS’s statutory authority to implement

13 (not create) the immigration laws, as alleged herein.

14 188. As a result of these violations, Plaintiffs and members of the Proposed Extreme Vetting

15 Naturalization and Extreme Vetting Adjustment of Status Classes have suffered and continue to suffer

16 injury in the form of unreasonable delays and unwarranted denials of their immigration applications.

17

NINTH CLAIM FOR RELIEF

18

Administrative Procedure Act (Notice and Comment)

19

(Plaintiffs on behalf of themselves and the Extreme Vetting Naturalization and

20

Extreme Vetting Adjustment of Status Classes)

21 189. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

22 190. The APA, 5 U.S.C. § 553, requires administrative agencies to provide a notice-and-comment

23 period prior to implementing a substantive rule.

24 191. CARRP constitutes a substantive agency rule within the meaning of 5 U.S.C. § 551(4).

25 192. Defendants failed to provide a notice-and-comment period prior to the adoption of CARRP.

26 193. Because CARRP is a substantive rule promulgated without the notice-and-comment period, it

27 violates 5 U.S.C. § 553 and is therefore invalid.

28 194. As a result of these violations, Plaintiffs and members of the Plaintiff Classes have suffered and

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1 continue to suffer injury in the form of unreasonable delays and unwarranted denials of their

2 immigration applications.

3

TENTH CLAIM FOR RELIEF

4

“Uniform Rule of Naturalization”

5

(Plaintiff Abdiqafar Wagafe on behalf of himself and the Naturalization Class)

6 195. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

7 196. Congress has the sole power to establish criteria for naturalization, and any additional

8 requirements not enacted by Congress are ultra vires.

9 197. By its terms, CARRP creates additional, non-statutory, substantive criteria that must be met prior

10 to a grant of a naturalization application.

11 198. Accordingly, CARRP violates Article I, Section 8, Clause 4 of the United States Constitution.

12 199. Because of this violation and because CARRP’s additional, non-statutory, substantive criteria

13 have been applied to their applications, Plaintiff Wagafe and Naturalization Plaintiff Class members

14 have suffered and will continue to suffer injury in the form of unreasonable delays and unwarranted

15 denials of their naturalization applications.

16 200.

17

PRAYER FOR RELIEF

18 WHEREFORE, Plaintiffs respectfully request that the Court grant the following relief:

19 1. Certify the case as a class action as proposed herein;

20 2. Appoint Plaintiff Ostadhassan a representative of the Muslim Ban Class;

21 3. Appoint Plaintiff Wagafe as representative of the Extreme Vetting Naturalization Class, and

22

Plaintiff Ostadhassan as representative of the Extreme Vetting Adjustment of Status Class;

23 4. Order Defendants to adjudicate the petitions, applications or requests of Plaintiffs and members

24

of the proposed classes;

25 5. Order Defendants to adjudicate Plaintiffs’ and proposed class members’ petitions, applications,

26

or requests based solely on the statutory criteria;

27 6. Declare that Sections 3(c) and 4 of the Executive Order contrary to the Constitution and the INA;

28 7. Issue an order enjoining Defendants from applying Section 3(c) and 4 to Plaintiffs and members

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1

of the proposed classes;

2 8. Declare that CARRP or any successor “extreme vetting” program violates the Constitution, the

3

INA and the APA;

4 9. Enjoin Defendants, their subordinates, agents, employees, and all others acting in concert with

5

them from applying CARRP or any successor “extreme vetting” program to the processing and

6

adjudication of the immigration benefit petitions, applications, or requests of Plaintiffs and

7

members of the proposed classes;

8 10. Order Defendants to rescind CARRP because they failed to follow the process for notice and

9

comment by the public;

10 11. Alternatively, order Defendants to provide Plaintiffs and members of the proposed classes with

11

notice that they have been subjected to CARRP or any successor “extreme vetting” program, the

12

reasons for subjecting them to CARRP or any successor “extreme vetting” program, and a

13

reasonable opportunity to respond to those allegations before a neutral decisionmaker;

14 12. Award Plaintiffs and other members of the proposed class reasonable attorneys’ fees and costs;

15

and

16 13. Grant any other relief that this Court may deem fit and proper.

17

18 Respectfully submitted this 1st day of February, 2017.

19 By:
20 s/Matt Adams
21 s/Glenda M. Aldana Madrid
22 Matt Adams, WSBA No. 28287 Glenda M. Aldana Madrid, WSBA No. 46987
23 Northwest Immigrant Rights Project 615 Second Ave., Ste. 400
24 Seattle, WA 98122 25 Telephone: (206) 957-8611
Facsimile: (206) 587-4025 26 matt@nwirp.org
glenda@nwirp.org 27

28

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s/Emily Chiang 1 Emily Chiang, WSBA No. 50517 2 ACLU of Washington Foundation
901 Fifth Avenue, Suite 630 3 Seattle, WA 98164
Telephone: (206) 624-2184 4 Echiang@aclu-wa.org
5 Jennifer Pasquarella (application for leave to appear pro hac vice forthcoming) 6 ACLU Foundation of Southern California
1313 W. 8th Street 7 Los Angeles, CA 90017
Telephone: (213) 977-5211 8 Facsimile: (213) 997-5297 9 jpasquarella@aclusocal.org

10 Stacy Tolchin (admitted pro hac vice) Law Offices of Stacy Tolchin
11 634 S. Spring St. Suite 500A
Los Angeles, CA 90014 12 Telephone: (213) 622-7450
13 Facsimile: (213) 622-7233 Stacy@tolchinimmigration.com
14 Trina Realmuto (admitted pro hac vice)
15 Kristin Macleod-Ball (admitted pro hac vice) National Immigration Project
16 of the National Lawyers Guild 17 14 Beacon St., Suite 602
Boston, MA 02108 18 Telephone: (617) 227-9727
Facsimile: (617) 227-5495 19 trina@nipnlg.org
kristin@nipnlg.org 20

21 s/Hugh Handeyside Hugh Handeyside, WSBA No. 39792

22 Lee Gelernt (admitted pro hac vice)

Hina Shamsi (admitted pro hac vice) 23 American Civil Liberties Union Foundation

24

125 Broad Street New York, NY 10004

25 Telephone: (212) 549-2616 Facsimile: (212) 549-2654

26 lgelernt@aclu.org

hhandeyside@aclu.org 27 hshamsi@aclu.org

28

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s/ Harry H. Schneider, Jr. 1 s/ Nicholas P. Gellert

2 s/ David A. Perez s/ Kathryn Reddy

3 Harry H. Schneider, Jr. #9404

Nicholas P. Gellert #18041 4 David A. Perez #43959

5

Kathryn Reddy #42089 Attorneys for Plaintiffs

6 Perkins Coie LLP 1201 Third Avenue, Suite 4900

7 Seattle, WA 98101-3099

Telephone: 206.359.8000 8 Facsimile: 206.359.9000

9

Email: HSchneider@perkinscoie.com NGellert@perkinscoie.com

10

DPerez@perkinscoie.com

KReddy@perkinscoie.com

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 2:17-cv-00094-JCC Document 26 Filed 02/09/17 Page 1 of 27

1

THE HONORABLE JOHN C. COUGHENOUR

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 8

9 ABDIQAFAR WAGAFE and MEHDI
OSTADHASSAN on behalf of themselves 10 and others similarly situated,

No. 2:17-cv-00094-JCC

11

Plaintiffs,

MOTION FOR CLASS CERTIFICATION

12

v.

13 DONALD TRUMP, President of the
United States; UNITED STATES 14 CITIZENSHIP AND IMMIGRATION
SERVICES; JOHN F. KELLY, in his 15 official capacity as Secretary of the U.S.
Department of Homeland Security; LORI 16 SCIALABBA, in her official capacity as
Acting Director of the U.S. Citizenship and 17 Immigration Services; MATTHEW D.
EMRICH, in his official capacity as 18 Associate Director of the Fraud Detection
and National Security Directorate of the 19 U.S. Citizenship and Immigration Services;
DANIEL RENAUD, in his official 20 capacity as Associate Director of the Field
Operations Directorate of the U.S. 21 Citizenship and Immigration Services,

NOTED FOR MARCH 3, 2017 ORAL ARGUMENT REQUESTED

22

Defendants.

23

24

25

26

MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC)
134374050.4

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-JCC Document 26 Filed 02/09/17 Page 2 of 27

1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION ............................................................................................................. 1

4 II. 5

BACKGROUND ............................................................................................................... 3 A. The CARRP Policy ................................................................................................ 3 B. Plaintiffs’ Legal Claims ......................................................................................... 5

6

C. President Trump’s Promise for More “Extreme” Vetting ..................................... 6

7 III.
8

D. CARRP Has Delayed Named Plaintiffs’ Applications. ......................................... 7 ARGUMENT ..................................................................................................................... 8 A. The Action Satisfies the Class Certification Requirements of Rule 23(a)........... 10

9

1. The Proposed Class Members Are So Numerous That Joinder Is

Impracticable............................................................................................ 10

10

2. This Case Presents Questions of Law and Fact Common to the

11

Members of the Classes. .......................................................................... 11

3. The Claims of the Named Plaintiffs Are Typical of the Claims of

12

the Members of the Proposed Classes. .................................................... 13

13

4. The Named Plaintiffs Will Adequately Protect the Interests of the Proposed Classes, and Counsel Are Qualified to Litigate this

14

Action....................................................................................................... 14

a. Named Plaintiffs .......................................................................... 14

15

b. Counsel ........................................................................................ 14

16

B. This Action Satisfies the Requirements of Rule 23(b)(2).................................... 15

17

C. Class Certification Is Also Warranted to Prevent Defendants from Avoiding Adjudication of the Legality of CARRP.............................................. 16

18 IV. CONCLUSION................................................................................................................ 18

19

20

21

22

23

24

25

26

MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC) – i
134374050.4

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-JCC Document 26 Filed 02/09/17 Page 3 of 27

1

TABLE OF AUTHORITIES

2

CASES 3

A.B.T. v. U.S. Citizenship and Immigration Services, No. C11–2108 RAJ,

4

2013 WL 5913323 (W.D. Wash. Nov. 4, 2013) ........................................................................8

5 ACLU of Southern California v. USCIS,

6

No. CV 13-861 (D.D.C. June 7, 2013) ......................................................................................5

7 Ali v. Ashcroft,

213 F.R.D. 390 (W.D. Wash. 2003), aff’d, 346 F.3d 873 (9th Cir. 2003),

8

vacated on other grounds, 421 F.3d 795 (9th Cir. 2005) ....................................................9, 10

9 Arapi v USCIS,

10

No. 16-cv-00692 JLR (E.D. Mo. 2016) ...................................................................................17

11 Brown v. Holder, 763 F.3d 1141 (9th Cir. 2014) ...................................................................................................6

12 Cervantez v. Celestica Corp.,

13

253 F.R.D. 562 (C.D. Cal. 2008) .............................................................................................10

14 County of Riverside v. McLaughlin,

15

500 U.S. 44 (1991)...................................................................................................................16

16 Crawford v. Honig, 37 F.3d 485 (9th Cir. 1994) .....................................................................................................14

17 Ellis v. Costco Wholesale Corp.,

18

657 F.3d 970 (9th Cir. 2011) .....................................................................................................3

19 Ellsworth v. U.S. Bank, N.A., 30 F. Supp. 3d 886 (N.D. Cal. 2014) .......................................................................................17
20

21

Gerstein v. Pugh, 420 U.S. 103 (1975).................................................................................................................16

22 Gete v. INS,

23

121 F.3d 1285 (9th Cir. 1997) ...................................................................................................9

24 Gonzales & Gonzales Bonds & Ins. Agency, Inc., 728 F. Supp. 2d 1077 (N.D. Cal. 2010) ..........................................................................................................................................6
25

26

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1 Gorbach v. Reno,

181 F.R.D. 642 (W.D. Wash. 1998), aff’d on other grounds, 219 F.3d 1087

2

(9th Cir. 2000)......................................................................................................................9, 15

3 Hamdi v. USCIS,

4

No. EDCV 10-894 VAP (DTBx), 2012 WL 632397 (C.D. Cal. Feb. 25, 2012).......................5

5 Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) .................................................................................................13 6

Hanon v. Dataproducts Corp.,

7

976 F.2d 497 (9th Cir. 1992) ...................................................................................................12

8 Judulang v. Holder,

9

565 U.S. 42 (2011).....................................................................................................................5

10 Lynch v. Rank,

604 F. Supp. 30 (N.D. Cal. 1984), aff’d 747 F.2d 528 (9th Cir. 1984),

11

amended on rehearing, 763 F.2d 1091 (9th Cir. 1985) ...........................................................14

12 Mazza v. Am. Honda Motor Co., Inc.,

13

666 F.3d 581 (9th Cir. 2012) ...................................................................................................11

14 Mendez Rojas, et al. v. Johnson, et al., 2:16-cv-1024-RSM, ECF No. 37 (W.D. Wash. Jan. 10, 2017) .................................................8

15 Muhanna v. USCIS,

16

No. 14-cv-05995 (C.D. Cal. July 31, 2014).......................................................................16, 17

17 Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014) .......................................................................................10, 13, 15
18

19

Perez-Funez v. District Director, Immigration & Naturalization Service, 611 F. Supp. 990 (C.D. Cal. 1984) ............................................................................................9

20 Pitts v. Terrible Herbst, Inc.,

21

653 F.3d 1081 (9th Cir. 2011) .................................................................................................16

22 Ramirez v. Trans Union, LLC, No. 3:12-CV-00632 (JSC), 2013 WL 3752591 (N.D. Cal. July 17, 2013) .............................17
23

24

Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) .....................................................................................13, 14, 15

25 Roshandel v. Chertoff,

26

554 F. Supp. 2d 1194 (W.D. Wash. 2008).................................................................................9

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1 Santillan v. Ashcroft, No. C 04–2686, 2004 WL 2297990 (N.D. Cal. Oct. 12, 2004) .................................................9
2

3

Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010)...................................................................................................................8

4 Stockwell v. City & County of San Francisco,

5

749 F.3d 1107 (9th Cir. 2014) .................................................................................................12

6 Troy v. Kehe Food Distributors, Inc., 276 F.R.D. 642 (W.D. Wash. 2011) ........................................................................................12
7

8

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)...........................................................................................3, 11, 12, 13, 15

9 Walters v. Reno,

10

145 F.3d 1032 (9th Cir. 1998) ...........................................................................................14, 15

11 Walters v. Reno,

No. C94–1204C, 1996 WL 897662 (W.D. Wash. 1996), aff’d, 145 F.3d 1032

12

(9th Cir. 1998), cert. denied, Reno v. Walters, 526 U.S. 1003 (1999).......................................9

13 STATUTES

14 5 U.S.C. § 553................................................................................................................................11
15 5 U.S.C. §§ 553(b)-(c) .....................................................................................................................5
16 5 U.S.C. § 706................................................................................................................................11
17 5 U.S.C. § 706(2)(A)........................................................................................................................5
18 8 U.S.C. § 1159................................................................................................................................5
19 8 U.S.C. § 1255................................................................................................................................5
20
21 8 U.S.C. § 1427................................................................................................................................5

22 RULES

23 Fed. R. Civ. P. 23 ................................................................................................................... passim

24

25 REGULATIONS

26 8 C.F.R. § 209.1 ...............................................................................................................................5

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1 8 C.F.R. § 245.1 ...............................................................................................................................5 2 8 C.F.R. § 316.2 ...............................................................................................................................5 3 8 C.F.R. § 335.3 ...............................................................................................................................5 4 8 C.F.R. § 335.3(a)...........................................................................................................................5 5
82 Fed. Reg. 8977 ........................................................................................................................1, 2 6
OTHER AUTHORITIES 7
U.S. Const. amend. V.............................................................................................................6, 7, 11 8
U.S. Const. art. I, § 8, cl. 4...................................................................................................6, 11, 15 9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

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1
I. INTRODUCTION 2
Plaintiffs Abdiqafar Wagafe and Mehdi Ostadhassan (“Plaintiffs”) are two of 3
thousands of individuals whose immigration applications have been delayed, or denied 4
altogether, because of a secret and unlawful government vetting program that targets 5
applicants who are Muslim or from certain Muslim-majority countries. In the wake of 6
President Trump’s Executive Order 13769 (“EO”), which directs federal agencies to 7
develop additional extreme vetting standards and procedures for all immigration benefits, 8
82 Fed. Reg. 8977, 8978-79 §4, this Court’s review of Defendants’ existing web of 9
discriminatory and non-statutory vetting programs is especially critical. 10
Plaintiff Wagafe is a Muslim, Somali national who meets all statutory 11
requirements to naturalize as a United States citizen. Despite his eligibility, and despite 12
the statutory timeline prescribed by Congress, Mr. Wagafe has been waiting three and a 13
half years for a decision on his pending naturalization application. Plaintiff Ostadhassan 14
is a Muslim, Iranian national who meets all statutory requirements to adjust his status to 15
that of a lawful permanent resident (“LPR”). Despite his eligibility, Mr. Ostadhassan has 16
been waiting three years for a decision on his pending application. Both Plaintiffs, and 17
thousands of applicants like them, face such inordinate and unexplained delays because 18
the United States Citizenship and Immigration Service (“USCIS”) diverted their 19
applications to an undisclosed and unauthorized program known as the Controlled 20
Application Review and Resolution Program (“CARRP”). Congress did not enact or 21
approve CARRP. 22
Through CARRP, the government surreptitiously blacklists thousands of 23
applicants who are seeking immigration benefits, labeling them “national security 24
threats.” Such designations are often based on flimsy and unreliable factors. Once so 25
designated, CARRP mandates immigration officials to delay indefinitely, or outright 26

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1 deny, affected applications, even when the applicant is statutorily eligible to have his or

2 her application granted. Relying on CARRP, immigration officials simply disregard

3 governing statutory criteria for certain classes of applicants—most frequently applicants

4 who are Muslim or perceived to be Muslim—and instead adjudicate those applications

5 pursuant to a process that applies heightened, generally insurmountable criteria, to

6 anyone caught in CARRP’s dragnet. As Plaintiffs explain more fully in their Amended

7 Complaint, CARRP and the manner in which it is being applied are illegal. Not only did

8 USCIS not provide the required public notice and opportunity to comment before

9 creating the program, but once in place, the program violates the Constitution, the

10 Immigration and Nationality Act (“INA”), and the Administrative Procedure Act

11 (“APA”).

12

Thousands of individuals, including Plaintiffs, have had their applications for

13 naturalization or adjustment of status halted, delayed, or denied by CARRP. A class

14 action lawsuit is appropriate to challenge CARRP and any other successor “extreme

15 vetting” program that the Executive branch may seek to implement pursuant to Section 4

16 of the EO or through other extra-statutory means. Pursuant to Rules 23(a) and 23(b)(2)

17 of the Federal Rules of Civil Procedure, Plaintiff Wagafe respectfully requests that the

18 Court certify the following class, and appoint him as class representative:

19

A national class of all persons currently and in the future (1) who

have or will have an application for naturalization pending before

20

USCIS, (2) that is subject to CARRP or its successor “extreme

vetting” program, and (3) that has not been or will not be

21

adjudicated by USCIS within six months of having been filed.

22 Similarly, Plaintiff Ostadhassan requests that the Court, pursuant to Rules 23(a) and

23 23(b)(2), certify the following class and appoint him as class representative:

24

A national class of all persons currently and in the future (1) who

have or will have an application for adjustment of status pending

25

before USCIS, (2) that is subject to CARRP or its successor

“extreme vetting” program, and (3) that has not been or will not be

26

adjudicated by USCIS within six months of having been filed.

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1

Undersigned counsel are experienced in both class action and immigration matters, and

2 Plaintiffs request that they be appointed as class counsel for both classes.1

3

II. BACKGROUND

4

Although the Court need not engage in “an in-depth examination of the underlying

5 merits” at this stage, it may analyze the merits to the extent necessary to determine the propriety

6 of class certification. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n.8 (9th Cir. 2011); see

7 also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-52 (2011). For that reason, Plaintiffs

8 provide a brief discussion of their claims relating to CARRP here. The claims are further

9 described in the Amended Complaint (Dkt. No. 17).

10 A. 11

The CARRP Policy USCIS created CARRP in April 2008. Declaration of Jennie Pasquarella (“Pasquarella

12 Decl.”), Ex. A (4/11/2008 policy memorandum introducing CARRP). Ostensibly, it is an

13 agency-wide program for processing immigration applications that allegedly may implicate

14 “national security concerns.” Id. But the criteria used to determine whether a particular

15 applicant implicates national security are vague and overbroad. They often turn on an

16 applicant’s national origin or otherwise lawful activities (such as living or traveling in areas of

17 known terrorist activity) thereby ensnaring thousands of individuals who pose no threat to the

18 United States. Worse still, CARRP’s criteria for what constitutes a “national security concern”

19 are untethered from the statutory criteria, including statutory criteria that are expressly security-

20

21

22

1 Plaintiffs filed an amended complaint on February 1, 2017, to assert additional

claims and an additional class, relating to the effect of Section 3(c) of EO. Plaintiffs do

23 not seek certification of this additional class at this time because, after the filing of the

Amended Complaint, the Acting Director of USCIS issued a memorandum indicating

24 that Section 3(c) would no longer operate to stop the processing of immigration benefits

for those already in the United States. See generally Notice Regarding Related Cases

25 (Dkt. No. 22). And, in any event, Section 3(c) of the EO has since been more broadly

enjoined. Washington v. Trump, No. 2:17-cv-00141-JLR, Feb. 3, 2017 Order Granting

26 Temporary Restraining Order (Dkt. No. 52). Plaintiffs reserve the right to seek

certification of the additional class if circumstances change again.

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1 related, that Congress enacted to determine whether a person is eligible for the immigration

2 status he or she seeks.

3

Any immigration application that falls within CARRP’s broad scope is immediately, and

4 without any notice to the applicant, taken off the “routine adjudication” track and placed on a

5 CARRP adjudication track, where it is subject to distinct procedures and criteria not authorized

6 by statute. An application will languish in CARRP indefinitely unless and until the alleged

7 national security concern no longer is present. Indeed, even if an individual otherwise meets all

8 the statutory criteria of eligibility for the benefits he or she seeks, USCIS officers are instructed

9 that they cannot approve the application so long as the “national security concern” remains. See

10 Pasquarella Decl., Ex. A at (“Officers are not authorized to approve applications” subject to

11 CARRP); id., Ex. B (7/26/2011 policy memorandum revising CARRP procedures) at 2 (an

12 officer “is not authorized to approve applications or petitions” subject to CARRP).

13

Once an application is saddled with the “national security concern” tag, the next step in

14 the CARRP process is called an “Eligibility Assessment.” But far from trying to determine

15 eligibility during the Eligibility Assessment process, the officer is encouraged to find any reason

16 to deny the application outright so that “time and resources” are not spent determining whether

17 there was any basis for the national security concern in the first place. Pasquarella Decl., Ex. A

18 at 5; see also id., Ex. C (1/2012 CARRP training presentation) at 52-59, 68 (providing “tips” on

19 how to find an applicant ineligible). CARRP essentially creates a presumption of guilt that

20 becomes difficult, if not impossible, to rebut.

21

The thousands of persons labeled as national security concerns based on CARRP’s broad

22 and vague criteria receive no notice of that determination, much less an opportunity to disprove

23 it. As a result, their applications are effectively denied through indefinite delay. At no point are

24 applicants told about the decision to subject their applications to CARRP, even though the

25 decision to do so is often dispositive. Nor are applicants ever given the opportunity to contest

26 the government’s labeling of them as a national security threat.

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1

Congress did not enact CARRP, nor did USCIS promulgate it as a proposed rule with the

2 notice-and-comment procedures that the APA mandates. See 5 U.S.C. §§ 553(b)-(c). On the

3 contrary, USCIS takes steps to deliberately keep the existence of CARRP a secret. The program

4 was only discovered through litigation challenging a denial of naturalization in Hamdi v. USCIS,

5 No. EDCV 10-894 VAP (DTBx), 2012 WL 632397 (C.D. Cal. Feb. 25, 2012), and then revealed

6 in greater detail through the government’s response to Freedom of Information Act (“FOIA”)

7 requests and litigation to compel responses to those requests. See ACLU of Southern California

8 v. USCIS, No. CV 13-861 (D.D.C. filed June 7, 2013).

9 B. Plaintiffs’ Legal Claims

10

On its face and as applied to Plaintiffs, CARRP violates federal law and the Constitution.

11 First, CARRP violates the INA, which sets forth exclusive statutory and regulatory criteria

12 governing applications for naturalization or adjustment of status. See 8 U.S.C. § 1427 and

13 8 C.F.R. §§ 316.2 and 335.3 (criteria for naturalization); 8 U.S.C. §§ 1255 and 1159, and 8

14 C.F.R. §§ 245.1 and 209.1 (criteria for adjustment of status). In fact, federal regulations provide

15 that if an applicant has complied with all requirements for naturalization, USCIS “shall grant the

16 application.” 8 C.F.R. § 335.3(a) (emphasis added). But under CARRP, even when applicants

17 meet all the criteria for naturalization, USCIS will delay or deny their applications based on

18 criteria unrelated to the statute. By imposing such additional requirements and unauthorized

19 impediments for naturalization and adjustment of status, CARRP violates the INA.

20

CARRP also violates the APA. First, because CARRP is a final agency action that

21 “neither focuses on nor relates to a [non-citizen’s] fitness to” obtain the immigration status

22 subject to its terms, Judulang v. Holder, 565 U.S. 42, 55 (2011), it is arbitrary and capricious

23 under 5 U.S.C. § 706(2)(A). Second, CARRP violates the APA’s requirement that

24 administrative agencies provide a notice-and-comment period prior to implementing a

25 substantive agency rule. 5 U.S.C. § 553(b), (c). CARRP is fairly characterized as a substantive

26 rule, and therefore subject to the APA’s notice-and-comment rulemaking procedures, because it

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1 imposes extra-statutory eligibility criteria that effectively alter applicants’ ability to naturalize or

2 obtain legal permanent residency. See Gonzales & Gonzales Bonds & Ins. Agency, Inc., 728 F.

3 Supp. 2d 1077, 1084 (N.D. Cal. 2010).

4

Finally, CARRP violates several constitutional provisions. Under the Uniform Rule of

5 Naturalization Clause, the Constitution expressly assigns to Congress, not the Executive branch,

6 the authority to establish the rules of naturalization. See U.S. Const. art. I, § 8, cl. 4. Congress

7 set forth those rules in the INA. By imposing additional, non-statutory, substantive criteria that

8 must be met prior to granting a naturalization application, CARRP violates the Uniform Rule of

9 Naturalization Clause. CARRP also violates the Due Process Clause of the Fifth Amendment.

10 Plaintiffs and putative class members have a constitutionally protected interest in having their

11 naturalization and adjustment of status applications adjudicated in accordance with the law. See,

12 e.g., Brown v. Holder, 763 F.3d 1141 (9th Cir. 2014) (“[Plaintiff] had [a constitutionally]

13 protected interest in being able to apply for citizenship” under the Due Process Clause). CARRP

14 violates the Due Process Clause because the government never provides naturalization and

15 adjustment applicants notice of their classification under CARRP, a meaningful explanation of

16 the reason for such classification, nor any process by which they can challenge their

17 classification.

18

In sum, CARRP cannot survive judicial scrutiny.

19 C. President Trump’s Promise for More “Extreme” Vetting

20

President Trump campaigned on promises to impose a “total and complete ban” on

21 Muslims coming to the United States. He and his associates consistently expressed disdain for

22 Muslims. See Amended Complaint, Dkt. 17, ¶¶ 42-47. Both during the campaign and after his

23 election and inauguration, President Trump expressed his intention to establish a program of

24 “extreme vetting” to achieve such a ban. See Amended Complaint ¶¶ 42-57.

25

President Trump began to implement his stated goal of keeping Muslims out of the

26 United States and otherwise subjecting them to “extreme vetting” when he signed the EO on

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1 January 27, 2017. To the extent any “extreme vetting” policy developed pursuant to the EO

2 expands or continues CARRP, it will suffer from the same legal deficiencies as CARRP itself.

3 And to the extent the policy targets Muslims, CARRP and any successor program also would

4 violate the guarantee of equal protection under the Due Process Clause of the Fifth Amendment.

5 D. CARRP Has Delayed Named Plaintiffs’ Applications.

6

Plaintiff Wagafe is a 32-year-old Somali national who is a lawful permanent resident of

7 the United States, currently residing in SeaTac, Washington. Amended Compl. ¶¶ 109, 116.

8 After fleeing Somalia, Mr. Wagafe lived as a refugee in Kenya and Ethiopia before coming to

9 the United States as a refugee in 2007. Id. ¶¶ 110-111. Mr. Wagafe filed an application for

10 naturalization on November 8, 2013, and he meets all the statutory requirements for

11 naturalization. Id. ¶¶ 119-123. USCIS scheduled him for a naturalization interview on February

12 25, 2014, but then abruptly cancelled it on January 29, 2014, without explanation. Id. ¶ 119. Mr.

13 Wagafe has not heard from USCIS, other than a response to his attorney’s inquiry in July 2015

14 instructing his attorney to have patience. Id. ¶ 120. It was only because his attorney filed a

15 FOIA request concerning his case that Mr. Wagafe discovered USCIS “shelved” his pending

16 application, relying on CARRP. A document in his “Alien file” obtained through that request

17 indicates that his case was handled by a CARRP officer, without revealing the reasons why.

18 Pasquarella Decl., Exs. D (cover page indicating CARRP); E (mentions file was reviewed “by

19 prior CARRP officer”).

20

Plaintiff Ostadhassan is a 33-year-old national of Iran who resides in Grand Forks, North

21 Dakota. Id. ¶ 128. Mr. Ostadhassan moved to the United States in 2009 on a student visa to

22 study at the University of North Dakota. Id. ¶ 129. He earned his Ph.D. degree in Petroleum

23 Engineering. After graduation, Mr. Ostadhassan was hired immediately by the University of

24 North Dakota as an Assistant Professor. Id. In 2014, he married a U.S. citizen. Id. ¶ 130. Mr.

25 Ostadhassan and his wife had their first child in July 2016. Id. In February 2014, Mr.

26 Ostadhassan applied to adjust his immigration status to that of a lawful permanent resident based

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1 upon his marriage. Id. ¶ 131. USCIS initially scheduled Mr. Ostadhassan for an interview on

2 May 19, 2014, but abruptly canceled the interview when Mr. Ostadhassan arrived at the

3 appointed time and place. Id. ¶ 133. After some delay, USCIS finally interviewed Mr.

4 Ostadhassan more than 16 months later, on September 24, 2015. At the interview, the USCIS

5 officer told Mr. Ostadhassan that the government was not ready to make a decision. His

6 application has been pending ever since. Id. ¶¶ 134-35.

7

Mr. Ostadhassan is statutorily eligible to adjust his immigration status. On information

8 and belief, his application has been indefinitely delayed because the government is subjecting the

9 application to CARRP. This is likely true because Mr. Ostadhassan has resided in and traveled

10 through what the government considers “areas of known terrorist activity” (Iran), has donated to

11 Islamic charities, and is involved in his local Muslim community in North Dakota. Such

12 circumstances typically cause an application to be subjected to CARRP. See id. ¶¶ 134-39.

13

III. ARGUMENT

14

Under Civil Rule 23, a lawsuit may proceed as a class action if two conditions are met:

15 the “suit must satisfy the criteria set forth in subdivision (a) (i.e., numerosity, commonality,

16 typicality, and adequacy of representation), and it also must fit into one of the three categories

17 described in subdivision (b).” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559

18 U.S. 393, 397 (2010) (citing Fed. R. Civ. P. 23(b)). By its terms, “this creates a categorical rule

19 entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.”

20 Id.

21

Plaintiffs meet all four of the Rule 23(a) requirements, and satisfy Rule 23(b) because

22 “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a

23 whole.” Fed. R. Civ. P. 23(b)(2). Consistent with numerous Ninth Circuit authorities involving

24

25

26

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1 certification of class actions on behalf of noncitizens who challenge immigration policies and 2 practices, class certification is warranted here.2

3

Plaintiffs do not request that this Court adjudicate their individual immigration

4 applications. Nor do they seek money damages. Plaintiffs request only that this Court determine

5 that CARRP or any successor policy is unlawful, and enjoin Defendants from applying such

6 policy to the processing and adjudication of Plaintiffs’ and other class members’ applications for

7 citizenship and adjustment of immigration status applications. Alternatively, and at a minimum,

8 Plaintiffs request an order compelling USCIS to provide applicants notice that the government

9 has decided to subject their application to CARRP and an opportunity to challenge that decision.

10

11

12

13

2 See, e.g., Mendez Rojas, et al. v. Johnson, et al., 2:16-cv-1024-RSM, ECF No.

14 37 (W.D. Wash. Jan. 10, 2017) (certifying two nationwide classes of asylum seekers challenging defective asylum application procedures); A.B.T. v. U.S. Citizenship and

15 Immigration Services, 2013 WL 5913323 (W.D. Wash. Nov. 4, 2013) (certifying

nationwide class and approving settlement amending practices by the Executive Office 16 for Immigration Review and USCIS that precluded asylum applicants from receiving

17

employment authorization); Santillan v. Ashcroft, No. C 04–2686, 2004 WL 2297990, at *12 (N.D. Cal. Oct. 12, 2004) (certifying nationwide class of lawful permanent residents

18 challenging delays in receiving documentation of their status); Ali v. Ashcroft, 213 F.R.D.

390, 409-10 (W.D. Wash. 2003), aff’d, 346 F.3d 873, 886 (9th Cir. 2003), vacated on

19 other grounds, 421 F.3d 795 (9th Cir. 2005) (certifying nationwide class of Somalis

challenging legality of removal to Somalia in the absence of a functioning government); 20 Gorbach v. Reno, 181 F.R.D. 642, 644 (W.D. Wash. 1998), aff’d on other grounds, 219

21 F.3d 1087 (9th Cir. 2000) (en banc) (certifying nationwide class of persons challenging validity of administrative denaturalization proceedings); Walters v. Reno, No. C94–

22 1204C, 1996 WL 897662, at *5-8 (W.D. Wash. 1996), aff’d, 145 F.3d 1032, 1045-47

(9th Cir. 1998), cert. denied, Reno v. Walters, 526 U.S. 1003 (1999) (certifying

23 nationwide class of individuals challenging adequacy of notice in document fraud cases).

See also Roshandel v. Chertoff, 554 F. Supp. 2d 1194 (W.D. Wash. 2008) (certifying 24 districtwide class of delayed naturalization cases); Gete v. INS, 121 F.3d 1285, 1299 (9th

25 Cir. 1997) (vacating district court’s denial of class certification in case challenging inadequate notice and standards in Immigration and Naturalization Service vehicle

26 forfeiture procedure).

MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC) – 9
134374050.4

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Case 2:17-cv-00094-JCC Document 26 Filed 02/09/17 Page 16 of 27

1 A. The Action Satisfies the Class Certification Requirements of Rule 23(a).

2

1. The Proposed Class Members Are So Numerous That Joinder Is

Impracticable. 3
This case easily meets the numerosity requirement. Rule 23(a)(1) requires that the class

4 be “so numerous that joinder of all members is impracticable.” While no specific number of

5 class members is required, Perez-Funez v. District Director, Immigration & Naturalization

6 Service, 611 F. Supp. 990, 995 (C.D. Cal. 1984), courts have recognized that “where the exact

7 size of the class is unknown but general knowledge and common sense indicate that it is large,

8 the numerosity requirement is satisfied,” Cervantez v. Celestica Corp., 253 F.R.D. 562, 569

9 (C.D. Cal. 2008) (internal quotation marks and citations omitted). Additionally, where the class

10 includes “unnamed and unknown future members,” joinder is impractical, “and the numerosity

11 requirement is therefore met, regardless of class size.” Ali v. Ashcroft, 213 F.R.D. 390, 408

12 (W.D. Wash. 2003), aff’d, 346 F.3d 873 (9th Cir. 2003), vacated on other grounds, 421 F.3d 795

13 (9th Cir. 2005) (internal quotation marks and citation omitted).

14 Here, the numbers of naturalization and adjustment of status applications subject to

15 CARRP are more than sufficient for class certification purposes. As of March 2009, for those

16 applications pending for six months or longer, the government was applying CARRP to at least

17 1,437 applications for adjustment of immigration status, and at least 1,065 applications for

18 naturalization. Pasquarella Decl., Ex. F (monthly case load report). Between July 1 and

19 September 30, 2013—the most recent time period for which Plaintiffs have reliable data—

20 USCIS reported 2,644 pending applications subjected to CARRP. Id., Ex. G (quarterly workload

21 report). USCIS data shows that applications for naturalization and adjustment of immigration

22 status make up the majority of all applications now pending before USCIS subject to CARRP.

23 Id., Ex. F. Based on this data, and as a matter of “general knowledge and common sense,” the

24 number of members in each proposed class makes joinder of each individual member

25 impracticable. Class certification is also appropriate here given the unknown future class

26

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1 members to whose immigration applications Defendant will apply CARRP. See Ali, 213 F.R.D.

2 at 408-09.

3

Plaintiffs have met the numerosity requirement.

4

2. This Case Presents Questions of Law and Fact Common to the Members of

the Classes. 5

Rule 23(a) also requires that the case present “questions of law or fact common to the 6

class.” Plaintiffs “need not show, however, that ‘every question in the case, or even a 7

preponderance of questions, is capable of class wide resolution. So long as there is ‘even a 8

single common question,’ a would-be class satisfies the commonality requirement.” Parsons v. 9

Ryan, 754 F.3d 657, 675 (9th Cir. 2014) (quoting Dukes, 564 U.S. at 350 (2011)); see 10

also Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th Cir. 2012) (noting that 11

“commonality only requires a single significant question of law or fact”). 12

Plaintiffs raise multiple questions common to the classes, including but not limited to: 13

 Whether CARRP violates the INA by creating additional, non-

14

statutory, substantive criteria that must be met prior to a grant of a

naturalization or adjustment of status application (both Classes); 15

 Whether CARRP violates the APA, 5 U.S.C. § 706, as a final agency

16

action that is arbitrary and capricious, contrary to constitutional law,

and in excess of statutory authority (both Classes); 17

 Whether CARRP constitutes a substantive rule and, as a result, is

18

unenforceable because Defendants violated the mandatory

requirements for rulemaking under APA, 5 U.S.C. § 553, as they

19

promulgated CARRP without providing a notice-and-comment period

prior to implementation (both Classes); 20

 Whether CARRP violates the Uniform Rule of Naturalization, Article

21

I, Section 8, Clause 4 of the Constitution by establishing criteria for

naturalization that were never authorized by Congress (Extreme

22

Vetting Naturalization Class);

23

 Whether CARRP is unconstitutional because Defendants failed to

provide Plaintiffs notice of their classification under CARRP and a

24

meaningful explanation of the reason for such classification, as well as

a process by which Plaintiffs can challenge their classification,

25

resulting in a violation of the Due Process Clause of the Fifth

Amendment to the Constitution (both Classes); 26

MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC) – 11
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1

 Whether CARRP discriminates against Plaintiffs on the basis of their

country of origin, and without sufficient justification, and therefore

2

violates the equal protection component of the Due Process Clause of

the Fifth Amendment to the Constitution (both Classes); 3

 Whether the application of CARRP to Plaintiffs’ applications for

4

naturalization and adjustment of status—benefits to which they are

statutorily eligible and to which they are legally entitled—constitutes

5

arbitrary denial in violation of Plaintiffs’ right to substantive due

process under the Fifth Amendment to the Constitution (both Classes). 6
Defendants may argue that Plaintiffs cannot satisfy commonality because each

7 application subject to CARRP hinges on the particular facts and circumstances unique to each

8 applicant. But this argument would misconstrue and misapply the commonality requirement. As

9 the Ninth Circuit recently observed, “[t]o assess whether the putative class members share a

10 common question, the answer to which ‘will resolve an issue that is central to the validity of each

11 one of the [class members’s] claims,’ [the court] must identify the elements of the class

12 members’ case-in-chief.” Stockwell v. City & County of San Francisco, 749 F.3d 1107, 1114

13 (9th Cir. 2014) (quoting Dukes, 564 U.S. at 350). Here, the gravamen of Plaintiffs’ Amended

14 Complaint is not focused on how CARRP was specifically applied to any given individual

15 seeking immigration benefits, but rather how USCIS’s overall decision to implement CARRP

16 and its subsequent application to Plaintiffs and others similarly situated violates federal statutory

17 and constitutional law. Because each class member’s statutory and constitutional claims can be

18 resolved in one stroke, “a classwide proceeding” will “generate common answers apt to drive the

19 resolution of the litigation.” See Troy v. Kehe Food Distributors, Inc., 276 F.R.D. 642, 652-53

20 (W.D. Wash. 2011). Plaintiffs have met their burden to demonstrate commonality because “the

21 court must decide only once whether the application [CARRP] . . . does or does not violate” the

22 law. See id. at 654. Should Plaintiffs prevail, all proposed class members will benefit the same

23 way: either from an order enjoining the government from applying CARRP to their applications,

24 or from an order directing the government to allow affected applicants an opportunity to respond

25 to CARRP-related allegations.

26

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1

3. The Claims of the Named Plaintiffs Are Typical of the Claims of the

Members of the Proposed Classes. 2
Typicality is satisfied if “the claims or defenses of the representative parties are typical of

3 the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The purpose of the typicality

4 requirement is to ensure that the interests of the named representatives align with the interests of

5 the class as a whole. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). Claims

6 of the proposed class representatives are considered “typical” if they are “reasonably coextensive

7 with those of the absent class members.” Parsons, 754 F.3d at 685 (quoting Hanlon v. Chrysler

8 Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)). In this way, commonality and typicality “tend to

9 merge” because both “serve as guideposts for determining whether, under the particular

10 circumstances presented by the case, maintenance of a class action is economical and whether

11 the named plaintiff’s claim and the class claims are so interrelated that the interests of the class

12 members will be fairly and adequately protected in their absence.” Dukes, 564 U.S. at 349 n.5.

13 Plaintiffs’ claims are typical of the proposed classes to be certified because they proceed

14 under the same legal theories, seek the same relief, and have suffered the same injuries. Like

15 each proposed class member, Plaintiffs have filed immigration applications (for naturalization

16 and adjustment of immigration status, respectively) that the government has unlawfully subjected

17 to review under CARRP. Despite meeting all the statutory requirements to receive the

18 immigration benefits they seek, both named Plaintiffs have been injured by the delay and failure

19 to adjudicate their immigration applications based on CARRP. Because Plaintiffs have suffered

20 the same statutory and constitutional injuries as the proposed class members, their claims are

21 typical of the classes which they propose to represent. See Rodriguez v. Hayes, 591 F.3d 1105,

22 1124 (9th Cir. 2010) (upholding typicality where plaintiffs “raise[d] similar constitutionally-

23 based arguments and are alleged victims of the same practice of prolonged detention while in

24 immigration proceedings”).

25

26

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1

4. The Named Plaintiffs Will Adequately Protect the Interests of the Proposed

Classes, and Counsel Are Qualified to Litigate this Action. 2
Rule 23(a)(4) requires that “[t]he representative parties will fairly and adequately protect

3 the interests of the class.” “Whether the class representatives satisfy the adequacy requirement

4 depends on ‘the qualifications of counsel for the representatives, an absence of antagonism, a

5 sharing of interests between representatives and absentees, and the unlikelihood that the suit is

6 collusive.’” Rodriguez, 591 F.3d at 1125 (citing Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir.

7 1998) (quoting Crawford v. Honig, 37 F.3d 485, 487 (9th Cir. 1994)).

8

a. Named Plaintiffs 9
The named Plaintiffs will fairly and adequately protect the interests of the respective

10 classes because they seek relief on behalf of the classes and have no individual interest that could

11 be considered antagonistic to other class members. See Declaration of Mehdi Ostadhassan

12 Regarding Class Representation Duties; Declaration of Abdiqafar Wagafe Regarding Class

13 Representation Duties. Their shared goal is to have the Court declare CARRP unlawful and

14 issue injunctive relief preventing CARRP from being applied to their immigration applications.

15 Plaintiffs do not seek money damages. The interests of the named Plaintiffs therefore coincide

16 precisely with those of the class members.

17

b. Counsel 18
Plaintiffs’ counsel are considered qualified when they can establish their experience in

19 previous class actions and cases involving the same area of law. Lynch v. Rank, 604 F. Supp. 30,

20 37 (N.D. Cal. 1984), aff’d 747 F.2d 528 (9th Cir. 1984), amended on rehearing, 763 F.2d 1091,

21 1098 (9th Cir. 1985). Plaintiffs are represented by attorneys with the ACLU of Washington

22 Foundation, the ACLU Foundation of Southern California, the ACLU Foundation, the Law

23 Offices of Stacy Tolchin, the National Immigration Project of the National Lawyers Guild, the

24 Northwest Immigrant Rights Project, and the Perkins Coie law firm. Class counsel are able and

25 experienced in protecting the interests of noncitizens and have considerable experience in

26

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Case 2:17-cv-00094-JCC Document 26 Filed 02/09/17 Page 21 of 27

1 handling complex and class action litigation, including in the area of immigration law. See

2 Pasquarella Decl.; Declaration of Lee Gelernt; Declaration of Matt Adams; Declaration of Stacy

3 Tolchin; Declaration of Trina Realmuto; Declaration of Harry Schneider. As detailed in their

4 declarations, class counsel have the experience and ability to vigorously and effectively represent

5 both named and absent class members.

6 B. This Action Satisfies the Requirements of Rule 23(b)(2).

7

In addition to satisfying the four requirements of Rule 23(a), Plaintiffs also must meet

8 one of the requirements of Rule 23(b). Certification under Rule 23(b)(2) requires that

9 Defendants “ha[ve] acted or refused to act on grounds that apply generally to the class, so that

10 final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a

11 whole.” Fed. R. Civ. P. 23(b)(2). The underlying premise of subsection (b)(2) is “the indivisible

12 nature of the injunctive or declaratory remedy warranted—the notion that the conduct at issue

13 can be enjoined or declared unlawful only as to all of the class members or as to none of them.”

14 Dukes, 564 U.S. at 360 (citation omitted). In other words, (b)(2) is met where “a single

15 injunction or declaratory judgment would provide relief to each member of the class.” Id.

16

Here, Plaintiffs are asking the Court to declare CARRP unenforceable and enjoin the

17 government from routing Plaintiffs’ and proposed class members’ immigration applications

18 through CARRP. This relief would benefit Plaintiffs as well as all members of the proposed

19 classes in identical fashion. In other words, no individual class member would be entitled to a

20 different injunction or declaratory judgment. Accordingly, Plaintiffs have met the requirements

21 of Rule 23(b)(2), because they “seek uniform injunctive or declaratory relief from policies or

22 practices that are generally applicable to the class as a whole.” See Parsons, 754 F.3d at 688

23 (citation omitted); see also Walters, 145 F.3d at 1047 (holding that certification under Rule

24 23(b)(2) was proper where plaintiffs challenged INS practices in document fraud proceedings);

25 Rodriguez, 591 F.3d at 1125-26 (holding that certification under Rule 23(b)(2) was proper in

26 challenge to defendants’ policy of failing to provide bond hearings to immigration detainees).

MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC) – 15
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Case 2:17-cv-00094-JCC Document 26 Filed 02/09/17 Page 22 of 27

1

Given the nature of Plaintiffs’ claims implicating CARRP, class certification should be

2 nationwide. Certification that is not nationwide in scope would result in Defendants’ continuing

3 to apply an unlawful policy to noncitizens applying for naturalization simply by virtue of their

4 geographic location, which would undermine the constitutional imperative of “a uniform Rule of

5 Naturalization.” U.S. Const., art. I, § 8, cl. 4 (emphasis added). Such piecemeal relief would

6 lead to arbitrary and unjust results. See Gorbach v. Reno, 181 F.R.D. 642, 644 (W.D. Wash.

7 1998), aff’d, 219 F.3d 1087 (9th Cir. 2000) (holding certification of a nationwide class was

8 particularly fitting because “anything less [than] a nationwide class would result in an anomalous

9 situation allowing the INS to pursue denaturalization proceedings against some citizens, but not

10 others, depending on which district they reside in”). Moreover, it would be equally arbitrary and

11 unjust to certify anything short of a nationwide class for adjustment applicants, who, regardless

12 of geographic location, are all subjected to Defendants’ unlawful policy.

13

Because Defendants have subjected the members of both classes to the same statutory

14 and constitutional violations, and because class members seek uniform relief, certification is

15 proper under Rule 23(b)(2).

16 C. Class Certification Is Also Warranted to Prevent Defendants from Avoiding Adjudication of the Legality of CARRP.
17
Certification of the proposed classes is also appropriate to prevent Defendants from 18
attempting to evade judicial review by adjudicating Plaintiffs’ individual applications. As the 19
Supreme Court has acknowledged, “some claims are so inherently transitory that the trial court 20
will not have even enough time to rule on a motion for class certification before the proposed 21
representative’s individual interest expires.” County of Riverside v. McLaughlin, 500 U.S. 44, 52 22
(1991) (citation omitted). In such cases, the named plaintiff’s claims are “capable of repetition, 23
yet evading review.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091 (9th Cir. 2011) (citing 24
Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975). In such cases, a class action may be the only 25
way for meaningful review. See id. (where the class representative’s claims are transitory, 26

MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC) – 16
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Case 2:17-cv-00094-JCC Document 26 Filed 02/09/17 Page 23 of 27

1 “mooting the putative class representative’s claims will not necessarily moot the class action”

2 even if “the district court has not yet addressed the class certification issue”).

3

Class certification is especially appropriate here because challenges to CARRP

4 historically have proven to be the very sort of transitory claims that are “capable of repetition,

5 yet evading review.” Indeed, Plaintiffs expect that discovery will confirm that, in the past,

6 Defendants have engaged in a deliberate strategy of mooting the claims of applicants adversely

7 impacted by CARRP before a ruling on the merits could be obtained. In Muhanna v. USCIS, No.

8 14-cv-05995 (C.D. Cal. July 31, 2014), five individual plaintiffs filed suit challenging the delay 9 to their naturalization applications caused by CARRP.3 Within months of the commencement of

10 that lawsuit, USCIS adjudicated the naturalization applications of all five plaintiffs, each of

11 whom had been waiting years for a decision, and the lawsuit was voluntarily dismissed as moot.

12 Muhanna, No. 14-cv-05995, Dkt. 51 (entered Dec. 23, 2014); see also Pasquarella Decl., ¶ 4. In

13 Arapi v USCIS, No. 16-cv-00692 JLR (E.D. Mo. 2016), twenty individual plaintiffs filed suit

14 asserting causes of action relating to application of CARRP to their pending naturalization

15 applications. Once again, promptly after their suit was commenced, USCIS moved to adjudicate

16 the applications of all twenty plaintiffs. Nineteen of the plaintiffs voluntarily dismissed their

17 claims at that point, and USCIS moved to dismiss the remaining plaintiff’s claims as moot.

18 Arapi, No. 16-cv-00692 JLR, Dkt. 22 (filed Dec. 19, 2016).

19

Class certification is therefore necessary to ensure judicial review of these important

20 claims. See Ellsworth v. U.S. Bank, N.A., 30 F. Supp. 3d 886, 909 (N.D. Cal. 2014) (holding that

21 the defendant’s attempt to refund the plaintiff’s money did not moot the class action claims

22 because the bank’s behavior was evidence of a “calculated strategy that includes picking off

23 named Plaintiffs”); Ramirez v. Trans Union, LLC, No. 3:12-CV-00632 (JSC), 2013 WL

24 3752591, at *2 (N.D. Cal. July 17, 2013) (holding that Rule 68 Offer of Judgment to the named

25

26

3 Plaintiff in Muhanna was represented by some of the same attorneys

representing Plaintiffs here.

MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC) – 17
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Case 2:17-cv-00094-JCC Document 26 Filed 02/09/17 Page 24 of 27

1 plaintiff did not moot the class action because the plaintiff’s claims would “evade review” if the

2 defendant were able to “pick off” each subsequent lead plaintiff).

3

IV. CONCLUSION

4

Plaintiffs respectfully request that the Court grant their Motion for Class Certification and

5 enter an order certifying the proposed classes under Rules 23(a) and 23(b)(2), appoint Plaintiffs

6 as class representatives for the respective classes, and appoint Plaintiffs’ counsel as class counsel

7 for both classes.

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Case 2:17-cv-00094-JCC Document 26 Filed 02/09/17 Page 25 of 27

1 By:

2 s/Matt Adams

s/Glenda M. Aldana Madrid 3 Matt Adams #28287

4 Glenda M. Aldana Madrid #46987 Northwest Immigrant Rights Project

5 615 Second Ave., Ste. 400

Seattle, WA 98122 6 Telephone: (206) 957-8611

7

Facsimile: (206) 587-4025 matt@nwirp.org

8 glenda@nwirp.org

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MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC) – 19
134374050.4

s/Emily Chiang Emily Chiang #50517 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Echiang@aclu-wa.org Jennifer Pasquarella (admitted pro hac vice) ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles, CA 90017 Telephone: (213) 977-5211 Facsimile: (213) 997-5297 jpasquarella@aclusocal.org
Perkins Coie LLP
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Case 2:17-cv-00094-JCC Document 26 Filed 02/09/17 Page 26 of 27

1 Stacy Tolchin (admitted pro hac vice)
Law Offices of Stacy Tolchin 2 634 S. Spring St. Suite 500A
3 Los Angeles, CA 90014 Telephone: (213) 622-7450
4 Facsimile: (213) 622-7233 Stacy@tolchinimmigration.com
5

6

Trina Realmuto (admitted pro hac vice) Kristin Macleod-Ball (admitted pro hac

7 vice) National Immigration Project

8 of the National Lawyers Guild

14 Beacon St., Suite 602 9 Boston, MA 02108

10

Telephone: (617) 227-9727 Facsimile: (617) 227-5495

11 trina@nipnlg.org kristin@nipnlg.org

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s/Hugh Handeyside Hugh Handeyside #39792 Lee Gelernt (admitted pro hac vice) Hina Shamsi (admitted pro hac vice) American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 Telephone: (212) 549-2616 Facsimile: (212) 549-2654 lgelernt@aclu.org hhandeyside@aclu.org hshamsi@aclu.org
s/ Harry H. Schneider, Jr. Harry H. Schneider, Jr. #9404 s/ Nicholas P. Gellert Nicholas P. Gellert #18041 s/ Kate Reddy Kate Reddy #42089 s/ David A. Perez David A. Perez #43959 Attorneys for Plaintiffs Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: HSchneider@perkinscoie.com
NGellert@perkinscoie.com KReddy@perkinscoie.com DPerez@perkinscoie.com
Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-JCC Document 26 Filed 02/09/17 Page 27 of 27

1

CERTIFICATE OF SERVICE

2 The undersigned certifies that on the dated indicated below, I caused service of the
3 foregoing MOTION FOR CLASS CERTIFICATION via the CM/ECF system that will
4 automatically send notice of such filing to all counsel of record herein.
5 DATED this 9th day of February, 2017, at Seattle, Washington.
6

7

By: s/ David A. Perez

8

David A. Perez, #43959 Attorneys for Plaintiffs

9

Perkins Coie LLP 1201 Third Avenue, Suite 4900

10

Seattle, WA 98101-3099 Telephone: 206.359.8000

11

Facsimile: 206.359.9000 Email: DPerez@perkinscoie.com

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 Case 2:17-cv-00094-JCC Document 55 Filed 04/11/17 Page 1 of 2

THE HONORABLE JOHN C. COUGHENOUR 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9

ABDIQAFAR WAGAFE, et al.,

10

Plaintiffs,

11

v.

CASE NO. C17-0094-JCC MINUTE ORDER

12

UNITED STATES CITIZENSHIP

AND IMMIGRATION SERVICES, et al.,

13

Defendants. 14

15 The following Minute Order is made by direction of the Court, the Honorable John C.
16 Coughenour, United States District Judge:
17 This matter comes before the Court on the Government’s motion to transfer venue (Dkt.
18 No. 39). On February 9, 2017, Plaintiffs filed a motion for class certification. (Dkt. No. 26.) Five
19 days later, a United States Citizenship and Immigration Services (USCIS) officer called Plaintiff
20 Wagafe’s attorney to schedule an interview on his immigration application. (Dkt. No. 40 at 8.)
21 The interview took place on February 22, 2017, and the immigration officer approved Plaintiff
22 Wagafe’s application that day. (Id.) Prior to this lawsuit, Plaintiff Wagafe’s immigration
23 application had been pending for three and a half years. (Id.) Plaintiff Wagafe’s oath ceremony
24 took place on March 2, 2017, and he became a United States citizen that day. (Id.) Also on that
25 day, the Government filed the present motion to transfer venue to the District of North Dakota,
26

MINUTE ORDER C17-0094-JCC PAGE - 1

Case 2:17-cv-00094-JCC Document 55 Filed 04/11/17 Page 2 of 2

1 Eastern Division, arguing that Plaintiff Wagafe’s claims were mooted, and the only remaining

2 named plaintiff resided in Grand Forks, North Dakota. (Dkt. No. 39 at 1–2.)

3

On April 4, 2017, Plaintiffs filed a second amended complaint, adding three named

4 plaintiffs from Western Washington. (Dkt. No. 47 at 35, 38, 40.) Because the Government’s

5 motion was premised on the fact that there were no plaintiffs with viable claims remaining in

6 Western Washington (Dkt. No. 39), and because Plaintiffs recently amended their complaint to

7 add three named plaintiffs who reside in Western Washington (Dkt. No. 47), the Court hereby

8 DENIES the Government’s motion to transfer venue (Dkt. No. 39).

9

10

DATED this 11th day of April 2017.

11

William M. McCool

Clerk of Court 12

13

/s/Paula McNabb Deputy Clerk

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MINUTE ORDER C17-0094-JCC PAGE - 2

 
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4

5

6

7

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 ABDIQAFAR WAGAFE and MEHDI OSTADHASSAN on behalf of themselves and
10 others similarly situated,

11

Plaintiffs,

COMPLAINT-CLASS ACTION

12 v.

Case No: ---------------

13 UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; JOHN KELLY, COMPLAINT FOR DECLARATORY
14 in his official capacity as Secretary of the U.S. AND INJUNCTIVE RELIEF Department of Homeland Security; LORI
15 SCIALABBA, in her official capacity as Acting Director of the U.S. Citizenship and
16 Immigration Services; MATTHEW D. EMRICH, in his official capacity as Associate
17 Director of the Fraud Detection and National Security Directorate of the U.S. Citizenship
18 and Immigration Services (“FDNS”); DANIEL RENAUD, in his official capacity as Associate
19 Director of the Field Operations Directorate of the U.S. Citizenship and Immigration Services,
20
Defendants. 21

22

23

24

25

26

27

28
COMPLAINT
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1

INTRODUCTION

2 1. This class action lawsuit challenges the United States Citizenship and Immigration Service’s

3 (“USCIS”) unlawful delay and denial of Plaintiffs’ applications for citizenship and for lawful permanent

4 residence under a secretive policy that has incorrectly blacklisted Plaintiffs as “national security

5 concerns” and impermissibly barred them from obtaining permanent residency or citizenship despite

6 their eligibility to do so.

7 2. Plaintiff Abdiqafar Wagafe meets the statutory criteria to be naturalized as a United States

8 citizen, and Plaintiff Mehdi Ostadhassan meets the statutory criteria to adjust his immigration status to

9 that of a lawful permanent resident (“LPR”). However, USCIS refused to adjudicate their applications

10 in accordance with the governing statutory criteria. Instead, USCIS has applied impermissible ultra

11 vires rules under a policy known as the Controlled Application Review and Resolution Program

12 (“CARRP”), which has prevented the agency from granting Plaintiffs’ applications.

13 3. Plaintiffs bring this action on behalf of themselves and all others similarly situated to enjoin

14 Defendants from applying CARRP to immigration benefit adjudications and to compel USCIS to

15 finally—after years of waiting—adjudicate their pending applications for naturalization and LPR

16 adjustment of status, as required by law and without regard to CARRP or any other ultra vires rules.

17 4. The Constitution expressly assigns to Congress, not the executive branch, the authority to

18 establish uniform rules of naturalization. The Immigration and Nationality Act (“INA”) sets forth those

19 rules, along with the requirements for adjustment of status to lawful permanent residence.

20 5. Since 2008, however, USCIS has used CARRP—an internal vetting policy that has not been

21 authorized by Congress, codified, subjected to public notice and comment, or voluntarily made public in

22 any way—to investigate and adjudicate applications the agency deems to present potential national

23 security concerns. CARRP prohibits USCIS field officers from approving an application with a

24 potential national security concern, instead directing officers to deny the application or delay

25 adjudication—often indefinitely.

26 6. CARRP’s definition of national security concern is far broader than the security-related

27 ineligibility criteria for immigration applications set forth by Congress in the INA. CARRP identifies

28 national security concerns based on deeply-flawed and expansive government watchlists and other

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1 vague and overbroad criteria that bear little, if any, relation to the statutory security-related ineligibility

2 criteria. The CARRP definition casts a net so wide that it brands innocent, law-abiding residents, like

3 Plaintiffs—neither of whom poses a security threat—as national security concerns on account of

4 innocuous activity, associations, and characteristics such as national origin.

5 7. Although Plaintiffs do not know the total number of people subject to CARRP at any given time,

6 USCIS data reveals that between Fiscal Year 2008 and Fiscal Year 2012, more than 19,000 people from

7 twenty-one Muslim-majority countries or regions were subjected to CARRP. Upon information and

8 belief, USCIS opened nearly 42,000 CARRP cases between 2008 and 2016.

9 8. Due to CARRP, USCIS has unlawfully delayed adjudication of Plaintiffs’ applications, as the

10 law requires. Both Plaintiffs have experienced an extraordinary processing delay, effectively denying

11 them the benefit of the statutory entitlement they seek.

12 9. Although USCIS has applied CARRP to Plaintiffs’ attempts to naturalize and adjust status, it has

13 not notified Plaintiffs or the class members they seek to represent that it considers them potential

14 national security concerns, has not provided the reasons why it classified them in this way, and has not

15 afforded them any opportunity to address and correct any basis for USCIS’s concerns.

16 10. Plaintiffs therefore request that the Court enjoin USCIS from applying CARRP (or any similar

17 ultra vires policy) to their immigration applications and the applications of similarly situated individuals,

18 and declare that CARRP violates the INA; Article 1, Section 8, Clause 4 of the United States

19 Constitution (the Naturalization Clause); the Due Process Clause of the Fifth Amendment to the U.S.

20 Constitution; and the Administrative Procedure Act (“APA”). At a minimum, in the alternative, if

21 USCIS subjects an application to CARRP or similar non-statutory and sub-regulatory successor vetting

22 policy, Plaintiffs seek an order compelling USCIS to provide notice to applicants and an opportunity to 23 respond.1

24

25 1 As set forth below in paragraph 41, USCIS did not make information about CARRP public, and the

26

program only was discovered through fortuity during federal court litigation. To the extent the program has shifted in name, scope, or method, Plaintiffs may have no way to obtain that information. Thus,

27 Plaintiffs’ reference to “CARRP” incorporates any similar non-statutory and sub-regulatory successor vetting policy.
28 2 These security and terrorism grounds of inadmissibility, if applicable, may bar an applicant from

obtaining lawful permanent resident status, asylum, or a visa. However, they do not bar an applicant

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2

JURISDICTION AND VENUE

3 11. Plaintiffs allege violations of the INA, the APA, and the U.S. Constitution. This Court has

4 subject matter jurisdiction under 28 U.S.C. § 1331. This Court also has authority to grant declaratory

5 relief under 28 U.S.C. §§ 2201 and 2202, and injunctive relief under 5 U.S.C. § 702 and 28 U.S.C.

6 § 1361.

7 12. Venue is proper in the Western District of Washington under 28 U.S.C. §§ 1391(b) and 1391(e)

8 because (1) Plaintiff Abdiqafar Wagafe, a lawful permanent resident of the United States, resides in this

9 district and no real property is involved in this action; (2) a substantial part of the events giving rise to

10 the claims occurred in this district; and (3) Plaintiffs sue Defendants in their official capacity as officers

11 of the United States.

12

PARTIES

13 13. Plaintiff Abdiqafar Wagafe is a thirty-two-year-old Somali national and a lawful permanent

14 resident of the United States. He has lived in the United States since May 2007 and currently resides in

15 SeaTac, Washington. He applied for naturalization in November 2013. Even though he satisfies all

16 statutory criteria for naturalization, USCIS has subjected his application to CARRP, and as a result, a

17 final decision has not been issued.

18 14. Plaintiff Mehdi Ostadhassan is a thirty-three-year-old national of Iran. He has lived in the

19 United States since 2009 and resides in Grand Forks, North Dakota. He applied for adjustment of status

20 to lawful permanent resident in February 2014. Even though he satisfies all statutory criteria for

21 adjustment of status, USCIS subjected his application to CARRP, and as a result, a final decision has not

22 been issued.

23 15. Defendant USCIS is a component of the Department of Homeland Security (“DHS”), and is

24 responsible for overseeing lawful immigration to the United States, adjustment of status, and

25 naturalization of LPRs as U.S. citizens. USCIS implements federal law and policy with respect to

26 immigration applications, including CARRP.

27 16. Defendant General John Kelly is the Secretary of DHS, the department under which USCIS and

28 several other immigration agencies operate. Accordingly, Secretary Kelly has supervisory responsibility

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1 over USCIS. Plaintiffs sue Defendant Kelly in his official capacity.

2 17. Defendant Lori Scialabba is the Acting Director of USCIS. Acting Director Scialabba

3 establishes and implements naturalization and other immigration applications policy for USCIS and its

4 subdivisions, including CARRP. Plaintiffs sue Defendant Scialabba in her official capacity.

5 18. Defendant Matthew D. Emrich is the Associate Director of the Fraud Detection and National

6 Security Directorate of USCIS (“FDNS”), which is ultimately responsible for determining whether

7 individuals or organizations filing naturalization and other immigration applications pose a threat to

8 national security, public safety, or the integrity of the nation’s legal immigration system. Associate

9 Director Emrich establishes and implements policy for FDNS, including CARRP. Plaintiffs sue

10 Defendant Emrich in his official capacity.

11 19. Defendant Daniel Renaud is the Associate Director of the Field Operations Directorate of

12 USCIS, which is responsible for and oversees the processing and adjudication of immigration

13 applications through the USCIS field offices and the National Benefits Center. Plaintiffs sue Defendant

14 Renaud in his official capacity.

15

LEGAL FRAMEWORK

16

A. Naturalization

17 20. To naturalize as a U.S. citizen, an applicant must satisfy certain eligibility criteria under the INA

18 and its implementing regulations. See generally 8 U.S.C. §§ 1421-1458; 8 C.F.R. §§ 316.1-316.14.

19 21. Applicants must prove that they are “at least 18 years of age,” 8 C.F.R. § 316.2(a)(1); have

20 “resided continuously, after being lawfully admitted” in the United States, “for at least five years”; and

21 have been “physically present” in the United States for “at least half of that time.” 8 U.S.C.

22 § 1427(a)(1).

23 22. Applicants must also demonstrate “good moral character” for the five years preceding the date of

24 application, “attach[ment] to the principles of the Constitution of the United States, and favorabl[e]

25 dispos[ition] toward the good order and happiness of the United States . . . .” 8 C.F.R. § 316.2(a)(7).

26 23. An applicant is presumed to possess the requisite “good moral character” for naturalization

27 unless, during the five years preceding the date of the application, they are found (1) to be a habitual

28 drunkard, (2) to have committed certain drug-related offenses, (3) to be a gambler whose income derives

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1 principally from gambling or has been convicted of two or more gambling offenses, (4) to have given

2 false testimony for the purpose of obtaining immigration benefits; or if the applicant (5) has been

3 convicted and confined to a penal institution for an aggregate period of 180 days or more, (6) has been

4 convicted of an aggravated felony, or (7) has engaged in conduct such as aiding Nazi persecution or

5 participating in genocide, torture, or extrajudicial killings. 8 U.S.C. § 1101(f)(6).

6 24. The statutory and regulatory requirements set forth in paragraphs 21-22 are less stringent for

7 certain persons who married U.S. citizens and employees of certain nonprofit organizations, in that less

8 than five years of residency and good moral character are required. See generally 8 U.S.C. § 1430; 8

9 C.F.R. § 319.1; 8 C.F.R. § 319.4.

10 25. An applicant is barred from naturalization for national security-related reasons in circumstances

11 limited to those codified in 8 U.S.C. § 1424, including, inter alia, if the applicant has advocated, is

12 affiliated with any organization that advocates, or writes or distributes information that advocates, “the

13 overthrow by force or violence or other unconstitutional means of the Government of the United States,”

14 the “duty, necessity, or propriety of the unlawful assaulting or killing of any officer . . . of the

15 Government of the United States,” or “the unlawful damage, injury, or destruction of property.”

16 26. Once an individual submits an application, USCIS must conduct a background investigation, see

17 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1, which includes a full criminal background check by the Federal

18 Bureau of Investigation (“FBI”), see 8 C.F.R. § 335.2.

19 27. After completing the background investigation, USCIS must schedule a naturalization

20 examination at which the applicant meets with a USCIS examiner for an interview.

21 28. In order to avoid inordinate processing delays and backlogs, Congress has stated “that the

22 processing of an immigration benefit application,” which includes naturalization, “should be completed

23 not later than 180 days after the initial filing of the application.” 8 U.S.C. § 1571(b). USCIS must

24 either grant or deny a naturalization application within 120 days of the date of the examination. 8 C.F.R.

25 § 335.3.

26 29. If the applicant has complied with all requirements for naturalization, federal regulations state

27 that USCIS “shall grant the application.” 8 C.F.R. § 335.3(a) (emphasis added).

28 30. Courts have long recognized that “Congress is given power by the Constitution to establish a

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1 uniform Rule of Naturalization. . . . And when it establishes such uniform rule, those who come within

2 its provisions are entitled to the benefit thereof as a matter of right. . . .” Schwab v. Coleman, 145 F.2d

3 672, 676 (4th Cir. 1944) (emphasis added); see also Marcantonio v. United States, 185 F.2d 934, 937

4 (4th Cir. 1950) (“The opportunity having been conferred by the Naturalization Act, there is a statutory

5 right in the alien to submit his petition and evidence to a court, to have that tribunal pass upon them,

6 and, if the requisite facts are established, to receive the certificate.” (quoting Tutun v. United States, 270

7 U.S. 568, 578 (1926))).

8 31. Once an application is granted, the applicant is sworn in as a United States citizen.

9

B. Adjustment of Status to Lawful Permanent Resident

10 32. Federal law allows certain non-citizens to adjust their immigration status to that of a Lawful

11 Permanent Resident (“LPR”).

12 33. Several events may trigger eligibility to adjust to LPR status, including, but not limited to, an

13 approved petition through a family member, such as a U.S. citizen spouse, or employer. See, e.g., 8

14 U.S.C. § 1255(a); 8 C.F.R. § 245.1.

15 34. In general, a noncitizen who is the beneficiary of an approved immigrant visa petition and who is

16 physically present in the United States may adjust to LPR status if he or she “makes an application for

17 such adjustment,” was “inspected and admitted or paroled” into the United States, is eligible for an

18 immigrant visa and admissible to the United States, and the immigrant visa is immediately available to

19 the applicant at the time the application is filed. 8 U.S.C. §§ 1255(a)(1)-(3); 8 C.F.R. § 245.1.

20 35. An adjustment applicant may be found inadmissible, and therefore ineligible to become an LPR,

21 if certain security-related grounds apply, including, inter alia, the applicant has engaged in terrorist

22 activity, is a representative or member of a terrorist organization, endorses or espouses terrorist activity,

23 or incites terrorist activity. See 8 U.S.C. § 1182(a)(3). USCIS’s definition of a national security concern

24 in CARRP is significantly broader than these security-related grounds of inadmissibility set by

25 Congress.

26 36. Congress has directed USCIS to process immigration benefit applications, including for

27 adjustment of status, within 180 days. 8 U.S.C. § 1571(b).

28

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2

FACTUAL BACKGROUND

3

A. The Controlled Application Review and Resolution Program (“CARRP”)

4 37. In April 2008, USCIS created CARRP, an agency-wide policy for identifying, processing, and

5 adjudicating immigration applications that raise “national security concerns.”

6 38. Congress did not enact CARRP, and USCIS did not promulgate it as a proposed rule with the

7 notice-and-comment procedures mandated by the APA. See 5 U.S.C. § 553(b)-(c).

8 39. Upon information and belief, prior to CARRP’s enactment, USCIS simply delayed the

9 adjudication of many immigration applications that raised possible national security concerns, in part

10 due to backlogs created by the FBI Name Check process (one of many security checks utilized by

11 USCIS).

12 40. Indeed, the U.S. District Court for the Western District of Washington previously certified a

13 district class of hundreds of naturalization applicants whose cases were delayed due to FBI Name

14 Checks, see Roshandel v. Chertoff, 554 F. Supp. 2d 1194 (W.D. Wash. 2008), and denied the

15 defendants’ motion to dismiss the suit, see Roshandel, 2008 WL 1969646 (W.D. Wash. May 5, 2008).

16 The case resulted in a settlement where the defendants agreed to adjudicate class member applications

17 within a specified time period. See Roshandel, No. C07-1739MJP, Dkt. 81 (W.D. Wash. Aug. 25,

18 2008).

19 41. Now, in lieu of delays based on the FBI Name Check process, USCIS delays applications by

20 applying CARRP. Since CARRP’s inception, USCIS has not made information about CARRP available

21 to the public, except in response to Freedom of Information Act (“FOIA”) requests and litigation to

22 compel responses to those requests. See ACLU of Southern California v. USCIS, No. CV 13-861

23 (D.D.C. filed June 7, 2013). In fact, the program was unknown to the public, including applicants for

24 immigration benefits, until it was discovered in litigation challenging an unlawful denial of

25 naturalization in Hamdi v. USCIS, No. EDCV 10-894 VAP (DTBx), 2012 WL 632397 (C.D. Cal. Feb.

26 25, 2012), and then revealed in greater detail through the government’s response to a FOIA request.

27 42. CARRP directs USCIS officers to screen citizenship and immigration applications—including

28 visa petitions and other applications required for adjustment of status to lawful permanent residency—

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1 for national security concerns.

2 43. If a USCIS officer determines that an application presents a national security concern, he or she

3 will take the application off a routine adjudication track and—without notifying the applicant—place it

4 on a CARRP adjudication track where it is subject to distinct procedures, heightened scrutiny, and, most

5 importantly, extra-statutory criteria that result in lengthy delays and prohibit approvals, except in limited

6 circumstances, regardless of an applicant’s statutory eligibility.

7

1. CARRP’s Definition of a National Security Concern

8 44. According to the CARRP definition, a national security concern arises when an individual or

9 organization has been determined to have an articulable link—no matter how attenuated or

10 unsubstantiated—to prior, current, or planned involvement in, or association with, an activity,

11 individual, or organization described in sections 212(a)(3)(A), (B), or (F), or 237(a)(4)(A) or (B) of the

12 Immigration and Nationality Act. Those sections of the INA make inadmissible or removable any

13 individual who, inter alia, “has engaged in terrorist activity” or is a member of a “terrorist organization.”

14 8 U.S.C. § 1182(a)(3); 8 U.S.C. § 1227(a)(4).

15 45. For the reasons described herein, an individual need not be actually suspected of engaging in any

16 unlawful activity or joining any proscribed organization to be branded a national security concern under

17 CARRP.

18 46. CARRP distinguishes between two types of national security concerns: those ostensibly

19 involving “Known or Suspected Terrorists” (“KSTs”), and those ostensibly involving “non-Known or

20 Suspected Terrorists” (“non-KSTs”).

21 47. USCIS automatically considers an applicant a KST, and thus a national security concern, if his or

22 her name appears in the Terrorist Screening Database, also referred to as the Terrorist Watchlist

23 (“TSDB” or “Watchlist”). USCIS, therefore, applies CARRP to any applicant whose name appears in

24 the TSDB.

25 48. Upon information and belief, the TSDB includes approximately one million names, many of

26 whom present no threat to the United States.

27 49. The government’s Watchlisting Guidance sets a very low “reasonable suspicion” standard for

28 placement on the Watchlist. Under the Guidance, concrete facts are not necessary to satisfy the

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1 reasonable suspicion standard, and uncorroborated information of questionable or even doubtful

2 reliability can serve as the basis for blacklisting an individual. The Guidance further reveals that the

3 government blacklists non-U.S. citizens, including LPRs, even where it cannot meet the already low

4 reasonable suspicion standard of purported involvement with terrorist activity. The Guidance permits

5 the watchlisting of non-citizens simply for being associated with someone else who has been

6 watchlisted, even if there is no known involvement with that person’s purportedly suspicious activity.

7 The Guidance also states explicitly that non-citizens may be watchlisted based on information that is

8 very limited or of suspected reliability. These extremely loose standards significantly increase the

9 likelihood that the TSDB contains information on individuals who are neither known nor appropriately

10 suspected terrorists.

11 50. Furthermore, the Terrorist Screening Center (“TSC”), which maintains the TSDB, has failed to

12 ensure that individuals who do not meet the Watchlist’s criteria are promptly removed from the TSDB

13 (or not blacklisted in the first place). In 2013 alone, the watchlisting community nominated 468,749

14 individuals to the TSDB, and the TSC rejected only approximately one percent of those nominations.

15 Public reports also confirm that the government has nominated or retained people on government

16 watchlists as a result of human error.

17 51. The federal government’s official policy is to refuse to confirm or deny any given individual’s

18 inclusion in the TSDB or provide a meaningful opportunity to challenge that inclusion. Nevertheless,

19 individuals can become aware of their inclusion due to air travel experiences. In particular, individuals

20 may learn that they are on the “Selectee List” or the “Expanded Selectee List,” subsets of the TSDB, if

21 their boarding passes routinely display the code “SSSS” or they are routinely directed for additional

22 screening before boarding a flight over U.S. airspace. They may also learn of their inclusion in the

23 TSDB if U.S. federal agents regularly subject them to secondary inspection when they enter the United

24 States from abroad. Such individuals are also often unable to check-in for flights online or at airline

25 electronic kiosks at the airport.

26 52. Where the KST designation does not apply, CARRP instructs officers to look for indicators of a

27 non-Known or Suspected Terrorist (“non-KST”) concern.

28 53. These indicators fall into three categories: (1) statutory indicators; (2) non-statutory indicators;

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1 and (3) indicators contained in security check results.

2 54. Statutory indicators of a national security concern arise when an individual generally meets the

3 definitions described in Sections 212(a)(3)(A), (B), and (F), and 237(a)(4)(A) and (B) of the INA

4 (codified at 8 U.S.C. § 1182(a)(3)(A), (B), and (F) and § 1227(a)(4)(A) and (B)), which list the security 5 and terrorism grounds of inadmissibility and removability.2 However, CARRP expressly defines

6 statutory indicators of a national security concern more broadly than the statute, stating the facts of the

7 case do not need to satisfy the legal standard used in determining admissibility or removability under

8 those provisions of the INA to give rise to a non-KST national security concern.

9 55. For example, CARRP policy specifically directs USCIS officers to scrutinize evidence of

10 charitable donations to organizations later designated as financiers of terrorism by the U.S. Treasury

11 Department and to construe such donations as evidence of a national security concern, even if an

12 individual had made such donations without any knowledge that the organization was engaged in

13 proscribed activity. Such conduct would not make an applicant inadmissible for a visa, asylum, or LPR

14 status under the statute, see INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B), nor does it have any bearing

15 on a naturalization application.

16 56. Under CARRP, non-statutory indicators of a national security concern include travel through or

17 residence in areas of known terrorist activity; large scale transfer or receipt of funds; a person’s

18 employment, training, or government affiliations; the identities of a person’s family members or close

19 associates, such as a roommate, co-worker, employee, owner, partner, affiliate, or friend; or simply other

20 suspicious activities.

21 57. Finally, security check results are considered indicators of a national security concern in

22 instances where, for example, the FBI Name Check produces a positive hit on an applicant’s name and

23 the applicant’s name is associated with a national security-related investigatory file. Upon information

24

25 2 These security and terrorism grounds of inadmissibility, if applicable, may bar an applicant from

26

obtaining lawful permanent resident status, asylum, or a visa. However, they do not bar an applicant who is already a lawful permanent resident from naturalization, which is governed by the statutory

27 provisions specific to naturalization. See 8 U.S.C. §§ 1421-1458. The security and terrorism provisions may also render a non-citizen removable, see 8 U.S.C. § 1227(a)(4), but the government has not charged

28 Plaintiffs with removability under these provisions.

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1 and belief, this indicator leads USCIS to label applicants national security concerns solely because their

2 names appear in a law enforcement or intelligence file, even if they were never the subject of an

3 investigation. For example, an applicant’s name could appear in a law enforcement file in connection

4 with a national security investigation because he or she once gave a voluntary interview to an FBI agent,

5 he or she attended a mosque that was the subject of FBI surveillance, or he or she knew or was

6 associated with someone under investigation.

7 58. Upon information and belief, CARRP labels applicants national security concerns based on

8 vague and overbroad criteria that often turn on national origin or innocuous and lawful activities or

9 associations. These criteria are untethered from the statutory criteria that determine whether a person is

10 eligible for the immigration status or benefit they seek, and are so general that they necessarily ensnare

11 individuals who pose no threat to the security of the United States.

12

2. Delay and Denial

13 59. Once a USCIS officer identifies a CARRP-defined national security concern, the application is

14 subjected to CARRP’s rules and procedures that guide officers to deny such applications or, if an officer

15 cannot find a basis to deny the application, to delay adjudication as long as possible.

16

a) Deconfliction

17 60. One such procedure is called “deconfliction,” which requires USCIS to coordinate with—and,

18 upon information and belief, subordinate its authority to—the law enforcement agency, often the FBI,

19 that possesses information giving rise to the supposed national security concern.

20 61. During deconfliction, the relevant law enforcement agency has authority: to instruct USCIS to

21 ask certain questions in an interview or to issue a Request for Evidence (“RFE”); to comment on a

22 proposed decision on the benefit; and to request that USCIS deny, grant, or hold the application in

23 abeyance for an indefinite period of time.

24 62. Upon information and belief, deconfliction allows law enforcement or intelligence agencies such

25 as the FBI to directly affect the adjudication of a requested immigration benefit, and also results in the

26 agencies conducting independent interrogations of the applicant—or the applicant’s friends and family.

27 63. Upon information and belief, USCIS often makes decisions to deny immigration applications

28 because the FBI requests or recommends the denial, not because the person is statutorily ineligible for

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1 the benefit.

2 64. The FBI often seeks to use the pending immigration application to coerce the applicant to act as

3 an informant or otherwise provide information.

4

b) Eligibility Assessment

5 65. In addition to deconfliction, once officers identify an applicant as a national security concern,

6 CARRP directs officers to perform an “eligibility assessment” to determine whether the applicant is

7 eligible for the benefit sought.

8 66. Upon information and belief, at this stage, CARRP instructs officers to look for any reason to

9 deny an application so that valuable time and resources are not unnecessarily expended to investigate the

10 possible national security concern. Where no legitimate reason supports denial of an application

11 subjected to CARRP, USCIS officers often utilize spurious or pretextual reasons to deny the application.

12

c) Internal Vetting

13 67. Upon information and belief, if, after performing the eligibility assessment, an officer cannot

14 find a reason to deny an application, CARRP instructs officers to first “internally vet” the national

15 security concern using information available in DHS systems and databases, open source information,

16 review of the applicant’s file, RFEs, and interviews or site visits.

17 68. After conducting the eligibility assessment and internal vetting, USCIS officers are instructed to

18 again conduct deconfliction to determine the position of any interested law enforcement agency.

19

d) External Vetting

20 69. If the national security concern remains and the officer cannot find a basis to deny the benefit,

21 the application then proceeds to “external vetting.”

22 70. During external vetting, USCIS instructs officers to confirm the existence of the national security

23 concern with the law enforcement or intelligence agency that possesses the information that created the

24 concern and obtain additional information from that agency about the concern and its relevance to the

25 individual.

26 71. CARRP policy instructs USCIS officers to hold applications in abeyance for periods of 180 days

27 to enable law enforcement agents and USCIS officers to investigate the national security concern.

28 According to CARRP policy, the USCIS Field Office Director may extend the abeyance periods so long

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1 as the investigation remains open.

2 72. Upon information and belief, CARRP provides no outer limit on how long USCIS may hold a

3 case in abeyance, even though the INA requires USCIS to adjudicate a naturalization application within

4 120 days of examination, 8 C.F.R. § 335.3, and Congress has made clear its intent that USCIS

5 adjudicate immigration applications, including visa petitions and accompanying applications for

6 adjustment of status to lawful permanent residence, within 180 days of filing the application. 8 U.S.C. §

7 1571(b).

8

e) Adjudication

9 73. When USCIS considers an applicant to be a KST national security concern, CARRP policy

10 forbids USCIS adjudications officers from granting the requested benefit even if the applicant satisfies

11 all statutory and regulatory criteria.

12 74. When USCIS considers an applicant to be a non-KST national security concern, CARRP policy

13 forbids USCIS adjudications officers from granting the requested benefit in the absence of supervisory

14 approval and concurrence from a senior level USCIS official.

15 75. In Hamdi, 2012 WL 632397, when asked whether USCIS’s decision to brand naturalization

16 applicant Tarek Hamdi as a national security concern affected whether he was eligible for naturalization,

17 a USCIS officer testified at deposition that “it doesn’t make him statutorily ineligible, but because he is

18 a—he still has a national security concern, it affects whether or not we can approve him.” The officer

19 testified that, under CARRP, “until [the] national security concern [is] resolved, he won’t get approved.”

20 76. Upon information and belief, USCIS routinely delays adjudication of applications subject to

21 CARRP when it cannot find a reason to deny the application. When an applicant files a mandamus

22 action to compel USCIS to finally adjudicate his or her pending application, it often has the effect of

23 forcing USCIS to deny a statutorily-eligible application on pretextual grounds because CARRP prevents

24 agency field officers from granting an application involving a national security concern.

25 77. CARRP effectively creates two substantive regimes for immigration application processing and

26 adjudication: one for those applications subject to heightened scrutiny and vetting under CARRP and

27 one for all other applications. CARRP rules and procedures create substantive eligibility criteria that

28 indefinitely delay adjudications and unlawfully deny immigration benefits to non-citizens who are

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1 statutorily eligible and entitled by law.

2 78. At no point during the CARRP process is the applicant made aware that he or she has been

3 labeled a national security concern, nor is the applicant ever provided with an opportunity to respond to

4 and contest the classification.

5 79. Upon information and belief, CARRP results in unauthorized adjudication delays, often lasting

6 many years, and pre-textual denials of statutorily-eligible immigration applications.

7

B. Facts Specific To Each Plaintiff

8

Abdiqafar Wagafe

9 80. Plaintiff Abdiqafar Aden Wagafe is a thirty-two-year-old Somali national who currently resides

10 in SeaTac, Washington.

11 81. Between 2001 and 2007, Mr. Wagafe lived in refugee camps and temporary refugee housing in

12 Kenya and Ethiopia.

13 82. On May 24, 2007, he moved to the United States with nine family members and was admitted as

14 a refugee. He has lived in the United States since then.

15 83. After arriving in the United States, Mr. Wagafe briefly stayed in Minneapolis, Minnesota with

16 his brother. He then moved to Seattle, where his two sisters and another brother live.

17 84. All of the nine family members who moved to the United States with Mr. Wagafe have become

18 U.S. citizens.

19 85. From July 2007 until February 2011, Mr. Wagafe worked for Delta Global Services until

20 widespread layoffs left him without a job. Since February 2011, he has worked at a Somali restaurant,

21 which he currently co-owns and manages.

22 86. On May 28, 2008, Mr. Wagafe filed an application for refugee adjustment of status to become an

23 LPR.

24 87. USCIS granted his application on November 3, 2008, retroactively granting him LPR status as of

25 May 24, 2007, the date he was admitted to the U.S. as a refugee. See 8 C.F.R. § 209.1(e).

26 88. Mr. Wagafe filed his first application for naturalization on July 3, 2012. USCIS interviewed him

27 on October 29, 2012, but he failed the English-language portion of the exam. USCIS interviewed Mr.

28 Wagafe a second time on January 3, 2013, but he again failed the English writing portion of the exam.

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1 He also did not understand English sufficiently to comprehend the Oath of Allegiance. On these bases,

2 USCIS denied his first application for naturalization on January 9, 2013.

3 89. Mr. Wagafe has since improved his English skills significantly.

4 90. Mr. Wagafe filed a second application for naturalization on November 8, 2013. USCIS

5 scheduled his interview for February 25, 2014, but cancelled it on January 29, 2014 without explanation.

6 91. Mr. Wagafe has made various inquiries concerning his case to USCIS, but he has not received an

7 explanation for the delay. USCIS last responded to his queries in July 2015, instructing his attorney to

8 have patience and that the agency would let him know when the agency was ready to interview him. His

9 subsequent inquiries have gone unanswered.

10 92. Mr. Wagafe has resided continuously in the United States for at least five years preceding the

11 date of filing his application for naturalization, and has resided continuously within the United States

12 from the date of filing his application until the present.

13 93. Mr. Wagafe has never been convicted of a crime.

14 94. There is no statutory basis for denying his naturalization application.

15 95. Mr. Wagafe is Muslim and regularly attends Mosque. He also frequently sends small amounts of

16 money to his relatives in Somalia, Kenya, and Uganda. He has been married to a woman in Uganda

17 since December 2015 and makes visits to see her. He has been unable to bring her to the United States

18 because of the delays in his case.

19 96. Mr. Wagafe’s immigration Alien file (“A-file”) makes clear that USCIS subjected his pending

20 application to CARRP. The A-file states that a CARRP officer handled his case. In addition, a

21 document in the A-File shows that on December 8, 2013, there was a hit on Mr. Wagafe’s name in the

22 FBI Name Check and that the Name Check result contained “derogatory information.” The document

23 also states that Mr. Wagafe appears eligible for naturalization absent confirmation of national security

24 issues. The document then states that the case is being forwarded for external vetting.

25 97. Upon information and belief, Mr. Wagafe’s naturalization application is subject to CARRP,

26 which is causing the delay in adjudication of his naturalization application, despite the fact that he is

27 statutorily entitled to naturalize.

28

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1

2

Mehdi Ostadhassan

3 98. Plaintiff Mehdi Ostadhassan is a thirty-three-year-old national of Iran. He resides in Grand

4 Forks, North Dakota.

5 99. Mr. Ostadhassan moved to the United States in 2009 on a student visa and studied at the

6 University of North Dakota. He earned his Ph.D. in Petroleum Engineering, and, after graduation, was

7 immediately hired by the University of North Dakota as an Assistant Professor of Petroleum

8 Engineering.

9 100. At the University of North Dakota, Mr. Ostadhassan met Bailey Bubach, a United States citizen.

10 In January 2014, they were married in a small religious ceremony in California, and then obtained their

11 marriage license in Grand Forks, North Dakota. Their first child was born in July 2016.

12 101. In February 2014, Ms. Bubach filed an immigrant visa petition (USCIS Form I-130) for Mr.

13 Ostadhassan and he concurrently filed an application to adjust status (USCIS Form I-485) based upon

14 his marriage.

15 102. Mr. Ostadhassan has never been convicted of a crime.

16 103. USCIS scheduled Mr. Ostadhassan for an interview on May 19, 2014, but when he appeared for

17 the interview, USCIS informed him that it was cancelled.

18 104. USCIS rescheduled and conducted an interview almost a year and a half later, on September 24,

19 2015. At that interview, a USCIS officer told Mr. Ostadhassan that the agency still could not make a

20 decision and that it needed to complete further background and security checks. To date, Mr.

21 Ostadhassan is still waiting for a decision from USCIS.

22 105. Mr. Ostadhassan and Ms. Bubach are Muslim and active participants in their religious

23 community. Each year they donate to Muslim charities in accordance with the teachings of Islam. They

24 are both involved in the Muslim Student Association at the University of North Dakota. In addition,

25 they run a Muslim Sunday School. Mr. Ostadhassan also coordinates the Muslim Congress’s Koran

26 competition every year.

27 106. Upon information and belief, USCIS considers Mr. Ostadhassan a non-KST national security

28 concern and is subjecting him to CARRP. USCIS may have subjected Mr. Ostadhassan’s adjustment

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1 application to CARRP because he has resided in and traveled through what the government considers

2 areas of known terrorist activity—namely, Iran—and because of his donations to Islamic charities and

3 involvement in the Muslim community.

4 107. In October 2014, an FBI agent contacted Mr. Ostadhassan and asked to meet to discuss his recent

5 trip to Iran to visit family. Mr. Ostadhassan declined to meet with the FBI, and his lawyer informed the

6 agent that any further communications should go through the attorney. The FBI has not contacted Mr.

7 Ostadhassan since.

8 108. Upon information and belief, the request for a visit by the FBI was a product of CARRP’s

9 deconfliction process.

10 109. Upon information and belief, Mr. Ostadhassan’s application for adjustment of status is subject to

11 CARRP, which is causing the delay in the adjudication of his application, despite the fact that he is

12 statutorily eligible for adjustment of status.

13

CLASS ACTION ALLEGATIONS

14 110. Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs bring this action on behalf of

15 themselves and all other similarly-situated individuals. Plaintiffs do not bring claims for compensatory

16 relief. Instead, Plaintiffs seek injunctive relief broadly applicable to members of the Plaintiff Classes, as

17 defined below. The requirements for Rule 23 are met with respect to the classes defined below.

18 111. The Naturalization Plaintiff Class is defined as: A national class of all persons currently and in

19 the future (1) who have an application for naturalization pending before USCIS, (2) that is subject to

20 CARRP, and (3) that has not been adjudicated by USCIS within six months of having been filed.

21 112. The Adjustment of Status Plaintiff Class is defined as: A national class of all persons currently

22 and in the future (1) who have an application for adjustment of status pending before USCIS, (2) that is

23 subject to CARRP, and (3) that has not been adjudicated by USCIS within six months of having been

24 filed.

25 113. The Plaintiff Classes are each so numerous that joinder of all members is impracticable.

26 Although Plaintiffs do not know the total number of people subject to CARRP at any given time, USCIS

27 data reveals that between Fiscal Year 2008 and Fiscal Year 2012, more than 19,000 people from twenty-

28 one Muslim-majority countries or regions were subjected to CARRP. Upon information and belief,

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1 between 2008 and 2016, USCIS opened 41,805 CARRP cases.

2 114. This data includes individuals with pending naturalization and adjustment of status applications.

3 For example, in March 2009, there were 1,437 adjustment of status (I-485) applications subject to

4 CARRP that had been pending for at least six months and 1,065 naturalization (N-400) applications

5 subject to CARRP that had been pending for at least six months.

6 115. The exact number of individuals subject to CARRP at any given time fluctuates as applications

7 are filed and USCIS applies these policies and practices to the applications. Moreover, members of the

8 class reside in various locations across the country. For these and other reasons, joinder of the members

9 of the Classes would create substantial challenges to the efficient administration of justice. Joinder is

10 thus impracticable here.

11 116. In addition, there are questions of law and fact common to the members of the Classes.

12 Common questions of law and fact include, but are not limited to, the following:

13 117. Whether CARRP violates the INA by creating additional, non-statutory, substantive criteria that

14 must be met prior to a grant of a naturalization and adjustment of status application;

15 118. Whether CARRP violates the Uniform Rule of Naturalization, Article I, Section 8, Clause 4 of

16 the United States Constitution by establishing criteria for naturalization not authorized by Congress;

17 119. Whether CARRP violates the APA, 5 U.S.C. § 706, as final agency action that is arbitrary and

18 capricious, contrary to constitutional law, and in excess of statutory authority;

19 120. Whether CARRP constitutes a substantive rule and, as a result, Defendants violated the APA, 5

20 U.S.C. § 553, when they promulgated CARRP without providing a notice-and-comment period prior to

21 implementing it;

22 121. Whether Defendants’ failure to give Plaintiffs notice of their classification under CARRP, a

23 meaningful explanation of the reason for such classification, and a process by which Plaintiffs can

24 challenge their classification violates the Due Process Clause of the Fifth Amendment to the United

25 States Constitution.

26 122. The claims of the named Plaintiffs are typical of their respective Plaintiff Class. Plaintiffs know

27 of no conflict between their interests and those of the Plaintiff Class they seek to represent. In defending

28 their own rights, the named Plaintiffs will defend the rights of all proposed Plaintiff Class members

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1 fairly and adequately. The members of the Classes are readily ascertainable through notice and

2 discovery.

3 123. Plaintiffs are represented by counsel with particular expertise in immigration and constitutional

4 law, and extensive experience in class action litigation and other complex litigation.

5 124. Defendants have acted or refused to act on grounds generally applicable to each member of the

6 Plaintiff Classes by unlawfully applying CARRP to their immigration applications—thus applying

7 additional non-statutory, substantive requirements for naturalization and adjustment of status, and

8 causing them to have suffered and continue to suffer injury in the form of unreasonable delays and

9 denials of their applications.

10 125. A class action is superior to other methods available for the fair and efficient adjudication of this

11 controversy because joinder of all members of the Classes is impracticable. Absent the relief they seek

12 here, there would be no other way for the Plaintiff Class members to individually redress the wrongs

13 they have suffered and will continue to suffer.

14

FIRST CLAIM FOR RELIEF

15

Immigration and Nationality Act and Implementing Regulations

16

(All Plaintiffs on behalf of themselves and their Plaintiff Class)

17 126. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

18 127. To secure naturalization and adjustment of status, an applicant must satisfy certain statutorily-

19 enumerated criteria.

20 128. By its terms, CARRP creates additional, non-statutory, substantive adjudicatory criteria.

21 129. Accordingly, CARRP violates 8 U.S.C. § 1427, 8 C.F.R. § 316.2, and 8 C.F.R. § 335.3, as those

22 provisions set forth the exclusive applicable statutory and regulatory criteria for a grant of naturalization.

23 130. CARRP also violates 8 U.S.C. § 1255, 8 U.S.C. § 1159, 8 C.F.R. § 245.1, and 8 C.F.R. § 209.1,

24 as those provisions set forth the applicable statutory and regulatory criteria for individuals present in the

25 United States to adjust their status.

26 131. Because of these violations and/or because CARRP’s additional, non-statutory, substantive

27 criteria have been applied to their applications, Plaintiffs and Plaintiff Class members have suffered and

28 will continue to suffer injury in the form of unreasonable delays and unwarranted denials of their

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1 applications for naturalization and adjustment of status.

2

SECOND CLAIM FOR RELIEF

3

“Uniform Rule of Naturalization”

4

(Plaintiff Abdiqafar Wagafe on behalf of himself and the Naturalization Plaintiff Class)

5 132. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

6 133. Congress has the sole power to establish criteria for naturalization, and any additional

7 requirements not enacted by Congress are ultra vires.

8 134. By its terms, CARRP creates additional, non-statutory, substantive criteria that must be met prior

9 to a grant of a naturalization application.

10 135. Accordingly, CARRP violates Article I, Section 8, Clause 4 of the United States Constitution.

11 136. Because of this violation and because CARRP’s additional, non-statutory, substantive criteria

12 have been applied to their applications, Plaintiff Wagafe and Naturalization Plaintiff Class members

13 have suffered and will continue to suffer injury in the form of unreasonable delays and unwarranted

14 denials of their naturalization applications.

15

THIRD CLAIM FOR RELIEF

16

Administrative Procedure Act (5 U.S.C. § 706)

17

(All Plaintiffs on behalf of themselves and their Plaintiff Class)

18 137. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

19 138. CARRP constitutes final agency action that is arbitrary and capricious because it “neither

20 focuses on nor relates to a [non-citizen’s] fitness to” obtain the immigration benefits subject to its terms.

21 Judulang v. Holder, 132 S. Ct. 476, 485 (2011).

22 139. CARRP is also not in accordance with law, is contrary to constitutional rights, and is in excess of

23 statutory authority because it violates the INA and exceeds USCIS’s statutory authority to implement

24 (not create) the immigration laws, as alleged herein.

25 140. As a result of these violations, Plaintiffs and members of the Plaintiff Classes have suffered and

26 continue to suffer injury in the form of unreasonable delays and unwarranted denials of their

27 immigration applications.

28

FOURTH CLAIM FOR RELIEF

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1

Administrative Procedure Act (Notice and Comment)

2

(All Plaintiffs on behalf of themselves and their Plaintiff Class)

3 141. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

4 142. The APA, 5 U.S.C. § 553, requires administrative agencies to provide a notice-and-comment

5 period prior to implementing a substantive rule.

6 143. CARRP constitutes a substantive agency rule within the meaning of 5 U.S.C. § 551(4).

7 144. Defendants failed to provide a notice-and-comment period prior to the adoption of CARRP.

8 145. Because CARRP is a substantive rule promulgated without the notice-and-comment period, it

9 violates 5 U.S.C. § 553 and is therefore invalid.

10 146. As a result of these violations, Plaintiffs and members of the Plaintiff Classes have suffered and

11 continue to suffer injury in the form of unreasonable delays and unwarranted denials of their

12 immigration applications.

13

FIFTH CLAIM FOR RELIEF

14

Fifth Amendment (Procedural Due Process)

15

(All Plaintiffs on behalf of themselves and their Plaintiff Class)

16 147. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

17 148. Defendants’ failure to give Plaintiffs and members of the Plaintiff Classes notice of their

18 classification under CARRP, a meaningful explanation of the reason for such classification, and any

19 process by which Plaintiffs can challenge their classification, violates the Due Process Clause of the

20 Fifth Amendment to the United States Constitution.

21 149. Because of this violation, Plaintiffs and members of the Plaintiff Classes have suffered and

22 continue to suffer injury in the form of unreasonable delays and unwarranted denials of their

23 immigration applications.

24

PRAYER FOR RELIEF

25 WHEREFORE, Plaintiffs respectfully request that the Court grant the following relief:

26 1. Certify the case as a class action as proposed herein;

27 2. Appoint Plaintiff Wagafe as representative of the Naturalization Plaintiff Class, and Plaintiff

28

Ostadhassan as representative of the Adjustment of Status Plaintiff Class;

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1 3. Order Defendants to adjudicate Plaintiffs’ and Class Members’ applications based solely on the

2

statutory criteria;

3 4. Enter a judgment declaring that (a) CARRP violates the INA and its implementing regulations;

4

Article 1, Section 8, Clause 4 of the United States Constitution; the Fifth Amendment to the

5

United States Constitution; and the APA; and (b) Defendants violated the APA by adopting

6

CARRP without promulgating a rule and following the process for notice and comment by the

7

public;

8 5. Enjoin Defendants, their subordinates, agents, employees, and all others acting in concert with

9

them from applying CARRP to the processing and adjudication of the immigration benefit

10

applications of Plaintiffs and other members of the proposed classes;

11 6. Alternatively, order Defendants to provide Plaintiffs and other members of the proposed classes

12

with notice that they have been subjected to CARRP, the reasons for subjecting them to CARRP,

13

and a reasonable opportunity to respond to those allegations before a neutral decisionmaker;

14 7. Order Defendants to rescind CARRP because they failed to follow the process for notice and

15

comment by the public;

16 8. Award Plaintiffs and other members of the proposed class reasonable attorneys’ fees and costs;

17

and

18 9. Grant any other relief that this Court may deem fit and proper.

19

20 Respectfully submitted this 23rd day of January, 2017.

21 By:
22 s/Matt Adams 23 Matt Adams, WSBA No. 28287

24 s/Glenda M. Aldana Madrid Glenda M. Aldana Madrid, WSBA No. 46987
25
Northwest Immigrant Rights Project 26 615 Second Ave., Ste. 400 27 Seattle, WA 98122
Telephone: (206) 957-8611 28 Facsimile: (206) 587-4025

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matt@nwirp.org 1 glenda@nwirp.org

2 s/Emily Chiang Emily Chiang, WSBA No. 50517

3 ACLU of Washington Foundation

901 Fifth Avenue, Suite 630 4 Seattle, WA 98164

5

Telephone: (206) 624-2184 Echiang@aclu-wa.org

6 Jennifer Pasquarella (application for leave to appear pro hac vice forthcoming)

7 ACLU Foundation of Southern California

1313 W. 8th Street 8 Los Angeles, CA 90017

9

Telephone: (213) 977-5211 Facsimile: (213) 997-5297

10 jpasquarella@aclusocal.org

11 Stacy Tolchin (application for leave to appear pro hac vice forthcoming) Law Offices of Stacy Tolchin
12 634 S. Spring St. Suite 500A 13 Los Angeles, CA 90014
Telephone: (213) 622-7450 14 Facsimile: (213) 622-7233
Stacy@tolchinimmigration.com 15
Trina Realmuto (application for leave to appear pro hac vice forthcoming) 16 Kristin Macleod-Ball (application for leave to appear pro hac vice forthcoming) 17 National Immigration Project
of the National Lawyers Guild 18 14 Beacon St., Suite 602
Boston, MA 02108 19 Telephone: (617) 227-9727
Facsimile: (617) 227-5495 20 trina@nipnlg.org 21 kristin@nipnlg.org

22 Lee Gelernt (application for leave to appear pro hac vice forthcoming)

23 s/Hugh Handeyside

24

Hugh Handeyside, WSBA No. 39792 Hina Shamsi (application for leave to appear pro hac vice forthcoming)

25 American Civil Liberties Union Foundation

26 125 Broad Street

New York, NY 10004 27 Telephone: (212) 549-2616

28

Facsimile: (212) 549-2654 lgelernt@aclu.org

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hhandeyside@aclu.org 1 hshamsi@aclu.org 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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 Case 2:17-cv-00094-RAJ Document 58 Filed 05/08/17 Page 1 of 33

1

THE HONORABLE JOHN C. COUGHENOUR

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 8

9 ABDIQAFAR WAGAFE, et al., on behalf of themselves and others similarly situated,
10
Plaintiffs, 11
v. 12
DONALD TRUMP, President of the 13 United States, et al.,

14

Defendants.

No. 2:17-cv-00094-JCC
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
NOTE ON MOTION CALENDAR: MAY 12, 2017
ORAL ARGUMENT REQUESTED

15

16

17

18

19

20

21

22

23

24

25

26

PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS (No. 2:17-cv-00094-JCC)
124667-0001/LEGAL135442428.7

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 58 Filed 05/08/17 Page 2 of 33

1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION ............................................................................................................. 1

4 II. 5

BACKGROUND ............................................................................................................... 1 A. The CARRP Policy. ............................................................................................... 1 B. Defendant Trump’s Promise for More “Extreme” Vetting.................................... 2

6

C. CARRP Has Delayed the Named Plaintiffs’ Applications. ................................... 4

7 III. LEGAL STANDARD........................................................................................................ 5

IV. ARGUMENT ..................................................................................................................... 6

8

A. This Case Presents a Controversy Over Which the Court

9

Has Jurisdiction...................................................................................................... 6

B. Plaintiffs Have Standing. ....................................................................................... 7

10

1. The Scialabba Memo regarding the first

11

(withdrawn) Executive Order does not moot Plaintiffs’ current claims. (Claims 1, 2, 3, 5, 6)........................................ 7

12

2. Plaintiffs have standing to assert a violation of the

Uniform Rule of Naturalization Clause. (Claim 10)................................ 11

13

C. Plaintiffs Have Alleged Sufficient Facts Concerning Claims

14

of Additional “Extreme Vetting” to Give Rise to a Claim for Relief in the Event CARRP Is Supplanted by New

15

Procedures............................................................................................................ 13

D. Plaintiffs Have Alleged Sufficient Facts to Establish that

16

CARRP Violates Plaintiffs’ Procedural Due Process

Rights. (Claim 4).................................................................................................. 14

17

E. Plaintiffs Have Alleged a Plausible Claim Under the INA.

18

(Claim 7) .............................................................................................................. 17

F. Plaintiffs Have Alleged Sufficient Facts to Establish that

19

CARRP Violates the APA. .................................................................................. 19

20

1. CARRP qualifies as a substantive agency rule. (Claim 9) .................................................................................................. 20

21

2. CARRP qualifies as a final agency action. (Claim 8).............................. 22

22 V. CONCLUSION................................................................................................................ 24

23

24

25

26

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1

TABLE OF AUTHORITIES

2

3 CASES

4 Abbasfar v. Chertoff,

5

No. C07-1155 PVT, 2007 WL 2409538 (N.D. Cal. Aug. 21, 2007) .......................................15

6 American Mining Congress v. Mine Safety & Health Administration, 995 F.2d 1106 (D.C. Cir. 1993) .........................................................................................21, 22

7 Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,

8

397 U.S. 150 (1970).................................................................................................................18

9 Ass’n of Flight Attendants-CWA, AFL-CIO v. Huerta,

10

785 F.3d 710 (D.C. Cir. 2015) .................................................................................................24

11

Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (1972).................................................................................................................14

12 Bennett v. Spear,

13

520 U.S. 154 (1997).................................................................................................................23

14 Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) ...................................................................................................15
15

16

Broadgate Inc. v. U.S. Citizenship & Immigration Servs., 730 F. Supp. 2d 240 (D.D.C. 2010) .........................................................................................24

17 Brown v. Holder,

18

763 F.3d 1141 (9th Cir. 2014) .................................................................................................14

19 Cazarez-Gutierrez v. Ashcroft,

382 F.3d 905 (9th Cir. 2004) ...................................................................................................12 20

Cetacean Cmty. v. Bush,

21

386 F.3d 1169 (9th Cir. 2004) .................................................................................................18

22 Ching v. Mayorkas,

23

725 F.3d 1149 (9th Cir. 2013) .................................................................................................14

24 City of Mesquite v. Aladdin’s Castle, Inc.,

455 U.S. 283 (1982)...................................................................................................................9 25

Cooper v. Providence Health Care Found.,

26

17-5173 RJB, 2017 WL 1354817 (W.D. Wash. Apr. 13, 2017) ...............................................5

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1 Cort v. Ash, 422 U.S. 66 (1975).............................................................................................................17, 18
2

3

Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798 (D.C. Cir. 2006) .................................................................................................24

4 Ellsworth v. U.S. Bank, N.A.,

5

30 F. Supp. 3d 886 (N.D. Cal. 2014) .........................................................................................7

6 Ex parte Fillibertie, 62 F. Supp. 744 (E.D.S.C. 1945) .............................................................................................13
7

8

Fedorenko v. U.S., 449 U.S. 490 (1981).................................................................................................................15

9 Flores v. Baldwin Park,

10

No. CV 14-9290-MWF, 2015 WL 756877 (C.D. Cal. 2015) ..................................................12

11 Foss v. Nat’l Marine Fisheries Serv.,

161 F.3d 584 (9th Cir. 1998) ...................................................................................................14 12

Francis v. I.N.S.,

13

532 F.2d 268 (2d Cir. 1976).....................................................................................................11

14 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,

15

528 U.S. 167 (2000)...................................................................................................................9

16 Graham v. Richardson,

403 U.S. 365 (1971).................................................................................................................12

17

Hawai’i v. Trump,

18

No. 17-00050 DKW-KSC, 2017 WL 1011673 (D. Haw. Mar. 15, 2017),

19

appeal docketed, No. 17-15589 (9th Cir.) .............................................................................3, 8

20 Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003) ...................................................................................................16

21 Hernandez-Avalos v. I.N.S.,

22

50 F.3d 842 (10th Cir. 1995) ...................................................................................................18

23 I.N.S. v. Pangilinan,

24

486 U.S. 875 (1988).................................................................................................................15

25

Iturribarria v. I.N.S., 321 F.3d 889 (9th Cir. 2003) ...................................................................................................16

26

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1 Judulang v. Holder, 565 U.S. 42 (2011)...................................................................................................................23
2

3

Legal Aid Soc’y of Alameda Cty. v. Brennan, 608 F.2d 1319 (9th Cir. 1979) .................................................................................................17

4 Lexmark Int’l, Inc. v. Static Control Components, Inc.,

5

134 S. Ct. 1377 (2014) .............................................................................................................18

6 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).................................................................................................................12
7

8

Marcantonio v. U.S., 185 F.2d 934 (4th Cir. 1950) ...................................................................................................13

9 Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,

10

132 S. Ct. 2199 (2012) .......................................................................................................18, 19

11 Mejia v. Ashcroft,

298 F.3d 873 (9th Cir.2002) ....................................................................................................16 12

Mester Mfg. Co. v. I.N.S.,

13

879 F.2d 561 (9th Cir. 1989) ...................................................................................................16

14 Nemetz v. I.N.S.,

15

647 F.2d 432 (4th Cir. 1981) ...................................................................................................12

16 Oregon Nat. Res. Council v. U.S. Forest Serv.,

834 F.2d 842 (9th Cir. 1987) ...................................................................................................18

17

Osborn v. Bank of U.S.,

18

22 U.S. 738 (1824)...................................................................................................................13

19 Patel v. U.S. Citizenship & Immigration Servs.,

20

732 F.3d 633 (6th Cir. 2013) ...................................................................................................19

21 Paulsen v. Daniels,

413 F.3d 999 (9th Cir. 2005) ...................................................................................................20

22

Perez v. Mortg. Bankers Ass’n,

23

135 S. Ct. 1199 (2015) .......................................................................................................21, 22

24 Petition of Lee Wee,

25

143 F. Supp. 736 (S.D. Cal. 1956)...........................................................................................12

26 Pinnacle Armor, Inc. v. U.S., 648 F.3d 708 (9th Cir. 2011) ...................................................................................................14

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1 Premera Blue Cross v. Canon Sols. Am., Inc., C16-0411-JCC, 2017 WL 714216 (W.D. Wash. Feb. 23, 2017)...............................................6
2

3

Ramirez v. Trans Union, LLC, No. 3:12-CV-00632 (JSC), 2013 WL 3752591 (N.D. Cal. July 17, 2013) ...............................7

4 Rojas v. Johnson,

5

C16-1024RSM, 2017 WL 1153856 (W.D. Wash. Mar. 28, 2017)..........................................11

6 S. Cal. Edison Co. v. F.E.R.C., 770 F.2d 779 (9th Cir. 1985) ...................................................................................................21
7

8

Schneider v. Rusk, 377 U.S. 163 (1964).................................................................................................................13

9 Schwab v. Coleman,

10

145 F.2d 672 (4th Cir. 1944) .............................................................................................13, 15

11 Tutun v. U.S.,

270 U.S. 568 (1926)...........................................................................................................11, 15 12

U. S. v. Concentrated Phosphate Exp. Ass’n,

13

393 U.S. 199 (1968)...................................................................................................................9

14 United States v. Shanahan,

15

232 F. 169 (E.D. Pa. 1916) ......................................................................................................15

16 Washington v. Trump,

No. 2:17-cv-00141-JLR, ECF 52, 2017 WL 462040 (W.D. Wash. Feb. 3,

17

2017), stay denied 847 F.3d 1151 (9th Cir. Feb. 9, 2017) .....................................................3, 8

18 White v. Lee,

19

227 F.3d 1214 (9th Cir. 2000) .....................................................................................5, 8, 9, 10

20 Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004) .....................................................................................................5

21 Yu v. Brown,

22

36 F. Supp. 2d 922 (D.N.M. 1999) ..........................................................................................15

23 STATUTES 24 5 U.S.C. § 553....................................................................................................................19, 20, 24 25 5 U.S.C. § 553(b) ...........................................................................................................................20 26 5 U.S.C. § 553(c) ...........................................................................................................................20

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1 5 U.S.C. § 702................................................................................................................................18
2 5 U.S.C. § 706................................................................................................................................19
3 5 U.S.C. § 706(2)(A)......................................................................................................................23 4 8 U.S.C. § 1159........................................................................................................................17, 22 5
8 U.S.C. § 1255..................................................................................................................17, 21, 22 6
8 U.S.C. § 1357(b) .........................................................................................................................21 7
8 U.S.C. §§ 1421-1458 ......................................................................................................11, 17, 22 8
8 U.S.C. § 1446(a) .........................................................................................................................21 9 10 OTHER AUTHORITIES 11 8 C.F.R. § 103.2(b)(16)(i) ..............................................................................................................16
12 8 C.F.R. § 209.1 .......................................................................................................................17, 22
13 8 C.F.R. § 245.1 .......................................................................................................................17, 22
14 8 C.F.R. §§ 316.1-316.14...................................................................................................11, 17, 22
15 8 C.F.R. § 335.3 .............................................................................................................................22
16 8 C.F.R. § 335.3(a)...................................................................................................................15, 17
17 82 Fed. Reg. 8977 ..............................................................................................................3, 7, 8, 20 18 82 Fed. Reg. 8978-79.......................................................................................................................3 19
82 Fed. Reg. 13209 ................................................................................................................ passim 20
82 Fed. Reg. 13215 ......................................................................................................................3, 8 21
Fed. R. Civ. P. 12(b)(1)....................................................................................................................5 22
Fed. R. Civ. P. 12(b)(6)....................................................................................................5, 6, 22, 24 23
U.S. Const. art. I, § 8, cl. 4.............................................................................................................11 24
25
26

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1

I. INTRODUCTION

2

This lawsuit challenges a secret and unlawful government program, the Controlled

3 Application Review and Resolution Program (“CARRP”), that targets Muslims seeking

4 immigration benefits based on arbitrary, discriminatory, and illegal criteria. Plaintiffs have

5 alleged facts that, if proven, demonstrate that CARRP is unconstitutional and ultra vires.

6 Moreover, since Plaintiffs initiated this lawsuit, Defendant Donald Trump has issued two

7 executive orders making clear his intentions to target Muslims through “extreme vetting.”

8 Portions of both executive orders have been enjoined after several courts concluded that they

9 were likely motivated by animus against Muslims and immigrants from Muslim-majority

10 countries. Thus, Plaintiffs have also alleged sufficient facts that, if proven, demonstrate that

11 CARRP and/or any successor extreme vetting program resulting from these two orders

12 unlawfully targets certain applicants for immigration benefits.

13

The Court should deny Defendants’ motion to dismiss. At the outset, Plaintiffs

14 emphasize two points. First, Defendants never contest or deny Plaintiffs’ descriptions of

15 CARRP or how the government applies it. Second, Defendants mischaracterize Plaintiffs’

16 claims. This case is not about delays or slow-walking applications. This case is about an

17 unlawful and secretive government program that discriminates against people based on their

18 religion or national origin and prevents them from naturalizing and becoming lawful permanent

19 residents. Simply adjudicating named Plaintiffs’ applications does not provide redress for

20 Plaintiffs’ claims.

21

II. BACKGROUND

22 A. The CARRP Policy.

23

Defendant U.S. Citizenship and Immigration Services (“USCIS”) created CARRP in

24 April 2008, as an agency-wide policy to identify, process, and adjudicate certain immigration

25 applications that allegedly raise “national security concerns.” Second Amended Complaint

26 (“SAC”), Dkt. 47 ¶ 55; Declaration of Jennie Pasquarella, Dkt. 27 (“Pasquarella Class Cert

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1 Decl.”), Ex. A (4/11/2008 policy memorandum introducing CARRP). The criteria used to

2 determine when an individual should be labeled a “national security concern” are vague and

3 overbroad, and often turn on discriminatory factors such as religion and national origin. SAC ¶¶

4 62-76. The criteria also include lawful activities such as traveling to Muslim-majority countries

5 and donating to Muslim charities. These criteria are untethered from the specific statutory

6 criteria Congress has authorized to determine when a person is eligible for immigration benefits.

7 Id.; see also id. ¶¶ 35-51.

8

Even if an individual is statutorily eligible for the benefits sought, USCIS officers are

9 instructed that they cannot approve the application so long as the application remains in CARRP.

10 SAC ¶ 77; see also Pasquarella Class Cert Decl., Ex. A at 6-7 (“Officers are not authorized to

11 approve applications” subject to CARRP); id., Ex. B (7/26/2011 policy memorandum revising

12 CARRP procedures) at 2 (an officer “is not authorized to approve applications or petitions”

13 subject to CARRP). Officers are also instructed to find any reason to deny the application

14 outright so that “time and resources” are not spent determining whether there was any basis for

15 the national security concern in the first place. Id., Ex. A at 5; see also id., Ex. C (1/2012

16 CARRP training presentation) at 52-59, 68 (providing “tips” on how to find an applicant

17 ineligible); SAC ¶ 84. CARRP essentially creates a presumption of guilt that becomes difficult,

18 if not impossible, to rebut. Individuals subject to CARRP are never given notice of their

19 applications’ discriminatory treatment under the program, or an opportunity to challenge

20 Defendants’ decision to subject their application to extra-statutory criteria. As a result,

21 Defendants use CARRP to delay and deny the immigration applications of thousands of

22 individuals who are otherwise eligible for these benefits and pose no threat to the United States,

23 simply because they are Muslim or from a Muslim-majority country.

24 B. Defendant Trump’s Promise for More “Extreme” Vetting.

25

As a candidate for president, Defendant Trump campaigned on promises to impose a

26 “total and complete shutdown” on Muslims coming to the United States. He and his associates

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1 consistently expressed disdain for Muslims. SAC, ¶¶ 98-101 (citation omitted). Both during the

2 campaign and after his election and inauguration, Defendant Trump expressed his intention to

3 establish a program of “extreme vetting” to achieve such a ban. Id. ¶¶ 102-05 (citation omitted).

4

As president, Defendant Trump began to implement his stated goal of keeping Muslims

5 out of the United States and otherwise subjecting them to “extreme vetting” when he signed

6 Executive Order 13769 on January 27, 2017. 82 Fed. Reg. 8977, 8978-79 § 4 (“First EO”).

7 After a court enjoined portions of the First EO, Defendant Trump lashed out at the “so-called

8 judge” who granted the temporary restraining order, calling the court’s opinion “ridiculous” and 9 predicting that it would be overturned.1 The Ninth Circuit unanimously upheld the temporary

10 restraining order. Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017). After the Ninth

11 Circuit’s decision, Defendant Trump promised to “go[] further” with a new executive action, and

12 assured his supporters that “[e]xtreme vetting will be put in place,” and that “it already is in place

13 in many places,”—presumably in the form of CARRP or a related successor program. SAC

14 ¶ 115 (citation omitted). Thereafter, Stephen Miller, Defendant Trump’s Senior Advisor,

15 confirmed that the new executive order would have “the same basic policy outcome for the

16 country.” SAC ¶ 117 (citation omitted).

17

Defendant Trump replaced the First EO with Executive Order 13780. 82 Fed. Reg.

18 13209, 13215 §§ 4-5 (“Second EO”). The Second EO mirrors the First EO’s efforts to

19 implement an anti-Muslim agenda through an “extreme vetting” program. Defendant Trump’s

20 press secretary confirmed that “the goal” for the Second EO “is obviously to maintain the way

21 we did it the first time.” SAC ¶ 118. The District of Hawaii enjoined portions of the Second

22 EO. Hawai’i v. Trump, No. 17-00050 DKW-KSC, 2017 WL 1011673, at *1 (D. Haw. Mar. 15,

23 2017), appeal docketed, No. 17-15589 (9th Cir.). In issuing its injunction, the court explained

24 that several comments by Defendant Trump and his associates showed why the Second EO was

25

26 1 Donald Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 05:12 AM),
https://twitter.com/realDonaldTrump/status/827867311054974976.
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1 just as unlawful as the first. In addition to Mr. Miller’s statements, the court highlighted

2 Rudolph Giuliani’s explanation: “When [Defendant Trump] first announced it, he said, ‘Muslim

3 ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it

4 legally.’” Id. at *5. The court also pointed out that Defendant Trump himself explained that his

5 “Muslim ban” had simply been rebranded as “extreme vetting,” because “[p]eople were so upset

6 when I used the word Muslim.” Id. at *13. Based on this “significant and unrebutted evidence

7 of religious animus driving the promulgation of the [Second EO] and its related predecessor,” the

8 court concluded that “a reasonable, objective observer . . . would conclude that the [Second EO]

9 was issued with a purpose to disfavor a particular religion.” Id. at *11-13.

10

In response to this injunction, Defendant Trump’s administration has continued to assail

11 the judiciary. Most recently, the Attorney General expressed amazement “that a judge sitting on

12 an island in the Pacific can issue an order that stops the president of the United States from what 13 appears to be clearly his statutory and constitutional power.”2

14 C. 15

CARRP Has Delayed the Named Plaintiffs’ Applications. All named Plaintiffs are foreign nationals from Muslim-majority countries, and

16 have applied for naturalization or adjustment of status. Despite meeting the statutory

17 criteria to obtain the benefits they are seeking, Plaintiffs’ applications have been

18 subjected to CARRP. Seemingly prompted by the filing of this lawsuit, Defendants have

19 moved quickly to adjudicate their applications in an attempt to avoid exposing CARRP

20 and any other “extreme vetting” program to judicial scrutiny.

21

Plaintiffs Wagafe, Jihad, and Manzoor are all foreign nationals who applied for

22 naturalization. They meet all the statutory requirements for citizenship. Plaintiff Wagafe

23 waited more than three and a half years for a decision; but soon after Plaintiffs filed their

24 original motion for class certification, USCIS scheduled an interview for him, and

25

26 2 Jeff Sessions dismisses Hawaii as ‘an island in the Pacific’, New York Times (Apr. 20, 2017), available at
https://www.nytimes.com/2017/04/20/us/politics/jeff-sessions-judge-hawaii-pacific-island.html.

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1 quickly approved his application, in a transparent effort to transfer this case to the District

2 of North Dakota. Mr. Manzoor waited more than a year, and Mr. Jihad more than three

3 and a half years, for decisions on their naturalization applications. But soon after being

4 added as named Plaintiffs, Defendant USCIS scheduled interviews for both. Mr.

5 Manzoor was interviewed on May 1, and his application was approved on the spot.

6 Declaration of Jennifer Pasquarella in Support of Plaintiffs’ Opposition to Defendants’

7 Motion to Dismiss (“Pasquarella MTD Decl.) ¶ 2. Mr. Jihad received an interview

8 notification on April 13 and was interviewed on April 25. Id. ¶ 3.

9

Plaintiffs Ostadhassan and Bengezi are foreign nationals who meet all statutory

10 requirements to adjust their status to that of a lawful permanent resident (“LPR”). Before

11 this case was filed, Mr. Ostadhassan had waited over three years for a decision on his

12 application. On April 5, 2017, after this case was filed, USCIS issued a Notice of Intent

13 to Deny his I-485 Application to Adjust Status. Supplemental Pasquarella Declaration,

14 Dkt. 53 ¶ 3. Ms. Bengezi waited over two years for a decision, but soon after being

15 added as a named Plaintiff, she was notified that she had been scheduled for an interview

16 on May 4, 2017. Pasquarella MTD Decl. ¶ 4. Both cases remain pending.

17

III. LEGAL STANDARD

18

Rule 12(b)(1) governs dismissals for lack of subject matter jurisdiction. Cooper v.

19 Providence Health Care Found., 17-5173 RJB, 2017 WL 1354817, at *1 (W.D. Wash. Apr. 13,

20 2017). A Rule 12(b)(1) jurisdictional attack may be facial or factual. White v. Lee, 227 F.3d

21 1214, 1242 (9th Cir. 2000). In a facial attack, the sufficiency of the complaint itself has been

22 challenged, and in such a case, a plaintiff is entitled to the same safeguards that apply to a Rule

23 12(b)(6) motion: the court will accept the plaintiff’s allegations as true, and draw reasonable

24 inferences in the plaintiff’s favor. Id. By contrast, a factual attack challenges the facts upon

25 which subject matter jurisdiction depends. In such a case, the court may look beyond the

26 complaint without converting the motion into one for summary judgment. Wolfe v. Strankman,

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1 392 F.3d 358, 362 (9th Cir. 2004).

2

Rule 12(b)(6) governs dismissals for failure to state a claim upon which relief can be

3 granted. In considering such a motion, the Court “accepts all factual allegations in the complaint

4 as true and construes them in the light most favorable to the non-moving party.” Premera Blue

5 Cross v. Canon Sols. Am., Inc., C16-0411-JCC, 2017 WL 714216, at *1 (W.D. Wash. Feb. 23,

6 2017) (citation omitted).

7 8 A. 9

IV. ARGUMENT This Case Presents a Controversy Over Which the Court Has Jurisdiction. Defendants argue that Plaintiffs lack standing to bring any of their claims because

10 “Plaintiffs lack any interest in adjudication of their applications.” Motion to Dismiss (“MTD”),

11 Dkt. 56 at 10. Defendants predicate this argument on their misguided assertion that Plaintiffs’

12 claims are “abstract disputes,” insufficient to establish jurisdiction. Id. This argument

13 misconstrues Plaintiffs’ claims.

14

First, Plaintiffs obviously have a personal interest in the adjudication of their applications

15 and have never suggested otherwise. Each Plaintiff has been waiting years for their immigration

16 benefits, as their applications languish in an unlawful program whose existence the government

17 still refuses to acknowledge. But this lawsuit is not about forcing a certain adjudication (i.e.,

18 approval or denial) on their applications; rather, as the Second Amended Complaint makes clear,

19 this lawsuit seeks an order that Defendants “adjudicate Plaintiffs’ and proposed class members’

20 petitions, applications, or requests based solely on the statutory criteria.” SAC at 51 (emphasis

21 added). Plaintiffs also are asking this Court, among other things, to declare that CARRP or any

22 successor policy is unlawful, and enjoin the government from applying such policies to the 23 adjudication of their applications.3 This declaratory and injunctive relief would benefit Plaintiffs

24 and all class members by ensuring their applications are adjudicated in accordance with the

25

26 3 Alternatively, Plaintiffs request an order compelling USCIS to provide applicants notice that the government has
subjected their application to CARRP and an opportunity to challenge that decision.

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1 governing statute and regulations, instead of an illegal program.

2

Second, simply adjudicating the named Plaintiffs’ applications does not resolve the core

3 issue in this case: whether CARRP and any successor “extreme vetting” program is lawful. To

4 the contrary, that Defendants moved so quickly on the named Plaintiffs’ applications illustrates

5 the arbitrariness of the decision to apply CARRP in the first place. Defendants placed Plaintiffs’

6 applications on hold for years by subjecting them to CARRP, only to then turn around and

7 quickly adjudicate them after this lawsuit was filed. For example, Mr. Wagafe’s naturalization

8 application has now been approved, SAC ¶ 24, while Mr. Ostadhassan recently received notice

9 that the government intends to deny his application for adjustment of status, MTD at 8-9. And

10 now all three of the recently-added Plaintiffs—Ms. Bengezi, Mr. Jihad, and Mr. Manzoor—have

11 either had their applications approved, or been scheduled for interviews within the past two

12 weeks. Pasquarella MTD Decl. ¶¶ 2-4. The sudden action on Plaintiffs’ long lingering 13 applications is presumably part of an effort to avoid a ruling on the merits of CARRP.4 As

14 Plaintiffs explained in their motion for class certification, this is the same approach Defendants

15 have employed in other cases challenging CARRP. Dkt. 49 at 19-20.

16 B. Plaintiffs Have Standing.

17

1. The Scialabba Memo regarding the first (withdrawn) Executive Order does

not moot Plaintiffs’ current claims. (Claims 1, 2, 3, 5, 6) 18

Plaintiffs have suffered an injury-in-fact with respect to their first, second, third, fifth,

19

and sixth claims to the extent that they challenge the suspension of adjudication of adjustment

20

and naturalization applications. Defendants’ contrary assertion, that all such applications were

21

not previously suspended under the First EO, is inapposite with respect to the Second EO, for

22

which they make no such parallel assertion. MTD at 12 (stating only that USCIS has not

23

24 4 Defendants’ recent actions also show why the Court should grant the motion for class certification, and deny this
motion to dismiss. See Ellsworth v. U.S. Bank, N.A., 30 F. Supp. 3d 886, 909 (N.D. Cal. 2014) (defendant’s
25 “calculated strategy that includes picking off named Plaintiffs” did not moot class action claims); Ramirez v. Trans
Union, LLC, No. 3:12-CV-00632 (JSC), 2013 WL 3752591, at *2 (N.D. Cal. July 17, 2013) (class certification
26 appropriate where plaintiff’s claims would “evade review” if the defendant were able to “pick off” each subsequent
lead plaintiff).

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1 suspended processing or adjudication of Plaintiffs’ benefit applications, not that USCIS has not

2 suspended processing or adjudication of some or all applications from putative members of the

3 Muslim Ban class).

4

Defendants’ argument is based entirely on a single memorandum issued by the former

5 acting director of USCIS, Lori Scialabba (“the Scialabba Memo”) (MTD Ex. A). The Scialabba

6 Memo (issued a day after Plaintiffs filed their First Amended Complaint adding allegations about

7 the First EO’s impact on adjudication of benefits) rescinded prior directives stating that the First

8 EO applied to pending applications, changing course to instruct that Section 3(c) of the First EO

9 would not affect the applications of those already in the United States. Since the Scialabba 10 Memo, that provision has been enjoined.5 The First EO has been replaced by the Second EO, 11 and the corresponding Section 2(c) of the Second EO was also enjoined.6 Given these

12 injunctions, and the Scialabba Memo, Plaintiffs did not seek to certify the Muslim Ban Class “at

13 this time,” but expressly “reserve[d] the right to seek certification of the additional class if

14 circumstances change again.” Plaintiffs’ Amended Motion for Class Certification, Dkt. 49 at 3

15 n.1. At no point have Plaintiffs asserted that these claims are moot, or that the Scialabba Memo 16 resolved these claims.7 The Scialabba Memo only applies to the since-rescinded First EO; it 17 does not apply to CARRP, any successor “extreme vetting” program, or even the Second EO.8

18

The Ninth Circuit’s decision in White v. Lee, 227 F.3d 1214 (9th Cir. 2000), which

19 Defendants cite for their argument that Plaintiffs lack standing, is instructive. In that case, the

20 government argued that a policy memorandum issued during the litigation, which proscribed the

21

22 5 Washington v. Trump, No. 2:17-cv-00141-JLR, ECF 52, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017), stay denied
847 F.3d 1151 (9th Cir. Feb. 9, 2017).
23 6 Hawai’i v. Trump, No. 17-00050 DKW-KSC, ECF 219, 2017 WL 1011673, at *1 (D. Haw. Mar. 15, 2017) (TRO),
and ECF 270, 2017 WL 1167383, at *1 (D. Haw. Mar. 29, 2017) (preliminary injunction).
24 7 The statement Defendants quote—and mischaracterize—from Plaintiffs’ Notice of Related Cases simply
acknowledges the fact that if Defendants adhere to the positions in the Scialabba Memo, then the claims related to
25 Section 3(c) of the First EO “may become moot.” Dkt. 22. But Plaintiffs filed that document on February 7, 2017,
well before the President issued his Second EO on March 6, 2017, which rescinded the first.
26 8 Notably, the Second EO, on its face, purports to apply to “[a]ll Immigration Programs,” see 82 FR 13209, 13215,
with no exceptions provided for adjudication of adjustment of status or naturalization applications.

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1 conduct at issue in the complaint, meant that the plaintiff lacked standing. Id. at 1243. The

2 Ninth Circuit disagreed, explaining that “[s]tanding is examined at ‘the commencement of the

3 litigation.’” Id. (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167,

4 174 (2000)). The memorandum at issue in White had only been in place for a month when that

5 lawsuit was commenced, and it was temporary. Id. The Ninth Circuit therefore concluded that

6 the plaintiff had standing, notwithstanding the government’s policy directive. Instead, the

7 question was whether the policy rendered the claims moot. Id. Similarly, here the Scialabba

8 Memo was issued after the litigation commenced (and only two months before the Second

9 Amended Complaint), and has already been rendered obsolete by the Second EO. As in White,

10 Plaintiffs have standing, and the only question is whether these changed circumstances render

11 Plaintiffs’ claims moot.

12

With respect to mootness, “[i]t is well settled that ‘a defendant’s voluntary cessation of a

13 challenged practice does not deprive a federal court of its power to determine the legality of the

14 practice.’” Friends of the Earth, 528 U.S. at 189 (citing City of Mesquite v. Aladdin’s Castle,

15 Inc., 455 U.S. 283, 289 (1982)). Otherwise the defendant would be “‘free to return to his old

16 ways.’” Id. Consequently, the standard for proving that a case has been mooted by a

17 defendant’s voluntary conduct is “stringent”: “if subsequent events made it absolutely clear that

18 the allegedly wrongful behavior could not reasonably be expected to recur,” then a case “might

19 become moot.” Id. (quoting U. S. v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203

20 (1968)) (emphasis added). The party asserting mootness has the “heavy burden of persuading”

21 the court that the challenged conduct cannot reasonably be expected to start up again. Id. But a

22 policy that, “by its terms was not permanent,” will not moot an otherwise valid claim. Id. at 190.

23 Notably, in White, the Ninth Circuit reasoned that the policy directive in that case did moot the

24 plaintiff’s claims because it “represent[ed] a permanent change . . . not a temporary policy,” and

25 because “since its implementation the agency’s officials have not engaged in conduct similar to

26 that challenged by the plaintiffs.” 227 F.3d at 1243.

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1

The Scialabba Memo is nothing like the “permanent change” in White. It is a non-

2 binding, impermanent, and inapplicable policy statement from a former acting director.

3 Although Defendants highlight that Ms. Scialabba “is clearly in the chain of command,” MTD at

4 11 n.7, what they fail to acknowledge is that the Scialabba Memo was “in direct contradiction to 5 the earlier DHS guidance,”9 and its issuance made her “number one on the list of eight Obama

6 holdover bureaucrats identified by Breitbart News that President Trump ‘can fire or remove at 7 Homeland Security.’”10 In fact, shortly after issuing her memorandum, Ms. Scialabba resigned

8 and has been replaced by James McCament. Defendant Trump, moreover, is unquestionably the

9 key principal in the chain of command. In short, the Scialabba Memo provides no reason to

10 dismiss any of Plaintiffs’ claims.

11

Even if the Scialabba Memo were relevant, Plaintiffs have alleged sufficient facts to

12 establish an injury-in-fact. In Claims 1 and 2, Plaintiffs have alleged that Defendants “will

13 interpret the Second EO to authorize the suspension” of immigration applications involving

14 Plaintiffs and the Muslim Ban Class, SAC ¶¶ 251, 257 (emphasis added), and that such an

15 interpretation will be an abuse of discretion and violate federal statutes (the Administrative

16 Procedure Act (“APA”) and the Immigration and Nationality Act (“INA”)) and the Constitution,

17 id. ¶¶ 253, 259. Claim 3, which is based on the Establishment Clause of the First Amendment,

18 has nothing to do with the Scialabba Memo; that claim alleges that the “Second EO is intended

19 to target a specific religious faith—Islam,” because Defendants are “not pursuing a course of

20 neutrality with regard to different religious faiths.” SAC ¶ 261. In light of Defendant Trump’s

21 continued promises to target Muslims, and his disdain for the rulings blocking his orders, these

22 allegations are not unreasonable or frivolous.

23

24 9 DHS walks back Immigration directives as Muslim Ban chaos continues, THE INTERCEPT (Feb. 3, 2017), available
at https://theintercept.com/2017/02/03/dhs-walks-back-immigration-directives-as-muslim-ban-chaos-continues/ (last
25 accessed: Apr. 22, 2017).
10 Acting director of USCIS Lori Scialabba resigns at Homeland Security, BREITBART (Mar. 8, 2017), available at
26 http://www.breitbart.com/big-government/2017/03/08/acting-director-uscis-lori-scialabba-resigns-homeland-
security/ (last visited: Apr. 22, 2017).

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1

Claims 5 and 6 are based on the Due Process Clause. Claim 5 alleges that Defendants’

2 “unauthorized and indefinite suspension of the adjudication of Plaintiffs’ and the Proposed

3 Classes’ applications . . . violates their right to substantive due process” because “Plaintiffs

4 cannot be denied immigration benefits for which they are statutorily eligible, and to which they

5 are entitled by law.” SAC ¶ 266. And Claim 6 alleges that Defendants’ indefinite suspension of

6 applications, under both CARRP and the Second EO, discriminates on the basis of “country of

7 origin,” and is “substantially motived by animus toward—and has a disparate effect on—

8 Muslims” in violation of the Equal Protection Clause. Id. ¶¶ 268-69. Even assuming, for the

9 sake of argument, that the Scialabba Memo cabined this interpretation of the Second EO,

10 Plaintiffs have alleged more than sufficient facts to establish that Defendants are using and will

11 use CARRP to delay and deny immigration applications indefinitely and unlawfully, even when

12 the applicant meets all the statutory criteria, based on religious and national origin 13 discrimination. That is more than enough to establish a violation of substantive due process11 14 and equal protection.12

15

2. Plaintiffs have standing to assert a violation of the Uniform Rule of

Naturalization Clause. (Claim 10) 16

Under the Uniform Rule of Naturalization Clause, the Constitution expressly assigns to

17

Congress, not the Executive branch, the authority to establish the rules of naturalization. See

18

U.S. Const. art. I, § 8, cl. 4. Congress set forth those rules in the INA. See generally 8 U.S.C.

19

§§ 1421-1458; 8 C.F.R. §§ 316.1-316.14. By imposing additional, non-statutory, substantive

20

criteria that Plaintiffs must meet prior to Defendants granting their naturalization applications,

21

CARRP violates the Naturalization Clause. According to Defendants, Plaintiffs have no

22

23 11 See Tutun v. U.S., 270 U.S. 568, 578 (1926) (“The opportunity having been conferred by the Naturalization Act,
there is a statutory right in the alien to submit his petition and evidence to a court, to have that tribunal pass upon
24 them, and, if the requisite facts are established, to receive the certificate.”); see also Rojas v. Johnson, C16-
1024RSM, 2017 WL 1153856, at *2 (W.D. Wash. Mar. 28, 2017) (denying motion to dismiss because “[i]f
25 Plaintiffs’ allegations are true, they have lost the statutory right to apply for asylum and must now depend on the
discretion of an adjudicator to apply”).
26 12 See e.g., Francis v. I.N.S., 532 F.2d 268, 273 (2d Cir. 1976) (“Fundamental fairness dictates that permanent
resident aliens who are in like circumstances, but for irrelevant and fortuitous factors, be treated in a like manner.”).

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1 standing to make this claim because the Naturalization Clause confers no private right of action,

2 and because the only injured party would be Congress, not Plaintiffs. These arguments find no

3 support in law or logic.

4

First, several courts have expressly considered private litigants’ claims premised on an

5 underlying violation of the Naturalization Clause. See, e.g., Nemetz v. I.N.S., 647 F.2d 432, 435

6 (4th Cir. 1981) (discussing a private litigant’s challenge of a state law under the Uniform Rule of

7 Naturalization, and reasoning that such policies violate the clause “when the resulting

8 inconsistencies undermine a uniform rule of naturalization”); Petition of Lee Wee, 143 F. Supp.

9 736, 738 (S.D. Cal. 1956) (discussing private litigant’s claim that a federal statute violated the 10 Uniform Rule of Naturalization).13

11

Second, none of the authority on which Defendants rely supports their argument.

12 Defendants cite Flores v. Baldwin Park, No. CV 14-9290-MWF, 2015 WL 756877, at *1 (C.D.

13 Cal. 2015), but that case concerned a remand to state court, and the issue was whether federal

14 law completely preempted the plaintiff’s state law claims. Id. at *3-4. Defendants’ reliance on

15 Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905 (9th Cir. 2004), is equally unavailing. Cazarez-

16 Gutierrez simply discussed the need for uniformity without regard to the nuances of state law

17 (specifically in the sentencing context). Nowhere in that decision did the court even imply that

18 individuals cannot sue if the Executive Branch’s actions violate the Naturalization Clause.

19

Third, Defendants’ assertion that the only party injured by CARRP’s violation of the

20 Naturalization Clause would be Congress, not Plaintiffs, is erroneous. Plaintiffs’ injury is

21 cognizable under the framework outlined in Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61

22 (1992) (invasion of a protected interest, causal connection between Defendants’ conduct and

23 Plaintiffs’ injury, and redressability). By its terms, CARRP adds non-statutory and substantive

24 requirements before certain applicants may obtain citizenship, directly injuring those applicants

25
13 See also Graham v. Richardson, 403 U.S. 365, 382 (1971) (noting that a federal law granting wide discretion to
26 the States “to adopt divergent laws on the subject of citizenship requirements . . . would appear to contravene [the]
explicit constitutional requirement of uniformity” arising out of the Uniform Naturalization Clause).

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1 who would otherwise have a statutory right to naturalization under the uniform rule Congress has 2 established pursuant to the Naturalization Clause.14 Contrary to Defendants’ assertions, using an

3 illegal and ultra vires program to delay and deny immigration applications, in violation of the 4 Naturalization Clause, necessarily injures the people whose applications are being affected.15

5 C. 6 7

Plaintiffs Have Alleged Sufficient Facts Concerning Claims of Additional “Extreme Vetting” to Give Rise to a Claim for Relief in the Event CARRP Is Supplanted by New Procedures.
In Section IV.C of the Motion, Defendants seek dismissal of claims concerning “extreme

8 vetting” procedures that supplement or supplant CARRP that have been or will be established

9 pursuant to the Second EO or the President’s Memorandum of March 6, 2017, arguing that the

10 Complaint fails to state sufficient facts to support any such claims. Defendants misconstrue the

11 Complaint’s allegations about such additional “extreme vetting” procedures. Plaintiffs included

12 allegations about additional or future “extreme vetting” measures to avoid an argument that the

13 allegations about CARRP are moot because CARRP has been replaced or supplemented by new

14 “extreme vetting” procedures under the current Administration. Plaintiffs have sufficiently

15 alleged that the President’s proclamations demonstrate an intent to impose vetting procedures

16 even more “extreme” than CARRP. Thus, even more Muslims or people from majority-Muslim

17 countries will have their applications for immigration benefits unfairly singled out and blocked

18 indefinitely.

19

20

21
14 See Marcantonio v. U.S., 185 F.2d 934, 935-37 (4th Cir. 1950) (in light of the Naturalization Clause, “[i]t is not
22 permissible” for a district court “to add to the [naturalization] statute a condition which it does not contain,” or “a
test which Congress has not seen fit to impose”); see also Ex parte Fillibertie, 62 F. Supp. 744, 747 (E.D.S.C. 1945)
23 (“[W]hen Congress prescribes the requirements for naturalization, it is beyond the power of any court or the
authority of any administrative agency to extend or to constrict the requirements so established.”) (emphasis added).
24 15 Even if Congress is injured, that does not mean others cannot be injured, too. The Naturalization Clause
empowers Congress to prescribe a uniform rule of naturalization, but as Justice John Marshall observed long ago,
25 “the exercise of this power exhausts it, so far as respects the individual.” Osborn v. Bank of U.S., 22 U.S. 738, 827
(1824); see also Schneider v. Rusk, 377 U.S. 163, 166 (1964) (quoting Osborn). In other words, once Congress
26 “establishes such uniform rule, those who come within its provisions are entitled to the benefit thereof as a matter of
right, not as a matter of grace . . . .” Schwab v. Coleman, 145 F.2d 672, 676 (4th Cir. 1944).

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1 D. Plaintiffs Have Alleged Sufficient Facts to Establish that CARRP Violates Plaintiffs’ Procedural Due Process Rights. (Claim 4)16
2 Subjecting Plaintiffs’ and class members’ applications to CARRP and other “extreme
3 vetting” programs—without providing notice or an opportunity to challenge these arbitrary
4 decisions—violates the procedural due process component of the Fifth Amendment. Procedural
5 due process claims “‘hinge[] on proof of two elements: (1) a protect[ed] liberty or property
6 interest . . . and (2) a denial of adequate procedural protections.’” Pinnacle Armor, Inc. v. U.S.,
7 648 F.3d 708, 716 (9th Cir. 2011) (quoting Foss v. Nat’l Marine Fisheries Serv., 161 F.3d 584,
8 588 (9th Cir. 1998)) (some alteration in original). Given CARRP’s clandestine nature—
9 particularly the complete lack of notice when it applies to an applicant—the second element is
10 not at issue. The question is whether Plaintiffs have asserted a protected liberty or property
11 interest in having their naturalization and adjustment of status applications adjudicated lawfully.
12 With respect to naturalization, courts have recognized that applicants have a property
13 interest in seeing their applications adjudicated lawfully. “To have a property interest in a
14 benefit, a person clearly must have more than an abstract need or desire for it. He must have
15 more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement
16 to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). “Property interests . . .
17 are created and their dimensions are defined by existing rules or understandings that stem from
18 an independent source . . . that support claims of entitlement to those benefits.” Id. at 577. The
19 Ninth Circuit has squarely held that an applicant for naturalization has a protected interest in
20 being able to apply for United States citizenship. Brown v. Holder, 763 F.3d 1141, 1147 (9th
21 Cir. 2014); see also Ching v. Mayorkas, 725 F.3d 1149, 1155 (9th Cir. 2013) (finding a
22 constitutionally protected interest in nondiscretionary immigration applications).
23

24

25
16 Defendants have not sought dismissal of Plaintiffs’ claims based on violations of substantive due process (Claim
26 5) or the Equal Protection Clause (Claim 6), except for Defendants’ arguments about standing or lack of a “case or
controversy,” which are addressed above.

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1

Here, USCIS does not have discretion to deny naturalization to a statutorily eligible

2 applicant; rather, “USCIS shall grant the application if the applicant has complied with all 3 requirements for naturalization.” 8 C.F.R. § 335.3(a) (emphasis added).17 In fact, the U.S.

4 Supreme Court, nearly one hundred years ago, explained:

5

The opportunity to become a citizen of the United States is said to

be merely a privilege, and not a right. It is true that the

6

Constitution does not confer upon aliens the right to naturalization.

But it authorizes Congress to establish a uniform rule therefor.

7

Article 1, Sec. 8, cl. 4. The opportunity having been conferred by

the Naturalization Act, there is a statutory right in the alien to

8

submit his petition and evidence to a court, to have that tribunal

pass upon them, and, if the requisite facts are established, to

9

receive the certificate.

10 Tutun v. U.S., 270 U.S. 568, 578 (1926) (emphases added).18

11

Those seeking adjustment of status also have a protected interest in having USCIS

12 adjudicate their applications lawfully. Although whether to permit an applicant to adjust status is

13 discretionary, the government “does not have pure or unfettered discretion” because “the

14 decision of whether to adjust status is guided by legal standards.” Abbasfar v. Chertoff, No. 15 C07-1155 PVT, 2007 WL 2409538, at *4 (N.D. Cal. Aug. 21, 2007).19 Even when an

16 application is discretionary, an agency is required to follow articulated legal principles. Bonilla

17 v. Lynch, 840 F.3d 575, 584 (9th Cir. 2016). In fact, the “first step in adjudicating a petition for

18

19 17 Defendants’ citation to Fedorenko v. U.S., 449 U.S. 490 (1981), omitted a critical portion of the quotation from
United States v. Ginsberg. The complete quote reads: “No alien has the slightest right to naturalization unless all
20 statutory requirements are complied with.” Id. at 506 (quoting Ginsberg, 243 U.S. 472, 474-75 (1917)) (emphasis
added).
21 18 See also I.N.S. v. Pangilinan, 486 U.S. 875, 884 (1988) (noting that there is no discretion to deny naturalization if
an applicant is otherwise qualified); Schwab, 145 F.2d at 676–77 (4th Cir. 1944) (“Congress is given power by the
22 Constitution to establish an uniform Rule of Naturalization. . . . And when it establishes such uniform rule, those
who come within its provisions are entitled to the benefit thereof as a matter of right, not as a matter of grace from
23 the naturalization court.”) (emphasis added) (internal citation and quotation marks omitted)); United States v.
Shanahan, 232 F. 169, 171 (E.D. Pa. 1916) (“It is, of course, true that, outside of the acts of Congress, admission to
24 citizenship, like the admission of aliens to our shores, is not a right, but a privilege. . . . When an applicant has met
all the requirements of the law, the privilege accorded him ripens into a right. It is his legal right to submit his
25 petition and proofs to the court as the constituted tribunal to pass upon them. If certain facts appear to the
satisfaction of the court, he is entitled to citizenship.”) (emphases added).
26 19 See also Yu v. Brown, 36 F. Supp. 2d 922, 931 (D.N.M. 1999) (noting that the government “has a non-
discretionary, mandatory duty to act on Plaintiffs’ [adjustment of status] applications”).

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1 adjustment of status is the nondiscretionary determination of statutory eligibility . . . .”

2 Hernandez v. Ashcroft, 345 F.3d 824, 845 (9th Cir. 2003). In making these determinations, the 3 government “has no discretion to make a decision that is contrary to law.” Id. at 846.20

4

Taken together, those seeking naturalization and adjustment of status have a protected

5 interest in having their applications adjudicated in accordance with the law. The Due Process

6 Clause prohibits Defendants from infringing on these interests unless they first provide an

7 applicant with notice they have subjected the applicant to CARRP and afford the applicant an

8 opportunity to challenge it. See Mester Mfg. Co. v. I.N.S., 879 F.2d 561, 569 (9th Cir. 1989)

9 (noting “that a party is entitled to adequate notice and a fair hearing before a final deprivation of

10 a property interest”). Here, it is undisputed that because of CARRP’s secretive nature, an

11 applicant has no notice about the applicability of CARRP and no opportunity to challenge the 12 classification. This lack of notice also violates federal law.21

13

Rather than address the merits of Plaintiffs’ procedural due process claim, Defendants

14 argue that applicants do not have a “constitutionally protected liberty or property interest in the

15 pace of adjudication of their benefit applications.” MTD at 15. That is a strawman argument.

16 This case is not about modest delays in applications. It is about an extra-statutory policy

17 unlawfully blocking the favorable adjudication of applications of persons statutorily entitled to

18 the immigration benefits for which they applied based on discriminatory and illegal criteria. It is

19 about unlawfully labeling individuals “national security threats” without telling them, and

20 without giving them an opportunity to respond. It is about discriminating against people on the

21 basis of religion and national origin. Plaintiffs have alleged sufficient facts to establish that they

22 have a protected interest in seeing their applications adjudicated in accordance with the law.

23
20 See also Mejia v. Ashcroft, 298 F.3d 873, 878 (9th Cir.2002) (“The BIA does not have the discretion to misapply
24 the law.”); Iturribarria v. I.N.S., 321 F.3d 889, 895 (9th Cir. 2003) (same).
21 Moreover, 8 C.F.R. § 103.2(b)(16)(i), titled “Inspection of Evidence,” provides that if an immigration benefit
25 decision:
[W]ill be adverse to the applicant or petitioner and is based on derogatory information considered by the Service and
26 of which the applicant or petitioner is unaware, he/she shall be advised of this fact and offered an opportunity to
rebut the information and present information in his/her own behalf before the decision is rendered.

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1 E. Plaintiffs Have Alleged a Plausible Claim Under the INA. (Claim 7)

2

The INA sets forth the exclusive statutory and regulatory criteria governing applications

3 for naturalization and adjustment of status. See 8 U.S.C. § 1427 and 8 C.F.R. §§ 316.2 and 335.3

4 (criteria for naturalization); 8 U.S.C. §§ 1255 and 1159, and 8 C.F.R. §§ 245.1 and 209.1

5 (criteria for adjustment of status). Federal regulations provide that if an applicant has complied

6 with all requirements for naturalization, USCIS “shall grant the application.” 8 C.F.R.

7 § 335.3(a) (emphasis added). But under CARRP, even when applicants meet all the criteria,

8 USCIS will delay or deny their applications based on criteria unrelated to the statute. By

9 imposing additional requirements and unauthorized impediments for naturalization and

10 adjustment of status, CARRP violates the INA.

11

Nevertheless, according to Defendants, Plaintiffs’ Seventh Claim should be dismissed

12 because the INA sections establishing criteria to naturalize and adjust status do not “create[] a

13 private right of action.” MTD at 17. This argument has no merit and is based on a

14 misapplication of law. Because Plaintiffs challenge agency action that violates statutory

15 provisions, Plaintiffs’ cause of action to enforce the INA is established by Section 10(a) of the

16 APA. The analysis in which Defendants engage to determine whether a private right of action

17 exists in the INA itself is inapposite.

18

Typically, whether a private cause of action should be implied is governed by a four-

19 factor analysis outlined in Cort v. Ash, 422 U.S. 66 (1975). Relying on the Cort test, Defendants

20 argue that Plaintiffs’ INA claim necessarily fails. Plaintiffs, however, “do not seek damages for

21 specific acts of discrimination against themselves,” but rather ask only that the Court review the

22 legality of CARRP against requirements dictated by Congress in the INA. “Review of this sort

23 is an ordinary element of administrative enforcement schemes, absent clear indication to the

24 contrary.” Legal Aid Soc’y of Alameda Cty. v. Brennan, 608 F.2d 1319, 1332 (9th Cir. 1979).

25

Section 10(a) of the APA establishes a clear cause of action for plaintiffs who challenge

26 administrative action that directly violates a federal statute. That provision states that any

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1 “person . . . adversely affected or aggrieved by agency action within the meaning of a relevant

2 statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. Because that provision creates a

3 cause of action, and therefore grants statutory standing to plaintiffs challenging administrative

4 action just as if the substantive statute itself had conferred the right, the Cort analysis does not

5 apply. See Cetacean Cmty. v. Bush, 386 F.3d 1169, 1176–77 (9th Cir. 2004) (“[T]he end result

6 is the same whether the underlying statute grants standing directly or whether the APA provides

7 the gloss that grants standing. In both cases, the plaintiff can bring suit to challenge the

8 administrative action in question. In the first case, the substantive statute grants statutory

9 standing directly to the plaintiff. In the second case, the substantive statute is enforced through 10 Section 10(a) of the APA.”).22

11

Whether Section 10(a) of the APA applies to a given suit depends on whether the

12 plaintiff is “arguably within the zone of interests to be protected or regulated by the statute or

13 constitutional guarantee in question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397

14 U.S. 150, 153 (1970); see also Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.

15 1377, 1386 (2014) (discussing prudential standing in reference to the zone of interests test). But

16 in keeping with “Congress’s ‘evident intent’ when enacting the APA ‘to make agency action

17 presumptively reviewable,’” the zone of interests test “is not meant to be especially demanding.”

18 Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210

19 (2012) (citation omitted). Accordingly, courts do not require the substantive statute to have a

20 stated congressional purpose aligning with the would-be plaintiff. Id. Moreover, that the

21 Supreme Court used the word “arguably” in its test “indicate[s] that the benefit of any doubt goes

22 to the plaintiff.” Id. In other words, a plaintiff will have a right of review under Section 10(a)

23 unless their “interests are so marginally related to or inconsistent with the purposes implicit in

24

25 22 See also Hernandez-Avalos v. I.N.S., 50 F.3d 842, 846 (10th Cir. 1995) (“[A] plaintiff who lacks a private right of
action under the underlying statute can bring suit under the APA to enforce the statute.”); Oregon Nat. Res. Council
26 v. U.S. Forest Serv., 834 F.2d 842, 851 (9th Cir. 1987) (“[A]n implied right of action under a violated statute is not a
necessary predicate to a right of action under the APA.”).

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1 the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Id.

2 (citation omitted). Plaintiffs easily meet the “zone of interests” test because their grievance falls

3 squarely within the confines of the exclusive criteria for naturalization and adjustment of status

4 outlined in the INA. Having met these statutory requirements, Plaintiffs are entitled to have their

5 applications for adjustment of status and naturalization adjudicated pursuant to the law.

6

Defendants assert that Congress enacted the requirements for naturalization and

7 adjustment of status to “protect the interests of the People of the United States,” and not for the

8 especial benefit of Plaintiffs, implying that applicants seeking immigration benefits do not fall

9 within the zone of interests of the INA. MTD at 18-19. Even assuming it is true that Congress

10 did not enact these qualifications for the primary benefit of the individuals applying for

11 naturalization and adjustment of status, it is at least arguable that individuals who apply for

12 immigration benefits are within the zone of interests of the statute outlining the requirements for

13 attaining those benefits. See Patel v. U.S. Citizenship & Immigration Servs., 732 F.3d 633, 636

14 (6th Cir. 2013) (finding applicant for employment visa was within zone of interests of INA

15 provision setting out visa qualifications, reasoning “it is arguable, to say the least, that a qualified

16 alien who wants an employment visa is within that provision’s zone of interests”).

17

In sum, because Plaintiffs’ grievances fall within the zone of interests of the statutory

18 provisions they seek to enforce, they have stated a cause of action under Section 10(a) of the

19 APA and have statutory standing to bring this claim. Plaintiffs’ Claim 7 should not be

20 dismissed.

21 F. Plaintiffs Have Alleged Sufficient Facts to Establish that CARRP Violates the APA.

22

Plaintiffs’ Eighth and Ninth Claims allege that CARRP violates the APA on two grounds.

23 First, CARRP constitutes final agency action that is arbitrary and capricious (Claim 8). 5 U.S.C.

24 § 706. Second, when it implemented CARRP, USCIS ignored the notice and comment

25 procedures the APA requires of substantive or legislative rules (Claim 9). 5 U.S.C. § 553.

26 Defendants seriously mischaracterize Plaintiffs’ APA claims as only challenging the delay

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1 experienced by each individual Plaintiff, arguing that the delays do not constitute final agency

2 action subject to notice and comment rulemaking and arbitrary and capriciousness analysis. But,

3 as discussed above, these delays are merely the symptom of the core dispute in this case:

4 Defendants’ application of a secretive program that imposes extra-statutory eligibility criteria on

5 the decisions about whether Plaintiffs can become U.S. citizens or permanent residents.

6 Defendants minimize Plaintiffs’ claims as merely an expression of impatience in an attempt to

7 obscure the actual constitutional and statutory injuries that flow from having their applications

8 blocked based on impermissible substantive criteria.

9

Despite Defendants’ efforts to separate Plaintiffs’ two APA claims, the analysis is in fact

10 intertwined. If a rule is properly assessed as substantive or legislative, it qualifies as final agency

11 action requiring notice and comment and subject to review under the arbitrary and capriciousness

12 standard. Accordingly, because CARRP is a substantive or legislative agency rule that carries

13 the force of law, its implementation by USCIS represents a final agency action, and as such

14 cannot be arbitrary or capricious and must comply with notice and comment procedures.

15 Because Plaintiffs have pled sufficient facts to support these allegations (and will seek discovery

16 to further confirm them), their claims should not be dismissed.

17

1. CARRP qualifies as a substantive agency rule. (Claim 9)

18

CARRP violates the APA’s requirement that administrative agencies provide a notice-

19 and-comment period prior to implementing a substantive agency rule. 5 U.S.C. § 553(b), (c).

20 Section 4 of the APA outlines the notice and comment process that is required for “legislative

21 rules” that have the “force and effect of law.” 5 U.S.C. § 553. Where an agency implements a

22 new policy without complying with these notice and comment requirements, the resulting

23 regulation is invalid. See Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005). The APA,

24 however, exempts so-called “interpretive rules” from its notice and comment framework. Thus,

25 whether CARRP violates the APA’s notice-and-comment dictates depends on whether CARRP

26 is correctly classified as a substantive rule, or is instead an interpretive rule.

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1

Generally speaking, “substantive rules are rules that create law,” and, as a practical

2 matter, typically “implement existing law, imposing general, extrastatutory obligations pursuant

3 to authority properly delegated by Congress.” S. Cal. Edison Co. v. F.E.R.C., 770 F.2d 779, 783

4 (9th Cir. 1985). The “critical feature of interpretive rules,” on the other hand, “is that they are

5 ‘issued by an agency to advise the public of the agency’s construction of the statutes and rules

6 which it administers.’” Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015) (citation

7 omitted). CARRP is fairly characterized as a substantive rule, and therefore is subject to the

8 APA’s notice-and-comment rulemaking procedures, because it imposes extra-statutory eligibility

9 criteria that effectively alter applicants’ ability to naturalize or obtain legal permanent residency.

10

Nevertheless, relying on American Mining Congress v. Mine Safety & Health

11 Administration, 995 F.2d 1106, 1109 (D.C. Cir. 1993), Defendants argue that CARRP is an

12 interpretive rule. Specifically, Defendants contend that there is an adequate legislative basis for 13 CARRP and that CARRP does not effectively amend any prior legislative or substantive rules.23

14 Defendants’ analysis fails on both prongs.

15

First, CARRP does not rest on “an adequate legislative basis.” Defendants point to 8

16 U.S.C. §§ 1446(a), 1255, and 1357(b) as envisioning the creation of a program like CARRP—

17 one that is simply “a process to ensure USCIS is considering all relevant information relating to

18 cases with possible national security concerns.” MTD at 22. CARRP, however, is not merely an

19 extension of USCIS’s authority to adjudicate applications for naturalization and adjustment of

20 status, nor is it simply part of the background check authorized by Section 1446(a), application

21 of eligibility criteria outlined in Section 1255, or cabined within the power of immigration

22 officers to administer oaths and generally take and consider evidence as intended by Section

23 1357(b). Instead, CARRP creates a separate substantive regime for immigration application

24 processing and adjudication. SAC ¶ 95. Moreover, CARRP discriminates against applicants

25

26 23 Defendants argue, and Plaintiffs agree, that the second American Mining factor—whether the agency has invoked
its legislative authority—is not relevant here.

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1 from Muslim-majority countries, using arbitrary indicators like travel patterns, financial

2 transfers, certain types of employment, training, or government affiliations, and the identities of

3 the applicant’s family and friends to label a person a national security concern subject to

4 CARRP. Id. ¶ 74. And once labeled a national security concern, CARRP policy “forbids USCIS

5 adjudications officers from granting the requested benefit in the absence of supervisory approval

6 and concurrence from a senior level USCIS official.” Id. ¶ 92.

7

There is no predicate for these discriminatory actions within the existing statutory

8 framework. Indeed, CARRP is completely untethered from the qualifications for naturalization

9 and adjustment of status outlined in the INA and implementing regulations. See 8 U.S.C. §§

10 1159, 1255, 1427; 8 C.F.R. §§ 209.1, 245.1, 316.2, 335.3. Accordingly, USCIS is acting outside

11 any “adequate legislative basis” by implementing CARRP. For the same reasons, CARRP is in

12 fact inconsistent with these predecessor rules, which have the force of law, satisfying the third

13 factor of the American Mining test. Thus, Defendants’ legal argument is flawed; CARRP

14 qualifies as a substantive agency rule that should have been passed pursuant to the notice and

15 comment procedures of the APA.

16

Moreover, even if American Mining’s test applies,24 in light of the program’s secrecy a

17 motion to dismiss is not the proper vehicle for determining whether CARRP is in fact a

18 substantive agency rule. This is precisely why Plaintiffs require discovery—to determine how

19 CARRP was created, why it was created, and how it is being and will be implemented. At this

20 early stage, based on the facts currently ascertainable and as alleged in Plaintiffs’ Second

21 Amended Complaint, Plaintiffs have pled a plausible set of facts to pass muster under Rule

22 12(b)(6).

23

2. CARRP qualifies as a final agency action. (Claim 8)

24

Plaintiffs’ second APA claim alleges that CARRP is a final agency action that “neither

25

26 24 As the Supreme Court recently recognized, the question is the subject of heated debate in scholarly circles. See
Perez, 135 S. Ct. at 1204.

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1 focuses on nor relates to a [non-citizen’s] fitness to” obtain the immigration status subject to its

2 terms, Judulang v. Holder, 565 U.S. 42, 55 (2011), and further that it is arbitrary and capricious

3 under 5 U.S.C. § 706(2)(A).

4

Defendants do not dispute Plaintiffs’ substantive contention that CARRP is arbitrary and

5 capricious; instead, Defendants focus their challenge on the prerequisite finality determination.

6 As an initial matter, Defendants misapply their finality inquiry. Plaintiffs allege that CARRP as

7 a policy is arbitrary and capricious, and it is therefore CARRP as a policy that must be final

8 agency action, not any one applicant’s adjudication thereunder. SAC ¶ 280. Defendants

9 misconstrue Plaintiffs’ argument, citing irrelevant considerations such as the fact that Plaintiffs’

10 class definitions do not include applications in which Defendants reached a final decision and

11 implying that Plaintiffs believe individual, in-progress adjudications under CARRP constitute

12 final agency action. This is incorrect.

13

With regard to the overall CARRP policy, Plaintiffs have sufficiently pled the

14 requirements of final agency action. As Defendants correctly outline, final agency action must

15 meet two requirements: (1) it must represent the “consummation of the agency’s decision-

16 making process,” and (2) the action “must be one by which rights or obligations have been

17 determined or legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 178 (1997)

18 (internal citations omitted). USCIS initiated CARRP in 2008 and the program has been in

19 operation, responsible for delaying and denying thousands of immigration applications, since

20 that time. See SAC ¶¶ 55-97. Accordingly, CARRP represents the culmination of USCIS’s

21 decision-making process because it is an active program. Defendants never contest or deny

22 Plaintiffs’ descriptions of CARRP or how it is being applied. And CARRP plainly affects the

23 determination of “rights or obligations” and results in distinct “legal consequences” for the

24 thousands of applicants who are indefinitely delayed or denied immigration benefits for which

25 they qualify without explanation. Thus, the CARRP program as a whole qualifies as final

26 agency action.

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1

This conclusion will be irrefutable if CARRP is deemed a substantive agency rule subject

2 to notice and comment rulemaking procedures (as Plaintiffs argue it should be). “In litigation

3 over guidance documents, the finality inquiry is often framed as the question of whether the

4 challenged agency action is best understood as a non-binding action, like a policy statement or

5 interpretive rule, or a binding legislative rule.” Ass’n of Flight Attendants-CWA, AFL-CIO v.

6 Huerta, 785 F.3d 710, 716 (D.C. Cir. 2015). Substantive agency rules automatically qualify as

7 final agency actions subject to arbitrary and capriciousness analysis. Broadgate Inc. v. U.S.

8 Citizenship & Immigration Servs., 730 F. Supp. 2d 240, 244 (D.D.C. 2010) (“If the

9 Memorandum is a legislative rule, then it is final agency action under the APA subject to judicial

10 review, and it is subject to notice and comment rulemaking under § 553.”); Ctr. for Auto Safety

11 v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 807 (D.C. Cir. 2006) (“If the 1998 policy

12 guidelines constitute a de facto rule, as appellants claim, then they would clearly meet Bennett’s

13 test for final agency action and § 553 of the APA would require the agency to afford notice of a

14 proposed rulemaking and an opportunity for public comment prior to promulgating the rule.”);

15 see also 33 FED. PRAC. & PROC. JUDICIAL REVIEW § 8334 (1st ed.) (“Where agency action is a

16 rule, arbitrariness standard is particularly appropriate.”). Accordingly, the success of Plaintiffs’

17 Claim 9, which alleges CARRP is a substantive rule, would ensure CARRP is also considered

18 final agency action under Claim 8. As explained above, Plaintiffs will seek discovery to reveal

19 the specifics of CARRP’s creation and implementation. In the meantime, Defendants have failed

20 to demonstrate as a matter of law that CARRP is not final agency action, as they must do to

21 dismiss Claim 9 under Rule 12(b)(6).

22

V. CONCLUSION

23

Defendants’ motion to dismiss should be denied.

24

25

26

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1 DATED: May 8, 2017

2

s/Jennifer Pasquarella (admitted pro hac vice) ACLU Foundation of Southern California

s/ Harry H. Schneider, Jr. Harry H. Schneider, Jr. #9404

3

1313 W. 8th Street Los Angeles, CA 90017

s/ Nicholas P. Gellert Nicholas P. Gellert #18041

4

Telephone: (213) 977-5236 Facsimile: (213) 997-5297

s/ Kate Reddy Kate Reddy #42089

5 jpasquarella@aclusocal.org

s/ David A. Perez David A. Perez #43959

6 s/Matt Adams

s/ Laura K. Hennessey Laura K. Hennessey #47447

7

s/Glenda M. Aldana Madrid Matt Adams #28287

Attorneys for Plaintiffs

8

Glenda M. Aldana Madrid #46987 Northwest Immigrant Rights Project

Perkins Coie LLP 1201 Third Avenue, Suite 4900

9

615 Second Ave., Ste. 400 Seattle, WA 98122

Seattle, WA 98101-3099 Telephone: 206.359.8000

10

Telephone: (206) 957-8611 Facsimile: (206) 587-4025

Facsimile: 206.359.9000 Email: HSchneider@perkinscoie.com

11

matt@nwirp.org glenda@nwirp.org

NGellert@perkinscoie.com KReddy@perkinscoie.com

12

DPerez@perkinscoie.com LHennessey@perkinscoie.com

13 s/Stacy Tolchin (admitted pro hac vice)

14

Law Offices of Stacy Tolchin 634 S. Spring St. Suite 500A

15

Los Angeles, CA 90014 Telephone: (213) 622-7450

16

Facsimile: (213) 622-7233 Stacy@tolchinimmigration.com

17

18 s/Hugh Handeyside

19

Hugh Handeyside #39792 s/Lee Gelernt (admitted pro hac vice)

20

s/Hina Shamsi (admitted pro hac vice) American Civil Liberties Union Foundation

21

125 Broad Street New York, NY 10004

22

Telephone: (212) 549-2616 Facsimile: (212) 549-2654

23

lgelernt@aclu.org hhandeyside@aclu.org

24 hshamsi@aclu.org

s/Trina Realmuto (admitted pro hac vice) s/Kristin Macleod-Ball (admitted pro hac vice) National Immigration Project
of the National Lawyers Guild 14 Beacon St., Suite 602 Boston, MA 02108 Telephone: (617) 227-9727 Facsimile: (617) 227-5495 trina@nipnlg.org kristin@nipnlg.org s/Emily Chiang Emily Chiang #50517 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Echiang@aclu-wa.org

25

26

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1

CERTIFICATE OF SERVICE

2 The undersigned certifies that on the dated indicated below, I caused service of the

3 foregoing PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS via the

4 CM/ECF system that will automatically send notice of such filing to all counsel of record herein.

5 DATED this 8th day of May, 2017, at Seattle, Washington.

6

s/ Laura K. Hennessey

7

Laura K. Hennessey #47447

8

Attorneys for Plaintiffs

Perkins Coie LLP

9

1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099

10

Telephone: 206.359.8000

11

Facsimile: 206.359.9000 Email: LHennessey@perkinscoie.com

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

CERTIFICATE OF SERVICE (No. 2:17-cv-00094-JCC) – 26
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 Case 2:17-cv-00094-RAJ Document 69 Filed 06/21/17 Page 1 of 31

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9

ABDIQAFAR WAGAFE, MEHDI

CASE NO. C17-0094-RAJ

10

OSTADHASSAN, HANIN OMAR

BENGEZI, MUSHTAQ ABED

ORDER

11

JIHAD, and SAJEEL MANZOOR,

12

on behalf of themselves and others

similarly situated,

13

Plaintiffs,

14

v.

15 DONALD TRUMP, President of the

16

United States; UNITED STATES

17

CITIZENSHIP AND IMMIGRATION SERVICES, et al.,

18 Defendants.
19

20

21

This matter comes before the Court on Defendants’ motion to dismiss (Dkt. No.

22 56) and Plaintiffs’ amended motion for class certification (Dkt. No. 49). Having

23 thoroughly considered the parties’ briefing and the relevant record, the Court finds oral

24 argument unnecessary and hereby GRANTS IN PART and DENIES IN PART

25 Defendants’ motion to dismiss and GRANTS Plaintiffs’ motion for class certification for

26 the reasons explained herein.

ORDER PAGE - 1

Case 2:17-cv-00094-RAJ Document 69 Filed 06/21/17 Page 2 of 31

1 I. BACKGROUND

2

This section summarizes the facts as set forth in Plaintiffs’ second amended

3 complaint, as is appropriate on a motion to dismiss.

4

A. The CARRP Policy

5

This lawsuit is brought by immigration applicants to challenge an allegedly secret

6 and unlawful government program, the Controlled Application Review and Resolution

7 Program (CARRP). (Dkt. No. 47 at ¶¶ 1, 9.) The premise of Plaintiffs’ suit is that because

8 the Constitution expressly assigns the authority to establish uniform rules of

9 naturalization to Congress—which Congress has done in the Immigration and Nationality

10 Act (INA)—the United States Citizenship and Immigration Service (USCIS), as part of

11 the executive branch, has created an extra-statutory, unlawful, and unconstitutional

12 program in CARRP. (Id. at ¶¶ 1, 8, 9.)

13

Plaintiffs allege that USCIS created CARRP in 2008 “as an agency-wide policy to

14 identify, process, and adjudicate certain immigration applications that allegedly raise

15 ‘national security concerns.’” (Id. at ¶ 55.) They allege that CARRP implements “an

16 internal vetting policy that has not been authorized by Congress, nor codified, subjected

17 to public notice and comment, or voluntarily made public in any way.” (Id. at ¶ 10.) In

18 fact, CARRP was unknown to the public until it was discovered in litigation challenging

19 a denial of naturalization in Hamdi v. USCIS, 2012 WL 632397 (C.D. Cal. Feb. 25,

20 2012). The only information about CARRP that USCIS made public was in response to

21 Freedom of Information Act (FOIA) requests and the litigation necessary to compel those

22 responses. See ACLU of S. Cal. v. USCIS, No. 13-cv-0861 (D.D.C., filed June 7, 2013).

23

The policy imposes criteria to determine when an individual should be labeled a

24 “national security concern” that Plaintiffs claim “are vague and overbroad, and often turn

25 on discriminatory factors such as religion and national origin.” (Dkt. No. 47 at ¶¶ 62–76.)

26 The criteria also include many lawful activities such as donating to Muslim charities or

ORDER PAGE - 2

Case 2:17-cv-00094-RAJ Document 69 Filed 06/21/17 Page 3 of 31

1 travelling to Muslim-majority countries. (Id. at ¶¶ 35–51, 62–76.) Plaintiffs maintain

2 these criteria are “untethered from the specific statutory criteria Congress has authorized

3 to determine when a person is eligible for immigration benefits.” (Id.)

4

Even if an applicant meets all the statutory requirements for citizenship or

5 adjustment of status under the INA, USCIS officers are instructed that an application in

6 CARRP cannot be approved. (Id. at ¶ 77.) If an applicant meets one of CARRP’s national

7 security concern criteria, officers are guided to deny the application or delay it as long as

8 possible. (Id. at ¶¶ 77, 78–97.) The applicant is neither informed that her application has

9 been submitted to CARRP, nor able to challenge her classification as a national security

10 concern. (Id. at ¶¶ 61, 96.) Ultimately, Plaintiffs allege that CARRP creates a substantive

11 regime for immigration application processing and imposes “eligibility criteria that

12 indefinitely delay adjudications and unlawfully deny immigration benefits to noncitizens

13 who are statutorily eligible and entitled by law.” (Id. at ¶ 95.)

14

B. The President’s Executive Orders

15

Although recent court decisions across the country1 may make Defendant

16 President Trump’s (hereinafter “the president”) recent Executive Orders a non-issue, the

17 Court will briefly address their impact on this case.

18

Plaintiffs initiated this lawsuit on January 23, 2017, challenging only the CARRP

19 program. (Dkt. No. 1.) On January 27, 2017, the president issued Executive Order (E.O.)

20 13769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United

21 States.” 82 Fed. Reg. 8977. Section 3(c) of the E.O. suspended entry into the United

22 States of citizens or nationals of Syria, Iraq, Iran, Yemen, Somalia, Sudan, and Libya. Id.

23
24 1 See, e.g., Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (upholding a temporary restraining order which enjoined potions of Executive Order 13769); Int’l Refugee Assistance
25 Project v. Trump, 2017 WL 2273306 (4th Cir. May 25, 2017) (upholding preliminary injunction enjoining portions of Executive Order 13780); Hawai’i v. Trump, 2017 WL 2529640 (9th Cir.
26 June 12, 2017) (upholding preliminary injunction enjoining portions of Executive Order 13780).

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1 at 8978. USCIS initially determined that E.O. 13769 required it to suspend taking action

2 on all pending applications—except those for naturalization—of nationals from those

3 seven countries. (See Dkt. No. 47 at ¶ 15; Dkt. No. 56 at 20; Dkt. No. 17 at ¶ 3.) Section

4 4 of E.O. 13769 called for the Secretaries of State and Homeland Security and the

5 Directors of National Intelligence and the FBI to “implement a program, as part of the

6 adjudication process for immigration benefits, to identify individuals seeking to enter the

7 United States on a fraudulent basis with the intent to cause harm, or who are at risk of

8 causing harm subsequent to their admission.” 82 Fed. Reg. at 8978.

9

In response to E.O. 13769, Plaintiffs amended their complaint to challenge

10 sections 3(c) and 4 of the order. (Dkt. No. 17.) Plaintiffs alleged that USCIS relied on

11 section 3 to suspend processing immigrant visas and other immigration benefits. (Id. at

12 ¶ 54.) Plaintiffs also alleged that Section 4 of the E.O. “directs federal agencies to create

13 and implement a policy of extreme vetting of all immigration benefits applications” and

14 that “[a]ny such ‘extreme vetting’ policy” would expand CARRP. Id. at 8978–79; Dkt.

15 No. 17 at ¶ 4. The day after Plaintiffs filed their amended complaint, USCIS Acting

16 Director Lori Scialabba sent a memo to all USCIS employees stating that section 3(c) did

17 not affect the immigration applications of individuals based on the country of their

18 nationality. (Dkt. No. 22 at 2–3.) In their notice of related cases, Plaintiffs stated that if

19 USCIS adhered to the position expressed by Acting Director Scialabba, “it would appear

20 that the Section 3(c) claims in this action may become moot.” (Id. at 3.)

21

After the Ninth Circuit upheld a temporary restraining order enjoining portions of

22 E.O. 13769 in Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), the president

23 promised to “go[] further” with a new executive action, and assured that “[e]xtreme

24 vetting will be put in place,” and that “it already is in place in many places.” (Dkt. No. 47

25 at ¶ 115.) The president then issued E.O. 13780, which rescinded E.O. 13769 in its

26 entirety. 82 Fed. Reg. 13209, 13218 (March 6, 2017). Stephen Miller, the president’s

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1 Senior Advisor stated that E.O. 13780 would have “the same basic policy outcome for the

2 country.” (Dkt. No. 47 at ¶ 117 (citation omitted)). Sean Spicer, the president’s Press

3 Secretary, stated that the goal of E.O. 13780 was “obviously to maintain the way we did

4 it the first time.” (Id. at ¶ 118 (citation omitted)).

5

Portions of the second E.O. were soon after enjoined in Hawai’i v. Trump, 2017

6 WL 10111673 (D. Haw. Mar. 15, 2017). There, the court concluded that there was

7 “significant and unrebutted evidence of religious animus driving the promulgation of

8 [E.O. 13780] and its related predecessor.” Id. at *11. Based on this, “a reasonable,

9 objective observer . . . would conclude that [E.O. 13780] was issued with a purpose to

10 disfavor a particular religion.” Id. at *13. The Ninth Circuit largely upheld the district

11 court’s order, finding that the plaintiffs were likely to succeed on their claims that the

12 second E.O. “contravened the [Immigration and Nationality Act (INA)] by exceeding the

13 president’s authority under § 1182(f), discriminating on the basis of nationality, and

14 disregarding the procedures for setting annual admissions of refugees.” Hawai’i v.

15 Trump, 2017 WL 2529640, at *23 (9th Cir. June 12, 2017).

16

Following the issuance of E.O. 13780, Plaintiffs filed a second amended complaint

17 which added three named plaintiffs and a challenge to E.O. 13780, alleging that it

18 “sanctions a major expansion of the existing CARRP program.” (Dkt. No. 47 at ¶¶ 18,

19 26–28.)

20

C. Named Plaintiffs

21

All named Plaintiffs are foreign nationals from Muslim-majority countries, and

22 have applied for naturalization or adjustment of status. (Id. at ¶¶ 24–28.)

23

Plaintiff Wagafe is a Somali national and former lawful permanent resident. (Id. at

24 24.) He applied for naturalization in November 2013 and, although he met the statutory

25 criteria for naturalization, his application was submitted to CARRP. (Id. at ¶¶ 24, 142–

26 161.) There his application remained, until five days after Plaintiffs moved for class

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1 certification, at which point he was contacted by USCIS and an interview was scheduled.

2 (Id. at ¶ 24) Within two weeks, he became a U.S. citizen. (Id.)

3

Plaintiff Ostadhassan is an Iranian national, and a Professor at the University of

4 North Dakota, who meets all the statutory requirements to adjust his status to that of a

5 lawful permanent resident. (Id. at ¶¶ 25, 162–175.) His application was submitted to

6 CARRP. (Id. at ¶¶ 25, 170.) Prior to this lawsuit, Mr. Ostadhassan waited over three and

7 a half years for a decision on his application. (Id. at 175, Dkt. No. 58 at 12.) On April 5,

8 2017, one day after Plaintiffs filed their second amended complaint, USCIS notified Mr.

9 Ostadhassan of its intent to deny his application. (Dkt. No. 58 at 3; Dkt. No. 53 at 1.)

10

Plaintiff Bengezi is a Libyan national married to a United States citizen. (Dkt. No.

11 47 at ¶ 26.) In February 2015, she applied for adjustment to lawful permanent resident

12 status. (Id.) Her application was submitted to CARRP. (Id. at ¶¶ 26, 196.) Soon after

13 being added as a named plaintiff, USCIS notified her that her interview had been

14 scheduled. (Dkt. No. 58 at 12.) USCIS approved her application on May 9, 2017. (Dkt.

15 No. 60 at 10; Dkt. No. 60-2.)

16

Plaintiff Jihad is an Iraqi refugee who has resided in Washington since 2008. (Dkt.

17 No. 47 at ¶¶ 27, 199–204.) His lawful permanent resident status became effective upon

18 arrival in the United States. (Id. at ¶ 205.) He applied for naturalization in July of 2013

19 and satisfied all of the statutory criteria, yet his application was submitted to CARRP. (Id.

20 at ¶¶ 26, 206–17.) Over three years passed with no action on Mr. Jihad’s application.

21 (Dkt. No. 58 at 12.) On April 4, 2017, Mr. Jihad was added as a named Plaintiff. (Dkt.

22 No. 47.) He received an interview notification on April 13, 2017 and was interviewed on

23 April 25, 2017. (Dkt. No. 58 at 12.) USCIS approved his application on May 9, 2017 and

24 he took his oath of citizenship on May 30, 2017. (Dkt. No. 60 at 10; Dkt. No. 60-4.)

25

Plaintiff Manzoor is a Pakistani national who has lived in the United States since

26 2001. (Dkt. No. 47 at ¶ 28.) He came to the United States to obtain his Master of Science

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1 in Marketing Research from the University of Texas and was later granted an H-1B work

2 visa. (Id. at ¶¶ 221–22.) He applied for naturalization in 2015 and meets the statutory

3 criteria; his application was submitted to CARRP. (Id. at ¶¶ 228–34.) No action was

4 taken on his application, however on May 1, 2017, less than a month after being added as

5 a named plaintiff, Mr. Manzoor was interviewed and his application was approved on the

6 spot. (Dkt. No. 58 at 12.) He took his oath of citizenship the same day. (Dkt. No. 60-5.)

7

D. Defendants’ Motion to Dismiss (Dkt. No. 56)

8

In response to Plaintiffs’ second amended complaint, Defendants now bring this

9 motion to dismiss all claims for two reasons. (Dkt. No. 56.) First, Defendants maintain

10 that under Federal Rule of Civil Procedure 12(b)(1) this Court lacks subject matter

11 jurisdiction because (1) Plaintiffs lack standing, and (2) Plaintiffs’ claims are moot. (Id. at

12 10–11.) Second, Defendants argue that under Federal Rule of Civil Procedure 12(b)(6),

13 Plaintiffs have failed to state a claim upon which relief may be granted for Claims Four,

14 Seven through Nine, and any claims challenging “extreme vetting.” (Id. at 11.)

15

E. Plaintiffs’ Motion for Class Certification (Dkt. No. 49)

16

After filing the second amended complaint, Plaintiffs filed the present amended

17 motion for class certification. (Dkt. No. 49.) Plaintiffs argue that “[t]hrough CARRP, the

18 government surreptitiously blacklists thousands of applicants who are seeking

19 immigration benefits, labeling them ‘national security threats.’” (Id. at 8.) In addition to

20 themselves, “[t]housands of individuals . . . have had their applications for naturalization

21 or adjustment of status halted, delayed, or denied by CARRP.” (Id. at 9.) Accordingly,

22 Plaintiffs maintain that class treatment is the appropriate avenue through which to

23 “challenge CARRP and any other successor ‘extreme vetting’ program that the Executive

24 branch may seek to implement pursuant to Sections 4 and 5 of the Second EO or through

25

26

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Case 2:17-cv-00094-RAJ Document 69 Filed 06/21/17 Page 8 of 31

1 other extra-statutory means.”2 (Id.)

2

Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), Plaintiffs

3 Wagafe, Jihad, and Manzoor move the Court to certify the following class, and appoint

4 them as class representatives:

5

A national class of all persons currently and in the future (1) who have or

6

will have an application for naturalization pending before USCIS, (2) that is

subject to CARRP or a successor “extreme vetting” program, and (3) that has

7

not been or will not be adjudicated by USCIS within six months of having

8

been filed.

(Id.) For simplicity, the Court refers to the above putative class as the “Naturalization 9

Class.” Additionally, Plaintiffs Ostadhassan and Bengezi move the Court to certify the 10

following class and appoint them as class representatives: 11

12

A national class of all persons currently and in the future (1) who have or

will have an application for adjustment of status pending before USCIS,

13

(2) that is subject to CARRP or a successor “extreme vetting” program, and

(3) that has not been or will not be adjudicated by USCIS within six months

14

of having been filed.

15 (Id.)3 For simplicity, the Court refers to the second putative class as the
16 “Adjustment Class.”

17
18 2 Defendants make much of the fact that Plaintiffs challenge a potential successor program. Given the apparent background of CARRP, this is understandable. As Plaintiffs explain in the
19 second amended complaint, “USCIS did not make information about CARRP public, and the program was only discovered through fortuity during federal court litigation. To the extent the
20 program has shifted in name, scope, or method, Plaintiffs may have no way to obtain that 21 information. Thus, Plaintiffs’ reference to ‘CARRP’ incorporates any similar non-statutory and
sub-regulatory successor vetting policy, including pursuant to Sections 4 and 5 of [E.O. 13780].” 22 (Dkt. No. 47 at ¶ 19, n.1.)
23 3 In Plaintiffs’ first amended complaint they asserted an additional “Muslim Ban Class,” relating to the effect of Section 3(c) of E.O. 13769. (Dkt. No. 17.) In Plaintiffs’ second amended
24 complaint, they preserved the assertion of the “Muslim Ban Class” relating to the effect of Section 2(c) of E.O. 13780. (Dkt. No. 47.) Due to recent court orders enjoining E.O. 13780, see
25 footnote 1, supra, Plaintiffs do not seek certification of the “Muslim Ban Class” at this time, but “reserve the right to seek certification of the additional class if circumstances change again.”
26 (Dkt. No. 49 at 9–10, n.1.)

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1 II. DISCUSSION

2

A. Defendant’s Motion to Dismiss (Dkt. No. 56)

3

Defendants move to dismiss Plaintiffs’ claims in part under Federal Rule of Civil

4 Procedure 12(b)(1) and in part under Federal Rule of Civil Procedure 12(b)(6). Under

5 Rule 12(b)(1), Defendants ask the Court to dismiss all claims for lack of a case or

6 controversy, and Claims One, Two, Three, Five, Six, and Ten for lack of standing. (Dkt.

7 No. 56 at 10–11.) Under Rule 12(b)(6), Defendants request dismissal of Claims Four,

8 Seven, Eight, Nine, and “extreme vetting” claims for failure to state a claim upon which

9 relief may be granted. (Id. at 11.) For the following reasons, Defendants’ motion to

10 dismiss is GRANTED as to Claim Four for the Adjustment Class only. The remainder of

11 Defendants’ motion to dismiss is DENIED.

12

1. Standard of Review

13

A defendant may move to dismiss an action for lack of subject matter jurisdiction.

14 Fed. R. Civ. P. 12(b)(1). A 12(b)(1) challenge to jurisdiction may be facial or factual.

15 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “The district court

16 resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): Accepting

17 the plaintiff’s allegations as true and drawing all reasonable inferences in the plaintiff’s

18 favor,” and then determining whether they are legally sufficient to invoke jurisdiction.

19 Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citing Pride v. Correa, 719 F.3d

20 1130, 1133 (9th Cir. 2013)). A factual attack, on the other hand, challenges the facts that

21 serve as the basis for subject matter jurisdiction. In evaluating a factual attack, a court

22 may look beyond the complaint without converting the motion into one for summary

23 judgment. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

24

A defendant may also move for dismissal when a plaintiff “fails to state a claim

25 upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). On a 12(b)(6) motion to

26 dismiss, the Court accepts all factual allegations in the complaint as true and construes

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1 them in the light most favorable to the non-moving party. Vasquez v. L.A. County, 487

2 F.3d 1246, 1249 (9th Cir. 2007). However, to survive a motion to dismiss, a plaintiff

3 must cite facts supporting a “plausible” cause of action. Bell Atlantic Corp. v. Twombly,

4 550 U.S. 544, 555–56 (2007). A claim has “facial plausibility” when the party seeking

5 relief “pleads factual content that allows the Court to draw the reasonable inference that

6 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 672

7 (2009) (internal quotations omitted). “Dismissal for failure to state a claim is appropriate

8 only if it appears beyond doubt that the non-moving party can prove no set of facts in

9 support of his claim which would entitle him to relief.” Vasquez, 487 F.3d at 1249

10 (internal quotations omitted).

11

2. Case or Controversy

12

Defendants ask this Court to dismiss Plaintiffs’ case in its entirety for lack of a

13 case or controversy because Plaintiffs admit they have no interest in adjudication of their

14 applications. (Dkt. No 56 at 18.) Defendants maintain that Plaintiffs “want only a

15 determination that CARRP is unlawful, and an injunction preventing Defendants from

16 applying it to the proposed class members.” (Dkt. No. 56 at 18 (citing Dkt. No. 26 at

17 15)). Defendants ask this Court to exercise its discretion and consider Plaintiffs’

18 statement as a judicial admission, and find that because Plaintiffs have no interest in the

19 adjudication of their claims, there is no case or controversy, which therefore deprives this

20 Court of jurisdiction on standing grounds. (Dkt. No. 56 at 18–19.) This argument fails for

21 three reasons.

22

First, what Plaintiffs actually said in the cited brief is that they are not asking the

23 Court to adjudicate their individual immigration applications. (Dkt. No. 26 at 9.)

24 Therefore, what Defendants are actually asking this Court to do is consider their

25 interpretation of a portion of Plaintiffs’ first motion to certify class (Dkt. No. 26) and

26 conclude it is a judicial admission. This the Court will not do.

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1

Second, Defendants misconstrue Plaintiffs’ claims. While Plaintiffs do want a

2 determination that CARRP is unlawful, they also seek an order compelling USCIS to

3 “adjudicate Plaintiffs’ and proposed class members’ petitions, applications, or requests

4 based solely on the statutory criteria.” (Dkt. No. 47 at 51.)

5

Third, as Plaintiffs point out, “adjudicating the named Plaintiffs’ applications does

6 not resolve the core issue in this case: whether CARRP and any successor ‘extreme

7 vetting’ program is lawful.” (Dkt. No. 58 at 14.) Defendants’ contention that this Court

8 does not have jurisdiction for want of case or controversy fails. Defendants’ motion to

9 dismiss on this ground is DENIED.

10

3. Claims One, Two, Three, Five, Six, and Ten

11

Defendants next move to dismiss Claims One, Two, Three, Five, Six, and Ten for

12 lack of standing. (Dkt. No 56 at 19.) Standing consists of three elements: the plaintiff

13 (1) must have suffered an injury in fact, (2) that is fairly traceable to the challenged

14 conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial

15 decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). Once a party

16 asserts the absence of subject matter jurisdiction, the opposing party invoking the court’s

17 jurisdiction bears the burden of proving it exists. Kokkonen v. Guardian Life Ins. Co. of

18 Am., 511 U.S. 375, 377 (1994).

19

a. Claims One, Two, Three, Five, and Six

20

Defendants first argue that Plaintiffs have not suffered an injury in fact as to

21 claims One, Two, Three, Five, and Six because Executive Order (E.O.) 13780 “does not

22 suspend the adjudication of immigrant benefit applications by persons within the United

23 States, and USCIS has not suspended the adjudication of Plaintiffs’ benefit applications

24 pursuant to E.O. 13780.” (Dkt. No. 56 at 19.) Specifically, Defendants point to Plaintiffs’

25 notice of related cases, (Dkt. No. 22), in which they acknowledged that these claims

26 “may become moot.” (Dkt. No. 56 at 10, 19.) In that notice, Plaintiffs were referring to

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1 then-Acting Director of USCIS Lori Scialabba’s memo regarding E.O. 13769—the

2 predecessor to E.O. 13780—in which she stated that E.O. 13769 “does not affect USCIS

3 adjudication of applications and petitions filed for or on behalf of individuals in the

4 United States regardless of their country of nationality.” (Dkt. No. 22 at 2–3; Dkt. No.

5 56-1.) Defendants argue that because adjudication of Plaintiffs’ applications have not

6 been suspended pursuant to E.O. 13780, they have not suffered an injury.

7

The Court makes three observations in response to Defendants’ arguments. First,

8 Plaintiffs stated only that their claims may be moot, and made such statements prior to the

9 president issuing E.O. 13780. Second, Acting Director Scialabba’s memo pertained to

10 E.O. 13769, which was rescinded by E.O. 13780, and therefore no longer has relevance.

11

Third, Plaintiffs’ claims do establish an injury in fact. Claims One and Two allege

12 that Defendants have interpreted the first E.O. and “will interpret the Second EO to

13 authorize the suspension” of immigration applications. (Dkt. No. 47 at ¶ 251, 257.) Claim

14 Three, which is based on the Establishment Clause, alleges that the “Second EO is

15 intended to target a specific religious faith—Islam,” because Defendants are “not

16 pursuing a course of neutrality with regard to different religious faiths.” (Id. at ¶ 261.)

17 Claim Five is a Due Process challenge based on Plaintiffs being “denied immigration

18 benefits for which they are statutorily eligible, and to which they are entitled by law.” (Id.

19 at ¶ 266.) Claim Six alleges an Equal Protection violation in that Defendants’ indefinite

20 suspension of applications under CARRP and E.O. 13780 discriminates on the basis of

21 “country of origin” and is “substantially motivated by animus toward—and has a

22 disparate effect on—Muslims.” (Id. at ¶¶ 268–69.) Furthermore, even if E.O. 13780 does

23 not suspend the applications, Plaintiffs allege that CARRP or another “extreme vetting”

24 program,4 independent of E.O. 13780, suspended Plaintiffs’ applications or will suspend

25 applications of the putative class, and that such suspension was unlawful. This is

26 4 See note 2, supra.

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1 sufficient to survive a motion to dismiss.

2

Another consideration for the Court is that USCIS has now acted on all of the

3 applications of the named Plaintiffs, after up to three and a half years of inactivity. (Dkt.

4 No. 58 at 11–12.) Curiously, USCIS’s actions on these applications took place almost

5 immediately after Plaintiffs were added as proposed class representatives. To the extent

6 that Defendants argue this fact moots Plaintiffs’ claims, “[i]t is well settled that ‘a

7 defendant’s voluntary cessation of a challenged practice does not deprive a federal court

8 of its power to determine the legality of the practice.’” Friends of the Earth, Inc. v.

9 Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v.

10 Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). It is the party asserting mootness that

11 has the “heavy burden of persuading” the Court that the challenged conduct will not

12 resume. Id. This standard is a “stringent” one, and even “if subsequent events made it

13 absolutely clear that the allegedly wrongful behavior could not reasonably be expected to

14 recur,” a case only “might become moot.” Id.

15

Here, Plaintiffs allege this unlawful practice has been ongoing since the inception

16 of the CARRP program in 2008. Plaintiff Wagafe waited three and a half years for action

17 on his application. That prompt action has been taken on Plaintiffs’ applications

18 subsequent to their being named class representatives does not convince the Court that

19 Defendants have met their burden that the alleged unlawful conduct could not reasonably

20 be expected to recur. Furthermore, acting on applications subjected to CARRP—that

21 were highlighted by a lawsuit challenging it—is very different than voluntary cessation of

22 the CARRP program.

23

b. Claim Ten

24

Defendants next argue that Plaintiffs lack standing to assert Claim Ten—a

25 violation of the Constitution’s Uniform Rule of Naturalization Clause—because (1) there

26 is no private right of action under the clause, and (2) even if CARRP violated the clause,

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1 Congress would be injured, not Plaintiffs. (Dkt. No. 56 at 21–22.)

2

As to Defendants’ first argument, the cases cited do not support it. Flores v. City

3 of Baldwin Park dealt with a remand issue and whether the Uniform Rule of

4 Naturalization Clause completely preempted state law. 2015 WL 756877, *3 (C.D. Cal.

5 Feb. 23, 2015). Cazarez-Gutierrez v. Ashcroft dealt with sentencing. 382 F.3d 905, 912

6 (9th Cir. 2004). And Korab v. Fink mentioned the history of the clause but nowhere in

7 that opinion does this Court find the proposition that a private litigant does not have

8 standing to bring suit for its violation. 797 F.3d 572, 580–81 (9th Cir. 2014). In contrast,

9 a naturalization applicant was allowed to challenge a state law which barred

10 naturalization on the basis of homosexuality because “the resulting inconsistencies

11 undermine[d]” the Uniform Rule of Naturalization Clause. Nemetz v. I.N.S., 647 F.2d

12 432, 435 (4th Cir. 1981).

13

Defendants’ second argument—that it is Congress, and not Plaintiffs, that would

14 be injured—also fails. Assuming Congress would be injured by CARRP’s alleged

15 addition of non-statutory and substantive requirements to naturalization, it does not

16 follow that Plaintiffs could not also be injured. For once Congress “establishes such

17 uniform rule [of naturalization], those who come within its provisions are entitled to the

18 benefit thereof as a matter of right, not as a matter of grace.” See Schwab v. Coleman,

19 145 F.2d 672, 676 (4th Cir. 1944). Defendants’ motion to dismiss Claims One, Two,

20 Three, Five, Six, and Ten on the basis of standing is DENIED.

21

4. Extreme Vetting Claims

22

Defendants argue that Plaintiffs’ claims “concerning ‘extreme vetting’ under E.O.

23 13780 must be dismissed” for failure to allege sufficient facts to support them. (Dkt. No.

24 56 at 22.) While the Court agrees that any claims about enjoining a potential future

25 extreme vetting program may be premature, Defendants do not direct the Court to any

26 specific claims for relief that must be dismissed. The only claim for relief that even

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1 mentions “extreme vetting”5 is Claim Four. (Dkt. No. 47 at ¶ 263.) This claim alleges a

2 Due Process violation for failure to give Plaintiffs and members of the putative classes

3 “notice of their classification under CARRP (or successor ‘extreme vetting’ program), a

4 meaningful explanation of the reason for such classification, and any process by which

5 Plaintiffs can challenge their classification.” (Id.) The Court cannot enjoin a program that

6 is currently nonexistent; if the Court ultimately enjoins CARRP, and Defendants

7 implement a successor program substantially similar to CARRP,6 such conduct would be

8 in violation of the Court’s injunction. The main thrust of this case is the legality of

9 CARRP. The Court will not dismiss Plaintiffs’ claims because they include allegations of

10 a possible future and unlawful program that would embody CARRP in all but name.

11

5. Claim Four

12

Defendants next argue that Plaintiffs’ Fourth Claim for relief, which alleges a Due

13 Process violation, should be dismissed because Plaintiffs have not been deprived of a

14 protected liberty or property interest. (Dkt. No. 56 at 23.)

15

Procedural Due Process claims “hinge[] on proof of two elements: (1) a

16 protect[ed] liberty or property interest . . . and (2) a denial of adequate procedural

17 protections.” Foss v. Nat’l Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998).

18 Given CARRP’s apparently clandestine nature, and a lack of opposition from Defendants

19 on this point, the second element is met. Thus, the issue is whether Plaintiffs have

20 asserted a protected liberty or property interest in having their applications adjudicated

21 lawfully. “To have a property interest in a benefit, a person clearly must have more than

22 an abstract need or desire for it. He must have more than a unilateral expectation of it. He

23 5 Two of the proposed classes in the second amended complaint—but not the motion for class
24 certification—contain “extreme vetting” in their title, but bear no relevance to the motion to 25 dismiss.
6 As Plaintiffs point out, due to the secretive nature of CARRP, it is plausible such a program is 26 already in existence. (Dkt. No. 47 at ¶¶ 19 n.1, 59.)

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1 must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colls.

2 v. Roth, 408 U.S. 564, 577 (1972).

3

The Ninth Circuit, and other courts, have held that naturalization applicants have a

4 property interest in seeing their applications adjudicated lawfully. Brown v. Holder, 763

5 F.3d 1141, 1147 (9th Cir. 2014); see also Ching v. Mayorkas, 725 F.3d 1149, 1155 (9th

6 Cir. 2013) (finding a constitutionally protected interest in nondiscretionary immigration

7 applications); I.N.S. v. Pangilinan, 486 U.S. 875, 884 (1988) (noting there is no

8 discretion to deny naturalization if an applicant is otherwise qualified); Schwab, 145 F.2d

9 at 676–77 (“[T]hose who come within [the Uniform Rule of Naturalization] are entitled

10 to the benefit thereof as a matter of right[.]”); United States v. Shanahan, 232 F.169, 171

11 (E.D. Pa. 1916) (“It is, of course, true that . . . admission to citizenship . . . is not a right,

12 but a privilege . . . . When an applicant has met all the requirements of the law, the

13 privilege accorded him ripens into a right . . . he is entitled to citizenship.”). As the

14 United States Supreme Court explained nearly 100 years ago:

15

The opportunity to become a citizen of the United States is said to be merely

16

a privilege, and not a right. It is true that the Constitution does not confer

upon aliens the right to naturalization. But it authorizes Congress to establish

17

a uniform rule therefor. Article 1, Sec. 8, cl. 4. The opportunity having been

18

conferred by the Naturalization Act, there is a statutory right in the alien to submit his petition and evidence to a court, to have that tribunal pass upon

19

them, and, if the requisite facts are established, to receive the certificate.

20 Tutun v. United States, 270 U.S. 568, 578 (1926).

21

Defendants counter that “no alien has the slightest right to naturalization.” (Dkt.

22 No. 56 at 24 (quoting Fedorenko v. United States, 449 U.S. 490, 506 (1981)). However,

23 Defendants’ citation of Fedorenko omits a significant portion of the quote. The complete

24 citation reads, “‘No alien has the slightest right to naturalization unless all statutory

25 requirements are complied with.’” Fedorenko, 449 U.S. at 506 (quoting United States v.

26 Ginsberg, 243 U.S. 472, 474–75 (1917)) (emphasis added). Here, Plaintiffs allege that all

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1 the statutory requirements have been complied with, and the application of CARRP’s

2 extra-statutory requirements deprives Plaintiffs of the right to which they are entitled.

3 This is sufficient to allege a violation of due process. Defendants’ motion to dismiss

4 Claim Four is DENIED as to the Naturalization Class.

5

Plaintiffs who seek adjustment of their status is a different matter. “The status of

6 an alien . . . may be adjusted by the Attorney General, in his discretion.” 8 U.S.C.

7 § 1255(a). As numerous courts have held, discretionary relief, such as adjustment of

8 status, is not a protected property interest. Sandoval-Luna v. Mukasey, 526 F.3d 1243,

9 1247 (9th Cir. 2008); McCreath v. Holder, 573 F.3d 38, 41 (1st Cir. 2009); Hamdan v.

10 Gonzales, 425 F.3d 1051, 1060 (7th Cir. 2005); Nativi-Gomez v. Ashcroft, 344 F.3d 805,

11 808 (8th Cir. 2003). Therefore, Plaintiffs who seek an adjustment of status cannot claim a

12 due process violation, and Claim Four is DISMISSED WITH PREJUDICE as to the

13 Adjustment Class.

14

Finally, Defendants argue that Plaintiffs do not have a constitutionally protected

15 interest in the pace of their adjudication. (Dkt. No. 56 at 24.) However, this misconstrues

16 Plaintiffs’ claims. Plaintiffs’ case centers on their allegation that an extra-statutory policy

17 based on discriminatory and illegal criteria is blocking the fair adjudication of

18 immigration benefits of which they are statutorily eligible. (See Dkt. No. 58 at 23.) Pace

19 of the adjudication is a byproduct of that allegation, not the allegation itself. The Court

20 therefore will not address Defendants’ argument.

21

6. Claim Seven

22

Defendants argue that Plaintiffs’ Claim Seven—that CARRP violates the INA—

23 must be dismissed because the INA does not create a private right of action, and therefore

24 Plaintiffs lack standing. (Dkt. No. 56 at 26.) The Court need not decide whether Congress

25 has implied a private right of action under the INA, because Plaintiffs are challenging

26 agency action. Section 10(a) of the Administrative Procedure Act (APA) provides a right

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1 of action for plaintiffs who challenge administrative action that violates a federal statute.

2 Any “person . . . adversely affected or aggrieved by agency action within the meaning of

3 a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702; see also

4 Cetacean Cmty. v. Bush, 386 F.3d 1169, 1176–77 (9th Cir. 2004) (“[T]he end result is the

5 same whether the underlying statute grants standing directly or whether the APA

6 provides the gloss that grants standing. In both cases, the plaintiff can bring suit to

7 challenge the administrative action in question. In the first case, the substantive statute

8 grants statutory standing directly to the plaintiff. In the second case, the substantive

9 statute is enforced through Section 10(a) of the APA.”); Hernandez-Avalos v. I.N.S., 50

10 F.3d 842, 846 (10th Cir. 1995) (“[A] plaintiff who lacks a private right of action under

11 the underlying statute can bring suit under the APA to enforce the statute.”). The proper

12 question for the Court, therefore, is whether Section 10(a) of the APA applies to

13 Plaintiffs’ suit.

14

Whether Section 10(a) applies to a given suit turns on whether a plaintiff is

15 “arguably within the zone of interests to be protected or regulated by the statute or

16 constitutional guarantee in question.” Ass’n of Data Processing Serv. Orgs., Inc. v.

17 Camp, 397 U.S. 150, 153 (1970). The “‘zone of interests’ test is ‘not meant to be

18 especially demanding,’ and a court should deny standing only ‘if the plaintiff’s interests

19 are so marginally related to or inconsistent with the purposes implicit in the statute that it

20 cannot reasonably be assumed that Congress intended to permit the suit.’” Cetacean, 386

21 F.3d at 1177 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987)). The

22 “benefit of any doubt goes to the plaintiff.” Match-E-Be-Nash-She-Wish Band of

23 Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012). Under this standard, it is

24 arguable that those applying for immigration benefits fall within the zone of interests of

25 the statute that sets forth the requirements for obtaining those benefits. Accordingly,

26 Defendants’ motion to dismiss Plaintiffs’ Claim Seven is DENIED.

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1

7. Claim Eight

2

Defendants move the Court to dismiss Plaintiffs’ Claim Eight—that CARRP is a

3 final agency action that is arbitrary and capricious and in violation of the INA and

4 USCIS’s statutory authority—for failure to state a claim because it does not relate to a

5 final agency action. (Dkt. No. 56 at 29.)

6

Under the APA, for an agency action to be reviewable, it must be final. 5 U.S.C. §

7 704. An action is final if it (1) “mark[s] the ‘consummation’ of the agency’s decision-

8 making process,” and (2) is “one by which ‘rights or obligations have been determined,’

9 or from which ‘legal consequences will flow.’” Bennet v. Spear, 520 U.S. 154, 178

10 (1997) (quoting Port of Boston Marine Terminal Ass’n. v. Rederiaktiebolaget

11 Transatlantic, 400 U.S. 62, 71 (1970)).

12

Defendants argue that “the CARRP handling process” and the delays caused by

13 CARRP are not final agency actions. However, Defendants again misrepresent Plaintiffs’

14 claim. Plaintiffs allege that CARRP—the policy itself—is a final agency action, “not any

15 one applicant’s adjudication thereunder.” (Dkt. No. 58 at 30; Dkt. No. 47 at ¶ 280.) The

16 Court therefore analyzes whether the overall CARRP policy, its inception and

17 implementation, constitutes final agency action under the Bennet test.

18

Plaintiffs allege that USCIS initiated CARRP in 2008, and since that time, it has

19 been responsible for delaying and denying thousands of immigration applications. (See

20 Dkt. No. 47 at ¶¶ 55–97.) The first prong is met because CARRP is an active program

21 implemented by the agency and represents the culmination of USCIS’s decision making

22 process. The implementation of CARRP affects the thousands of applicants whose

23 qualified applications are allegedly indefinitely delayed or denied without explanation.

24 The second prong is met because this results in distinct legal consequences. The Court

25 therefore finds that CARRP is a final agency action. Defendants’ motion to dismiss

26 Claim Eight is DENIED.

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1

8. Claim Nine

2

Finally, Defendants move to dismiss Plaintiffs’ Claim Nine—that CARRP was not

3 properly subjected to the notice-and-comment procedure—because it is not a substantive

4 or legislative rule. Under the APA, an agency may issue a “legislative rule” only by using

5 the APA’s notice-and-comment procedure. 5 U.S.C. § 553 (b), (c); Hemp Indus. Ass’n v.

6 DEA, 333 F.3d 1082, 1087 (9th Cir. 2003). Failure to implement the notice-and-comment

7 procedure invalidates the resulting regulation. See Paulsen v. Daniels, 413 F.3d 999,

8 1008 (9th Cir. 2005). Exempt from this rule, however, are “interpretive rules, general

9 statements of policy, or rules of agency organization, procedure or practice.” 5 U.S.C.

10 § 553(b)(3)(A); Mora-Meraz v. Thomas, 601 F.3d 933, 939 (9th Cir. 2010). Defendant’s

11 motion to dismiss Claim Nine therefore turns on whether CARRP is classified as an

12 interpretive rule or substantive rule.

13

“For purposes of the APA, substantive rules are rules that create law . . . imposing

14 general, extrastatutory obligations pursuant to authority properly delegated by Congress.”

15 S. Cal. Edison Co. v. F.E.R.C., 770 F.2d 779, 783 (9th Cir. 1985). On the other hand, “the

16 critical feature of interpretive rules is that they are ‘issued by an agency to advise the

17 public of the agency’s construction of the statutes and rules which it administers.’” Perez

18 v. Morg. Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015) (quoting Shalala v. Guernsey

19 Memorial Hospital, 514 U.S. 87, 99 (1995)). In the Ninth Circuit, a substantive or

20 legislative rule will be found “(1) when, in the absence of the rule, there would not be an

21 adequate legislative basis for enforcement action; (2) when the agency has explicitly

22 invoked its general legislative authority;[7] or (3) when the rule effectively amends a

23 prior legislative rule.” Hemp Indus., 333 F.3d at 1087 (citing Am. Mining Congress v.

24 Mine Safety & Health Admin., 995 F.2d 1106, 1109 (D.C. Cir. 1993)).

25

26 7 The parties agree that the second element does not apply here and the Court will not consider it.

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1

Defendants argue that the statutes and regulations already in place in the INA, 8

2 U.S.C. §§ 1255, 1357(b), 1423–1427, and 1429, “constitute an adequate legislative basis

3 for USCIS to undertake the procedural steps laid out by CARRP in the adjudication of

4 benefit applications.” (Dkt. No. 56 at 31.) The Court finds that the sections cited of the

5 INA do not support Defendants’ argument. For example, Defendants maintain that

6 because 8 U.S.C. § 1446(a) requires a “personal investigation of the person applying for

7 naturalization,” an adequate legislative basis for CARRP exists. (Dkt. No. 56 at 31.)

8 However Plaintiffs’ allegations suggest that CARRP goes well beyond a personal

9 investigation and instead “creates a separate substantive regime for immigration

10 application processing and adjudication.” (Dkt. No. 58 at 28; Dkt. No. 47 at ¶ 95.)

11 Plaintiffs allege that “[u]nder CARRP, non-statutory indicators of a national security

12 concern include travel through or residence in areas of known terrorist activity; a large

13 scale transfer or receipt of funds; a person’s employment, training, or government

14 affiliations . . . [;] or other suspicious activities.” (Dkt. No. 47 at ¶ 74.) Those indicators

15 alone may seem like reasonable considerations under a “personal investigation.”

16 However, the allegation that the presence of such an indicator therefore labels the

17 application as a “national security concern” and “forbids USCIS from granting the

18 requested benefit,” (id. at ¶ 92) and guides “officers to deny such applications . . . or

19 delay adjudication as long as possible,” (id. at 77), taken as true, transports CARRP into

20 the realm of the substantive.

21

Addressing the third part of the framework, Defendants argue that CARRP does

22 not amend a prior legislative rule but rather “is a process to vet cases with an articulable

23 link to national security concerns and to determine the proper adjudicative action to take

24 within statutory limits.” (Dkt. No. 56 at 32.) The Court disagrees. The INA already

25 contains indicators of national security concerns for those seeking lawful permanent

26 resident status, asylum, or a visa. 8 U.S.C. §§ 1182(a)(3)(A), (B), and (F), 1227(a)(4)(A)

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1 and (B). Taking Plaintiffs’ allegations as true, CARRP goes beyond these statutory

2 indicators. CARRP would therefore effectively amend a prior legislative rule.

3

Finally, the Court notes that because CARRP only came to light through litigation

4 and FOIA requests, (see Dkt. No. 47 at ¶ 59), its issuance cannot be said to be

5 interpretive because it “advise[d] the public of” nothing. See Perez, 135 S. Ct. at 1204.

6 Accordingly, the Court finds that Plaintiffs allege sufficient facts to support their claim

7 that CARRP is a substantive rule subject to the notice-and-comment procedure of the

8 APA. Defendants’ motion to dismiss Claim Nine is DENIED.

9

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN

10 PART Defendants’ motion to dismiss (Dkt. No. 56). It is granted in that Claim Four is

11 DISMISSED as to the Adjustment Class only. It is DENIED in all other respects.

12

9. Plaintiffs’ Amended Motion for Class Certification (Dkt. No. 49)

13

1. Legal Standard for Class Certification

14

A party seeking to litigate a claim as a class representative must affirmatively

15 satisfy the requirements of Federal Rule of Civil Procedure 23(a) and the requirements of

16 at least one of the categories under Rule 23(b). Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

17 338, 345 (2011); Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir. 2012). In

18 determining whether the plaintiffs have carried this burden, the Court must conduct a

19 “rigorous analysis.” General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982). This

20 inquiry may “entail some overlap with the merits of the plaintiff’s underlying claim[,]”

21 though the Court considers the merits only to the extent that they overlap with the

22 requirements of Rule 23 and allow the Court to determine the certification issue on an

23 informed basis. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011). The

24 ultimate decision to certify a class is within the Court’s discretion. Vinole v. Countrywide

25 Home Loans, Inc., 571 F.3d 935, 944 (9th Cir. 2009).

26

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1

2. Rule 23(a) Requirements

2

Rule 23(a) requires that one or more members of a class may sue as a

3 representative plaintiff only if (1) the class is so numerous that joinder is impracticable;

4 (2) there are common questions of law or fact to the class; (3) the claims or defenses of

5 representative parties are typical of those of the class; and (4) the representatives will

6 fairly and adequately protect the interests of the absent class members. Fed. R. Civ. P.

7 23(a); See also Mazza, 666 F.3d at 588 (Rule 23(a) requires “numerosity, commonality,

8 typicality and adequacy of representation”). Defendants contest certification on

9 commonality, typicality, and adequacy grounds. (Dkt. No. 60 at 13.) Because a rigorous

10 analysis is required regardless of a defendant’s opposition, the Court addresses each

11 requirement independently. However, the Court first addresses Defendants’ more general

12 opposition to class certification on standing grounds.

13

Defendants oppose class certification because “‘[a] named plaintiff cannot

14 represent a class alleging [] claims that the named plaintiff does not have standing to

15 raise.”’ (Id.) (quoting Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1238 (9th Cir.

16 2001). Defendants argue that the named Plaintiffs, and all proposed class members, lack

17 standing to challenge (1) CARRP, because “they have disclaimed any interest in

18 obtaining decisions on their pending applications, and (2) an “extreme vetting” program

19 under E.O. 13780, because they have not suffered an injury. (Id.)

20

As to the first argument, the Court has already concluded the Plaintiffs have

21 standing to challenge CARRP. See Section II(A)(2)(a) and (b), supra. Regarding any

22 “extreme vetting” program, Defendants are correct that Plaintiffs may not have not

23 suffered any injury because Plaintiffs are unaware if such program currently exists.

24 However, as discussed above, Plaintiffs’ allegations regarding an “extreme vetting”

25 program safeguard against the Government doing away with CARRP and reinstituting a

26 substantially similar program under a different name, either in an effort to moot

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1 Plaintiffs’ claims, or insulate CARRP from judicial review. See Section II(A)(2)(c),

2 supra. As Plaintiffs correctly point out, “[t]o the extent any ‘extreme vetting’ policy

3 developed pursuant to the Second EO expands or continues CARRP, it will suffer from

4 the same legal deficiencies as CARRP itself.” (Dkt. No. 49 at 13–14.) Thus, while the

5 Court cannot preemptively enjoin an “extreme vetting” program, it could enjoin CARRP.

6 If that happens, an “extreme vetting” program developed pursuant to E.O. 13780, which

7 suffers from the same legal deficiencies as CARRP, would violate this Court’s order.

8

a. Numerosity

9

Rule 23(a)’s first requirement is satisfied when the proposed class is sufficiently

10 numerous to make joinder of all members impracticable. Fed. R. Civ. P. 23(a)(1).8 The

11 numerosity requirement requires the examination of the specific facts of each case,

12 though “in general, courts find the numerosity requirement satisfied when a class

13 includes at least 40 members.” Rannis v. Recchia, 380 Fed. App’x 646, 651 (9th Cir.

14 2010); see also Troy v. Kehe Food Distribs., Inc., 276 F.R.D. 642, 652 (W.D. Wash.

15 2011) (certifying a class of 43 to 54 workers). Here, between July 1, 2013 and September

16 20, 2013, USCIS reported 2,644 pending applications subjected to CARRP. (Dkt. No. 27-

17 1 at 164–169.) The putative class likely contains thousands of members. (Dkt. No. 114 at

18 4; Dkt. No. 51 at 25.) The Court finds that the numerosity requirement is met.

19

b. Commonality

20

Under Rule 23(a)(2)’s commonality requirement, a plaintiff must demonstrate that

21 the “class members’ claims ‘depend upon a common contention’ such that ‘determination

22 of its truth or falsity will resolve an issue that is central to the validity of each claim in

23 one stroke.’” Mazza, 666 F.3d at 588 (quoting Dukes, 564 U.S. at 350). The key inquiry

24 is not whether the plaintiffs have raised common questions, but whether “class treatment

25 will ‘generate common answers apt to drive the resolution of the litigation.’” Abdullah v.

26 8 Defendants do not dispute numerosity. (See generally Dkt. No. 63.)

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1 U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir. 2013) (quoting Dukes, 564 U.S. at

2 350) (emphasis in original). Every question of law or fact need not be common to the

3 class. Rather, all Rule 23(a)(2) requires is “a single significant question of law or fact.”

4 Id. (quotation omitted); see also Meyer v. Portfolio Recovery Assocs., 707 F.3d 1036,

5 1041–42 (9th Cir. 2012). The existence of “shared legal issues with divergent factual

6 predicates is sufficient, as is a common core of salient facts coupled with disparate legal

7 remedies within the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.

8 1998) (amended).

9

Plaintiffs posit that their claims present numerous common factual and legal

10 issues, including whether:

11

• CARRP violates the INA by creating additional, non-statutory, substantive

12

criteria that must be met prior to a grant of immigration benefits;

• CARRP violates the APA as a final agency action that is arbitrary and

13

capricious, exceeds statutory authority, and violates the Constitution;

14

• CARRP constitutes a substantive rule and is therefore unenforceable for failure

to provide a notice-and-comment period prior to implementation;

15

• CARRP violates the Uniform Rule of Naturalization, Article I, Section 8,

16

Clause 4 of the Constitution; and • CARRP violates the Due Process Clause of the Fifth Amendment.

17 (Dkt. No. 49 at 19–20.)

18

Defendants argue that “[a]t the heart of this case is the allegation that USCIS has

19 unreasonably delayed adjudicating” immigration applications and resolution of this

20 allegation requires a “fact-intensive, individualized inquiry into the causes of the delay in

21 each case.” (Dkt. No. 60 at 15.) This is incorrect. Plaintiffs’ claim is that CARRP is an

22 unlawful program. A byproduct of CARRP’s alleged unlawful program is unreasonable

23 delays.

24

The common question here is whether CARRP is lawful. The answer is “yes” or

25 “no.” The answer to this question will not change based on facts particular to each class

26 member, because each class member’s application was (or will be) subjected to CARRP.

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1 Therefore, “a classwide proceeding” will “generate common answers apt to drive the

2 resolution of the litigation.” See Troy, 276 F.R.D. at 652–53. The commonality

3 requirement is met.

4

c. Typicality

5

Plaintiffs must next show that their claims are typical of the class. Fed. R. Civ. P.

6 23(a)(3). “The test of typicality ‘is whether other members have the same or similar

7 injury, whether the action is based on conduct which is not unique to the named

8 Plaintiffs, and whether other class members have been injured by the same course of

9 conduct.’” Ellis, 657 F.3d at 984 (internal quotation omitted). The commonality and

10 typicality inquiries, which “tend to merge,” both serve as “guideposts for determining

11 whether under the particular circumstances maintenance of a class action is economical

12 and whether the named plaintiff’s claim and the class claims are so interrelated that the

13 interests of the class members will be fairly and adequately protected in their absence.”

14 Dukes, 131 S. Ct. at 2551, n.5 (quotations and citation omitted). Ultimately,

15 representative class claims are typical if they are “reasonably co-extensive with those of

16 absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at

17 1020; see also Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 2010) (noting the

18 “permissive” nature of the typicality inquiry).

19

Plaintiffs maintain that their claims are typical of the proposed classes because

20 “they proceed under the same legal theories, seek the same relief, and have suffered the

21 same injuries.” (Dkt. No. 49 at 21.) Defendants counter that because the named Plaintiffs

22 allege they are fully eligible for the benefits they seek, and the same cannot be said for

23 every member of the class, the named Plaintiffs are atypical of the class they seek to

24 represent. (Dkt. No. 60 at 21.) However, Rule 23(a)(3) requires that the claims of class

25 representatives be similar to claims of the class. Plaintiffs are not seeking specific

26 adjudication of their applications, only that USCIS adjudicate applications “based solely

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1 on the statutory criteria,” and not pursuant to CARRP. (Dkt. No. 47 at 51.) Whether any

2 particular Plaintiff or putative class member were statutorily eligible for the benefits

3 sought is not determinative of typicality. Further, if an applicant were statutorily

4 ineligible under the INA, then submitting such an application to CARRP would be

5 redundant, and grounds for denial already exist.

6

The relevant claim for the typicality inquiry is whether subjecting a Plaintiff’s

7 immigration application to CARRP is lawful. The class definitions include only

8 immigration benefit applicants whose applications have been submitted to CARRP.

9 Defendants do not claim that any of the proposed class representatives did not have their

10 application submitted to CARRP. Accordingly, the typicality requirement is met.

11

d. Adequacy

12

Finally, Rule 23(a)(4) requires that the named plaintiff “fairly and adequately”

13 protect the interests of the class. Fed. R. Civ. P. 23(a)(4). To determine whether the

14 representative parties will adequately represent a class, the Court must examine (1)

15 whether the named plaintiff and her counsel have any conflicts of interest with other class

16 members; and (2) whether the named plaintiff and her counsel will prosecute the action

17 vigorously on behalf of the class. Ellis, 657 F.3d at 985 (citing Hanlon, 150 F.3d at

18 1020). As the Ninth Circuit has noted, adequate representation depends upon “an absence

19 of antagonism between representatives and absentees[] and a sharing of interest between

20 representatives and absentees.” Ellis, 657 F.3d at 985 (quotations and citation omitted).

21

Plaintiffs contend that the five named Plaintiffs are adequate representatives

22 because “there is no tension between their interests and those of the absent class members

23 they seek to represent.” (Dkt. No. 63 at 11.) The class members’ interests all focus on

24 challenging CARRP and preventing it from being applied to their or other class

25 members’ immigration applications. Further, the named Plaintiffs are all willing to

26 prosecute this action vigorously. (Dkt. Nos. 28, 29, 50, 51, and 52.)

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1

Defendants contest adequacy on three grounds. First, Defendants argue that the

2 named Plaintiffs are inadequate representatives because there may be many putative class

3 members who are aware that their applications have been pending a long time, and who

4 would prefer to let the process “run its course.” (Dkt. No. 60 at 22.) This ignores the fact

5 that this lawsuit alleges that applicants do not receive notification that their application

6 has been submitted to CARRP, and Defendants have yet to deny such a claim.

7 Defendants presume that there are potential plaintiffs who applied for immigration

8 benefits but “might prefer to allow their applications to remain pending, continuing to

9 live and work in the United States in their current status, rather than risk having USCIS

10 determine they are inadmissible or removable and be placed in removal proceedings.”

11 (Id.) This argument is speculative at best, and as such, fails.

12

Second, Defendants repeat their argument regarding the fact that the named

13 Plaintiffs all claim to be eligible for the benefits they seek, and this would put them at

14 odds with putative class members who are ineligible. (Id. at 22–23.) The Court addressed

15 this argument above and applies the same reasoning here. Additionally, the Court sees no

16 basis for conflict on underlying eligibility grounds. If CARRP is an unlawful and

17 unconstitutional program to which all putative class members’ applications are submitted,

18 then they all have a shared interest—regardless of eligibility—in putting an end to it.

19

Finally, Defendants argue that the named Plaintiffs are inadequate representatives

20 because they have all had their applications adjudicated, and thus their claims are moot.

21 (Dkt. No. 60 at 24.) However, this argument has the opposite effect and actually

22 persuades the Court that class certification is appropriate.

23

Each named Plaintiff had his or her application acted on almost immediately after

24 joining this lawsuit. Assuming that this was merely CARRP and the application process

25 running its due course and that Plaintiffs’ ultimate adjudications happened to coincide

26 with being added as named Plaintiffs—even after their applications lay stagnant for up to

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1 four years—class certification would still be appropriate. Defendants’ argument supports

2 the conclusion that Plaintiffs’ claims would appear to be “so inherently transitory that the

3 trial court will not have even enough time to rule on a motion for class certification

4 before the proposed representative’s individual interest expires.” County of Riverside v.

5 McLaughlin, 500 U.S. 44. 52 (1991) (internal citation omitted). The named Plaintiffs’

6 claims are therefore “capable of repetition, yet evading review.” Pitts v. Terrible Herbst,

7 Inc., 653 F.3d 1081, 1091 (9th Cir. 2011) (citing Gerstein v. Pugh, 420 U.S. 103, 110

8 n.11 (1975)). In such a case, “mooting the putative class representative’s claims will not

9 necessarily moot the class action” even if “the district court has not yet addressed the

10 class certification issue.” Id. at 1090.

11

On the other hand, if adjudication of Plaintiffs’ applications is not happenstance,

12 and Defendants are purposely and strategically adjudicating Plaintiffs’ applications as

13 they are added as named Plaintiffs, such a blatant attempt to moot Plaintiffs’ claims will

14 not gain purchase with this Court. If this is true, Defendants appear to be engaging in a

15 strategy of picking off named Plaintiffs to insulate CARRP from meaningful judicial

16 review.

17

Such a strategy is apparently not without precedent. In Muhanna v. USCIS, No.

18 14-cv-05995 (C.D. Cal. July 31, 2014), five individual plaintiffs filed suit challenging

19 CARRP. After waiting years for adjudication, all five plaintiffs’ applications were

20 adjudicated within months of filing suit, and the lawsuit was voluntarily dismissed as

21 moot. Id., Dkt. No. 51 (entered Dec. 23, 2014). Similarly, in Arapi v. USCIS, No. 16-cv-

22 00692 (E.D. Mo. 2016), 20 individuals filed suit regarding CARRP and their pending

23 naturalization applications. Soon after, USCIS adjudicated all 20 applications, at which

24 point 19 plaintiffs voluntarily dismissed their claims and USCIS moved to dismiss the

25 final plaintiff’s claim as moot. Id., Dkt. No. 22 (filed Dec. 19, 2016).

26

Defendants’ argument that the mooting of named Plaintiffs’ claims requires a

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1 finding that they are inadequate representatives, thus defeating class certification, does

2 not have the desired effect. In fact, it counsels in favor of granting class certification. See

3 Ellsworth v. U.S. Bank, N.A., 30 F. Supp. 3d 886, 909 (N.D. Cal. 2014) (defendant’s

4 “calculated strategy that includes picking off named Plaintiffs” did not moot class action

5 claims); Ramirez v. Trans Union, LLC, 2013 WL 3752591, at *2 (N.D. Cal. July 17,

6 2013) (class certification appropriate where plaintiff’s claims would “evade review” if

7 the defendant were able to “pick off” each subsequent lead plaintiff).

8

Furthermore, despite their applications having been adjudicated by USCIS, the

9 Court remains confident that the named Plaintiffs will “fairly and adequately protect the

10 interests of the class.” Fed. R. Civ. P. 23(a)(4). The Court further finds that Plaintiffs’

11 counsel—attorneys from the ACLU, Law Offices of Stacy Tolchin, National Immigration

12 Project of the National Lawyers Guild, Northwest Immigrant Rights Project, and Perkins

13 Coie—have the experience and ability to vigorously and adequately represent the class.

14 The adequacy requirement is met.

15

3. Rule 23(b)(2) Requirement

16

After satisfying the Rule 23(a) prerequisites, a plaintiff must also demonstrate that

17 the case is maintainable as a class action under one of the three Rule 23(b) prongs.

18 Plaintiffs move for class certification under Rule 23(b)(2). (Dkt. No. 49 at 23.) In order to

19 satisfy Rule 23(b)(2), Defendants must “ha[ve] acted or refused to act on grounds that

20 apply generally to the class, so that final injunctive relief or corresponding declaratory

21 relief is appropriate respecting the class as a whole.” Rule 23(b)(2) is met where “a single

22 injunction or declaratory judgment would provide relief to each member of the class.”

23 Dukes, 564 U.S. at 360.

24

Here, Plaintiffs allege that CARRP is unlawful and ask the Court to enjoin the

25 Government from submitting putative class members’ immigration applications to

26 CARRP. A single ruling would therefore provide relief to each member of the class.

ORDER PAGE - 30

Case 2:17-cv-00094-RAJ Document 69 Filed 06/21/17 Page 31 of 31

1 Accordingly, Rule 23(b)(2) is satisfied.

2

Having satisfied the requirements of Federal Rules of Civil Procedure 23(a) and

3 23(b)(2), Plaintiffs’ motion for class certification (Dkt. No. 49) is GRANTED. The Court

4 approves of the two proposed classes, appoints the five named Plaintiffs as class

5 representatives, and appoints Plaintiffs’ counsel as class counsel for both classes.

6 Because certification of anything less than a nationwide class would run counter to the

7 constitutional imperative of “a uniform Rule of Naturalization,” U.S. CONST., art. I, § 8,

8 cl. 4, class certification is nationwide.

9 III. CONCLUSION

10

For the foregoing reasons, Defendants’ motion to dismiss (Dkt. No. 56) is

11 GRANTED IN PART and DENIED IN PART, and Plaintiffs’ motion for class

12 certification (Dkt. No. 49) is GRANTED.

13

14

DATED this 21st day of June, 2017.

15

16

17 18

A

19

The Honorable Richard A. Jones

United States District Judge

20

21

22

23

24

25

26

ORDER PAGE - 31

 
 Case 2:17-cv-00094-RAJ Document 49 Filed 04/10/17 Page 1 of 29

1

THE HONORABLE JOHN C. COUGHENOUR

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 8

9 ABDIQAFAR WAGAFE, MEHDI
OSTADHASSAN, HANIN OMAR 10 BENGEZI, MUSHTAQ ABED JIHAD,
and SAJEEL MANZOOR, on behalf of 11 themselves and others similarly situated,

12

Plaintiffs,

No. 2:17-cv-00094-JCC
FIRST AMENDED MOTION FOR CLASS CERTIFICATION

13

v.

14 DONALD TRUMP, President of the
United States; UNITED STATES 15 CITIZENSHIP AND IMMIGRATION
SERVICES; JOHN F. KELLY, in his 16 official capacity as Secretary of the U.S.
Department of Homeland Security; LORI 17 SCIALABBA, in her official capacity as
Acting Director of the U.S. Citizenship and 18 Immigration Services; MATTHEW D.
EMRICH, in his official capacity as 19 Associate Director of the Fraud Detection
and National Security Directorate of the 20 U.S. Citizenship and Immigration Services;
DANIEL RENAUD, in his official 21 capacity as Associate Director of the Field
Operations Directorate of the U.S. 22 Citizenship and Immigration Services,

NOTED FOR MAY 19, 2017 ORAL ARGUMENT REQUESTED

23

Defendants.

24

25

26

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1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION ............................................................................................................. 1

4 II. 5

BACKGROUND ............................................................................................................... 4 A. The CARRP Policy ................................................................................................ 4 B. Plaintiffs’ Legal Claims ......................................................................................... 6

6

C. President Trump’s Promise for More “Extreme” Vetting ..................................... 7

7 III.
8

D. CARRP Has Delayed Named Plaintiffs’ Applications. ......................................... 8 ARGUMENT ................................................................................................................... 11 A. The Action Satisfies the Class Certification Requirements of Rule 23(a)........... 12

9

1. The Proposed Class Members Are So Numerous That Joinder Is

Impracticable............................................................................................ 12

10

2. This Case Presents Questions of Law and Fact Common to the

11

Members of the Classes. .......................................................................... 13

3. The Claims of the Named Plaintiffs Are Typical of the Claims of

12

the Members of the Proposed Classes. .................................................... 15

13

4. The Named Plaintiffs Will Adequately Protect the Interests of the Proposed Classes, and Counsel Are Qualified to Litigate this

14

Action....................................................................................................... 16

a. Named Plaintiffs .......................................................................... 16

15

b. Counsel ........................................................................................ 17

16

B. This Action Satisfies the Requirements of Rule 23(b)(2).................................... 17

17

C. Class Certification Is Also Warranted to Prevent Defendants from Avoiding Adjudication of the Legality of CARRP.............................................. 19

18 IV. CONCLUSION................................................................................................................ 21

19

20

21

22

23

24

25

26

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1

TABLE OF AUTHORITIES

2

CASES 3

A.B.T. v. U.S. Citizenship and Immigration Services,

4

2013 WL 5913323 (W.D. Wash. Nov. 4, 2013) ......................................................................11

5 ACLU of Southern California v. USCIS,

6

No. CV 13-861 (D.D.C. filed June 7, 2013) ..............................................................................6

7 Ali v. Ashcroft,

213 F.R.D. 390 (W.D. Wash. 2003), aff’d, 346 F.3d 873 (9th Cir. 2003),

8

vacated on other grounds, 421 F.3d 795 (9th Cir. 2005) ............................................11, 12, 13

9 Arapi v USCIS,

10

No. 16-cv-00692 JLR (E.D. Mo. 2016) .............................................................................19, 20

11 Brown v. Holder, 763 F.3d 1141 (9th Cir. 2014) ...................................................................................................7

12 Cervantez v. Celestica Corp.,

13

253 F.R.D. 562 (C.D. Cal. 2008) .............................................................................................12

14 County of Riverside v. McLaughlin,

15

500 U.S. 44 (1991)...................................................................................................................19

16 Crawford v. Honig, 37 F.3d 485 (9th Cir. 1994) .....................................................................................................16

17 Ellis v. Costco Wholesale Corp.,

18

657 F.3d 970 (9th Cir. 2011) .....................................................................................................4

19 Ellsworth v. U.S. Bank, N.A., 30 F. Supp. 3d 886, 909 (N.D. Cal. 2014) ...............................................................................20
20

21

Gerstein v. Pugh, 420 U.S. 103 (1975).................................................................................................................19

22 Gete v. INS,

23

121 F.3d 1285 (9th Cir. 1997) .................................................................................................11

24 Gorbach v. Reno,

181 F.R.D. 642 (W.D. Wash. 1998), aff’d on other grounds, 219 F.3d 1087

25

(9th Cir. 2000) (en banc)....................................................................................................11, 18

26

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1 Hamdi v. USCIS, No. EDCV 10-894, 2012 WL 632397 (C.D. Cal. Feb. 25, 2012) .............................................5
2

3

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) .................................................................................................15

4 Hanon v. Dataproducts Corp.,

5

976 F.2d 497 (9th Cir. 1992) ...................................................................................................15

6 Hawaii, et al. v. Trump, No. 1:17-cv-50-KSC (D. Haw.) .................................................................................................7
7

8

Hawaii et al. v. Trump, No. 17-00050 DKW-DSC, ECF 270 (D. Haw. Mar. 29, 2017).................................................4

9 Hawaii, et al. v. Trump,

10

No. 17-15589 (9th Cir.) .............................................................................................................7

11 Internat’l Refugee Assistance Project v. Trump,

No. 17-1351 (4th Cir.) ...............................................................................................................7 12

Internat’l Refugee Assistance Project v. Trump,

13

No. 8:17-cv-361-TDC (D. Md.).................................................................................................7

14 Judulang v. Holder,

15

565 U.S. 42 (2011).....................................................................................................................6

16 Lynch v. Rank,

604 F. Supp. 30 (N.D. Cal. 1984), aff’d 747 F.2d 528 (9th Cir. 1984),

17

amended on rehearing, 763 F.2d 1091 (9th Cir. 1985) ...........................................................17

18 Mazza v. Am. Honda Motor Co., Inc.,

19

666 F.3d 581 (9th Cir. 2012) ...................................................................................................13

20 Mendez Rojas, et al. v. Johnson, et al., 2:16-cv-1024-RSM, ECF 37 (W.D. Wash. Jan. 10, 2017) ......................................................11

21 Muhanna v. USCIS,

22

No. 14-cv-05995 (C.D. Cal. July 31, 2014).............................................................................19

23 Parsons v. Ryan,

24

754 F.3d 657 (9th Cir. 2014) .......................................................................................13, 15, 18

25

Perez-Funez v. District Director, Immigration & Naturalization Service, 611 F. Supp. 990 (C.D. Cal. 1984) ..........................................................................................12

26

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1 Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011) ...........................................................................................19, 20
2

3

Ramirez v. Trans Union, LLC, No. 3:12-CV-00632 (JSC), 2013 WL 3752591 (N.D. Cal. July 17, 2013...............................21

4 Rodriguez v. Hayes,

5

591 F.3d 1105 (9th Cir. 2010) ...........................................................................................16, 18

6 Roshandel v. Chertoff, 554 F. Supp. 2d 1194 (W.D. Wash. 2008)...............................................................................11
7

8

Santillan v. Ashcroft, No. C 04–2686, 2004 WL 2297990 (N.D. Cal. Oct. 12, 2004) ...............................................11

9 Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co.,

10

559 U.S. 393 (2010).................................................................................................................11

11 Stockwell v. City & County of San Francisco,

749 F.3d 1107 (9th Cir. 2014) .................................................................................................14 12

Troy v. Kehe Food Distribs., Inc.,

13

276 F.R.D. 642 (W.D. Wash. 2011) ........................................................................................15

14 United States v. Gonzales & Gonzales Bonds & Ins. Agency, Inc.,

15

728 F. Supp. 2d 1077 (N.D. Cal. 2010) .....................................................................................6

16 Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011).......................................................................................................4, 15, 17

17

Walters v. Reno,

18

145 F.3d 1032 (9th Cir. 1998) ...........................................................................................16, 18

19 Walters v. Reno,

20

No. C94–1204C, 1996 WL 897662 (W.D. Wash. 1996), aff’d, 145 F.3d 1032

(9th Cir. 1998), cert. denied, Reno v. Walters, 526 U.S. 1003 (1999).....................................11

21 Washington v. Trump,

22

No. 2:17-cv-00141-JLR, ECF 52, 2017 WL 462040 (W.D. Wash. Feb. 3,

2017), emergency motion to stay denied 847 F.3d 1151 (9th Cir. 2017) ..................................4 23

24 STATUTES

25 5 U.S.C. § 553................................................................................................................................14

26 5 U.S.C. §§ 553(b)-(c) .................................................................................................................5, 6

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1 5 U.S.C. § 706................................................................................................................................13

2 5 U.S.C. § 706(2)(A)........................................................................................................................6
3 8 U.S.C. § 1159................................................................................................................................6
4 8 U.S.C. § 1427................................................................................................................................6 5
RULES 6
Fed. R. Civ. P. 23 ...........................................................................................................................11 7
Fed. R. Civ. P. 23(a) .............................................................................................................. passim 8
Fed. R. Civ. P. 23(a)(1)..................................................................................................................12 9 10 Fed. R. Civ. P. 23(a)(3)..................................................................................................................15
11 Fed. R. Civ. P. 23(a)(4)..................................................................................................................16
12 Fed. R. Civ. P. 23(b) ................................................................................................................11, 17
13 Fed. R. Civ. P. 23(b)(2)................................................................................................11, 17, 18, 21

14 REGULATIONS

15 8 C.F.R. § 209.1 ...............................................................................................................................6

16 8 C.F.R. § 335.3 ...............................................................................................................................6
17 8 C.F.R. § 335.3(a)...........................................................................................................................6
18 82 Fed. Reg. 8977 ....................................................................................................................1, 3, 7
19 82 Fed. Reg. 13209 ..................................................................................................................1, 3, 7
20 OTHER AUTHORITIES
21 U.S. Const. amend. V.............................................................................................................7, 8, 14
22 U.S. Const. art. I, § 8, cl. 4.........................................................................................................7, 18
23

24

25

26

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1
I. INTRODUCTION 2
Plaintiffs Abdiqafar Wagafe, Mehdi Ostadhassan, Hanin Omar Bengezi, Mushtaq 3
Abed Jihad, and Sajeel Manzoor (“Plaintiffs”) are five of thousands of individuals whose 4
immigration applications have been delayed, or denied altogether, because of a secret and 5
unlawful government vetting program that targets applicants who are Muslim or from 6
certain Muslim-majority countries. In the wake of President Trump’s First and Second 7
Executive Orders 13769, 82 Fed. Reg. 8977, 8978-79 § 4 (“First EO”), and 13780, 82 8
Fed. Reg. 13209, 13215 §§ 4-5 (“Second EO”), both of which direct federal agencies to 9
develop additional extreme vetting standards and procedures for all immigration benefits, 10
this Court’s review of Defendants’ existing web of discriminatory and non-statutory 11
vetting programs is especially critical. 12
Plaintiff Wagafe is a Muslim, Somali national who meets all statutory 13
requirements to naturalize as a United States citizen. Despite his eligibility, and despite 14
the statutory timeline prescribed by Congress, Mr. Wagafe waited more than three and a 15
half years for a decision on his naturalization application. In an effort to moot Mr. 16
Wagafe’s individual claims and transfer this case to the District of North Dakota, just 17
days after Plaintiffs had filed their original motion for class certification Defendant U.S. 18
Citizenship and Immigration Services (“USCIS”) finally scheduled an interview for Mr. 19
Wagafe. Following the interview, USCIS approved Mr. Wagafe’s application and he 20
became a United States citizen on March 2, 2017. 21
Plaintiff Ostadhassan is a Muslim, Iranian national who meets all statutory 22
requirements to adjust his status to that of a lawful permanent resident (“LPR”). Despite 23
his eligibility, Mr. Ostadhassan waited over three years for a decision on his application. 24
On April 5, 2017, USCIS issued a Notice of Intent to Deny his I-485 Application to 25
Adjust Status. 26

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1

Plaintiff Bengezi is a Muslim, Libyan national and Canadian citizen who meets

2 all statutory requirements to adjust her status to that of a LPR. Despite her eligibility,

3 Ms. Bengezi has been waiting for over two years for a decision on her pending

4 application.

5

Plaintiff Jihad is a Muslim, Iraqi national who meets all statutory requirements to

6 naturalize as a United States citizen. Despite his eligibility, Mr. Jihad has been waiting

7 over three and a half years for a decision on his pending naturalization application.

8

Plaintiff Manzoor is a Muslim, Pakistani national who meets all statutory

9 requirements to naturalize as a United States citizen. Despite his eligibility, Mr. Manzoor

10 has been waiting over one year for a decision on his pending naturalization application.

11

All Plaintiffs, and thousands of applicants like them, face such inordinate and

12 unexplained delays because Defendant USCIS diverted their applications to an

13 undisclosed and unauthorized program known as the Controlled Application Review and

14 Resolution Program (“CARRP”). Congress did not enact or approve CARRP.

15

Through CARRP, the government surreptitiously blacklists thousands of

16 applicants who are seeking immigration benefits, labeling them “national security

17 threats.” Such designations are often based on flimsy and unreliable factors. Once so

18 designated, CARRP mandates immigration officials delay indefinitely, or outright deny,

19 affected applications, even when the applicant is statutorily eligible to have his or her

20 application granted. Relying on CARRP, immigration officials simply disregard

21 governing statutory criteria for certain classes of applicants—most frequently applicants

22 who are Muslim or are perceived to be Muslim—and instead adjudicate those

23 applications pursuant to a process that applies heightened, generally insurmountable

24 criteria to anyone caught in CARRP’s dragnet. As Plaintiffs explain more fully in their

25 Second Amended Complaint, CARRP and the manner in which it is being applied are

26 illegal. Not only did USCIS not provide the required public notice and opportunity to

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1 comment before creating the program, but once in place, the program violates the

2 Constitution, the Immigration and Nationality Act (“INA”), and the Administrative

3 Procedure Act (“APA”).

4

Thousands of individuals, including Plaintiffs, have had their applications for

5 naturalization or adjustment of status halted, delayed, or denied by CARRP. A class

6 action lawsuit is appropriate to challenge CARRP and any other successor “extreme

7 vetting” program that the Executive branch may seek to implement pursuant to Sections 4

8 and 5 of the Second EO or through other extra-statutory means. Pursuant to Rules 23(a)

9 and 23(b)(2) of the Federal Rules of Civil Procedure, Plaintiffs Wagafe, Jihad, and

10 Manzoor respectfully request that the Court certify the following class, and appoint them

11 as class representatives:

12

A national class of all persons currently and in the future (1) who

have or will have an application for naturalization pending before

13

USCIS, (2) that is subject to CARRP or a successor “extreme

vetting” program, and (3) that has not been or will not be

14

adjudicated by USCIS within six months of having been filed.

15 Similarly, Plaintiffs Ostadhassan and Bengezi request that the Court, pursuant to Rules

16 23(a) and 23(b)(2), certify the following class and appoint them as class representatives:

17

A national class of all persons currently and in the future (1) who

have or will have an application for adjustment of status pending

18

before USCIS, (2) that is subject to CARRP or a successor

“extreme vetting” program, and (3) that has not been or will not be

19

adjudicated by USCIS within six months of having been filed.

20

Undersigned counsel are experienced in both class action and immigration matters, and

21 Plaintiffs request that they be appointed as class counsel for both classes.1

22
1 Plaintiffs filed an amended complaint on February 1, 2017, to assert additional claims and an
23 additional class (“Muslim Ban Class”), relating to the effect of Section 3(c) of the First EO. Dkt. 17. On
April 4, 2017, Plaintiffs filed a Second Amended Complaint, which preserves the assertion of this Muslim
24 Ban Class relating to the effect of Section 2(c) of the Second EO. Dkt. 47. Plaintiffs do not seek
certification of this additional class at this time because, after the filing of the First Amended Complaint,
25 the Acting Director of USCIS issued a memorandum indicating that Section 3(c) of the First EO would no
longer operate to stop the processing of immigration benefits for those already in the United States. See
26 generally Notice Regarding Related Cases (Dkt. 22). And, in any event, Section 3(c) of the First EO and
the corresponding Section 2(c) of the Second EO have since been more broadly enjoined. Temporary

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1

II. BACKGROUND

2

Although the Court need not engage in “an in-depth examination of the underlying

3 merits” at this stage, it may analyze the merits to the extent necessary to determine the propriety

4 of class certification. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n.8 (9th Cir. 2011); see 5 also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-52 (2011). For that reason, Plaintiffs 6 provide a brief discussion of their claims relating to CARRP here. The claims are further 7 described in the Second Amended Complaint (Dkt. 47).

8 A. 9

The CARRP Policy USCIS created CARRP in April 2008. Declaration of Jennie Pasquarella, Dkt. 27

10 (“Pasquarella Decl.”), Ex. A (4/11/2008 policy memorandum introducing CARRP). Ostensibly,

11 it is an agency-wide program for processing immigration applications that allegedly may 12 implicate “national security concerns.” Id. But the criteria used to determine whether a 13 particular applicant implicates national security are vague and overbroad. They often turn on an

14 applicant’s national origin or otherwise lawful activities (such as living or traveling in areas of

15 known terrorist activity), thereby ensnaring thousands of individuals who pose no threat to the

16 United States. Worse still, CARRP’s criteria for what constitutes a “national security concern”

17 are untethered from the statutory criteria, including statutory criteria that are expressly security-

18 related, that Congress enacted to determine whether a person is eligible for the immigration

19 status he or she seeks.

20

Any immigration application that falls within CARRP’s broad scope is immediately, and

21 without any notice to the applicant, taken off the “routine adjudication” track and placed on a

22 CARRP adjudication track, where it is subject to distinct procedures and criteria not authorized

23

24 Restraining Order, Washington v. Trump, No. 2:17-cv-00141-JLR, ECF 52, 2017 WL 462040 (W.D. Wash.
Feb. 3, 2017), emergency motion to stay denied 847 F.3d 1151 (9th Cir. 2017); Order Granting Motion for
25 Temporary Restraining Order, Hawaii et al. v. Trump, No. 17-00050 DKW-KSC, ECF 219 (D. Haw. Mar.
15, 2017); Order Granting Motion to Convert Temporary Restraining Order to a Preliminary Injunction,
26 Hawaii et al. v. Trump, No. 17-00050 DKW-DSC, ECF 270 (D. Haw. Mar. 29, 2017). Plaintiffs reserve
the right to seek certification of the additional class if circumstances change again.

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1 by statute. An application will languish in CARRP indefinitely unless and until the alleged

2 national security concern no longer is present. Indeed, even if an individual otherwise meets all

3 the statutory criteria of eligibility for the benefits he or she seeks, USCIS officers are instructed

4 that they cannot approve the application so long as the “national security concern” remains. See

5 Pasquarella Decl., Ex. A at (“Officers are not authorized to approve applications” subject to

6 CARRP); id., Ex. B (7/26/2011 policy memorandum revising CARRP procedures) at 2 (an

7 officer “is not authorized to approve applications or petitions” subject to CARRP).

8

Once an application is saddled with the “national security concern” tag, the next step in

9 the CARRP process is called an “Eligibility Assessment.” But far from trying to determine

10 eligibility during the Eligibility Assessment process, the officer is encouraged to find any reason

11 to deny the application outright so that “time and resources” are not spent determining whether

12 there was any basis for the national security concern in the first place. Pasquarella Decl., Ex. A

13 at 5; see also id., Ex. C (1/2012 CARRP training presentation) at 52-59, 68 (providing “tips” on

14 how to find an applicant ineligible). CARRP essentially creates a presumption of guilt that

15 becomes difficult, if not impossible, to rebut.

16

The thousands of persons labeled as national security concerns based on CARRP’s broad

17 and vague criteria receive no notice of that determination, much less an opportunity to disprove

18 it. As a result, their applications are effectively denied through indefinite delay. At no point are

19 applicants told about the decision to subject their applications to CARRP, even though the

20 decision to do so is often dispositive. Nor are applicants ever given the opportunity to contest

21 the government’s labeling of them as a national security threat.

22

Congress did not enact CARRP, nor did USCIS promulgate it as a proposed rule with the

23 notice-and-comment procedures that the APA mandates. See 5 U.S.C. §§ 553(b)-(c). On the

24 contrary, USCIS takes steps to deliberately keep the existence of CARRP a secret. The program

25 was only discovered through litigation challenging a denial of naturalization in Hamdi v. USCIS,

26 No. EDCV 10-894 VAP (DTBx), 2012 WL 632397 (C.D. Cal. Feb. 25, 2012), and then revealed

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1 in greater detail through the government’s response to Freedom of Information Act (“FOIA”)

2 requests and litigation to compel responses to those requests. See ACLU of Southern California

3 v. USCIS, No. CV 13-861 (D.D.C. filed June 7, 2013).

4 B. Plaintiffs’ Legal Claims

5

On its face and as applied to Plaintiffs, CARRP violates federal law and the Constitution.

6 First, CARRP violates the INA, which sets forth exclusive statutory and regulatory criteria

7 governing applications for naturalization and adjustment of status. See 8 U.S.C. § 1427 and

8 8 C.F.R. §§ 316.2 and 335.3 (criteria for naturalization); 8 U.S.C. §§ 1255 and 1159, and 8

9 C.F.R. §§ 245.1 and 209.1 (criteria for adjustment of status). In fact, federal regulations provide

10 that if an applicant has complied with all requirements for naturalization, USCIS “shall grant the

11 application.” 8 C.F.R. § 335.3(a) (emphasis added). But under CARRP, even when applicants

12 meet all the criteria for naturalization, USCIS will delay or deny their applications based on

13 criteria unrelated to the statute. By imposing such additional requirements and unauthorized

14 impediments for naturalization and adjustment of status, CARRP violates the INA.

15

CARRP also violates the APA. First, because CARRP is a final agency action that

16 “neither focuses on nor relates to a [non-citizen’s] fitness to” obtain the immigration status

17 subject to its terms, Judulang v. Holder, 565 U.S. 42, 55 (2011), it is arbitrary and capricious

18 under 5 U.S.C. § 706(2)(A). Second, CARRP violates the APA’s requirement that

19 administrative agencies provide a notice-and-comment period prior to implementing a

20 substantive agency rule. 5 U.S.C. § 553(b), (c). CARRP is fairly characterized as a substantive

21 rule, and therefore is subject to the APA’s notice-and-comment rulemaking procedures, because

22 it imposes extra-statutory eligibility criteria that effectively alter applicants’ ability to naturalize

23 or obtain legal permanent residency. See United States v. Gonzales & Gonzales Bonds & Ins.

24 Agency, Inc., 728 F. Supp. 2d 1077, 1084 (N.D. Cal. 2010).

25

Finally, CARRP violates several constitutional provisions. Under the Uniform Rule of

26 Naturalization Clause, the Constitution expressly assigns to Congress, not the Executive branch,

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1 the authority to establish the rules of naturalization. See U.S. Const. art. I, § 8, cl. 4. Congress

2 set forth those rules in the INA. By imposing additional, non-statutory, substantive criteria that

3 must be met prior to granting a naturalization application, CARRP violates the Uniform Rule of

4 Naturalization Clause. CARRP also violates the Due Process Clause of the Fifth Amendment.

5 Plaintiffs and putative class members have a constitutionally protected interest in having their

6 naturalization and adjustment of status applications adjudicated in accordance with the law. See,

7 e.g., Brown v. Holder, 763 F.3d 1141, 1147 (9th Cir. 2014) (“[Plaintiff] had [a constitutionally]

8 protected interest in being able to apply for citizenship” under the Due Process Clause). CARRP

9 violates the Due Process Clause because the government never provides naturalization and

10 adjustment applicants notice of their classification under CARRP, a meaningful explanation of

11 the reason for such classification, nor any process by which they can challenge their

12 classification.

13

In sum, CARRP cannot survive judicial scrutiny.

14 C. 15

President Trump’s Promise for More “Extreme” Vetting President Trump campaigned on promises to impose a “total and complete ban” on

16 Muslims coming to the United States. He and his associates consistently expressed disdain for

17 Muslims. See Second Amended Complaint, Dkt. 47, ¶¶ 98-101. Both during the campaign and

18 after his election and inauguration, President Trump expressed his intention to establish a

19 program of “extreme vetting” to achieve such a ban. See id. ¶¶ 102-05.

20

President Trump began to implement his stated goal of keeping Muslims out of the

21 United States and otherwise subjecting them to “extreme vetting” when he signed the First EO

22 on January 27, 2017. After the First EO was enjoined, President Trump replaced it with a 23 Second EO, which mirrors the First EO’s efforts to implement his anti-Muslim agenda.2 To the

24 extent any “extreme vetting” policy developed pursuant to the Second EO expands or continues

25
2 The Second EO has also been enjoined. Internat’l Refugee Assistance Project v. Trump, No. 8:17-cv-
26 361-TDC (D. Md.), appeal pending Internat’l Refugee Assistance Project v. Trump, No. 17-1351 (4th Cir.); Hawaii,
et al. v. Trump, No. 1:17-cv-50-KSC (D. Haw.), appeal pending Hawaii, et al. v. Trump, No. 17-15589 (9th Cir.).

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1 CARRP, it will suffer from the same legal deficiencies as CARRP itself. And to the extent the

2 policy targets Muslims, CARRP and any successor program also would violate the guarantee of

3 equal protection under the Due Process Clause of the Fifth Amendment.

4 D. CARRP Has Delayed Named Plaintiffs’ Applications.

5

Plaintiff Wagafe is a 32-year-old Somali national who is a lawful permanent resident of

6 the United States, currently residing in SeaTac, Washington. Second Amended Complaint, Dkt.

7 47 ¶¶ 142, 149. After fleeing Somalia, Mr. Wagafe lived as a refugee in Kenya and Ethiopia

8 before coming to the United States as a refugee in 2007. Id. ¶¶ 143-44. Mr. Wagafe filed an

9 application for naturalization on November 8, 2013, and satisfied all the statutory requirements

10 for naturalization. Id. ¶¶ 152, 156-57. USCIS scheduled him for a naturalization interview on

11 February 25, 2014, but then abruptly cancelled it on January 29, 2014, without explanation. Id. ¶

12 152. Mr. Wagafe had not heard from USCIS, other than a response to his attorney’s inquiry in

13 July 2015 instructing his attorney to have patience. Id. ¶ 153. It was only because his attorney

14 filed a FOIA request concerning his case that Mr. Wagafe discovered that USCIS had “shelved”

15 his pending application, relying on CARRP. A document in his “Alien file” obtained through

16 that request indicates that his case was handled by a CARRP officer, without revealing the

17 reasons why. Pasquarella Decl., Exs. D (cover page indicating CARRP); E (mentions file was

18 reviewed “by prior CARRP officer”).

19

Following the filing of this lawsuit, Defendant USCIS suddenly adjudicated Mr.

20 Wagafe’s application, in what appears to have been an attempt to moot Mr. Wagafe’s individual

21 claims and lend support to Defendants’ motion to transfer venue to North Dakota. Five days

22 after Plaintiffs filed their original motion for class certification in this case, a USCIS officer

23 informed Mr. Wagafe’s immigration attorney that an interview had been scheduled on his

24 naturalization application. Second Amended Complaint, Dkt. 47 ¶ 154. Recognizing Mr.

25 Wagafe met all statutory requirements for naturalization, Defendant USCIS approved his

26

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1 application immediately following his interview, and Mr. Wagafe became a United States citizen

2 on March 2, 2017. Id.

3

Plaintiff Ostadhassan is a 33-year-old national of Iran who resides in Grand Forks, North

4 Dakota. Id. ¶ 162. Mr. Ostadhassan moved to the United States in 2009 on a student visa to

5 study at the University of North Dakota. Id. ¶ 163. He earned his Ph.D. degree in Petroleum

6 Engineering. After graduation, Mr. Ostadhassan was hired immediately by the University of

7 North Dakota as an Assistant Professor. Id. In 2014, he married a U.S. citizen. Id. ¶ 164. Mr.

8 Ostadhassan and his wife had their first child in July 2016. Id. In February 2014, Mr.

9 Ostadhassan applied to adjust his immigration status to that of a lawful permanent resident based

10 upon his marriage. Id. ¶ 165. USCIS initially scheduled Mr. Ostadhassan for an interview on

11 May 19, 2014, but abruptly canceled the interview when Mr. Ostadhassan arrived at the

12 appointed time and place. Id. ¶ 167. After some delay, USCIS finally interviewed Mr.

13 Ostadhassan more than 16 months later, on September 24, 2015. At the interview, the USCIS

14 officer told Mr. Ostadhassan that the government was not ready to make a decision. Id. ¶¶ 168-

15 69. On March 24, 2017, USCIS approved the immigrant visa petition that Mr. Ostadhassan’s

16 wife had filed on his behalf over three years earlier. See Supplemental Pasquarella Declaration

17 ¶ 2. And on April 5, 2017, USCIS issued a Notice of Intent to Deny Mr. Ostadhassan’s Form I-

18 485 Application to Adjust Status, indicating that though Mr. Ostadhassan satisfies all statutory

19 criteria, USCIS intends to deny his application “as a matter of discretion.” Id. ¶ 3 & Ex. A at 4.

20

As USCIS acknowledges, Mr. Ostadhassan is statutorily eligible to adjust his

21 immigration status. On information and belief, his application was delayed for over three years

22 because the government subjected the application to CARRP. This is likely true because Mr.

23 Ostadhassan has resided in and traveled through what the government considers “areas of known

24 terrorist activity” (Iran), has donated to Islamic charities, and is involved in his local Muslim

25 community in North Dakota. Such circumstances typically cause an application to be subjected

26 to CARRP. See Second Amended Complaint, Dkt. 47, ¶¶ 170-74.

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1

Plaintiff Bengezi is a thirty-two-year-old national of Libya who resides in Redmond,

2 Washington. Id. ¶ 176. Ms. Bengezi immigrated to Canada with her family in 1995 and became

3 a Canadian citizen in 2012. Id. ¶¶ 178-79. After becoming engaged to a U.S. citizen, Ms.

4 Bengezi entered the country on a K-1 Fiancée visa and, after getting married, filed for an

5 application to adjust her status on February 5, 2015. Id. ¶¶ 181-87. Though Ms. Bengezi meets

6 all statutory requirements to adjust her immigration status, USCIS has not scheduled an

7 interview on her application. Id. ¶¶ 188, 191-92. On information and belief, Defendant USCIS

8 has applied CARRP or its successor “extreme vetting” program to her application, which has

9 indefinitely delayed the adjudication process. Id. ¶ 196. When Ms. Bengezi flies, she is unable

10 to check in for her flight online and she is routinely subjected to additional security screening

11 measures due to her “Secondary Security Screening Selection.” Id. ¶ 193. These additional

12 security measures are a common indication that an individual’s application is subject to CARRP.

13

Plaintiff Jihad is a forty-four-year-old Iraqi national who resides in Renton, Washington.

14 Id. ¶ 199. In August 2008, Mr. Jihad and his family were admitted to the United States as

15 refugees and settled in the Tri-Cities area of Washington. Id. ¶ 203-04. After becoming a lawful

16 permanent resident, Mr. Jihad filed his application for naturalization on July 1, 2013. Id. ¶¶ 205-

17 06. Soon after completing his biometrics appointment, two FBI agents visited Mr. Jihad and

18 questioned him extensively about his background. Id. ¶ 209. Though Mr. Jihad satisfies all

19 statutory criteria for naturalization, his application has been pending for over three and a half

20 years. On information and belief, Defendant USCIS has subjected Mr. Jihad’s application to

21 CARRP or an “extreme vetting” successor program, which explains the FBI’s interrogation and

22 the extreme delay Mr. Jihad has experienced. Id ¶ 217.

23

Plaintiff Manzoor is a forty-year-old Pakistani national and lawful permanent resident

24 who resides in Newcastle, Washington. Id. ¶ 220. After coming to the United States on a

25 student visa, Mr. Manzoor was granted lawful permanent resident status in September 2010

26 based on a business petition. Id.¶¶ 221, 226-27. He subsequently filed his application for

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1 naturalization on November 30, 2015. Id.¶ 228. Though Mr. Manzoor is statutorily eligible to

2 naturalize as a United States citizen, USCIS has not adjudicated his application for over three

3 years. This unexplained delay indicates that USCIS has subjected Mr. Manzoor’s application to

4 CARRP or its successor “extreme vetting” program. Id. ¶¶ 233-34.

5

III. ARGUMENT

6

Under Civil Rule 23, a lawsuit may proceed as a class action if two conditions are met:

7 the “suit must satisfy the criteria set forth in subdivision (a) (i.e., numerosity, commonality,

8 typicality, and adequacy of representation), and it also must fit into one of the three categories

9 described in subdivision (b).” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559

10 U.S. 393, 397 (2010) (citing Fed. R. Civ. P. 23(b)). By its terms, “this creates a categorical rule

11 entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.”

12 Id.

13

Plaintiffs meet all four of the Rule 23(a) requirements, and satisfy Rule 23(b) because

14 “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a

15 whole.” Fed. R. Civ. P. 23(b)(2). Consistent with numerous Ninth Circuit authorities involving

16 certification of class actions on behalf of noncitizens who challenge immigration policies and 17 practices, class certification is warranted here.3

18

19

3 See, e.g., Mendez Rojas, et al. v. Johnson, et al., 2:16-cv-1024-RSM, ECF 37 (W.D. Wash. Jan.

10, 2017) (certifying two nationwide classes of asylum seekers challenging defective asylum application

20

procedures); A.B.T. v. U.S. Citizenship and Immigration Services, 2013 WL 5913323 (W.D. Wash. Nov. 4, 2013) (certifying nationwide class and approving settlement amending practices by the Executive Office

21

for Immigration Review and USCIS that precluded asylum applicants from receiving employment authorization); Santillan v. Ashcroft, No. C 04–2686, 2004 WL 2297990, at *12 (N.D. Cal. Oct. 12, 2004)

22

(certifying nationwide class of lawful permanent residents challenging delays in receiving documentation of their status); Ali v. Ashcroft, 213 F.R.D. 390, 409-10 (W.D. Wash. 2003), aff’d, 346 F.3d 873, 886 (9th

Cir. 2003), vacated on other grounds, 421 F.3d 795 (9th Cir. 2005) (certifying nationwide class of Somalis
23 challenging legality of removal to Somalia in the absence of a functioning government); Gorbach v. Reno,

181 F.R.D. 642, 644 (W.D. Wash. 1998), aff’d on other grounds, 219 F.3d 1087 (9th Cir. 2000) (en banc)
24 (certifying nationwide class of persons challenging validity of administrative denaturalization proceedings);

Walters v. Reno, No. C94–1204C, 1996 WL 897662, at *5-8 (W.D. Wash. 1996), aff’d, 145 F.3d 1032,

25 1045-47 (9th Cir. 1998), cert. denied, Reno v. Walters, 526 U.S. 1003 (1999) (certifying nationwide class

of individuals challenging adequacy of notice in document fraud cases). See also Roshandel v. Chertoff,

26 554 F. Supp. 2d 1194 (W.D. Wash. 2008) (certifying districtwide class of delayed naturalization cases);

Gete v. INS, 121 F.3d 1285, 1299 (9th Cir. 1997) (vacating district court’s denial of class certification in

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1

Plaintiffs do not request that this Court adjudicate their individual immigration

2 applications, nor do they seek money damages. Plaintiffs request only that this Court determine

3 that CARRP or any successor policy is unlawful, and enjoin Defendants from applying such

4 policy to the processing and adjudication of Plaintiffs’ and other class members’ applications for

5 citizenship and adjustment of immigration status applications. Alternatively, and at a minimum,

6 Plaintiffs request an order compelling USCIS to provide applicants notice that the government

7 has decided to subject their application to CARRP and an opportunity to challenge that decision.

8 A. The Action Satisfies the Class Certification Requirements of Rule 23(a).

9

1. The Proposed Class Members Are So Numerous That Joinder Is

Impracticable. 10

This case easily meets the numerosity requirement. Rule 23(a)(1) requires that the class

11

be “so numerous that joinder of all members is impracticable.” While no specific number of

12

class members is required, Perez-Funez v. District Director, Immigration & Naturalization

13

Service, 611 F. Supp. 990, 995 (C.D. Cal. 1984), courts have recognized that “where the exact

14

size of the class is unknown but general knowledge and common sense indicate that it is large,

15

the numerosity requirement is satisfied,” Cervantez v. Celestica Corp., 253 F.R.D. 562, 569

16

(C.D. Cal. 2008) (internal quotation marks and citations omitted). Additionally, where the class

17

includes “unnamed and unknown future members,” joinder is impractical, “and the numerosity

18

requirement is therefore met, regardless of class size.” Ali v. Ashcroft, 213 F.R.D. 390, 408

19

(W.D. Wash. 2003), aff’d, 346 F.3d 873 (9th Cir. 2003), vacated on other grounds, 421 F.3d 795

20

(9th Cir. 2005) (internal quotation marks and citation omitted).

21

Here, the numbers of naturalization and adjustment of status applications subject to

22

CARRP are more than sufficient for class certification purposes. As of March 2009, for those

23

applications pending for six months or longer, the government was applying CARRP to at least

24

25
case challenging inadequate notice and standards in Immigration and Naturalization Service vehicle
26 forfeiture procedure).

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1 1,437 applications for adjustment of immigration status, and at least 1,065 applications for

2 naturalization. Pasquarella Decl., Ex. F (monthly case load report). Between July 1 and

3 September 30, 2013—the most recent time period for which Plaintiffs have reliable data—

4 USCIS reported 2,644 pending applications subjected to CARRP. Id., Ex. G (quarterly workload

5 report). USCIS data shows that applications for naturalization and adjustment of immigration

6 status make up the majority of all applications now pending before USCIS subject to CARRP.

7 Id., Ex. F. Based on this data, and as a matter of “general knowledge and common sense,” the

8 number of members in each proposed class makes joinder of each individual member

9 impracticable. Class certification is also appropriate here given the unknown future class

10 members to whose immigration applications Defendant will apply CARRP. See Ali, 213 F.R.D.

11 at 408-09.

12

Plaintiffs have met the numerosity requirement.

13

2. This Case Presents Questions of Law and Fact Common to the Members of

the Classes. 14

Rule 23(a) also requires that the case present “questions of law or fact common to the 15

class.” Plaintiffs “need not show, however, that ‘every question in the case, or even a 16

preponderance of questions, is capable of class wide resolution. So long as there is ‘even a 17

single common question,’ a would-be class satisfies the commonality requirement.” Parsons v. 18

Ryan, 754 F.3d 657, 675 (9th Cir. 2014) (quoting Dukes, 564 U.S. at 350 (2011)); see 19

also Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th Cir. 2012) (noting that 20

“commonality only requires a single significant question of law or fact”). 21

Plaintiffs raise multiple questions common to the classes, including but not limited to: 22

 Whether CARRP violates the INA by creating additional, non-

23

statutory, substantive criteria that must be met prior to a grant of a

naturalization or adjustment of status application (both Classes); 24

 Whether CARRP violates the APA, 5 U.S.C. § 706, as a final agency

25

action that is arbitrary and capricious, contrary to constitutional law,

and in excess of statutory authority (both Classes); 26

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1

 Whether CARRP constitutes a substantive rule and, as a result, is

unenforceable because Defendants violated the mandatory

2

requirements for rulemaking under APA, 5 U.S.C. § 553, as they

promulgated CARRP without providing a notice-and-comment period

3

prior to implementation (both Classes);

4

 Whether CARRP violates the Uniform Rule of Naturalization, Article

I, Section 8, Clause 4 of the Constitution by establishing criteria for

5

naturalization that were never authorized by Congress (Extreme

Vetting Naturalization Class);

6

 Whether CARRP is unconstitutional because Defendants failed to

7

provide Plaintiffs notice of their classification under CARRP and a

meaningful explanation of the reason for such classification, as well as

8

a process by which Plaintiffs can challenge their classification,

resulting in a violation of the Due Process Clause of the Fifth

9

Amendment to the Constitution (both Classes);

10

 Whether CARRP discriminates against Plaintiffs on the basis of their

country of origin, and without sufficient justification, and therefore

11

violates the equal protection component of the Due Process Clause of

the Fifth Amendment to the Constitution (both Classes);

12

 Whether the application of CARRP to Plaintiffs’ applications for

13

naturalization and adjustment of status—benefits to which they are

statutorily eligible and to which they are legally entitled—constitutes

14

arbitrary denial in violation of Plaintiffs’ right to substantive due

process under the Fifth Amendment to the Constitution (both Classes). 15
Defendants may argue that Plaintiffs cannot satisfy commonality because each

16 application subject to CARRP hinges on the particular facts and circumstances unique to each

17 applicant. But this argument would misconstrue and misapply the commonality requirement. As

18 the Ninth Circuit recently observed, “[t]o assess whether the putative class members share a

19 common question, the answer to which ‘will resolve an issue that is central to the validity of each

20 one of the [class members’s] claims,’ [the court] must identify the elements of the class

21 members’ case-in-chief.” Stockwell v. City & County of San Francisco, 749 F.3d 1107, 1114

22 (9th Cir. 2014) (quoting Dukes, 564 U.S. at 350). Here, the gravamen of Plaintiffs’ Second

23 Amended Complaint is not focused on how CARRP was specifically applied to any given

24 individual seeking immigration benefits, but rather how USCIS’s overall decision to implement

25 CARRP and its subsequent application to Plaintiffs and others similarly situated violates federal

26

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1 statutory and constitutional law. Because each class member’s statutory and constitutional

2 claims can be resolved in one stroke, “a classwide proceeding” will “generate common answers

3 apt to drive the resolution of the litigation.” See Troy v. Kehe Food Distribs., Inc., 276 F.R.D.

4 642, 652-53 (W.D. Wash. 2011). Plaintiffs have met their burden to demonstrate commonality

5 because “the court must decide only once whether the application [of CARRP] . . . does or does

6 not violate” the law. See id. at 654. Should Plaintiffs prevail, all proposed class members will

7 benefit the same way: either from an order enjoining the government from applying CARRP to

8 their applications, or from an order directing the government to allow affected applicants an

9 opportunity to respond to CARRP-related allegations.

10

3. The Claims of the Named Plaintiffs Are Typical of the Claims of the

Members of the Proposed Classes. 11

Typicality is satisfied if “the claims or defenses of the representative parties are typical of

12

the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The purpose of the typicality

13

requirement is to ensure that the interests of the named representatives align with the interests of

14

the class as a whole. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). Claims

15

of the proposed class representatives are considered “typical” if they are “reasonably coextensive

16

with those of the absent class members.” Parsons, 754 F.3d at 685 (quoting Hanlon v. Chrysler

17

Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)). In this way, commonality and typicality “tend to

18

merge” because both “serve as guideposts for determining whether, under the particular

19

circumstances presented by the case, maintenance of a class action is economical and whether

20

the named plaintiff’s claim and the class claims are so interrelated that the interests of the class

21

members will be fairly and adequately protected in their absence.” Dukes, 564 U.S. at 349 n.5.

22

Plaintiffs’ claims are typical of the proposed classes to be certified because they proceed

23

under the same legal theories, seek the same relief, and have suffered the same injuries. Like

24

each proposed class member, Plaintiffs have filed immigration applications (for naturalization

25

and adjustment of immigration status, respectively) that the government has unlawfully subjected

26

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1 to review under CARRP. Despite meeting all the statutory requirements to receive the

2 immigration benefits they seek, all five named Plaintiffs have been injured by the delay and

3 failure to adjudicate their immigration applications based on CARRP. Because Plaintiffs have

4 suffered the same statutory and constitutional injuries as the proposed class members, their

5 claims are typical of the classes which they propose to represent. See Rodriguez v. Hayes, 591

6 F.3d 1105, 1124 (9th Cir. 2010) (upholding typicality where plaintiffs “raise[d] similar

7 constitutionally-based arguments and are alleged victims of the same practice of prolonged

8 detention while in immigration proceedings”).

9

4. The Named Plaintiffs Will Adequately Protect the Interests of the Proposed

Classes, and Counsel Are Qualified to Litigate this Action. 10

Rule 23(a)(4) requires that “[t]he representative parties will fairly and adequately protect

11

the interests of the class.” “Whether the class representatives satisfy the adequacy requirement

12

depends on ‘the qualifications of counsel for the representatives, an absence of antagonism, a

13

sharing of interests between representatives and absentees, and the unlikelihood that the suit is

14

collusive.’” Rodriguez, 591 F.3d at 1125 (citing Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir.

15

1998) (quoting Crawford v. Honig, 37 F.3d 485, 487 (9th Cir. 1994)).

16

a. Named Plaintiffs 17
The named Plaintiffs will fairly and adequately protect the interests of the respective 18
classes because they seek relief on behalf of the classes and have no individual interest that could 19
be considered antagonistic to other class members. See Declaration of Mehdi Ostadhassan (Dkt. 20
29); Declaration of Abdiqafar Wagafe (Dkt. 28); Declaration of Hanin Omar Bengezi; 21
Declaration of Mushtaq Abed Jihad; Declaration of Sajeel Manzoor. Their shared goal is to have 22
the Court declare CARRP unlawful and issue injunctive relief preventing CARRP from being 23
applied to their immigration applications. Plaintiffs do not seek money damages. The interests 24
of the named Plaintiffs therefore coincide precisely with those of the class members. 25

26

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1

b. Counsel

2

Plaintiffs’ counsel are considered qualified when they can establish their experience in

3 previous class actions and cases involving the same area of law. Lynch v. Rank, 604 F. Supp. 30,

4 37 (N.D. Cal. 1984), aff’d 747 F.2d 528 (9th Cir. 1984), amended on rehearing, 763 F.2d 1091,

5 1098 (9th Cir. 1985). Plaintiffs are represented by attorneys with the ACLU of Washington

6 Foundation, the ACLU Foundation of Southern California, the ACLU Foundation, the Law

7 Offices of Stacy Tolchin, the National Immigration Project of the National Lawyers Guild, the

8 Northwest Immigrant Rights Project, and the Perkins Coie law firm. Class counsel are able and

9 experienced in protecting the interests of noncitizens and have considerable experience in

10 handling complex and class action litigation, including in the area of immigration law. See Dkts.

11 27, 30-34 (Pasquarella Decl.; Declaration of Lee Gelernt; Declaration of Matt Adams;

12 Declaration of Stacy Tolchin; Declaration of Trina Realmuto; Declaration of Harry Schneider).

13 As detailed in their declarations, class counsel have the experience and ability to vigorously and

14 effectively represent both named and absent class members.

15 B. This Action Satisfies the Requirements of Rule 23(b)(2).

16

In addition to satisfying the four requirements of Rule 23(a), Plaintiffs also must meet

17 one of the requirements of Rule 23(b). Certification under Rule 23(b)(2) requires that

18 Defendants “ha[ve] acted or refused to act on grounds that apply generally to the class, so that

19 final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a

20 whole.” Fed. R. Civ. P. 23(b)(2). The underlying premise of subsection (b)(2) is “the indivisible

21 nature of the injunctive or declaratory remedy warranted—the notion that the conduct at issue

22 can be enjoined or declared unlawful only as to all of the class members or as to none of them.”

23 Dukes, 564 U.S. at 360 (citation omitted). In other words, (b)(2) is met where “a single

24 injunction or declaratory judgment would provide relief to each member of the class.” Id.

25

Here, Plaintiffs are asking the Court to declare CARRP unlawful and unenforceable and

26 to enjoin the government from subjecting Plaintiffs’ and proposed class members’ immigration

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1 applications to CARRP. This relief would benefit Plaintiffs as well as all members of the

2 proposed classes in identical fashion. In other words, no individual class member would be

3 entitled to a different injunction or declaratory judgment. Accordingly, Plaintiffs have met the

4 requirements of Rule 23(b)(2), because they “seek uniform injunctive or declaratory relief from

5 policies or practices that are generally applicable to the class as a whole.” See Parsons, 754 F.3d

6 at 688 (citation omitted); see also Walters, 145 F.3d at 1047 (holding that certification under

7 Rule 23(b)(2) was proper where plaintiffs challenged INS practices in document fraud

8 proceedings); Rodriguez, 591 F.3d at 1125-26 (holding that certification under Rule 23(b)(2) was

9 proper in challenge to defendants’ policy of failing to provide bond hearings to immigration

10 detainees).

11

Given the nature of Plaintiffs’ claims implicating CARRP, class certification should be

12 nationwide. Certification that is not nationwide in scope would result in Defendants continuing

13 to apply an unlawful policy to noncitizens applying for naturalization simply by virtue of their

14 geographic location, which would undermine the constitutional imperative of “a uniform Rule of

15 Naturalization.” U.S. Const., art. I, § 8, cl. 4 (emphasis added). Such piecemeal relief would

16 lead to arbitrary and unjust results. See Gorbach v. Reno, 181 F.R.D. 642, 644 (W.D. Wash.

17 1998), aff’d, 219 F.3d 1087 (9th Cir. 2000) (holding certification of a nationwide class was

18 particularly fitting because “anything less [than] a nationwide class would result in an anomalous

19 situation allowing the INS to pursue denaturalization proceedings against some citizens, but not

20 others, depending on which district they reside in”). Moreover, it would be equally arbitrary and

21 unjust to certify anything short of a nationwide class for adjustment of status applicants, who,

22 regardless of geographic location, are all subjected to Defendants’ unlawful policy.

23

Because Defendants have subjected the members of both classes to the same statutory

24 and constitutional violations, and because class members seek uniform relief, certification is

25 proper under Rule 23(b)(2).

26

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1 C. Class Certification Is Also Warranted to Prevent Defendants from Avoiding Adjudication of the Legality of CARRP.
2 Certification of the proposed classes is also appropriate to prevent Defendants from
3 attempting to evade judicial review by adjudicating Plaintiffs’ individual applications. As the
4 Supreme Court has acknowledged, “some claims are so inherently transitory that the trial court
5 will not have even enough time to rule on a motion for class certification before the proposed
6 representative’s individual interest expires.” County of Riverside v. McLaughlin, 500 U.S. 44, 52
7 (1991) (citation omitted). In such cases, the named plaintiff’s claims are “capable of repetition,
8 yet evading review.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091 (9th Cir. 2011) (citing
9 Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975)). Because of this, a class action may be the
10 only way for meaningful review. See id. at 1090 (where the class representative’s claims are
11 transitory, “mooting the putative class representative’s claims will not necessarily moot the class
12 action” even if “the district court has not yet addressed the class certification issue”).
13 Class certification is especially appropriate here because challenges to CARRP
14 historically have proven to be the very sort of transitory claims that are “capable of repetition,
15 yet evading review.” Indeed, Plaintiffs expect that discovery will confirm that, in the past,
16 Defendants have engaged in a deliberate strategy of mooting the claims of applicants adversely
17 impacted by CARRP before a ruling on the merits could be obtained. In Muhanna v. USCIS, No.
18 14-cv-05995 (C.D. Cal. July 31, 2014), five individual plaintiffs filed suit challenging the delay
19 to their naturalization applications caused by CARRP.4 Within months of the commencement of 20
that lawsuit, USCIS adjudicated the naturalization applications of all five plaintiffs, each of 21
whom had been waiting years for a decision, and the lawsuit was voluntarily dismissed as moot. 22
Muhanna, No. 14-cv-05995, Dkt. 51 (entered Dec. 23, 2014); see also Pasquarella Decl., ¶ 4. In 23
Arapi v USCIS, No. 16-cv-00692 JLR (E.D. Mo. 2016), twenty individual plaintiffs filed suit 24
asserting causes of action relating to application of CARRP to their pending naturalization 25

26
4 Plaintiffs in Muhanna were represented by some of the same attorneys representing Plaintiffs here.

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1 applications. Once again, promptly after their suit was commenced, USCIS moved to adjudicate

2 the applications of all twenty plaintiffs. Nineteen of the plaintiffs voluntarily dismissed their

3 claims at that point, and USCIS moved to dismiss the remaining plaintiff’s claims as moot.

4 Arapi, No. 16-cv-00692 JLR, Dkt. 22 (filed Dec. 19, 2016).

5

Defendants already have deployed this strategy in this case, in an attempt to moot the

6 individual claims of a named Plaintiff and transfer venue from this Court to North Dakota.

7 When Plaintiffs initiated this lawsuit in January 2017, named Plaintiff Abdiqafar Wagafe had

8 been waiting over three and a half years with no explanation for a decision on his application to

9 naturalize as a U.S. citizen. Second Amended Complaint, Dkt. 47 ¶¶ 152-53. Just five days after

10 Plaintiffs filed their initial Motion for Class Certification, Defendant USCIS suddenly scheduled

11 Plaintiff Wagafe for an interview on his naturalization application. Id. ¶ 154. Following his

12 interview, which occurred on February 22, 2017, Mr. Wagafe’s application was immediately

13 approved and he became a U.S. citizen on March 2, 2017. Id. Defendants filed their Motion to

14 Transfer Venue on the same day, contending that because Plaintiff Wagafe no longer had an

15 active individual-capacity claim, and he was the only named Plaintiff who resided in the forum, 16 the interests of justice favored transfer.5 Dkt. 39 at 5-8.

17

As Defendants have a practice of attempting to evade judicial review of CARRP

18 challenges by adjudicating individual Plaintiffs’ claims and then seeking dismissal on mootness

19 grounds, class certification is necessary to ensure judicial review of these important claims. See

20 Pitts, 653 F.3d at 1090–91 (holding defendant’s “unaccepted offer of judgment did not moot

21 Pitts's case because his claim is transitory in nature and may otherwise evade review,” thereby

22 “avoid[ing] the spectre of plaintiffs filing lawsuit after lawsuit, only to see their claims mooted

23 before they can be resolved”); Ellsworth v. U.S. Bank, N.A., 30 F. Supp. 3d 886, 909 (N.D. Cal.

24 2014) (holding that the defendant’s attempt to refund the plaintiff’s money did not moot the class

25

26

5 Plaintiffs have since filed a Second Amended Complaint (Dkt. 47), which adds three named Plaintiffs—

all of whom reside in King County, Washington.

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1 action claims because the bank’s behavior was evidence of a “calculated strategy that includes

2 picking off named Plaintiffs”); Ramirez v. Trans Union, LLC, No. 3:12-CV-00632 (JSC), 2013

3 WL 3752591, at *2 (N.D. Cal. July 17, 2013) (holding that Rule 68 Offer of Judgment to the

4 named plaintiff did not moot the class action because the plaintiff’s claims would “evade review”

5 if the defendant were able to “pick off” each subsequent lead plaintiff).

6

IV. CONCLUSION

7

Plaintiffs respectfully request that the Court grant their Motion for Class Certification and

8 enter an order certifying the proposed classes under Rules 23(a) and 23(b)(2), appoint Plaintiffs

9 as class representatives for the respective classes, and appoint Plaintiffs’ counsel as class counsel

10 for both classes.

11

12

13 DATED: April 10, 2017

14 S/Jennifer Pasquarella (admitted pro hac vice) s/ Laura K. Hennessey ACLU Foundation of Southern California Laura K. Hennessey #47447

15 1313 W. 8th Street Los Angeles, CA 90017

s/ David A. Perez David A. Perez #43959

16 Telephone: (213) 977-5236 Facsimile: (213) 997-5297

s/ Harry H. Schneider, Jr. Harry H. Schneider, Jr. #9404

17 jpasquarella@aclusocal.org

s/ Nicholas P. Gellert Nicholas P. Gellert #18041

18

s/ Kate Reddy

Kate Reddy #42089

19

Attorneys for Plaintiffs

Perkins Coie LLP

20

1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099

21

Telephone: 206.359.8000

Facsimile: 206.359.9000

22

Email: HSchneider@perkinscoie.com

NGellert@perkinscoie.com

23

KReddy@perkinscoie.com

DPerez@perkinscoie.com

24

LHennessey@perkinscoie.com

25

26

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1 s/Matt Adams s/Glenda M. Aldana Madrid
2 Matt Adams #28287 Glenda M. Aldana Madrid #46987
3 Northwest Immigrant Rights Project 615 Second Ave., Ste. 400
4 Seattle, WA 98122 Telephone: (206) 957-8611
5 Facsimile: (206) 587-4025 matt@nwirp.org
6 glenda@nwirp.org
7 s/Stacy Tolchin (admitted pro hac vice) Law Offices of Stacy Tolchin
8 634 S. Spring St. Suite 500A Los Angeles, CA 90014
9 Telephone: (213) 622-7450 Facsimile: (213) 622-7233
10 Stacy@tolchinimmigration.com
11 s/Hugh Handeyside Hugh Handeyside #39792
12 s/Lee Gelernt (admitted pro hac vice) s/Hina Shamsi (admitted pro hac vice)
13 American Civil Liberties Union Foundation 125 Broad Street
14 New York, NY 10004 Telephone: (212) 549-2616
15 Facsimile: (212) 549-2654 lgelernt@aclu.org
16 hhandeyside@aclu.org hshamsi@aclu.org
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s/Trina Realmuto (admitted pro hac vice) s/Kristin Macleod-Ball (admitted pro hac vice) National Immigration Project
of the National Lawyers Guild 14 Beacon St., Suite 602 Boston, MA 02108 Telephone: (617) 227-9727 Facsimile: (617) 227-5495 trina@nipnlg.org kristin@nipnlg.org s/Emily Chiang Emily Chiang #50517 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Echiang@aclu-wa.org
Perkins Coie LLP
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Case 2:17-cv-00094-RAJ Document 49 Filed 04/10/17 Page 29 of 29

1

CERTIFICATE OF SERVICE

2 The undersigned certifies that on the dated indicated below, I caused service of the

3 foregoing MOTION FOR CLASS CERTIFICATION via the CM/ECF system that will

4 automatically send notice of such filing to all counsel of record herein.

5 DATED this 10th day of April, 2017, at Seattle, Washington.

6

s/ Laura K. Hennessey

7

Laura K. Hennessey #47447

8

Attorneys for Plaintiffs

Perkins Coie LLP

9

1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099

10

Telephone: 206.359.8000

11

Facsimile: 206.359.9000 Email: LHennessey@perkinscoie.com

12

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1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 8

ABDIQAFAR WAGAFE, MEHDI 9 OSTADHASSAN, HANIN OMAR
BENGEZI, MUSHTAQ ABED JIHAD, and 10 SAJEEL MANZOOR, on behalf of themselves
and others similarly situated, 11

COMPLAINT-CLASS ACTION

Plaintiffs, 12

Case No: 2:17-cv-00094-JCC

v. 13
DONALD TRUMP, President of the United 14 States; UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES; JOHN F. 15 KELLY, in his official capacity as Secretary of
the U.S. Department of Homeland Security; 16 LORI SCIALABBA, in her official capacity as
Acting Director of the U.S. Citizenship and 17 Immigration Services; MATTHEW D.
EMRICH, in his official capacity as Associate 18 Director of the Fraud Detection and National
Security Directorate of the U.S. Citizenship 19 and Immigration Services; DANIEL
RENAUD, in his official capacity as Associate 20 Director of the Field Operations Directorate of
the U.S. Citizenship and Immigration Services, 21

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Defendants. 22

23

24

25

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1

INTRODUCTION

2 1. This class action lawsuit seeks to stop the federal government from unconstitutionally preventing

3 Plaintiffs, and others like them, from obtaining immigration benefits, including, but not limited to,

4 asylum, naturalization, lawful permanent residence, and employment authorization.

5 2. Plaintiff Abdiqafar Wagafe is a Somali national who, at the time this lawsuit was initiated, had

6 waited three and a half years for a decision on his pending naturalization application despite his

7 eligibility to naturalize as a United States citizen. A mere five days after Plaintiffs filed their motion for

8 class certification, the government provided Mr. Wagafe his long-awaited naturalization interview on

9 February 22, 2017. The government approved Mr. Wagafe’s application immediately following his

10 interview, and swore him in as a citizen of the United States of America on March 2, 2017.

11 3. Plaintiff Mehdi Ostadhassan is an Iranian national who has applied for and is eligible to adjust

12 his status to that of a lawful permanent resident. He has waited three years for a decision on his

13 adjustment of status application.

14 4. Plaintiff Hanin Omar Bengezi is a Libyan national who has applied for and is eligible to adjust

15 her status to that of a lawful permanent resident. She has waited over two years for a decision on her

16 adjustment of status application.

17 5. Plaintiff Mushtaq Abed Jihad is an Iraqi national who has applied for and is eligible to naturalize

18 as a United States citizen. He has waited more than three and a half years for a decision on his

19 naturalization application.

20 6. Plaintiff Sajeel Manzoor is a Pakistani national who has applied for and is eligible to naturalize

21 as a United States citizen. He has waited more than a year for a decision on his naturalization

22 application.

23 7. All Plaintiffs identify as Muslims, are originally from Muslim-majority countries, and have

24 resided in the United States for a significant time. The inordinate delays they experience hold their lives

25 in a state of limbo. They are prevented from having certainty about their future residence in the United

26
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1 States, from being able to freely travel overseas, from petitioning for immigration benefits for family

2 members, and, for those seeking naturalization, from obtaining jobs available only to U.S. citizens and

3 from voting in U.S. elections.

4 8. The Constitution expressly assigns to Congress, not the executive branch, the authority to

5 establish uniform rules of naturalization. The Immigration and Nationality Act (“INA”) sets forth those

6 rules, along with the requirements for adjustment of status to lawful permanent residence.

7 9. Despite the fact that Plaintiffs meet the statutory criteria to be naturalized as United States

8 citizens or adjust their immigration status to that of a lawful permanent resident (“LPR”), U.S.

9 Citizenship and Immigration Service (“USCIS”) has refused to adjudicate their applications in

10 accordance with the governing statutory criteria. Instead, USCIS has applied impermissible ultra vires

11 rules under a policy known as the Controlled Application Review and Resolution Program (“CARRP”),

12 which has prevented the agency from granting Plaintiffs’ applications (and, in the case of Mr. Wagafe,

13 caused the agency to delay granting his application until this lawsuit motivated it to do so).

14 10. Since 2008, USCIS has used CARRP—an internal vetting policy that has not been authorized by

15 Congress, nor codified, subjected to public notice and comment, or voluntarily made public in any

16 way—to investigate and adjudicate applications the agency deems to present potential national security

17 concerns. CARRP prohibits USCIS field officers from approving an application with an alleged

18 potential national security concern, instead directing officers to deny the application or delay

19 adjudication—often indefinitely.

20 11. CARRP’s definition of national security concern is far broader than the security-related

21 ineligibility criteria for immigration applications set forth by Congress in the INA. CARRP identifies

22 national security concerns based on deeply-flawed and expansive government watchlists and other

23 vague and overbroad criteria that bear little, if any, relation to the statutory security-related ineligibility

24 criteria. The CARRP definition casts a net so wide that it brands innocent, law-abiding residents, like

25 Plaintiffs—none of whom pose a security threat—as national security concerns on account of innocuous

26
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1 activity, associations, and characteristics such as national origin.

2 12. Although Plaintiffs do not know the total number of people subject to CARRP at any given time,

3 USCIS data reveals that between Fiscal Year 2008 and Fiscal Year 2012, more than 19,000 people from

4 twenty-one Muslim-majority countries or regions were subjected to CARRP. Upon information and

5 belief, USCIS opened nearly 42,000 CARRP cases between 2008 and 2016.

6 13. Moreover, two recent immigration Executive Orders issued by Defendant Donald Trump suggest

7 the number of residents subjected to CARRP will expand in the coming months and years.

8 14. On January 27, 2017, Defendant Trump issued Executive Order 13769, entitled “Protecting the

9 Nation from Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 8977 (Feb. 1, 2017) (“First

10 EO”).

11 15. Section 3 of the First EO suspended entry into the United States of citizens or nationals of Syria,

12 Iraq, Iran, Yemen, Somalia, Sudan, and Libya, all of which are predominantly Muslim countries, for 90

13 days or more. Although the First EO said nothing about suspending adjudications, USCIS determined

14 that the EO required it to suspend adjudication or final action on all pending petitions, applications, or

15 requests involving citizens or nationals of those seven countries with the exception of naturalization

16 applications.

17 16. Section 4 of the First EO further directed federal agencies to create and implement a policy of

18 extreme vetting of all immigration benefits applications to identify individuals who are seeking to enter

19 the country based on fraud and with the intent to cause harm or who are at risk of causing harm after

20 admission. Upon information and belief, any such “extreme vetting” policy would expand CARRP.

21 17. After Judge James L. Robart enjoined the First EO in Washington v. Trump, No. 2:17-cv-141-

22 JLR, ECF 52, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017), and the United States Court of Appeals for

23 the Ninth Circuit denied the government’s motion for stay of that order (847 F.3d 1151 (9th Cir. 2017)),

24 Defendant Trump issued a second Executive Order on March 6, 2017. Executive Order 13780,

25 “Protecting the Nation From Foreign Terrorist Entry Into the United States,” 82 Fed. Reg. 13209 (Mar.

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1 9, 2017) (“Second EO”). The Second EO targets the same countries as the First EO, with the exception

2 of Iraq, and is intended to have the same broad effect as the First EO.

3 18. Like the First EO, the Second EO institutes an entry ban of 90 days or more for foreign nationals

4 of the targeted countries, does not specify how it will apply to adjudications of pending applications, and

5 directs federal agencies to create and implement a policy of extreme vetting for all immigration benefits.

6 See Second EO §§ 2, 5. Further, a memorandum issued by Defendant Trump in connection with the

7 Second EO cautions that the implementation of “heightened screening and vetting protocols” cannot

8 wait, and directs the government to begin implementing these procedures immediately, even while the

9 details of the more permanent extreme vetting policy are being developed. Memorandum for the

10 Secretary of State, the Attorney General, the Secretary of Homeland Security (Mar. 6, 2017) available at

11 https://www.whitehouse.gov/the-press-office/2017/03/06/memorandum-secretary-state-attorney-

12 general-secretary-homeland-security. Accordingly, upon information and belief, the Second EO

13 sanctions a major expansion of the existing CARRP program. 14 19. Application of CARRP,1 both on its own and as potentially expanded pursuant to the Second EO,

15 to pending immigration applications is unlawful and unconstitutional. The First and Second EOs reflect

16 a preference for one religious faith over another in the adjudication of immigration applications, and,

17 inter alia, discriminate against immigrants who are Muslim or are from Muslim-majority countries on

18 the basis of their religion and country of origin. CARRP and the “extreme vetting” program to be

19 established under the Second EO are similarly unlawful and ultra vires. The Constitution expressly

20 assigns to Congress, not the executive branch, the authority to establish uniform rules of naturalization.

21 The INA sets forth those rules, along with the requirements for adjustment of status to lawful permanent

22 1 As set forth below in paragraph 59, USCIS did not make information about CARRP public, and the

23 program only was discovered through fortuity during federal court litigation. To the extent the program

has shifted in name, scope, or method, Plaintiffs may have no way to obtain that information. Thus, 24 Plaintiffs’ reference to “CARRP” incorporates any similar non-statutory and sub-regulatory successor

25

vetting policy, including pursuant to Sections 4 and 5 of the Second EO, as described in paragraphs 12627 below.

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1 resident, asylum, and all other immigration benefits. By creating additional, non-statutory, substantive

2 criteria for adjudicating immigration applications, CARRP and any successor “extreme vetting” program

3 violate the INA, the Administrative Procedure Act (“APA”) and the U.S. Constitution.

4 20. In addition, on information and belief, and based on USCIS’ interpretation of the First EO, the

5 applications of Plaintiff Ostadhassan, Plaintiff Bengezi, and proposed class members will be unlawfully

6 suspended due to the application of the Second EO. Furthermore, adjudications of all Plaintiffs’ and

7 proposed class members’ applications will be unlawfully subject to, and adjudicated under, CARRP or a

8 successor “extreme vetting” program.

9 21. On behalf of themselves and others similarly situated, Plaintiffs therefore request that the Court

10 enjoin USCIS from halting adjudications of immigration benefits applications for citizens and nationals

11 of the targeted countries pursuant to the Second EO. They further request that the Court enjoin USCIS

12 from applying CARRP (or any similar ultra vires policy/successor “extreme vetting” program) to their

13 immigration applications and the applications of similarly situated individuals.

14

15

JURISDICTION AND VENUE

16 22. Plaintiffs allege violations of the INA, the APA, and the U.S. Constitution. This Court has

17 subject matter jurisdiction under 28 U.S.C. § 1331. This Court also has authority to grant declaratory

18 relief under 28 U.S.C. §§ 2201 and 2202, and injunctive relief under 5 U.S.C. § 702 and 28 U.S.C.

19 § 1361.

20 23. Venue is proper in the Western District of Washington under 28 U.S.C. §§ 1391(b) and 1391(e)

21 because (1) Plaintiff Abdiqafar Wagafe, a citizen of the United States; Plaintiff Hanin Omar Bengezi, an

22 applicant for lawful permanent residence; Plaintiff Mushtaq Abed Jihad, a naturalization applicant; and

23 Plaintiff Sajeel Manzoor, a naturalization applicant, reside in this district and no real property is

24 involved in this action; (2) a substantial part of the events giving rise to the claims occurred in this

25 district; and (3) Plaintiffs sue Defendants in their official capacity as officers of the United States.

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1

PARTIES

2 24. Plaintiff Abdiqafar Wagafe is a thirty-two-year-old Somali national and former lawful permanent

3 resident, who is now a citizen of the United States. He has lived in the United States since May 2007

4 and currently resides in SeaTac, Washington. He is Muslim. He applied for naturalization in November

5 2013. Even though he satisfied all statutory criteria for naturalization, USCIS subjected his application

6 to CARRP, and as a result, a final decision was not issued for more than three and a half years. Five

7 days after Plaintiffs filed their Motion for Class Certification, on February 14, 2017, USCIS contacted

8 Plaintiff Wagafe to inform him that it had scheduled his long-awaited naturalization interview for

9 February 22, 2017. At his interview, USCIS found Plaintiff Wagafe met all the statutory criteria and

10 approved his naturalization application on the spot following the interview. He became a U.S. citizen on

11 March 2, 2017.

12 25. Plaintiff Mehdi Ostadhassan is a thirty-three-year-old national of Iran. He has lived in the

13 United States since 2009 and resides in Grand Forks, North Dakota. He applied for adjustment to lawful

14 permanent resident status in February 2014. He is Muslim. Even though he satisfies all statutory

15 criteria for adjustment of status, USCIS has suspended or will suspend adjudication of his application

16 under the First and Second EOs, respectively, and has subjected his application to CARRP or its

17 successor “extreme vetting” program, and, as a result, a final decision has not been issued.

18 26. Plaintiff Hanin Omar Bengezi is a thirty-three-year-old national of Libya. She has lived in the

19 United States since December 21, 2014, and currently resides in Redmond, Washington. After marrying

20 a United States citizen, Ms. Bengezi applied for adjustment to lawful permanent resident status in

21 February 2015. She is Muslim. Though she is a Canadian citizen and satisfies all statutory criteria for

22 adjustment of status, USCIS has suspended or will suspend adjudication of her application under the

23 First or Second EOs, respectively, and has subjected her application to CARRP or its successor

24 “extreme vetting” program, and, as a result, a final decision has not been issued.

25 27. Plaintiff Mushtaq Abed Jihad is a forty-four-year-old national of Iraq. He has lived in the United

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1 States since August 2008, and currently resides in Renton, Washington. He is Muslim. He applied for

2 naturalization in July 2013. Even though he satisfies all statutory criteria for naturalization, USCIS has

3 subjected his application to CARRP or its successor “extreme vetting” program, and, as a result, a final

4 decision has not been issued for more than three and a half years.

5 28. Plaintiff Sajeel Manzoor is a forty-year-old national of Pakistan. He has lived in the United

6 States since August 2001, and currently resides in Newcastle, Washington. He is Muslim. He applied

7 for naturalization in November 2015. Even though he satisfies all statutory criteria for naturalization,

8 USCIS has subjected his application to CARRP or its successor “extreme vetting” program, and, as a

9 result, a final decision has not been issued for more than one year.

10 29. Defendant Donald Trump is the President of the United States. Plaintiffs sue Defendant Trump

11 in his official capacity.

12 30. Defendant USCIS is a component of the Department of Homeland Security (“DHS”), and is

13 responsible for overseeing the adjudication of immigration benefits. USCIS implements federal law and

14 policy with respect to immigration benefits applications.

15 31. Defendant John F. Kelly is the Secretary of DHS, the department under which USCIS and

16 several other immigration agencies operate. Accordingly, Secretary Kelly has supervisory responsibility

17 over USCIS. Plaintiffs sue Defendant Kelly in his official capacity.

18 32. Defendant Lori Scialabba is the Acting Director of USCIS. Acting Director Scialabba

19 establishes and implements immigration benefits applications policy for USCIS and its subdivisions.

20 Plaintiffs sue Defendant Scialabba in her official capacity.

21 33. Defendant Matthew D. Emrich is the Associate Director of the Fraud Detection and National

22 Security Directorate of USCIS (“FDNS”), which is ultimately responsible for determining whether

23 individuals filing applications for immigration benefits pose a threat to national security, public safety,

24 or the integrity of the nation’s legal immigration system. Associate Director Emrich establishes and

25 implements policy for FDNS. Plaintiffs sue Defendant Emrich in his official capacity.

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1 34. Defendant Daniel Renaud is the Associate Director of the Field Operations Directorate of

2 USCIS, which is responsible for and oversees the processing and adjudication of immigration benefits

3 applications through the USCIS field offices and the National Benefits Center. Plaintiffs sue Defendant

4 Renaud in his official capacity.

5

LEGAL FRAMEWORK

6

A. Naturalization

7 35. To naturalize as a U.S. citizen, an applicant must satisfy certain eligibility criteria under the INA

8 and its implementing regulations. See generally 8 U.S.C. §§ 1421-1458; 8 C.F.R. §§ 316.1-316.14.

9 36. Applicants must prove that they are “at least 18 years of age,” 8 C.F.R. § 316.2(a)(1); have

10 “resided continuously, after being lawfully admitted” in the United States, “for at least five years”; and

11 have been “physically present” in the United States for “at least half of that time,” 8 U.S.C.

12 § 1427(a)(1).

13 37. Applicants must also demonstrate “good moral character” for the five years preceding the date of

14 application, “attach[ment] to the principles of the Constitution of the United States, and favorabl[e]

15 dispos[ition] toward the good order and happiness of the United States . . . .” 8 C.F.R. § 316.2(a)(7).

16 38. An applicant is presumed to possess the requisite “good moral character” for naturalization

17 unless, during the five years preceding the date of the application, he or she is found (1) to be a habitual

18 drunkard, (2) to have committed certain drug-related offenses, (3) to be a gambler whose income derives

19 principally from gambling or has been convicted of two or more gambling offenses, (4) to have given

20 false testimony for the purpose of obtaining immigration benefits; or if the applicant (5) has been

21 convicted and confined to a penal institution for an aggregate period of 180 days or more, (6) has been

22 convicted of an aggravated felony, or (7) has engaged in conduct such as aiding Nazi persecution or

23 participating in genocide, torture, or extrajudicial killings. 8 U.S.C. § 1101(f)(6).

24 39. The statutory and regulatory requirements set forth in paragraphs 37-38 are less stringent for

25 certain persons who married U.S. citizens and employees of certain nonprofit organizations, in that less

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1 than five years of residency and good moral character are required. See generally 8 U.S.C. § 1430; 8

2 C.F.R. §§ 319.1 and 319.4.

3 40. An applicant is barred from naturalization for national security-related reasons in circumstances

4 limited to those codified in 8 U.S.C. § 1424, including, inter alia, if the applicant has advocated, is

5 affiliated with any organization that advocates, or writes or distributes information that advocates, “the

6 overthrow by force or violence or other unconstitutional means of the Government of the United States,”

7 the “duty, necessity, or propriety of the unlawful assaulting or killing of any officer . . . of the

8 Government of the United States,” or “the unlawful damage, injury, or destruction of property.”

9 41. Once an individual submits an application, USCIS must conduct a background investigation, see

10 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1, which includes a full criminal background check by the Federal

11 Bureau of Investigation (“FBI”), see 8 C.F.R. § 335.2.

12 42. After completing the background investigation, USCIS must schedule a naturalization

13 examination at which the applicant meets with a USCIS examiner for an interview.

14 43. In order to avoid inordinate processing delays and backlogs, Congress has stated “that the

15 processing of an immigration benefit application,” which includes naturalization, “should be completed

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

17 either grant or deny a naturalization application within 120 days of the date of the examination. 8 C.F.R.

18 § 335.3.

19 44. If the applicant has complied with all requirements for naturalization, federal regulations state

20 that USCIS “shall grant the application.” 8 C.F.R. § 335.3(a) (emphasis added).

21 45. Courts have long recognized that “Congress is given power by the Constitution to establish a

22 uniform Rule of Naturalization. . . . And when it establishes such uniform rule, those who come within

23 its provisions are entitled to the benefit thereof as a matter of right. . . .” Schwab v. Coleman, 145 F.2d

24 672, 676 (4th Cir. 1944) (emphasis added); see also Marcantonio v. United States, 185 F.2d 934, 937

25 (4th Cir. 1950) (“The opportunity having been conferred by the Naturalization Act, there is a statutory

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1 right in the alien to submit his petition and evidence to a court, to have that tribunal pass upon them,

2 and, if the requisite facts are established, to receive the certificate.” (quoting Tutun v. United States, 270

3 U.S. 568, 578 (1926))).

4 46. Once an application is granted, the applicant is sworn in as a United States citizen.

5

B. Adjustment of Status to Lawful Permanent Resident

6 47. Federal law allows certain non-citizens to adjust their immigration status to that of a lawful

7 permanent resident (“LPR”).

8 48. Several events may trigger eligibility to adjust to LPR status, including, but not limited to, an

9 approved petition through a family member, such as a U.S. citizen spouse, or employer. See, e.g., 8

10 U.S.C. § 1255(a); 8 C.F.R. § 245.1.

11 49. In general, a noncitizen who is the beneficiary of an approved immigrant visa petition and who is

12 physically present in the United States may adjust to LPR status if he or she “makes an application for

13 such adjustment,” was “inspected and admitted or paroled” into the United States, is eligible for an

14 immigrant visa and admissible to the United States, and the immigrant visa is immediately available to

15 the applicant at the time the application is filed. 8 U.S.C. §§ 1255(a)(1)-(3); 8 C.F.R. § 245.1.

16 50. An adjustment applicant may be found inadmissible, and therefore ineligible to become an LPR,

17 if certain security-related grounds apply, including, inter alia, the applicant has engaged in terrorist

18 activity, is a representative or member of a terrorist organization, endorses or espouses terrorist activity,

19 or incites terrorist activity. See 8 U.S.C. § 1182(a)(3). USCIS’s definition of a national security concern

20 in CARRP is significantly broader than these security-related grounds of inadmissibility set by

21 Congress.

22 51. Congress has directed USCIS to process immigration benefit applications, including for

23 adjustment of status, within 180 days. 8 U.S.C. § 1571(b).

24

C. Other Immigration Benefits

25 52. Federal laws provide noncitizens living within the United States the opportunity to apply for a

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1 myriad of other immigration benefits apart from either naturalization or adjustment of status.

2 53. For example, persons fleeing persecution or torture may apply for asylum under 8 U.S.C. § 1158,

3 or withholding of removal, under 8 U.S.C. § 1231(b)(3). Victims of certain crimes and trafficking who

4 have suffered serious harm and who have cooperated with law enforcement may apply for nonimmigrant

5 visas under 8 U.S.C. §§ 1101(a)(15)(T), (U). Certain noncitizens from designated countries may apply

6 for Temporary Protected Status (“TPS”) in the event of, inter alia, a natural disaster or political

7 upheaval in their country of origin. 8 U.S.C. § 1254a. In addition, a significant number of noncitizens

8 within the United States are eligible for employment authorization based on either their current

9 immigration status, their employment status, or their temporary immigration status, including while

10 other applications for immigration benefits are pending. See generally 8 C.F.R. § 274.12a(a)-(c).

11 54. Every immigration benefit has enumerated statutory and/or regulatory requirements that

12 applicants must affirmatively establish to demonstrate eligibility. In addition, each applicant generally

13 must show that they are admissible under 8 U.S.C. § 1182 and/or that any past immigration violation or

14 criminal conduct does not disqualify them for the benefit sought. See, e.g., 8 U.S.C., §§ 1158(b)(2)

15 (precluding asylum eligibility to individuals found to have persecuted others, to have been convicted of

16 “a particularly serious crime,” or to present a danger to national security); 1231(b)(3)(B) (precluding

17 applicants from receiving withholding of removal based on national security grounds); 1254a(c)(2)(B)(i)

18 (precluding applicants from qualifying for TPS if they have been convicted of a felony or two or more

19 misdemeanors).

20

FACTUAL BACKGROUND

21

A. The Controlled Application Review and Resolution Program (“CARRP”)

22 55. In April 2008, USCIS created CARRP, an agency-wide policy for identifying, processing, and

23 adjudicating immigration applications that raise “national security concerns.” As described below,

24 however, CARRP unlawfully imposes extra statutory rules and criteria to delay and deny applicants

25 immigration benefits to which they are entitled.

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1 56. Congress did not enact CARRP, and USCIS did not promulgate it as a proposed rule with the

2 notice-and-comment procedures mandated by the APA. See 5 U.S.C. § 553(b)-(c).

3 57. Upon information and belief, prior to CARRP’s enactment, USCIS simply delayed the

4 adjudication of many immigration applications that raised possible national security concerns, in part

5 due to backlogs created by the FBI Name Check process (one of many security checks utilized by

6 USCIS).

7 58. Indeed, the U.S. District Court for the Western District of Washington previously certified a

8 district class of hundreds of naturalization applicants whose cases were delayed due to FBI Name

9 Checks, see Roshandel v. Chertoff, 554 F. Supp. 2d 1194 (W.D. Wash. 2008), and denied the

10 defendants’ motion to dismiss the suit, see Roshandel, 2008 WL 1969646 (W.D. Wash. May 5, 2008).

11 The case resulted in a settlement in which the defendants agreed to adjudicate class member applications

12 within a specified time period. See Roshandel, No. C07-1739MJP, Dkt. 81 (W.D. Wash. Aug. 25,

13 2008).

14 59. Now, in lieu of delays based on the FBI Name Check process, USCIS delays applications by

15 applying CARRP. Since CARRP’s inception, USCIS has not made information about CARRP available

16 to the public, except in response to Freedom of Information Act (“FOIA”) requests and litigation to

17 compel responses to those requests. See ACLU of Southern California v. USCIS, No. CV 13-861

18 (D.D.C. filed June 7, 2013). In fact, the program was unknown to the public, including applicants for

19 immigration benefits, until it was discovered in litigation challenging an unlawful denial of

20 naturalization in Hamdi v. USCIS, No. EDCV 10-894 VAP (DTBx), 2012 WL 632397 (C.D. Cal. Feb.

21 25, 2012), and then revealed in greater detail through the government’s response to a FOIA request.

22 60. CARRP directs USCIS officers to screen citizenship and immigration benefits applications for

23 national security concerns.

24 61. If a USCIS officer determines that an application presents a national security concern, he or she

25 will take the application off a routine adjudication track and—without notifying the applicant—place it

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1 on a CARRP adjudication track where it is subject to distinct procedures, heightened scrutiny, and, most

2 importantly, extra-statutory criteria that result in lengthy delays and prohibit approvals, except in limited

3 circumstances, regardless of an applicant’s statutory eligibility.

4

1. CARRP’s Definition of a National Security Concern

5 62. According to the CARRP definition, a national security concern arises when an individual or

6 organization has been determined to have an articulable link—no matter how attenuated or

7 unsubstantiated—to prior, current, or planned involvement in, or association with, an activity,

8 individual, or organization described in sections 212(a)(3)(A), (B), or (F), or 237(a)(4)(A) or (B) of the

9 INA. Those sections render inadmissible or removable any individual who, inter alia, “has engaged in

10 terrorist activity” or is a member of a “terrorist organization.” 8 U.S.C. §§ 1182(a)(3) and 1227(a)(4).

11 63. For the reasons described herein, an individual need not be actually suspected of engaging in any

12 unlawful activity or joining any proscribed organization to be branded a national security concern under

13 CARRP.

14 64. CARRP distinguishes between two types of national security concerns: those ostensibly

15 involving “Known or Suspected Terrorists” (“KSTs”), and those ostensibly involving “non-Known or

16 Suspected Terrorists” (“non-KSTs”).

17 65. USCIS automatically considers an applicant a KST, and thus a national security concern, if his or

18 her name appears in the Terrorist Screening Database, also referred to as the Terrorist Watchlist

19 (“TSDB” or “Watchlist”). USCIS, therefore, applies CARRP to any applicant whose name appears in

20 the TSDB.

21 66. Upon information and belief, the TSDB includes approximately one million names, many of

22 whom present no threat to the United States.

23 67. The government’s Watchlisting Guidance sets a very low “reasonable suspicion” standard for

24 placement on the Watchlist. Under the Guidance, concrete facts are not necessary to satisfy the

25 reasonable suspicion standard, and uncorroborated information of questionable or even doubtful

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1 reliability can serve as the basis for blacklisting an individual. The Guidance further reveals that the

2 government blacklists non-U.S. citizens, including LPRs, even where it cannot meet the already low

3 reasonable suspicion standard of purported involvement with terrorist activity. The Guidance permits

4 the watchlisting of noncitizens simply for being associated with someone else who has been watchlisted,

5 even if there is no known involvement with that person’s purportedly suspicious activity. The Guidance

6 also states explicitly that noncitizens may be watchlisted based on information that is very limited or of

7 suspected reliability. These extremely loose standards significantly increase the likelihood that the

8 TSDB contains information on individuals who are neither known nor appropriately suspected terrorists.

9 68. Furthermore, the Terrorist Screening Center (“TSC”), which maintains the TSDB, has failed to

10 ensure that individuals who do not meet the Watchlist’s criteria are promptly removed from the TSDB

11 (or not blacklisted in the first place). In 2013 alone, the watchlisting community nominated 468,749

12 individuals to the TSDB, and the TSC rejected only approximately one percent of those nominations.

13 Public reports also confirm that the government has nominated or retained people on government

14 watchlists as a result of human error.

15 69. The federal government’s official policy is to refuse to confirm or deny any given individual’s

16 inclusion in the TSDB or provide a meaningful opportunity to challenge that inclusion. Nevertheless,

17 individuals can become aware of their inclusion due to air travel experiences. In particular, individuals

18 may learn that they are on the “Selectee List” or the “Expanded Selectee List,” subsets of the TSDB, if

19 their boarding passes routinely display the code “SSSS” or they are routinely directed for additional

20 screening before boarding a flight over U.S. airspace. They may also learn of their inclusion in the

21 TSDB if U.S. federal agents regularly subject them to secondary inspection when they enter the United

22 States from abroad. Such individuals are also often unable to check-in for flights online or at airline

23 electronic kiosks at the airport.

24 70. Where the KST designation does not apply, CARRP instructs officers to look for indicators of a

25 non-Known or Suspected Terrorist (“non-KST”) concern.

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1 71. These indicators fall into three categories: (1) statutory indicators; (2) non-statutory indicators;

2 and (3) indicators contained in security check results.

3 72. Statutory indicators of a national security concern arise when an individual generally meets the

4 definitions described in Sections 212(a)(3)(A), (B), and (F), and 237(a)(4)(A) and (B) of the INA

5 (codified at 8 U.S.C. § 1182(a)(3)(A), (B), and (F) and § 1227(a)(4)(A) and (B)), which list the security 6 and terrorism grounds of inadmissibility and removability.2 However, CARRP expressly defines

7 statutory indicators of a national security concern more broadly than the statute, stating that the facts of

8 the case do not need to satisfy the legal standard used in determining admissibility or removability under

9 those provisions of the INA to give rise to a non-KST national security concern.

10 73. For example, CARRP policy specifically directs USCIS officers to scrutinize evidence of

11 charitable donations to organizations later designated as financiers of terrorism by the U.S. Treasury

12 Department and to construe such donations as evidence of a national security concern, even if an

13 individual had made such donations without any knowledge that the organization was engaged in

14 proscribed activity. Such conduct would not make an applicant inadmissible for a visa, asylum, or LPR

15 status under the statute, see 8 U.S.C. § 1182(a)(3)(B), nor does it have any bearing on a naturalization

16 application.

17 74. Under CARRP, non-statutory indicators of a national security concern include travel through or

18 residence in areas of known terrorist activity; a large scale transfer or receipt of funds; a person’s

19 employment, training, or government affiliations; the identities of a person’s family members or close

20 associates, such as a roommate, co-worker, employee, owner, partner, affiliate, or friend; or simply other

21 suspicious activities.

22 2 These security and terrorism grounds of inadmissibility, if applicable, may bar an applicant from

23 obtaining lawful permanent resident status, asylum, or a visa. However, they do not bar an applicant

who is already a lawful permanent resident from naturalization, which is governed by the statutory 24 provisions specific to naturalization. See 8 U.S.C. §§ 1421-1458. The security and terrorism provisions

25

also may render a non-citizen removable, see 8 U.S.C. § 1227(a)(4), but the government has not charged Plaintiffs with removability under these provisions.

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1 75. Finally, security check results are considered indicators of a national security concern in

2 instances where, for example, the FBI Name Check produces a positive hit on an applicant’s name and

3 the applicant’s name is associated with a national security-related investigatory file. Upon information

4 and belief, this indicator leads USCIS to label applicants national security concerns solely because their

5 names appear in a law enforcement or intelligence file, even if they were never the subject of an

6 investigation. For example, an applicant’s name could appear in a law enforcement file in connection

7 with a national security investigation because he or she once gave a voluntary interview to an FBI agent,

8 he or she attended a mosque that was the subject of FBI surveillance, or he or she knew or was

9 associated with someone under investigation.

10 76. Upon information and belief, CARRP labels applicants national security concerns based on

11 vague and overbroad criteria that often turn on national origin or innocuous and lawful activities or

12 associations. These criteria are untethered from the statutory criteria that determine whether a person is

13 eligible for the immigration status or benefit they seek, and are so general that they necessarily ensnare

14 individuals who pose no threat to the security of the United States.

15

2. Delay and Denial

16 77. Once a USCIS officer identifies a CARRP-defined national security concern, the application is

17 subjected to CARRP’s rules and procedures that guide officers to deny such applications or, if an officer

18 cannot find a basis to deny the application, to delay adjudication as long as possible.

19

a) Deconfliction

20 78. One such procedure is called “deconfliction,” which requires USCIS to coordinate with—and,

21 upon information and belief, subordinate its authority to—the law enforcement agency, often the FBI,

22 that possesses information giving rise to the supposed national security concern.

23 79. During deconfliction, the relevant law enforcement agency has authority: to instruct USCIS to

24 ask certain questions in an interview or to issue a Request for Evidence (“RFE”); to comment on a

25 proposed decision on the benefit; and to request that USCIS deny, grant, or hold the application in

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1 abeyance for an indefinite period of time.

2 80. Upon information and belief, deconfliction allows law enforcement or intelligence agencies such

3 as the FBI to directly affect the adjudication of a requested immigration benefit, and also results in the

4 agencies conducting independent interrogations of the applicant—or the applicant’s friends and family.

5 81. Upon information and belief, USCIS often makes decisions to deny immigration benefit

6 applications because the FBI requests or recommends the denial, not because the person is statutorily

7 ineligible for the benefit.

8 82. The FBI often seeks to use the pending immigration application to coerce the applicant to act as

9 an informant or otherwise provide information.

10

b) Eligibility Assessment

11 83. In addition to deconfliction, once officers identify an applicant as a national security concern,

12 CARRP directs officers to perform an “eligibility assessment” to determine whether the applicant is

13 eligible for the benefit sought.

14 84. Upon information and belief, at this stage, CARRP instructs officers to look for any reason to

15 deny an application so that time and resources are not expended to investigate the possible national

16 security concern. Where no legitimate reason supports denial of an application subjected to CARRP,

17 USCIS officers often utilize spurious or pretextual reasons to deny the application.

18

c) Internal Vetting

19 85. Upon information and belief, if, after performing the eligibility assessment, an officer cannot

20 find a reason to deny an application, CARRP instructs officers to first “internally vet” the national

21 security concern using information available in DHS systems and databases, open source information,

22 review of the applicant’s file, RFEs, and interviews or site visits.

23 86. After conducting the eligibility assessment and internal vetting, USCIS officers are instructed to

24 again conduct deconfliction to determine the position of any interested law enforcement agency.

25

d) External Vetting

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1 87. If the national security concern remains and the officer cannot find a basis to deny the benefit,

2 the application then proceeds to “external vetting.”

3 88. During external vetting, USCIS instructs officers to confirm the existence of the national security

4 concern with the law enforcement or intelligence agency that possesses the information that created the

5 concern and obtain additional information from that agency about the concern and its relevance to the

6 individual.

7 89. CARRP policy instructs USCIS officers to hold applications in abeyance for periods of 180 days

8 to enable law enforcement agents and USCIS officers to investigate the national security concern.

9 According to CARRP policy, the USCIS Field Office Director may extend the abeyance periods as long

10 as the investigation remains open.

11 90. Upon information and belief, CARRP provides no outer limit on how long USCIS may hold a

12 case in abeyance, even though the INA requires USCIS to adjudicate a naturalization application within

13 120 days of examination, 8 C.F.R. § 335.3, and Congress has made clear its intent that USCIS

14 adjudicate immigration applications, including visa petitions and accompanying applications for

15 adjustment of status to lawful permanent residence, within 180 days of filing the application. 8 U.S.C. §

16 1571(b).

17

e) Adjudication

18 91. When USCIS considers an applicant to be a KST national security concern, CARRP policy

19 forbids USCIS adjudications officers from granting the requested benefit even if the applicant satisfies

20 all statutory and regulatory criteria.

21 92. When USCIS considers an applicant to be a non-KST national security concern, CARRP policy

22 forbids USCIS adjudications officers from granting the requested benefit in the absence of supervisory

23 approval and concurrence from a senior level USCIS official.

24 93. In Hamdi, 2012 WL 632397, when asked whether USCIS’s decision to brand naturalization

25 applicant Tarek Hamdi as a national security concern affected whether he was eligible for naturalization,

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1 a USCIS officer testified that “it doesn’t make him statutorily ineligible, but because he is a—he still has

2 a national security concern, it affects whether or not we can approve him.” The officer testified that,

3 under CARRP, “until [the] national security concern [is] resolved, he won’t get approved.”

4 94. Upon information and belief, USCIS routinely delays adjudication of applications subject to

5 CARRP when it cannot find a reason to deny the application. When an applicant files a mandamus

6 action to compel USCIS to finally adjudicate his or her pending application, it often has the effect of

7 forcing USCIS to deny a statutorily-eligible application on pretextual grounds because CARRP prevents

8 agency field officers from granting an application involving a national security concern.

9 95. CARRP effectively creates two substantive regimes for immigration application processing and

10 adjudication: one for those applications subject to heightened scrutiny and vetting under CARRP and

11 one for all other applications. CARRP rules and procedures create substantive eligibility criteria that

12 indefinitely delay adjudications and unlawfully deny immigration benefits to noncitizens who are

13 statutorily eligible and entitled by law.

14 96. At no point during the CARRP process is the applicant made aware that he or she has been

15 labeled a national security concern, nor is the applicant ever provided with an opportunity to respond to

16 and contest the classification.

17 97. Upon information and belief, CARRP results in unauthorized adjudication delays, often lasting

18 many years, and pre-textual denials of statutorily-eligible immigration applications.

19

B. Executive Order of January 27, 2017

20 98. President Donald Trump campaigned for election on promises to ban Muslims from coming to

21 the United States.

22 99. On December 7, 2015, the Trump campaign issued a press release stating that “Donald J. Trump

23 is calling for a total and complete shutdown of Muslims entering the United States until our country’s

24 representatives can figure out what is going on.” The press release is attached hereto as Exhibit A.

25 100. In March 2016, Defendant Trump said, “Frankly, look, we’re having problems with the Muslims,

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1 and we’re having problems with Muslims coming into the country.” Alex Griswold, Trump Responds to

2 Brussels Attacks: ‘We’re Having Problems with the Muslims,’ MEDIAITE, Mar. 22, 2016, available at

3 http://www.mediaite.com/tv/trump-responds-to-brussels-attack-were-having-problems-with-the-

4 muslims/ (last visited Feb. 1, 2017).

5 101. On June 14, 2016, Defendant Trump promised to ban all Muslims entering this country until “we

6 as a nation are in a position to properly and perfectly screen those people coming into our country.” The

7 transcript of his speech is attached hereto as Exhibit B.

8 102. In a speech on August 15, 2016, Defendant Trump said that the United States could not

9 “adequate[ly] screen[]” immigrants because it admits “about 100,000 permanent immigrants from the

10 Middle East every year.” Defendant Trump proposed creating an ideological screening test for

11 immigration applicants, which would “screen out any who have hostile attitudes towards our country or

12 its principles—or who believe that Sharia law should supplant American law.” During the speech, he

13 referred to his proposal as “extreme, extreme vetting.” A copy of his prepared remarks is attached

14 hereto as Exhibit C. A video link to the delivered speech is available at: https://www.c-

15 span.org/video/?413977-1/donald-trump-delivers-foreign-policy-address (quoted remarks at 50:46).

16 103. During an August 2016 speech, Michael Flynn, who is President Trump’s former National

17 Security Advisor, called Islam “a political ideology,” suggesting it is not a religion, and called it “a

18 vicious cancer inside the body of 1.7 billion people on this planet and it has to be excised.” A copy of a

19 news article reporting this speech is attached hereto as Exhibit D. A video link with clips of his speech

20 is available at: http://www.cnn.com/2016/11/22/politics/kfile-michael-flynn-august-speech/.

21 104. On January 20, 2017, Donald Trump was inaugurated as the President of the United States.

22 105. In his first television appearance as President, he again referred to his plan for “extreme vetting.”

23 The transcript of this interview is attached hereto as Exhibit E.

24 106. On January 27, 2017, one week after taking office, Defendant Trump signed the First EO,

25 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The Executive

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1 Order is attached hereto as Exhibit F. On information and belief, and in light of the statements by Mr.

2 Trump and his advisors set forth above, the First EO was intended to target Muslims.

3 107. Citing the threat of terrorism committed by foreign nationals, the First EO directed a variety of

4 changes to the processing of certain immigration benefits. Most relevant to the instant action was

5 Section 3, which fell within a section entitled “Suspension of Issuance of Visas and Other Immigration

6 Benefits,” in which President Trump ordered, in Section 3(a), an immediate “review to determine the

7 information needed from any country to adjudicate any visa, admission, or other benefit under the INA

8 (adjudications) in order to determine that the individual seeking the benefit is who the individual claims

9 to be and is not a security or public-safety threat.” In Section 3(c), the order then explained that to

10 reduce the burden of the reviews described in Section 3(a), “immigrant and nonimmigrant entry into the

11 United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C.

12 § 1187(a)(12), would be detrimental to the interests of the United States,” and that Defendant Trump

13 was therefore “suspend[ing] entry into the United States, as immigrants and nonimmigrants, of such

14 persons for 90 days from the date of this order.”

15 108. There were seven countries that fit the criteria in 8 U.S.C. § 1187(a)(12): Iraq, Iran, Libya,

16 Somalia, Sudan, Syria, and Yemen. The populations of those countries are overwhelmingly Muslim.

17 109. The First EO purported to rely on 8 U.S.C. § 1182(f) for the authority to suspend entry into the

18 United States.

19 110. On information and belief, USCIS relied on Section 3 of the First EO to subsequently suspend

20 processing of all immigrant visas and immigration benefits applications, including all pending petitions,

21 applications, or requests involving citizens or nationals of the seven targeted countries with the

22 exception of naturalization applications.

23 111. Section 4 of the First EO ordered the creation of a screening program for all immigration benefits

24 applications, which would seek to identify individuals “who are seeking to enter the United States on a

25 fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their

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1 admission” and “a process to evaluate the applicant’s likelihood of becoming a positively contributing

2 member of society and the applicant’s ability to make contributions to the national interest.”

3 112. Sections 5(a) and (b) of the First EO suspended the U.S. Refugee Admissions Program in its

4 entirety for 120 days and then, upon its resumption, directed the program to prioritize refugees who

5 claim persecution on the basis of religious-based persecution, “provided that the religion of the

6 individual is a minority religion in the individual’s country of nationality.” Section 5(e) stated that

7 notwithstanding the suspension of the Refugee Program, on a case-by-case basis, the United States may

8 admit refugees “only so long as they determine that the admission of such individuals as refugees is in

9 the national interest—including when the person is a religious minority in his country of nationality

10 facing religious persecution.”

11 113. In a January 27, 2017, interview with the Christian Broadcasting Network, President Trump

12 confirmed his intent to prioritize Christians in the Middle East for admission as refugees. A copy of the

13 report of this interview is attached hereto as Exhibit G (David Brody: “As it relates to persecuted

14 Christians, do you see them as kind of a priority here?” President Trump: “Yes.”).

15

C. Executive Order of March 6, 2017

16 114. On January 30, 2017, the State of Washington filed a lawsuit in this district seeking to enjoin

17 application of the First EO. Complaint for Declaratory and Injunctive Relief, Washington v. Trump, No.

18 2:17-cv-00141-JLR, ECF 1 (W.D. Wash. Jan. 30, 2017). On February 3, Judge James L. Robart granted

19 the State of Washington’s motion for a temporary restraining order, which enjoined enforcement of

20 Sections 3(a), 5(a)-(c), and 5(e) of the First EO nationwide during the pendency of the case. Temporary

21 Restraining Order, Washington v. Trump, No. 2:17-cv-00141-JLR, ECF 52, 2017 WL 462040 (W.D.

22 Wash. Feb. 3, 2017). Defendant Trump subsequently lashed out at the “so-called judge” who granted

23 the temporary restraining order, calling the court’s opinion “ridiculous” and predicting it would be

24 overturned. Donald Trump (@realDonaldTrump), TWITTER (Feb. 4, 2017, 05:12 AM),

25 https://twitter.com/realDonaldTrump/status/827867311054974976. To the contrary, the Ninth Circuit

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1 Court of Appeals— in a unanimous per curiam opinion—denied the government’s motion for an

2 emergency stay of the district court’s temporary restraining order. Washington v. Trump, 847 F.3d 1151

3 (9th Cir. 2017).

4 115. In response to the Ninth Circuit’s decision, Defendant Trump simultaneously vowed to

5 “vigorously defend[] this lawful order [First EO],” while “going further” to “issue[] a new executive

6 action . . . that will comprehensively protect our country.” See Aaron Blake, Donald Trump’s

7 combative, grievance-filled news conference, annotated, THE WASHINGTON POST at 5-6, 28 (Feb. 16,

8 2017) available at https://www.washingtonpost.com/news/the-fix/wp/2017/02/16/donald-trumps-

9 grievance-filled-press-conference-annotated/?utm_term=.696842f824c0. “Extreme vetting will be put

10 in place,” Defendant Trump promised, “and it already is in place in many places.” Id. Later during the

11 same press conference, Defendant Trump again addressed the forthcoming Second EO, noting “we can

12 tailor the [executive] order to that [Ninth Circuit] decision and get just about everything, in some ways,

13 more.” Id.

14 116. That same day, the government clarified in a brief to the Ninth Circuit that “[r]ather than

15 continuing this litigation, the President intends in the near future to rescind the [First Executive] Order

16 and replace it with a new . . . Executive Order.” Supplemental Brief on En Banc Consideration at 4,

17 Washington v. Trump, No. 17-35105 (9th Cir. Feb. 16, 2017).

18 117. In the days that followed, Defendant Trump’s senior policy advisor, Stephen Miller, confirmed

19 that though the new executive order would have “minor technical differences,” “[f]undamentally,” it

20 would achieve “the same basic policy outcome for the county.” See Miller: New order will be

21 responsive to judicial ruling; Rep. Don DeSantis: Congress has gotten off to a slow start at 2 (Feb. 21,

22 2017), available at http://www.foxnews.com/transcript/2017/02/21/miller-new-order-will-be-

23 responsive-to-judicial-ruling-rep-ron-desantis/.

24 118. Similarly, White House Press Secretary Sean Spicer noted that though “the second executive

25 order attempts to address the court’s concerns that they made, the goal is obviously to maintain the way

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1 that we did it the first time because we believe that the law is very clear about giving the President the

2 authority that he needs to protect the country.” See Press Briefing by Press Secretary Sean Spicer,

3 2/27/2017, #17, The White House at 26-27 (Feb. 27, 2017), available at

4 https://www.whitehouse.gov/the-press-office/2017/02/27/press-briefing-press-secretary-sean-spicer-

5 2272017-17.

6 119. As promised, on March 6, 2017, Defendant Trump issued a Second EO, which espouses the

7 same discriminatory policy and effect as the First EO. The Second EO revoked the First EO as of its

8 March 16, 2017 effective date. Second EO § 13. The Second EO is attached hereto as Exhibit I.

9 120. The Second EO modifies the First EO in two relevant ways. First, whereas the First EO banned

10 entry into the United States for 90 days or more of foreign nationals from seven countries, the Second

11 EO omits Iraq—bringing the number of countries affected by this entry bar down to six (Iran, Libya, 12 Somalia, Sudan, Syria, and Yemen). Id. §§ 1(f),1(g), 2(c).3 Second, the Second EO clarifies that the

13 90-day entry bar applies only to foreign nationals who: (1) are outside of the United States on the

14 effective date of the Second EO; (2) did not have a valid visa at 5:00 p.m., eastern standard time on

15 January 27, 2017; and (3) do not have a valid visa on the effective date of the Second EO. Id. §3(a).

16 121. Despite these changes, however, the same intent and effect of unlawfully discriminating against

17 Muslim immigrants underlying the First EO similarly underlies the Second EO. On information and

18 belief, and in light of the statements made by Defendant Trump and his advisors set forth above, the

19 Second EO was intended to continue the First EO’s intent to target Muslims.

20 122. Indeed, the Second EO retains in almost identical form the provisions from the First EO that are

21 central to Plaintiffs’ allegations in this case.

22 123. Section 2(a) of the Second EO, like Section 3(a) of the First EO, instructs the Secretary of

23 Homeland Security to “conduct a worldwide review to identify whether, and if so what, additional

24 3 Though, as explained below in paragraph 126, this exclusion of Iraq from the 90-day entry bar is

25

tempered by the Second EO’s simultaneous provision of heightened scrutiny to applications for visas, admission or other immigration benefits made by Iraqi nationals.

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1 information will be needed from each foreign country to adjudicate an application by a national of that

2 country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that

3 the individual is not a security or public-safety threat.” Section 2(b) specifies that the Secretary of

4 Homeland Security shall report on the results of this review within 20 days of the effective date of the

5 Second EO. Compare First EO § 3(b), with Second EO § 2(b).

6 124. In order to “reduce investigative burdens” while this “worldwide review” is ongoing, Section

7 2(c) of the Second EO demands that “the entry into the United States of nationals of those six countries

8 be suspended for 90 days.” Compare First EO §3(c), with Second EO § 2(c).

9 125. Moreover, if these countries do not supply the additional information identified by the Secretary

10 of Homeland Security within 50 days of notification, the Secretary of Homeland Security “shall submit

11 to the President a list of countries recommended for inclusion in a Presidential proclamation that would

12 prohibit the entry of appropriate categories of foreign nationals” of these countries. Compare First EO

13 §§ 3(d), 3(e), with Second EO §§ 2(d), 2(e).

14 126. Notably, Section 4 of the Second EO applies heightened scrutiny to immigration applications

15 received from Iraqi nationals. Section 4 specifies that applications for “a visa, admission, or other

16 immigration benefit” made by Iraqi nationals must still be subjected to “thorough review” to determine

17 whether the applicant has any connections to ISIS or any other terrorist organization or may be a

18 terrorist or national security threat. Accordingly, though Iraqi nationals are exempted from the 90-day

19 entry bar outlined in Section 2(c), they continue to be targeted under Section 4.

20 127. Additionally, Section 5 of the Second EO demands the creation of the same “extreme vetting”

21 program outlined in Section 4 of the First EO. The Second EO specifies that “[t]he Secretary of State,

22 the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence

23 shall implement a program, as part of the process for adjudications, to identify individuals who seek to

24 enter the United States on a fraudulent basis, who support terrorism, violent extremism, acts of violence

25 toward any group or class of people within the United States, or who present a risk of causing harm

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1 subsequent to their entry.” Compare First EO §4(a), with Second EO § 5(a). Section 5 further envisions

2 “[t]his program shall include the development of a uniform baseline for screening and vetting standards

3 and procedures” and applies to both admission and all “other immigration benefits.” Second EO § 5(a).

4 128. Finally, Section 6 of the Second EO, like Section 5 of the First EO, “suspend[s] travel of

5 refugees into the United States” and “suspend[s] decisions on applications for refugee status, for 120

6 days.” Compare First EO § 5(a), with Second EO § 6(a). Following this 120-day suspension, “the

7 Secretary of Homeland Security shall resume making decisions on applications for refugee status only

8 for stateless persons and nationals of countries for which the Secretary of State, the Secretary of

9 Homeland Security, and the Director of National Intelligence have jointly determined that the additional

10 procedures implemented pursuant to this subsection are adequate to ensure the security and welfare of

11 the United States.” Second EO § 6(a). Notably, the Second EO removed the First EO’s explicit

12 preference for refugees who claim persecution based on their ascription to a minority religion. Compare

13 First EO §§ 5(b), 5(e), with Second EO §§ 6(a), 6(c). The Second EO further purports to claim that the

14 First EO “did not provide a basis for discriminating for or against members of any particular religion,”

15 and that “[w]hile that order allowed for prioritization of refugee claims from members of persecuted

16 religious minority groups, that priority applied to refugees from every nation, including those in which

17 Islam is a minority religion.” Second EO § 1(b)(iv).

18 129. Just hours before the Second EO was scheduled to go into effect, on March 15, 2017 the U.S.

19 District Court for the District of Hawaii granted a nationwide temporary restraining order, blocking

20 application of Sections 2 and 6 of the Second EO during the pendency of that legal challenge. Order

21 Granting Motion for Temporary Restraining Order, Hawaii v. Trump, No. 17-00050 DKW-KSC (D.

22 Haw. Mar. 15, 2017).

23 130. Hours later, a second federal judge in Maryland issued a nationwide preliminary injunction,

24 blocking Section 2(c) of the Second EO from going into effect. Memorandum Opinion, Int’l Refugee

25 Assistance Project v. Trump, No. TDC-17-0361 (D. Md. Mar. 15, 2017).

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1 131. No court has yet enjoined the “extreme vetting” provisions, including Sections 4 and 5, of the

2 Second EO.

3

D. Impact of Executive Orders on Implementation of CARRP

4 1. Ban on the Adjudication of Immigration Benefits Applications for Immigrants from the

5

Targeted Countries

6 132. After the issuance of the First EO, at least two department heads within USCIS sent internal

7 communications barring any final action on any petition, benefits application, or requests involving

8 citizens or nationals of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya.

9 133. On January 28, 2017, Associate Director of Service Center Operations for USCIS, Donald

10 Neufeld, issued instructions to Service Center directors and deputies in an email message directing the

11 suspension of the “adjudication of all applications, petitions or requests involving citizens or nationals of

12 the [seven] listed countries.” The email continues, “At this point there are no exceptions for any form

13 types, to include I-90s or I-765s. Please physically segregate any files that are impacted by this

14 temporary hold pending further guidance.” Photographs of the internal email communication are

15 attached hereto as Exhibit H.

16 134. In another email to staff from Daniel M. Renaud, Associate Director of Field Operations for

17 USCIS, on January 28, 2017, Mr. Renaud stated, “Effectively [sic] immediately and until additional

18 guidance is received, you may not take final action on any petition or application where the applicant is

19 a citizen or national of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya.” Alice Speri and Ryan

20 Devereaux, Turmoil at DHS and State Department, THE INTERCEPT, Jan. 30, 2017, available at

21 https://theintercept.com/2017/01/30/asylum-officials-and-state-department-in-turmoil-there-are-people-

22 literally-crying-in-the-office-here/. The email continued, “Offices are not permitted [to] make any final

23 decision on affected cases to include approval, denial, withdrawal, or revocation. Please look for

24 additional guidance later this weekend on how to process naturalization applicants from one of the seven

25 countries listed above who are currently scheduled for oath ceremony or whose N-400s have been

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1 approved and they are pending scheduling of oath ceremony.” Id.; see also Michael D. Shear and Ron

2 Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos, NEW YORK TIMES

3 (Jan. 29, 2017), available at https://www.nytimes.com/2017/01/29/us/politics/donald-trump-rush-

4 immigration-order-chaos.html.

5 135. On January 31, 2017, U.S. Customs and Border Protection, a subdivision of DHS, reported on its

6 website that the First EO does not apply to pending naturalization applications and that “USCIS will

7 continue to adjudicate N-400 applications for naturalization and administer the oath of citizenship

8 consistent with prior practices.” Protecting the Nation from Foreign Terrorist Entry into the United

9 States, CBP,

10 https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states.

11 136. Referencing the hold on adjudications for people from the seven countries subject to the First

12 EO, a USCIS official told The Intercept, “We know what is coming. These cases will all be denied after

13 significant waits.” Alice Speri and Ryan Devereaux, Turmoil at DHS and State Department, THE

14 INTERCEPT, Jan. 30, 2017.

15 137. This halt in USCIS adjudications took place pursuant to provisions of the First EO which also

16 appear, in similar form, in the Second EO. Implementation of the Second EO was enjoined before

17 Section 2 could go into effect. However, upon information and belief, USCIS similarly will apply the

18 Second EO to suspend adjudication of immigration benefits to people from its six targeted countries.

19 The application of the Second EO to USCIS immigration benefits applications will effectuate the intent

20 of the Second EO to target Muslims.

21

2. “Extreme Vetting” of Muslim Immigrants

22 138. As described above, Section 5 of the Second EO orders the Secretary of Homeland Security, the

23 Secretary of State, the Director of National Intelligence, and the Attorney General to “implement a

24 program, as part of the process for adjudications, to identify individuals . . . who present a risk of

25 causing harm.” The Second EO calls for the implementation of a “program [that] shall include the

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1 development of a uniform baseline for screening and vetting standards and procedures,” including “a

2 mechanism to assess whether applicants may commit, aid, or support any kind of violent, criminal, or

3 terrorist acts after entering the United States,” and “any other appropriate means for ensuring . . . a

4 rigorous evaluation of all grounds . . . for denial of…immigration benefits.”

5 139. Similarly, Section 4 of the Second EO applies heightened scrutiny to immigration applications

6 received from Iraqi nationals. Section 4 specifies that applications for “a visa, admission, or other

7 immigration benefit” made by Iraqi nationals must still be subjected to “thorough review” to determine

8 whether the applicant has any connections to ISIS or any other terrorist organization or may be a

9 terrorist or national security threat. Accordingly, though Iraqi nationals are exempted from the 90-day

10 entry bar outlined in Section 2(c), they continue to be targeted under Section 4.

11 140. In conjunction with the issuance of the Second EO, Defendant Trump published a

12 “Memorandum for the Secretary of State, the Attorney General, the Secretary of Homeland Security” on

13 the subject of “Implementing Immediate Heightened Screening and Vetting of Applications for Visas

14 and Other Immigration Benefits….” March 6, 2017, available at https://www.whitehouse.gov/the-press-

15 office/2017/03/06/memorandum-secretary-state-attorney-general-secretary-homeland-security. In this

16 memorandum, Defendant Trump cautions that “this Nation cannot delay the immediate implementation

17 of additional heightened screening and vetting protocols and procedures for issuing visas to ensure that

18 we strengthen the safety and security of our country.” Accordingly, he instructs the Secretary of State

19 and the Secretary of Homeland Security, in conjunction with the Attorney General, to “implement

20 protocols and procedures as soon as practicable that in their judgment will enhance the screening and

21 vetting of applications for visas and all other immigration benefits.” Moreover, this implementation

22 shall begin immediately, “[w]hile th[e] comprehensive review” ordered by Section 2 of the Second EO

23 “is ongoing.” The memorandum also instructs government officials to “rigorously enforce all existing

24 grounds of inadmissibility and to ensure subsequent compliance with related laws after admission.”

25 141. Upon information and belief, the “extreme vetting” program required by the Second EO, as

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1 enhanced by Defendant Trump’s accompanying memorandum, will dramatically expand CARRP, an

2 existing program USCIS has implemented since April 2008.

3

B. Facts Specific To Each Plaintiff

4

Abdiqafar Wagafe

5 142. Plaintiff Abdiqafar Aden Wagafe is a thirty-two-year-old Somali national who currently resides

6 in SeaTac, Washington.

7 143. Between 2001 and 2007, Mr. Wagafe lived in refugee camps and temporary refugee housing in

8 Kenya and Ethiopia.

9 144. On May 24, 2007, he moved to the United States with nine family members and was admitted as

10 a refugee. He has lived in the United States since then.

11 145. After arriving in the United States, Mr. Wagafe briefly stayed in Minneapolis, Minnesota with

12 his brother. He then moved to Seattle, where his two sisters and another brother live.

13 146. All of the nine family members who moved to the United States with Mr. Wagafe have become

14 U.S. citizens.

15 147. From July 2007 until February 2011, Mr. Wagafe worked for Delta Global Services until

16 widespread layoffs left him without a job. Since February 2011, he has worked at a Somali restaurant,

17 which he currently co-owns and manages.

18 148. On May 28, 2008, Mr. Wagafe filed an application for refugee adjustment of status to become an

19 LPR.

20 149. USCIS granted his application on November 3, 2008, retroactively granting him LPR status as of

21 May 24, 2007, the date he was admitted to the U.S. as a refugee. See 8 C.F.R. § 209.1(e).

22 150. Mr. Wagafe filed his first application for naturalization on July 3, 2012. USCIS interviewed him

23 on October 29, 2012, but he failed the English-language portion of the exam. USCIS interviewed Mr.

24 Wagafe a second time on January 3, 2013, but he again failed the English writing portion of the exam.

25 He also did not understand English sufficiently to comprehend the Oath of Allegiance. On these bases,

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1 USCIS denied his first application for naturalization on January 9, 2013.

2 151. Mr. Wagafe has since improved his English skills significantly.

3 152. Mr. Wagafe filed a second application for naturalization on November 8, 2013. USCIS

4 scheduled his interview for February 25, 2014, but cancelled it on January 29, 2014 without explanation.

5 153. Mr. Wagafe made various inquiries concerning his case to USCIS, but did not receive any

6 explanation for the delay. USCIS responded to his queries in July 2015, instructing his attorney to have

7 patience and that the agency would let him know when the agency was ready to interview him. His

8 subsequent inquiries went unanswered.

9 154. On February 14, 2017—five days after Plaintiffs filed their motion for class certification in this

10 case—a USCIS officer suddenly informed Mr. Wagafe’s attorney that an interview had been scheduled

11 on his immigration application. At the interview, which occurred on February 22, 2017, the

12 immigration officer approved Mr. Wagafe’s application on the spot. Mr. Wagafe took the oath of

13 allegiance on March 2, 2017 and became a United States citizen on that same day. In sum, after keeping

14 his application on hold for three and a half years without explanation, the government processed and

15 approved Mr. Wagafe’s application within two weeks of Plaintiffs filing for class certification.

16 155. Mr. Wagafe resided continuously in the United States for at least five years preceding the date of

17 filing his application for naturalization, and has resided continuously within the United States from the

18 date of filing his application until the present.

19 156. Mr. Wagafe has never been convicted of a crime.

20 157. There is and was no statutory basis for denying his naturalization application.

21 158. Mr. Wagafe is Muslim and regularly attends mosque. He also frequently sends small amounts of

22 money to his relatives in Somalia, Kenya, and Uganda. He has been married to a woman in Uganda

23 since December 2015 and makes visits to see her. He had been unable to bring her to the United States

24 because of the delays in his case.

25 159. Mr. Wagafe’s immigration Alien file (“A-file”) makes clear that USCIS subjected his pending

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1 application to CARRP. The A-file states that a CARRP officer handled his case. In addition, a

2 document in the A-File shows that on December 8, 2013, there was a hit on Mr. Wagafe’s name in the

3 FBI Name Check and that the Name Check result contained “derogatory information.” The document

4 also states that Mr. Wagafe appears eligible for naturalization absent confirmation of national security

5 issues. The document then states that the case is being forwarded for external vetting.

6 160. Upon information and belief, Mr. Wagafe’s naturalization application was subject to CARRP or

7 its successor “extreme vetting” program, which caused the delay in adjudication of his naturalization

8 application, despite the fact that he was statutorily entitled to naturalize.

9 161. Mr. Wagafe suffered significant harm due to the delay in adjudication of his naturalization

10 application. Although he is married to a Ugandan woman, he was unable to bring her to live with him in

11 the United States, because, until he became a U.S. citizen, his wife did not qualify as an immediate

12 relative, see generally 8 U.S.C. § 1151, and thus could not avoid the waiting list for petitions filed by

13 lawful permanent residents on behalf of their spouses. Subjecting Mr. Wagafe’s application to CARRP

14 also harmed his professional options and prevented him from voting in local and national elections.

15

Mehdi Ostadhassan

16 162. Plaintiff Mehdi Ostadhassan is a thirty-three-year-old national of Iran. He resides in Grand

17 Forks, North Dakota.

18 163. Mr. Ostadhassan moved to the United States in 2009 on a student visa and studied at the

19 University of North Dakota. He earned his Ph.D. in Petroleum Engineering, and, after graduation, was

20 immediately hired by the University of North Dakota as an Assistant Professor of Petroleum

21 Engineering.

22 164. At the University of North Dakota, Mr. Ostadhassan met Bailey Bubach, a United States citizen.

23 In January 2014, they were married in a small religious ceremony in California, and then obtained their

24 marriage license in Grand Forks, North Dakota. Their first child was born in July 2016.

25 165. In February 2014, Ms. Bubach filed an immigrant visa petition (USCIS Form I-130) for Mr.

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1 Ostadhassan and he concurrently filed an application to adjust status (USCIS Form I-485) based upon

2 his marriage.

3 166. Mr. Ostadhassan has never been convicted of a crime.

4 167. USCIS scheduled Mr. Ostadhassan for an interview on May 19, 2014, but when he appeared for

5 the interview, USCIS informed him that it was cancelled.

6 168. USCIS rescheduled and conducted an interview almost a year and a half later, on September 24,

7 2015. At that interview, a USCIS officer told Mr. Ostadhassan that the agency still could not make a

8 decision and that it needed to complete further background and security checks. To date, Mr.

9 Ostadhassan is still waiting for a decision from USCIS.

10 169. Mr. Ostadhassan and Ms. Bubach are Muslim and active participants in their religious

11 community. Each year they donate to Muslim charities in accordance with the teachings of Islam. They

12 are both involved in the Muslim Student Association at the University of North Dakota. In addition,

13 they run a Muslim Sunday School. Mr. Ostadhassan also coordinates the Muslim Congress’s Koran

14 competition every year.

15 170. Upon information and belief, USCIS considers Mr. Ostadhassan a non-KST national security

16 concern and is subjecting him to CARRP. USCIS may have subjected Mr. Ostadhassan’s adjustment

17 application to CARRP because he has resided in and traveled through what the government considers

18 areas of known terrorist activity—namely, Iran—and because of his donations to Islamic charities and

19 involvement in the Muslim community.

20 171. In October 2014, an FBI agent contacted Mr. Ostadhassan and asked to meet to discuss his recent

21 trip to Iran to visit family. Mr. Ostadhassan declined to meet with the FBI, and his lawyer informed the

22 agent that any further communications should go through the attorney. The FBI has not contacted Mr.

23 Ostadhassan since.

24 172. Upon information and belief, the request for a visit by the FBI was a product of CARRP’s

25 deconfliction process.

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1 173. Upon information and belief, Mr. Ostadhassan’s application for adjustment of status is subject to

2 CARRP or its successor “extreme vetting” program, which has delayed the adjudication of his

3 application, despite the fact that he is statutorily eligible for adjustment of status.

4 174. As Mr. Ostadhassan is a citizen of Iran, one of the countries targeted in the First EO and Second

5 EO, USCIS suspended adjudication of his application for adjustment of status under the First EO and, on

6 information and belief, will suspend adjudication indefinitely under the Second EO.

7 175. Mr. Ostadhassan has been significantly harmed by the delay in adjudication of his adjustment of

8 status application. Because of his temporary nonimmigrant status, and without an approved adjustment

9 application, he cannot travel outside the United States. He recently was unable to travel to Iran to

10 introduce his U.S. citizen wife and infant to his Iranian family; his wife and child traveled to Iran

11 without him. He has also lost out on significant professional opportunities. He is a college professor,

12 and his unapproved adjustment application has prevented him from attending conferences overseas.

13 Due to the delay, he and his wife feel that their lives and future in the United States are suspended in

14 limbo, not knowing whether they have a future in the United States.

15

Hanin Omar Bengezi

16 176. Plaintiff Hanin Omar Bengezi is a 32-year-old Libyan national and Canadian citizen who

17 currently resides in Redmond, Washington. She is an elementary school substitute teacher.

18 177. Ms. Bengezi was born in Libya. She lived with her family in Slovenia from 1985 to 1990 and

19 then in Libya from 1990 to 1995.

20 178. Ms. Bengezi immigrated to Canada with her family in 1995, where she lived until she moved to

21 the United States.

22 179. She became a Canadian citizen in February 2012.

23 180. When Ms. Bengezi attempted to visit the U.S. as a Canadian citizen in May 2012 near Buffalo,

24 New York via the Western Hemisphere Travel Initiative, she and her accompanying family members

25 were refused entry.

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1 181. In 2012, Ms. Bengezi met her current husband, who is a U.S. citizen. Their relationship

2 blossomed and they were engaged in December 2012.

3 182. Her husband filed a Form I-129F, Petition for Alien Fiancée, with USCIS for Ms. Bengezi on

4 February 13, 2013.

5 183. USCIS approved the fiancée petition for Ms. Bengezi on May 31, 2013.

6 184. On December 16, 2013, Ms. Bengezi interviewed for her K-1 Fiancée visa at the U.S. embassy

7 in Montreal, Canada.

8 185. The U.S. embassy in Montreal issued Ms. Bengezi’s K-1 Fiancée visa on November 4, 2014.

9 186. Ms. Bengezi came to the U.S. on December 21, 2014, and got married on January 23, 2015 in

10 Lynnwood, Washington.

11 187. On February 5, 2015, Ms. Bengezi filed for Adjustment of Status to become an LPR with

12 USCIS.

13 188. USCIS has not scheduled an adjustment of status interview for Ms. Bengezi and her husband.

14 189. Ms. Bengezi has made various inquiries concerning her case to USCIS, but has not received an

15 explanation for the delay. USCIS last responded to her queries on December 19, 2016, informing her

16 attorney, “We continue to work on this application and understand your client is concerned about the

17 progress of her case. The application will be scheduled for interview when it is interview ready; we will

18 contact [you] should we need any further information prior to scheduling.” Her subsequent inquiries

19 have gone unanswered.

20 190. Ms. Bengezi is Muslim.

21 191. Ms. Bengezi has never been convicted of or arrested for a crime.

22 192. There is no statutory basis for denying Ms. Bengezi’s adjustment of status application.

23 193. When Ms. Bengezi flies, she is required to obtain her airplane ticket at the airline counter

24 (instead of being able to check in online), her ticket is marked “SSSS” for “Secondary Security

25 Screening Selection,” and she is required to undergo additional and unnecessary secondary screening.

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1 194. When Ms. Bengezi travels through land border crossings, such as the CBP Blaine Station, she is

2 referred to secondary inspection for screening and additional questioning.

3 195. Ms. Bengezi’s Canadian family members continue to be refused entry to the U.S. and denied

4 visitor visas without explanation.

5 196. USCIS’s delays in adjudicating Ms. Bengezi’s case, the additional scrutiny when traveling by air

6 or when crossing the border, and the refusal to issue visitor visas to her family members make it clear

7 that USCIS has subjected her pending application to CARRP or its successor “extreme vetting”

8 program. This has delayed the adjudication of her application, despite the fact that she is statutorily

9 eligible for adjustment of status.

10 197. As Ms. Bengezi is a citizen of Libya, one of the countries targeted in the First EO and Second

11 EO, USCIS suspended adjudication of her application for adjustment of status under the First EO and,

12 on information and belief, will suspend adjudication indefinitely under the Second EO.

13 198. Ms. Bengezi has been significantly harmed by the delay in adjudication of her adjustment of

14 status application. Because of her temporary nonimmigrant status, and without an approved adjustment

15 application, she has had a difficult time traveling outside of the United States. This has negatively

16 impacted her ability to visit her family. Additionally, the delay has impacted her ability to obtain full-

17 time employment due to the need to regularly renew her employment authorization, and has also limited

18 her ability to pursue other professional opportunities. It has prevented her from establishing a normal

19 life in the United States by interfering with her ability to enter into routine transactions such as, inter

20 alia, obtaining loans and signing leases. The delay has also caused much stress and anxiety for Ms.

21 Bengezi, who is uncertain whether she and her husband will be allowed to live together as a family in

22 the United States.

23

24

25

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1

Mushtaq Abed Jihad

2 199. Plaintiff Mushtaq Abed Jihad is a 44-year-old refugee from Iraq who currently resides in Renton,

3 Washington.

4 200. In April 2005, Mr. Jihad, then a successful business owner, was abducted from one of his stores

5 in Iraq. He was beaten and tortured before ultimately escaping.

6 201. Mr. Jihad challenged his attackers in court, which led to death threats. Once, when leaving

7 court, there was an attempt on his life, and he was shot.

8 202. In April 2007, the day the court would decide Mr. Jihad’s case against his kidnappers, Mr. Jihad

9 and his family were again victims of a vicious attack. As he stepped out of the front door of his house

10 with his one-week-old son in his arms, his home was rocked by an explosion. He lost his leg and his

11 newborn son was killed. In the aftermath of the explosion, the attackers also shot Mr. Jihad numerous

12 times. The rest of Mr. Jihad’s family managed to escape the attack.

13 203. Once released from the hospital where had stayed for several months following that incident, he

14 and his family fled Iraq to Syria. The United States eventually accepted them as refugees for

15 resettlement.

16 204. In August 2008, Mr. Jihad and his family entered the United States and resettled in the Tri-Cities

17 area of Washington.

18 205. His lawful permanent residence became effective as of the date of his arrival in the U.S.

19 206. Mr. Jihad filed his N-400 Application for Naturalization on July 1, 2013.

20 207. On his N-400 Application Mr. Jihad affirmatively responded that he seeks to change his

21 surname. He no longer wishes to use his family name because of the unrelenting negative reactions

22 directed at him every time he is required to use his name.

23 208. On July 26, 2013, Mr. Jihad completed his biometrics appointment for his naturalization

24 application.

25

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1 209. Approximately one week after his biometrics appointment, two FBI agents and an interpreter

2 visited Mr. Jihad. The agents questioned Mr. Jihad extensively about his history and why he had elected

3 to change his name on his naturalization application. Multiple times Mr. Jihad attempted to correct the

4 interpreter when he felt he was not being interpreted correctly, but the corrections were rejected.

5 210. In October 2013, Mr. Jihad started to feel ill and was subsequently diagnosed with leukemia.

6 211. Because he is not a U.S. citizen, Mr. Jihad’s social security disability support terminated in 2015,

7 after he had been present in the U.S. for more than 7 years.

8 212. Following his diagnosis, Mr. Jihad moved to the Seattle area due to his ongoing chemotherapy

9 treatments and his need to support his family. His wife and four daughters still live in Richland,

10 Washington.

11 213. Mr. Jihad does odd jobs between chemotherapy treatments for his leukemia in Seattle.

12 Currently, he is a driver for Lyft.

13 214. Mr. Jihad has never left the U.S. since arriving and has no criminal history.

14 215. There is no statutory basis for denying his naturalization application.

15 216. USCIS has repeatedly told Mr. Jihad that his case is pending due to security checks.

16 217. Upon information and belief, the FBI’s visit and interrogation of Mr. Jihad about his pending

17 naturalization application is the product of CARRP’s deconfliction process and indicate that USCIS has

18 subjected his application to CARRP or its successor “extreme vetting” program. This has delayed the

19 adjudication of his application, despite the fact that he is statutorily eligible to naturalize.

20 218. As Mr. Jihad is a citizen of Iraq, one of the countries targeted in the First EO, USCIS suspended

21 adjudication of his application for adjustment of status under the First EO.

22 219. Mr. Jihad has been significantly harmed by the delay in adjudication of his naturalization

23 application. With every passing day, Mr. Jihad’s health and treatment are being materially harmed by

24 USCIS’s delay. His and his family’s financial prospects are also being negatively affected, creating a

25 strain on the family. The delay has also prevented him from voting in local and national elections.

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1

Sajeel Manzoor

2 220. Plaintiff Sajeel Manzoor is a 40-year-old Pakistani national and lawful permanent resident of the

3 United States who currently resides with his family in Newcastle, Washington.

4 221. Mr. Manzoor came to the United States on August 16, 2001 as a non-immigrant F-1 student to

5 study for a Master of Science in Marketing Research at the University of Texas at Arlington.

6 222. In 2003, Mr. Manzoor was hired by Taylor Nelson Sofres and granted his first H-1B visa.

7 223. Mr. Manzoor married his wife on May 11, 2005 in Lahore, Pakistan, and has two children with

8 her. Both of his children are United States citizens.

9 224. On January 29, 2007, Immigration and Customs Enforcement (“ICE”) agents interviewed Mr.

10 Manzoor about his employment history, travel, and contacts inside and outside of the United States.

11 225. Mr. Manzoor’s H-1B visa was temporarily administratively revoked while the Compliance

12 Enforcement Unit in the National Security Investigations Division at ICE Headquarters reviewed his

13 file. His visa was automatically reinstated when he was found in compliance and the case was closed on

14 or about July 3, 2007.

15 226. On October 18, 2007, Mr. Manzoor applied for adjustment of status based on a business petition.

16 227. On September 18, 2010, Mr. Manzoor was granted lawful permanent resident status.

17 228. On November 30, 2015, Mr. Manzoor filed his N-400 Application for Naturalization.

18 229. Mr. Manzoor has not been scheduled for an interview.

19 230. On December 2, 2016, the Acting Field Office Director for the Seattle Field Office confirmed

20 that Mr. Manzoor’s case is still pending background checks.

21 231. On December 14, 2016, the Seattle Field Office Directory confirmed that the background checks

22 were still pending and that Mr. Manzoor’s wife’s naturalization case would be held until after his

23 application was complete.

24 232. Mr. Manzoor does not have a criminal history.

25 233. There is no statutory basis for denying his naturalization application.

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1 234. Upon information and belief, USCIS’s three-year delay in adjudicating his adjustment of status

2 and ICE’s National Security Investigations Division’s additional scrutiny and review indicate that

3 USCIS has subjected Mr. Manzoor’s pending naturalization application to CARRP or its successor

4 “extreme vetting” program. This has delayed the adjudication of his application, despite the fact that he

5 is statutorily entitled to naturalize.

6 235. Mr. Manzoor has been significantly harmed by the delay in adjudication of his naturalization

7 application. He has not been able to travel due to fear of not being allowed back into the country,

8 causing him to miss his grandfather’s funeral and his sister-in-law’s engagement, among other important

9 family events. Feeling that his immigration status is in limbo and that he is being discriminated against

10 on the basis of his national origin and religion have also caused him extreme stress and anxiety.

11 Additionally, the delay has prevented him from voting in local and national elections.

12

CLASS ACTION ALLEGATIONS

13 236. Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), Plaintiffs bring this action on

14 behalf of themselves and all other similarly-situated individuals. Plaintiffs do not bring claims for

15 compensatory relief. Instead, Plaintiffs seek injunctive relief broadly applicable to members of the

16 Plaintiff Classes, as defined below. The requirements for Rule 23 are met with respect to the classes

17 defined below.

18 237. Plaintiffs seek to represent the following nationwide classes:

19

A Muslim Ban Class defined as:

A national class of all persons currently and in the future (1) who are in the United States,

20

(2) have or will have an application for an immigration benefit pending before USCIS,

21

and (3) are a citizen or national of Syria, Iran, Yemen, Somalia, Sudan, or Libya.

22

An Extreme Vetting Naturalization Class defined as:

A national class of all persons currently and in the future (1) who have or will have an

23

application for naturalization pending before USCIS, (2) that is subject to CARRP or a

24

successor “extreme vetting” program, and (3) that has not been or will not be adjudicated by USCIS within six months of having been filed.

25 An Extreme Vetting Adjustment of Status Class defined as:

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A national class of all persons currently and in the future (1) who have or will have an

1

application for adjustment of status pending before USCIS, (2) that is subject to CARRP

2

or a successor “extreme vetting” program, and (3) that has not been or will not be

adjudicated by USCIS within six months of having been filed.

3 238. Plaintiffs Wagafe, Ostadhassan, and Bengezi are adequate class representatives of the Muslim

4 Ban Class. Plaintiffs Wagafe, Jihad, and Manzoor are adequate representatives of the Extreme Vetting

5 Naturalization Class. Plaintiffs Ostadhassan and Bengezi are adequate representatives of the Extreme

6 Vetting Adjustment of Status Class.

7 239. The Proposed Classes are each so numerous that joinder of all members is impracticable.

8 240. Although Plaintiffs do not know the total number of people from the six countries targeted in the

9 Second EO who have pending immigration benefits applications at any given time, publicly available

10 USCIS data reveals that in 2015, there were 83,147 people from those six countries who were granted

11 applications for naturalization, lawful permanent residence, asylum, and refugee admission. U.S.

12 Department of Homeland Security, Office of Immigration Statistics, 2015 Yearbook of Immigration

13 Statistics, available at

14 https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_2015.pdf

15 (showing 31,385 people granted lawful permanent residence (table 3), 30,644 granted refugee admission

16 (table 14), 1,731 granted asylum (table 17) and 19,387 persons naturalized (table 21) from the six

17 countries targeted by the Second EO).

18 241. Similarly, although Plaintiffs do not know the total number of people subject to CARRP or any

19 successor “extreme vetting” program at any given time, USCIS data reveals that between Fiscal Year

20 2008 and Fiscal Year 2012, more than 19,000 people from twenty-one Muslim-majority countries or

21 regions were subjected to CARRP. Upon information and belief, between 2008 and 2016, USCIS

22 opened 41,805 CARRP cases.

23 242. This data includes individuals with pending naturalization and adjustment of status applications.

24 For example, in March 2009, there were 1,437 adjustment of status (I-485) applications subject to

25 CARRP that had been pending for at least six months and 1,065 naturalization (N-400) applications

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1 subject to CARRP that had been pending for at least six months.

2 243. The exact number of individuals subject to the First EO or Second EO, CARRP, or any successor

3 “extreme vetting” program at any given time fluctuates as applications are filed and USCIS applies these

4 policies and practices to the applications. Moreover, members of the class reside in various locations

5 across the country. For these and other reasons, joinder of the members of the Classes would create

6 substantial challenges to the efficient administration of justice. Joinder is thus impracticable here.

7 244. In addition, there are questions of law and fact common to the members of the Classes. The

8 Muslim Ban and Extreme Vetting Adjustment of Status Class are subject to Defendants’ unauthorized

9 suspension of immigration benefits adjudications. All classes are subject to CARRP (or a successor

10 “extreme vetting” program). Accordingly, common questions of law and fact include, but are not

11 limited to, the following:

12

 Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

13

Second EO violates Defendants’ duty to timely adjudicate immigration benefit applications

authorized by the Immigration and Nationality Act;

14

 Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

15

First or Second EO to Plaintiff Wagafe’s, Plaintiff Ostadhassan’s and Plaintiff Bengezi’s

16

applications violates the Establishment Clause of the First Amendment to the United States

Constitution by not pursuing a course of neutrality with regard to different religious faiths;

17

 Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

18

Second EO and application of CARRP (or a successor “extreme vetting” program) to Plaintiffs’

applications discriminates against Plaintiffs on the basis of their country of origin and without

19

sufficient justification, and therefore violates the equal protection component of the Due Process

20

Clause of the Fifth Amendment to the United States Constitution;

21  Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

Second EO and application of CARRP (or a successor “extreme vetting” program) to Plaintiffs’

22

applications is substantially motivated by animus toward—and has a disparate effect on—

23

Muslims in violation of the equal protection component of the Due Process Clause of the Fifth Amendment to the United States Constitution;

24  Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

25

Second EO and application of CARRP (or a successor “extreme vetting” program) to Plaintiffs’

applications for immigration benefits, for which they are statutorily eligible and to which they

26
SECOND AMENDED COMPLAINT

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are legally entitled, constitutes an arbitrary denial in violation of Plaintiffs’ right to substantive

1

due process under the Fifth Amendment to the United States Constitution;

2  Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

3

Second EO and application of CARRP (or a successor “extreme vetting” program) to Plaintiffs’

applications violates the INA by creating additional, non-statutory, substantive criteria that must

4

be met prior to a grant of a naturalization or adjustment of status application;

5

 Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

6

Second EO and application of CARRP (or a successor “extreme vetting” program) to Plaintiffs’

applications violates the APA, 5 U.S.C. § 706, as final agency action that is arbitrary and

7

capricious, contrary to constitutional law, and in excess of statutory authority;

8

 Whether Defendants’ application of CARRP (or a successor “extreme vetting” program) to

9

Plaintiffs’ applications constitutes a substantive rule and, as a result, Defendants violated the

APA, 5 U.S.C. § 553, when they promulgated CARRP without providing a notice-and-comment

10

period prior to implementing it;

11  Whether Defendants’ failure to give Plaintiffs notice of their classification under CARRP (or a

12

successor “extreme vetting” program), a meaningful explanation of the reason for such classification, and a process by which Plaintiffs can challenge their classification violates the

13

Due Process Clause of the Fifth Amendment to the United States Constitution; and

14  Whether Defendants’ application of CARRP (or a successor “extreme vetting” program) to

Plaintiffs Wagafe, Jihad, and Manzoor’s applications violates the Uniform Rule of

15

Naturalization, Article I, Section 8, Clause 4 of the United States Constitution by establishing

16

criteria for naturalization not authorized by Congress.

17 245. The claims of the named Plaintiffs are typical of their respective Plaintiff Classes. Plaintiffs

18 know of no conflict between their interests and those of the Plaintiff Classes they seek to represent. In

19 defending their own rights, the named Plaintiffs will defend the rights of all proposed Plaintiff Class

20 members fairly and adequately. The members of the Classes are readily ascertainable through notice

21 and discovery.

22 246. Plaintiffs are represented by counsel with particular expertise in immigration and constitutional

23 law, and extensive experience in class action and other complex litigation.

24 247. Defendants have acted or refused to act on grounds generally applicable to each member of the

25 Plaintiff Classes by applying additional non-statutory, substantive requirements for naturalization and

26
SECOND AMENDED COMPLAINT
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1 adjustment of status, including CARRP (or its successor “extreme vetting” program) to their

2 immigration applications and the First EO and/or Second EO—thus causing them to have suffered and

3 continue to suffer injury in the form of unreasonable delays and denials of their applications.

4 248. A class action is superior to other methods available for the fair and efficient adjudication of this

5 controversy because joinder of all members of the Classes is impracticable. Absent the relief they seek

6 here, there would be no other way for the Plaintiff Class members to individually redress the wrongs

7 they have suffered and will continue to suffer.

8

CAUSES OF ACTION

9

FIRST CLAIM FOR RELIEF

10

Immigration and Nationality Act and the Administrative Procedure Act

11

(Plaintiffs Wagafe, Ostadhassan and Bengezi on behalf of themselves and the Muslim Ban

12

Class)

13 249. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

14 250. Section 212(f) of the Immigration and Nationality, 8 U.S.C. § 1182(f), is entitled “Suspension of

15 Entry or Imposition of Restrictions by President.” That provision authorizes the President to suspend

16 entries or impose restrictions on entries. That provision does not authorize the President to suspend

17 adjudication of immigration petitions, applications, or requests of any class of persons.

18 251. Defendants have interpreted the First EO and will interpret the Second EO to authorize the

19 suspension of immigration petitions, applications, or requests involving Plaintiff Wagafe, Plaintiff

20 Ostadhassan, Plaintiff Bengezi, and members of the Muslim Ban Class.

21 252. Accordingly, Defendants will suspend adjudication of such immigration benefits petitions,

22 applications, or requests.

23 253. Defendants’ actions in suspending adjudications will violate 8 U.S.C. § 1182(f) and will be

24 arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to

25 constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or

26
SECOND AMENDED COMPLAINT
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1 limitations, or short of statutory right; and without observance of procedure required by law, in violation

2 of the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)-(D).

3

SECOND CLAIM FOR RELIEF

4

Mandamus (28 U.S.C. § 1361)

5 (Plaintiffs Wagafe, Ostadhassan and Bengezi on behalf of themselves and the Muslim Ban Class)

6 254. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

7 255. Defendants have a duty to adjudicate all immigrant benefits petitions, applications or requests

8 authorized by the Immigration and Nationality Act, implementing regulations, or other law.

9 256. The First and Second EOs do not authorize the suspension of adjudication of immigration

10 benefits petitions, applications, or requests.

11 257. Defendants have interpreted the First EO and will interpret the Second EO to authorize the

12 suspension of immigration benefit applications for petitions, applications, or requests involving Plaintiff

13 Wagafe, Plaintiff Ostadhassan, Plaintiff Bengezi, and members of the Muslim Ban Class.

14 258. Accordingly, Defendants will suspend adjudication of immigration benefits petitions,

15 applications, or requests.

16 259. Defendants’ refusal to adjudicate immigration benefits petitions, applications, or requests will

17 violate Defendants’ statutory and constitutional duty to adjudicate these matters, and to do so in a

18 nondiscriminatory manner.

19

THIRD CLAIM FOR RELIEF

20

First Amendment (Establishment Clause)

21 (Plaintiffs Wagafe, Ostadhassan and Bengezi on behalf of themselves and the Muslim Ban Class)

22 260. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

23 261. The First EO was and Second EO is intended to target a specific religious faith—Islam. The

24 First EO gave preference to other religious faiths—principally Christianity—and the Second EO has that

25 intended effect when applied to Plaintiffs and members of the Muslim Ban Class. Defendants’

26
SECOND AMENDED COMPLAINT
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1 application of the First EO and Second EO to Plaintiffs and members of the Plaintiff Classes violates the

2 Establishment Clause of the First Amendment to the United States Constitution by not pursuing a course

3 of neutrality with regard to different religious faiths.

4

FOURTH CLAIM FOR RELIEF

5

Fifth Amendment (Procedural Due Process)

6

(All Plaintiffs on behalf of themselves and the Plaintiff Classes)

7 262. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

8 263. Defendants’ failure to give Plaintiffs and members of the Extreme Vetting Naturalization and

9 Extreme Vetting Adjustment of Status Classes notice of their classification under CARRP (or successor

10 “extreme vetting” program), a meaningful explanation of the reason for such classification, and any

11 process by which Plaintiffs can challenge their classification, violates the Due Process Clause of the

12 Fifth Amendment to the United States Constitution.

13 264. Because of these violations of their constitutional rights, Plaintiffs and members of the Plaintiff

14 Classes have suffered and continue to suffer injury in the form of unreasonable delays and unwarranted

15 denials of their immigration applications.

16

FIFTH CLAIM FOR RELIEF

17

Fifth Amendment (Substantive Due Process)

18

(All Plaintiffs on behalf of themselves and the Plaintiff Classes)

19 265. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

20 266. Defendants’ unauthorized and indefinite suspension of the adjudication of Plaintiffs’ and the

21 Proposed Classes’ applications for immigration benefits violates their right to substantive due process

22 under the Fifth Amendment to the United States Constitution, because Plaintiffs cannot be denied

23 immigration benefits for which they are statutorily eligible, and to which they are entitled by law, in an

24 arbitrary manner.

25

SIXTH CLAIM FOR RELIEF

26
SECOND AMENDED COMPLAINT
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1

Fifth Amendment (Equal Protection)

2

(All Plaintiffs on behalf of themselves and the Plaintiff Classes)

3 267. Plaintiffs incorporate the allegations of the proceeding paragraphs as if fully set forth herein.

4 268. Defendants’ indefinite suspension of the adjudication of Plaintiffs’ applications for immigration

5 benefits on the basis of their country of origin, and without sufficient justification, violates the equal

6 protection component of the Due Process Clause of the Fifth Amendment.

7 269. Additionally, Defendants’ indefinite suspension of the adjudication of Plaintiff Wagafe’s,

8 Plaintiff Ostadhassan’s, Plaintiff Bengezi’s, and the Muslim Ban Class’ applications for immigration

9 benefits under the First and Second EOs was and is substantially motivated by animus toward—and has

10 a disparate effect on—Muslims, which also violates the equal protection component of the Due Process

11 Clause of the Fifth Amendment.

12 270. Applying a general law in a fashion that discriminates on the basis of religion violates Plaintiffs’

13 and the Plaintiff Classes’ rights to equal protection under the Fifth Amendment Due Process Clause.

14 271. The Second EO is intended and will be applied primarily to exclude individuals on the basis of

15 their national origin and religion.

16 272. Defendants have applied the First EO and will apply the Second EO with discriminatory animus

17 and discriminatory intent in violation of the equal protection component of the Fifth Amendment.

18

SEVENTH CLAIM FOR RELIEF

19

Immigration and Nationality Act and Implementing Regulations

20

(Plaintiffs on behalf of themselves and the Extreme Vetting Naturalization and

21

Extreme Vetting Adjustment of Status Classes)

22 273. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

23 274. To secure naturalization and adjustment of status, an applicant must satisfy certain statutorily-

24 enumerated criteria.

25 275. By its terms, CARRP creates additional, non-statutory, substantive adjudicatory criteria.

26
SECOND AMENDED COMPLAINT
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1 276. Accordingly, CARRP violates 8 U.S.C. § 1427, 8 C.F.R. § 316.2, and 8 C.F.R. § 335.3, as those

2 provisions set forth the exclusive applicable statutory and regulatory criteria for a grant of naturalization.

3 277. CARRP also violates 8 U.S.C. § 1255, 8 U.S.C. § 1159, 8 C.F.R. § 245.1, and 8 C.F.R. § 209.1,

4 as those provisions set forth the applicable statutory and regulatory criteria for individuals present in the

5 United States to adjust their status.

6 278. Because of these violations and/or because CARRP’s additional, non-statutory, substantive

7 criteria have been applied to their applications, Plaintiffs and Plaintiff Class members have suffered and

8 will continue to suffer injury in the form of unreasonable delays and unwarranted denials of their

9 applications for naturalization and adjustment of status.

10

EIGHTH CLAIM FOR RELIEF

11

Administrative Procedure Act (5 U.S.C. § 706)

12

(Plaintiffs on behalf of themselves and the Extreme Vetting Naturalization and

13

Extreme Vetting Adjustment of Status Classes)

14 279. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

15 280. CARRP constitutes final agency action that is arbitrary and capricious because it “neither

16 focuses on nor relates to a [noncitizen’s] fitness to” obtain the immigration benefits subject to its terms.

17 Judulang v. Holder, 132 S. Ct. 476, 485 (2011).

18 281. CARRP is also not in accordance with law, is contrary to constitutional rights, and is in excess of

19 statutory authority because it violates the INA and exceeds USCIS’s statutory authority to implement

20 (not create) the immigration laws, as alleged herein.

21 282. As a result of these violations, Plaintiffs and members of the Proposed Extreme Vetting

22 Naturalization and Extreme Vetting Adjustment of Status Classes have suffered and continue to suffer

23 injury in the form of unreasonable delays and unwarranted denials of their immigration applications.

24

NINTH CLAIM FOR RELIEF

25

Administrative Procedure Act (Notice and Comment)

26
SECOND AMENDED COMPLAINT
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1

(Plaintiffs on behalf of themselves and the Extreme Vetting Naturalization and

2

Extreme Vetting Adjustment of Status Classes)

3 283. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

4 284. The APA, 5 U.S.C. § 553, requires administrative agencies to provide a notice-and-comment

5 period prior to implementing a substantive rule.

6 285. CARRP constitutes a substantive agency rule within the meaning of 5 U.S.C. § 551(4).

7 286. Defendants failed to provide a notice-and-comment period prior to the adoption of CARRP.

8 287. Because CARRP is a substantive rule promulgated without the notice-and-comment period, it

9 violates 5 U.S.C. § 553 and is therefore invalid.

10 288. As a result of these violations, Plaintiffs and members of the Plaintiff Classes have suffered and

11 continue to suffer injury in the form of unreasonable delays and unwarranted denials of their

12 immigration applications.

13

TENTH CLAIM FOR RELIEF

14

“Uniform Rule of Naturalization”

15 (Plaintiffs Wagafe, Jihad, and Manzoor on behalf of themselves and the Naturalization Class)

16 289. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

17 290. Congress has the sole power to establish criteria for naturalization, and any additional

18 requirements not enacted by Congress are ultra vires.

19 291. By its terms, CARRP creates additional, non-statutory, substantive criteria that must be met prior

20 to a grant of a naturalization application.

21 292. Accordingly, CARRP violates Article I, Section 8, Clause 4 of the United States Constitution.

22 293. Because of this violation and because CARRP’s additional, non-statutory, substantive criteria

23 have been applied to their applications, Plaintiffs Wagafe, Jihad, Manzoor, and the Naturalization

24 Plaintiff Class members have suffered and will continue to suffer injury in the form of unreasonable

25 delays and unwarranted denials of their naturalization applications.

26
SECOND AMENDED COMPLAINT
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1

2

PRAYER FOR RELIEF

3 WHEREFORE, Plaintiffs respectfully request that the Court grant the following relief:

4 1. Certify the case as a class action as proposed herein;

5 2. Appoint Plaintiffs Wagafe, Ostadhassan and Bengezi as representatives of the Muslim Ban

6

Class;

7 3. Appoint Plaintiffs Wagafe, Jihad, and Manzoor as representatives of the Extreme Vetting

8

Naturalization Class;

9 4. Appoint Plaintiffs Ostadhassan and Bengezi as representatives of the Extreme Vetting

10

Adjustment of Status Class;

11 5. Order Defendants to adjudicate the petitions, applications, or requests of Plaintiffs and members

12

of the proposed classes;

13 6. Order Defendants to adjudicate Plaintiffs’ and proposed class members’ petitions, applications,

14

or requests based solely on the statutory criteria;

15 7. Declare Sections 2(c), 4 and 5 of the Second EO contrary to the Constitution and the INA;

16 8. Issue an order enjoining Defendants from applying Sections 2(c), 4 and 5 to Plaintiffs and

17

members of the proposed classes;

18 9. Declare that CARRP or any successor “extreme vetting” program violates the Constitution, the

19

INA, and the APA;

20 10. Enjoin Defendants, their subordinates, agents, employees, and all others acting in concert with

21

them from applying CARRP or any successor “extreme vetting” program to the processing and

22

adjudication of the immigration benefit petitions, applications, or requests of Plaintiffs and

23

members of the proposed classes;

24 11. Order Defendants to rescind CARRP or any successor “extreme vetting” program because they

25

failed to follow the process for notice and comment by the public;

26
SECOND AMENDED COMPLAINT
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1 12. Alternatively, order Defendants to provide Plaintiffs and members of the proposed classes with

2

notice that they have been subjected to CARRP or any successor “extreme vetting” program, the

3

reasons for subjecting them to CARRP or any successor “extreme vetting” program, and a

4

reasonable opportunity to respond to those allegations before a neutral decision-maker;

5 13. Award Plaintiffs and other members of the proposed class reasonable attorneys’ fees and costs;

6

and

7 14. Grant any other relief that this Court may deem fit and proper.

8

9 Respectfully submitted this 4th day of April, 2017.

10 By:
11 s/Matt Adams
12 s/Glenda M. Aldana Madrid
13 Matt Adams, WSBA No. 28287 Glenda M. Aldana Madrid, WSBA No. 46987
14 Northwest Immigrant Rights Project 615 Second Ave., Ste. 400
15 Seattle, WA 98122 16 Telephone: (206) 957-8611
Facsimile: (206) 587-4025 17 matt@nwirp.org
glenda@nwirp.org 18

19

20

21

22

23

24

25

26
SECOND AMENDED COMPLAINT
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s/Emily Chiang 1 Emily Chiang, WSBA No. 50517 2 ACLU of Washington Foundation
901 Fifth Avenue, Suite 630 3 Seattle, WA 98164
Telephone: (206) 624-2184 4 Echiang@aclu-wa.org

5 Jennifer Pasquarella (admitted pro hac vice) 6 ACLU Foundation of Southern California
1313 W. 8th Street 7 Los Angeles, CA 90017
Telephone: (213) 977-5236 8 Facsimile: (213) 997-5297 9 jpasquarella@aclusocal.org

10 Stacy Tolchin (admitted pro hac vice) Law Offices of Stacy Tolchin
11 634 S. Spring St. Suite 500A
Los Angeles, CA 90014 12 Telephone: (213) 622-7450
13 Facsimile: (213) 622-7233 Stacy@tolchinimmigration.com
14 Trina Realmuto (admitted pro hac vice)
15 Kristin Macleod-Ball (admitted pro hac vice)
National Immigration Project 16 of the National Lawyers Guild 17 14 Beacon St., Suite 602
Boston, MA 02108
18 Telephone: (617) 227-9727 Facsimile: (617) 227-5495
19 trina@nipnlg.org
kristin@nipnlg.org 20

21 s/Hugh Handeyside Hugh Handeyside, WSBA No. 39792

22 Lee Gelernt (admitted pro hac vice)

Hina Shamsi (admitted pro hac vice) 23 American Civil Liberties Union Foundation

24

125 Broad Street New York, NY 10004

25 Telephone: (212) 549-2616

26
SECOND AMENDED COMPLAINT
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Facsimile: (212) 549-2654 1 lgelernt@aclu.org

2 hhandeyside@aclu.org hshamsi@aclu.org

3 s/ Harry H. Schneider, Jr.

s/ Nicholas P. Gellert 4 s/ Kathryn Reddy

5

s/ David A. Perez s/ Laura K. Hennessey

6 Harry H. Schneider, Jr. #9404 Nicholas P. Gellert #18041

7 Kathryn Reddy #42089

David A. Perez #43959 8 Laura K. Hennessey #47447

9

Attorneys for Plaintiffs Perkins Coie LLP

10 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099

11 Telephone: 206.359.8000

Facsimile: 206.359.9000 12 Email: HSchneider@perkinscoie.com

13

NGellert@perkinscoie.com KReddy@perkinscoie.com

14

DPerez@perkinscoie.com

LHennessey@perkinscoie.com

15

16

17

18

19

20

21

22

23

24

25

26
SECOND AMENDED COMPLAINT
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CERTIFICATE OF SERVICE 1

2

The undersigned certifies that on the dated indicated below, I caused service of the foregoing

3 SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF via

4 the CM/ECF system that will automatically send notice of such filing to all counsel of record herein.

5

DATED this 4th day of April, 2017, at Seattle, Washington.

6

7

By: s/ David A. Perez

David A. Perez, #43959

8

Attorneys for Plaintiffs

Perkins Coie LLP

9

1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099

10

Telephone: 206.359.8000

Facsimile: 206.359.9000

11

Email: DPerez@perkinscoie.com

12

13

14

15

16

17

18

19

20

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26
SECOND AMENDED COMPLAINT
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1

The Honorable John C. Coughenour

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

11 ABDIQAFAR WAGAFE, et al.,
12 Plaintiffs,
13 v.
14
15 UNITED STATES CITIZENSHIP AND 16 IMMIGRATION SERVICES, et al.,
Defendants.1 17
18

No. 2:17-cv-00094-JCC
DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT FOR LACK OF JURISDICTION, IN PART, AND FAILURE TO STATE A CLAIM, IN PART
ORAL ARGUMENT REQUESTED
NOTE ON MOTION CALENDAR: May 12, 2017

19

20

21

22

23

24

25

26

27 1 Ms. Lori Scialabba, named as a defendant in her official capacity as Acting Director, United States Citizenship and 28 Immigration Services, has been replaced as USCIS Acting Director by Mr. James McCament, who is automatically
substituted for Ms. Scialabba as a defendant in this action by operation of Fed. R. Civ. P. 25(d).

DEFENDANTS’ MOTION TO DISMISS (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 2 of 36

1

Table of Contents

2 Table of Contents ............................................................................................................................. i

3 Table of Authorities ....................................................................................................................... iii
4 I. INTRODUCTION ................................................................................................................. 1
5
II. LEGAL STANDARDS ......................................................................................................... 2 6

7

A. RULE 12(B)(1) STANDARD................................................................................................................... 2

8

B. RULE 12(B)(6) STANDARD................................................................................................................... 3

9 III. BACKGROUND ................................................................................................................... 4

10

A. IMMIGRATION PROCESSES ................................................................................................................... 4

11

1. Naturalization Process.................................................................................................................... 4

12 2. Adjustment of Status Process....................................................................................................... 5
13 B. CARRP .................................................................................................................................................... 6
14

15

C. EXECUTIVE ORDERS .............................................................................................................................. 7

16

D. FACTUAL ALLEGATIONS ...................................................................................................................... 8

17 IV. ARGUMENT ......................................................................................................................... 9

18

A. BECAUSE PLAINTIFFS ADMIT THEY HAVE NO INTEREST IN ADJUDICATION OF THEIR

19

APPLICATIONS, NO REAL CASE OR CONTROVERSY EXISTS........................................................ 9

20

B. PLAINTIFFS’ FIRST, SECOND, THIRD, FIFTH, SIXTH, AND TENTH CLAIMS FOR RELIEF

MUST BE DISMISSED BECAUSE PLAINTIFFS LACK STANDING .................................................10

21

1. Because Adjudication of Plaintiffs’ Benefit Applications Has Not Been Suspended

22

Pursuant to E.O. 13780, Plaintiff Have Not Suffered Injury-in-Fact .............................11

23

2. Plaintiffs Lack Standing To Complain About a Violation of the Constitution’s

24

Uniform Rule of Naturalization Clause .................................................................................. 12

25

C. PLAINTIFFS’ CLAIMS CONCERNING “EXTREME VETTING” UNDER E.O. 13780 MUST BE

26

DISMISSED BECAUSE THEY FAIL TO ALLEGE SUFFICIENT FACTS TO GIVE RISE TO PLAUSIBLE CLAIMS FOR RELIEF ...................................................................................................... 13

27

28

DEFENDANTS’ MOTION TO DISMISS - i (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 3 of 36

1

D. PLAINTIFFS’ FOURTH CLAIM FOR RELIEF FAILS TO ALLEGE A PROCEDURAL DUE PROCESS VIOLATION AND MUST BE DISMISSED BECAUSE PLAINTIFFS HAVE NOT BEEN DEPRIVED

2

OF A PROTECTED LIBERTY OR PROPERTY INTEREST...................................................................14

3

E. PLAINTIFFS’ SEVENTH CLAIM FOR RELIEF MUST BE DISMISSED BECAUSE THE

IMMIGRATION AND NATIONALITY ACT DOES NOT CREATE A PRIVATE RIGHT

4

OF ACTION ............................................................................................................................................. 17

5 F. PLAINTIFFS’ EIGHTH CLAIM FOR RELIEF FAILS TO STATE A CLAIM UNDER THE APA

6

BECAUSE IT DOES NOT RELATE TO A FINAL AGENCY ACTION ..............................................20

7

G. PLAINTIFFS’ NINTH CLAIM FOR RELIEF MUST BE DISMISSED FOR FAILURE TO STATE A

8

CLAIM AS THE ALLEGATIONS IN THE COMPLAINT ESTABLISH CARRP IS NOT A “SUBSTANTIVE” OR “LEGISLATIVE” RULE .................................................................................... 21

9 V. CONCLUSION.................................................................................................................... 24

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ MOTION TO DISMISS - ii (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 4 of 36

1

Table of Authorities

2

CASES

3
Ahmadi v. Chertoff,
4
No. 07-cv-03455, 2007 WL 3022573 (N.D. Cal. Oct. 15, 2007)......................................................................16, 24
5 Alcaraz v. Block,

6

746 F.2d 593 (9th Cir. 1984) ..................................................................................................................................23

Aldarwich v. Hazuda,
7
593 F. App’x 654 (9th Cir. 2015) .............................................................................................................................9

8 Alexander v. Sandoval,

9

532 U.S. 275 (2001)................................................................................................................................................17

Allen v. Wright,
10
468 U.S. 737 (1984)................................................................................................................................................10

11 American Mining Congress v. Mine Safety & Health Administration,

12

995 F.2d 1106 (D.C. Cir. 1993) ........................................................................................................................20, 23

13 Ashcroft v. Iqbal,
556 U.S. 662 (2009)......................................................................................................................................3, 12, 13
14 Bell Atl. Corp. v. Twombly,

15

550 U.S. (2007)........................................................................................................................................2, 3, 12, 13

16 Bennett v. Spear,
520 U.S. 154 (1997)................................................................................................................................................20
17 Board. of Regents of State Colleges v. Roth,

18

408 U.S. 564 (1972)................................................................................................................................................15

19 Brock v. Pierce Cty.,
476 U.S. 253 (1986)................................................................................................................................................16
20 California v. Sierra Club,

21

451 U.S. 287 (1981)................................................................................................................................................18

22 Cannon v. University of Chicago,
441 U.S. 677 (1979)................................................................................................................................................17
23 Cazarez-Gutierrez v. Ashcroft,

24

382 F.3d 905 (9th Cir. 2004) ..................................................................................................................................12

25 Chavez v. United States,

683 F.3d 1102 (9th Cir. 2012) ..................................................................................................................................3
26
Cook v. Reinke,

27

484 F. App’x 110 (9th Cir. 2012) .............................................................................................................................9

28

DEFENDANTS’ MOTION TO DISMISS - iii (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 5 of 36

Cort v. Ash,
1
422 U.S. 66 (1975)..................................................................................................................................................18
2 D.C. Circuit in American Mining Congress v. Mine Safety & Health Administration,

3

995 F.2d 1106, 1109 (D.C. Cir. 1993) ....................................................................................................................22

Erringer v. Thompson,
4
371 F.3d 625 (9th Cir. 2014) ......................................................................................................................21, 22, 23

5 Ezell v. United States,

6

778 F.3d 762 (9th Cir. 2015) ..................................................................................................................................16

7 Fedorenko v. United States,
449 U.S 490 (1981).................................................................................................................................................15
8 Flores v. City of Baldwin Park,

9

No. 14-cv-9290, 2015 WL 756877 (C.D. Cal. Feb. 23, 2015)................................................................................12

10 French v. Edwards,
80 U.S. (13 Wall.) 506 (1872) ................................................................................................................................16
11 Gibbons v. Ogden,

12

22 U.S. (9 Wheat.) 1 (1824)....................................................................................................................................12

13 Gospel Missions of America v. City of Los Angeles,
328 F.3d 548 (9th Cir. 2003) ....................................................................................................................................9
14 Hamdan v. Gonzales,

15

425 F.3d 1051 (7th Cir. 2005) ................................................................................................................................15

16 Hani v. Gonzales,
No. 3:07-cv-517-S, 2008 WL 2026092 (W.D. Ky. May 8, 2008) ..........................................................................24
17 Hemp Indus. Ass’n v. DEA,

18

333 F.3d 1082 (9th Cir. 2003) .............................................................................................................. 20, 21, 22, 23

19 Hollingsworth v. Perry,

133 S. Ct. 2652 (2013)............................................................................................................................................10
20
In re Siggers,

21

132 F.3d 333 (6th Cir. 1997) ..................................................................................................................................16

22 In re Stac Electronics Securities Litigation,

89 F.3d 1399 (9th Cir. 1996) ....................................................................................................................................6
23
Jain v. Immigration & Naturalization Serv.,

24

612 F.2d 683, 686 (2d Cir. 1979)…………………………………………………………………………………...5

25 Jarecha v. INS,

417 F.2d 220 (5th Cir. 2009) ..................................................................................................................................14
26
Kleindienst v. Mandel,

27

408 U.S. 753, 770 (1972)........................................................................................................................................12

28

DEFENDANTS’ MOTION TO DISMISS - iv (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 6 of 36

Korab v. Fink,
1
797 F.3d 572 (9th Cir. 1967) ..................................................................................................................................12
2 L.A. Closeout, Inc. v. DHS,

3

513 F.3d 940 (9th Cir. 2008) ..................................................................................................................................23

Lance v. Coffman,
4
549 U.S. 437 (2007)................................................................................................................................................10

5 Levine v. City of Alameda,

6

525 F.3d 903 (9th Cir. 2008) ..................................................................................................................................15

7 Lexmart Int’l v. Static Control Components, Inc.,
134 S. Ct. 1377 (2014)............................................................................................................................................10
8 Lujan v. Defenders of Wildlife,

9

504 U.S. 555 (1992)..........................................................................................................................................10, 12

10 Matter of Blas,
151 & N Dec. 626, 630 (BIA 1974)..........................................................................................................................6
11 McCreath v. Holder,

12

573 F.3d 38 (1st Cir. 2009).....................................................................................................................................15

13 Mendez-Garcia v. Lynch,
840 F.3d 655 (9th Cir. 2016) ..................................................................................................................................15
14 Mendiondo v. Centinela Hosp. Med. Ctr.,

15

521 F.3d 1097 (9th Cir. 2008) ..................................................................................................................................3

16 Mora-Meraz v. Thomas,
601 F.3d 933 (9th Cir. 2010) ............................................................................................................................20, 23
17 Morgovsky v. DHS,

18

517 F. Supp. 2d. 581 (D. Mass. 2007) ....................................................................................................................15

19 Nativi-Gomez v. Ashcroft,

344 F.3d 805 (8th Cir. 2003) ..................................................................................................................................15
20
Novak v. United States,

21

795 F.3d 1012 (9th Cir. 2015) ................................................................................................................................10

22 Office of Pers. Mgmt. v. Richmond,

496 U.S. 414 (1990)................................................................................................................................................16
23
Olim v. Wakinekona,

24

461 U.S. 238 (1983)................................................................................................................................................17

25 Oregon Natural Desert Ass’n v. United States Forest Service,

465 F.3d 977 (9th Cir. 2006) ..................................................................................................................................20
26
Orkin v. Taylor,

27

487 F.3d 734 (9th Cir. 2007) ..................................................................................................................................15

28

DEFENDANTS’ MOTION TO DISMISS - v (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 7 of 36

Pinkus v. U.S. Bd. of Parole,
1
507 F.2d 1107 (D.C. Cir. 1974) ..............................................................................................................................23
2 Rodriguez v. Superintendent, Bay State Corr. Ctr.,

3

139 F.3d 270 (1st Cir. 1998)...................................................................................................................................16

Safe Air for Everyone v. Meyer,
4
373 F.3d 1035 (9th Cir. 2004) ..................................................................................................................................3

5 Sandoval-Luna v. Mukasey,

6

526 F.3d 1243 (9th Cir. 2008) ................................................................................................................................15

7 Santos v. INS,
375 F.2d 262 (9th Cir. 1967) ....................................................................................................................................6
8 Sawan v. Chertoff,

9

589 F. Supp. 2d 817 (S.D. Tex. 2008) ....................................................................................................................24

10 So. Cal. Edison Co. v. FERC,
770 F.2d 779 (9th Cir. 1985) ..................................................................................................................................23
11 Spreewell v. Golden State Warriors,

12

266 F.3d 979 (9th Cir. 2001) ....................................................................................................................................3

13 St. Regis Mohawk Tribe, N.Y. v. Brock,
769 F.2d 37 (2d Cir. 1985)......................................................................................................................................16
14 Suter v. Artist M.,

15

503 U.S. 347 (1992)................................................................................................................................................17

16 Touche Ross & Co. v. Redington,
442 U.S. 560 (1979)....................................................................................................................................16, 17, 18
17 Transamerica Mortgage Advisors, Inc. v. Lewis,

18

444 U.S. 11 (1979)..................................................................................................................................................17

19 United States v. Ginsberg,

243 U.S. 472 (1917)................................................................................................................................................15
20
United States v. James Daniel Good Real Prop.,

21

510 U.S. 43 (1993)..................................................................................................................................................16

22 United States v. Ritchie,

342 F.3d 903 (9th Cir. 2003) ....................................................................................................................................6
23
Universities Research Ass’n v. Coutu,

24

450 U.S. 754 (1981)................................................................................................................................................18

25 L.A. Closeout, Inc. v. DHS,

513 F.3d 940 (9th Cir. 2008) ..................................................................................................................................22
26
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc.,

27

454 U.S. 464, 485-86 (1982) ..................................................................................................................................12

28

DEFENDANTS’ MOTION TO DISMISS - vi (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 8 of 36

Washington v. Trump,
1
No. 17-35105, 2017 WL 526497 (9th Cir. 2017) ...................................................................................................11
2 White v. Lee,

3

227 F.3d 1214 (9th Cir. 2000) ..................................................................................................................................2

Whitman v. Am. Trucking Ass’n,
4
531 U.S. 457 (2001)................................................................................................................................................20

5 Wilson v. Bank of America, N.A.,

6

No. 12-cv-1532, 2013 WL 275018 (W.D. Wash. Jan. 24, 2013)..............................................................................9

7 Wilson v. Lynch,
835 F.3d 1083 (9th Cir. 2016) ................................................................................................................................21
8 Wolfe v. Strankman,

9

392 F.3d 358 (9th Cir. 2004) ....................................................................................................................................3

10

STATUTES

11
5 U.S.C. § 551(4).........................................................................................................................................................20

12 5 U.S.C. § 553(b)(3)(A).........................................................................................................................................20, 22

13 5 U.S.C. § 704 .............................................................................................................................................................20
8 U.S.C. § 1101(f)(6).....................................................................................................................................................4
14
8 U.S.C. § 1154(b).........................................................................................................................................................5
15 8 U.S.C. § 1159(b).......................................................................................................................................................21

16 8 U.S.C. § 1182 .............................................................................................................................................................6

17 8 U.S.C. § 1182(a)(3) ....................................................................................................................................................6
8 U.S.C. § 1182(a)(6)(C)(i) ...........................................................................................................................................4
18 8 U.S.C. § 1227(a)(4) ....................................................................................................................................................6

19 8 U.S.C. § 1252(a)(2)(B)(ii) ..........................................................................................................................................9

20 8 U.S.C. § 1255 ....................................................................................................................................................passim
8 U.S.C. § 1255(a) ................................................................................................................................................passim
21 8 U.S.C. § 1255(a)(2) ..............................................................................................................................................4, 20

22 8 U.S.C. § 1255(i)(2)(a).................................................................................................................................................5

23 8 U.S.C. § 1357(b).......................................................................................................................................................21
8 U.S.C. § 1421(a) .........................................................................................................................................................4
24 8 U.S.C. § 1421(c)...............................................................................................................................................5, 9, 19

25 8 U.S.C. § 1423 ...........................................................................................................................................................22

26 8 U.S.C. § 1427 ....................................................................................................................................................passim
8 U.S.C. § 1427(a)...................................................................................................................................................4, 22
27 8 U.S.C. § 1427(d).........................................................................................................................................................4
28 8 U.S.C. § 1427(e).........................................................................................................................................................4

DEFENDANTS’ MOTION TO DISMISS - vii (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 9 of 36

8 U.S.C. § 1429 ...................................................................................................................................................4, 6, 22
1
8 U.S.C. § 1445(a) .......................................................................................................................................................19
2 8 U.S.C. § 1446(a)................................................................................................................................................passim
3 8 U.S.C. § 1446(b).........................................................................................................................................................5
8 U.S.C. § 1446(c).........................................................................................................................................................4
4
8 U.S.C. § 1447(a) .........................................................................................................................................................4
5 8 U.S.C. § 1447(b).......................................................................................................................................5, 16, 18, 19
6 8 U.S.C. § 1571(b).......................................................................................................................................................15

7

REGULATIONS

8

9 8 C.F.R. § 103.2(b)(1) ...................................................................................................................................................5

10 8 C.F.R. § 204.1(a)(1)....................................................................................................................................................5

11 8 C.F.R. § 209.1...........................................................................................................................................................21

12 8 C.F.R. § 245.1.............................................................................................................................................................5

13 8 C.F.R. § 245.2(b)-(c) ................................................................................................................................................23

14 8 C.F.R. § 316.10(a)(2)..................................................................................................................................................4

15 8 C.F.R. § 316.2.....................................................................................................................................................21, 22

16 8 C.F.R. § 335.1.......................................................................................................................................................5, 19

17 8 C.F.R. § 335.2(b)................................................................................................................................................18, 19

18 8 C.F.R. § 336.2(b)........................................................................................................................................................4

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ MOTION TO DISMISS - viii (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 10 of 36

1

I. INTRODUCTION

2 On January 23, 2017, Plaintiffs filed a Complaint alleging U.S. Citizenship and
3 Immigration Services (“USCIS”) unlawfully delayed adjudication of Plaintiffs’ applications for
4 immigration benefits under a policy known as the Controlled Application Review and Resolution
5 Program (“CARRP”). Complaint, ECF No. 1, at ¶¶ 1-2. On January 27, 2017, the President
6 issued Executive Order (“E.O.”) 13769, which temporarily suspended entry of visa holders from
7 seven designated countries. 82 Fed. Reg. 8977 (Feb. 1, 2017). On February 1, 2017, Plaintiffs
8 filed a First Amended Complaint, adding several causes of action related to E.O. 13769,
9 including allegations that section 3(c) unlawfully suspended adjudication of Plaintiffs’ benefit
10 applications. ECF No. 17, at ¶¶ 54, 58-60, 154-158, 159-164, 165-166, 171-172, 173-178.
11 On February 2, 2017, the USCIS Acting Director clarified that E.O. 13769 did not affect
12 the processing of benefit applications of individuals in the United States. Exhibit A (hereinafter
13 “Scialabba Memo”). Then, on February 7, 2017, Plaintiffs filed a Notice of Related Cases, ECF
14 No. 22, in which they acknowledged that, in light of the Scialabba Memo, “if Defendants adhere
15 to the position stated in the [Scialabba Memo], it would appear that the section 3(c) claims in this
16 action may become moot.”2 The “section 3(c) claims” to which Plaintiffs referred were Claims
17 for Relief 1-3, 5, and 6, which were all based on the allegation USCIS had suspended
18 adjudication of immigration benefit applications from people from the seven countries
19 designated by the Executive Order.
20 On March 6, 2017, the President issued E.O. 13780, which revoked E.O. 13769 effective
21 March 16, 2017. E.O. 13780, § 13, 82 Fed. Reg. 13209, 13218 (Mar. 9, 2017). On April 4, 2017,
22 Plaintiffs filed a Second Amended Complaint (“SAC”). ECF No. 47. Despite their earlier
23 acknowledgement to the contrary, Plaintiffs again alleged Defendants had suspended
24 adjudication of benefit applications from Plaintiffs. SAC, ECF No. 47, at ¶¶ 249-61, 265-72.
25 As Plaintiffs correctly said in their Notice of Related Cases, ECF No. 22, these claims are
26 moot. Specifically, their First, Second, Third, Fifth, and Sixth Claims present no live case or
27

28 2 Plaintiffs also declined to pursue this theory in their motion for class certification. See Motion for Class
Certification, ECF No. 26, at 3 n.1.

DEFENDANTS’ MOTION TO DISMISS - 1 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 11 of 36

1 controversy because (1) E.O. 13769 has been entirely rescinded, (2) even if it were still in force,

2 binding guidance from the USCIS Acting Director confirms USCIS is processing benefit

3 applications for individuals present in the United States regardless of country of origin, and (3)

4 nothing in E.O. 13780 directs USCIS to suspend adjudication of benefit applications of

5 applicants present in the United States. This is illustrated by the recent approval of Mr. Wagafe’s 6 naturalization application,3 and the issuance of a notice of intent to deny Mr. Ostadhassan’s

7 adjustment-of-status application. See SAC ¶154; Exhibit B (Declaration of Leslie Tritten).

8

Further, insofar as Plaintiffs challenge the so-called “extreme vetting” under E.O. 13780,

9 those claims fail to state claims upon which relief can be granted as the complaint does not allege

10 sufficient facts to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,

11 550 U.S. 540, 555 (2007).

12

Plaintiffs’ Fourth Claim fails to state a claim for relief as a matter of law, as they lack a

13 constitutionally protected liberty or property interest in either the immigration benefits sought or

14 the pace of adjudication. The remaining allegations—Claims for Relief Seven, Eight, Nine, and

15 Ten—must be dismissed because they also fail to state claims upon which relief can be granted.

16 Even accepting Plaintiffs’ descriptions of CARRP as accurate for purposes of this motion,

17 Plaintiffs fail to demonstrate CARRP is a final agency action under the Administrative Procedure

18 Act (“APA”), or a “legislative rule” for purposes of APA notice-and-comment rulemaking.

19 Further, Plaintiffs do not have a private right of action under either the Immigration and

20 Nationality Act (“INA”) or the Constitution’s Uniform Rule of Naturalization clause.

21 Accordingly, the Court should dismiss the Second Amended Complaint in its entirety—in part,

22 for lack of jurisdiction, and, in part, for failure to state claims upon which relief can be granted.

23

II. LEGAL STANDARDS

24

A. Rule 12(b)(1) Standard

25 Because mootness and standing both pertain to a federal court’s subject matter
26 jurisdiction, they are properly raised in a Rule 12(b)(1) motion to dismiss. White v. Lee, 227 F.3d
27

28 3 As Mr. Wagafe’s application has been granted, his individual-capacity claims are now moot and he should be
dismissed from the action.

DEFENDANTS’ MOTION TO DISMISS - 2 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 12 of 36

1 1214, 1242 (9th Cir. 2000). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe

2 Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In reviewing a facial challenge,

3 which contests the sufficiency of the pleadings, the court considers only the allegations of the

4 complaint, accepting such allegations as true and drawing reasonable inferences in favor of the

5 plaintiff. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). In resolving a factual attack,

6 however, “the district court may review evidence beyond the complaint” and “need not presume

7 the truthfulness of the plaintiff’s allegations.” Safe Air for Everyone, 373 F.3d at 1039.

8

B. Rule 12(b)(6) Standard

9

Under Rule 12(b)(6), dismissal is appropriate when the complaint lacks a cognizable

10 legal theory or sufficient facts to support a cognizable legal theory. Mendiondo v. Centinela

11 Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). “To survive a motion to dismiss, a

12 complaint must contain more than ‘labels and conclusions’ or a ‘formulaic recitation of the

13 elements of a cause of action.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

14 Corp. v. Twombly, 550 U.S. at 555). Rather, the complaint must include “sufficient factual

15 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (internal

16 quotations and citations omitted).

17

“A claim has facial plausibility when the plaintiff pleads factual content that allows the

18 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

19 Id. (citation omitted). Under Rule 12(b)(6), as with a facial challenge under Rule 12(b)(1), 20 allegations of fact in the complaint are taken as true and construed in the light most favorable to 21 the nonmoving party. Spreewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 22 Allegations of law framed as factual statements, however, need not be taken as true. W. Min. 23 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981) (“We do not, however, necessarily assume 24 the truth of legal conclusions merely because they are cast in the form of factual allegations”). 25 Likewise, merely conclusory statements and formulaic recitations of the elements of a cause of 26 action are not entitled to the presumption of truth. Chavez v. United States, 683 F.3d 1102, 110827 09 (9th Cir. 2012). 28

DEFENDANTS’ MOTION TO DISMISS - 3 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 13 of 36

1

III. BACKGROUND

2

A. Immigration Processes

3

1. Naturalization Process

4

The Secretary of Homeland Security has “sole authority to naturalize persons as citizens

5 of the United States.” 8 U.S.C. § 1421(a).4 Under the Secretary’s authority, USCIS adjudicates

6 naturalization applications, to include investigating applicants, conducting examinations, and

7 determining whether to grant applications. 8 U.S.C. §§ 1446(a), (c). If USCIS denies an

8 application, the applicant may request a hearing before an immigration officer. 8 U.S.C. §

9 1447(a); 8 C.F.R. § 336.2(b).

10

The statutory requirements for naturalization are described in 8 U.S.C. §§ 1427 and 1429.

11 The alien must show, inter alia, that he or she was lawfully admitted for permanent residence in

12 the United States in accordance with all applicable provisions of the INA, resided continuously

13 and was physically present within the United States for specified periods of time, was and still is

14 a person of good moral character, and is attached to the principles of the Constitution. 8 U.S.C.

15 §§ 1427(a), (d), 1429. To have been lawfully admitted for permanent residence, the alien must

16 have been admissible at the time of adjusting to permanent resident status. 8 U.S.C. § 1255(a)(2).

17 An alien who has sought any immigration benefit by fraud or willfully misrepresenting a

18 material fact is inadmissible. 8 U.S.C. § 1182(a)(6)(C)(i). Certain behavior, including giving

19 false testimony to obtain an immigration benefit, disqualifies an applicant from demonstrating

20 good moral character. See, e.g., 8 U.S.C. § 1101(f)(6). Similarly, membership in or financial

21 contributions to a terrorist organization may make the applicant inadmissible, and may adversely

22 reflect on an applicant’s good moral character. 8 U.S.C. § 1427(e); 8 C.F.R. § 316.10(a)(2).

23

As is generally the case with all benefit applications, USCIS conducts security checks of

24 naturalization applicants to enhance national security, public safety, and ensure the integrity of

25 the immigration process. USCIS is required by statute and regulation to complete a full

26
27 4 The transfer of the former Immigration and Naturalization Service’s (“INS”) naturalization functions to the
Department of Homeland Security included the transfer of the authority to naturalize from the Attorney General to
28 the Secretary of Homeland Security. See Homeland Security Act of 2002, Pub. L. No.107-296, § 1512(d), 116 Stat.
2135, 2310 (Nov. 25, 2002).

DEFENDANTS’ MOTION TO DISMISS - 4 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 14 of 36

1 background investigation of naturalization applicants. Indeed, Congress has mandated that

2 USCIS “receiv[e] confirmation from the Federal Bureau of Investigation (“FBI”) that a full

3 criminal background check has been completed, except for those excepted by regulation as of

4 January 1, 1997,” before adjudicating a naturalization application. Pub. L. No. 105-119, Title I,

5 111 Stat. 2448 (Nov. 26, 1997).

6

USCIS must, therefore, thoroughly investigate the background of every naturalization

7 applicant to determine whether the applicant is eligible to naturalize. See 8 U.S.C. § 1446(a), (b);

8 8 C.F.R. § 335.1 (“The investigation shall consist, at a minimum, of a review of all pertinent

9 records, police department checks, and a neighborhood investigation in the vicinities where the

10 applicant has resided and has been employed, or engaged in business, for at least the five years

11 immediately preceding the filing of the application.”).

12

If USCIS does not decide an application within 120 days following the applicant’s

13 examination, the applicant may sue in district court to obtain a determination of the application.

14 8 U.S.C. § 1447(b). A naturalization applicant may file a Form N-336 with USCIS to appeal a

15 denial of naturalization, and if that is denied, then seek de novo review in district court. 8 U.S.C.

16 § 1421(c).

17

2. Adjustment of Status Process

18

In the past, a non-immigrant alien who sought to obtain permanent residence in the

19 United States had to leave the country and seek an immigrant visa at a U.S. consulate abroad. To

20 alleviate that burden, Congress created the adjustment-of-status process, subject to the ultimate

21 discretion of, originally, the Attorney General, and now, the Secretary of Homeland Security. 8

22 U.S.C. § 1255; Jain v. Immigration & Naturalization Serv., 612 F.2d 683, 686 (2d Cir. 1979).

23

An alien becomes eligible to adjust to lawful permanent resident (“LPR”) in several

24 circumstances, including through marriage to a U.S. citizen. See, e.g., 8 U.S.C. § 1255(a); 8

25 C.F.R. § 245.1. For an alien married to a U.S. citizen and residing within the United States, the

26 process has two-steps. First, the citizen spouse files a Petition for Alien Relative (“Form I-130”)

27 on behalf of the alien spouse, to establish the existence of the marital relationship. 8 U.S.C.

28 §1154(b); 8 C.F.R. § 204.1(a)(1). Second, the alien spouse may file an adjustment-of-status

DEFENDANTS’ MOTION TO DISMISS - 5 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 15 of 36

1 application. 8 U.S.C. § 1255(a); 8 C.F.R. § 245.1.

2

The alien spouse must: (1) be eligible to receive an immigrant visa; (2) be admissible to

3 the United States; and (3) have a visa immediately available to him or her at the time the

4 application is filed. 8 U.S.C. § 1255(a). The alien has the burden to demonstrate eligibility for

5 the benefit, including admissibility. 8 U.S.C. § 1255(i)(2)(a); 8 C.F.R. § 103.2(b)(1). An alien is

6 inadmissible if any of the factual circumstances described in the law exist. For example, an alien

7 may be inadmissible on grounds related to health, criminality, national security, and

8 misrepresentations. 8 U.S.C. § 1182. An alien has no right to adjustment to LPR status, even if

9 the alien meets the objective eligibility requirements for adjustment of status; the grant of LPR

10 status is solely within the discretion of the Secretary of Homeland Security. 8 U.S.C. § 1255(a);

11 Diric v. INS, 400 F.2d 658, 660-61 (9th Cir. 1968), cert. denied, 394 U.S. 1015 (1969); Santos v.

12 INS, 375 F.2d 262, 264 (9th Cir. 1967); Jarecha v. INS, 417 F.2d 220, 223 (5th Cir. 1969);

13 Matter of Blas, 15 I & N Dec. 626, 630 (BIA 1974).

14

B. CARRP

15

Plaintiffs allege CARRP is a process by which applications that raise national security

16 concerns are handled. SAC ¶ 55. This policy ensures that benefit requests with national security

17 concerns are consistently and uniformly adjudicated across USCIS. SAC ¶ 61; ECF 27-1 at 7.5 A

18 national security concern arises when an individual or organization is determined to have an

19 articulable link to prior, current, or planned involvement in, or association with, an activity,

20 individual, or organization described in INA sections 212(a)(3)(A), (B), or (F), or 237(a)(4)(A)

21 or (B). SAC ¶ 62. Those INA sections make inadmissible or removable any individual who, inter

22 alia, “has engaged in terrorist activity” or is a member of a “terrorist organization.” 8 U.S.C. §§

23 1182(a)(3), 1227(a)(4). CARRP directs officers to identify applications for immigration benefits

24

25 5 In a motion to dismiss under Rule 12, the Court can consider materials including documents attached to the
complaint, incorporated by reference in the complaint, or matters of judicial notice, without converting the motion to
26 dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003); In re
Stac Electronics Securities Litigation, 89 F.3d 1399, 1405 n.4 (9th Cir. 1996) (documents whose contents are
27 alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the
pleading, may be considered in motion to dismiss.). In this case, Plaintiffs have incorporated by reference in the
28 complaint information about CARRP obtained via the Freedom of Information Act, see SAC ¶ 59, and have
provided that information to the Court in in support of their motion for class certification. ECF No. 27-1.

DEFENDANTS’ MOTION TO DISMISS - 6 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 16 of 36

1 (including naturalization and adjustment of status) that raise national security concerns and

2 thoroughly investigate the applicant’s background, in consultation with supervisors and other

3 agencies, to determine whether the applicant is statutorily eligible to naturalize or adjust status.

4 SAC ¶¶ 61, 83, 85-88. Nevertheless, the handling of an application pursuant to CARRP does not

5 render the applicant statutorily ineligible for the benefit sought. SAC ¶ 93. See 8 U.S.C. §§

6 1255(a), 1427, 1429. Instead, CARRP provides a process to resolve issues that surface during

7 background checks on benefit applications. ECF 27-1, 4-5. Resolution often requires

8 communication with law enforcement or intelligence agencies to determine whether information

9 is relevant to an applicant and, if so, whether the information has an impact on eligibility for the

10 benefit. Id. at 6.

11

Once vetting is completed, if an applicant is ineligible for the benefit sought, the

12 application is denied, and if the applicant is eligible for the benefit sought, then it is approved. Id.

13 at 7. As a safeguard to ensure reasoned adjudication, supervisory review and concurrence is

14 required for denial or approval of such applications. Id.; SAC ¶ 92.

15

C. Executive Orders

16

On January 27, 2017, the President issued E.O. 13769. Section 3(c) temporarily

17 suspended entry of certain visa holders from seven countries. 82 Fed. Reg. at 8978. On February

18 2, 2017, the USCIS Acting Director clarified that section 3(c) did not affect USCIS’s processing

19 of benefit applications for individuals in the United States. See Scialabba Memo. Section 4 of

20 E.O. 13769 directed the Secretaries of State and Homeland Security and the Directors of

21 National Intelligence and the FBI to “implement a program, as part of the adjudication process

22 for immigration benefits, to identify individuals seeking to enter the United States on a

23 fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to

24 their admission.” Id. The Executive Order directed this program to include “a process to evaluate

25 the applicant’s likelihood of becoming a positively contributing member of society and the

26 applicant’s ability to make contributions to the national interest.” Id. at 8979.

27

On March 6, 2017, the President issued E.O. 13780. 82 Fed. Reg. 13209, 13218 (Mar. 6,

28 2017). Section 13 of E.O. 13780 rescinded E.O. 13769 in its entirety, effective March 16, 2017.

DEFENDANTS’ MOTION TO DISMISS - 7 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 17 of 36

1 Id. at 13218. Nothing in E.O. 13780 directs USCIS to suspend adjudication of immigration

2 benefit applications by people within the United States, although the Executive Order does (in

3 section 5), like its predecessor, direct Executive Branch officials to “implement a program, as

4 part of the process for adjudications, to identify individuals who seek to enter the United States

5 on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any

6 group or class of people within the United States, or who present a risk of causing harm

7 subsequent to their entry. This program shall include the development of a uniform baseline for

8 screening and vetting standards and procedures.” Id. at 13215.

9

D. Factual Allegations

10

Mr. Abdiqafar Wagafe was a Somali national and lawful permanent resident of the

11 United States. SAC ¶¶ 142, 149. On July 3, 2012, Mr. Wagafe applied to naturalize as a U.S.

12 citizen. Id. ¶ 150. USCIS interviewed him on October 29, 2012, but he lacked sufficient

13 command of English to understand and respond to the immigration officer’s questions. Id.
14 USCIS re-interviewed Mr. Wagafe on January 3, 2013, but he failed the English language
15 portions of the naturalization test. Id. Accordingly, USCIS denied his naturalization application
16 on January 9, 2013. Id. On November 8, 2013, Mr. Wagafe submitted a second naturalization 17
application. Id. ¶ 152. USCIS interviewed him in connection with this application on February 18
22, 2017, and approved his application. Id. at ¶ 154. Plaintiff Wagafe naturalized on March 2, 19
2017. Id. 20
Mr. Mehdi Ostadhassan is an Iranian national. Id. ¶¶ 162, 165. He was originally 21
admitted to the United States on a student visa in 2009. Id. ¶ 163. He married Ms. Baily Bubach, 22
a U.S. citizen, on January 25, 2014, and on February 11, 2014, Ms. Bubach, submitted a Form I23
130, Petition for Alien Relative, to have Mr. Ostadhassan recognized as her immediate relative. 24
Id. ¶ 164. Contemporaneously, Mr. Ostadhassan applied to adjust status LPR. Id. ¶ 165. USCIS 25
26 interviewed Mr. Ostadhassan and his wife on the petition and application on September 24,
27 2015. Id. ¶ 168. On March 24, 2017, USCIS granted Ms. Bubach’s I-130 Petition, and on April
28 5, 2017, USCIS sent Mr. Ostadhassan a Notice of Intent to Deny (“NOID”) his adjustment-of-

DEFENDANTS’ MOTION TO DISMISS - 8 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 18 of 36

1 status application. The NOID gives Mr. Ostadhassan thirty-three (33) days to respond to the

2 issues raised in the NOID, as the document was served by mail.

3

Ms. Hanin Omar Bengezi is a Libyan national and Canadian citizen who applied to adjust

4 status in February 2015. SAC ¶¶ 176, 187. She came to the United States in December 2014 on a

5 fiancée visa, and married a U.S. citizen in January 2015. SAC ¶ 186. Mr. Mushtaq Abed Jihad is

6 an Iraqi national, who originally came to the United States as a refugee in August 2008. SAC ¶¶

7 199, 204. He became an LPR upon arrival in the United States as a refugee. He applied to

8 naturalize in July 2013. SAC ¶¶ 205-06. Mr. Sajeel Manzoor is a Pakistani national. SAC ¶ 220.

9 He originally came to the United States on a student visa, SAC ¶ 221, and later obtained an H-1B

10 employment visa in October 2007. SAC ¶ 222. In September 2010, Mr. Manzoor obtained LPR

11 status, SAC ¶ 227, and in November 2015, he applied to naturalize, SAC ¶ 228.

12 IV. ARGUMENT6
13

A. Because Plaintiffs Admit They Have No Interest In Adjudication of Their

14

Applications, No Real Case or Controversy Exists

15 In their Motion for Class Certification, Plaintiffs disclaimed any interest in obtaining a
16 court order directing Defendants to adjudicate their individual applications for immigration
17 benefits. ECF No. 26 at 9. Instead, Plaintiffs want only a determination that CARRP is unlawful,
18 and an injunction preventing Defendants from applying it to the proposed class members (or, at a
19 minimum, notice and an opportunity to challenge a decision to process a particular application in
20 accordance with CARRP). Id. The Court has discretion to treat this statement as a judicial
21 admission. See Gospel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 557 (9th Cir. 2003)
22 (courts have discretion to consider statements in briefs judicial admissions); Cook v. Reinke, 484
23 F. App’x 110, 112 (9th Cir. 2012) (court could construe statement in motion as judicial
24
25 6 Although not directly stated in any Claim for Relief, Plaintiffs make repeated references to CARRP directing
USCIS officials to make “unwarranted denials” on “pretextual grounds.” See SAC at ¶¶ 84, 91, 94, 97, 278, 282,
26 288, 293. Plaintiffs lack standing to challenge an allegedly unlawful denial because no Plaintiff’s application has
been denied, nor do Plaintiffs’ proposed class definitions seek to represent applicants whose applications have
27 already been adjudicated. See Motion for Class Certification, ECF No. 26 at 8. As well, the Court would lack
jurisdiction to review discretionary denials of adjustment of status applications under 8 U.S.C. §1252(a)(2)(B)(ii);
28 Aldarwich v. Hazuda, 593 F. App’x 654, 655 (9th Cir. 2015), and anyone denied naturalization has an adequate
alternate remedy at law pursuant to 8 U.S.C. § 1421(c).

DEFENDANTS’ MOTION TO DISMISS - 9 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 19 of 36

1 admission); Wilson v. Bank of America, N.A., No. 12-cv-1532, 2013 WL 275018, at *6 (W.D.

2 Wash. Jan. 24, 2013) (construing admission in response memorandum as judicial admission).

3

If Plaintiffs lack any interest in adjudication of their applications, they lack standing to

4 bring this action. They cannot manufacture standing by identifying a policy they claim is causing

5 their applications to be delayed, and simultaneously disclaim any interest in a judicial resolution

6 of the specific delays they claim to have suffered. That is no case or controversy. “[F]or a federal

7 court to have authority under the Constitution to settle a dispute, the party before it must seek a

8 remedy for a personal and tangible harm.” Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013).

9 Having disclaimed any interest in adjudication of their individual applications, Plaintiffs seek

10 judicial determination only of the “abstract” harm allegedly caused by the policy. The Supreme

11 Court and the Ninth Circuit have repeatedly held that abstract disputes—even those alleging the

12 government has acted unlawfully—are insufficient to establish jurisdiction. Lance v. Coffman,

13 549 U.S. 437, 441-42 (2007) (per curiam) (“The only injury [they] allege is that the law . . . has

14 not been followed”); Allen v. Wright, 468 U.S. 737, 754 (1984) (“This Court has repeatedly held

15 that an asserted right to have the Government act in accordance with law is not sufficient,

16 standing alone, to confer jurisdiction on a federal court”), abrogated on other grounds by

17 Lexmark Int’l v. Static Control Components, Inc., 134 S. Ct. 1377 (2014); Novak v. United

18 States, 795 F.3d 1012, 1018 (9th Cir. 2015). In light of Plaintiffs’ admission that they have no

19 personal interest in this matter, the Court should dismiss the action in its entirety for lack of

20 jurisdiction.

21

B. Plaintiffs’ First, Second, Third, Fifth, Sixth, and Tenth Claims for Relief Must

Be Dismissed Because Plaintiffs Lack Standing 22

23

It is axiomatic that Article III of the Constitution limits the jurisdiction of federal courts

24 to actual “cases” or “controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992).

25 One of the prerequisites for the existence of a case or controversy under Article III is that the

26 plaintiff have standing. Id. at 560. To have standing, (1) the plaintiff must have suffered an injury

27 in fact, i.e. an invasion of a legally protected interest, which is (a) concrete and particularized and

28 (b) actual or imminent; (2) there must be a causal connection between the injury and the conduct

DEFENDANTS’ MOTION TO DISMISS - 10 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 20 of 36

1 complained of; and (3) it must be likely that the injury will be redressed by a favorable decision.

2 Id. at 560-61. Plaintiffs do not meet this test, as adjudication of their benefit applications has not

3 been suspended and they are not be injured by any violation of the Uniform Rule Clause.

4

1. Because Adjudication of Plaintiffs’ Benefit Applications Has Not Been

Suspended Pursuant to E.O. 13780, Plaintiff Have Not Suffered Injury-in-Fact 5

6

In Claims One, Two, Three, Five, and Six, Plaintiffs make various claims based on the

7 alleged suspension, pursuant to E.O. 13780, of the adjudication of their benefit applications.

8 Plaintiffs lack standing to bring these claims, because E.O. 13780 does not suspend the

9 adjudication of immigrant benefit applications by persons within the United States, and USCIS

10 has not suspended the adjudication of Plaintiffs’ benefit applications pursuant to E.O. 13780.

11

As Plaintiffs acknowledged, see Plaintiffs’ Notice of Related Cases, ECF No. 22, at 2-3,

12 despite some initial guidance from subordinate USCIS officials interpreting E.O. 13780’s

13 predecessor, E.O. 13769, to preclude adjudication of benefit applications from citizens of Iran,

14 Iraq, Libya, Somalia, Sudan, Syria, and Yemen, the USCIS Acting Director confirmed USCIS

15 would continue to process benefit applications from nationals of those countries present in the

16 United States. See Scialabba Memo (“Section 3(c) of the [E.O. 13769] does not affect USCIS

17 adjudication of applications and petitions filed for or on behalf of individuals in the United States

18 regardless of their country of nationality.”).7

19

While the President subsequently rescinded E.O. 13769, and issued E.O. 13780 in its

20 stead, E.O. 13780, 82 Fed. Reg. 13209, 13218, nothing in E.O. 13780 suspends the adjudication

21 of immigration benefit applications made by persons present in the United States. Id. Indeed, the

22 Order explicitly limits application of its entry suspension provision in section 2 (which is distinct

23

24
25 7 In Washington v. Trump, No. 17-35105, 2017 WL 526497 (9th Cir. 2017), the Ninth Circuit concluded that it could
not rely on the White House Counsel’s guidance that Section 3(c) of the Executive Order did not apply to lawful
26 permanent residents because the Executive Order prima facie applied, and the White House Counsel was not
“empowered to issue an amended order superseding the Executive Order” nor was he “known to be in the chain of
27 command for any of the Executive Departments.” Id., slip copy at 21-22. Here, in contrast, the Scialabba Memo
was issued by the Acting Director who is clearly in the chain of command, and her interpretation is consonant with
28 section 3(c) of E.O. 13769, which, on its face, applies only to entry and not to benefit applications submitted by or
on behalf of individuals already present in the United States.

DEFENDANTS’ MOTION TO DISMISS - 11 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 21 of 36

1 from adjudication of immigrant benefit applications) to persons who “are outside the United

2 States on the effective date of this order.” Id. at § 3(a)(i), 82 Fed. Reg. at 13213.

3

That USCIS has not suspended processing or adjudication of Plaintiffs’ benefit

4 applications pursuant to either of the executive orders is demonstrated by the recent approval of

5 Mr. Wagafe’s naturalization application and issuance of a NOID to Mr. Ostadhassan.

6

Clearly, Plaintiffs have not suffered any injury-in-fact from a suspension of adjudication

7 of their benefit applications as alleged in Claims One, Two, Three,8 Five, and Six. Consequently,

8 they lack standing to bring these claims, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 559

9 (1992), and those claims should be dismissed.

10

2. Plaintiffs Lack Standing To Complain About a Violation of the Constitution’s

Uniform Rule of Naturalization Clause 11

12

Plaintiffs allege that applying CARRP to the processing of their naturalization

13 applications (and those of the putative Naturalization Plaintiff Class members) violates the clause

14 of the Constitution that confers on Congress the power “[t]o establish a uniform rule of

15 naturalization . . . throughout the United States,” i.e. Article I, Section 8, Clause 4. SAC ¶¶ 289-

16 293. Plaintiffs lack standing to assert a violation of this clause.

17

First, there is no private right of action under Article I, Section 8, Clause 4. Flores v. City

18 of Baldwin Park, No. 14-cv-9290, 2015 WL 756877, *3 (C.D. Cal. Feb. 23, 2015). The Clause is

19 an affirmative grant of authority to Congress, and does not confer any rights on private

20 individuals. See Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th Cir. 2004) (citing THE

21 FEDERALIST No. 32 (Alexander Hamilton)). As the Ninth Circuit recently explained, “[t]he

22 uniformity requirement was a response to tensions that arose from the intersection of the Articles

23 of Confederations Comity Clause and the states’ divergent naturalization laws, which allowed an

24 alien ineligible for citizenship in one state to move to another state, obtain citizenship, and return

25

26 8 To the extent Plaintiffs’ Third Claim for Relief was intended also to allege that the “extreme vetting” directed
under section 5 of E.O. 13780 violates the Establishment Clause of the Constitution (which is not at all clear from
27 the language of the Second Amended Complaint), the allegation provides no basis to find it justiciable, see Valley
Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485-86 (1982), and fails
28 to state a plausible claim to relief. See Kleindienst v. Mandel, 408 U.S. 753, 770 (1972); Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

DEFENDANTS’ MOTION TO DISMISS - 12 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 22 of 36

1 to the original state as a citizen entitled to all of its privileges and immunities.” Korab v. Fink,

2 797 F.3d 572, 580-81 (9th Cir. 2015) (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 (1824)).

3

Second, because the Clause is an affirmative grant of authority to Congress, even

4 assuming arguendo that CARRP violates the clause, the entity suffering any invasion of a legally 5 protected interest as a result of a violation would be Congress, not Plaintiffs.9 Consequently,

6 Plaintiffs have not suffered an injury-in-fact, i.e., an invasion of a legally protected interest.

7 Because Plaintiffs cannot have suffered a legally cognizable injury from a violation of the

8 Clause, and because the Clause does not create a private right of action, Plaintiffs lack standing

9 to pursue a claim based on its alleged violation.

10

C. Plaintiffs’ Claims Concerning “Extreme Vetting” Under E.O. 13780 Must Be

Dismissed Because They Fail To Allege Sufficient Facts To Give Rise To

11

Plausible Claims For Relief

12

Plaintiffs’ obligation to allege the grounds of their entitlement to relief “requires more

13 than labels and conclusions, and a formulaic recitation of the elements of a cause of action.”

14 Twombly, 550 U.S. at 555. Courts are not bound to accept as true legal conclusions couched as

15 factual allegations, and factual allegations must be sufficient to raise the right to relief above the

16 speculative level. Id. In other words, the complaint must contain sufficient factual allegations to

17 state a claim that is “plausible.” Iqbal, 556 U.S. at 678. “A claim has facial plausibility when the

18 plaintiff pleads factual content that allows the court to draw the reasonable inference that the

19 defendant is liable for the misconduct alleged.” Id. “Where a complaint pleads facts that are

20 merely consistent with a defendant’s liability, it stops short of the line between possibility and

21 plausibility of entitlement to relief.” Id. (internal citations and quotations omitted).

22

As alleged in the Second Amended Complaint, section 5 of E.O. 13780 requires

23 Defendants to “implement a program, as part of the process for adjudications, to identify

24 individuals . . . who present a risk of causing harm,” and develop a “uniform baseline for

25

26 9 Further, it is doubtful the Executive can violate the Uniform Rule of Naturalization Clause, which concerns the
division of authority over naturalization as between Congress and state governments. If the Executive has exceeded
27 its statutory authority by applying CARRP—which, according to Plaintiffs’ allegations, USCIS is applying
uniformly throughout the entire country—the problem is not that USCIS is violating the Uniform Rule clause, but
28 rather that its actions are ultra vires under the INA. We address that claim, which Plaintiffs assert in their Fourth
Claim for Relief, in section IV.E. below.

DEFENDANTS’ MOTION TO DISMISS - 13 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 23 of 36

1 screening and vetting standards and procedures, including a mechanism to assess whether

2 applicants may commit, aid, or support any kind of violent, criminal, or terrorist acts after

3 entering the United States, and any other appropriate means for ensuring . . . a rigorous

4 evaluation of all grounds . . . for denial of…immigration benefits.” SAC ¶ 138 (internal

5 quotations omitted) (emphasis added). Further, they allege section 4 of the Order “specifies that

6 applications for a visa, admission, or other immigration benefit made by Iraqi nationals must still

7 be subjected to thorough review to determine whether the applicant has any connections to ISIS

8 or any other terrorist organization or may be a terrorist or national security threat.” Id. ¶ 139

9 (internal quotations omitted). Plaintiffs also allege that, in the Presidential Memorandum issued

10 March 6, 2017, the President “instruct[ed] the Secretary of State and the Secretary of Homeland

11 Security, in conjunction with the Attorney General, to implement protocols and procedures as

12 soon as practicable that in their judgment will enhance the screening and vetting of applications

13 for visas and all other immigration benefits,” and “rigorously enforce all existing grounds of

14 inadmissibility and to ensure subsequent compliance with related laws after admission.” Id. at ¶

15 139 (internal quotations omitted) (emphasis added).

16

Apart from conclusory and formulaic allegations that the development and

17 implementation of a baseline for screening and vetting benefit applicants “will dramatically

18 expand CARRP,” SAC ¶ 140, Plaintiffs allege no actual facts that plausibly establish

19 Defendants, in carrying out the directives of sections 4 and 5 of E.O. 13780, or the Presidential

20 Memorandum of March 6, 2017, have adopted, or will adopt, measures that would expand

21 CARRP, violate the law, or require notice and an opportunity to respond. Because Plaintiffs have

22 failed to allege sufficient facts to establish they have suffered any injury from the provisions of

23 sections 4 and 5 of E.O. 13780 or the Presidential Memorandum of March 6, 2017, they have

24 failed to state a claim upon which relief can be granted.

25

D. Plaintiffs’ Fourth Claim for Relief Fails to Allege a Procedural Due Process

Violation and Must Be Dismissed Because Plaintiffs Have Not Been Deprived of

26

a Protected Liberty or Property Interest

27

In their Fourth Claim for Relief, Plaintiffs allege “Defendants’ failure to give Plaintiffs

28 and members of the Extreme Vetting Naturalization and Extreme Vetting Adjustment-of-Status

DEFENDANTS’ MOTION TO DISMISS - 14 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 24 of 36

1 Classes notice of their classification under CARRP (or successor “extreme vetting” program), a

2 meaningful explanation of the reason for such classification, and any process by which Plaintiffs

3 can challenge their classification, violates the Due Process Clause of the Fifth Amendment to the

4 United States Constitution.” SAC ¶¶ 263. “To establish a due process violation, a plaintiff must

5 show that he has a protected property interest under the Due Process Clause and that he was

6 deprived of the property without receiving the process that he was constitutionally due.” Levine

7 v. City of Alameda, 525 F.3d 903, 905 (9th Cir. 2008). See also Bd. of Regents of State Colleges

8 v. Roth, 408 U.S. 564, 571 (1972). Here, Plaintiffs have failed to state a viable claim for relief

9 because they are not being deprived of any liberty or property interest.

10

To begin, there is no protected liberty or property interest in discretionary benefits, such

11 as adjustment of status. See 8 U.S.C. § 1255(a) (“The status of an alien . . . may be adjusted by

12 the Attorney General, in his discretion . . .”); Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247

13 (9th Cir. 2008). See also McCreath v. Holder, 573 F.3d 38, 41 (1st Cir. 2009); Hamdan v.

14 Gonzales, 425 F.3d 1051, 1060 (7th Cir. 2005); Nativi-Gomez v. Ashcroft, 344 F.3d 805, 808

15 (8th Cir. 2003). And because, as a constitutional matter, “no alien has the slightest right to

16 naturalization,” Fedorenko v. United States, 449 U.S 490, 506 (1981) (internal quotation

17 omitted), there is no “protected liberty interest in naturalization beyond that which Congress has

18 provided by statute.” Morgovsky v. DHS, 517 F. Supp. 2d. 581, 585 (D. Mass. 2007) (citing

19 United States v. Ginsberg, 243 U.S. 472, 474 (1917)).

20

Nor do Plaintiffs (and the class members they seek to represent) have a constitutionally

21 protected liberty or property interest in the pace of adjudication of their benefit applications. See

22 Mendez-Garcia v. Lynch, 840 F.3d 655, 666 (9th Cir. 2016) (procedural delays in adjudication

23 “do not deprive aliens of a substantive liberty or property interest unless the aliens have a

24 ‘legitimate claim of entitlement’ to have their applications adjudicated within a specified time.”).

25 Plaintiffs erroneously rely on 8 U.S.C. § 1571(b) as creating an enforceable time limit. That

26 provision, however, under the heading “Policy,” provides “the sense of the Congress that the

27 processing of an immigration benefit should be completed not later than 180 days after the initial

28 filing of the application.” 8 U.S.C. § 1571(b). The Ninth Circuit has explained that “‘Sense of the

DEFENDANTS’ MOTION TO DISMISS - 15 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 25 of 36

1 Congress’ provisions are precatory provisions, which do not in themselves create individual

2 rights or, for that matter, any enforceable law.” Orkin v. Taylor, 487 F.3d 734, 740 (9th Cir.

3 2007).

4

Even if section 1571(b) constituted positive law rather than a policy statement, statutory

5 deadlines for government actions are generally interpreted as hortatory and do not limit [the

6 government’s] power or render its exercise in disregard of the requisitions ineffectual.” French v.

7 Edwards, 80 U.S. (13 Wall.) 506, 511 (1872). As the Supreme Court observed: “It ignores reality

8 to expect that the Government will be able to secure perfect performance from its hundreds of

9 thousands of employees scattered throughout the continent.” Office of Pers. Mgmt. v. Richmond,

10 496 U.S. 414, 433 (1990). Thus, statutory deadlines, when applied to the Government, are

11 typically advisory and meant to prod the Government to expeditious action.

12

The Ninth Circuit has cautioned that “[a] statutory time period providing a directive to an

13 agency or public official is not ordinarily mandatory ‘unless it both expressly requires the agency

14 or public official to act within a particular time period and specifies a consequence for failure to

15 comply with the provision.’” Ezell v. United States, 778 F.3d 762, 765 (9th Cir. 2015) (quoting

16 In re Siggers, 132 F.3d 333, 336 (6th Cir. 1997)) (emphasis in original). See also Brock v. Pierce

17 Cty., 476 U.S. 253, 259 (1986) (internal citation and quotations omitted); United States v. James

18 Daniel Good Real Prop., 510 U.S. 43, 63 (1993) (“If a statute does not specify a consequence for

19 noncompliance with statutory timing provisions, the federal courts will not in the ordinary course

20 impose their own coercive sanction.”); Rodriguez v. Superintendent, Bay State Corr. Ctr., 139

21 F.3d 270, 272 (1st Cir. 1998) (“Before operating as a mandate, a statutory time limitation

22 addressed to a public official generally must contain both an express command that the official

23 act within a given temporal period and a consequence attached to noncompliance.”); St. Regis

24 Mohawk Tribe, N.Y. v. Brock, 769 F.2d 37, 41-42 (2d Cir. 1985) (collecting authority and noting

25 a statutory time period is not mandatory unless it both expressly requires action and provides a

26

27

28

DEFENDANTS’ MOTION TO DISMISS - 16 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 26 of 36

1 consequence for failure to comply). Here, there is no express guarantee of decision within any 2 particular time-frame.10 Nor is there any consequence for failing to meet a statutory schedule.

3

Accordingly, there is no liberty or property interest protected by the Due Process Clause

4 at stake. Without a liberty or property interest in either the benefits sought or the pace of

5 adjudication, Plaintiffs cannot be due the process to which they claim entitlement. See Olim v.

6 Wakinekona, 461 U.S. 238, 250 (1983) (“Process is not an end in itself. Its constitutional purpose

7 is to protect a substantive interest to which the individual has a legitimate claim of entitlement.”).

8 Plaintiffs have, therefore, failed to state a claim upon which relief may be granted.

9

E. Plaintiffs’ Seventh Claim for Relief Must Be Dismissed Because the Immigration

and Nationality Act Does Not Create A Private Right of Action 10

11

Plaintiffs Seventh Claim for Relief asserts that CARRP violates 8 U.S.C. §§ 1427 and

12 1255, which establish the requirements to naturalize and the eligibility criteria for adjustment of

13 status, respectively. SAC ¶¶ 276-77. This claim must be dismissed because neither section

14 creates a private right of action. Consequently, Plaintiffs lack standing to bring a claim under

15 those sections, and the court lacks jurisdiction over it.

16

“[P]rivate rights of action to enforce federal law must be created by Congress. Alexander

17 v. Sandoval, 532 U.S. 275, 286-87 (2001) (quoting Touche Ross & Co. v. Redington, 442 U.S.

18 560, 578 (1979) (the remedies available are those ‘that Congress enacted into law’)). “[T]he fact

19 that a federal statute has been violated and some person harmed does not automatically give rise

20 to a private cause of action in favor of that person.” Touche Ross & Co., 442 U.S. at 568 (quoting

21 Cannon v. University of Chicago, 441 U.S. 677, 688 (1979)) (internal quotations omitted).

22

“The judicial task is to interpret the statute Congress has passed to determine whether it

23 displays an intent to create not just a private right but also a private remedy.” Alexander, 532

24 U.S. at 286 (citing Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15 (1979)).

25 Where the statute does not reveal a congressional intent to create a private right of action, the

26 10 Section 1447(b) of Title 8, U.S. Code, provides that if 120 days after an applicant has been examined regarding 27 his naturalization application no determination has been made, the applicant may apply to a district court for a
hearing on the matter. 8 U.S.C. § 1447(b). But even this provides only an alternative forum, not an entitlement to a
28 decision within a particular time. Ahmadi v. Chertoff, No. 07-cv-03455, 2007 WL 3022573, at *10 (N.D. Cal. Oct.
15, 2007) (“There is no right to have an application adjudicated within 120 days of completion of the examination”).

DEFENDANTS’ MOTION TO DISMISS - 17 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 27 of 36

1 federal courts “may not create one, no matter how desirable that might be as a policy matter, or

2 how compatible with the statute.” Id. See also Touche Ross & Co, 442 U.S. at 568 (“our task is

3 limited solely to determining whether Congress intended to create the private right of action

4 asserted”). “[T]he burden is on [the plaintiff] to demonstrate that Congress intended to make a

5 private remedy available.” Suter v. Artist M., 503 U.S. 347, 363 (1992).

6

On its face, neither section 1427 nor 1255 expressly creates a private right of action. 8

7 U.S.C. §§ 1255, 1427. To determine whether Congress implied a private right of action in a

8 statute that contains no express provision, the Court must consider whether: (1) the plaintiff is of

9 the class for whose especial benefit the statute was enacted; (2) there is any indication of

10 legislative intent to create or exclude a private right of action; (3) it is consistent with the

11 underlying purposes of the legislative scheme to imply a private right of action; and (4) whether

12 the cause of action is traditionally relegated to state law. Cort v. Ash, 422 U.S. 66, 78 (1975). A

13 few years after Cort, the Supreme Court clarified that “the focus of the inquiry is on whether

14 Congress intended to create a remedy.” California v. Sierra Club, 451 U.S. 287, 297 (1981).

15

The Supreme Court also explained that, in considering whether the plaintiff is of a class

16 for whose “especial benefit” the statute was enacted, “[t]he question is not simply who would

17 benefit from the Act, but whether Congress intended to confer federal rights upon those

18 beneficiaries.” Id. at 294. The Court also said that silence on the remedy question serves to

19 confirm that, in enacting the law, Congress was not concerned with private rights. Id. at 296.

20 Additionally, the Supreme Court has held that statutory schemes that provide private rights of

21 action in some situations but not others weigh against inferring a private right of action because

22 “when Congress wished to provide a private damages remedy, it knew how to do so and did so

23 expressly.” Touche Ross & Co., 442 U.S. at 572; Universities Research Ass’n v. Coutu, 450 U.S.

24 754, 773 (1981).

25

When sections 1255 and1427 are examined in light of these principles, the Court must

26 conclude Congress implied no private rights of action of which Plaintiffs might avail themselves.

27 First, while Plaintiffs might benefit from statutes that establish requirements for naturalization or

28 criteria for adjustment of status, these statutes were not enacted for Plaintiffs’ “especial benefit.”

DEFENDANTS’ MOTION TO DISMISS - 18 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 28 of 36

1 Rather, the primary purpose of both these statutes is to protect the interests of the People of the

2 United States by establishing requirements and criteria that must be met before an alien may

3 become a permanent resident or citizen, just as criminal laws are enacted for the benefit of

4 society, and not for the “especial benefit” of future crime victims.

5

Second, there is no indication Congress intended to imply any private right of action to

6 challenge alleged violations beyond those explicitly provided in 8 U.S.C. §§ 1421(c) and

7 1447(b). Indeed, Congress’ explicit creation of a private right of action in section 1447(b) for a

8 naturalization applicant who has not received a decision within 120 days following examination

9 on his application strongly suggests Congress did not intend to create a private right of action to

10 challenge the pre-examination application of the INA.

11

Further, inferring a private right of action under sections 1255 and 1427 would be

12 inconsistent with the statutory scheme of the INA. An applicant begins the process by submitting

13 an application to USCIS. 8 U.S.C. §§ 1255, 1445(a). Next, for a naturalization applicant, USCIS

14 must conduct an investigation of the applicant. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1. As part of

15 the investigation of the applicant, USCIS requests a full criminal background investigation on the

16 applicant. 8 C.F.R. § 335.2(b). USCIS is prohibited by law from interviewing a naturalization

17 applicant until USCIS receives a definitive response from the FBI that a full criminal background

18 check of the individual has been completed. Dep’t of Commerce & Related Agencies

19 Appropriation Act, 1998, Pub. L. 105-119, title I, 111 Stat. 2440, 2448-49 (Nov. 26, 1997)

20 (beginning with fiscal year 1998, no USCIS funds may be used to complete adjudication of an

21 application for naturalization unless USCIS has received confirmation from the FBI that a full

22 criminal background check has been completed); 8 C.F.R. § 335.2(b). The INA does not

23 prescribe a time limit for the pace of the investigation, or the examination required by section

24 1446. Once USCIS interviews an applicant, however, the applicant may petition the district court

25 for a de novo determination of his eligibility for naturalization, if the agency does not render a

26 decision within 120 days. 8 U.S.C. § 1447(b).

27

Similarly, for adjustment applicants, Congress did not create a private right of action in

28 the INA. 8 U.S.C. § 1255 (lacking any right for adjustment applicants to seek judicial review).

DEFENDANTS’ MOTION TO DISMISS - 19 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 29 of 36

1 And, the Secretary is only permitted to approve individuals for LPR status after determining that

2 the applicant is eligible for the status—which includes a finding that the alien is (1) physically

3 present in the United States, (2) eligible to receive an immigrant visa, (3) an immigrant visa is

4 immediately available to the alien, and (4) the alien is admissible to the United States—and

5 warrants a favorable exercise of the Secretary’s discretion. 8 U.S.C. § 1255(a).

6

From this statutory scheme, it is apparent Congress intended that applicants be fully and

7 thoroughly vetted before being granted benefits under the INA, and recognized that the time it

8 would take to adequately investigate applicants and determine eligibility would vary based on

9 individual circumstances. Accordingly, while Congress provided a private right of action for an

10 naturalization applicant who had not received a decision within 120 days following his

11 examination, it omitted any similar private right of action during the pre-examination,

12 investigation phase of the naturalization process, or during the adjudication of an adjustment-of-

13 status application. The Court should, therefore, conclude that 8 U.S.C. §§ 1255 and 1427 do not

14 provide Plaintiffs with private rights of action. If those sections do not provide private rights of

15 action, then Plaintiffs lack standing, and the Court lacks jurisdiction over that claim.

16

F. Plaintiffs’ Eighth Claim for Relief Fails to State a Claim Under the APA Because

It Does Not Relate To a Final Agency Action 17

18

Plaintiffs’ Eighth Claim fails to state a claim and should therefore be dismissed. See SAC

19 ¶¶ 279-82. The APA provides a right to judicial review of “final agency actions for which there

20 is no other adequate remedy in a court.” 5 U.S.C. § 704. APA review, however, is unavailable

21 here because the CARRP handling process is not final action, and there is no legally required

22 time within which USCIS must decide naturalization or adjustment-of-status applications.

23

For an action to be final, and reviewable under the APA, the action must (1) “mark the

24 ‘consummation’ of the agency’s decision-making process,” and (2) the action “must be one by

25 which ‘rights or obligations have been determined,’ or from which ‘legal consequences will

26 flow.’” Bennett v. Spear, 520 U.S. 154, 178 (1997). The first question courts ask is whether the

27 agency “has rendered its last word on the matter.” Oregon Natural Desert Ass’n v. United States

28 Forest Service, 465 F.3d 977, 984 (9th Cir. 2006) (citing Whitman v. Am. Trucking Ass’n, 531

DEFENDANTS’ MOTION TO DISMISS - 20 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 30 of 36

1 U.S. 457 (2001)).

2

As alleged, CARRP is not a final agency action but rather part of the process of

3 adjudicating an application, falling within the eligibility and background investigation process

4 mandated by the INA, see 8 U.S.C. §§ 1446(a), (b); 1255(a)(2). It is a way for USCIS to

5 investigate and verify information in certain cases, and to ensure reasoned decisions. Further, by

6 their own definition, Plaintiffs’ proposed Adjustment-of-Status and Naturalization Classes only

7 cover cases that are “pending,” not ones in which a final decision has been reached. Because

8 CARRP itself is not a final agency action, and none of the Plaintiffs challenge a final

9 administrative decision to deny a benefit application, this Court should dismiss Plaintiffs’ Eighth

10 Claim for Relief.

11

G. Plaintiffs’ Ninth Claim for Relief Must Be Dismissed For Failure To State a

Claim as the Allegations in the Complaint Establish CARRP Is Not a

12

“Substantive” or “Legislative” Rule

13

Plaintiffs’ Ninth Claim for Relief alleges CARRP is a substantive agency rule, within the

14 meaning of 5 U.S.C. § 551(4), that was not properly promulgated through notice-and-comment

15 rulemaking. SAC ¶¶ 285-87. Nevertheless, the facts Plaintiffs allege demonstrate CARRP does

16 not violate the APA’s notice-and-comment requirements.

17

The APA provides that, absent good cause, an agency may issue a “legislative rule” only

18 by using the APA’s notice-and-comment procedure. Hemp Indus. Ass’n v. DEA, 333 F.3d 1082,

19 1087 (9th Cir. 2003). An agency need not follow notice-and-comment procedures, however, to

20 issue “interpretive rules, general statements of policy, or rules of agency organization, procedure

21 or practice.” 5 U.S.C. § 553(b)(3)(A); Mora-Meraz v. Thomas, 601 F.3d 933, 939 (9th Cir.

22 2010). In general, legislative rules “create rights, impose obligations, or effect a change in

23 existing law pursuant to authority delegated by Congress.” Hemp Indus., 333 F.3d at 1087.

24 Interpretive rules and rules of agency organization, procedure, or practice, on the other hand, “do

25 not add to[] the substantive law that already exists in the form of a statute or legislative rule.” Id.

26

To distinguish between the two, the Ninth Circuit has adopted a framework first

27 articulated by the D.C. Circuit in American Mining Congress v. Mine Safety & Health

28 Administration, 995 F.2d 1106, 1109 (D.C. Cir. 1993). Hemp Indus., 333 F.3d at 1087; Wilson v.

DEFENDANTS’ MOTION TO DISMISS - 21 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 31 of 36

1 Lynch, 835 F.3d 1083, 1099 (9th Cir. 2016); Erringer v. Thompson, 371 F.3d 625 (9th Cir. 2014)

2 (all applying the Am. Min. Congress framework). Under this framework, a legislative rule, i.e., a

3 rule that “has the force of law,” will be found: (1) when, in the absence of the rule, there would

4 not be an adequate legislative basis for agency action; (2) when the agency has explicitly

5 invoked its general legislative authority; or (3) when the rule effectively amends a prior

6 legislative rule. Hemp Indus., 333 F.3d at 1087. Here, USCIS has not invoked its general

7 legislative authority, so only the first and third prongs of the American Mining Congress test are

8 at issue.

9

CARRP does not fill a legislative void that Congress left to USCIS to fill; rather, an

10 adequate legislative basis for CARRP exists. With respect to naturalization, sections 1423

11 through 1427 and 1429 of title 8, United States Code, and 8 C.F.R. § 316.2, provide a number of

12 criteria that an applicant must meet to demonstrate eligibility to naturalize. Section 1446(a) of

13 title 8 mandates a “personal investigation of the person applying for naturalization.” Likewise,

14 section § 1255 provides eligibility criteria for adjustment of status, and gives the Secretary of

15 Homeland Security discretion whether to grant the benefit. Further, section 1357(b) authorizes

16 USCIS to take and consider evidence concerning any matter which is material or relevant to the

17 enforcement of the INA.

18

These statutes and regulations constitute an adequate legislative basis for USCIS to

19 undertake the procedural steps laid out in CARRP in the adjudication of benefit applications.

20 Even as described by Plaintiffs in their Second Amended Complaint, CARRP is a process to

21 ensure USCIS is considering all relevant information relating to cases with possible national

22 security concerns. Nothing in CARRP, however, is required to enable or authorize USCIS to

23 investigate an applicant’s eligibility or to consult with supervisors or other agencies concerning

24 whether an applicant is eligible for the benefit sought, and, in the case of an adjustment-of-status 25 applicants, whether the applicant warrants a favorable exercise of discretion.11

26

27 11 Plaintiffs also mention 8 U.S.C. § 1159(b) and 8 C.F.R. § 209.1, which concern the adjustment of status of 28 refugees. Although Plaintiffs allege Mr. Wagafe previously adjusted under this provision, see First Amended
Complaint, ECF No. 17 at ¶¶ 115-116, no plaintiff is currently seeking adjustment in this manner.

DEFENDANTS’ MOTION TO DISMISS - 22 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 32 of 36

1

Second, as described in Plaintiffs’ Second Amended Complaint, CARRP does not

2 effectively amend a prior legislative rule. This scenario occurs “‘only if it is inconsistent with

3 another rule having the force of law.’” Erringer, 371 F.3d at 632 (quoting Hemp Indus., 333 F.3d

4 at 1088). In the naturalization context, 8 U.S.C. § 1427(a) and 8 C.F.R. § 316.2 enumerate the

5 criteria for naturalization. With respect to adjustment of status, 8 U.S.C. § 1255(a) delegates

6 rule-making authority for adjustment of status to the Executive Branch, which has crafted several

7 categories of “restricted” and “ineligible” aliens. See 8 C.F.R. § 245.2(b)-(c). CARRP neither

8 alters these criteria, nor purports to restrict the statutory discretion conferred by section 1255(a).

9

Instead, CARRP is a process to vet cases with an articulable link to national security

10 concerns and to determine the proper adjudicative action to take within statutory limits. SAC ¶¶

11 55, 60, 62. See also ECF 27-1 at 7-8. A directive to fully vet potential national security concerns

12 is not a substantive change in the standards for either adjustment of status or naturalization.

13 Applying the American Mining Congress factors, CARRP is not a legislative or substantive rule.

14 Rather, it is properly characterized as a “general statement[] of policy, or rule[] of agency

15 organization, procedure or practice,” and thus exempt from APA notice-and-comment

16 rulemaking. See Mora-Meraz, 601 F.3d at 939 (citing 5 U.S.C. § 553(b)(3)(A)).

17

This conclusion is consistent with established Ninth Circuit precedent. In L.A. Closeout,

18 Inc. v. DHS, 513 F.3d 940 (9th Cir. 2008), the Ninth Circuit held that an internal Department of

19 Homeland Security memorandum that, as here, “simply provided the agency’s construction of

20 the regulation in a particular factual circumstance” was an interpretive rule. Id. at 942. The fact

21 that there may be a substantive impact on Plaintiffs because a particular procedure is more time

22 consuming than another does not transform an interpretive rule or a rule of agency practice or

23 procedure into one with the force of law. Indeed, the Ninth Circuit “rejected the notion that

24 procedural rules with a substantive impact are subject to notice-and-comment requirements.” So.

25 Cal. Edison Co. v. FERC, 770 F.2d 779, 783 (9th Cir. 1985). See also Alcaraz v. Block, 746 F.2d

26 593, 614 (9th Cir. 1984). Finally, the Ninth Circuit long ago adopted the D.C. Circuit’s holding

27 that “section 553(b)(3)(A) extends to ‘technical regulation of the form of agency action and

28 proceedings.’” So. Cal. Edison Co., 770 F.2d at 783 (citing Pinkus v. U.S. Bd. of Parole, 507

DEFENDANTS’ MOTION TO DISMISS - 23 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 33 of 36

1 F.2d 1107, 1113 (D.C. Cir. 1974)). That is precisely what Plaintiffs allege CARRP is—a

2 technical regulation of the form of agency proceedings.

3

It should come as no surprise, then, that courts have consistently rejected similar

4 challenges. In one putative class action concerning naturalization delays, the court rejected a

5 claim that the “expanded name check” program constituted a substantive rule. Ahmadi v.

6 Chertoff, No. 07-cv-03455, 2007 WL 3022573 (N.D. Cal. Oct. 15, 2007). The court explained:

7

The expanded name check has created significant delays. The expanded name

check did not, however, add a new requirement in the naturalization process, as

8

plaintiffs contend. The agencies have long been required to conduct an

9

investigation into an applicant’s background before adjudicating an application.

The expanded name check merely enlarged the scope of that investigation.

10 Id. at *9. Numerous other courts have reached identical conclusions in the FBI name check

11 context. See, e.g., Sawan v. Chertoff, 589 F. Supp. 2d 817, 833-34 (S.D. Tex. 2008) (collecting

12 cases); Hani v. Gonzales, No. 3:07-cv-517-S, 2008 WL 2026092, at *5 (W.D. Ky. May 8, 2008)

13 (collecting cases). According to Plaintiffs’ allegations, CARRP likewise expands the scope of an

14 investigation, and directs adjudicators how best to use the limited resources available to them in

15 conducting that investigation. That is not substantive law. Because, as the facts Plaintiffs have

16 alleged demonstrate, CARRP does not establish a substantive rule under delegated legislative

17 authority, it does not violate the APA’s notice-and-comment rulemaking mandate. Accordingly,

18 Plaintiffs’ Ninth Claim for Relief should be dismissed for failure to state a claim.

19 V. CONCLUSION
20

21

For the foregoing reasons, the Court should dismiss the Second Amended Complaint, in

22 part, for lack of jurisdiction, and, in part, for failure to state claims upon which relief can be

23 granted.

24 /

25 /

26 /

27 /

28 / Dated: April 18, 2017

Respectfully submitted,

DEFENDANTS’ MOTION TO DISMISS - 24 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 34 of 36

1

CHAD A. READLER Acting Assistant Attorney General

2 WILLIAM C. PEACHEY
3 Director, District Court Section

4 CHRISTOPHER W. DEMPSEY
5 Chief, National Security & Affirmative Litigation Unit
6

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DEFENDANTS’ MOTION TO DISMISS - 25 (2:17-cv-00094-JCC)

EDWARD S. WHITE Trial Attorney, National Security
& Affirmative Litigation Unit /s/ Aaron R. Petty AARON R. PETTY Trial Attorney, National Security
& Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Telephone: (202) 532-4542 E-mail: Aaron.R.Petty@usdoj.gov Attorneys for Defendants
UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 35 of 36

1

CERTIFICATE OF SERVICE

2

I HEREBY CERTIFY that on April 18, 2017, I electronically filed the foregoing with the

3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to the

4 following CM/ECF participants:

5

Harry H. Schneider, Jr., Esq.

Nicholas P. Gellert, Esq.

6

David A. Perez, Esq.

7

Kathryn Reddy, Esq.

Perkins Coie L.L.P.

8

1201 Third Ave., Ste. 4800

Seattle, WA 98101-3099

9

PH: 359-8000

10

FX: 359-9000

Email: HSchneider@perkinscoie.com

11

Email: NGellert@perkinscoie.com

Email: DPerez@perkinscoie.com

12

Email: KReddy@perkinscoie.com

13 Matt Adams, Esq.

14

Glenda M. Aldana Madrid, Esq.

15

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400

16

Seattle, WA 98104

PH: 957-8611

17

FX: 587-4025

18

E-mail: matt@nwirp.org E-mail: glenda@nwirp.org

19

Emily Chiang, Esq.

20

ACLU of Washington Foundation

21

901 Fifth Avenue, Suite 630 Seattle, WA 98164

22

Telephone: (206) 624-2184

E-mail: Echiang@aclu-wa.org 23

24

Jennifer Pasquarella, Esq.

ACLU Foundation of Southern California

25

1313 W. 8th Street

Los Angeles, CA 90017

26

Telephone: (213) 977-5211

27

Facsimile: (213) 997-5297

E-mail: jpasquarella@aclusocal.org

28

DEFENDANTS’ MOTION TO DISMISS - 26 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 56 Filed 04/18/17 Page 36 of 36

1

Stacy Tolchin, Esq. Law Offices of Stacy Tolchin

2

634 S. Spring St. Suite 500A

Los Angeles, CA 90014

3

Telephone: (213) 622-7450

4

Facsimile: (213) 622-7233 E-mail: Stacy@tolchinimmigration.com

5

Trina Realmuto, Esq.

6

Kristin Macleod-Ball, Esq.

7

National Immigration Project of the National Lawyers Guild

14 Beacon St., Suite 602

8

Boston, MA 02108

Telephone: (617) 227-9727

9

Facsimile: (617) 227-5495

10

E-mail: trina@nipnlg.org

E-mail: kristin@nipnlg.org

11

Hugh Handeyside, Esq.

12

Lee Gelernt, Esq.

13

Hina Shamsi, Esq.

American Civil Liberties Union Foundation

14

125 Broad Street

New York, NY 10004

15

Telephone: (212) 549-2616

16

Facsimile: (212) 549-2654

E-mail: lgelernt@aclu.org

17

E-mail: hhandeyside@aclu.org

18

E-mail: hshamsi@aclu.org

19

/s/ Aaron R. Petty

AARON R. PETTY

20

U.S. Department of Justice

21

22

23

24

25

26

27

28

DEFENDANTS’ MOTION TO DISMISS - 27 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

 
 Case 2:17-cv-00094-RAJ Document 39 Filed 03/02/17 Page 1 of 10

1

The Honorable John C. Coughenour

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9

10 ABDIQAFAR WAGAFE, et al.,

11

Plaintiffs,

12

v.

13
UNITED STATES CITIZENSHIP AND 14 IMMIGRATION SERVICES, et al.,

15

Defendants.

16

No. 2:17-cv-00094-JCC
DEFENDANTS’ MOTION TO TRANSFER VENUE
HON. JOHN C. COUGHENOUR
NOTE ON MOTION CALENDAR: Friday, March 24, 2017

17

18

I. INTRODUCTION

19

Plaintiffs filed this putative class action in the Western District of Washington

20 based on the residence of Abdiqafar Wagafe, one of the two named Plaintiffs, in this

21 District. See Amended Complaint, ECF No. 17, at ¶ 13. On February 22, 2017, U.S.

22 Citizenship and Immigration Services (“USCIS”) approved Plaintiff Wagafe’s Form N-

23 400, Application for Naturalization (“Form N-400”), mooting his individual-capacity

24 claims. The Form I-485, Application to Register Permanent Residence or Adjust Status

25 (“Form I-485”) of the only other named Plaintiff, Medhi Ostadhassan, remains pending.

26 Plaintiff Ostadhassan is a resident of Grand Forks, North Dakota, and his Form I-485 is

27 being processed at USCIS’s St. Paul Field Office in Minnesota. Accordingly, Defendants

28

DEFENDANTS’ MOTION TO TRANSFER VENUE - 1 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 39 Filed 03/02/17 Page 2 of 10

1 respectfully request that the Court order this case transferred to the U.S. District Court for

2 the District of North Dakota, Eastern Division. See 28 U.S.C. § 1404(a).

3

II. LEGAL STANDARD

4

The party seeking to transfer venue bears the burden of showing that convenience

5 and justice require transfer. Commodity Futures Trading Comm’n v. Savage, 611 F.2d

6 270, 279 (9th Cir. 1979); Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834,

7 843 (9th Cir. 1986) (“The defendant must make a strong showing of inconvenience to

8 warrant upsetting the plaintiff’s choice of forum.”), superseded by statute on other

9 grounds by 28 U.S.C. § 1391. The decision to transfer lies within the sound discretion of

10 the trial judge. See Sparling v. Hoffman Constr. Co., 864 F.2d 635, 639 (9th Cir. 1988)

11 (citing Savage, 611 F.2d at 279).

12

III. BACKGROUND

13

On January 23, 2017, Plaintiffs filed a Complaint alleging that USCIS unlawfully

14 delayed adjudication of Plaintiffs’ applications for immigration benefits under a policy

15 that, inter alia, had not been subject to notice-and-comment rulemaking procedures and

16 was inconsistent with various statutory and regulatory provisions. See generally

17 Complaint, ECF No. 1. On January 27, 2017, the President issued Executive Order

18 13769 invoking 8 U.S.C. § 1182(f), to, inter alia, temporarily suspend entry of immigrant

19 and non-immigrant visa holders from countries identified in 8 U.S.C. § 1187(a)(12). See

20 Protecting the Nation from Foreign Terrorist Entry Into the United States, 82 Fed. Reg.

21 8977 (Jan. 27, 2017). On February 1, 2017, Plaintiffs filed an Amended Complaint,

22 adding several causes of action related to Executive Order 13769, but subsequently

23 suggested in their Notice of Related Cases, ECF No. 22, that USCIS’s construction of the

24 Executive Order mooted those additional claims. Plaintiffs filed a Motion for Class

25 Certification, ECF No. 26, on February 9, 2017.

26

The two named Plaintiffs are Abdiqafar Wagafe, a resident of SeaTac,

27 Washington, who complained of delay in adjudication of his Form N-400, and Medhi

28 Ostadhassan, a resident of Grand Forks, North Dakota, who complained of delay in

DEFENDANTS’ MOTION TO TRANSFER VENUE - 2 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 39 Filed 03/02/17 Page 3 of 10

1 adjudication of his Form I-485. See Amended Complaint, ECF No. 17 at ¶¶ 14-15. On

2 February 22, 2017, USCIS approved Wagafe’s naturalization application. See Form N-

3 652, Naturalization Interview Results, attached hereto as Exhibit A. The next day, USCIS

4 scheduled him to take the oath of allegiance on March 2, 2017. See Form N-445, Notice

5 of Naturalization Oath Ceremony, attached hereto as Exhibit B. As of the date of this

6 filing, Plaintiff Ostadhassan’s I-485 remains pending.

7

IV. ARGUMENT

8

The Interests of Justice Require the Case Be Transferred

to the District of North Dakota
9

10

Two statutes may govern a motion to dismiss or transfer a case on the basis of

11 venue: “(1) where venue is improper, a court must dismiss or transfer under 28 U.S.C.

12 § 1406; (2) where venue is proper, the court may transfer to another district, for

13 convenience, pursuant to 28 U.S.C. § 1404.” Abrams Shell v. Shell Oil Co., 165 F. Supp.

14 2d 1096, 1102 (C.D. Cal. 2001). Here, Defendants agree that at the time this action was

15 filed, venue was proper under 8 U.S.C. § 1391 in the Western District of Washington.

16 See, e.g., In re LimitNone, LLC, 551 F.3d 572, 575 (7th Cir. 2008) (“There may often be

17 multiple proper venues, although one . . . may be superior to the rest.”). Accordingly,

18 Defendants respectfully request the Court to transfer the case for the convenience of the

19 parties, under Section 1404(a).

20

In determining whether a transfer of venue under Section 1404(a) is warranted, the

21 Court considers: (1) the plaintiff’s choice of forum; (2) the convenience of the parties; (3)

22 the convenience of the witnesses; and (4) the interests of justice. 28 U.S.C. § 1404(a);

23 Los Angeles Mem’l Coliseum Comm’n v. NFL, 89 F.R.D. 497, 499 (C.D. Cal. 1981).

24

In analyzing the “interests of justice,” a number of factors are relevant, including:

25 (1) the location where relevant agreements (if any) were negotiated and executed, (2) the

26 state that is most familiar with the governing law, (3) the plaintiff’s choice of forum, (4)

27 the respective parties’ contacts with the forum, (5) the contacts relating to the plaintiff's

28 cause of action in the chosen forum, (6) the differences in the costs of litigation in the two

DEFENDANTS’ MOTION TO TRANSFER VENUE - 3 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 39 Filed 03/02/17 Page 4 of 10

1 forums, (7) the availability of compulsory process to compel attendance of unwilling 2 non-party witnesses, and (8) the ease of access to sources of proof. Stewart Org. v. Ricoh 3 Corp., 487 U.S. 22, 29–30 (1988); Jones v. GNC Franchising, Inc., 211 F.3d 495, 498– 4 99 (9th Cir. 2000). Other factors that can be considered are: the enforceability of the 5 judgment; the relative court congestion in the two forums; and which forum would better 6 serve judicial economy. 17 Moore’s Federal Practice § 111.13[1] [c] (3d ed. 1997).

7

A. Without a Resident Plaintiff, Plaintiffs’ Choice of Forum In a Putative

8

Class Action Is Entitled to Minimal Weight

9

The first factor, Plaintiffs’ choice of forum, can only favor Plaintiffs. However,

10 this factor is not entitled to great weight in the present circumstances because the only

11 remaining named Plaintiff does not reside in the Western District of Washington, and his

12 application to adjust status is not being processed in the Western District of Washington.

13 See Declaration of Leslie D. Tritten, attached hereto as Exhibit C, ¶ 5; CBD v.

14 Kempthorne, No. 07-cv-0894, 2007 WL 2023515, *3 (N.D. Cal. July 12, 2007) (“The

15 degree to which courts defer to the plaintiff’s venue choice is substantially reduced where

16 the plaintiff’s venue choice is not its residence or where the forum lacks a significant

17 connection to the activities alleged in the complaint.” (internal quotation marks and

18 citation omitted)); Exact Identification Corp v. Feldman Sherb & Co., P.C., No. 05-cv-

19 2116, 2006 WL 236921, at *2 (E.D. Cal. Jan. 31, 2006) (“[W]hile courts generally afford

20 considerable weight to [a] plaintiff’s choice of forums, the deference is considerably less

21 where [the] plaintiff does not reside in the forum where the action was commenced.”).

22

Moreover, choice of forum is accorded little weight in class actions where the

23 events or omissions giving rise to the claims occurred elsewhere. Here, Plaintiffs have

24 filed a putative class action and seek to certify two nationwide classes; thus, many of the

25 relevant events and omissions necessarily occurred outside the Western District of

26 Washington. See Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987) (“Although great

27 weight is generally accorded plaintiff’s choice of forum . . . when an individual . . .

28 represents a class, the named plaintiff’s choice of forum is given less weight.”); cf. Foster

DEFENDANTS’ MOTION TO TRANSFER VENUE - 4 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 39 Filed 03/02/17 Page 5 of 10

1 v. Nationwide Mut. Ins. Co., No. 07-cv-04928, 2007 WL 4410408, at *3 (N.D. Cal. Dec.

2 14, 2007) (according “no deference” to the plaintiffs’ choice of forum because, among

3 other reasons, the lawsuit was a class action and the “operative facts [had] not occurred

4 within the forum”). Because the only named Plaintiff with a live individual-capacity

5 claim resides in the District of North Dakota, the events or omissions giving rise to his

6 claim did not occur in this District, and the events or omissions giving rise to the majority

7 of the putative class members’ claims did not occur in this District, Plaintiffs’ choice of

8 forum carries very little weight in favor of maintaining the action in the Western District

9 of Washington.

10

B. The Interests of Justice Weigh in Favor of Transfer

11

As noted above, factors relevant to the “interests of justice” include: (1) the

12 location where relevant agreements (if any) were negotiated and executed, (2) the state

13 that is most familiar with the governing law, (3) the plaintiff’s choice of forum, (4) the

14 respective parties’ contacts with the forum, (5) the contacts relating to the plaintiff’s

15 cause of action in the chosen forum, (6) the differences in the costs of litigation in the two

16 forums, (7) the availability of compulsory process to compel attendance of unwilling

17 non-party witnesses, and (8) the ease of access to sources of proof. Stewart Org., 487

18 U.S. at 29–30. Other factors that can be considered are: the enforceability of the

19 judgment; the relative court congestion in the two forums; and which forum would better

20 serve judicial economy. 17 Moore’s Federal Practice § 111.13[1] [c] (3d ed. 1997). With

21 respect to the first and second factors, there are no relevant agreements, and the

22 governing law is federal, not state law. Thus, the first and second factors appear neutral.

23

As discussed above, the Plaintiffs’ choice of forum is entitled to only minimal

24 weight – if any – given that there are now no named Plaintiffs who reside in this District,

25 a named Plaintiff who resides elsewhere, and operative facts underlying the claims of

26 putative class members scattered across the country.

27

The fourth and fifth factors – the respective parties’ contacts with the forum and

28 contacts relating to the Plaintiffs’ cause of action in the chosen forum – weigh in favor of

DEFENDANTS’ MOTION TO TRANSFER VENUE - 5 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 39 Filed 03/02/17 Page 6 of 10

1 Defendants. Plaintiff Ostadhassan has no known contacts with the Western District of

2 Washington and Defendants have no more contact with this District than any other.

3 Instead, the conduct giving rise to Plaintiff Ostadhassan’s claims occurred in North

4 Dakota, where he resides, and Minnesota, where his application is pending. These

5 factors weigh clearly in favor of transfer.

6

Differences in cost of litigation weigh in favor of transfer as well. It is obviously

7 less expensive and less time-consuming for government personnel in Minnesota to travel

8 to North Dakota than to Seattle. The cost of meals and accommodation is less, as well.1

9 And, if it becomes necessary, it will be far more convenient for Plaintiff Ostadhassan to

10 remain in North Dakota than to travel to Seattle.2

11

The seventh factor, availability of compulsory process, weighs heavily in favor of

12 Defendants. If Defendants require the attendance of nonparty witnesses at trial, their

13 attendance can only be procured by subpoena if the trial is within 100 miles of where the

14 person resides, is employed, or regularly transacts business. See Fed. R. Civ. P.

15 45(c)(1)(A). Defendants would be unable to compel unwilling non-party witnesses,

16 including Plaintiff Ostadhassan’s wife,3 to attend a trial in Seattle. Rubio v. Monsanto

17 Co., 181 F. Supp. 3d 746, 763-64 (C.D. Cal. 2016); Saleh v. Titan Corp., 361 F. Supp. 2d

18 1152, 1165-66 (S.D. Cal. 2005).

19

The final factor in considering the interests of justice, ease of access to proof, also

20 favors Defendants. Plaintiff Ostadhassan’s A-file is located in Minnesota, he was

21
1 The rates established by the General Services Administration for 2017 reflect lodging of $167 to $240 per night 22 depending on the month, and $74 per day for meals and incidental expenses, in Seattle, Washington. For both
Grand Forks and Fargo, North Dakota -- the two locations where court is held in the Eastern Division of the District 23 of North Dakota -- the accommodation costs are $91 year round and $51 for meals and incidental expenses. See
http:www.gsa.gov/perdiem.
24
2 The U.S. District Court for the District of North Dakota, Eastern Division maintains an unstaffed courthouse in 25 Grand Forks. See http://www.ndd.uscourts.gov/. The main courthouse for the Eastern Division in Fargo is
approximately 80 miles, or just over an hour’s drive, away.
26
3 Plaintiff Ostadhassan’s wife filed a Form I-130, Petition for Alien Relative (“Form I-130”) seeking to classify 27 Ostadhassan as her immediate relative. See Tritten Decl., Ex. C, ¶ 5; Amended Complaint, ECF. No. 17, ¶ 131. As
approval of the Form I-130 is a necessary precondition to approval of Ostadhassan’s Form I-485, see 8 U.S.C. §§ 28 1151(b)(2)(A)(i) & 1255(a); 8 C.F.R. § 245.2(a)(2)(i)(B)-(C), she is a necessary witness, especially given the prior
questions about her marriage to Ostadhassan and, thus, his eligibility to adjust status. See Tritten Decl., Ex. C, ¶ 6-7.

DEFENDANTS’ MOTION TO TRANSFER VENUE - 6 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 39 Filed 03/02/17 Page 7 of 10

1 interviewed in Minnesota, and his application is being processed in Minnesota. See

2 Tritten Decl., Exhibit C, ¶ 5, 6, 9; Harms v. Experian Info. Solutions, Inc., No. 07-cv-

3 0697, 2007 WL 1430085, at *2 (N.D. Cal. May 14, 2007) (reasoning that the location of

4 records in a different district weighed in favor of transfer “since it appears that access to

5 proof will be easier” in the transferee district); Saleh v. Titan Corp., 361 F. Supp. 2d at

6 1166 (finding this factor to weigh in favor of transfer where “much of the documentary

7 evidence” was more easily accessed in the transferee forum due to its location and the

8 effectiveness of subpoena power). Evidence and witnesses in Minnesota would be more

9 easily accessed from North Dakota than from Washington. Plaintiffs may suggest that

10 advances in technology have rendered this consideration obsolete. But USCIS still

11 maintains A-files in paper. See Tritten Decl., Exhibit C, ¶ 8. Moreover, “the issue is the

12 ‘ease of access’ to the source of proof, not whether the evidence would be unavailable

13 absent the transfer.” Saleh, 361 F. Supp. 2d at 1166.

14

Taken as a whole, the interests of justice clearly weigh in favor of transfer.

15 Plaintiff’s choice of forum is entitled to only minimal deference in this case, the

16 remaining named Plaintiff has no demonstrable contacts with this District; the cost of

17 litigation is less in North Dakota; it is more convenient to the evidence maintained in

18 Minnesota; and Defendants will not have access to compulsory process if a trial is held

19 here.

20

C. The Convenience of Parties and Witnesses Weigh in Favor of Transfer

21

“The convenience of witnesses is often the most important factor in resolving a

22 motion to transfer.” Bunker v. Union Pac. R.R. Co., No. 05-cv-045059, 2006 WL

23 193856, at *2 (N.D. Cal. Jan. 23, 2006). This factor favors transfer because agency

24 adjudicators and officials that might be relevant witnesses are located in Minnesota, and

25 as noted, the only remaining named Plaintiff resides in North Dakota.4

26

27
4 “The convenience of counsel is not a factor to be considered” in weighing a transfer of venue. Bunker v. Union 28 Pac. R.R. Co., No. 05-cv-045059, 2006 WL 193856, at *2 n.1 (N.D. Cal. Jan. 23, 2006).

DEFENDANTS’ MOTION TO TRANSFER VENUE - 7 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 39 Filed 03/02/17 Page 8 of 10

1

In sum, Plaintiffs’ choice of forum is entitled to minimal weight given that the

2 only named Plaintiff with a connection to this District no longer has a live claim in his

3 individual capacity and the action is brought as a putative class action; the interest of

4 justice weighs in favor of transfer because the remaining Plaintiff resides in North

5 Dakota, that district would have easier access to witnesses and evidence in North Dakota

6 and Minnesota and would be a less expensive forum in which to litigate, and would

7 permit Defendants subpoena power over non-party witnesses. Finally, the Western

8 District of Washington would not be a convenient forum for the remaining parties and

9 witnesses.

10

V. CONCLUSION

11

For the foregoing reasons, the Court should order this action transferred to the

12 U.S. District Court for the District of North Dakota, Eastern Division, pursuant to

13 28 U.S.C. § 1404(a).

14 Dated: March 2, 2017

Respectfully submitted,

15

CHAD A. READLER
16
Acting Assistant Attorney General

17
WILLIAM C. PEACHEY 18 Director

19

TIMOTHY M. BELSAN 20 Deputy Chief, National Security

21

& Affirmative Litigation Unit

22

23

24

25

EDWARD S. WHITE Trial Attorney, National Security
& Affirmative Litigation Unit
/s/ Aaron R. Petty AARON R. PETTY Trial Attorney. National Security
& Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Telephone: (202) 532-4542 E-mail: Aaron.R.Petty@usdoj.gov

26

Attorneys for Defendants

27

28

DEFENDANTS’ MOTION TO TRANSFER VENUE - 8 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 39 Filed 03/02/17 Page 9 of 10

1

CERTIFICATE OF SERVICE

2

I HEREBY CERTIFY that on March 2, 2017, I electronically filed the foregoing

3 with the Clerk of the Court using the CM/ECF system, which will send notification of

4 such filing to the following CM/ECF participants:

5

Harry H. Schneider, Jr., Esq.

6

Nicholas P. Gellert, Esq.

7

David A. Perez, Esq.

Kathryn Reddy, Esq.

8

Perkins Coie L.L.P.

9

1201 Third Ave., Ste. 4800

Seattle, WA 98101-3099

10

PH: 359-8000

11

FX: 359-9000

Email: HSchneider@perkinscoie.com

12

Email: NGellert@perkinscoie.com

Email: DPerez@perkinscoie.com

13

Email: KReddy@perkinscoie.com

14
Matt Adams, Esq.

15

Glenda M. Aldana Madrid, Esq.

16

Northwest Immigrant Rights Project

615 Second Ave., Ste. 400

17

Seattle, WA 98104

18

PH: 957-8611

FX: 587-4025

19

E-mail: matt@nwirp.org

E-mail: glenda@nwirp.org
20

21

Emily Chiang, Esq.

ACLU of Washington Foundation

22

901 Fifth Avenue, Suite 630

23

Seattle, WA 98164

Telephone: (206) 624-2184

24

E-mail: Echiang@aclu-wa.org

25

26

27

28

DEFENDANTS’ MOTION TO TRANSFER VENUE - 9 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 39 Filed 03/02/17 Page 10 of 10

Jennifer Pasquarella, Esq.

1

ACLU Foundation of Southern California

2

1313 W. 8th Street

Los Angeles, CA 90017

3

Telephone: (213) 977-5211

Facsimile: (213) 997-5297

4

E-mail: jpasquarella@aclusocal.org

5

Stacy Tolchin, Esq.

6

Law Offices of Stacy Tolchin

7

634 S. Spring St. Suite 500A

Los Angeles, CA 90014

8

Telephone: (213) 622-7450

Facsimile: (213) 622-7233

9

E-mail: Stacy@tolchinimmigration.com

10
Trina Realmuto, Esq.

11

Kristin Macleod-Ball, Esq.

National Immigration Project of the National Lawyers Guild

12

14 Beacon St., Suite 602

13

Boston, MA 02108

Telephone: (617) 227-9727

14

Facsimile: (617) 227-5495

15

E-mail: trina@nipnlg.org

E-mail: kristin@nipnlg.org

16

Hugh Handeyside, Esq.

17

Lee Gelernt, Esq.

18

Hina Shamsi, Esq.

American Civil Liberties Union Foundation

19

125 Broad Street

New York, NY 10004

20

Telephone: (212) 549-2616

21

Facsimile: (212) 549-2654

E-mail: lgelernt@aclu.org

22

E-mail: hhandeyside@aclu.org

23

E-mail: hshamsi@aclu.org

24

25

s/ Aaron R. Petty

AARON R. PETTY

26

U.S. Department of Justice

27

28

DEFENDANTS’ MOTION TO TRANSFER VENUE - 10 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

 
 Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 1 of 21

1

THE HONORABLE JOHN C. COUGHENOUR

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 8

9 ABDIQAFAR WAGAFE and MEHDI
OSTADHASSAN on behalf of themselves 10 and others similarly situated,

No. 2:17-cv-00094-JCC

11

12

v.

Plaintiffs,

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER VENUE

13 DONALD TRUMP, President of the
United States; UNITED STATES 14 CITIZENSHIP AND IMMIGRATION
SERVICES; JOHN F. KELLY, in his 15 official capacity as Secretary of the U.S.
Department of Homeland Security; LORI 16 SCIALABBA, in her official capacity as
Acting Director of the U.S. Citizenship and 17 Immigration Services; MATTHEW D.
EMRICH, in his official capacity as 18 Associate Director of the Fraud Detection
and National Security Directorate of the 19 U.S. Citizenship and Immigration Services;
DANIEL RENAUD, in his official 20 capacity as Associate Director of the Field
Operations Directorate of the U.S. 21 Citizenship and Immigration Services,

NOTED FOR MARCH 24, 2017

22

Defendants.

23

24

25

26

OPPOSITION TO MOTION TO TRANSFER (No. 2:17-cv-134677195. 300094-JCC)

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 2 of 21

1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION ............................................................................................................. 1

4 II. III.
5

BACKGROUND ............................................................................................................... 2 ARGUMENT ..................................................................................................................... 4 A. Legal Standard ....................................................................................................... 4

6

B. Convenience and the Interests of Justice Weigh Against Transfer........................ 5

7

1. Deference to Plaintiffs’ chosen venue weighs strongly against transfer. ...................................................................................................... 5

8

2. Contacts in the forum weigh against transfer. ........................................... 8

9

3. Convenience to parties and witnesses weighs against transfer. ............... 10

4. Ease of access to evidence weighs against transfer. ................................ 12

10 IV. CONCLUSION................................................................................................................ 13

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

OPPOSITION TO MOTION TO TRANSFER (No. 2:17-cv-00094-JCC) 134677195.3 – i

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 3 of 21

1

TABLE OF AUTHORITIES

2

Page

3 CASES

4 Anderson v. Century Prods. Co.,

5

943 F. Supp. 137 (D.N.H. 1996)..............................................................................................12

6 Arapi v USCIS,

No. 16-cv-00692 JLR (E.D. Mo. 2016) .....................................................................................7 7

Authentify Patent Co., LLC v. Strikeforce Techs., Inc.,

8

39 F. Supp. 3d 1135, 1148 (W.D. Wash. 2014).........................................................................5

9 B.E. Technology, LLC v. Google Inc.,

10

No. 2:12-cv-02830-JPM, 2013 WL 2297086 (W.D. Tenn. May 24, 2013) ............................11

11 Blankenship v. Sec’y of HEW,

587 F.2d 329 (6th Cir. 1978) .....................................................................................................7

12

Cochran v. NYP Holdings, Inc.,

13

58 F. Supp. 2d 1113 (C.D. Cal. 1998) .....................................................................................11

14 comScore, Inc. v. Integral Ad Sci., Inc.,

15

924 F. Supp. 2d 677 (E.D. Va. 2013) ......................................................................................11

16 County of Riverside v. McLaughlin, 500 U.S. 44 (1991).....................................................................................................................5

17

Decker Coal Co. v. Commonwealth Edison Co.,

18

805 F.2d 834 (9th Cir. 1986) ...............................................................................................4, 11

19 Dominion Pipe & Piling v. City of Kodiak,

20

No. C16-1699-JCC, 2017 WL 58839 (W.D. Wash. Jan. 5, 2017) ..................................4, 5, 11

21 E.E.O.C. v. United Airlines, Inc., No. C 09-2469 PJH, 2009 WL 7323651 (N.D. Cal. Dec. 3, 2009) ...........................................8

22 Haro v. Sebelius,

23

747 F.3d 1099 (9th Cir. 2014) ...................................................................................................6

24 Heinz Kettler GMBH & Co. v. Razor USA, LLC,

25

750 F. Supp. 2d 660 (E.D. Va. 2010) ......................................................................................12

26

Intelect Corp. v. Cellco P’ship GP, 160 F. Supp. 3d 157, 173 (D.D.C. 2016) .................................................................................12

OPPOSITION TO MOTION TO TRANSFER (No. 2:17-cv-00094-JCC) 134677195.3 - ii

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Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 4 of 21

1 Jones v. GNC Franchising, Inc., 211 F.3d 495 (9th Cir. 2000) .....................................................................................................4
2

3

Lou v. Belzberg, 834 F.2d 730 (9th Cir. 1987) .....................................................................................................8

4 Lyon v. U.S. Immigration & Customs Enf’t,

5

300 F.R.D. 628 (N.D. Cal. 2014), modified sub nom. Lyon v. U.S. Immigration

& Customs Enf’t, 308 F.R.D. 203 (N.D. Cal. 2015) ..................................................................6 6

Muhanna v. USCIS,

7

No. 14-cv-05995 (C.D. Cal. July 31, 2014)...............................................................................7

8 Nike, Inc. v. Lombardi,

9

732 F. Supp. 2d 1146 (D. Or. 2010) ........................................................................................11

10 In re Nintendo Co.,

589 F.3d 1194 (Fed. Cir. 2009)..................................................................................................4

11

Nw. Immigrant Rights Project v. U.S. Citizenship & Immigration Servs.,

12

No. C15-0813JLR, 2016 WL 5817078 (W.D. Wash. Oct. 5, 2016)..........................................6

13 Oracle Corp. v. epicRealm Licensing, LP.,

14

No. CIV. 06-414-SLR, 2007 WL 901543 (D. Del. Mar. 26, 2007).........................................11

15 Parole Comm’n v. Geraghty, 445 U.S. 388 (1980)...................................................................................................................5

16

Peterson v. Nat’l Sec. Techs., LLC,

17

No. 12-CV-5025-TOR, 2012 WL 3264952 (E.D. Wash. Aug. 9, 2012) ...................................5

18 Pitts v. Terrible Herbst, Inc.,

19

653 F.3d 1081 (9th Cir. 2011) ...............................................................................................1, 6

20 Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016) ...................................................................................................6

21 Rivera v. Holder,

22

307 F.R.D. 539 (W.D. Wash. 2015) ..........................................................................................6

23 Roshandel v. Chertoff,

24

554 F. Supp. 2d 1194 (W.D. Wash. 2008), amended in part, No. C071739MJP, 2008 WL 2275558 (W.D. Wash. June 3, 2008) .......................................................7

25 Royal Queentex Enters. v. Sara Lee Corp.,

26

No. C-99-4787 MJJ, 2000 WL 246599 (N.D. Cal. Mar. 1, 2000)...........................................13

OPPOSITION TO MOTION TO TRANSFER (No. 2:17-cv-00094-JCC134677195.3 )– iii

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Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 5 of 21

1 Samsung Elecs. Co., Ltd. v. Rambus, Inc., 386 F. Supp. 2d 708 (E.D. Va. 2005) ......................................................................................11
2

3

STX, Inc. v. Trik Stik, Inc., 708 F. Supp. 1551 (N.D. Cal. 1988) ........................................................................................13

4 Weiss v. Regal Collections,

5

385 F.3d 337 (3d Cir. 2004).......................................................................................................6

6 White v. Mathews, 559 F.2d 852 (2d Cir. 1977).......................................................................................................7
7

8

Williams v. Bowman, 157 F. Supp. 2d 1103 (N.D. Cal. 2001) ...................................................................................12

9 STATUTES
10 28 U.S.C. § 1404(a) .....................................................................................................................2, 4
11 REGULATIONS
12 82 Fed. Reg. 13209 ..........................................................................................................................4
13 President’s Executive Order 13769, 82 Fed. Reg. 8977 ..........................................................2, 3, 4
14
15 OTHER AUTHORITIES

16 15 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION AND RELATED MATTERS § 3851...........................11

17 American Immigration Council, New Americans in North Dakota: The Political

18

and Economic Power of Immigrants, Latinos, and Asians in the Peace Garden

State,

19

https://www.americanimmigrationcouncil.org/sites/default/files/research/new_

20

americans_in_north_dakota_2015.pdf .......................................................................................9

21 American Immigration Council, New Americans in Washington: The Political and Economic Power of Immigrants, Latinos, and Asians in the Evergreen State,

22

https://www.americanimmigrationcouncil.org/sites/default/files/research/new_

americans_in_washington_2015.pdf .........................................................................................9 23

Grand Forks International Airport, Airport Facts, http://gfkairport.com/facts-

24

statistics/ ...................................................................................................................................10

25 Port of Seattle, Airport Statistics,

26

https://www.portseattle.org/About/Publications/Statistics/Airport-

Statistics/Pages/default.aspx ....................................................................................................10

OPPOSITION TO MOTION TO TRANSFER (No. 2:17-cv-00094-JCC134677195.3 )– iv

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Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 6 of 21

1
I. INTRODUCTION 2
This class action lawsuit challenges the legality of the Controlled Application Review 3
and Resolution Program (“CARRP”) and any successor vetting program that unlawfully delays 4
and prevents Plaintiffs, and similarly situated individuals, from obtaining immigration 5
naturalization and lawful permanent resident status. Several weeks ago, Defendants asked the 6
Court for more time to respond to Plaintiffs’ class certification motion. According to the 7
government’s brief, Defendants needed more time because the facts concerning President 8
Trump’s executive order were subject to change. But after the Court granted the motion, 9
Defendants used the extra time to act quickly on Plaintiff Wagafe’s immigration application 10
(which had been pending for over three years), in an apparent attempt to moot his claims. Now 11
that Defendant U.S. Citizenship and Immigration Services (“USCIS”) has approved Mr. 12
Wagafe’s naturalization application, Defendants incorrectly presume that Mr. Wagafe, a resident 13
of SeaTac, Washington, can no longer serve as a named Plaintiff and class representative, and 14
they ask the Court to transfer this case to North Dakota. 15
The Court should see through these tactics and deny Defendants’ motion. As a threshold 16
matter, Mr. Wagafe is still, and intends to remain, a Plaintiff and named class representative in 17
this case—he has not been dismissed from this case. Further, as a named class representative, 18
Mr. Wagafe’s class claims are not moot because his claims fall within the inherently transitory 19
exception to mootness in class actions. Where claims are inherently transitory or where 20
Defendants take actions attempting to pick off plaintiffs, the relation back doctrine preserves 21
their standing to represent the class, even if the individual claims are mooted. See Pitts v. 22
Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011) (“[E]ven if the district court has not yet 23
addressed the class certification issue, mooting the putative class representative’s claims will not 24
necessarily moot the class action.”). Mr. Wagafe’s immigration application was delayed by 25
CARRP for three and a half years. Defendants’ decision to approve Mr. Wagafe’s application 26

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Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 7 of 21

1 mere days after Plaintiffs filed for class certification—in an apparent effort to evade the

2 jurisdiction of this Court—in and of itself warrants denial of their motion to transfer. Moreover,

3 Defendants’ sudden decision to approve Mr. Wagafe’s naturalization application underscores

4 that subjecting him to CARRP and labeling him a “national security concern” was arbitrary and

5 unreasonable. Far from eliminating this District as the proper venue for this case, Defendants’

6 actions only strengthen the ties between this District and the operative facts.

7

Even setting aside Defendants’ questionable tactics, the Court should deny Defendants’

8 motion because each of the relevant factors weighs strongly against transfer. Because Mr.

9 Wagafe lives in this District, there is no reason to set aside Plaintiffs’ preferred venue.

10 Moreover, Plaintiffs will be filing a Second Amended Complaint shortly that will add several

11 more Plaintiffs who live in Seattle. Additionally, this District has more contacts with Plaintiffs

12 and with the facts relating to the causes of action than North Dakota. As for convenience, the

13 government has failed to identify any of its witnesses by name, much less show why their

14 testimony would be important or why North Dakota would be “so much more convenient” than

15 Plaintiffs’ chosen forum. See Dkt. 39 at 7-8. Nor would North Dakota be a better forum to

16 access evidence, because almost all the key evidence is likely outside of North Dakota.

17

Simply put, transfer is unwarranted here. Defendants’ actions leading up to this motion,

18 and the motion to transfer itself, are a transparent attempt to use 28 U.S.C. § 1404(a) to forum

19 shop. Plaintiffs respectfully request that the Court retain jurisdiction and deny Defendants’

20 motion to transfer.

21

II. BACKGROUND

22

Plaintiffs filed this class action lawsuit on January 23, 2017, to challenge an unauthorized

23 and largely undisclosed program known as the Controlled Application Review and Resolution

24 Program (“CARRP”). Under CARRP, the USCIS blacklists thousands of applicants who are

25 seeking immigration benefits, labeling them “national security concerns.” On February 1, 2017,

26

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1 Plaintiffs filed the First Amended Complaint, which added additional causes of action relating to

2 the President’s Executive Order 13769, 82 Fed. Reg. 8977 (“First EO”).

3

The following week, on February 9, 2017, Plaintiffs filed a motion for class certification,

4 asking the Court to certify two classes: the Naturalization Class (represented by Mr. Wagafe) and

5 the Adjustment of Status Class (represented by Mr. Ostadhassan). Dkt. 26. In their motion for

6 class certification, Plaintiffs argued, inter alia, that the Court should certify these classes “to

7 prevent Defendants from attempting to evade judicial review by adjudicating Plaintiffs’

8 individual applications.” Id. at 16. Plaintiffs explained that past challenges to CARRP have

9 proven to be the very sort of transitory claims that are “capable of repetition, yet evading

10 review,” and predicted that as this case progressed Defendants would attempt to moot the claims

11 of the named Plaintiffs before a ruling on the merits could be obtained. Id. at 17.

12

In the meantime, rather than respond to Plaintiffs’ class certification motion, Defendants

13 asked the Court for an extension. Dkt. 35. Defendants argued that they needed more time

14 because the facts relating to the First EO “may well change,” but they did not suggest that any

15 facts relevant to the two named Plaintiffs might change. Id. at 5-6. Subsequently, Defendants

16 approved Mr. Wagafe’s application before responding to the class certification motion, while no

17 similar progress has been made on Mr. Ostadhassan’s application for adjustment of status.

18

Five days after Plaintiffs filed their motion for class certification, a USCIS officer called

19 Mr. Wagafe’s attorney to schedule an interview on his immigration application. Declaration of

20 Jennie Pasquarella in Support of Plaintiffs’ Opposition to Defendants’ Motion to Transfer

21 (“Pasquarella Decl.”), ¶¶ 1-2 . By that point Mr. Wagafe’s application had been pending for

22 over three years, and USCIS had stopped responding to inquiries about the status of his

23 application. After the interview, which occurred on February 22, 2017, the immigration officer

24 approved Mr. Wagafe’s application. Id. Mr. Wagafe’s oath ceremony took place on March 2,

25 2017, and he became a U.S. citizen that same day. Id. In other words, although Mr. Wagafe’s

26 immigration application had been pending for three and a half years, USCIS processed and

OPPOSITION TO MOTION TO TRANSFER (No. 2:17-cv-00094-JCC) 134677195.3 – 3

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Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 9 of 21

1 approved his application less than two weeks after Plaintiffs filed for class certification. On the

2 same day that Mr. Wagafe became a U.S. citizen, Defendants filed this motion to transfer the

3 case to North Dakota, where Mr. Ostadhassan, the other named Plaintiff, resides.

4

On March 6, 2017, the President issued a new Executive Order entitled “Protecting the

5 Nation from Foreign Terrorist Entry into the United States,” 82 Fed. Reg. 13209 (“Second EO”),

6 which ostensibly replaced the First EO as of its effective date, March 16, 2017. Because the

7 Second EO is infected with the same constitutional infirmities as the first, and given Defendants’

8 strategy of trying to “pick off” certain named plaintiffs in CARRP cases, Plaintiffs will be filing

9 a motion for leave to amend the Complaint. The proposed Second Amended Complaint will add

10 three Plaintiffs, all of whom reside in the Western District of Washington, and amends Plaintiffs’

11 allegations to take the Second EO into account.

12

III. ARGUMENT

13 A. Legal Standard

14

A court may transfer a civil action to any other district court in which the action may

15 have been brought “[f]or the convenience of parties and witnesses, in the interest of justice.” 28

16 U.S.C. § 1404(a). When considering a change in venue, the court “must make an individualized,

17 case-by-case determination of convenience and fairness.” Dominion Pipe & Piling v. City of

18 Kodiak, No. C16-1699-JCC, 2017 WL 58839, at *2 (W.D. Wash. Jan. 5, 2017). The Ninth

19 Circuit has identified several factors courts consider when making this determination, including:

20 (i) plaintiffs’ choice of forum; (ii) the parties’ contacts with the forum; (iii) the contacts in the

21 forum relating to plaintiffs’ causes of action; (iv) convenience of the parties; (v) convenience of

22 the witnesses; and (vi) ease of access to the evidence. Jones v. GNC Franchising, Inc., 211 F.3d

23 495, 498-99 (9th Cir. 2000).

24

As the moving party, the government has the burden of showing that these factors, and

25 the interests of justice, weigh in favor of transfer. Decker Coal Co. v. Commonwealth Edison

26 Co., 805 F.2d 834, 843 (9th Cir. 1986). A motion to transfer venue should be denied unless “the

OPPOSITION TO MOTION TO TRANSFER (No. 2:17-cv-00094-JCC) 134677195.3 – 4

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Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 10 of 21

1 transferee venue is clearly more convenient than the venue chosen by the plaintiff.” In re

2 Nintendo Co., 589 F.3d 1194, 1197 (Fed. Cir. 2009) (emphasis added). In other words, “the

3 appropriate inquiry is whether requiring [Defendants] to litigate in this district would be so

4 inconvenient that the interests of justice require a transfer.” Peterson v. Nat’l Sec. Techs., LLC,

5 No. 12-CV-5025-TOR, 2012 WL 3264952, at *6 (E.D. Wash. Aug. 9, 2012).

6 B. Convenience and the Interests of Justice Weigh Against Transfer.

7

1. Deference to Plaintiffs’ chosen venue weighs strongly against transfer.

8

Plaintiffs filed this action in the Western District of Washington. Unless the balance of

9 factors tilts “strongly in favor of the defendants, the plaintiff’s choice of forum should rarely be

10 disturbed.” Dominion Pipe, 2017 WL 58839, at *2 (citation and internal quotation marks

11 omitted) (emphasis in original); see also Authentify Patent Co., LLC v. Strikeforce Techs., Inc.,

12 39 F. Supp. 3d 1135, 1148 (W.D. Wash. 2014) (“There is a strong presumption in favor of the

13 plaintiff’s choice of forum which must be taken into account when deciding whether transfer is

14 warranted.”). Defendants acknowledge that this factor “can only favor Plaintiffs.” Dkt. 39. at 4.

15 Nevertheless, Defendants assert that this factor “is not entitled to great weight” because,

16 according to them, “the only remaining named Plaintiff does not reside” in Washington. Id.

17 Defendants’ claims that Mr. Ostadhassan is “the only remaining named Plaintiff” are simply

18 incorrect. See Dkt. 39 at 7. Mr. Wagafe is still a named Plaintiff and class representative and

19 Defendants have not even sought to dismiss him from this lawsuit. Moreover, should the Court

20 grant Plaintiffs’ motion for leave to amend their complaint, there will be four Plaintiffs who

21 reside in King County, Washington.

22

Second, while this motion is not the proper vehicle to litigate Plaintiff Wagafe’s standing

23 as a named Plaintiff, it is important to note that a named class representative’s claims are not

24 mooted when the defendant attempts to resolve that individual’s claims after a motion for class

25 certification has been filed. See County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991)

26 (“That the class was not certified until after the named plaintiffs’ claims had become moot does

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Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 11 of 21

1 not deprive [the Court] of jurisdiction.”); Parole Comm’n v. Geraghty, 445 U.S. 388, 398 (1980)

2 (explaining when a “claim on the merits is ‘capable of repetition, yet evading review,’ the named

3 plaintiff may litigate the class certification issue despite loss of his personal stake in the outcome

4 of the litigation” (quoting Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975))); Haro v. Sebelius,

5 747 F.3d 1099, 1110 (9th Cir. 2014) (holding that Article III justiciability requirements were

6 satisfied despite the expiration of the named plaintiff's claim for injunctive relief); Rivera v.

7 Holder, 307 F.R.D. 539, 548 (W.D. Wash. 2015) (“Although plaintiff’s class certification motion

8 was ultimately noted for consideration well after plaintiff’s release [mooting out the individual

9 claim], the Court finds that the relation back doctrine applies.”).

10

Plaintiffs’ class claims fall within the “inherently transitory” exception to mootness in

11 class actions because Defendants’ litigation strategy is aimed at “picking off” plaintiffs who seek

12 to challenge CARRP by swiftly adjudicating their applications before a court can rule on the

13 merits. Pitts, 653 F.3d at 1091 (“[A] claim transitory by its very nature and one transitory by

14 virtue of the defendant’s litigation strategy share the reality that both claims would evade

15 review.”); see also Preap v. Johnson, 831 F.3d 1193, 1197 (9th Cir. 2016) (holding claims of

16 named plaintiffs on behalf of putative class of immigration detainees were not mooted by the

17 named plaintiffs' release from custody and termination of removal proceedings because the

18 claims are “transitory in nature and may otherwise evade review”); Weiss v. Regal Collections,

19 385 F.3d 337, 344 (3d Cir. 2004) (“[A]llowing the defendants here to ‘pick off’ a representative

20 plaintiff with an offer of judgment less than two months after the complaint is filed may undercut

21 the viability of the class action procedure, and frustrate the objectives of this procedural

22 mechanism for aggregating small claims.”); Nw. Immigrant Rights Project v. U.S. Citizenship &

23 Immigration Servs., No. C15-0813JLR, 2016 WL 5817078, at *9 (W.D. Wash. Oct. 5, 2016)

24 (finding that the individual plaintiffs, immigrants who had filed asylum-based employment

25 authorizations, remained “putative class representatives whose claims are inherently transitory

26 and relate back to the filing of the amended complaint”); Lyon v. U.S. Immigration & Customs

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Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 12 of 21

1 Enf’t, 300 F.R.D. 628, 639 (N.D. Cal. 2014), modified sub nom. Lyon v. U.S. Immigration &

2 Customs Enf’t, 308 F.R.D. 203 (N.D. Cal. 2015) (finding immigration detainees’ class claims

3 were inherently transitory because “the length of detention cannot be ascertained at the outset

4 and may be ended before class certification by various circumstances”).

5

As Plaintiffs noted in their motion for class certification, for years the government’s

6 strategy has been to “pick off” plaintiffs that challenge CARRP by quickly adjudicating their

7 applications before a court can issue a ruling on the merits. In at least two cases involving 8 twenty-five plaintiffs, that strategy worked, and Defendants are using it here.1 But unlike

9 previous cases, this is a class action. If anything, the government’s decision to act on Mr.

10 Wagafe’s application shortly after Plaintiffs filed for class certification underscores the need to

11 certify the naturalization class Mr. Wagafe has moved to represent to address its inherently

12 transitory claims; but it does not diminish his standing to pursue his claims on behalf of the 13 putative class he represents.2

14

Third, in light of the forthcoming proposed Second Amended Complaint, Mr. Wagafe is

15 unlikely to be the only named Plaintiff that resides in Seattle. In circumstances where defendants

16 try to moot the claims of an original named plaintiff, courts regularly permit the addition of new

17 plaintiffs. See, e.g., Roshandel v. Chertoff, 554 F. Supp. 2d 1194, 1202 (W.D. Wash. 2008),

18

19

1 In Muhanna v. USCIS, No. 14-cv-05995 (C.D. Cal. July 31, 2014), five individual plaintiffs filed suit

challenging delays to their naturalization applications. Each of these plaintiffs had been waiting years for USCIS to

20 process their applications. But shortly after filing suit, USCIS adjudicated the naturalization applications for all five

plaintiffs, and the lawsuit was voluntarily dismissed as moot. Muhanna, No. 14-cv-05995, Dkt. 51 (entered Dec. 23,

21 2014). The same thing happened in Arapi v USCIS, No. 16-cv-00692 JLR (E.D. Mo. 2016), where twenty

individual plaintiffs filed suit asserting causes of action relating to CARRP. Once again, USCIS quickly moved to

22 adjudicate all twenty applications to avoid subjecting CARRP to any judicial scrutiny. Nineteen of the plaintiffs

voluntarily dismissed their claims at that point, and USCIS moved to dismiss the remaining plaintiff’s claims as

23 moot. Arapi, No. 16-cv-00692 JLR, Dkt. 22 (filed Dec. 19, 2016).
2 This is especially true where, as here, the claims are based, in part, on arbitrary delays to immigration

24 applications. As courts have concluded in similar circumstances, “[t]he claims of delay which the plaintiffs advance

. . . epitomize the type of claim which continually evades review if it is declared moot merely because the

25 defendants have voluntarily ceased the illegal practice complained of in the particular instance.” Blankenship v.

Sec’y of HEW, 587 F.2d 329, 333 (6th Cir. 1978). Defendants should not be able to “avoid judicial scrutiny of

26 [their] procedures by the simple expedient of granting hearings to plaintiffs who seek, but have not yet obtained,

class certification.” See White v. Mathews, 559 F.2d 852, 857 (2d Cir. 1977).

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Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 13 of 21

1 amended in part, No. C07-1739MJP, 2008 WL 2275558 (W.D. Wash. June 3, 2008) (holding

2 three new named plaintiffs could be added where the FBI had completed the name checks of the

3 original class representatives while class certification was pending).

4

Defendants also urge the Court to disregard Plaintiffs’ choice of forum because this is a

5 class action. Although a “named plaintiff’s choice of forum is given less weight,” that does not

6 mean Plaintiffs’ venue choice in class actions is entitled to no deference at all. See Lou v.

7 Belzberg, 834 F.2d 730, 739 (9th Cir. 1987). In Lou, even though “the operative facts [had] not

8 occurred within the forum and the forum [had] no interest in the parties or subject matter,” the

9 court still gave the plaintiffs’ venue choice “minimal consideration.” Id. In each of the cases

10 Defendants cite, the chosen forum had little or no connection whatsoever with the operative facts

11 in the case. By contrast, Mr. Wagafe and three other named Plaintiffs in the proposed Second

12 Amended Complaint live and work in this District, and key operative facts, such as Defendant

13 USCIS’s 3-year review and adjudication of Plaintiff Wagafe’s naturalization application, and the

14 delayed adjudication of three other forthcoming proposed named Plaintiffs’ adjustment of status

15 and naturalization applications, occurred in this District. Given these connections, the mere fact

16 that Plaintiffs seek to represent a class does not eliminate the deference accorded to Plaintiffs’

17 venue choice. Moreover, Defendants are government agencies and officials; when ruling on

18 motions to transfer, courts afford less weight to the government’s forum preferences. See

19 E.E.O.C. v. United Airlines, Inc., No. C 09-2469 PJH, 2009 WL 7323651, at *3 (N.D. Cal. Dec.

20 3, 2009).

21

In sum, Mr. Wagafe and three additional proposed named Plaintiffs in the forthcoming

22 proposed Second Amended Complaint live and work in this District, and key operative facts

23 occurred here. Plaintiffs’ choice of venue weighs heavily in favor of this District.

24

2. Contacts in the forum weigh against transfer.

25

The contacts of the parties and Plaintiffs’ causes of action to the respective forums also

26 weigh against transfer. Defendants argue that these factors favor transfer because Mr.

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1 Ostadhassan lives in North Dakota, and his application is pending in Minnesota. Dkt. 39 at 6.

2 This argument is based on the incorrect assumption that Mr. Ostadhassan is the only remaining

3 Plaintiff. As outlined above, Mr. Wagafe is still a named Plaintiff, and intends to remain one.

4 Dkt. 28, ¶ 7. Further, should the Court approve Plaintiffs’ forthcoming motion for leave to

5 amend their complaint, three more Plaintiffs that reside in this District will be added to this

6 lawsuit.

7

Moreover, Defendant USCIS’s recent attempt to moot Mr. Wagafe’s claims by quickly

8 approving his application has only strengthened the connections between this District and the

9 operative facts in the case. Specifically, Defendant USCIS’s sudden decision to fast-track Mr.

10 Wagafe’s application days after Plaintiffs filed for class certification speaks to the government’s

11 arbitrary and capricious application of CARRP to immigration applicants, and strongly suggests

12 that Mr. Wagafe was eligible for citizenship all along. Whatever “national security concern” that

13 Defendants used to hold Mr. Wagafe’s application for three and a half years could not have been

14 valid if they were able to resolve it in a matter of days. Notably, Mr. Wagafe’s interview

15 occurred in Seattle, his A-File is located in Seattle, the immigration officers who reviewed and

16 processed his application for three and a half years are in Seattle and are likely relevant witnesses

17 in this case. All of these factors are more relevant to the case than ever, now that they indicate

18 that Defendants wrongly labeled Mr. Wagafe a national security concern and then illegally

19 delayed approval of his application.

20

As for Defendants’ contacts, the government acknowledges that it has “no more contact

21 with [the Western] District than any other,” Dkt. 39 at 6, which means this factor can only favor 22 this District.3

23
3 It is highly unlikely that North Dakota sees more CARRP cases than Washington State, given the States’
24 respective demographics and immigration populations. Compare American Immigration Council, New Americans
in Washington: The Political and Economic Power of Immigrants, Latinos, and Asians in the Evergreen State,
25 https://www.americanimmigrationcouncil.org/sites/default/files/research/new_americans_in_washington_2015.pdf
(reporting that 1 in 7 Washingtonians are immigrants, representing 13.5% of the state’s population), with American
26 Immigration Council, New Americans in North Dakota: The Political and Economic Power of Immigrants, Latinos,
and Asians in the Peace Garden State,

OPPOSITION TO MOTION TO TRANSFER (No. 2:17-cv-00094-JCC) 134677195.3 – 9

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 15 of 21

1

3. Convenience to parties and witnesses weighs against transfer.

2

Convenience factors also weigh against moving this case to North Dakota. Defendants

3 make two arguments here: first, that the costs of litigating in North Dakota favor transfer, and

4 second, that witnesses would be more readily available if the case were transferred. With respect

5 to costs, Defendants argue that it will be “less expensive and less time-consuming for

6 government personnel in Minnesota to travel to North Dakota than to Seattle.” Dkt. 39 at 6.

7 This wrongly assumes, once again, that the only relevant “government personnel” are the

8 officials who are handling Mr. Ostadhassan’s application. To be sure, any such officials (who

9 the government notably fails to identify) will be relevant; but so are the officials who handled the

10 applications of Mr. Wagafe and, if the forthcoming motion for leave to amend is granted, the

11 three other individuals Plaintiffs propose to add. And it is likely that the most important

12 witnesses are not any of the immigration officers handling individual files, but rather the

13 government officials who designed and implemented CARRP—and Defendants provide no

14 evidence that any of those witnesses are in North Dakota.

15

Transferring this case to North Dakota would force Mr. Wagafe, the other proposed

16 Plaintiffs in the forthcoming proposed Second Amended Complaint, and their attorneys to travel

17 to Grand Forks, which would be more costly and less convenient for Plaintiffs. Seven out of

18 fourteen of Plaintiffs’ lawyers reside in Seattle, and an additional two reside in Los Angeles.

19 Transfer of this case to North Dakota would require all of Plaintiffs’ lawyers to travel and result

20 in no local counsel. The Court may take judicial notice of the fact that Seattle is also a more

21 accessible area overall, given that Seattle’s airport is much larger than the airport in Grand Forks, 22 with many more direct flight options.4 Courts do not grant motions to transfer where doing so

23

24 https://www.americanimmigrationcouncil.org/sites/default/files/research/new_americans_in_north_dakota_2015.pdf

(reporting that immigrants make up only 2.7% of North Dakota’s population).

25

4 Whereas the Seattle-Tacoma International Airport serviced 45.7 million air passengers in 2016, operating

as the 9th busiest airport in the country, Grand Forks International Airport serviced just 131,481 passengers in the

26 same year. Compare Port of Seattle, Airport Statistics,

https://www.portseattle.org/About/Publications/Statistics/Airport-Statistics/Pages/default.aspx (last visited March

OPPOSITION TO MOTION TO TRANSFER (No. 2:17-cv-00094-JCC) 134677195.3 – 10

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 16 of 21

1 would merely shift the inconvenience from one party to another. Dominion Pipe, 2017 WL

2 58839, at *2; Nike, Inc. v. Lombardi, 732 F. Supp. 2d 1146, 1158 (D. Or. 2010) (citing Decker,

3 805 F.2d at 843); Cochran v. NYP Holdings, Inc., 58 F. Supp. 2d 1113, 1119 (C.D. Cal. 1998).

4

As for witness convenience, Defendants fail to show why North Dakota would be a better

5 venue for party and non-party witnesses.

6

The party seeking the transfer must identify, typically by affidavit,

the key witnesses to be called, state their residence, and provide at

7

least a general summary of what their testimony will cover. The

emphasis, articulated by many courts, is properly on this showing

8

rather than on which party can present a longer list of possible

witnesses located in its preferred district. In other words, the focus

9

on this point is qualitative, not quantitative. And it clearly depends

upon the factual and legal context of the particular case.

10

Obviously, one important or material witness may outweigh a great

number of less important witnesses. 11

15 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND

12

PROCEDURE: JURISDICTION AND RELATED MATTERS § 3851 (footnotes omitted). But other than

13

Mr. Ostadhassan, the only witness that the government identifies within the subpoena power of

14

the North Dakota federal court is Mr. Ostadhassan’s wife, and there is no suggestion or evidence

15

that she would not attend a trial in Seattle, or even if she were unwilling, why her testimony

16

could not be presented by deposition. See, e.g., B.E. Technology, LLC v. Google Inc., No. 2:12-

17

cv-02830-JPM, 2013 WL 2297086, at *7-*8 (W.D. Tenn. May 24, 2013); Oracle Corp. v.

18

epicRealm Licensing, LP., No. CIV. 06-414-SLR, 2007 WL 901543, at *4 (D. Del. Mar. 26,

19

2007) (“From a practical standpoint, much of the testimony presented at trial these days is

20

presented via recorded depositions, as opposed to witnesses traveling and appearing live. There

21

certainly is no obstacle to EpicRealm embracing this routine trial practice.”); Samsung Elecs.

22

Co., Ltd. v. Rambus, Inc., 386 F. Supp. 2d 708, 719 (E.D. Va. 2005) (“Somewhat less weight is

23

given to witness inconvenience when a party is unable to demonstrate with any particularity that

24

videotaped deposition testimony will be inadequate, and that live testimony is critical.”);

25

26 20, 2017), with Grand Forks International Airport, Airport Facts, http://gfkairport.com/facts-statistics/ (last visited
March 20, 2016).

OPPOSITION TO MOTION TO TRANSFER (No. 2:17-cv-00094-JCC) 134677195.3 – 11

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 17 of 21

1 comScore, Inc. v. Integral Ad Sci., Inc., 924 F. Supp. 2d 677, 688 (E.D. Va. 2013) (same); see

2 also Anderson v. Century Prods. Co., 943 F. Supp. 137, 149 (D.N.H. 1996) (denying motion to

3 transfer because “loss of live testimony of less central witnesses is not so great a price for

4 honoring plaintiff’s choice”).

5

Defendants vaguely allude to other government witnesses near North Dakota, but fail to

6 identify them by name, or specify why their testimony would be material. “Absent a more

7 specific showing that particular witnesses will be necessary at trial, the court cannot consider the

8 convenience of these unnamed witnesses.” Williams v. Bowman, 157 F. Supp. 2d 1103, 1108

9 (N.D. Cal. 2001). See also Intelect Corp. v. Cellco P’ship GP, 160 F. Supp. 3d 157, 173 (D.D.C.

10 2016) (denying motion to transfer where defendants failed to explain which witnesses or

11 documents will be unavailable in the forum); Heinz Kettler GMBH & Co. v. Razor USA, LLC,

12 750 F. Supp. 2d 660, 668 (E.D. Va. 2010) (holding that the party asserting inconvenience must

13 provide “sufficient details respecting the witnesses and their potential testimony to enable the

14 court to assess the materiality of evidence and the degree of inconvenience”).

15

In short, Defendants have failed to identify who the inconvenienced witnesses will be,

16 what their specific testimony will be, and how that testimony will be relevant to this case.

17 Because Mr. Wagafe and several other proposed Plaintiffs and witnesses are in this District,

18 convenience factors weigh against transfer.

19

4. Ease of access to evidence weighs against transfer.

20

The government argues that transferring the case to North Dakota would make it easier to

21 access evidence. This, yet again, is based on Defendants’ incorrect assumption that Mr.

22 Ostadhassan is the only remaining Plaintiff, and that only evidence relating to his case is

23 relevant. To be clear, the key focus of discovery likely will be on documents relating to CARRP

24 and any successor vetting program. Defendants make no showing that those documents are

25 stored in Grand Forks, North Dakota. Nor has the government suggested that discovery will

26 occur through on-site inspection of government records, rather than a standard production of

OPPOSITION TO MOTION TO TRANSFER (No. 2:17-cv-00094-JCC) 134677195.3 – 12

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 18 of 21

1 electronically copied files. Absent any other grounds for transfer, the fact that records are

2 located in a particular district is not itself sufficient to support a motion for transfer. See Royal

3 Queentex Enters. v. Sara Lee Corp., No. C-99-4787 MJJ, 2000 WL 246599, at *7 (N.D. Cal.

4 Mar. 1, 2000); STX, Inc. v. Trik Stik, Inc., 708 F. Supp. 1551, 1556 (N.D. Cal. 1988).

5

IV. CONCLUSION

6

Because Defendants have failed to carry their burden of “showing that balance of the

7 factors strongly favors transfer,” Dominion Pipe, 2017 WL 58839, at *4, the Court should deny

8 the motion to transfer.

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OPPOSITION TO MOTION TO TRANSFER (No. 2:17-cv-00094-JCC) 134677195.3 – 13

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 19 of 21

1 By:

2 s/Matt Adams

s/Glenda M. Aldana Madrid 3 Matt Adams #28287

4 Glenda M. Aldana Madrid #46987 Northwest Immigrant Rights Project

5 615 Second Ave., Ste. 400

Seattle, WA 98122 6 Telephone: (206) 957-8611

7

Facsimile: (206) 587-4025 matt@nwirp.org

8 glenda@nwirp.org

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OPPOSITION TO MOTION TO TRANSFER (No. 2:17-cv-00094-JCC) 134677195.3 – 14

s/Emily Chiang Emily Chiang #50517 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Echiang@aclu-wa.org Jennifer Pasquarella (admitted pro hac vice) ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles, CA 90017 Telephone: (213) 977-5211 Facsimile: (213) 997-5297 jpasquarella@aclusocal.org
Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 20 of 21

1 Stacy Tolchin (admitted pro hac vice)
Law Offices of Stacy Tolchin 2 634 S. Spring St. Suite 500A
3 Los Angeles, CA 90014 Telephone: (213) 622-7450
4 Facsimile: (213) 622-7233 Stacy@tolchinimmigration.com
5

6

Trina Realmuto (admitted pro hac vice) Kristin Macleod-Ball (admitted pro hac

7 vice) National Immigration Project

8 of the National Lawyers Guild

14 Beacon St., Suite 602 9 Boston, MA 02108

10

Telephone: (617) 227-9727 Facsimile: (617) 227-5495

11 trina@nipnlg.org kristin@nipnlg.org

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OPPOSITION TO MOTION TO TRANSFER (No. 2:17-cv-00094-JCC) 134677195.3 – 15

s/Hugh Handeyside Hugh Handeyside #39792 Lee Gelernt (admitted pro hac vice) Hina Shamsi (admitted pro hac vice) American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 Telephone: (212) 549-2616 Facsimile: (212) 549-2654 lgelernt@aclu.org hhandeyside@aclu.org hshamsi@aclu.org
s/ Harry H. Schneider, Jr. Harry H. Schneider, Jr. #9404 s/ Nicholas P. Gellert Nicholas P. Gellert #18041 s/ Kate Reddy Kate Reddy #42089 s/ David A. Perez David A. Perez #43959 Attorneys for Plaintiffs Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: HSchneider@perkinscoie.com
NGellert@perkinscoie.com KReddy@perkinscoie.com DPerez@perkinscoie.com
Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 40 Filed 03/20/17 Page 21 of 21

1

CERTIFICATE OF SERVICE

2 The undersigned certifies that on the dated indicated below, I caused service of the
3 foregoing OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER via the CM/ECF
4 system that will automatically send notice of such filing to all counsel of record herein.
5 DATED this 20th day of March, 2017, at Seattle, Washington.
6

7

By: s/ David A. Perez

8

David A. Perez, #43959 Attorneys for Plaintiffs

9

Perkins Coie LLP 1201 Third Avenue, Suite 4900

10

Seattle, WA 98101-3099 Telephone: 206.359.8000

11

Facsimile: 206.359.9000 Email: DPerez@perkinscoie.com

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OPPOSITION TO MOTION TO TRANSFER (No. 2:17-cv-00094-JCC) 134677195.3 – 16

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

 
 Case 2:17-cv-00094-RAJ Document 43 Filed 03/23/17 Page 1 of 8

1

The Honorable John C. Coughenour

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9

10 ABDIQAFAR WAGAFE, et al.,

11

Plaintiffs,

12

v.

13
UNITED STATES CITIZENSHIP AND 14 IMMIGRATION SERVICES, et al.,

15

Defendants.

16

No. 2:17-cv-00094-JCC
DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO TRANSFER VENUE
HON. JOHN C. COUGHENOUR
NOTED ON MOTION CALENDAR: Friday, March 24, 2017

17

18

Plaintiffs’ Opposition to Defendants’ Motion to Transfer Venue, ECF No. 40,

19 relies on multiple misstatements of the law and two fundamentally incorrect assumptions.

20 As a result, Plaintiffs have reached the rather startling conclusion that Seattle would be

21 the best place to litigate a case where the only named plaintiff with a live case or

22 controversy in his individual capacity lives 1,500 miles away in North Dakota. The

23 Court should grant Defendants’ Motion to Transfer, ECF No. 39.

24

1. Plaintiffs’ Opposition Is Riddled with Legal Error

25

Plaintiffs’ Opposition is shot through with legally dubious propositions. To begin,

26 Plaintiffs observe that “[s]even out of the fourteen of Plaintiffs’ lawyers reside in Seattle,

27 and an additional two reside in Los Angeles” and “[t]ransfer of this case to North Dakota

28

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO TRANSFER VENUE - 1 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Office of Immigration Litigation, District Court Section
Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 43 Filed 03/23/17 Page 2 of 8

1 would require all of Plaintiffs’ lawyers to travel and result in no local counsel.”1 ECF

2 No. 40 at 10. But as Defendants previously noted, courts have been clear that “‘[t]he

3 convenience of counsel is not a factor to be considered’ in weighing a transfer of

4 venue.”2 See ECF No. 39 at 7 n.4 (quoting Bunker v. Union Pac. R.R. Co., No. 05-cv-

5 045059, 2006 WL 193856, at *2 n.1 (N.D. Cal. Jan. 23, 2006)); see also Encore D.E.C.,

6 LLC v. APRES1 I, LLC, No. 14-cv-01238, 2014 WL 12576650 (D. Or. Dec. 22, 2014)

7 (“this is not a valid consideration on a motion to transfer venue”); Smith v. Aetna Life Ins.

8 Co., No. 11-cv-02559, 2011 WL 3904131, *6 (N.D. Cal. Dec. 22, 2011) (“the

9 convenience of counsel is not considered for purposes of deciding whether a venue is

10 convenient for the purposes of § 1404(a)”). Plaintiffs’ argument appears to suggest they

11 are more concerned with maintaining this action in Seattle for the convenience of counsel

12 than with the convenience of the parties and witnesses.

13

Next, Plaintiffs suggest that “courts afford less weight to the government’s forum

14 preferences.” ECF No. 40 at 8 (quoting EEOC v. United Airlines, Inc., 2009 WL

15 7323651, *3 (N.D. Cal. Dec. 3, 2009)). That is simply wrong. What the case Plaintiffs

16 cite actually says is: “[B]ecause the EEOC is both a government agency and the plaintiff

17 in a class action, the weight accorded to the EEOC’s choice of forum is diminished.” Id.

18 (emphasis added). Because the government is not the plaintiff in this case, the rule has

19 no applicability here. Indeed, it is an application of the general rule that plaintiffs’ choice 20 of forum in class actions is generally accorded little weight. See Lou v. Belzberg, 834 21 F.2d 730, 739 (9th Cir. 1987) (“Although great weight is generally accorded plaintiff’s 22 choice of forum . . . when an individual . . . represents a class, the named plaintiff’s 23 choice of forum is given less weight.”); cf. Foster v. Nationwide Mut. Ins. Co., No. 0724 cv-04928, 2007 WL 4410408, at *3 (N.D. Cal. Dec. 14, 2007) (according “no deference”

25

26 1 One could reasonably question whether it is really necessary for all fourteen lawyers to travel for every hearing.

27 2 Nor would a transfer “merely shift the inconvenience from one party to another.” ECF No. 40 at 11. Neither side has counsel of record resident in Grand Forks, but as Mr. Ostadhassan lives there, it would still be more convenient
28 for Plaintiffs than for Defendants.

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO TRANSFER VENUE - 2 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Office of Immigration Litigation, District Court Section
Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 43 Filed 03/23/17 Page 3 of 8

to the plaintiffs’ choice of forum because, among other reasons, the lawsuit was a class
1

action and the “operative facts [had] not occurred within the forum”). As such, it is
2

Plaintiff’s choice of forum in this District that is entitled to little weight, not Defendants’
3

requested transferee forum, which, in any event, is limited to those jurisdictions where
4

the action could have been originally filed. See 28 U.S.C. § 1404(a).
5

With respect to access to evidence, Plaintiffs contend that the government has not
6

“suggested that discovery will occur through on-site inspection of government records
7

rather than a standard production of electronically copied files.” ECF No. 40 at 12-13.
8
But again, Defendants have already explained, through a sworn statement, that “USCIS
9
still maintains A-files in paper,” Mr. Ostadhassan’s A-file is in Minnesota, and as a legal
10
matter “the issue is the ‘ease of access’ to the source of proof, not whether the evidence
11
would be unavailable absent the transfer.” ECF No. 39 at 7 (quoting Tritten Decl. and
12
Saleh v. Titan Corp., 361 F. Supp. 2d 1152, 1165-66 (S.D. Cal. 2005)).
13
Plaintiffs then go on to suggest that “it is likely that the most important witnesses

14
are not any of the immigration officers handling individual files, but rather the

15
government officials who designed and implemented CARRP.” ECF No. 40 at 10. This

16
is problematic on two grounds. First, at present, there is no certified class. Instead, the

17
only live claims are Mr. Ostadhassan’s individual claims. As such, his eligibility for the

18
benefits he is seeking and the immigration officers handling his applications are of

19
crucial importance. Beyond this, assuming arguendo the Court certified one or more

20
classes, it is unlikely that those who designed and implemented CARRP would be proper

21
witnesses. As the Seventh Circuit has explained:

22
Hammer wants discovery during which former Attorney General Ashcroft,

23

former Director Hawk-Sawyer, and former Warden Lappin must explain

under oath why they adopted the policy in question . . . . [We do not] see
24
how a demand that a Cabinet officer give testimony about his thinking

25

could be squared with United States v. Morgan, 313 U.S. 409 (1941), and

PBGC v. LTV Corp, 496 U.S. 633 (1990). These decisions hold that courts

26

evaluating the validity of an administrative action may not enlarge the

27

administrative record by demanding that the people who proposed or

approved the rule testify about their thinking.
28

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO TRANSFER VENUE - 3 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Office of Immigration Litigation, District Court Section
Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 43 Filed 03/23/17 Page 4 of 8

1 Hammer v. Ashfcroft, 570 F.3d 798, 802-03 (7th Cir. 2009). Thus, the only witnesses

2 whose convenience is implicated by the motion to transfer are those associated with Mr.

3 Ostadhassan’s pending applications.

4

Despite the foregoing patent errors, Plaintiffs’ most glaring legal error is

5 conflating the convenience of maintaining this action in the Western District of

6 Washington where Mr. Wagafe’s individual claims are now moot with his legal authority

7 to remain a class representative.

8

2. Plaintiffs Conflate Mr. Wagafe’s Individual-Capacity Claims With His

Ability to Remain a Class Representative
9

It appears that Plaintiffs anticipated Defendants might adjudicate both named

10

Plaintiffs’ claims (as they requested in their Prayer for Relief), thereby rendering moot

11

the named Plaintiffs’ individual claims. See ECF No. 40 at 7. That has not occurred, and

12

Mr. Ostadhassan’s application remains pending. Nonetheless, Plaintiffs go to great pains

13

to argue that the adjudication of Mr. Wagafe’s individual claims does not affect his

14

ability to act as a class representative, and does not moot the claims of the class he sought

15

to represent, ECF No. 40 at 1 & 5-7, despite the fact that Defendants have not challenged

16

his standing to do so. Defendants did not raise either point in their motion to transfer. It

17

was a motion to transfer, not to dismiss the action or the class claims. In this posture,

18

Plaintiffs’ claim that Defendants are attempting to “evade the jurisdiction of this Court,”

19

id. at 2 – as though the U.S. District Court for the District of North Dakota is not an

20

Article III tribunal – defies belief.3

21

Defendants agree that “this motion is not the proper vehicle to litigate Plaintiff

22

Wagafe’s standing as a named Plaintiff.” Id. at 5. But it is worth noting that Plaintiffs

23

have clearly conflated Mr. Wagafe’s eligibility to serve as a class representative and the

24

class claims, on the one hand, with his own individual claims (which are now clearly

25

26 3 Contrary to Plaintiff’s argument, see ECF No. 40 at 2, Defendants have not suggested that the Western District of Washington is not a proper forum. See Defendants’ Motion to Transfer Venue, ECF No. 39 at 3 (“Defendants agree
27 that at the time this action was filed, venue was proper under 8 U.S.C. § 1391 in the Western District of Washington.”). Defendants contend that because Mr. Wagafe’s naturalization application has been approved, while
28 Mr. Ostadhassan’s application for adjustment of status remains pending, it is now an inconvenient forum.

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO TRANSFER VENUE - 4 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Office of Immigration Litigation, District Court Section
Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 43 Filed 03/23/17 Page 5 of 8

1 moot) on the other. Unlike Mr. Wagafe, Mr. Ostadhassan still has live individual-

2 capacity claims that could reach trial. And if they do, compulsory process would not be

3 available to compel Mr. Ostadhassan’s wife to attend a trial in Seattle.4 See Fed. R. Civ.

4 P. 45(c)(1)(A). Mr. Ostadhassan’s wife filed the pending Form I-130, Petition for Alien

5 Relative, on behalf of Mr. Ostadhassan, and approval of which is necessary for Mr.

6 Ostadhassan to adjust his status.

7

District courts in this Circuit routinely transfer cases to preserve the availability of

8 compulsory process. See, e.g., Encore D.E.C., LLC, No. 14-cv-01238, 2014 WL

9 12576650 at *6; Herrera v. Sotelo, No. 14-cv-01133, 2014 WL 3101448, *4 (C.D. Cal.

10 July 7, 2014); Kaswit, Inc. v. Dogfather K9 Connections, LLC, No. 14-cv-00718, 2014

11 WL 3362355, *6 (C.D. Cal. July 7, 2014); Kinney v. Chomsky, No. 14-cv-02187, 2014

12 WL 3725932, *4 (N.D. Cal. July 25, 2014); Koval v. United States, No. 13-cv-1630,

13 2013 WL 6385595, *4 (D. Ariz. Dec. 6, 2013). Indeed, Rule 45(d)(3)(A)(ii) requires a

14 court to quash or modify a subpoena that requires a person to comply beyond the

15 geographical limits of Rule 45(c). See Garlough v. Trader Joe’s Co., No. 15-cv-01278,

16 2015 WL 4638340, *5 (N.D. Cal. Aug. 4 2015). The Court need not look beyond the

17 adjudication of Mr. Wagafe’s individual claims to conclude that the class claims should

18 be litigated in North Dakota because of the obvious advantages of litigating Mr.

19 Ostadhassan’s individual claims there.

20

Plaintiffs contend that having provided Mr. Wagafe with the relief he sought, see

21 Amended Complaint, Prayer for Relief ¶ 4, and seeking to transfer the litigation to the

22 residence of the only other named plaintiff, Defendants are engaging in a “transparent

23 attempt” to “forum shop.” ECF No. 40 at 2. It hardly needs to be said, but Defendants

24 do not choose their Plaintiffs. Indeed, with respect to “forum shopping,” Plaintiffs

25
4 Plaintiffs suggest that Mr. Ostadhassan’s wife might be willing to attend a trial in Seattle, and note that her 26 testimony could potentially be presented by means of a recorded deposition. See ECF No. 40 at 11. But the
question is the availability of compulsory process, not whether it would be necessary to actually issue a subpoena. 27 Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29–30 (1988). In the event she declines, the authority to compel
attendance is essential to a fair trial. So Plaintiffs’ observations that her testimony could be presented by deposition, 28 and that she might voluntarily attend a trial in this District, miss the mark.

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO TRANSFER VENUE - 5 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Office of Immigration Litigation, District Court Section
Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 43 Filed 03/23/17 Page 6 of 8

1 explain that if the Court grants them leave to amend their complaint, there will soon be an

2 additional “four Plaintiffs who reside in King County, Washington.” Id. at 5.

3

3. Plaintiffs’ Opposition Depends upon Contingent Future Events

4

From there, Plaintiffs take the addition of their new plaintiffs as given, and suggest

5 – without so much as an affidavit – that “three other named Plaintiffs in the proposed

6 Second Amended Complaint live and work in this District, and key operative facts”

7 occurred here as well. Id. at 8. But as it currently stands, there is no Second Amended

8 Complaint, and there are no new plaintiffs.

9

There is one named plaintiff with a live individual-capacity claim, and he lives in

10 Grand Forks, North Dakota.

11

Conclusion

12

The Court should grant Defendants’ Motion to Transfer Venue. ECF No. 39.

13
14 Dated: March 23, 2017

Respectfully submitted,

15

CHAD A. READLER
16
Acting Assistant Attorney General

17
WILLIAM C. PEACHEY 18 Director

19

TIMOTHY M. BELSAN 20 Deputy Chief, National Security

21

& Affirmative Litigation Unit

22

23

24

25

EDWARD S. WHITE Trial Attorney, National Security
& Affirmative Litigation Unit
/s/ Aaron R. Petty AARON R. PETTY Trial Attorney, National Security
& Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Telephone: (202) 532-4542 E-mail: Aaron.R.Petty@usdoj.gov

26

Attorneys for Defendants

27

28

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO TRANSFER VENUE - 6 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Office of Immigration Litigation, District Court Section
Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 43 Filed 03/23/17 Page 7 of 8

1

CERTIFICATE OF SERVICE

2

I HEREBY CERTIFY that on March 23, 2017, I electronically filed the foregoing

3 with the Clerk of the Court using the CM/ECF system, which will send notification of

4 such filing to the following CM/ECF participants:

5

Harry H. Schneider, Jr., Esq.

6

Nicholas P. Gellert, Esq.

7

David A. Perez, Esq.

Kathryn Reddy, Esq.

8

Perkins Coie L.L.P.

9

1201 Third Ave., Ste. 4800

Seattle, WA 98101-3099

10

PH: 359-8000

11

FX: 359-9000

Email: HSchneider@perkinscoie.com

12

Email: NGellert@perkinscoie.com

Email: DPerez@perkinscoie.com

13

Email: KReddy@perkinscoie.com

14
Matt Adams, Esq.

15

Glenda M. Aldana Madrid, Esq.

16

Northwest Immigrant Rights Project

615 Second Ave., Ste. 400

17

Seattle, WA 98104

18

PH: 957-8611

FX: 587-4025

19

E-mail: matt@nwirp.org

E-mail: glenda@nwirp.org
20

21

Emily Chiang, Esq.

ACLU of Washington Foundation

22

901 Fifth Avenue, Suite 630

23

Seattle, WA 98164

Telephone: (206) 624-2184

24

E-mail: Echiang@aclu-wa.org

25

26

27

28

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO TRANSFER VENUE - 7 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Office of Immigration Litigation, District Court Section
Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 43 Filed 03/23/17 Page 8 of 8

Jennifer Pasquarella, Esq.

1

ACLU Foundation of Southern California

2

1313 W. 8th Street

Los Angeles, CA 90017

3

Telephone: (213) 977-5211

Facsimile: (213) 997-5297

4

E-mail: jpasquarella@aclusocal.org

5

Stacy Tolchin, Esq.

6

Law Offices of Stacy Tolchin

7

634 S. Spring St. Suite 500A

Los Angeles, CA 90014

8

Telephone: (213) 622-7450

Facsimile: (213) 622-7233

9

E-mail: Stacy@tolchinimmigration.com

10
Trina Realmuto, Esq.

11

Kristin Macleod-Ball, Esq.

National Immigration Project of the National Lawyers Guild

12

14 Beacon St., Suite 602

13

Boston, MA 02108

Telephone: (617) 227-9727

14

Facsimile: (617) 227-5495

15

E-mail: trina@nipnlg.org

E-mail: kristin@nipnlg.org

16

Hugh Handeyside, Esq.

17

Lee Gelernt, Esq.

18

Hina Shamsi, Esq.

American Civil Liberties Union Foundation

19

125 Broad Street

New York, NY 10004

20

Telephone: (212) 549-2616

21

Facsimile: (212) 549-2654

E-mail: lgelernt@aclu.org

22

E-mail: hhandeyside@aclu.org

23

E-mail: hshamsi@aclu.org

24

25

s/ Aaron R. Petty

AARON R. PETTY

26

U.S. Department of Justice

27

28

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO TRANSFER VENUE - 8 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Office of Immigration Litigation, District Court Section
Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

 
 Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 1 of 28

1

The Honorable John C. Coughenour

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT FOR THE

9

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

11 ABDIQAFAR WAGAFE, et al.,

CASE NO. 2:17-cv-00094-JCC

12

Plaintiffs,

13 v.

14 DONALD TRUMP, et al.,

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ FIRST AMENDED MOTION FOR CLASS CERTIFICATION

15

Defendants.

NOTED ON MOTION CALENDAR:

16

May 19, 2017

17

18

19

20

21

22

23

24

25

26

27
Defendants’ Response to Plaintiffs’ First Amended Motion for Class Certification 2:17-cv-00094-JCC

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 2 of 28

1 TABLE OF CONTENTS
2 TABLE OF CONTENTS ............................................................................................................ i
3
4 TABLE OF AUTHORITIES..................................................................................................... iii

5 I. INTRODUCTION.................................................................................................................1

6 II. FACTUAL AND PROCEDURAL BACKGROUND ............................................................1

7 A. PROCEDURAL HISTORY.....................................................................................................1

8
B. THE NAMED PLAINTIFFS ...................................................................................................2 9

10

1. ABDIQAFAR WAGAFE .................................................................................................2

11

2. MEHDI OSTADHASSAN................................................................................................3

12

3. HANIN OMAR BENGEZI ...............................................................................................4

13

4. MUSHTAQ ABED JIHAD ...............................................................................................4

14

5. SAJEEL MANZOOR ......................................................................................................5

15 III. THE LEGAL STANDARD FOR CLASS CERTIFICATION ...............................................5

16 IV. ARGUMENT ........................................................................................................................7

17

A. THE NAMED PLAINTIFFS, AND ALL MEMBERS OF THE PROPOSED CLASSES, LACK

18

STANDING TO CHALLENGE BOTH CARRP AND SECTION 5 OF EXECUTIVE ORDER 13780 ...7

19 B. NAMED PLAINTIFFS CANNOT SATISFY THE COMMONALITY AND TYPICALITY

20

REQUIREMENTS FOR CLASS CERTIFICATION ......................................................................8

21

1. NAMED PLAINTIFFS CANNOT ESTABLISH COMMONALITY BECAUSE IT IS IMPOSSIBLE

22

TO DETERMINE WHETHER ADJUDICATION OF ANY INDIVIDUAL’S ADJUSTMENT-OF-

STATUS OR NATURALIZATION APPLICATION HAS BEEN UNREASONABLY DELAYED,

23

OR DELAYED DUE TO CARRP OR “EXTREME VETTING,” WITHOUT EVALUATING

THE SPECIFIC FACTS PERTINENT TO THAT INDIVIDUAL ................................................9

24

2. NAMED PLAINTIFFS’ CLAIMS ARE NOT TYPICAL OF THE CLAIMS OF CLASS

25

MEMBERS GENERALLY, AND THEY ARE NOT ADEQUATE CLASS REPRESENTATIVES ..14

26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

i

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 3 of 28

1

C. THE NAMED PLAINTIFFS ARE NOT ADEQUATE CLASS REPRESENTATIVES ........................15

2

D. THE COURT SHOULD NOT CERTIFY A NATIONWIDE CLASS..............................................19

3 V. CONCLUSION...................................................................................................................20 4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

ii

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 4 of 28

1

TABLE OF AUTHORITIES

2

3

Cases

4

Amchem Prods. Inc. v. Windsor, 5

521 U.S. 591 (1997) ................................................................................................................6 6

Califano v. Yamasaki, 7

442 U.S. 682 (1979) ...................................................................................................... 5, 8, 19 8

Comcast Corp. v. Behrend, 9

569 U.S. ___, 133 S. Ct. 1426 (2013) ......................................................................................5 10

Costelo v. Chertoff, 11

258 F.R.D. 600 (C.D. Cal. 2009) ...........................................................................................13 12

Denney v. Deutsche Bank AG, 13

443 F.3d 253 (2d Cir.2006) ...............................................................................................7, 16 14

Gen. Tel. Co. v. Falcon, 15

457 U.S. 147 (1982) ................................................................................................................6 16

Hanlon v. Chrysler Corp., 17

150 F.3d 1011 (9th Cir. 1998) ...............................................................................................15 18

Hanon v. Dataproducts, 19

976 F.2d 497 (9th Cir. 1992) ...................................................................................................9 20

Hawkins v. Comparet–Cassani, 21

251 F.3d 1230 (9th Cir.2001) ..................................................................................................7 22

In re Google AdWords Litig., 23

No. 5:08-cv-3369, 2012 WL 28068 (N.D. Cal. Jan. 5, 2012) ...................................................8 24

Islam v. Heinauer, 25

32 F. Supp. 3d 1063 (N.D. Cal. 2014).............................................................................. 10, 17 26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

iii

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 5 of 28

1 Korab v. Fink,

2

797 F.3d 572 (9th Cir. 2014) .................................................................................................19

3 Lujan v. Defenders of Wildlife,

4

504 U.S. 555 (1992) ................................................................................................................7

5 Mazza v. Am. Honda Motor Co.,

6

666 F.3d 581 (9th Cir. 2012) .............................................................................................7, 13

7 Metcalf v. Edelman,

8

64 F.R.D. 407 (N.D. Ill. 1974)...............................................................................................14

9 Navellier v. Sletten,

10

262 F.3d 923 (9th Cir. 2001) .................................................................................................15

11 Nguyen Da Yen v. Kissinger,

12

70 F.R.D. 656 (N.D. Cal. 1976).............................................................................................14

13 Orkin v. Taylor,

14

487 F.3d 734 (9th Cir. 2007) .................................................................................................17

15 Rutledge v. Elec. Hose & Rubber Co.,

16

511 F.2d 668 (9th Cir. 1975) ...................................................................................................6

17 Schwartz v. Harp,

18

108 F.R.D. 279 (C.D. Cal. 1985) .......................................................................................9, 15

19 Wal–Mart Stores, Inc. v. Dukes,

20

564 U.S. 338 (2011) .......................................................................................................Passim

21 Zinser v. Accufix Research Inst., Inc.,

22

253 F.3d 1180 (9th Cir. 2001) .................................................................................................6

23

Statutes

24

25 5 U.S.C. § 555(b) ......................................................................................................................14

26 5 U.S.C. § 706(1) ......................................................................................................................14

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

iv

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 6 of 28

1 8 U.S.C. § 1182.........................................................................................................................15 2 8 U.S.C. § 1182(a)(3)(A)...........................................................................................................12 3 8 U.S.C. § 1182(a)(3)(B)...........................................................................................................12 4 8 U.S.C. § 1182(a)(3)(F) ...........................................................................................................12 5 8 U.S.C. § 1227.........................................................................................................................15 6 8 U.S.C. § 1227(a)(4)(A)...........................................................................................................12 7 8 U.S.C. § 1227(a)(4)(B)...........................................................................................................12 8 8 U.S.C. § 1446...........................................................................................................................4 9 8 U.S.C. § 1446(a) ....................................................................................................................12 10 8 U.S.C. § 1446(b) ....................................................................................................................12 11 8 U.S.C. § 1571(b) ....................................................................................................................17 12
Regulations 13 14 8 C.F.R. § 103.2(b)(8)(ii) ..........................................................................................................11 15 8 C.F.R. § 103.2(b)(9)...............................................................................................................11 16 8 C.F.R. § 204.1(a)(1) ...............................................................................................................10 17 8 C.F.R. § 245.6........................................................................................................................11 18 8 C.F.R. § 335.1........................................................................................................................12

19

Rules

20 Federal Rule of Civil Procedure 23..........................................................................................1, 5
21 Federal Rule of Civil Procedure 23(a) .....................................................................................5, 6
22 Federal Rule of Civil Procedure 23(a)(2)...................................................................................8
23 Federal Rule of Civil Procedure 23(b)(2)...................................................................................8
24

25

26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

v

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 7 of 28

1

Defendants respectfully request that the Court deny Plaintiffs’ motion for class

2 certification as they have failed to demonstrate class certification is appropriate in this case

3 pursuant to Federal Rule of Civil Procedure 23.

4 I. INTRODUCTION
5 The named plaintiffs—Messrs. Abdiqafar Wagafe, Mehdi Ostadhassan, Mushtaq Abed
6 Jihad, and Sajeel Manzoor, and Ms. Hanin Omar Bengezi—seek certification of two classes
7 under Federal Rule of Civil Procedure 23, and ask the Court to appoint some of each of them as
8 representatives for each of the two proposed classes. Plaintiffs’ First Amended Motion for Class
9 Certification (“Pls.’ Amend. Class Cert. Mot.”) (ECF No. 49) at 3. The Court should deny
10 Plaintiffs’ motion for class certification because: (a) their claims fail to meet the requirement of
11 commonality under Rule 23(a)(2); (b) their claims, and the defenses thereto, are not typical of
12 the claims and defenses of the proposed class, as required by Rule 23(a)(3); (c) Plaintiffs are not
13 adequate representatives of the proposed class; and (d) Plaintiffs have failed to demonstrate
14 Defendants have acted or refused to act on grounds generally applicable to the class. Finally,
15 even if the Court were to certify some class, the Court should exercise its discretion not to certify
16 a nationwide class in this case.
17

18

II. FACTUAL AND PROCEDURAL BACKGROUND

19 A. PROCEDURAL HISTORY

20 On January 23, 2017, Plaintiffs filed a putative class action challenging the United States
21 Citizenship and Immigration Services’ (“USCIS”) Controlled Application Review and
22 Resolution Program (“CARRP”). ECF No. 1. Before serving that complaint, however, Plaintiffs
23 amended the complaint on February 1, 2017. Amended Complaint (“Amend. Compl.”), ECF No.
24 17. The Amended Complaint again challenged CARRP, but added challenges to sections 3(c)
25

26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

1

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 8 of 28

1 and 4 of Executive Order (“E.O.”) 13769, 82 Fed. Reg. 8977 (Feb. 1, 2017). Id. On February 9,

2 2017, Plaintiffs filed a Motion for Class Certification (ECF No. 26).

3

On March 6, 2017, the President issued E.O. 13780, which revoked E.O. 13769 effective

4 March 16, 2017. E.O. 13780, § 13, 82 Fed. Reg. 13209, 13218 (Mar. 9, 2017). On April 4, 2017,

5 Plaintiffs filed a Second Amended Complaint (“SAC”) (ECF No. 47), which added three new

6 named plaintiffs (Hanin Omar Bengezi, Mushtaq Abed Jihad, and Sajeel Manzoor), as well as

7 adding allegations concerning E.O. 13780. A few days later, on April 10, 2017, Plaintiffs filed

8 their First Amended Motion for Class Certification (“Pls.’ Amend. Class Cert. Mot.”) (ECF No.

9 49). In that motion, Plaintiffs ask the Court to certify two classes:

10 A national class of all persons currently and in the future (1) who have or will

11

have an application for naturalization pending before USCIS, (2) that is subject to

CARRP or a successor “extreme vetting” program, and (3) that has not been or

12

will not be adjudicated by USCIS within six months of having been filed;

13 and

14

A national class of all persons currently and in the future (1) who have or will have an application for adjustment of status pending before USCIS, (2) that is

15

subject to CARRP or a successor “extreme vetting” program, and (3) that has not

been or will not be adjudicated by USCIS within six months of having been filed.

16

Pls.’ Amend. Class Cert. Mot. at 3. Plaintiffs also asked the Court to appoint Messrs. Wagafe,

17 Jihad, and Manzoor as representatives for the first class, and Mr. Ostadhassan and Ms. Bengezi

18 as representatives for the second class.

19

B. THE NAMED PLAINTIFFS 20

21

1. ABDIQAFAR WAGAFE

22

Mr. Wagafe alleges he is a native and citizen of Somalia. SAC at ¶ 142. He was admitted

23 to the United States as a refugee on May 24, 2007, and applied to adjust his status to lawful

24 permanent resident on May 28, 2008. Id. at ¶¶ 144, 148. His adjustment-of-status application was

25 approved on November 3, 2008, retroactive to the date of his refugee admission. Id. at ¶ 149. On

26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

2

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 9 of 28

1 July 3, 2012, Mr. Wagafe applied to be naturalized as a United States citizen. He was

2 interviewed in connection with this naturalization application on October 29, 2012, but lacked a

3 sufficient command of English to understand and respond to the interviewing immigration

4 officer’s questions. Id. at ¶ 150. USCIS interviewed Mr. Wagafe a second time on January 3,

5 2013, at which time he failed the English language portions of the naturalization test. Id.

6 Accordingly, USCIS denied his naturalization application on January 9, 2013. Id.

7

Mr. Wagafe submitted a second naturalization application ten months later, on November

8 8, 2013. Id. at ¶ 152. USCIS interviewed him in connection with his second naturalization

9 application on February 22, 2017, and approved his application. Id. at ¶ 154. Mr. Wagafe took

10 the oath of citizenship as a U.S. citizen on March 2, 2017. Id.

11 2. MEHDI OSTADHASSAN
12

13

Mr. Ostadhassan alleges he is a national of Iran. SAC at ¶. 162. He was originally

14 admitted to the United States in 2009, on a student visa. Id. at ¶ 163. He married Ms. Baily

15 Bubach, a United States citizen, in January 2014. Id. at ¶ 164. In February 2014, Ms. Bubach,

16 submitted a Form I-130, Petition for Alien Relative (“Form I-130”), to USCIS on Mr.

17 Ostadhassan’s behalf, in order to have him classified as her “immediate relative.” Id. at ¶ 165. 18 Contemporaneously, Mr. Ostadhassan submitted a Form I-485, Application to Adjust Status or

19 Register Permanent Residence (“Form I-485”). Id.

20

USCIS interviewed Mr. Ostadhassan and his wife on his application and her petition on

21 September 24, 2015. Id. at ¶ 168. Subsequently, on December 4, 2015, USCIS sent Ms. Bubach

22 a Request for Evidence (“RFE”), seeking documentation that Mr. Ostadhassan’s previous 23 marriage had been terminated. Declaration of Leslie Tritten (“Tritten Decl.”), attached as Exhibit

24 (“Exh.”) A, at ¶ 5.d.

25

That same day, USCIS also sent an RFE to Mr. Ostadhassan asking him to provide a new

26 medical examination (Form I-693, Report of Medical Examination and Vaccination Record). Id.

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

3

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 10 of 28

1 at ¶ 5.e. Mr. Ostadhassan provided the requested information on January 4, 2016. Id. at ¶ 5.f. Ms.

2 Bubach responded to the RFE directed to her on January 11, 2016, but USCIS determined that

3 her response was insufficient. As a result, on May 3, 2016, USCIS issued a Notice of Intent to

4 Deny (“NOID”) the Form I-130 petition due to the lack of adequate evidence that Mr.

5 Ostadhassan’s prior marriage had been terminated. Id. at ¶ 5.g. Subsequent to issuance of the

6 NOID, Ms. Bubach provided the necessary divorce documentation on May 20, 2016. On March

7 24, 2017, USCIS approved Ms. Bubach’s I-130 petition. Id. at ¶ 5.i. On April 5, 2017, USCIS

8 issued Mr. Ostadhassan a Notice of Intent to Deny regarding his adjustment of status application.

9 Id. at ¶ 5.j. He was given until May 8, 2017, to respond to the NOID. Id.

10 3. HANIN OMAR BENGEZI
11

12

Ms. Bengezi alleges she is a national of Libya and a citizen of Canada. SAC at ¶ 176. She

13 entered the United States on a fiancée visa on December 21, 2014, and married her U.S. citizen

14 husband on January 23, 2015. Id. at ¶ 186. On February 5, 2015, Ms. Bengezi applied to adjust

15 her status to lawful permanent resident. Id. at ¶ 187. USCIS approved Ms. Bengezi’s I-485

16 application on May 9, 2017. Exh. B (USCIS Letter to Hanin Omar Bengezi dated May 9, 2017).

17

4. MUSHTAQ ABED JIHAD

18 Mr. Jihad alleges that he is a national of Iraq. SAC at ¶ 199. He entered the United States

19 in 2008 as a refugee. Id. at ¶ 203. In July 2013, he applied to naturalize. Id. at ¶ 206. On April

20 25, 2017, USCIS interviewed Mr. Jihad, pursuant to 8 U.S.C. § 1446, in connection with his

21 naturalization application. Exh. C (Form N-652). On May 9, 2017, USCIS approved Mr. Jihad’s

22 naturalization application and scheduled him to take the oath of citizenship on May 30, 2017.

23 Exh. D (Form N-445) at 1.

24 //

25 //

26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

4

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 11 of 28

1

5. SAJEEL MANZOOR

2

Mr. Manzoor alleges he is a Pakistani national. SAC at ¶ 220. He originally entered the

3 United States on a student visa in August 2001. Id. at ¶ 221. He alleges he later obtained an H-

4 1B visa in 2003, SAC at ¶ 222, and that his H-1B visa was temporarily administratively revoked

5 while he was investigated by Immigration and Customs Enforcement’s Compliance Enforcement

6 Unit. SAC at ¶ 224. Then, in 2007, Mr. Manzoor filed to adjust his status to lawful permanent

7 resident, in connection with a business petition on his behalf. SAC at ¶ 220. USCIS approved

8 Mr. Manzoor’s adjustment-of-status application in September 2008. Id. at ¶ 227. On November

9 30, 2015, Mr. Manzoor applied to naturalize. Id. at ¶ 228. On May 1, 2017, USCIS approved his

10 naturalization application, and he took the oath of citizenship that same day. Exh. E

11 (Naturalization Certificate).

12
III. THE LEGAL STANDARD FOR CLASS CERTIFICATION 13

14

“The class action is ‘an exception to the usual rule that litigation is conducted by and on

15 behalf of the individual named parties only.’” Comcast Corp. v. Behrend, 569 U.S. ---, 133 S. Ct.

16 1426, 1432 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). To fall within

17 the exception, Plaintiffs “must affirmatively demonstrate [their] compliance” with Federal Rule

18 of Civil Procedure 23. Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

19

Federal Rule of Civil Procedure 23(a) sets out four requirements for class certification.

20 Those requirements are:

21

(1) The class is so numerous that joinder is impractical (“numerosity”);

22

(2) There are questions of law or fact common to the class (“commonality”);

23

(3) The claims or defenses of the named plaintiffs are typical of claims or defenses of the

24 class (“typicality”); and

25

(4) The named plaintiffs will fairly and adequately protect the interests of the class

26 (“adequacy of representation”).

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

5

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 12 of 28

1 Fed. R. Civ. P. 23(a). The Supreme Court has repeatedly held that “[i]t is not the raising of

2 common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to

3 generate common answers apt to drive the resolution of the litigation” that makes a case

4 appropriate as a class action. Dukes, 564 U.S. at 350 (emphasis in original).

5

In addition to the requirements of Rule 23(a), a proposed class must also qualify under

6 Rule 23(b). Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). In this

7 case, Plaintiffs seek certification under subsection (b)(2) of Rule 23, which permits class

8 certification where “the party opposing the class has acted or refused to act on grounds that apply

9 generally to the class, so that final injunctive relief or corresponding declaratory relief is

10 appropriate respecting the class as a whole.” Id. “The key to the (b)(2) class is ‘the indivisible

11 nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such

12 that it can be enjoined or declared unlawful only as to all of the class members or as to none of

13 them.’” Dukes, 564 U.S. at 360.

14

The party seeking class certification bears the burden of demonstrating it has satisfied all

15 four Rule 23(a) prerequisites and that the class lawsuit falls within one of the three types of

16 actions permitted under Rule 23(b). Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 614 (1997);

17 Zinser, 253 F.3d at 1186. The failure to meet “any one of Rule 23’s requirements destroys the

18 alleged class action.” Rutledge v. Elec. Hose & Rubber Co., 511 F.2d 668, 673 (9th Cir. 1975).

19 The Supreme Court has held that “actual, not presumed, conformance with Rule 23(a) [is]

20 indispensable.” Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160 (1982).

21

Consequently, the Court must conduct a rigorous analysis to determine whether the

22 requirements of Rule 23 have been met; if the court is not fully satisfied, the class cannot be

23 certified. Falcon, 457 U.S. at 161. Even when all of Rule 23’s requirements are met, the district

24 court retains “broad discretion” to determine whether a class should be certified. Zinser, 253

25 F.3d at 1186.

26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

6

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 13 of 28

1

IV. ARGUMENT

2

Plaintiffs have failed to demonstrate they meet the requirements of commonality,

3 typicality, and adequacy of representation under subsection (a) of Rule 23. Nor have they

4 demonstrated that final injunctive relief, or corresponding declaratory relief, is appropriate

5 respecting the class as a whole, as required by subsection (b)(2) of Rule 23. As well, none of the

6 named Plaintiffs, nor any of the putative class members, have standing to challenge either

7 CARRP or the “extreme vetting” procedures concerning which they have failed to allege any

8 facts demonstrating they have been injured. Consequently, the Court should deny their motion

9 for class certification.

10 A. THE NAMED PLAINTIFFS, AND ALL MEMBERS OF THE PROPOSED CLASSES, LACK

11

STANDING TO CHALLENGE BOTH CARRP AND SECTION 5 OF EXECUTIVE ORDER 13780

12 As an initial matter, as explained in Defendant’s motion to dismiss (“Defs.’ MTD”) (ECF

13 No. 56), the named plaintiffs, and all proposed class members, lack standing to challenge (a)

14 CARRP, because they have disclaimed any interest in obtaining decisions on their pending

15 applications, and (b) “extreme vetting,” as they have failed to allege sufficient facts to establish

16 they have been injured in fact by the application to them of section 5 of E.O. 13780. See Lujan v.

17 Defenders of Wildlife, 504 U.S. 555, 560 (1992). Defs.’ MTD at 9-10, 13-14.

18 The Ninth Circuit explained, “[a] named plaintiff cannot represent a class alleging [ ]

19 claims that the named plaintiff does not have standing to raise.” Hawkins v. Comparet–Cassani,

20 251 F.3d 1230, 1238 (9th Cir.2001) (citation omitted). Nor may a class be certified that would

21 include members who lack standing. Mazza v. Am. Honda Motor Co., 666 F.3d 581, 594 (9th

22 Cir. 2012) (citing Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006)) (“[N]o class

23 may be certified that contains members lacking Article III standing.”). Here, none of the

24 Plaintiffs has alleged being subjected to any treatment under section 5 of E.O. 13780, much less

25 alleged sufficient facts to give rise to a redressable injury that this Court would have jurisdiction

26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

7

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 14 of 28

1 to resolve. And Plaintiffs have disclaimed any interest in obtaining an order directing USCIS to

2 render decisions on their pending applications. Consequently, because the two classes defined by

3 Plaintiffs, which they seek to have this Court certify, would contain class members over whose

4 claims this Court lacks jurisdiction, the Court should deny Plaintiffs’ motion to certify the two

5 proposed classes.

6 B. NAMED PLAINTIFFS CANNOT SATISFY THE COMMONALITY AND TYPICALITY

7

REQUIREMENTS FOR CLASS CERTIFICATION

8
To obtain class certification, Plaintiffs must demonstrate the proposed class members are 9
entitled to common relief. See Fed. R. Civ. P. 23(a)(2), (b)(2). As the Supreme Court has said, 10
“What matters to class certification . . . is not the raising of common ‘questions’—even in 11
droves—but, rather the capacity of a classwide proceeding to generate common answers apt to 12
drive the resolution of the litigation.” Dukes, 564 U.S. at 350 (emphasis in original). In other 13
words, the commonality element requires the court to consider whether the putative class 14
members’ claims “can be productively litigated at once.” Id. 15
This commonality requirement is likewise present in Rule 23(b)(2). For certification 16
under Rule 23(b)(2), Plaintiffs must show that “declaratory relief is available to the class as a 17
whole” and that the challenged conduct is “such that it can be enjoined or declared unlawful only 18
as to all of the class members or as to none of them.” Dukes, 564 U.S. at 361 (emphasis added). 19
Therefore, Plaintiffs have the burden of demonstrating that the factual differences within their 20
proposed classes are unlikely to bear on an individual’s entitlement to relief. See In re Google 21
AdWords Litig., No. 5:08-cv-3369, 2012 WL 28068 at *15-16 (N.D. Cal. Jan. 5, 2012) (“The 22
question of which advertisers among the hundreds of thousands of proposed class members are 23
even entitled to restitution would require individual inquiries.”). If the factual differences have 24
the likelihood of changing the outcome of the legal issue, then class certification may not be 25
appropriate. Cf. Yamasaki, 442 U.S. at 701. 26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

8

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 15 of 28

1

The typicality requirement ensures that the interests of the named plaintiffs align with the

2 interests of the class. Hanon v. Dataproducts, 976 F.2d 497, 508 (9th Cir. 1992). The test to be

3 applied “is whether other members have the same or similar injury, whether the action is based

4 on conduct which is not unique to the named plaintiffs, and whether other class members have

5 been injured by the same course of conduct.” Id. (quoting Schwartz v. Harp, 108 F.R.D. 279, 282

6 (C.D. Cal. 1985)). The typicality requirement is not met if the proposed class representatives are

7 subject to unique defenses. Id.

8

The Supreme Court has noted that Rule 23(a)’s requirements of commonality, typicality,

9 and adequacy of representation tend to overlap. See Dukes, 564 U.S. at 349 n.5 (noting that the

10 commonality, typicality, and adequacy of representation requirements “serve as guideposts for

11 determining . . . whether the named plaintiff’s claim and the class claims are so interrelated that

12 the interests of the class members will be fairly and adequately protected in their absence”).

13 1. NAMED PLAINTIFFS CANNOT ESTABLISH COMMONALITY BECAUSE IT IS

14

IMPOSSIBLE TO DETERMINE WHETHER ADJUDICATION OF ANY INDIVIDUAL’S

ADJUSTMENT-OF-STATUS OR NATURALIZATION APPLICATION HAS BEEN

15

UNREASONABLY DELAYED, OR DELAYED DUE TO CARRP OR “EXTREME

16

VETTING,” WITHOUT EVALUATING THE SPECIFIC FACTS PERTINENT TO THAT INDIVIDUAL

17

18

At the heart of this case is the allegation that USCIS has unreasonably delayed

19 adjudicating adjustment-of-status and naturalization applications. Plaintiffs, however, ignore the

20 variety of reasons that the adjudication of applications may be delayed, and instead allege that

21 CARRP is the cause of those unreasonable delays anytime a case being handled under CARRP is

22 pending longer than six months. But cases alleging that a government agency has unreasonably

23 delayed action require a fact-intensive, individualized inquiry into the causes of the delay in each

24 case to determine entitlement to relief. Based on Plaintiffs’ characterization of CARRP, that

25 would particularly be so in those cases where every case presents a unique set of facts

26 influencing whether inter-agency coordination and investigation is required prior to adjudicating

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

9

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 16 of 28

1 an application, and if so, the complexity and scope any such coordination and investigation. See

2 Islam v. Heinauer, 32 F. Supp. 3d 1063, 1071 (N.D. Cal. 2014).

3

The proposed classes here include adjustment-of-status and naturalization applicants

4 whose applications may be affected by countless scenarios impacting how long it takes to

5 adjudicate each application. Such “dissimilarities within the proposed class are what have the

6 potential to impede the generation of common answers.” Dukes, 131 S.Ct. at 2551 (citation

7 omitted).

8

Although Plaintiffs attempt to classify all adjudication delays as caused by CARRP, even

9 the named plaintiffs’ cases demonstrate the complexity and factual differences in any

10 adjudication, completely apart from CARRP. One of the named adjustment-of-status applicants,

11 Mr. Ostadhassan, provides an illustrative example. Although the instructions for the Form I-130

12 clearly instruct applicants to submit documentation that any prior marriages were legally

13 terminated, Mr. Ostadhassan’s wife took nearly six months to provide USCIS with evidence

14 about the termination of her husband’s previous marriage, which evidence was necessary to

15 adjudicate her Form I-130, and by extension Mr. Ostadhassan’s adjustment-of-status

16 application.1 Exhibit A at ¶ 5. In the course of those six months, Mr. Ostadhassan and his wife

17 failed adequately to respond to an RFE, which then required USCIS to issue a NOID before

18 finally receiving the required documents.

19

Similar issues to the one presented in Mr. Ostadhassan’s case are likely to occur in the

20 cases of other proposed class members because the adjudication of every adjustment-of-status

21 and naturalization application is highly factual and individualized. For example, if an

22 adjustment-of-status or naturalization applicant fails to submit required initial evidence, USCIS

23 “may request that the missing initial evidence be submitted within a specified period of time as

24

25 1 The existence of an approved Form I-130 is a pre-requisite to adjudication of a Form I-485, where the basis for adjustment of status is marriage to a U.S. citizen. 8 C.F.R. § 204.1(a)(1).
26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

10

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 17 of 28

1 determined by USCIS.” 8 C.F.R. § 103.2(b)(8)(ii). Even if the applicant submits the correct

2 initial evidence, USCIS may determine that some additional evidence is needed to make an

3 eligibility determination, and send an RFE to the applicant, with instructions that the applicant

4 respond in writing and submit additional evidence within a specified period of time, no longer

5 than 12 weeks. 8 C.F.R. § 103.2(b)(8)(iii)-(iv). Finally, USCIS may issue a NOID, notifying the

6 applicant of deficiencies in the filing, and providing a final opportunity to cure those

7 deficiencies. Id. Applicants may have up to 30 days to respond to a NOID. Id. A benefit

8 adjudication also necessarily takes longer if the applicant reschedules an interview or biometrics

9 appointment. 8 C.F.R. § 103.2(b)(9). Applicants may also make various filing errors, such as

10 submitting an application to the wrong office, which may delay the processing time.

11

Furthermore, Plaintiffs make no distinction in either their Second Amended Complaint or

12 their motion between adjustment-of-status applications that are family-based, employment-

13 based, based on a grant of asylum, based on admission as a refugee, based on an approved “T” or

14 “U” visa, or sought under special legislation such as the Haitian Refugee Immigrant Fairness

15 Act, the Indochinese Adjustment Act, or the Nicaraguan and Central American Relief Act. For

16 adjustment-of-status applications, the basis for adjustment or the circumstances of the individual

17 can have an impact on the path for adjudication. For instance, some adjustment-of-status

18 applicants may receive a waiver of the interview portion of the adjudication, while others are

19 generally not eligible for a waiver. 8 C.F.R. § 245.6; USCIS Policy Manual, vol. 7, ch. 5,

20 “Interview Guidelines” (available at https://www.uscis.gov/policymanual/HTML/PolicyManual-

21 Volume7-PartA-Chapter5.html) (last visited May 9, 2017).

22

Similarly, Plaintiffs take no account for the fact that naturalization applications and

23 adjustment-of-status applications are processed at approximately 90 locations across the country,

24 including both local Field Offices and five regional Service Centers, some of which are

25 specialized, and some of which have a higher volume of work than others. Both the claimed

26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

11

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 18 of 28

1 basis on which an applicant seeks to adjust status and the specific location at which it is

2 processed will affect the overall processing time. For example, (employment based) adjustment-

3 of-status applications currently pending before the California Service Center are subject to a

4 processing time of over two years, compared to under three months at the Helena Field Office in

5 Montana and nearly a year at the Christiansted Field Office in the U.S. Virgin Islands for

6 adjustment-of-status applications. USCIS Processing Time Information (available at

7 https://egov.uscis.gov/cris/processTimesDisplayInit.do) (last visited May 9, 2017).

8

Further, as Plaintiffs describe it, an application is included in CARRP only upon an initial

9 determination that the application raises a “national security concern,” which, Plaintiffs allege,

10 only “arises when an individual or organization has been determined to have an articulable link .

11 . . to prior, current, or planned involvement in, or association with, an activity, individual, or

12 organization described in sections 212(a)(3)(A), (B), or (F), or 237(a)(4)(A) or (B) of the

13 Immigration and Nationality Act.”2 USCIS, of course, has the responsibility to determine an

14 applicants’ eligibility for a given benefit, which includes an assessment of whether an applicant

15 raises a “national security concern” that would affect eligibility. 8 U.S.C. §§ 1182(a)(3)(A), (B),

16 (F), and 1227(a)(4)(A) or (B). For naturalization applicants, USCIS is required to thoroughly

17 investigate the background of every applicant for citizenship in order to determine whether that

18 applicant is eligible to be naturalized. See 8 U.S.C. § 1446(a), (b); see also 8 C.F.R. § 335.1.

19 These reviews must be completed before any benefit is approved. Consequently, any analysis of

20 the reasonableness of the delay in adjudicating any particular application would necessarily have

21 to include a determination of the extent to which the delay is attributable to CARRP, as opposed

22 to the many possible issues that may present in a particular case and lead to slower processing

23 time (such as, lack of evidence that a prior marriage had been terminated).

24

25 2 These sections of the INA establish grounds of inadmissibility and removability for terrorism and national security related reasons.
26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

12

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 19 of 28

1

Since there are many possible issues that may be the ultimate reason for a delay, even in a

2 case subject to CARRP, many of the proposed class members would not have standing to

3 challenge CARRP because they would be unable to show that the policy had harmed them, either

4 because CARRP had no effect on the pace of adjudication or because they preferred a pending

5 application to a denial. And, of course, “no class may be certified that contains members lacking

6 Article III standing.” Mazza, 666 F.3d at 594. Nevertheless, the classes Plaintiffs ask this Court

7 to certify almost certainly include within them persons who lack standing. Because the proposed

8 classes lack commonality even on the question of standing, the Court should deny Plaintiffs’

9 motion for that reason alone.3

10

Further, because of the need for individualized determinations of both the reasonableness

11 of any given delay and the extent to which CARRP has contributed to that delay, a classwide

12 proceeding would not generate “common answers apt to drive the resolution of the litigation” in

13 this case. Dukes, 564 U.S. at 350 (emphasis in original). This fact is, perhaps, most obvious

14 when one considers that it would be both unjust and unwise to “[o]rder Defendants to adjudicate

15 the petitions, applications or requests of Plaintiffs and members of the proposed classes,” SAC at

16 Prayer for Relief ¶ 5, within an arbitrary amount of time, without a particularized determination

17 of (a) the reasons why a particular application has not been adjudicated, whether related to

18 CARRP or not, (b) the need for additional investigation and consultation in each individual case

19 to determine whether the applicant is eligible for or deserving of the benefit sought, and (c)

20

21

22

23 3 The Court is bound to the class definitions provided in the complaint and, absent an amended
24 complaint, will not consider certification beyond it. Costelo v. Chertoff, 258 F.R.D. 600, 604–05 (C.D. Cal. 2009).
25

26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

13

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 20 of 28

1 whether the length of time to adjudicate the application is reasonable, given (a) and (b).4 See

2 Metcalf v. Edelman, 64 F.R.D. 407, 409 (N.D. Ill. 1974). Consequently, Plaintiffs cannot

3 establish the requisite commonality.5 See, e.g., Nguyen Da Yen v. Kissinger, 70 F.R.D. 656, 663-

4 64 (N.D. Cal. 1976) (commonality cannot be established where wide factual variation requires

5 individual adjudications of each class member’s claims); Metcalf, 64 F.R.D. at 409-10 (finding

6 no issue of fact common to the class members where varying circumstances surrounded the

7 denial of the individual shelter exceptions). Furthermore, because the legality of the pace of

8 adjudication turns on individualized reasons—some of which have nothing to do with CARRP—

9 Defendants’ conduct cannot “be enjoined or declared unlawful only as to all of the class

10 members or as to none of them.” Dukes, 564 U.S. at 360 (internal quotation omitted).

11 2. NAMED PLAINTIFFS’ CLAIMS ARE NOT TYPICAL OF THE CLAIMS OF CLASS

12

MEMBERS GENERALLY, AND THEY ARE NOT ADEQUATE CLASS REPRESENTATIVES

13 While the commonality analysis looks at the relationship among the class members, the
14 typicality analysis looks at the relationship between the proposed class representative and the rest
15 of the class. NEWBERG ON CLASS ACTIONS § 3:26 (5th ed.). A named plaintiff's claim meets the
16 typicality requirement if it arises from the same event or course of conduct that gives rise to
17 claims of other class members and the claims are based on the same legal theory. The test
18 generally is whether other members have the same or similar injury, whether the action is based
19 on conduct which is not unique to the named plaintiffs, and whether other class members have
20

21

22

23 4 Putting Plaintiffs concerns about CARRP to one side, Defendants presume Plaintiffs are not contending that USCIS should ignore terrorism or national security concerns in adjudicating
24 adjustment-of-status and naturalization applications.

25 5 The reasonableness of the pace of adjudication could still be contested on an individual basis under the APA. See 5 U.S.C. §§ 555(b) & 706(1).
26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

14

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 21 of 28

1 been injured by the same course of conduct. Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal.

2 1985).

3

Here, the named plaintiffs’ claims are not typical of the claims of the proposed classes

4 generally. First, the named plaintiffs allege they are fully eligible for the immigration benefits

5 they seek. The same cannot be said of all persons in the classes they seek to represent. As

6 Plaintiffs allege, CARRP only applies when USCIS has an “articulable link” to a ground of

7 inadmissibility or removability under INA sections 212(a)(3)(A), (B), or (F), or 237(a)(4)(A) or

8 (B).6 While Plaintiffs allege CARRP unlawfully casts the net too widely in its definition of a

9 national security concern, it cannot be doubted that within the proposed classes, there are many

10 who are (or at least appear to be prior to investigation) actually inadmissible or removable under

11 the INA, and therefore not, in fact, eligible for the immigration benefits they seek.7

12

Consequently, the Court should conclude that the named plaintiffs’ claims are not typical

13 of the class claims generally, and deny their class certification motion for that reason.

14 C. THE NAMED PLAINTIFFS ARE NOT ADEQUATE CLASS REPRESENTATIVES
15

16

The named plaintiffs are not adequate class representatives. The adequacy requirement

17 serves to protect the due process rights of absent class members who will be bound by the

18 judgment. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998) (internal quotation

19

20 6 These sections of the INA are codified at 8 U.S.C. §§ 1182 and 1227, respectively.
21 7 Further, Mr. Ostadhassan’s claims in particular are atypical of the class he seeks to represent 22 (disqualifying him as an adequate representative of the class). As noted above, some significant
period of the delay in his case is attributable to his and his wife’s failure to provide USCIS with 23 adequate evidence at various stages of his adjudication process—which is in no way attributable
to CARRP. See Navellier v. Sletten, 262 F.3d 923, 941 (9th Cir. 2001) (that named plaintiff “was 24 neither a typical nor adequate class representative and was subject to unique defenses” was 25 “independently sufficient to support the denial of class certification”).

26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

15

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 22 of 28

1 marks omitted). A determination of legal adequacy is based on two inquiries: (1) do the named

2 plaintiffs and their counsel have any conflicts of interest with other class members; and (2) will

3 the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class. Id.

4 at 1021. See also Denney, 443 F.3d at 268 (“proposed class representative must have an interest

5 in vigorously pursuing the claims of the class, and must have no interests antagonistic to the

6 interests of other class members.”).

7

In bringing this lawsuit, the named plaintiffs ask the Court to order USCIS to render a

8 final decision on their immigration benefit applications. SAC at Prayer for Relief, ¶ 5. Many in

9 the proposed classes, however, aware their applications have been pending for a time without

10 decision, are apparently content to allow the USCIS adjudication process to run its course, not

11 having brought suits in their own names. Nor is there reason to doubt that some prospective class

12 members might prefer to allow their applications to remain pending, continuing to live and work

13 in the United States in their current status, rather than risk having USCIS determine they are

14 inadmissible or removable and be placed in removal proceedings. Plaintiffs have presented no

15 evidence, or reason to think, that their own calculations of the risks and benefits of seeking to

16 compel decisions on their benefit applications are typical of the proposed class members at

17 large.8

18

Further, no named plaintiff is an adequate representative of the proposed classes, as they

19 all claim to be fully eligible for the benefits they seek. If true, then their interests are at odds with

20 those proposed class members who are, in fact, ineligible for benefits on terrorism and national

21

22 8 Despite the fact they ask the Court to order Defendants to adjudicate their applications in the

23

Second Amended Complaint, SAC at Prayer for Relief, ¶ 5, in their motion for class certification, the named plaintiffs assert they “do not request that this Court adjudicate their

24 individual immigration applications.” Pls.’ Amend. Class Cert. Mot. (ECF No. 49) at 12. In that case, the named plaintiffs’ claims are not typical of those class members who do desire to have
25 their applications adjudicated, and the named plaintiffs are still not adequate class

representatives. 26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

16

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 23 of 28

1 security related grounds, or whose applications reasonably merit further investigation and

2 potential coordination with law enforcement and intelligence agencies in order to permit USCIS

3 to make an informed decision.

4

Additionally, the named plaintiffs are not adequate class representatives because the time

5 they have been waiting for decisions on their applications is not representative of class members

6 writ large. Named plaintiffs allege they have been waiting between approximately one and a half

7 and four years for decisions on their applications, yet they seek to represent classes that include

8 persons whose immigration benefit applications have been pending for as little as six months, as

9 well as much longer than four years. Given that the reasonableness of any given adjudication

10 delay is a function of both the reasons for the delay and the length of the delay, named Plaintiffs’

11 personal interests in receiving decisions on their applications after between one and a half and

12 four years is potentially at odds with applicants who have experienced much shorter and much

13 longer waits. Indeed, many courts have held that delays of four years or less are not

14 unreasonable. Islam, 32 F. Supp. 3d at 1071 (collecting cases).

15

Plaintiffs have chosen six months as the time beyond which the Court should presume

16 adjudication to be unreasonably delayed in certifying the proposed classes because, they allege,

17 “Congress has directed USCIS to process immigration benefit applications, including for

18 adjustment of status, within 180 days.” SAC at ¶ 51 (citing 8 U.S.C. § 1571(b)). Section 1571,

19 however, merely expresses the “sense of Congress.” Such “‘sense of the Congress’ provisions

20 are precatory provisions, which do not in themselves create individual rights or, for that matter,

21 any enforceable law.” Orkin v. Taylor, 487 F.3d 734, 740 (9th Cir. 2007). That Congress

22 recognized that the time reasonably necessary to conduct an appropriate background

23 investigation would vary from case to case is reinforced by the fact Congress did not include any

24 mandatory deadline for the completion of such background investigations in the INA.

25 Consequently, the Court cannot conclude, based on section 1571(b), that any delay beyond six

26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

17

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 24 of 28

1 months is presumptively unreasonable. Rather, the Court would have to make such

2 determinations on a case-by-case basis. And it is apparent that individuals who have been

3 waiting between one and a half and four years for decisions on their immigration benefit

4 applications are not similarly situated to those who have been waiting only six months, or those

5 who have been waiting even longer than four years. Indeed, average processing time for I-485

6 applications filed at the St. Paul Field Office is currently over a year, and the average processing

7 time at the Seattle Field Office is currently approximately ten months for I-485 applications and

8 nine months for N-400 naturalization applications. See USCIS Processing Time Information

9 (available at https://egov.uscis.gov/cris/processingTimesDisplay.do (last visited May 5, 2017).9

10

Further, as discussed above, the facts contributing to delay in Mr. Ostadhassan’s case

11 make him an unsuitable representative of the class of all adjustment-of-status applicants subject

12 to CARRP who have not received a decision after six months. Likewise, Messrs. Wagafe,

13 Manzoor, and Jihad are not adequate representatives of the class they seek to represent. All three

14 have now had their naturalization applications approved, and Messrs. Wagafe and Manzoor have

15 been naturalized. Their individual claims are, therefore, moot. Likewise, Ms. Bengezi’s

16 adjustment-of-status application has been approved, mooting her individual claims. While

17 Plaintiffs have argued (in their Amended Motion for Class Certification, ECF No. 49, at 19) that

18 the mootness of Mr. Wagafe’s individual claims do not moot the entire action, the fact that his

19 own claims (and those of Messrs. Manzoor and Jihad, and Ms. Bengezi) are moot certainly is

20 relevant to whether he (or Messrs. Manzoor and Jihad, and Ms. Bengezi) would be an adequate

21 class representative, with incentive to vigorously litigate the claims of the absent class members.

22

23 9 The processing times that USCIS posts do not include in the calculations cases in which an

24 RFE or NOID has been issued. Thus, actual processing times for cases subject to unique delays may be longer than that publicly posted. USCIS Ombudsman, ANNUAL REPORT 2016 (Jun. 29,
25 2016), at 32, (available at https://www.dhs.gov/sites/default/files/publications/CISOMB

%20Annual%20Report%202016.pdf) (last visited May 5, 2017). 26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

18

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 25 of 28

1

D. THE COURT SHOULD NOT CERTIFY A NATIONWIDE CLASS

2

Finally, as noted above, even where the requirements of Rule 23 are met, the certification

3 of a class action is ultimately within the Court’s discretion. In this case, the Court should

4 exercise its discretion not to certify a nation-wide class, but rather limit any class to those within

5 the Court’s jurisdiction.

6 As the United States Supreme Court has observed,

7

[N]ationwide class actions may have a detrimental effect by foreclosing

8

adjudication by a number of different courts and judges . . . . It often will be

9

preferable to allow several courts to pass on a given class claim in order to gain

the benefit of adjudication by different courts in different factual contexts. For

10

this reason, a federal court when asked to certify a nationwide class should take

care to ensure that nationwide relief is indeed appropriate in the case before it,

11

and that certification of such a class would not improperly interfere with the

12

litigation of similar issues in other judicial districts.

Califano v. Yamasaki, 442 U.S. 682, 702 (1979). 13

Numerous individual plaintiffs have brought, and continue to bring, lawsuits in courts 14

throughout the country challenging delays in the processing of their individual immigration 15

benefit applications, and raising challenges in the context of their particular cases to the use of 16

CARRP. As a matter of comity, and in recognition of the benefit of allowing different courts in 17

different jurisdictions to adjudicate these claims in a variety of factual contexts, this Court should 18
decline to certify a nationwide class.10 Further, based on the differences in the processing times 19

20

21 10 In arguing for the appropriateness of a nationwide class here, Plaintiffs cite Article I, § 8, cl. 3 of the U.S. Constitution (Uniform Rule of Naturalization clause). Plaintiffs’ reliance on this

22 provision is misplaced. This clause is a grant of power to Congress, not a restriction on the

Executive’s execution of the laws. The purpose of the Uniform Rule of Naturalization clause was 23 to ensure the national Congress had the authority to make naturalization rules for the entire

24

country, remedying the patchwork of individual state laws that had existed under the Articles of Confederation. See Korab v. Fink, 797 F.3d 572, 580-81 (9th Cir. 2014) (citing The Federalist,

25 No. 42 (James Madison)). The Clause in no way speaks to the propriety of permitting various

26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

19

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 26 of 28

1 of adjustment-of-status and naturalization applications around the country, and different factors
2 which may affect processing times in different locations, nationwide certification would be
3 particularly inappropriate in this case.
4 V. CONCLUSION
5 For the foregoing reasons, Plaintiffs do not meet the criteria for class certification under
6 Rule 23, and Defendants respectfully submit that this Court should deny Plaintiffs’ motion for
7 class certification.
8

9 DATED this 10th day of May, 2017. 10
11

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General

12

WILLIAM C. PEACHEY

13

Director, District Court Section

Office of Immigration Litigation

14

GISELA A. WESTWATER

15

Assistant Director, District Court Section

16

Office of Immigration Litigation

17

TIMOTHY M. BELSAN

Deputy Chief, National Security &

18

Affirmative Litigation Unit,

District Court Section

19

Office of Immigration Litigation

20 /s/ Edward S. White

21

EDWARD S. WHITE, N.Y. Bar #2088979

AARON R. PETTY

22

National Security Counsel/Trial Attorneys

23

24 courts, within their respective areas of jurisdiction, to reach varying judgments about the Executive’s execution of a uniform national law, and a nationwide class is no more necessary or
25 appropriate here than in any case alleging the Executive is violating a law applicable throughout

the country. 26

Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

20

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 27 of 28

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Defendants’ Response to Plaintiffs’

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First Amended Motion for Class Certification

2:17-cv-00094-JCC

National Security & Affirmative Litigation Unit District Court Section Office of Immigration Litigation Civil Division United States Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0868 Telephone: (202) 616-9131 Facsimile: (202) 305-7000 Email: edward.s.white@usdoj.gov
aaron.r.petty@usdoj.gov
Attorneys for Defendants

OFFICE OF IMMIGRATION LITIGATION

DISTRICT COURT SECTION

CIVIL DIV., U.S. DEP’T OF JUSTICE

P.O. Box 868, Ben Franklin Station

Washington, D.C. 20044-0860

21

(202) 616-9131

Case 2:17-cv-00094-RAJ Document 60 Filed 05/10/17 Page 28 of 28

1

CERTIFICATE OF SERVICE

2

The undersigned hereby certifies that he is a trial attorney in the Civil Division of the

3 United States Department of Justice and is a person of such age and discretion as to be

4 competent to serve papers. It is further certified that on May 10, 2017, I electronically filed the

5 foregoing Defendants’ Response to Plaintiffs’ First Amended Motion for Class Certification with

6 the Clerk of the Court using the CM/ECF system, which will send notification of such filing to

7 all counsel of record herein.

8

9 Dated May 10, 2017. 10 11 12 13 14 15 16 17 18

/s/ Edward S. White EDWARD S. WHITE, NY Bar #2088979 Counsel for National Security/Trial Attorney National Security & Affirmative Litigation Unit District Court Section Office of Immigration Litigation Civil Division United States Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0868 Telephone: (202) 616-9131 Facsimile: (202) 305-7000 Email: edward.s.white@usdoj.gov

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Defendants’ Response to Plaintiffs’

27

First Amended Motion for Class Certification

2:17-cv-00094-JCC

22

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0860 (202) 616-9131

 
 Case 2:17-cv-00094-RAJ Document 61 Filed 05/12/17 Page 1 of 15

1

The Honorable John C. Coughenour

2

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8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

11 ABDIQAFAR WAGAFE, et al.,
12 Plaintiffs,
13 v.
14
15 UNITED STATES CITIZENSHIP AND 16 IMMIGRATION SERVICES, et al.,
Defendants. 17

No. 2:17-cv-00094-JCC
REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT
NOTED ON MOTION CALENDAR: May 12, 2017

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REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS - 1 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 61 Filed 05/12/17 Page 2 of 15

1

INTRODUCTION

2

On April 18, 2017, Defendants moved the Court to dismiss Plaintiffs’ Second Amended

3 Complaint in its entirety under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No.

4 56. Plaintiffs opposed the motion and filed their opposition on May 8, 2017. ECF No. 58. In

5 essence, Plaintiffs (a) claim that they are or will be harmed by an Executive Order that does not

6 direct USCIS to suspend adjudication of benefit applications (as evidenced by both the plain

7 language of the Order and the actual adjudication of Plaintiffs’ applications); (b) seek to maintain

8 a claim contingent on the speculative possibility of future injuries; and (c) attempt to recast

9 decade-old procedures implemented in the interest of national security as arbitrary substantive

10 rules. None of Plaintiffs’ responses are meritorious; their claims either fail to identify a live case

11 or controversy or fail on their own terms as a matter of law. Defendants’ motion should be

12 granted.

13

ARGUMENT

14

I. Either the Court Lacks Jurisdiction or Class Treatment Is Inappropriate

15

To begin, the Court lacks jurisdiction over this matter in its entirety. Plaintiffs contend

16 that they have “never suggested” they have no personal interest in adjudication of their

17 applications. ECF No. 58 at 6. Yet in their Motion for Class Certification, Plaintiffs stated,

18 “Plaintiffs do not request that this Court adjudicate their individual immigration applications.”

19 ECF No. 26 at 9. Plaintiffs went on to explain that they did not seek an order compelling

20 Defendants to adjudicate their applications within any particular time, either; rather, they sought

21 only a declaration that CARRP was unlawful and an order enjoining Defendants from applying

22 CARRP to their applications, without any regard to the actual length of the adjudication process.

23 See ECF No. 58 at 6.

24

Plaintiffs now suggest that they want both adjudication of (what they deem) long-pending

25 applications, and a declaration that CARRP is unlawful. Id. But as Plaintiffs acknowledge, a

26 declaration that CARRP is unlawful untethered to its effect, if any, on individual cases presents

27 the exact sort of “abstract harm” that the Ninth Circuit and the Supreme Court have cautioned are

28 insufficient to establish jurisdiction. Lance v. Coffman, 549 U.S. 437, 441-42 (2007) (per

REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS - 2 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 61 Filed 05/12/17 Page 3 of 15

1 curiam) (“The only injury [they] allege is that the law . . . has not been followed”); Allen v.

2 Wright, 468 U.S. 737, 754 (1984) (“This Court has repeatedly held that an asserted right to have

3 the Government act in accordance with law is not sufficient, standing alone, to confer

4 jurisdiction on a federal court”), abrogated on other grounds by Lexmart Int’l v. Static Control

5 Components, Inc., 134 S. Ct. 1377 (2014); Novak v. United States, 795 F.3d 1012, 1018 (9th Cir.

6 2015). The Court has no jurisdiction to evaluate the legality of CARRP absent a plausible

7 allegation that CARRP is the proximate cause of unlawful delay. Plaintiffs cannot make that

8 showing because it would require facts suggesting both that the processing time for all of

9 Plaintiffs’ applications is unreasonable, and that CARRP, as opposed to any other reason, is the

10 cause. They have not and cannot plausibly make such an allegation as to each named Plaintiff,

11 much less every class member.1 Mazza v. Am. Honda Motor Co., 666 F.3d 581, 594 (9th Cir.

12 2012) (citing Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir.2006)) (“[N]o class may

13 be certified that contains members lacking Article III standing.”).

14

On the other hand, if Plaintiffs do seek to challenge CARRP as applied to particular

15 cases, the multitude of factors playing into the pace of adjudication would have to be considered

16 on the merits. The need to request additional evidence from applicants, sometimes more than

17 once; the need for additional investigation; the need to coordinate with other agencies; the

18 ordinary pace of adjudication of the benefit in question at one of dozens of offices; and simple

19 bureaucratic delay, among others, would all have to be evaluated to determine whether

20 adjudication of an application subject to CARRP has been unlawfully delayed, and that CARRP

21 is the cause of that delay. The need for individualized consideration of the reasons for delay –

22 which might or might not be attributable to CARRP, or attributable in different degrees – would

23 preclude class treatment. Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (“[i]t is not

24 the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide

25 proceeding to generate common answers apt to drive the resolution of the litigation” that makes

26 a case appropriate as a class action) (emphasis in original). In short, Plaintiffs cannot have it

27
1 For example, Mr. Ostadhassan’s wife took nearly six months to provide USCIS with evidence about the
28 termination of her husband’s previous marriage, which evidence was necessary to adjudicate her Form I-130, and by
extension Mr. Ostadhassan’s adjustment-of-status application

REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS - 3 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 61 Filed 05/12/17 Page 4 of 15

1 both ways: either they are mounting a facial attack on CARRP, over which the Court has no

2 jurisdiction for lack of across-the-board concrete particularized harm, or they are mounting as as-

3 applied challenge to CARRP for which class treatment is inappropriate because Plaintiffs cannot

4 meet the requirements of commonality under Rule 23(a), or the additional requirements of Rule

5 23(b)(2).

6

II. Plaintiffs Have No Colorable Claim that Adjudication of Applications Is

Currently or Will Imminently Be Suspended 7

Plaintiffs next claim that they “have suffered an injury-in-fact with respect to their first,

8

second, third, fifth, and sixth claims to the extent that they challenge the suspension of

9

adjudication of adjustment and naturalization applications.” ECF No. 58 at 7. They make this

10

claim while simultaneously acknowledging that Mr. Wagafe has been naturalized, id. at 5, Mr.

11

Ostadhassan has been issued a Notice of Intent to Deny, id., Mr. Manzoor has been naturalized,

12

ECF No. 59 at 1, Mr. Jihad is scheduled for an interview on May 22, 2017, id., and Ms. Bengezi

13 has been interviewed and is awaiting a final decision,2 id. Plaintiffs’ own evidence demonstrates

14

that processing of Plaintiffs’ applications is not currently suspended. Despite this, Plaintiffs

15

assert that their first, second, third, fifth, and sixth claims – all challenging the purported

16

suspension of processing benefit application – are not moot, and characterize Defendants’

17

argument as “based entirely on a single memorandum” issued by the former acting Director of

18

U.S. Citizenship and Immigration Services. ECF No. 58 at 8. This line of reasoning is

19

unsupportable.

20

To begin, as Plaintiffs recognize, the Scialabba Memorandum (see ECF No. 56-1, Exhibit

21

A), construed Executive Order 13769. Subsequently, Executive Order 13780 rescinded

22

Executive Order 13769 in its entirety. See 82 Fed. Reg. 13209, 13218 (Mar. 6, 2017). Nothing

23

in Executive Order 13780 directs the suspension of processing of immigration benefit

24

applications filed by or on behalf of any individuals present in the United States. Section 3 of

25

Executive Order 13780 addresses the “Scope and Implementation of Suspension” which applies

26

27
2 Mr. Jihad’s application was subsequently approved and he is scheduled to take the Oath of Allegiance on May 30,
28 2017. See ECF No. 60-4. Ms. Bengezi’s application for adjustment of status was approved on May 9, 2017. See
ECF No. 60-2.

REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS - 4 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 61 Filed 05/12/17 Page 5 of 15

1 only to entry of certain foreign nationals outside the United States on the effective date of the

2 order. To the extent that any doubt about Defendants’ position remains, Defendants now clarify

3 that nothing in Executive Order 13780, including but not limited to Section 2(c), directs or

4 authorizes the suspension of processing of immigration benefit applications filed by or on behalf

5 of members of Plaintiffs’ proposed “Muslim Ban class” on a class-wide basis. See ECF No. 47,

6 ¶ 237.

7

Relying on the Scialabba Memorandum, rather than the now-in-force Executive Order

8 13780, Plaintiffs contend that the “voluntary cessation” exception to mootness saves their claims

9 because the Scialabba Memorandum was not a “permanent change.” See ECF No. 58 at 9-10.

10 That is not the relevant question, and Plaintiffs’ analysis is flawed in any event. Executive Order

11 13769 and the Scialabba Memorandum, which implemented it, have both been superseded by

12 Executive Order 13780. An Executive Order is a “permanent change” under White v. Lee, 227

13 F.3d 1214, 1243 (9th Cir. 2000).

14

The new Executive Order implements a congressional grant of authority and changes the

15 governing standards in a way that renders the case moot. See Silver Dollar Graving Ass’n v.

16 U.S. Fish & Wildlife Serv., No. 07-35612, 2009 WL 166924, *2 (9th Cir. Jan. 13, 2009) (noting

17 in some circumstances Executive Orders explicitly promulgated pursuant to constitutional or

18 statutory authority carry the force of law). Changes like this one are, absent evidence to the

19 contrary, “permanent” changes. Cf. Green v. Mansour, 474 U.S. 64, 73 (1985) (holding

20 plaintiff’s claim was moot where Congress amended the relevant statute clarifying, and thereby

21 resolving, the controversy that has arisen due to ambiguities in the original statute); Chem. Prod.

22 & Distribs. v. Helliker, 463 F.3d 871, 876 (9th Cir. 2006) (“[A] case is moot when the

23 challenged statute is repealed, expires or is amended to remove the challenged language.”); In re

24 Investigation Pursuant to the Comprehensive Envt’l Response, 820 F.2d 308, 311-12 (9th Cir.

25 1987) (dismissing case because Congress enacted substantial amendments to the relevant

26 statutory provisions, and reasoning that “[w]here new legislation represents a complete

27 substitution for the last as it existed . . . arguments based upon the superseded part are moot”).

28

REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS - 5 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 61 Filed 05/12/17 Page 6 of 15

1 Because Executive Order 137803 does not suspend adjudication of benefit applications by

2 members of any of Plaintiffs’ proposed classes, Plaintiffs’ first, second, third, fifth, and sixth

3 claims for relief, all of which are premised on the suspension of benefit application processing,

4 must fail.

5

Furthermore, Plaintiffs’ allegation that Defendants “‘will interpret the Second EO to

6 authorize the suspension’ of immigration applications involving Plaintiffs and the Muslim Ban

7 Class,” ECF No. 58 at 10 (emphasis in original), is both contingent on future events and lacks

8 plausible factual support. Plaintiffs have identified no basis in the text of Executive Order 13780

9 itself that would permit such an interpretation, nor does recent experience with Plaintiffs

10 themselves support it. Plaintiffs, and the class they seek to represent, have not suffered an

11 injury-in-fact because Executive Order 13780 does not suspend adjudication of their applications

12 and does not provide a basis for any future class-wide suspension. In the absence of any current

13 injury-in-fact or imminent threat of injury concerning the purported suspension of processing

14 benefit applications, the Court should dismiss the first, second, third, fifth, and sixth claims for

15 relief for lack of jurisdiction.

16

III. The Uniform Rule of Naturalization Clause Provides Plaintiffs No Cause of

Action 17

Plaintiffs’ Tenth Claim for Relief fails because there is no private right of action under

18

Article I, section 8, clause 4 of the Constitution (“Uniform Rule” clause) and, even assuming

19

one, Plaintiffs have failed to plead facts demonstrating a plausible entitlement to relief. See

20

Flores v. City of Baldwin Park, No. 14-cv-9290, 2015 WL 756877, *3 (C.D. Cal. Feb. 23, 2015)

21

(“this constitutional clause does not create a cause of action”). Rather, Congress’s power to

22

create “a uniform Rule of Naturalization” speaks to the relative powers of Congress vis-à-vis the

23

States, not private individuals. See Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th Cir.

24

2004) (citing The Federalist No. 32 (Alexander Hamilton)). As the Ninth Circuit recently

25

explained, “[t]he uniformity requirement was a response to tensions that arose from the

26

27 3 Moreover, even if the Scialabba Memorandum and Executive Order 13769 were still in force, the Scialabba
Memorandum was not “by its terms [] not permanent,” ECF No. 58 at 9 (quoting Friends of the Earth, Inc. v.
28 Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (1982)). Nothing internal to the memorandum indicated that it was
intended to sunset at any time.

REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS - 6 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 61 Filed 05/12/17 Page 7 of 15

1 intersection of the Articles of Confederations Comity Clause and the states’ divergent

2 naturalization laws, which alleged an alien ineligible for citizenship in one state to move to

3 another state, obtain citizenship, and return to the original state as a citizen entitled to all of its

4 privileges and immunities.” Korab v. Fink, 797 F.3d 572, 580-81 (9th Cir. 2015) (citing

5 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 (1824)). As such, it is hardly surprising that, as

6 Plaintiffs observe, some litigants have challenged state or municipal laws criminalizing conduct

7 that would not be criminal in other jurisdictions, contending that the immigration consequences

8 of conduct proscribed in some, but not all, locales, violates the constitutionally-required

9 uniformity. But the clause simply reflects that in joining the Union, the States surrendered their

10 sovereign power to naturalize. See In re Bleimeister, 251 B.R. 383, 390 (Bankr. D. Ariz. 2000)

11 (“States no more retained sovereign powers over bankruptcy laws than they did over

12 naturalization”).

13

Implied causes of action are disfavored, Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009), and

14 the decision to create one is “‘better left to legislative judgment in the great majority of cases,’”

15 Mirmehdi v. United States, 689 F.3d 975, 981 (9th Cir. 2012) (quoting Sosa v. Alvarez-Machain,

16 542 U.S. 692, 727 (2004)). Plaintiffs have identified no authority suggesting that a constitutional

17 provision addressing the powers of the federal government relative to state governments was

18 intended to provide them a private right of action. Certainly, they have shown nothing to

19 overcome the presumption against implying constitutional causes of action, as the Supreme

20 Court and Ninth Circuit have recently made clear.

21

Moreover, even assuming a cause of action, CARRP would not constitute unconstitutional

22 disuniformity. For historically related reasons, Article I, section 8, clause 4 of the Constitution

23 empowers the federal government to establish both “an uniform Rule of Naturalization and

24 uniform Laws on the subject of Bankruptcies,”4 U.S. Const. Art. I, § 8, cl. 4. In Hanover Nat’l

25 Bank v. Moyses, 186 U.S. 181, 190 (1902), the Supreme Court upheld the incorporation of

26

27 4 With respect to both subjects, stringent states laws were circumvented by relocating to states with more lenient
laws. The states with more stringent laws were then legally required to recognize the official acts of the more
28 lenient states as valid. Ry. Labor Execs. Ass’n v. Gibbons, 455 U.S. 457, 471-72 (1982) (bankruptcy); Korab, 797
F.3d 580-81 (naturalization).

REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS - 7 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 61 Filed 05/12/17 Page 8 of 15

1 various state laws into the Bankruptcy Code holding that incorporation of state law was “in the

2 constitutional sense, uniform throughout the United States” in general operation, despite the

3 different particulars in different states. Id. The procedural differences Plaintiffs allege CARRP

4 requires for individual applicants fall far short of the substantive differences in incorporating

5 divergent state laws, which the Supreme Court held is itself permissible. Because the “basic

6 operation” is uniform throughout the United States, see Stellwagen v. Clum, 245 U.S. 605, 613

7 (1918); Korab, 797 F.2d at 581-82, CARRP is constitutionally sound under the Uniform Rule

8 clause. Just as the Supreme Court has held that the Uniform Rule clause “is not a straightjacket

9 that forbids Congress to distinguish among classes of debtors,” Ry. Labor Execs. Ass’n, 455 U.S.

10 at 469, so too is the Executive authorized to distinguish among classes of aliens in processing

11 requests for benefits. Cf. Moyses, 186 U.S. at 188 (“The laws passed on the subject must . . . be

12 uniform throughout the United States, but that uniformity is geographical, and not personal”);

13 Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1292 (“the government’s different treatment of groups

14 of aliens must be upheld unless it is ‘wholly irrational’”). Because there is no private cause of

15 action under the Uniform Rule clause, and, if there is, such claim would fail because plaintiffs

16 failed to demonstrate a plausible claim to relief as a matter of law, the Court should dismiss

17 Plaintiffs’ tenth claim for relief.

18

IV. Plaintiffs Have Failed to State a Claim Concerning New Vetting Procedures

19

Plaintiffs submit that their complaint “included allegations about additional or future

20 ‘extreme vetting’ measures to avoid an argument that the allegations about CARRP are moot

21 because CARRP has been replaced or supplemented by new ‘extreme vetting’ procedures.” ECF

22 No. 58 at 13. Plaintiffs, by their own admission, are seeking to enjoin “an intent to impose

23 vetting procedures even more ‘extreme’ than CARRP.” Id. But even assuming the Court would

24 have jurisdiction over the mere possibility of a future injury, Plaintiffs have failed to raise their

25 claim for relief above a speculative level. As previously explained, Plaintiffs have alleged no

26 facts that Defendants have adopted, or will adopt, measures that would entitle Plaintiffs to

27 judicial relief. And in response to Defendants’ observation that Plaintiffs had failed to plead

28 sufficient facts to raise a plausible claim, Plaintiffs pointed to no actual facts at all. See id.

REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS - 8 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 61 Filed 05/12/17 Page 9 of 15

1

V. Plaintiffs Have Failed to Allege a Deprivation of a Protected Liberty or Property Interest

2

“To establish a due process violation, a plaintiff must show that he has a protected

3 property interest under the Due Process Clause and that he was deprived of the property without

4 receiving the process that he was constitutionally due.” Levine v. City of Alameda, 525 F.3d 903,

5 905 (9th Cir. 2008); see also Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 571 (1972).

6 Here, Plaintiffs have failed to state a viable claim for relief because there is no liberty or property

7 interest in adjudication within any particular time.5 Plaintiffs contend that “USCIS does not

8 have discretion to deny naturalization to a statutorily eligible applicant,” ECF No. 58 at 15, but

9 that is not what Plaintiffs are challenging. Plaintiffs have identified no unlawful denial of

10 naturalization to any eligible applicant. Indeed, any such individual would not even be a class

11 member of any of Plaintiffs’ putative classes, all of which concern individuals with current or

12 future pending applications. See ECF No. 47 ¶ 237. Plaintiffs challenge only the processing of

13 applications, specifically delays attributable to CARRP or future procedures issued under

14 Executive Order 13780.6

15

As previously explained, delays in adjudication “do not deprive aliens of a substantive

16 liberty or property interest unless the aliens have a ‘legitimate claim of entitlement’ to have their

17 applications adjudicated within a specified time.” Mendez-Garcia v. Lynch, 840 F.3d 655, 666

18 (9th Cir. 2016). No time limit is specified by statute. Plaintiffs erroneously rely on 8 U.S.C.

19 § 1571(b) as creating an enforceable time limit. But the Ninth Circuit has held that “sense of the

20 Congress” provisions such as Section 1571(b), “do not in themselves create individual rights or,

21 for that matter, any enforceable law.” Orkin v. Taylor, 487 F.3d 734, 740 (9th Cir. 2007).

22 Moreover, even if section 1571(b) constituted positive law rather than a policy judgment, the

23 Ninth Circuit has cautioned that “[a] statutory time period providing a directive to an agency or

24 public official is not ordinarily mandatory ‘unless it both expressly requires the agency or public

25
5 Plaintiffs also aver to their “protected interest in having USCIS adjudicate their applications lawfully.” ECF No.
26 58 at 15. But this contention suffers from the same problem described above: it is an abstract harm divorced from
any tangible effects that could support a case-or-controversy. Lance, 549 U.S. at 441-42; Allen, 468 U.S. at 754;
27 Novak, 795 F.3d at 1018.

28 6 Likewise, Plaintiffs conflate denials on the merits with processing timelines in arguing that lack of notice violates
8 C.F.R. § 103.2(b)(16)(i).

REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS - 9 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 61 Filed 05/12/17 Page 10 of 15

1 official to act within a particular time period and specifies a consequence for failure to comply

2 with the provision.’” Ezell v. United States, 778 F.3d 762, 765 (9th Cir. 2015)) (quoting In re

3 Siggers, 132 F.3d 333, 336 (6th Cir. 1997)) (emphasis in original). Here, there is no express

4 statutory guarantee of consideration of either naturalization or adjustment of status applications

5 within any particular time-frame, and there can be no consequence for failing to adhere to a

6 nonexistent schedule.

7

Accordingly, there is no liberty or property interest at stake protected by the Due Process

8 Clause. And without a liberty or property interest in an adjudication within any particular time,

9 there can be no interest in receiving “a meaningful explanation of the reasons for [CARRP]

10 classification, and any process by which Plaintiff can challenge their classification.” ECF No.

11 47, ¶ 263. See Olim v. Wakinekona, 461 U.S. 238, 250 (1983) (“Process is not an end in itself.

12 Its constitutional purpose is to protect a substantive interest to which the individual has a

13 legitimate claim of entitlement.”). Without a substantive interest at stake, Plaintiffs are not

14 entitled to notice or an opportunity to challenge processing of their applications under CARRP.

15 Accordingly, Plaintiffs have failed to state a claim upon which relief may be granted, and this

16 portion of their Fourth Claim for Relief should be dismissed. See Fed. R. Civ. P. 12(b)(6).

17

VI. Plaintiffs Complaint Fails to Allege Facts Supporting the Contention that

CARRP Constitutes Final Agency Action 18

19

Plaintiff’s Second Amended Complaint does not allege facts supporting their contention

20 that CARRP constitutes a “final agency action” subject to this Court’s review. Under 5 U.S.C.

21 § 706(2)(A), courts may hold unlawful and set aside agency action that is “arbitrary” or

22 “capricious.” 5 U.S.C. § 706(2)(A). But courts are empowered to review an agency action only

23 in connection with review of a “final agency action.” 5 U.S.C. § 704 (emphasis added). A final

24 agency action is one that “‘mark[s] the consummation of the agency’s decisionmaking process’”

25 and that determines rights and obligations “‘from which legal consequences will flow.’” U.S.

26 Army Corps of Eng’rs v. Hawkes Co., Inc., 136 S. Ct. 1807, 1814 (2016) (quoting Bennett v.

27 Spear, 520 U.S. 154, 177-78 (1997)). As alleged, CARRP meets neither of these conditions:

28 Rather than the consummation of the agency’s decisionmaking process, Plaintiffs allege CARRP

REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS - 10 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 61 Filed 05/12/17 Page 11 of 15

1 to be the process itself. See ECF No. 47, ¶ 65-97. In their Response, Plaintiffs suggest that it is

2 CARRP standing alone, rather than its application to a particular request for a benefit, that is the

3 relevant final agency action. See ECF No. 58 at 23. But Plaintiffs have no standing to challenge

4 CARRP independently of its application to them. As explained above, the decontextualized

5 policy alone causes them no harm, and without harm there is no injury in fact, no case or

6 controversy, and no jurisdiction. Lance, 549 U.S. at 441-42; Allen, 468 U.S. at 754; Novak, 795

7 F.3d at 1018. The only dispute the Court would have jurisdiction over would be the application

8 of CARRP as a final agency action in the context of Plaintiffs’ applications for benefits.

9

Furthermore, even assuming the relevant decisionmaking process was the process leading

10 to the implementation of CARRP, rather than individual adjudications, CARRP is still not the

11 source of legal consequences. Plaintiffs make a sweeping and confusing claim that “CARRP

12 creates a separate substantive regime for immigration application processing and adjudication.”

13 ECF No. 58 at 21. But a regime for processing applications is ipso facto not substantive.7 See

14 5 U.S.C. § 553(b)(3)(A); Mora-Meraz v. Thomas, 601 F.3d 933, 939 (9th Cir. 2010); Hemp

15 Indus. v. DEA, 333 F.3d 1082, 1087 (9th Cir. 2003). Moreover, Plaintiffs’ very specific factual

16 allegations about how CARRP operates do not support their legal conclusion that it defines rights

17 or benefits. See ECF No. 47, ¶¶ 55-97. Plaintiffs have adequately alleged that CARRP is a rule

18 of “agency organization, procedure or practice,” see 5 U.S.C. § 553(b)(3)(A), but not a

19 substantive or legislative rule that must be promulgated under the APA’s notice-and-comment

20 procedure. The lack of a jurisdictionally sound challenge to any final agency action precludes

21 relief on Plaintiffs’ Seventh,8 Eighth, and Ninth Claims for Relief.

22

23 7 Plaintiffs are not complaining of CARRP’s effect on applications that have already been adjudicated.

24 8 In their Seventh Claim for Relief, Plaintiffs alleged violations of various sections of the Immigration and
Nationality Act (“INA”) and implementing regulations. ECF No. 47 ¶¶ 273-78. Defendants moved to dismiss this
25 claim on the basis that the charged provisions did not contain a private right of action. ECF No. 56 at 17-20. In
their Opposition, Plaintiffs then suggested for the first time that this claim is actually brought under the Section
26 10(a) of the Administrative Procedure Act (5 U.S.C. § 702). ECF No. 58 at 17-18. Plaintiffs should be held to the
claims fairly raised in their Second Amended Complaint, and the Seventh Claim for Relief should be dismissed for
27 failure to state a claim for the reasons discussed in Defendants’ motion to dismiss. But if the Court were to indulge
Plaintiffs’ post-hoc revision of the claim, it would still fail to state a claim under the APA for lack of a final agency
28 action, for the reasons explained above.

REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS - 11 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 61 Filed 05/12/17 Page 12 of 15

1

VII. CARRP is Not a Substantive or Legislative Rule Requiring Notice and Comment

2

Generally speaking, Plaintiffs concur with Defendants’ identification of the relevant

3 framework and legal authorities to determine whether CARRP is either a “substantive” or

4 “legislative” rule or an “interpretive rule[], general statement[] of policy, or rule[] of agency

5 organization procedure or practice.” see ECF No. 20-21 & n.23. But Plaintiffs insist that

6 CARRP constitutes a substantive rule. First, they claim that it creates an oxymoronic

7 “substantive regime for immigration application processing.” Id. at 21. Second, relying on

8 paragraph 74 of the Second Amended Complaint, Plaintiffs contend that they have adequately

9 alleged that “CARRP discriminates against applicants from Muslim-majority countries.” Id. at 10 21-22. The cited paragraph makes no mention of applicants’ religion.9 ECF No. 47, ¶ 74. Nor

11 does a purported disparate impact on the basis of national origin in the immigration context

12 evince any purposeful unlawful discrimination. See Ashcroft v. Iqbal, 556 U.S. 662, 680-84

13 (2009). Third, Plaintiffs contend that CARRP requires concurrence from two supervisory

14 officials before a benefit may be granted. ECF No. 58 at 22 (quoting ECF No. 47, ¶ 97). That,

15 too, is a matter of internal procedure and not a substantive addition to the requirements for either

16 adjustment of status or naturalization.

17

Having failed to identify any substantive changes to the eligibility criteria for the benefits

18 at issue, Plaintiffs suggest that they should be relieved of their burden to adequately plead their

19 claims, and instead should be permitted discovery in order to better ascertain what injuries they

20 might have suffered. ECF No. 58 at 22. That is backward. See Iqbal, 556 U.S. at 685

21 (“Because respondent’s complaint is deficient under Rule 8, he is not entitled to discovery,

22 cabined or otherwise”). Plaintiffs have failed to allege facts demonstrating a “plausible

23 entitlement to relief,” see Fed. R. Civ. P. 8(a)(2), and their CARRP-related claims should be

24 dismissed.

25

26

27
9 It is questionable whether the vague statistics Plaintiffs allege, which group together people from “twenty-one
28 Muslim-majority countries or regions,” see ECF No. 47, ¶ 12, would even form a viable disparate-impact complaint
in a Title VII case, see Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994 (1988).

REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS - 12 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 61 Filed 05/12/17 Page 13 of 15

1

CONCLUSION

2

For the foregoing reasons, the Court should dismiss the entirety of the Second Amended

3 Complaint, in part for lack of jurisdiction, and, in part for failure to state claims upon which

4 relief can be granted.

5 Dated: May 12, 2017
6

Respectfully submitted,

7 CHAD A. READLER Acting Assistant Attorney General
8 WILLIAM C. PEACHEY
9 Director, District Court Section 10
CHRISTOPHER W. DEMPSEY 11 Chief, National Security
& Affirmative Litigation Unit 12
13
14
15

EDWARD S. WHITE Senior Counsel, National Security
& Affirmative Litigation Unit
/s/ Aaron R. Petty AARON R. PETTY Trial Attorney, National Security
& Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Telephone: (202) 532-4542 E-mail: Aaron.R.Petty@usdoj.gov

16 Attorneys for Defendants
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REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS - 13 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 61 Filed 05/12/17 Page 14 of 15

1

CERTIFICATE OF SERVICE

2

I HEREBY CERTIFY that on May 12, 2017, I electronically filed the foregoing with the

3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to the

4 following CM/ECF participants:

5

Harry H. Schneider, Jr., Esq.

Nicholas P. Gellert, Esq.

6

David A. Perez, Esq.

7

Kathryn Reddy, Esq.

Perkins Coie L.L.P.

8

1201 Third Ave., Ste. 4800

Seattle, WA 98101-3099

9

PH: 359-8000

10

FX: 359-9000

Email: HSchneider@perkinscoie.com

11

Email: NGellert@perkinscoie.com

Email: DPerez@perkinscoie.com

12

Email: KReddy@perkinscoie.com

13 Matt Adams, Esq.

14

Glenda M. Aldana Madrid, Esq.

15

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400

16

Seattle, WA 98104

PH: 957-8611

17

FX: 587-4025

18

E-mail: matt@nwirp.org E-mail: glenda@nwirp.org

19

Emily Chiang, Esq.

20

ACLU of Washington Foundation

21

901 Fifth Avenue, Suite 630 Seattle, WA 98164

22

Telephone: (206) 624-2184

E-mail: Echiang@aclu-wa.org 23

24

Jennifer Pasquarella, Esq.

ACLU Foundation of Southern California

25

1313 W. 8th Street

Los Angeles, CA 90017

26

Telephone: (213) 977-5211

27

Facsimile: (213) 997-5297

E-mail: jpasquarella@aclusocal.org

28

REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS - 14 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 61 Filed 05/12/17 Page 15 of 15

1

Stacy Tolchin, Esq. Law Offices of Stacy Tolchin

2

634 S. Spring St. Suite 500A

Los Angeles, CA 90014

3

Telephone: (213) 622-7450

4

Facsimile: (213) 622-7233 E-mail: Stacy@tolchinimmigration.com

5

Trina Realmuto, Esq.

6

Kristin Macleod-Ball, Esq.

7

National Immigration Project of the National Lawyers Guild

14 Beacon St., Suite 602

8

Boston, MA 02108

Telephone: (617) 227-9727

9

Facsimile: (617) 227-5495

10

E-mail: trina@nipnlg.org

E-mail: kristin@nipnlg.org

11

Hugh Handeyside, Esq.

12

Lee Gelernt, Esq.

13

Hina Shamsi, Esq.

American Civil Liberties Union Foundation

14

125 Broad Street

New York, NY 10004

15

Telephone: (212) 549-2616

16

Facsimile: (212) 549-2654

E-mail: lgelernt@aclu.org

17

E-mail: hhandeyside@aclu.org

18

E-mail: hshamsi@aclu.org

19

/s/ Aaron R. Petty

AARON R. PETTY

20

U.S. Department of Justice

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22

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REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS - 15 (2:17-cv-00094-JCC)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

 
 Case 2:17-cv-00094-RAJ Document 63 Filed 05/19/17 Page 1 of 16

1

THE HONORABLE JOHN C. COUGHENOUR

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 8

9 ABDIQAFAR WAGAFE, et al., on behalf of themselves and others similarly situated,
10
Plaintiffs, 11
v. 12
DONALD TRUMP, President of the 13 United States; et al.,

14

Defendants.

No. 2:17-cv-00094-JCC
PLAINTIFFS’ REPLY IN SUPPORT OF FIRST AMENDED MOTION FOR CLASS CERTIFICATION
NOTED ON MOTION CALENDAR: MAY 19, 2017

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PLAINTIFFS’ REPLY IN SUPPORT OF FIRST AMENDED MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC)
LEGAL135561547.2

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 63 Filed 05/19/17 Page 2 of 16

1

TABLE OF CONTENTS

2

Page

3 I. 4 II. 5 6 7 8 III. 9

INTRODUCTION ............................................................................................................. 1 ARGUMENT AND AUTHORITIES................................................................................ 2 A. Plaintiffs Have Standing ........................................................................................ 2 B. Commonality is Satisfied ....................................................................................... 3 C. Named Plaintiffs’ Claims are Typical.................................................................... 5 D. Named Plaintiffs Are Adequate Class Representatives ......................................... 7 E. The Court Should Certify Nationwide Classes ...................................................... 9 CONCLUSION................................................................................................................ 10

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PLAINTIFFS’ REPLY IN SUPPORT OF FIRST AMENDED MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC) – i
LEGAL135561547.2

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 63 Filed 05/19/17 Page 3 of 16

1

TABLE OF AUTHORITIES

2

Page

3

4 CASES

5

Arapi v. USCIS, No. 16-cv-00692 JLR (E.D. Mo. 2016) .................................................................................2, 7

6 Armstrong v. Davis,

7

275 F.3d 849 (9th Cir. 2001) .....................................................................................................5

8 Blankenship v. Sec’y of HEW, 587 F.2d 329 (6th Cir. 1978) .....................................................................................................9
9

10

Califano v. Yamasaki, 442 U.S. 682 (1979)...................................................................................................................9

11 Gorbach v. Reno,

12

181 F.R.D. 642 (W.D. Wash. 1998), aff’d, 219 F.3d 1087 (9th Cir. 2000)...............................9

13 Grodzitsky v. Am. Honda Motor Co. Inc.,

No. 2:12–cv01142–SVW–PLAx, 2014 WL 718431 (C.D.Cal. Feb. 19, 2014) ........................5 14

Lujan v. Defenders of Wildlife,

15

504 U.S. 555 (1992)...................................................................................................................2

16 Mendez Rojas v. Johnson

17

No. 2:16-cv-1024-RSM, ECF 37 (W.D. Wash. Jan. 10, 2017) ...............................................10

18 Muhanna v. USCIS,

No. 14-cv-05995 (C.D. Cal. July 31, 2014)...............................................................................8 19

Parsons v. Ryan,

20

754 F.3d 657 (9th Cir. 2014) .....................................................................................................8

21 Rivera v. Holder,

22

307 F.R.D. 539 (W.D. Wash. 2015) ..........................................................................................9

23 Rodriguez v. Hayes,

591 F.3d 1105 (9th Cir. 2010) ...................................................................................................8

24

Troy v. Kehe Food Distribs., Inc.,

25

276 F.R.D. 642 (W.D. Wash. 2011) ..........................................................................................4

26
PLAINTIFFS’ REPLY IN SUPPORT OF FIRST AMENDED MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC) – ii
LEGAL135561547.2

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 63 Filed 05/19/17 Page 4 of 16

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2001)...............................................................................................................4, 5
4

5

White v. Mathews, 559 F.2d 852 (2d Cir. 1977).......................................................................................................9

6 RULES
7 Fed. R. Civ. P. 23 .....................................................................................................................2, 6, 7
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PLAINTIFFS REPLY IN SUPPORT OF FIRST AMENDED MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC) – iii
LEGAL135561547.2

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 63 Filed 05/19/17 Page 5 of 16

1 I. INTRODUCTION
2 Defendants’ response to Plaintiffs’ amended motion for class certification hinges on the
3 false premise that this case challenges routine delays in the processing of immigration
4 applications. It does not. This case challenges application of a secret and illegal government
5 program—the Controlled Application Review and Resolution Program, or CARRP—that targets
6 Muslims who have applied for naturalization and adjustment of status and uses extra-statutory,
7 arbitrary, and discriminatory criteria for the adjudication of those applications. When the
8 government subjects a naturalization or adjustment application to CARRP, adjudication of that
9 application is necessarily delayed. Such delay is merely a byproduct of CARRP. At issue in this
10 case is whether CARRP is lawful. It is not.
11 Defendants do not contest CARRP’s existence or that Defendants have subjected named
12 Plaintiffs’ applications to it. Defendants also do not contest the numerosity of Plaintiffs’ classes,
13 acknowledging the thousands of people affected by this unlawful program. See Plaintiffs’ First
14 Amended Motion for Class Certification, Dkt. 49 at 12-13 (detailing the thousands of applicants
15 affected). And as Defendants’ actions have made clear, a class action is the only way CARRP
16 will ever be exposed to judicial scrutiny. As has happened in the instant case with respect to all
17 but one named Plaintiff, whenever individual plaintiffs have tried to challenge CARRP,
18 Defendants have systematically attempted to evade judicial review by suddenly adjudicating
19 those plaintiffs’ long-delayed applications, while the extra-statutory program itself remains
20 unaddressed. Far from mooting any claim, Defendants’ decision to adjudicate Plaintiffs’
21 individual applications simply shows why the Court should grant Plaintiffs’ class certification
22 motion.
23 The classes Plaintiffs seek to certify are easily ascertainable, as the proposed members
24 are those applicants who have been subjected to CARRP or a successor iteration of CARRP.
25
26

PLAINTIFFS’ REPLY IN SUPPORT OF FIRST AMENDED MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC) – 1
LEGAL135561547.2

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 63 Filed 05/19/17 Page 6 of 16

1 The five named Plaintiffs’ claims, interests, and injuries are directly aligned with the classes they 2 seek to represent, satisfying the commonality, typicality and adequacy requirements of Rule 23.1

3 4 A. 5

II. ARGUMENT AND AUTHORITIES Plaintiffs Have Standing Defendants allege that Plaintiffs lack standing, recycling many of the arguments from

6 their motion to dismiss. Compare Defendants’ Response to Plaintiffs’ First Amended Motion for

7 Class Certification, Dkt. 60 at 7-8 with Defendants’ Motion to Dismiss, Dkt. 56 at 9-14.

8 Plaintiffs have already explained why those arguments are unavailing, and incorporate those

9 explanations by reference here. See Plaintiffs’ Opposition to Defendants’ Motion to Dismiss,

10 Dkt. 58 at 6-13. But for purposes of this motion, two points bear emphasis.

11

First, Defendants erroneously claim that Plaintiffs have “disclaimed any interest in

12 obtaining decisions on their pending applications” and therefore lack standing to challenge

13 CARRP. Dkt. 60 at 7-8. Plaintiffs have never disclaimed a personal interest in the adjudication

14 of their applications. Plaintiffs’ prayer for relief makes clear they seek an order that Defendants

15 “adjudicate Plaintiffs’ and proposed class members’ petitions, applications, or requests based

16 solely on the statutory criteria.” Second Amended Complaint, Dkt. 47 at 51. Plaintiffs are not

17 asking the Court itself to pass judgment on or adjudicate the qualifications of any particular

18 named Plaintiff’s application; instead, Plaintiffs ask that the Court order USCIS to adjudicate

19 class members’ applications “based solely on the statutory criteria”—in other words, without the

20 imposition of CARRP. Subjecting Plaintiffs’ applications to CARRP has caused substantial

21 harm, including harm related to Plaintiffs’ employment, family mobility, travel, and emotional

22 well-being. See, e.g., id. ¶¶161, 175, 198, 219, 235. Plaintiffs easily satisfy the requirements for

23 Article III standing (injury-in-fact, causation, and redressability) under Lujan v. Defenders of

24 Wildlife, 504 U.S. 555, 559-61 (1992).

25

26

1 Defendants do not challenge numerosity or Plaintiffs’ qualification under Rule 23(b)(2).

PLAINTIFFS REPLY IN SUPPORT OF FIRST AMENDED MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC) – 2
LEGAL135561547.2

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 63 Filed 05/19/17 Page 7 of 16

1

Second, Plaintiffs’ constitutional and statutory challenges to CARRP—and their standing

2 to pursue such challenges—extend to any future iterations that Defendants implement under the

3 authority of Executive Order 13780, Defendant Trump’s second executive order on immigration.

4 82 Fed. Reg. 13209 (Mar. 9, 2017) (“Second EO”). Were this not true, the forward-looking

5 injunctive and declaratory relief Plaintiffs seek would be meaningless; Defendants could re-name

6 or make minor tweaks to the CARRP policy and evade compliance with the Court’s mandate.

7

Defendants argue that because the named Plaintiffs’ applications were pending before the

8 Second EO went into effect, they lack standing to challenge any “extreme vetting” program

9 implemented pursuant to Section 5 of the Second EO. Again, however, Plaintiffs seek class

10 certification based on challenges to CARRP—as it existed, exists, and will exist in the future,

11 including changes made to the program pursuant to Section 5 of the Second EO. Dkt. 49 at 3-

12 11. Because Plaintiffs have alleged, and Defendants do not dispute, that their applications have

13 been processed under CARRP, they have standing to challenge that program and any future

14 iteration thereof.

15 B. Commonality is Satisfied

16

Common questions of law and fact pervade this lawsuit, which will result in class-wide

17 answers regarding whether CARRP violates the Constitution, the Immigration and Nationality

18 Act (INA), and the Administrative Procedure Act (APA). Defendants’ commonality argument

19 cannot succeed because it is based on their misconception that this suit challenges the delay

20 experienced by individual Plaintiffs in the adjudication of their naturalization and adjustment

21 applications.

22

Significantly, this suit actually challenges USCIS’s decision to implement and apply

23 CARRP to Plaintiffs and class members because the program violates the Constitution, the INA,

24 and the APA. In other words, the focus is on the legality of CARRP as a policy, not simply the

25 harmful delays experienced by individual Plaintiffs as a result of CARRP. Plaintiffs agree with

26 Defendants that the guiding commonality inquiry is whether consideration as a class action will

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1 generate answers common to class members. Dkt. 60 at 8, quoting Wal-Mart Stores, Inc. v.

2 Dukes, 564 U.S. 338, 350 (2001). Because the adjudication of Plaintiffs’ statutory and

3 constitutional claims regarding the legality of CARRP will generate answers common to the

4 entire class and will permit resolution of the entire litigation, commonality is established. See

5 Troy v. Kehe Food Distribs., Inc., 276 F.R.D. 642, 652-53 (W.D. Wash. 2011).

6

Defendants brainstorm the myriad factors that could possibly cause delay on a given

7 application, Dkt. 60 at 10-11, and ask the Court to take them at their word that CARRP is not the

8 primary factor in the delay Plaintiffs have experienced. This argument is inapposite. As an

9 initial matter, Plaintiffs are entitled to full discovery into the implementation of CARRP;

10 Defendants’ speculation does not create any authority. Moreover, the delay caused by CARRP is

11 not the focus of the challenge, but rather, one of the harmful consequences. The specific facts of

12 each class member’s individual circumstances are relevant only as a means of illustrating how

13 CARRP is applied, revealing the pretense and technicalities USCIS uses to delay and deny

14 otherwise qualified applicants. Far from defeating commonality, the use of such techniques on

15 all these applications collectively demonstrates the all-encompassing nature of CARRP in action.

16 Indeed, despite the differences in their individual cases, the fact that the applications of Plaintiffs

17 Wagafe, Bengezi, Jihad, and Manzoor were all approved shortly after the filing of this litigation

18 strongly suggests that what was delaying their case was, in fact, CARRP.

19

The bottom line is this: the common feature linking all proposed class members is that

20 USCIS has subjected, is subjecting, or will subject their applications to an illegal program. An

21 injunction blocking Defendants from applying that program is precisely the type of “declaratory

22 relief [that] is available to the class as a whole,” which demonstrates that the challenged conduct

23 is “such that it can be enjoined or declared unlawful only as to all of the class members or as to

24

25

26

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1 none of them.” Dukes, 564 U.S. at 361 (emphasis added). Plaintiffs easily establish 2 commonality.2

3 C. 4

Named Plaintiffs’ Claims are Typical Typicality ensures that class representatives’ personal grievances give them sufficient

5 incentive to vigorously litigate on behalf of absent class members. NEWBERG ON CLASS ACTIONS

6 §§ 3:28-3:29 (5th ed.) (“A plaintiff with typical claims will pursue his or her own self-interest in

7 the litigation and, in so doing, will advance the interests of the class members, which are aligned

8 with those of the representative.”). Plaintiffs meet the typicality requirement because their

9 claims arise from the same event or course of conduct that gives rise to the claims of all the other

10 class members; specifically, USCIS has subjected each member’s application to CARRP. In

11 fact, Defendants do not ever dispute that all five named Plaintiffs have been labeled national

12 security concerns, subjected to CARRP, and exposed to extensive and unwarranted delays

13 without notice or opportunity to challenge that classification. Accordingly, they share the same

14 vested interest in challenging the legality of CARRP as do other similarly-situated applicants

15 whose applications have been or will be subjected to CARRP.

16

Defendants incorrectly assert that the named Plaintiffs are not typical of the classes they

17 seek to represent because they claim to be fully eligible for the immigration benefits they seek,

18 whereas many of the proposed class members may not be statutorily eligible. Dkt. 60 at 14-15

19 (suggesting that Plaintiffs contend CARRP “unlawfully casts the net too widely in its definition

20 of a national security concern” and that many class members are “actually inadmissible or

21 removable” under the INA). However, all proposed class members who apply for naturalization

22

23

2 Defendants allege the Court is “bound to the class definitions provided in the complaint.” Dkt. 60 at 13

n.3. In fact, this circuit has not decisively determined the extent to which a court is strictly bound by the class

24 definition contained in the complaint. Grodzitsky v. Am. Honda Motor Co. Inc., No. 2:12–cv01142–SVW–PLAx,

2014 WL 718431, at *4 (C.D.Cal. Feb. 19, 2014). At the very least, the Ninth Circuit recognizes the “broad

25 discretion” afforded to courts “to revisit [class] certification throughout the legal proceedings before the court,”

which includes, “[w]here appropriate,” the discretion to “redefine the class.” Armstrong v. Davis, 275 F.3d 849, 871

26 n.28 (9th Cir. 2001).

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1 or adjustment of status submit their applications believing they are eligible for the benefit.

2 USCIS screens all such applications for national security concerns, applying the grounds of

3 inadmissibility or removability. Plaintiffs contend that in addition to these statutory grounds that

4 all applicants must satisfy, proposed class members are subjected to CARRP’s ultra vires

5 adjudication process. Under CARRP, USCIS uses additional extra-statutory criteria that

6 discriminate based on national origin. Dkt. 47 ¶ 76. And once an applicant is labeled a national

7 security concern, USCIS takes the application off the routine adjudication track and places it on a

8 special CARRP adjudication track where it is governed by CARRP-specific procedures that aim

9 to find any excuse to deny the application or alternatively, where no reason for denial can be

10 identified, impose an indefinite delay. Id. ¶¶ 61, 77. The injuries Plaintiffs have experienced, as

11 well as the basis for Plaintiffs’ challenge, all stem from USCIS’ utilization of these extra-

12 statutory criteria instead of the statutory criteria established by Congress.

13

In other words, whether any particular Plaintiff is in fact statutorily eligible for the

14 benefits they seek is not determinative of Plaintiffs’ claims and therefore is not determinative of

15 typicality. See FED. R. CIV. P. 23(a) (typicality asks whether claims of class representatives are

16 similar to claims of the class). As Plaintiffs’ prayers for relief make clear, they are not seeking a

17 specific adjudication (either a decision to grant or deny) of their applications; Plaintiffs merely

18 ask that adjudication occur “based solely on the statutory criteria” and not pursuant to CARRP or

19 any successor extreme vetting program. Dkt. 47 at 51. Accordingly, the statutory eligibility of

20 individual Plaintiffs is immaterial to the issue facing the Court—whether CARRP as an

21 overarching program violates the Constitution, the INA, and the APA. The relevant factual

22 prerequisite for typicality, therefore, is the application of CARRP to a Plaintiff’s application—a

23 fact that all Plaintiffs share and have equal motivation to challenge. Because Defendants never

24 contest that all five named Plaintiffs are indeed subject to CARRP, the named Plaintiffs’ claims

25 are typical of the classes they seek to represent.

26

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1 D. Named Plaintiffs Are Adequate Class Representatives

2

The five named Plaintiffs are adequate class representatives under Rule 23(a)(4) because

3 there is no tension between their interests and those of the absent class members they seek to

4 represent. All class members are applicants for naturalization or adjustment of status who

5 USCIS has placed on the CARRP adjudication track. USCIS has discriminated against all class

6 members based on their national origin and applied extra-statutory criteria to the adjudication

7 process without notifying Plaintiffs or affording them an opportunity to challenge the

8 classification. The class members’ interests are therefore aligned in challenging CARRP under

9 the Constitution, the INA, and the APA.

10

Remarkably, Defendants assert that the named Plaintiffs are inadequate representatives

11 because there may be unnamed class members who would prefer to let the USCIS adjudication

12 process “run its course,” creating a conflict of interest. Dkt. 60 at 16. Defendants assume that

13 some putative class members prefer to sit idly by while their immigration applications are

14 subjected to additional hurdles imposed by this extra-statutory and discriminatory program. This

15 assumption is patently illogical. USCIS does not provide applicants notice that they have been

16 flagged as national security concerns or that their applications are accordingly being subjected to

17 CARRP. And the only evidence Defendants cite for their argument is the fact that these

18 unnamed class members did not bring lawsuits in their own names. Id. Were this an adequate

19 argument, no class would ever be certified as the existence of numerous unnamed and

20 unidentified plaintiffs without the knowledge, capacity, financial means, or forethought to bring

21 individual claims is the hallmark of class action litigation, especially in the immigration context.

22 See Dkt. 49 at 11 n.3 (compiling Ninth Circuit cases certifying nationwide or districtwide classes

23 in the immigration context).

24

Moreover, history has shown that bringing individual lawsuits is not an effective way to

25 challenge CARRP—every time a plaintiff has done so Defendants have rushed to adjudicate his

26 or her application, mooting those claims and dismissing the case. Arapi v. USCIS, No. 16-cv-

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1 00692 JLR (E.D. Mo. 2016); Muhanna v. USCIS, No. 14-cv-05995 (C.D. Cal. July 31, 2014).

2 Finally, the proposed classes are limited to those with applications subject to CARRP, and thus

3 all class members are known to USCIS.

4

Defendants also argue that the difference in delay times between the named and unnamed

5 Plaintiffs renders the named Plaintiffs inadequate representatives. Dkt. 60 at 17. But, as

6 Plaintiffs have frequently repeated, this lawsuit is not about whether a certain length of delay is

7 unreasonable or unlawful. It is instead about the root cause of the delays experienced by

8 Plaintiffs—adjudication under CARRP. Whether a specific application has been delayed for 6

9 months or 6 years is immaterial; what matters is that the applicant has been labeled a national

10 security concern based on extra-statutory and unpublished criteria, given no notice of the

11 differential treatment nor an opportunity to challenge the classification, and subjected to delay

12 without any explanation. See Parsons v. Ryan, 754 F.3d 657, 686 (9th Cir. 2014) (class of

13 prisoners with health problems of varying severity); Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir.

14 2010) (class of individuals detained for varying lengths of time under various statutes).

15

And contrary to Defendants’ assertions (Dkt. 60 at 18), the named Plaintiffs’ incentives

16 to vigorously litigate the claims of unnamed class members have not been diminished by the fact

17 that their individual claims have now been adjudicated. Their incentive to litigate stems from the

18 harm they have suffered—harm such as the stress and anxiety from discrimination and treatment

19 as a national security concern, the inability to travel freely or sponsor family members, and the

20 confusion caused by USCIS’s refusal to provide an explanation for the delay they experienced.

21 See, e.g., Dkt. 47 ¶¶161, 175, 198, 219, 235. If anything, the fact that their applications have

22 been quickly adjudicated after years of unexplained delay gives them more incentive to

23 vigorously litigate their claims; that Defendants are capable of suddenly fast tracking

24 applications strongly suggests that the named Plaintiffs have been subject to baseless and

25 discriminatory delay all along.

26

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1

And, in any event, where claims are inherently transitory or where Defendants attempt to

2 pick off named plaintiffs, the class certification analysis “relates back” to the time the complaint

3 was filed. E.g., Rivera v. Holder, 307 F.R.D. 539, 548 (W.D. Wash. 2015) (granting class

4 certification and reasoning that “[a]lthough plaintiff’s class certification motion was ultimately

5 noted for consideration well after plaintiff’s release [mooting out the individual claim], the Court

6 finds that the relation back doctrine applies”); see also Blankenship v. Sec’y of HEW, 587 F.2d

7 329, 333 (6th Cir. 1978) (affirming district court’s certification of class after named plaintiffs’

8 claims had been mooted, reasoning that “refusal to consider a class-wide remedy merely because

9 individual class members no longer need relief would mean that no remedy could ever be

10 provided for continuing abuses,” and class certification therefore relates back to the date of filing

11 the complaint); White v. Mathews, 559 F.2d 852, 857 (2d Cir. 1977) (Defendants should not be

12 able to “avoid judicial scrutiny of [their] procedures by the simple expedient of granting hearings

13 to plaintiffs who seek, but have not yet obtained, class certification”).

14 E. The Court Should Certify Nationwide Classes

15

Finally, certification should be nationwide. Plaintiffs bring a broad-based challenge to a

16 federal program that is illegally and consistently applied on a nationwide basis. If CARRP is

17 illegal as to Plaintiffs living in Washington state, it is just as illegal as to Plaintiffs living in

18 Washington D.C. Where Plaintiffs challenge federal government policies that impact individuals

19 around the country, a nationwide class is appropriate. See Gorbach v. Reno, 181 F.R.D. 642, 644

20 (W.D. Wash. 1998), aff’d, 219 F.3d 1087 (9th Cir. 2000) (“This challenge is directed at a

21 specific, discrete INS policy that affects citizens nationwide. The claims of individual plaintiffs

22 do not turn on the facts of their cases. The court, therefore, concludes that this suit is particularly

23 suitable for nationwide class certification.”); see also, e.g., Califano v. Yamasaki, 442 U.S. 682,

24 702 (1979) (affirming a nationwide class, reasoning that “[n]othing in Rule 23…limits the

25 geographical scope of a class action,” and noting that “the scope of injunctive relief is dictated

26 by the extent of the violation established, not by the geographical extent of the plaintiff class”);

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1 Mendez Rojas v. Johnson, No. 2:16-cv-1024-RSM, ECF 37 (W.D. Wash. Jan. 10, 2017)

2 (certifying two nationwide classes of asylum seekers challenging defective asylum application

3 procedures).

4

As Defendants have proven over and over again, individual challenges to CARRP do not

5 result in judicial determinations regarding the lawfulness of the program because Defendants

6 ultimately moot out the individuals’ claims by suddenly adjudicating applications that have

7 languished, due to CARRP, for years. This illicit program has been allowed to continue because

8 it is constantly evading review. Accordingly, Defendants are not able to point to any cases

9 percolating in any of the Courts of Appeals or even a significant possibility of other district

10 courts weighing in with determinations on the merits of the challenge presented. Given the

11 compelling need for a uniform interpretation of our federal immigration laws and the absence of

12 cases percolating in other circuits addressing these important issues, the Court should certify the

13 two nationwide classes Plaintiffs request.

14

III. CONCLUSION

15

The Court should grant Plaintiffs’ motion to certify their Naturalization and Adjustment

16 of Status classes.

17

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Case 2:17-cv-00094-RAJ Document 63 Filed 05/19/17 Page 15 of 16

1 By:

2 s/Jennifer Pasquarella (admitted pro hac vice) s/ Harry H. Schneider, Jr.

ACLU Foundation of Southern California 3 1313 W. 8th Street

Harry H. Schneider, Jr. #9404 s/ Nicholas P. Gellert

Los Angeles, CA 90017 4 Telephone: (213) 977-5236

Nicholas P. Gellert #18041 s/ David A. Perez

Facsimile: (213) 997-5297 5 jpasquarella@aclusocal.org

David A. Perez #43959 s/ Laura K. Hennessey

Laura K. Hennessey #47447 6

s/Matt Adams 7 s/Glenda M. Aldana Madrid
Matt Adams #28287 8 Glenda M. Aldana Madrid #46987
Northwest Immigrant Rights Project 9 615 Second Ave., Ste. 400
Seattle, WA 98122 10 Telephone: (206) 957-8611
Facsimile: (206) 587-4025 11 matt@nwirp.org
glenda@nwirp.org 12

Attorneys for Plaintiffs Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: HSchneider@perkinscoie.com
NGellert@perkinscoie.com KReddy@perkinscoie.com DPerez@perkinscoie.com LHennessey@perkinscoie.com

13 s/Stacy Tolchin (admitted pro hac vice) Law Offices of Stacy Tolchin
14 634 S. Spring St. Suite 500A Los Angeles, CA 90014
15 Telephone: (213) 622-7450 Facsimile: (213) 622-7233
16 Stacy@tolchinimmigration.com
17
18 s/Hugh Handeyside Hugh Handeyside #39792
19 s/Lee Gelernt (admitted pro hac vice) s/Hina Shamsi (admitted pro hac vice)
20 American Civil Liberties Union Foundation 125 Broad Street
21 New York, NY 10004 Telephone: (212) 549-2616
22 Facsimile: (212) 549-2654 lgelernt@aclu.org
23 hhandeyside@aclu.org hshamsi@aclu.org
24

s/Trina Realmuto (admitted pro hac vice) s/Kristin Macleod-Ball (admitted pro hac vice) National Immigration Project
of the National Lawyers Guild 14 Beacon St., Suite 602 Boston, MA 02108 Telephone: (617) 227-9727 Facsimile: (617) 227-5495 trina@nipnlg.org kristin@nipnlg.org s/Emily Chiang Emily Chiang #50517 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Echiang@aclu-wa.org

25

26

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1

CERTIFICATE OF SERVICE

2 The undersigned certifies that on the dated indicated below, I caused service of the

3 foregoing PLAINTIFFS’ REPLY IN SUPPORT OF FIRST AMENDED MOTION FOR CLASS

4 CERTIFICATION via the CM/ECF system that will automatically send notice of such filing to

5 all counsel of record herein.

6 DATED this 19th day of May, 2017, at Seattle, Washington.

7

s/ Laura K. Hennessey

8

Laura K. Hennessey #47447

9

Attorneys for Plaintiffs

Perkins Coie LLP

10

1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099

11

Telephone: 206.359.8000

12

Facsimile: 206.359.9000 Email: LHennessey@perkinscoie.com

13

14

15

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18

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1

The Honorable Richard A. Jones

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9
ABDIQAFAR WAGAFE, et al., on 10 behalf of themselves and others similarly 11 situated,

12

Plaintiffs,

13

v.

14
DONALD TRUMP, President of the 15 United States, et al.,

16

Defendants.

17

No. 2:17-cv-00094-RAJ
DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION
HON. RICHARD A. JONES
NOTE ON MOTION CALENDAR: Wednesday, July 5, 2017

18

19
On June 21, 2017, the Court issued an order granting in part and denying in part

20
Defendants’ motion to dismiss, and certifying two nationwide classes. For the following

21
reasons, and mindful that motions for reconsideration are “disfavored,” L.R. 7(h),

22
Defendants respectfully move the Court to reconsider its decision to certify a class action

23
or, in the alternative, to modify the class definitions.

24
I. Plaintiffs Failed to Establish Commonality under Rule 23(a) as Defined by

25

the Supreme Court in Wal-Mart Stores, Inc. v. Dukes

26

The Court’s analysis of the commonality requirement, see Fed. R. Civ. P. 23(a),

27 was flawed in a number of respects, beginning by conflating Plaintiffs’ causes of action

28 (the allegations that CARRP is unlawful) with the concrete injury required for Article III

DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 1 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 73 Filed 07/05/17 Page 2 of 8

1 jurisdiction (the allegation that the delay in adjudication resulting from CARRP harmed

2 them). In assessing commonality, the Court concluded:

3

Defendants argue that ‘[a]t the heart of this case is the allegation that

USCIS has unreasonably delayed in adjudication’ immigration applications

4

and resolution of this allegation requires a ‘fact-intensive, individualized

5

inquiry into the cases of the delay in each case.’ (Dkt. No. 60 at 15.) This

is incorrect. Plaintiffs’ claim is that CARRP is an unlawful program. A

6

byproduct of CARRP’s alleged unlawful program is unreasonable delays.

7 ECF No. 69 at 25. If that is so, then the Court is proposing to issue an advisory opinion.

8 A declaration that CARRP is unlawful untethered to its effect, if any, on individual cases

9 presents the exact sort of “abstract harm” that the Ninth Circuit and the Supreme Court

10 have cautioned are insufficient to establish jurisdiction. Lance v. Coffman, 549 U.S. 437,

11 441-42 (2007) (per curiam) (“The only injury [they] allege is that the law . . . has not

12 been followed”); Allen v. Wright, 468 U.S. 737, 754 (1984) (“This Court has repeatedly

13 held that an asserted right to have the Government act in accordance with law is not

14 sufficient, standing alone, to confer jurisdiction on a federal court”), abrogated on other

15 grounds by Lexmart Int’l v. Static Control Components, Inc., 134 S. Ct. 1377 (2014);

16 Novak v. United States, 795 F.3d 1012, 1018 (9th Cir. 2015). The Court has no

17 jurisdiction to evaluate the legality of CARRP absent a plausible allegation that CARRP

18 is the proximate cause of unlawful delay. Plaintiffs cannot make that showing because it

19 would require facts suggesting both that the processing time for all of Plaintiffs’

20 applications is unreasonable, and that CARRP, as opposed to any other reason, is the

21 proximate cause for each of them. Plaintiffs have not and cannot plausibly make such an

22 allegation as to each named Plaintiff, much less every class member, given the multitude

23 of reasons other than CARRP that can cause delay, such as the Requests for Evidence

24 issued regarding Plaintiff Ostadhassan’s marriage. And there can be no commonality

25 among a class that contains members who have not suffered a concrete injury. Mazza v.

26 Am. Honda Motor Co., 666 F.3d 581, 594 (9th Cir. 2012) (citing Denney v. Deutsche

27 Bank AG, 443 F.3d 253, 264 (2d Cir. 2006)) (“[N]o class may be certified that contains

28

DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 2 (2:17-cv-00094-RAJ)

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1 members lacking Article III standing.”). This alone is a sufficient basis to deny class

2 certification.

3

Beyond this, however, the Court erred in relying on Hanlon v. Chrysler Corp., 150

4 F.3d 1011, 1019 (9th Cir. 1998), for the proposition that “shared legal issues with

5 divergent factual predicates is sufficient” to establish commonality under Rule 23(a).

6 Hanlon pre-dates and is inconsistent with the Supreme Court’s decision in Wal-Mart

7 Stores, Inc. v. Dukes, 564 U.S. 338 (2011). In Dukes, the Supreme Court held that

8 “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered

9 the same injury.’” Id. at 349-50 (quoting Gen. Tel. Co. of Southwest v. Falcon, 457 U.S.

10 147, 157 (1982)). But the injury here cannot be the alleged illegality of CARRP—under

11 Lance and Allen illegality alone is not a cognizable injury.1 Instead, the legally

12 cognizable injury suffered, if any, is the delay in adjudication resulting from the

13 purportedly unlawful conduct. Again, Plaintiffs have not demonstrated that the purported

14 delays in adjudicating all class members’ applications are attributable to CARRP.

15

Dukes goes on to explain that the common contention must be “of such a nature

16 that it is capable of classwide resolution—which means that determination of its truth or

17 falsity will resolve an issue that is central to the validity of each one of the claims in one

18 stroke.” Id. at 350. This Court concluded that “[t]he common question here is whether

19 CARRP is lawful.” ECF No. 69 at 25. But that is only part of the equation. Equally

20 important is whether each of the class members has been injured in the same way, i.e., by

21 CARRP. See Dukes, 564 U.S.at 349-50. Because some class members may be subject to

22 CARRP but not harmed by it—their applications may take longer than six months to

23 process for entirely unrelated reasons—the legality of CARRP will not finally resolve

24 any claims on a class-wide basis, nor even resolve a question that is necessary to

25 resolving all class members’ claims that they have suffered unreasonable delay.

26

27
1 Indeed, Dukes itself observed that a common injury must be more than an allegation “that they 28 have all suffered a violation of the same provision of law.” 564 U.S. at 350.

DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 3 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 73 Filed 07/05/17 Page 4 of 8

1

Dukes explained that “without some glue holding the alleged reasons for all those

2 decisions together, it will be impossible to say that examination of all the class members’

3 claims for relief will produce a common answer to the crucial question why was I

4 disfavored?” Id. at 352 (emphasis in original). The same is true here. Without some

5 glue holding the alleged reasons for delay together it will be impossible to say that

6 examination of all the class members’ claims will produce a common answer to the

7 question why was my application not adjudicated?

8

More than a common allegation that they have been subjected to an unlawful

9 policy, Rule 23(a)’s commonality requirement demands that Plaintiffs make an

10 affirmative showing that they have suffered the same injury. “Rule 23 does not set forth

11 a mere pleading standard. A party seeking class certification must affirmatively

12 demonstrate his compliance with the Rule.” Id. at 351. The Court identified no such

13 evidence in its decision. See ECF No. 69 at 24-26. Plaintiffs have not even alleged that

14 CARRP is the proximate cause of delay for each class member’s application, much less

15 offered evidence that would support any such contention.

16

In sum, to meet the commonality requirement of Rule 23(a), Dukes requires a

17 common injury. Plaintiffs have alleged a common policy, but have failed to demonstrate

18 that all class members have been injured in the same way (or indeed, at all) by that

19 policy.

20 II. The Class Definitions Are Manifestly Erroneous

21

1. The Six-Month Benchmark in the Class Definitions Lacks a Rational Basis

22

In approving Plaintiffs’ proposed class definitions, the Court adopted wholesale

23 Plaintiffs’ suggestion to define membership in both classes by, inter alia, whether the

24 individual’s application had been pending for longer than six months. See ECF No. 69 at

25 31. Plaintiffs settled on the six-month mark because 8 U.S.C. § 1571(b) provides the

26 “sense of the Congress” that that the processing of an immigration benefit should be

27 completed not later than 180 days after the initial filing of the application.” See ECF No.

28 47 ¶¶ 43, 51. The Ninth Circuit has explained that “‘Sense of the Congress’ provisions

DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 4 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 73 Filed 07/05/17 Page 5 of 8

1 are precatory provisions, which do not in themselves create individual rights or, for that

2 matter, any enforceable law.” Orkin v. Taylor, 487 F.3d 734, 740 (9th Cir. 2007).

3 Moreover, six months is below average processing times at many USCIS offices that

4 adjudicate adjustment-of-status and naturalization applications—most applications

5 remain pending for at least six months at a minimum prior to final adjudication. See Petty

6 Affidavit (attached hereto as Exhibit A).

7

The Court is entitled to exercise its discretion in defining classes, but relying on a

8 six-month mark that (1) has no legal significance, and (2) does no work in separating

9 delays cause by CARRP from delays caused by a backlog of applications, is an abuse of

10 discretion.

11

2. The Court’s Reliance on the Uniform Rule of Naturalization Clause Does

Not Support Certification of Nationwide Classes
12

Finally, the Court should revisit its reliance on the Uniform Rule of Naturalization

13

clause as a basis for certifying a nationwide classes. As previously noted, the Supreme

14

Court has held that the uniformity in naturalization and bankruptcy laws demanded by

15

Art. I, § 8, cl. 4 “is geographical, and not personal.” Hanover Nat’l Bank v. Moyses, 186

16

U.S. 181, 190 (1902), and Plaintiffs have not alleged that CARRP operates differently in

17

different states. Moreover, even assuming this provision militates in favor of a

18

nationwide naturalization class, it is unclear how it supports a nationwide adjustment-of-

19

status class as well. Article I demands no uniformity in conferring that statutory status.

20

CONCLUSION

21

The Court should vacate its order of June 21, 2017 and deny Plaintiffs’ amended

22

motion for class certification or, in the alternative, modify the class definitions as

23

described herein.

24

25

26

27

28

DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 5 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 73 Filed 07/05/17 Page 6 of 8

1 Dated: July 5, 2017
2 CHAD A. READLER Acting Assistant Attorney General
3 Civil Division
4
WILLIAM C. PEACHEY 5 Director, District Court Section 6 Office of Immigration Litigation
7 TIMOTHY M. BELSAN 8 Deputy Chief, National Security
& Affirmative Litigation Unit
9
10 EDWARD S. WHITE Senior Counsel, National Security
11 & Affirmative Litigation Unit
12

Respectfully submitted,
/s/ Aaron R. Petty AARON R. PETTY Trial Attorney, National Security
& Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Telephone: (202) 532-4542 E-mail: Aaron.R.Petty@usdoj.gov
JOSEPH F. CARILLI, JR. Trial Attorney, National Security
& Affirmative Litigation Unit

13

CERTIFICATE OF CONFERENCE

14

I HEREBY CERTIFY that on July 5, 2017, I conferred with opposing counsel and

15 thoroughly discussed the substance of this motion and in good faith attempted to reach an

16 accord to eliminate the need for the motion. Those efforts were unsuccessful.

17

18

s/ Aaron R. Petty

AARON R. PETTY

19

U.S. Department of Justice

20

21

22

23

24

25

26

27

28

DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 6 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 73 Filed 07/05/17 Page 7 of 8

1

CERTIFICATE OF SERVICE

2

I HEREBY CERTIFY that on July 5, 2017, I electronically filed the foregoing

3 with the Clerk of the Court using the CM/ECF system, which will send notification of

4 such filing to the following CM/ECF participants:

5

Harry H. Schneider, Jr., Esq.

6

Nicholas P. Gellert, Esq.

David A. Perez, Esq.

7

Perkins Coie L.L.P.

8

1201 Third Ave., Ste. 4800

Seattle, WA 98101-3099

9

PH: 359-8000

10

FX: 359-9000

Email: HSchneider@perkinscoie.com

11

Email: NGellert@perkinscoie.com

Email: DPerez@perkinscoie.com
12

13

Matt Adams, Esq.

Glenda M. Aldana Madrid, Esq.

14

Northwest Immigrant Rights Project

15

615 Second Ave., Ste. 400

Seattle, WA 98104

16

PH: 957-8611

17

FX: 587-4025

E-mail: matt@nwirp.org

18

E-mail: glenda@nwirp.org

19
Emily Chiang, Esq.

20

ACLU of Washington Foundation

901 Fifth Avenue, Suite 630

21

Seattle, WA 98164

22

Telephone: (206) 624-2184

E-mail: Echiang@aclu-wa.org

23

Jennifer Pasquarella, Esq.

24

ACLU Foundation of Southern California

25

1313 W. 8th Street

Los Angeles, CA 90017

26

Telephone: (213) 977-5211

Facsimile: (213) 997-5297

27

E-mail: jpasquarella@aclusocal.org

28

DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 7 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 73 Filed 07/05/17 Page 8 of 8

Stacy Tolchin, Esq.

1

Law Offices of Stacy Tolchin

2

634 S. Spring St. Suite 500A

Los Angeles, CA 90014

3

Telephone: (213) 622-7450

Facsimile: (213) 622-7233

4

E-mail: Stacy@tolchinimmigration.com

5

Trina Realmuto, Esq.

6

Kristin Macleod-Ball, Esq.

7

National Immigration Project of the National Lawyers Guild

14 Beacon St., Suite 602

8

Boston, MA 02108

Telephone: (617) 227-9727

9

Facsimile: (617) 227-5495

10

E-mail: trina@nipnlg.org

E-mail: kristin@nipnlg.org

11

Lee Gelernt, Esq.
12
Hugh Handeyside, Esq.

13

Hina Shamsi, Esq.

American Civil Liberties Union Foundation

14

125 Broad Street

15

New York, NY 10004

Telephone: (212) 549-2616

16

Facsimile: (212) 549-2654

E-mail: lgelernt@aclu.org

17

E-mail: hhandeyside@aclu.org

18

E-mail: hshamsi@aclu.org

19

20

s/ Aaron R. Petty

AARON R. PETTY

21

U.S. Department of Justice

22

23

24

25

26

27

28

DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 8 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

 
 Case 2:17-cv-00094-RAJ Document 75 Filed 07/13/17 Page 1 of 14

THE HONORABLE RICHARD A. JONES

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 7

8 ABDIQAFAR WAGAFE, et al., on behalf of themselves and others similarly situated,
9
Plaintiffs, 10
v. 11
DONALD TRUMP, President of the 12 United States, et al.,

No. 2:17-cv-00094-RAJ
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION
NOTED ON MOTION CALENDAR: July 18, 2017

13

Defendants.

14

15

16

17

18

19

20

21

22

23

24

25

26 PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO
RECONSIDER CLASS CERTIFICATION (No. 2:17-cv-00094-RAJ)
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Case 2:17-cv-00094-RAJ Document 75 Filed 07/13/17 Page 2 of 14

1 INTRODUCTION
2 The Court should deny Defendants’ motion to reconsider for three reasons. First, the
3 motion simply recycles arguments the Court has already considered and rejected, and therefore
4 falls well short of meeting the high threshold of “manifest error” under Local Rule 7(h).
5 Second, Defendants’ commonality argument, once again, wrongly asserts that Plaintiffs’
6 injuries are merely “abstract” and that there are no common causes for these injuries. As this
7 Court already has concluded, commonality exists because Plaintiffs assert that the government
8 has subjected all class members to an extra-statutory and illegal adjudication process (the
9 Controlled Application Review and Resolution Program, or “CARRP”)—which similarly
10 situated applicants are not subjected to, and which carries the attendant harms of unreasonable
11 delay and pretextual denials, obfuscation, and impairment of daily life. Moreover, Defendants’
12 argument conflates two separate doctrines: commonality (common questions of law and fact
13 among class members) and Article III standing (concrete injury-in-fact).
14 Third, Defendants’ grievance with the class definition is not a reason to deny
15 certification—if anything, it is a reason to expand the certified classes. Defendants criticize the
16 definitions for being limited to persons whose applications have been pending for at least six
17 months. While the six-month benchmark is a rational limitation, Plaintiffs are willing to amend
18 the definitions to all persons who have been subjected to CARRP—regardless of how long their
19 applications have been pending. And, of course, as this Court recognized, nationwide
20 certification is necessary to effectively enjoin CARRP.
21 Accordingly, Plaintiffs respectfully request the Court deny Defendants’ Motion to
22 Reconsider Class Certification.
23

24

25

26

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1

ARGUMENT

2 A. 3

Reconsideration is Strongly Disfavored Local Rule 7(h) states that the Court should “ordinarily deny” a motion for

4 reconsideration unless the moving party demonstrates “manifest error” in the Court’s prior ruling 5 or “new facts or legal authority which could not have been brought to its attention earlier with 6 reasonable diligence.” It follows that when a motion for reconsideration “merely rehashes the 7 same arguments already made and rejected by the Court,” it “may be denied for this reason

8 alone.” Ledcor Indus. (USA) Inc. v. Virginia Sur. Co., No. 09-CV-01807 RSM, 2012 WL

9 223904, at *1 (W.D. Wash. Jan. 25, 2012); see also Anderson v. Domino’s Pizza, Inc., No. 11-

10 CV-902 RBL, 2012 WL 2891804, at *1 (W.D. Wash. July 16, 2012) (noting reconsideration is

11 an “extraordinary remedy” that “should not be granted . . . unless the district court is presented 12 with newly discovered evidence, committed clear error, or if there is an intervening change in the 13 controlling law”) (quotations omitted).

14

Defendants fail to meet this stringent standard. Indeed, their standing and commonality

15 arguments (Dkt. 73 at 1-4) mirror those made in their motion to dismiss (Dkt. 56 at 9-10), their

16 reply in support of their motion to dismiss (Dkt. 61 at 2-4), and their opposition to Plaintiffs’

17 motion for class certification (Dkt. 60 at 7-14). And their contentions related to Plaintiffs’ class 18 definitions both rehash old arguments (as to nationwide certification, see Dkt. 60 at 19 n.10) and 19 improperly raise new evidence and arguments that easily could have been raised earlier (as to the 20 six-month limitation). Reconsideration is simply not appropriate. Moreover, the Court’s ruling

21 was correct.

22 B. 23

Plaintiffs Share Common Questions, Contentions, Answers, and Injury A central prerequisite to class certification is a showing that “there are questions of law

24 or fact common to the class.” FED. R. CIV. P. 23(a)(2). As Defendants admit (Dkt. 60 at 6, 8) 25 and the Court correctly held (Dkt. 69 at 24-26), the inquiry most determinative of commonality 26 is whether consideration as a class will generate answers common to class members. See Wal-

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1 Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011). The Supreme Court expanded on this

2 edict in Dukes, explaining that common answers are generated where the claims of each class

3 member “depend upon a common contention” such that “determination of [their] truth or falsity

4 will resolve an issue that is central to the validity of each . . . claim[] in one stroke.” Id. Where

5 this is true, Plaintiffs can be said to have suffered the “same injury” and commonality is

6 established. See id. The Court properly and expressly considered these very factors in its order

7 granting class certification. Dkt. 69 at 24-25 (citing cases that directly quote Dukes for both

8 propositions).

9

Defendants criticize the Court for relying on the Ninth Circuit’s statement in Hanlon v.

10 Chrysler Corp. that “shared legal issues with divergent factual predicates is sufficient” to show

11 commonality, contending that Dukes overruled Hanlon’s proposition by requiring Plaintiffs to

12 show the “same injury.” Dkt. 73 at 3; see Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th

13 Cir. 1998). But class members in fact suffer the “same injury” under Dukes where

14 (1) consideration as a class will generate common answers and (2) the claims depend on a

15 “common contention” such that the validity of each claim will be determined in one stroke.

16 Hanlon simply emphasizes the qualification inherent in Rule 23(a) itself—the rule requires

17 common questions of law or fact, but not both. FED. R. CIV. P. 23(a)(2). Since Dukes, the Ninth

18 Circuit has consistently advanced this view of commonality and continues to cite Hanlon for the

19 proposition the Court did here—a clarification that the “common contention” required by Dukes

20 can be based on shared legal issues with different factual predicates. See, e.g., Jimenez v.

21 Allstate Ins. Co., 765 F.3d 1161, 1165 (9th Cir. 2014) (finding commonality in class action

22 against employer where common questions concerning employer’s unofficial policy against

23 reporting overtime and its impact on employees drove the answer to plaintiffs’ claims); Meyer v.

24 Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041-42 (9th Cir. 2012) (finding commonality

25 in class action against debt collector among individuals contacted via cellular telephone numbers

26 obtained by “skip-tracing”).

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1

Plaintiffs clearly meet this legal standard for commonality because there is a common

2 contention running through all the class members’ claims (that their immigration applications

3 have been subjected to CARRP and that this program is illegal for several reasons) and

4 consideration as a class will therefore generate common answers (CARRP violates the

5 Constitution, the APA, and the INA and so the Court should enjoin Defendants from applying it

6 to Plaintiffs’ applications). Finally, because they all seek the same relief—adjudication of their

7 immigration applications by legislatively-sanctioned criteria instead of CARRP—all of the class

8 members’ claims can be resolved together in one stroke, without delving into the facts particular

9 to individual applications.

10

Defendants’ contention that Plaintiffs must prove individualized ways that CARRP has

11 harmed each class member misunderstands the basis for commonality that Plaintiffs asserted and

12 this Court found. Because Plaintiffs “are not seeking damages, only injunctive relief against a

13 policy that allegedly is applied to all members of the class indiscriminately[,] Plaintiffs may

14 properly offer evidence and argument as to any number of potential consequences resulting from

15 such a policy without the added requirement for each class member to show he or she has

16 suffered, or will suffer, all of those consequences, or any particular subset of them.” Abadia-

17 Peixoto v. U.S. Dep’t of Homeland Sec., 277 F.R.D. 572, 577 (N.D. Cal. 2011); cf. Dukes, 564

18 U.S. at 349-60 (finding no commonality because, in absence of company-wide discrimination

19 policy, resolution of claims would require proof of how each manager engaged in discriminatory

20 decision-making in violation of Title VII). The facts particular to each individual class

21 member’s application will be relevant only after the conclusion of this litigation; if CARRP is

22 enjoined, each class member’s application will be adjudicated solely on its merits pursuant to the

23 statutory criteria.

24

Defendants urge Plaintiffs must demonstrate some “glue holding the alleged reasons for

25 delay together,” and contend that some class members’ “applications may take longer than six

26 months to process” for reasons “entirely unrelated” to CARRP. Dkt. 73 at 3-4. Yet this

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1 contention does not negate that CARRP itself causes delay. Dkt. 47 ¶¶ 59, 61, 77, 91-97

2 (explaining how CARRP causes delay).

3

By definition, the classes are limited to applicants who have been subjected to CARRP.

4 CARRP defines a process for classifying immigration benefit applicants as “national security

5 concerns.” Once an application is branded with the “national security concern” label, it is taken

6 off the routine, congressionally-mandated adjudication track and is instead subjected to a special

7 CARRP adjudication process. See, e.g., Dkt. 49 at 4-6. During CARRP adjudication, if no

8 reason to deny can be identified straightaway, the application is shuffled through a series of

9 reviews designed to indefinitely delay the adjudication decision. See Dkt. 27-1, Ex. A at 17-18

10 (“Officers are not authorized to approve applications” subject to CARRP); id. Ex. B at 2 (an

11 officer “is not authorized to approve applications or petitions” subject to CARRP); id. Ex. C at 9-

12 10 (CARRP flow charts). Because class members’ applications are all subjected to the

13 extrastatutory hurdles imposed by CARRP, they all faced delays and additional obstacles that

14 cannot be dismissed as simply routine delays that process entails. Instead, the class members

15 experience delays directly tied to their subjection to CARRP adjudication.

16 C. 17

Plaintiffs Have Suffered a Concrete Injury Sufficient to Confer Standing Defendants attempt to revive their argument that the injury Plaintiffs allege is too

18 “abstract” to confer standing, and that the Court therefore lacks jurisdiction. Dkt. 73 at 1-3. To

19 the contrary, CARRP has concretely injured all class members by applying an entirely distinct,

20 and secret, set of adjudicatory standards to their adjustment of status and naturalization

21 applications that are not applied to similarly situated applicants.

22

At the outset, Defendants recycle this argument from their motion to dismiss, directly

23 lifting text and legal citation, and this fact is reason enough to reject it. Compare Dkt. 56 at 10

24 (citing Lance v. Coffman, Allen v. Wright, and Novak v. United States for the proposition that

25 “abstract disputes—even those alleging the government has acted unlawfully—are insufficient to

26 establish jurisdiction”), with Dkt. 73 at 2 (same). A motion to dismiss is the proper place to raise

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1 standing, and the Court considered and denied Defendants’ motion to dismiss on this ground.

2 Dkt. 69 at 10-11. Defendants have not moved to reconsider the Court’s decision denying their

3 motion to dismiss and should not be permitted to revive this argument in the context of

4 reconsideration of class certification.

5

In any event, Defendants’ argument fails on the merits because the injury Plaintiffs have

6 suffered is anything but abstract. Discrimination—here, the uneven treatment of immigration

7 applications via CARRP—is itself a concrete and particularized injury. See, e.g., Heckler v.

8 Mathews, 465 U.S. 728, 739-40 (1984) (recognizing stigmatization from gender discrimination

9 constitutes injury-in-fact). Plaintiffs are legally in the United States and have applied to adjust

10 their status to that of a lawful permanent resident or a naturalized U.S. citizen. Instead of being

11 adjudicated according to the criteria for adjustment of status and naturalization established by

12 Congress, Plaintiffs—unbeknownst to them and to the American people—have been placed in an

13 extrastatutory program imposing additional obstacles designed to result in either indefinite

14 delays or pretextual denials. Their placement in this program was made without their knowledge

15 and, upon information and belief, was based on arbitrary factors that discriminate against

16 Muslims and nationals of Muslim-majority countries. Plaintiffs state a concrete injury because

17 their immigration benefit applications have been subjected to this illegal program that

18 discriminates on the basis of race, religion, and national origin.

19

Defendants argue that enjoining CARRP would be equivalent to “issu[ing] an advisory

20 opinion” because, without proof that CARRP is the cause for the delay experienced by each and

21 every plaintiff, class members can only establish “abstract harm.” Dkt. 73 at 2. This is incorrect.

22

First, Plaintiffs do allege that CARRP is the reason for the delay experienced by each of

23 the named Plaintiffs and all of the accompanying class members. As explained above, Plaintiffs

24 contend the delay they have experienced is caused by CARRP separate from the other reasons an

25 application may be delayed. Dkt. 47 ¶¶ 160-61, 173, 175, 196, 198, 217, 219, 234, 235 (alleging

26 CARRP has caused delay in adjudication of each named Plaintiff).

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION (No. 2:17-cv-00094-RAJ) – 6
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1

Second, the concrete injury experienced by each class member goes beyond delay—the

2 fact that their applications are being adjudicated subject to different, more stringent, and more

3 opaque standards than those authorized by Congress establishes a concrete injury sufficient to

4 confer standing. And though CARRP causes delay in many cases, for many the program also

5 causes pretextual denial, underscoring that the injury stems from application of CARRP and not

6 any one resultant harm.

7

Finally, the cases Defendants cite in support of their argument are inapposite.

8 Defendants rely on several cases that address citizen suits alleging generalized grievances, which

9 are different in kind from the injury experienced by Plaintiffs. See Lance v. Coffman, 549 U.S.

10 437, 441-42 (2007) (voters challenged procedure used to draw electoral districts); Allen v.

11 Wright, 468 U.S. 737, 739-40 (1984) (parents challenged IRS’s decision to permit racially

12 discriminatory private schools to maintain their tax-exempt status). But see Novak v. United

13 States, 795 F.3d 1012, 1018 (9th Cir. 2015) (plaintiffs stated a pecuniary injury and damages as a

14 result of purchasing domestic ocean cargo shipping services, and therefore established an injury-

15 in-fact). The Ninth Circuit routinely distinguishes between the type of concrete injury at issue

16 here and the kind of generalized non-cognizable injuries at issue in Coffman and Wright. E.g.,

17 Chadha v. Immigration & Naturalization Serv., 634 F.2d 408, 418 (9th Cir. 1980) (holding

18 plaintiff had “specific and concrete” injury conferring standing, rather than a “generalized

19 grievance,” where he challenged the INA’s provision of veto power to Congress over deportation 20 decisions).1

21
1 Additionally, Defendants’ reliance on Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir.
22 2012), is misplaced. As this Court has recognized, Mazza conflicts with en banc Ninth Circuit precedent holding
“standing is satisfied if at least one named plaintiff meets the requirements.” Rivera v. Holder, 307 F.R.D. 539, 549
23 n.5 (W.D. Wash. 2015) (quoting Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir.2007)). And to the
extent Mazza is good law, its holding concerns only class actions seeking damages under Rule 23(b)(3) where
24 common issues of law and fact must “predominate,” and not those seeking injunctive relief under Rule 23(b)(2)
where injunctive relief must merely be “appropriate respecting the class as a whole.” Compare FED. R. CIV. P.
25 23(b)(3), with FED. R. CIV. P. 23(b)(2); see Mazza, 666 F.3d at 586, 594-95. Because Plaintiffs seek only injunctive
relief under Rule 23(b)(2), it is not necessary to prove that each and every class member has standing—the concrete
26 injury of one named Plaintiff is enough.

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1 D. The Court’s Class Definitions Are Proper

2

1. The Six-Month Benchmark Is Rational

3

The Court has certified two classes pursuant to Rules 23(a) and 23(b)(2). Dkt. 69 at 8.

4 The classes encompass individuals (1) who have or will have an application for naturalization

5 (the first class) or adjustment of status (the second class) pending before USCIS, (2) that is

6 subject to CARRP or a successor “extreme vetting” program, and (3) that has not been or will

7 not be adjudicated by USCIS within six months of having been filed. Id. (emphasis added).

8 According to Defendants, the six-month benchmark is irrational because the six-month

9 adjudicatory period is not mandatory. Defendants’ logic is flawed. It is not true that precatory

10 language “has no legal significance,” even if that language does not necessarily give rise to

11 “individual rights” or “enforceable law.” Dkt. 73 at 5. On the contrary, courts regularly rely on

12 precatory language to construe statutes. See Accardi v. Pennsylvania R.R. Co., 383 U.S. 225,

13 228-29 (1996) (finding that provision containing “sense of Congress” language showed

14 “continuing purpose of Congress” already established in another law); State Highway Comm’n of

15 Missouri v. Volpe, 479 F.2d 1099, 1116 (8th Cir. 1973) (finding that “sense of Congress”

16 provision “can be useful in resolving ambiguities in statutory construction”). The disputed

17 precatory language is likewise informative here. It sets forth a congressional policy

18 determination—that immigration benefits should be processed not later than 180 days after the

19 initial application filing. 8 U.S.C. § 1571(b). That determination is relevant to identifying a

20 class of individuals whose immigration applications have been delayed for improper purposes.

21 Plaintiffs’ reliance on Congress’ “sense” is therefore reasonable.

22

Defendants further contend that the six-month benchmark is irrational because the

23 benchmark standing alone does not distinguish delays caused by CARRP from delays caused by 24 application backlog. Dkt. 73 at 5.2 This argument ignores that the six-month benchmark

25
2 Defendants have submitted new evidence suggesting that the average wait times for naturalization and

26 adjustment of status applications exceed six months. See Dkt. 73, Ex. A. Because Defendants submit “new facts . . .

which could . . . have been brought to [the Court’s] attention earlier with reasonable diligence,” the Court should

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION (No. 2:17-cv-00094-RAJ) – 8

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099

Phone: 206.359.8000

136130935.4

Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 75 Filed 07/13/17 Page 10 of 14

1 constitutes but one element of a three-element definition. By design, that definition only

2 encompasses naturalization and adjustment-of-status applicants (element 1) whose applications

3 have both been delayed (element 3) and subject to CARRP or a successor “extreme vetting”

4 program (element 2). Applicants not subject to CARRP or an “extreme vetting” program do not

5 fall into either class. Thus, even if the six-month benchmark “does no work” in separating

6 CARRP from non-CARRP delays as Defendants contend, id. at 5, that benchmark coupled with

7 element (2) of the class definitions does precisely that work.

8

The six-month benchmark reflects Plaintiffs’ recognition that Congress anticipated

9 processing naturalization and adjustment-of-status applications might reasonably take six

10 months. Nonetheless, Plaintiffs are amenable to striking the six-month benchmark and

11 expanding the scope of the class definition to encompass all individuals whose applications have

12 been subject to CARRP or a successor “extreme vetting” program. Plaintiffs have consistently

13 recognized the Court’s authority to shape the class definitions as appropriate. See Dkt. 63 at 5 14 n.2.3

15

2. The Court Properly Certified Nationwide Classes

16

Defendants expressly recognize the Court is “entitled to exercise its discretion in defining

17 classes.” Dkt. 73 at 5; see also Dkt. 60 at 19. That discretion applies to crafting class

18 definitions. Johnson v. Shalala, 2 F.3d 918 (9th Cir. 1993) (reviewing district court’s class

19 definition order for an abuse of discretion); see also Armstrong v. Davis, 275 F.3d 849, 872 (9th

20 Cir. 2001) (courts may exercise discretion to modify class definitions). Defendants do not—

21 because they cannot—explain how the Court abused its discretion in certifying nationwide

22

deny Defendants’ motion for reconsideration. See LCR 7(h). In any event, this evidence demonstrates that, absent

23 CARRP, applications being adjudicated now were filed in 2016. In contrast, named Plaintiffs’ applications were

filed in 2013 (Wagafe & Jihad), 2014 (Ostadhassan), and 2015 (Bengezi & Manzoor).

24

3 Defendants’ counsel certified that they “thoroughly discussed the substance” of the motion with

Plaintiffs’ counsel and that good faith discussions to resolve the issues were unsuccessful. Dkt. 73 at 6. This is not

25 accurate. Plaintiffs’ counsel pointed this out and initiated a substantive discussion on the motion after its filing, in

particular on the class definitions. Defendants’ counsel did not accept the invitation to discuss Plaintiffs’ proposed

26 modifications and Defendants have not suggested their own class definitions. See Declaration of Nicholas P.

Gellert, filed herewith, and Exhibit A thereto.

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION (No. 2:17-cv-00094-RAJ) – 9

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099

Phone: 206.359.8000

136130935.4

Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 75 Filed 07/13/17 Page 11 of 14

1 Naturalization and Adjustment Classes. On the contrary, the Court’s decision fits comfortably 2 within a long tradition of nationwide class certification in immigration cases.4 Certification on a

3 nationwide basis is precedented because it is necessary: USCIS, a federal agency, applies

4 CARRP to applicants residing across the nation. See, e.g., Dkt. 27-1, Ex. A (addressing CARRP

5 memorandum to all USCIS field leadership and outlining a centralized process for reviewing all

6 immigration benefit applications posing national security concerns); Dkt. 74 ¶ 243 (Defendants

7 admit “[i]ndividuals whose applications are being handled under CARRP may reside in various

8 locations around the country”). If CARRP in fact violates the Constitution, the APA, and/or the

9 INA as Plaintiffs believe, the program is equally illegal as applied to applicants in every state.

10

Finally, Defendants’ repeated contention that the Court may not rely on the Uniform Rule

11 of Naturalization to certify the classes misses the mark. See Dkt. 73 at 5; Dkt. 60 at 19. The

12 Court was well within its authority to certify nationwide classes notwithstanding the Rule. To be

13 sure, however, the Court’s decision does accord with the Rule, which provides Congress with

14 “broad, undoubted power over the subject of immigration and the status of aliens.” See, e.g.,

15 Arizona v. United States, 567 U.S. 387, 394-95 (2012). Defendants fail to explain why this

16 “broad, undoubted power” is at odds with nationwide treatment of adjustment-of-status issues.

17

CONCLUSION

18

Defendants’ Motion to Reconsider Class Certification should be denied.

19

20

4 See, e.g., Mendez Rojas, et al. v. Johnson, et al., 2:16-cv-01024-RSM, Dkt. 37 (W.D. Wash. Jan. 10,

2017) (certifying two nationwide classes of asylum seekers challenging defective asylum application procedures);

21 A.B.T. v. U.S. Citizenship & Immigration Servs., No. C11-2108 RAJ, 2013 WL 5913323 (W.D. Wash. Nov. 4, 2013)

(certifying nationwide class and approving settlement amending practices by the Executive Office for Immigration

22 Review and USCIS that precluded asylum applicants from receiving employment authorization); Santillan v.

Ashcroft, No. C 04-2686 MHP, 2004 WL 2297990, at *12 (N.D. Cal. Oct. 12, 2004) (certifying nationwide class of

23 lawful permanent residents challenging delays in receiving documentation of their status); Ali v. Ashcroft, 213

F.R.D. 390, 409-10 (W.D. Wash. 2003) (certifying nationwide class of Somalis challenging legality of removal to

24 Somalia in the absence of a functioning government), aff’d, 346 F.3d 873, 886 (9th Cir. 2003), vacated on other

grounds, 421 F.3d 795 (9th Cir. 2005); Gorbach v. Reno, 181 F.R.D. 642, 644 (W.D. Wash. 1998) (certifying

25 nationwide class of persons challenging validity of administrative denaturalization proceedings), aff’d on other

grounds, 219 F.3d 1087 (9th Cir. 2000) (en banc); Walters v. Reno, No. C94-1204C, 1996 WL 897662, at *5-8

26 (W.D. Wash. Mar. 13, 1996) (certifying nationwide class of individuals challenging adequacy of notice in document

fraud cases), aff’d, 145 F.3d 1032, 1045-47 (9th Cir. 1998), cert. denied, Reno v. Walters, 526 U.S. 1003 (1999).

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION (No. 2:17-cv-00094-RAJ) – 10

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099

Phone: 206.359.8000

136130935.4

Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 75 Filed 07/13/17 Page 12 of 14

DATED: July 13, 2017

1

2

s/Jennifer Pasquarella (admitted pro hac vice) ACLU Foundation of Southern California

s/Harry H. Schneider, Jr. Harry H. Schneider, Jr. #9404

3 1313 W. 8th Street Los Angeles, CA 90017

s/Nicholas P. Gellert Nicholas P. Gellert #18041

4 Telephone: (213) 977-5236

s/David A. Perez

Facsimile: (213) 997-5297 5 jpasquarella@aclusocal.org

David A. Perez #43959 s/Laura K. Hennessey

6

Laura K. Hennessey #47447 Attorneys for Plaintiffs

7

Perkins Coie LLP

1201 Third Avenue, Suite 4900

8

Seattle, WA 98101-3099

Telephone: 206.359.8000

9

Facsimile: 206.359.9000

10

Email: HSchneider@perkinscoie.com NGellert@perkinscoie.com

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DPerez@perkinscoie.com

LHennessey@perkinscoie.com

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s/Matt Adams 13 s/Glenda M. Aldana Madrid

14

Matt Adams #28287 Glenda M. Aldana Madrid #46987

15 Northwest Immigrant Rights Project 615 Second Ave., Suite 400

16 Seattle, WA 98122

Telephone: (206) 957-8611 17 Facsimile: (206) 587-4025

18 matt@nwirp.org glenda@nwirp.org

s/Trina Realmuto (admitted pro hac vice) s/Kristin Macleod-Ball (admitted pro hac vice) National Immigration Project
of the National Lawyers Guild 14 Beacon St., Suite 602 Boston, MA 02108 Telephone: (617) 227-9727 Facsimile: (617) 227-5495 trina@nipnlg.org kristin@nipnlg.org

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26 PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO
RECONSIDER CLASS CERTIFICATION (No. 2:17-cv-00094-RAJ) – 11
136130935.4

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 75 Filed 07/13/17 Page 13 of 14

1 s/Stacy Tolchin (admitted pro hac vice)
Law Offices of Stacy Tolchin 2 634 S. Spring St. Suite 500A
3 Los Angeles, CA 90014 Telephone: (213) 622-7450
4 Facsimile: (213) 622-7233 Stacy@tolchinimmigration.com
5

6

s/Hugh Handeyside Hugh Handeyside #39792

7 s/Lee Gelernt (admitted pro hac vice) s/Hina Shamsi (admitted pro hac vice)

8 American Civil Liberties Union Foundation

125 Broad Street 9 New York, NY 10004

10

Telephone: (212) 549-2616 Facsimile: (212) 549-2654

11 lgelernt@aclu.org hhandeyside@aclu.org

12 hshamsi@aclu.org

s/Emily Chiang Emily Chiang #50517 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Echiang@aclu-wa.org

13
Attorneys for Plaintiffs
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PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION (No. 2:17-cv-00094-RAJ) – 12
136130935.4

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 75 Filed 07/13/17 Page 14 of 14

CERTIFICATE OF SERVICE

1 The undersigned certifies that on the dated indicated below, I caused service of the

2 foregoing PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO RECONSIDER

3 CLASS CERTIFICATION via the CM/ECF system that will automatically send notice of such

4 filing to all counsel of record herein.

5 DATED this 13th day of July, 2017, at Seattle, Washington.

6

s/Laura K. Hennessey

7

Laura K. Hennessey #47447

8

Attorneys for Plaintiffs

Perkins Coie LLP

9

1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099

10

Telephone: 206.359.8000

11

Facsimile: 206.359.9000 Email: LHennessey@perkinscoie.com

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26 CERTIFICATE OF SERVICE (No. 2:17-cv-00094-RAJ)
– 1
136130935.4

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

 
 Case 2:17-cv-00094-RAJ Document 77 Filed 07/18/17 Page 1 of 9

1

The Honorable Richard A. Jones

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9
ABDIQAFAR WAGAFE, et al., on 10 behalf of themselves and others similarly 11 situated,

12

Plaintiffs,

13

v.

No. 2:17-cv-00094-RAJ
DEFENDANTS’ REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION

14
DONALD TRUMP, President of the 15 United States, et al.,

16

Defendants.

17

HON. RICHARD A. JONES
NOTED ON MOTION CALENDAR: July 18, 2017

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20

21

22

23

24

25

26

27

28

DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 77 Filed 07/18/17 Page 2 of 9

1

The Court should grant Defendants’ Motion to Reconsider Class Certification

2 (Dkt. 73) because the Court committed manifest error in certifying two nationwide

3 classes that may contain members lacking Article III standing. See L.R. 7(h). Further,

4 Plaintiffs’ Response to Defendants’ Motion to Reconsider Class Certification (Dkt. 75),

5 presents no viable basis to avoid this conclusion, confuses individual facts pertinent to

6 remedies with those pertinent to jurisdiction, and inaccurately describes case law.

7

A. Defendants Have Properly Asserted Manifest Error under Local Rule 7(h)1

8

Defendants are now directly responding to the Court’s analysis, see Dkt. 73 at 2,

9 which is the appropriate means of raising arguments of manifest error. Indeed,

10 Defendants could not have challenged the basis for the Court’s decision before it issued.

11

Furthermore, to the extent that Plaintiffs suggest Defendants should have

12 previously raised an argument that the six-month cut-off in the class definitions was

13 inappropriate, Defendants did so. (Dkt. 60 at 10-11). The Court did not address that

14 concern. Lack of meaningful analysis weighs in favor of reconsideration. Cf. Bateman v.

15 U.S. Postal Serv., 231 F.3d 1220, 1224 (9th Cir. 2000). Moreover, to the extent Plaintiffs

16 contend “[a] motion to dismiss is the proper place to raise standing, and . . . . Defendants

17 have not moved to reconsider the Court’s decision denying their motion to dismiss . . .”

18 (Dkt. 75 at 5-6), Plaintiffs miss the point. Defendants are not challenging the Court’s

19 ruling on standing to bring this action. Rather, Defendants challenge the standing of

20 some class members in the context of commonality and class certification based on the

21 definition of the certified classes.2

22
B. The Only “Common Injury” Plaintiffs Allege Is Not Legally Cognizable
23
Plaintiffs suggest that a “common injury” for Rule 23(a) purposes under Walmart
24
Stores, Inc. v. Dukes, 564 U.S. 338 (2011), may be identified where “(1) consideration as
25

26 1 Defendants maintain that they met their obligations to confer with opposing counsel concerning the instant motion for the reasons explained in the email correspondence attached to Plaintiff’s response. (See Dkt. 76, Ex. A.)
27
2 In any event, because standing is jurisdictional, the Court is “obliged to raise it sua sponte,” Gator.com Corp. v. 28 L.L. Bean, Inc., 398 F.3d 1125, 1129 (9th Cir. 2005), regardless of whether and when a party raises it. See Arbaugh
v. Y & H Corp., 546 U.S. 500, 506 (2004).

DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 1 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 77 Filed 07/18/17 Page 3 of 9

1 a class will generate common answers and (2) the claims depend upon a ‘common

2 contention’ such that the validity of each claim will be determined in one stroke.” (Dkt.

3 75 at 3). But the “claim” in question must still be legally cognizable as to each class

4 member. See Soseeah v. Sentry Ins., 808 F.3d 800, 809 (8th Cir. 2015) (analyzing

5 “whether the certified class of plaintiffs suffered a common and legally cognizable

6 injury”) (emphasis added); Rivera v. Holder, 307 F.R.D. 539, 549 & n.5 (W.D. Wash.

7 2015) (noting the “trend in this Circuit after Mazza to scrutinize the standing of absent

8 class members” and finding “it necessary to exclude [from the class definition] those

9 groups who clearly lack standing to seek relief.”);3 Burdick v. Union Sec. Ins. Co., 2009

10 WL 4978873, *3-*4 (C.D. Cal. Dec. 9, 2009). Otherwise, the common answer generated

11 by class treatment is nothing more than an advisory opinion as to those class members

12 who lack a cognizable injury. That result would conflict with the Supreme Court’s

13 admonition that “Rule 23’s requirements must be interpreted in keeping with Article III

14 constraints.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612-13 (1997); see also

15 Fed. R. Civ. P. 82 (federal rules do not extend the jurisdiction of district courts).

16

Plaintiffs have failed to establish that all class members will have legally

17 cognizable claims because some applications filed by class members may take longer

18 than six months to adjudicate for reasons unrelated to CARRP, notwithstanding that they

19 are subject to CARRP. It is black-letter law that Article III standing demands “an injury

20 in fact that is concrete and particularized . . . fairly traceable to the challenged action of

21 the defendant.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). But Plaintiffs

22 claim only that “their immigration applications have been subjected to CARRP and that

23 this program is illegal.” (Dkt. 73 at 4). That is not an injury-in-fact. An allegation that

24 3 Plaintiffs suggested Defendants’ reliance on Mazza was misplaced, and represented to the Court that another judge
25 in this district “has recognized [that] Mazza conflicts with en banc Ninth Circuit precedent holding ‘standing is satisfied if at least one named plaintiff meets the requirements.’ Rivera v. Holder, 307 F.R.D. 539, 549 n.5 (W.D.
26 Wash. 2015).” (Dkt. 75 at 7 n.1). This is inaccurate. Rivera went on to note the “trend in this Circuit after Mazza to scrutinize the standing of absent class members,” 307 F.R.D. at 549, and ultimately concluded that “while district
27 courts in this Circuit are divided on this issue, the Court finds it necessary to exclude those groups who clearly lack standing to seek relief [from the class definition],” id. at 549 n.5. Thus, contrary to Plaintiffs’ suggestion, Rivera
28 supports rather than undermines Defendants’ position.

DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 2 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 77 Filed 07/18/17 Page 4 of 9

1 the government acted illegally is not a concrete injury absent a showing that some actual 2 harm befell Plaintiffs as a result of that allegedly illegal action. See Spokeo, Inc. v. 3 Robins, 136 S. Ct. 1540, 1548 (2016) (“A ‘concrete’ injury must be ‘de facto’; that is, it 4 must actually exist.”); see also Hollingsworth v. Perry, 133 S. Ct. 2652, 2663 (2013); 5 Powers v. Ohio, 499 U.S. 400, 410 (1991). An allegation of illegality in the air is not 6 enough.4 E.g., Lance v. Coffman, 549 U.S. 437, 441-42 (2007) (per curiam); Novak v. 7 United States, 795 F.3d 1012, 1018 (9th Cir. 2015). CARRP is lawful. But even if this 8 Court were to find otherwise, Plaintiffs would also be required to establish that CARRP 9 is the proximate cause of delay beyond six months in adjudicating every class member’s 10 application.5 Notably, Plaintiffs have not even asserted a plausible allegation of such 11 proximate relationship. Accordingly, some class members will undoubtedly have no 12 cognizable claim that CARRP, and not some other fact or issue, delayed adjudication of 13 their applications—they would not have been adjudicated any faster had they not been 14 subject to CARRP. As in Soseeah, where some class members have no cognizable claim 15 at all, “there is simply no common injury among the general certified class that would 16 satisfy the requirements of Fed. R. Civ. P. 23(a)(2).”6 Soseeah, 808 F.3d at 811; Rivera, 17 307 F.R.D. at 549 & n.5; Burdick, 2009 WL 4978873 at *3-*4; see also Mazza v. Am.

18

19
20 4 Plaintiffs’ analogy to Heckler v. Matthews, 465 U.S. 728 (1984), which held that public stigmatization flowing from illegal gender discrimination can constitute a concrete injury, is inapposite. In that case it was the
21 stigmatization, not the abstract illegality, which constituted the concrete harm. In any event, it is hardly evident how Plaintiffs believe public stigmatization will flow from a program that Plaintiffs themselves describe as a “secretive
22 policy,” (Dkt. 1 ¶1), that “was unknown to the public . . . until it was discovered in litigation” (Dkt. 47 ¶59).

23 5 As Plaintiffs point out, they have alleged CARRP is the cause of delay generally (Dkt. 75 at 6) but to the extent any class member has other supervening causes of delay, CARRP is no longer the proximate cause of the delay and
24 thus no longer constitutes a concrete injury. As to Plaintiffs’ claim that “for many the program also causes pretextual denial” (Dkt. 75 at 7), no named plaintiff and neither of the classes encompass anyone whose application
25 has been denied. Although Plaintiffs have repeatedly made unsupported references to pretextual denials (collected at Dkt. 56 at 9 n.6.), they are simply not at issue in this case.
26
6 Plaintiffs reliance on Chadha v. INS, 634 F.2d 408 (9th Cir. 1980) (see Dkt. 75 at 7) is misplaced as well. In that 27 case the plaintiff had standing to challenge a statutory scheme because if he prevailed it would have resulted in “the
cancellation of his deportation order.” INS v. Chadha, 462 U.S. 919, 936 (1983). Individuals whose applications 28 are subject to CARRP but which are delayed for other reasons are not similarly harmed, and judicial resolution of
CARRP’s lawfulness will not in and of itself redress the delay they are experiencing.

DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 3 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 77 Filed 07/18/17 Page 5 of 9

1 Honda Motor Co., 666 F.3d 581, 594 (9th Cir. 2012); Denney v. Deutsche Bank AG, 443

2 F.3d 253, 264 (2d Cir. 2006).

3 C. Plaintiffs Conflate Differing Factual Predicates for Commonality with a Complete Lack of Concrete Injury
4

5

Plaintiffs observe that differing factual predicates do not preclude class treatment.

6 (Dkt. 75 at 4). That is a correct, but irrelevant point. The relevant question is whether all

7 class members have established that they have a common, legally cognizable, injury.

8 Soseeah, 808 F.3d at 809. As explained above, they have not. Plaintiffs then go on to

9 suggest that “[t]he facts particular to each individual class member’s application will be

10 relevant only after the conclusion of this litigation.” (Dkt. 75 at 4.) This inverts the

11 proper order of jurisdiction and merits. The Court should not certify a class now, proceed

12 to the merits, and only after liability is determined, decide which class members actually

13 had standing to begin with. There is no question whether individual plaintiff class

14 members will have different factual predicates – it is plain that they do, and that they may

15 have non-CARRP causes for delay. The problem arises in those cases subject to CARRP

16 where CARRP is not the proverbial long stick. Those individuals’ cases would not be

17 adjudicated any faster even if their applications were not subject to CARRP.

18 Accordingly, CARRP causes them no concrete injury and, as explained above, they lack

19 standing and their inclusion in the class definitions preclude commonality.

20

D. Plaintiffs Construction of the Class Definitions Deny the Possibility That

Factors Other Than CARRP Cause Delay in CARRP Cases

21
The parties agree that 8 U.S.C. § 1571(b) “sets forth a congressional policy

22
determination” (Dkt. 73 at 8) and that it does not constitute enforceable law.

23
Nevertheless, it has no bearing on this matter. While that congressional policy might be

24
relevant in another context, such as determining whether a particular delay is

25
unreasonable under 5 U.S.C. § 555(b), it is not relevant to identifying a class of

26
individuals whose applications have been delayed for unlawful reasons. Indeed, it does

27
not even identify a class of individuals whose applications have been delayed beyond

28
current processing times for any reason. (See Dkt. 73-1).

DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 4 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 77 Filed 07/18/17 Page 6 of 9

1

Plaintiffs respond that “even if the six-month benchmark ‘does no work’ in

2 separating CARRP from non-CARRP delays . . . that benchmark coupled with element

3 (2) of the class definitions [and subject to CARRP or an ‘extreme vetting’ program] does

4 precisely that work.” Not so. The class definition would identify those with applications

5 pending longer than six months and who were subject to CARRP. They do not separate

6 those applications not adjudicated within six months because of CARRP from those that

7 were not adjudicated within six months for other reasons, despite also being subject to

8 CARRP. As explained above, merely having an application processed pursuant to

9 CARRP cannot constitute a concrete injury unless CARRP is the proximate cause of

10 unlawful delay in adjudication.

11 E. The Uniform Rule Clause Provides No Basis for Nationwide Classes

12

As Defendants previously explained, the uniformity required by Article I, § 8, cl. 4

13 is not uniformity with respect to persons. Hanover Nat’l Bank v. Moyses, 186 U.S. 181,

14 190 (1902). Accordingly, it provides no basis to certify a nationwide class to ensure that

15 all applications are processed in the same manner. Moreover, the Uniform Rule Clause

16 simply does not support an adjustment-of-status class at all, nationwide or otherwise.

17

Indeed, nationwide certification is especially imprudent in a situation like the one

18 at hand, involving relatively novel issues, which would benefit from development in

19 other courts which could explore and develop the legal question(s) presented. See

20 Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (noting that nationwide class actions are

21 disfavored because they “may have a detrimental effect by foreclosing adjudication by a

22 number of different courts and judges”); United States v. Mendoza, 464 U.S. 154, 160

23 (1984) (“Allowing only one final adjudication would deprive this Court of the benefit it

24 receives from permitting several courts of appeals to explore a difficult question. . .”).

25

CONCLUSION

26

The Court should grant Plaintiff’s Motion to Reconsider Class Certification.

27

28

DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 5 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 77 Filed 07/18/17 Page 7 of 9

1 Dated: July 18, 2017
2 CHAD A. READLER Acting Assistant Attorney General
3 Civil Division
4
WILLIAM C. PEACHEY 5 Director, District Court Section 6 Office of Immigration Litigation

7 TIMOTHY M. BELSAN
8 Deputy Chief, National Security & Affirmative Litigation Unit
9

10 EDWARD S. WHITE

Senior Counsel, National Security

11

& Affirmative Litigation Unit

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Respectfully submitted,
/s/ Aaron R. Petty AARON R. PETTY JOSEPH F. CARILLI, JR. Trial Attorneys, National Security
& Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Telephone: (202) 532-4542 E-mail: Aaron.R.Petty@usdoj.gov

DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 6 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 77 Filed 07/18/17 Page 8 of 9

1

CERTIFICATE OF SERVICE

2

I HEREBY CERTIFY that on July 18, 2017, I electronically filed the foregoing

3 with the Clerk of the Court using the CM/ECF system, which will send notification of

4 such filing to the following CM/ECF participants:

5

Harry H. Schneider, Jr., Esq.

6

Nicholas P. Gellert, Esq.

David A. Perez, Esq.

7

Laura K. Hennessey, Esq.

Perkins Coie L.L.P.
8
1201 Third Ave., Ste. 4800

9

Seattle, WA 98101-3099

PH: 359-8000
10
FX: 359-9000

11

Email: HSchneider@perkinscoie.com

Email: NGellert@perkinscoie.com

12

Email: DPerez@perkinscoie.com

13

Email: LHennessey@perkinscoie.com

14

Matt Adams, Esq.

15

Glenda M. Aldana Madrid, Esq.

Northwest Immigrant Rights Project

16

615 Second Ave., Ste. 400

Seattle, WA 98104
17
PH: 957-8611

18

FX: 587-4025

E-mail: matt@nwirp.org

19

E-mail: glenda@nwirp.org

20

Emily Chiang, Esq.

21

ACLU of Washington Foundation

22

901 Fifth Avenue, Suite 630

Seattle, WA 98164

23

Telephone: (206) 624-2184

E-mail: Echiang@aclu-wa.org
24

25

26

27

28

DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case 2:17-cv-00094-RAJ Document 77 Filed 07/18/17 Page 9 of 9

Jennifer Pasquarella, Esq.

1

ACLU Foundation of Southern California

2

1313 W. 8th Street

Los Angeles, CA 90017

3

Telephone: (213) 977-5211

Facsimile: (213) 997-5297

4

E-mail: jpasquarella@aclusocal.org

5

Stacy Tolchin, Esq.

6

Law Offices of Stacy Tolchin

7

634 S. Spring St. Suite 500A

Los Angeles, CA 90014

8

Telephone: (213) 622-7450

Facsimile: (213) 622-7233

9

E-mail: Stacy@tolchinimmigration.com

10
Trina Realmuto, Esq.

11

Kristin Macleod-Ball, Esq.

National Immigration Project of the National Lawyers Guild

12

14 Beacon St., Suite 602

13

Boston, MA 02108

Telephone: (617) 227-9727

14

Facsimile: (617) 227-5495

E-mail: trina@nipnlg.org
15
E-mail: kristin@nipnlg.org

16

Lee Gelernt, Esq.

17

Hugh Handeyside, Esq.

18

Hina Shamsi, Esq.

American Civil Liberties Union Foundation

19

125 Broad Street

New York, NY 10004

20

Telephone: (212) 549-2616

21

Facsimile: (212) 549-2654

E-mail: lgelernt@aclu.org

22

E-mail: hhandeyside@aclu.org

23

E-mail: hshamsi@aclu.org

24

25

s/ Aaron R. Petty

AARON R. PETTY

26

U.S. Department of Justice

27

28

DEFENDANTS’ REPLY SUPPORTING DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

 
 Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 1 of 19

THE I-10 ORABLE RI C! lARD A. JONES

2

3

4

5

6

7

U ITED STATES DISTRICT COU RT

WESTERN DISTRICT OP WAS IIINGTON

8

AT SEATTLE

9 ABDIQAFAR \VAGAFE. eta/. . on behalf
10 ofthemselves and others similarly situated.

II

Plaintiffs.

No.2: 17-cv-00094-RAJ
.JOINT STATUS REPORT AND DISCOVERY PLAN

12

v.

13 DONALD TRUMP, President ofthe Uni ted States. el a/.,
14 Defendants.
15

16

Plaint iffs

Abdiqafar

Wagafe

e1

a/..

and

Defendants

Donald

Trump

e1

of.

1 ,

by

and

throu gh

17 thei r counsel of record. hereby submit thi s Joint Status Report and Discovery Plan pursuant to

18 Federal Rule of Civil Procedure 26(1). Local Civil Rule 26(f). and the Court's Order dated June

19 22.2017. Dkt. 70.

20

1.
21

S tat e m e nt o f the Nature and C omp lex ity of th e Case: The Parties· Posi tion: Pactually. this case is of modest complexi ty. Legally, it is of

22
moderate ranging to substantial complexity. Furthermore, this is a case of substantial public

importance. 2-1

25

26
1 All Defendants arc named in their official capacities only.
JOfNT STATUS REPORT AND DISCOVERY PLAN (No. 2: 17-cv-00094-RA.l ) - I
136382687 I

Perkins Coie LLP 120 1 T hird Avenue, Su ite 4900
Seattle, \VA 98 101-3099 Phone: 206.359.8000 Fnx: 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 2 of 19

Plaintiffs' Statement:

2

The Court has certified this case as a nationwide class action. Plaintiffs seek declaratory

3 and injunctive relief to stop Defendants from administering the Controlled Application Review

4 and Resol ution Program ('"C/\ RRP..) and other ..ex treme veiling'· policies, which program has

5 caused delays to or effectively denied immigration applications. Plaintiffs assert that CARRP

6 violates the Establishment Clause of the First Amendment: the Due Process Clause of the Fifrh 7 Amend ment; Articl e 1, Secti on 8, Clause 4 of the Constitution; the Admini strative Procedure 8 Act, including 5 U.S.C. §~ 553, 706(2)(A)-(D); and the Immigration and ationality Act and its 9 implementing regulations. including 8 U.S.C. § 1182((). 8 U.S.C. § 1-+27, 8 C.F.R. § 316.2, 8

10 C.r.R. § 335.3, 8 U.S.C. § 1255. 8 U.S.C. § 11 59, 8 C.F.R. § 245. 1. and 8 C.F.R. § 209.1.

II

Defendants· Statement:

12

CA RRP

13

Consistent with the Exccutive·s broad authority to investigate and adjudicate applications

14 for immi grati on benefi ts, U.S. Citi zenship and Immi gration Services ("'USC IS") im plemented

15 CARRP in 2008. C.J.\RRP is a process to meet USC IS's statutory mandate to investigate

16 applicants and determine eligibility for benefits. see, e.g. , Pub. L. 1 o. I 05 -11 9. Title I, Ill Stat.

17 2448 (Nov. 26. 1997); 8 U.S.C. § 1446(a), (b), 8 U.S.C. § 1255. by wh ich app li cations that raise

18 national securit y concerns arc consistentl y and unifonnly adjudicated across USC IS. An

19 application that raises a national security concern is one that is determined to have an articulablc

20 link to prior. current. or planned invo lvement in. or associat ion with, an acti vity, individual. or

21 organizat ion described in 8 U.S.C. §§ 11 82(a)(3)(A), (B), or (17), or 1227(a)(4)(A) or (B) - which

22 set out national security and related grounds or inadmissibility and removal, respectively. This

23 process docs not create any new substantive criteria. or render any applicant statutorily

24 ineligible, for any benefit. See 8 U.S.C. §§ 1255(a), 1427, 1429. Instead, CARRP provides a

process to rcsoh·c issues that surface during the adjud ications or applications with national

26 security concerns. To resolve the issues. U C IS often must communicate with law enforcement

.101 T STATUS REPORT AND DISCOVERY PLJ\ t (No.2:17-cv-00094-R/\J ) -2
136382687. I

Perkins Coie LLP
120 I T hird/\ venue, Suite 4900 Scal!lc, W/\ 98 101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 3 of 19

or intelligence agencies to determine whether information is relevant to an applicant and. if so.
2 whether the information has an impact on eli gibility for the bene fit so ught. If an appl icant is
3 ineligible for the benefit sought. the application is denied. and. once vetting is completed. if the 4 applicant is eligible for the bene!it sought, then the appl icati on is approved. CA RRP is neutral 5 wi th respect to reli gion and nati onal origin. and Plaintiffs cannot demonstrate that it infringes 6 any of the constitutional or statutory provisions on which they rely. Additionally. because

7 Congress has granted the Executive authority to in vesti gate, make eligibi lity determinations, and
8 adjudicate applications, Plaintiffs cannot demo nstrate that CARRP violates the Adm ini strati ve 9 Procedure Act. Lastl y, Pl aintiffs cannot demonstrate that CA RRP violates Article I, Section 8.

10 Clause 4 of the Constitution.

II

Exec. Ord er 13769, 82 Fed. Reg. 8977 (F eb. 1, 201 7) ("Fi r·st E xecutive Or der " );

12 Exec. O rd er 13780, 82 Fed. Reg. 13209 (Mar. 9, 201 7) ("Second Executive O r der.")

13

Consistent with the Executive's broad constitutional authority over lore ign affairs and

14 national security. Executive Order 13780 eli rccts the Secretary or State, the A uorney General, the

15 Secretary of I Iomeland Security. and the Director of tational Intell igence to develop "'a

16 program. as pan or the process for adjudications. to identify indi vidual s who seck to enter the 17 United tates on a fraudulent basis, who support terrori sm, violent ex tremism, acts or viol ence 18 toward any group or class of people within the United S tates, or who present a risk o f causing 19 harm subsequent to their entry... Second Executive Order§ 5.2 The Second Executive Order

20 also directs "the development of a un iform baseline for screening and vett ing standards and 21 procedures . . :·lei. The President lawfully exercised his broad authority in the Second 22 Executive Order. The Second Executive Order is neutral with respect to reli gion and nati onal
origin , and Plaintiffs cannot demonstrate that it infringes any of the co nstitutional or statutory

24

26

2 Defendams address here only those sections of the Executive Orders on which Plaintiffs have sought class

certification.
JOINT STATUS REPORT AND DISCOVERY PLAN (No.2: 17-cv-00094-RAJ ) - 3

Perkins Cuie LL P 120 I Third Aven ue, Suite 4900

Seattle, WA 98 10 1-3099

Phone: 206.359.8000

136382687 .I

Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 4 of 19

provisions on which they rely. Plainti ffs' challenge to the First Executive Order is moot , as that

2 order has been revoked by Section 13 of the Second Executi ve Order.

3 2. 4

Deadline for .Joining Add itiona l Parties: The Parties' Position: The Pa11ies propose a deadline of October 20,2017, to add any

5 additional panics. though neither party currently anticipates joining any additional parties.

6 3. 7

Assignm ent to a Magistrate Jud ge: The Pan ics· Position: No.

8 ~.
9

Discovcn• Plan: (A) ln itial Disc los u r es :

10

The Panics exchanged Init ial Disc losure Statements on July 14. 20 17.

II

(B) Subjects, Tim ing, and Potential Ph asin g of Discover) ' :

12

The Parti es' Pos ition: The Pani cs request the Court set a di scovery dead line of May 18,

13 2018.

14

Pl aintiffs' Position: Plaintiffs anticipate conducting di scovery, potentiall y to include

15 Rule 30(b)(6) deposi tions. on at least the foll owing topics: Plaintiffs' applications for

16 naturalization and adjustment of status; the re lationship between CARRP and other past, current.

17 or future ·'ex treme vetting.. poli cies; the creati on ofC/\RRP and other ..ex treme vetting" 18 po licies; Defcndams' policies and practices or subjecting nat urali za tion and adj ustment-of-status 19 applications to CA RRP and other •·extreme ve tting.. policies: the number or and demographic

20 inlormation pertaining to individua ls whose immigration benefit appl ications have been subject

21 to CJ\ RRP and other ..extreme vetting.. policies: Defendants· policies and practices of labeling

22 Plaintiffs and other members of the Naturali zation and Adj ustment Classes as ·'nati onal security concerns"; and the number of and demograph ic in fo rmati on pertaining to im migration applicants

24 who have been labeled ..national security concerns.'·

Plaintiffs disagree with Defendants' below assertion that discovery is not needed or

26 appropriate. Plaintiffs also do not believe formal phasing of di scovery is appropriate or would

JOINT STATUS REPORT AND DISCOVERY PLAN (No.2: 17-cv-00094-RAJ) - 4
136382687 1

Pc rl<i ns Co ic LLP 120 I Th ird A venue, Suite 4900
Sca11lc, WA 98 10 1-3099 Phone: 206.3 59.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 5 of 19

result in any identifiable el'ficiencies. Plaintiffs agree with Defendants that initial production of

2 documents may result in fo llow-up discovery. which accounts lor so me of the reason that

3 Plaintiffs believe the requested period to complete discovery is reasonable.

-t

Defendants· Position: Defendants do not think discovery is required to resolve Plaintiffs'

5 allegations. \\'hich fail as a matter of law. Should discovery proceed. Defendants believe that

6 discovery should be limited to the current CAR RP policy, excluding discovery concerning

7 individual applicants, because, as the Court recognized, '· Plai ntiffs' claim is that CARRP is an

8 unlawful program." Dkt. 69 at 25. Plaintiffs claim that CA RRP generall y violates certain

9 constitutional and statutory provisions. Plaintiffs have not sought a specific immigration benefit

10 as relief lor any individual class members. Thus. any discovery related to an individual class

II member's application that may have been subjected to C/\ Rl'ZP wou ld not be relevant to

12 Plaintiffs' claims, would be undul y burdensome, and wou ld be disproportionate to the needs of

13 the case. Because Pl aintiffs' claims arc that the CARRP policy. in its curren t form. is unlawful ,

1-t discovery should be limited to USC IS' s curTent CARRP policy. rather than it s applicati on to any

15 individual. Further, discovery into future policies that did not exist at the time this litigation was

16 filed arc not appropriate. because, as the Court has recognized, "any claims about enjoining a

17 potential future extreme vett ing program ma y be premature . .. [andJ the Court cannot enjoin a

18 program that is currently nonex istent." Dkt. 69 at 14-15.

19

Defendants beli eve that discovery is not appropri ate in this case as to Plaintiffs' claims

- 20 re.Q... ardine the First and Second Executive Orders. which fai l as a maner or law. Discovery is not
21 appropriate to address the subjective motivation underlying the Executi ve Orders. The Supreme

22 Court has made clear in the immigrati on contex t that courts may not ·'look behind the exercise of

23 rExccutive] discretion" taken "on the basis of a facia ll y legitimate and bona lide reaso n."

24 Kleindienst v. Mandel. -108 U.S. 753 . 770 ( 1972): see Fial/o ''· Bell. 430 U.S. 787, 796 ( 1977).

As those cases recognize. discovery and trial would thrust courts into the untenable position of

26 probing the Executi ve's judgments on fore ign affairs and national secu rity. Any such discovery

JO INT STATUS REPORT AND DlSCOVE RY PLAN (No.2: 17-cv-00094-Ri\J ) - 5
136382687 I

P c rld us Co ic LLP 120 I Third!\venue, Suite 4900
Scall lc, WA 98101-3099 Phone: 206.359.8000 f-ax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 6 of 19

would invite impermiss ible intrusion on Executive Branch deliberations, which are

2 constitutionally " pri vi lege[d]" against such inqu iry, United States v. Nixon, 4 18 U.S. 683, 708

3 ( 1974), as well as in viting litigant-driven di scovery that disrupts the Pres ident ' s ongoing

4 execution of the laws. See Cheney v. U.S. District Court for the Distric:t ofColumbia, 542 U.S.

5 367, 386 (2004) (noting the potential for sancti ons and the obligation or candor toward the

6 tri bunal "have proved insufficient to discourage the fi ling of meritless claims against the

7 Executi ve Branch"). Searchi ng for governmental purpose outside orticial pronouncements and

8 the operative terms of governmental action is fraugh t with practical '·pitfall s" and "hazards" that

9 courts should avoid. Palmer v. Thompson. 403 U.S . 217, 224 ( 197 1). In the event the Court is

I0 inclined to permit such discovery, the Court should stay any such discovery unti l the reso lution

II of Tmmp v. Hawaii, No. 16- 1540 (S. Ct.), wh ich is certain to provide substantial guidance to thi s

12 Court and the Pa rties in resolving (or eliminating) disputes as to the proper scope of discovery in

13 this context. See Landis v. North American Co., 299 U.S. 248, 253 ( 1936) (holding that a stay

14 may be warranted where the resolution of other litigation will likely ··narrow the issues in the

15 pending cases and assist in the determ ination of the questions of law involved"). However,

16 shoul d di scovery related to the First or Second Execut ive Orders commence, Defendants reserve

17 the right to propound discovery on these topics if it becomes necessary in li ght of Piaintiffs'

18 discovery requests and/or the Court's rulings.

19

Defendants oppose the deposi tion of any hi gh-ranki ng government officials includ ing

20 both White House personnel and high-ranking officials of other departments, agencies, and

2 1 services wi th in the Executi ve Branch. lt is well -establi shed that, absent ext raordinary

22 ci rcumstances, high ra nking government o rfi cials should not be subjected to depositi ons. See,

23 e.g., United States v. Morgan, 313 U.S. 409, 422 (194 1); Ky le Eng 'g Co. v. Kleppe, 600 F.2d

24 226, 231 (9th Cir. 1979) ("'Heads of government agencies are not normal ly subject to

25 deposition."); In re FDIC, 58 F.3d I055, I060 (5th Cir. 1995) (granting writ of mandamus to

26 prevent deposition or high-level government official); In re United S1a1es , 985 F.2d 510, 513

JOINT STATUS REPORT AND DISCOVE RY PLAN (No. 2:17-cv-00094-RAJ )- 6
136382687. 1

l'cr l\i us Co ic LLP 120 I T hird Avenue, Suite 4900
Seatt le, W!\ 9810 1-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 7 of 19

( II th Cir. 1993) (same); Simplex Time Recorder Co. v. Sec J' of Lahar, 766 F. 2d 575, 586 (D.C.
2 Cir. 1985). In additi on, Defendants note that Piainti ffs cannot satisfy the ·'exacting standards of 3 '( I) relevancy: (2) admi ssibility: [and] (3) spec ificity" that arc required before obtaining 4 discovery from ''senior members of the Executive Branch." Cheney. 542 U.S. at 385-86.

5

If the Cou rt decides to establi sh discovery deadlines at thi s time, Defenda nts' be li eve

6 their discovery can be co mpleted in ten ( I 0) months, but reserve the right to seck modification of

7 that timeline. should the need arise, as discovery progresses.

8

Defendants propose phasing discovery ol' producti on of documents and thi ngs concern ing

9 CARRP as foiJo,,·s, as far as such information is relevant: firs t. discovery of written documents

I 0 concerning CARRP propounded by an ol'fi cial (policy documents, guidance memoranda, training

II materials, and the like); second, stati stical info rmati on mainta ined in or compiled from e lectroni c

12 databases: third, all other documents and things. Defendants be li eve that phasing production in

13 this way will assist in determining search parameters and thus minimi zing expense. For

14 example, po li cy memoranda may contain certain key words or iden ti fy parti cular official s, which

15 could then be used to sharpen subsequent requests. Moreover, orc hestrating all discovery 16 simultaneous ly wi thi n a relati vely short period would be undu ly burdensome and

17 disproportionate to the needs of the case.

18

(C) E lectronica lly S tored Inform a tion ("ES I"):

I 9

T he Parties anti cipate that they wi ll produce some E I. Plai ntiffs have drafted an ES I

20 sti pul ation and provided it to DeJcndants fo r review. and the part ies anti cipate trying to complete

or 21 nego ti ation this stipulation soon, but no later than when De fendants will be clue to respond to

22 P lainti ffs ' initi al discovery requests, whi ch Pl ainti ffs anticipate propounding within a week of

23 thi s Report.

24

(D) P rivilege Iss ues:

25

If either party discovers that it inadvertentl y produced pri vileged information, the

26 disclosing party shall noti fy the receiving part y of the inadvertent disclosure. and the receiving

JOfNT ST/\TUS REPORT /\ND DISCOV ERY PLAN (No. 2: 17-cv-000 94-R/\J ) - 7
t363826R7 I

Perkins C oie LLP 120 I T hird !\venue, Suite 4900
Seattle, \VA 98 10 1-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 8 of 19

party wi ll return the documents. T hi s matter is wi ll be addressed in further detail in a proposed

2 Stipul ated Protecti ve Order that the Parties intend to file. 1\dcliti ona ll y, the Part ies agree that a

3 f-edera l Rule of Evidence 502(d) order should be entered in this case and arc currently in the

4 process of negotiating the terms of such an agreement.

5

Plaimiffs· Position: In their Ans\\"er and in Defendants· Position statement below,

6 Dcrendants have asserted privilege to informati on pertaining to whether particular persons have

7 had the ir appli cations subj ected to CARRP. Plnintiffs believe that any concerns about

8 con lidenti aliry of that informati on can be dealt with through the proposed Stipul ated Protective

9 Order currently being negotiated. Plainti ffs anti cipate that at least some of Defendants' privilege

10 assertions will require resolution by the Court. after these issues are further developed in the

II con text of Plaintiffs· discovery requests of Defendants.

12

Defendants' Position: Defendant s beli eve much o f the informati on Pl ai ntiffs seek is

13 protected by various privileges, potentially including. but not limited to. the Presidential

14 communications privilege, the deliberative process privi lege, the law enforcement privi lege, the

15 auorncy client privilege. and the \\"Ork product doctrine. Defendants note that the presence of a

16 protective order will not affect Defendams· rights under these pri vileges and doctrines. See Fed.

17 R. Civ. P. 26(b)( 1) ('·... Parties may obtain di scovery regarding any nonprivileged matter. ..")

18 (emphasis added): In re Grand .fwJI Subpoena. 836 r.2d 1468. 1476 (4th Cir. 1988) ("a

19 protective order docs not alter an indi vidual's ri ght to assert hi s firth amendment pri vilege'');

20 Bowerman v. Field Asset Servs. , Inc.. No. 13-cv-00057-WHO. 2013 WL 6057043, *3 (N.D. Cal.
21 20 13) ("The mere presence of a proteeti vc order docs not affect this ftaxpayer privilege]

22 analysis.'} The Parties have not yet identi fied any other privilege iss ues, but reserve the ri ght to

23 assert privilege as needed, as wei I as to object to any di scovery as necessary.

24

(E) Pr oposed Li mitations on Discove ry :

Plaintiffs· Posi tion: The Court should apply the limitations on discovery imposed by the

26 Federal Rules of Civil Procedure and the Local Rules. and no other lim itations.

JOINT STATUS REPORT A ' D DISCOVERY PLAN (No.2: 17-cv-00094-R/\J ) - 8
136382687 I

l'crldns C oic LLP 120 I Third Avenue, Suite 4900
Seatt le, WA 98t0 1-3099 Phone: 206.359.8000 f-nx: 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 9 of 19

Defend ants' Position: The Court should appl y the limitations on di scovery imposed by 2 the Federal Rules of Civil Procedure and the Local Rules. and that further limitation may be

3 warranted as discovery progresses.

4

(F) Th e Need for Discovery -R elated O r der s :

5

The Pani cs' Position: The Parties request a Rule 16(b) Scheduli ng Order. The Parties·

6 proposed deadlines are presented below·.

7

Di sc ove r y

Parties' Proposed Dea dlin e

8

.loin additional parties

October 20. 2017

9

Amend the pleadings Complete fact discovery

120 days before trial May 18. 20 18J

10

Dispositive motions

90 days before trial

Motions in limine

2 1 days before trial

II

Pretri al conference

2 weeks prior to tri al

12
13 5.
14

T he Parties' Views, Proposals, nnd Agr·ecmcnts on Items Set For th in Local C ivil R ul e 26(0(1 ):
(A) Prompt Case Reso lution:

15

The Parties' Posi tion: The Parties do not foresee a poss ibility for promptly settling or

16 otherwise reso lvi ng thi s case, although the Parties remain willing to discuss such poss ibilities

17 should the occasion arise.

18

(B) A lte m a tivc Dis put e Reso lu ti on:

19

The Parties· Position: Nei ther Party intends to utilize Alternative Dispu te Resolution.

20

(C) Rela ted Cases:

21

The Parties' Position: The Parties arc not aware of any cases rel ated to thi s case for

22 purposes of Local Civil Rul e 3.2(g).

23

Outside of this District. the Parties have identified that the following pending cases

24 include chall enges to CARRP:

? _~)

1 As noted above, at present Defendants believe fact discovery can be completed by May 18, 2018.

26 llowcver, Defendants reserve the right to move for an extension of time to complete fact discovery if the Supreme

Court's decision in Hawaii materially alters the scope of discovery in this case.

JOINT STATUS REPORT AND DISCOVERY

Pe rkins Co ic LLJ>

PLA (No. 2:17-cv-00094-RA.I)- 9

120 1 Third Avenue, Su ite 4900

Scnnlc, WI\ 98 101 -3099

Phone: 206.359.8000

136382687 I

Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 10 of 19

Allmetspahic ''· United States Dep 't of /lome/and Security, eta/.. No . I: 17-cv-1 759 (E. D.

2

Mo .)

3

AI Hcuab v. United States Dep 't ofJ/omelancl Security, eta!. , No. 5: 16-cv-988 (\V.D.

4

Tex .)

5

Arapi, et. a/ v. United Stares Dep 'r of!lome/and Securiry, et a/., No. 4: 16-cv-692 (E.0.

6

iVIo.)

7

Husic v. United States Dep 't of Homeland Security, eta!. , No.4: 17-cv- 1572 (E.D. Mo.)

8

.k!farzadeh v. .Johnson, eta/., No. I :16-cv- 1385 (D.D.C.)

9

0/abode ''· United Srares Dep 'r ofl/omelcmd Securiry, \io. I: 17-cv-1322 (D .D.C)

I 0

Sabia v. Unired s·rares Dep 'r of Homeland 5iecurity. er a/. . · 1o. I: 17-cv-1 062 (D. D.C.)

II

Outside of thi s District, Defendants have idcnti lied that the following case includes

12 chall enges that ex tend to Section 5 of Executi ve Order 13780: Universal Muslim Ass 'n (~(Am. v.

13 Trump, 'o. I :17-cv-00537 (D. D.C.).

14

(0 ) Discovery Management:

15

The Panics· Position: The Parties arc willing to ,,·ork together to manage discovery in a

16 way that will promote the exped itious and inexpensive resolution of the case. Neither Party

17 agrees to forgo or limit depositi ons, exchange documents informally, or usc an abbreviated

18 pretrial order. The Parties reserve the ri ght to request discovery and/or case management

19 conferences with the Court.

20

(E) Anticipat ed Discovery So ught:

21

Plaintiffs' Position: Pl ainti ffs anticipate conducting discovery, potentially to include

12 30(b)(6) depositi ons. on at least the fol lowin g topics: Plaintirts · applicati ons for naturali zation

23 and adjustment of status; the relationship between C/\RRP and other past, current, or future 24 ··extreme vetting" policies: the creation ofC/\RRP and other "extreme veiling" policies;

25 Defendan ts' policies and practices of subjecting nawralization and adjustment-of-status

26 appl icat ions to C/\ RRP and other ·'extreme vetting" policies; the number or and demographic

JOINT STATUS REPORT A D DISCOVE RY PLAN (No. 2:17-cv-00094-RA.J) - 10
136382687. I

Pcrldn s Co ic LLP 120 1 T hirdAvc nuc, Suite4900
Seattle, WA 98 101 -3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 11 of 19

informati on pertaining to individuals whose immi grati on benefit applications have been subj ect 2 to CA RRP and other ..extreme vetting'' po licies; Defendants ' policies and practices of labeling 3 Plaintiffs and other mc1nbcrs of the atura lizati on and Adj ustment Classes as ··national security

4 concerns'·; and the num ber of and demographic information pertaining to im mi gration appli cants

5 \\'ho ha\'c been labeled ..national security concerns:·

6

Defendants' Positi on: As explained above. thi s case involves faci al cha llenges to the

7 Executive Orders lo r which no discovery is appropriate, and a facial cha llenge to C/\RRP. See

8 Dk t. 69 at 25 (..Plainti ffs' claim is that CARRP is an unlawful program.''). 1\s such, discovery

9 should be limited to informat ion that is proportional to the needs of a racial challenge to CARRP

10 on ly. See Fed. R. Civ. P. 26(b)( l), advisory committee notes to 20 15 amendments (noting the
II rulemakcrs· intent to ..[r]cstor[e I proportionalit y ns an express component of the scope of

12 discove ry" and obse rving that the phrase ''' reasonab ly ca lcul ated to lead to admissible evidence'

13 is ... deleted. The phrase has been used by some, inco rrectly, to define the scope of

14 discovery."').

15

(F) Pha sing Mot ions :

16

The Panics· Positi on: The Parties do not anti cipate phasing di spositive motions.

17

(G) Prese rva tion o f Di scover a ble Inform ation :

18

The Parties' Posit ion: The Parties arc aware of their duty to take reasonable and

19 proporti onal steps to preserve potentiall y relevant info rmation relating to the claims and defenses

20 in this case. See reel . R. Civ. P. 26(b)(l). The Parties may require future discussions to address 2 1 the scope of preservation and/o r seek a preservation order from the Court as needed, although the

22 Parties are not aware of any preservation of di scoverab le infom1ation issues at this time.

(H) Priv il ege I ss u es :

24

I f either party discovers that it inadvertentl y produced pri vileged information, the

disclosing party shal l notify the receiving party of the inadvertent disclosure. and the receiving

26 party \\·ill return the documents. This matter is will be addressed in further detail in the

.J OINT STATUS REPORT AND DIS CO VERY PLAN (No. 2 :17-cv-0009·1-RI\J) - II
1363!!2687 I

P cr l<ins Coi c L L P
120 I Third 1\ ven ue, Su ite 4900 Scnulc, WA 9810 1-3099 Phone: 206.359.8000 J7nx: 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 12 of 19

Stipulated Protect ive Order that the Parties intend to file. Add itionally, the Parties agree that a

2 Federal Rule of Evidence 502(d) order should be entered in this case and are currently in the

3 process of negoti ating the terms of the agreement.

4

Plaintiffs' Position: In their Answer and herein, Defendants have asserted privilege to

5 information pertaining to whether particular persons have had thei r applications subjected to

6 CARRP. Pl aintiffs believe that any concerns about contidentiality of that information can be

7 dea lt with th rough the proposed Stipulated Protective Order th e parties arc negotiating. Pl ainti ffs

8 anticipate that at least some or Defendants' privi lege asserti ons will require resoluti on by the

9 Court. alter these issues arc furth er developed in the context of Pl ainti tTs' di scovery requests of

10 Defendants.

11

Defendants Position: Defendants believe much ofthc information Plaintiffs seek is

12 protected by va ri ous pri vileges, potentiall y including, but not limited to, the Presidenti al

13 communicat ions pri vilege, the deliberat ive process privilege, the law enforcement privilege, the

14 attorney client privilege, and the work product doctrine. Defendants note that the presence of a

15 protective order will not affect Defendants' rights under these privileges and doctrines. See Fed.

16 R. Civ. P. 26(b)( l) («... Pani cs may obtain di scovery regarding any nonprivileged matter...")

17 (emphasis added); !n re Grand.Jury Subpoena, 836 F.2d at 1476; Bowerman, No. 13-cv-00057-

18 WHO. 20 13 \VL 6057043 at *3.

19

The Parties have not yet identified any other privi lege issues, but reserve the right to

20 assert privi lege as needed , as well as to object to any di scovery as necessary.

21

(I) Elect ron ica lly Sto r ed Info rm at ion ("ESI''):

22

Plaintiffs' Position: Pl ainti ffs anticipate that they wil l produce some ES f, including

documents prepared and obtained by the Ameri can Civil Liberties Union in response to Freedom

24 orinformati on Act requests. The relevant documents are also ava ilabl e at

25 https://www.aclusocal.org/en/CARRP.

26 JOrNT STATUS REPORT A D DI SCOVERY PLAN (No.2: 17-cv-00094-RAJ) - 12
136382687. 1

Perkins Coic LLP 120 I Third 1\ venue, Suite 4900
Senttie, WA 98 10 1-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 13 of 19

Defendants· Position: Defendants reiterate that they do not beli eve discovery is

2 appropriate for all claims in thi s matter. See supm ' j 4(8). In the event that di scovery proceeds,

3 Defendants anticipate that they \vill produce sornc I2Sl.

4

(J) Altcmativcs to Model Protocol:

5

The Parties' Position: In lieu of using the lodel ES I 1\ grccment. Pl aimi ffs have drafted

6 an ES I stipulation and provided it to Defendants for review. The sti pulation will address the

7 nature, location, and scope of ES I to be preserved ; production format s; and methodologies for

8 identifying and produc ing relevant and discoverab le ES I. Defendants agree to work wi th

9 Plaintiffs to modify the proposed protocol given the needs of the case.

10 6.

Date o f Co mp letion of Oiscovcn·:

II

The Parties· Position: 1lay 18. 2018.

12

Defendants' Position: 1\s noted above, at present Defendants be li eve fact discovery can

13 be completed by May 18, 20 18. However, Defendants reserve the ri ght to move fo r an ex tension 14 of time to complete fact discovery if the Supreme Court' s decision in 1/awaii materially alters 15 the scope of discovery in this case.

16 7.
17

Bifurcation of Trial or Other Issues: The Parties· Position: The Parties subm it that the case is not amenab le to bifurcation.

18 8.
19

Individualized Trial Program: The Parties' Position: Neither party intends to utilize the Individualized Trial Program.

20 9.

Other Sugges tions for Shortening or· S implifYin g the Case:

21

The Parties· Position: The Parties do not have any suggestions for shortening or

22 sin1plifying the case at thi s time, but they wi ll work cooperative ly to identi l'y such opportunities,

including the poss ibi li ty of stipulating to any undi sputed facts. 23

24

26
.JOINT STATUS REPORT AND DISCOVERY PLA (No. 2: 17-cv-00094 -RAJ )- 13
136382687 I

l'crld ns Co ic LLP 120 I Third Avenue, Suite 4900
Seattle, WA 9810 1-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 14 of 19

10. Date Case Wi ll Be Readv for Tria l: September 18. 2018.

2 11. Trinl bv .Ju n ' ot· Non-Jun': Non-jury

3 12. Number of Tria l Davs Required: Five (5) days

-t 13. Names, Addresses, and Telep hon e Numb ers of All Tl"ia l Counsel:

5

Plainti rrs· Trial Counsel:

6

.Jcnn ifer Pasquarella

7

1\CLU Foundation of Southern California 1313 W. 8th Street

8

Los Angeles, C/\ 90018

(213) 977-5236

9

!larry II. Schneider, Jr.. Nicholas P. Gellert, David/\. Perez. Laura K. llennessey

10

Perkins Coic LLP

II

1201 Third /\venue, Suite 4900 Seattle. \VI\ 98101 -3099

12

(206) 359-8000

13

Matt /\dams. Glenda M. Aldana Madrid

1orth\\'est Immigration Rights Project

14

6 15 Second Avenue, Suite 400

15

cattle, \V 1\ 98 J 22

(206) 957-86 11

16

Trina Realmuto. Kristin Macleod-Ball

17

Nat ional immigration Project of the Na ti onal Lawyers Gui ld

14 Beacon St reet , Suite 602

18

Boston, MA 02 108

19

(617) 227-9727

20

Stacy Tolchin

Law Ortices of Stacy Tolchin

21

6-13 S. pring St.. Suite 500A

Los Angeles, C/\ 90014

22

(213) 622-7-tSO

23 Emily Chiang

24

1\CLU of \Vashington Foundation

90 I Firth Ave., Suite 630

25

cattle, W1\ 99164

(206) 624-218-t 26

JO INT STATUS REPORT AND DISCOVERY PLAN (No. 2: 17-cv-00094-Ri\J ) - 14
1363!12687 .I

l' l• rldn s Co ic L LP 110 I Third Avenue, Suite 4900
Scanlc, W1\ 98 10 1-3099
Phone: 106.359.8000 r:ax: 106.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 15 of 19

Hugh ll andcys ide. Lee Gelcrnt, Hina Shamsi

American Civil Liberties f oundati on

2

125 Broad St reet

3

New York. Y I0004

(2 12) 549-26 16

Defendants· Trial Counsel: 5

/\aron R. Petty

6

U.S. Department or .Justice

7

2 19 S. Dearborn St.. 5th Floor

Chicago, IL 60604

8

(202) 532-4542

9

EdwardS. White. Joseph F. Carilli. .Jr.

U.S. Department or Justice

10

P.O. Box 868

II

Ben franklin Station

Washington, D.C. 20044

12

(202) 616-9 13 I

13 1-l. Dates on \Vhi ch Tri al Cou nsel Mav llavc Complicati ons: The Parties· trial counsel
1-l are not cu!Tently aware of any conOicts during September 2018 or later.
I 5 15. Scn ' ice: Plainti ffs, through their counsel. have effectuated service on al l Defendants.
16 16. Requ est for a Schedu li ng C onference Prior to Entr·y of a Sc heduling Order:
17 The Parties' Position: The Parties respectfull y req uest a scheduling conference.
18

19

20

21

22

23

24

26 .J OINT STATUS RE PORT /\ND DISCOV ERY PLAN (No. 2:17-cv-00094- RAJ) - I5
136382687. I

Pcrld 11 s Coic L L P
120 1 Third Avenue, Suire 4900 Seattle, WA 98101 -3 099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 16 of 19

DATED: July 28. 20 17

2

By:

3 COU 'SEL FOR PLAI~Tir:FS:

4 s/Jennifcr Pasquarella (admitted pro hac vice)

5

ACLU Foundation of So uthern California 1313 \V. 8th Street

6 Los Angeles, Cl\ 900 17 Telephone: (2 13) 977-5236

7 f-acsimile: (2 13) 997-5 297

jpasquarella@ac lusocal.org 8

9

10

II

12

13

14

15

16

17

18

19

20

21

22

s/Harry II. Schneider, Jr. Harry II. Schneider. Jr. #9404 s/N icholas P. Gellert Nicholas P. Gellert # 1804 1 s/Oav icl 1\. Perez Dav id /\. Perez 1143959 s/Laura K. I lenncssey Laura K. Hennessey #47447 Attorneys for Plainti ffs Pcrldns Coic LLP 120 I Third A venue, Suite 4900 Seattle, WA 98101 -3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Emai l: IISchncider@pcrkinscoic.com
NGe llcrt@perk inscoie.com DPcrcz 0 ' pcrkin scoic.com LHenncsscy@perk inscoie. com

24 25 26
.10! T STATUS REPORT 1\ND DISCOVERY PLA N (No.2: 17-cv-00094-RA.I )- 16
1363826S7 I

Pcl'ld ns Coie LLP 120 I Third/\venue, Suite 4900
Seau lc, WI\ 98 10 1-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 17 of 19

s/Matt Adams

2

s/Gienda M. Aldana Madrid Matt Adams #28287

3 Glenda M. Ald ana Madrid IJ46987 No rthwest Immig rant Ri ghts Proj ect

4 615 Second Ave.. Suite 400

Seattle. WA 98122 5 Telephone: (206) 957-86 II

Facsimile: (206) 587-4025 6 matt@nwirp.org

7 glenda@nwirp.org

s/Trina Realmuto (admitted pro hac vice) s/Kri stin Macleod-Ball (admilled pro hac vice)
National Immigration Project of the National Lawyers G uild 1-l Beacon St.. Sui te 602 Boston, MA 02 108 Telephone: (617) 227-9727 facsimile: (6 17) 227-5495 trina@ nipnlg.org kristin@ nipnl g.o rg

8 s/Stacy Tolchin (adm itted pro hac vice)
Law Offices of Stacy Tolchin 9 63-l S. Spring St.. Suite 500/\

s/Emi1y Chi ang Emi ly Chiang #505 17 ACLU of \Vashington Foundation

10

Los Angeles, CJ\ 900 1-l Telephone: (2 13) 622-7450

901 Fifth Avenue, Suite 630 Sealll e, \VA 98164

II facsimile: (213 ) 622-7233 racy@tolchinimmigration.com

Telephone: (206) 624-2184 Echiang@aclu-wa.o rg

12

s/Hugh Handeyside 13 Hugh I landeyside #39792

14

s/Lee Gelemt (admitted pro hac vice) s/Hina Shamsi (admi tted pro hac vice)

15 A meri ca n C iv il Libert ies Union Fo un dation 125 Broad Street

16 'ew York , NY 10004

Telephone: (2 12) 549-26 16 17 facs imile: (2 12) 549-2654

18

lgelernt@aclu.org hh a nde ys ide@ac lu .org

19 hshamsi0'aclu.om

20 COUNSEL FO R DEf-ENOA1 TS:

21 s/Am·on R. Penv
22 Aaron R. Petty
US Departm en t Of .Ju stice
23 2 19 S. Dearborn St. , 5th Floor Chicago. IL 6060-l
24 Telephone: 202-532-4542
aaron.r.petty@usdoj .gov

26 JO INT STATUS REPORT AN D DISCOVERY PLA (No.2: 17-cv-00094- R/\J ) - 17
136382687 I

P erkin ~ Coic LLP 120 I Third Avenue, Suite 4900
Scnule, WA 98 10 1-3099 Phone: 206.359.8000 f-ax : 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 18 of 19

s/Edward S. White
EdwardS. White 2 US Departm ent Of Justice
3 PO Box 868 Ben Frank li n Stati on
4 Washington, DC 20044 Telephone: 202-616-9131
5 Facsimile: 202-305-7000 cd\\'ard.s.whi tctli usdoj. gov
6

7

s/Joscph F. Carilli , Jr. Joseph f. Carilli, Jr.

8

US Department Of .J ustice (450 FIFTH)
Civil Division, Office Or Immi gration

9

Litigat ion 450 Fifth Street ~W

10

Washington, DC 2000 I Telephone: 202-616-4848

II joseph. f.cari II i2@usdoj .gov

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26
JOINT STATUS REPORT AND DISCOV ERY PLAN (No.2: 17-cv-00094-RJ\.J )- 18

136382687. I

Perl<ius Cuie LLP
120 I Third 1\ ven ue, Suite 4900 Seattle, W1\ 98 10 l-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 78 Filed 07/28/17 Page 19 of 19

CERTI FICATE OF SERVICE

2
The undersigned ccrti lies under penalty of petjury and the la,,·s of the tate of 3
Washington that on July 28. 20 17, I caused service of the fo rego ing, JO INT STATUS REPORT

5 AND DISCOVERY PLAN. via email to all cou nsel or record herein.

6

Aaron R Petty
US De p ar tm ent Of J us tice

7

219 S. Dearborn St. , 5th Floor Chicago, IL 60604

8

Telephone: 202-532-4542 aaron.r.petty@ usdoj. gov

Via Email

9 Edward S. White

US Departm en t Of ,Jus tice
10 PO Box 868

Ben Franklin Station

II Washington. DC 20044

Telephone: 202-616-9131

12 Facsimile: 202-305-7000

edward.s. whitc@usdoj .gov 13
Joseph F. Cari ll i, Jr.

14

US Dep art men t Of .Ju s tice (450 FrFTI I) Civil Division, Office Of Immi gration

15 Litigat ion 450 f-ifth Street 1 W

16 \Vashinmon. DC 2000 I Telephone: 202-616-4848

17 joseph. f.cari II i2@usdoj .gov

Via Email Via Email

18

I certify under penalty ofpetjury that the foregoing is true and correct.

19

DATED this 28th day of July, 2017. at cattle, Washington.

20

s/Laura K. l lcnnessev

21

Lau ra K. I fennessey #47447

22

Perl<i ns Co ie LLJ> 120 I Third Avenue. Sui te 4900

23

Seattle, \VA 98 101-3099

Telephone: 206.359.8000

24

Facsimi le: 206.359.9000

Email : LHenncssey@perkinscoie.com

25

26 CERTIFICATE OF SERV ICE (No.2: 17-cv-00094-RAJ) - I
136382687 I

l'crld n:. C o ic LLP 1201 Third Avenue, Suite 4900
Scau1c, WA 98 101-3099 Phone: 206.359.8000 Fax: 206.359.9000

 
 Case 2:17-cv-00094-RAJ Document 85 Filed 08/16/17 Page 1 of 2

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT FOR THE

9

WESTERN DISTRICT OF WASHINGTON

10

AT SEATTLE

11

CASE NO. 2:17-cv-00094-RAJ

12 ABDIQAFAR WAGAFE, et al., on

13 behalf of themselves and others similarly situated,

14

15

Plaintiffs,

16

v.

17

DONALD TRUMP, President of the United States, et al.,

18

19

Defendants.

ORDER

20

This matter comes before the Court on Defendants’ Motion to Reconsider Class

21 Certification. Dkt. # 73. Plaintiffs oppose the motion. Having reviewed the briefs,

22 relevant portions of the record, and the applicable law, the Court DENIES Defendants’
23

Motion. 24

“Motions for reconsideration are disfavored.” LCR 7(h)(1). “The court will 25

26 ordinarily deny such motions in the absence of a showing of manifest error in the prior

27 ruling or a showing of new facts or legal authority which could not have been brought to

28 its attention earlier with reasonable diligence.” Id.

ORDER-1

Case 2:17-cv-00094-RAJ Document 85 Filed 08/16/17 Page 2 of 2

1

Defendants do not meet this standard. Defendants’ motion reargues its position

2 that the Court should not certify the class—a position the Court rejected. Defendants

3

couch their motion in terms of the Court’s manifest errors but in reality the motion argues 4

that the Court should revisit its conclusions. Parties cannot use motions for 5

6 reconsideration to simply obtain a second bite at the apple, and this is what Defendants

7 appear to be doing with this motion. For these reasons, the Court DENIES the motion.

8 Dkt. # 73.

9

10

Dated this 16th day of August, 2017.

11

12 13

A

14

The Honorable Richard A. Jones

15

United States District Judge

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER-2

 
 Case 2:17-cv-00094-RAJ Document 98 Filed 10/19/17 Page 1 of 6

1

HONORABLE RICHARD A. JONES

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 9

10

ABDIQAFAR WAGAFE, et al., on

11

behalf of themselves and others similarly situated,

12

CASE NO. C17-94 RAJ ORDER

13

Plaintiffs,

14

v.

DONALD TRUMP, President of the

15

United States, et al.,

16

Defendants.

17

18 This matter comes before the Court on Plaintiffs’ Motion to Compel Production of
19 Documents. Dkt. # 91. The Government opposes the Motion. Dkt. # 94. For the
20 following reasons, the Court GRANTS in part and DENIES in part the Motion.
21 I. BACKGROUND
22 On June 21, 2017, the Court granted Plaintiffs’ motion to certify two classes: a
23 Naturalization Class and an Adjustment Class. Dkt. # 69. The parties have since been
24 engaged in discovery. The parties have attempted to resolve their discovery disputes
25 without court intervention but have reached an impasse. Plaintiffs now move the Court
26 to compel the Government to produce certain documents.
27

ORDER- 1

Case 2:17-cv-00094-RAJ Document 98 Filed 10/19/17 Page 2 of 6

1

II. LEGAL STANDARD

2

The Court has broad discretion to control discovery. Hallett v. Morgan, 296 F.3d

3 732, 751 (9th Cir. 2002); see also Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828,

4 833 (9th Cir. 2011), In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). That

5 discretion is guided by several principles. Most importantly, the scope of discovery is

6 broad. A party must respond to any discovery request that is not privileged and that is

7 “relevant to any party’s claim or defense and proportional to the needs of the case,

8 considering the importance of the issues at stake in the action, the amount in controversy,

9 the parties’ relative access to relevant information, the parties’ resources, the importance

10 of the discovery in resolving the issues, and whether the burden or expense of the

11 proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).

12

If a party refuses to respond to discovery, the requesting party “may move for an

13 order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). “The party who

14 resists discovery has the burden to show that discovery should not be allowed, and has

15 the burden of clarifying, explaining, and supporting its objections.” Cable & Computer

16 Tech., Inc. v. Lockheed Saunders, Inc., 175 F.R.D. 646, 650 (C.D. Cal. 1997).

17

III. DISCUSSION

18

Plaintiffs seek, and the Government refuses to provide, discovery in four discrete

19 areas: (1) information to allow Plaintiffs to identify potential class members and why

20 Named Plaintiffs were subjected to CARRP; (2) responsive documents despite their

21 classified status, or a privilege log in lieu of the documents; (3) documents related to two

22 Executive Orders; and (4) documents outside the scope of “national applicability.” Dkt.

23 # 91.

24

A. Identifying Class Members

25

As to the first matter, the Government argues that the class members’ specific

26 identities are neither relevant nor required for Plaintiffs to pursue this class action. Dkt. #

27 94 at 4-5. Many of the Government’s arguments in opposition to this request are mere

ORDER- 2

Case 2:17-cv-00094-RAJ Document 98 Filed 10/19/17 Page 3 of 6

1 conclusions, and therefore are not sufficient to avoid disclosure. See id. at 4-6. However,

2 the Government advances two arguments that are supported by more than mere

3 conclusions: (1) identifying class members is unreasonably burdensome, and (2) the

4 identities of class members are privileged. Id. at 6-7.

5

In asserting that that task of identifying class members is too burdensome, the

6 Government concedes that it already compiles potential class members into searchable

7 databases. Dkt. # 94-6 at ¶¶ 13-21. It claims, however, that conducting detailed, quality

8 assurance on these searches will cost up to $1.17 million. Id. at ¶ 26. This does not

9 diminish the fact that the Government is capable of at least providing Plaintiffs with

10 spreadsheets of the potential class members—information that already exists and is

11 readily accessible. See id. at ¶ 23 (based on the data it has, the Government estimates that

12 roughly 3,000 CARRP cases exist). This information is relevant and the Government can

13 produce it without incurring such a high expense.

14

That Government further argues that, even if producing the records were not

15 burdensome, the requested discovery is protected by the law enforcement privilege. Dkt.

16 ## 94 at 7-8, 94-5 at ¶ 7. To claim this privilege, the Government must satisfy three

17 requirements: (1) there must be a formal claim of privilege by the head of the department

18 having control over the requested information; (2) assertion of the privilege must be

19 based on actual personal consideration by that official; and (3) the information for which

20 the privilege is claimed must be specified, with an explanation why it properly falls

21 within the scope of the privilege. In re Sealed Case, 856 F.2d at 271. This privilege is

22 qualified: “[t]he public interest in nondisclosure must be balanced against the need of a

23 particular litigant for access to the privileged information.” Id. at 272.

24

The Government contends, broadly, that releasing the identities of potential class

25 members could lead individuals to potentially alter their behavior, conceal evidence of

26 wrongdoing, or attempt to influence others in a way that could affect national security

27 interests. Dkt. # 94-5 at ¶ 18. Such a vague, brief explanation that consists of mere

ORDER- 3

Case 2:17-cv-00094-RAJ Document 98 Filed 10/19/17 Page 4 of 6

1 speculation and a hypothetical result is not sufficient to claim privilege over basic

2 spreadsheets identifying who is subject to CARRP. See, e.g., In re Sealed Case, 856 F.2d

3 at 272 (explaining that the SEC “submitted a lengthy declaration detailing the effect

4 disclosure would have on its ongoing Wall Street investigation” to support its claim for

5 privilege). Even if it were sufficient, the privilege is not automatic; the Court must

6 balance the need for Plaintiffs to obtain this information against the Government’s

7 reasons for withholding. In doing so, the Court finds that the balance weigh in favor of

8 disclosure. The Court notes that there is a protective order in place, Dkt. # 86, and

9 Plaintiffs’ attorneys could supplement the protective order or obtain security clearances

10 to assuage any remaining concerns on the part of the Government. Latif v. Holder, 28 F.

11 Supp. 3d 1134, 1160 (D. Or. 2014) (citing Al Haramain Islamic Found., Inc. v. U.S.

12 Dep't of Treasury, 686 F.3d 965, 983 (9th Cir. 2012)).

13

Finally, Plaintiffs request to know why the Named Plaintiffs were subjected to

14 CARRP.1 For the same reasons stated above, the Court finds that this information is

15 relevant to the claims and Plaintiffs’ needs outweigh the Government’s reasons for

16 withholding.

17

B. Classified Documents

18

The Government claims that no relevant classified documents exist. Dkt. # 94 at

19 9. It appears that the Government only searched for classified documents that relate to

20 CARRP on a programmatic level. Id.; see also Dkt. # 91 at 11.2 The Government asserts

21 that any other documentation is irrelevant. As stated above, the Court rejected the

22

23

1 Importantly, Plaintiffs seek this information only on behalf of the Named Plaintiffs, not for each potential

24

class member. 2 Plaintiffs included this clarifying information in a footnote. The Court strongly disfavors footnoted legal

25

citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. See Local Rules W.D. Wash. LCR 7(e). Moreover, several courts have observed that “citations are

26

highly relevant in a legal brief” and including them in footnotes “makes brief-reading difficult.” Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2014 WL 289924, at *1 (D. Ariz. Jan. 24, 2014). The Court strongly

27

discourages the parties from footnoting their legal citations in any future submissions. See Kano v. Nat’l Consumer Co-op Bank, 22 F.3d 899-900 (9th Cir. 1994).

ORDER- 4

Case 2:17-cv-00094-RAJ Document 98 Filed 10/19/17 Page 5 of 6

1 Government’s conclusory arguments as to relevance. As such, the Government must

2 either produce the relevant documents or provide Plaintiffs with a proper privilege log.

3

C. Documents Related to the Executive Orders

4

Plaintiffs seek documents that connect any kind of “extreme vetting” program to

5 two Executive Orders. Dkt. # 91 at 14-15. The Government refuses to search for such

6 documents, arguing that any such documents are subject to the deliberative-process

7 privilege. But this argument is premature; the Government fails to show why it is exempt

8 from providing Plaintiffs with a privilege log. The Court finds that the Government must

9 provide a proper privilege log if it means to assert a deliberative-process privilege over

10 certain documents.

11

The Government further invokes Executive privilege and argues that Plaintiffs

12 have not made a “showing of heightened need” to demand discovery from the President.

13 Dkt. # 94 at 10-11. Plaintiffs argue that the Government must “provide alternate

14 custodians and non-custodial sources of information that will capture the documents

15 Plaintiffs seek.” Dkt. # 91 at 16. The Court is mindful that intruding on the Executive in

16 this context is a matter of last resort, Cheney v. U.S. Dist. Ct. for the Dist. Of Columbia,

17 542 U.S. 367 (2004), and the Court does not find that the record before it justifies such an

18 intrusion. However, the Court orders the parties to meet and confer within thirty (30)

19 days from the date of this Order to discuss alternative custodians and non-custodial

20 sources of information for any discovery over which the Government asserts this specific

21 privilege. The Court requests a joint status report within five (5) days of the court-

22 ordered conference detailing any resolution of this issue.

23

D. Nationwide Applicability

24

Plaintiffs object to the Government’s refusal to produce documents outside the

25 scope of “national applicability.” Dkt. # 91 at 17. The Government argues that searching

26 for documents outside of this scope is unduly burdensome and irrelevant. Dkt. # 94 at

27 12-13. However, Plaintiffs clarify in their Reply that they are not seeking documents

ORDER- 5

Case 2:17-cv-00094-RAJ Document 98 Filed 10/19/17 Page 6 of 6

1 beyond those that the Government “already agreed to search.” Dkt. # 95 at 7. If this is

2 the case, then it appears that the parties are able to resolve this dispute without Court

3 intervention. To the extent that Plaintiffs seek documents for which the Government has

4 already searched, the Court grants the request with the caveat that the Government may

5 produce a privilege log in lieu of the documents if appropriate.

6

IV. CONCLUSION

7

For the foregoing reasons, the Court GRANTS in part and DENIES in part

8 Plaintiffs’ Motion to Compel Production of Documents. Dkt. # 91. The Court orders

9 the parties to meet and confer and submit a joint status report thereafter in

10 accordance with this Order.

11

12

Dated this 19th day of October, 2017.

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14

A

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16

The Honorable Richard A. Jones United States District Judge

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ORDER- 6

 
 Case 2:17-cv-00094-RAJ Document 99 Filed 11/02/17 Page 1 of 11

1

The Honorable Richard A. Jones

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3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9
ABDIQAFAR WAGAFE, et al., on 10 behalf of themselves and others similarly 11 situated,

12

Plaintiffs,

13

v.

14
DONALD TRUMP, President of the 15 United States, et al.,

16

Defendants.

17

No. 2:17-cv-00094-RAJ
DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017
HON. RICHARD A. JONES
NOTED ON MOTION CALENDAR: November 2, 2017

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DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 1 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 99 Filed 11/02/17 Page 2 of 11

1

On October 19, 2017, the Court issued an order granting in part and denying in

2 part Plaintiffs’ motion to compel production of certain documents. Defendants

3 respectfully seek reconsideration of Part III.A of the Court’s order, which concerns

4 identification of class members. The Court erred in analyzing the law enforcement

5 privilege in Part III.A. And Part III.A presents public-safety and national-security

6 dangers, given the extreme sensitivity of the information at issue and the chilling effect it

7 may have on information sharing within the Government. See In re U.S. Dep’t of

8 Homeland Sec., 459 F.3d 565, 569 (5th Cir. 2006) (“in today’s times the compelled

9 production of government documents could impact highly sensitive matters relating to

10 national security”); The 9/11 Commission Report, 416-17 & Executive Summary, 14

11 (2004) (finding that both lack of information sharing and less-than-full partnership of

12 immigration agencies in the intelligence community contributed to the 9/11 attacks).

13

In brief, (1) the Court erroneously rejected Acting Director McCament’s assertion

14 of the law enforcement privilege as speculative, because all assertions of law

15 enforcement privilege involve an assessment of potential future risk—and Acting

16 Director McCament’s invocation of the privilege otherwise meets the requisite standard;

17 (2) the Court failed to identify and apply the correct standard—necessity—to overcome

18 an assertion of the privilege; (3) even assuming Plaintiffs had demonstrated a necessity,

19 the Court did not explain its balancing of Plaintiffs’ interest in the information sought

20 against the Government’s and the public’s interest in nondisclosure of sensitive law

21 enforcement information; and (4) the Court improperly and speculatively relied on other

22 means to protect the information at issue. Any one of these errors would justify

23 reconsideration and vacatur of Part III.A of the Court’s order. Accordingly,

24 reconsideration is appropriate under Local Rule 7(h)(1).

25

1. Rejecting an Assertion of Law Enforcement Privilege as “Speculative” is

Improper as All Assertions of Law Enforcement Privilege Involve a

26

Prediction of Potential Future Harm

27

The Court dismissed the sworn statement of the head of USCIS that releasing a list

28 of thousands of individuals who have articulable ties to terrorism and other national

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 2 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 99 Filed 11/02/17 Page 3 of 11

1 security grounds of inadmissibility and removability would impair national security.

2 ECF No. 98 at 3-4. The Court termed the Acting Director’s statement “vague” and

3 “brief,” and held that “mere speculation” and only “a hypothetical result” was insufficient

4 to claim the law enforcement privilege over the identities of individuals in CARRP—

5 including known or suspected terrorists and individuals who may be the subject of

6 ongoing investigations. Id.; Answer ¶¶ 64 & 78.

7

The Court erred in rejecting the Acting Director’s testimony as speculative and

8 hypothetical. Every assertion of law enforcement privilege inherently involves a

9 prediction of future risks. This does not make assertion of the privilege “mere

10 speculation.” Black v. Sheraton Corp. of Am., 564 F.2d 531, 541 (D.C. Cir. 1977)

11 (explaining that the privilege is “based primarily on the harm to law enforcement efforts

12 which might arise from public disclosure of [Government] investigatory files”) (emphasis

13 and alteration added). The very purpose of the privilege is to prevent what might occur if

14 the information is disclosed from actually occurring. The party invoking the privilege

15 need not establish that any particular future event will occur; it is enough to show,

16 through competent evidence, that disclosure risks that possibility. Defendants met that

17 bar, and all other criteria to validly invoke the law enforcement privilege. See Shah v.

18 U.S. Dep’t of Justice, 89 F. Supp. 3d 1074, 1080 (D. Nev. 2015) (explaining that to

19 invoke the privilege (1) the head of the Department must formally claim the privilege;

20 (2) that claim must be based on personal consideration; and (3) the official must identify

21 the information subject to privilege and explain why it is privileged). Here, the highest

22 official at USCIS formally claimed the privilege in a sworn statement detailing how

23 disclosure of the identities of individuals with an articulable link to national-security

24 grounds of inadmissibility would threaten law enforcement interests. ECF No. 94-5. The

25 Acting Director’s declaration explained:

26

Public confirmation that a particular individual is subject to CARRP would

necessarily alert an individual that he/she may be the subject of an

27

investigation, or at least that the government possess information that

28

creates an articulable link to a national security ground of inadmissibility.

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 3 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 99 Filed 11/02/17 Page 4 of 11

By alerting an individual that he or she is subject to an investigation and the
1
types of records consulted, that individual might learn the focus of these

2

investigations. The individual could then, for example, alter his or her

behavior, conceal evidence of wrongdoing, or attempt to influence

3

witnesses or adjust his or her means of communication or financial dealings

4

to avoid detection of the very behavior that the law enforcement and

intelligence communities have determined may be indicative of a national

5

security threat, and which form the core of pending investigative efforts.

6
ECF No. 94-5, ¶ 18. To the extent the Court believed that the law requires additional

7
certainty of what would result from disclosure, the Court erred. To require certainty and

8
specificity in what harm will result from disclosure is to negate the law enforcement

9
privilege entirely. Moreover, the declaration is neither vague nor brief—and, in any

10
event, brevity is not a basis to reject a validly invoked privilege. The declaration was

11
based on the Acting Director’s personal knowledge of the facts contained therein and

12
provided sufficient specificity to meet the requirement to “provide an explanation.”

13
Shah, 89 F. Supp. 3d at 1080-81 (providing similarly detailed reasoning).1 Defendants

14
met all of the criteria to validly invoke the law enforcement privilege. Id.

15
2. The Court Did Not Require Plaintiffs to Demonstrate a “Necessity” for the

16

Identities of Class Members and Erred in Ordering Disclosure Only Upon

17

a Showing of Relevance

Furthermore, the Court did not specify what burden Plaintiffs bore to overcome
18

the privilege, or, indeed, acknowledge they had such a burden at all. See ECF No. 98 at 4
19

(moving directly from whether the privilege was validly asserted to balancing the party’s
20

interests without first considering whether Plaintiff’s need was sufficiently great to
21

overcome the presumption against lifting the privilege). The Supreme Court and the
22

Ninth Circuit have held that evidence must be “essential,” or meet an equally high
23

threshold, to justify piercing the privilege. United States v. Valenzuela-Bernal, 458 U.S.
24

858, 870 (1982) (“The Roviaro Court held that the informer’s identity had to be
25

disclosed, but only after it concluded that the informer’s testimony would be highly
26

27 1 Defendants continue to maintain that, given the nature of this case—a facial challenge to the lawfulness of CARRP, applicable nationwide to all class members—Plaintiffs have no need for the identities of the class
28 members, and that disclosure of anonymous demographic information would be sufficient to meet the needs of the case.

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 4 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 99 Filed 11/02/17 Page 5 of 11

1 relevant”) (emphasis added); In re Perez, 749 F.3d 849, 859 (9th Cir. 2014) (holding

2 identifying information of whistleblowers must be “essential” to justify disclosure).

3 Other courts have ruled similarly. See Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d

4 1122, 1125 (7th Cir. 1998) (“It seems to us, however, and not only to us, that there ought

5 to be a pretty strong presumption against lifting the privilege.”); Dole v. Local 1942, Int’l

6 B’hood of Elec. Workers, AFL-CIO, 870 F.2d 368-375 (7th Cir. 1989) (“The informer’s

7 privilege will yield upon a showing of substantial need”); United States v. Cintolo, 818

8 F.2d 980, 983-84 (1st Cir. 1987) (requiring showing of “necessity” to pierce privilege).

9

Plaintiffs have not met this “pretty strong presumption,” nor explained why the

10 identities of the class members are “necessary” or “essential” to their case rather than

11 merely relevant. In re Perez involved an analogous request to disclose specific identities

12 of whistleblowers which the requesting party could then associate with particular facts.

13 The Ninth Circuit concluded that associating an identity with other evidence was not

14 essential and did not justify piercing the privilege:

15

The information the Secretary has not disclosed consists of only the

identifying information in the 250 statements. While this information may

16

meet the general standard for relevance under Federal Rule of Evidence

17

401, we are not convinced that its probative value is so great that it is

“essential” to DSHS’s defense. DSHS cannot force the Secretary to reveal

18

the identities of the informants on such a weak showing.

19 749 F.3d at 859.

20

Here, as in In re Perez, the information Defendants seek to withhold consists only

21 of identifying information. Plaintiffs specifically requested the name, A-number, age,

22 sex, country of origin, country of citizenship, religion, race, ethnicity, date the relevant

23 application was filed, and the current status of the relevant application. See ECF No. 94-

24 1 at 18-19 (RFP No. 28). Defendants are willing to provide all of this information, to the

25 extent it is known and stored in the relevant electronic system, other than the name and

26 A-number. ECF No. 94 at 8. Because Plaintiffs have not, and cannot, establish a

27 legitimate need for identifying information, there is no basis for releasing the names and

28 other identifying information of those applicants with an articulable tie to national

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 5 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 99 Filed 11/02/17 Page 6 of 11

1 security grounds of inadmissibility. As in In re Perez, while individual identities may be

2 “relevant” under Federal Rule of Evidence 401, they are not “essential” or “necessary,”

3 and, accordingly, Defendants’ assertion of privilege should not be disturbed. Moreover,

4 this case involves considerations of national security, public safety, and the integrity of

5 ongoing investigations not present in In re Perez. Accordingly, this case presents a

6 greater justification for withholding identities than the Ninth Circuit has already

7 approved.

8

3. Even Assuming a Necessity, the Court Did Not Articulate Its Basis For

Concluding the Plaintiffs’ Litigation Needs Outweighed The Public

9

Interest in Nondisclosure

10

Beyond this, the Court failed to balance the litigation needs of the Plaintiffs

11 against the Government’s and the public’s interest in nondisclosure. Even assuming

12 Plaintiffs had shown a “necessity” or “compelling need” for the names and A-numbers of

13 the class members, that need must still outweigh the public interest in nondisclosure to

14 justify piercing the privilege. In re City of New York, 607 F.3d at 948 (“If the

15 presumption against disclosure is successfully rebutted (by a showing of, among other

16 things, ‘compelling need’), the district court must then weigh the public interest in

17 nondisclosure against the need of the litigant for access. . . ”); In re Sealed Case, 856

18 F.2d at 272. Here, the Court did not identify a relevant standard or explain its analysis in

19 concluding that “the balance weigh[s] in favor of disclosure.” ECF No. 98 at 4. This was

20 error. Explicit balancing of the competing factors is required. In re Sealed Case, 856

21 F.2d 268, 272 (D.C. Cir. 1988) (“the failure to balance at all requires remand”). In re

22 City of New York, 607 F.3d 943, 948 (2d Cir. 2010), and Frankenhauser v. Rizzo, 59

23 F.R.D. 339, 344 (E.D. Pa. 1973), contain illustrative lists of factors to be considered in

24 determining the applicability of the privilege. Assuming that Plaintiffs could establish

25 the requisite necessity, the Court must articulate how it is balancing the competing

26 interests, and should conclude that the Government’s and the public’s interest in

27 nondisclosure of the identities takes precedence over Plaintiffs’ desire to associate names

28 with information, jeopardizing ongoing law enforcement efforts.

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 6 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 99 Filed 11/02/17 Page 7 of 11

4. Courts Have Rejected Protective Orders as Insufficient to Guard Against
1
Improper Disclosure of Law Enforcement Privileged Information

2

The Court also suggested that Plaintiffs’ attorneys could supplement the protective

3 order. ECF No. 98 at 4. Courts, including the Ninth Circuit, have routinely concluded

4 that protective orders are insufficient in contexts implicating law enforcement privileged

5 information, improper disclosure of which could threaten public safety. The Second

6 Circuit, in perhaps the most extensive analysis of this subject, rejected similar

7 procedures, concluding that inadvertent (or intentional) disclosure of law enforcement

8 information was too great a risk, and the potential harm too difficult to remedy. In re

9 City of New York, 607 F.3d at 935-39. Likewise, the Ninth and D.C. Circuits have

10 similarly rejected an attorney-eyes-only remedy in cases involving national security

11 interests in FOIA litigation. Islamic Shura Council of So. Cal. v. FBI, 635 F3d 1160,

12 1168 (9th Cir. 2011) (citing Arieff v. U.S. Dep’t of Navy, 712 F.2d 1462, 1469-71 (D.C.

13 Cir. 1983)). These courts have concluded that permitting access would “color public

14 perception of the security of confidential information in government files.” Id. The same

15 analysis applies with equal force here. Once disclosed, the bell cannot be un-rung.

16

CONCLUSION

17

For these reasons, Defendants respectfully submit that the Court should grant

18 Defendants’ Motion to Reconsider.

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DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 7 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 99 Filed 11/02/17 Page 8 of 11

1 Dated: November 2, 2017
2 CHAD A. READLER Acting Assistant Attorney General
3 Civil Division
4
WILLIAM C. PEACHEY 5 Director, District Court Section 6 Office of Immigration Litigation

7 TIMOTHY M. BELSAN
8 Deputy Chief, National Security & Affirmative Litigation Unit
9

10 /s/ Edward S. White EDWARD S. WHITE

11 Senior Counsel, National Security

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& Affirmative Litigation Unit

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DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 8 (2:17-cv-00094-RAJ)

Respectfully submitted, AARON R. PETTY JOSEPH F. CARILLI, JR. Trial Attorneys, National Security
& Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Telephone: (202) 532-4542 E-mail: Aaron.R.Petty@usdoj.gov
UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 99 Filed 11/02/17 Page 9 of 11

1

CERTIFICATE OF COMPLIANCE

2

I HEREBY CERTIFY that on November 1, 2017, I conferred with opposing

3 counsel and thoroughly discussed the substance of this motion and in good faith

4 attempted to reach an accord to eliminate the need for the motion.

5

s/ Edward S. White
6
EDWARD S. WHITE

7

U.S. Department of Justice

8

9

CERTIFICATE OF SERVICE

10

I HEREBY CERTIFY that on November 2, 2017, I electronically filed the

11 foregoing with the Clerk of the Court using the CM/ECF system, which will send

12 notification of such filing to the following CM/ECF participants:

13

Harry H. Schneider, Jr., Esq.

14

Nicholas P. Gellert, Esq.

David A. Perez, Esq.

15

Laura K. Hennessey, Esq.

16

Perkins Coie L.L.P.

1201 Third Ave., Ste. 4800

17

Seattle, WA 98101-3099

18

PH: 359-8000

FX: 359-9000

19

Email: HSchneider@perkinscoie.com

20

Email: NGellert@perkinscoie.com

Email: DPerez@perkinscoie.com

21

Email: LHennessey@perkinscoie.com

22
Matt Adams, Esq.

23

Glenda M. Aldana Madrid, Esq.

24

Northwest Immigrant Rights Project

615 Second Ave., Ste. 400

25

Seattle, WA 98104

26

PH: 957-8611

FX: 587-4025

27

E-mail: matt@nwirp.org

28

E-mail: glenda@nwirp.org

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 9 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 99 Filed 11/02/17 Page 10 of 11

Emily Chiang, Esq.

1

ACLU of Washington Foundation

2

901 Fifth Avenue, Suite 630

Seattle, WA 98164

3

Telephone: (206) 624-2184

E-mail: Echiang@aclu-wa.org
4

5

Jennifer Pasquarella, Esq.

ACLU Foundation of Southern California

6

1313 W. 8th Street

7

Los Angeles, CA 90017

Telephone: (213) 977-5211

8

Facsimile: (213) 997-5297

E-mail: jpasquarella@aclusocal.org
9

10

Stacy Tolchin, Esq.

Law Offices of Stacy Tolchin

11

634 S. Spring St. Suite 500A

Los Angeles, CA 90014

12

Telephone: (213) 622-7450

13

Facsimile: (213) 622-7233

E-mail: Stacy@tolchinimmigration.com

14

15

Trina Realmuto, Esq.

Kristin Macleod-Ball, Esq.

16

National Immigration Project of the National Lawyers Guild

14 Beacon St., Suite 602

17

Boston, MA 02108

18

Telephone: (617) 227-9727

Facsimile: (617) 227-5495

19

E-mail: trina@nipnlg.org

E-mail: kristin@nipnlg.org
20

21

Lee Gelernt, Esq.

Hugh Handeyside, Esq.

22

Hina Shamsi, Esq.

23

American Civil Liberties Union Foundation

125 Broad Street

24

New York, NY 10004

Telephone: (212) 549-2616

25

Facsimile: (212) 549-2654

26

E-mail: lgelernt@aclu.org

E-mail: hhandeyside@aclu.org

27

E-mail: hshamsi@aclu.org

28

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 10 (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case 2:17-cv-00094-RAJ Document 99 Filed 11/02/17 Page 11 of 11

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DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 11 (2:17-cv-00094-RAJ)

s/ Edward S. White EDWARD S. WHITE U.S. Department of Justice
UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

 
 Case 2:17-cv-00094-RAJ Document 100 Filed 11/14/17 Page 1 of 16

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 8

9 ABDIQAFAR WAGAFE, et al., on behalf of themselves and others similarly situated,
10
Plaintiffs, 11
v. 12
DONALD TRUMP, President of the 13 United States; et al.,

14

Defendants.

No. 2:17-cv-00094-RAJ
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017
NOTED ON MOTION CALENDAR: NOVEMBER 14, 2017

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PLAINTIFFS’ OPPOSITION TO RECONSIDERATION MOTION
(No. 2:17-cv-00094-RAJ)
137640145.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
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Case 2:17-cv-00094-RAJ Document 100 Filed 11/14/17 Page 2 of 16

1

TABLE OF CONTENTS

2

PAGE

3 I. INTRODUCTION............................................................................................................ 1

4 II. BACKGROUND .............................................................................................................. 1

5 III. ARGUMENT.................................................................................................................... 2
A. Legal Standard for Reconsideration Motions ........................................................ 2 6
B. Reconsideration is Not Warranted. ........................................................................ 3

7

1. The Court properly considered the McCament Declaration. ..................... 3

8

2. Plaintiffs demonstrated a need for this discovery, and the Court

properly balanced the parties’ interests...................................................... 5 9
3. The Court properly considered the Stipulated Protective Order

10

when balancing the parties’ litigation needs. ............................................. 8

11 IV. CONCLUSION .............................................................................................................. 10

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 PLAINTIFFS’ OPPOSITION TO RECONSIDERATION MOTION - i
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Case 2:17-cv-00094-RAJ Document 100 Filed 11/14/17 Page 3 of 16

1

TABLE OF AUTHORITIES

2 CASES

PAGE

3

Anderson v. Domino’s Pizza, Inc.,

4

11-CV-902 RBL, 2012 WL 2891804 (W.D. Wash. July 16, 2012) ..........................................3

5 Arieff v. U.S. Dept. of Navy,

6

712 F.2d 1462 (D.C. Cir. 1983) .................................................................................................8

7 Cable & Computer Tech., Inc. v. Lockheed Saunders, Inc., 175 F.R.D. 646 (C.D. Cal. 1997) ...............................................................................................7

8 Floyd v. City of New York,

9

739 F. Supp. 2d 376 (S.D.N.Y. 2010)........................................................................................9

10 Hemstreet v. Duncan,

11

CV-07-732-ST, 2007 WL 4287602 (D. Or. Dec. 4, 2007) ........................................................6

12 Henderson v. Metro. Prop. & Cas. Ins. Co., C09-1723 RAJ, 2010 WL 3937482 (W.D. Wash. Oct. 5, 2010) ...............................................3

13 Ibrahim v. Dep’t of Homeland Sec.,

14

C 06-00545 WHA, 2009 WL 5069133 (N.D. Cal. Dec. 17, 2009), vacated and

remanded on other grounds by, 669 F.3d 983 (9th Cir. 2012) ................................................10 15

In re Anthem, Inc. Data Breach Litig.,

16

236 F. Supp. 3d 150, 166 (D.D.C. 2017) ...............................................................................7, 9

17 In re The City of New York,

18

607 F.3d 923 (2d Cir. 2010)...............................................................................................3, 8, 9

19 In re Perez,

749 F.3d 849 (9th Cir. 2014) .....................................................................................................7 20

In re Sealed Case,

21

856 F.2d 268 (D.C. Cir. 1988) ...................................................................................................5

22 Islamic Shura Council of S. California v. F.B.I.,

23

635 F.3d 1160 (9th Cir. 2011) ...................................................................................................8

24 Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193 (11th Cir. 1985) .................................................................................................6
25

26 PLAINTIFFS’ OPPOSITION TO RECONSIDERATION MOTION - ii
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Case 2:17-cv-00094-RAJ Document 100 Filed 11/14/17 Page 4 of 16

1

TABLE OF AUTHORITIES

(continued)

2

Page

Latif v. Holder,

3

28 F. Supp. 3d 1134 (D. Or. 2014) ............................................................................................4

4 Ledcor Indus. (USA) Inc. v. Virginia Sur. Co., Inc.,

5

No. 09-CV-01807 RSM, 2012 WL 223904 (W.D. Wash. Jan. 25, 2012) .................................3

6

MacNamara v. City of New York, 249 F.R.D. 70 (S.D.N.Y. 2008) ...............................................................................................10

7 Minhnga Nguyen v. Boeing Co.,

8

C15-793RAJ, 2017 WL 2834273 (W.D. Wash. June 30, 2017), motion for

relief from judgment denied sub nom. Nguyen v. Boeing Co., C15-793 RAJ,

9

2017 WL 4167875 (W.D. Wash. Sept. 19, 2017)......................................................................4

10 Nat’l Cong. for Puerto Rican Rights ex rel. Perez v. City of New York,

11

194 F.R.D. 88 (S.D.N.Y. 2000) ...............................................................................................10

12 Roviaro v. United States, 353 U.S. 53 (1957).....................................................................................................................7

13

U.S. ex rel. Burroughs v. DeNardi Corp.,

14

167 F.R.D. 680 (S.D. Cal. 1996) ...............................................................................................5

15 United States v. Valenzuela-Bernal,

16

458 U.S. 858 (1982)...............................................................................................................6, 7

17 RULES

18 Local Rule 7(h) ....................................................................................................................1, 2, 3, 4

19

20

21

22

23

24

25

26 PLAINTIFFS’ OPPOSITION TO RECONSIDERATION MOTION (No. 2:17-cv-00094-RAJ) – iii

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1 I. INTRODUCTION
2 Reconsideration of this Court’s order compelling disclosure of identifying information of
3 class members, including their names and corresponding registration numbers, is not warranted.
4 Defendants have not met the standard outlined in Local Rule 7(h) because they do not point to
5 any new facts, intervening case law, or manifest errors. Rather, Defendants simply disagree with
6 the Court’s conclusions, which is not a proper basis for reconsideration. Contrary to Defendants’
7 assertions, this Court accorded due consideration to the McCament Declaration and applied the
8 correct legal standard on the law enforcement privilege, which requires specifying with
9 particularity the protected information and why it falls within the scope of the privilege and calls
10 for balancing the interests of disclosure against the interests of withholding. The Court’s
11 balancing was not erroneous because Plaintiffs established that they need a list of the members
12 of the two certified nationwide classes to litigate their claims, identify witnesses, and properly
13 represent the class members. Finally, the Court properly considered the Stipulated Protective
14 Order when balancing the parties’ respective interests. Courts routinely consider existing
15 safeguards, such as a protective order, when weighing the risks of disclosure.
16 II. BACKGROUND
17 On June 21, 2017, the Court granted Plaintiffs’ motion to certify two classes: a
18 Naturalization Class and an Adjustment Class. Dkt. # 69. Defendants moved to reconsider the
19 class certification order, which the Court denied. Dkt. # 85. On August 1, 2017, Plaintiffs
20 served Defendants with discovery requests asking for, among other things, documents sufficient
21 to identify the class members, including a list of class members, and documents relating to why
22 Named Plaintiffs’ applications were subject to CARRP. Declaration of David A. Perez in
23 Support of Plaintiffs’ Motion to Compel (Dkt. # 92) (“Perez Decl.”), Ex. A at 32, 34-39, 48-51.1 24

25
1 Exhibit A to the Perez Declaration is Defendants’ responses and objections to Plaintiffs’ discovery
26 requests, which also includes the requests themselves. Defendants served these responses on September 5, 2017.

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1

Defendants objected to these discovery requests, invoking broad and largely unspecified

2 privilege concerns. Id. Defendants have since clarified that the privilege they were invoking is

3 the law enforcement privilege. After exchanging letters and conducting a meet and confer, the

4 parties were at an impasse on this issue and several others. Accordingly, Plaintiffs filed a motion

5 to compel (Dkt. # 91), which Defendants opposed (Dkt. # 94). After full briefing, the Court

6 granted in part, and denied in part, Plaintiffs’ motion to compel. Dkt. # 98.

7

With respect to discovery of “information to allow Plaintiffs to identify potential class

8 members and why Named Plaintiffs were subjected to CARRP,” the Court granted Plaintiffs’

9 motion to compel. Dkt. # 98 at 2-4. The Court’s order specifically addressed two arguments

10 Defendants advanced for resisting this discovery: that compiling the list would be too

11 burdensome and that the list was subject to the law enforcement privilege. The Court rejected

12 the burden arguments, pointing out that “the Government concedes it already compiles potential

13 class members into searchable databases,” and “can produce it without incurring such a high

14 expense.” Id. at 3. As for the law enforcement privilege, the Court applied the relevant legal

15 standard and concluded that Defendants’ factual assertions were too vague and speculative. Id.

16 at 3-4. The Court also reasoned that even if the Defendants’ contentions were sufficient,

17 application of the privilege is not automatic, and after balancing the parties’ respective interests,

18 the Court found “that the balance weigh[s] in favor of disclosure.” Id. at 4.

19

Defendants have moved to reconsider only this portion of the Court’s order, and only as it

20 relates to their assertion of the law enforcement privilege over identification of class members.2

21 22 A. 23

III. ARGUMENT Legal Standard for Reconsideration Motions Local Rule 7(h) emphasizes that “[m]otions for reconsideration are disfavored.” The

24 Court “will ordinarily deny such motions” unless the moving party demonstrates “manifest

25
2 Defendants did not move to reconsider any other portion of the Court’s order, including the other aspect
26 of Part III.A concerning the reasons why Named Plaintiffs were subjected to CARRP.

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1 error” in the Court’s prior ruling or “new facts or legal authority which could not have been

2 brought to its attention earlier with reasonable diligence.” LCR 7(h). When a motion for

3 reconsideration “merely rehashes the same arguments made and rejected by the Court,” it “may

4 be denied for this reason alone.” Ledcor Indus. (USA) Inc. v. Va. Sur. Co., Inc., No. 09-CV-

5 01807 RSM, 2012 WL 223904, at *1 (W.D. Wash. Jan. 25, 2012); see also Anderson v.

6 Domino’s Pizza, Inc., 11-CV-902 RBL, 2012 WL 2891804, at *1 (W.D. Wash. July 16, 2012)

7 (noting reconsideration is an “extraordinary remedy” that “should not be granted . . . unless the

8 district court is presented with newly discovered evidence, committed clear error, or if there is an

9 intervening change in the controlling law”) (quotations omitted).

10 B. 11

Reconsideration is Not Warranted. Defendants fail to meet the standard for reconsideration under Local Rule 7(h). Rather

12 than identifying manifest errors, new facts, or intervening changes in law, the motion restates the

13 same arguments Defendants already briefed. Similarly, Defendants previously moved to

14 reconsider the Court’s order on class certification. In denying that motion, the Court made an

15 observation that applies equally here: “Defendants couch their motion in terms of the Court’s

16 manifest errors but in reality the motion argues that the Court should revisit its conclusions.

17 Parties cannot use motions for reconsideration to simply obtain a second bite at the apple, and

18 this is what Defendants appear to be doing with this motion.” Dkt. 85 at 2.

19

1. The Court properly considered the McCament Declaration.

20

Defendants erroneously assert that the Court “dismissed the sworn statement of the head

21 of USCIS,” Mr. McCament. Dkt. # 99 at 2.3 At the outset, this argument is notable for what it

22 does not include: any new facts. See Henderson v. Metro. Prop. & Cas. Ins. Co., C09-1723 RAJ,

23 2010 WL 3937482, at *2 (W.D. Wash. Oct. 5, 2010) (denying reconsideration where litigant

24 failed to “point[] to new facts that justify the court reconsidering its order”). Instead, Defendants

25
3 Defendants submitted two separate declarations from Mr. McCament in support of their opposition brief.
26 The one that addresses the law enforcement privilege is Dkt. # 94-5.

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1 simply assert that the Court failed to analyze or properly consider the evidence already

2 presented. That is not sufficient to justify reconsideration.

3

Moreover, Plaintiffs’ briefing and the Court’s order each show that the McCament

4 Declaration was properly considered. Plaintiffs’ reply brief highlighted several problems with

5 the McCament Declaration. First, the two certified classes are limited to individuals whose

6 applications have been languishing for at least six months; practically speaking, those individuals

7 are already on notice that their applications have been subject to additional scrutiny. Dkt. # 95 at

8 3-4. Second, courts previously have rejected similar concerns about disclosing the names of

9 individuals subject to the No Fly List. See Latif v. Holder, 28 F. Supp. 3d 1134, 1162 (D. Or.

10 2014). Third, Defendants routinely disclose this information in other litigation. Dkt. # 95 at 4.

11 Each of these arguments casts doubt on the McCament Declaration.

12

For its part, the Court’s order makes clear that the Court expressly considered

13 Defendants’ assertions “that releasing the identities of potential class members could lead

14 individuals to potentially alter their behavior, conceal evidence of wrongdoing, or attempt to

15 influence others in a way that could affect national security interests.” Dkt. # 98 at 3 (citing the

16 McCament Declaration). After considering it, however, the Court concluded that these

17 assertions were too speculative and hypothetical “to claim privilege over basic spreadsheets

18 identifying who is subject to CARRP.” Id. at 4. In other words, the Court disagreed with

19 Defendants’ factual and legal arguments. Where a court has considered the factual evidence

20 presented, a litigant’s disagreement with that factual analysis is not a basis for reconsideration.

21 See Minhnga Nguyen v. Boeing Co., C15-793RAJ, 2017 WL 2834273, at *2 (W.D. Wash. June

22 30, 2017), motion for relief from judgment denied sub nom. Nguyen v. Boeing Co., C15-793

23 RAJ, 2017 WL 4167875 (W.D. Wash. Sept. 19, 2017) (finding plaintiff did not meet her Rule

24 7(h)(1) burden for reconsideration because she did not present facts or legal authority that were

25 not previously available and instead reiterated previously pled facts). The Court similarly found

26 that the McCament Declaration’s “vague, brief explanation” (Dkt. # 98 at 3) failed to meet

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1 Defendants’ high legal burden of “specify[ing] with particularity the information for which the

2 protection is sought, and explain why the information falls within the scope of the privilege.”

3 U.S. ex rel. Burroughs v. DeNardi Corp., 167 F.R.D. 680, 687 (S.D. Cal. 1996). Nothing in

4 Defendants’ motion for reconsideration supports reversing that legal conclusion.

5

The Court also was correct to conclude that Defendants did not present “competent

6 evidence” to support invocation of the privilege. See Dkt. # 99 at 3; Dkt. # 98 at 3-4.

7 Defendants appear to be arguing that so long as they submit a declaration containing their view

8 for why the information should not be disclosed, the privilege automatically adheres. But that is

9 not the law. As the Court pointed out, even if the McCament Declaration was “sufficient, the

10 privilege is not automatic; the Court must balance the need for Plaintiffs to obtain this

11 information against the Government’s reasons for withholding.” Dkt. # 98 at 4; see also In re

12 Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988) (“[T]he law enforcement investigatory

13 privilege is qualified. The public interest in nondisclosure must be balanced against the need of a

14 particular litigant for access to the privileged information.”). Notably, “a district court has

15 considerable leeway” in striking that balance. Id. Here, after Plaintiffs and Defendants each laid

16 out their needs in their respective briefs, the Court came down in favor of disclosure.

17 Defendants’ disagreement with that conclusion does not demonstrate manifest error.

18

Because this argument does not demonstrate that the Court committed any legal errors, or

19 provide any new facts, it is not a basis for reconsideration.

20

2. Plaintiffs demonstrated a need for this discovery, and the Court properly

balanced the parties’ interests. 21

Defendants similarly are mistaken in their assertions that the Court did not require

22

Plaintiffs to demonstrate a “necessity” for this discovery, and failed to balance the parties’ needs.

23

Neither assertion provides a basis for reconsideration.

24

First, Plaintiffs did show a need for this information. See Dkt. # 91 at 4-6; Dkt. # 95 at 1-

25

2. Specifically, Plaintiffs explained that each class member is a potential witness or source of

26

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1 information regarding, inter alia, unwarranted denials and other impacts of CARRP and

2 successor extreme vetting programs. Such testimony will be critical to establishing Plaintiffs’

3 assertions that CARRP is unlawful and extra-statutory by highlighting those individuals who are

4 plainly eligible for the benefits for which they are applying, and yet still have not been approved.

5 Likewise, such information bears directly upon Plaintiffs’ claims under procedural due process

6 (e.g., that class members had a right to notice and a meaningful explanation for their

7 classification) and equal protection (e.g., demonstrating discrimination and disparate treatment

8 on the basis of religion). Moreover, class counsel now represent such class members and are

9 entitled to know who they are. See Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193, 1207

10 n.28 (11th Cir. 1985) (“Class counsel represents all class members as soon as a class is

11 certified.”). Indeed, class counsel must be able to respond to inquiries from potential class

12 members seeking assistance.

13

As outlined above, the Court explicitly “balance[d] the need for Plaintiffs to obtain this

14 information against the Government’s reasons for withholding.” Dkt. # 98 at 4. After doing so,

15 the Court considered the parties’ protective order (which will protect particularly sensitive

16 information) and concluded “the balance weigh[s] in favor of disclosure.” Id. Given the

17 importance of this information to Plaintiffs’ case, and the considerable leeway afforded to district

18 courts in striking this balance, that conclusion was not erroneous. See Hemstreet v. Duncan, CV-

19 07-732-ST, 2007 WL 4287602, at *2 (D. Or. Dec. 4, 2007) (privilege is overcome “[w]hen the

20 records are ‘both relevant and essential’ to the presentation of the case on the merits”) (citation

21 omitted). Defendants may disagree with the Court’s conclusion, but the assertion that “the Court

22 failed to balance [the parties’] litigation needs,” Dkt. # 99 at 6, is just wrong.

23

Second, the cases Defendants cite for its “necessity” argument have nothing to do with

24 the law enforcement privilege. For instance, they cite United States v. Valenzuela-Bernal, 458

25 U.S. 858, 870 (1982), for the notion “that evidence must be ‘essential,’ or meet an equally high

26 threshold, to justify piercing the privilege.” Dkt. # 99 at 4. But Valenzuela-Bernal is not about

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1 the law enforcement privilege. The case concerned a criminal defendant’s right to confront a

2 witness under the Sixth Amendment, and when denying access to a witness becomes so material

3 to a defense that it violates the right to a fair trial. 458 F.3d at 870.

4

Defendants’ citation to Roviaro v. United States, 353 U.S. 53 (1957) and other cases that

5 deal with disclosing the identities of informants are similarly inapposite because an informant’s

6 privilege is categorically different from the law enforcement privilege. See In re Perez, 749 F.3d

7 849, 855-56 (9th Cir. 2014) (explaining that the informant’s “privilege protects ‘the identity of

8 persons who furnish information of violations of law to officers charged with enforcement of that

9 law’ from ‘those who would have cause to resent the communication’”) (citing Roviaro, 353

10 U.S. at 59-60). Disclosure of a list of class members is not the same as disclosure of an

11 informant in a criminal case. It was not error for the Court to apply the correct legal standard,

12 rather than the one governing a different privilege. Nevertheless, to the extent the informant’s

13 privilege provides guidance here, the key is that it, too, is qualified: “the privilege will give way

14 [w]here the disclosure of an informer’s identity, or of the contents of his communication, is

15 relevant and helpful to the defense of an accused, or is essential to a fair determination of a

16 cause.” Id. (quotation omitted).

17

And finally, Defendants misapply the discovery rules by trying to shift the burden onto

18 the party seeking discovery. Though there is a balancing of needs, the party resisting discovery

19 at all times bears the burden of proving the privilege applies. See In re Anthem, Inc. Data

20 Breach Litig., 236 F. Supp. 3d 150, 166 (D.D.C. 2017) (“The Government bears the burden of

21 proving the information for which the law enforcement privilege is claimed falls within the scope

22 of the privilege.”); Cable & Comput. Tech., Inc. v. Lockheed Saunders, Inc., 175 F.R.D. 646, 650

23 (C.D. Cal. 1997) (“The party who resists discovery has the burden to show that discovery should

24 not be allowed, and has the burden of clarifying, explaining, and supporting its objections.”).

25

In sum, Plaintiffs established why this information is essential their case, and in

26 concluding that disclosure was appropriate, the Court properly balanced the parties’ interests.

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1

3. The Court properly considered the Stipulated Protective Order when

balancing the parties’ litigation needs. 2
Given that Defendants regularly released information about whether an individual falls

3 under CARRP in response to FOIA requests and in litigation without any protection, there is no

4 need to shield the identities of class members pursuant to a protective order. But, to the extent

5 any protection is needed, the Court appropriately noted that the protective order is sufficient to

6 protect any confidentiality interests. None of the cases cited by Defendants undermine the

7 appropriateness of the Court’s consideration of the protective order in making this determination.

8 Two of the three cases Defendants cite involve litigation under the Freedom of

9 Information Act (FOIA): Islamic Shura Council of Southern California v. F.B.I., 635 F.3d 1160,

10 1168 (9th Cir. 2011) and Arieff v. U.S. Department of Navy, 712 F.2d 1462 (D.C. Cir. 1983). In

11 both cases, the courts’ reasoning was specific to the FOIA context where attorneys are retained

12 for the express purpose of obtaining information that may be released to the public at large; in

13 that context, it makes little sense, and would “strain” the attorney-client relationship, to permit

14 only the attorney to view “the very data he has been retained to acquire.” Islamic Shura Council,

15 635 F.3d at 1168 (discussing Arieff, 712 F.2d at 1470). Neither case dealt with the discovery law

16 enforcement privilege, and neither case discussed how a protective order may be used to inform

17 a court’s balancing of interests when applying that privilege.

18 Similarly, In re City of New York, 607 F.3d 923 (2d Cir. 2010) is also inapposite. In that

19 case, the Second Circuit concluded that an attorneys’ eyes only protective order was inadequate

20 “in the circumstances of this case,” in large part because there was reason to believe that

21 materials already disclosed on an “‘attorneys’ eyes only’ basis . . . were used as the source of a

22 newspaper article discussing the secret operations” at issue. Id. at 936. Here, there is no

23 suggestion that anything produced in this case has been or will be “leaked” in violation of the

24 parties’ Stipulated Protective Order. And far from stating a categorical rule that protective

25 orders are always inadequate, the Second Circuit made clear that in other cases involving the law

26

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1 enforcement privilege “the court is free to tailor the protective order to the circumstances

2 presented.” Id. at 949. In other words, after finding the protective order inadequate in that case,

3 the Second Circuit expressly stated that in other cases a protective order may be adequate.

4

This case is distinguishable from In re City of New York for several reasons. For starters,

5 Defendants already have shown that the government does not treat the identification of CARRP

6 cases or the reasons why individuals are subjected to CARRP as privileged. See, e.g.,

7 Declaration of Stacy Tolchin in Support of Plaintiffs’ Motion to Compel (Dkt. # 93), Exs. 1 and

8 2; Perez Decl. Ex. E at 276:15-17; id., Ex. F; Declaration of Jay Gairson in Support of Motion to

9 Compel (Dkt. # 97), Exs. A, B, and C. Defendants now assert those disclosures were mistakes.

10 But the disclosures cast significant doubt on the Government’s contention that producing a class

11 list would so compromise national security that the list should not be disclosed. Additionally,

12 although the Second Circuit in In re City of New York had “no difficulty in concluding that

13 plaintiffs do not have a need, much less a compelling need” for the information sought, 607 F.3d

14 at 946, here, the Court has expressly found that the information is relevant to Plaintiffs’ case.

15 Dkt. # 98 at 3. Furthermore, in contrast to In re City of New York, where the plaintiffs argued

16 they were entitled to the documents “regardless of their showing of need,” 607 F.3d at 946, here

17 Plaintiffs explained at length why this information is both relevant and essential to litigating their

18 claims, see Dkt. # 91 at 4-6; Dkt. # 95 at 1-4.

19

Plenty of courts expressly and appropriately consider protective orders when balancing

20 parties’ interests under the law enforcement privilege. For instance, in Floyd v. City of New

21 York, the court explained that when “balancing the interests favoring and disfavoring disclosure”

22 the court “must consider the effect of a protective order restricting disclosure to the plaintiff and

23 the plaintiff’s attorney….. Such an order can mitigate many if not all of the oft-alleged injuries

24 to the police and to law enforcement.” 739 F. Supp. 2d 376, 381 (S.D.N.Y. 2010) (quotation

25 omitted). See also In re Anthem, Inc. Data Breach Litig., 236 F. Supp. 3d at 167 (Despite law

26 enforcement privilege, “disclosure of these materials simply does not carry the risks the

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1 Government anticipates. First and foremost, all the materials to be disclosed will be covered by

2 the protective order in the underlying litigation.”); Ibrahim v. Dep’t of Homeland Sec., C 06-

3 00545 WHA, 2009 WL 5069133, at *15 (N.D. Cal. Dec. 17, 2009), vacated and remanded on

4 other grounds by, 669 F.3d 983 (9th Cir. 2012) (finding “law enforcement privilege balancing

5 test militates in favor of authorizing disclosure” given “safeguards, such as a protective order”);

6 MacNamara v. City of New York, 249 F.R.D. 70, 88-89 (S.D.N.Y. 2008) (ordering disclosure,

7 even after finding that law enforcement privilege applied, because “disclosure of the documents

8 subject to the restrictions of the Protective Orders will sufficiently mitigate the risks, if any, that

9 may arise from disclosure”); Nat’l Cong. for Puerto Rican Rights ex rel. Perez v. City of New

10 York, 194 F.R.D. 88, 96 (S.D.N.Y. 2000) (ordering disclosure, despite both law enforcement and

11 “official information” privileges, “in light of the carefully crafted protective order already in

12 place”).

13

The Court’s decision to consider the parties’ Stipulated Protective Order when balancing

14 the parties’ interests was not a “manifest error.”

15

IV. CONCLUSION

16

The Court should deny Defendants’ motion for reconsideration.

17

18

19

20

21

22

23

24

25

26

PLAINTIFFS’ OPPOSITION TO RECONSIDERATION MOTION – 10
(No. 2:17-cv-00094-RAJ)
137640145.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 100 Filed 11/14/17 Page 15 of 16

1

By:

s/Jennifer Pasquarella (admitted pro hac vice) s/ Harry H. Schneider, Jr.

2 s/Sameer Ahmed (admitted pro hac vice)

Harry H. Schneider, Jr. #9404

ACLU Foundation of Southern California s/ Nicholas P. Gellert

3 1313 W. 8th Street

Nicholas P. Gellert #18041

Los Angeles, CA 90017 4 Telephone: (213) 977-5236

s/ David A. Perez David A. Perez #43959

Facsimile: (213) 997-5297 5 jpasquarella@aclusocal.org

s/ Laura K. Hennessey Laura K. Hennessey #47447

sahmed@aclusocal.org 6

Perkins Coie LLP 1201 Third Avenue, Suite 4900

7 s/Matt Adams

Seattle, WA 98101-3099 Telephone: 206.359.8000

s/Glenda M. Aldana Madrid 8 Matt Adams #28287

Facsimile: 206.359.9000 Email: HSchneider@perkinscoie.com

Glenda M. Aldana Madrid #46987 9 Northwest Immigrant Rights Project

NGellert@perkinscoie.com KReddy@perkinscoie.com

615 Second Ave., Ste. 400 10 Seattle, WA 98122

DPerez@perkinscoie.com LHennessey@perkinscoie.com

Telephone: (206) 957-8611 11 Facsimile: (206) 587-4025

matt@nwirp.org 12 glenda@nwirp.org

13 s/Stacy Tolchin (admitted pro hac vice) Law Offices of Stacy Tolchin
14 634 S. Spring St. Suite 500A Los Angeles, CA 90014
15 Telephone: (213) 622-7450 Facsimile: (213) 622-7233
16 Stacy@tolchinimmigration.com
17
18

s/Trina Realmuto (admitted pro hac vice) s/Kristin Macleod-Ball (admitted pro hac vice) Trina Realmuto Kristin Macleod-Ball American Immigration Council 100 Summer St., 23rd Fl. Boston, MA 02110 Tel: (857) 305-3600 Email: trealmuto@immcouncil.org Email: kmacleod-ball@immcouncil.org

s/Hugh Handeyside 19 Hugh Handeyside #39792

s/Emily Chiang Emily Chiang #50517

s/Lee Gelernt (admitted pro hac vice) 20 s/Hina Shamsi (admitted pro hac vice)

ACLU of Washington Foundation 901 Fifth Avenue, Suite 630

American Civil Liberties Union Foundation Seattle, WA 98164

21 125 Broad Street

Telephone: (206) 624-2184

New York, NY 10004 22 Telephone: (212) 549-2616

Echiang@aclu-wa.org

Facsimile: (212) 549-2654 23 lgelernt@aclu.org

hhandeyside@aclu.org 24 hshamsi@aclu.org

25 Attorneys for Plaintiffs

26

PLAINTIFFS’ OPPOSITION TO RECONSIDERATION MOTION – 11
(No. 2:17-cv-00094-RAJ)
137640145.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 100 Filed 11/14/17 Page 16 of 16

1

CERTIFICATE OF SERVICE

2 The undersigned certifies that on the dated indicated below, I caused service of the

3 foregoing PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO RECONSIDER

4 ORDER OF OCTOBER 19, 2017 via the CM/ECF system that will automatically send notice of

5 such filing to all counsel of record herein.

6 DATED this 14th day of November, 2017, at Seattle, Washington.

7

s/ David A. Perez

8

David A. Perez, WSBA No. 43959

9

Attorneys for Plaintiffs

Perkins Coie LLP

10

1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099

11

Telephone: 206.359.8000

12

Facsimile: 206.359.9000 Email: LHennessey@perkinscoie.com

13

14

15

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25

26

CERTIFICATE OF SERVICE (No. 2:17-cv-00094-RAJ) – 12
137640145.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

 
 Case 2:17-cv-00094-RAJ Document 101 Filed 11/20/17 Page 1 of 5

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9
ABDIQAFAR WAGAFE, et al., on behalf 10 of themselves and others similarly situated,

11

Plaintiffs,

12

v.

No. 2:17-cv-00094-RAJ
JOINT STATUS REPORT REGARDING DOCUMENTS RELATED TO THE EXECUTIVE ORDERS

13 DONALD TRUMP, President of the United States, et al.,
14
Defendants. 15

16 Plaintiffs Abdiqafar Wagafe et al., and Defendants Donald Trump et al.1, by and through
17 their counsel of record, hereby submit this Joint Status Report Regarding Documents Related to
18 the Executive Orders, pursuant to the Court’s Order dated October 19, 2017, Dkt. No. 98.
19 The parties have spent several hours conferring on this issue on two separate occasions.
20 The parties have determined that, before any alternative custodians or sources of information can
21 be identified, there is a prerequisite issue that needs to be resolved. Specifically, the parties have
22 a dispute regarding the appropriate scope of Plaintiffs’ discovery related to the First and Second
23 EOs.
24

25

26
1 All Defendants are named in their official capacities only.
JOINT STATUS REPORT REGARDING DOCUMENTS RELATED TO EXECUTIVE ORDERS (No. 2:17-cv-00094-RAJ ) – 1
137695527.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 101 Filed 11/20/17 Page 2 of 5

1

Plaintiffs’ position is that they are entitled to discovery of documents related to any

2 “extreme vetting” or other adjudicatory program being planned or implemented pursuant to the

3 First or Second EO, pursuant to claims I, II, III, V, and VI of the Second Amended Complaint

4 (Dkt. No. 47). See also Ex. A (11/10/2017 Perez Letter to White).

5

Defendants’ position is that Plaintiffs are only entitled to discovery of documents related

6 to any “extreme vetting” programs that may be implemented pursuant to the First and Second

7 EOs, if the “extreme vetting” program is a successor program to the CARRP (i.e., CARRP in all

8 but name). Defendants represent that there is no connection between the CARRP and any

9 “extreme vetting” program that may be implemented pursuant to the First and Second EOs.

10 Thus, Defendants do not possess any discoverable information.

11

The parties are at an impasse on this prerequisite issue and intend to seek the Court’s

12 guidance on the appropriate scope of discovery related to the EOs via the Expedited Joint Motion

13 Procedure outlined in Local Rule 37(a)(2). The parties plan to file this joint motion to compel

14 briefing no later than December 8, 2017.

15

16

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22

23

24

25

26

JOINT STATUS REPORT REGARDING DOCUMENTS RELATED TO EXECUTIVE ORDERS (No. 2:17-cv-00094-RAJ ) – 2
137695527.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 101 Filed 11/20/17 Page 3 of 5

1

DATED: November 20, 2017

2

By:

3 COUNSEL FOR PLAINTIFFS:

4

s/Jennifer Pasquarella (admitted pro hac vice) s/ Harry H. Schneider, Jr.

5 s/Sameer Ahmed (admitted pro hac vice)

Harry H. Schneider, Jr. #9404

ACLU Foundation of Southern California s/ Nicholas P. Gellert

6 1313 W. 8th Street

Nicholas P. Gellert #18041

Los Angeles, CA 90017

s/ David A. Perez

7 Telephone: (213) 977-5236

David A. Perez #43959

Facsimile: (213) 997-5297

s/ Laura K. Hennessey

8 jpasquarella@aclusocal.org sahmed@aclusocal.org

Laura K. Hennessey #47447 Perkins Coie LLP

9 s/Matt Adams

10

s/Glenda M. Aldana Madrid Matt Adams #28287

11

Glenda M. Aldana Madrid #46987 Northwest Immigrant Rights Project

12

615 Second Ave., Ste. 400 Seattle, WA 98122

13

Telephone: (206) 957-8611 Facsimile: (206) 587-4025

14

matt@nwirp.org glenda@nwirp.org

1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: HSchneider@perkinscoie.com
NGellert@perkinscoie.com DPerez@perkinscoie.com LHennessey@perkinscoie.com
s/Trina Realmuto (admitted pro hac vice) s/Kristin Macleod-Ball (admitted pro hac vice) Trina Realmuto

15 s/Stacy Tolchin (admitted pro hac vice) Law Offices of Stacy Tolchin
16 634 S. Spring St. Suite 500A Los Angeles, CA 90014
17 Telephone: (213) 622-7450 Facsimile: (213) 622-7233
18 Stacy@tolchinimmigration.com

Kristin Macleod-Ball American Immigration Council 100 Summer St., 23rd Fl. Boston, MA 02110 Tel: (857) 305-3600 Email: trealmuto@immcouncil.org Email: kmacleod-ball@immcouncil.org

19 s/Hugh Handeyside

Hugh Handeyside #39792

s/Emily Chiang

20 s/Lee Gelernt (admitted pro hac vice)

Emily Chiang #50517

s/Hina Shamsi (admitted pro hac vice)

ACLU of Washington Foundation

21 American Civil Liberties Union Foundation 901 Fifth Avenue, Suite 630

125 Broad Street

Seattle, WA 98164

22 New York, NY 10004

Telephone: (206) 624-2184

Telephone: (212) 549-2616

Echiang@aclu-wa.org

23 Facsimile: (212) 549-2654

lgelernt@aclu.org 24 hhandeyside@aclu.org

hshamsi@aclu.org 25

Attorneys for Plaintiffs

26

JOINT STATUS REPORT REGARDING DOCUMENTS RELATED TO EXECUTIVE ORDERS (No. 2:17-cv-00094-RAJ ) – 3
137695527.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 101 Filed 11/20/17 Page 4 of 5

1 COUNSEL FOR DEFENDANTS:

2
s/Aaron R. Petty 3 Aaron R. Petty 4 US Department Of Justice
219 S. Dearborn St., 5th Floor 5 Chicago, IL 60604
Telephone: 202-532-4542 6 aaron.r.petty@usdoj.gov

7 s/Joseph F. Carilli, Jr.

8

Joseph F. Carilli, Jr. US Department Of Justice (450 FIFTH)

9

Civil Division, Office Of Immigration Litigation

10

450 Fifth Street NW Washington, DC 20001

11

Telephone: 202-616-4848 joseph.f.carilli2@usdoj.gov

12

s/Edward S. White Edward S. White US Department Of Justice PO Box 868 Ben Franklin Station Washington, DC 20044 Telephone: 202-616-9131 Facsimile: 202-305-7000 edward.s.white@usdoj.gov

13

14

15

16

17

18

19

20

21

22

23

24

25

26

JOINT STATUS REPORT REGARDING DOCUMENTS RELATED TO EXECUTIVE ORDERS (No. 2:17-cv-00094-RAJ ) – 4
137695527.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 101 Filed 11/20/17 Page 5 of 5

1

CERTIFICATE OF SERVICE

2

3

The undersigned certifies under penalty of perjury and the laws of the State of

4 Washington that on November 20, 2017, I caused service of the foregoing, JOINT STATUS

5 REPORT REGARDING DOCUMENTS RELATED TO EXECUTIVE ORDERS, via email to

6 all counsel of record herein.

7

Aaron R Petty US Department Of Justice

8

219 S. Dearborn St., 5th Floor Chicago, IL 60604

9

Telephone: 202-532-4542 aaron.r.petty@usdoj.gov

Via Email

10 Edward S. White US Department Of Justice
11 PO Box 868 Ben Franklin Station
12 Washington, DC 20044 Telephone: 202-616-9131
13 Facsimile: 202-305-7000 edward.s.white@usdoj.gov
14 Joseph F. Carilli, Jr.
15 US Department Of Justice (450 FIFTH) Civil Division, Office Of Immigration
16 Litigation 450 Fifth Street NW
17 Washington, DC 20001 Telephone: 202-616-4848
18 joseph.f.carilli2@usdoj.gov

Via Email Via Email

19 I certify under penalty of perjury that the foregoing is true and correct.

20 DATED this 20th day of November, 2017, at Seattle, Washington.

21

s/David A. Perez

22

David A. Perez #43959

23

Perkins Coie LLP

1201 Third Avenue, Suite 4900

24

Seattle, WA 98101-3099

Telephone: 206.359.8000

25

Facsimile: 206.359.9000

Email: DPerez@perkinscoie.com 26

CERTIFICATE OF SERVICE (No. 2:17-cv-00094-RAJ) – 1
137695527.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 101-1 Filed 11/20/17 Page 1 of 3

November 10, 2017

David A. Perez DPerez@perkinscoie.com
D. +1.206.359.6767 F. +1.206.359.7767

VIA EMAIL
Edward S. White District Court Section Civil Division – Office of Immigration Litigation U.S. Department of Justice 450 Fifth Street, N.W. Washington, DC 20530 Edward.s.white@usdoj.gov
Re: Wagafe et al. v. Donald Trump et al. (USDC No. 17-cv-00094-RAJ) Discovery Relating to Executive Orders
Dear Ed:
Thank you for making the time to speak with us earlier this week concerning the Court’s October 19, 2017, order. As you know, the Court asked that we meet and confer about our discovery requests relating to the two Executive Orders. As the Court put it, “Plaintiffs seek documents that connect any kind of ‘extreme vetting’ program to the two Executive Orders.” Dkt. # 98 at 5. The government invoked two privileges: the deliberative process privilege and the Executive privilege. In response to deliberative process, the Court concluded that argument was “premature” and ordered that “the Government must provide a proper privilege log if it means to assert a deliberative-process privilege over certain documents.” Id.
As for the Executive privilege, the Court asked that we meet and confer “to discuss alternative custodians and non-custodial sources of information for any discovery over which the Government asserts this specific privilege.” Id.
During our call, we asked whether you had identified any such alternative custodial and noncustodial sources. Rather than provide any, you stated that Plaintiffs are not entitled to any discovery concerning the Executive Orders. First, you asserted that whatever “extreme vetting” may be implemented under the Executive Orders, such programs or processes will not directly relate to the CARRP program. Based on that representation, you asserted that there are no relevant documents to produce, or custodians to search.
137625648.1

Case 2:17-cv-00094-RAJ Document 101-1 Filed 11/20/17 Page 2 of 3
Edward S. White November 10, 2017 Page 2
We explained why we disagree with your understanding, and wish to take this opportunity to further outline our position in advance of our follow up call next week. First, the notion that this case is only about CARRP, and therefore Plaintiffs are not allowed any discovery on other “extreme vetting” programs is just wrong. As the Second Amended Complaint (Dkt. # 47) makes clear, Plaintiffs’ allegations encompass any extreme vetting program implemented by the Executive Orders, and are not limited solely to CARRP.
For instance, our First Claim (under the INA and APA) and Second Claim (mandamus), each allege as follows:
Defendants have interpreted the First EO and will interpret the Second EO to authorize the suspension of immigration petitions, applications, or requests involving Plaintiff Wagafe, Plaintiff Ostadhassan, Plaintiff Bengezi, and members of the Muslim Ban Class. Accordingly, Defendants will suspend adjudication of such immigration benefits petitions, applications, or requests.
SAC, ¶¶ 251-52; ¶¶ 257-58. Likewise, Plaintiffs’ Third Claim (Establishment Clause), alleges as follows:
The First EO was and Second EO is intended to target a specific religious faith—Islam. The First EO gave preference to other religious faiths—principally Christianity—and the Second EO has that intended effect when applied to Plaintiffs and members of the Muslim Ban Class. Defendants’ application of the First EO and Second EO to Plaintiffs and members of the Plaintiff Classes violates the Establishment Clause of the First Amendment to the United States Constitution by not pursuing a course of neutrality with regard to different religious faiths.
SAC, ¶ 261. All three of those claims are brought on behalf of Plaintiffs Wagafe, Ostadhassan, and Bengezi, in addition to the Muslim Ban Class.1
Moreover, Plaintiffs’ Fifth Claim (Substantive Due Process), alleges that under CARRP and the Executive Orders, the “unauthorized and indefinite suspension of the adjudication of Plaintiffs’ and the Proposed Classes’ applications for immigration benefits” is unconstitutional. SAC, ¶ 266. And our Sixth Claim (Equal Protection) explicitly alleges that the Government has “applied the First EO and will apply the Second EO with discriminatory animus and
1 Although Plaintiffs have not yet moved to certify the Muslim Ban Class, that does not mean discovery on these claims is improper.
137625648.1

Case 2:17-cv-00094-RAJ Document 101-1 Filed 11/20/17 Page 3 of 3
Edward S. White November 10, 2017 Page 3 discriminatory intent in violation of the equal protection component of the Fifth Amendment.” SAC, ¶ 272. Both claims are brought on behalf of all Plaintiffs and all Plaintiff Classes. Notably, the Court denied the Government’s motion to dismiss as to all those claims. Dkt. # 69 at 22. Plaintiffs are therefore entitled to discovery on the Executive Orders, and such discovery cannot be limited or restricted to documents that directly relate to or reference CARRP. As the Court accurately pointed out, “Plaintiffs seek documents that connect any kind of ‘extreme vetting’ program to [the] two Executive Orders.” Dkt. # 98 at 5. We therefore ask that, in advance of our call on Tuesday, you identify alternative custodial or non-custodial sources in response to our discovery requests. Very truly yours,
David A. Perez DAP:vlb
137625648.1

 
 Case 2:17-cv-00094-RAJ Document 102 Filed 11/28/17 Page 1 of 3

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT FOR THE

9

WESTERN DISTRICT OF WASHINGTON

10

AT SEATTLE

11

CASE NO. 2:17-cv-00094-RAJ

12 ABDIQAFAR WAGAFE, et al.,

13 Plaintiffs,

14

v.

15 DONALD TRUMP, et al., 16

17

Defendants.

ORDER

18

19

This matter comes before the Court on Defendants’ motion for reconsideration.

20 Dkt. # 99. Plaintiffs oppose the motion. Dkt. # 100. For the following reasons, the

21 Court DENIES the motion.

22

“Motions for reconsideration are disfavored.” LCR 7(h)(1). “The court will

23 ordinarily deny such motions in the absence of a showing of manifest error in the prior

24 ruling or a showing of new facts or legal authority which could not have been brought to

25 its attention earlier with reasonable diligence.” Id.

26

Defendants move the Court to reconsider Part III.A. of its prior discovery order,

27 entered at docket number 98, wherein the Court granted in part and denied in part

28 Plaintiffs’ motion to compel. Defendants argue that the Court reached its decision in

ORDER- 1 -

Case 2:17-cv-00094-RAJ Document 102 Filed 11/28/17 Page 2 of 3

1 error by (1) rejecting Mr. McCament’s declaration; (2) failing to find that Plaintiffs did

2 not meet their burden to show “necessity”; (3) failing to articulate why the balance of the
3 parties’ needs weighed in favor of disclosure; and (4) suggesting that the parties could
4
cure their issues with a detailed and thorough protective order. See generally Dkt. # 99. 5

6

First, the Court considered Mr. McCament’s declaration and found that it was

7 insufficient under the standard advanced by the Government. That the Government

8 disagrees with this assessment is not proper grounds for granting a motion for

9 reconsideration.

10

Second, Defendants’ Ninth Circuit authority cited for the proposition that

11 Plaintiffs failed to show “necessity” is based on the informants privilege, not the law

12 enforcement privilege.1 The premise behind the informants privilege differs from that of

13 the law enforcement privilege. For example, Defendants rely on In re Perez for “an

14 analogous request to disclose specific identities.” Dkt. # 99 at 5. However, In re Perez

15 aimed to protect “employees seeking to vindicate rights claimed to have been denied.” In

16 re Perez, 749 F.3d 849, 856 (9th Cir. 2014) (quotations and citations omitted). Here, the

17 identities that the Government seeks to withhold are those individuals who wish to
18 vindicate their own rights. The Government is not withholding those identities to protect
19 those individuals.
20

21

Third, the Court exercised its discretion in balancing the needs of Plaintiffs versus

22 those of Defendants and found that the balance weighed in favor of disclosure. The

23 Government argued that grave national security threats could materialize were the

24 Government forced to reveal the individuals subject to CARRP and “the types of records

25 consulted” because this could lead those individuals to “alter [their] behavior, conceal

26 evidence of wrongdoing, or attempt to influence witnesses or adjust [their] means of

27

28
1 Moreover, the persuasive authority that the Government cited dealt with asserting privilege over evidence collected through surveillance and recording; such situations are not analogous to the one at hand.

ORDER- 2 -

Case 2:17-cv-00094-RAJ Document 102 Filed 11/28/17 Page 3 of 3

1 communication or financial dealings to avoid detection of the very behavior that the law 2
enforcement and intelligence community have determined may be indicative of a national 3
security threat[.]” Dkt. 94-5 at ¶ 18. But Plaintiffs did not request more than the 4
identities of the class members; Plaintiffs did not request “the types of records consulted” 5 6 for each potential class member. The Government may not merely say those magic 7 words—“national security threat”—and automatically have its requests granted in this
8 forum. Plaintiffs articulated enough to tip the balance in their favor; they requested
9 limited information—only the names of potential class members—and explained that

10 those potential class members may already be aware of the Government’s additional

11 scrutiny considering the passage of time. Under any rational balancing act, such a limited

12 scope of request will not be outbalanced by the speculative scope of what the

13 Government offered in opposition.

14

Finally, the Government disagreed with the Court’s conclusion that a robust

15 protective order was sufficient to protect against improper disclosure of privileged
16 information. The Government cited cases that were not analogous to this matter and 17
therefore did not persuade the Court. Disagreement with the Court’s conclusions is not a 18
sufficient basis upon which to grant a motion for reconsideration. 19
For the foregoing reasons, the Court DENIES Defendants’ motion for 20 21 reconsideration. Dkt. # 99.

22

Dated this 28th day of November, 2017.

23

24

25 26

A

27

The Honorable Richard A. Jones

United States District Judge

28

ORDER- 3 -

 
 Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-1, Page 1 of 38 No. 18-____

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

In re DONALD J. TRUMP, President of the United States, et al., Petitioners.

DONALD J. TRUMP, President of the United States; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; KIRSTJEN NIELSEN, in her official capacity as Secretary of Homeland Security; L. FRANCIS CISSNA, in his official capacity as Director of U.S. Citizenship and Immigration Services; MATTHEW D. EMRICH, in his official capacity as Associate Director of the Fraud Detection and National Security Directorate of U.S. Citizenship and Immigration Services; and DANIEL RENAUD, in his official capacity as Associate Director of the Field
Operations Directorate of U.S. Citizenship and Immigration Services, Petitioners-Defendants,
v.
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, Respondent,
ABDIQAFAR WAGAFE, MEHDI OSTADHASSAN, HANIN OMAR BENGEZI, MUSHTAQ ABED JIHAD, and SAJEEL MANZOOR, on behalf of themselves and others similarly situated,
Real Parties in Interest-Plaintiffs.

PETITION FOR A WRIT OF MANDAMUS TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
AND EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 FOR STAY PENDING CONSIDERATION OF THIS PETITION

ANNETTE L. HAYS United States Attorney BRIAN C. KIPNIS Assistant United States Attorney United States Attorney’s Office Western District of Washington
ETHAN B. KANTER Acting Chief, National Security Unit DEREK C. JULIUS Assistant Director LINDSAY M. MURPHY Counsel, National Security Unit Appellate Section Office of Immigration Litigation Civil Division

CHAD A. READLER Acting Assistant Attorney General
SCOTT L. STEWART Deputy Assistant Attorney General
AUGUST E. FLENTJE Special Counsel, Civil Division U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 514-3309

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-1, Page 2 of 38
CIRCUIT RULE 27-3 CERTIFICATE
Counsel for Defendants:
Annette L. Hayes (Annette.Hayes@usdoj.gov) Brian C. Kipnis (Brian.Kipnis@usdoj.gov) U.S. Attorney’s Office for the Western District of Washington 700 Stewart St., Suite 5220 Seattle, WA 98101 Telephone: (206) 553-7970 Fax: (206) 553-0882
Chad A. Readler (Chad.Readler@usdoj.gov) Scott L. Stewart (Scott.G.Stewart@usdoj.gov) August E. Flentje (August.Flentje@usdoj.gov) Ethan B. Kanter (Ethan.Kanter@usdoj.gov) Derek C. Julius (Derek.Julius2@usdoj.gov) Lindsay M. Murphy (Lindsay.M.Murphy@usdoj.gov) Timothy M. Belsan (Timothy.M.Belsan@usdoj.gov) Edward S. White (Edward.S.White@usdoj.gov) Aaron R. Petty (Aaron.R.Petty@usdoj.gov) Joseph F. Carilli, Jr. (Joseph.Carilli2@usdoj.gov) Christopher W. Hollis (Christopher.Hollis@usdoj.gov) U.S. Department of Justice, Civil Division 950 Pennsylvania Ave. NW Washington, D.C. 20530 Telephone: (202) 514-2000 Fax: (202) 305-7000
Counsel for Plaintiffs:
Matt Adams (matt@nwirp.org) Sameer Ahmed (sahmed@aclusocal.org) Glenda M. Aldana Madrid (glenda@nwirp.org) Emily Chiang (Echiang@aclu-wa.org) Lee Gelernt (lgelernt@aclu.org) Nicholas P. Gellert (NGellert@perkinscoie.com) Hugh Handeyside (hhandeyside@aclu.org) Laura K. Hennessey (LHennessey@perkinscoie.com) Kristin Macleod-Ball (kmacleod-ball@immcouncil.org) Jennifer Pasquarella (jpasquarella@aclusocal.org)

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-1, Page 3 of 38
David A. Perez (DPerez@perkinscoie.com) Trina Realmuto (trealmuto@immcouncil.org) Harry H. Schneider, Jr., (HSchneider@perkinscoie.com) Hina Shamsi (hshamsi@aclu.org) Stacy Tolchin (Stacy@tolchinimmigration.com)
2

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EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 Defendants request urgent relief on this matter because the district court has ordered the government to produce, by Wednesday April 25, 2018, a list of class members, defined to include applicants for permanent residence and naturalization where United States Citizenship and Immigration Services (USCIS) at one point determined there is an articulable link between the applicant and a national security ground for inadmissibility or removal. That list will necessarily reveal individuals who are subject to criminal or national security investigations, and in doing so, tend to reveal the existence of those investigations and allow class members to evade those investigations. This information is protected by the law-enforcement privilege, as explained in multiple declarations filed by USCIS, ICE, and the FBI. We have sought a stay from the district court pending consideration of this mandamus petition, and the district court has indicated that it will ask on that request on April 24, 2018. Doc. 159. If the district court does not grant a stay, immediate relief is needed. Service will be accomplished via email and through the district court’s CM/ECF system. The district court will be served a copy of the petition through the Clerk of Court at William_McCool@wawd.uscourts.gov.
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INTRODUCTION AND SUMMARY Since 2008, the federal government has administered the Controlled Application and Resolution Program (CARRP) to help ensure a careful assessment of applicants for permanent residency and naturalization who have possible terrorism links or are possible agents of foreign powers. A federal district court has issued discovery orders directing the government to produce identity information for all individuals who have been flagged for this sensitive screening. These orders, issued over the government’s assertion of the law-enforcement privilege , threaten grave harm to the national security of the United States. The government accordingly requests that this Court exercise its authority under 28 U.S.C. § 1651 and Rule 21 of the Federal Rules of Appellate Procedure to issue a writ of mandamus vacating the district court’s orders compelling production of this sensitive and privileged law enforcement information. Because the district court required production by this Wednesday, April 25, 2018, the government respectfully asks this Court to stay the orders while the Court considers this petition. Plaintiffs represent classes of applicants for naturalization and lawful permanent residency. They alleged in 2017 that CARRP, a program that has existed since 2008, violates statutory and constitutional provisions by discriminating on the basis of religion and national origin. The government produced demographic information about thousands of class members, including their nationality, place of birth, and, when available, religion. But the government withheld the names and other personally identifying information about class members under the law-enforcement privilege. As

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explained in detailed declarations from officials at the Department of Homeland Security (DHS) and the Federal Bureau of Investigation (FBI), disclosing the names of class members would reveal that the government identified an articulable link to a national-security related ground of inadmissibility or removability for a particular individual, which could lead that individual to change behavior and disrupt government investigations. This is precisely what the law-enforcement privilege is designed to protect. See In re City of New York, 607 F.3d 923, 944 (2d Cir. 2010); In re DHS, 459 F.3d 565, 571 (5th Cir. 2006); cf. In re Perez, 749 F.3d 849, 855-856 (9th Cir. 2014).
The district court rejected the government’s position. The court stated that any harm to law enforcement was speculative and that plaintiffs’ need for the identifying information would outweigh the government’s interest regardless. But the purpose of the law-enforcement privilege is to prevent harm before it occurs, so it always entails a measure of prediction. The district court never explained why the detailed declarations of seven officials across multiple affected agencies did not establish the government’s need to protect this highly sensitive information. Nor did the court offer a single reason why plaintiffs need the names of class members to make out their claims of religious and national-origin discrimination. Most recently, the court rejected a proposal by the government to provide the names of class members to plaintiffs’ counsel on a restrictive, “attorneys’ eyes only” basis. The court instead ordered the government to explain the basis for its national-security concerns about individual class members— information that plaintiffs did not seek in discovery and that would compromise
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government investigations even more severely than turning over the privileged list of names.
The district court’s orders rest on “clear and indisputable” legal errors. Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 381 (2004) (citation omitted). And the remaining mandamus factors are satisfied. The government has no other means to appeal the district court’s production order, and once the information is disclosed, the harm cannot be remedied on appeal. See Perez, 749 F.3d at 855 (this Court granting mandamus to prevent disclosure of privileged information); Hernandez v. Tanninen, 604 F.3d 1095, 1101 (9th Cir. 2010) (same). Resolution of this issue raises new and important issues for this Court. See City of New York, 607 F.3d at 940 (granting mandamus to resolve new and important questions about law-enforcement privilege). And even if that final factor were not met, mandamus would still be warranted to correct the district court’s serious errors in requiring the government to disclose privileged and highly sensitive information. See Hernandez, 604 F.3d at 1102.
STATEMENT 1. The Immigration and Nationality Act (INA) charges the Secretary of Homeland Security “with the administration and enforcement” of immigration laws. 8 U.S.C. § 1103(a)(1). Among other immigration benefits, aliens may seek to adjust their status to that of lawful permanent resident (LPR). 8 U.S.C. § 1255(a). LPRs may apply for naturalization as U.S. citizens. 8 U.S.C. § 1427 et seq. With certain exceptions not
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relevant here, adjudication of applications for permanent residence and naturalization has been delegated to USCIS, a component of the DHS.
The criteria for adjudicating adjustment-of-status and naturalization applications are largely set by statute. Applicants for adjustment to LPR status must, inter alia, be admissible to the United States. 8 U.S.C. § 1255(a). Criteria for admissibility are enumerated in Section 1182, which includes a number of security-related grounds of inadmissibility. 8 U.S.C. § 1182(a)(3). Similarly, applicants for naturalization must establish, inter alia, good moral character and attachment to the principles of the Constitution. 8 U.S.C. § 1427(a)(3). An applicant who is removable may not be eligibile for naturalization, 8 U.S.C. § 1429, and the INA provides for a number of securityrelated ground of removability, 8 U.S.C. § 1227(a)(4).
When USCIS receives an application for adjustment to LPR status or for naturalization, it must review the applicant’s background to determine whether the applicant satisfies those statutory criteria. See 8 U.S.C. § 1446(a), (b); App. 367-68 ¶¶ 11-13; App. 445-46 ¶ 29. As part of that review, USCIS screens applicants against various government databases, including several databases maintained by the FBI and databases maintained by other agencies. App. 369-70 ¶ 17; App. 431 ¶¶ 9-10. That screening process sometimes reveals concerns related to national security. As noted above, certain national security concerns constitute grounds for inadmissibility or removability, see 8 U.S.C. §§ 1182(a)(3), 1227(a)(4), and thus may lead to denial of an application for LPR status or naturalization. National security concerns also
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independently warrant investigation to keep the nation safe from terrorism, hostile foreign influence, and other harms.
In 2008, USCIS established CARRP to ensure a consistent and agency-wide approach to identify, process, and adjudicate applicants who have an articulable link to a national-security related ground of inadmissibility or removability. App. 368 ¶ 14; App. 430 ¶ 6. Applicants subject to CARRP receive more detailed investigation and vetting to address the link to national security concerns. See App. 432 ¶ 15. In some cases, this process reveals that the applicant is no longer a national security concern, and review of the individual’s application for immigration benefits then proceeds outside CARRP. Ibid. In other cases, the national security concerns identified are confirmed. In those cases, the application for immigration benefits is denied, and further law enforcement or national security actions may be required. See App. 433 ¶ 18. Given the sensitivity of the underlying national security information—which is often derived from confidential sources and methods—and the risk that an individual who learns that he has been identified as a national security concern may change his behavior or otherwise disrupt investigations and endanger public safety, USCIS has a strict policy of not disclosing whether particular immigration-benefit applicants are subject to CARRP. See App. 369 ¶ 16; App. 433-34 ¶ 20; App. 450-52 ¶¶ 4-6.
2. In January 2017—almost a decade after the creation of CARRP—plaintiffs filed a putative class action to invalidate CARRP. Plaintiffs argued, among other things,
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that CARRP discriminates on the basis of religion and national origin. App. 1-55.1 Plaintiffs moved to certify two classes, App. 56-84, and the government moved to dismiss the complaint in its entirety, in part for lack of jurisdiction and in part for failure to state a claim, App. 85-120. On June 21, 2017, the district court denied the government’s motion to dismiss, and certified nationwide classes under Federal Rule of Civil Procedure 23(b)(2) consisting of “all persons currently and in the future (1) who have or will have an application for [naturalization or adjustment of status] pending before USCIS, (2) that is subject to CARRP … and (3) that has not or will not be adjudicated by USCIS within six months of having been filed.” App. 41-42; 121-51.
The case is now in the fact discovery stage of litigation. As part of the discovery process, the parties entered a stipulated protective order that limited disclosure of certain confidential information. App. 199-215. Among their discovery requests, plaintiffs sought:
Documents sufficient to identify members of [each class], including, but not limited to, any list that might exist identifying those who are or have been subject to CARRP, and, where available, the following identifying information for each class member: name, A-number, age, sex, country of origin, country of citizenship, religion, race, ethnicity, date the naturalization application was filed, and current status of the naturalization application. App. 180.
1 Plaintiffs also sought to challenge any program that may replace CARRP arising from Executive Orders 13769 and 13780. The dispute here focuses only on CARRP.
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The government objected to this request, explaining that the class members’ identities were protected by the law-enforcement privilege and were not relevant to the claims or defenses in a facial or class-based challenge to CARRP. The government, however, agreed to produce demographic information relevant to plaintiffs’ claims, including nationality and, when available, the class members’ religion and nationality, to the extent such information was readily ascertainable. But consistent with the practice of many agencies involved in national security and law enforcement investigations, the government refused to admit or deny whether any particular individual’s application was subject to CARRP. App. 263-66.
Plaintiffs moved to compel disclosure of the identities of the class members. Plaintiffs argued that the government failed to meet its burden to substantiate its assertion of the law-enforcement privilege; that the privilege was not absolute; and that each class member was a potential source of information relevant to the litigation. App. 273-91. The government responded by formally invoking the law-enforcement privilege in a declaration by James W. McCament, the then-Acting Director of USCIS, which explained in detail why disclosing the identifies of individuals subject to CARRP could impede ongoing and future investigations and endanger national security. App. 364-71. The government acknowledged that the law-enforcement privilege is a qualified privilege that can be pierced upon a showing of “necessity,” App. 299, but the government argued that plaintiffs had failed to show any need to obtain the names and other personally identifying information of the class members, especially given that the
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government had provided demographic information about the class members— including their nationality and place of birth and, when available, religion—that is directly pertinent to plaintiffs’ claims. App. 299-300.
On October 19, 2017, the district court issued an order compelling the government to disclose the identities of the class members. The court rejected the government’s assertion of the law-enforcement privilege, stating that the dangers that Acting Director McCament explained would follow from disclosing the identities of the class members were “mere speculation and a hypothetical result.” App. 397-98. The district court went on to state that, even if the law-enforcement privilege applied, the court would find that “the need for Plaintiffs to obtain this information” would outweigh “the Government’s reasons for withholding” it. App. 398. The court also “note[d] that there is a protective order in place” and suggested that class counsel could supplement the protective order to “assuage any remaining concerns on the part of the Government.” Ibid. The court denied the government’s motion for reconsideration. App. 414-16.
3. The government subsequently took up the district court’s suggestion to propose supplement to the protective order with provisions better suited to preventing disclosure of a list that contained the identities of thousands of individuals who presented a national security concern. The supplement provided that the identities of class members could not be shared beyond class counsel or experts retained by class counsel, and it made plain that class counsel could not contact individuals based on the
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information revealed by the list or confirm to an individual whether he or she is on the list. App. 417-27; see also App. 282. The government submitted declarations from USCIS, Immigration and Customs Enforcement (ICE), and FBI explaining the need for the supplemental protective order. App. 429-52.
Plaintiffs opposed the government’s proposal, stating that their “two main reasons” for seeking the list were “to communicate with class members who may be witnesses and sources of information” and “to respond to inquiries from potential class members and inform them if their interests are represented in this case” and urged that the “Court has already approved” this use of the list. App. 466-69
On April 11, 2018 the district court declined to supplement the protective order. Notwithstanding the multiple declarations submitted by agency officials explaining that disclosure of the class list would compromise government investigations, the court stated that “there is no evidence that any individuals on the class list are or were subjects of investigations or are, generally, ‘bad actors.’” App. 482. The court nevertheless stated that “potential national security risks may exist as to specific individuals” on the class list, and ruled that the government could limit the disclosure of the identities of such individuals to plaintiffs’ counsel, provided that the government also produced “case-by-case determinations” detailing the national security concerns that justified this special restriction. App. 483. The court ordered production of the class list, which includes some 4,800 class members, within 14 days—by April 25, 2018. Ibid.
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4. After obtaining authorization from the Solicitor General to file this mandamus petition, the government on April 20, 2018, asked the district court to stay its production order pending resolution of this petition. The district court has not yet acted on the government’s motion, but indicated that it would rule on April 24, 2018.
ARGUMENT I. The Court Should Exercise Its Mandamus Authority to Correct an
Order That Clearly Errs in Denying Law-Enforcement Privilege Protection to the Identities of Individuals Subject to Law Enforcement Investigations Mandamus is appropriate to review discovery orders “when particularly important interests are at stake.” Perry v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010) (citations omitted). In particular, this Court has “exercised [its] mandamus jurisdiction ‘to define the scope of an important privilege.’ ” Perez, 749 F.3d at 854 (quoting Perry, 591 F.3d at 1157); see Hernandez, 604 F.3d at 1102 (attorney-client privilege); Admiral Ins. Co. v. U.S. Dist. Court, 881 F.2d 1486, 1490 (9th Cir. 1989) (same); see also Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 112 (2009) (mandamus is available to review “more consequential” privilege rulings); City of New York, 607 F.3d 923, 928 (2d Cir. 2010) (granting mandamus to protect law-enforcement privilege). This Court has described five considerations for the grant of mandamus. See Perez, 749 F.3d at 854. First, the “party seeking the writ has no other adequate means, such as direct appeal, to attain the relief”; second, “the petitioner will be damaged or prejudiced in a way not correctible on appeal”; third, the district court is “clearly
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erroneous as a matter of law”; fourth, “the district court’s order “is an oft-repeated error, or manifests a persistent disregard of the federal rules”; and fifth, the order “raises new and important problems.” Id. at 854-55. These factors “serve as guidelines, a point of departure for [the] analysis of the propriety of mandamus relief.” Hernandez, 604 F.3d at 1099. Importantly, “[n]ot every factor need be present at once” or even “point in the same direction.” Id. at 1099 & 1102 (granting mandamus even though only three of the factors were met); see Douglas v. U.S. Dist. Court for Cent. Dist. of Cal., 495 F.3d 1062, 1069 (9th Cir. 2007) (granting mandamus even though the fourth factor was not met). Indeed, the fourth and fifth factors will rarely both be present simultaneously. See Perez, 749 F.3d at 854.
A. The Government Has No Other Adequate Means to Challenge the District Court’s Order
The first factor is met because the government has no “other adequate means, such as a direct appeal,” to obtain relief from the district court’s order. Perez, 749 F.3d at 854. “A discovery order … is interlocutory and non-appealable under 28 U.S.C. §§ 1291, 1292(a)(1) and 1292(b).” Perry, 591 F.3d at 1157 (internal quotation marks and citation omitted). Likewise, a privilege ruling is not appealable under the collateral order doctrine. See Mohawk, 558 U.S. at 106-13. This Court has thus consistently concluded that discovery orders rejecting invocation of a privilege satisfy the first mandamus factor. See Perez, 749 F.3d at 855; Hernandez, 604 F.3d at 1101; Admiral, 881 F.2d at 1491; see also In re Kellogg Brown & Root, Inc., 756 F.3d 754, 760-61 (D.C. Cir. 2014); City
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of New York, 607 F.3d at 933-935. And this Court has indicated that, where there is uncertainty as to whether a claim of privilege is appealable under the collateral order doctrine, it prefers to exercise its mandamus jurisdiction. See Perry, 591 F.3d at 1156. The first factor is therefore satisfied.2
B. The Damage Caused by Compelled Disclosure Cannot Be Corrected on Appeal
The second factor is satisfied because the government and the public “will be damaged … in a way not correctable on appeal” if the privileged information is disclosed. Perez, 749 F.3d at 854; see Nken v. Holder, 556 U.S. 418, 435 (2009) (noting the government represents the public interest). If this Court does not vacate the district court’s order through mandamus, the government will have to produce highly sensitive law enforcement and national security information. A post-judgment appeal would not provide an effective remedy because, once the information is produced, it can no longer be held in confidence by the government. See Perry, 591 F.3d at 1157-58. As this Court has explained, “[s]ecrecy is a one-way street: Once information is published, it cannot be made secret again.” Copley Press, 518 F.3d at 1025; see, e.g., In re Sims, 534 F.3d 117, 129 (2d Cir. 2008) (“[A] remedy after final judgment cannot unsay the confidential information that has been revealed.”).
2 Should the Court conclude this petition would more properly be raised as an appeal under the collateral-order doctrine, the Court should direct the Clerk to modify the docket accordingly. See In re Copley Press, 518 F.3d 1022 (9th Cir. 2008); see also Miller v. Gammie, 335 F.3d 889, 895 (9th Cir. 2003) (en banc).
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This Court has consistently held that the second mandamus factor is satisfied where the alleged injury is disclosure of protected information. See Perez, 749 F.3d at 855 (“Once the identities of the 250 anonymous employees are disclosed, they cannot be protected by successful appeal or otherwise”); Perry, 591 F.3d at 1157-58 (“If Proponents prevail at trial, vindication of their rights will be not merely delayed but entirely precluded.”); Hernandez, 604 F.3d at 110 (finding that the second factor is met because an appeal after disclosure is inadequate if it is erroneously required to disclose privileged materials); United States v. Fei Ye, 436 F.3d 1117, 1123 (9th Cir. 2006) (the government is prejudiced because compliance with discovery order would moot an appeal of that order). The second factor is satisfied.
C. The District Court Committed Clear Error in Ordering Disclosure of the Identities of Class Members
The third factor is satisfied because the district court’s order compelling disclosure of the identifying information of the class members was “clearly erroneous as a matter of law.” Perez, 749 F.3d at 855.
1. The District Court Clearly Erred In Rejecting the Government’s Assertion of Law-Enforcement Privilege
The Supreme Court recently explained that requiring the government to provide information about individuals it targeted for surveillance “would allow a terrorist (or his attorney) to determine whether he is currently under U.S. surveillance simply by filing a lawsuit challenging the Government’s surveillance program.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 412 n.4 (2013). That is precisely what the district court has
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invited by directing the government to produce the names of individuals whose benefit
applications have been subject to CARRP.
The identifying information of individuals being investigated for national security
concerns falls squarely within the law-enforcement privilege, which protects, inter alia,
“information pertaining to law enforcement techniques and procedures, information
that would undermine the confidentiality of sources,” and information that would
“otherwise ... interfere with an investigation.” City of New York, 607 F.3d at 944; see
Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (describing “official
information” privilege”); cf. 5 U.S.C. § 552(b)(7)(E) (Freedom of Information Act
exemption protecting “records or information compiled for law enforcement
purposes” under multiple enumerated circumstances).3 The privilege is “rooted in
common sense as well as common law,” particularly in the principle that “law
3 This Court recently stated in a nonprecedential opinion that it had not formally recognized a “law enforcement privilege.” Shah v. Dep’t of Justice, 714 Fed. Appx. 657, 659 n.1 (9th Cir. 2017). District courts within this circuit have, however, understood this Court’s decisions discussing the “official information” privilege, see Sanchez, 936 F.3d at 1033; Kerr v. U.S. Dist. Court for N. Dist. of California, 511 F.2d 192, 198 (9th Cir. 1975), to functionally encompass the law-enforcement privilege, see, e.g., United States v. McGraw-Hill Cos. Inc., No. 13-cv-779, 2014 WL 1647385, *6 (C.D. Cal. Apr. 15, 2014); Brooks v. Cty. of San Joaquin, 275 F.R.D. 528, 532–33 (E.D. Cal. 2011), and have generally analyzed claims of law-enforcement privilege without dispute that the privilege exists, see, e.g., Shah v. Dep’t of Justice, 89 F. Supp. 3d 1074, 1080 (D. Nev. 2015). Neither plaintiffs nor the district court here has suggested that the law-enforcement privilege does not exist. To the extent the existence of the privilege were an open question within this circuit, however, that issue would “raise[] new and important problems, or legal issues of first impression” strongly supporting mandamus. Perez, 749 F.3d at 855.
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enforcement operations cannot be effective if conducted in full public view” and that the government and the public accordingly have an interest in “minimiz[ing] disclosure of documents who revelation might impair the necessary functioning” of law enforcement agencies. Black v. Sheraton Corp. of Am., 564 F.2d 531, 542 (D.C. Cir. 1977); see Commonwealth of Puerto Rico v. United States, 490 F.3d 50, 62-63 (1st Cir. 2007). That principle is “even more compelling” in “today’s times,” when “the compelled production of government documents could impact highly sensitive matters relating to national security.” In re DHS, 459 F.3d 565, 569 (5th Cir. 2006); cf. Milner v. Dep’t of Navy, 562 U.S. 562, 582 (2011) (Alito, J., concurring) (disclosure of “security information” will generally satisfy FOIA law enforcement exemption). The government thus may invoke the privilege “to prevent disclosure of information that might impede important government functions such as conducting criminal investigations, securing the borders, or protecting the public from international threats.” In re DHS, 459 F.3d at 571. The privilege, moreover, applies to information contained in both criminal and civil investigatory files. See ibid.; Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1136, 1341 (D.C. Cir. 1984); McGraw-Hill, 2014 WL 1647385, *6.
The law-enforcement privilege is qualified, rather than absolute. See City of New York, 607 F.3d at 945. In assessing a claim of law-enforcement privilege, the court must balance the government’s “interest in nondisclosure” against “the need of a particular litigant for access to the privileged information.” Ibid. (citation and brackets omitted).
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There is “a pretty strong presumption against lifting the privilege.” Ibid. (quoting Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1125 (7th Cir. 1997)). At a minimum, the “party seeking disclosure” must show a “compelling need” for the information sought in making its case. Ibid. And even that showing “does not automatically entitle a litigant to privileged information. Rather, disclosure is required only if that compelling need outweighs the public interest in nondisclosure.” Ibid.
The district court’s conclusion that the government must disclose the identifying information of some 4,800 class members subject to national-security review despite the government’s assertion of law-enforcement privilege is clearly erroneous in several respects.
a. First, the district court clearly erred in rejecting the government’s assertion of the privilege as speculative and hypothetical. Every assertion of law-enforcement privilege inherently involves a prediction of future risks; the purpose of the privilege is to avoid “future” harm. City of New York, 607 F.3d at 944; cf. Bowen v. FDA, 925 F.2d 1225, 1228-1229 (9th Cir. 1991) (under FOIA, need not disclose investigative techniques because disclosure “would present a serious threat to future law enforcement”). If every assertion of the privilege that relied on the risk of future harm were rejected as “mere speculation,” the privilege could never be invoked. See Black, 564 F.2d at 541 (explaining that the privilege is “based primarily on the harm to lawenforcement efforts which might arise from public disclosure of [government] investigatory files”) (emphasis and alteration added); cf. Ctr. for Nat’l Sec. Studies v. DOJ,
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331 F.3d 918, 928 (D.C. Cir. 2003) (Exemption 7(A) regarding harm to enforcement
proceedings necessarily “requires a predictive judgment of the harm that will result from
disclosure of information” which should include “long-recognized deference to the
executive” in the national security context).
Thus, as courts have long understood, the party invoking the privilege need not
establish that any particular future event will occur; it is enough to show, through
competent evidence, that disclosure would risk compromising, inter alia, “law
enforcement techniques and procedures, information that would undermine the
confidentiality of sources,” or information that would “otherwise ... interfere with an
investigation.” City of New York, 607 F.3d at 944. The government met that standard
here. The highest official at USCIS formally claimed the privilege in a sworn statement
detailing how disclosure of the identities of individuals with an articulable link to
national-security grounds of inadmissibility would threaten law-enforcement interests
and public safety. App. 367-74. The Acting Director’s declaration stated:
Public confirmation that a particular individual is subject to CARRP would necessarily alert an individual that he/she may be the subject of an investigation, or at least that the government possess information that creates an articulable link to a national security ground of inadmissibility. By alerting an individual that he or she is subject to an investigation and the types of records consulted, that individual might learn the focus of these investigations. The individual could then, for example, alter his or her behavior, conceal evidence of wrongdoing, or attempt to influence witnesses or adjust his or her means of communication or financial dealings to avoid detection of the very behavior that the law-enforcement and intelligence communities have determined may be indicative of a national security threat, and which form the core of pending investigative efforts.
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App. 370, ¶ 18. That declaration expressly explains how disclosure of identifying information would disrupt “law enforcement techniques and procedures” and “otherwise ... interfere with an investigation.” City of New York, 607 F.3d at 944. Moreover, the declaration is neither vague—especially given that it concerns the same identifying information for approximately 4,800 individuals—nor conclusory. The district court’s holding that Acting Director McCament’s declaration failed to meet the requisite standard is clearly erroneous.
The additional declarations submitted further underscore both the harm that will result from disclosure and the clarity of the district court’s error. Section Chief Eisenreich described that the FBI provides name check results to USCIS, App. 440 ¶ 7, and the public release of name check results “could result in subjects or targets of FBI investigations taking countermeasures or other actions to thwart law enforcement, thus potentially compromising investigations, confidential sources, or investigative techniques” App. 446-47, ¶ 31. Assistant Director King described that ICE, Homeland Security Investigations (HSI) shares “derogatory and investigative information” with USCIS, App. 450, ¶ 3, and the release of such information “would effectively reveal sensitive law enforcement information, in addition to revealing the general nature of HSI law enforcement techniques and procedures, and would impact national security,” App. 450-51, ¶ 4. And “[r]evealing such sensitive information could undermine the efforts of HSI to carry out its mission of identifying and eliminating vulnerabilities that
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post a threat to our nation’s borders, as well as ensuring economic, transportation and infrastructure security, and national security.” Id.
Despite that detailed information, the district court inexplicably stated that “there is no evidence that any individuals on the class list are or were subjects of investigations or are, generally, ‘bad actors.’” App. 482. But an individual only becomes subject to CARRP if the “individual . . . has been determined to have an articulable link to” a national security or terrorist ground of inadmissibility or removability – including showing the person may be an agent of a foreign power. App. 368, ¶ 15. This often is because of ongoing national security and criminal investigations. App. 445-46, ¶¶ 29, 31; App. 450, ¶ 3. Because of that link, USCIS investigates whether the individual is inadmissible or removable on national security grounds. Id. Thus, the government showed evidence the list is comprised of individuals who posed national security concerns, including bad actors and individuals with national security and criminal investigations.
b. As noted above, the law-enforcement privilege is qualified, not absolute. The court must therefore “balance the public interest in nondisclosure against the need of the particular litigant for access to the privileged information.” Friedman, 738 F.2d at 1341; see City of New York, 607 F.3d at 948. Generally, a “compelling need is required” to obtain protected information. Id. at 945.
Here, the district court acknowledged the need to conduct balancing, App. 398, but never actually did so. Rather, the court simply stated in its initial order that “the
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balance weighs in favor of disclosure,” App. 398, and then stated in its reconsideration order that plaintiffs had “articulated enough to tip the balance in their favor; they requested limited information—only the names of potential class members—and explained that those potential class members may already be aware of the government’s additional scrutiny considering the passage of time,” App. 416. Critically, however, the court never identified a single reason that plaintiffs had any need—let alone “compelling need”—for the names of the class members to make out their claims of religious and national-origin discrimination. City of New York, 607 F.3d at 945. Nor did the court provide any reasoning about how plaintiffs’ unspecified need could outweigh the significant concerns expressed by the government. This failure to conduct any meaningful balancing alone renders the district court’s decision clearly erroneous. See In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988) (noting that the district court’s “order in this case does not show engagement in this essential balancing process” and that “the failure to balance at all requires remand”); accord Blue Cross & Blue Shield of Ala. v. Unity Outpatient Surgery Ctr., 490 F.3d 718, 724 (9th Cir. 2007) (“We cannot review the district court’s exercise of its discretion in weighing these factors unless we know that it has done so and why it reached its result”).
In any event, plaintiffs have no need—much less compelling need—for personally identifying information about the class members, and thus their interest in obtaining that information cannot outweigh the government’s strong interest in protecting its investigations. By providing demographic information about class
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members’ citizenship and birthplace and, when available, religion, the government is providing the information plaintiffs need to pursue their claims of discrimination on the basis of religion and national origin. The district court never credited either of the plaintiffs’ expressed needs for information personally identifying the class members— “to communicate with class members who may be witnesses and sources of information” and “to respond to inquiries from potential class members and inform them if their interests are represented in this case.” App. 466-67. Indeed, to the extent the district court addressed those potential uses of the information, the court indicated that they were improper. See App. 482 (suggesting that plaintiffs could be sanctioned if they “purposely and improperly disclose information,” namely the class member identities, that is “subject to the protective order”).
This Court’s decision in Perez is instructive on this point. There, this Court granted mandamus to vacate a district court order that compelled disclosure of the identities of employees who had reported workplace violations to the Department of Labor. As in this case, the government disclosed information necessary for the opposing party to present its legal case, including “the hours the employees worked.” 749 F.3d at 859. The information “not disclosed” by the Secretary “consist[ed] of only the identifying information.” Ibid. The Court noted that “this information may meet the general standard for relevance under Federal Rule of Evidence 401,” but the Court was “not convinced that its probative value is so great that it is ‘essential’ to” the opposing party’s legal argument.” Ibid. The Court then concluded that the government
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could not be compelled “to reveal the identities of the informants on such a weak showing.” Ibid.
That same reasoning dictates the result here. As in Perez, the information the government intends to withhold consists only of identifying information. And as in Perez, plaintiffs have not, and cannot, establish that this information is “essential” to their legal argument. 749 F.3d at 859. If anything, plaintiffs’ asserted need for the information here is even less compelling than the “weak showing” made by the litigants in Perez. Ibid. Moreover, this case involves considerations of national security, public safety, and the integrity of ongoing investigations not present in Perez. Accordingly, this case presents a greater justification for withholding identities than the Supreme Court and this Court have already approved in Clapper and Perez.
The district court’s only response to Perez was to distinguish it as an application of the informants’ privilege rather than the law-enforcement privilege. App. 398. In the district court’s view, the “premise behind the informants privilege differs from that of the law enforcement privilege” because the informants’ privilege protects “individuals who wish to vindicate their own rights.” Ibid. That distinction fails. Although protecting informants who seek to vindicate their own rights may be one purpose of the informants’ privilege, it is not the only one—or even the primary one. In the seminal decision describing the informants’ privilege, the Supreme Court explained that “[t]he purpose of the privilege is the furtherance and protection of the
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public interest in effective law enforcement.” Roviaro v. United States, 353 U.S. 53, 59 (1957). That is precisely the interest the government invokes here.
Contrary to the district court’s suggestion, there is no basis for applying different forms of analysis to these closely related privileges. See, e.g., Fortunato v. United States, No. 08-cv-0497, 2008 WL 11339127, *3 (C.D. Cal. June 23, 2008) (concluding that there is no analytical distinction between informer’s privilege and law-enforcement privilege); cf. 5 U.S.C. § 552(b)(7) (protecting both information that could “interfere with enforcement proceedings” or “disclose the identity of a confidential source”). If anything, the scope of the law-enforcement privilege is broader, because protecting the identities of informants is only one of several purposes of the law-enforcement privilege. See City of New York, 607 F.3d at 941 n.18 (“As we and many of our sister circuits have noted, however, the law enforcement privilege is not limited to protecting the identities of informers.”); In re DHS, 459 F.3d at 569 (“[C]ase law has acknowledged the existence of a law enforcement privilege beyond that allowed for identities of confidential informants.”). As in Perez, plaintiffs’ failure to show any need for the privileged identity information means that the district court clearly erred in compelling the government to produce it.
c. Finally, the district court erred in suggesting that the existence of a protective order justified compelling disclosure. A protective order is no guarantee against disclosure; indeed, as noted above, plaintiffs’ counsel have expressly stated that they plan to share the identifying information with class members, thereby informing them
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that the government had linked them to national security concerns—precisely the harm the government invoked the law-enforcement privilege to avoid. Courts have upheld assertions of the law-enforcement privilege under similar circumstances, even with a protective order in place. See City of New York, 607 F.3d at 935-938 (explaining in detail why a protective order or similar arrangement would not suffice); cf. Perez, 749 F.3d at 856 (vacating order to compel identifying information despite opposing party’s “promise not to retaliate”); Islamic Shura Council of S. California v. FBI, 635 F.3d 1160, 1168 (9th Cir. 2011) (rejecting FOIA plaintiffs’ request to view protected information even under “stringent protective order”); Arieff v. United States Dep’t of Navy, 712 F.2d 1462, 1470 (D.C. Cir. 1983) (Scalia, J., joined by R.B. Ginsburg, J.) (similar).
For similar reasons, the method of disclosure contemplated by the district court’s April 11 order does not adequately protect the privileged information. The district court rejected the government’s proposal to disclose personally identifying information only to class counsel under additional restrictions on dissemination. App. 482. The court instead allowed the government to make an “attorneys’ eyes only” production only “as to specific individuals” presenting “potential national security risks” and only if the government also produced to plaintiffs’ counsel “sufficient detail and specificity” for those determinations. Ibid. As explained in the declarations accompanying the government’s district court stay motion, requiring the government to disclose specific reasons underlying its national security determinations would force law enforcement agencies to divulge highly sensitive information that plaintiffs did not even seek during
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the discovery process and that would create harms beyond those inflicted by the court’s earlier production order. First, providing case-by-case, individualized information to Plaintiffs’ counsel about the national security risks of specific individuals arguably provides far less protection to national security interests than providing the names of the entire class list with no additional information. App. 502-05, ¶¶ 14-19; 509-12, ¶¶ 8-18. Second, such evidence, which may involve classified information, are subject to the law-enforcement privilege, and, perhaps the state secrets privileges. Third, the government has previously filed multiple declarations from USCIS, FBI, ICE, and TSA explaining the law-enforcement privilege covers information describing the reasons why someone is subject to national security scrutiny. Finally, if plaintiffs reach out to some class members but not others, this could itself tend to reveal information about who is and is not the subject of the most extensive governmental concern.
2. The District Court Clearly Erred In Failing to Analyze the Relevance of Individual Class Members as Potential Sources of Information in a Rule 23(b)(2) Class Action
Separate from its error on the privilege issue, the district court also erred in concluding that the identities of the class members were relevant in a Rule 23(b)(2) class action. Indeed, the district court did not consider this issue at all in its balancing. This error independently warrants mandamus and vacatur.
To certify a class under Rule 23(b)(2), plaintiffs alleged that the government acted on grounds equally applicable to the class as a whole. App. 78 (noting “the conduct at issue can be enjoined or declared unlawful only as to all of the class members or as to
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none of them”) (internal citation omitted). But disclosing personally identifying information about class members, such as their names, casts no light on how the class as a whole was allegedly harmed. As noted above, plaintiffs’ attorneys have stated that they would like to tell plaintiffs they are subject to CARRP and gather individualized information with respect to those plaintiffs, such as individual “delays, unwarranted denials, or other impacts of CARRP.” App. 282. But these interests have no relevance to the resolution of plaintiffs’ class-wide claims under Rule 23(b)(2), which does not require individual notice to class members, see Fed. R. Civ. P. 23(c)(2)(A), and which provides for litigation “on common facts” and resolution in “a single injunction or declaratory judgment” that provides “relief to each member of the class,” Jennings v. Rodriguez, 138 S.Ct. 830, 852 (2018). Indeed, if information about individual delays or denials is relevant, then the class should be decertified, because injunctive relief would not be appropriate to the class as a whole. Cf. Rahman v. Chertoff, 530 F.3d 622 626 (7th Cir. 2008) (recognizing “the impropriety of certifying open-ended classes to facilitate structural injunctions designed to regulate law-enforcement practices.”). Plaintiffs cannot have it both ways. If, as plaintiffs allege, the government acted on grounds equally applicable to all class members, then individual hardships are irrelevant, and plaintiffs’ own stated basis for obtaining the personally identifying information fails.
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D. The Petition Raises New and Important Problems and Issues of First Impression in This Circuit
The government also satisfies the fifth mandamus factor because the district court’s order raises “new and important problems, or legal issues of first impression.” Perez, 749 F.3d at 855.4 Here, several new and important issues are implicated.
First, this Court has no precedential decisions interpreting the requesting party’s burden when seeking to pierce the law-enforcement privilege. An appellate decision on this issue would aid the government and litigants in framing their cases at the district court level and aid the government by providing guidance on what types of information may ultimately be disclosed in litigation and for what purposes. The Second Circuit recently granted a mandamus petition on precisely this question. See City of New York, 607 F.3d at 940 (granting writ “to address how a court should proceed when it establishes that the information at issue is subject to the [law enforcement] privilege” and describing this lacuna as a “critical aspect of our jurisprudence”).
Relatedly, there are no appellate decisions discussing the proper way to balance the interests of a requesting party for law-enforcement privileged information against the government’s interests in non-disclosure in a civil context. Definitive guidance from this Court on what the requesting party’s burden is and what needs justify piercing
4 The government does not contend that it satisfies the fourth factor, “oftrepeated error,” but this Court has often explained that the “fourth and fifth” factors will “rarely be present at the same time,” and that mandamus may be warranted if either (or, in some cases, neither) factor is present. Perez, 749 F.3d at 855 (citations omitted); see also Perry, 591 F.3d at 1157.
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the privilege are novel and important questions. A ruling on these issues would also provide critical guidance to the district court, which will soon re-address the applicability of the law-enforcement privilege and balancing of interests related to disclosure under a protective order to much more extensive and future production of documents relating to CARRP. App. 478.
In addition, this matter raises new and important issues because, if law enforcement sensitive information is subject to disclosure notwithstanding the privilege, it may lead agencies to reduce information sharing, especially as it relates to national security and immigration enforcement. App. 509 ¶ 9 & App. 512 ¶ 18. This has public policy implications of the highest order. The 9/11 Commission found that both lack of information sharing and less-than-full partnership of immigration agencies contributed to the 9/11 attacks. See The 9/11 Commission Report, 416-17 & Executive Summary, 14 (2004). If USCIS is compelled to disclose sensitive law-enforcement information made available to it by other agencies, it would likely result in reduced information sharing and reduced effectiveness across the government in detecting and countering threats to national security.
In any event, this Court has granted mandamus to resolve important privilege disputes even without finding the fourth or fifth factors satisfied. See Hernandez, 604 F.3d at 1102. The same approach would be appropriate here.
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II. This Court Should Grant a Stay Pending Review of the Petition Given that the district court’s order requires production of the class list on
Wednesday, April 25, we ask that the Court grant an immediate stay pending its consideration of this petition.
In weighing whether to grant a stay, a court considers “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken, 556 U.S. at 434. Here, the government has made a strong showing that it is likely to succeed on the merits, for all the reasons explained above. Absent a stay, the government will suffer immediate, irreparable, and substantial harm, because the disclosure of sensitive national security information cannot be undone. A brief stay of the district court’s production order while this Court considers the mandamus petition will not harm plaintiffs; indeed, discovery on other issues is ongoing in the district court.5 Finally, the public interest strongly supports a stay.
5 While the government hopes discovery can proceed without further need for relief, the government also notes its concern about the portion of the Court’s April 11, 2018 Order, that indicated that the government may be required to “provide . . . affidavits from heads of agencies for future productions in which the government wishes to claim the law enforcement privilege” at the time that information is first produced in response to a discovery request. App. 478, n.1. As the government has tried to explain in detail to the district court, see ECF No. 119, the suggestion that defendants must claim the law-enforcement privilege through a formal declaration by an agency head at the time documents are produced reflects a fundamental
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Revealing the identity of individuals who have been identified as national security concerns may cause irreparable harm to ongoing investigations, allow subjects to evade detection, and diminish the willingness of third-party agencies to share information with immigration authorities.
This Court regularly grants stays pending disposition of a writ of mandamus, including in cases involving challenges to discovery orders. See, e.g., In re United States, No. 17-71692 (July 25, 2017) (staying all proceedings in district court); Barton v. U.S. Dist. Court for Cent. Dist. of Cal., 410 F.3d 1104, 1106 (9th Cir. 2005); Calderon v. U.S. Dist. Court for the N. Dist. of Cal., 98 F.3d 1102, 1104 (9th Cir. 1996). The government respectfully asks the Court to do the same here.
CONCLUSION For the foregoing reasons, this Court should immediately stay the portions of the district court’s orders of October 19, 2017 (ECF No. 98), November 28, 2017 (ECF No. 102), and April 11, 2018 (ECF No. 148), grant the petition for writ of mandamus, and vacate the district court’s orders to the extent they require the government to disclose the identifying information of the class members.
Respectfully Submitted,
misunderstanding of privilege law. A finding that a privilege is waived at the production step based on this erroneous and unmanageable procedure that requires agency head review – in a case where document review and productions are likely to involve hundreds of thousands of documents – would be highly problematic and inconsistent with basic privilege procedures.
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ANNETTE L. HAYS United States Attorney BRIAN C. KIPNIS Assistant United States Attorney United States Attorney’s Office Western District of Washington
ETHAN B. KANTER Acting Chief, National Security
Unit DEREK C. JULIUS Assistant Director LINDSAY M. MURPHY Counsel, National Security Unit Appellate Section Office of Immigration Litigation Civil Division

CHAD A. READLER Acting Assistant Attorney General
SCOTT L. STEWART Deputy Assistant Attorney General
/S/AUGUST E. FLENTJE AUGUST E. FLENTJE
Special Counsel, Civil Division U.S. Department of Justice P.O. Box 868, Ben Franklin
Station Washington, DC 20044
(202) 514-3309

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STATEMENT OF RELATED CASES Petitioners are not aware of any related cases for purposes of Circuit Rule 282.6

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CERTIFICATE OF COMPLIANCE I hereby certify that this petition complies with the word limit Federal Rule of Appellate Procedure 21(d)(1) and Circuit Rule 21-2(c) because it contains 7790 words and does not exceed 30 pages, excluding the parts exempted by Federal Rule of Appellate Procedure 32(f). I further certify that this motion complies with the typeface and type-style requirements of Federal Rules of Appellate Procedure 27(d)(1)(E), 32(a)(5), and 32(a)(6) because it has been prepared using Microsoft Word 2013 in a proportionally spaced typeface, 14-point Garamond font.
s/ August E. Flentje AUGUST E. FLENTJE

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-1, Page 38 of 38
CERTIFICATE OF SERVICE
I hereby certify that on April 23, 2018, I electronically filed the foregoing with
the Clerk of the Court by using the appellate CM/ECF system. Service has been
accomplished via e-mail to the following counsel:
Abqiqafar Wagafe, et al.:
Matt Adams (matt@nwirp.org) Sameer Ahmed (sahmed@aclusocal.org) Glenda M. Aldana Madrid (glenda@nwirp.org) Emily Chiang (Echiang@aclu-wa.org) Lee Gelernt (lgelernt@aclu.org) Nicholas P. Gellert (NGellert@perkinscoie.com) Hugh Handeyside (hhandeyside@aclu.org) Laura K. Hennessey (LHennessey@perkinscoie.com) Kristin Macleod-Ball (kmacleod-ball@immcouncil.org) Jennifer Pasquarella (jpasquarella@aclusocal.org) David A. Perez (DPerez@perkinscoie.com) Trina Realmuto (trealmuto@immcouncil.org) Harry H. Schneider, Jr., (HSchneider@perkinscoie.com) Hina Shamsi (hshamsi@aclu.org) Stacy Tolchin (Stacy@tolchinimmigration.com)
The district court has been provided with a copy via email of this petition for writ of mandamus.
s/ August E. Flentje AUGUST E. FLENTJE

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 1 of 518
No. 18-____
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
In re DONALD J. TRUMP, President of the United States, et al., Petitioners.
DONALD J. TRUMP, President of the United States; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; KIRSTJEN NIELSEN, in her official capacity as Secretary of Homeland Security; L. FRANCIS CISSNA, in his official capacity as Director of U.S. Citizenship and Immigration Services; MATTHEW D. EMRICH, in his official capacity as Associate Director of the Fraud Detection and National Security Directorate of U.S. Citizenship and Immigration Services; and DANIEL RENAUD, in his official capacity as Associate Director of the Field
Operations Directorate of U.S. Citizenship and Immigration Services, Petitioners-Defendants,
v. UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
WASHINGTON, Respondent,
ABDIQAFAR WAGAFE, MEHDI OSTADHASSAN, HANIN OMAR BENGEZI, MUSHTAQ ABED JIHAD, and SAJEEL MANZOOR, on behalf of themselves and others similarly situated,
Real Parties in Interest-Plaintiffs.
APPENDIX TO PETITION FOR WRIT OF MANDAMUS
CHAD A. READLER Acting Assistant Attorney General
SCOTT L. STEWART Deputy Assistant Attorney General
AUGUST E. FLENTJE Special Counsel, Civil Division U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 514-3309

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TABLE OF CONTENTS
Plaintiffs’ Second Amended Complaint, ECF No. 47 (April 4, 2017)........ App. 1 Plaintiffs’ First Amended Motion for Class Certification, ECF No. 49 (April 10,
2017) ...................................................................................................... App. 56 Defendants’ Motion to Dismiss Second Amended Complaint, ECF No. 56
(April 18, 2017).....................................................................................App. 85 Order on Plaintiffs’ Motion for Class Certification and Defendant’s Motion to
Dismiss, ECF No. 69 (June 21, 2017) .............................................App. 121 Defendants’ Motion for Reconsideration, ECF No. 73 (July 5, 2017) ...App. 152 Order on Defendants’ Motion for Reconsideration, ECF No. 85 (August 16,
2017) ....................................................................................................App. 160 Plaintiff’s First Request for Production (August 1, 2017) ........................App. 162 Stipulated Protective Order, ECF No. 86 (August 21, 2017) .................App. 199 Defendants’ Objections and Resposnes to Plaintiffs’ First Request for
Production (September 5, 2017).......................................................App. 216 Plaintiffs’ Motion to Compel, ECF No. 91 (September 28, 2017)..........App. 273 Defendants’ Response to Motion to Compel, ECF No. 94 (October 10,
2017) ....................................................................................................App. 292 Order on Motion to Compel, ECF No. 98 (October 19, 2017)..............App. 395 Defendants’ Motion for Reconsideration, ECF No. 99 (November 2,
2017) ....................................................................................................App. 401 Order on Motion for Reconsideration, ECF No. 102 (November 28,
2017) ....................................................................................................App. 414 Defendants’ Motion for Limited Protective Order, ECF No. 126 (March 1,
2018) ....................................................................................................App. 417
i

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Plaintiff’s Response in Opposition to Defendants’ Motion for Limited Protective Order, ECF No. 127 (March 7, 2018) .........................App. 457
Order on Defendants’ Motion for Limited Protective Order, ECF No. 148 (April 11, 2018)...................................................................................App. 474
Defendant’s Motion For Stay, ECF No. 156 (April 20, 2018) ...............App. 485
ii

Case:21:81-77-1c1v-7010,00944/2-J3C/2C018D,oIcDu:m10e8n4t 47723F,ilDekdtE04n/t0ry4:/1-72, Page 14 of 5518

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 8

ABDIQAFAR WAGAFE, MEHDI 9 OSTADHASSAN, HANIN OMAR
BENGEZI, MUSHTAQ ABED JIHAD, and 10 SAJEEL MANZOOR, on behalf of themselves
and others similarly situated, 11

COMPLAINT-CLASS ACTION

Plaintiffs, 12

Case No: 2:17-cv-00094-JCC

v. 13
DONALD TRUMP, President of the United 14 States; UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES; JOHN F. 15 KELLY, in his official capacity as Secretary of
the U.S. Department of Homeland Security; 16 LORI SCIALABBA, in her official capacity as
Acting Director of the U.S. Citizenship and 17 Immigration Services; MATTHEW D.
EMRICH, in his official capacity as Associate 18 Director of the Fraud Detection and National
Security Directorate of the U.S. Citizenship 19 and Immigration Services; DANIEL
RENAUD, in his official capacity as Associate 20 Director of the Field Operations Directorate of
the U.S. Citizenship and Immigration Services, 21

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Defendants. 22

23

24

25

26
SECOND AMENDED COMPLAINT
27 Page 1 of 55
Case No. 2:17-cv-00094-JCC
28
134745922.5

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 2nd Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611

App. 001

Case:21:81-77-1c1v-7010,00944/2-J3C/2C018D,oIcDu:m10e8n4t 47723F,ilDekdtE04n/t0ry4:/1-72, Page 25 of 5518

1

INTRODUCTION

2 1. This class action lawsuit seeks to stop the federal government from unconstitutionally preventing

3 Plaintiffs, and others like them, from obtaining immigration benefits, including, but not limited to,

4 asylum, naturalization, lawful permanent residence, and employment authorization.

5 2. Plaintiff Abdiqafar Wagafe is a Somali national who, at the time this lawsuit was initiated, had

6 waited three and a half years for a decision on his pending naturalization application despite his

7 eligibility to naturalize as a United States citizen. A mere five days after Plaintiffs filed their motion for

8 class certification, the government provided Mr. Wagafe his long-awaited naturalization interview on

9 February 22, 2017. The government approved Mr. Wagafe’s application immediately following his

10 interview, and swore him in as a citizen of the United States of America on March 2, 2017.

11 3. Plaintiff Mehdi Ostadhassan is an Iranian national who has applied for and is eligible to adjust

12 his status to that of a lawful permanent resident. He has waited three years for a decision on his

13 adjustment of status application.

14 4. Plaintiff Hanin Omar Bengezi is a Libyan national who has applied for and is eligible to adjust

15 her status to that of a lawful permanent resident. She has waited over two years for a decision on her

16 adjustment of status application.

17 5. Plaintiff Mushtaq Abed Jihad is an Iraqi national who has applied for and is eligible to naturalize

18 as a United States citizen. He has waited more than three and a half years for a decision on his

19 naturalization application.

20 6. Plaintiff Sajeel Manzoor is a Pakistani national who has applied for and is eligible to naturalize

21 as a United States citizen. He has waited more than a year for a decision on his naturalization

22 application.

23 7. All Plaintiffs identify as Muslims, are originally from Muslim-majority countries, and have

24 resided in the United States for a significant time. The inordinate delays they experience hold their lives

25 in a state of limbo. They are prevented from having certainty about their future residence in the United

26
SECOND AMENDED COMPLAINT
27 Page 2 of 55
Case No. 2:17-cv-00094-JCC
28
134745922.5

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 2nd Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611

App. 002

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1 States, from being able to freely travel overseas, from petitioning for immigration benefits for family

2 members, and, for those seeking naturalization, from obtaining jobs available only to U.S. citizens and

3 from voting in U.S. elections.

4 8. The Constitution expressly assigns to Congress, not the executive branch, the authority to

5 establish uniform rules of naturalization. The Immigration and Nationality Act (“INA”) sets forth those

6 rules, along with the requirements for adjustment of status to lawful permanent residence.

7 9. Despite the fact that Plaintiffs meet the statutory criteria to be naturalized as United States

8 citizens or adjust their immigration status to that of a lawful permanent resident (“LPR”), U.S.

9 Citizenship and Immigration Service (“USCIS”) has refused to adjudicate their applications in

10 accordance with the governing statutory criteria. Instead, USCIS has applied impermissible ultra vires

11 rules under a policy known as the Controlled Application Review and Resolution Program (“CARRP”),

12 which has prevented the agency from granting Plaintiffs’ applications (and, in the case of Mr. Wagafe,

13 caused the agency to delay granting his application until this lawsuit motivated it to do so).

14 10. Since 2008, USCIS has used CARRP—an internal vetting policy that has not been authorized by

15 Congress, nor codified, subjected to public notice and comment, or voluntarily made public in any

16 way—to investigate and adjudicate applications the agency deems to present potential national security

17 concerns. CARRP prohibits USCIS field officers from approving an application with an alleged

18 potential national security concern, instead directing officers to deny the application or delay

19 adjudication—often indefinitely.

20 11. CARRP’s definition of national security concern is far broader than the security-related

21 ineligibility criteria for immigration applications set forth by Congress in the INA. CARRP identifies

22 national security concerns based on deeply-flawed and expansive government watchlists and other

23 vague and overbroad criteria that bear little, if any, relation to the statutory security-related ineligibility

24 criteria. The CARRP definition casts a net so wide that it brands innocent, law-abiding residents, like

25 Plaintiffs—none of whom pose a security threat—as national security concerns on account of innocuous

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1 activity, associations, and characteristics such as national origin.

2 12. Although Plaintiffs do not know the total number of people subject to CARRP at any given time,

3 USCIS data reveals that between Fiscal Year 2008 and Fiscal Year 2012, more than 19,000 people from

4 twenty-one Muslim-majority countries or regions were subjected to CARRP. Upon information and

5 belief, USCIS opened nearly 42,000 CARRP cases between 2008 and 2016.

6 13. Moreover, two recent immigration Executive Orders issued by Defendant Donald Trump suggest

7 the number of residents subjected to CARRP will expand in the coming months and years.

8 14. On January 27, 2017, Defendant Trump issued Executive Order 13769, entitled “Protecting the

9 Nation from Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 8977 (Feb. 1, 2017) (“First

10 EO”).

11 15. Section 3 of the First EO suspended entry into the United States of citizens or nationals of Syria,

12 Iraq, Iran, Yemen, Somalia, Sudan, and Libya, all of which are predominantly Muslim countries, for 90

13 days or more. Although the First EO said nothing about suspending adjudications, USCIS determined

14 that the EO required it to suspend adjudication or final action on all pending petitions, applications, or

15 requests involving citizens or nationals of those seven countries with the exception of naturalization

16 applications.

17 16. Section 4 of the First EO further directed federal agencies to create and implement a policy of

18 extreme vetting of all immigration benefits applications to identify individuals who are seeking to enter

19 the country based on fraud and with the intent to cause harm or who are at risk of causing harm after

20 admission. Upon information and belief, any such “extreme vetting” policy would expand CARRP.

21 17. After Judge James L. Robart enjoined the First EO in Washington v. Trump, No. 2:17-cv-141-

22 JLR, ECF 52, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017), and the United States Court of Appeals for

23 the Ninth Circuit denied the government’s motion for stay of that order (847 F.3d 1151 (9th Cir. 2017)),

24 Defendant Trump issued a second Executive Order on March 6, 2017. Executive Order 13780,

25 “Protecting the Nation From Foreign Terrorist Entry Into the United States,” 82 Fed. Reg. 13209 (Mar.

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1 9, 2017) (“Second EO”). The Second EO targets the same countries as the First EO, with the exception

2 of Iraq, and is intended to have the same broad effect as the First EO.

3 18. Like the First EO, the Second EO institutes an entry ban of 90 days or more for foreign nationals

4 of the targeted countries, does not specify how it will apply to adjudications of pending applications, and

5 directs federal agencies to create and implement a policy of extreme vetting for all immigration benefits.

6 See Second EO §§ 2, 5. Further, a memorandum issued by Defendant Trump in connection with the

7 Second EO cautions that the implementation of “heightened screening and vetting protocols” cannot

8 wait, and directs the government to begin implementing these procedures immediately, even while the

9 details of the more permanent extreme vetting policy are being developed. Memorandum for the

10 Secretary of State, the Attorney General, the Secretary of Homeland Security (Mar. 6, 2017) available at

11 https://www.whitehouse.gov/the-press-office/2017/03/06/memorandum-secretary-state-attorney-

12 general-secretary-homeland-security. Accordingly, upon information and belief, the Second EO

13 sanctions a major expansion of the existing CARRP program. 14 19. Application of CARRP,1 both on its own and as potentially expanded pursuant to the Second EO,

15 to pending immigration applications is unlawful and unconstitutional. The First and Second EOs reflect

16 a preference for one religious faith over another in the adjudication of immigration applications, and,

17 inter alia, discriminate against immigrants who are Muslim or are from Muslim-majority countries on

18 the basis of their religion and country of origin. CARRP and the “extreme vetting” program to be

19 established under the Second EO are similarly unlawful and ultra vires. The Constitution expressly

20 assigns to Congress, not the executive branch, the authority to establish uniform rules of naturalization.

21 The INA sets forth those rules, along with the requirements for adjustment of status to lawful permanent

22 1 As set forth below in paragraph 59, USCIS did not make information about CARRP public, and the

23 program only was discovered through fortuity during federal court litigation. To the extent the program

has shifted in name, scope, or method, Plaintiffs may have no way to obtain that information. Thus, 24 Plaintiffs’ reference to “CARRP” incorporates any similar non-statutory and sub-regulatory successor

25

vetting policy, including pursuant to Sections 4 and 5 of the Second EO, as described in paragraphs 12627 below.

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1 resident, asylum, and all other immigration benefits. By creating additional, non-statutory, substantive

2 criteria for adjudicating immigration applications, CARRP and any successor “extreme vetting” program

3 violate the INA, the Administrative Procedure Act (“APA”) and the U.S. Constitution.

4 20. In addition, on information and belief, and based on USCIS’ interpretation of the First EO, the

5 applications of Plaintiff Ostadhassan, Plaintiff Bengezi, and proposed class members will be unlawfully

6 suspended due to the application of the Second EO. Furthermore, adjudications of all Plaintiffs’ and

7 proposed class members’ applications will be unlawfully subject to, and adjudicated under, CARRP or a

8 successor “extreme vetting” program.

9 21. On behalf of themselves and others similarly situated, Plaintiffs therefore request that the Court

10 enjoin USCIS from halting adjudications of immigration benefits applications for citizens and nationals

11 of the targeted countries pursuant to the Second EO. They further request that the Court enjoin USCIS

12 from applying CARRP (or any similar ultra vires policy/successor “extreme vetting” program) to their

13 immigration applications and the applications of similarly situated individuals.

14

15

JURISDICTION AND VENUE

16 22. Plaintiffs allege violations of the INA, the APA, and the U.S. Constitution. This Court has

17 subject matter jurisdiction under 28 U.S.C. § 1331. This Court also has authority to grant declaratory

18 relief under 28 U.S.C. §§ 2201 and 2202, and injunctive relief under 5 U.S.C. § 702 and 28 U.S.C.

19 § 1361.

20 23. Venue is proper in the Western District of Washington under 28 U.S.C. §§ 1391(b) and 1391(e)

21 because (1) Plaintiff Abdiqafar Wagafe, a citizen of the United States; Plaintiff Hanin Omar Bengezi, an

22 applicant for lawful permanent residence; Plaintiff Mushtaq Abed Jihad, a naturalization applicant; and

23 Plaintiff Sajeel Manzoor, a naturalization applicant, reside in this district and no real property is

24 involved in this action; (2) a substantial part of the events giving rise to the claims occurred in this

25 district; and (3) Plaintiffs sue Defendants in their official capacity as officers of the United States.

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1

PARTIES

2 24. Plaintiff Abdiqafar Wagafe is a thirty-two-year-old Somali national and former lawful permanent

3 resident, who is now a citizen of the United States. He has lived in the United States since May 2007

4 and currently resides in SeaTac, Washington. He is Muslim. He applied for naturalization in November

5 2013. Even though he satisfied all statutory criteria for naturalization, USCIS subjected his application

6 to CARRP, and as a result, a final decision was not issued for more than three and a half years. Five

7 days after Plaintiffs filed their Motion for Class Certification, on February 14, 2017, USCIS contacted

8 Plaintiff Wagafe to inform him that it had scheduled his long-awaited naturalization interview for

9 February 22, 2017. At his interview, USCIS found Plaintiff Wagafe met all the statutory criteria and

10 approved his naturalization application on the spot following the interview. He became a U.S. citizen on

11 March 2, 2017.

12 25. Plaintiff Mehdi Ostadhassan is a thirty-three-year-old national of Iran. He has lived in the

13 United States since 2009 and resides in Grand Forks, North Dakota. He applied for adjustment to lawful

14 permanent resident status in February 2014. He is Muslim. Even though he satisfies all statutory

15 criteria for adjustment of status, USCIS has suspended or will suspend adjudication of his application

16 under the First and Second EOs, respectively, and has subjected his application to CARRP or its

17 successor “extreme vetting” program, and, as a result, a final decision has not been issued.

18 26. Plaintiff Hanin Omar Bengezi is a thirty-three-year-old national of Libya. She has lived in the

19 United States since December 21, 2014, and currently resides in Redmond, Washington. After marrying

20 a United States citizen, Ms. Bengezi applied for adjustment to lawful permanent resident status in

21 February 2015. She is Muslim. Though she is a Canadian citizen and satisfies all statutory criteria for

22 adjustment of status, USCIS has suspended or will suspend adjudication of her application under the

23 First or Second EOs, respectively, and has subjected her application to CARRP or its successor

24 “extreme vetting” program, and, as a result, a final decision has not been issued.

25 27. Plaintiff Mushtaq Abed Jihad is a forty-four-year-old national of Iraq. He has lived in the United

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1 States since August 2008, and currently resides in Renton, Washington. He is Muslim. He applied for

2 naturalization in July 2013. Even though he satisfies all statutory criteria for naturalization, USCIS has

3 subjected his application to CARRP or its successor “extreme vetting” program, and, as a result, a final

4 decision has not been issued for more than three and a half years.

5 28. Plaintiff Sajeel Manzoor is a forty-year-old national of Pakistan. He has lived in the United

6 States since August 2001, and currently resides in Newcastle, Washington. He is Muslim. He applied

7 for naturalization in November 2015. Even though he satisfies all statutory criteria for naturalization,

8 USCIS has subjected his application to CARRP or its successor “extreme vetting” program, and, as a

9 result, a final decision has not been issued for more than one year.

10 29. Defendant Donald Trump is the President of the United States. Plaintiffs sue Defendant Trump

11 in his official capacity.

12 30. Defendant USCIS is a component of the Department of Homeland Security (“DHS”), and is

13 responsible for overseeing the adjudication of immigration benefits. USCIS implements federal law and

14 policy with respect to immigration benefits applications.

15 31. Defendant John F. Kelly is the Secretary of DHS, the department under which USCIS and

16 several other immigration agencies operate. Accordingly, Secretary Kelly has supervisory responsibility

17 over USCIS. Plaintiffs sue Defendant Kelly in his official capacity.

18 32. Defendant Lori Scialabba is the Acting Director of USCIS. Acting Director Scialabba

19 establishes and implements immigration benefits applications policy for USCIS and its subdivisions.

20 Plaintiffs sue Defendant Scialabba in her official capacity.

21 33. Defendant Matthew D. Emrich is the Associate Director of the Fraud Detection and National

22 Security Directorate of USCIS (“FDNS”), which is ultimately responsible for determining whether

23 individuals filing applications for immigration benefits pose a threat to national security, public safety,

24 or the integrity of the nation’s legal immigration system. Associate Director Emrich establishes and

25 implements policy for FDNS. Plaintiffs sue Defendant Emrich in his official capacity.

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1 34. Defendant Daniel Renaud is the Associate Director of the Field Operations Directorate of

2 USCIS, which is responsible for and oversees the processing and adjudication of immigration benefits

3 applications through the USCIS field offices and the National Benefits Center. Plaintiffs sue Defendant

4 Renaud in his official capacity.

5

LEGAL FRAMEWORK

6

A. Naturalization

7 35. To naturalize as a U.S. citizen, an applicant must satisfy certain eligibility criteria under the INA

8 and its implementing regulations. See generally 8 U.S.C. §§ 1421-1458; 8 C.F.R. §§ 316.1-316.14.

9 36. Applicants must prove that they are “at least 18 years of age,” 8 C.F.R. § 316.2(a)(1); have

10 “resided continuously, after being lawfully admitted” in the United States, “for at least five years”; and

11 have been “physically present” in the United States for “at least half of that time,” 8 U.S.C.

12 § 1427(a)(1).

13 37. Applicants must also demonstrate “good moral character” for the five years preceding the date of

14 application, “attach[ment] to the principles of the Constitution of the United States, and favorabl[e]

15 dispos[ition] toward the good order and happiness of the United States . . . .” 8 C.F.R. § 316.2(a)(7).

16 38. An applicant is presumed to possess the requisite “good moral character” for naturalization

17 unless, during the five years preceding the date of the application, he or she is found (1) to be a habitual

18 drunkard, (2) to have committed certain drug-related offenses, (3) to be a gambler whose income derives

19 principally from gambling or has been convicted of two or more gambling offenses, (4) to have given

20 false testimony for the purpose of obtaining immigration benefits; or if the applicant (5) has been

21 convicted and confined to a penal institution for an aggregate period of 180 days or more, (6) has been

22 convicted of an aggravated felony, or (7) has engaged in conduct such as aiding Nazi persecution or

23 participating in genocide, torture, or extrajudicial killings. 8 U.S.C. § 1101(f)(6).

24 39. The statutory and regulatory requirements set forth in paragraphs 37-38 are less stringent for

25 certain persons who married U.S. citizens and employees of certain nonprofit organizations, in that less

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1 than five years of residency and good moral character are required. See generally 8 U.S.C. § 1430; 8

2 C.F.R. §§ 319.1 and 319.4.

3 40. An applicant is barred from naturalization for national security-related reasons in circumstances

4 limited to those codified in 8 U.S.C. § 1424, including, inter alia, if the applicant has advocated, is

5 affiliated with any organization that advocates, or writes or distributes information that advocates, “the

6 overthrow by force or violence or other unconstitutional means of the Government of the United States,”

7 the “duty, necessity, or propriety of the unlawful assaulting or killing of any officer . . . of the

8 Government of the United States,” or “the unlawful damage, injury, or destruction of property.”

9 41. Once an individual submits an application, USCIS must conduct a background investigation, see

10 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1, which includes a full criminal background check by the Federal

11 Bureau of Investigation (“FBI”), see 8 C.F.R. § 335.2.

12 42. After completing the background investigation, USCIS must schedule a naturalization

13 examination at which the applicant meets with a USCIS examiner for an interview.

14 43. In order to avoid inordinate processing delays and backlogs, Congress has stated “that the

15 processing of an immigration benefit application,” which includes naturalization, “should be completed

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

17 either grant or deny a naturalization application within 120 days of the date of the examination. 8 C.F.R.

18 § 335.3.

19 44. If the applicant has complied with all requirements for naturalization, federal regulations state

20 that USCIS “shall grant the application.” 8 C.F.R. § 335.3(a) (emphasis added).

21 45. Courts have long recognized that “Congress is given power by the Constitution to establish a

22 uniform Rule of Naturalization. . . . And when it establishes such uniform rule, those who come within

23 its provisions are entitled to the benefit thereof as a matter of right. . . .” Schwab v. Coleman, 145 F.2d

24 672, 676 (4th Cir. 1944) (emphasis added); see also Marcantonio v. United States, 185 F.2d 934, 937

25 (4th Cir. 1950) (“The opportunity having been conferred by the Naturalization Act, there is a statutory

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1 right in the alien to submit his petition and evidence to a court, to have that tribunal pass upon them,

2 and, if the requisite facts are established, to receive the certificate.” (quoting Tutun v. United States, 270

3 U.S. 568, 578 (1926))).

4 46. Once an application is granted, the applicant is sworn in as a United States citizen.

5

B. Adjustment of Status to Lawful Permanent Resident

6 47. Federal law allows certain non-citizens to adjust their immigration status to that of a lawful

7 permanent resident (“LPR”).

8 48. Several events may trigger eligibility to adjust to LPR status, including, but not limited to, an

9 approved petition through a family member, such as a U.S. citizen spouse, or employer. See, e.g., 8

10 U.S.C. § 1255(a); 8 C.F.R. § 245.1.

11 49. In general, a noncitizen who is the beneficiary of an approved immigrant visa petition and who is

12 physically present in the United States may adjust to LPR status if he or she “makes an application for

13 such adjustment,” was “inspected and admitted or paroled” into the United States, is eligible for an

14 immigrant visa and admissible to the United States, and the immigrant visa is immediately available to

15 the applicant at the time the application is filed. 8 U.S.C. §§ 1255(a)(1)-(3); 8 C.F.R. § 245.1.

16 50. An adjustment applicant may be found inadmissible, and therefore ineligible to become an LPR,

17 if certain security-related grounds apply, including, inter alia, the applicant has engaged in terrorist

18 activity, is a representative or member of a terrorist organization, endorses or espouses terrorist activity,

19 or incites terrorist activity. See 8 U.S.C. § 1182(a)(3). USCIS’s definition of a national security concern

20 in CARRP is significantly broader than these security-related grounds of inadmissibility set by

21 Congress.

22 51. Congress has directed USCIS to process immigration benefit applications, including for

23 adjustment of status, within 180 days. 8 U.S.C. § 1571(b).

24

C. Other Immigration Benefits

25 52. Federal laws provide noncitizens living within the United States the opportunity to apply for a

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1 myriad of other immigration benefits apart from either naturalization or adjustment of status.

2 53. For example, persons fleeing persecution or torture may apply for asylum under 8 U.S.C. § 1158,

3 or withholding of removal, under 8 U.S.C. § 1231(b)(3). Victims of certain crimes and trafficking who

4 have suffered serious harm and who have cooperated with law enforcement may apply for nonimmigrant

5 visas under 8 U.S.C. §§ 1101(a)(15)(T), (U). Certain noncitizens from designated countries may apply

6 for Temporary Protected Status (“TPS”) in the event of, inter alia, a natural disaster or political

7 upheaval in their country of origin. 8 U.S.C. § 1254a. In addition, a significant number of noncitizens

8 within the United States are eligible for employment authorization based on either their current

9 immigration status, their employment status, or their temporary immigration status, including while

10 other applications for immigration benefits are pending. See generally 8 C.F.R. § 274.12a(a)-(c).

11 54. Every immigration benefit has enumerated statutory and/or regulatory requirements that

12 applicants must affirmatively establish to demonstrate eligibility. In addition, each applicant generally

13 must show that they are admissible under 8 U.S.C. § 1182 and/or that any past immigration violation or

14 criminal conduct does not disqualify them for the benefit sought. See, e.g., 8 U.S.C., §§ 1158(b)(2)

15 (precluding asylum eligibility to individuals found to have persecuted others, to have been convicted of

16 “a particularly serious crime,” or to present a danger to national security); 1231(b)(3)(B) (precluding

17 applicants from receiving withholding of removal based on national security grounds); 1254a(c)(2)(B)(i)

18 (precluding applicants from qualifying for TPS if they have been convicted of a felony or two or more

19 misdemeanors).

20

FACTUAL BACKGROUND

21

A. The Controlled Application Review and Resolution Program (“CARRP”)

22 55. In April 2008, USCIS created CARRP, an agency-wide policy for identifying, processing, and

23 adjudicating immigration applications that raise “national security concerns.” As described below,

24 however, CARRP unlawfully imposes extra statutory rules and criteria to delay and deny applicants

25 immigration benefits to which they are entitled.

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1 56. Congress did not enact CARRP, and USCIS did not promulgate it as a proposed rule with the

2 notice-and-comment procedures mandated by the APA. See 5 U.S.C. § 553(b)-(c).

3 57. Upon information and belief, prior to CARRP’s enactment, USCIS simply delayed the

4 adjudication of many immigration applications that raised possible national security concerns, in part

5 due to backlogs created by the FBI Name Check process (one of many security checks utilized by

6 USCIS).

7 58. Indeed, the U.S. District Court for the Western District of Washington previously certified a

8 district class of hundreds of naturalization applicants whose cases were delayed due to FBI Name

9 Checks, see Roshandel v. Chertoff, 554 F. Supp. 2d 1194 (W.D. Wash. 2008), and denied the

10 defendants’ motion to dismiss the suit, see Roshandel, 2008 WL 1969646 (W.D. Wash. May 5, 2008).

11 The case resulted in a settlement in which the defendants agreed to adjudicate class member applications

12 within a specified time period. See Roshandel, No. C07-1739MJP, Dkt. 81 (W.D. Wash. Aug. 25,

13 2008).

14 59. Now, in lieu of delays based on the FBI Name Check process, USCIS delays applications by

15 applying CARRP. Since CARRP’s inception, USCIS has not made information about CARRP available

16 to the public, except in response to Freedom of Information Act (“FOIA”) requests and litigation to

17 compel responses to those requests. See ACLU of Southern California v. USCIS, No. CV 13-861

18 (D.D.C. filed June 7, 2013). In fact, the program was unknown to the public, including applicants for

19 immigration benefits, until it was discovered in litigation challenging an unlawful denial of

20 naturalization in Hamdi v. USCIS, No. EDCV 10-894 VAP (DTBx), 2012 WL 632397 (C.D. Cal. Feb.

21 25, 2012), and then revealed in greater detail through the government’s response to a FOIA request.

22 60. CARRP directs USCIS officers to screen citizenship and immigration benefits applications for

23 national security concerns.

24 61. If a USCIS officer determines that an application presents a national security concern, he or she

25 will take the application off a routine adjudication track and—without notifying the applicant—place it

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1 on a CARRP adjudication track where it is subject to distinct procedures, heightened scrutiny, and, most

2 importantly, extra-statutory criteria that result in lengthy delays and prohibit approvals, except in limited

3 circumstances, regardless of an applicant’s statutory eligibility.

4

1. CARRP’s Definition of a National Security Concern

5 62. According to the CARRP definition, a national security concern arises when an individual or

6 organization has been determined to have an articulable link—no matter how attenuated or

7 unsubstantiated—to prior, current, or planned involvement in, or association with, an activity,

8 individual, or organization described in sections 212(a)(3)(A), (B), or (F), or 237(a)(4)(A) or (B) of the

9 INA. Those sections render inadmissible or removable any individual who, inter alia, “has engaged in

10 terrorist activity” or is a member of a “terrorist organization.” 8 U.S.C. §§ 1182(a)(3) and 1227(a)(4).

11 63. For the reasons described herein, an individual need not be actually suspected of engaging in any

12 unlawful activity or joining any proscribed organization to be branded a national security concern under

13 CARRP.

14 64. CARRP distinguishes between two types of national security concerns: those ostensibly

15 involving “Known or Suspected Terrorists” (“KSTs”), and those ostensibly involving “non-Known or

16 Suspected Terrorists” (“non-KSTs”).

17 65. USCIS automatically considers an applicant a KST, and thus a national security concern, if his or

18 her name appears in the Terrorist Screening Database, also referred to as the Terrorist Watchlist

19 (“TSDB” or “Watchlist”). USCIS, therefore, applies CARRP to any applicant whose name appears in

20 the TSDB.

21 66. Upon information and belief, the TSDB includes approximately one million names, many of

22 whom present no threat to the United States.

23 67. The government’s Watchlisting Guidance sets a very low “reasonable suspicion” standard for

24 placement on the Watchlist. Under the Guidance, concrete facts are not necessary to satisfy the

25 reasonable suspicion standard, and uncorroborated information of questionable or even doubtful

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1 reliability can serve as the basis for blacklisting an individual. The Guidance further reveals that the

2 government blacklists non-U.S. citizens, including LPRs, even where it cannot meet the already low

3 reasonable suspicion standard of purported involvement with terrorist activity. The Guidance permits

4 the watchlisting of noncitizens simply for being associated with someone else who has been watchlisted,

5 even if there is no known involvement with that person’s purportedly suspicious activity. The Guidance

6 also states explicitly that noncitizens may be watchlisted based on information that is very limited or of

7 suspected reliability. These extremely loose standards significantly increase the likelihood that the

8 TSDB contains information on individuals who are neither known nor appropriately suspected terrorists.

9 68. Furthermore, the Terrorist Screening Center (“TSC”), which maintains the TSDB, has failed to

10 ensure that individuals who do not meet the Watchlist’s criteria are promptly removed from the TSDB

11 (or not blacklisted in the first place). In 2013 alone, the watchlisting community nominated 468,749

12 individuals to the TSDB, and the TSC rejected only approximately one percent of those nominations.

13 Public reports also confirm that the government has nominated or retained people on government

14 watchlists as a result of human error.

15 69. The federal government’s official policy is to refuse to confirm or deny any given individual’s

16 inclusion in the TSDB or provide a meaningful opportunity to challenge that inclusion. Nevertheless,

17 individuals can become aware of their inclusion due to air travel experiences. In particular, individuals

18 may learn that they are on the “Selectee List” or the “Expanded Selectee List,” subsets of the TSDB, if

19 their boarding passes routinely display the code “SSSS” or they are routinely directed for additional

20 screening before boarding a flight over U.S. airspace. They may also learn of their inclusion in the

21 TSDB if U.S. federal agents regularly subject them to secondary inspection when they enter the United

22 States from abroad. Such individuals are also often unable to check-in for flights online or at airline

23 electronic kiosks at the airport.

24 70. Where the KST designation does not apply, CARRP instructs officers to look for indicators of a

25 non-Known or Suspected Terrorist (“non-KST”) concern.

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1 71. These indicators fall into three categories: (1) statutory indicators; (2) non-statutory indicators;

2 and (3) indicators contained in security check results.

3 72. Statutory indicators of a national security concern arise when an individual generally meets the

4 definitions described in Sections 212(a)(3)(A), (B), and (F), and 237(a)(4)(A) and (B) of the INA

5 (codified at 8 U.S.C. § 1182(a)(3)(A), (B), and (F) and § 1227(a)(4)(A) and (B)), which list the security 6 and terrorism grounds of inadmissibility and removability.2 However, CARRP expressly defines

7 statutory indicators of a national security concern more broadly than the statute, stating that the facts of

8 the case do not need to satisfy the legal standard used in determining admissibility or removability under

9 those provisions of the INA to give rise to a non-KST national security concern.

10 73. For example, CARRP policy specifically directs USCIS officers to scrutinize evidence of

11 charitable donations to organizations later designated as financiers of terrorism by the U.S. Treasury

12 Department and to construe such donations as evidence of a national security concern, even if an

13 individual had made such donations without any knowledge that the organization was engaged in

14 proscribed activity. Such conduct would not make an applicant inadmissible for a visa, asylum, or LPR

15 status under the statute, see 8 U.S.C. § 1182(a)(3)(B), nor does it have any bearing on a naturalization

16 application.

17 74. Under CARRP, non-statutory indicators of a national security concern include travel through or

18 residence in areas of known terrorist activity; a large scale transfer or receipt of funds; a person’s

19 employment, training, or government affiliations; the identities of a person’s family members or close

20 associates, such as a roommate, co-worker, employee, owner, partner, affiliate, or friend; or simply other

21 suspicious activities.

22 2 These security and terrorism grounds of inadmissibility, if applicable, may bar an applicant from

23 obtaining lawful permanent resident status, asylum, or a visa. However, they do not bar an applicant

who is already a lawful permanent resident from naturalization, which is governed by the statutory 24 provisions specific to naturalization. See 8 U.S.C. §§ 1421-1458. The security and terrorism provisions

25

also may render a non-citizen removable, see 8 U.S.C. § 1227(a)(4), but the government has not charged Plaintiffs with removability under these provisions.

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1 75. Finally, security check results are considered indicators of a national security concern in

2 instances where, for example, the FBI Name Check produces a positive hit on an applicant’s name and

3 the applicant’s name is associated with a national security-related investigatory file. Upon information

4 and belief, this indicator leads USCIS to label applicants national security concerns solely because their

5 names appear in a law enforcement or intelligence file, even if they were never the subject of an

6 investigation. For example, an applicant’s name could appear in a law enforcement file in connection

7 with a national security investigation because he or she once gave a voluntary interview to an FBI agent,

8 he or she attended a mosque that was the subject of FBI surveillance, or he or she knew or was

9 associated with someone under investigation.

10 76. Upon information and belief, CARRP labels applicants national security concerns based on

11 vague and overbroad criteria that often turn on national origin or innocuous and lawful activities or

12 associations. These criteria are untethered from the statutory criteria that determine whether a person is

13 eligible for the immigration status or benefit they seek, and are so general that they necessarily ensnare

14 individuals who pose no threat to the security of the United States.

15

2. Delay and Denial

16 77. Once a USCIS officer identifies a CARRP-defined national security concern, the application is

17 subjected to CARRP’s rules and procedures that guide officers to deny such applications or, if an officer

18 cannot find a basis to deny the application, to delay adjudication as long as possible.

19

a) Deconfliction

20 78. One such procedure is called “deconfliction,” which requires USCIS to coordinate with—and,

21 upon information and belief, subordinate its authority to—the law enforcement agency, often the FBI,

22 that possesses information giving rise to the supposed national security concern.

23 79. During deconfliction, the relevant law enforcement agency has authority: to instruct USCIS to

24 ask certain questions in an interview or to issue a Request for Evidence (“RFE”); to comment on a

25 proposed decision on the benefit; and to request that USCIS deny, grant, or hold the application in

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1 abeyance for an indefinite period of time.

2 80. Upon information and belief, deconfliction allows law enforcement or intelligence agencies such

3 as the FBI to directly affect the adjudication of a requested immigration benefit, and also results in the

4 agencies conducting independent interrogations of the applicant—or the applicant’s friends and family.

5 81. Upon information and belief, USCIS often makes decisions to deny immigration benefit

6 applications because the FBI requests or recommends the denial, not because the person is statutorily

7 ineligible for the benefit.

8 82. The FBI often seeks to use the pending immigration application to coerce the applicant to act as

9 an informant or otherwise provide information.

10

b) Eligibility Assessment

11 83. In addition to deconfliction, once officers identify an applicant as a national security concern,

12 CARRP directs officers to perform an “eligibility assessment” to determine whether the applicant is

13 eligible for the benefit sought.

14 84. Upon information and belief, at this stage, CARRP instructs officers to look for any reason to

15 deny an application so that time and resources are not expended to investigate the possible national

16 security concern. Where no legitimate reason supports denial of an application subjected to CARRP,

17 USCIS officers often utilize spurious or pretextual reasons to deny the application.

18

c) Internal Vetting

19 85. Upon information and belief, if, after performing the eligibility assessment, an officer cannot

20 find a reason to deny an application, CARRP instructs officers to first “internally vet” the national

21 security concern using information available in DHS systems and databases, open source information,

22 review of the applicant’s file, RFEs, and interviews or site visits.

23 86. After conducting the eligibility assessment and internal vetting, USCIS officers are instructed to

24 again conduct deconfliction to determine the position of any interested law enforcement agency.

25

d) External Vetting

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1 87. If the national security concern remains and the officer cannot find a basis to deny the benefit,

2 the application then proceeds to “external vetting.”

3 88. During external vetting, USCIS instructs officers to confirm the existence of the national security

4 concern with the law enforcement or intelligence agency that possesses the information that created the

5 concern and obtain additional information from that agency about the concern and its relevance to the

6 individual.

7 89. CARRP policy instructs USCIS officers to hold applications in abeyance for periods of 180 days

8 to enable law enforcement agents and USCIS officers to investigate the national security concern.

9 According to CARRP policy, the USCIS Field Office Director may extend the abeyance periods as long

10 as the investigation remains open.

11 90. Upon information and belief, CARRP provides no outer limit on how long USCIS may hold a

12 case in abeyance, even though the INA requires USCIS to adjudicate a naturalization application within

13 120 days of examination, 8 C.F.R. § 335.3, and Congress has made clear its intent that USCIS

14 adjudicate immigration applications, including visa petitions and accompanying applications for

15 adjustment of status to lawful permanent residence, within 180 days of filing the application. 8 U.S.C. §

16 1571(b).

17

e) Adjudication

18 91. When USCIS considers an applicant to be a KST national security concern, CARRP policy

19 forbids USCIS adjudications officers from granting the requested benefit even if the applicant satisfies

20 all statutory and regulatory criteria.

21 92. When USCIS considers an applicant to be a non-KST national security concern, CARRP policy

22 forbids USCIS adjudications officers from granting the requested benefit in the absence of supervisory

23 approval and concurrence from a senior level USCIS official.

24 93. In Hamdi, 2012 WL 632397, when asked whether USCIS’s decision to brand naturalization

25 applicant Tarek Hamdi as a national security concern affected whether he was eligible for naturalization,

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1 a USCIS officer testified that “it doesn’t make him statutorily ineligible, but because he is a—he still has

2 a national security concern, it affects whether or not we can approve him.” The officer testified that,

3 under CARRP, “until [the] national security concern [is] resolved, he won’t get approved.”

4 94. Upon information and belief, USCIS routinely delays adjudication of applications subject to

5 CARRP when it cannot find a reason to deny the application. When an applicant files a mandamus

6 action to compel USCIS to finally adjudicate his or her pending application, it often has the effect of

7 forcing USCIS to deny a statutorily-eligible application on pretextual grounds because CARRP prevents

8 agency field officers from granting an application involving a national security concern.

9 95. CARRP effectively creates two substantive regimes for immigration application processing and

10 adjudication: one for those applications subject to heightened scrutiny and vetting under CARRP and

11 one for all other applications. CARRP rules and procedures create substantive eligibility criteria that

12 indefinitely delay adjudications and unlawfully deny immigration benefits to noncitizens who are

13 statutorily eligible and entitled by law.

14 96. At no point during the CARRP process is the applicant made aware that he or she has been

15 labeled a national security concern, nor is the applicant ever provided with an opportunity to respond to

16 and contest the classification.

17 97. Upon information and belief, CARRP results in unauthorized adjudication delays, often lasting

18 many years, and pre-textual denials of statutorily-eligible immigration applications.

19

B. Executive Order of January 27, 2017

20 98. President Donald Trump campaigned for election on promises to ban Muslims from coming to

21 the United States.

22 99. On December 7, 2015, the Trump campaign issued a press release stating that “Donald J. Trump

23 is calling for a total and complete shutdown of Muslims entering the United States until our country’s

24 representatives can figure out what is going on.” The press release is attached hereto as Exhibit A.

25 100. In March 2016, Defendant Trump said, “Frankly, look, we’re having problems with the Muslims,

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1 and we’re having problems with Muslims coming into the country.” Alex Griswold, Trump Responds to

2 Brussels Attacks: ‘We’re Having Problems with the Muslims,’ MEDIAITE, Mar. 22, 2016, available at

3 http://www.mediaite.com/tv/trump-responds-to-brussels-attack-were-having-problems-with-the-

4 muslims/ (last visited Feb. 1, 2017).

5 101. On June 14, 2016, Defendant Trump promised to ban all Muslims entering this country until “we

6 as a nation are in a position to properly and perfectly screen those people coming into our country.” The

7 transcript of his speech is attached hereto as Exhibit B.

8 102. In a speech on August 15, 2016, Defendant Trump said that the United States could not

9 “adequate[ly] screen[]” immigrants because it admits “about 100,000 permanent immigrants from the

10 Middle East every year.” Defendant Trump proposed creating an ideological screening test for

11 immigration applicants, which would “screen out any who have hostile attitudes towards our country or

12 its principles—or who believe that Sharia law should supplant American law.” During the speech, he

13 referred to his proposal as “extreme, extreme vetting.” A copy of his prepared remarks is attached

14 hereto as Exhibit C. A video link to the delivered speech is available at: https://www.c-

15 span.org/video/?413977-1/donald-trump-delivers-foreign-policy-address (quoted remarks at 50:46).

16 103. During an August 2016 speech, Michael Flynn, who is President Trump’s former National

17 Security Advisor, called Islam “a political ideology,” suggesting it is not a religion, and called it “a

18 vicious cancer inside the body of 1.7 billion people on this planet and it has to be excised.” A copy of a

19 news article reporting this speech is attached hereto as Exhibit D. A video link with clips of his speech

20 is available at: http://www.cnn.com/2016/11/22/politics/kfile-michael-flynn-august-speech/.

21 104. On January 20, 2017, Donald Trump was inaugurated as the President of the United States.

22 105. In his first television appearance as President, he again referred to his plan for “extreme vetting.”

23 The transcript of this interview is attached hereto as Exhibit E.

24 106. On January 27, 2017, one week after taking office, Defendant Trump signed the First EO,

25 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The Executive

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1 Order is attached hereto as Exhibit F. On information and belief, and in light of the statements by Mr.

2 Trump and his advisors set forth above, the First EO was intended to target Muslims.

3 107. Citing the threat of terrorism committed by foreign nationals, the First EO directed a variety of

4 changes to the processing of certain immigration benefits. Most relevant to the instant action was

5 Section 3, which fell within a section entitled “Suspension of Issuance of Visas and Other Immigration

6 Benefits,” in which President Trump ordered, in Section 3(a), an immediate “review to determine the

7 information needed from any country to adjudicate any visa, admission, or other benefit under the INA

8 (adjudications) in order to determine that the individual seeking the benefit is who the individual claims

9 to be and is not a security or public-safety threat.” In Section 3(c), the order then explained that to

10 reduce the burden of the reviews described in Section 3(a), “immigrant and nonimmigrant entry into the

11 United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C.

12 § 1187(a)(12), would be detrimental to the interests of the United States,” and that Defendant Trump

13 was therefore “suspend[ing] entry into the United States, as immigrants and nonimmigrants, of such

14 persons for 90 days from the date of this order.”

15 108. There were seven countries that fit the criteria in 8 U.S.C. § 1187(a)(12): Iraq, Iran, Libya,

16 Somalia, Sudan, Syria, and Yemen. The populations of those countries are overwhelmingly Muslim.

17 109. The First EO purported to rely on 8 U.S.C. § 1182(f) for the authority to suspend entry into the

18 United States.

19 110. On information and belief, USCIS relied on Section 3 of the First EO to subsequently suspend

20 processing of all immigrant visas and immigration benefits applications, including all pending petitions,

21 applications, or requests involving citizens or nationals of the seven targeted countries with the

22 exception of naturalization applications.

23 111. Section 4 of the First EO ordered the creation of a screening program for all immigration benefits

24 applications, which would seek to identify individuals “who are seeking to enter the United States on a

25 fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their

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1 admission” and “a process to evaluate the applicant’s likelihood of becoming a positively contributing

2 member of society and the applicant’s ability to make contributions to the national interest.”

3 112. Sections 5(a) and (b) of the First EO suspended the U.S. Refugee Admissions Program in its

4 entirety for 120 days and then, upon its resumption, directed the program to prioritize refugees who

5 claim persecution on the basis of religious-based persecution, “provided that the religion of the

6 individual is a minority religion in the individual’s country of nationality.” Section 5(e) stated that

7 notwithstanding the suspension of the Refugee Program, on a case-by-case basis, the United States may

8 admit refugees “only so long as they determine that the admission of such individuals as refugees is in

9 the national interest—including when the person is a religious minority in his country of nationality

10 facing religious persecution.”

11 113. In a January 27, 2017, interview with the Christian Broadcasting Network, President Trump

12 confirmed his intent to prioritize Christians in the Middle East for admission as refugees. A copy of the

13 report of this interview is attached hereto as Exhibit G (David Brody: “As it relates to persecuted

14 Christians, do you see them as kind of a priority here?” President Trump: “Yes.”).

15

C. Executive Order of March 6, 2017

16 114. On January 30, 2017, the State of Washington filed a lawsuit in this district seeking to enjoin

17 application of the First EO. Complaint for Declaratory and Injunctive Relief, Washington v. Trump, No.

18 2:17-cv-00141-JLR, ECF 1 (W.D. Wash. Jan. 30, 2017). On February 3, Judge James L. Robart granted

19 the State of Washington’s motion for a temporary restraining order, which enjoined enforcement of

20 Sections 3(a), 5(a)-(c), and 5(e) of the First EO nationwide during the pendency of the case. Temporary

21 Restraining Order, Washington v. Trump, No. 2:17-cv-00141-JLR, ECF 52, 2017 WL 462040 (W.D.

22 Wash. Feb. 3, 2017). Defendant Trump subsequently lashed out at the “so-called judge” who granted

23 the temporary restraining order, calling the court’s opinion “ridiculous” and predicting it would be

24 overturned. Donald Trump (@realDonaldTrump), TWITTER (Feb. 4, 2017, 05:12 AM),

25 https://twitter.com/realDonaldTrump/status/827867311054974976. To the contrary, the Ninth Circuit

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1 Court of Appeals— in a unanimous per curiam opinion—denied the government’s motion for an

2 emergency stay of the district court’s temporary restraining order. Washington v. Trump, 847 F.3d 1151

3 (9th Cir. 2017).

4 115. In response to the Ninth Circuit’s decision, Defendant Trump simultaneously vowed to

5 “vigorously defend[] this lawful order [First EO],” while “going further” to “issue[] a new executive

6 action . . . that will comprehensively protect our country.” See Aaron Blake, Donald Trump’s

7 combative, grievance-filled news conference, annotated, THE WASHINGTON POST at 5-6, 28 (Feb. 16,

8 2017) available at https://www.washingtonpost.com/news/the-fix/wp/2017/02/16/donald-trumps-

9 grievance-filled-press-conference-annotated/?utm_term=.696842f824c0. “Extreme vetting will be put

10 in place,” Defendant Trump promised, “and it already is in place in many places.” Id. Later during the

11 same press conference, Defendant Trump again addressed the forthcoming Second EO, noting “we can

12 tailor the [executive] order to that [Ninth Circuit] decision and get just about everything, in some ways,

13 more.” Id.

14 116. That same day, the government clarified in a brief to the Ninth Circuit that “[r]ather than

15 continuing this litigation, the President intends in the near future to rescind the [First Executive] Order

16 and replace it with a new . . . Executive Order.” Supplemental Brief on En Banc Consideration at 4,

17 Washington v. Trump, No. 17-35105 (9th Cir. Feb. 16, 2017).

18 117. In the days that followed, Defendant Trump’s senior policy advisor, Stephen Miller, confirmed

19 that though the new executive order would have “minor technical differences,” “[f]undamentally,” it

20 would achieve “the same basic policy outcome for the county.” See Miller: New order will be

21 responsive to judicial ruling; Rep. Don DeSantis: Congress has gotten off to a slow start at 2 (Feb. 21,

22 2017), available at http://www.foxnews.com/transcript/2017/02/21/miller-new-order-will-be-

23 responsive-to-judicial-ruling-rep-ron-desantis/.

24 118. Similarly, White House Press Secretary Sean Spicer noted that though “the second executive

25 order attempts to address the court’s concerns that they made, the goal is obviously to maintain the way

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1 that we did it the first time because we believe that the law is very clear about giving the President the

2 authority that he needs to protect the country.” See Press Briefing by Press Secretary Sean Spicer,

3 2/27/2017, #17, The White House at 26-27 (Feb. 27, 2017), available at

4 https://www.whitehouse.gov/the-press-office/2017/02/27/press-briefing-press-secretary-sean-spicer-

5 2272017-17.

6 119. As promised, on March 6, 2017, Defendant Trump issued a Second EO, which espouses the

7 same discriminatory policy and effect as the First EO. The Second EO revoked the First EO as of its

8 March 16, 2017 effective date. Second EO § 13. The Second EO is attached hereto as Exhibit I.

9 120. The Second EO modifies the First EO in two relevant ways. First, whereas the First EO banned

10 entry into the United States for 90 days or more of foreign nationals from seven countries, the Second

11 EO omits Iraq—bringing the number of countries affected by this entry bar down to six (Iran, Libya, 12 Somalia, Sudan, Syria, and Yemen). Id. §§ 1(f),1(g), 2(c).3 Second, the Second EO clarifies that the

13 90-day entry bar applies only to foreign nationals who: (1) are outside of the United States on the

14 effective date of the Second EO; (2) did not have a valid visa at 5:00 p.m., eastern standard time on

15 January 27, 2017; and (3) do not have a valid visa on the effective date of the Second EO. Id. §3(a).

16 121. Despite these changes, however, the same intent and effect of unlawfully discriminating against

17 Muslim immigrants underlying the First EO similarly underlies the Second EO. On information and

18 belief, and in light of the statements made by Defendant Trump and his advisors set forth above, the

19 Second EO was intended to continue the First EO’s intent to target Muslims.

20 122. Indeed, the Second EO retains in almost identical form the provisions from the First EO that are

21 central to Plaintiffs’ allegations in this case.

22 123. Section 2(a) of the Second EO, like Section 3(a) of the First EO, instructs the Secretary of

23 Homeland Security to “conduct a worldwide review to identify whether, and if so what, additional

24 3 Though, as explained below in paragraph 126, this exclusion of Iraq from the 90-day entry bar is

25

tempered by the Second EO’s simultaneous provision of heightened scrutiny to applications for visas, admission or other immigration benefits made by Iraqi nationals.

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1 information will be needed from each foreign country to adjudicate an application by a national of that

2 country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that

3 the individual is not a security or public-safety threat.” Section 2(b) specifies that the Secretary of

4 Homeland Security shall report on the results of this review within 20 days of the effective date of the

5 Second EO. Compare First EO § 3(b), with Second EO § 2(b).

6 124. In order to “reduce investigative burdens” while this “worldwide review” is ongoing, Section

7 2(c) of the Second EO demands that “the entry into the United States of nationals of those six countries

8 be suspended for 90 days.” Compare First EO §3(c), with Second EO § 2(c).

9 125. Moreover, if these countries do not supply the additional information identified by the Secretary

10 of Homeland Security within 50 days of notification, the Secretary of Homeland Security “shall submit

11 to the President a list of countries recommended for inclusion in a Presidential proclamation that would

12 prohibit the entry of appropriate categories of foreign nationals” of these countries. Compare First EO

13 §§ 3(d), 3(e), with Second EO §§ 2(d), 2(e).

14 126. Notably, Section 4 of the Second EO applies heightened scrutiny to immigration applications

15 received from Iraqi nationals. Section 4 specifies that applications for “a visa, admission, or other

16 immigration benefit” made by Iraqi nationals must still be subjected to “thorough review” to determine

17 whether the applicant has any connections to ISIS or any other terrorist organization or may be a

18 terrorist or national security threat. Accordingly, though Iraqi nationals are exempted from the 90-day

19 entry bar outlined in Section 2(c), they continue to be targeted under Section 4.

20 127. Additionally, Section 5 of the Second EO demands the creation of the same “extreme vetting”

21 program outlined in Section 4 of the First EO. The Second EO specifies that “[t]he Secretary of State,

22 the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence

23 shall implement a program, as part of the process for adjudications, to identify individuals who seek to

24 enter the United States on a fraudulent basis, who support terrorism, violent extremism, acts of violence

25 toward any group or class of people within the United States, or who present a risk of causing harm

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1 subsequent to their entry.” Compare First EO §4(a), with Second EO § 5(a). Section 5 further envisions

2 “[t]his program shall include the development of a uniform baseline for screening and vetting standards

3 and procedures” and applies to both admission and all “other immigration benefits.” Second EO § 5(a).

4 128. Finally, Section 6 of the Second EO, like Section 5 of the First EO, “suspend[s] travel of

5 refugees into the United States” and “suspend[s] decisions on applications for refugee status, for 120

6 days.” Compare First EO § 5(a), with Second EO § 6(a). Following this 120-day suspension, “the

7 Secretary of Homeland Security shall resume making decisions on applications for refugee status only

8 for stateless persons and nationals of countries for which the Secretary of State, the Secretary of

9 Homeland Security, and the Director of National Intelligence have jointly determined that the additional

10 procedures implemented pursuant to this subsection are adequate to ensure the security and welfare of

11 the United States.” Second EO § 6(a). Notably, the Second EO removed the First EO’s explicit

12 preference for refugees who claim persecution based on their ascription to a minority religion. Compare

13 First EO §§ 5(b), 5(e), with Second EO §§ 6(a), 6(c). The Second EO further purports to claim that the

14 First EO “did not provide a basis for discriminating for or against members of any particular religion,”

15 and that “[w]hile that order allowed for prioritization of refugee claims from members of persecuted

16 religious minority groups, that priority applied to refugees from every nation, including those in which

17 Islam is a minority religion.” Second EO § 1(b)(iv).

18 129. Just hours before the Second EO was scheduled to go into effect, on March 15, 2017 the U.S.

19 District Court for the District of Hawaii granted a nationwide temporary restraining order, blocking

20 application of Sections 2 and 6 of the Second EO during the pendency of that legal challenge. Order

21 Granting Motion for Temporary Restraining Order, Hawaii v. Trump, No. 17-00050 DKW-KSC (D.

22 Haw. Mar. 15, 2017).

23 130. Hours later, a second federal judge in Maryland issued a nationwide preliminary injunction,

24 blocking Section 2(c) of the Second EO from going into effect. Memorandum Opinion, Int’l Refugee

25 Assistance Project v. Trump, No. TDC-17-0361 (D. Md. Mar. 15, 2017).

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1 131. No court has yet enjoined the “extreme vetting” provisions, including Sections 4 and 5, of the

2 Second EO.

3

D. Impact of Executive Orders on Implementation of CARRP

4 1. Ban on the Adjudication of Immigration Benefits Applications for Immigrants from the

5

Targeted Countries

6 132. After the issuance of the First EO, at least two department heads within USCIS sent internal

7 communications barring any final action on any petition, benefits application, or requests involving

8 citizens or nationals of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya.

9 133. On January 28, 2017, Associate Director of Service Center Operations for USCIS, Donald

10 Neufeld, issued instructions to Service Center directors and deputies in an email message directing the

11 suspension of the “adjudication of all applications, petitions or requests involving citizens or nationals of

12 the [seven] listed countries.” The email continues, “At this point there are no exceptions for any form

13 types, to include I-90s or I-765s. Please physically segregate any files that are impacted by this

14 temporary hold pending further guidance.” Photographs of the internal email communication are

15 attached hereto as Exhibit H.

16 134. In another email to staff from Daniel M. Renaud, Associate Director of Field Operations for

17 USCIS, on January 28, 2017, Mr. Renaud stated, “Effectively [sic] immediately and until additional

18 guidance is received, you may not take final action on any petition or application where the applicant is

19 a citizen or national of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya.” Alice Speri and Ryan

20 Devereaux, Turmoil at DHS and State Department, THE INTERCEPT, Jan. 30, 2017, available at

21 https://theintercept.com/2017/01/30/asylum-officials-and-state-department-in-turmoil-there-are-people-

22 literally-crying-in-the-office-here/. The email continued, “Offices are not permitted [to] make any final

23 decision on affected cases to include approval, denial, withdrawal, or revocation. Please look for

24 additional guidance later this weekend on how to process naturalization applicants from one of the seven

25 countries listed above who are currently scheduled for oath ceremony or whose N-400s have been

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1 approved and they are pending scheduling of oath ceremony.” Id.; see also Michael D. Shear and Ron

2 Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos, NEW YORK TIMES

3 (Jan. 29, 2017), available at https://www.nytimes.com/2017/01/29/us/politics/donald-trump-rush-

4 immigration-order-chaos.html.

5 135. On January 31, 2017, U.S. Customs and Border Protection, a subdivision of DHS, reported on its

6 website that the First EO does not apply to pending naturalization applications and that “USCIS will

7 continue to adjudicate N-400 applications for naturalization and administer the oath of citizenship

8 consistent with prior practices.” Protecting the Nation from Foreign Terrorist Entry into the United

9 States, CBP,

10 https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states.

11 136. Referencing the hold on adjudications for people from the seven countries subject to the First

12 EO, a USCIS official told The Intercept, “We know what is coming. These cases will all be denied after

13 significant waits.” Alice Speri and Ryan Devereaux, Turmoil at DHS and State Department, THE

14 INTERCEPT, Jan. 30, 2017.

15 137. This halt in USCIS adjudications took place pursuant to provisions of the First EO which also

16 appear, in similar form, in the Second EO. Implementation of the Second EO was enjoined before

17 Section 2 could go into effect. However, upon information and belief, USCIS similarly will apply the

18 Second EO to suspend adjudication of immigration benefits to people from its six targeted countries.

19 The application of the Second EO to USCIS immigration benefits applications will effectuate the intent

20 of the Second EO to target Muslims.

21

2. “Extreme Vetting” of Muslim Immigrants

22 138. As described above, Section 5 of the Second EO orders the Secretary of Homeland Security, the

23 Secretary of State, the Director of National Intelligence, and the Attorney General to “implement a

24 program, as part of the process for adjudications, to identify individuals . . . who present a risk of

25 causing harm.” The Second EO calls for the implementation of a “program [that] shall include the

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1 development of a uniform baseline for screening and vetting standards and procedures,” including “a

2 mechanism to assess whether applicants may commit, aid, or support any kind of violent, criminal, or

3 terrorist acts after entering the United States,” and “any other appropriate means for ensuring . . . a

4 rigorous evaluation of all grounds . . . for denial of…immigration benefits.”

5 139. Similarly, Section 4 of the Second EO applies heightened scrutiny to immigration applications

6 received from Iraqi nationals. Section 4 specifies that applications for “a visa, admission, or other

7 immigration benefit” made by Iraqi nationals must still be subjected to “thorough review” to determine

8 whether the applicant has any connections to ISIS or any other terrorist organization or may be a

9 terrorist or national security threat. Accordingly, though Iraqi nationals are exempted from the 90-day

10 entry bar outlined in Section 2(c), they continue to be targeted under Section 4.

11 140. In conjunction with the issuance of the Second EO, Defendant Trump published a

12 “Memorandum for the Secretary of State, the Attorney General, the Secretary of Homeland Security” on

13 the subject of “Implementing Immediate Heightened Screening and Vetting of Applications for Visas

14 and Other Immigration Benefits….” March 6, 2017, available at https://www.whitehouse.gov/the-press-

15 office/2017/03/06/memorandum-secretary-state-attorney-general-secretary-homeland-security. In this

16 memorandum, Defendant Trump cautions that “this Nation cannot delay the immediate implementation

17 of additional heightened screening and vetting protocols and procedures for issuing visas to ensure that

18 we strengthen the safety and security of our country.” Accordingly, he instructs the Secretary of State

19 and the Secretary of Homeland Security, in conjunction with the Attorney General, to “implement

20 protocols and procedures as soon as practicable that in their judgment will enhance the screening and

21 vetting of applications for visas and all other immigration benefits.” Moreover, this implementation

22 shall begin immediately, “[w]hile th[e] comprehensive review” ordered by Section 2 of the Second EO

23 “is ongoing.” The memorandum also instructs government officials to “rigorously enforce all existing

24 grounds of inadmissibility and to ensure subsequent compliance with related laws after admission.”

25 141. Upon information and belief, the “extreme vetting” program required by the Second EO, as

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1 enhanced by Defendant Trump’s accompanying memorandum, will dramatically expand CARRP, an

2 existing program USCIS has implemented since April 2008.

3

B. Facts Specific To Each Plaintiff

4

Abdiqafar Wagafe

5 142. Plaintiff Abdiqafar Aden Wagafe is a thirty-two-year-old Somali national who currently resides

6 in SeaTac, Washington.

7 143. Between 2001 and 2007, Mr. Wagafe lived in refugee camps and temporary refugee housing in

8 Kenya and Ethiopia.

9 144. On May 24, 2007, he moved to the United States with nine family members and was admitted as

10 a refugee. He has lived in the United States since then.

11 145. After arriving in the United States, Mr. Wagafe briefly stayed in Minneapolis, Minnesota with

12 his brother. He then moved to Seattle, where his two sisters and another brother live.

13 146. All of the nine family members who moved to the United States with Mr. Wagafe have become

14 U.S. citizens.

15 147. From July 2007 until February 2011, Mr. Wagafe worked for Delta Global Services until

16 widespread layoffs left him without a job. Since February 2011, he has worked at a Somali restaurant,

17 which he currently co-owns and manages.

18 148. On May 28, 2008, Mr. Wagafe filed an application for refugee adjustment of status to become an

19 LPR.

20 149. USCIS granted his application on November 3, 2008, retroactively granting him LPR status as of

21 May 24, 2007, the date he was admitted to the U.S. as a refugee. See 8 C.F.R. § 209.1(e).

22 150. Mr. Wagafe filed his first application for naturalization on July 3, 2012. USCIS interviewed him

23 on October 29, 2012, but he failed the English-language portion of the exam. USCIS interviewed Mr.

24 Wagafe a second time on January 3, 2013, but he again failed the English writing portion of the exam.

25 He also did not understand English sufficiently to comprehend the Oath of Allegiance. On these bases,

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1 USCIS denied his first application for naturalization on January 9, 2013.

2 151. Mr. Wagafe has since improved his English skills significantly.

3 152. Mr. Wagafe filed a second application for naturalization on November 8, 2013. USCIS

4 scheduled his interview for February 25, 2014, but cancelled it on January 29, 2014 without explanation.

5 153. Mr. Wagafe made various inquiries concerning his case to USCIS, but did not receive any

6 explanation for the delay. USCIS responded to his queries in July 2015, instructing his attorney to have

7 patience and that the agency would let him know when the agency was ready to interview him. His

8 subsequent inquiries went unanswered.

9 154. On February 14, 2017—five days after Plaintiffs filed their motion for class certification in this

10 case—a USCIS officer suddenly informed Mr. Wagafe’s attorney that an interview had been scheduled

11 on his immigration application. At the interview, which occurred on February 22, 2017, the

12 immigration officer approved Mr. Wagafe’s application on the spot. Mr. Wagafe took the oath of

13 allegiance on March 2, 2017 and became a United States citizen on that same day. In sum, after keeping

14 his application on hold for three and a half years without explanation, the government processed and

15 approved Mr. Wagafe’s application within two weeks of Plaintiffs filing for class certification.

16 155. Mr. Wagafe resided continuously in the United States for at least five years preceding the date of

17 filing his application for naturalization, and has resided continuously within the United States from the

18 date of filing his application until the present.

19 156. Mr. Wagafe has never been convicted of a crime.

20 157. There is and was no statutory basis for denying his naturalization application.

21 158. Mr. Wagafe is Muslim and regularly attends mosque. He also frequently sends small amounts of

22 money to his relatives in Somalia, Kenya, and Uganda. He has been married to a woman in Uganda

23 since December 2015 and makes visits to see her. He had been unable to bring her to the United States

24 because of the delays in his case.

25 159. Mr. Wagafe’s immigration Alien file (“A-file”) makes clear that USCIS subjected his pending

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1 application to CARRP. The A-file states that a CARRP officer handled his case. In addition, a

2 document in the A-File shows that on December 8, 2013, there was a hit on Mr. Wagafe’s name in the

3 FBI Name Check and that the Name Check result contained “derogatory information.” The document

4 also states that Mr. Wagafe appears eligible for naturalization absent confirmation of national security

5 issues. The document then states that the case is being forwarded for external vetting.

6 160. Upon information and belief, Mr. Wagafe’s naturalization application was subject to CARRP or

7 its successor “extreme vetting” program, which caused the delay in adjudication of his naturalization

8 application, despite the fact that he was statutorily entitled to naturalize.

9 161. Mr. Wagafe suffered significant harm due to the delay in adjudication of his naturalization

10 application. Although he is married to a Ugandan woman, he was unable to bring her to live with him in

11 the United States, because, until he became a U.S. citizen, his wife did not qualify as an immediate

12 relative, see generally 8 U.S.C. § 1151, and thus could not avoid the waiting list for petitions filed by

13 lawful permanent residents on behalf of their spouses. Subjecting Mr. Wagafe’s application to CARRP

14 also harmed his professional options and prevented him from voting in local and national elections.

15

Mehdi Ostadhassan

16 162. Plaintiff Mehdi Ostadhassan is a thirty-three-year-old national of Iran. He resides in Grand

17 Forks, North Dakota.

18 163. Mr. Ostadhassan moved to the United States in 2009 on a student visa and studied at the

19 University of North Dakota. He earned his Ph.D. in Petroleum Engineering, and, after graduation, was

20 immediately hired by the University of North Dakota as an Assistant Professor of Petroleum

21 Engineering.

22 164. At the University of North Dakota, Mr. Ostadhassan met Bailey Bubach, a United States citizen.

23 In January 2014, they were married in a small religious ceremony in California, and then obtained their

24 marriage license in Grand Forks, North Dakota. Their first child was born in July 2016.

25 165. In February 2014, Ms. Bubach filed an immigrant visa petition (USCIS Form I-130) for Mr.

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1 Ostadhassan and he concurrently filed an application to adjust status (USCIS Form I-485) based upon

2 his marriage.

3 166. Mr. Ostadhassan has never been convicted of a crime.

4 167. USCIS scheduled Mr. Ostadhassan for an interview on May 19, 2014, but when he appeared for

5 the interview, USCIS informed him that it was cancelled.

6 168. USCIS rescheduled and conducted an interview almost a year and a half later, on September 24,

7 2015. At that interview, a USCIS officer told Mr. Ostadhassan that the agency still could not make a

8 decision and that it needed to complete further background and security checks. To date, Mr.

9 Ostadhassan is still waiting for a decision from USCIS.

10 169. Mr. Ostadhassan and Ms. Bubach are Muslim and active participants in their religious

11 community. Each year they donate to Muslim charities in accordance with the teachings of Islam. They

12 are both involved in the Muslim Student Association at the University of North Dakota. In addition,

13 they run a Muslim Sunday School. Mr. Ostadhassan also coordinates the Muslim Congress’s Koran

14 competition every year.

15 170. Upon information and belief, USCIS considers Mr. Ostadhassan a non-KST national security

16 concern and is subjecting him to CARRP. USCIS may have subjected Mr. Ostadhassan’s adjustment

17 application to CARRP because he has resided in and traveled through what the government considers

18 areas of known terrorist activity—namely, Iran—and because of his donations to Islamic charities and

19 involvement in the Muslim community.

20 171. In October 2014, an FBI agent contacted Mr. Ostadhassan and asked to meet to discuss his recent

21 trip to Iran to visit family. Mr. Ostadhassan declined to meet with the FBI, and his lawyer informed the

22 agent that any further communications should go through the attorney. The FBI has not contacted Mr.

23 Ostadhassan since.

24 172. Upon information and belief, the request for a visit by the FBI was a product of CARRP’s

25 deconfliction process.

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1 173. Upon information and belief, Mr. Ostadhassan’s application for adjustment of status is subject to

2 CARRP or its successor “extreme vetting” program, which has delayed the adjudication of his

3 application, despite the fact that he is statutorily eligible for adjustment of status.

4 174. As Mr. Ostadhassan is a citizen of Iran, one of the countries targeted in the First EO and Second

5 EO, USCIS suspended adjudication of his application for adjustment of status under the First EO and, on

6 information and belief, will suspend adjudication indefinitely under the Second EO.

7 175. Mr. Ostadhassan has been significantly harmed by the delay in adjudication of his adjustment of

8 status application. Because of his temporary nonimmigrant status, and without an approved adjustment

9 application, he cannot travel outside the United States. He recently was unable to travel to Iran to

10 introduce his U.S. citizen wife and infant to his Iranian family; his wife and child traveled to Iran

11 without him. He has also lost out on significant professional opportunities. He is a college professor,

12 and his unapproved adjustment application has prevented him from attending conferences overseas.

13 Due to the delay, he and his wife feel that their lives and future in the United States are suspended in

14 limbo, not knowing whether they have a future in the United States.

15

Hanin Omar Bengezi

16 176. Plaintiff Hanin Omar Bengezi is a 32-year-old Libyan national and Canadian citizen who

17 currently resides in Redmond, Washington. She is an elementary school substitute teacher.

18 177. Ms. Bengezi was born in Libya. She lived with her family in Slovenia from 1985 to 1990 and

19 then in Libya from 1990 to 1995.

20 178. Ms. Bengezi immigrated to Canada with her family in 1995, where she lived until she moved to

21 the United States.

22 179. She became a Canadian citizen in February 2012.

23 180. When Ms. Bengezi attempted to visit the U.S. as a Canadian citizen in May 2012 near Buffalo,

24 New York via the Western Hemisphere Travel Initiative, she and her accompanying family members

25 were refused entry.

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1 181. In 2012, Ms. Bengezi met her current husband, who is a U.S. citizen. Their relationship

2 blossomed and they were engaged in December 2012.

3 182. Her husband filed a Form I-129F, Petition for Alien Fiancée, with USCIS for Ms. Bengezi on

4 February 13, 2013.

5 183. USCIS approved the fiancée petition for Ms. Bengezi on May 31, 2013.

6 184. On December 16, 2013, Ms. Bengezi interviewed for her K-1 Fiancée visa at the U.S. embassy

7 in Montreal, Canada.

8 185. The U.S. embassy in Montreal issued Ms. Bengezi’s K-1 Fiancée visa on November 4, 2014.

9 186. Ms. Bengezi came to the U.S. on December 21, 2014, and got married on January 23, 2015 in

10 Lynnwood, Washington.

11 187. On February 5, 2015, Ms. Bengezi filed for Adjustment of Status to become an LPR with

12 USCIS.

13 188. USCIS has not scheduled an adjustment of status interview for Ms. Bengezi and her husband.

14 189. Ms. Bengezi has made various inquiries concerning her case to USCIS, but has not received an

15 explanation for the delay. USCIS last responded to her queries on December 19, 2016, informing her

16 attorney, “We continue to work on this application and understand your client is concerned about the

17 progress of her case. The application will be scheduled for interview when it is interview ready; we will

18 contact [you] should we need any further information prior to scheduling.” Her subsequent inquiries

19 have gone unanswered.

20 190. Ms. Bengezi is Muslim.

21 191. Ms. Bengezi has never been convicted of or arrested for a crime.

22 192. There is no statutory basis for denying Ms. Bengezi’s adjustment of status application.

23 193. When Ms. Bengezi flies, she is required to obtain her airplane ticket at the airline counter

24 (instead of being able to check in online), her ticket is marked “SSSS” for “Secondary Security

25 Screening Selection,” and she is required to undergo additional and unnecessary secondary screening.

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1 194. When Ms. Bengezi travels through land border crossings, such as the CBP Blaine Station, she is

2 referred to secondary inspection for screening and additional questioning.

3 195. Ms. Bengezi’s Canadian family members continue to be refused entry to the U.S. and denied

4 visitor visas without explanation.

5 196. USCIS’s delays in adjudicating Ms. Bengezi’s case, the additional scrutiny when traveling by air

6 or when crossing the border, and the refusal to issue visitor visas to her family members make it clear

7 that USCIS has subjected her pending application to CARRP or its successor “extreme vetting”

8 program. This has delayed the adjudication of her application, despite the fact that she is statutorily

9 eligible for adjustment of status.

10 197. As Ms. Bengezi is a citizen of Libya, one of the countries targeted in the First EO and Second

11 EO, USCIS suspended adjudication of her application for adjustment of status under the First EO and,

12 on information and belief, will suspend adjudication indefinitely under the Second EO.

13 198. Ms. Bengezi has been significantly harmed by the delay in adjudication of her adjustment of

14 status application. Because of her temporary nonimmigrant status, and without an approved adjustment

15 application, she has had a difficult time traveling outside of the United States. This has negatively

16 impacted her ability to visit her family. Additionally, the delay has impacted her ability to obtain full-

17 time employment due to the need to regularly renew her employment authorization, and has also limited

18 her ability to pursue other professional opportunities. It has prevented her from establishing a normal

19 life in the United States by interfering with her ability to enter into routine transactions such as, inter

20 alia, obtaining loans and signing leases. The delay has also caused much stress and anxiety for Ms.

21 Bengezi, who is uncertain whether she and her husband will be allowed to live together as a family in

22 the United States.

23

24

25

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1

Mushtaq Abed Jihad

2 199. Plaintiff Mushtaq Abed Jihad is a 44-year-old refugee from Iraq who currently resides in Renton,

3 Washington.

4 200. In April 2005, Mr. Jihad, then a successful business owner, was abducted from one of his stores

5 in Iraq. He was beaten and tortured before ultimately escaping.

6 201. Mr. Jihad challenged his attackers in court, which led to death threats. Once, when leaving

7 court, there was an attempt on his life, and he was shot.

8 202. In April 2007, the day the court would decide Mr. Jihad’s case against his kidnappers, Mr. Jihad

9 and his family were again victims of a vicious attack. As he stepped out of the front door of his house

10 with his one-week-old son in his arms, his home was rocked by an explosion. He lost his leg and his

11 newborn son was killed. In the aftermath of the explosion, the attackers also shot Mr. Jihad numerous

12 times. The rest of Mr. Jihad’s family managed to escape the attack.

13 203. Once released from the hospital where had stayed for several months following that incident, he

14 and his family fled Iraq to Syria. The United States eventually accepted them as refugees for

15 resettlement.

16 204. In August 2008, Mr. Jihad and his family entered the United States and resettled in the Tri-Cities

17 area of Washington.

18 205. His lawful permanent residence became effective as of the date of his arrival in the U.S.

19 206. Mr. Jihad filed his N-400 Application for Naturalization on July 1, 2013.

20 207. On his N-400 Application Mr. Jihad affirmatively responded that he seeks to change his

21 surname. He no longer wishes to use his family name because of the unrelenting negative reactions

22 directed at him every time he is required to use his name.

23 208. On July 26, 2013, Mr. Jihad completed his biometrics appointment for his naturalization

24 application.

25

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1 209. Approximately one week after his biometrics appointment, two FBI agents and an interpreter

2 visited Mr. Jihad. The agents questioned Mr. Jihad extensively about his history and why he had elected

3 to change his name on his naturalization application. Multiple times Mr. Jihad attempted to correct the

4 interpreter when he felt he was not being interpreted correctly, but the corrections were rejected.

5 210. In October 2013, Mr. Jihad started to feel ill and was subsequently diagnosed with leukemia.

6 211. Because he is not a U.S. citizen, Mr. Jihad’s social security disability support terminated in 2015,

7 after he had been present in the U.S. for more than 7 years.

8 212. Following his diagnosis, Mr. Jihad moved to the Seattle area due to his ongoing chemotherapy

9 treatments and his need to support his family. His wife and four daughters still live in Richland,

10 Washington.

11 213. Mr. Jihad does odd jobs between chemotherapy treatments for his leukemia in Seattle.

12 Currently, he is a driver for Lyft.

13 214. Mr. Jihad has never left the U.S. since arriving and has no criminal history.

14 215. There is no statutory basis for denying his naturalization application.

15 216. USCIS has repeatedly told Mr. Jihad that his case is pending due to security checks.

16 217. Upon information and belief, the FBI’s visit and interrogation of Mr. Jihad about his pending

17 naturalization application is the product of CARRP’s deconfliction process and indicate that USCIS has

18 subjected his application to CARRP or its successor “extreme vetting” program. This has delayed the

19 adjudication of his application, despite the fact that he is statutorily eligible to naturalize.

20 218. As Mr. Jihad is a citizen of Iraq, one of the countries targeted in the First EO, USCIS suspended

21 adjudication of his application for adjustment of status under the First EO.

22 219. Mr. Jihad has been significantly harmed by the delay in adjudication of his naturalization

23 application. With every passing day, Mr. Jihad’s health and treatment are being materially harmed by

24 USCIS’s delay. His and his family’s financial prospects are also being negatively affected, creating a

25 strain on the family. The delay has also prevented him from voting in local and national elections.

26
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1

Sajeel Manzoor

2 220. Plaintiff Sajeel Manzoor is a 40-year-old Pakistani national and lawful permanent resident of the

3 United States who currently resides with his family in Newcastle, Washington.

4 221. Mr. Manzoor came to the United States on August 16, 2001 as a non-immigrant F-1 student to

5 study for a Master of Science in Marketing Research at the University of Texas at Arlington.

6 222. In 2003, Mr. Manzoor was hired by Taylor Nelson Sofres and granted his first H-1B visa.

7 223. Mr. Manzoor married his wife on May 11, 2005 in Lahore, Pakistan, and has two children with

8 her. Both of his children are United States citizens.

9 224. On January 29, 2007, Immigration and Customs Enforcement (“ICE”) agents interviewed Mr.

10 Manzoor about his employment history, travel, and contacts inside and outside of the United States.

11 225. Mr. Manzoor’s H-1B visa was temporarily administratively revoked while the Compliance

12 Enforcement Unit in the National Security Investigations Division at ICE Headquarters reviewed his

13 file. His visa was automatically reinstated when he was found in compliance and the case was closed on

14 or about July 3, 2007.

15 226. On October 18, 2007, Mr. Manzoor applied for adjustment of status based on a business petition.

16 227. On September 18, 2010, Mr. Manzoor was granted lawful permanent resident status.

17 228. On November 30, 2015, Mr. Manzoor filed his N-400 Application for Naturalization.

18 229. Mr. Manzoor has not been scheduled for an interview.

19 230. On December 2, 2016, the Acting Field Office Director for the Seattle Field Office confirmed

20 that Mr. Manzoor’s case is still pending background checks.

21 231. On December 14, 2016, the Seattle Field Office Directory confirmed that the background checks

22 were still pending and that Mr. Manzoor’s wife’s naturalization case would be held until after his

23 application was complete.

24 232. Mr. Manzoor does not have a criminal history.

25 233. There is no statutory basis for denying his naturalization application.

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1 234. Upon information and belief, USCIS’s three-year delay in adjudicating his adjustment of status

2 and ICE’s National Security Investigations Division’s additional scrutiny and review indicate that

3 USCIS has subjected Mr. Manzoor’s pending naturalization application to CARRP or its successor

4 “extreme vetting” program. This has delayed the adjudication of his application, despite the fact that he

5 is statutorily entitled to naturalize.

6 235. Mr. Manzoor has been significantly harmed by the delay in adjudication of his naturalization

7 application. He has not been able to travel due to fear of not being allowed back into the country,

8 causing him to miss his grandfather’s funeral and his sister-in-law’s engagement, among other important

9 family events. Feeling that his immigration status is in limbo and that he is being discriminated against

10 on the basis of his national origin and religion have also caused him extreme stress and anxiety.

11 Additionally, the delay has prevented him from voting in local and national elections.

12

CLASS ACTION ALLEGATIONS

13 236. Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), Plaintiffs bring this action on

14 behalf of themselves and all other similarly-situated individuals. Plaintiffs do not bring claims for

15 compensatory relief. Instead, Plaintiffs seek injunctive relief broadly applicable to members of the

16 Plaintiff Classes, as defined below. The requirements for Rule 23 are met with respect to the classes

17 defined below.

18 237. Plaintiffs seek to represent the following nationwide classes:

19

A Muslim Ban Class defined as:

A national class of all persons currently and in the future (1) who are in the United States,

20

(2) have or will have an application for an immigration benefit pending before USCIS,

21

and (3) are a citizen or national of Syria, Iran, Yemen, Somalia, Sudan, or Libya.

22

An Extreme Vetting Naturalization Class defined as:

A national class of all persons currently and in the future (1) who have or will have an

23

application for naturalization pending before USCIS, (2) that is subject to CARRP or a

24

successor “extreme vetting” program, and (3) that has not been or will not be adjudicated by USCIS within six months of having been filed.

25 An Extreme Vetting Adjustment of Status Class defined as:

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A national class of all persons currently and in the future (1) who have or will have an

1

application for adjustment of status pending before USCIS, (2) that is subject to CARRP

2

or a successor “extreme vetting” program, and (3) that has not been or will not be

adjudicated by USCIS within six months of having been filed.

3 238. Plaintiffs Wagafe, Ostadhassan, and Bengezi are adequate class representatives of the Muslim

4 Ban Class. Plaintiffs Wagafe, Jihad, and Manzoor are adequate representatives of the Extreme Vetting

5 Naturalization Class. Plaintiffs Ostadhassan and Bengezi are adequate representatives of the Extreme

6 Vetting Adjustment of Status Class.

7 239. The Proposed Classes are each so numerous that joinder of all members is impracticable.

8 240. Although Plaintiffs do not know the total number of people from the six countries targeted in the

9 Second EO who have pending immigration benefits applications at any given time, publicly available

10 USCIS data reveals that in 2015, there were 83,147 people from those six countries who were granted

11 applications for naturalization, lawful permanent residence, asylum, and refugee admission. U.S.

12 Department of Homeland Security, Office of Immigration Statistics, 2015 Yearbook of Immigration

13 Statistics, available at

14 https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_2015.pdf

15 (showing 31,385 people granted lawful permanent residence (table 3), 30,644 granted refugee admission

16 (table 14), 1,731 granted asylum (table 17) and 19,387 persons naturalized (table 21) from the six

17 countries targeted by the Second EO).

18 241. Similarly, although Plaintiffs do not know the total number of people subject to CARRP or any

19 successor “extreme vetting” program at any given time, USCIS data reveals that between Fiscal Year

20 2008 and Fiscal Year 2012, more than 19,000 people from twenty-one Muslim-majority countries or

21 regions were subjected to CARRP. Upon information and belief, between 2008 and 2016, USCIS

22 opened 41,805 CARRP cases.

23 242. This data includes individuals with pending naturalization and adjustment of status applications.

24 For example, in March 2009, there were 1,437 adjustment of status (I-485) applications subject to

25 CARRP that had been pending for at least six months and 1,065 naturalization (N-400) applications

26
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1 subject to CARRP that had been pending for at least six months.

2 243. The exact number of individuals subject to the First EO or Second EO, CARRP, or any successor

3 “extreme vetting” program at any given time fluctuates as applications are filed and USCIS applies these

4 policies and practices to the applications. Moreover, members of the class reside in various locations

5 across the country. For these and other reasons, joinder of the members of the Classes would create

6 substantial challenges to the efficient administration of justice. Joinder is thus impracticable here.

7 244. In addition, there are questions of law and fact common to the members of the Classes. The

8 Muslim Ban and Extreme Vetting Adjustment of Status Class are subject to Defendants’ unauthorized

9 suspension of immigration benefits adjudications. All classes are subject to CARRP (or a successor

10 “extreme vetting” program). Accordingly, common questions of law and fact include, but are not

11 limited to, the following:

12

 Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

13

Second EO violates Defendants’ duty to timely adjudicate immigration benefit applications

authorized by the Immigration and Nationality Act;

14

 Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

15

First or Second EO to Plaintiff Wagafe’s, Plaintiff Ostadhassan’s and Plaintiff Bengezi’s

16

applications violates the Establishment Clause of the First Amendment to the United States

Constitution by not pursuing a course of neutrality with regard to different religious faiths;

17

 Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

18

Second EO and application of CARRP (or a successor “extreme vetting” program) to Plaintiffs’

applications discriminates against Plaintiffs on the basis of their country of origin and without

19

sufficient justification, and therefore violates the equal protection component of the Due Process

20

Clause of the Fifth Amendment to the United States Constitution;

21  Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

Second EO and application of CARRP (or a successor “extreme vetting” program) to Plaintiffs’

22

applications is substantially motivated by animus toward—and has a disparate effect on—

23

Muslims in violation of the equal protection component of the Due Process Clause of the Fifth Amendment to the United States Constitution;

24  Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

25

Second EO and application of CARRP (or a successor “extreme vetting” program) to Plaintiffs’

applications for immigration benefits, for which they are statutorily eligible and to which they

26
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are legally entitled, constitutes an arbitrary denial in violation of Plaintiffs’ right to substantive

1

due process under the Fifth Amendment to the United States Constitution;

2  Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

3

Second EO and application of CARRP (or a successor “extreme vetting” program) to Plaintiffs’

applications violates the INA by creating additional, non-statutory, substantive criteria that must

4

be met prior to a grant of a naturalization or adjustment of status application;

5

 Whether Defendants’ unauthorized suspension of immigration benefits adjudications under the

6

Second EO and application of CARRP (or a successor “extreme vetting” program) to Plaintiffs’

applications violates the APA, 5 U.S.C. § 706, as final agency action that is arbitrary and

7

capricious, contrary to constitutional law, and in excess of statutory authority;

8

 Whether Defendants’ application of CARRP (or a successor “extreme vetting” program) to

9

Plaintiffs’ applications constitutes a substantive rule and, as a result, Defendants violated the

APA, 5 U.S.C. § 553, when they promulgated CARRP without providing a notice-and-comment

10

period prior to implementing it;

11  Whether Defendants’ failure to give Plaintiffs notice of their classification under CARRP (or a

12

successor “extreme vetting” program), a meaningful explanation of the reason for such classification, and a process by which Plaintiffs can challenge their classification violates the

13

Due Process Clause of the Fifth Amendment to the United States Constitution; and

14  Whether Defendants’ application of CARRP (or a successor “extreme vetting” program) to

Plaintiffs Wagafe, Jihad, and Manzoor’s applications violates the Uniform Rule of

15

Naturalization, Article I, Section 8, Clause 4 of the United States Constitution by establishing

16

criteria for naturalization not authorized by Congress.

17 245. The claims of the named Plaintiffs are typical of their respective Plaintiff Classes. Plaintiffs

18 know of no conflict between their interests and those of the Plaintiff Classes they seek to represent. In

19 defending their own rights, the named Plaintiffs will defend the rights of all proposed Plaintiff Class

20 members fairly and adequately. The members of the Classes are readily ascertainable through notice

21 and discovery.

22 246. Plaintiffs are represented by counsel with particular expertise in immigration and constitutional

23 law, and extensive experience in class action and other complex litigation.

24 247. Defendants have acted or refused to act on grounds generally applicable to each member of the

25 Plaintiff Classes by applying additional non-statutory, substantive requirements for naturalization and

26
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1 adjustment of status, including CARRP (or its successor “extreme vetting” program) to their

2 immigration applications and the First EO and/or Second EO—thus causing them to have suffered and

3 continue to suffer injury in the form of unreasonable delays and denials of their applications.

4 248. A class action is superior to other methods available for the fair and efficient adjudication of this

5 controversy because joinder of all members of the Classes is impracticable. Absent the relief they seek

6 here, there would be no other way for the Plaintiff Class members to individually redress the wrongs

7 they have suffered and will continue to suffer.

8

CAUSES OF ACTION

9

FIRST CLAIM FOR RELIEF

10

Immigration and Nationality Act and the Administrative Procedure Act

11

(Plaintiffs Wagafe, Ostadhassan and Bengezi on behalf of themselves and the Muslim Ban

12

Class)

13 249. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

14 250. Section 212(f) of the Immigration and Nationality, 8 U.S.C. § 1182(f), is entitled “Suspension of

15 Entry or Imposition of Restrictions by President.” That provision authorizes the President to suspend

16 entries or impose restrictions on entries. That provision does not authorize the President to suspend

17 adjudication of immigration petitions, applications, or requests of any class of persons.

18 251. Defendants have interpreted the First EO and will interpret the Second EO to authorize the

19 suspension of immigration petitions, applications, or requests involving Plaintiff Wagafe, Plaintiff

20 Ostadhassan, Plaintiff Bengezi, and members of the Muslim Ban Class.

21 252. Accordingly, Defendants will suspend adjudication of such immigration benefits petitions,

22 applications, or requests.

23 253. Defendants’ actions in suspending adjudications will violate 8 U.S.C. § 1182(f) and will be

24 arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to

25 constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or

26
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1 limitations, or short of statutory right; and without observance of procedure required by law, in violation

2 of the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)-(D).

3

SECOND CLAIM FOR RELIEF

4

Mandamus (28 U.S.C. § 1361)

5 (Plaintiffs Wagafe, Ostadhassan and Bengezi on behalf of themselves and the Muslim Ban Class)

6 254. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

7 255. Defendants have a duty to adjudicate all immigrant benefits petitions, applications or requests

8 authorized by the Immigration and Nationality Act, implementing regulations, or other law.

9 256. The First and Second EOs do not authorize the suspension of adjudication of immigration

10 benefits petitions, applications, or requests.

11 257. Defendants have interpreted the First EO and will interpret the Second EO to authorize the

12 suspension of immigration benefit applications for petitions, applications, or requests involving Plaintiff

13 Wagafe, Plaintiff Ostadhassan, Plaintiff Bengezi, and members of the Muslim Ban Class.

14 258. Accordingly, Defendants will suspend adjudication of immigration benefits petitions,

15 applications, or requests.

16 259. Defendants’ refusal to adjudicate immigration benefits petitions, applications, or requests will

17 violate Defendants’ statutory and constitutional duty to adjudicate these matters, and to do so in a

18 nondiscriminatory manner.

19

THIRD CLAIM FOR RELIEF

20

First Amendment (Establishment Clause)

21 (Plaintiffs Wagafe, Ostadhassan and Bengezi on behalf of themselves and the Muslim Ban Class)

22 260. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

23 261. The First EO was and Second EO is intended to target a specific religious faith—Islam. The

24 First EO gave preference to other religious faiths—principally Christianity—and the Second EO has that

25 intended effect when applied to Plaintiffs and members of the Muslim Ban Class. Defendants’

26
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1 application of the First EO and Second EO to Plaintiffs and members of the Plaintiff Classes violates the

2 Establishment Clause of the First Amendment to the United States Constitution by not pursuing a course

3 of neutrality with regard to different religious faiths.

4

FOURTH CLAIM FOR RELIEF

5

Fifth Amendment (Procedural Due Process)

6

(All Plaintiffs on behalf of themselves and the Plaintiff Classes)

7 262. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

8 263. Defendants’ failure to give Plaintiffs and members of the Extreme Vetting Naturalization and

9 Extreme Vetting Adjustment of Status Classes notice of their classification under CARRP (or successor

10 “extreme vetting” program), a meaningful explanation of the reason for such classification, and any

11 process by which Plaintiffs can challenge their classification, violates the Due Process Clause of the

12 Fifth Amendment to the United States Constitution.

13 264. Because of these violations of their constitutional rights, Plaintiffs and members of the Plaintiff

14 Classes have suffered and continue to suffer injury in the form of unreasonable delays and unwarranted

15 denials of their immigration applications.

16

FIFTH CLAIM FOR RELIEF

17

Fifth Amendment (Substantive Due Process)

18

(All Plaintiffs on behalf of themselves and the Plaintiff Classes)

19 265. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

20 266. Defendants’ unauthorized and indefinite suspension of the adjudication of Plaintiffs’ and the

21 Proposed Classes’ applications for immigration benefits violates their right to substantive due process

22 under the Fifth Amendment to the United States Constitution, because Plaintiffs cannot be denied

23 immigration benefits for which they are statutorily eligible, and to which they are entitled by law, in an

24 arbitrary manner.

25

SIXTH CLAIM FOR RELIEF

26
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1

Fifth Amendment (Equal Protection)

2

(All Plaintiffs on behalf of themselves and the Plaintiff Classes)

3 267. Plaintiffs incorporate the allegations of the proceeding paragraphs as if fully set forth herein.

4 268. Defendants’ indefinite suspension of the adjudication of Plaintiffs’ applications for immigration

5 benefits on the basis of their country of origin, and without sufficient justification, violates the equal

6 protection component of the Due Process Clause of the Fifth Amendment.

7 269. Additionally, Defendants’ indefinite suspension of the adjudication of Plaintiff Wagafe’s,

8 Plaintiff Ostadhassan’s, Plaintiff Bengezi’s, and the Muslim Ban Class’ applications for immigration

9 benefits under the First and Second EOs was and is substantially motivated by animus toward—and has

10 a disparate effect on—Muslims, which also violates the equal protection component of the Due Process

11 Clause of the Fifth Amendment.

12 270. Applying a general law in a fashion that discriminates on the basis of religion violates Plaintiffs’

13 and the Plaintiff Classes’ rights to equal protection under the Fifth Amendment Due Process Clause.

14 271. The Second EO is intended and will be applied primarily to exclude individuals on the basis of

15 their national origin and religion.

16 272. Defendants have applied the First EO and will apply the Second EO with discriminatory animus

17 and discriminatory intent in violation of the equal protection component of the Fifth Amendment.

18

SEVENTH CLAIM FOR RELIEF

19

Immigration and Nationality Act and Implementing Regulations

20

(Plaintiffs on behalf of themselves and the Extreme Vetting Naturalization and

21

Extreme Vetting Adjustment of Status Classes)

22 273. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

23 274. To secure naturalization and adjustment of status, an applicant must satisfy certain statutorily-

24 enumerated criteria.

25 275. By its terms, CARRP creates additional, non-statutory, substantive adjudicatory criteria.

26
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1 276. Accordingly, CARRP violates 8 U.S.C. § 1427, 8 C.F.R. § 316.2, and 8 C.F.R. § 335.3, as those

2 provisions set forth the exclusive applicable statutory and regulatory criteria for a grant of naturalization.

3 277. CARRP also violates 8 U.S.C. § 1255, 8 U.S.C. § 1159, 8 C.F.R. § 245.1, and 8 C.F.R. § 209.1,

4 as those provisions set forth the applicable statutory and regulatory criteria for individuals present in the

5 United States to adjust their status.

6 278. Because of these violations and/or because CARRP’s additional, non-statutory, substantive

7 criteria have been applied to their applications, Plaintiffs and Plaintiff Class members have suffered and

8 will continue to suffer injury in the form of unreasonable delays and unwarranted denials of their

9 applications for naturalization and adjustment of status.

10

EIGHTH CLAIM FOR RELIEF

11

Administrative Procedure Act (5 U.S.C. § 706)

12

(Plaintiffs on behalf of themselves and the Extreme Vetting Naturalization and

13

Extreme Vetting Adjustment of Status Classes)

14 279. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

15 280. CARRP constitutes final agency action that is arbitrary and capricious because it “neither

16 focuses on nor relates to a [noncitizen’s] fitness to” obtain the immigration benefits subject to its terms.

17 Judulang v. Holder, 132 S. Ct. 476, 485 (2011).

18 281. CARRP is also not in accordance with law, is contrary to constitutional rights, and is in excess of

19 statutory authority because it violates the INA and exceeds USCIS’s statutory authority to implement

20 (not create) the immigration laws, as alleged herein.

21 282. As a result of these violations, Plaintiffs and members of the Proposed Extreme Vetting

22 Naturalization and Extreme Vetting Adjustment of Status Classes have suffered and continue to suffer

23 injury in the form of unreasonable delays and unwarranted denials of their immigration applications.

24

NINTH CLAIM FOR RELIEF

25

Administrative Procedure Act (Notice and Comment)

26
SECOND AMENDED COMPLAINT
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1

(Plaintiffs on behalf of themselves and the Extreme Vetting Naturalization and

2

Extreme Vetting Adjustment of Status Classes)

3 283. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

4 284. The APA, 5 U.S.C. § 553, requires administrative agencies to provide a notice-and-comment

5 period prior to implementing a substantive rule.

6 285. CARRP constitutes a substantive agency rule within the meaning of 5 U.S.C. § 551(4).

7 286. Defendants failed to provide a notice-and-comment period prior to the adoption of CARRP.

8 287. Because CARRP is a substantive rule promulgated without the notice-and-comment period, it

9 violates 5 U.S.C. § 553 and is therefore invalid.

10 288. As a result of these violations, Plaintiffs and members of the Plaintiff Classes have suffered and

11 continue to suffer injury in the form of unreasonable delays and unwarranted denials of their

12 immigration applications.

13

TENTH CLAIM FOR RELIEF

14

“Uniform Rule of Naturalization”

15 (Plaintiffs Wagafe, Jihad, and Manzoor on behalf of themselves and the Naturalization Class)

16 289. Plaintiffs incorporate the allegations of the preceding paragraphs as if fully set forth herein.

17 290. Congress has the sole power to establish criteria for naturalization, and any additional

18 requirements not enacted by Congress are ultra vires.

19 291. By its terms, CARRP creates additional, non-statutory, substantive criteria that must be met prior

20 to a grant of a naturalization application.

21 292. Accordingly, CARRP violates Article I, Section 8, Clause 4 of the United States Constitution.

22 293. Because of this violation and because CARRP’s additional, non-statutory, substantive criteria

23 have been applied to their applications, Plaintiffs Wagafe, Jihad, Manzoor, and the Naturalization

24 Plaintiff Class members have suffered and will continue to suffer injury in the form of unreasonable

25 delays and unwarranted denials of their naturalization applications.

26
SECOND AMENDED COMPLAINT
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1

2

PRAYER FOR RELIEF

3 WHEREFORE, Plaintiffs respectfully request that the Court grant the following relief:

4 1. Certify the case as a class action as proposed herein;

5 2. Appoint Plaintiffs Wagafe, Ostadhassan and Bengezi as representatives of the Muslim Ban

6

Class;

7 3. Appoint Plaintiffs Wagafe, Jihad, and Manzoor as representatives of the Extreme Vetting

8

Naturalization Class;

9 4. Appoint Plaintiffs Ostadhassan and Bengezi as representatives of the Extreme Vetting

10

Adjustment of Status Class;

11 5. Order Defendants to adjudicate the petitions, applications, or requests of Plaintiffs and members

12

of the proposed classes;

13 6. Order Defendants to adjudicate Plaintiffs’ and proposed class members’ petitions, applications,

14

or requests based solely on the statutory criteria;

15 7. Declare Sections 2(c), 4 and 5 of the Second EO contrary to the Constitution and the INA;

16 8. Issue an order enjoining Defendants from applying Sections 2(c), 4 and 5 to Plaintiffs and

17

members of the proposed classes;

18 9. Declare that CARRP or any successor “extreme vetting” program violates the Constitution, the

19

INA, and the APA;

20 10. Enjoin Defendants, their subordinates, agents, employees, and all others acting in concert with

21

them from applying CARRP or any successor “extreme vetting” program to the processing and

22

adjudication of the immigration benefit petitions, applications, or requests of Plaintiffs and

23

members of the proposed classes;

24 11. Order Defendants to rescind CARRP or any successor “extreme vetting” program because they

25

failed to follow the process for notice and comment by the public;

26
SECOND AMENDED COMPLAINT
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1 12. Alternatively, order Defendants to provide Plaintiffs and members of the proposed classes with

2

notice that they have been subjected to CARRP or any successor “extreme vetting” program, the

3

reasons for subjecting them to CARRP or any successor “extreme vetting” program, and a

4

reasonable opportunity to respond to those allegations before a neutral decision-maker;

5 13. Award Plaintiffs and other members of the proposed class reasonable attorneys’ fees and costs;

6

and

7 14. Grant any other relief that this Court may deem fit and proper.

8

9 Respectfully submitted this 4th day of April, 2017.

10 By:
11 s/Matt Adams
12 s/Glenda M. Aldana Madrid
13 Matt Adams, WSBA No. 28287 Glenda M. Aldana Madrid, WSBA No. 46987
14 Northwest Immigrant Rights Project 615 Second Ave., Ste. 400
15 Seattle, WA 98122 16 Telephone: (206) 957-8611
Facsimile: (206) 587-4025 17 matt@nwirp.org
glenda@nwirp.org 18

19

20

21

22

23

24

25

26
SECOND AMENDED COMPLAINT
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s/Emily Chiang 1 Emily Chiang, WSBA No. 50517
2 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630
3 Seattle, WA 98164 Telephone: (206) 624-2184
4 Echiang@aclu-wa.org

5 Jennifer Pasquarella (admitted pro hac vice) 6 ACLU Foundation of Southern California
1313 W. 8th Street 7 Los Angeles, CA 90017
Telephone: (213) 977-5236 8 Facsimile: (213) 997-5297 9 jpasquarella@aclusocal.org

10 Stacy Tolchin (admitted pro hac vice) Law Offices of Stacy Tolchin
11 634 S. Spring St. Suite 500A
Los Angeles, CA 90014 12 Telephone: (213) 622-7450
13 Facsimile: (213) 622-7233 Stacy@tolchinimmigration.com
14 Trina Realmuto (admitted pro hac vice)
15 Kristin Macleod-Ball (admitted pro hac vice)
National Immigration Project 16 of the National Lawyers Guild 17 14 Beacon St., Suite 602
Boston, MA 02108
18 Telephone: (617) 227-9727 Facsimile: (617) 227-5495
19 trina@nipnlg.org
kristin@nipnlg.org 20

21 s/Hugh Handeyside Hugh Handeyside, WSBA No. 39792

22 Lee Gelernt (admitted pro hac vice)

Hina Shamsi (admitted pro hac vice) 23 American Civil Liberties Union Foundation

24

125 Broad Street New York, NY 10004

25 Telephone: (212) 549-2616

26
SECOND AMENDED COMPLAINT
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App. 053

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Facsimile: (212) 549-2654 1 lgelernt@aclu.org

2 hhandeyside@aclu.org hshamsi@aclu.org

3 s/ Harry H. Schneider, Jr.

s/ Nicholas P. Gellert 4 s/ Kathryn Reddy

5

s/ David A. Perez s/ Laura K. Hennessey

6 Harry H. Schneider, Jr. #9404 Nicholas P. Gellert #18041

7 Kathryn Reddy #42089

David A. Perez #43959 8 Laura K. Hennessey #47447

9

Attorneys for Plaintiffs Perkins Coie LLP

10 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099

11 Telephone: 206.359.8000

Facsimile: 206.359.9000 12 Email: HSchneider@perkinscoie.com

13

NGellert@perkinscoie.com KReddy@perkinscoie.com

14

DPerez@perkinscoie.com

LHennessey@perkinscoie.com

15

16

17

18

19

20

21

22

23

24

25

26
SECOND AMENDED COMPLAINT
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CERTIFICATE OF SERVICE 1

2

The undersigned certifies that on the dated indicated below, I caused service of the foregoing

3 SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF via

4 the CM/ECF system that will automatically send notice of such filing to all counsel of record herein.

5

DATED this 4th day of April, 2017, at Seattle, Washington.

6

7

By: s/ David A. Perez

David A. Perez, #43959

8

Attorneys for Plaintiffs

Perkins Coie LLP

9

1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099

10

Telephone: 206.359.8000

Facsimile: 206.359.9000

11

Email: DPerez@perkinscoie.com

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26
SECOND AMENDED COMPLAINT
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App. 055

CCaassee: 128:1-71-c1v7-010, 049/42-3J/C2C018D, oIDc:u1m0e8n4t747923F, DilekdtE0n4t/r1y0: 1/1-72, PPaaggee519ooff25918

1

THE HONORABLE JOHN C. COUGHENOUR

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 8

9 ABDIQAFAR WAGAFE, MEHDI
OSTADHASSAN, HANIN OMAR 10 BENGEZI, MUSHTAQ ABED JIHAD,
and SAJEEL MANZOOR, on behalf of 11 themselves and others similarly situated,

12

Plaintiffs,

No. 2:17-cv-00094-JCC
FIRST AMENDED MOTION FOR CLASS CERTIFICATION

13

v.

14 DONALD TRUMP, President of the
United States; UNITED STATES 15 CITIZENSHIP AND IMMIGRATION
SERVICES; JOHN F. KELLY, in his 16 official capacity as Secretary of the U.S.
Department of Homeland Security; LORI 17 SCIALABBA, in her official capacity as
Acting Director of the U.S. Citizenship and 18 Immigration Services; MATTHEW D.
EMRICH, in his official capacity as 19 Associate Director of the Fraud Detection
and National Security Directorate of the 20 U.S. Citizenship and Immigration Services;
DANIEL RENAUD, in his official 21 capacity as Associate Director of the Field
Operations Directorate of the U.S. 22 Citizenship and Immigration Services,

NOTED FOR MAY 19, 2017 ORAL ARGUMENT REQUESTED

23

Defendants.

24

25

26

FIRST AMENDED MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC)

135029858.2

App. 056

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-010, 049/42-3J/C2C018D, oIDc:u1m0e8n4t747923F, DilekdtE0n4t/r1y0: 1/1-72, PPaaggee620ooff25918

1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION ............................................................................................................. 1

4 II. 5

BACKGROUND ............................................................................................................... 4 A. The CARRP Policy ................................................................................................ 4 B. Plaintiffs’ Legal Claims ......................................................................................... 6

6

C. President Trump’s Promise for More “Extreme” Vetting ..................................... 7

7 III.
8

D. CARRP Has Delayed Named Plaintiffs’ Applications. ......................................... 8 ARGUMENT ................................................................................................................... 11 A. The Action Satisfies the Class Certification Requirements of Rule 23(a)........... 12

9

1. The Proposed Class Members Are So Numerous That Joinder Is

Impracticable............................................................................................ 12

10

2. This Case Presents Questions of Law and Fact Common to the

11

Members of the Classes. .......................................................................... 13

3. The Claims of the Named Plaintiffs Are Typical of the Claims of

12

the Members of the Proposed Classes. .................................................... 15

13

4. The Named Plaintiffs Will Adequately Protect the Interests of the Proposed Classes, and Counsel Are Qualified to Litigate this

14

Action....................................................................................................... 16

a. Named Plaintiffs .......................................................................... 16

15

b. Counsel ........................................................................................ 17

16

B. This Action Satisfies the Requirements of Rule 23(b)(2).................................... 17

17

C. Class Certification Is Also Warranted to Prevent Defendants from Avoiding Adjudication of the Legality of CARRP.............................................. 19

18 IV. CONCLUSION................................................................................................................ 21

19

20

21

22

23

24

25

26

AMENDED MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC) – i
135029858.2

App. 057

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-010, 049/42-3J/C2C018D, oIDc:u1m0e8n4t747923F, DilekdtE0n4t/r1y0: 1/1-72, PPaaggee631ooff25918

1

TABLE OF AUTHORITIES

2

CASES 3

A.B.T. v. U.S. Citizenship and Immigration Services,

4

2013 WL 5913323 (W.D. Wash. Nov. 4, 2013) ......................................................................11

5 ACLU of Southern California v. USCIS,

6

No. CV 13-861 (D.D.C. filed June 7, 2013) ..............................................................................6

7 Ali v. Ashcroft,

213 F.R.D. 390 (W.D. Wash. 2003), aff’d, 346 F.3d 873 (9th Cir. 2003),

8

vacated on other grounds, 421 F.3d 795 (9th Cir. 2005) ............................................11, 12, 13

9 Arapi v USCIS,

10

No. 16-cv-00692 JLR (E.D. Mo. 2016) .............................................................................19, 20

11 Brown v. Holder, 763 F.3d 1141 (9th Cir. 2014) ...................................................................................................7

12 Cervantez v. Celestica Corp.,

13

253 F.R.D. 562 (C.D. Cal. 2008) .............................................................................................12

14 County of Riverside v. McLaughlin,

15

500 U.S. 44 (1991)...................................................................................................................19

16 Crawford v. Honig, 37 F.3d 485 (9th Cir. 1994) .....................................................................................................16

17 Ellis v. Costco Wholesale Corp.,

18

657 F.3d 970 (9th Cir. 2011) .....................................................................................................4

19 Ellsworth v. U.S. Bank, N.A., 30 F. Supp. 3d 886, 909 (N.D. Cal. 2014) ...............................................................................20
20

21

Gerstein v. Pugh, 420 U.S. 103 (1975).................................................................................................................19

22 Gete v. INS,

23

121 F.3d 1285 (9th Cir. 1997) .................................................................................................11

24 Gorbach v. Reno,

181 F.R.D. 642 (W.D. Wash. 1998), aff’d on other grounds, 219 F.3d 1087

25

(9th Cir. 2000) (en banc)....................................................................................................11, 18

26

FIRST AMENDED MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC) - ii

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App. 058

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-010, 049/42-3J/C2C018D, oIDc:u1m0e8n4t747923F, DilekdtE0n4t/r1y0: 1/1-72, PPaaggee642ooff25918

1 Hamdi v. USCIS, No. EDCV 10-894, 2012 WL 632397 (C.D. Cal. Feb. 25, 2012) .............................................5
2

3

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) .................................................................................................15

4 Hanon v. Dataproducts Corp.,

5

976 F.2d 497 (9th Cir. 1992) ...................................................................................................15

6 Hawaii, et al. v. Trump, No. 1:17-cv-50-KSC (D. Haw.) .................................................................................................7
7

8

Hawaii et al. v. Trump, No. 17-00050 DKW-DSC, ECF 270 (D. Haw. Mar. 29, 2017).................................................4

9 Hawaii, et al. v. Trump,

10

No. 17-15589 (9th Cir.) .............................................................................................................7

11 Internat’l Refugee Assistance Project v. Trump,

No. 17-1351 (4th Cir.) ...............................................................................................................7 12

Internat’l Refugee Assistance Project v. Trump,

13

No. 8:17-cv-361-TDC (D. Md.).................................................................................................7

14 Judulang v. Holder,

15

565 U.S. 42 (2011).....................................................................................................................6

16 Lynch v. Rank,

604 F. Supp. 30 (N.D. Cal. 1984), aff’d 747 F.2d 528 (9th Cir. 1984),

17

amended on rehearing, 763 F.2d 1091 (9th Cir. 1985) ...........................................................17

18 Mazza v. Am. Honda Motor Co., Inc.,

19

666 F.3d 581 (9th Cir. 2012) ...................................................................................................13

20 Mendez Rojas, et al. v. Johnson, et al., 2:16-cv-1024-RSM, ECF 37 (W.D. Wash. Jan. 10, 2017) ......................................................11

21 Muhanna v. USCIS,

22

No. 14-cv-05995 (C.D. Cal. July 31, 2014).............................................................................19

23 Parsons v. Ryan,

24

754 F.3d 657 (9th Cir. 2014) .......................................................................................13, 15, 18

25

Perez-Funez v. District Director, Immigration & Naturalization Service, 611 F. Supp. 990 (C.D. Cal. 1984) ..........................................................................................12

26

FIRST AMENDED MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC)– iii

135029858.2

App. 059

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-010, 049/42-3J/C2C018D, oIDc:u1m0e8n4t747923F, DilekdtE0n4t/r1y0: 1/1-72, PPaaggee653ooff25918

1 Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011) ...........................................................................................19, 20
2

3

Ramirez v. Trans Union, LLC, No. 3:12-CV-00632 (JSC), 2013 WL 3752591 (N.D. Cal. July 17, 2013...............................21

4 Rodriguez v. Hayes,

5

591 F.3d 1105 (9th Cir. 2010) ...........................................................................................16, 18

6 Roshandel v. Chertoff, 554 F. Supp. 2d 1194 (W.D. Wash. 2008)...............................................................................11
7

8

Santillan v. Ashcroft, No. C 04–2686, 2004 WL 2297990 (N.D. Cal. Oct. 12, 2004) ...............................................11

9 Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co.,

10

559 U.S. 393 (2010).................................................................................................................11

11 Stockwell v. City & County of San Francisco,

749 F.3d 1107 (9th Cir. 2014) .................................................................................................14 12

Troy v. Kehe Food Distribs., Inc.,

13

276 F.R.D. 642 (W.D. Wash. 2011) ........................................................................................15

14 United States v. Gonzales & Gonzales Bonds & Ins. Agency, Inc.,

15

728 F. Supp. 2d 1077 (N.D. Cal. 2010) .....................................................................................6

16 Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011).......................................................................................................4, 15, 17

17

Walters v. Reno,

18

145 F.3d 1032 (9th Cir. 1998) ...........................................................................................16, 18

19 Walters v. Reno,

20

No. C94–1204C, 1996 WL 897662 (W.D. Wash. 1996), aff’d, 145 F.3d 1032

(9th Cir. 1998), cert. denied, Reno v. Walters, 526 U.S. 1003 (1999).....................................11

21 Washington v. Trump,

22

No. 2:17-cv-00141-JLR, ECF 52, 2017 WL 462040 (W.D. Wash. Feb. 3,

2017), emergency motion to stay denied 847 F.3d 1151 (9th Cir. 2017) ..................................4 23

24 STATUTES

25 5 U.S.C. § 553................................................................................................................................14

26 5 U.S.C. §§ 553(b)-(c) .................................................................................................................5, 6

FIRST AMENDED MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC)– iv

135029858.2

App. 060

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-010, 049/42-3J/C2C018D, oIDc:u1m0e8n4t747923F, DilekdtE0n4t/r1y0: 1/1-72, PPaaggee664ooff25918

1 5 U.S.C. § 706................................................................................................................................13

2 5 U.S.C. § 706(2)(A)........................................................................................................................6
3 8 U.S.C. § 1159................................................................................................................................6
4 8 U.S.C. § 1427................................................................................................................................6 5
RULES 6
Fed. R. Civ. P. 23 ...........................................................................................................................11 7
Fed. R. Civ. P. 23(a) .............................................................................................................. passim 8
Fed. R. Civ. P. 23(a)(1)..................................................................................................................12 9 10 Fed. R. Civ. P. 23(a)(3)..................................................................................................................15
11 Fed. R. Civ. P. 23(a)(4)..................................................................................................................16
12 Fed. R. Civ. P. 23(b) ................................................................................................................11, 17
13 Fed. R. Civ. P. 23(b)(2)................................................................................................11, 17, 18, 21

14 REGULATIONS

15 8 C.F.R. § 209.1 ...............................................................................................................................6

16 8 C.F.R. § 335.3 ...............................................................................................................................6
17 8 C.F.R. § 335.3(a)...........................................................................................................................6
18 82 Fed. Reg. 8977 ....................................................................................................................1, 3, 7
19 82 Fed. Reg. 13209 ..................................................................................................................1, 3, 7
20 OTHER AUTHORITIES
21 U.S. Const. amend. V.............................................................................................................7, 8, 14
22 U.S. Const. art. I, § 8, cl. 4.........................................................................................................7, 18
23

24

25

26

FIRST AMENDED MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC)– v

135029858.2

App. 061

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-010, 049/42-3J/C2C018D, oIDc:u1m0e8n4t747923F, DilekdtE0n4t/r1y0: 1/1-72, PPaaggee675ooff25918

1
I. INTRODUCTION 2
Plaintiffs Abdiqafar Wagafe, Mehdi Ostadhassan, Hanin Omar Bengezi, Mushtaq 3
Abed Jihad, and Sajeel Manzoor (“Plaintiffs”) are five of thousands of individuals whose 4
immigration applications have been delayed, or denied altogether, because of a secret and 5
unlawful government vetting program that targets applicants who are Muslim or from 6
certain Muslim-majority countries. In the wake of President Trump’s First and Second 7
Executive Orders 13769, 82 Fed. Reg. 8977, 8978-79 § 4 (“First EO”), and 13780, 82 8
Fed. Reg. 13209, 13215 §§ 4-5 (“Second EO”), both of which direct federal agencies to 9
develop additional extreme vetting standards and procedures for all immigration benefits, 10
this Court’s review of Defendants’ existing web of discriminatory and non-statutory 11
vetting programs is especially critical. 12
Plaintiff Wagafe is a Muslim, Somali national who meets all statutory 13
requirements to naturalize as a United States citizen. Despite his eligibility, and despite 14
the statutory timeline prescribed by Congress, Mr. Wagafe waited more than three and a 15
half years for a decision on his naturalization application. In an effort to moot Mr. 16
Wagafe’s individual claims and transfer this case to the District of North Dakota, just 17
days after Plaintiffs had filed their original motion for class certification Defendant U.S. 18
Citizenship and Immigration Services (“USCIS”) finally scheduled an interview for Mr. 19
Wagafe. Following the interview, USCIS approved Mr. Wagafe’s application and he 20
became a United States citizen on March 2, 2017. 21
Plaintiff Ostadhassan is a Muslim, Iranian national who meets all statutory 22
requirements to adjust his status to that of a lawful permanent resident (“LPR”). Despite 23
his eligibility, Mr. Ostadhassan waited over three years for a decision on his application. 24
On April 5, 2017, USCIS issued a Notice of Intent to Deny his I-485 Application to 25
Adjust Status. 26

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1

Plaintiff Bengezi is a Muslim, Libyan national and Canadian citizen who meets

2 all statutory requirements to adjust her status to that of a LPR. Despite her eligibility,

3 Ms. Bengezi has been waiting for over two years for a decision on her pending

4 application.

5

Plaintiff Jihad is a Muslim, Iraqi national who meets all statutory requirements to

6 naturalize as a United States citizen. Despite his eligibility, Mr. Jihad has been waiting

7 over three and a half years for a decision on his pending naturalization application.

8

Plaintiff Manzoor is a Muslim, Pakistani national who meets all statutory

9 requirements to naturalize as a United States citizen. Despite his eligibility, Mr. Manzoor

10 has been waiting over one year for a decision on his pending naturalization application.

11

All Plaintiffs, and thousands of applicants like them, face such inordinate and

12 unexplained delays because Defendant USCIS diverted their applications to an

13 undisclosed and unauthorized program known as the Controlled Application Review and

14 Resolution Program (“CARRP”). Congress did not enact or approve CARRP.

15

Through CARRP, the government surreptitiously blacklists thousands of

16 applicants who are seeking immigration benefits, labeling them “national security

17 threats.” Such designations are often based on flimsy and unreliable factors. Once so

18 designated, CARRP mandates immigration officials delay indefinitely, or outright deny,

19 affected applications, even when the applicant is statutorily eligible to have his or her

20 application granted. Relying on CARRP, immigration officials simply disregard

21 governing statutory criteria for certain classes of applicants—most frequently applicants

22 who are Muslim or are perceived to be Muslim—and instead adjudicate those

23 applications pursuant to a process that applies heightened, generally insurmountable

24 criteria to anyone caught in CARRP’s dragnet. As Plaintiffs explain more fully in their

25 Second Amended Complaint, CARRP and the manner in which it is being applied are

26 illegal. Not only did USCIS not provide the required public notice and opportunity to

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1 comment before creating the program, but once in place, the program violates the

2 Constitution, the Immigration and Nationality Act (“INA”), and the Administrative

3 Procedure Act (“APA”).

4

Thousands of individuals, including Plaintiffs, have had their applications for

5 naturalization or adjustment of status halted, delayed, or denied by CARRP. A class

6 action lawsuit is appropriate to challenge CARRP and any other successor “extreme

7 vetting” program that the Executive branch may seek to implement pursuant to Sections 4

8 and 5 of the Second EO or through other extra-statutory means. Pursuant to Rules 23(a)

9 and 23(b)(2) of the Federal Rules of Civil Procedure, Plaintiffs Wagafe, Jihad, and

10 Manzoor respectfully request that the Court certify the following class, and appoint them

11 as class representatives:

12

A national class of all persons currently and in the future (1) who

have or will have an application for naturalization pending before

13

USCIS, (2) that is subject to CARRP or a successor “extreme

vetting” program, and (3) that has not been or will not be

14

adjudicated by USCIS within six months of having been filed.

15 Similarly, Plaintiffs Ostadhassan and Bengezi request that the Court, pursuant to Rules

16 23(a) and 23(b)(2), certify the following class and appoint them as class representatives:

17

A national class of all persons currently and in the future (1) who

have or will have an application for adjustment of status pending

18

before USCIS, (2) that is subject to CARRP or a successor

“extreme vetting” program, and (3) that has not been or will not be

19

adjudicated by USCIS within six months of having been filed.

20

Undersigned counsel are experienced in both class action and immigration matters, and

21 Plaintiffs request that they be appointed as class counsel for both classes.1

22
1 Plaintiffs filed an amended complaint on February 1, 2017, to assert additional claims and an
23 additional class (“Muslim Ban Class”), relating to the effect of Section 3(c) of the First EO. Dkt. 17. On
April 4, 2017, Plaintiffs filed a Second Amended Complaint, which preserves the assertion of this Muslim
24 Ban Class relating to the effect of Section 2(c) of the Second EO. Dkt. 47. Plaintiffs do not seek
certification of this additional class at this time because, after the filing of the First Amended Complaint,
25 the Acting Director of USCIS issued a memorandum indicating that Section 3(c) of the First EO would no
longer operate to stop the processing of immigration benefits for those already in the United States. See
26 generally Notice Regarding Related Cases (Dkt. 22). And, in any event, Section 3(c) of the First EO and
the corresponding Section 2(c) of the Second EO have since been more broadly enjoined. Temporary

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1

II. BACKGROUND

2

Although the Court need not engage in “an in-depth examination of the underlying

3 merits” at this stage, it may analyze the merits to the extent necessary to determine the propriety

4 of class certification. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n.8 (9th Cir. 2011); see 5 also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-52 (2011). For that reason, Plaintiffs 6 provide a brief discussion of their claims relating to CARRP here. The claims are further 7 described in the Second Amended Complaint (Dkt. 47).

8 A. 9

The CARRP Policy USCIS created CARRP in April 2008. Declaration of Jennie Pasquarella, Dkt. 27

10 (“Pasquarella Decl.”), Ex. A (4/11/2008 policy memorandum introducing CARRP). Ostensibly,

11 it is an agency-wide program for processing immigration applications that allegedly may 12 implicate “national security concerns.” Id. But the criteria used to determine whether a 13 particular applicant implicates national security are vague and overbroad. They often turn on an

14 applicant’s national origin or otherwise lawful activities (such as living or traveling in areas of

15 known terrorist activity), thereby ensnaring thousands of individuals who pose no threat to the

16 United States. Worse still, CARRP’s criteria for what constitutes a “national security concern”

17 are untethered from the statutory criteria, including statutory criteria that are expressly security-

18 related, that Congress enacted to determine whether a person is eligible for the immigration

19 status he or she seeks.

20

Any immigration application that falls within CARRP’s broad scope is immediately, and

21 without any notice to the applicant, taken off the “routine adjudication” track and placed on a

22 CARRP adjudication track, where it is subject to distinct procedures and criteria not authorized

23

24 Restraining Order, Washington v. Trump, No. 2:17-cv-00141-JLR, ECF 52, 2017 WL 462040 (W.D. Wash.
Feb. 3, 2017), emergency motion to stay denied 847 F.3d 1151 (9th Cir. 2017); Order Granting Motion for
25 Temporary Restraining Order, Hawaii et al. v. Trump, No. 17-00050 DKW-KSC, ECF 219 (D. Haw. Mar.
15, 2017); Order Granting Motion to Convert Temporary Restraining Order to a Preliminary Injunction,
26 Hawaii et al. v. Trump, No. 17-00050 DKW-DSC, ECF 270 (D. Haw. Mar. 29, 2017). Plaintiffs reserve
the right to seek certification of the additional class if circumstances change again.

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1 by statute. An application will languish in CARRP indefinitely unless and until the alleged

2 national security concern no longer is present. Indeed, even if an individual otherwise meets all

3 the statutory criteria of eligibility for the benefits he or she seeks, USCIS officers are instructed

4 that they cannot approve the application so long as the “national security concern” remains. See

5 Pasquarella Decl., Ex. A at (“Officers are not authorized to approve applications” subject to

6 CARRP); id., Ex. B (7/26/2011 policy memorandum revising CARRP procedures) at 2 (an

7 officer “is not authorized to approve applications or petitions” subject to CARRP).

8

Once an application is saddled with the “national security concern” tag, the next step in

9 the CARRP process is called an “Eligibility Assessment.” But far from trying to determine

10 eligibility during the Eligibility Assessment process, the officer is encouraged to find any reason

11 to deny the application outright so that “time and resources” are not spent determining whether

12 there was any basis for the national security concern in the first place. Pasquarella Decl., Ex. A

13 at 5; see also id., Ex. C (1/2012 CARRP training presentation) at 52-59, 68 (providing “tips” on

14 how to find an applicant ineligible). CARRP essentially creates a presumption of guilt that

15 becomes difficult, if not impossible, to rebut.

16

The thousands of persons labeled as national security concerns based on CARRP’s broad

17 and vague criteria receive no notice of that determination, much less an opportunity to disprove

18 it. As a result, their applications are effectively denied through indefinite delay. At no point are

19 applicants told about the decision to subject their applications to CARRP, even though the

20 decision to do so is often dispositive. Nor are applicants ever given the opportunity to contest

21 the government’s labeling of them as a national security threat.

22

Congress did not enact CARRP, nor did USCIS promulgate it as a proposed rule with the

23 notice-and-comment procedures that the APA mandates. See 5 U.S.C. §§ 553(b)-(c). On the

24 contrary, USCIS takes steps to deliberately keep the existence of CARRP a secret. The program

25 was only discovered through litigation challenging a denial of naturalization in Hamdi v. USCIS,

26 No. EDCV 10-894 VAP (DTBx), 2012 WL 632397 (C.D. Cal. Feb. 25, 2012), and then revealed

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1 in greater detail through the government’s response to Freedom of Information Act (“FOIA”)

2 requests and litigation to compel responses to those requests. See ACLU of Southern California

3 v. USCIS, No. CV 13-861 (D.D.C. filed June 7, 2013).

4 B. Plaintiffs’ Legal Claims

5

On its face and as applied to Plaintiffs, CARRP violates federal law and the Constitution.

6 First, CARRP violates the INA, which sets forth exclusive statutory and regulatory criteria

7 governing applications for naturalization and adjustment of status. See 8 U.S.C. § 1427 and

8 8 C.F.R. §§ 316.2 and 335.3 (criteria for naturalization); 8 U.S.C. §§ 1255 and 1159, and 8

9 C.F.R. §§ 245.1 and 209.1 (criteria for adjustment of status). In fact, federal regulations provide

10 that if an applicant has complied with all requirements for naturalization, USCIS “shall grant the

11 application.” 8 C.F.R. § 335.3(a) (emphasis added). But under CARRP, even when applicants

12 meet all the criteria for naturalization, USCIS will delay or deny their applications based on

13 criteria unrelated to the statute. By imposing such additional requirements and unauthorized

14 impediments for naturalization and adjustment of status, CARRP violates the INA.

15

CARRP also violates the APA. First, because CARRP is a final agency action that

16 “neither focuses on nor relates to a [non-citizen’s] fitness to” obtain the immigration status

17 subject to its terms, Judulang v. Holder, 565 U.S. 42, 55 (2011), it is arbitrary and capricious

18 under 5 U.S.C. § 706(2)(A). Second, CARRP violates the APA’s requirement that

19 administrative agencies provide a notice-and-comment period prior to implementing a

20 substantive agency rule. 5 U.S.C. § 553(b), (c). CARRP is fairly characterized as a substantive

21 rule, and therefore is subject to the APA’s notice-and-comment rulemaking procedures, because

22 it imposes extra-statutory eligibility criteria that effectively alter applicants’ ability to naturalize

23 or obtain legal permanent residency. See United States v. Gonzales & Gonzales Bonds & Ins.

24 Agency, Inc., 728 F. Supp. 2d 1077, 1084 (N.D. Cal. 2010).

25

Finally, CARRP violates several constitutional provisions. Under the Uniform Rule of

26 Naturalization Clause, the Constitution expressly assigns to Congress, not the Executive branch,

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1 the authority to establish the rules of naturalization. See U.S. Const. art. I, § 8, cl. 4. Congress

2 set forth those rules in the INA. By imposing additional, non-statutory, substantive criteria that

3 must be met prior to granting a naturalization application, CARRP violates the Uniform Rule of

4 Naturalization Clause. CARRP also violates the Due Process Clause of the Fifth Amendment.

5 Plaintiffs and putative class members have a constitutionally protected interest in having their

6 naturalization and adjustment of status applications adjudicated in accordance with the law. See,

7 e.g., Brown v. Holder, 763 F.3d 1141, 1147 (9th Cir. 2014) (“[Plaintiff] had [a constitutionally]

8 protected interest in being able to apply for citizenship” under the Due Process Clause). CARRP

9 violates the Due Process Clause because the government never provides naturalization and

10 adjustment applicants notice of their classification under CARRP, a meaningful explanation of

11 the reason for such classification, nor any process by which they can challenge their

12 classification.

13

In sum, CARRP cannot survive judicial scrutiny.

14 C. 15

President Trump’s Promise for More “Extreme” Vetting President Trump campaigned on promises to impose a “total and complete ban” on

16 Muslims coming to the United States. He and his associates consistently expressed disdain for

17 Muslims. See Second Amended Complaint, Dkt. 47, ¶¶ 98-101. Both during the campaign and

18 after his election and inauguration, President Trump expressed his intention to establish a

19 program of “extreme vetting” to achieve such a ban. See id. ¶¶ 102-05.

20

President Trump began to implement his stated goal of keeping Muslims out of the

21 United States and otherwise subjecting them to “extreme vetting” when he signed the First EO

22 on January 27, 2017. After the First EO was enjoined, President Trump replaced it with a 23 Second EO, which mirrors the First EO’s efforts to implement his anti-Muslim agenda.2 To the

24 extent any “extreme vetting” policy developed pursuant to the Second EO expands or continues

25
2 The Second EO has also been enjoined. Internat’l Refugee Assistance Project v. Trump, No. 8:17-cv-
26 361-TDC (D. Md.), appeal pending Internat’l Refugee Assistance Project v. Trump, No. 17-1351 (4th Cir.); Hawaii,
et al. v. Trump, No. 1:17-cv-50-KSC (D. Haw.), appeal pending Hawaii, et al. v. Trump, No. 17-15589 (9th Cir.).

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1 CARRP, it will suffer from the same legal deficiencies as CARRP itself. And to the extent the

2 policy targets Muslims, CARRP and any successor program also would violate the guarantee of

3 equal protection under the Due Process Clause of the Fifth Amendment.

4 D. CARRP Has Delayed Named Plaintiffs’ Applications.

5

Plaintiff Wagafe is a 32-year-old Somali national who is a lawful permanent resident of

6 the United States, currently residing in SeaTac, Washington. Second Amended Complaint, Dkt.

7 47 ¶¶ 142, 149. After fleeing Somalia, Mr. Wagafe lived as a refugee in Kenya and Ethiopia

8 before coming to the United States as a refugee in 2007. Id. ¶¶ 143-44. Mr. Wagafe filed an

9 application for naturalization on November 8, 2013, and satisfied all the statutory requirements

10 for naturalization. Id. ¶¶ 152, 156-57. USCIS scheduled him for a naturalization interview on

11 February 25, 2014, but then abruptly cancelled it on January 29, 2014, without explanation. Id. ¶

12 152. Mr. Wagafe had not heard from USCIS, other than a response to his attorney’s inquiry in

13 July 2015 instructing his attorney to have patience. Id. ¶ 153. It was only because his attorney

14 filed a FOIA request concerning his case that Mr. Wagafe discovered that USCIS had “shelved”

15 his pending application, relying on CARRP. A document in his “Alien file” obtained through

16 that request indicates that his case was handled by a CARRP officer, without revealing the

17 reasons why. Pasquarella Decl., Exs. D (cover page indicating CARRP); E (mentions file was

18 reviewed “by prior CARRP officer”).

19

Following the filing of this lawsuit, Defendant USCIS suddenly adjudicated Mr.

20 Wagafe’s application, in what appears to have been an attempt to moot Mr. Wagafe’s individual

21 claims and lend support to Defendants’ motion to transfer venue to North Dakota. Five days

22 after Plaintiffs filed their original motion for class certification in this case, a USCIS officer

23 informed Mr. Wagafe’s immigration attorney that an interview had been scheduled on his

24 naturalization application. Second Amended Complaint, Dkt. 47 ¶ 154. Recognizing Mr.

25 Wagafe met all statutory requirements for naturalization, Defendant USCIS approved his

26

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1 application immediately following his interview, and Mr. Wagafe became a United States citizen

2 on March 2, 2017. Id.

3

Plaintiff Ostadhassan is a 33-year-old national of Iran who resides in Grand Forks, North

4 Dakota. Id. ¶ 162. Mr. Ostadhassan moved to the United States in 2009 on a student visa to

5 study at the University of North Dakota. Id. ¶ 163. He earned his Ph.D. degree in Petroleum

6 Engineering. After graduation, Mr. Ostadhassan was hired immediately by the University of

7 North Dakota as an Assistant Professor. Id. In 2014, he married a U.S. citizen. Id. ¶ 164. Mr.

8 Ostadhassan and his wife had their first child in July 2016. Id. In February 2014, Mr.

9 Ostadhassan applied to adjust his immigration status to that of a lawful permanent resident based

10 upon his marriage. Id. ¶ 165. USCIS initially scheduled Mr. Ostadhassan for an interview on

11 May 19, 2014, but abruptly canceled the interview when Mr. Ostadhassan arrived at the

12 appointed time and place. Id. ¶ 167. After some delay, USCIS finally interviewed Mr.

13 Ostadhassan more than 16 months later, on September 24, 2015. At the interview, the USCIS

14 officer told Mr. Ostadhassan that the government was not ready to make a decision. Id. ¶¶ 168-

15 69. On March 24, 2017, USCIS approved the immigrant visa petition that Mr. Ostadhassan’s

16 wife had filed on his behalf over three years earlier. See Supplemental Pasquarella Declaration

17 ¶ 2. And on April 5, 2017, USCIS issued a Notice of Intent to Deny Mr. Ostadhassan’s Form I-

18 485 Application to Adjust Status, indicating that though Mr. Ostadhassan satisfies all statutory

19 criteria, USCIS intends to deny his application “as a matter of discretion.” Id. ¶ 3 & Ex. A at 4.

20

As USCIS acknowledges, Mr. Ostadhassan is statutorily eligible to adjust his

21 immigration status. On information and belief, his application was delayed for over three years

22 because the government subjected the application to CARRP. This is likely true because Mr.

23 Ostadhassan has resided in and traveled through what the government considers “areas of known

24 terrorist activity” (Iran), has donated to Islamic charities, and is involved in his local Muslim

25 community in North Dakota. Such circumstances typically cause an application to be subjected

26 to CARRP. See Second Amended Complaint, Dkt. 47, ¶¶ 170-74.

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1

Plaintiff Bengezi is a thirty-two-year-old national of Libya who resides in Redmond,

2 Washington. Id. ¶ 176. Ms. Bengezi immigrated to Canada with her family in 1995 and became

3 a Canadian citizen in 2012. Id. ¶¶ 178-79. After becoming engaged to a U.S. citizen, Ms.

4 Bengezi entered the country on a K-1 Fiancée visa and, after getting married, filed for an

5 application to adjust her status on February 5, 2015. Id. ¶¶ 181-87. Though Ms. Bengezi meets

6 all statutory requirements to adjust her immigration status, USCIS has not scheduled an

7 interview on her application. Id. ¶¶ 188, 191-92. On information and belief, Defendant USCIS

8 has applied CARRP or its successor “extreme vetting” program to her application, which has

9 indefinitely delayed the adjudication process. Id. ¶ 196. When Ms. Bengezi flies, she is unable

10 to check in for her flight online and she is routinely subjected to additional security screening

11 measures due to her “Secondary Security Screening Selection.” Id. ¶ 193. These additional

12 security measures are a common indication that an individual’s application is subject to CARRP.

13

Plaintiff Jihad is a forty-four-year-old Iraqi national who resides in Renton, Washington.

14 Id. ¶ 199. In August 2008, Mr. Jihad and his family were admitted to the United States as

15 refugees and settled in the Tri-Cities area of Washington. Id. ¶ 203-04. After becoming a lawful

16 permanent resident, Mr. Jihad filed his application for naturalization on July 1, 2013. Id. ¶¶ 205-

17 06. Soon after completing his biometrics appointment, two FBI agents visited Mr. Jihad and

18 questioned him extensively about his background. Id. ¶ 209. Though Mr. Jihad satisfies all

19 statutory criteria for naturalization, his application has been pending for over three and a half

20 years. On information and belief, Defendant USCIS has subjected Mr. Jihad’s application to

21 CARRP or an “extreme vetting” successor program, which explains the FBI’s interrogation and

22 the extreme delay Mr. Jihad has experienced. Id ¶ 217.

23

Plaintiff Manzoor is a forty-year-old Pakistani national and lawful permanent resident

24 who resides in Newcastle, Washington. Id. ¶ 220. After coming to the United States on a

25 student visa, Mr. Manzoor was granted lawful permanent resident status in September 2010

26 based on a business petition. Id.¶¶ 221, 226-27. He subsequently filed his application for

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1 naturalization on November 30, 2015. Id.¶ 228. Though Mr. Manzoor is statutorily eligible to

2 naturalize as a United States citizen, USCIS has not adjudicated his application for over three

3 years. This unexplained delay indicates that USCIS has subjected Mr. Manzoor’s application to

4 CARRP or its successor “extreme vetting” program. Id. ¶¶ 233-34.

5

III. ARGUMENT

6

Under Civil Rule 23, a lawsuit may proceed as a class action if two conditions are met:

7 the “suit must satisfy the criteria set forth in subdivision (a) (i.e., numerosity, commonality,

8 typicality, and adequacy of representation), and it also must fit into one of the three categories

9 described in subdivision (b).” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559

10 U.S. 393, 397 (2010) (citing Fed. R. Civ. P. 23(b)). By its terms, “this creates a categorical rule

11 entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.”

12 Id.

13

Plaintiffs meet all four of the Rule 23(a) requirements, and satisfy Rule 23(b) because

14 “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a

15 whole.” Fed. R. Civ. P. 23(b)(2). Consistent with numerous Ninth Circuit authorities involving

16 certification of class actions on behalf of noncitizens who challenge immigration policies and 17 practices, class certification is warranted here.3

18

19

3 See, e.g., Mendez Rojas, et al. v. Johnson, et al., 2:16-cv-1024-RSM, ECF 37 (W.D. Wash. Jan.

10, 2017) (certifying two nationwide classes of asylum seekers challenging defective asylum application

20

procedures); A.B.T. v. U.S. Citizenship and Immigration Services, 2013 WL 5913323 (W.D. Wash. Nov. 4, 2013) (certifying nationwide class and approving settlement amending practices by the Executive Office

21

for Immigration Review and USCIS that precluded asylum applicants from receiving employment authorization); Santillan v. Ashcroft, No. C 04–2686, 2004 WL 2297990, at *12 (N.D. Cal. Oct. 12, 2004)

22

(certifying nationwide class of lawful permanent residents challenging delays in receiving documentation of their status); Ali v. Ashcroft, 213 F.R.D. 390, 409-10 (W.D. Wash. 2003), aff’d, 346 F.3d 873, 886 (9th

Cir. 2003), vacated on other grounds, 421 F.3d 795 (9th Cir. 2005) (certifying nationwide class of Somalis
23 challenging legality of removal to Somalia in the absence of a functioning government); Gorbach v. Reno,

181 F.R.D. 642, 644 (W.D. Wash. 1998), aff’d on other grounds, 219 F.3d 1087 (9th Cir. 2000) (en banc)
24 (certifying nationwide class of persons challenging validity of administrative denaturalization proceedings);

Walters v. Reno, No. C94–1204C, 1996 WL 897662, at *5-8 (W.D. Wash. 1996), aff’d, 145 F.3d 1032,
25 1045-47 (9th Cir. 1998), cert. denied, Reno v. Walters, 526 U.S. 1003 (1999) (certifying nationwide class

of individuals challenging adequacy of notice in document fraud cases). See also Roshandel v. Chertoff,

26 554 F. Supp. 2d 1194 (W.D. Wash. 2008) (certifying districtwide class of delayed naturalization cases);

Gete v. INS, 121 F.3d 1285, 1299 (9th Cir. 1997) (vacating district court’s denial of class certification in

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1

Plaintiffs do not request that this Court adjudicate their individual immigration

2 applications, nor do they seek money damages. Plaintiffs request only that this Court determine

3 that CARRP or any successor policy is unlawful, and enjoin Defendants from applying such

4 policy to the processing and adjudication of Plaintiffs’ and other class members’ applications for

5 citizenship and adjustment of immigration status applications. Alternatively, and at a minimum,

6 Plaintiffs request an order compelling USCIS to provide applicants notice that the government

7 has decided to subject their application to CARRP and an opportunity to challenge that decision.

8 A. The Action Satisfies the Class Certification Requirements of Rule 23(a).

9

1. The Proposed Class Members Are So Numerous That Joinder Is

Impracticable. 10

This case easily meets the numerosity requirement. Rule 23(a)(1) requires that the class

11

be “so numerous that joinder of all members is impracticable.” While no specific number of

12

class members is required, Perez-Funez v. District Director, Immigration & Naturalization

13

Service, 611 F. Supp. 990, 995 (C.D. Cal. 1984), courts have recognized that “where the exact

14

size of the class is unknown but general knowledge and common sense indicate that it is large,

15

the numerosity requirement is satisfied,” Cervantez v. Celestica Corp., 253 F.R.D. 562, 569

16

(C.D. Cal. 2008) (internal quotation marks and citations omitted). Additionally, where the class

17

includes “unnamed and unknown future members,” joinder is impractical, “and the numerosity

18

requirement is therefore met, regardless of class size.” Ali v. Ashcroft, 213 F.R.D. 390, 408

19

(W.D. Wash. 2003), aff’d, 346 F.3d 873 (9th Cir. 2003), vacated on other grounds, 421 F.3d 795

20

(9th Cir. 2005) (internal quotation marks and citation omitted).

21

Here, the numbers of naturalization and adjustment of status applications subject to

22

CARRP are more than sufficient for class certification purposes. As of March 2009, for those

23

applications pending for six months or longer, the government was applying CARRP to at least

24

25
case challenging inadequate notice and standards in Immigration and Naturalization Service vehicle
26 forfeiture procedure).

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1 1,437 applications for adjustment of immigration status, and at least 1,065 applications for

2 naturalization. Pasquarella Decl., Ex. F (monthly case load report). Between July 1 and

3 September 30, 2013—the most recent time period for which Plaintiffs have reliable data—

4 USCIS reported 2,644 pending applications subjected to CARRP. Id., Ex. G (quarterly workload

5 report). USCIS data shows that applications for naturalization and adjustment of immigration

6 status make up the majority of all applications now pending before USCIS subject to CARRP.

7 Id., Ex. F. Based on this data, and as a matter of “general knowledge and common sense,” the

8 number of members in each proposed class makes joinder of each individual member

9 impracticable. Class certification is also appropriate here given the unknown future class

10 members to whose immigration applications Defendant will apply CARRP. See Ali, 213 F.R.D.

11 at 408-09.

12

Plaintiffs have met the numerosity requirement.

13

2. This Case Presents Questions of Law and Fact Common to the Members of

the Classes. 14

Rule 23(a) also requires that the case present “questions of law or fact common to the 15

class.” Plaintiffs “need not show, however, that ‘every question in the case, or even a 16

preponderance of questions, is capable of class wide resolution. So long as there is ‘even a 17

single common question,’ a would-be class satisfies the commonality requirement.” Parsons v. 18

Ryan, 754 F.3d 657, 675 (9th Cir. 2014) (quoting Dukes, 564 U.S. at 350 (2011)); see 19

also Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th Cir. 2012) (noting that 20

“commonality only requires a single significant question of law or fact”). 21

Plaintiffs raise multiple questions common to the classes, including but not limited to: 22

 Whether CARRP violates the INA by creating additional, non-

23

statutory, substantive criteria that must be met prior to a grant of a

naturalization or adjustment of status application (both Classes); 24

 Whether CARRP violates the APA, 5 U.S.C. § 706, as a final agency

25

action that is arbitrary and capricious, contrary to constitutional law,

and in excess of statutory authority (both Classes); 26

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1

 Whether CARRP constitutes a substantive rule and, as a result, is

unenforceable because Defendants violated the mandatory

2

requirements for rulemaking under APA, 5 U.S.C. § 553, as they

promulgated CARRP without providing a notice-and-comment period

3

prior to implementation (both Classes);

4

 Whether CARRP violates the Uniform Rule of Naturalization, Article

I, Section 8, Clause 4 of the Constitution by establishing criteria for

5

naturalization that were never authorized by Congress (Extreme

Vetting Naturalization Class);

6

 Whether CARRP is unconstitutional because Defendants failed to

7

provide Plaintiffs notice of their classification under CARRP and a

meaningful explanation of the reason for such classification, as well as

8

a process by which Plaintiffs can challenge their classification,

resulting in a violation of the Due Process Clause of the Fifth

9

Amendment to the Constitution (both Classes);

10

 Whether CARRP discriminates against Plaintiffs on the basis of their

country of origin, and without sufficient justification, and therefore

11

violates the equal protection component of the Due Process Clause of

the Fifth Amendment to the Constitution (both Classes);

12

 Whether the application of CARRP to Plaintiffs’ applications for

13

naturalization and adjustment of status—benefits to which they are

statutorily eligible and to which they are legally entitled—constitutes

14

arbitrary denial in violation of Plaintiffs’ right to substantive due

process under the Fifth Amendment to the Constitution (both Classes). 15
Defendants may argue that Plaintiffs cannot satisfy commonality because each

16 application subject to CARRP hinges on the particular facts and circumstances unique to each

17 applicant. But this argument would misconstrue and misapply the commonality requirement. As

18 the Ninth Circuit recently observed, “[t]o assess whether the putative class members share a

19 common question, the answer to which ‘will resolve an issue that is central to the validity of each

20 one of the [class members’s] claims,’ [the court] must identify the elements of the class

21 members’ case-in-chief.” Stockwell v. City & County of San Francisco, 749 F.3d 1107, 1114

22 (9th Cir. 2014) (quoting Dukes, 564 U.S. at 350). Here, the gravamen of Plaintiffs’ Second

23 Amended Complaint is not focused on how CARRP was specifically applied to any given

24 individual seeking immigration benefits, but rather how USCIS’s overall decision to implement

25 CARRP and its subsequent application to Plaintiffs and others similarly situated violates federal

26

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1 statutory and constitutional law. Because each class member’s statutory and constitutional

2 claims can be resolved in one stroke, “a classwide proceeding” will “generate common answers

3 apt to drive the resolution of the litigation.” See Troy v. Kehe Food Distribs., Inc., 276 F.R.D.

4 642, 652-53 (W.D. Wash. 2011). Plaintiffs have met their burden to demonstrate commonality

5 because “the court must decide only once whether the application [of CARRP] . . . does or does

6 not violate” the law. See id. at 654. Should Plaintiffs prevail, all proposed class members will

7 benefit the same way: either from an order enjoining the government from applying CARRP to

8 their applications, or from an order directing the government to allow affected applicants an

9 opportunity to respond to CARRP-related allegations.

10

3. The Claims of the Named Plaintiffs Are Typical of the Claims of the

Members of the Proposed Classes. 11

Typicality is satisfied if “the claims or defenses of the representative parties are typical of

12

the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The purpose of the typicality

13

requirement is to ensure that the interests of the named representatives align with the interests of

14

the class as a whole. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). Claims

15

of the proposed class representatives are considered “typical” if they are “reasonably coextensive

16

with those of the absent class members.” Parsons, 754 F.3d at 685 (quoting Hanlon v. Chrysler

17

Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)). In this way, commonality and typicality “tend to

18

merge” because both “serve as guideposts for determining whether, under the particular

19

circumstances presented by the case, maintenance of a class action is economical and whether

20

the named plaintiff’s claim and the class claims are so interrelated that the interests of the class

21

members will be fairly and adequately protected in their absence.” Dukes, 564 U.S. at 349 n.5.

22

Plaintiffs’ claims are typical of the proposed classes to be certified because they proceed

23

under the same legal theories, seek the same relief, and have suffered the same injuries. Like

24

each proposed class member, Plaintiffs have filed immigration applications (for naturalization

25

and adjustment of immigration status, respectively) that the government has unlawfully subjected

26

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1 to review under CARRP. Despite meeting all the statutory requirements to receive the

2 immigration benefits they seek, all five named Plaintiffs have been injured by the delay and

3 failure to adjudicate their immigration applications based on CARRP. Because Plaintiffs have

4 suffered the same statutory and constitutional injuries as the proposed class members, their

5 claims are typical of the classes which they propose to represent. See Rodriguez v. Hayes, 591

6 F.3d 1105, 1124 (9th Cir. 2010) (upholding typicality where plaintiffs “raise[d] similar

7 constitutionally-based arguments and are alleged victims of the same practice of prolonged

8 detention while in immigration proceedings”).

9

4. The Named Plaintiffs Will Adequately Protect the Interests of the Proposed

Classes, and Counsel Are Qualified to Litigate this Action. 10

Rule 23(a)(4) requires that “[t]he representative parties will fairly and adequately protect

11

the interests of the class.” “Whether the class representatives satisfy the adequacy requirement

12

depends on ‘the qualifications of counsel for the representatives, an absence of antagonism, a

13

sharing of interests between representatives and absentees, and the unlikelihood that the suit is

14

collusive.’” Rodriguez, 591 F.3d at 1125 (citing Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir.

15

1998) (quoting Crawford v. Honig, 37 F.3d 485, 487 (9th Cir. 1994)).

16

a. Named Plaintiffs 17
The named Plaintiffs will fairly and adequately protect the interests of the respective 18
classes because they seek relief on behalf of the classes and have no individual interest that could 19
be considered antagonistic to other class members. See Declaration of Mehdi Ostadhassan (Dkt. 20
29); Declaration of Abdiqafar Wagafe (Dkt. 28); Declaration of Hanin Omar Bengezi; 21
Declaration of Mushtaq Abed Jihad; Declaration of Sajeel Manzoor. Their shared goal is to have 22
the Court declare CARRP unlawful and issue injunctive relief preventing CARRP from being 23
applied to their immigration applications. Plaintiffs do not seek money damages. The interests 24
of the named Plaintiffs therefore coincide precisely with those of the class members. 25

26

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1

b. Counsel

2

Plaintiffs’ counsel are considered qualified when they can establish their experience in

3 previous class actions and cases involving the same area of law. Lynch v. Rank, 604 F. Supp. 30,

4 37 (N.D. Cal. 1984), aff’d 747 F.2d 528 (9th Cir. 1984), amended on rehearing, 763 F.2d 1091,

5 1098 (9th Cir. 1985). Plaintiffs are represented by attorneys with the ACLU of Washington

6 Foundation, the ACLU Foundation of Southern California, the ACLU Foundation, the Law

7 Offices of Stacy Tolchin, the National Immigration Project of the National Lawyers Guild, the

8 Northwest Immigrant Rights Project, and the Perkins Coie law firm. Class counsel are able and

9 experienced in protecting the interests of noncitizens and have considerable experience in

10 handling complex and class action litigation, including in the area of immigration law. See Dkts.

11 27, 30-34 (Pasquarella Decl.; Declaration of Lee Gelernt; Declaration of Matt Adams;

12 Declaration of Stacy Tolchin; Declaration of Trina Realmuto; Declaration of Harry Schneider).

13 As detailed in their declarations, class counsel have the experience and ability to vigorously and

14 effectively represent both named and absent class members.

15 B. This Action Satisfies the Requirements of Rule 23(b)(2).

16

In addition to satisfying the four requirements of Rule 23(a), Plaintiffs also must meet

17 one of the requirements of Rule 23(b). Certification under Rule 23(b)(2) requires that

18 Defendants “ha[ve] acted or refused to act on grounds that apply generally to the class, so that

19 final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a

20 whole.” Fed. R. Civ. P. 23(b)(2). The underlying premise of subsection (b)(2) is “the indivisible

21 nature of the injunctive or declaratory remedy warranted—the notion that the conduct at issue

22 can be enjoined or declared unlawful only as to all of the class members or as to none of them.”

23 Dukes, 564 U.S. at 360 (citation omitted). In other words, (b)(2) is met where “a single

24 injunction or declaratory judgment would provide relief to each member of the class.” Id.

25

Here, Plaintiffs are asking the Court to declare CARRP unlawful and unenforceable and

26 to enjoin the government from subjecting Plaintiffs’ and proposed class members’ immigration

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1 applications to CARRP. This relief would benefit Plaintiffs as well as all members of the

2 proposed classes in identical fashion. In other words, no individual class member would be

3 entitled to a different injunction or declaratory judgment. Accordingly, Plaintiffs have met the

4 requirements of Rule 23(b)(2), because they “seek uniform injunctive or declaratory relief from

5 policies or practices that are generally applicable to the class as a whole.” See Parsons, 754 F.3d

6 at 688 (citation omitted); see also Walters, 145 F.3d at 1047 (holding that certification under

7 Rule 23(b)(2) was proper where plaintiffs challenged INS practices in document fraud

8 proceedings); Rodriguez, 591 F.3d at 1125-26 (holding that certification under Rule 23(b)(2) was

9 proper in challenge to defendants’ policy of failing to provide bond hearings to immigration

10 detainees).

11

Given the nature of Plaintiffs’ claims implicating CARRP, class certification should be

12 nationwide. Certification that is not nationwide in scope would result in Defendants continuing

13 to apply an unlawful policy to noncitizens applying for naturalization simply by virtue of their

14 geographic location, which would undermine the constitutional imperative of “a uniform Rule of

15 Naturalization.” U.S. Const., art. I, § 8, cl. 4 (emphasis added). Such piecemeal relief would

16 lead to arbitrary and unjust results. See Gorbach v. Reno, 181 F.R.D. 642, 644 (W.D. Wash.

17 1998), aff’d, 219 F.3d 1087 (9th Cir. 2000) (holding certification of a nationwide class was

18 particularly fitting because “anything less [than] a nationwide class would result in an anomalous

19 situation allowing the INS to pursue denaturalization proceedings against some citizens, but not

20 others, depending on which district they reside in”). Moreover, it would be equally arbitrary and

21 unjust to certify anything short of a nationwide class for adjustment of status applicants, who,

22 regardless of geographic location, are all subjected to Defendants’ unlawful policy.

23

Because Defendants have subjected the members of both classes to the same statutory

24 and constitutional violations, and because class members seek uniform relief, certification is

25 proper under Rule 23(b)(2).

26

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1 C. Class Certification Is Also Warranted to Prevent Defendants from Avoiding Adjudication of the Legality of CARRP.
2 Certification of the proposed classes is also appropriate to prevent Defendants from
3 attempting to evade judicial review by adjudicating Plaintiffs’ individual applications. As the
4 Supreme Court has acknowledged, “some claims are so inherently transitory that the trial court
5 will not have even enough time to rule on a motion for class certification before the proposed
6 representative’s individual interest expires.” County of Riverside v. McLaughlin, 500 U.S. 44, 52
7 (1991) (citation omitted). In such cases, the named plaintiff’s claims are “capable of repetition,
8 yet evading review.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091 (9th Cir. 2011) (citing
9 Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975)). Because of this, a class action may be the
10 only way for meaningful review. See id. at 1090 (where the class representative’s claims are
11 transitory, “mooting the putative class representative’s claims will not necessarily moot the class
12 action” even if “the district court has not yet addressed the class certification issue”).
13 Class certification is especially appropriate here because challenges to CARRP
14 historically have proven to be the very sort of transitory claims that are “capable of repetition,
15 yet evading review.” Indeed, Plaintiffs expect that discovery will confirm that, in the past,
16 Defendants have engaged in a deliberate strategy of mooting the claims of applicants adversely
17 impacted by CARRP before a ruling on the merits could be obtained. In Muhanna v. USCIS, No.
18 14-cv-05995 (C.D. Cal. July 31, 2014), five individual plaintiffs filed suit challenging the delay
19 to their naturalization applications caused by CARRP.4 Within months of the commencement of 20
that lawsuit, USCIS adjudicated the naturalization applications of all five plaintiffs, each of 21
whom had been waiting years for a decision, and the lawsuit was voluntarily dismissed as moot. 22
Muhanna, No. 14-cv-05995, Dkt. 51 (entered Dec. 23, 2014); see also Pasquarella Decl., ¶ 4. In 23
Arapi v USCIS, No. 16-cv-00692 JLR (E.D. Mo. 2016), twenty individual plaintiffs filed suit 24
asserting causes of action relating to application of CARRP to their pending naturalization 25

26
4 Plaintiffs in Muhanna were represented by some of the same attorneys representing Plaintiffs here.

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1 applications. Once again, promptly after their suit was commenced, USCIS moved to adjudicate

2 the applications of all twenty plaintiffs. Nineteen of the plaintiffs voluntarily dismissed their

3 claims at that point, and USCIS moved to dismiss the remaining plaintiff’s claims as moot.

4 Arapi, No. 16-cv-00692 JLR, Dkt. 22 (filed Dec. 19, 2016).

5

Defendants already have deployed this strategy in this case, in an attempt to moot the

6 individual claims of a named Plaintiff and transfer venue from this Court to North Dakota.

7 When Plaintiffs initiated this lawsuit in January 2017, named Plaintiff Abdiqafar Wagafe had

8 been waiting over three and a half years with no explanation for a decision on his application to

9 naturalize as a U.S. citizen. Second Amended Complaint, Dkt. 47 ¶¶ 152-53. Just five days after

10 Plaintiffs filed their initial Motion for Class Certification, Defendant USCIS suddenly scheduled

11 Plaintiff Wagafe for an interview on his naturalization application. Id. ¶ 154. Following his

12 interview, which occurred on February 22, 2017, Mr. Wagafe’s application was immediately

13 approved and he became a U.S. citizen on March 2, 2017. Id. Defendants filed their Motion to

14 Transfer Venue on the same day, contending that because Plaintiff Wagafe no longer had an

15 active individual-capacity claim, and he was the only named Plaintiff who resided in the forum, 16 the interests of justice favored transfer.5 Dkt. 39 at 5-8.

17

As Defendants have a practice of attempting to evade judicial review of CARRP

18 challenges by adjudicating individual Plaintiffs’ claims and then seeking dismissal on mootness

19 grounds, class certification is necessary to ensure judicial review of these important claims. See

20 Pitts, 653 F.3d at 1090–91 (holding defendant’s “unaccepted offer of judgment did not moot

21 Pitts's case because his claim is transitory in nature and may otherwise evade review,” thereby

22 “avoid[ing] the spectre of plaintiffs filing lawsuit after lawsuit, only to see their claims mooted

23 before they can be resolved”); Ellsworth v. U.S. Bank, N.A., 30 F. Supp. 3d 886, 909 (N.D. Cal.

24 2014) (holding that the defendant’s attempt to refund the plaintiff’s money did not moot the class

25

26

5 Plaintiffs have since filed a Second Amended Complaint (Dkt. 47), which adds three named Plaintiffs—

all of whom reside in King County, Washington.

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1 action claims because the bank’s behavior was evidence of a “calculated strategy that includes

2 picking off named Plaintiffs”); Ramirez v. Trans Union, LLC, No. 3:12-CV-00632 (JSC), 2013

3 WL 3752591, at *2 (N.D. Cal. July 17, 2013) (holding that Rule 68 Offer of Judgment to the

4 named plaintiff did not moot the class action because the plaintiff’s claims would “evade review”

5 if the defendant were able to “pick off” each subsequent lead plaintiff).

6

IV. CONCLUSION

7

Plaintiffs respectfully request that the Court grant their Motion for Class Certification and

8 enter an order certifying the proposed classes under Rules 23(a) and 23(b)(2), appoint Plaintiffs

9 as class representatives for the respective classes, and appoint Plaintiffs’ counsel as class counsel

10 for both classes.

11

12

13 DATED: April 10, 2017

14 S/Jennifer Pasquarella (admitted pro hac vice) s/ Laura K. Hennessey ACLU Foundation of Southern California Laura K. Hennessey #47447

15 1313 W. 8th Street Los Angeles, CA 90017

s/ David A. Perez David A. Perez #43959

16 Telephone: (213) 977-5236 Facsimile: (213) 997-5297

s/ Harry H. Schneider, Jr. Harry H. Schneider, Jr. #9404

17 jpasquarella@aclusocal.org

s/ Nicholas P. Gellert Nicholas P. Gellert #18041

18

s/ Kate Reddy

Kate Reddy #42089

19

Attorneys for Plaintiffs

Perkins Coie LLP

20

1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099

21

Telephone: 206.359.8000

Facsimile: 206.359.9000

22

Email: HSchneider@perkinscoie.com

NGellert@perkinscoie.com

23

KReddy@perkinscoie.com

DPerez@perkinscoie.com

24

LHennessey@perkinscoie.com

25

26

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1 s/Matt Adams s/Glenda M. Aldana Madrid
2 Matt Adams #28287 Glenda M. Aldana Madrid #46987
3 Northwest Immigrant Rights Project 615 Second Ave., Ste. 400
4 Seattle, WA 98122 Telephone: (206) 957-8611
5 Facsimile: (206) 587-4025 matt@nwirp.org
6 glenda@nwirp.org
7 s/Stacy Tolchin (admitted pro hac vice) Law Offices of Stacy Tolchin
8 634 S. Spring St. Suite 500A Los Angeles, CA 90014
9 Telephone: (213) 622-7450 Facsimile: (213) 622-7233
10 Stacy@tolchinimmigration.com
11 s/Hugh Handeyside Hugh Handeyside #39792
12 s/Lee Gelernt (admitted pro hac vice) s/Hina Shamsi (admitted pro hac vice)
13 American Civil Liberties Union Foundation 125 Broad Street
14 New York, NY 10004 Telephone: (212) 549-2616
15 Facsimile: (212) 549-2654 lgelernt@aclu.org
16 hhandeyside@aclu.org hshamsi@aclu.org
17
18
19
20
21
22
23
24
25
26

s/Trina Realmuto (admitted pro hac vice) s/Kristin Macleod-Ball (admitted pro hac vice) National Immigration Project
of the National Lawyers Guild 14 Beacon St., Suite 602 Boston, MA 02108 Telephone: (617) 227-9727 Facsimile: (617) 227-5495 trina@nipnlg.org kristin@nipnlg.org
s/Emily Chiang Emily Chiang #50517 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Echiang@aclu-wa.org

FIRST AMENDED MOTION FOR CLASS CERTIFICATION (No. 2:17-cv-00094-JCC) – 22
135029858.2

App. 083

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:81-77-1c1v-7010,00944/2-J3C/2C018D,oIcDu:m10e8n4t 479723F,ilDekdtE04n/t1ry0:/1-72, Page 2897 of 25918

1

CERTIFICATE OF SERVICE

2 The undersigned certifies that on the dated indicated below, I caused service of the

3 foregoing MOTION FOR CLASS CERTIFICATION via the CM/ECF system that will

4 automatically send notice of such filing to all counsel of record herein.

5 DATED this 10th day of April, 2017, at Seattle, Washington.

6

s/ Laura K. Hennessey

7

Laura K. Hennessey #47447

8

Attorneys for Plaintiffs

Perkins Coie LLP

9

1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099

10

Telephone: 206.359.8000

11

Facsimile: 206.359.9000 Email: LHennessey@perkinscoie.com

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

CERTIFICATE OF SERVICE (No. 2:17-cv-00094-JCC) – 23
135029858.2

App. 084

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-010, 049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4t/r1y8: 1/1-72, PPaaggee818ooff35618

1

The Honorable John C. Coughenour

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

11 ABDIQAFAR WAGAFE, et al.,
12 Plaintiffs,
13 v.
14
15 UNITED STATES CITIZENSHIP AND 16 IMMIGRATION SERVICES, et al.,
Defendants.1 17
18

No. 2:17-cv-00094-JCC
DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT FOR LACK OF JURISDICTION, IN PART, AND FAILURE TO STATE A CLAIM, IN PART
ORAL ARGUMENT REQUESTED
NOTE ON MOTION CALENDAR: May 12, 2017

19

20

21

22

23

24

25

26

27 1 Ms. Lori Scialabba, named as a defendant in her official capacity as Acting Director, United States Citizenship and 28 Immigration Services, has been replaced as USCIS Acting Director by Mr. James McCament, who is automatically
substituted for Ms. Scialabba as a defendant in this action by operation of Fed. R. Civ. P. 25(d).

DEFENDANTS’ MOTION TO DISMISS (2:17-cv-00094-JCC)

App. 085

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-010, 049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4t/r1y8: 1/1-72, PPaaggee829ooff35618

1

Table of Contents

2 Table of Contents ............................................................................................................................. i

3 Table of Authorities ....................................................................................................................... iii
4 I. INTRODUCTION ................................................................................................................. 1
5
II. LEGAL STANDARDS ......................................................................................................... 2 6

7

A. RULE 12(B)(1) STANDARD................................................................................................................... 2

8

B. RULE 12(B)(6) STANDARD................................................................................................................... 3

9 III. BACKGROUND ................................................................................................................... 4

10

A. IMMIGRATION PROCESSES ................................................................................................................... 4

11

1. Naturalization Process.................................................................................................................... 4

12 2. Adjustment of Status Process....................................................................................................... 5
13 B. CARRP .................................................................................................................................................... 6
14

15

C. EXECUTIVE ORDERS .............................................................................................................................. 7

16

D. FACTUAL ALLEGATIONS ...................................................................................................................... 8

17 IV. ARGUMENT ......................................................................................................................... 9

18

A. BECAUSE PLAINTIFFS ADMIT THEY HAVE NO INTEREST IN ADJUDICATION OF THEIR

19

APPLICATIONS, NO REAL CASE OR CONTROVERSY EXISTS........................................................ 9

20

B. PLAINTIFFS’ FIRST, SECOND, THIRD, FIFTH, SIXTH, AND TENTH CLAIMS FOR RELIEF

MUST BE DISMISSED BECAUSE PLAINTIFFS LACK STANDING .................................................10

21

1. Because Adjudication of Plaintiffs’ Benefit Applications Has Not Been Suspended

22

Pursuant to E.O. 13780, Plaintiff Have Not Suffered Injury-in-Fact .............................11

23

2. Plaintiffs Lack Standing To Complain About a Violation of the Constitution’s

24

Uniform Rule of Naturalization Clause .................................................................................. 12

25

C. PLAINTIFFS’ CLAIMS CONCERNING “EXTREME VETTING” UNDER E.O. 13780 MUST BE

26

DISMISSED BECAUSE THEY FAIL TO ALLEGE SUFFICIENT FACTS TO GIVE RISE TO PLAUSIBLE CLAIMS FOR RELIEF ...................................................................................................... 13

27

28

DEFENDANTS’ MOTION TO DISMISS - i (2:17-cv-00094-JCC)

App. 086

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-010, 049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4t/r1y8: 1/1-72, PPaaggee930ooff35618

1

D. PLAINTIFFS’ FOURTH CLAIM FOR RELIEF FAILS TO ALLEGE A PROCEDURAL DUE PROCESS VIOLATION AND MUST BE DISMISSED BECAUSE PLAINTIFFS HAVE NOT BEEN DEPRIVED

2

OF A PROTECTED LIBERTY OR PROPERTY INTEREST...................................................................14

3

E. PLAINTIFFS’ SEVENTH CLAIM FOR RELIEF MUST BE DISMISSED BECAUSE THE

IMMIGRATION AND NATIONALITY ACT DOES NOT CREATE A PRIVATE RIGHT

4

OF ACTION ............................................................................................................................................. 17

5 F. PLAINTIFFS’ EIGHTH CLAIM FOR RELIEF FAILS TO STATE A CLAIM UNDER THE APA

6

BECAUSE IT DOES NOT RELATE TO A FINAL AGENCY ACTION ..............................................20

7

G. PLAINTIFFS’ NINTH CLAIM FOR RELIEF MUST BE DISMISSED FOR FAILURE TO STATE A

8

CLAIM AS THE ALLEGATIONS IN THE COMPLAINT ESTABLISH CARRP IS NOT A “SUBSTANTIVE” OR “LEGISLATIVE” RULE .................................................................................... 21

9 V. CONCLUSION.................................................................................................................... 24

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ MOTION TO DISMISS - ii (2:17-cv-00094-JCC)

App. 087

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-010, 049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4t/r1y8: 1/1-72, PPaaggee941ooff35618

1

Table of Authorities

2

CASES

3
Ahmadi v. Chertoff,
4
No. 07-cv-03455, 2007 WL 3022573 (N.D. Cal. Oct. 15, 2007)......................................................................16, 24
5 Alcaraz v. Block,

6

746 F.2d 593 (9th Cir. 1984) ..................................................................................................................................23

Aldarwich v. Hazuda,
7
593 F. App’x 654 (9th Cir. 2015) .............................................................................................................................9

8 Alexander v. Sandoval,

9

532 U.S. 275 (2001)................................................................................................................................................17

Allen v. Wright,
10
468 U.S. 737 (1984)................................................................................................................................................10

11 American Mining Congress v. Mine Safety & Health Administration,

12

995 F.2d 1106 (D.C. Cir. 1993) ........................................................................................................................20, 23

13 Ashcroft v. Iqbal,
556 U.S. 662 (2009)......................................................................................................................................3, 12, 13
14 Bell Atl. Corp. v. Twombly,

15

550 U.S. (2007)........................................................................................................................................2, 3, 12, 13

16 Bennett v. Spear,
520 U.S. 154 (1997)................................................................................................................................................20
17 Board. of Regents of State Colleges v. Roth,

18

408 U.S. 564 (1972)................................................................................................................................................15

19 Brock v. Pierce Cty.,
476 U.S. 253 (1986)................................................................................................................................................16
20 California v. Sierra Club,

21

451 U.S. 287 (1981)................................................................................................................................................18

22 Cannon v. University of Chicago,
441 U.S. 677 (1979)................................................................................................................................................17
23 Cazarez-Gutierrez v. Ashcroft,

24

382 F.3d 905 (9th Cir. 2004) ..................................................................................................................................12

25 Chavez v. United States,

683 F.3d 1102 (9th Cir. 2012) ..................................................................................................................................3
26
Cook v. Reinke,

27

484 F. App’x 110 (9th Cir. 2012) .............................................................................................................................9

28

DEFENDANTS’ MOTION TO DISMISS - iii (2:17-cv-00094-JCC)

App. 088

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-010, 049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4t/r1y8: 1/1-72, PPaaggee952ooff35618

Cort v. Ash,
1
422 U.S. 66 (1975)..................................................................................................................................................18
2 D.C. Circuit in American Mining Congress v. Mine Safety & Health Administration,

3

995 F.2d 1106, 1109 (D.C. Cir. 1993) ....................................................................................................................22

Erringer v. Thompson,
4
371 F.3d 625 (9th Cir. 2014) ......................................................................................................................21, 22, 23

5 Ezell v. United States,

6

778 F.3d 762 (9th Cir. 2015) ..................................................................................................................................16

7 Fedorenko v. United States,
449 U.S 490 (1981).................................................................................................................................................15
8 Flores v. City of Baldwin Park,

9

No. 14-cv-9290, 2015 WL 756877 (C.D. Cal. Feb. 23, 2015)................................................................................12

10 French v. Edwards,
80 U.S. (13 Wall.) 506 (1872) ................................................................................................................................16
11 Gibbons v. Ogden,

12

22 U.S. (9 Wheat.) 1 (1824)....................................................................................................................................12

13 Gospel Missions of America v. City of Los Angeles,
328 F.3d 548 (9th Cir. 2003) ....................................................................................................................................9
14 Hamdan v. Gonzales,

15

425 F.3d 1051 (7th Cir. 2005) ................................................................................................................................15

16 Hani v. Gonzales,
No. 3:07-cv-517-S, 2008 WL 2026092 (W.D. Ky. May 8, 2008) ..........................................................................24
17 Hemp Indus. Ass’n v. DEA,

18

333 F.3d 1082 (9th Cir. 2003) .............................................................................................................. 20, 21, 22, 23

19 Hollingsworth v. Perry,

133 S. Ct. 2652 (2013)............................................................................................................................................10
20
In re Siggers,

21

132 F.3d 333 (6th Cir. 1997) ..................................................................................................................................16

22 In re Stac Electronics Securities Litigation,

89 F.3d 1399 (9th Cir. 1996) ....................................................................................................................................6
23
Jain v. Immigration & Naturalization Serv.,

24

612 F.2d 683, 686 (2d Cir. 1979)…………………………………………………………………………………...5

25 Jarecha v. INS,

417 F.2d 220 (5th Cir. 2009) ..................................................................................................................................14
26
Kleindienst v. Mandel,

27

408 U.S. 753, 770 (1972)........................................................................................................................................12

28

DEFENDANTS’ MOTION TO DISMISS - iv (2:17-cv-00094-JCC)

App. 089

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-010, 049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4t/r1y8: 1/1-72, PPaaggee963ooff35618

Korab v. Fink,
1
797 F.3d 572 (9th Cir. 1967) ..................................................................................................................................12
2 L.A. Closeout, Inc. v. DHS,

3

513 F.3d 940 (9th Cir. 2008) ..................................................................................................................................23

Lance v. Coffman,
4
549 U.S. 437 (2007)................................................................................................................................................10

5 Levine v. City of Alameda,

6

525 F.3d 903 (9th Cir. 2008) ..................................................................................................................................15

7 Lexmart Int’l v. Static Control Components, Inc.,
134 S. Ct. 1377 (2014)............................................................................................................................................10
8 Lujan v. Defenders of Wildlife,

9

504 U.S. 555 (1992)..........................................................................................................................................10, 12

10 Matter of Blas,
151 & N Dec. 626, 630 (BIA 1974)..........................................................................................................................6
11 McCreath v. Holder,

12

573 F.3d 38 (1st Cir. 2009).....................................................................................................................................15

13 Mendez-Garcia v. Lynch,
840 F.3d 655 (9th Cir. 2016) ..................................................................................................................................15
14 Mendiondo v. Centinela Hosp. Med. Ctr.,

15

521 F.3d 1097 (9th Cir. 2008) ..................................................................................................................................3

16 Mora-Meraz v. Thomas,
601 F.3d 933 (9th Cir. 2010) ............................................................................................................................20, 23
17 Morgovsky v. DHS,

18

517 F. Supp. 2d. 581 (D. Mass. 2007) ....................................................................................................................15

19 Nativi-Gomez v. Ashcroft,

344 F.3d 805 (8th Cir. 2003) ..................................................................................................................................15
20
Novak v. United States,

21

795 F.3d 1012 (9th Cir. 2015) ................................................................................................................................10

22 Office of Pers. Mgmt. v. Richmond,

496 U.S. 414 (1990)................................................................................................................................................16
23
Olim v. Wakinekona,

24

461 U.S. 238 (1983)................................................................................................................................................17

25 Oregon Natural Desert Ass’n v. United States Forest Service,

465 F.3d 977 (9th Cir. 2006) ..................................................................................................................................20
26
Orkin v. Taylor,

27

487 F.3d 734 (9th Cir. 2007) ..................................................................................................................................15

28

DEFENDANTS’ MOTION TO DISMISS - v (2:17-cv-00094-JCC)

App. 090

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-010, 049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4t/r1y8: 1/1-72, PPaaggee974ooff35618

Pinkus v. U.S. Bd. of Parole,
1
507 F.2d 1107 (D.C. Cir. 1974) ..............................................................................................................................23
2 Rodriguez v. Superintendent, Bay State Corr. Ctr.,

3

139 F.3d 270 (1st Cir. 1998)...................................................................................................................................16

Safe Air for Everyone v. Meyer,
4
373 F.3d 1035 (9th Cir. 2004) ..................................................................................................................................3

5 Sandoval-Luna v. Mukasey,

6

526 F.3d 1243 (9th Cir. 2008) ................................................................................................................................15

7 Santos v. INS,
375 F.2d 262 (9th Cir. 1967) ....................................................................................................................................6
8 Sawan v. Chertoff,

9

589 F. Supp. 2d 817 (S.D. Tex. 2008) ....................................................................................................................24

10 So. Cal. Edison Co. v. FERC,
770 F.2d 779 (9th Cir. 1985) ..................................................................................................................................23
11 Spreewell v. Golden State Warriors,

12

266 F.3d 979 (9th Cir. 2001) ....................................................................................................................................3

13 St. Regis Mohawk Tribe, N.Y. v. Brock,
769 F.2d 37 (2d Cir. 1985)......................................................................................................................................16
14 Suter v. Artist M.,

15

503 U.S. 347 (1992)................................................................................................................................................17

16 Touche Ross & Co. v. Redington,
442 U.S. 560 (1979)....................................................................................................................................16, 17, 18
17 Transamerica Mortgage Advisors, Inc. v. Lewis,

18

444 U.S. 11 (1979)..................................................................................................................................................17

19 United States v. Ginsberg,

243 U.S. 472 (1917)................................................................................................................................................15
20
United States v. James Daniel Good Real Prop.,

21

510 U.S. 43 (1993)..................................................................................................................................................16

22 United States v. Ritchie,

342 F.3d 903 (9th Cir. 2003) ....................................................................................................................................6
23
Universities Research Ass’n v. Coutu,

24

450 U.S. 754 (1981)................................................................................................................................................18

25 L.A. Closeout, Inc. v. DHS,

513 F.3d 940 (9th Cir. 2008) ..................................................................................................................................22
26
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc.,

27

454 U.S. 464, 485-86 (1982) ..................................................................................................................................12

28

DEFENDANTS’ MOTION TO DISMISS - vi (2:17-cv-00094-JCC)

App. 091

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-010, 049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4t/r1y8: 1/1-72, PPaaggee985ooff35618

Washington v. Trump,
1
No. 17-35105, 2017 WL 526497 (9th Cir. 2017) ...................................................................................................11
2 White v. Lee,

3

227 F.3d 1214 (9th Cir. 2000) ..................................................................................................................................2

Whitman v. Am. Trucking Ass’n,
4
531 U.S. 457 (2001)................................................................................................................................................20

5 Wilson v. Bank of America, N.A.,

6

No. 12-cv-1532, 2013 WL 275018 (W.D. Wash. Jan. 24, 2013)..............................................................................9

7 Wilson v. Lynch,
835 F.3d 1083 (9th Cir. 2016) ................................................................................................................................21
8 Wolfe v. Strankman,

9

392 F.3d 358 (9th Cir. 2004) ....................................................................................................................................3

10

STATUTES

11
5 U.S.C. § 551(4).........................................................................................................................................................20

12 5 U.S.C. § 553(b)(3)(A).........................................................................................................................................20, 22

13 5 U.S.C. § 704 .............................................................................................................................................................20
8 U.S.C. § 1101(f)(6).....................................................................................................................................................4
14
8 U.S.C. § 1154(b).........................................................................................................................................................5
15 8 U.S.C. § 1159(b).......................................................................................................................................................21

16 8 U.S.C. § 1182 .............................................................................................................................................................6

17 8 U.S.C. § 1182(a)(3) ....................................................................................................................................................6
8 U.S.C. § 1182(a)(6)(C)(i) ...........................................................................................................................................4
18 8 U.S.C. § 1227(a)(4) ....................................................................................................................................................6

19 8 U.S.C. § 1252(a)(2)(B)(ii) ..........................................................................................................................................9

20 8 U.S.C. § 1255 ....................................................................................................................................................passim
8 U.S.C. § 1255(a) ................................................................................................................................................passim
21 8 U.S.C. § 1255(a)(2) ..............................................................................................................................................4, 20

22 8 U.S.C. § 1255(i)(2)(a).................................................................................................................................................5

23 8 U.S.C. § 1357(b).......................................................................................................................................................21
8 U.S.C. § 1421(a) .........................................................................................................................................................4
24 8 U.S.C. § 1421(c)...............................................................................................................................................5, 9, 19

25 8 U.S.C. § 1423 ...........................................................................................................................................................22

26 8 U.S.C. § 1427 ....................................................................................................................................................passim
8 U.S.C. § 1427(a)...................................................................................................................................................4, 22
27 8 U.S.C. § 1427(d).........................................................................................................................................................4
28 8 U.S.C. § 1427(e).........................................................................................................................................................4

DEFENDANTS’ MOTION TO DISMISS - vii (2:17-cv-00094-JCC)

App. 092

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-010, 049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4t/r1y8: 1/1-72, PPaaggee996ooff35618

8 U.S.C. § 1429 ...................................................................................................................................................4, 6, 22
1
8 U.S.C. § 1445(a) .......................................................................................................................................................19
2 8 U.S.C. § 1446(a)................................................................................................................................................passim
3 8 U.S.C. § 1446(b).........................................................................................................................................................5
8 U.S.C. § 1446(c) .........................................................................................................................................................4
4
8 U.S.C. § 1447(a) .........................................................................................................................................................4
5 8 U.S.C. § 1447(b).......................................................................................................................................5, 16, 18, 19
6 8 U.S.C. § 1571(b).......................................................................................................................................................15

7

REGULATIONS

8

9 8 C.F.R. § 103.2(b)(1) ...................................................................................................................................................5

10 8 C.F.R. § 204.1(a)(1)....................................................................................................................................................5

11 8 C.F.R. § 209.1...........................................................................................................................................................21

12 8 C.F.R. § 245.1.............................................................................................................................................................5

13 8 C.F.R. § 245.2(b)-(c) ................................................................................................................................................23

14 8 C.F.R. § 316.10(a)(2)..................................................................................................................................................4

15 8 C.F.R. § 316.2.....................................................................................................................................................21, 22

16 8 C.F.R. § 335.1.......................................................................................................................................................5, 19

17 8 C.F.R. § 335.2(b)................................................................................................................................................18, 19

18 8 C.F.R. § 336.2(b)........................................................................................................................................................4

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ MOTION TO DISMISS - viii (2:17-cv-00094-JCC)

App. 093

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case:21:81-77-1c1v-7010,00944/2-J3C/2C018D,oIcDu:m10e8n4t 576723F,ilDekdtE04n/t1ry8:/1-72, Page 1907 of 35618

1

I. INTRODUCTION

2 On January 23, 2017, Plaintiffs filed a Complaint alleging U.S. Citizenship and
3 Immigration Services (“USCIS”) unlawfully delayed adjudication of Plaintiffs’ applications for
4 immigration benefits under a policy known as the Controlled Application Review and Resolution
5 Program (“CARRP”). Complaint, ECF No. 1, at ¶¶ 1-2. On January 27, 2017, the President
6 issued Executive Order (“E.O.”) 13769, which temporarily suspended entry of visa holders from
7 seven designated countries. 82 Fed. Reg. 8977 (Feb. 1, 2017). On February 1, 2017, Plaintiffs
8 filed a First Amended Complaint, adding several causes of action related to E.O. 13769,
9 including allegations that section 3(c) unlawfully suspended adjudication of Plaintiffs’ benefit
10 applications. ECF No. 17, at ¶¶ 54, 58-60, 154-158, 159-164, 165-166, 171-172, 173-178.
11 On February 2, 2017, the USCIS Acting Director clarified that E.O. 13769 did not affect
12 the processing of benefit applications of individuals in the United States. Exhibit A (hereinafter
13 “Scialabba Memo”). Then, on February 7, 2017, Plaintiffs filed a Notice of Related Cases, ECF
14 No. 22, in which they acknowledged that, in light of the Scialabba Memo, “if Defendants adhere
15 to the position stated in the [Scialabba Memo], it would appear that the section 3(c) claims in this
16 action may become moot.”2 The “section 3(c) claims” to which Plaintiffs referred were Claims
17 for Relief 1-3, 5, and 6, which were all based on the allegation USCIS had suspended
18 adjudication of immigration benefit applications from people from the seven countries
19 designated by the Executive Order.
20 On March 6, 2017, the President issued E.O. 13780, which revoked E.O. 13769 effective
21 March 16, 2017. E.O. 13780, § 13, 82 Fed. Reg. 13209, 13218 (Mar. 9, 2017). On April 4, 2017,
22 Plaintiffs filed a Second Amended Complaint (“SAC”). ECF No. 47. Despite their earlier
23 acknowledgement to the contrary, Plaintiffs again alleged Defendants had suspended
24 adjudication of benefit applications from Plaintiffs. SAC, ECF No. 47, at ¶¶ 249-61, 265-72.
25 As Plaintiffs correctly said in their Notice of Related Cases, ECF No. 22, these claims are
26 moot. Specifically, their First, Second, Third, Fifth, and Sixth Claims present no live case or
27

28 2 Plaintiffs also declined to pursue this theory in their motion for class certification. See Motion for Class
Certification, ECF No. 26, at 3 n.1.

DEFENDANTS’ MOTION TO DISMISS - 1 (2:17-cv-00094-JCC)

App. 094

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case:21:81-77-1c1v-7010,00944/2-J3C/2C018D,oIcDu:m10e8n4t 576723F,ilDekdtE04n/t1ry8:/1-72, Page 1918 of 35618

1 controversy because (1) E.O. 13769 has been entirely rescinded, (2) even if it were still in force,

2 binding guidance from the USCIS Acting Director confirms USCIS is processing benefit

3 applications for individuals present in the United States regardless of country of origin, and (3)

4 nothing in E.O. 13780 directs USCIS to suspend adjudication of benefit applications of

5 applicants present in the United States. This is illustrated by the recent approval of Mr. Wagafe’s 6 naturalization application,3 and the issuance of a notice of intent to deny Mr. Ostadhassan’s

7 adjustment-of-status application. See SAC ¶154; Exhibit B (Declaration of Leslie Tritten).

8

Further, insofar as Plaintiffs challenge the so-called “extreme vetting” under E.O. 13780,

9 those claims fail to state claims upon which relief can be granted as the complaint does not allege

10 sufficient facts to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,

11 550 U.S. 540, 555 (2007).

12

Plaintiffs’ Fourth Claim fails to state a claim for relief as a matter of law, as they lack a

13 constitutionally protected liberty or property interest in either the immigration benefits sought or

14 the pace of adjudication. The remaining allegations—Claims for Relief Seven, Eight, Nine, and

15 Ten—must be dismissed because they also fail to state claims upon which relief can be granted.

16 Even accepting Plaintiffs’ descriptions of CARRP as accurate for purposes of this motion,

17 Plaintiffs fail to demonstrate CARRP is a final agency action under the Administrative Procedure

18 Act (“APA”), or a “legislative rule” for purposes of APA notice-and-comment rulemaking.

19 Further, Plaintiffs do not have a private right of action under either the Immigration and

20 Nationality Act (“INA”) or the Constitution’s Uniform Rule of Naturalization clause.

21 Accordingly, the Court should dismiss the Second Amended Complaint in its entirety—in part,

22 for lack of jurisdiction, and, in part, for failure to state claims upon which relief can be granted.

23

II. LEGAL STANDARDS

24

A. Rule 12(b)(1) Standard

25 Because mootness and standing both pertain to a federal court’s subject matter
26 jurisdiction, they are properly raised in a Rule 12(b)(1) motion to dismiss. White v. Lee, 227 F.3d
27

28 3 As Mr. Wagafe’s application has been granted, his individual-capacity claims are now moot and he should be
dismissed from the action.

DEFENDANTS’ MOTION TO DISMISS - 2 (2:17-cv-00094-JCC)

App. 095

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

Case:21:81-77-1c1v-7010,00944/2-J3C/2C018D,oIcDu:m10e8n4t 576723F,ilDekdtE04n/t1ry8:/1-72, Page 1929 of 35618

1 1214, 1242 (9th Cir. 2000). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe

2 Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In reviewing a facial challenge,

3 which contests the sufficiency of the pleadings, the court considers only the allegations of the

4 complaint, accepting such allegations as true and drawing reasonable inferences in favor of the

5 plaintiff. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). In resolving a factual attack,

6 however, “the district court may review evidence beyond the complaint” and “need not presume

7 the truthfulness of the plaintiff’s allegations.” Safe Air for Everyone, 373 F.3d at 1039.

8

B. Rule 12(b)(6) Standard

9

Under Rule 12(b)(6), dismissal is appropriate when the complaint lacks a cognizable

10 legal theory or sufficient facts to support a cognizable legal theory. Mendiondo v. Centinela

11 Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). “To survive a motion to dismiss, a

12 complaint must contain more than ‘labels and conclusions’ or a ‘formulaic recitation of the

13 elements of a cause of action.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

14 Corp. v. Twombly, 550 U.S. at 555). Rather, the complaint must include “sufficient factual

15 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (internal

16 quotations and citations omitted).

17

“A claim has facial plausibility when the plaintiff pleads factual content that allows the

18 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

19 Id. (citation omitted). Under Rule 12(b)(6), as with a facial challenge under Rule 12(b)(1), 20 allegations of fact in the complaint are taken as true and construed in the light most favorable to 21 the nonmoving party. Spreewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 22 Allegations of law framed as factual statements, however, need not be taken as true. W. Min. 23 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981) (“We do not, however, necessarily assume 24 the truth of legal conclusions merely because they are cast in the form of factual allegations”). 25 Likewise, merely conclusory statements and formulaic recitations of the elements of a cause of 26 action are not entitled to the presumption of truth. Chavez v. United States, 683 F.3d 1102, 110827 09 (9th Cir. 2012). 28

DEFENDANTS’ MOTION TO DISMISS - 3 (2:17-cv-00094-JCC)

App. 096

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee11030ooff35618

1

III. BACKGROUND

2

A. Immigration Processes

3

1. Naturalization Process

4

The Secretary of Homeland Security has “sole authority to naturalize persons as citizens

5 of the United States.” 8 U.S.C. § 1421(a).4 Under the Secretary’s authority, USCIS adjudicates

6 naturalization applications, to include investigating applicants, conducting examinations, and

7 determining whether to grant applications. 8 U.S.C. §§ 1446(a), (c). If USCIS denies an

8 application, the applicant may request a hearing before an immigration officer. 8 U.S.C. §

9 1447(a); 8 C.F.R. § 336.2(b).

10

The statutory requirements for naturalization are described in 8 U.S.C. §§ 1427 and 1429.

11 The alien must show, inter alia, that he or she was lawfully admitted for permanent residence in

12 the United States in accordance with all applicable provisions of the INA, resided continuously

13 and was physically present within the United States for specified periods of time, was and still is

14 a person of good moral character, and is attached to the principles of the Constitution. 8 U.S.C.

15 §§ 1427(a), (d), 1429. To have been lawfully admitted for permanent residence, the alien must

16 have been admissible at the time of adjusting to permanent resident status. 8 U.S.C. § 1255(a)(2).

17 An alien who has sought any immigration benefit by fraud or willfully misrepresenting a

18 material fact is inadmissible. 8 U.S.C. § 1182(a)(6)(C)(i). Certain behavior, including giving

19 false testimony to obtain an immigration benefit, disqualifies an applicant from demonstrating

20 good moral character. See, e.g., 8 U.S.C. § 1101(f)(6). Similarly, membership in or financial

21 contributions to a terrorist organization may make the applicant inadmissible, and may adversely

22 reflect on an applicant’s good moral character. 8 U.S.C. § 1427(e); 8 C.F.R. § 316.10(a)(2).

23

As is generally the case with all benefit applications, USCIS conducts security checks of

24 naturalization applicants to enhance national security, public safety, and ensure the integrity of

25 the immigration process. USCIS is required by statute and regulation to complete a full

26
27 4 The transfer of the former Immigration and Naturalization Service’s (“INS”) naturalization functions to the
Department of Homeland Security included the transfer of the authority to naturalize from the Attorney General to
28 the Secretary of Homeland Security. See Homeland Security Act of 2002, Pub. L. No.107-296, § 1512(d), 116 Stat.
2135, 2310 (Nov. 25, 2002).

DEFENDANTS’ MOTION TO DISMISS - 4 (2:17-cv-00094-JCC)

App. 097

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee11041ooff35618

1 background investigation of naturalization applicants. Indeed, Congress has mandated that

2 USCIS “receiv[e] confirmation from the Federal Bureau of Investigation (“FBI”) that a full

3 criminal background check has been completed, except for those excepted by regulation as of

4 January 1, 1997,” before adjudicating a naturalization application. Pub. L. No. 105-119, Title I,

5 111 Stat. 2448 (Nov. 26, 1997).

6

USCIS must, therefore, thoroughly investigate the background of every naturalization

7 applicant to determine whether the applicant is eligible to naturalize. See 8 U.S.C. § 1446(a), (b);

8 8 C.F.R. § 335.1 (“The investigation shall consist, at a minimum, of a review of all pertinent

9 records, police department checks, and a neighborhood investigation in the vicinities where the

10 applicant has resided and has been employed, or engaged in business, for at least the five years

11 immediately preceding the filing of the application.”).

12

If USCIS does not decide an application within 120 days following the applicant’s

13 examination, the applicant may sue in district court to obtain a determination of the application.

14 8 U.S.C. § 1447(b). A naturalization applicant may file a Form N-336 with USCIS to appeal a

15 denial of naturalization, and if that is denied, then seek de novo review in district court. 8 U.S.C.

16 § 1421(c).

17

2. Adjustment of Status Process

18

In the past, a non-immigrant alien who sought to obtain permanent residence in the

19 United States had to leave the country and seek an immigrant visa at a U.S. consulate abroad. To

20 alleviate that burden, Congress created the adjustment-of-status process, subject to the ultimate

21 discretion of, originally, the Attorney General, and now, the Secretary of Homeland Security. 8

22 U.S.C. § 1255; Jain v. Immigration & Naturalization Serv., 612 F.2d 683, 686 (2d Cir. 1979).

23

An alien becomes eligible to adjust to lawful permanent resident (“LPR”) in several

24 circumstances, including through marriage to a U.S. citizen. See, e.g., 8 U.S.C. § 1255(a); 8

25 C.F.R. § 245.1. For an alien married to a U.S. citizen and residing within the United States, the

26 process has two-steps. First, the citizen spouse files a Petition for Alien Relative (“Form I-130”)

27 on behalf of the alien spouse, to establish the existence of the marital relationship. 8 U.S.C.

28 §1154(b); 8 C.F.R. § 204.1(a)(1). Second, the alien spouse may file an adjustment-of-status

DEFENDANTS’ MOTION TO DISMISS - 5 (2:17-cv-00094-JCC)

App. 098

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee11052ooff35618

1 application. 8 U.S.C. § 1255(a); 8 C.F.R. § 245.1.

2

The alien spouse must: (1) be eligible to receive an immigrant visa; (2) be admissible to

3 the United States; and (3) have a visa immediately available to him or her at the time the

4 application is filed. 8 U.S.C. § 1255(a). The alien has the burden to demonstrate eligibility for

5 the benefit, including admissibility. 8 U.S.C. § 1255(i)(2)(a); 8 C.F.R. § 103.2(b)(1). An alien is

6 inadmissible if any of the factual circumstances described in the law exist. For example, an alien

7 may be inadmissible on grounds related to health, criminality, national security, and

8 misrepresentations. 8 U.S.C. § 1182. An alien has no right to adjustment to LPR status, even if

9 the alien meets the objective eligibility requirements for adjustment of status; the grant of LPR

10 status is solely within the discretion of the Secretary of Homeland Security. 8 U.S.C. § 1255(a);

11 Diric v. INS, 400 F.2d 658, 660-61 (9th Cir. 1968), cert. denied, 394 U.S. 1015 (1969); Santos v.

12 INS, 375 F.2d 262, 264 (9th Cir. 1967); Jarecha v. INS, 417 F.2d 220, 223 (5th Cir. 1969);

13 Matter of Blas, 15 I & N Dec. 626, 630 (BIA 1974).

14

B. CARRP

15

Plaintiffs allege CARRP is a process by which applications that raise national security

16 concerns are handled. SAC ¶ 55. This policy ensures that benefit requests with national security

17 concerns are consistently and uniformly adjudicated across USCIS. SAC ¶ 61; ECF 27-1 at 7.5 A

18 national security concern arises when an individual or organization is determined to have an

19 articulable link to prior, current, or planned involvement in, or association with, an activity,

20 individual, or organization described in INA sections 212(a)(3)(A), (B), or (F), or 237(a)(4)(A)

21 or (B). SAC ¶ 62. Those INA sections make inadmissible or removable any individual who, inter

22 alia, “has engaged in terrorist activity” or is a member of a “terrorist organization.” 8 U.S.C. §§

23 1182(a)(3), 1227(a)(4). CARRP directs officers to identify applications for immigration benefits

24

25 5 In a motion to dismiss under Rule 12, the Court can consider materials including documents attached to the
complaint, incorporated by reference in the complaint, or matters of judicial notice, without converting the motion to
26 dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003); In re
Stac Electronics Securities Litigation, 89 F.3d 1399, 1405 n.4 (9th Cir. 1996) (documents whose contents are
27 alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the
pleading, may be considered in motion to dismiss.). In this case, Plaintiffs have incorporated by reference in the
28 complaint information about CARRP obtained via the Freedom of Information Act, see SAC ¶ 59, and have
provided that information to the Court in in support of their motion for class certification. ECF No. 27-1.

DEFENDANTS’ MOTION TO DISMISS - 6 (2:17-cv-00094-JCC)

App. 099

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee11063ooff35618

1 (including naturalization and adjustment of status) that raise national security concerns and

2 thoroughly investigate the applicant’s background, in consultation with supervisors and other

3 agencies, to determine whether the applicant is statutorily eligible to naturalize or adjust status.

4 SAC ¶¶ 61, 83, 85-88. Nevertheless, the handling of an application pursuant to CARRP does not

5 render the applicant statutorily ineligible for the benefit sought. SAC ¶ 93. See 8 U.S.C. §§

6 1255(a), 1427, 1429. Instead, CARRP provides a process to resolve issues that surface during

7 background checks on benefit applications. ECF 27-1, 4-5. Resolution often requires

8 communication with law enforcement or intelligence agencies to determine whether information

9 is relevant to an applicant and, if so, whether the information has an impact on eligibility for the

10 benefit. Id. at 6.

11

Once vetting is completed, if an applicant is ineligible for the benefit sought, the

12 application is denied, and if the applicant is eligible for the benefit sought, then it is approved. Id.

13 at 7. As a safeguard to ensure reasoned adjudication, supervisory review and concurrence is

14 required for denial or approval of such applications. Id.; SAC ¶ 92.

15

C. Executive Orders

16

On January 27, 2017, the President issued E.O. 13769. Section 3(c) temporarily

17 suspended entry of certain visa holders from seven countries. 82 Fed. Reg. at 8978. On February

18 2, 2017, the USCIS Acting Director clarified that section 3(c) did not affect USCIS’s processing

19 of benefit applications for individuals in the United States. See Scialabba Memo. Section 4 of

20 E.O. 13769 directed the Secretaries of State and Homeland Security and the Directors of

21 National Intelligence and the FBI to “implement a program, as part of the adjudication process

22 for immigration benefits, to identify individuals seeking to enter the United States on a

23 fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to

24 their admission.” Id. The Executive Order directed this program to include “a process to evaluate

25 the applicant’s likelihood of becoming a positively contributing member of society and the

26 applicant’s ability to make contributions to the national interest.” Id. at 8979.

27

On March 6, 2017, the President issued E.O. 13780. 82 Fed. Reg. 13209, 13218 (Mar. 6,

28 2017). Section 13 of E.O. 13780 rescinded E.O. 13769 in its entirety, effective March 16, 2017.

DEFENDANTS’ MOTION TO DISMISS - 7 (2:17-cv-00094-JCC)

App. 100

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee11074ooff35618

1 Id. at 13218. Nothing in E.O. 13780 directs USCIS to suspend adjudication of immigration

2 benefit applications by people within the United States, although the Executive Order does (in

3 section 5), like its predecessor, direct Executive Branch officials to “implement a program, as

4 part of the process for adjudications, to identify individuals who seek to enter the United States

5 on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any

6 group or class of people within the United States, or who present a risk of causing harm

7 subsequent to their entry. This program shall include the development of a uniform baseline for

8 screening and vetting standards and procedures.” Id. at 13215.

9

D. Factual Allegations

10

Mr. Abdiqafar Wagafe was a Somali national and lawful permanent resident of the

11 United States. SAC ¶¶ 142, 149. On July 3, 2012, Mr. Wagafe applied to naturalize as a U.S.

12 citizen. Id. ¶ 150. USCIS interviewed him on October 29, 2012, but he lacked sufficient

13 command of English to understand and respond to the immigration officer’s questions. Id.
14 USCIS re-interviewed Mr. Wagafe on January 3, 2013, but he failed the English language
15 portions of the naturalization test. Id. Accordingly, USCIS denied his naturalization application
16 on January 9, 2013. Id. On November 8, 2013, Mr. Wagafe submitted a second naturalization 17
application. Id. ¶ 152. USCIS interviewed him in connection with this application on February 18
22, 2017, and approved his application. Id. at ¶ 154. Plaintiff Wagafe naturalized on March 2, 19
2017. Id. 20
Mr. Mehdi Ostadhassan is an Iranian national. Id. ¶¶ 162, 165. He was originally 21
admitted to the United States on a student visa in 2009. Id. ¶ 163. He married Ms. Baily Bubach, 22
a U.S. citizen, on January 25, 2014, and on February 11, 2014, Ms. Bubach, submitted a Form I23
130, Petition for Alien Relative, to have Mr. Ostadhassan recognized as her immediate relative. 24
Id. ¶ 164. Contemporaneously, Mr. Ostadhassan applied to adjust status LPR. Id. ¶ 165. USCIS 25
26 interviewed Mr. Ostadhassan and his wife on the petition and application on September 24,
27 2015. Id. ¶ 168. On March 24, 2017, USCIS granted Ms. Bubach’s I-130 Petition, and on April
28 5, 2017, USCIS sent Mr. Ostadhassan a Notice of Intent to Deny (“NOID”) his adjustment-of-

DEFENDANTS’ MOTION TO DISMISS - 8 (2:17-cv-00094-JCC)

App. 101

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee11085ooff35618

1 status application. The NOID gives Mr. Ostadhassan thirty-three (33) days to respond to the

2 issues raised in the NOID, as the document was served by mail.

3

Ms. Hanin Omar Bengezi is a Libyan national and Canadian citizen who applied to adjust

4 status in February 2015. SAC ¶¶ 176, 187. She came to the United States in December 2014 on a

5 fiancée visa, and married a U.S. citizen in January 2015. SAC ¶ 186. Mr. Mushtaq Abed Jihad is

6 an Iraqi national, who originally came to the United States as a refugee in August 2008. SAC ¶¶

7 199, 204. He became an LPR upon arrival in the United States as a refugee. He applied to

8 naturalize in July 2013. SAC ¶¶ 205-06. Mr. Sajeel Manzoor is a Pakistani national. SAC ¶ 220.

9 He originally came to the United States on a student visa, SAC ¶ 221, and later obtained an H-1B

10 employment visa in October 2007. SAC ¶ 222. In September 2010, Mr. Manzoor obtained LPR

11 status, SAC ¶ 227, and in November 2015, he applied to naturalize, SAC ¶ 228.

12 IV. ARGUMENT6
13

A. Because Plaintiffs Admit They Have No Interest In Adjudication of Their

14

Applications, No Real Case or Controversy Exists

15 In their Motion for Class Certification, Plaintiffs disclaimed any interest in obtaining a
16 court order directing Defendants to adjudicate their individual applications for immigration
17 benefits. ECF No. 26 at 9. Instead, Plaintiffs want only a determination that CARRP is unlawful,
18 and an injunction preventing Defendants from applying it to the proposed class members (or, at a
19 minimum, notice and an opportunity to challenge a decision to process a particular application in
20 accordance with CARRP). Id. The Court has discretion to treat this statement as a judicial
21 admission. See Gospel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 557 (9th Cir. 2003)
22 (courts have discretion to consider statements in briefs judicial admissions); Cook v. Reinke, 484
23 F. App’x 110, 112 (9th Cir. 2012) (court could construe statement in motion as judicial
24
25 6 Although not directly stated in any Claim for Relief, Plaintiffs make repeated references to CARRP directing
USCIS officials to make “unwarranted denials” on “pretextual grounds.” See SAC at ¶¶ 84, 91, 94, 97, 278, 282,
26 288, 293. Plaintiffs lack standing to challenge an allegedly unlawful denial because no Plaintiff’s application has
been denied, nor do Plaintiffs’ proposed class definitions seek to represent applicants whose applications have
27 already been adjudicated. See Motion for Class Certification, ECF No. 26 at 8. As well, the Court would lack
jurisdiction to review discretionary denials of adjustment of status applications under 8 U.S.C. §1252(a)(2)(B)(ii);
28 Aldarwich v. Hazuda, 593 F. App’x 654, 655 (9th Cir. 2015), and anyone denied naturalization has an adequate
alternate remedy at law pursuant to 8 U.S.C. § 1421(c).

DEFENDANTS’ MOTION TO DISMISS - 9 (2:17-cv-00094-JCC)

App. 102

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee11096ooff35618

1 admission); Wilson v. Bank of America, N.A., No. 12-cv-1532, 2013 WL 275018, at *6 (W.D.

2 Wash. Jan. 24, 2013) (construing admission in response memorandum as judicial admission).

3

If Plaintiffs lack any interest in adjudication of their applications, they lack standing to

4 bring this action. They cannot manufacture standing by identifying a policy they claim is causing

5 their applications to be delayed, and simultaneously disclaim any interest in a judicial resolution

6 of the specific delays they claim to have suffered. That is no case or controversy. “[F]or a federal

7 court to have authority under the Constitution to settle a dispute, the party before it must seek a

8 remedy for a personal and tangible harm.” Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013).

9 Having disclaimed any interest in adjudication of their individual applications, Plaintiffs seek

10 judicial determination only of the “abstract” harm allegedly caused by the policy. The Supreme

11 Court and the Ninth Circuit have repeatedly held that abstract disputes—even those alleging the

12 government has acted unlawfully—are insufficient to establish jurisdiction. Lance v. Coffman,

13 549 U.S. 437, 441-42 (2007) (per curiam) (“The only injury [they] allege is that the law . . . has

14 not been followed”); Allen v. Wright, 468 U.S. 737, 754 (1984) (“This Court has repeatedly held

15 that an asserted right to have the Government act in accordance with law is not sufficient,

16 standing alone, to confer jurisdiction on a federal court”), abrogated on other grounds by

17 Lexmark Int’l v. Static Control Components, Inc., 134 S. Ct. 1377 (2014); Novak v. United

18 States, 795 F.3d 1012, 1018 (9th Cir. 2015). In light of Plaintiffs’ admission that they have no

19 personal interest in this matter, the Court should dismiss the action in its entirety for lack of

20 jurisdiction.

21

B. Plaintiffs’ First, Second, Third, Fifth, Sixth, and Tenth Claims for Relief Must

Be Dismissed Because Plaintiffs Lack Standing 22

23

It is axiomatic that Article III of the Constitution limits the jurisdiction of federal courts

24 to actual “cases” or “controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992).

25 One of the prerequisites for the existence of a case or controversy under Article III is that the

26 plaintiff have standing. Id. at 560. To have standing, (1) the plaintiff must have suffered an injury

27 in fact, i.e. an invasion of a legally protected interest, which is (a) concrete and particularized and

28 (b) actual or imminent; (2) there must be a causal connection between the injury and the conduct

DEFENDANTS’ MOTION TO DISMISS - 10 (2:17-cv-00094-JCC)

App. 103

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee12007ooff35618

1 complained of; and (3) it must be likely that the injury will be redressed by a favorable decision.

2 Id. at 560-61. Plaintiffs do not meet this test, as adjudication of their benefit applications has not

3 been suspended and they are not be injured by any violation of the Uniform Rule Clause.

4

1. Because Adjudication of Plaintiffs’ Benefit Applications Has Not Been

Suspended Pursuant to E.O. 13780, Plaintiff Have Not Suffered Injury-in-Fact 5

6

In Claims One, Two, Three, Five, and Six, Plaintiffs make various claims based on the

7 alleged suspension, pursuant to E.O. 13780, of the adjudication of their benefit applications.

8 Plaintiffs lack standing to bring these claims, because E.O. 13780 does not suspend the

9 adjudication of immigrant benefit applications by persons within the United States, and USCIS

10 has not suspended the adjudication of Plaintiffs’ benefit applications pursuant to E.O. 13780.

11

As Plaintiffs acknowledged, see Plaintiffs’ Notice of Related Cases, ECF No. 22, at 2-3,

12 despite some initial guidance from subordinate USCIS officials interpreting E.O. 13780’s

13 predecessor, E.O. 13769, to preclude adjudication of benefit applications from citizens of Iran,

14 Iraq, Libya, Somalia, Sudan, Syria, and Yemen, the USCIS Acting Director confirmed USCIS

15 would continue to process benefit applications from nationals of those countries present in the

16 United States. See Scialabba Memo (“Section 3(c) of the [E.O. 13769] does not affect USCIS

17 adjudication of applications and petitions filed for or on behalf of individuals in the United States

18 regardless of their country of nationality.”).7

19

While the President subsequently rescinded E.O. 13769, and issued E.O. 13780 in its

20 stead, E.O. 13780, 82 Fed. Reg. 13209, 13218, nothing in E.O. 13780 suspends the adjudication

21 of immigration benefit applications made by persons present in the United States. Id. Indeed, the

22 Order explicitly limits application of its entry suspension provision in section 2 (which is distinct

23

24
25 7 In Washington v. Trump, No. 17-35105, 2017 WL 526497 (9th Cir. 2017), the Ninth Circuit concluded that it could
not rely on the White House Counsel’s guidance that Section 3(c) of the Executive Order did not apply to lawful
26 permanent residents because the Executive Order prima facie applied, and the White House Counsel was not
“empowered to issue an amended order superseding the Executive Order” nor was he “known to be in the chain of
27 command for any of the Executive Departments.” Id., slip copy at 21-22. Here, in contrast, the Scialabba Memo
was issued by the Acting Director who is clearly in the chain of command, and her interpretation is consonant with
28 section 3(c) of E.O. 13769, which, on its face, applies only to entry and not to benefit applications submitted by or
on behalf of individuals already present in the United States.

DEFENDANTS’ MOTION TO DISMISS - 11 (2:17-cv-00094-JCC)

App. 104

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee12018ooff35618

1 from adjudication of immigrant benefit applications) to persons who “are outside the United

2 States on the effective date of this order.” Id. at § 3(a)(i), 82 Fed. Reg. at 13213.

3

That USCIS has not suspended processing or adjudication of Plaintiffs’ benefit

4 applications pursuant to either of the executive orders is demonstrated by the recent approval of

5 Mr. Wagafe’s naturalization application and issuance of a NOID to Mr. Ostadhassan.

6

Clearly, Plaintiffs have not suffered any injury-in-fact from a suspension of adjudication

7 of their benefit applications as alleged in Claims One, Two, Three,8 Five, and Six. Consequently,

8 they lack standing to bring these claims, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 559

9 (1992), and those claims should be dismissed.

10

2. Plaintiffs Lack Standing To Complain About a Violation of the Constitution’s

Uniform Rule of Naturalization Clause 11

12

Plaintiffs allege that applying CARRP to the processing of their naturalization

13 applications (and those of the putative Naturalization Plaintiff Class members) violates the clause

14 of the Constitution that confers on Congress the power “[t]o establish a uniform rule of

15 naturalization . . . throughout the United States,” i.e. Article I, Section 8, Clause 4. SAC ¶¶ 289-

16 293. Plaintiffs lack standing to assert a violation of this clause.

17

First, there is no private right of action under Article I, Section 8, Clause 4. Flores v. City

18 of Baldwin Park, No. 14-cv-9290, 2015 WL 756877, *3 (C.D. Cal. Feb. 23, 2015). The Clause is

19 an affirmative grant of authority to Congress, and does not confer any rights on private

20 individuals. See Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th Cir. 2004) (citing THE

21 FEDERALIST No. 32 (Alexander Hamilton)). As the Ninth Circuit recently explained, “[t]he

22 uniformity requirement was a response to tensions that arose from the intersection of the Articles

23 of Confederations Comity Clause and the states’ divergent naturalization laws, which allowed an

24 alien ineligible for citizenship in one state to move to another state, obtain citizenship, and return

25

26 8 To the extent Plaintiffs’ Third Claim for Relief was intended also to allege that the “extreme vetting” directed
under section 5 of E.O. 13780 violates the Establishment Clause of the Constitution (which is not at all clear from
27 the language of the Second Amended Complaint), the allegation provides no basis to find it justiciable, see Valley
Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485-86 (1982), and fails
28 to state a plausible claim to relief. See Kleindienst v. Mandel, 408 U.S. 753, 770 (1972); Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

DEFENDANTS’ MOTION TO DISMISS - 12 (2:17-cv-00094-JCC)

App. 105

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee12029ooff35618

1 to the original state as a citizen entitled to all of its privileges and immunities.” Korab v. Fink,

2 797 F.3d 572, 580-81 (9th Cir. 2015) (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 (1824)).

3

Second, because the Clause is an affirmative grant of authority to Congress, even

4 assuming arguendo that CARRP violates the clause, the entity suffering any invasion of a legally 5 protected interest as a result of a violation would be Congress, not Plaintiffs.9 Consequently,

6 Plaintiffs have not suffered an injury-in-fact, i.e., an invasion of a legally protected interest.

7 Because Plaintiffs cannot have suffered a legally cognizable injury from a violation of the

8 Clause, and because the Clause does not create a private right of action, Plaintiffs lack standing

9 to pursue a claim based on its alleged violation.

10

C. Plaintiffs’ Claims Concerning “Extreme Vetting” Under E.O. 13780 Must Be

Dismissed Because They Fail To Allege Sufficient Facts To Give Rise To

11

Plausible Claims For Relief

12

Plaintiffs’ obligation to allege the grounds of their entitlement to relief “requires more

13 than labels and conclusions, and a formulaic recitation of the elements of a cause of action.”

14 Twombly, 550 U.S. at 555. Courts are not bound to accept as true legal conclusions couched as

15 factual allegations, and factual allegations must be sufficient to raise the right to relief above the

16 speculative level. Id. In other words, the complaint must contain sufficient factual allegations to

17 state a claim that is “plausible.” Iqbal, 556 U.S. at 678. “A claim has facial plausibility when the

18 plaintiff pleads factual content that allows the court to draw the reasonable inference that the

19 defendant is liable for the misconduct alleged.” Id. “Where a complaint pleads facts that are

20 merely consistent with a defendant’s liability, it stops short of the line between possibility and

21 plausibility of entitlement to relief.” Id. (internal citations and quotations omitted).

22

As alleged in the Second Amended Complaint, section 5 of E.O. 13780 requires

23 Defendants to “implement a program, as part of the process for adjudications, to identify

24 individuals . . . who present a risk of causing harm,” and develop a “uniform baseline for

25

26 9 Further, it is doubtful the Executive can violate the Uniform Rule of Naturalization Clause, which concerns the
division of authority over naturalization as between Congress and state governments. If the Executive has exceeded
27 its statutory authority by applying CARRP—which, according to Plaintiffs’ allegations, USCIS is applying
uniformly throughout the entire country—the problem is not that USCIS is violating the Uniform Rule clause, but
28 rather that its actions are ultra vires under the INA. We address that claim, which Plaintiffs assert in their Fourth
Claim for Relief, in section IV.E. below.

DEFENDANTS’ MOTION TO DISMISS - 13 (2:17-cv-00094-JCC)

App. 106

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee12130ooff35618

1 screening and vetting standards and procedures, including a mechanism to assess whether

2 applicants may commit, aid, or support any kind of violent, criminal, or terrorist acts after

3 entering the United States, and any other appropriate means for ensuring . . . a rigorous

4 evaluation of all grounds . . . for denial of…immigration benefits.” SAC ¶ 138 (internal

5 quotations omitted) (emphasis added). Further, they allege section 4 of the Order “specifies that

6 applications for a visa, admission, or other immigration benefit made by Iraqi nationals must still

7 be subjected to thorough review to determine whether the applicant has any connections to ISIS

8 or any other terrorist organization or may be a terrorist or national security threat.” Id. ¶ 139

9 (internal quotations omitted). Plaintiffs also allege that, in the Presidential Memorandum issued

10 March 6, 2017, the President “instruct[ed] the Secretary of State and the Secretary of Homeland

11 Security, in conjunction with the Attorney General, to implement protocols and procedures as

12 soon as practicable that in their judgment will enhance the screening and vetting of applications

13 for visas and all other immigration benefits,” and “rigorously enforce all existing grounds of

14 inadmissibility and to ensure subsequent compliance with related laws after admission.” Id. at ¶

15 139 (internal quotations omitted) (emphasis added).

16

Apart from conclusory and formulaic allegations that the development and

17 implementation of a baseline for screening and vetting benefit applicants “will dramatically

18 expand CARRP,” SAC ¶ 140, Plaintiffs allege no actual facts that plausibly establish

19 Defendants, in carrying out the directives of sections 4 and 5 of E.O. 13780, or the Presidential

20 Memorandum of March 6, 2017, have adopted, or will adopt, measures that would expand

21 CARRP, violate the law, or require notice and an opportunity to respond. Because Plaintiffs have

22 failed to allege sufficient facts to establish they have suffered any injury from the provisions of

23 sections 4 and 5 of E.O. 13780 or the Presidential Memorandum of March 6, 2017, they have

24 failed to state a claim upon which relief can be granted.

25

D. Plaintiffs’ Fourth Claim for Relief Fails to Allege a Procedural Due Process

Violation and Must Be Dismissed Because Plaintiffs Have Not Been Deprived of

26

a Protected Liberty or Property Interest

27

In their Fourth Claim for Relief, Plaintiffs allege “Defendants’ failure to give Plaintiffs

28 and members of the Extreme Vetting Naturalization and Extreme Vetting Adjustment-of-Status

DEFENDANTS’ MOTION TO DISMISS - 14 (2:17-cv-00094-JCC)

App. 107

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee12141ooff35618

1 Classes notice of their classification under CARRP (or successor “extreme vetting” program), a

2 meaningful explanation of the reason for such classification, and any process by which Plaintiffs

3 can challenge their classification, violates the Due Process Clause of the Fifth Amendment to the

4 United States Constitution.” SAC ¶¶ 263. “To establish a due process violation, a plaintiff must

5 show that he has a protected property interest under the Due Process Clause and that he was

6 deprived of the property without receiving the process that he was constitutionally due.” Levine

7 v. City of Alameda, 525 F.3d 903, 905 (9th Cir. 2008). See also Bd. of Regents of State Colleges

8 v. Roth, 408 U.S. 564, 571 (1972). Here, Plaintiffs have failed to state a viable claim for relief

9 because they are not being deprived of any liberty or property interest.

10

To begin, there is no protected liberty or property interest in discretionary benefits, such

11 as adjustment of status. See 8 U.S.C. § 1255(a) (“The status of an alien . . . may be adjusted by

12 the Attorney General, in his discretion . . .”); Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247

13 (9th Cir. 2008). See also McCreath v. Holder, 573 F.3d 38, 41 (1st Cir. 2009); Hamdan v.

14 Gonzales, 425 F.3d 1051, 1060 (7th Cir. 2005); Nativi-Gomez v. Ashcroft, 344 F.3d 805, 808

15 (8th Cir. 2003). And because, as a constitutional matter, “no alien has the slightest right to

16 naturalization,” Fedorenko v. United States, 449 U.S 490, 506 (1981) (internal quotation

17 omitted), there is no “protected liberty interest in naturalization beyond that which Congress has

18 provided by statute.” Morgovsky v. DHS, 517 F. Supp. 2d. 581, 585 (D. Mass. 2007) (citing

19 United States v. Ginsberg, 243 U.S. 472, 474 (1917)).

20

Nor do Plaintiffs (and the class members they seek to represent) have a constitutionally

21 protected liberty or property interest in the pace of adjudication of their benefit applications. See

22 Mendez-Garcia v. Lynch, 840 F.3d 655, 666 (9th Cir. 2016) (procedural delays in adjudication

23 “do not deprive aliens of a substantive liberty or property interest unless the aliens have a

24 ‘legitimate claim of entitlement’ to have their applications adjudicated within a specified time.”).

25 Plaintiffs erroneously rely on 8 U.S.C. § 1571(b) as creating an enforceable time limit. That

26 provision, however, under the heading “Policy,” provides “the sense of the Congress that the

27 processing of an immigration benefit should be completed not later than 180 days after the initial

28 filing of the application.” 8 U.S.C. § 1571(b). The Ninth Circuit has explained that “‘Sense of the

DEFENDANTS’ MOTION TO DISMISS - 15 (2:17-cv-00094-JCC)

App. 108

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee12152ooff35618

1 Congress’ provisions are precatory provisions, which do not in themselves create individual

2 rights or, for that matter, any enforceable law.” Orkin v. Taylor, 487 F.3d 734, 740 (9th Cir.

3 2007).

4

Even if section 1571(b) constituted positive law rather than a policy statement, statutory

5 deadlines for government actions are generally interpreted as hortatory and do not limit [the

6 government’s] power or render its exercise in disregard of the requisitions ineffectual.” French v.

7 Edwards, 80 U.S. (13 Wall.) 506, 511 (1872). As the Supreme Court observed: “It ignores reality

8 to expect that the Government will be able to secure perfect performance from its hundreds of

9 thousands of employees scattered throughout the continent.” Office of Pers. Mgmt. v. Richmond,

10 496 U.S. 414, 433 (1990). Thus, statutory deadlines, when applied to the Government, are

11 typically advisory and meant to prod the Government to expeditious action.

12

The Ninth Circuit has cautioned that “[a] statutory time period providing a directive to an

13 agency or public official is not ordinarily mandatory ‘unless it both expressly requires the agency

14 or public official to act within a particular time period and specifies a consequence for failure to

15 comply with the provision.’” Ezell v. United States, 778 F.3d 762, 765 (9th Cir. 2015) (quoting

16 In re Siggers, 132 F.3d 333, 336 (6th Cir. 1997)) (emphasis in original). See also Brock v. Pierce

17 Cty., 476 U.S. 253, 259 (1986) (internal citation and quotations omitted); United States v. James

18 Daniel Good Real Prop., 510 U.S. 43, 63 (1993) (“If a statute does not specify a consequence for

19 noncompliance with statutory timing provisions, the federal courts will not in the ordinary course

20 impose their own coercive sanction.”); Rodriguez v. Superintendent, Bay State Corr. Ctr., 139

21 F.3d 270, 272 (1st Cir. 1998) (“Before operating as a mandate, a statutory time limitation

22 addressed to a public official generally must contain both an express command that the official

23 act within a given temporal period and a consequence attached to noncompliance.”); St. Regis

24 Mohawk Tribe, N.Y. v. Brock, 769 F.2d 37, 41-42 (2d Cir. 1985) (collecting authority and noting

25 a statutory time period is not mandatory unless it both expressly requires action and provides a

26

27

28

DEFENDANTS’ MOTION TO DISMISS - 16 (2:17-cv-00094-JCC)

App. 109

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee12163ooff35618

1 consequence for failure to comply). Here, there is no express guarantee of decision within any 2 particular time-frame.10 Nor is there any consequence for failing to meet a statutory schedule.

3

Accordingly, there is no liberty or property interest protected by the Due Process Clause

4 at stake. Without a liberty or property interest in either the benefits sought or the pace of

5 adjudication, Plaintiffs cannot be due the process to which they claim entitlement. See Olim v.

6 Wakinekona, 461 U.S. 238, 250 (1983) (“Process is not an end in itself. Its constitutional purpose

7 is to protect a substantive interest to which the individual has a legitimate claim of entitlement.”).

8 Plaintiffs have, therefore, failed to state a claim upon which relief may be granted.

9

E. Plaintiffs’ Seventh Claim for Relief Must Be Dismissed Because the Immigration

and Nationality Act Does Not Create A Private Right of Action 10

11

Plaintiffs Seventh Claim for Relief asserts that CARRP violates 8 U.S.C. §§ 1427 and

12 1255, which establish the requirements to naturalize and the eligibility criteria for adjustment of

13 status, respectively. SAC ¶¶ 276-77. This claim must be dismissed because neither section

14 creates a private right of action. Consequently, Plaintiffs lack standing to bring a claim under

15 those sections, and the court lacks jurisdiction over it.

16

“[P]rivate rights of action to enforce federal law must be created by Congress. Alexander

17 v. Sandoval, 532 U.S. 275, 286-87 (2001) (quoting Touche Ross & Co. v. Redington, 442 U.S.

18 560, 578 (1979) (the remedies available are those ‘that Congress enacted into law’)). “[T]he fact

19 that a federal statute has been violated and some person harmed does not automatically give rise

20 to a private cause of action in favor of that person.” Touche Ross & Co., 442 U.S. at 568 (quoting

21 Cannon v. University of Chicago, 441 U.S. 677, 688 (1979)) (internal quotations omitted).

22

“The judicial task is to interpret the statute Congress has passed to determine whether it

23 displays an intent to create not just a private right but also a private remedy.” Alexander, 532

24 U.S. at 286 (citing Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15 (1979)).

25 Where the statute does not reveal a congressional intent to create a private right of action, the

26 10 Section 1447(b) of Title 8, U.S. Code, provides that if 120 days after an applicant has been examined regarding 27 his naturalization application no determination has been made, the applicant may apply to a district court for a
hearing on the matter. 8 U.S.C. § 1447(b). But even this provides only an alternative forum, not an entitlement to a
28 decision within a particular time. Ahmadi v. Chertoff, No. 07-cv-03455, 2007 WL 3022573, at *10 (N.D. Cal. Oct.
15, 2007) (“There is no right to have an application adjudicated within 120 days of completion of the examination”).

DEFENDANTS’ MOTION TO DISMISS - 17 (2:17-cv-00094-JCC)

App. 110

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee12174ooff35618

1 federal courts “may not create one, no matter how desirable that might be as a policy matter, or

2 how compatible with the statute.” Id. See also Touche Ross & Co, 442 U.S. at 568 (“our task is

3 limited solely to determining whether Congress intended to create the private right of action

4 asserted”). “[T]he burden is on [the plaintiff] to demonstrate that Congress intended to make a

5 private remedy available.” Suter v. Artist M., 503 U.S. 347, 363 (1992).

6

On its face, neither section 1427 nor 1255 expressly creates a private right of action. 8

7 U.S.C. §§ 1255, 1427. To determine whether Congress implied a private right of action in a

8 statute that contains no express provision, the Court must consider whether: (1) the plaintiff is of

9 the class for whose especial benefit the statute was enacted; (2) there is any indication of

10 legislative intent to create or exclude a private right of action; (3) it is consistent with the

11 underlying purposes of the legislative scheme to imply a private right of action; and (4) whether

12 the cause of action is traditionally relegated to state law. Cort v. Ash, 422 U.S. 66, 78 (1975). A

13 few years after Cort, the Supreme Court clarified that “the focus of the inquiry is on whether

14 Congress intended to create a remedy.” California v. Sierra Club, 451 U.S. 287, 297 (1981).

15

The Supreme Court also explained that, in considering whether the plaintiff is of a class

16 for whose “especial benefit” the statute was enacted, “[t]he question is not simply who would

17 benefit from the Act, but whether Congress intended to confer federal rights upon those

18 beneficiaries.” Id. at 294. The Court also said that silence on the remedy question serves to

19 confirm that, in enacting the law, Congress was not concerned with private rights. Id. at 296.

20 Additionally, the Supreme Court has held that statutory schemes that provide private rights of

21 action in some situations but not others weigh against inferring a private right of action because

22 “when Congress wished to provide a private damages remedy, it knew how to do so and did so

23 expressly.” Touche Ross & Co., 442 U.S. at 572; Universities Research Ass’n v. Coutu, 450 U.S.

24 754, 773 (1981).

25

When sections 1255 and1427 are examined in light of these principles, the Court must

26 conclude Congress implied no private rights of action of which Plaintiffs might avail themselves.

27 First, while Plaintiffs might benefit from statutes that establish requirements for naturalization or

28 criteria for adjustment of status, these statutes were not enacted for Plaintiffs’ “especial benefit.”

DEFENDANTS’ MOTION TO DISMISS - 18 (2:17-cv-00094-JCC)

App. 111

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee12185ooff35618

1 Rather, the primary purpose of both these statutes is to protect the interests of the People of the

2 United States by establishing requirements and criteria that must be met before an alien may

3 become a permanent resident or citizen, just as criminal laws are enacted for the benefit of

4 society, and not for the “especial benefit” of future crime victims.

5

Second, there is no indication Congress intended to imply any private right of action to

6 challenge alleged violations beyond those explicitly provided in 8 U.S.C. §§ 1421(c) and

7 1447(b). Indeed, Congress’ explicit creation of a private right of action in section 1447(b) for a

8 naturalization applicant who has not received a decision within 120 days following examination

9 on his application strongly suggests Congress did not intend to create a private right of action to

10 challenge the pre-examination application of the INA.

11

Further, inferring a private right of action under sections 1255 and 1427 would be

12 inconsistent with the statutory scheme of the INA. An applicant begins the process by submitting

13 an application to USCIS. 8 U.S.C. §§ 1255, 1445(a). Next, for a naturalization applicant, USCIS

14 must conduct an investigation of the applicant. 8 U.S.C. § 1446(a); 8 C.F.R. § 335.1. As part of

15 the investigation of the applicant, USCIS requests a full criminal background investigation on the

16 applicant. 8 C.F.R. § 335.2(b). USCIS is prohibited by law from interviewing a naturalization

17 applicant until USCIS receives a definitive response from the FBI that a full criminal background

18 check of the individual has been completed. Dep’t of Commerce & Related Agencies

19 Appropriation Act, 1998, Pub. L. 105-119, title I, 111 Stat. 2440, 2448-49 (Nov. 26, 1997)

20 (beginning with fiscal year 1998, no USCIS funds may be used to complete adjudication of an

21 application for naturalization unless USCIS has received confirmation from the FBI that a full

22 criminal background check has been completed); 8 C.F.R. § 335.2(b). The INA does not

23 prescribe a time limit for the pace of the investigation, or the examination required by section

24 1446. Once USCIS interviews an applicant, however, the applicant may petition the district court

25 for a de novo determination of his eligibility for naturalization, if the agency does not render a

26 decision within 120 days. 8 U.S.C. § 1447(b).

27

Similarly, for adjustment applicants, Congress did not create a private right of action in

28 the INA. 8 U.S.C. § 1255 (lacking any right for adjustment applicants to seek judicial review).

DEFENDANTS’ MOTION TO DISMISS - 19 (2:17-cv-00094-JCC)

App. 112

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee12196ooff35618

1 And, the Secretary is only permitted to approve individuals for LPR status after determining that

2 the applicant is eligible for the status—which includes a finding that the alien is (1) physically

3 present in the United States, (2) eligible to receive an immigrant visa, (3) an immigrant visa is

4 immediately available to the alien, and (4) the alien is admissible to the United States—and

5 warrants a favorable exercise of the Secretary’s discretion. 8 U.S.C. § 1255(a).

6

From this statutory scheme, it is apparent Congress intended that applicants be fully and

7 thoroughly vetted before being granted benefits under the INA, and recognized that the time it

8 would take to adequately investigate applicants and determine eligibility would vary based on

9 individual circumstances. Accordingly, while Congress provided a private right of action for an

10 naturalization applicant who had not received a decision within 120 days following his

11 examination, it omitted any similar private right of action during the pre-examination,

12 investigation phase of the naturalization process, or during the adjudication of an adjustment-of-

13 status application. The Court should, therefore, conclude that 8 U.S.C. §§ 1255 and 1427 do not

14 provide Plaintiffs with private rights of action. If those sections do not provide private rights of

15 action, then Plaintiffs lack standing, and the Court lacks jurisdiction over that claim.

16

F. Plaintiffs’ Eighth Claim for Relief Fails to State a Claim Under the APA Because

It Does Not Relate To a Final Agency Action 17

18

Plaintiffs’ Eighth Claim fails to state a claim and should therefore be dismissed. See SAC

19 ¶¶ 279-82. The APA provides a right to judicial review of “final agency actions for which there

20 is no other adequate remedy in a court.” 5 U.S.C. § 704. APA review, however, is unavailable

21 here because the CARRP handling process is not final action, and there is no legally required

22 time within which USCIS must decide naturalization or adjustment-of-status applications.

23

For an action to be final, and reviewable under the APA, the action must (1) “mark the

24 ‘consummation’ of the agency’s decision-making process,” and (2) the action “must be one by

25 which ‘rights or obligations have been determined,’ or from which ‘legal consequences will

26 flow.’” Bennett v. Spear, 520 U.S. 154, 178 (1997). The first question courts ask is whether the

27 agency “has rendered its last word on the matter.” Oregon Natural Desert Ass’n v. United States

28 Forest Service, 465 F.3d 977, 984 (9th Cir. 2006) (citing Whitman v. Am. Trucking Ass’n, 531

DEFENDANTS’ MOTION TO DISMISS - 20 (2:17-cv-00094-JCC)

App. 113

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3J/C2C018D, oIDc:u1m0e8n4t757623F, DilekdtE0n4tr/1y:81/1-72, PPaaggee13107ooff35618

1 U.S. 457 (2001)).

2

As alleged, CARRP is not a final agency action but rather part of the process of

3 adjudicating an application, falling within the eligibility and background investigation process

4 mandated by the INA, see 8 U.S.C. §§ 1446(a), (b); 1255(a)(2). It is a way for USCIS to

5 investigate and verify information in certain cases, and to ensure reasoned decisions. Further, by

6 their own definition, Plaintiffs’ proposed Adjustment-of-Status and Naturalization Classes only

7 cover cases that are “pending,” not ones in which a final decision has been reached. Because

8 CARRP itself is not a final agency action, and none of the Plaintiffs challenge a final

9 administrative decision to deny a benefit application, this Court should dismiss Plaintiffs’ Eighth

10 Claim for Relief.

11

G. Plaintiffs’ Ninth Claim for Relief Must Be Dismissed For Failure To State a

Claim as the Allegations in the Complaint Establish CARRP Is Not a

12

“Substantive” or “Legislative” Rule

13

Plaintiffs’ Ninth Claim for Relief alleges CARRP is a substantive agency rule, within the

14 meaning of 5 U.S.C. § 551(4), that was not properly promulgated through notice-and-comment

15 rulemaking. SAC ¶¶ 285-87. Nevertheless, the facts Plaintiffs allege demonstrate CARRP does

16 not violate the APA’s notice-and-comment requirements.

17

The APA provides that, absent good cause, an agency may issue a “legislative rule” only

18 by using the APA’s notice-and-comment procedure. Hemp Indus. Ass’n v. DEA, 333 F.3d 1082,

19 1087 (9th Cir. 2003). An agency need not follow notice-and-comment procedures, however, to

20 issue “interpretive rules, general statements of policy, or rules of agency organization, procedure

21 or practice.” 5 U.S.C. § 553(b)(3)(A); Mora-Meraz v. Thomas, 601 F.3d 933, 939 (9th Cir.

22 2010). In general, legislative rules “create rights, impose obligations, or effect a change in

23 existing law pursuant to authority delegated by Congress.” Hemp Indus., 333 F.3d at 1087.

24 Interpretive rules and rules of agency organization, procedure, or practice, on the other hand, “do

25 not add to[] the substantive law that already exists in the form of a statute or legislative rule.” Id.

26

To distinguish between the two, the Ninth Circuit has adopted a framework first

27 articulated by the D.C. Circuit in American Mining Congress v. Mine Safety & Health

28 Administration, 995 F.2d 1106, 1109 (D.C. Cir. 1993). Hemp Indus., 333 F.3d at 1087; Wilson v.

DEFENDANTS’ MOTION TO DISMISS - 21 (2:17-cv-00094-JCC)

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UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

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1 Lynch, 835 F.3d 1083, 1099 (9th Cir. 2016); Erringer v. Thompson, 371 F.3d 625 (9th Cir. 2014)

2 (all applying the Am. Min. Congress framework). Under this framework, a legislative rule, i.e., a

3 rule that “has the force of law,” will be found: (1) when, in the absence of the rule, there would

4 not be an adequate legislative basis for agency action; (2) when the agency has explicitly

5 invoked its general legislative authority; or (3) when the rule effectively amends a prior

6 legislative rule. Hemp Indus., 333 F.3d at 1087. Here, USCIS has not invoked its general

7 legislative authority, so only the first and third prongs of the American Mining Congress test are

8 at issue.

9

CARRP does not fill a legislative void that Congress left to USCIS to fill; rather, an

10 adequate legislative basis for CARRP exists. With respect to naturalization, sections 1423

11 through 1427 and 1429 of title 8, United States Code, and 8 C.F.R. § 316.2, provide a number of

12 criteria that an applicant must meet to demonstrate eligibility to naturalize. Section 1446(a) of

13 title 8 mandates a “personal investigation of the person applying for naturalization.” Likewise,

14 section § 1255 provides eligibility criteria for adjustment of status, and gives the Secretary of

15 Homeland Security discretion whether to grant the benefit. Further, section 1357(b) authorizes

16 USCIS to take and consider evidence concerning any matter which is material or relevant to the

17 enforcement of the INA.

18

These statutes and regulations constitute an adequate legislative basis for USCIS to

19 undertake the procedural steps laid out in CARRP in the adjudication of benefit applications.

20 Even as described by Plaintiffs in their Second Amended Complaint, CARRP is a process to

21 ensure USCIS is considering all relevant information relating to cases with possible national

22 security concerns. Nothing in CARRP, however, is required to enable or authorize USCIS to

23 investigate an applicant’s eligibility or to consult with supervisors or other agencies concerning

24 whether an applicant is eligible for the benefit sought, and, in the case of an adjustment-of-status 25 applicants, whether the applicant warrants a favorable exercise of discretion.11

26

27 11 Plaintiffs also mention 8 U.S.C. § 1159(b) and 8 C.F.R. § 209.1, which concern the adjustment of status of 28 refugees. Although Plaintiffs allege Mr. Wagafe previously adjusted under this provision, see First Amended
Complaint, ECF No. 17 at ¶¶ 115-116, no plaintiff is currently seeking adjustment in this manner.

DEFENDANTS’ MOTION TO DISMISS - 22 (2:17-cv-00094-JCC)

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1

Second, as described in Plaintiffs’ Second Amended Complaint, CARRP does not

2 effectively amend a prior legislative rule. This scenario occurs “‘only if it is inconsistent with

3 another rule having the force of law.’” Erringer, 371 F.3d at 632 (quoting Hemp Indus., 333 F.3d

4 at 1088). In the naturalization context, 8 U.S.C. § 1427(a) and 8 C.F.R. § 316.2 enumerate the

5 criteria for naturalization. With respect to adjustment of status, 8 U.S.C. § 1255(a) delegates

6 rule-making authority for adjustment of status to the Executive Branch, which has crafted several

7 categories of “restricted” and “ineligible” aliens. See 8 C.F.R. § 245.2(b)-(c). CARRP neither

8 alters these criteria, nor purports to restrict the statutory discretion conferred by section 1255(a).

9

Instead, CARRP is a process to vet cases with an articulable link to national security

10 concerns and to determine the proper adjudicative action to take within statutory limits. SAC ¶¶

11 55, 60, 62. See also ECF 27-1 at 7-8. A directive to fully vet potential national security concerns

12 is not a substantive change in the standards for either adjustment of status or naturalization.

13 Applying the American Mining Congress factors, CARRP is not a legislative or substantive rule.

14 Rather, it is properly characterized as a “general statement[] of policy, or rule[] of agency

15 organization, procedure or practice,” and thus exempt from APA notice-and-comment

16 rulemaking. See Mora-Meraz, 601 F.3d at 939 (citing 5 U.S.C. § 553(b)(3)(A)).

17

This conclusion is consistent with established Ninth Circuit precedent. In L.A. Closeout,

18 Inc. v. DHS, 513 F.3d 940 (9th Cir. 2008), the Ninth Circuit held that an internal Department of

19 Homeland Security memorandum that, as here, “simply provided the agency’s construction of

20 the regulation in a particular factual circumstance” was an interpretive rule. Id. at 942. The fact

21 that there may be a substantive impact on Plaintiffs because a particular procedure is more time

22 consuming than another does not transform an interpretive rule or a rule of agency practice or

23 procedure into one with the force of law. Indeed, the Ninth Circuit “rejected the notion that

24 procedural rules with a substantive impact are subject to notice-and-comment requirements.” So.

25 Cal. Edison Co. v. FERC, 770 F.2d 779, 783 (9th Cir. 1985). See also Alcaraz v. Block, 746 F.2d

26 593, 614 (9th Cir. 1984). Finally, the Ninth Circuit long ago adopted the D.C. Circuit’s holding

27 that “section 553(b)(3)(A) extends to ‘technical regulation of the form of agency action and

28 proceedings.’” So. Cal. Edison Co., 770 F.2d at 783 (citing Pinkus v. U.S. Bd. of Parole, 507

DEFENDANTS’ MOTION TO DISMISS - 23 (2:17-cv-00094-JCC)

App. 116

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

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1 F.2d 1107, 1113 (D.C. Cir. 1974)). That is precisely what Plaintiffs allege CARRP is—a

2 technical regulation of the form of agency proceedings.

3

It should come as no surprise, then, that courts have consistently rejected similar

4 challenges. In one putative class action concerning naturalization delays, the court rejected a

5 claim that the “expanded name check” program constituted a substantive rule. Ahmadi v.

6 Chertoff, No. 07-cv-03455, 2007 WL 3022573 (N.D. Cal. Oct. 15, 2007). The court explained:

7

The expanded name check has created significant delays. The expanded name

check did not, however, add a new requirement in the naturalization process, as

8

plaintiffs contend. The agencies have long been required to conduct an

9

investigation into an applicant’s background before adjudicating an application.

The expanded name check merely enlarged the scope of that investigation.

10 Id. at *9. Numerous other courts have reached identical conclusions in the FBI name check

11 context. See, e.g., Sawan v. Chertoff, 589 F. Supp. 2d 817, 833-34 (S.D. Tex. 2008) (collecting

12 cases); Hani v. Gonzales, No. 3:07-cv-517-S, 2008 WL 2026092, at *5 (W.D. Ky. May 8, 2008)

13 (collecting cases). According to Plaintiffs’ allegations, CARRP likewise expands the scope of an

14 investigation, and directs adjudicators how best to use the limited resources available to them in

15 conducting that investigation. That is not substantive law. Because, as the facts Plaintiffs have

16 alleged demonstrate, CARRP does not establish a substantive rule under delegated legislative

17 authority, it does not violate the APA’s notice-and-comment rulemaking mandate. Accordingly,

18 Plaintiffs’ Ninth Claim for Relief should be dismissed for failure to state a claim.

19 V. CONCLUSION
20

21

For the foregoing reasons, the Court should dismiss the Second Amended Complaint, in

22 part, for lack of jurisdiction, and, in part, for failure to state claims upon which relief can be

23 granted.

24 /

25 /

26 /

27 /

28 / Dated: April 18, 2017

Respectfully submitted,

DEFENDANTS’ MOTION TO DISMISS - 24 (2:17-cv-00094-JCC)

App. 117

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

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1

CHAD A. READLER Acting Assistant Attorney General

2 WILLIAM C. PEACHEY
3 Director, District Court Section

4 CHRISTOPHER W. DEMPSEY
5 Chief, National Security & Affirmative Litigation Unit
6

7

8

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10

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13

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15

16

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21

22

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25

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27

28

DEFENDANTS’ MOTION TO DISMISS - 25 (2:17-cv-00094-JCC)

EDWARD S. WHITE Trial Attorney, National Security
& Affirmative Litigation Unit
/s/ Aaron R. Petty AARON R. PETTY Trial Attorney, National Security
& Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Telephone: (202) 532-4542 E-mail: Aaron.R.Petty@usdoj.gov
Attorneys for Defendants

App. 118

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

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1

CERTIFICATE OF SERVICE

2

I HEREBY CERTIFY that on April 18, 2017, I electronically filed the foregoing with the

3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to the

4 following CM/ECF participants:

5

Harry H. Schneider, Jr., Esq.

Nicholas P. Gellert, Esq.

6

David A. Perez, Esq.

7

Kathryn Reddy, Esq.

Perkins Coie L.L.P.

8

1201 Third Ave., Ste. 4800

Seattle, WA 98101-3099

9

PH: 359-8000

10

FX: 359-9000

Email: HSchneider@perkinscoie.com

11

Email: NGellert@perkinscoie.com

Email: DPerez@perkinscoie.com

12

Email: KReddy@perkinscoie.com

13 Matt Adams, Esq.

14

Glenda M. Aldana Madrid, Esq.

15

Northwest Immigrant Rights Project 615 Second Ave., Ste. 400

16

Seattle, WA 98104

PH: 957-8611

17

FX: 587-4025

18

E-mail: matt@nwirp.org E-mail: glenda@nwirp.org

19

Emily Chiang, Esq.

20

ACLU of Washington Foundation

21

901 Fifth Avenue, Suite 630 Seattle, WA 98164

22

Telephone: (206) 624-2184

E-mail: Echiang@aclu-wa.org 23

24

Jennifer Pasquarella, Esq.

ACLU Foundation of Southern California

25

1313 W. 8th Street

Los Angeles, CA 90017

26

Telephone: (213) 977-5211

27

Facsimile: (213) 997-5297

E-mail: jpasquarella@aclusocal.org

28

DEFENDANTS’ MOTION TO DISMISS - 26 (2:17-cv-00094-JCC)

App. 119

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

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1

Stacy Tolchin, Esq. Law Offices of Stacy Tolchin

2

634 S. Spring St. Suite 500A

Los Angeles, CA 90014

3

Telephone: (213) 622-7450

4

Facsimile: (213) 622-7233 E-mail: Stacy@tolchinimmigration.com

5

Trina Realmuto, Esq.

6

Kristin Macleod-Ball, Esq.

7

National Immigration Project of the National Lawyers Guild

14 Beacon St., Suite 602

8

Boston, MA 02108

Telephone: (617) 227-9727

9

Facsimile: (617) 227-5495

10

E-mail: trina@nipnlg.org

E-mail: kristin@nipnlg.org

11

Hugh Handeyside, Esq.

12

Lee Gelernt, Esq.

13

Hina Shamsi, Esq.

American Civil Liberties Union Foundation

14

125 Broad Street

New York, NY 10004

15

Telephone: (212) 549-2616

16

Facsimile: (212) 549-2654

E-mail: lgelernt@aclu.org

17

E-mail: hhandeyside@aclu.org

18

E-mail: hshamsi@aclu.org

19

/s/ Aaron R. Petty

AARON R. PETTY

20

U.S. Department of Justice

21

22

23

24

25

26

27

28

DEFENDANTS’ MOTION TO DISMISS - 27 (2:17-cv-00094-JCC)

App. 120

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

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1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9

ABDIQAFAR WAGAFE, MEHDI

CASE NO. C17-0094-RAJ

10

OSTADHASSAN, HANIN OMAR

BENGEZI, MUSHTAQ ABED

ORDER

11

JIHAD, and SAJEEL MANZOOR,

12

on behalf of themselves and others

similarly situated,

13

Plaintiffs,

14

v.

15 DONALD TRUMP, President of the

16

United States; UNITED STATES

17

CITIZENSHIP AND IMMIGRATION SERVICES, et al.,

18 Defendants.
19

20

21

This matter comes before the Court on Defendants’ motion to dismiss (Dkt. No.

22 56) and Plaintiffs’ amended motion for class certification (Dkt. No. 49). Having

23 thoroughly considered the parties’ briefing and the relevant record, the Court finds oral

24 argument unnecessary and hereby GRANTS IN PART and DENIES IN PART

25 Defendants’ motion to dismiss and GRANTS Plaintiffs’ motion for class certification for

26 the reasons explained herein.

ORDER PAGE - 1

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1 I. BACKGROUND

2

This section summarizes the facts as set forth in Plaintiffs’ second amended

3 complaint, as is appropriate on a motion to dismiss.

4

A. The CARRP Policy

5

This lawsuit is brought by immigration applicants to challenge an allegedly secret

6 and unlawful government program, the Controlled Application Review and Resolution

7 Program (CARRP). (Dkt. No. 47 at ¶¶ 1, 9.) The premise of Plaintiffs’ suit is that because

8 the Constitution expressly assigns the authority to establish uniform rules of

9 naturalization to Congress—which Congress has done in the Immigration and Nationality

10 Act (INA)—the United States Citizenship and Immigration Service (USCIS), as part of

11 the executive branch, has created an extra-statutory, unlawful, and unconstitutional

12 program in CARRP. (Id. at ¶¶ 1, 8, 9.)

13

Plaintiffs allege that USCIS created CARRP in 2008 “as an agency-wide policy to

14 identify, process, and adjudicate certain immigration applications that allegedly raise

15 ‘national security concerns.’” (Id. at ¶ 55.) They allege that CARRP implements “an

16 internal vetting policy that has not been authorized by Congress, nor codified, subjected

17 to public notice and comment, or voluntarily made public in any way.” (Id. at ¶ 10.) In

18 fact, CARRP was unknown to the public until it was discovered in litigation challenging

19 a denial of naturalization in Hamdi v. USCIS, 2012 WL 632397 (C.D. Cal. Feb. 25,

20 2012). The only information about CARRP that USCIS made public was in response to

21 Freedom of Information Act (FOIA) requests and the litigation necessary to compel those

22 responses. See ACLU of S. Cal. v. USCIS, No. 13-cv-0861 (D.D.C., filed June 7, 2013).

23

The policy imposes criteria to determine when an individual should be labeled a

24 “national security concern” that Plaintiffs claim “are vague and overbroad, and often turn

25 on discriminatory factors such as religion and national origin.” (Dkt. No. 47 at ¶¶ 62–76.)

26 The criteria also include many lawful activities such as donating to Muslim charities or

ORDER PAGE - 2

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1 travelling to Muslim-majority countries. (Id. at ¶¶ 35–51, 62–76.) Plaintiffs maintain

2 these criteria are “untethered from the specific statutory criteria Congress has authorized

3 to determine when a person is eligible for immigration benefits.” (Id.)

4

Even if an applicant meets all the statutory requirements for citizenship or

5 adjustment of status under the INA, USCIS officers are instructed that an application in

6 CARRP cannot be approved. (Id. at ¶ 77.) If an applicant meets one of CARRP’s national

7 security concern criteria, officers are guided to deny the application or delay it as long as

8 possible. (Id. at ¶¶ 77, 78–97.) The applicant is neither informed that her application has

9 been submitted to CARRP, nor able to challenge her classification as a national security

10 concern. (Id. at ¶¶ 61, 96.) Ultimately, Plaintiffs allege that CARRP creates a substantive

11 regime for immigration application processing and imposes “eligibility criteria that

12 indefinitely delay adjudications and unlawfully deny immigration benefits to noncitizens

13 who are statutorily eligible and entitled by law.” (Id. at ¶ 95.)

14

B. The President’s Executive Orders

15

Although recent court decisions across the country1 may make Defendant

16 President Trump’s (hereinafter “the president”) recent Executive Orders a non-issue, the

17 Court will briefly address their impact on this case.

18

Plaintiffs initiated this lawsuit on January 23, 2017, challenging only the CARRP

19 program. (Dkt. No. 1.) On January 27, 2017, the president issued Executive Order (E.O.)

20 13769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United

21 States.” 82 Fed. Reg. 8977. Section 3(c) of the E.O. suspended entry into the United

22 States of citizens or nationals of Syria, Iraq, Iran, Yemen, Somalia, Sudan, and Libya. Id.

23
24 1 See, e.g., Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (upholding a temporary restraining order which enjoined potions of Executive Order 13769); Int’l Refugee Assistance
25 Project v. Trump, 2017 WL 2273306 (4th Cir. May 25, 2017) (upholding preliminary injunction enjoining portions of Executive Order 13780); Hawai’i v. Trump, 2017 WL 2529640 (9th Cir.
26 June 12, 2017) (upholding preliminary injunction enjoining portions of Executive Order 13780).

ORDER PAGE - 3

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1 at 8978. USCIS initially determined that E.O. 13769 required it to suspend taking action

2 on all pending applications—except those for naturalization—of nationals from those

3 seven countries. (See Dkt. No. 47 at ¶ 15; Dkt. No. 56 at 20; Dkt. No. 17 at ¶ 3.) Section

4 4 of E.O. 13769 called for the Secretaries of State and Homeland Security and the

5 Directors of National Intelligence and the FBI to “implement a program, as part of the

6 adjudication process for immigration benefits, to identify individuals seeking to enter the

7 United States on a fraudulent basis with the intent to cause harm, or who are at risk of

8 causing harm subsequent to their admission.” 82 Fed. Reg. at 8978.

9

In response to E.O. 13769, Plaintiffs amended their complaint to challenge

10 sections 3(c) and 4 of the order. (Dkt. No. 17.) Plaintiffs alleged that USCIS relied on

11 section 3 to suspend processing immigrant visas and other immigration benefits. (Id. at

12 ¶ 54.) Plaintiffs also alleged that Section 4 of the E.O. “directs federal agencies to create

13 and implement a policy of extreme vetting of all immigration benefits applications” and

14 that “[a]ny such ‘extreme vetting’ policy” would expand CARRP. Id. at 8978–79; Dkt.

15 No. 17 at ¶ 4. The day after Plaintiffs filed their amended complaint, USCIS Acting

16 Director Lori Scialabba sent a memo to all USCIS employees stating that section 3(c) did

17 not affect the immigration applications of individuals based on the country of their

18 nationality. (Dkt. No. 22 at 2–3.) In their notice of related cases, Plaintiffs stated that if

19 USCIS adhered to the position expressed by Acting Director Scialabba, “it would appear

20 that the Section 3(c) claims in this action may become moot.” (Id. at 3.)

21

After the Ninth Circuit upheld a temporary restraining order enjoining portions of

22 E.O. 13769 in Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), the president

23 promised to “go[] further” with a new executive action, and assured that “[e]xtreme

24 vetting will be put in place,” and that “it already is in place in many places.” (Dkt. No. 47

25 at ¶ 115.) The president then issued E.O. 13780, which rescinded E.O. 13769 in its

26 entirety. 82 Fed. Reg. 13209, 13218 (March 6, 2017). Stephen Miller, the president’s

ORDER PAGE - 4

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1 Senior Advisor stated that E.O. 13780 would have “the same basic policy outcome for the

2 country.” (Dkt. No. 47 at ¶ 117 (citation omitted)). Sean Spicer, the president’s Press

3 Secretary, stated that the goal of E.O. 13780 was “obviously to maintain the way we did

4 it the first time.” (Id. at ¶ 118 (citation omitted)).

5

Portions of the second E.O. were soon after enjoined in Hawai’i v. Trump, 2017

6 WL 10111673 (D. Haw. Mar. 15, 2017). There, the court concluded that there was

7 “significant and unrebutted evidence of religious animus driving the promulgation of

8 [E.O. 13780] and its related predecessor.” Id. at *11. Based on this, “a reasonable,

9 objective observer . . . would conclude that [E.O. 13780] was issued with a purpose to

10 disfavor a particular religion.” Id. at *13. The Ninth Circuit largely upheld the district

11 court’s order, finding that the plaintiffs were likely to succeed on their claims that the

12 second E.O. “contravened the [Immigration and Nationality Act (INA)] by exceeding the

13 president’s authority under § 1182(f), discriminating on the basis of nationality, and

14 disregarding the procedures for setting annual admissions of refugees.” Hawai’i v.

15 Trump, 2017 WL 2529640, at *23 (9th Cir. June 12, 2017).

16

Following the issuance of E.O. 13780, Plaintiffs filed a second amended complaint

17 which added three named plaintiffs and a challenge to E.O. 13780, alleging that it

18 “sanctions a major expansion of the existing CARRP program.” (Dkt. No. 47 at ¶¶ 18,

19 26–28.)

20

C. Named Plaintiffs

21

All named Plaintiffs are foreign nationals from Muslim-majority countries, and

22 have applied for naturalization or adjustment of status. (Id. at ¶¶ 24–28.)

23

Plaintiff Wagafe is a Somali national and former lawful permanent resident. (Id. at

24 24.) He applied for naturalization in November 2013 and, although he met the statutory

25 criteria for naturalization, his application was submitted to CARRP. (Id. at ¶¶ 24, 142–

26 161.) There his application remained, until five days after Plaintiffs moved for class

ORDER PAGE - 5

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1 certification, at which point he was contacted by USCIS and an interview was scheduled.

2 (Id. at ¶ 24) Within two weeks, he became a U.S. citizen. (Id.)

3

Plaintiff Ostadhassan is an Iranian national, and a Professor at the University of

4 North Dakota, who meets all the statutory requirements to adjust his status to that of a

5 lawful permanent resident. (Id. at ¶¶ 25, 162–175.) His application was submitted to

6 CARRP. (Id. at ¶¶ 25, 170.) Prior to this lawsuit, Mr. Ostadhassan waited over three and

7 a half years for a decision on his application. (Id. at 175, Dkt. No. 58 at 12.) On April 5,

8 2017, one day after Plaintiffs filed their second amended complaint, USCIS notified Mr.

9 Ostadhassan of its intent to deny his application. (Dkt. No. 58 at 3; Dkt. No. 53 at 1.)

10

Plaintiff Bengezi is a Libyan national married to a United States citizen. (Dkt. No.

11 47 at ¶ 26.) In February 2015, she applied for adjustment to lawful permanent resident

12 status. (Id.) Her application was submitted to CARRP. (Id. at ¶¶ 26, 196.) Soon after

13 being added as a named plaintiff, USCIS notified her that her interview had been

14 scheduled. (Dkt. No. 58 at 12.) USCIS approved her application on May 9, 2017. (Dkt.

15 No. 60 at 10; Dkt. No. 60-2.)

16

Plaintiff Jihad is an Iraqi refugee who has resided in Washington since 2008. (Dkt.

17 No. 47 at ¶¶ 27, 199–204.) His lawful permanent resident status became effective upon

18 arrival in the United States. (Id. at ¶ 205.) He applied for naturalization in July of 2013

19 and satisfied all of the statutory criteria, yet his application was submitted to CARRP. (Id.

20 at ¶¶ 26, 206–17.) Over three years passed with no action on Mr. Jihad’s application.

21 (Dkt. No. 58 at 12.) On April 4, 2017, Mr. Jihad was added as a named Plaintiff. (Dkt.

22 No. 47.) He received an interview notification on April 13, 2017 and was interviewed on

23 April 25, 2017. (Dkt. No. 58 at 12.) USCIS approved his application on May 9, 2017 and

24 he took his oath of citizenship on May 30, 2017. (Dkt. No. 60 at 10; Dkt. No. 60-4.)

25

Plaintiff Manzoor is a Pakistani national who has lived in the United States since

26 2001. (Dkt. No. 47 at ¶ 28.) He came to the United States to obtain his Master of Science

ORDER PAGE - 6

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1 in Marketing Research from the University of Texas and was later granted an H-1B work

2 visa. (Id. at ¶¶ 221–22.) He applied for naturalization in 2015 and meets the statutory

3 criteria; his application was submitted to CARRP. (Id. at ¶¶ 228–34.) No action was

4 taken on his application, however on May 1, 2017, less than a month after being added as

5 a named plaintiff, Mr. Manzoor was interviewed and his application was approved on the

6 spot. (Dkt. No. 58 at 12.) He took his oath of citizenship the same day. (Dkt. No. 60-5.)

7

D. Defendants’ Motion to Dismiss (Dkt. No. 56)

8

In response to Plaintiffs’ second amended complaint, Defendants now bring this

9 motion to dismiss all claims for two reasons. (Dkt. No. 56.) First, Defendants maintain

10 that under Federal Rule of Civil Procedure 12(b)(1) this Court lacks subject matter

11 jurisdiction because (1) Plaintiffs lack standing, and (2) Plaintiffs’ claims are moot. (Id. at

12 10–11.) Second, Defendants argue that under Federal Rule of Civil Procedure 12(b)(6),

13 Plaintiffs have failed to state a claim upon which relief may be granted for Claims Four,

14 Seven through Nine, and any claims challenging “extreme vetting.” (Id. at 11.)

15

E. Plaintiffs’ Motion for Class Certification (Dkt. No. 49)

16

After filing the second amended complaint, Plaintiffs filed the present amended

17 motion for class certification. (Dkt. No. 49.) Plaintiffs argue that “[t]hrough CARRP, the

18 government surreptitiously blacklists thousands of applicants who are seeking

19 immigration benefits, labeling them ‘national security threats.’” (Id. at 8.) In addition to

20 themselves, “[t]housands of individuals . . . have had their applications for naturalization

21 or adjustment of status halted, delayed, or denied by CARRP.” (Id. at 9.) Accordingly,

22 Plaintiffs maintain that class treatment is the appropriate avenue through which to

23 “challenge CARRP and any other successor ‘extreme vetting’ program that the Executive

24 branch may seek to implement pursuant to Sections 4 and 5 of the Second EO or through

25

26

ORDER PAGE - 7

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1 other extra-statutory means.”2 (Id.)

2

Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), Plaintiffs

3 Wagafe, Jihad, and Manzoor move the Court to certify the following class, and appoint

4 them as class representatives:

5

A national class of all persons currently and in the future (1) who have or

6

will have an application for naturalization pending before USCIS, (2) that is

subject to CARRP or a successor “extreme vetting” program, and (3) that has

7

not been or will not be adjudicated by USCIS within six months of having

8

been filed.

(Id.) For simplicity, the Court refers to the above putative class as the “Naturalization 9

Class.” Additionally, Plaintiffs Ostadhassan and Bengezi move the Court to certify the 10

following class and appoint them as class representatives: 11

12

A national class of all persons currently and in the future (1) who have or

will have an application for adjustment of status pending before USCIS,

13

(2) that is subject to CARRP or a successor “extreme vetting” program, and

(3) that has not been or will not be adjudicated by USCIS within six months

14

of having been filed.

15 (Id.)3 For simplicity, the Court refers to the second putative class as the
16 “Adjustment Class.”

17
18 2 Defendants make much of the fact that Plaintiffs challenge a potential successor program. Given the apparent background of CARRP, this is understandable. As Plaintiffs explain in the
19 second amended complaint, “USCIS did not make information about CARRP public, and the program was only discovered through fortuity during federal court litigation. To the extent the
20 program has shifted in name, scope, or method, Plaintiffs may have no way to obtain that 21 information. Thus, Plaintiffs’ reference to ‘CARRP’ incorporates any similar non-statutory and
sub-regulatory successor vetting policy, including pursuant to Sections 4 and 5 of [E.O. 13780].” 22 (Dkt. No. 47 at ¶ 19, n.1.)
23 3 In Plaintiffs’ first amended complaint they asserted an additional “Muslim Ban Class,” relating to the effect of Section 3(c) of E.O. 13769. (Dkt. No. 17.) In Plaintiffs’ second amended
24 complaint, they preserved the assertion of the “Muslim Ban Class” relating to the effect of Section 2(c) of E.O. 13780. (Dkt. No. 47.) Due to recent court orders enjoining E.O. 13780, see
25 footnote 1, supra, Plaintiffs do not seek certification of the “Muslim Ban Class” at this time, but “reserve the right to seek certification of the additional class if circumstances change again.”
26 (Dkt. No. 49 at 9–10, n.1.)

ORDER PAGE - 8

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1 II. DISCUSSION

2

A. Defendant’s Motion to Dismiss (Dkt. No. 56)

3

Defendants move to dismiss Plaintiffs’ claims in part under Federal Rule of Civil

4 Procedure 12(b)(1) and in part under Federal Rule of Civil Procedure 12(b)(6). Under

5 Rule 12(b)(1), Defendants ask the Court to dismiss all claims for lack of a case or

6 controversy, and Claims One, Two, Three, Five, Six, and Ten for lack of standing. (Dkt.

7 No. 56 at 10–11.) Under Rule 12(b)(6), Defendants request dismissal of Claims Four,

8 Seven, Eight, Nine, and “extreme vetting” claims for failure to state a claim upon which

9 relief may be granted. (Id. at 11.) For the following reasons, Defendants’ motion to

10 dismiss is GRANTED as to Claim Four for the Adjustment Class only. The remainder of

11 Defendants’ motion to dismiss is DENIED.

12

1. Standard of Review

13

A defendant may move to dismiss an action for lack of subject matter jurisdiction.

14 Fed. R. Civ. P. 12(b)(1). A 12(b)(1) challenge to jurisdiction may be facial or factual.

15 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “The district court

16 resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): Accepting

17 the plaintiff’s allegations as true and drawing all reasonable inferences in the plaintiff’s

18 favor,” and then determining whether they are legally sufficient to invoke jurisdiction.

19 Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citing Pride v. Correa, 719 F.3d

20 1130, 1133 (9th Cir. 2013)). A factual attack, on the other hand, challenges the facts that

21 serve as the basis for subject matter jurisdiction. In evaluating a factual attack, a court

22 may look beyond the complaint without converting the motion into one for summary

23 judgment. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

24

A defendant may also move for dismissal when a plaintiff “fails to state a claim

25 upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). On a 12(b)(6) motion to

26 dismiss, the Court accepts all factual allegations in the complaint as true and construes

ORDER PAGE - 9

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1 them in the light most favorable to the non-moving party. Vasquez v. L.A. County, 487

2 F.3d 1246, 1249 (9th Cir. 2007). However, to survive a motion to dismiss, a plaintiff

3 must cite facts supporting a “plausible” cause of action. Bell Atlantic Corp. v. Twombly,

4 550 U.S. 544, 555–56 (2007). A claim has “facial plausibility” when the party seeking

5 relief “pleads factual content that allows the Court to draw the reasonable inference that

6 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 672

7 (2009) (internal quotations omitted). “Dismissal for failure to state a claim is appropriate

8 only if it appears beyond doubt that the non-moving party can prove no set of facts in

9 support of his claim which would entitle him to relief.” Vasquez, 487 F.3d at 1249

10 (internal quotations omitted).

11

2. Case or Controversy

12

Defendants ask this Court to dismiss Plaintiffs’ case in its entirety for lack of a

13 case or controversy because Plaintiffs admit they have no interest in adjudication of their

14 applications. (Dkt. No 56 at 18.) Defendants maintain that Plaintiffs “want only a

15 determination that CARRP is unlawful, and an injunction preventing Defendants from

16 applying it to the proposed class members.” (Dkt. No. 56 at 18 (citing Dkt. No. 26 at

17 15)). Defendants ask this Court to exercise its discretion and consider Plaintiffs’

18 statement as a judicial admission, and find that because Plaintiffs have no interest in the

19 adjudication of their claims, there is no case or controversy, which therefore deprives this

20 Court of jurisdiction on standing grounds. (Dkt. No. 56 at 18–19.) This argument fails for

21 three reasons.

22

First, what Plaintiffs actually said in the cited brief is that they are not asking the

23 Court to adjudicate their individual immigration applications. (Dkt. No. 26 at 9.)

24 Therefore, what Defendants are actually asking this Court to do is consider their

25 interpretation of a portion of Plaintiffs’ first motion to certify class (Dkt. No. 26) and

26 conclude it is a judicial admission. This the Court will not do.

ORDER PAGE - 10

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1

Second, Defendants misconstrue Plaintiffs’ claims. While Plaintiffs do want a

2 determination that CARRP is unlawful, they also seek an order compelling USCIS to

3 “adjudicate Plaintiffs’ and proposed class members’ petitions, applications, or requests

4 based solely on the statutory criteria.” (Dkt. No. 47 at 51.)

5

Third, as Plaintiffs point out, “adjudicating the named Plaintiffs’ applications does

6 not resolve the core issue in this case: whether CARRP and any successor ‘extreme

7 vetting’ program is lawful.” (Dkt. No. 58 at 14.) Defendants’ contention that this Court

8 does not have jurisdiction for want of case or controversy fails. Defendants’ motion to

9 dismiss on this ground is DENIED.

10

3. Claims One, Two, Three, Five, Six, and Ten

11

Defendants next move to dismiss Claims One, Two, Three, Five, Six, and Ten for

12 lack of standing. (Dkt. No 56 at 19.) Standing consists of three elements: the plaintiff

13 (1) must have suffered an injury in fact, (2) that is fairly traceable to the challenged

14 conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial

15 decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). Once a party

16 asserts the absence of subject matter jurisdiction, the opposing party invoking the court’s

17 jurisdiction bears the burden of proving it exists. Kokkonen v. Guardian Life Ins. Co. of

18 Am., 511 U.S. 375, 377 (1994).

19

a. Claims One, Two, Three, Five, and Six

20

Defendants first argue that Plaintiffs have not suffered an injury in fact as to

21 claims One, Two, Three, Five, and Six because Executive Order (E.O.) 13780 “does not

22 suspend the adjudication of immigrant benefit applications by persons within the United

23 States, and USCIS has not suspended the adjudication of Plaintiffs’ benefit applications

24 pursuant to E.O. 13780.” (Dkt. No. 56 at 19.) Specifically, Defendants point to Plaintiffs’

25 notice of related cases, (Dkt. No. 22), in which they acknowledged that these claims

26 “may become moot.” (Dkt. No. 56 at 10, 19.) In that notice, Plaintiffs were referring to

ORDER PAGE - 11

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1 then-Acting Director of USCIS Lori Scialabba’s memo regarding E.O. 13769—the

2 predecessor to E.O. 13780—in which she stated that E.O. 13769 “does not affect USCIS

3 adjudication of applications and petitions filed for or on behalf of individuals in the

4 United States regardless of their country of nationality.” (Dkt. No. 22 at 2–3; Dkt. No.

5 56-1.) Defendants argue that because adjudication of Plaintiffs’ applications have not

6 been suspended pursuant to E.O. 13780, they have not suffered an injury.

7

The Court makes three observations in response to Defendants’ arguments. First,

8 Plaintiffs stated only that their claims may be moot, and made such statements prior to the

9 president issuing E.O. 13780. Second, Acting Director Scialabba’s memo pertained to

10 E.O. 13769, which was rescinded by E.O. 13780, and therefore no longer has relevance.

11

Third, Plaintiffs’ claims do establish an injury in fact. Claims One and Two allege

12 that Defendants have interpreted the first E.O. and “will interpret the Second EO to

13 authorize the suspension” of immigration applications. (Dkt. No. 47 at ¶ 251, 257.) Claim

14 Three, which is based on the Establishment Clause, alleges that the “Second EO is

15 intended to target a specific religious faith—Islam,” because Defendants are “not

16 pursuing a course of neutrality with regard to different religious faiths.” (Id. at ¶ 261.)

17 Claim Five is a Due Process challenge based on Plaintiffs being “denied immigration

18 benefits for which they are statutorily eligible, and to which they are entitled by law.” (Id.

19 at ¶ 266.) Claim Six alleges an Equal Protection violation in that Defendants’ indefinite

20 suspension of applications under CARRP and E.O. 13780 discriminates on the basis of

21 “country of origin” and is “substantially motivated by animus toward—and has a

22 disparate effect on—Muslims.” (Id. at ¶¶ 268–69.) Furthermore, even if E.O. 13780 does

23 not suspend the applications, Plaintiffs allege that CARRP or another “extreme vetting”

24 program,4 independent of E.O. 13780, suspended Plaintiffs’ applications or will suspend

25 applications of the putative class, and that such suspension was unlawful. This is

26 4 See note 2, supra.

ORDER PAGE - 12

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1 sufficient to survive a motion to dismiss.

2

Another consideration for the Court is that USCIS has now acted on all of the

3 applications of the named Plaintiffs, after up to three and a half years of inactivity. (Dkt.

4 No. 58 at 11–12.) Curiously, USCIS’s actions on these applications took place almost

5 immediately after Plaintiffs were added as proposed class representatives. To the extent

6 that Defendants argue this fact moots Plaintiffs’ claims, “[i]t is well settled that ‘a

7 defendant’s voluntary cessation of a challenged practice does not deprive a federal court

8 of its power to determine the legality of the practice.’” Friends of the Earth, Inc. v.

9 Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v.

10 Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). It is the party asserting mootness that

11 has the “heavy burden of persuading” the Court that the challenged conduct will not

12 resume. Id. This standard is a “stringent” one, and even “if subsequent events made it

13 absolutely clear that the allegedly wrongful behavior could not reasonably be expected to

14 recur,” a case only “might become moot.” Id.

15

Here, Plaintiffs allege this unlawful practice has been ongoing since the inception

16 of the CARRP program in 2008. Plaintiff Wagafe waited three and a half years for action

17 on his application. That prompt action has been taken on Plaintiffs’ applications

18 subsequent to their being named class representatives does not convince the Court that

19 Defendants have met their burden that the alleged unlawful conduct could not reasonably

20 be expected to recur. Furthermore, acting on applications subjected to CARRP—that

21 were highlighted by a lawsuit challenging it—is very different than voluntary cessation of

22 the CARRP program.

23

b. Claim Ten

24

Defendants next argue that Plaintiffs lack standing to assert Claim Ten—a

25 violation of the Constitution’s Uniform Rule of Naturalization Clause—because (1) there

26 is no private right of action under the clause, and (2) even if CARRP violated the clause,

ORDER PAGE - 13

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1 Congress would be injured, not Plaintiffs. (Dkt. No. 56 at 21–22.)

2

As to Defendants’ first argument, the cases cited do not support it. Flores v. City

3 of Baldwin Park dealt with a remand issue and whether the Uniform Rule of

4 Naturalization Clause completely preempted state law. 2015 WL 756877, *3 (C.D. Cal.

5 Feb. 23, 2015). Cazarez-Gutierrez v. Ashcroft dealt with sentencing. 382 F.3d 905, 912

6 (9th Cir. 2004). And Korab v. Fink mentioned the history of the clause but nowhere in

7 that opinion does this Court find the proposition that a private litigant does not have

8 standing to bring suit for its violation. 797 F.3d 572, 580–81 (9th Cir. 2014). In contrast,

9 a naturalization applicant was allowed to challenge a state law which barred

10 naturalization on the basis of homosexuality because “the resulting inconsistencies

11 undermine[d]” the Uniform Rule of Naturalization Clause. Nemetz v. I.N.S., 647 F.2d

12 432, 435 (4th Cir. 1981).

13

Defendants’ second argument—that it is Congress, and not Plaintiffs, that would

14 be injured—also fails. Assuming Congress would be injured by CARRP’s alleged

15 addition of non-statutory and substantive requirements to naturalization, it does not

16 follow that Plaintiffs could not also be injured. For once Congress “establishes such

17 uniform rule [of naturalization], those who come within its provisions are entitled to the

18 benefit thereof as a matter of right, not as a matter of grace.” See Schwab v. Coleman,

19 145 F.2d 672, 676 (4th Cir. 1944). Defendants’ motion to dismiss Claims One, Two,

20 Three, Five, Six, and Ten on the basis of standing is DENIED.

21

4. Extreme Vetting Claims

22

Defendants argue that Plaintiffs’ claims “concerning ‘extreme vetting’ under E.O.

23 13780 must be dismissed” for failure to allege sufficient facts to support them. (Dkt. No.

24 56 at 22.) While the Court agrees that any claims about enjoining a potential future

25 extreme vetting program may be premature, Defendants do not direct the Court to any

26 specific claims for relief that must be dismissed. The only claim for relief that even

ORDER PAGE - 14

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1 mentions “extreme vetting”5 is Claim Four. (Dkt. No. 47 at ¶ 263.) This claim alleges a

2 Due Process violation for failure to give Plaintiffs and members of the putative classes

3 “notice of their classification under CARRP (or successor ‘extreme vetting’ program), a

4 meaningful explanation of the reason for such classification, and any process by which

5 Plaintiffs can challenge their classification.” (Id.) The Court cannot enjoin a program that

6 is currently nonexistent; if the Court ultimately enjoins CARRP, and Defendants

7 implement a successor program substantially similar to CARRP,6 such conduct would be

8 in violation of the Court’s injunction. The main thrust of this case is the legality of

9 CARRP. The Court will not dismiss Plaintiffs’ claims because they include allegations of

10 a possible future and unlawful program that would embody CARRP in all but name.

11

5. Claim Four

12

Defendants next argue that Plaintiffs’ Fourth Claim for relief, which alleges a Due

13 Process violation, should be dismissed because Plaintiffs have not been deprived of a

14 protected liberty or property interest. (Dkt. No. 56 at 23.)

15

Procedural Due Process claims “hinge[] on proof of two elements: (1) a

16 protect[ed] liberty or property interest . . . and (2) a denial of adequate procedural

17 protections.” Foss v. Nat’l Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998).

18 Given CARRP’s apparently clandestine nature, and a lack of opposition from Defendants

19 on this point, the second element is met. Thus, the issue is whether Plaintiffs have

20 asserted a protected liberty or property interest in having their applications adjudicated

21 lawfully. “To have a property interest in a benefit, a person clearly must have more than

22 an abstract need or desire for it. He must have more than a unilateral expectation of it. He

23 5 Two of the proposed classes in the second amended complaint—but not the motion for class
24 certification—contain “extreme vetting” in their title, but bear no relevance to the motion to 25 dismiss.
6 As Plaintiffs point out, due to the secretive nature of CARRP, it is plausible such a program is 26 already in existence. (Dkt. No. 47 at ¶¶ 19 n.1, 59.)

ORDER PAGE - 15

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1 must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colls.

2 v. Roth, 408 U.S. 564, 577 (1972).

3

The Ninth Circuit, and other courts, have held that naturalization applicants have a

4 property interest in seeing their applications adjudicated lawfully. Brown v. Holder, 763

5 F.3d 1141, 1147 (9th Cir. 2014); see also Ching v. Mayorkas, 725 F.3d 1149, 1155 (9th

6 Cir. 2013) (finding a constitutionally protected interest in nondiscretionary immigration

7 applications); I.N.S. v. Pangilinan, 486 U.S. 875, 884 (1988) (noting there is no

8 discretion to deny naturalization if an applicant is otherwise qualified); Schwab, 145 F.2d

9 at 676–77 (“[T]hose who come within [the Uniform Rule of Naturalization] are entitled

10 to the benefit thereof as a matter of right[.]”); United States v. Shanahan, 232 F.169, 171

11 (E.D. Pa. 1916) (“It is, of course, true that . . . admission to citizenship . . . is not a right,

12 but a privilege . . . . When an applicant has met all the requirements of the law, the

13 privilege accorded him ripens into a right . . . he is entitled to citizenship.”). As the

14 United States Supreme Court explained nearly 100 years ago:

15

The opportunity to become a citizen of the United States is said to be merely

16

a privilege, and not a right. It is true that the Constitution does not confer

upon aliens the right to naturalization. But it authorizes Congress to establish

17

a uniform rule therefor. Article 1, Sec. 8, cl. 4. The opportunity having been

18

conferred by the Naturalization Act, there is a statutory right in the alien to submit his petition and evidence to a court, to have that tribunal pass upon

19

them, and, if the requisite facts are established, to receive the certificate.

20 Tutun v. United States, 270 U.S. 568, 578 (1926).

21

Defendants counter that “no alien has the slightest right to naturalization.” (Dkt.

22 No. 56 at 24 (quoting Fedorenko v. United States, 449 U.S. 490, 506 (1981)). However,

23 Defendants’ citation of Fedorenko omits a significant portion of the quote. The complete

24 citation reads, “‘No alien has the slightest right to naturalization unless all statutory

25 requirements are complied with.’” Fedorenko, 449 U.S. at 506 (quoting United States v.

26 Ginsberg, 243 U.S. 472, 474–75 (1917)) (emphasis added). Here, Plaintiffs allege that all

ORDER PAGE - 16

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1 the statutory requirements have been complied with, and the application of CARRP’s

2 extra-statutory requirements deprives Plaintiffs of the right to which they are entitled.

3 This is sufficient to allege a violation of due process. Defendants’ motion to dismiss

4 Claim Four is DENIED as to the Naturalization Class.

5

Plaintiffs who seek adjustment of their status is a different matter. “The status of

6 an alien . . . may be adjusted by the Attorney General, in his discretion.” 8 U.S.C.

7 § 1255(a). As numerous courts have held, discretionary relief, such as adjustment of

8 status, is not a protected property interest. Sandoval-Luna v. Mukasey, 526 F.3d 1243,

9 1247 (9th Cir. 2008); McCreath v. Holder, 573 F.3d 38, 41 (1st Cir. 2009); Hamdan v.

10 Gonzales, 425 F.3d 1051, 1060 (7th Cir. 2005); Nativi-Gomez v. Ashcroft, 344 F.3d 805,

11 808 (8th Cir. 2003). Therefore, Plaintiffs who seek an adjustment of status cannot claim a

12 due process violation, and Claim Four is DISMISSED WITH PREJUDICE as to the

13 Adjustment Class.

14

Finally, Defendants argue that Plaintiffs do not have a constitutionally protected

15 interest in the pace of their adjudication. (Dkt. No. 56 at 24.) However, this misconstrues

16 Plaintiffs’ claims. Plaintiffs’ case centers on their allegation that an extra-statutory policy

17 based on discriminatory and illegal criteria is blocking the fair adjudication of

18 immigration benefits of which they are statutorily eligible. (See Dkt. No. 58 at 23.) Pace

19 of the adjudication is a byproduct of that allegation, not the allegation itself. The Court

20 therefore will not address Defendants’ argument.

21

6. Claim Seven

22

Defendants argue that Plaintiffs’ Claim Seven—that CARRP violates the INA—

23 must be dismissed because the INA does not create a private right of action, and therefore

24 Plaintiffs lack standing. (Dkt. No. 56 at 26.) The Court need not decide whether Congress

25 has implied a private right of action under the INA, because Plaintiffs are challenging

26 agency action. Section 10(a) of the Administrative Procedure Act (APA) provides a right

ORDER PAGE - 17

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1 of action for plaintiffs who challenge administrative action that violates a federal statute.

2 Any “person . . . adversely affected or aggrieved by agency action within the meaning of

3 a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702; see also

4 Cetacean Cmty. v. Bush, 386 F.3d 1169, 1176–77 (9th Cir. 2004) (“[T]he end result is the

5 same whether the underlying statute grants standing directly or whether the APA

6 provides the gloss that grants standing. In both cases, the plaintiff can bring suit to

7 challenge the administrative action in question. In the first case, the substantive statute

8 grants statutory standing directly to the plaintiff. In the second case, the substantive

9 statute is enforced through Section 10(a) of the APA.”); Hernandez-Avalos v. I.N.S., 50

10 F.3d 842, 846 (10th Cir. 1995) (“[A] plaintiff who lacks a private right of action under

11 the underlying statute can bring suit under the APA to enforce the statute.”). The proper

12 question for the Court, therefore, is whether Section 10(a) of the APA applies to

13 Plaintiffs’ suit.

14

Whether Section 10(a) applies to a given suit turns on whether a plaintiff is

15 “arguably within the zone of interests to be protected or regulated by the statute or

16 constitutional guarantee in question.” Ass’n of Data Processing Serv. Orgs., Inc. v.

17 Camp, 397 U.S. 150, 153 (1970). The “‘zone of interests’ test is ‘not meant to be

18 especially demanding,’ and a court should deny standing only ‘if the plaintiff’s interests

19 are so marginally related to or inconsistent with the purposes implicit in the statute that it

20 cannot reasonably be assumed that Congress intended to permit the suit.’” Cetacean, 386

21 F.3d at 1177 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987)). The

22 “benefit of any doubt goes to the plaintiff.” Match-E-Be-Nash-She-Wish Band of

23 Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012). Under this standard, it is

24 arguable that those applying for immigration benefits fall within the zone of interests of

25 the statute that sets forth the requirements for obtaining those benefits. Accordingly,

26 Defendants’ motion to dismiss Plaintiffs’ Claim Seven is DENIED.

ORDER PAGE - 18

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1

7. Claim Eight

2

Defendants move the Court to dismiss Plaintiffs’ Claim Eight—that CARRP is a

3 final agency action that is arbitrary and capricious and in violation of the INA and

4 USCIS’s statutory authority—for failure to state a claim because it does not relate to a

5 final agency action. (Dkt. No. 56 at 29.)

6

Under the APA, for an agency action to be reviewable, it must be final. 5 U.S.C. §

7 704. An action is final if it (1) “mark[s] the ‘consummation’ of the agency’s decision-

8 making process,” and (2) is “one by which ‘rights or obligations have been determined,’

9 or from which ‘legal consequences will flow.’” Bennet v. Spear, 520 U.S. 154, 178

10 (1997) (quoting Port of Boston Marine Terminal Ass’n. v. Rederiaktiebolaget

11 Transatlantic, 400 U.S. 62, 71 (1970)).

12

Defendants argue that “the CARRP handling process” and the delays caused by

13 CARRP are not final agency actions. However, Defendants again misrepresent Plaintiffs’

14 claim. Plaintiffs allege that CARRP—the policy itself—is a final agency action, “not any

15 one applicant’s adjudication thereunder.” (Dkt. No. 58 at 30; Dkt. No. 47 at ¶ 280.) The

16 Court therefore analyzes whether the overall CARRP policy, its inception and

17 implementation, constitutes final agency action under the Bennet test.

18

Plaintiffs allege that USCIS initiated CARRP in 2008, and since that time, it has

19 been responsible for delaying and denying thousands of immigration applications. (See

20 Dkt. No. 47 at ¶¶ 55–97.) The first prong is met because CARRP is an active program

21 implemented by the agency and represents the culmination of USCIS’s decision making

22 process. The implementation of CARRP affects the thousands of applicants whose

23 qualified applications are allegedly indefinitely delayed or denied without explanation.

24 The second prong is met because this results in distinct legal consequences. The Court

25 therefore finds that CARRP is a final agency action. Defendants’ motion to dismiss

26 Claim Eight is DENIED.

ORDER PAGE - 19

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1

8. Claim Nine

2

Finally, Defendants move to dismiss Plaintiffs’ Claim Nine—that CARRP was not

3 properly subjected to the notice-and-comment procedure—because it is not a substantive

4 or legislative rule. Under the APA, an agency may issue a “legislative rule” only by using

5 the APA’s notice-and-comment procedure. 5 U.S.C. § 553 (b), (c); Hemp Indus. Ass’n v.

6 DEA, 333 F.3d 1082, 1087 (9th Cir. 2003). Failure to implement the notice-and-comment

7 procedure invalidates the resulting regulation. See Paulsen v. Daniels, 413 F.3d 999,

8 1008 (9th Cir. 2005). Exempt from this rule, however, are “interpretive rules, general

9 statements of policy, or rules of agency organization, procedure or practice.” 5 U.S.C.

10 § 553(b)(3)(A); Mora-Meraz v. Thomas, 601 F.3d 933, 939 (9th Cir. 2010). Defendant’s

11 motion to dismiss Claim Nine therefore turns on whether CARRP is classified as an

12 interpretive rule or substantive rule.

13

“For purposes of the APA, substantive rules are rules that create law . . . imposing

14 general, extrastatutory obligations pursuant to authority properly delegated by Congress.”

15 S. Cal. Edison Co. v. F.E.R.C., 770 F.2d 779, 783 (9th Cir. 1985). On the other hand, “the

16 critical feature of interpretive rules is that they are ‘issued by an agency to advise the

17 public of the agency’s construction of the statutes and rules which it administers.’” Perez

18 v. Morg. Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015) (quoting Shalala v. Guernsey

19 Memorial Hospital, 514 U.S. 87, 99 (1995)). In the Ninth Circuit, a substantive or

20 legislative rule will be found “(1) when, in the absence of the rule, there would not be an

21 adequate legislative basis for enforcement action; (2) when the agency has explicitly

22 invoked its general legislative authority;[7] or (3) when the rule effectively amends a

23 prior legislative rule.” Hemp Indus., 333 F.3d at 1087 (citing Am. Mining Congress v.

24 Mine Safety & Health Admin., 995 F.2d 1106, 1109 (D.C. Cir. 1993)).

25

26 7 The parties agree that the second element does not apply here and the Court will not consider it.

ORDER PAGE - 20

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1

Defendants argue that the statutes and regulations already in place in the INA, 8

2 U.S.C. §§ 1255, 1357(b), 1423–1427, and 1429, “constitute an adequate legislative basis

3 for USCIS to undertake the procedural steps laid out by CARRP in the adjudication of

4 benefit applications.” (Dkt. No. 56 at 31.) The Court finds that the sections cited of the

5 INA do not support Defendants’ argument. For example, Defendants maintain that

6 because 8 U.S.C. § 1446(a) requires a “personal investigation of the person applying for

7 naturalization,” an adequate legislative basis for CARRP exists. (Dkt. No. 56 at 31.)

8 However Plaintiffs’ allegations suggest that CARRP goes well beyond a personal

9 investigation and instead “creates a separate substantive regime for immigration

10 application processing and adjudication.” (Dkt. No. 58 at 28; Dkt. No. 47 at ¶ 95.)

11 Plaintiffs allege that “[u]nder CARRP, non-statutory indicators of a national security

12 concern include travel through or residence in areas of known terrorist activity; a large

13 scale transfer or receipt of funds; a person’s employment, training, or government

14 affiliations . . . [;] or other suspicious activities.” (Dkt. No. 47 at ¶ 74.) Those indicators

15 alone may seem like reasonable considerations under a “personal investigation.”

16 However, the allegation that the presence of such an indicator therefore labels the

17 application as a “national security concern” and “forbids USCIS from granting the

18 requested benefit,” (id. at ¶ 92) and guides “officers to deny such applications . . . or

19 delay adjudication as long as possible,” (id. at 77), taken as true, transports CARRP into

20 the realm of the substantive.

21

Addressing the third part of the framework, Defendants argue that CARRP does

22 not amend a prior legislative rule but rather “is a process to vet cases with an articulable

23 link to national security concerns and to determine the proper adjudicative action to take

24 within statutory limits.” (Dkt. No. 56 at 32.) The Court disagrees. The INA already

25 contains indicators of national security concerns for those seeking lawful permanent

26 resident status, asylum, or a visa. 8 U.S.C. §§ 1182(a)(3)(A), (B), and (F), 1227(a)(4)(A)

ORDER PAGE - 21

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1 and (B). Taking Plaintiffs’ allegations as true, CARRP goes beyond these statutory

2 indicators. CARRP would therefore effectively amend a prior legislative rule.

3

Finally, the Court notes that because CARRP only came to light through litigation

4 and FOIA requests, (see Dkt. No. 47 at ¶ 59), its issuance cannot be said to be

5 interpretive because it “advise[d] the public of” nothing. See Perez, 135 S. Ct. at 1204.

6 Accordingly, the Court finds that Plaintiffs allege sufficient facts to support their claim

7 that CARRP is a substantive rule subject to the notice-and-comment procedure of the

8 APA. Defendants’ motion to dismiss Claim Nine is DENIED.

9

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN

10 PART Defendants’ motion to dismiss (Dkt. No. 56). It is granted in that Claim Four is

11 DISMISSED as to the Adjustment Class only. It is DENIED in all other respects.

12

9. Plaintiffs’ Amended Motion for Class Certification (Dkt. No. 49)

13

1. Legal Standard for Class Certification

14

A party seeking to litigate a claim as a class representative must affirmatively

15 satisfy the requirements of Federal Rule of Civil Procedure 23(a) and the requirements of

16 at least one of the categories under Rule 23(b). Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

17 338, 345 (2011); Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir. 2012). In

18 determining whether the plaintiffs have carried this burden, the Court must conduct a

19 “rigorous analysis.” General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982). This

20 inquiry may “entail some overlap with the merits of the plaintiff’s underlying claim[,]”

21 though the Court considers the merits only to the extent that they overlap with the

22 requirements of Rule 23 and allow the Court to determine the certification issue on an

23 informed basis. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011). The

24 ultimate decision to certify a class is within the Court’s discretion. Vinole v. Countrywide

25 Home Loans, Inc., 571 F.3d 935, 944 (9th Cir. 2009).

26

ORDER PAGE - 22

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1

2. Rule 23(a) Requirements

2

Rule 23(a) requires that one or more members of a class may sue as a

3 representative plaintiff only if (1) the class is so numerous that joinder is impracticable;

4 (2) there are common questions of law or fact to the class; (3) the claims or defenses of

5 representative parties are typical of those of the class; and (4) the representatives will

6 fairly and adequately protect the interests of the absent class members. Fed. R. Civ. P.

7 23(a); See also Mazza, 666 F.3d at 588 (Rule 23(a) requires “numerosity, commonality,

8 typicality and adequacy of representation”). Defendants contest certification on

9 commonality, typicality, and adequacy grounds. (Dkt. No. 60 at 13.) Because a rigorous

10 analysis is required regardless of a defendant’s opposition, the Court addresses each

11 requirement independently. However, the Court first addresses Defendants’ more general

12 opposition to class certification on standing grounds.

13

Defendants oppose class certification because “‘[a] named plaintiff cannot

14 represent a class alleging [] claims that the named plaintiff does not have standing to

15 raise.”’ (Id.) (quoting Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1238 (9th Cir.

16 2001). Defendants argue that the named Plaintiffs, and all proposed class members, lack

17 standing to challenge (1) CARRP, because “they have disclaimed any interest in

18 obtaining decisions on their pending applications, and (2) an “extreme vetting” program

19 under E.O. 13780, because they have not suffered an injury. (Id.)

20

As to the first argument, the Court has already concluded the Plaintiffs have

21 standing to challenge CARRP. See Section II(A)(2)(a) and (b), supra. Regarding any

22 “extreme vetting” program, Defendants are correct that Plaintiffs may not have not

23 suffered any injury because Plaintiffs are unaware if such program currently exists.

24 However, as discussed above, Plaintiffs’ allegations regarding an “extreme vetting”

25 program safeguard against the Government doing away with CARRP and reinstituting a

26 substantially similar program under a different name, either in an effort to moot

ORDER PAGE - 23

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1 Plaintiffs’ claims, or insulate CARRP from judicial review. See Section II(A)(2)(c),

2 supra. As Plaintiffs correctly point out, “[t]o the extent any ‘extreme vetting’ policy

3 developed pursuant to the Second EO expands or continues CARRP, it will suffer from

4 the same legal deficiencies as CARRP itself.” (Dkt. No. 49 at 13–14.) Thus, while the

5 Court cannot preemptively enjoin an “extreme vetting” program, it could enjoin CARRP.

6 If that happens, an “extreme vetting” program developed pursuant to E.O. 13780, which

7 suffers from the same legal deficiencies as CARRP, would violate this Court’s order.

8

a. Numerosity

9

Rule 23(a)’s first requirement is satisfied when the proposed class is sufficiently

10 numerous to make joinder of all members impracticable. Fed. R. Civ. P. 23(a)(1).8 The

11 numerosity requirement requires the examination of the specific facts of each case,

12 though “in general, courts find the numerosity requirement satisfied when a class

13 includes at least 40 members.” Rannis v. Recchia, 380 Fed. App’x 646, 651 (9th Cir.

14 2010); see also Troy v. Kehe Food Distribs., Inc., 276 F.R.D. 642, 652 (W.D. Wash.

15 2011) (certifying a class of 43 to 54 workers). Here, between July 1, 2013 and September

16 20, 2013, USCIS reported 2,644 pending applications subjected to CARRP. (Dkt. No. 27-

17 1 at 164–169.) The putative class likely contains thousands of members. (Dkt. No. 114 at

18 4; Dkt. No. 51 at 25.) The Court finds that the numerosity requirement is met.

19

b. Commonality

20

Under Rule 23(a)(2)’s commonality requirement, a plaintiff must demonstrate that

21 the “class members’ claims ‘depend upon a common contention’ such that ‘determination

22 of its truth or falsity will resolve an issue that is central to the validity of each claim in

23 one stroke.’” Mazza, 666 F.3d at 588 (quoting Dukes, 564 U.S. at 350). The key inquiry

24 is not whether the plaintiffs have raised common questions, but whether “class treatment

25 will ‘generate common answers apt to drive the resolution of the litigation.’” Abdullah v.

26 8 Defendants do not dispute numerosity. (See generally Dkt. No. 63.)

ORDER PAGE - 24

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1 U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir. 2013) (quoting Dukes, 564 U.S. at

2 350) (emphasis in original). Every question of law or fact need not be common to the

3 class. Rather, all Rule 23(a)(2) requires is “a single significant question of law or fact.”

4 Id. (quotation omitted); see also Meyer v. Portfolio Recovery Assocs., 707 F.3d 1036,

5 1041–42 (9th Cir. 2012). The existence of “shared legal issues with divergent factual

6 predicates is sufficient, as is a common core of salient facts coupled with disparate legal

7 remedies within the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.

8 1998) (amended).

9

Plaintiffs posit that their claims present numerous common factual and legal

10 issues, including whether:

11

• CARRP violates the INA by creating additional, non-statutory, substantive

12

criteria that must be met prior to a grant of immigration benefits;

• CARRP violates the APA as a final agency action that is arbitrary and

13

capricious, exceeds statutory authority, and violates the Constitution;

14

• CARRP constitutes a substantive rule and is therefore unenforceable for failure

to provide a notice-and-comment period prior to implementation;

15

• CARRP violates the Uniform Rule of Naturalization, Article I, Section 8,

16

Clause 4 of the Constitution; and • CARRP violates the Due Process Clause of the Fifth Amendment.

17 (Dkt. No. 49 at 19–20.)

18

Defendants argue that “[a]t the heart of this case is the allegation that USCIS has

19 unreasonably delayed adjudicating” immigration applications and resolution of this

20 allegation requires a “fact-intensive, individualized inquiry into the causes of the delay in

21 each case.” (Dkt. No. 60 at 15.) This is incorrect. Plaintiffs’ claim is that CARRP is an

22 unlawful program. A byproduct of CARRP’s alleged unlawful program is unreasonable

23 delays.

24

The common question here is whether CARRP is lawful. The answer is “yes” or

25 “no.” The answer to this question will not change based on facts particular to each class

26 member, because each class member’s application was (or will be) subjected to CARRP.

ORDER PAGE - 25

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1 Therefore, “a classwide proceeding” will “generate common answers apt to drive the

2 resolution of the litigation.” See Troy, 276 F.R.D. at 652–53. The commonality

3 requirement is met.

4

c. Typicality

5

Plaintiffs must next show that their claims are typical of the class. Fed. R. Civ. P.

6 23(a)(3). “The test of typicality ‘is whether other members have the same or similar

7 injury, whether the action is based on conduct which is not unique to the named

8 Plaintiffs, and whether other class members have been injured by the same course of

9 conduct.’” Ellis, 657 F.3d at 984 (internal quotation omitted). The commonality and

10 typicality inquiries, which “tend to merge,” both serve as “guideposts for determining

11 whether under the particular circumstances maintenance of a class action is economical

12 and whether the named plaintiff’s claim and the class claims are so interrelated that the

13 interests of the class members will be fairly and adequately protected in their absence.”

14 Dukes, 131 S. Ct. at 2551, n.5 (quotations and citation omitted). Ultimately,

15 representative class claims are typical if they are “reasonably co-extensive with those of

16 absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at

17 1020; see also Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 2010) (noting the

18 “permissive” nature of the typicality inquiry).

19

Plaintiffs maintain that their claims are typical of the proposed classes because

20 “they proceed under the same legal theories, seek the same relief, and have suffered the

21 same injuries.” (Dkt. No. 49 at 21.) Defendants counter that because the named Plaintiffs

22 allege they are fully eligible for the benefits they seek, and the same cannot be said for

23 every member of the class, the named Plaintiffs are atypical of the class they seek to

24 represent. (Dkt. No. 60 at 21.) However, Rule 23(a)(3) requires that the claims of class

25 representatives be similar to claims of the class. Plaintiffs are not seeking specific

26 adjudication of their applications, only that USCIS adjudicate applications “based solely

ORDER PAGE - 26

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1 on the statutory criteria,” and not pursuant to CARRP. (Dkt. No. 47 at 51.) Whether any

2 particular Plaintiff or putative class member were statutorily eligible for the benefits

3 sought is not determinative of typicality. Further, if an applicant were statutorily

4 ineligible under the INA, then submitting such an application to CARRP would be

5 redundant, and grounds for denial already exist.

6

The relevant claim for the typicality inquiry is whether subjecting a Plaintiff’s

7 immigration application to CARRP is lawful. The class definitions include only

8 immigration benefit applicants whose applications have been submitted to CARRP.

9 Defendants do not claim that any of the proposed class representatives did not have their

10 application submitted to CARRP. Accordingly, the typicality requirement is met.

11

d. Adequacy

12

Finally, Rule 23(a)(4) requires that the named plaintiff “fairly and adequately”

13 protect the interests of the class. Fed. R. Civ. P. 23(a)(4). To determine whether the

14 representative parties will adequately represent a class, the Court must examine (1)

15 whether the named plaintiff and her counsel have any conflicts of interest with other class

16 members; and (2) whether the named plaintiff and her counsel will prosecute the action

17 vigorously on behalf of the class. Ellis, 657 F.3d at 985 (citing Hanlon, 150 F.3d at

18 1020). As the Ninth Circuit has noted, adequate representation depends upon “an absence

19 of antagonism between representatives and absentees[] and a sharing of interest between

20 representatives and absentees.” Ellis, 657 F.3d at 985 (quotations and citation omitted).

21

Plaintiffs contend that the five named Plaintiffs are adequate representatives

22 because “there is no tension between their interests and those of the absent class members

23 they seek to represent.” (Dkt. No. 63 at 11.) The class members’ interests all focus on

24 challenging CARRP and preventing it from being applied to their or other class

25 members’ immigration applications. Further, the named Plaintiffs are all willing to

26 prosecute this action vigorously. (Dkt. Nos. 28, 29, 50, 51, and 52.)

ORDER PAGE - 27

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1

Defendants contest adequacy on three grounds. First, Defendants argue that the

2 named Plaintiffs are inadequate representatives because there may be many putative class

3 members who are aware that their applications have been pending a long time, and who

4 would prefer to let the process “run its course.” (Dkt. No. 60 at 22.) This ignores the fact

5 that this lawsuit alleges that applicants do not receive notification that their application

6 has been submitted to CARRP, and Defendants have yet to deny such a claim.

7 Defendants presume that there are potential plaintiffs who applied for immigration

8 benefits but “might prefer to allow their applications to remain pending, continuing to

9 live and work in the United States in their current status, rather than risk having USCIS

10 determine they are inadmissible or removable and be placed in removal proceedings.”

11 (Id.) This argument is speculative at best, and as such, fails.

12

Second, Defendants repeat their argument regarding the fact that the named

13 Plaintiffs all claim to be eligible for the benefits they seek, and this would put them at

14 odds with putative class members who are ineligible. (Id. at 22–23.) The Court addressed

15 this argument above and applies the same reasoning here. Additionally, the Court sees no

16 basis for conflict on underlying eligibility grounds. If CARRP is an unlawful and

17 unconstitutional program to which all putative class members’ applications are submitted,

18 then they all have a shared interest—regardless of eligibility—in putting an end to it.

19

Finally, Defendants argue that the named Plaintiffs are inadequate representatives

20 because they have all had their applications adjudicated, and thus their claims are moot.

21 (Dkt. No. 60 at 24.) However, this argument has the opposite effect and actually

22 persuades the Court that class certification is appropriate.

23

Each named Plaintiff had his or her application acted on almost immediately after

24 joining this lawsuit. Assuming that this was merely CARRP and the application process

25 running its due course and that Plaintiffs’ ultimate adjudications happened to coincide

26 with being added as named Plaintiffs—even after their applications lay stagnant for up to

ORDER PAGE - 28

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1 four years—class certification would still be appropriate. Defendants’ argument supports

2 the conclusion that Plaintiffs’ claims would appear to be “so inherently transitory that the

3 trial court will not have even enough time to rule on a motion for class certification

4 before the proposed representative’s individual interest expires.” County of Riverside v.

5 McLaughlin, 500 U.S. 44. 52 (1991) (internal citation omitted). The named Plaintiffs’

6 claims are therefore “capable of repetition, yet evading review.” Pitts v. Terrible Herbst,

7 Inc., 653 F.3d 1081, 1091 (9th Cir. 2011) (citing Gerstein v. Pugh, 420 U.S. 103, 110

8 n.11 (1975)). In such a case, “mooting the putative class representative’s claims will not

9 necessarily moot the class action” even if “the district court has not yet addressed the

10 class certification issue.” Id. at 1090.

11

On the other hand, if adjudication of Plaintiffs’ applications is not happenstance,

12 and Defendants are purposely and strategically adjudicating Plaintiffs’ applications as

13 they are added as named Plaintiffs, such a blatant attempt to moot Plaintiffs’ claims will

14 not gain purchase with this Court. If this is true, Defendants appear to be engaging in a

15 strategy of picking off named Plaintiffs to insulate CARRP from meaningful judicial

16 review.

17

Such a strategy is apparently not without precedent. In Muhanna v. USCIS, No.

18 14-cv-05995 (C.D. Cal. July 31, 2014), five individual plaintiffs filed suit challenging

19 CARRP. After waiting years for adjudication, all five plaintiffs’ applications were

20 adjudicated within months of filing suit, and the lawsuit was voluntarily dismissed as

21 moot. Id., Dkt. No. 51 (entered Dec. 23, 2014). Similarly, in Arapi v. USCIS, No. 16-cv-

22 00692 (E.D. Mo. 2016), 20 individuals filed suit regarding CARRP and their pending

23 naturalization applications. Soon after, USCIS adjudicated all 20 applications, at which

24 point 19 plaintiffs voluntarily dismissed their claims and USCIS moved to dismiss the

25 final plaintiff’s claim as moot. Id., Dkt. No. 22 (filed Dec. 19, 2016).

26

Defendants’ argument that the mooting of named Plaintiffs’ claims requires a

ORDER PAGE - 29

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1 finding that they are inadequate representatives, thus defeating class certification, does

2 not have the desired effect. In fact, it counsels in favor of granting class certification. See

3 Ellsworth v. U.S. Bank, N.A., 30 F. Supp. 3d 886, 909 (N.D. Cal. 2014) (defendant’s

4 “calculated strategy that includes picking off named Plaintiffs” did not moot class action

5 claims); Ramirez v. Trans Union, LLC, 2013 WL 3752591, at *2 (N.D. Cal. July 17,

6 2013) (class certification appropriate where plaintiff’s claims would “evade review” if

7 the defendant were able to “pick off” each subsequent lead plaintiff).

8

Furthermore, despite their applications having been adjudicated by USCIS, the

9 Court remains confident that the named Plaintiffs will “fairly and adequately protect the

10 interests of the class.” Fed. R. Civ. P. 23(a)(4). The Court further finds that Plaintiffs’

11 counsel—attorneys from the ACLU, Law Offices of Stacy Tolchin, National Immigration

12 Project of the National Lawyers Guild, Northwest Immigrant Rights Project, and Perkins

13 Coie—have the experience and ability to vigorously and adequately represent the class.

14 The adequacy requirement is met.

15

3. Rule 23(b)(2) Requirement

16

After satisfying the Rule 23(a) prerequisites, a plaintiff must also demonstrate that

17 the case is maintainable as a class action under one of the three Rule 23(b) prongs.

18 Plaintiffs move for class certification under Rule 23(b)(2). (Dkt. No. 49 at 23.) In order to

19 satisfy Rule 23(b)(2), Defendants must “ha[ve] acted or refused to act on grounds that

20 apply generally to the class, so that final injunctive relief or corresponding declaratory

21 relief is appropriate respecting the class as a whole.” Rule 23(b)(2) is met where “a single

22 injunction or declaratory judgment would provide relief to each member of the class.”

23 Dukes, 564 U.S. at 360.

24

Here, Plaintiffs allege that CARRP is unlawful and ask the Court to enjoin the

25 Government from submitting putative class members’ immigration applications to

26 CARRP. A single ruling would therefore provide relief to each member of the class.

ORDER PAGE - 30

App. 150

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t767923F, DilekdtE0n6t/r2y1: /11-72, PPaaggee13514ooff35118

1 Accordingly, Rule 23(b)(2) is satisfied.

2

Having satisfied the requirements of Federal Rules of Civil Procedure 23(a) and

3 23(b)(2), Plaintiffs’ motion for class certification (Dkt. No. 49) is GRANTED. The Court

4 approves of the two proposed classes, appoints the five named Plaintiffs as class

5 representatives, and appoints Plaintiffs’ counsel as class counsel for both classes.

6 Because certification of anything less than a nationwide class would run counter to the

7 constitutional imperative of “a uniform Rule of Naturalization,” U.S. CONST., art. I, § 8,

8 cl. 4, class certification is nationwide.

9 III. CONCLUSION

10

For the foregoing reasons, Defendants’ motion to dismiss (Dkt. No. 56) is

11 GRANTED IN PART and DENIED IN PART, and Plaintiffs’ motion for class

12 certification (Dkt. No. 49) is GRANTED.

13

14

DATED this 21st day of June, 2017.

15

16

17 18

A

19

The Honorable Richard A. Jones

United States District Judge

20

21

22

23

24

25

26

ORDER PAGE - 31

App. 151

CaCsaes:e182-:71171-c7v1-,0040/9243-/R2A01J8,DIDo:cu1m08e4n7t77233, FDikletEdn0t7ry/0: 51/-127, PaPgaege1515ooff8518

1

The Honorable Richard A. Jones

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9
ABDIQAFAR WAGAFE, et al., on 10 behalf of themselves and others similarly 11 situated,

12

Plaintiffs,

13

v.

14
DONALD TRUMP, President of the 15 United States, et al.,

16

Defendants.

17

No. 2:17-cv-00094-RAJ
DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION
HON. RICHARD A. JONES
NOTE ON MOTION CALENDAR: Wednesday, July 5, 2017

18

19
On June 21, 2017, the Court issued an order granting in part and denying in part

20
Defendants’ motion to dismiss, and certifying two nationwide classes. For the following

21
reasons, and mindful that motions for reconsideration are “disfavored,” L.R. 7(h),

22
Defendants respectfully move the Court to reconsider its decision to certify a class action

23
or, in the alternative, to modify the class definitions.

24
I. Plaintiffs Failed to Establish Commonality under Rule 23(a) as Defined by

25

the Supreme Court in Wal-Mart Stores, Inc. v. Dukes

26

The Court’s analysis of the commonality requirement, see Fed. R. Civ. P. 23(a),

27 was flawed in a number of respects, beginning by conflating Plaintiffs’ causes of action

28 (the allegations that CARRP is unlawful) with the concrete injury required for Article III

DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 1 (2:17-cv-00094-RAJ)
App. 152

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CaCsaes:e182-:71171-c7v1-,0040/9243-/R2A01J8,DIDo:cu1m08e4n7t77233, FDikletEdn0t7ry/0: 51/-127, PaPgaege1526ooff8518

1 jurisdiction (the allegation that the delay in adjudication resulting from CARRP harmed

2 them). In assessing commonality, the Court concluded:

3

Defendants argue that ‘[a]t the heart of this case is the allegation that

USCIS has unreasonably delayed in adjudication’ immigration applications

4

and resolution of this allegation requires a ‘fact-intensive, individualized

5

inquiry into the cases of the delay in each case.’ (Dkt. No. 60 at 15.) This

is incorrect. Plaintiffs’ claim is that CARRP is an unlawful program. A

6

byproduct of CARRP’s alleged unlawful program is unreasonable delays.

7 ECF No. 69 at 25. If that is so, then the Court is proposing to issue an advisory opinion.

8 A declaration that CARRP is unlawful untethered to its effect, if any, on individual cases

9 presents the exact sort of “abstract harm” that the Ninth Circuit and the Supreme Court

10 have cautioned are insufficient to establish jurisdiction. Lance v. Coffman, 549 U.S. 437,

11 441-42 (2007) (per curiam) (“The only injury [they] allege is that the law . . . has not

12 been followed”); Allen v. Wright, 468 U.S. 737, 754 (1984) (“This Court has repeatedly

13 held that an asserted right to have the Government act in accordance with law is not

14 sufficient, standing alone, to confer jurisdiction on a federal court”), abrogated on other

15 grounds by Lexmart Int’l v. Static Control Components, Inc., 134 S. Ct. 1377 (2014);

16 Novak v. United States, 795 F.3d 1012, 1018 (9th Cir. 2015). The Court has no

17 jurisdiction to evaluate the legality of CARRP absent a plausible allegation that CARRP

18 is the proximate cause of unlawful delay. Plaintiffs cannot make that showing because it

19 would require facts suggesting both that the processing time for all of Plaintiffs’

20 applications is unreasonable, and that CARRP, as opposed to any other reason, is the

21 proximate cause for each of them. Plaintiffs have not and cannot plausibly make such an

22 allegation as to each named Plaintiff, much less every class member, given the multitude

23 of reasons other than CARRP that can cause delay, such as the Requests for Evidence

24 issued regarding Plaintiff Ostadhassan’s marriage. And there can be no commonality

25 among a class that contains members who have not suffered a concrete injury. Mazza v.

26 Am. Honda Motor Co., 666 F.3d 581, 594 (9th Cir. 2012) (citing Denney v. Deutsche

27 Bank AG, 443 F.3d 253, 264 (2d Cir. 2006)) (“[N]o class may be certified that contains

28

DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 2 (2:17-cv-00094-RAJ)
App. 153

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CaCsaes:e182-:71171-c7v1-,0040/9243-/R2A01J8,DIDo:cu1m08e4n7t77233, FDikletEdn0t7ry/0: 51/-127, PaPgaege1537ooff8518

1 members lacking Article III standing.”). This alone is a sufficient basis to deny class

2 certification.

3

Beyond this, however, the Court erred in relying on Hanlon v. Chrysler Corp., 150

4 F.3d 1011, 1019 (9th Cir. 1998), for the proposition that “shared legal issues with

5 divergent factual predicates is sufficient” to establish commonality under Rule 23(a).

6 Hanlon pre-dates and is inconsistent with the Supreme Court’s decision in Wal-Mart

7 Stores, Inc. v. Dukes, 564 U.S. 338 (2011). In Dukes, the Supreme Court held that

8 “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered

9 the same injury.’” Id. at 349-50 (quoting Gen. Tel. Co. of Southwest v. Falcon, 457 U.S.

10 147, 157 (1982)). But the injury here cannot be the alleged illegality of CARRP—under

11 Lance and Allen illegality alone is not a cognizable injury.1 Instead, the legally

12 cognizable injury suffered, if any, is the delay in adjudication resulting from the

13 purportedly unlawful conduct. Again, Plaintiffs have not demonstrated that the purported

14 delays in adjudicating all class members’ applications are attributable to CARRP.

15

Dukes goes on to explain that the common contention must be “of such a nature

16 that it is capable of classwide resolution—which means that determination of its truth or

17 falsity will resolve an issue that is central to the validity of each one of the claims in one

18 stroke.” Id. at 350. This Court concluded that “[t]he common question here is whether

19 CARRP is lawful.” ECF No. 69 at 25. But that is only part of the equation. Equally

20 important is whether each of the class members has been injured in the same way, i.e., by

21 CARRP. See Dukes, 564 U.S.at 349-50. Because some class members may be subject to

22 CARRP but not harmed by it—their applications may take longer than six months to

23 process for entirely unrelated reasons—the legality of CARRP will not finally resolve

24 any claims on a class-wide basis, nor even resolve a question that is necessary to

25 resolving all class members’ claims that they have suffered unreasonable delay.

26

27
1 Indeed, Dukes itself observed that a common injury must be more than an allegation “that they 28 have all suffered a violation of the same provision of law.” 564 U.S. at 350.

DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 3 (2:17-cv-00094-RAJ)
App. 154

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CaCsaes:e182-:71171-c7v1-,0040/9243-/R2A01J8,DIDo:cu1m08e4n7t77233, FDikletEdn0t7ry/0: 51/-127, PaPgaege1548ooff8518

1

Dukes explained that “without some glue holding the alleged reasons for all those

2 decisions together, it will be impossible to say that examination of all the class members’

3 claims for relief will produce a common answer to the crucial question why was I

4 disfavored?” Id. at 352 (emphasis in original). The same is true here. Without some

5 glue holding the alleged reasons for delay together it will be impossible to say that

6 examination of all the class members’ claims will produce a common answer to the

7 question why was my application not adjudicated?

8

More than a common allegation that they have been subjected to an unlawful

9 policy, Rule 23(a)’s commonality requirement demands that Plaintiffs make an

10 affirmative showing that they have suffered the same injury. “Rule 23 does not set forth

11 a mere pleading standard. A party seeking class certification must affirmatively

12 demonstrate his compliance with the Rule.” Id. at 351. The Court identified no such

13 evidence in its decision. See ECF No. 69 at 24-26. Plaintiffs have not even alleged that

14 CARRP is the proximate cause of delay for each class member’s application, much less

15 offered evidence that would support any such contention.

16

In sum, to meet the commonality requirement of Rule 23(a), Dukes requires a

17 common injury. Plaintiffs have alleged a common policy, but have failed to demonstrate

18 that all class members have been injured in the same way (or indeed, at all) by that

19 policy.

20 II. The Class Definitions Are Manifestly Erroneous

21

1. The Six-Month Benchmark in the Class Definitions Lacks a Rational Basis

22

In approving Plaintiffs’ proposed class definitions, the Court adopted wholesale

23 Plaintiffs’ suggestion to define membership in both classes by, inter alia, whether the

24 individual’s application had been pending for longer than six months. See ECF No. 69 at

25 31. Plaintiffs settled on the six-month mark because 8 U.S.C. § 1571(b) provides the

26 “sense of the Congress” that that the processing of an immigration benefit should be

27 completed not later than 180 days after the initial filing of the application.” See ECF No.

28 47 ¶¶ 43, 51. The Ninth Circuit has explained that “‘Sense of the Congress’ provisions

DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 4 (2:17-cv-00094-RAJ)
App. 155

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CaCsaes:e182-:71171-c7v1-,0040/9243-/R2A01J8,DIDo:cu1m08e4n7t77233, FDikletEdn0t7ry/0: 51/-127, PaPgaege1559ooff8518

1 are precatory provisions, which do not in themselves create individual rights or, for that

2 matter, any enforceable law.” Orkin v. Taylor, 487 F.3d 734, 740 (9th Cir. 2007).

3 Moreover, six months is below average processing times at many USCIS offices that

4 adjudicate adjustment-of-status and naturalization applications—most applications

5 remain pending for at least six months at a minimum prior to final adjudication. See Petty

6 Affidavit (attached hereto as Exhibit A).

7

The Court is entitled to exercise its discretion in defining classes, but relying on a

8 six-month mark that (1) has no legal significance, and (2) does no work in separating

9 delays cause by CARRP from delays caused by a backlog of applications, is an abuse of

10 discretion.

11

2. The Court’s Reliance on the Uniform Rule of Naturalization Clause Does

Not Support Certification of Nationwide Classes
12

Finally, the Court should revisit its reliance on the Uniform Rule of Naturalization

13

clause as a basis for certifying a nationwide classes. As previously noted, the Supreme

14

Court has held that the uniformity in naturalization and bankruptcy laws demanded by

15

Art. I, § 8, cl. 4 “is geographical, and not personal.” Hanover Nat’l Bank v. Moyses, 186

16

U.S. 181, 190 (1902), and Plaintiffs have not alleged that CARRP operates differently in

17

different states. Moreover, even assuming this provision militates in favor of a

18

nationwide naturalization class, it is unclear how it supports a nationwide adjustment-of-

19

status class as well. Article I demands no uniformity in conferring that statutory status.

20

CONCLUSION

21

The Court should vacate its order of June 21, 2017 and deny Plaintiffs’ amended

22

motion for class certification or, in the alternative, modify the class definitions as

23

described herein.

24

25

26

27

28

DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 5 (2:17-cv-00094-RAJ)
App. 156

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CaCsaes:e182-:71171-c7v1-,0040/9243-/R2A01J8,DIDo:cu1m08e4n7t77233, FDikletEdn0t7ry/0: 51/-127, PaPgaege1660ooff8518

1 Dated: July 5, 2017
2 CHAD A. READLER Acting Assistant Attorney General
3 Civil Division
4
WILLIAM C. PEACHEY 5 Director, District Court Section 6 Office of Immigration Litigation
7 TIMOTHY M. BELSAN 8 Deputy Chief, National Security
& Affirmative Litigation Unit
9
10 EDWARD S. WHITE Senior Counsel, National Security
11 & Affirmative Litigation Unit
12

Respectfully submitted,
/s/ Aaron R. Petty AARON R. PETTY Trial Attorney, National Security
& Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Telephone: (202) 532-4542 E-mail: Aaron.R.Petty@usdoj.gov
JOSEPH F. CARILLI, JR. Trial Attorney, National Security
& Affirmative Litigation Unit

13

CERTIFICATE OF CONFERENCE

14

I HEREBY CERTIFY that on July 5, 2017, I conferred with opposing counsel and

15 thoroughly discussed the substance of this motion and in good faith attempted to reach an

16 accord to eliminate the need for the motion. Those efforts were unsuccessful.

17

18

s/ Aaron R. Petty

AARON R. PETTY

19

U.S. Department of Justice

20

21

22

23

24

25

26

27

28

DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 6 (2:17-cv-00094-RAJ)
App. 157

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CaCsaes:e182-:71171-c7v1-,0040/9243-/R2A01J8,DIDo:cu1m08e4n7t77233, FDikletEdn0t7ry/0: 51/-127, PaPgaege1671ooff8518

1

CERTIFICATE OF SERVICE

2

I HEREBY CERTIFY that on July 5, 2017, I electronically filed the foregoing

3 with the Clerk of the Court using the CM/ECF system, which will send notification of

4 such filing to the following CM/ECF participants:

5

Harry H. Schneider, Jr., Esq.

6

Nicholas P. Gellert, Esq.

David A. Perez, Esq.

7

Perkins Coie L.L.P.

8

1201 Third Ave., Ste. 4800

Seattle, WA 98101-3099

9

PH: 359-8000

10

FX: 359-9000

Email: HSchneider@perkinscoie.com

11

Email: NGellert@perkinscoie.com

Email: DPerez@perkinscoie.com
12

13

Matt Adams, Esq.

Glenda M. Aldana Madrid, Esq.

14

Northwest Immigrant Rights Project

15

615 Second Ave., Ste. 400

Seattle, WA 98104

16

PH: 957-8611

17

FX: 587-4025

E-mail: matt@nwirp.org

18

E-mail: glenda@nwirp.org

19
Emily Chiang, Esq.

20

ACLU of Washington Foundation

901 Fifth Avenue, Suite 630

21

Seattle, WA 98164

22

Telephone: (206) 624-2184

E-mail: Echiang@aclu-wa.org

23

Jennifer Pasquarella, Esq.

24

ACLU Foundation of Southern California

25

1313 W. 8th Street

Los Angeles, CA 90017

26

Telephone: (213) 977-5211

Facsimile: (213) 997-5297

27

E-mail: jpasquarella@aclusocal.org

28

DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 7 (2:17-cv-00094-RAJ)
App. 158

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CaCsaes:e182-:71171-c7v1-,0040/9243-/R2A01J8,DIDo:cu1m08e4n7t77233, FDikletEdn0t7ry/0: 51/-127, PaPgaege1682ooff8518

Stacy Tolchin, Esq.

1

Law Offices of Stacy Tolchin

2

634 S. Spring St. Suite 500A

Los Angeles, CA 90014

3

Telephone: (213) 622-7450

Facsimile: (213) 622-7233

4

E-mail: Stacy@tolchinimmigration.com

5

Trina Realmuto, Esq.

6

Kristin Macleod-Ball, Esq.

7

National Immigration Project of the National Lawyers Guild

14 Beacon St., Suite 602

8

Boston, MA 02108

Telephone: (617) 227-9727

9

Facsimile: (617) 227-5495

10

E-mail: trina@nipnlg.org

E-mail: kristin@nipnlg.org

11

Lee Gelernt, Esq.
12
Hugh Handeyside, Esq.

13

Hina Shamsi, Esq.

American Civil Liberties Union Foundation

14

125 Broad Street

15

New York, NY 10004

Telephone: (212) 549-2616

16

Facsimile: (212) 549-2654

E-mail: lgelernt@aclu.org

17

E-mail: hhandeyside@aclu.org

18

E-mail: hshamsi@aclu.org

19

20

s/ Aaron R. Petty

AARON R. PETTY

21

U.S. Department of Justice

22

23

24

25

26

27

28

DEFENDANTS’ MOTION TO RECONSIDER CLASS CERTIFICATION - 8 (2:17-cv-00094-RAJ)
App. 159

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P.O. Box 868 Washington, DC 20044 (202) 532-4542

CaCsaes:e182-:71171-c7v1-,0040/9243-/R2A01J8,DIDo:cu1m08e4n7t78253, FDikletEdn0t8ry/1: 61/-127, PaPgaege1613ooff2518

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT FOR THE

9

WESTERN DISTRICT OF WASHINGTON

10

AT SEATTLE

11

CASE NO. 2:17-cv-00094-RAJ

12 ABDIQAFAR WAGAFE, et al., on

13 behalf of themselves and others similarly situated,

14

15

Plaintiffs,

16

v.

17

DONALD TRUMP, President of the United States, et al.,

18

19

Defendants.

ORDER

20

This matter comes before the Court on Defendants’ Motion to Reconsider Class

21 Certification. Dkt. # 73. Plaintiffs oppose the motion. Having reviewed the briefs,

22 relevant portions of the record, and the applicable law, the Court DENIES Defendants’
23

Motion. 24

“Motions for reconsideration are disfavored.” LCR 7(h)(1). “The court will 25

26 ordinarily deny such motions in the absence of a showing of manifest error in the prior

27 ruling or a showing of new facts or legal authority which could not have been brought to

28 its attention earlier with reasonable diligence.” Id.

ORDER-1

App. 160

CaCsaes:e182-:71171-c7v1-,0040/9243-/R2A01J8,DIDo:cu1m08e4n7t78253, FDikletEdn0t8ry/1: 61/-127, PaPgaege1624ooff2518

1

Defendants do not meet this standard. Defendants’ motion reargues its position

2 that the Court should not certify the class—a position the Court rejected. Defendants

3

couch their motion in terms of the Court’s manifest errors but in reality the motion argues 4

that the Court should revisit its conclusions. Parties cannot use motions for 5

6 reconsideration to simply obtain a second bite at the apple, and this is what Defendants

7 appear to be doing with this motion. For these reasons, the Court DENIES the motion.

8 Dkt. # 73.

9

10

Dated this 16th day of August, 2017.

11

12 13

A

14

The Honorable Richard A. Jones

15

United States District Judge

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER-2

App. 161

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 165 of 518

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 8

9 ABDIQAFAR WAGAFE et al., on behalf of themselves and others similarly situated,
10
Plaintiffs, 11
v. 12
DONALD TRUMP, President of the 13 United States et al.,

No. 17-cv-00094 RAJ
PLAINTIFFS’ FIRST REQUESTS FOR PRODUCTION TO DEFENDANTS

14

Defendants.

15

16

17

18

19

20

21

22

23

24

25

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ)
135025481.5

App. 162

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 166 of 518

1 TO: 2

Defendants Donald J. Trump, United States Citizenship and Immigration Services, John F. Kelly, James McCament, Matthew D. Emrich, and Daniel Renaud.

3 AND TO: Edward S. White and Aaron R. Petty, Office of Immigration Litigation, U.S. Department of Justice, attorneys for Defendants.
4 Pursuant to Federal Rules of Civil Procedure 26 and 34, Abdiqafar Wagafe, Mehdi
5 Ostadhassan, Hanin Omar Bengezi, Noah Adam Abraham (f/k/a Mushtaq Abed Jihad), and
6 Sajeel Manzoor (collectively, “Plaintiffs”), on behalf of themselves and others similarly situated,
7 request that Donald Trump, President of the United States; United States Citizenship and
8 Immigration Services; John F. Kelly, in his official capacity as Secretary of the U.S. Department
9 of Homeland Security; James McCament, in his official capacity as Acting Director of the U.S.
10 Citizenship and Immigration Services; Matthew D. Emrich, in his official capacity as Associate
11 Director of the Fraud Detection and National Security Directorate of the U.S. Citizenship and
12 Immigration Services (“FDNS”); and Daniel Renaud, in his official capacity as Associate
13 Director of the Field Operations Directorate of the U.S. Citizenship and Immigration Services
14 (collectively, “Defendants”) produce for inspection and copying the documents and things within
15 their possession, custody, or control falling within the scope of the requests below within thirty
16 (30) days of service hereof, in accordance with the Federal Rules of Civil Procedure and the
17 definitions and instructions below. Please produce the documents and things described herein to
18 the attention of the law firm of Perkins Coie LLP, 1201 Third Ave., Ste. 4900, Seattle, WA
19 98101-3099. These requests are continuing in nature. As such, Defendants must supplement
20 their responses in a timely manner in accordance with Federal Rule of Civil Procedure 26(e) as
21 additional or corrective information comes to their or their counsel’s attention.
22

23

24

25

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 1
135025481.5

App. 163

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 167 of 518

1

INSTRUCTIONS

2

The following instructions shall apply when responding to these requests for production:

3

1.

Each request herein calls for production of all responsive Documents within Your

4 possession, custody, or control, or that of Your agents, consultants, representatives, and, unless

5 privileged, attorneys.

6

2.

Without limitation of the term “control” as used in the preceding instruction, a

7 Document is deemed to be in Your control if You have the right to secure the Document or a

8 copy thereof from another Person having actual possession thereof.

9

3.

Each Document request and subparagraph or subdivision thereof is to be

10 answered separately. After each Document request, state whether all Documents responsive to

11 that request are being produced.

12

4.

Each Document request herein shall be deemed to be continuing and, in the event

13 that additional Documents are later discovered or become known to You, further production is to

14 be made hereto.

15

5.

If You object to answering any of these requests, or withhold Documents from

16 production in response to these requests, in whole or in part, state your objections and/or reasons

17 for not producing and state all factual and legal justifications that you believe support your

18 objection or failure to produce.

19

6.

If any requested Document has been lost, discarded, or destroyed, describe the

20 Document as completely as possible, including: the name, title, and description of employment

21 of each author or preparer of the Document; a complete description of the nature and subject

22 matter of the Document; and the date on which and manner in which the Document was lost,

23 discarded, destroyed, or otherwise disposed of.

24

7.

If any part of a Document is responsive to a Document request, the whole

25 Document is to be produced.

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 2
135025481.5

App. 164

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 168 of 518

1

8.

If You contend that it would be unreasonably burdensome to obtain and provide

2 all of the Documents called for in response to any Document request or any subsection thereof,

3 then in response to the appropriate Document request:

4

a.

Produce all such Documents as are available to You without undertaking

5

what You contend to be an unreasonable request;

6

b.

Describe with particularity the efforts made by You or on Your behalf to

7

produce such Documents; and

8

c.

State with particularity the grounds upon which You contend that

9

additional efforts to produce such Documents would be unreasonable.

10

9.

If any request is deemed to call for privileged Documents, and such privilege is

11 asserted in order to avoid production, provide a list with respect to each Document withheld

12 based on a claim of privilege, stating: the name of each author, the name of each recipient and

13 addressee, the date of the Document, the general subject matter of the Document, the basis upon

14 which the claim of privilege is asserted, and the Document request under which the production of

15 the Document is called for.

16

10.

In producing the Documents requested, You are requested to search electronic

17 Documents, records, data, and any other electronically stored information (“ESI”) which may be

18 stored in or on any electronic medium or device, including without limitation computers,

19 network servers, computer hard drives, e-mails, and voicemails. Your production of any ESI

20 should be produced in an electronic format permitting electronic search functionality, pursuant to

21 the Parties’ stipulation, if any, regarding preservation and production of ESI.

22

11.

In producing records responsive to Document requests, please produce tangible

23 Documents and records organized either (1) in separate groups responsive to specific requests or

24 (2) in the format and organization in which the Documents are kept in the ordinary course of

25 Your business. Please produce electronic Documents and records in Tagged Image File Format

26 (“TIFF”), single page, black and white (or in color, if necessary, for any Document or its content

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 3
135025481.5

App. 165

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

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1 to be readable), dithered (if appropriate), at 300 x 300 dpi resolution and 8½ x 11 inch page size,

2 except for Documents requiring different resolution or page size to make them readable. Each

3 TIFF Document should be produced with an image load file in standard Opticon (*.log) format

4 that reflects the parent/child relationship. In addition, each TIFF Document should be produced

5 with a data load file in Concordance delimited format (*.dat), indicating (at a minimum)

6 appropriate unitization of the Documents, including beginning and ending production numbers

7 for (a) each Document set, and (b) each attachment within each Document set. TIFF images

8 should also be accompanied by extracted text or, for those files that do not have extracted text

9 upon being processed, optical character recognition (“OCR”) text data; such extracted text or

10 OCR text data should be provided in Document level form and named after the TIFF image. For

11 Documents produced in TIFF format, metadata should be included with the data load files

12 described above, and should include (at a minimum) the following information: file name

13 (including extension); original file path; page count; creation date and time; last saved date and

14 time; last modified date and time; author; custodian of the Document (that is, the custodian from

15 whom the Document was collected or, if collected from a shared drive or server, the name of the

16 shared driver or server); and MD5 hash value. In addition, for e-mail Documents, the data load

17 files should also include the following metadata: sent date; sent time; received date; received

18 time; “to” name(s) and address(es); “from” name and address; “cc” name(s) and address(es);

19 “bcc” name(s) and address(es); subject; names of attachment(s); and attachment(s) count. All

20 images and load files should be named or foldered in such a manner that all records can be

21 imported without modification of any path or file name information.

22

23

24

25

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 4
135025481.5

App. 166

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

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1

DEFINITIONS

2

The following definitions shall apply when responding to these requests for production:

3

1.

“A,” “an,” and “any” include “all,” and “all” includes “a,” “an,” and “any.” All

4 of these words should be construed as necessary to bring within the scope of these requests any

5 Documents that might otherwise be construed to be outside of their scope.

6

2.

“Adjustment of Status Application” means an Immigration Benefit Application to

7 adjust the applicant’s status to that of permanent legal resident using USCIS Form I-485.

8

3.

“Adjustment of Status Applicant” means any individual who has filed an

9 Adjustment of Status Application.

10

4.

“Adjustment Class” means the following class certified by the Court in its Order

11 Granting Class Certification, Dkt. 69: A national class of all persons currently and in the future

12 (1) who have or will have an application for adjustment of status pending before USCIS, (2) that

13 is subject to CARRP or a successor “extreme vetting” program, and (3) that has not been or will

14 not be adjudicated by USCIS within six months of having been filed.

15

5.

“Alien File” or “A-file” means the collection of documents that the Department of

16 Homeland Security (DHS) maintains for non-citizens, including all official files related to

17 immigration status, citizenship or relief.

18

6.

“And” and “or” shall be construed either conjunctively or disjunctively,

19 whichever makes the request more inclusive.

20

7.

“ACLU FOIA Request” means the American Civil Liberties Union’s May 17,

21 2012 Freedom of Information Act Request, attached hereto as Exhibit A.

22

8.

“CARRP” means the Controlled Application Review and Resolution Program, an

23 internal vetting policy instituted by USCIS in April 2008. Upon information and belief, USCIS

24 first outlined the parameters of CARRP in an April 11, 2008 memorandum addressed to field

25 leadership from Deputy Director Jonathan R. Scharfen regarding “Policy for Vetting and

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 5
135025481.5

App. 167

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 171 of 518

1 Adjudicating Cases with National Security Concerns.” See Declaration of Jennifer Pasquarella

2 in Support of Plaintiffs’ Motion for Class Certification, Dkt. 27, Ex. A.

3

9.

“Communication” means the transmittal of information (in the form of facts,

4 ideas, inquiries, or otherwise), and encompasses every medium of information transmittal,

5 including but not limited to written, graphic, and electronic communication.

6

10.

“Defendants,” “You,” “Your,” or any similar word or phrase includes each

7 individual or entity responding to these requests and, where applicable, each subsidiary, parent,

8 or affiliated entity of each such Person and all Persons acting on its or their behalf.

9

11.

“Document” and its plural shall be interpreted in the broadest possible manner

10 and shall mean all written, electronic, graphic, or printed matter of any kind in Your possession

11 or control, however produced or reproduced, including all originals, drafts, working papers, and

12 all non-identical copies, whether different from the originals by reason of any notation made on

13 such copies or otherwise, and all other tangible things, including anything that would be a

14 writing or recording as defined in Federal Rule of Evidence 1001(1) or as defined in Federal

15 Rule of Civil Procedure 34(a).

16

12.

“Donkey” Security Advisory Opinion means the type of Security Advisory

17 Opinion generated when there are national security and/or terrorism concerns raised by the visa

18 application.

19

13.

“Employee” means any director, trustee, officer, employee, agent, consultant,

20 partner, reseller, distributor, corporate parent, subsidiary, affiliate, or servant of the designated

21 entity, whether active or retired, full-time or part-time, current or former, and compensated or

22 not.

23

14.

“First EO” means Executive Order 13769, entitled “Protecting the Nation from

24 Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 8977 (Feb. 1, 2017).

25

15.

“Immigration Benefit Application” means any application or petition to confer,

26 certify, change, adjust, or extend any status granted under the Immigration and Nationality Act.

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 6
135025481.5

App. 168

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 172 of 518

1

16.

“Immigration Benefit Applicant” means any individual who has filed an

2 Immigration Benefit Application.

3

17.

“National Security Concern” or “NS Concern” means the classification of

4 Immigration Benefit Applications and Immigration Benefit Applicants that are subjected to

5 CARRP. This includes, but is not limited to, the definition of National Security Concern used in

6 the April 11, 2008 memorandum addressed to field leadership from Deputy Director Jonathan R.

7 Scharfen regarding “Policy for Vetting and Adjudicating Cases with National Security

8 Concerns”: “A NS [C]oncern exists when an individual or organization has been determined to

9 have an articulable link to prior, current, or planned involvement in, or association with, an

10 activity, individual, or organization described in sections 212(a)(3)(A), (B), or (F), or

11 237(a)(4)(A) or (B) of the Immigration and Nationality Act.” See Declaration of Jennifer

12 Pasquarella in Support of Plaintiffs’ Motion for Class Certification, Dkt. 27, Ex. A.

13

18.

“Naturalization Application” means an Immigration Benefit Application to

14 naturalize as a U.S. citizen using USCIS Form N-400.

15

19.

“Naturalization Applicant” means any individual who has filed a Naturalization

16 Application.

17

20.

“Naturalization Class” means the following class certified by the Court in its

18 Order Granting Class Certification, Dkt. 69: A national class of all persons currently and in the

19 future (1) who have or will have an application for naturalization pending before USCIS, (2) that

20 is subject to CARRP or a successor “extreme vetting” program, and (3) that has not been or will

21 not be adjudicated by USCIS within six months of having been filed.

22

21.

“Person” means an individual, proprietorship, partnership, firm, corporation,

23 association, governmental agency, or other organization or entity.

24

22.

“Relate,” “reflect,” or “refer,” in all forms, means, in addition to the customary

25 and usual meaning of those words, concerning, constituting, embodying, describing, evidencing,

26 or having any logical or factual connection with the subject matter described.

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 7
135025481.5

App. 169

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 173 of 518

1

23.

“Second Amended Complaint” means the Second Amended Complaint for

2 Declaratory and Injunctive Relief, Dkt. 47, filed in the above-captioned action by Plaintiffs on

3 April 4, 2017.

4

24.

“Second EO” means Executive Order 13780, entitled “Protecting the Nation from

5 Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 13209 (Mar. 9, 2017).

6

25.

“Security Advisory Opinion” means the Document created in response to a

7 request by a U.S. consulate for a background security check on a foreign national who is

8 applying for a U.S. visa.

9

26.

“USCIS” means U.S. Citizenship and Immigration Services, a federal agency that

10 is a component of the United States Department of Homeland Security and is headed by a

11 director, currently James McCament.

12

27.

Where appropriate, the singular form of a word should be interpreted in the plural

13 and vice versa, to acquire the broadest possible meaning.

14

28.

Any term defined herein shall have the indicated meaning whenever that term is

15 used in these requests for production unless the context clearly requires otherwise. All defined

16 terms are indicated by capitalizing the first letter of each term (except “and,” “or,” “relate,”

17 “reflect,” and “refer”), as shown in the instructions and definitions above.

18

REQUESTS FOR PRODUCTION

19

20

REQUEST FOR PRODUCTION NO. 1: All Documents referring or relating to the

21 development, conception, or origins of CARRP.

22

23

RESPONSE:

24

25

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 8
135025481.5

App. 170

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 174 of 518

1

REQUEST FOR PRODUCTION NO. 2: All Documents referring or relating to the

2 implementation of CARRP.

3

4

RESPONSE:

5

6

REQUEST FOR PRODUCTION NO. 3: All policy memoranda or other policy

7 Documents referring or relating to CARRP, including any and all attachments. This request

8 includes but is not limited to policy memoranda produced by USCIS, U.S. Department of

9 Defense, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department

10 of State, U.S. Customs and Border Protection, or the Office of the Director of National

11 Intelligence.

12

13

RESPONSE:

14

15

REQUEST FOR PRODUCTION NO. 4: All operational guidance referring or relating

16 to CARRP, including any and all attachments. This request includes but is not limited to

17 operational guidance produced by USCIS, U.S. Department of Defense, U.S. Department of

18 Homeland Security, U.S. Department of Justice, U.S. Department of State, U.S. Customs and

19 Border Protection, or the Office of the Director of National Intelligence.

20

21

RESPONSE:

22

23

REQUEST FOR PRODUCTION NO. 5: All training materials referring or relating to

24 CARRP, including any and all attachments. This requests includes but is not limited to training

25 materials produced by USCIS, U.S. Department of Defense, U.S. Department of Homeland

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 9
135025481.5

App. 171

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 175 of 518

1 Security, U.S. Department of Justice, U.S. Department of State, U.S. Customs and Border

2 Protection, or the Office of the Director of National Intelligence.

3

4

RESPONSE:

5

6

REQUEST FOR PRODUCTION NO. 6: All Documents referring or relating to the

7 definition or interpretation of National Security Concern.

8

9

RESPONSE:

10

11

REQUEST FOR PRODUCTION NO. 7: All Documents referring or relating to any

12 and all policies, procedures, guidelines and training materials relating to the processing and

13 adjudication of Immigration Benefit Applications with a National Security Concern from any

14 directorate, department, unit or entity within USCIS, including but not limited to the Fraud

15 Detection and National Security Directorate (FDNS), Domestic Operations Directorate

16 (DomOps), Service Center Operations Directorate, Field Operations Directorate, Background

17 Check Unit (BDU), and The Screening Coordination Office (SCO) of FDNS.

18

19

RESPONSE:

20

REQUEST FOR PRODUCTION NO. 8: All Documents referring or relating to the

21 definition of or interpretation of “national security indicators” or “national security activities,” as

22 these terms are used and applied under CARRP. This request includes, but is not limited to, any

23 policies, procedures, guidelines, and training materials referring or relating to the identification

24 of “national security indicators” or “national security activities,” the evaluation of “national

25 security indicators” or “national security activities,” the relationship between national security

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 10
135025481.5

App. 172

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 176 of 518

1 indicators,” “national security activities” and National Security Concerns, and the vetting,

2 deconfliction and resolution of “national security indicators” and “ national security activities.”

3

4

RESPONSE:

5

6

REQUEST FOR PRODUCTION NO. 9: All Documents referring or relating to the

7 definition of or interpretation of the possible “articulable links” between a given individual and a

8 “national security indicator” or “national security activity,” as these terms are used and applied

9 under CARRP.

10

11

RESPONSE:

12

13

REQUEST FOR PRODUCTION NO. 10: All Documents referring or relating to any

14 policy memoranda or procedures rescinded by the implementation of CARRP. This request

15 includes, but is not limited to, those policy memoranda and procedures listed as rescinded in the

16 April 11, 2008 USCIS memorandum from Jonathan R. Scharfen to Field Leadership regarding

17 “Policy for Vetting and Adjudicating Cases with National Security Concerns.” See Declaration

18 of Jennifer Pasquarella in Support of Plaintiffs’ Motion for Class Certification, Dkt. 27, Ex. A at

19 2-3.

20

21

RESPONSE:

22

23

REQUEST FOR PRODUCTION NO. 11: All Documents referring or relating to the

24 connection between Security Advisory Opinion(s) issued by the U.S. Department of State and

25 CARRP. This request encompasses both connections between CARRP and (1) specific Security

26 Advisory Opinion(s) and (2) the Security Advisory Opinion procedure in general. This request

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 11
135025481.5

App. 173

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 177 of 518

1 includes, but is not limited to, any Security Advisory Opinion(s), including Donkey Security

2 Advisory Opinion(s), as well as requests for Security Advisory Opinion(s) that refer or relate to

3 the applications of any named Plaintiff or any other application subject to CARRP.

4

5

RESPONSE:

6

7

REQUEST FOR PRODUCTION NO. 12: All Documents referring or relating to

8 named Plaintiff Abdiqafar Wagafe. This request includes, but is not limited to, Mr. Wagafe’s

9 Alien File, any records and information stored in the Fraud Detection and National Security

10 Directorate Data System (“FDNS-DS”), e-mail correspondence, any and all records to which

11 USCIS adjudicators and FDNS officers had access in federal, state, or local databases referring

12 or relating to Mr. Wagafe, and any and all records created by any U.S. Department of Homeland

13 Security official referring or relating to Mr. Wagafe.

14

15

RESPONSE:

16

17

REQUEST FOR PRODUCTION NO. 13: All Documents referring or relating to the

18 reasons why Plaintiff Abdiqafar Wagafe’s naturalization application was subject to CARRP.

19

20

RESPONSE:

21

22

REQUEST FOR PRODUCTION NO. 14: All Documents referring or relating to

23 named Plaintiff Mehdi Ostadhassan. This request includes, but is not limited to, Mr.

24 Ostadhassan’s Alien File, any records and information stored in the Fraud Detection and

25 National Security Directorate Data System (“FDNS-DS”), e-mail correspondence, any and all

26 records to which USCIS adjudicators and FDNS officers had access in federal, state, or local

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 12
135025481.5

App. 174

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 178 of 518

1 databases referring or relating to Mr. Ostadhassan, and any and all records created by any U.S.

2 Department of Homeland Security official referring or relating to Mr. Ostadhassan.

3

4

RESPONSE:

5

6

REQUEST FOR PRODUCTION NO. 15: All Documents referring or relating to the

7 reasons why Plaintiff Mehdi Ostadhassan’s adjustment of status application was subject to

8 CARRP.

9

10

RESPONSE:

11

12

REQUEST FOR PRODUCTION NO. 16: All Documents referring or relating to

13 named Plaintiff Hanin Omar Bengezi. This request includes, but is not limited to, Ms. Bengezi’s

14 Alien File, any records and information stored in the Fraud Detection and National Security

15 Directorate Data System (“FDNS-DS”), e-mail correspondence, any and all records to which

16 USCIS adjudicators and FDNS officers had access in federal, state, or local databases referring

17 or relating to Ms. Bengezi, and any and all records created by any U.S. Department of Homeland

18 Security official referring or relating to Ms. Bengezi.

19

20

RESPONSE:

21

22

REQUEST FOR PRODUCTION NO. 17: All Documents referring or relating to the

23 reasons why Plaintiff Hanin Omar Bengezi’s adjustment of status application was subject to

24 CARRP.

25

26

RESPONSE:

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 13
135025481.5

App. 175

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 179 of 518

1

2

REQUEST FOR PRODUCTION NO. 18: All Documents referring or relating to

3 named Plaintiff Noah Adam Abraham, f/k/a Mushtaq Abed Jihad. This request includes, but is

4 not limited to, Mr. Abraham’s Alien File, any records and information stored in the Fraud

5 Detection and National Security Directorate Data System (“FDNS-DS”), e-mail correspondence,

6 any and all records to which USCIS adjudicators and FDNS officers had access in federal, state,

7 or local databases referring or relating to Mr. Abraham, and any and all records created by any

8 U.S. Department of Homeland Security official referring or relating to Mr. Abraham.

9

10

RESPONSE:

11

12

REQUEST FOR PRODUCTION NO. 19: All Documents referring or relating to the

13 reasons why Plaintiff Noah Adam Abraham, f/k/a Mushtaq Abed Jihad’s naturalization

14 application was subject to CARRP.

15

16

RESPONSE:

17

18

REQUEST FOR PRODUCTION NO. 20: All Documents referring or relating to the

19 Immigration Benefit Application(s) of named Plaintiff Sajeel Manzoor. This request includes,

20 but is not limited to, Mr. Manzoor’s Alien File, any records and information stored in the Fraud

21 Detection and National Security Directorate Data System (“FDNS-DS”), e-mail correspondence,

22 any and all records to which USCIS adjudicators and FDNS officers had access in federal, state,

23 or local databases referring or relating to Mr. Manzoor, and any and all records created by any

24 U.S. Department of Homeland Security official referring or relating to Mr. Manzoor.

25

26

RESPONSE:

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 14
135025481.5

App. 176

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 180 of 518

1

2

REQUEST FOR PRODUCTION NO. 21: All Documents referring or relating to the

3 reasons why Plaintiff Sajeel Manzoor’s naturalization application was subject to CARRP.

4

5

RESPONSE:

6

7

REQUEST FOR PRODUCTION NO. 22: All Documents referring or relating to any

8 proposed, implemented, or planned modifications to CARRP from April 11, 2008 to the present.

9

10

RESPONSE:

11

12

REQUEST FOR PRODUCTION NO. 23: All Documents referring or relating to any

13 consideration of or reference to CARRP during the planning, drafting, or issuing of the First and

14 Second EOs.

15

16

RESPONSE:

17

18

REQUEST FOR PRODUCTION NO. 24: All Documents referring or relating to

19 “extreme vetting” or any other screening, vetting, or adjudication program, policy, or procedure

20 connected to the First or Second EOs. This request includes, but is not limited to, programs that

21 reference, relate to, or expand upon CARRP.

22

23

RESPONSE:

24

25

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 15
135025481.5

App. 177

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 181 of 518

1

REQUEST FOR PRODUCTION NO. 25: All Documents referring or relating to the

2 relationship between CARRP and any other preexisting or planned policy, program, standard, or

3 procedure for screening, vetting, or adjudicating Immigration Benefit Applications.

4

5

RESPONSE:

6

7

REQUEST FOR PRODUCTION NO. 26: All Documents referring or relating to

8 “extreme vetting” or any other program, policy or procedure to identify, screen, vet, or

9 adjudicate naturalization or adjustment of status applications where a National Security Concern

10 is present.

11

RESPONSE:

12

13

REQUEST FOR PRODUCTION NO. 27: All Documents referring or relating to the

14 number of Immigration Benefit Applications subject to CARRP or designated as a National

15 Security Concern at any point from 2008 to the present. This request includes, but is not limited,

16 to all National Security Monthly Case Load and Aging Reports, National Security Quarterly

17 Workload and Aging Reports, and any other periodic reports, data, or statistics related to

18 CARRP, including those that break down applications by country of origin, citizenship, religion,

19 or any other demographics.

20

21

RESPONSE:

22

23

REQUEST FOR PRODUCTION NO. 28: All Documents referring to, relating to, or

24 reflecting the age, sex, country of origin, country of citizenship, religion, race, ethnicity, or other

25 demographics of Immigration Benefit Applicants who have been identified as a National

26 Security Concern or otherwise subjected to CARRP, including application processing times.

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 16
135025481.5

App. 178

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 182 of 518

1

2

RESPONSE:

3

4

REQUEST FOR PRODUCTION NO. 29: All Documents referring or relating to any

5 program, policy or procedure to identify, screen, vet, or adjudicate naturalization or adjustment

6 of status applications based on national origin.

7

8

RESPONSE:

9

10

REQUEST FOR PRODUCTION NO. 30: All Documents referring or relating to any

11 program, policy or procedure to identify, screen, vet, or adjudicate naturalization or adjustment

12 of status applications based on religion.

13

14

RESPONSE:

15

16

REQUEST FOR PRODUCTION NO. 31: All Documents referring or relating to any

17 program, policy or procedure to identify, screen, vet, or adjudicate naturalization or adjustment

18 of status applications based on race or ethnicity.

19

20

RESPONSE:

21

22

REQUEST FOR PRODUCTION NO. 32: All Documents that any Defendant

23 contends support any denial of any allegation in the Second Amended Complaint, or that any

24 Defendant relies upon in denying any of the allegations in the Second Amended Complaint.

25

26

RESPONSE:

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 17
135025481.5

App. 179

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 183 of 518

1

2

REQUEST FOR PRODUCTION NO. 33: All Documents that any Defendant

3 contends support any affirmative defense set forth in response to the Second Amended

4 Complaint, or that any Defendant relies upon in asserting any affirmative defense set forth in

5 response to the Second Amended Complaint.

6

7

RESPONSE:

8

9

REQUEST FOR PRODUCTION NO. 34: All Documents sufficient to identify

10 members of the Naturalization Class, including, but not limited to, any list that might exist

11 identifying those who are or have been subject to CARRP, and, where available, the following

12 identifying information for each class member: name, A-number, age, sex, country of origin,

13 country of citizenship, religion, race, ethnicity, date the naturalization application was filed, and

14 current status of the naturalization application.

15

16

RESPONSE:

17

18

REQUEST FOR PRODUCTION NO. 35: All Documents sufficient to identify all

19 members of the Adjustment Class, including, including, but not limited to, any list that might

20 exist identifying those who are or have been subject to CARRP, and, where available, the

21 following identifying information for each class member: name, A-number, age, sex, country of

22 origin, country of citizenship, religion, race, ethnicity, date the adjustment application was filed,

23 and current status of the adjustment application.

24

25

RESPONSE:

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 18
135025481.5

App. 180

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 184 of 518

1

REQUEST FOR PRODUCTION NO. 36: All versions of USCIS’s organization chart

2 for USCIS headquarters and the Seattle USCIS Field Office, reflecting the names, titles, and

3 positions of officials and Employees from 2007 to the present. This request includes

4 organization charts of USCIS as a whole, as well as the Fraud Detection and National Security

5 (FDNS) Directorate of USCIS.

6

7

RESPONSE:

8

9

REQUEST FOR PRODUCTION NO. 37: All versions of any organization chart or

10 similar document reflecting or identifying the individuals responsible for implementing CARRP,

11 including but not limited to those individuals responsible for drafting and presenting training

12 materials about CARRP and officers designated as CARRP officers.

13

14

RESPONSE:

15

16

REQUEST FOR PRODUCTION NO. 38: All Documents referring or relating to the

17 names, titles, and job descriptions of all Your officials and Employees who bear any

18 responsibility, directly or indirectly, in whole or in part, for CARRP or any related extreme

19 vetting program. This request includes but is not limited to officials and Employees who are or

20 were responsible for the creation, implementation, execution, oversight, and future development

21 of CARRP or any related extreme vetting program.

22

23

RESPONSE:

24

25

REQUEST FOR PRODUCTION NO. 39: All Documents previously withheld or

26 produced in redacted form pursuant to any exemption from the Freedom of Information Act,

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 19
135025481.5

App. 181

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 185 of 518

1 produced in unredacted form. This request is limited to Documents withheld or produced in

2 response to the ACLU FOIA Request.

3 4 DATED: August 1, 2017

5 s/Jennifer Pasquarella (admitted pro hac vice) s/ Harry H. Schneider, Jr. ACLU Foundation of Southern California Harry H. Schneider, Jr. #9404

6 1313 W. 8th Street Los Angeles, CA 90017

s/ Nicholas P. Gellert Nicholas P. Gellert #18041

7 Telephone: (213) 977-5236 Facsimile: (213) 997-5297

s/ David A. Perez David A. Perez #43959

8 jpasquarella@aclusocal.org

s/ Laura K. Hennessey Laura K. Hennessey #47447

9 s/Matt Adams

Attorneys for Plaintiffs

10 s/Glenda M. Aldana Madrid Matt Adams #28287

Perkins Coie LLP 1201 Third Avenue, Suite 4900

11 Glenda M. Aldana Madrid #46987 Northwest Immigrant Rights Project

Seattle, WA 98101-3099 Telephone: 206.359.8000

12 615 Second Ave., Ste. 400 Seattle, WA 98122

Facsimile: 206.359.9000 Email: HSchneider@perkinscoie.com

13 Telephone: (206) 957-8611 Facsimile: (206) 587-4025

NGellert@perkinscoie.com DPerez@perkinscoie.com

14 matt@nwirp.org glenda@nwirp.org

LHennessey@perkinscoie.com

15 s/Stacy Tolchin (admitted pro hac vice)

s/Trina Realmuto (admitted pro hac vice)

16 Law Offices of Stacy Tolchin 634 S. Spring St. Suite 500A

s/Kristin Macleod-Ball (admitted pro hac vice) National Immigration Project

17 Los Angeles, CA 90014 Telephone: (213) 622-7450

of the National Lawyers Guild 14 Beacon St., Suite 602

18 Facsimile: (213) 622-7233 Stacy@tolchinimmigration.com

Boston, MA 02108 Telephone: (617) 227-9727

19

Facsimile: (617) 227-5495

trina@nipnlg.org

20

kristin@nipnlg.org

21

22

23

24

25

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 20
135025481.5

App. 182

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 186 of 518

1 s/Hugh Handeyside Hugh Handeyside #39792
2 s/Lee Gelernt (admitted pro hac vice) s/Hina Shamsi (admitted pro hac vice)
3 American Civil Liberties Union Foundation 125 Broad Street
4 New York, NY 10004 Telephone: (212) 549-2616
5 Facsimile: (212) 549-2654 lgelernt@aclu.org
6 hhandeyside@aclu.org hshamsi@aclu.org
7

s/Emily Chiang Emily Chiang #50517 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Echiang@aclu-wa.org

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 21
135025481.5

App. 183

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 187 of 518

1

CERTIFICATE OF SERVICE

2

3

The undersigned certifies under penalty of perjury and the laws of the State of

4 Washington that on August 1st, 2017, I caused service of the foregoing, PLAINTIFFS’ FIRST

5 SET OF REQUESTS FOR PRODUCTION TO DEFENDANTS, via email to all counsel of

6 record herein.

7

Aaron R. Petty US Department Of Justice

8

219 S. Dearborn St., 5th Floor

9

Chicago, IL 60604 Telephone: 202-532-4542

10 aaron.r.petty@usdoj.gov

Via Email

11

Edward S. White US Department Of Justice

12

PO Box 868 Ben Franklin Station

13

Washington, DC 20044 Telephone: 202-616-9131

14

Facsimile: 202-305-7000 edward.s.white@usdoj.gov

Via Email

15 Joseph F. Carilli, Jr.
U.S. Department Of Justice 16 PO Box 868,
Ben Franklin Station 17 Washington, DC 20044
Telephone: 202-616-4848 18 Facsimile: 202-305-7000
joseph.f.carilli2@usdoj.gov 19

Via Email

20

I certify under penalty of perjury that the foregoing is true and correct.

21

DATED this 1st day of August 2017, at Seattle, Washington.

22 23 24 25 26
CERTIFICATE OF SERVICE (No. 17-cv-00094 RAJ) – 1
135025481.5

s/Laura K. Hennessey Laura K. Hennessey #47447 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: LHennessey@perkinscoie.com

App. 184

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 188 of 518
EXHIBIT A
App. 185

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 189 of 518 App. 186

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 190 of 518 App. 187

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 191 of 518 App. 188

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 192 of 518 App. 189

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 193 of 518 App. 190

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 194 of 518 App. 191

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 195 of 518 App. 192

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 196 of 518 App. 193

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 197 of 518 App. 194

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 198 of 518 App. 195

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 199 of 518 App. 196

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 200 of 518 App. 197

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 201 of 518 App. 198

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t787623,FDilketdE0n8tr/y1:81/1-27, PPaaggee2102ofo1f 7518

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

9 ABDIQAFAR WAGAFE, et al., on behalf No. 17-cv-00094 RAJ

of themselves and others similarly situated,

10

STIPULATED PROTECTIVE ORDER

Plaintiffs,

11

v.

12

DONALD TRUMP, President of the

13 United States, et al.,

14

Defendants.

15 1 PURPOSES AND LIMITATIONS
16 Discovery in this action is likely to involve production of confidential, for official use only,
17 law enforcement sensitive, and/or private information for which special protection may be
18 warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the
19 following Stipulated Protective Order (“Order”). The parties acknowledge that this Order
20 is consistent with Local Civil Rule 26(c). It does not confer blanket protection on all
21 disclosures or responses to discovery; the protection it affords from public disclosure and
22 use extends only to the limited information or items that are entitled to confidential
23 treatment under the applicable legal principles, and it does not presumptively entitle parties
24 to file confidential information under seal.
25

26

STIPULATED PROTECTIVE ORDER – 1

App. 199

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t787623,FDilketdE0n8tr/y1:81/1-27, PPaaggee2203ofo1f 7518

1 2 CONFIDENTIAL INFORMATION

2 “Confidential Information” shall include the following types of information produced or

3 otherwise exchanged:

4

a) an individual’s social security number, personal identification numbers, tax

5

identification number, alien registration number (“A number”), passport

6

numbers, driver license numbers, and any similar identifiers assigned to an

7

individual by the federal government, a state or local government of the United

8

States, or the government of any other country;

9

b) any other information that, either alone or in association with other related

10

information, would allow the identification of the particular individual(s) to

11

whom the information relates;

12

c) birth dates;

13

d) information relating to the basis on which Defendants have identified any

14

individual as a “National Security Concern” under CARRP and any

15

information bearing on why an individual’s immigration application was or is

16

being processed pursuant to CARRP;

17

e) information relating to the content or status of an individual’s immigration

18

benefit application, to the extent that information is linked with the applicant’s

19

identity;

20

f) any information that is protected or restricted from disclosure by state or

21

federal statute or regulation, but which the Court may order produced, such as

22

information protected by the Privacy Act, 5 U.S.C. § 552a, and other statutes or

23

regulations that may prevent disclosure of specific information related to

24

noncitizens, including but not limited to: 8 U.S.C. §§ 1160(b)(5), (6);

25

1186A(c)(4), 1202(f), 1254a(c)(6), 1255a(c)(4), (5); 1304(b), and 1367(a)(2),

26

(b), (c), (d); 22 U.S.C. § 7105(c)(1)(C); 8 C.F.R. §§ 208.6, 210.2(e), 214.11(e),

STIPULATED PROTECTIVE ORDER – 2

App. 200

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t787623,FDilketdE0n8tr/y1:81/1-27, PPaaggee2304ofo1f 7518

1

214.14(e), 216.5(e)(3)(viii), 236.6, 244.16, 245a.2(t), 245a.3(n), 245a.21,

2

1003.27(b)-(d), 1003.46, and 1208.6, which otherwise could subject either

3

party to civil or criminal penalties or other sanctions in the event of

4

unauthorized disclosure;

5

g) any information that is (i) a trade secret or other confidential research,

6

development, or commercial information, as such terms are used in Federal

7

Rule of Civil Procedure 26(c)(1)(G), or (ii) non-public proprietary information

8

purchased or obtained from a private entity;

9

h) photographs of any person, including but not limited to any photographs of any

10

named Plaintiff, unnamed class member, or their family/friends;

11

i) names of any individuals known to be under 18 years of age;

12

j) addresses and telephone numbers;

13

k) any sensitive, but unclassified, information to include limited official use or for

14

official use only information;

15

l) any information compiled for law enforcement purposes, including but not

16

limited to, investigative files and techniques related to the integrity of the legal

17

immigration system, suspected or known fraud, criminal activity, public safety,

18

or national security, and investigative referrals;

19

m) any information not in the public domain, or if in the public domain,

20

information that is improperly in the public domain;

21

n) bank account numbers, credit card numbers, and other financial information

22

that can be specifically linked to an individual’s or entity’s financial account;

23

o) medical information, such as medical records, medical treatment, and medical

24

diagnoses; and

25

p) any other personally identifiable information identified in Federal Rule of Civil

26

Procedure 5.2 and Local Civil Rule 5.2(a).

STIPULATED PROTECTIVE ORDER – 3

App. 201

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t787623,FDilketdE0n8tr/y1:81/1-27, PPaaggee2405ofo1f 7518

1 If a designating party determines that information not described in this paragraph should be

2 designated Confidential Information, the parties shall negotiate the appropriateness of that

3 designation in good faith and endeavor to resolve any dispute prior to the production of that

4 information. If the parties are unable to resolve the dispute within 14 calendar days, the

5 designating party shall designate the material as containing Confidential Information and

6 produce it. The receiving party can then challenge the confidentiality designation(s)

7 pursuant to Section 6 of this Order.

8 Information that has been made public under the authority of a party, aggregate information

9 that concerns class members, and information that does not permit the identification of the

10 particular individuals to whom the information relates are not considered Confidential

11 Information, unless otherwise covered under of the categories identified above.

12 3 SCOPE 13 The protections conferred by this Order cover not only those portions of any documents

14 containing Confidential Information (as defined above), but also (1) any information copied

15 or extracted from those portions of any documents containing Confidential Information; (2)

16 all copies, excerpts, summaries, or compilations of Confidential Information; and (3) any

17 testimony, conversations, or presentations by parties or their counsel that might reveal

18 Confidential Information. However, the protections conferred by this Order do not cover

19 information that is properly in the public domain or becomes part of the public domain

20 through trial or otherwise.

21

4

ACCESS TO AND USE OF CONFIDENTIAL INFORMATION

22 4.1 Basic Principles. A receiving party may use Confidential Information that is

23 disclosed or produced by another party or by a non-party in connection with this case only

24 for pursuing, defending, or attempting to settle this litigation. It shall not be disseminated

25 outside the confines of this case, nor shall it be included in any pleading, record, or

26 document that is not filed under seal with the Court or redacted in accordance with

STIPULATED PROTECTIVE ORDER – 4

App. 202

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t787623,FDilketdE0n8tr/y1:81/1-27, PPaaggee2506ofo1f 7518

1 applicable law. Confidential Information may be disclosed only to the categories of

2 persons and under the conditions described in this Order. Confidential Information must be

3 stored and maintained by a receiving party at a location and in a secure manner that ensures

4 that access is limited to the persons authorized under this Order.

5 4.2 Disclosure of Confidential Information or Items. Unless otherwise ordered by the

6 Court or permitted in writing by the designating party, a receiving party may disclose any

7 Confidential Information only to:

8

a) Defendants, Defendants’ employees to whom disclosure is reasonably

9

necessary for this litigation, and named Plaintiffs;

10

b) Defendants’ counsel in this action and any support staff and other

11

employees of such counsel assisting in this action with an appropriate

12

need to know. If any of Defendants’ counsel, support staff, or other

13

employees cease to represent Defendants in this action for any reason,

14

such counsel shall no longer have access to or be authorized to receive

15

any Confidential Information;

16

c) Plaintiffs’ counsel in this action and any support staff and other

17

employees of such counsel assisting in this action with an appropriate

18

need to know. If any of Plaintiffs’ counsel cease to represent Plaintiffs

19

or class members in this action for any reason, such counsel shall no

20

longer have access to or be authorized to receive any Confidential

21

Information;

22

d) experts and consultants to whom disclosure is reasonably necessary for

23

this litigation and who have signed the “Acknowledgment and

24

Agreement to Be Bound” (Exhibit A);

25

e) any other person mutually authorized by both parties’ counsel to

26

examine such information;

STIPULATED PROTECTIVE ORDER – 5

App. 203

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t787623,FDilketdE0n8tr/y1:81/1-27, PPaaggee2607ofo1f 7518

1

f) the Court, court personnel, and court reporters and their staff;

2

g) copy or imaging or data processing services retained by counsel to assist

3

in this litigation, provided that counsel for the party retaining the copy or

4

imaging or data processing service instructs the service not to disclose

5

any Confidential Information to third parties and to immediately return

6

all originals and copies of any Confidential Information;

7

h) during their depositions, witnesses in the action to whom disclosure is

8

reasonably necessary and who have signed the “Acknowledgment and

9

Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the

10

designating party or ordered by the Court. Pages of transcribed

11

deposition testimony or exhibits to depositions that reveal Confidential

12

Information must be separately bound by the court reporter and may not

13

be disclosed to anyone except as permitted under this Order; and

14

i) the author or recipient of a document containing Confidential

15

Information or a custodian or other person who otherwise possessed or

16

knew the Confidential Information.

17 4.3 Use Of Information Subject To Protective Order. Use of any information or

18 documents subject to this Protective Order, including all information derived therefrom,

19 shall be restricted to use in this litigation (subject to the applicable rules of evidence and

20 subject to the confidentiality of such materials being maintained) and shall not be used by

21 anyone subject to the terms of this agreement, for any purpose outside of this litigation or

22 any other proceeding between the parties. Without limiting the generality of the foregoing

23 sentence, no one subject to this Protective Order shall use Confidential Information

24 obtained in this litigation to retaliate against, intimidate, report or refer an individual to any

25 governmental authorities, discriminate against any individual in any manner, or harass any

26 other party or witness, relatives of any other party or witness, including domestic partners

STIPULATED PROTECTIVE ORDER – 6

App. 204

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t787623,FDilketdE0n8tr/y1:81/1-27, PPaaggee2708ofo1f 7518
1 of a party or witness; or any individuals associated with the parties in any way. 2 Notwithstanding the foregoing, nothing in this Protective Order supersedes existing 3 independent statutory, law enforcement, national security, or regulatory obligations 4 imposed on a Party, and this Protective Order does not prohibit or absolve the Parties from 5 complying with such other obligations. Nothing in this Protective Order shall limit or in 6 any way restrict the use of information obtained outside of this litigation. 7 4.4 Filing Confidential Information. Before filing Confidential Information with the 8 Court, or discussing or referencing such material in court filings, the filing party shall 9 confer with the designating party (where practical, at least seven days prior to the intended 10 filing date ) to determine whether the designating party will remove the confidential 11 designation, whether the document can be redacted, or whether a motion to seal or 12 stipulation and proposed order is warranted. Local Civil Rule 5(g) sets forth the procedures 13 that must be followed and the standards that will be applied when a party seeks permission 14 from the Court to file material under seal. 15 5 DESIGNATING PROTECTED MATERIAL 16 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party or 17 non-party that designates information or items for protection under this Order must take 18 care to limit any such designation to specific material that qualifies under the appropriate 19 standards. The designating party must designate for protection only those parts of material, 20 documents, items, or oral or written communications that qualify, so that other portions of 21 the material, documents, items, or communications for which protection is not warranted 22 are not swept unjustifiably within the ambit of this Order. 23 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 24 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 25 unnecessarily encumber or delay the case development process or to impose unnecessary 26 expenses and burdens on other parties) expose the designating party to sanctions.
STIPULATED PROTECTIVE ORDER – 7
App. 205

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t787623,FDilketdE0n8tr/y1:81/1-27, PPaaggee2809ofo1f 7518

1 If it comes to a designating party’s attention that information or items that it designated for

2 protection do not qualify for protection, the designating party must promptly notify all other

3 parties that it is withdrawing the mistaken designation.

4 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order

5 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,

6 disclosure or discovery material that qualifies for protection under this Order must be

7 clearly so designated before or when the material is disclosed or produced.

8

a) Information in documentary form (e.g., paper or electronic documents

9

and deposition exhibits, but excluding transcripts of depositions or other

10

pretrial or trial proceedings): The designating party must affix the words

11

“CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER” to each

12

page that contains Confidential Information. If only a portion or portions

13

of the material on a page qualifies for protection, the producing party

14

also must clearly identify the protected portion(s) (e.g., by making

15

appropriate markings in the margins).

16

b) Electronic Information Not Amenable to Marking Document. For

17

electronic information that is provided in native form or a format that is

18

not amenable to visible endorsement on the image, the file name(s) shall

19

begin with “CONFIDENTIAL PURSUANT TO PROTECTIVE

20

ORDER.” The media on which the Confidential Information is provided

21

(e.g., CD, DVD, external hard drive) also must be and remain plainly

22

labeled with “CONFIDENTIAL PURSUANT TO PROTECTIVE

23

ORDER” unless and until the protection of the data within the media is

24

removed. Any copying or transferring of electronic files that are

25

designated as Confidential Material must be done in a manner that

26

maintains the protection for all copies, including, but not limited to, in

STIPULATED PROTECTIVE ORDER – 8

App. 206

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t787623,FDilketdE0n8tr/y1:81/1-27, PPaaggee2910ofo1f 7518

1

the filename(s) and the location where the copies are stored and users’

2

access thereto.

3

c) Testimony given in deposition or in other pretrial or trial proceedings:

4

The parties must identify on the record, during the deposition, hearing, or

5

other proceeding, all protected testimony, without prejudice to their right

6

to so designate other testimony after reviewing the transcript. Any party

7

or non-party may, within 30 days after receiving a deposition transcript,

8

designate portions of the transcript, or exhibits thereto, as confidential.

9

The entire deposition transcript (including any exhibits not previously

10

produced in discovery in this Action) shall be treated as Confidential

11

Information under this Protective Order until the expiration of the above-

12

referenced 30-day period for designation, except that the deponent (and

13

his or her counsel, if any) may review the transcript of his or her own

14

deposition during the 30-day period subject to this Protective Order and

15

the requirement of executing the certification attached as Exhibit A.

16

After designation of Confidential Material is made, the following shall

17

be placed on the front of the original and each copy of a deposition

18

transcript containing Confidential Information: “CONFIDENTIAL

19

PURSUANT TO PROCTECTIVE ORDER.” If the deposition was

20

filmed, both the recording storage medium (i.e. CD or DVD) and its

21

container shall be labeled “CONFIDENTIAL PURSUANT TO

22

PROCTECTIVE ORDER.”

23

d) For interrogatory answers and responses to requests for admissions,

24

designation of Confidential Information shall be made by placing within

25

each interrogatory answer or response to requests for admission asserted

26

STIPULATED PROTECTIVE ORDER – 9

App. 207

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t787623F, DilekdtE0n8t/r1y8: /11-72, PPaaggee21101ooff15718

1

to contain Confidential Information the following: “CONFIDENTIAL

2

PURSUANT TO PROTECTIVE ORDER”.

3

e) Other tangible items: The producing party must affix in a prominent

4

place on the exterior of the container or containers in which the

5

information or item is stored the words “CONFIDENTIAL PURSUANT

6

TO PROTECTIVE ORDER.” If only a portion or portions of the

7

information or item warrant protection, the producing party, to the extent

8

practicable, shall identify the protected portion(s).

9 5.3 Inadvertent Failures to Designate. If a party inadvertently fails to designate material

10 as Confidential Information at the time of production, it shall take reasonable steps to notify

11 all receiving persons of its failure within five business days of discovery. The producing

12 party shall promptly supply all receiving persons with new copies of any documents

13 bearing corrected confidentiality designations, and the receiving party shall destroy the

14 original materials, and certify in writing to the producing party that such information has

15 been destroyed.

16 6 CHALLENGING CONFIDENTIALITY DESIGNATIONS 17 6.1 Timing of Challenges. Any party or non-party may challenge a designation of

18 confidentiality at any time. Unless a prompt challenge to a designating party’s

19 confidentiality designation is necessary to avoid foreseeable, substantial unfairness,

20 unnecessary economic burdens, or a significant disruption or delay of the litigation, a party

21 does not waive its right to challenge a confidentiality designation by electing not to mount a

22 challenge promptly after the original designation is disclosed.

23 6.2 Meet and Confer. The parties must attempt to resolve any dispute regarding

24 confidential designations without court involvement. Any motion regarding confidential

25 designations or for a protective order must include a certification, in the motion or in a

26 declaration or affidavit, that the movant has engaged in a good faith meet and confer

STIPULATED PROTECTIVE ORDER – 10

App. 208

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t787623F, DilekdtE0n8t/r1y8: /11-72, PPaaggee21112ooff15718
1 conference with other affected parties in an effort to resolve the dispute without court
2 action. The certification must list the date, manner, and participants to the conference. A
3 good faith effort to confer requires a face-to-face meeting or a telephone conference.
4 6.3 Judicial Intervention. If the parties cannot resolve a challenge without court
5 intervention, the challenging party may file and serve a motion to withdraw confidentiality
6 under Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The
7 burden of persuasion in any such motion shall be on the designating party. Frivolous
8 challenges, and those made for an improper purpose (e.g., to harass or impose unnecessary
9 expenses and burdens on other parties) may expose the challenging party to sanctions. All
10 parties shall continue to maintain the material in question as confidential until the Court
11 rules on the challenge.
12 7 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION
13 If a party is served with a subpoena or a court order issued in other litigation that compels
14 disclosure of any information or items designated in this action as “CONFIDENTIAL
15 PURSUANT TO PROTECTIVE ORDER,” that party must:
16 a) promptly notify the designating party in writing and include a copy of the
17 subpoena or court order;
18 b) promptly notify in writing the party who caused the subpoena or order to issue
19 in the other litigation that some or all of the material covered by the subpoena or
20 order is subject to this Order and provide a copy of this Order with that
21 notification;
22 c) cooperate with respect to all reasonable procedures sought to be pursued by the
23 designating party or parties whose Confidential Information may be affected,
24 including objecting and seeking a protective order in the litigation in which the
25 subpoena or order issued; and
26
STIPULATED PROTECTIVE ORDER – 11
App. 209

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t787623F, DilekdtE0n8t/r1y8: /11-72, PPaaggee21123ooff15718

1

d) decline to produce the Confidential Information if an objection has been made

2

until the objection has been resolved unless disclosure, dissemination, or

3

transmission is required by law or court order. Any person, entity, or

4

organization who receives Confidential Information shall abide by all terms and

5

conditions set forth herein unless otherwise permitted by court order.

6 8 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 7 If a receiving party learns that, by inadvertence or otherwise, the party has disclosed

8 Confidential Information to any person or in any circumstance not authorized under this

9 Order, the receiving party must immediately:

10

a) notify in writing the designating party of the unauthorized disclosure(s);

11

b) use best efforts to retrieve all unauthorized copies of the protected material;

12

c) inform the person or persons to whom unauthorized disclosures were made of all

13

the terms of this Order; and

14

d) request that such person or persons execute the “Acknowledgment and

15

Agreement to Be Bound” that is attached hereto as Exhibit A.

16

9

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

17

PROTECTED MATERIAL

When a producing party gives notice to receiving parties that certain inadvertently produced 18

material is subject to a claim of privilege or other protection, the obligations of the 19

receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 20

provision is not intended to modify whatever procedure may be established in an e21

discovery order or order that provides for production without prior privilege review. Parties 22

shall confer on an appropriate non-waiver order under Federal Rule of Evidence 502. 23

24

10 NON-TERMINATION AND RETURN OF DOCUMENTS

Within 60 days after the termination of this action, including all appeals, each receiving 25

party shall destroy all Confidential Information obtained from another party in its 26

STIPULATED PROTECTIVE ORDER – 12

App. 210

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t787623F, DilekdtE0n8t/r1y8: /11-72, PPaaggee21134ooff15718
1 possession, custody, or control. The parties shall agree upon appropriate methods of 2 destruction. 3 Notwithstanding this provision, counsel are entitled to retain one archival copy of all 4 documents filed with the Court; trial, deposition, and hearing transcripts; correspondence; 5 deposition and trial exhibits; expert reports; attorney work product; and consultant and 6 expert work product, even if such materials contain Confidential Information, provided that 7 such material is and remains clearly marked to reflect that it contains Confidential 8 Information, and such counsel maintain the confidential nature of the discovery, as set forth 9 in this Order. Notwithstanding the foregoing, nothing in this Order shall be construed to 10 supersede any party’s independent obligation to maintain records in accordance with the 11 Federal Records Act or other statutory or regulatory record-keeping requirements. 12 The confidentiality obligations imposed by this Order shall remain in effect until a 13 designating party agrees otherwise in writing or a court orders otherwise. 14 11 MISCELLANEOUS 15 11.1 Enforceability Upon Signing. By signing the Order, the parties agree to be bound 16 by its terms unless and until those terms are modified by order of the Court. 17 11.2 Right to Further Relief. Nothing in this Order abridges the right of any party to seek 18 its modification by the Court in the future. 19 11.3 Right to Assert Other Objections. By stipulating to entry of this Order, no party 20 waives any right it otherwise would have to object to disclosing or producing any 21 information or item on any ground not addressed in this Order. Similarly, no party waives 22 any right to object on any ground to use in evidence of any of the material covered by this 23 Order. 24 11.4 Effect of Order. This Order shall constitute a court order authorizing disclosure of 25 information designated as confidential, subject to the protections described herein, for 26 purposes of the Privacy Act, 5 U.S.C. § 552a(b)(11) (authorizing disclosure pursuant to the
STIPULATED PROTECTIVE ORDER – 13
App. 211

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t787623F, DilekdtE0n8t/r1y8: /11-72, PPaaggee21145ooff15718

1 order of a court of competent jurisdiction) and any other state or federal statute or

2 regulation that provides for disclosure pursuant to court order.

3 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

4

5 DATED: August 15, 2017

6

7

s/ Jennifer Pasquarella (admitted pro hac vice) s/ Harry H. Schneider, Jr. 8 ACLU Foundation of Southern California Harry H. Schneider, Jr. #9404

1313 W. 8th Street 9 Los Angeles, CA 90017

s/ Nicholas P. Gellert Nicholas P. Gellert #18041

Telephone: (213) 977-5236 10 Facsimile: (213) 997-5297

s/ David A. Perez David A. Perez #43959

jpasquarella@aclusocal.org 11

s/ Laura K. Hennessey Laura K. Hennessey #47447

Attorneys for Plaintiffs

12

Perkins Coie LLP

1201 Third Avenue, Suite 4900

13

Seattle, WA 98101-3099

Telephone: 206.359.8000

14

Facsimile: 206.359.9000

Email: HSchneider@perkinscoie.com

15

NGellert@perkinscoie.com

DPerez@perkinscoie.com

16

LHennessey@perkinscoie.com

17 s/ Matt Adams s/ Glenda M. Aldana Madrid
18 Matt Adams #28287 Glenda M. Aldana Madrid #46987
19 Northwest Immigrant Rights Project 615 Second Ave., Ste. 400
20 Seattle, WA 98122 Telephone: (206) 957-8611
21 Facsimile: (206) 587-4025 matt@nwirp.org
22 glenda@nwirp.org
23 s/ Stacy Tolchin (admitted pro hac vice) Law Offices of Stacy Tolchin
24 634 S. Spring St. Suite 500A Los Angeles, CA 90014
25 Telephone: (213) 622-7450 Facsimile: (213) 622-7233
26 Stacy@tolchinimmigration.com

s/ Trina Realmuto (admitted pro hac vice) s/ Kristin Macleod-Ball (admitted pro hac vice) National Immigration Project of the National Lawyers Guild 14 Beacon St., Suite 602 Boston, MA 02108 Telephone: (617) 227-9727 Facsimile: (617) 227-5495 trina@nipnlg.org kristin@nipnlg.org
s/ Emily Chiang Emily Chiang #50517 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Echiang@aclu-wa.org

STIPULATED PROTECTIVE ORDER – 14

App. 212

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t787623F, DilekdtE0n8t/r1y8: /11-72, PPaaggee21156ooff15718

1 s/ Hugh Handeyside
Hugh Handeyside #39792 2 s/ Lee Gelernt (admitted pro hac vice)
s/ Hina Shamsi (admitted pro hac vice) 3 American Civil Liberties Union Foundation
125 Broad Street 4 New York, NY 10004
Telephone: (212) 549-2616 5 Facsimile: (212) 549-2654
lgelernt@aclu.org 6 hhandeyside@aclu.org
hshamsi@aclu.org 7

8

Attorneys for Plaintiffs

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

STIPULATED PROTECTIVE ORDER – 15

App. 213

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t787623F, DilekdtE0n8t/r1y8: /11-72, PPaaggee21167ooff15718

1 DATED: August 15, 2017

2

3 s/ Aaron R Petty

s/ Edward S. White

4

Aaron R. Petty US DEPARTMENT OF JUSTICE

Edward S. White US DEPARTMENT OF JUSTICE

5 219 S. DEARBORN ST., 5TH FLOOR CHICAGO, IL 60604

(BOX 868) PO BOX 868

6 202-532-4542

BEN FRANKLIN STATION

Email: aaron.r.petty@usdoj.gov 7

WASHINGTON, DC 20044 202-616-9131

8

Fax: 202-305-7000 Email: edward.s.white@usdoj.gov

9 s/ Joseph F. Carilli, Jr.

___________

Joseph F. Carilli, Jr.

10 Office of Immigration Litigation

District Court Section

11

Civil Div., U.S. Dep’t of Justice

12

P.O. Box 868, Ben Franklin Station

Washington, D.C. 20044-0868

13 202-616-4848

Fax 202-305-7000 14 Email: joseph.f.carilli2@usdoj.gov

15

16

Attorneys for Defendants

17

18 PURSUANT TO STIPULATION, IT IS SO ORDERED.

19 DATED: August 18, 2017 20 21 22

A
The Honorable Richard A. Jones United States District Judge

23

24

25

26

STIPULATED PROTECTIVE ORDER – 16

App. 214

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t787623F, DilekdtE0n8t/r1y8: /11-72, PPaaggee21178ooff15718

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

4

I, _____________________________ [print or type full name], of _________________

5

[print or type full address], declare under penalty of perjury that I have read in its entirety

6

and understand the Stipulated Protective Order that was issued by the United States District

7

Court for the Western District of Washington on [date] in the case of Wagafe, et al. v.

8

Trump, et al., No. 17-cv-00094 RAJ. I agree to comply with and to be bound by all the

9

terms of this Stipulated Protective Order and I understand and acknowledge that failure to

10

so comply could expose me to sanctions and punishment in the nature of contempt. I

11

solemnly promise that I will not disclose in any manner any information or item that is

12

subject to this Stipulated Protective Order to any person or entity except in strict

13

compliance with the provisions of this Order.

14

I further agree to submit to the jurisdiction of the United States District Court for the

15

Western District of Washington for the purpose of enforcing the terms of this Stipulated

16

Protective Order, even if such enforcement proceedings occur after termination of this

17

action.

18

19

Date: _________________________________

20

City and State where sworn and signed: _________________________________

21

Printed name: ______________________________

22

Signature: __________________________________

23

24

25

26

STIPULATED PROTECTIVE ORDER – 17

App. 215

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 219 of 518

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

9 ABDIQAFAR WAGAFE, et al., on behalf of themselves and others
10 similarly situated,

11

Plaintiffs,

12

v.

13
DONALD TRUMP, President of the 14 United States, et al.,

No. 17-cv-00094 RAJ
DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS

15

Defendants.

16

17

18

COMES NOW Defendants Donald Trump, President of the United States; United

19 States Citizenship and Immigration Services; Elaine C. Duke, in her official capacity as

20 Acting Secretary of the U.S. Department of Homeland Security;1 James McCament, in

21 his official capacity as Acting Director of the U.S. Citizenship and Immigration Services;

22 Matthew D. Emrich, in his official capacity as Associate Director of the Fraud Detection

23 and National Security Directorate of the U.S. Citizenship and Immigration Services

24 (“FDNS”); and Daniel Renaud, in his official capacity as Associate Director of the Field

25 Operations Directorate of the U.S. Citizenship and Immigration Services (collectively,

26 “Defendants”), by and through counsel, and provide the following responses to Plaintiffs’

27 1 Acting Secretary Elaine C. Duke is automatically substituted for her predecessor, Secretary John F. Kelly. See Fed. R. Civ. P. 25(d).

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 1

(2:17-cv-00094-RAJ)

App. 216

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 220 of 518

1 First Request for Production of Documents, subject to the accompanying objections,

2 without waiving and expressly preserving all such objections. Defendants’ objections are

3 based on information known to Defendants at this time, and are made without prejudice

4 to additional objections should Defendants subsequently identify additional grounds for

5 objection. Defendants also submit these responses subject to: (a) any objections as to

6 competency, relevancy, materiality, privilege, and admissibility of any of the responses;

7 and (b) the right to object to other discovery procedures involving and relating to the

8 subject matter of the requests herein.

9

OBJECTIONS WHICH APPLY TO ALL REQUESTS FOR PRODUCTION

10

Defendants object to these discovery requests to the extent that they seek (a)

11 attorney work product, trial preparation material, or communications protected by the

12 attorney-client privilege, (b) information protected by the deliberative-process privilege,

13 the joint defense privilege, common interest privilege or law enforcement privilege; (c)

14 material the disclosure of which would violate legitimate privacy interests and

15 expectations of persons not party to this litigation, including non-party class members; or

16 (d) any other applicable privilege.

17

Defendants object to these discovery requests (and the definitions and instructions

18 thereto) to the extent that they purport to impose obligations other than those imposed by

19 the Federal Rules of Civil Procedure, the Local Civil Rules of the U.S. District Court for

20 the Western District of Washington, or an order of the Court.

21

Defendants object to the discovery requests to the extent they call for production

22 of documents that are either not relevant to a claim or defense of any party or not

23 proportional to the needs of the case, considering the importance of the issues at stake in

24 the action, the parties’ relative access to relevant information, the parties’ resources, the

25 importance of the discovery in resolving the issues, and whether the burden of expense of

26 the proposed discovery outweighs its likely benefit.

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 2

(2:17-cv-00094-RAJ)

App. 217

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 221 of 518

1

Defendants object to the discovery requests to the extent they are not reasonably

2 limited in time or scope.

3

Defendants object to the discovery requests to the extent they require an unduly

4 burdensome and disproportionate search. In particular, Defendants object to all requests

5 for Documents “referring” to a particular thing as such requests are not limited to those

6 having any logical or factual connection to any matter at issue in this litigation and are

7 likely to result in collection of voluminous responsive but irrelevant Documents.

8

Defendants object to the discovery request to the extent they call for documents

9 that are publicly available, are already in the custody or control of Plaintiffs or Plaintiffs’

10 counsel, are readily accessible to Plaintiffs, or that would otherwise be less burdensome

11 for Plaintiffs to obtain than Defendants. See Fed. R. Civ. P. 26(b)(2)(C)(i).

12

To the extent Plaintiffs request production of documents concerning Executive

13 Order 13769 and Executive Order 13780, Defendants object to the discovery requests as

14 premature in light of the oral argument scheduled before the Supreme Court on October

15 10, 2017, in Trump v. Int’l Refugee Assistance Project, Nos. 16-1436 & 16-1540 (S. Ct.).

16 Defendants object to discovery requests to the extent they purport to demand that the

17 President produce responsive documents, as the President is immune from injunctions in

18 civil suits challenging official action as more fully described herein. Defendants further

19 object to any discovery concerning Executive Order 13769 (“First EO”) as it was

20 rescinded by Executive Order 13780 (“Second EO”) and all injunctive relief Plaintiffs

21 sought or seek with respect to the First EO is no longer possible, as it is moot.

22

Defendants object to any and all discovery requests to the extent they seek

23 production of documents from non-party agencies and are not in compliance with the

24 Touhy regulations of such agencies. See 22 C.F.R. part 172; 28 C.F.R. §§ 16.21 - 16.26;

25 30 C.F.R. part 516, app’x C; 32 C.F.R. part 1703.

26

Defendants construe Plaintiffs’ requests to extend only to unclassified Documents.

27 Defendants can neither confirm nor deny the existence or responsiveness of classified

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 3

(2:17-cv-00094-RAJ)

App. 218

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 222 of 518

1 Documents, will not search for them, and will not log them. As used in this paragraph,

2 “classified information” means classified national security information as defined by

3 Executive Order 13526, § 6.1(i), 75 Fed. Reg. 707, 727 (Dec. 29, 2009). A response that

4 there are no responsive Documents means that there are no unclassified responsive

5 Documents.

6

Defendants assert attorney-client privilege over all written correspondence to or

7 from an attorney concerning the subject-matter of this litigation. Such correspondence

8 between Department of Justice attorneys and other attorneys employed by Defendants

9 will not be logged. Written correspondence, other than electronic mail (“email”),

10 between attorneys employed by Defendants and other employees, subordinates, agents, or

11 officers of Defendants or agencies will be logged, but not produced.

12

Email sent or received by USCIS personnel prior to August 1, 2014, with limited

13 exceptions, is currently stored on back-up tapes due to a 2014 migration of email that

14 occurred in the ordinary course of USCIS business. The process to restore back-up tapes

15 is unduly burdensome, expensive, and would take information technology staff resources

16 away from their core mission. See Fed. R. Civ. P. 26(b)(1); 26(b)((2)(C)(i).

17 Consequently, Defendants will not search for any such emails, but may consider a

18 specific request identifying a particular individual or individuals and a particular time

19 frame and subject matter, and explaining in detail what material Plaintiffs seek, why it is

20 reasonable to believe it would be found in the place identified, and the Plaintiffs’ need for

21 such materials. Searching emails sent or received after July 31, 2014, while not as

22 burdensome and disproportionate as searching email created prior to that time, would

23 nevertheless burden the agency. If, as discovery progresses, Plaintiffs have reason to

24 believe that relevant, non-privileged material may be found in such post-July 31, 2014

25 emails, Defendants will, upon request, reconsider the question of burden and

26 proportionality with respect to searching such emails.

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 4

(2:17-cv-00094-RAJ)

App. 219

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 223 of 518

1

The Controlled Application Review and Resolution Program (“CARRP”) is a

2 program USCIS created and developed to adjudicate only those Immigration Benefit

3 Applications that are within USCIS’s statutory and regulatory authority to adjudicate, and

4 USCIS is solely responsible for the administration of CARRP. It would be burdensome

5 and disproportionate to the needs of the case to search for Documents responsive to any

6 of the requests for production that seek Documents that “refer or relate to” CARRP in

7 any place outside of USCIS. Consequently, Defendants object to these requests to the

8 extent they request Defendants to search for Documents that refer or relate to CARRP

9 outside of USCIS, and except where otherwise indicated, will limit their search for

10 responsive Documents within USCIS.

11

Each and every response contained herein is subject to the above objections,

12 which apply to each and every response, regardless of whether a specific objection is

13 interposed in a specific response. The making of a specific objection in response to a

14 particular request is not intended to constitute a waiver of any other objection not

15 specifically referenced in the particular response.

16

Defendants specifically reserve the right to make further objections as necessary to

17 the extent that additional issues arise as to the meaning of and/or information sought by

18 discovery.

19

Defendants have not completed their investigation of the facts underlying this

20 case, have not completed their discovery and have not completed their preparation for

21 trial. Therefore, Defendants reserve the right to supplement these responses in

22 accordance with Federal Rule of Civil Procedure 26(e), and to produce evidence at trial

23 of subsequently discovered facts.

24

ESTIMATED PRODUCTION TIMELINE

25

Defendants do not anticipate permitting inspection of any documents in the

26 possession, custody, or control of Defendants. Defendants estimate producing non-

27 privileged, responsive documents on a rolling basis beginning no later than thirty days

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 5

(2:17-cv-00094-RAJ)

App. 220

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 224 of 518

1 after service of this document and shall substantially complete production within 180

2 days after service of this document.

3

INSTRUCTIONS

The following instructions shall apply when responding to

4

these requests for production:

5

1. Each request herein calls for production of all responsive

6

Documents within Your possession, custody, or control, or that of

7

Your agents, consultants, representatives, and, unless privileged,

attorneys.
8

9

2. Without limitation of the term “control” as used in the

preceding instruction, a Document is deemed to be in Your control if

10

You have the right to secure the Document or a copy thereof from

11

another Person having actual possession thereof.

12

3. Each Document request and subparagraph or subdivision

13

thereof is to be answered separately. After each Document request,

state whether all Documents responsive to that request are being

14

produced.

15
4. Each Document request herein shall be deemed to be

16

continuing and, in the event that additional Documents are later

17

discovered or become known to You, further production is to be

made hereto.

18

5. If You object to answering any of these requests, or
19
withhold Documents from production in response to these requests,

20

in whole or in part, state your objections and/or reasons for not

producing and state all factual and legal justifications that you

21

believe support your objection or failure to produce.

22

6. If any requested Document has been lost, discarded, or

23

destroyed, describe the Document as completely as possible,

24

including: the name, title, and description of employment of each

author or preparer of the Document; a complete description of the

25

nature and subject matter of the Document; and the date on which

26

and manner in which the Document was lost, discarded, destroyed,

or otherwise disposed of.
27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 6

(2:17-cv-00094-RAJ)

App. 221

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 225 of 518

7. If any part of a Document is responsive to a Document
1
request, the whole Document is to be produced.

2

8. If You contend that it would be unreasonably burdensome

3

to obtain and provide all of the Documents called for in response to

4

any Document request or any subsection thereof, then in response to

the appropriate Document request:
5

6

a. Produce all such Documents as are available to You

without undertaking what You contend to be an unreasonable

7

request;

8

b. Describe with particularity the efforts made by You

9

or on Your behalf to produce such Documents; and

10

c. State with particularity the grounds upon which You

11

contend that additional efforts to produce such Documents would be

12

unreasonable.

13

9. If any request is deemed to call for privileged Documents,

14

and such privilege is asserted in order to avoid production, provide a

list with respect to each Document withheld based on a claim of

15

privilege, stating: the name of each author, the name of each

16

recipient and addressee, the date of the Document, the general

subject matter of the Document, the basis upon which the claim of

17

privilege is asserted, and the Document request under which the

18

production of the Document is called for.

19

10. In producing the Documents requested, You are requested

to search electronic Documents, records, data, and any other
20
electronically stored information (“ESI”) which may be stored in or

21

on any electronic medium or device, including without limitation

computers, network servers, computer hard drives, e-mails, and
22
voicemails. Your production of any ESI should be produced in an

23

electronic format permitting electronic search functionality, pursuant

to the Parties’ stipulation, if any, regarding preservation and
24
production of ESI.

25

11. In producing records responsive to Document requests,

26

please produce tangible Documents and records organized either (1)

27

in separate groups responsive to specific requests or (2) in the format

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 7

(2:17-cv-00094-RAJ)

App. 222

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 226 of 518

and organization in which the Documents are kept in the ordinary
1
course of Your business. Please produce electronic Documents and

2

records in Tagged Image File Format (“TIFF”), single page, black

and white (or in color, if necessary, for any Document or its content

3

to be readable), dithered (if appropriate), at 300 x 300 dpi resolution

4

and 8½ x 11 inch page size, except for Documents requiring

different resolution or page size to make them readable. Each TIFF

5

Document should be produced with an image load file in standard

6

Opticon (*.log) format that reflects the parent/child relationship. In

addition, each TIFF Document should be produced with a data load

7

file in Concordance delimited format (*.dat), indicating (at a

8

minimum) appropriate unitization of the Documents, including

beginning and ending production numbers for (a) each Document

9

set, and (b) each attachment within each Document set. TIFF images

10

should also be accompanied by extracted text or, for those files that

do not have extracted text upon being processed, optical character

11

recognition (“OCR”) text data; such extracted text or OCR text data

12

should be provided in Document level form and named after the

TIFF image. For Documents produced in TIFF format, metadata

13

should be included with the data load files described above, and

14

should include (at a minimum) the following information: file name

(including extension); original file path; page count; creation date

15

and time; last saved date and time; last modified date and time;

16

author; custodian of the Document (that is, the custodian from whom

the Document was collected or, if collected from a shared drive or

17

server, the name of the shared driver or server); and MD5 hash

18

value. In addition, for e-mail Documents, the data load files should

also include the following metadata: sent date; sent time; received

19

date; received time; “to” name(s) and address(es); “from” name and

address; “cc” name(s) and address(es); “bcc” name(s) and
20
address(es); subject; names of attachment(s); and attachment(s)

21

count. All images and load files should be named or foldered in such

a manner that all records can be imported without modification of
22
any path or file name information.

23

OBJECTIONS TO INSTRUCTIONS
24

1. To the extent that any instructions are inconsistent with any Order of the Court,
25

Defendants understand that the Order of the Court shall prevail.
26

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 8

(2:17-cv-00094-RAJ)

App. 223

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 227 of 518

1

2. Defendants object to Instructions Nos. 1 and 2 to the extent that they conflict in

2 any way with the Ninth Circuit’s standard for possession, custody, or control which

3 defines control as “the legal right to obtain upon demand.” In re Citric Acid Litig., 191

4 F.3d 1090, 1107 (9th Cir. 1999).

5

3. Defendants object to Instruction No. 6 as unduly burdensome insofar as it

6 purports to require a document-by-document recounting, including, as completely as

7 possible the “name, title, and description of employment of each author or preparer of the

8 Document; a complete description of the nature and subject matter of the Document; and

9 the date on which and manner in which the Document was lost, discarded, destroyed, or

10 otherwise disposed of,” for every such responsive Document, without regard to the date

11 on which it was created, the date on which it was lost, discarded, destroyed, or otherwise

12 disposed of, or whether litigation involving the substance of the Document was

13 reasonably foreseeable at that time it was lost, discarded, destroyed or otherwise disposed

14 of.

15

4. Defendants object to Instruction No. 7 to the extent that it calls for production

16 of privileged material.

17

5. Defendants object to Instruction No. 9 as an unduly burdensome requirement

18 and outside the scope of obligation for privilege logs as required under Federal Rule of

19 Civil Procedure 26(b)(5). Defendants reserve the right to create a categorical privilege

20 log.

21

6. Defendants object to Instructions Nos. 10 and 11 to the extent they are

22 inconsistent with the AGREEMENT REGARDING DISCOVERY OF

23 ELECTRONICALLY STORED INFORMATION AND ORDER, entered by the Court

24 on August 29, 2017. Defendants intend to produce Documents as they are kept in the

25 normal course of business.

26

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 9

(2:17-cv-00094-RAJ)

App. 224

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 228 of 518

DEFINITIONS
1

2

The following definitions shall apply when responding to

these requests for production:
3

4

1. “A,” “an,” and “any” include “all,” and “all” includes “a,”

“an,” and “any.” All of these words should be construed as necessary

5

to bring within the scope of these requests any Documents that might

6

otherwise be construed to be outside of their scope.

7

2. “Adjustment of Status Application” means an Immigration

8

Benefit Application to adjust the applicant’s status to that of

permanent legal resident using USCIS Form I-485.

9

10

3. “Adjustment of Status Applicant” means any individual

who has filed an Adjustment of Status Application.

11

12

4. “Adjustment Class” means the following class certified by

the Court in its Order Granting Class Certification, Dkt. 69: A

13

national class of all persons currently and in the future (1) who have

14

or will have an application for adjustment of status pending before

USCIS, (2) that is subject to CARRP or a successor “extreme

15

vetting” program, and (3) that has not been or will not be adjudicated

16

by USCIS within six months of having been filed.

17

5. “Alien File” or “A-file” means the collection of documents

18

that the Department of Homeland Security (DHS) maintains for non-

citizens, including all official files related to immigration status,

19

citizenship or relief.

20
6. “And” and “or” shall be construed either conjunctively or

21

disjunctively, whichever makes the request more inclusive.

22
7. “ACLU FOIA Request” means the American Civil

23

Liberties Union’s May 17, 2012 Freedom of Information Act

Request, attached hereto as Exhibit A.
24

25

8. “CARRP” means the Controlled Application Review and

Resolution Program, an internal vetting policy instituted by USCIS

26

in April 2008. Upon information and belief, USCIS first outlined the

27

parameters of CARRP in an April 11, 2008 memorandum addressed

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 10

(2:17-cv-00094-RAJ)

App. 225

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 229 of 518

to field leadership from Deputy Director Jonathan R. Scharfen
1
regarding “Policy for Vetting and Adjudicating Cases with National

2

Security Concerns.” See Declaration of Jennifer Pasquarella in

Support of Plaintiffs’ Motion for Class Certification, Dkt. 27, Ex. A.
3

4

9. “Communication” means the transmittal of information (in

the form of facts, ideas, inquiries, or otherwise), and encompasses

5

every medium of information transmittal, including but not limited

6

to written, graphic, and electronic communication.

7

10. “Defendants,” “You,” “Your,” or any similar word or

8

phrase includes each individual or entity responding to these

requests and, where applicable, each subsidiary, parent, or affiliated

9

entity of each such Person and all Persons acting on its or their

10

behalf.

11

11. “Document” and its plural shall be interpreted in the

12

broadest possible manner and shall mean all written, electronic,

graphic, or printed matter of any kind in Your possession or control,

13

however produced or reproduced, including all originals, drafts,

14

working papers, and all non-identical copies, whether different from

the originals by reason of any notation made on such copies or

15

otherwise, and all other tangible things, including anything that

16

would be a writing or recording as defined in Federal Rule of

Evidence 1001(1) or as defined in Federal Rule of Civil Procedure

17

34(a).

18
12. “Donkey” Security Advisory Opinion means the type of

19

Security Advisory Opinion generated when there are national

security and/or terrorism concerns raised by the visa application.
20

21

13. “Employee” means any director, trustee, officer,

employee, agent, consultant, partner, reseller, distributor, corporate
22
parent, subsidiary, affiliate, or servant of the designated entity,

23

whether active or retired, full-time or part-time, current or former,

and compensated or not.
24

25

14. “First EO” means Executive Order 13769, entitled

“Protecting the Nation from Foreign Terrorist Entry into the United

26

States.” 82 Fed. Reg. 8977 (Feb. 1, 2017).

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 11

(2:17-cv-00094-RAJ)

App. 226

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 230 of 518

15. “Immigration Benefit Application” means any application
1
or petition to confer, certify, change, adjust, or extend any status

2

granted under the Immigration and Nationality Act.

3

16. “Immigration Benefit Applicant” means any individual

4

who has filed an Immigration Benefit Application.

5

17. “National Security Concern” or “NS Concern” means the

6

classification of Immigration Benefit Applications and Immigration

Benefit Applicants that are subjected to CARRP. This includes, but

7

is not limited to, the definition of National Security Concern used in

8

the April 11, 2008 memorandum addressed to field leadership from

Deputy Director Jonathan R. Scharfen regarding “Policy for Vetting

9

and Adjudicating Cases with National Security Concerns”: “A NS

10

[C]oncern exists when an individual or organization has been

determined to have an articulable link to prior, current, or planned

11

involvement in, or association with, an activity, individual, or

12

organization described in sections 212(a)(3)(A), (B), or (F), or

237(a)(4)(A) or (B) of the Immigration and Nationality Act.” See

13

Declaration of Jennifer Pasquarella in Support of Plaintiffs’ Motion

14

for Class Certification, Dkt. 27, Ex. A.

15

18. “Naturalization Application” means an Immigration

16

Benefit Application to naturalize as a U.S. citizen using USCIS

Form N-400.

17

18

19. “Naturalization Applicant” means any individual who has

filed a Naturalization Application.

19

20. “Naturalization Class” means the following class certified
20
by the Court in its Order Granting Class Certification, Dkt. 69: A

21

national class of all persons currently and in the future (1) who have

or will have an application for naturalization pending before USCIS,
22
(2) that is subject to CARRP or a successor “extreme vetting”

23

program, and (3) that has not been or will not be adjudicated by

USCIS within six months of having been filed.
24

25

21. “Person” means an individual, proprietorship, partnership,

firm, corporation, association, governmental agency, or other

26

organization or entity.

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 12

(2:17-cv-00094-RAJ)

App. 227

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 231 of 518

22. “Relate,” “reflect,” or “refer,” in all forms, means, in
1
addition to the customary and usual meaning of those words,

2

concerning, constituting, embodying, describing, evidencing, or

having any logical or factual connection with the subject matter

3

described.

4

23. “Second Amended Complaint” means the Second

5

Amended Complaint for Declaratory and Injunctive Relief, Dkt. 47,

6

filed in the above-captioned action by Plaintiffs on April 4, 2017.

7

24. “Second EO” means Executive Order 13780, entitled

8

“Protecting the Nation from Foreign Terrorist Entry into the United

States.” 82 Fed. Reg. 13209 (Mar. 9, 2017).

9

10

25. “Security Advisory Opinion” means the Document

created in response to a request by a U.S. consulate for a background

11

security check on a foreign national who is applying for a U.S. visa.

12

26. “USCIS” means U.S. Citizenship and Immigration

13

Services, a federal agency that is a component of the United States

14

Department of Homeland Security and is headed by a director,

currently James McCament.

15

16

27. Where appropriate, the singular form of a word should be

interpreted in the plural and vice versa, to acquire the broadest

17

possible meaning.

18
28. Any term defined herein shall have the indicated meaning

19

whenever that term is used in these requests for production unless

the context clearly requires otherwise. All defined terms are
20
indicated by capitalizing the first letter of each term (except “and,”

21

“or,” “relate,” “reflect,” and “refer”), as shown in the instructions

and definitions above.
22

23

OBJECTIONS TO DEFINITIONS

24

1. For purposes of Definitions Nos. 4 and 20, Defendants understand the classes

25 to exclude former unnamed class members whose Adjustment of Status or Naturalization

26

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 13

(2:17-cv-00094-RAJ)

App. 228

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 232 of 518

1 Applications were adjudicated after the classes were certified. See Fed. R. Civ. P. 82;

2 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612-13 (1997).

3

2. Defendants object to Definition No. 5 to the extent that it inaccurately

4 describes A-files and the contents of A-files. See 78 Fed. Reg. 69864 (Nov. 21, 2013).

5 Defendants will treat any reference to A-files to refer to the type of files described in 78

6 Fed. Reg. 69864.

7

3. Defendants object to Definition No. 9 to the extent that it purports to

8 encompass verbal communication as such communication is outside the scope of Rule

9 34.

10

4. For purposes of Definition No. 10, Defendants understand “You” and “Your”

11 with respect to Defendant Duke to extend to the Office of the Secretary as that term is

12 used in the Homeland Security Act of 2003, Pub. L. No 107-296, 116 Stat. 2135 (Nov. 25

13 2002). Defendants do not understand subordinate Department of Homeland Security

14 directorates and agencies further removed from the Secretary to be “applicable”

15 subsidiaries for purposes of this request, as such an understanding would require unduly

16 burdensome and oppressive searches disproportionate to the needs of the case. For

17 example, otherwise applicable subordinate agencies could be read to include the U.S.

18 Coast Guard and the Federal Emergency Management Agency, whose missions have no

19 relation to the claims at issue in this matter.

20

5. For purposes of Definition 10, Defendants understand “You” and “Your” with

21 respect to Defendant Trump to extend to the White House Office as defined by Executive

22 Order 8248, 4 Fed. Reg. 3864 (Sep. 8, 1939), as amended. Defendants do not understand

23 Executive Branch entities further removed from the President to be “applicable”

24 subsidiaries for purposes of this request, as such an understanding would require unduly

25 burdensome and oppressive searches disproportionate to the needs of the case. For

26 example, otherwise applicable subordinate agencies could be read to include the U.S.

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 14

(2:17-cv-00094-RAJ)

App. 229

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 233 of 518

1 Department of Agriculture and the U.S. Department of Veterans Affairs, whose missions

2 have no relation to the claims at issue in this matter.

3

6. Defendants object to Definition 10 to the extent that Plaintiffs seek discovery

4 from the President, as the President is not subject to suit for injunctive relief in the

5 performance of his official duties and the potential benefit of responding to discovery

6 demands is exceedingly slight as compared to the burden of conducting the search and

7 the intrusion on the Executive. The Supreme Court requires Plaintiffs to make a

8 heightened showing of need before they can require a search for, and force the

9 government to determine whether to formally assert privileges with respect to, discovery

10 sought from the President or his close advisers. See Cheney v. U.S. Dist. Ct. for the Dist.

11 of Columbia, 542 U.S. 367 (2004) (reversing Court of Appeals decision that the Vice

12 President and other executive officials must first formally assert privilege before the

13 Court may address their separation-of-powers objections to discovery requests).

14 Plaintiffs have not made such showing, nor have they even suggested that the documents

15 sought cannot be obtained from other government defendants.

16

The Supreme Court in Cheney directed that courts must take special care to ensure

17 that civil discovery requests do not intrude on the “public interest” in (1) “afford[ing]

18 Presidential confidentiality the greatest protection consistent with the fair administration

19 of justice”; and (2) “protecting the Executive Branch from vexatious litigation that might

20 distract it from the energetic performance of its constitutional duties.” Cheney, 542 U.S.

21 at 382. Courts have thus applied Cheney to require a heightened showing of need before

22 imposing the burden of responding to discovery, as the consideration and assertion of

23 applicable privileges in these circumstances must be a “last resort.” United States v.

24 McGraw-Hill Companies, Inc., 2014 WL 8662657, at *8 (C.D. Cal. Sept. 25, 2014); see

25 also Dairyland Power Co-op v. U.S., 79 Fed. Cl. 659, 662 (2007) (“The Court agrees

26 with the Government that, in the case of a discovery request aimed at the President and

27 his close advisors, the White House need not formally invoke the presidential

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 15

(2:17-cv-00094-RAJ)

App. 230

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 234 of 518

1 communications privilege until the party making the discovery request has shown a

2 heightened need for the information sought.”).

3

A showing of heightened need is necessary because, as the Supreme Court has

4 recognized, the separation of powers under our Constitution is directly implicated by

5 subjecting the President to judicial process in matters arising out of the performance of

6 his official duties. Nixon v. Fitzgerald, 457 U.S. 731, 748-55 (1982); cf. Mississippi v.

7 Johnson, 71 U.S. 475, 501 (1866). This is motivated not solely by the concern for

8 maintaining Presidential confidentiality and preventing the need to address difficult

9 separation of powers issues, but also with the distractions created by the burden of

10 responding to discovery requests, and evaluating documents for the assertion of privilege,

11 in light of the President’s weighty official duties. See Cheney, 542 U.S. at 382, 385, 389-

12 90. The Cheney principle also properly avoids embroiling courts in difficult and

13 potentially unnecessary privilege issues implicating the separation of powers. Id.

14

A related principle further precludes discovery from the President in these

15 circumstances. A federal court cannot “enjoin the President in the performance of his

16 official duties.” See Mississippi, 71 U.S. at 501; see also County of Santa Clara v. Trump,

17 17-cv-00574, --- F. Supp. 3d ---, 2017 WL 1459081, at *29 (N.D. Cal. April 25, 2017)

18 (“extraordinary remedy of enjoining the President himself is not appropriate”). A fortiori,

19 a federal court likewise could not compel the President to comply with a civil discovery

20 request. Cf. Fitzgerald, 457 U.S. at 748-55 (holding that the President has absolute

21 immunity for civil liability for acts within his official responsibilities). That conclusion is

22 grounded on the President’s “unique constitutional position” and “respect for separation

23 of powers.” See Franklin v. Massachusetts, 505 U.S. 788, 800 (1992). Although the

24 Supreme Court has recognized limited exceptions permitting judicial process against the

25 President, Clinton v. Jones, 520 U.S. 681, 703, 704 n.39 (1997) (civil discovery permitted

26 where private, rather than official, act was involved); United States v. Nixon, 418 U.S.

27 683, 710-13 (1974) (permitting subpoena directed at President for use in criminal

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 16

(2:17-cv-00094-RAJ)

App. 231

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 235 of 518

1 prosecution), neither of those exceptions is relevant here. Indeed, Plaintiffs seek

2 discovery concerning Executive Orders issued pursuant to statutory authority – the zenith

3 of the President’s constitutional role under Article II. See Youngstown Sheet & Tube Co.

4 v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (“When the President acts

5 pursuant to an express or implied authorization of Congress, his authority is at is

6 maximum, for it includes all that he possesses in his own right plus all that Congress can

7 delegate.”). Under these principles, the President is immune from this kind of civil

8 injunctive action challenging his official conduct. He therefore cannot properly be the

9 subject of discovery in this civil litigation.

10

7. Defendants object to Definition No. 22 insofar as it purports to define “relate,”

11 “reflect,” or “refer,” to include “any logical or factual connection with the subject matter

12 described” as the use of any such terms are not proportional to the needs of the case,

13 overly broad, oppressive, and the burden of a request using any such term would

14 outweigh its benefit. Defendants further object to Definition 22 on the grounds that the

15 terms “relate,” “reflect,” and “refer,” as defined, are overlapping and therefore vague and

16 confusing.

17

18

REQUESTS FOR PRODUCTION

19

REQUEST FOR PRODUCTION NO. 1: All Documents referring or

20

relating to the development, conception, or origins of CARRP.

21
22 OBJECTIONS TO RFP NO. 1:

23
Defendants incorporate here by reference their earlier “Objections Which Apply to All
24
Requests for Production.” Further, Defendants object in part to this request because it is
25
not proportional to the needs of the case, is not important to resolve issues, and the
26
burden of the request outweighs its likely benefit. Based on preliminary inquiries,
27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 17

(2:17-cv-00094-RAJ)

App. 232

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 236 of 518

1 Defendants believe 40 to 50 people were likely involved in development of CARRP, at 2 least some of whom are now no longer employed by USCIS. It would be burdensome, 3 time consuming, and expensive to attempt to identify each individual involved in 4 CARRP, and recover from all those people all Documents dating to nearly ten years ago, 5 referring or relating to the development, conception, and origins of CARRP. 6 Furthermore, the request calls for pre-decisional documents subject to the deliberative 7 process privilege.

8
RESPONSE TO RFP NO. 1:
9

10 Notwithstanding these objections, USCIS will produce non-privileged Documents of 11 national applicability, except those pertaining solely to immigration benefit application 12 types other than adjustment-of-status and naturalization applications, falling within the 13 scope of the request, to the extent such Documents exist and can be located after a 14 reasonable search. Defendants intend to limit their search for Documents responsive to 15 this request to USCIS headquarters and to documents created in 2007 and 2008, as 16 CARRP was developed at USCIS headquarters during that date range.

17

REQUEST FOR PRODUCTION NO. 2: All Documents referring

18

or relating to the implementation of CARRP.

19
OBJECTIONS TO RFP NO. 2:
20
21 Defendants incorporate here by reference their earlier “Objections Which Apply to All 22 Requests for Production.” Further, Defendants object in part to this request because it is 23 not proportional to the needs of the case, not temporally bounded, not limited to the types 24 of Immigration Benefit Applications at issue in this litigation, and could be read to cover 25 all Documents referring or relating to the implementation of CARRP in every individual 26 case subject to CARRP since the program’s inception nearly a decade ago – potentially 27 more than 41,000 individual cases. See Defendants’ Answer, ECF No. 79, ¶¶ 12 & 241.

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 18

(2:17-cv-00094-RAJ)

App. 233

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 237 of 518

1 Furthermore, all Documents “referring” to CARRP is an unduly burdensome request and 2 unlikely to identify relevant Documents that do not also “relate” to CARRP. Read 3 literally, all documents referring or relating to CARRP would involve collection from 85 4 field offices, 26 district offices, 24 international field offices, 5 service centers, 13 5 directorates and program offices, and headquarters, regardless of whether they issued 6 national-level policy or processed the types of immigration benefit applications at issue in 7 this litigation.

8
RESPONSE TO RFP NO. 2:
9

10 Consistent with Plaintiffs’ claims and the definitions of the certified classes, Defendants 11 construe “implementation” as it is used in Request for Production No. 2 to refer to 12 implementation at the national policy level. So construed, Defendants will produce non13 privileged Documents falling within the scope of the request, that pertain to adjustment14 of-status and naturalization applications, to the extent such Documents exist and can be 15 located after a reasonable search.

16

REQUEST FOR PRODUCTION NO. 3: All policy memoranda or

17

other policy Documents referring or relating to CARRP, including

any and all attachments. This request includes but is not limited to

18

policy memoranda produced by USCIS, U.S. Department of

19

Defense, U.S. Department of Homeland Security, U.S. Department

of Justice, U.S. Department of State, U.S. Customs and Border

20

Protection, or the Office of the Director of National Intelligence.

21
OBJECTIONS TO RFP NO. 3:
22

23 Defendants incorporate here by reference their earlier “Objections Which Apply to All

24 Requests for Production.” Further, Defendants object in part to this request because it is

25 not proportional to the needs of the case, is not important to resolve issues, and the

26 burden of the request outweighs its likely benefit. All Documents “referring” to CARRP

27 is an unduly burdensome request and unlikely to identify relevant Documents that do not

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 19

(2:17-cv-00094-RAJ)

App. 234

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 238 of 518

1 also “relate” to CARRP. Additionally, the request is not temporally bounded and seeks

2 documents from a timeframe that extends beyond both the commencement of this case 3 and the date on which any Immigration Benefit Applications were filed by any named 4 plaintiff. Defendants further object on the ground that the request does not define what 5 constitutes a “policy memoranda” or “other policy Document” in that it is unclear exactly 6 what Plaintiffs are seeking. Defendants further object to the request to the extent that it 7 seeks Documents from non-parties U.S. Department of Defense, U.S. Department of 8 Justice, U.S. Department of State, and the Office of the Director of National Intelligence 9 without having followed the applicable Touhy regulations.

10
RESPONSE TO RFP NO. 3:
11

12 Notwithstanding these objections, and consistent with class definitions Defendants will 13 produce non-privileged Documents of national applicability pertaining to adjustment-of14 status and naturalization applications falling within the scope of the request that are in the

15 custody, possession, or control of U.S. Citizenship and Immigration Services or the 16 Secretary of Homeland Security, to the extent such Documents exist and can be located

17 after a reasonable search. Defendants will not produce responsive documents, if any, in

18 the possession, custody, or control of non-party federal agencies or entities identified in 19 the Request. For purposes of this request, Defendants understand “policy memoranda”

20 and “other policy document” to mean documents setting out general goals, plans, 21 priorities, visions, expectations, or objectives on a national or programmatic level from a 22 person occupying a position of authority within an organization to subordinates within

23 that organization, and excluding technical procedures or instructions on how to

24 implement the policy.

25

REQUEST FOR PRODUCTION NO. 4: All operational guidance

26

referring or relating to CARRP, including any and all attachments.

This request includes but is not limited to operational guidance

27

produced by USCIS, U.S. Department of Defense, U.S. Department

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 20

(2:17-cv-00094-RAJ)

App. 235

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 239 of 518

of Homeland Security, U.S. Department of Justice, U.S. Department
1
of State, U.S. Customs and Border Protection, or the Office of the

2

Director of National Intelligence.

3
OBJECTIONS TO RFP NO. 4:
4

5 Defendants incorporate here by reference their earlier “Objections Which Apply to All

6 Requests for Production.” Further, Defendants object in part to this request because it is

7 not proportional to the needs of the case, is not important to resolve issues, and the 8 burden of the request outweighs its likely benefit. All Documents “referring” to CARRP

9 is an unduly burdensome request and unlikely to identify relevant Documents that do not 10 also “relate” to CARRP. Additionally, the request is not temporally bounded and seeks 11 documents from a timeframe that extends beyond both the commencement of this case

12 and the date on which any Immigration Benefit Applications were filed by any named

13 plaintiff. Defendants object on the ground that the request does not define what

14 constitutes “operational guidance” in that it is unclear exactly what Plaintiffs are seeking.

15 Defendants further object to the request to the extent that it seeks Documents from non16 parties U.S. Department of Defense, U.S. Department of Justice, U.S. Department of

17 State, and the Office of the Director of National Intelligence without having followed the

18 applicable Touhy regulations.

19
RESPONSE TO RFP NO. 4:
20

21 Notwithstanding these objections, and consistent with the class definitions Defendants

22 will produce non-privileged Documents of national applicability pertaining to 23 adjustment-of-status and naturalization applications falling within the scope of the

24 request that are in the custody, possession, or control of U.S. Citizenship and 25 Immigration Services or the Secretary of Homeland Security, to the extent such

26 Documents exist and can be located after a reasonable search. Defendants will not

27 produce responsive documents, if any, in the possession, custody, or control of non-party

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 21

(2:17-cv-00094-RAJ)

App. 236

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 240 of 518

1 federal agencies or entities identified in the Request. Defendants understand “operational 2 guidance” as used in this request to mean documents setting out generally or broadly 3 applicable instructions of national scope for executing policy objectives pertaining, to 4 adjustment-of-status and naturalization applications.

5

REQUEST FOR PRODUCTION NO. 5: All training materials

6

referring or relating to CARRP, including any and all attachments.

This requests includes but is not limited to training materials

7

produced by USCIS, U.S. Department of Defense, U.S. Department

8

of Homeland Security, U.S. Department of Justice, U.S. Department

of State, U.S. Customs and Border Protection, or the Office of the

9

Director of National Intelligence.

10
OBJECTIONS TO RFP NO. 5:
11

12 Defendants incorporate here by reference their earlier “Objections Which Apply to All

13 Requests for Production.” Further, Defendants object in part to this request because it is

14 not proportional to the needs of the case, is not important to resolve issues, and the

15 burden of the request outweighs its likely benefit. All Documents “referring” to CARRP

16 is an unduly burdensome request and unlikely to identify relevant Documents that do not

17 also “relate” to CARRP. Defendants further object that the request purports to calls for

18 materials produced at any organizational level, including local field offices that cannot

19 issue guidance of national scope. Additionally, the request is not temporally bounded

20 and seeks documents from a timeframe that extends beyond both the commencement of

21 this case and the date on which any Immigration Benefit Applications were filed by any

22 named plaintiff. Defendants further object on the ground that the request does not define

23 what constitutes “training materials” in that it is unclear exactly what Plaintiffs are

24 seeking. Defendants further object to the request to the extent that it seeks Documents

25 from non-parties U.S. Department of Defense, U.S. Department of Justice, U.S.

26 Department of State, and the Office of the Director of National Intelligence without

27 having followed the applicable Touhy regulations.

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 22

(2:17-cv-00094-RAJ)

App. 237

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 241 of 518

1 RESPONSE TO RFP NO. 5:

2
Notwithstanding these objections, and consistent with the class definitions, Defendants
3
will produce non-privileged Documents of national applicability pertaining to
4
adjustment-of-status and naturalization applications falling within the scope of the
5
request that are in the custody, possession, or control of U.S. Citizenship and
6
Immigration Services or the Secretary of Homeland Security, and which were created by
7
USCIS headquarters or DHS headquarters, to the extent such Documents exist, pertain to
8
adjustment-of-status and naturalization applications, and can be located after a
9
reasonable search. Defendants will not produce responsive documents, if any, in the
10
possession, custody, or control of non-party federal agencies or entities identified in the
11
Request. Defendants understand “training materials” for purposes of this response to
12
mean Documents prepared as part of an official formal course of instruction or as official
13
reference material.
14

REQUEST FOR PRODUCTION NO. 6: All Documents referring
15
or relating to the definition or interpretation of National Security

16

Concern.

17
OBJECTIONS TO RFP NO. 6:
18

19 Defendants incorporate here by reference their earlier “Objections Which Apply to 20 All Requests for Production.” Further, Defendants object in part to this request 21 because it is not proportional to the needs of the case, is not important to resolve 22 issues, and the burden of the request outweighs its likely benefit. A request for all 23 Documents “referring” to the definition or interpretation of National Security 24 Concern is an unduly burdensome request and unlikely to identify relevant 25 Documents that do not also “relate” to the definition or interpretation of National 26 Security Concern. Additionally, the request is not temporally bounded and seeks 27 documents from a timeframe that extends beyond both the commencement of this

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 23

(2:17-cv-00094-RAJ)

App. 238

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 242 of 518

1 case and the date on which any Immigration Benefit Applications were filed by 2 any named plaintiff. Finally, the request could be understood to include all 3 Documents relating to the interpretation of National Security Concern in 4 individual cases or that are issued by subordinate organizational elements and 5 therefore incapable of affecting all class members equally. The request is also 6 objectionable because it could be understood to include individuals whose cases 7 raise Terrorist-Related Inadmissibility Grounds (TRIG), as many of the INA 8 national security grounds used in determining if TRIG applies to a case are also 9 part of identifying a national security concern. However, not all cases with a 10 TRIG issue are handled under CARRP. In general, cases with a minimal or 11 unsubstantial link to an undesignated terrorist organization, regardless of any 12 TRIG considerations, do not rise to the level of sufficient indicators of a 13 connection to an NS ground for the purposes of CARRP. Because these TRIG 14 cases involve national security concerns, but are not generally handled under 15 CARRP, this request would involve materials that are not relevant to the 16 resolution of this case.

17
RESPONSE TO RFP NO. 6:
18

19 Notwithstanding these objections, and consistent with the definitions of the certified 20 classes, Defendants will produce non-privileged Documents in the possession, custody, 21 or control of USCIS, falling within the scope of the request, that pertain to adjustment-of22 status and naturalization applications, are of national applicability, and relate to national 23 security concerns leading to processing under CARRP, to the extent such Documents 24 exist and can be located after a reasonable search.

25

REQUEST FOR PRODUCTION NO. 7: All Documents referring

26

or relating to any and all policies, procedures, guidelines and

training materials relating to the processing and adjudication of

27

Immigration Benefit Applications with a National Security Concern

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 24

(2:17-cv-00094-RAJ)

App. 239

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 243 of 518

from any directorate, department, unit or entity within USCIS,
1
including but not limited to the Fraud Detection and National

2

Security Directorate (FDNS), Domestic Operations Directorate

(DomOps), Service Center Operations Directorate, Field Operations

3

Directorate, Background Check Unit (BDU), and The Screening

4

Coordination Office (SCO) of FDNS.

5
OBJECTIONS TO RFP NO. 7:
6
7 Defendants incorporate here by reference their earlier “Objections Which Apply to All 8 Requests for Production.” Further, Defendants object in part to this request because it is 9 not proportional to the needs of the case, is not important to resolve issues, and the 10 burden of the request outweighs its likely benefit. Read literally, “any unit” within 11 USCIS would include every field office, international field office, service center, 12 directorate, and headquarters regardless of whether they issued national level policy or 13 processed the types of Immigration Benefit Applications at issue in this litigation. 14 Furthermore, Defendants object to this request as it appears to duplicate requests for 15 Documents sought in other requests and it is therefore confusing and unclear exactly 16 what Plaintiffs seek. Additionally, the request is not temporally bounded and seeks 17 documents from a timeframe that extends beyond both the commencement of this case 18 and the date on which any Immigration Benefit Applications were filed by any named 19 plaintiff. Last, the request could be understood to include policies, procedures, 20 guidelines, and training materials related to the handling of cases that raise Terrorist21 Related Inadmissibility Grounds (TRIG), as many of the INA national security grounds 22 used in determining if TRIG applies to a case are also part of identifying a national 23 security concern. However, not all cases with a TRIG issue are handled under CARRP. 24 In general, cases with a minimal or unsubstantial links to an undesignated terrorist 25 organization, regardless of any TRIG considerations, do not rise to the level of sufficient 26 indicators of a connection to an NS ground for the purposes of CARRP. Because these 27 TRIG cases involve national security concerns, but are not generally handled under

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 25

(2:17-cv-00094-RAJ)

App. 240

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 244 of 518

1 CARRP, this request would involve materials that are not relevant to the resolution of 2 this case.

3
RESPONSE TO RFP NO. 7:
4

5 Notwithstanding these objections, and consistent with the definitions of the certified 6 classes, USCIS will produce non-privileged Documents of national applicability that 7 pertain to adjustment-of-status and naturalization applications, and relate to national 8 security concerns leading to processing under CARRP, falling within the request, to the 9 extent such Documents exist and can be located after a reasonable search.

10

REQUEST FOR PRODUCTION NO. 8: All Documents referring

11

or relating to the definition of or interpretation of “national security

indicators” or “national security activities,” as these terms are used

12

and applied under CARRP. This request includes, but is not limited

13

to, any policies, procedures, guidelines, and training materials

referring or relating to the identification of “national security

14

indicators” or “national security activities,” the evaluation of

15

“national security indicators” or “national security activities,” the

relationship between “national security indicators,” “national

16

security activities” and National Security Concerns, and the vetting,

17

deconfliction and resolution of “national security indicators” and “

national security activities.”

18

19 OBJECTIONS TO RFP NO. 8:

20
Defendants incorporate here by reference their earlier “Objections Which Apply to All
21
Requests for Production.” Further, Defendants object in part to this request because it is
22
overbroad, insofar as it is not temporally bounded and seeks documents from a timeframe
23
that extends beyond both the commencement of this case and the date on which any
24
Immigration Benefit Applications were filed by any named plaintiff. A request for all
25
Documents “referring” to the definition or interpretation is an unduly burdensome request
26
and unlikely to identify relevant Documents that do not also “relate” to the relevant
27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 26

(2:17-cv-00094-RAJ)

App. 241

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 245 of 518

1 definition or interpretation. Finally, the request could be understood to include all 2 documents in individual cases or that are issued by subordinate organizational elements 3 and therefore incapable of affecting all class members equally.

4
RESPONSE TO RFP NO. 8:
5

6 Consistent with the class definitions, Defendants will produce non-privileged Documents 7 of national applicability issued from USCIS headquarters relating to the definition of or 8 interpretation of “national security indicators” or “national security activities,” as these 9 terms are used under CARRP for adjustment-of-status and naturalization applications to 10 the extent such Documents exist and can be located after a reasonable search.

11

REQUEST FOR PRODUCTION NO. 9: All Documents referring

12

or relating to the definition of or interpretation of the possible

“articulable links” between a given individual and a “national

13

security indicator” or “national security activity,” as these terms are

14

used and applied under CARRP.

15
OBJECTIONS TO RFP NO. 9:
16
17 Defendants incorporate here by reference their earlier “Objections Which Apply to All 18 Requests for Production.” Further, Defendants object in part to this request because it is 19 not proportional to the needs of the case, is not important to resolve issues, and the 20 burden of the request outweighs its likely benefit. The request purports to call for 21 materials produced at any organizational level, including local field offices that cannot 22 issue guidance of national scope. Also, the request calls for materials not related to the 23 Immigration Benefit Applications at issue in this case.

24
RESPONSE TO RFP NO. 9:
25
26 Consistent with the class definitions, USCIS will produce non-privileged Documents of
27 national applicability issued from USCIS headquarters, pertaining to adjustment-of-status

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 27

(2:17-cv-00094-RAJ)

App. 242

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 246 of 518

1 and naturalization applications falling within the scope of the request to the extent that 2 responsive Documents exist and can be located after a reasonable search. Defendants 3 understand this request as pertaining to generally applicable definitions and 4 interpretations of “articulable links” rather than articulable links specific to a particular 5 individual or individuals.

6

REQUEST FOR PRODUCTION NO. 10: All Documents

7

referring or relating to any policy memoranda or procedures

rescinded by the implementation of CARRP. This request includes,

8

but is not limited to, those policy memoranda and procedures listed

9

as rescinded in the April 11, 2008 USCIS memorandum from

Jonathan R. Scharfen to Field Leadership regarding “Policy for

10

Vetting and Adjudicating Cases with National Security Concerns.”

11

See Declaration of Jennifer Pasquarella in Support of Plaintiffs’

Motion for Class Certification, Dkt. 27, Ex. A at 2-3.

12

13 OBJECTIONS TO RFP NO. 10: Defendants incorporate here by reference their earlier

14 “Objections Which Apply to All Requests for Production.” Further, Defendants object to

15 this request because it is not proportional to the needs of the case, is not important to

16 resolve issues and the burden of the request outweighs its likely benefit. Additionally,

17 the request is not temporally bounded and seeks documents from a timeframe that

18 extends beyond both the commencement of this case and the date on which any

19 Immigration Benefit Applications were filed by any named plaintiff. Furthermore,

20 Defendants object on the ground that any policies or procedures rescinded by CARRP are

21 irrelevant and may call for materials that are local or do not pertain to the Immigration

22 Benefit Applications at issue in this case, and the request for “[a]ll Documents referring

23 or relating” to such rescinded policies or procedures is therefore overbroad, unduly

24 burdensome, oppressive, and disproportionate — as well as irrelevant.

25

26

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 28

(2:17-cv-00094-RAJ)

App. 243

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 247 of 518

1 RESPONSE TO RFP NO. 10:

2
Notwithstanding these objections, USCIS will produce the policy memoranda and
3
procedures listed as rescinded in the April 11, 2008 USCIS memorandum from Jonathan
4
R. Scharfen to Field Leadership regarding “Policy for Vetting and Adjudicating Cases
5
with National Security Concerns,” and other responsive non-privileged Documents to the
6
extent such Documents exist,can be located after a reasonable search, are of national
7
applicability issued from USCIS headquarters, and pertain to adjustment-of-status and
8
naturalization applications.
9

10

REQUEST FOR PRODUCTION NO. 11: All Documents

referring or relating to the connection between Security Advisory

11

Opinion(s) issued by the U.S. Department of State and CARRP. This

request encompasses both connections between CARRP and (1)
12
specific Security Advisory Opinion(s) and (2) the Security Advisory

13

Opinion procedure in general. This request includes, but is not

limited to, any Security Advisory Opinion(s), including Donkey

14

Security Advisory Opinion(s), as well as requests for Security

15

Advisory Opinion(s) that refer or relate to the applications of any

named Plaintiff or any other application subject to CARRP.
16

17 OBJECTIONS TO RFP NO. 11:
18
Defendants incorporate here by reference their earlier “Objections Which Apply to All
19
Requests for Production.” Further, Defendants object to this request in part as it contains
20
multiple overlapping requests and is therefore vague and confusing. Defendants have no
21
responsive documents concerning the Security Advisory Opinion procedure in general as
22
it is a U.S. Department of State program. Defendants object to the request to the extent
23
that the request seeks Documents relating or referring to (1) the connections between
24
CARRP and specific Security Advisory Opinions; (2) requests for Security Advisory
25
Opinions for particular individuals; and (3) specific Security Advisory Opinions referring
26
or relating to any named Plaintiff or any other application subject to CARRP, as any such
27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 29

(2:17-cv-00094-RAJ)

App. 244

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 248 of 518

1 Documents are privileged. It would be unduly burdensome and disproportionate to the 2 needs of the case to search for and log Documents likely to be both privileged and 3 irrelevant. Moreover, Defendants further object as, according to Definition No. 25, 4 Security Advisory Opinions are “created in response to a request made by a U.S. 5 consulate for a background security check on a foreign national who is applying for a 6 U.S. visa” and none of the class members – all of whom are seeking permanent residency 7 or naturalization – are applying for a visa to enter the United States at a U.S. consulate 8 abroad. Furthermore, as Plaintiffs challenge CARRP and other vetting policies on a 9 class-wide basis, the existence and content of individual SAOs is immaterial to their 10 claims. Accordingly, Documents relating or referring to Security Advisory Opinions are 11 therefore not “of consequence in determining” the legality and constitutionality of 12 CARRP or similar policies enacted pursuant to the Second EO. See Fed. R. Evid. 401 13 (defining “relevance”).

14
RESPONSE TO RFP NO. 11:
15

16 Defendants have no responsive documents concerning the Security Advisory Opinion 17 procedure in general, as it is a U.S. Department of State program. USCIS will produce 18 non-privileged, general guidance within their possession, custody, or control concerning 19 the relationship, if any, between Security Advisory Opinions and CARRP. To the extent 20 Defendants may have other responsive documents in their possession, custody, or control, 21 that relate to identifiable individuals, Immigration Benefit Applications, or Security 22 Advisory Opinions, they will be withheld as privileged.

23

REQUEST FOR PRODUCTION NO. 12: All Documents

24

referring or relating to named Plaintiff Abdiqafar Wagafe. This

request includes, but is not limited to, Mr. Wagafe’s Alien File, any

25

records and information stored in the Fraud Detection and National

26

Security Directorate Data System (“FDNS-DS”), e-mail

correspondence, any and all records to which USCIS adjudicators

27

and FDNS officers had access in federal, state, or local databases

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 30

(2:17-cv-00094-RAJ)

App. 245

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 249 of 518

referring or relating to Mr. Wagafe, and any and all records created
1
by any U.S. Department of Homeland Security official referring or

2

relating to Mr. Wagafe.

3
OBJECTIONS TO RFP NO. 12:
4

5 Defendants incorporate here by reference their earlier “Objections Which Apply to All

6 Requests for Production.” Further, Defendants object in part to this request because

7 discovery into individual files is of little importance to resolving allegations concerning 8 class-wide national policy. Every application is adjudicated on its own merits.

9 Defendants further object to producing “all records to which USCIS adjudicators and 10 FDNS officers had access in federal, state, or local databases” because those records or 11 portions of those records may be privileged, the request is not proportional to the needs of

12 the case, is not important to resolve issues, the burden of the request outweighs its likely

13 benefit, the request is not temporally bounded, and mere access to information does not

14 constitute possession, custody, or control of that information, or imply that such

15 information was acted upon in processing or adjudicating the application. To the extent 16 the request calls for information in the possession, custody, or control of a non-party

17 federal agency, Plaintiffs have failed to follow the applicable Touhy regulations. To the

18 extent the request calls for information in the possession, custody, or control of a state of 19 local entity, Plaintiffs are better placed than Defendants to demand such documents by

20 serving a subpoena on the relevant entity. Defendants further object to producing “all 21 records created by any U.S. Department of Homeland Security official” because 22 coordination with subordinate agencies whose work is not related to immigration, such as

23 FEMA or the U.S. Coast Guard, is not relevant or proportional to the needs of the case.

24
RESPONSE TO RFP NO. 12:
25

26 Notwithstanding these objections, USCIS will produce non-privileged portions of

27 Plaintiff Wagafe’s A-File, non-privileged data stored in FDNS-DS concerning Plaintiff

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 31

(2:17-cv-00094-RAJ)

App. 246

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 250 of 518

1 Wagafe to the extent such Documents exist, and non-privileged email correspondence 2 contained in the A-File to the extent such email correspondence exists.

3

REQUEST FOR PRODUCTION NO. 13: All Documents

4

referring or relating to the reasons why Plaintiff Abdiqafar Wagafe’s

naturalization application was subject to CARRP.

5

6 OBJECTION TO RFP NO. 13:

7
Defendants incorporate here by reference their earlier “Objections Which Apply to All
8
Requests for Production.” Further, Defendants object to this request insofar as it assumes
9
that Plaintiff Wagafe’s naturalization application was subject to CARRP. Defendants can
10
neither confirm nor deny that Plaintiff Wagafe’s naturalization application was subject to
11
CARRP as this information is privileged.
12

13 RESPONSE TO RFP NO. 13:

14
To the extent responsive Documents exist, USCIS intends to withhold such Documents,
15
as disclosure of the fact that such documents exist would negate the privilege, and any
16
such documents are, themselves, likely to be privileged.
17

18

REQUEST FOR PRODUCTION NO. 14: All Documents

referring or relating to named Plaintiff Mehdi Ostadhassan. This

19

request includes, but is not limited to, Mr. Ostadhassan’s Alien File,

20

any records and information stored in the Fraud Detection and

National Security Directorate Data System (“FDNS-DS”), e-mail

21

correspondence, any and all records to which USCIS adjudicators

22

and FDNS officers had access in federal, state, or local databases

referring or relating to Mr. Ostadhassan, and any and all records

23

created by any U.S. Department of Homeland Security official

referring or relating to Mr. Ostadhassan.
24

25

26

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 32

(2:17-cv-00094-RAJ)

App. 247

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 251 of 518

1 OBJECTIONS TO RFP NO. 14:

2
Defendants incorporate here by reference their earlier “Objections Which Apply to All
3
Requests for Production.” Further, Defendants object in part to this request because
4
discovery into individual files is of little importance to resolve allegations concerning
5
class-wide national policy. Every application is adjudicated on its own merits.
6
Defendants further object to producing “all records to which USCIS adjudicators and
7
FDNS officers had access in federal, state, or local databases” because those records or
8
portions of those records may be privileged, the request is not proportional to the needs of
9
the case, is not important to resolve issues, the burden of the request outweighs its likely
10
benefit, the request is not temporally bounded, and mere access to information does not
11
constitute possession, custody, or control of that information, or imply that such
12
information was acted upon in processing or adjudicating the application. To the extent
13
the request calls for information in the possession, custody, or control of a non-party
14
federal agency, Plaintiffs have failed to follow the applicable Touhy regulations. To the
15
extent the request calls for information in the possession, custody, or control of a state of
16
local entity, Plaintiffs are better placed than Defendants to demand such documents by
17
serving a subpoena on the relevant entity. Defendants further object to producing “all
18
records created by any U.S. Department of Homeland Security official” because
19
coordination with subordinate agencies whose work is not related to immigration is not
20
proportional to the needs of the case.
21

22 RESPONSE TO RFP NO. 14:

23
Notwithstanding these objections, USCIS will produce non-privileged portions of
24
Plaintiff Ostadhassan’s A-File, non-privileged data stored in FDNS-DS concerning
25
Plaintiff Ostadhassan to the extent such Documents exist, and non-privileged email
26
correspondence contained in the A-File, to the extent such email correspondence exists.
27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 33

(2:17-cv-00094-RAJ)

App. 248

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 252 of 518

REQUEST FOR PRODUCTION NO. 15: All Documents
1
referring or relating to the reasons why Plaintiff Mehdi

2

Ostadhassan’s adjustment of status application was subject to

CARRP.
3

4 OBJECTION TO RFP NO. 15:
5
Defendants incorporate here by reference their earlier “Objections Which Apply to All
6
Requests for Production.” Further, Defendants object to this request insofar as it assumes
7
that Plaintiff Ostadhassan’s adjustment of status application was subject to CARRP.
8
Defendants can neither confirm nor deny that Plaintiff Ostadhassan’s adjustment of status
9
application was subject to CARRP as this information is privileged.
10

11 RESPONSE TO RFP NO. 15:

12
To the extent responsive Documents exist, USCIS intends to withhold such Documents,
13
as disclosure of the fact such documents exist would negate the privilege, and any such
14
documents are, themselves, likely to be privileged.
15

16

REQUEST FOR PRODUCTION NO. 16: All Documents

referring or relating to named Plaintiff Hanin Omar Bengezi. This

17

request includes, but is not limited to, Ms. Bengezi’s Alien File, any

18

records and information stored in the Fraud Detection and National

Security Directorate Data System (“FDNS-DS”), e-mail

19

correspondence, any and all records to which USCIS adjudicators

20

and FDNS officers had access in federal, state, or local databases

referring or relating to Ms. Bengezi, and any and all records created

21

by any U.S. Department of Homeland Security official referring or

22

relating to Ms. Bengezi.

23 OBJECTIONS TO RFP NO. 16:
24
25 Defendants incorporate here by reference their earlier “Objections Which Apply to All 26 Requests for Production.” Further, Defendants object in part to this request because 27 discovery into individual files is of little importance to resolve allegations concerning

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 34

(2:17-cv-00094-RAJ)

App. 249

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 253 of 518

1 class-wide national policy. Every application is adjudicated on its own merits. 2 Defendants further object to producing “all records to which USCIS adjudicators and 3 FDNS officers had access in federal, state, or local databases” because those records or 4 portions of those records may be privileged, the request is not proportional to the needs of 5 the case, is not important to resolve issues, the burden of the request outweighs its likely 6 benefit, the request is not temporally bounded, and mere access to information does not 7 constitute possession, custody, or control of that information, or imply that such 8 information was acted upon in processing or adjudicating the application. To the extent 9 the request calls for information in the possession, custody, or control of a non-party 10 federal agency, Plaintiffs have failed to follow the applicable Touhy regulations. To the 11 extent the request calls for information in the possession, custody, or control of a state of 12 local entity, Plaintiffs are better placed than Defendants to demand such documents by 13 serving a subpoena on the relevant entity. Defendants further object to producing “all 14 records created by any U.S. Department of Homeland Security official” because 15 coordination with subordinate agencies whose work is not related to immigration is not 16 proportional to the needs of the case.

17
RESPONSE TO RFP NO. 16:
18
19 Notwithstanding these objections, USCIS will produce non-privileged portions of
20 Plaintiff Bengezi’s A-File, non-privileged data stored in FDNS-DS concerning Plaintiff
21 Bengezi to the extent such Documents exist, and non-privileged email correspondence
22 contained in the A-File, to the extent such email correspondence exists.

23

REQUEST FOR PRODUCTION NO. 17: All Documents

24

referring or relating to the reasons why Plaintiff Hanin Omar

Bengezi’s adjustment of status application was subject to CARRP.
25

26

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 35

(2:17-cv-00094-RAJ)

App. 250

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 254 of 518

1 OBJECTIONS TO RFP NO. 17:

2
Defendants incorporate here by reference their earlier “Objections Which Apply to All
3
Requests for Production.” Further, Defendants object to this request insofar as it assumes
4
that Plaintiff Bengezi’s naturalization application was subject to CARRP. Defendants
5
can neither confirm nor deny that Plaintiff Bengezi’s naturalization application was
6
subject to CARRP as this information is privileged.
7
8 RESPONSE TO RFP NO. 17:

9
To the extent responsive Documents exist, USCIS intends to withhold such Documents,
10
as disclosure of the fact such documents exist would negate the privilege, and any such
11
documents are, themselves, likely to be privileged.
12

13

REQUEST FOR PRODUCTION NO. 18: All Documents

referring or relating to named Plaintiff Noah Adam Abraham, f/k/a

14

Mushtaq Abed Jihad. This request includes, but is not limited to, Mr.

15

Abraham’s Alien File, any records and information stored in the

Fraud Detection and National Security Directorate Data System

16

(“FDNS-DS”), e-mail correspondence, any and all records to which

USCIS adjudicators and FDNS officers had access in federal, state,
17
or local databases referring or relating to Mr. Abraham, and any and

18

all records created by any U.S. Department of Homeland Security

official referring or relating to Mr. Abraham.
19

20 OBJECTIONS TO RFP NO. 18:
21
Defendants incorporate here by reference their earlier “Objections Which Apply to All
22
Requests for Production.” Further, Defendants object in part to this request because
23
discovery into individual files is of little importance to resolve allegations concerning
24
class-wide national policy. Every application is adjudicated on its own merits.
25
Defendants further object to producing “all records to which USCIS adjudicators and
26
FDNS officers had access in federal, state, or local databases” because those records or
27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 36

(2:17-cv-00094-RAJ)

App. 251

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 255 of 518

1 portions of those records may be privileged, the request is not proportional to the needs of 2 the case, is not important to resolve issues, the burden of the request outweighs its likely 3 benefit, the request is not temporally bounded, and mere access to information does not 4 constitute possession, custody, or control of that information, or imply that such 5 information was acted upon in processing or adjudicating the application. To the extent 6 the request calls for information in the possession, custody, or control of a non-party 7 federal agency, Plaintiffs have failed to follow the applicable Touhy regulations. To the 8 extent the request calls for information in the possession, custody, or control of a state of 9 local entity, Plaintiffs are better placed than Defendants to demand such documents by 10 serving a subpoena on the relevant entity. Defendants further object to producing “all 11 records created by any U.S. Department of Homeland Security official” because 12 coordination with subordinate agencies whose work is not related to immigration is not 13 proportional to the needs of the case.

14
RESPONSE TO RFP NO. 18:
15

16 Notwithstanding these objections, USCIS will produce non-privileged portions of 17 Plaintiff Jihad’s A-File, non-privileged data stored in FDNS-DS concerning Plaintiff 18 Jihad to the extent such Documents exist, and non-privileged email correspondence 19 contained in the A-File, to the extent such email correspondence exists.

20

REQUEST FOR PRODUCTION NO. 19: All Documents

21

referring or relating to the reasons why Plaintiff Noah Adam

Abraham, f/k/a Mushtaq Abed Jihad’s naturalization application was

22

subject to CARRP.

23
OBJECTIONS TO RFP NO. 19:
24

25 Defendants incorporate here by reference their earlier “Objections Which Apply to All

26 Requests for Production.” Further, Defendants object to this request insofar as it assumes

27 that Plaintiff Jihad’s naturalization application was subject to CARRP. Defendants can

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 37

(2:17-cv-00094-RAJ)

App. 252

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 256 of 518

1 neither confirm nor deny that Plaintiff Jihad’s naturalization application was subject to 2 CARRP as this information is privileged.

3
RESPONSE TO RFP NO. 19:
4

5 To the extent responsive Documents exist, USCIS intends to withhold such Documents, 6 as disclosure of the fact such documents exist would negate the privilege, and any such 7 documents are, themselves, likely to be privileged.

8

REQUEST FOR PRODUCTION NO. 20: All Documents

9

referring or relating to the Immigration Benefit Application(s) of

named Plaintiff Sajeel Manzoor. This request includes, but is not

10

limited to, Mr. Manzoor’s Alien File, any records and information

11

stored in the Fraud Detection and National Security Directorate Data

System (“FDNS-DS”), e-mail correspondence, any and all records to

12

which USCIS adjudicators and FDNS officers had access in federal,

13

state, or local databases referring or relating to Mr. Manzoor, and

any and all records created by any U.S. Department of Homeland

14

Security official referring or relating to Mr. Manzoor.

15
OBJECTIONS TO RFP NO. 20:
16

17 Defendants incorporate here by reference their earlier “Objections Which Apply to All

18 Requests for Production.” Further, Defendants object in part to this request because

19 discovery into individual files is of little importance to resolve allegations concerning

20 class-wide national policy. Every application is adjudicated on its own merits.

21 Defendants further object to producing “all records to which USCIS adjudicators and

22 FDNS officers had access in federal, state, or local databases” because those records or

23 portions of those records may be privileged, the request is not proportional to the needs of

24 the case, is not important to resolve issues, the burden of the request outweighs its likely

25 benefit, the request is not temporally bounded, and mere access to information does not

26 constitute possession, custody, or control of that information, or imply that such

27 information was acted upon in processing or adjudicating the application. To the extent

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 38

(2:17-cv-00094-RAJ)

App. 253

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 257 of 518

1 the request calls for information in the possession, custody, or control of a non-party 2 federal agency, Plaintiffs have failed to follow the applicable Touhy regulations. To the 3 extent the request calls for information in the possession, custody, or control of a state of 4 local entity, Plaintiffs are better placed than Defendants to demand such documents by 5 serving a subpoena on the relevant entity. Defendants further object to producing “all 6 records created by any U.S. Department of Homeland Security official” because 7 coordination with subordinate agencies whose work is not related to immigration is not 8 proportional to the needs of the case.

9
RESPONSE TO RFP NO. 20:
10

11 Notwithstanding these objections, USCIS will produce non-privileged portions of 12 Plaintiff Manzoor’s A-File, non-privileged data stored in FDNS-DS concerning Plaintiff 13 Manzoor to the extent such Documents exist, and non-privileged email correspondence 14 contained in the A-File, to the extent such email correspondence exists.

15

REQUEST FOR PRODUCTION NO. 21: All Documents

16

referring or relating to the reasons why Plaintiff Sajeel Manzoor’s

naturalization application was subject to CARRP.
17

18 OBJECTIONS TO RFP NO. 21: Defendants incorporate here by reference their earlier 19 “Objections Which Apply to All Requests for Production.” Further, Defendants object to 20 this request insofar as it assumes that Plaintiff Manzoor’s naturalization application was 21 subject to CARRP. Defendants can neither confirm nor deny that Plaintiff Manzoor’s 22 naturalization application was subject to CARRP as this information is privileged.

23
RESPONSE TO RFP NO. 21:
24

25 To the extent responsive documents exists, USCIS intends to withhold such documents,

26 as disclosure of the fact such documents exits would negate the privilege, and any such

27 documents are, themselves, likely to be privileged.

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 39

(2:17-cv-00094-RAJ)

App. 254

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 258 of 518

REQUEST FOR PRODUCTION NO. 22: All Documents
1
referring or relating to any proposed, implemented, or planned

2

modifications to CARRP from April 11, 2008 to the present.

3
OBJECTIONS TO RFP NO. 22:
4
5 Defendants incorporate here by reference their earlier “Objections Which Apply to All
6 Requests for Production.” Further, Defendants object in part to this request because
7 Documents referring or relating to proposed or planned modifications are subject to
8 privilege, and not relevant to the issues in this case. Further, this request is not limited to
9 the types of Immigration Benefit Applications at issue in this litigation.

10
RESPONSE TO RFP NO. 22:
11

12 USCIS will produce non-privileged Documents referring or relating to modifications to 13 CARRP implemented from April 11, 2008, to the present to the extent such Documents 14 exist, are of national applicability, and relate to adjustment-of-status and naturalization 15 applications, and can be located after a reasonable search.

16

REQUEST FOR PRODUCTION NO. 23: All Documents

17

referring or relating to any consideration of or reference to CARRP

during the planning, drafting, or issuing of the First and Second EOs.
18

19 OBJECTION TO RFP NO. 23:
20
Defendants incorporate here by reference their earlier “Objections Which Apply to All
21
Requests for Production.” Further, Defendants object to this request as calling for the
22
production of privileged information. Defendants further object to producing Documents
23
referring or relating to the First EO as it was rescinded by the Second EO and is therefore
24
moot. Defendants further object to producing documents referring or relating to those
25
sections of the Second EO that do not relate to processing of adjustment-of-status and
26

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 40

(2:17-cv-00094-RAJ)

App. 255

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 259 of 518

1 naturalization applications as they are neither relevant nor proportional to the needs of the 2 case.

3
RESPONSE TO RFP NO. 23:
4

5 To the extent responsive Documents exist, Defendants intend to withhold them as 6 privileged.

7

REQUEST FOR PRODUCTION NO. 24: All Documents

8

referring or relating to “extreme vetting” or any other screening,

vetting, or adjudication program, policy, or procedure connected to

9

the First or Second EOs. This request includes, but is not limited to,

10

programs that reference, relate to, or expand upon CARRP.

11
OBJECTIONS TO RFP NO. 24:
12
13 Defendants incorporate here by reference their earlier “Objections Which Apply to All 14 Requests for Production.” Further, Defendants object in part to this request because it is 15 overly broad and unduly burdensome as it extends beyond Plaintiffs’ claims and the class 16 members at issue in this litigation to include any screening, vetting, or adjudication 17 program, policy or procedure connected to the First and Second EOs without regard to 18 whether adjustment-of-status and naturalization applicants would be processed in 19 accordance with such program, policy, or procedure. Defendants also object on the 20 ground that “extreme vetting” is a vague and undefined term, and it is therefore unclear 21 exactly what Plaintiffs seek. Furthermore, the request is overly broad and unduly 22 burdensome as the Second EO requires interagency coordination with non-parties. To 23 the extent that Defendants seek Documents from non-party federal entities, Plaintiffs 24 have failed to follow the applicable Touhy regulations for such entities. Defendants 25 further object to producing Documents referring or relating to the First EO as it was 26 rescinded by the Second EO and is therefore moot, and to producing documents referring 27 or relating to those sections of the Second EO that do not relate to processing of

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 41

(2:17-cv-00094-RAJ)

App. 256

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 260 of 518

1 adjustment-of-status and naturalization applications, as they are neither relevant nor 2 proportional to the needs of the case. Defendants further object to providing any 3 Documents connected to the First or Second EOs unless the program, policy, or 4 procedure is intended to expand or modify CARRP. This is consistent with the court’s 5 ruling that “The main thrust of this case is the legality of CARRP. The Court will not 6 dismiss Plaintiffs’ claims because they include allegations of a possible future and 7 unlawful program that would embody CARRP in all but name.” ECF 69, at 15. 8 Defendants thus object to any discovery into programs, policies, and procedures 9 connected to the First and Second EOs that are intended to do other than “embody 10 CARRP in all but name.”

11
RESPONSE TO RFP NO. 24:
12

13 Notwithstanding these objections, USCIS will produce non-privileged responsive 14 Documents connected to the Second EO, relating to any program, policy, or procedure 15 for screening, vetting, or adjudicating adjustment-of-status or naturalization applications 16 within the custody, possession, or control of USCIS to the extent such Documents exist, 17 are of national applicability, are intended to expand or modify CARRP such that they 18 would embody CARRP in all but name, and can be located after a reasonable search.

19

REQUEST FOR PRODUCTION NO. 25: All Documents

20

referring or relating to the relationship between CARRP and any

other preexisting or planned policy, program, standard, or procedure

21

for screening, vetting, or adjudicating Immigration Benefit

22

Applications.

23
OBJECTIONS TO RFP NO. 25:
24
25 Defendants incorporate here by reference their earlier “Objections Which Apply to All 26 Requests for Production.” Further, Defendants object in part to this request because it 27 extends beyond Plaintiffs’ claims and the class members at issue in this litigation to

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 42

(2:17-cv-00094-RAJ)

App. 257

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 261 of 518

1 include any preexisting or planned policy, program, standard, or procedure for screening, 2 vetting, or adjudicating any Immigration Benefit Application without regard to whether 3 adjustment-of-status and naturalization applicants would be processed in accordance with 4 such policy, program, standard, or procedure. See Fed. R. Evid. 401 (defining 5 “relevance”). Also, Defendants object in part that the term “relationship” is vague and an 6 attenuated understanding of “relationship” would be overly broad, unduly burdensome, 7 oppressive, and disproportionate to the needs of the litigation because under such an 8 understanding CARRP could relate to all applications adjudicated by USCIS. 9 Furthermore, Documents referring or relating to planned policies, programs, standards, 10 and procedures are subject to privilege. Consistent with the Court’s June 21, 2017 Order, 11 Defendants will only produce documents for preexisting programs to the extent those 12 programs are intended to expand upon or modify CARRP such that they would embody 13 CARRP in all but name.

14
RESPONSE TO RFP NO. 25:
15
16 Notwithstanding these objections, USCIS will produce non-privileged Documents of 17 national applicability falling within the scope of the request that concern a direct 18 relationship between CARRP and another pre-existing policy, program, standard, or 19 procedure for screening, vetting, or adjudicating adjustment-of-status or naturalization 20 applications, to the extent such Documents exist and can be located after a reasonable 21 search.

22

REQUEST FOR PRODUCTION NO. 26: All Documents

23

referring or relating to “extreme vetting” or any other program,

policy or procedure to identify, screen, vet, or adjudicate

24

naturalization or adjustment of status applications where a National

25

Security Concern is present.

26

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 43

(2:17-cv-00094-RAJ)

App. 258

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 262 of 518

1 OBJECTIONS TO RFP NO. 26:

2
Defendants incorporate here by reference their earlier “Objections Which Apply to
3
All Requests for Production.” Further, Defendants object to this request because it
4
is overly broad and unduly burdensome, not proportional to the needs of the case,
5
is not important to resolve issues concerning CARRP or the First or Second EOs,
6
the burden of the request outweighs its likely benefit, and the request is not
7
temporally bounded. Other programs pre-dating the Second EO are not “of
8
consequence in determining” the legality and constitutionality of CARRP or
9
similar policies enacted pursuant to the Second EO. See Fed. R. Evid. 401
10
(defining “relevance”). Additionally, Defendants object that “extreme vetting” is
11
a vague and undefined term, and it is therefore unclear exactly what Plaintiffs
12
seek. Last, the request could be understood to include individuals whose cases
13
raise Terrorist-Related Inadmissibility Grounds (TRIG), as many of the INA
14
national security grounds used in determining if TRIG applies to a case are also
15
part of identifying a national security concern. However, not all cases with a
16
TRIG issue are handled under CARRP. In general, cases with a minimal or
17
unsubstantial links to an undesignated terrorist organization, regardless of any
18
TRIG considerations, do not rise to the level of sufficient indicators of a
19
connection to an NS ground for the purposes of CARRP. Because these TRIG
20
cases involve national security concerns, but are not generally handled under
21
CARRP, this request would involve materials that are not relevant to the
22
resolution of this case.
23
24 RESPONSE TO RFP NO. 26:

25
Notwithstanding these objections, USCIS will produce non-privileged Documents falling
26
within the scope of the request that are dated on or after April 11, 2017, that are either
27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 44

(2:17-cv-00094-RAJ)

App. 259

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 263 of 518

1 related to CARRP or were promulgated in response to the Second EO in an effort to 2 expand or modify CARRP such that the change would embody CARRP in all but name, 3 and that relate to national security concerns leading to processing under CARRP, to the 4 extent such Documents exist and can be located after a reasonable search.

5

REQUEST FOR PRODUCTION NO. 27: All Documents

6

referring or relating to the number of Immigration Benefit

Applications subject to CARRP or designated as a National Security

7

Concern at any point from 2008 to the present. This request includes,

8

but is not limited, to all National Security Monthly Case Load and

Aging Reports, National Security Quarterly Workload and Aging

9

Reports, and any other periodic reports, data, or statistics related to

10

CARRP, including those that break down applications by country of

origin, citizenship, religion, or any other demographics.

11

12 OBJECTIONS TO RFP NO 27:

13
Defendants incorporate here by reference their earlier “Objections Which Apply to All
14
Requests for Production.” Further, Defendants object in part to this request because it is
15
overly broad and unduly burdensome, and the burden of complying with the request
16
outweighs its likely benefit, in part because the request is not limited to the types of
17
Immigration Benefit Applications at issue in this litigation, in part because the request
18
seeks documents from a timeframe that extends beyond both the commencement of this
19
case and the date on which any Immigration Benefit Applications were filed by any
20
named plaintiff. To the extent Plaintiffs seek Documents related to cases with National
21
Security concerns that are not subject to CARRP, such Documents are not proportional to
22
the needs of the case, and are not relevant to resolving issues concerning CARRP or the
23
First or Second EOs. Further, this request could literally encompass any report created
24
by a local office for any purpose, and it would be unduly burdensome to search every
25
possible office that might have produced such any such report.
26

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 45

(2:17-cv-00094-RAJ)

App. 260

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 264 of 518

1 RESPONSE TO RFP NO. 27:

2
USCIS will produce responsive Documents to the extent they exist in the form sought,
3
were created or generated by the Results and Analysis Branch (“RAB”) of FDNS, relate
4
to adjustment-of-status and naturalization applications, are of national scope, and can be
5
located after a reasonable search. Defendants understand this request to call for
6
Documents already in existence and not to require Defendants to create a Document to
7
answer a question that would more appropriately be served as an interrogatory and
8
subject to the numerical limits under Rule 33.
9

10

REQUEST FOR PRODUCTION NO. 28: All Documents

referring to, relating to, or reflecting the age, sex, country of origin,

11

country of citizenship, religion, race, ethnicity, or other

demographics of Immigration Benefit Applicants who have been
12
identified as a National Security Concern or otherwise subjected to

13

CARRP, including application processing times.

14
OBJECTIONS TO RFP NO. 28:
15
16 Defendants incorporate here by reference their earlier “Objections Which Apply to All 17 Requests for Production.” Further, Defendants object to this request as over broad, 18 unduly burdensome, disproportionate to the needs of the litigation, and oppressive, to the 19 extent that it would require individual review of every A-file of every individual 20 applicant identified as a National Security Concern or who filed an Immigration Benefit 21 Application that was processed under CARRP. The A file is maintained in paper and 22 would require time-consuming and labor intensive work to collect Documents containing 23 the demographic information sought. Moreover, this request would be disproportionate 24 given that there is no guarantee that the information contained in the A file would have 25 been reviewed at the time the determination to process the application under CARRP was 26 made. Additionally, this request seeks documents not just for class members, and not just

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 46

(2:17-cv-00094-RAJ)

App. 261

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 265 of 518

1 for adjustment-of-status and naturalization applicants, but for every Immigration Benefit 2 Application ever processed under CARRP or identified as a National Security Concern.

3
RESPONSE TO RFP NO. 28:
4

5 USCIS will produce responsive Documents to the extent they pertain to adjustment-of6 status and naturalization applicants, are produced or created by a USCIS headquarters 7 component, and can be located after a reasonable search. Defendants understand this 8 request to seek existing documents reflecting or reporting compilations of demographic 9 data, and not to include every separate document in the possession, custody, or control of 10 USCIS that in any way reflects a piece of demographic information, e.g., a date of birth, 11 about a person who also happens to have been identified as a National Security concern 12 or whose application is or was subject to handling under CARRP. Further, Defendants 13 understand a reasonable search for purposes of this request to exclude Documents 14 contained in individual A files, as a search of that scope would not be reasonable or 15 proportionate to the needs of the litigation and otherwise objectionable as explained 16 above. Defendants further understand this request to call for Documents already in 17 existence and not to require Defendants to create a Document to answer a question that 18 would more appropriately be served as an interrogatory and subject to the numerical 19 limits under Rule 33.

20

REQUEST FOR PRODUCTION NO. 29: All Documents referring or

21

relating to any program, policy or procedure to identify, screen, vet, or

adjudicate naturalization or adjustment of status applications based on

22

national origin.

23
RESPONSE NO. 29:
24

25 Defendants understand the term “national origin” to refer to a person’s country of origin,

26 or the country of origin of a person’s ancestors. Defendants have no documents

27 responsive to this request.

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 47

(2:17-cv-00094-RAJ)

App. 262

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 266 of 518

REQUEST FOR PRODUCTION NO. 30: All Documents referring or
1
relating to any program, policy or procedure to identify, screen, vet, or

2

adjudicate naturalization or adjustment of status applications based on

religion.
3

4 RESPONSE NO. 30:

5
Defendants have no documents responsive to this request.
6

7

REQUEST FOR PRODUCTION NO. 31: All Documents referring or

relating to any program, policy or procedure to identify, screen, vet, or

8

adjudicate naturalization or adjustment of status applications based on race

9

or ethnicity.

10
RESPONSE NO. 31:
11
12 Defendants have no documents responsive to this request.

13

REQUEST FOR PRODUCTION NO. 32: All Documents that any

14

Defendant contends support any denial of any allegation in the Second

Amended Complaint, or that any Defendant relies upon in denying any of

15

the allegations in the Second Amended Complaint.

16
RESPONSE NO. 32:
17
Defendants will produce non-privileged, responsive documents.
18

19

REQUEST FOR PRODUCTION NO. 33: All Documents that any

Defendant contends support any affirmative defense set forth in response to

20

the Second Amended Complaint, or that any Defendant relies upon in

21

asserting any affirmative defense set forth in response to the Second

Amended Complaint.

22

23 RESPONSE NO. 33:

24
Defendants will produce non-privileged, responsive documents.

25

REQUEST FOR PRODUCTION NO. 34: All Documents sufficient to

26

identify members of the Naturalization Class, including, but not limited to,

27

any list that might exist identifying those who are or have been subject to

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 48

(2:17-cv-00094-RAJ)

App. 263

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 267 of 518

CARRP, and, where available, the following identifying information for
1
each class member: name, A-number, age, sex, country of origin, country

2

of citizenship, religion, race, ethnicity, date the naturalization application

was filed, and current status of the naturalization application.
3

4 OBJECTIONS TO RFP NO. 34:
5
Defendants incorporate here by reference their earlier “Objections Which Apply to All
6
Requests for Production.” Further, Defendants object to this request, specifically to
7
identifying members of the Naturalization Class by name and A-number, as this
8
information is privileged. Furthermore, Defendants object to this request because the
9
identity of the class members is not relevant to the claims or defenses in this case which,
10
as the Court previously explained, concerns Plaintiffs’ “allegation that an extra-statutory
11
policy based on discriminatory and illegal criteria is blocking the fair adjudication of
12
immigration benefits.” ECF No. 69 at 17. The identity of individual class members, as
13
distinct from their anonymized demographic information, is not “of consequence in
14
determining” any claim or defense in this action. See Fed. R. Evid. 401 (defining
15
“relevance”). Defendants further object to this request as unduly burdensome insofar as
16
it is read to request a copy of the A file of every class member, or a copy of the data in
17
FDNS-DS, CLAIMS, or any other electronic information system for every single class
18
member. Consequently, Defendants interpret this request to mean a preexisting
19
aggregated list or compilation by a USCIS headquarters component, and not a copy of
20
any document that may reference a class member.
21

22 RESPONSE TO RFP NO. 34:
23
Notwithstanding these objections, and understanding this request only to call for the
24
production of any list or compilation of data concerning naturalization class members and
25
reflecting the requested information, and not to include documents in individual A files,
26
or otherwise pertaining to an individual, even if the requested information could be
27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 49

(2:17-cv-00094-RAJ)

App. 264

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 268 of 518

1 gleaned from such documents, USCIS will produce non-privileged responsive 2 Documents or portions of Documents to the extent they exist in the form sought, were 3 produced by a USCIS headquarters component, and can be located following a 4 reasonable search, excluding names and A numbers. Defendants understand this request 5 to call for Documents already in existence and not to require Defendants to create a 6 Document to answer a question that would more appropriately be served as an 7 interrogatory and subject to the numerical limits under Rule 33.

8

REQUEST FOR PRODUCTION NO. 35: All Documents sufficient to

9

identify all members of the Adjustment Class, including, including, but not

limited to, any list that might exist identifying those who are or have been

10

subject to CARRP, and, where available, the following identifying

11

information for each class member: name, A-number, age, sex, country of

origin, country of citizenship, religion, race, ethnicity, date the adjustment

12

application was filed, and current status of the adjustment application.

13
OBJECTIONS TO RFP NO. 35:
14

15 Defendants incorporate here by reference their earlier “Objections Which Apply to All

16 Requests for Production.” Further, Defendants object in part to this request, specifically

17 to identifying members of the Adjustment Class by name and A-number, as this

18 information is privileged. Furthermore, Defendants object to this request because the

19 identity of the class members is not relevant to the claims or defenses in this case which,

20 as the Court previously explained, concerns Plaintiffs’ “allegation that an extra-statutory

21 policy based on discriminatory and illegal criteria is blocking the fair adjudication of

22 immigration benefits.” ECF No. 69 at 17. The identity of individual class members, as

23 distinct from their anonymized demographic information, is not “of consequence in

24 determining” any claim or defense in this action. See Fed. R. Evid. 401 (defining

25 “relevance”). Defendants further object to this request as unduly burdensome insofar as

26 it is read to request a copy of the A file of every class member, or a copy of the data in

27 FDNS-DS, CLAIMS, or any other electronic information system of every single class

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 50

(2:17-cv-00094-RAJ)

App. 265

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 269 of 518

1 member. Defendants interpret this request to mean a preexisting aggregated list or 2 compilation by a USCIS headquarters component, and not a copy of any document that 3 may reference a class member.

4
RESPONSE TO RFP NO 35:
5

6 Notwithstanding these objections, and understanding this request only to call for 7 production of any list or compilation of data concerning adjustment-of-status class 8 members and reflecting the requested information, and not to include documents in 9 individual A files, or otherwise pertaining to an individual, even if the requested 10 information could be gleaned from such documents, USCIS will produce non-privileged 11 responsive Documents or portions of Documents to the extent they were produced by a 12 USCIS headquarters component and exist in the form sought and can be located after a 13 reasonable search, excluding names and A-numbers. Defendants understand this request 14 to call for Documents already in existence and not to require Defendants to create a 15 Document to answer a question that would more appropriately be served as an 16 interrogatory and subject to the numerical limits under Rule 33.

17

REQUEST FOR PRODUCTION NO. 36: All versions of USCIS’s

18

organization chart for USCIS headquarters and the Seattle USCIS Field

Office, reflecting the names, titles, and positions of officials and Employees

19

from 2007 to the present. This request includes organization charts of

20

USCIS as a whole, as well as the Fraud Detection and National Security

(FDNS) Directorate of USCIS.

21

22 OBJECTIONS TO RFP NO. 36:

23
Defendants incorporate here by reference their earlier “Objections Which Apply to All
24
Requests for Production.” Further, Defendants object to the request for the organization
25
charts for the Seattle USCIS Field Office as inconsistent with and irrelevant to Plaintiffs’
26
claims and the nationwide scope of the certified classes.
27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 51

(2:17-cv-00094-RAJ)

App. 266

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 270 of 518

1 RESPONSE TO RFP NO. 36:

2
USCIS will produce organization charts for USCIS headquarters and FDNS reflecting
3
information from April 2008 to the present, to the extent such charts exist and can be
4
located after a reasonable search. Defendants understand this request to call for
5
Documents already in existence and not to require Defendants to provide information not
6
maintained on responsive organization charts that would more appropriately be served as
7
interrogatories and subject to the numerical limits under Rule 33.
8

REQUEST FOR PRODUCTION NO. 37: All versions of any
9
organization chart or similar document reflecting or identifying the

10

individuals responsible for implementing CARRP, including but not limited

to those individuals responsible for drafting and presenting training
11
materials about CARRP and officers designated as CARRP officers.

12

13 OBJECTIONS TO RFP NO. 37:

14
Defendants incorporate here by reference their earlier “Objections Which Apply to All
15
Requests for Production.” Further, Defendants object in part to this request because it is
16
not proportional to the needs of the case, is not important to resolve issues, the burden of
17
the request outweighs its likely benefit, the request is not temporally bounded, and the
18
request calls for production of documents potentially a decade or more old that may be
19
archived, not reasonably accessible, or destroyed prior to the commencement of this
20
litigation. Read literally, this request seeks production of any organizational chart that
21
shows the name or position of any person who might have a role in implementing
22
CARRP, even where the organizational chart does not identify the individual’s CARRP
23
role. (Note: USCIS organizational charts do not reflect an individual’s or position’s
24
duties, but rather simply the position/title). There are hundreds of individuals throughout
25
USCIS, in nearly every office in the agency, who are designated to work on CARRP
26
cases. CARRP designated officers are well-integrated into the organizational structure of
27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 52

(2:17-cv-00094-RAJ)

App. 267

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 271 of 518

1 USCIS and decentralized to work side by side with all other personnel performing vetting 2 and adjudications work. Organizational charts listing individual personnel (rather than 3 going by positions) tend to be executed at the local office level. Therefore, to produce 4 organizational charts that show the individuals who work CARRP cases and their 5 locations would require the retrieval of materials down to the individual field office level. 6 This production request is also complicated by the fact that many FDNS officers, while 7 trained in CARRP, do not actually work national security cases. And many ISOs are 8 trained in CARRP, despite not being part of the FDNS organization, and do work 9 CARRP cases. Additionally, the request calls for documents concerning CARRP as it 10 existed since its inception in 2008 and are therefore only marginally relevant to the policy 11 as it stands today and as applied to the class members.

12
RESPONSE TO RFP NO. 37:
13

14 Notwithstanding these objections, USCIS will produce non-privileged Documents falling 15 within the scope of the request to the extent they exist and can be located after a 16 reasonable search. Defendants understand this request to call for Documents already in 17 existence, related to individuals/positions at USCIS headquarters who are involved in 18 national-level CARRP policy, and not to require Defendants to provide information not 19 maintained on responsive organization charts that would more appropriately be served as 20 an interrogatory and subject to the numerical limits under Rule 33.

21

REQUEST FOR PRODUCTION NO. 38: All Documents referring or

22

relating to the names, titles, and job descriptions of all Your officials and

Employees who bear any responsibility, directly or indirectly, in whole or

23

in part, for CARRP or any related extreme vetting program. This request

24

includes but is not limited to officials and Employees who are or were

responsible for the creation, implementation, execution, oversight, and

25

future development of CARRP or any related extreme vetting program.

26

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 53

(2:17-cv-00094-RAJ)

App. 268

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 272 of 518

1 OBJECTIONS TO RFP NO. 38:

2
Defendants incorporate here by reference their earlier “Objections Which Apply to All
3
Requests for Production.” Further, Defendants object in part to this request because it is
4
not proportional to the needs of the case, is not important to resolve issues, the burden of
5
the request outweighs its likely benefit, the request is not temporally bounded, and the
6
request calls for production of documents potentially a decade or more old that may be
7
archived, not reasonably accessible, or destroyed prior to the commencement of this
8
litigation. Read literally, this request calls for every letter or other Document signed by
9
every Field Office Director at every Field Office, as well as every Document identifying
10
every USCIS officer assigned to FDNS, and substantial numbers of officers assigned to
11
field offices and service centers, numerous headquarters component employees. The
12
request is therefore overly broad, unduly burdensome, disproportionate to the needs of
13
the case, oppressive, and likely to result in production of enormous amounts of irrelevant
14
Documents. Defendants also object on the ground that “extreme vetting” is a vague and
15
undefined term, and it is therefore unclear exactly what Plaintiffs seek. In addition, the
16
request calls for documents concerning CARRP as it existed since its inception in 2008
17
and are therefore only marginally relevant to the policy as it stands today and as applied
18
to the class members. Finally, to the extent that the request seeks relevant information, it
19
is duplicative of other requests for production.
20

21 RESPONSE TO RFP NO. 38:

22
In light of the above objections, Defendants interpret this request to seek only documents
23
that identify employees as responsible for duties concerning CARRP, or any vetting
24
program that expands or modifies CARRP, and not to seek every document that merely
25
reflects some piece of identifying information for a person who otherwise has CARRP
26
responsibilities. As so interpreted, and notwithstanding the above objections, USCIS will
27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 54

(2:17-cv-00094-RAJ)

App. 269

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 273 of 518

1 produce non-privileged responsive Documents identifying relevant officers and 2 employees of USCIS headquarters and FDNS to the extent they exist and can be located 3 after a reasonable search. Defendants understand this request to call for Documents 4 already in existence and not to require Defendants to create a document to answer a 5 question that would more appropriately be served as an interrogatory and subject to the 6 numerical limits under Rule 33.

7
REQUEST FOR PRODUCTION NO. 39: All Documents previously withheld
8
or produced in redacted form pursuant to any exemption from the Freedom of
9
Information Act, produced in unredacted form. This request is limited to
10
Documents withheld or produced in response to the ACLU FOIA Request.
11

12 OBJECTIONS TO RFP NO. 39:

13
Defendants incorporate here by reference their earlier “Objections Which Apply to
14
All Requests for Production.” Further, Defendants object to this request in part, in
15
that in response to the FOIA request referenced above, Documents and portions of
16
Documents were redacted or withheld under FOIA exemptions (5), (7)(C), and
17
(7)(E). See 5 U.S.C. § 552(b)(5), (b)(7)(C), (b)(7)(E). Documents and portions of
18
Documents redacted pursuant to FOIA exemptions (5) and (7)(E) are categorically
19
privileged. Documents and portions of Documents redacted pursuant to FOIA
20
exemption 7(C) may be privileged.
21

22 RESPONSE TO RFP NO. 39:
23
USCIS will produce non-privileged responsive Documents and portions of
24
Documents previously withheld or redacted under FOIA exemption 7(C).
25

26

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 55

(2:17-cv-00094-RAJ)

App. 270

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 274 of 518

Dated: September 5, 2017
1
2 CHAD A. READLER Acting Assistant Attorney General
3
4 WILLIAM C. PEACHEY Director, District Court Section
5
6 TIMOTHTY M. BELSAN Deputy Chief
7 National Security & Affirmative 8 Litigation Unit
9
10
11
12

Respectfully submitted,
/s/ Edward S. White EDWARD S. WHITE Senior Litigation Counsel National Security & Affirmative
Litigation Unit AARON R. PETTY JOSEPH F. CARILLI, JR. Trial Attorneys, National Security
& Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 616-9131 E-mail: Edward.S.White@usdoj.gov

13

Attorneys for Defendants

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 56

(2:17-cv-00094-RAJ)

App. 271

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-2, Page 275 of 518

1
CERTIFICATE OF SERVICE
2
I HEREBY CERTIFY that on September 5, 2017, pursuant to the agreement of the
3
parties at the Rule 26(f) conference, I served Defendants’ Response to Plaintiffs’ First
4
Request for Production of Documents by email on Nicholas Gellert, Esq., Jennie
5
Pasquarella, Esq, David Perez, Esq., and Laura Hennessey, Esq.
6

7

/s/ Edward S. White

8

EDWARD S. WHITE

U.S. Department of Justice
9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS - 57

(2:17-cv-00094-RAJ)

App. 272

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797123,FDilketdE0n9tr/y2:81/1-27, PPaaggee2176ofo1f 9518

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

7

AT SEATTLE

8
ABDIQAFAR WAGAFE, et al., on behalf 9 of themselves and others similarly situated,

10

Plaintiffs,

11

v.

No. 2:17-cv-00094-RAJ
PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS

12 DONALD TRUMP, President of the United States, et al.,
13
Defendants. 14

NOTE ON MOTION CALENDAR: OCTOBER 13, 2017

15

16

17

18

19

20

21

22

23

24

25

26
PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS (No. 2:17-cv-00094-RAJ)
App. 273

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797123,FDilketdE0n9tr/y2:81/1-27, PPaaggee2277ofo1f 9518

1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION ............................................................................................................. 1

4 II. RELEVANT PROCEDURAL BACKGROUND.............................................................. 1 III. LEGAL STANDARD........................................................................................................ 2
5 IV. ARGUMENT ..................................................................................................................... 3

6

A. Defendants Must Identify Class Members............................................................. 3

7

B. Defendants Must Log Responsive Classified Documents ..................................... 6

C. Defendants Must Produce Documents Related to the First and Second

8

Executive Orders.................................................................................................... 8

9

D. Defendants Cannot Limit Production to Documents of “National Applicability”....................................................................................................... 12

10 V. CONCLUSION................................................................................................................ 12

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

PLAINTIFFS’ MOTION TO COMPEL PRODUCTION

OF DOCUMENTS

(No. 2:17-cv-00094-RAJ) – i

App. 274

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797123,FDilketdE0n9tr/y2:81/1-27, PPaaggee2378ofo1f 9518

1

TABLE OF AUTHORITIES

2
CASES 3

Page

Al-Haramain Islamic Found., Inc. v. Bush,

4

507 F.3d 1190 (9th Cir. 2007) ...................................................................................................8

5 Algee v. Nordstrom, Inc.,

6

No. C 11-301, 2012 WL 1575314 (N.D. Cal. May 3, 2012) .....................................................5

7 Assembly of State of Cal. v. U.S. Dep't of Commerce,

968 F.2d 916 (9th Cir. 1992), as amended on denial of reh’g (Sept. 17, 1992) ......................11

8

Barahona-Gomez v. Reno,

9

167 F.3d 1228 (9th Cir. 1999) ...................................................................................................5

10 Blankenship v. Hearst Corp.,

11

519 F.2d 418 (9th Cir. 1975) .....................................................................................................3

12 Broyles v. Convergent Outsourcing, Inc., No. C16-775-RAJ, 2017 WL 2256773 (W.D. Wash. May 23, 2017) .................................2, 11

13

Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont.,

14

408 F.3d 1142 (9th Cir. 2005) ...................................................................................................3

15 Clarke v. Am. Commerce Nat’l Bank,

16

974 F.2d 127 (9th Cir. 1992) .....................................................................................................7

17 Colaco v. ASIC Advantage Simplified Pension Plan, 301 F.R.D. 431 (N.D. Cal. 2014)...............................................................................................3

18 Davis v. Fendler,

19

650 F.2d 1154 (9th Cir. 1981) ...................................................................................................7

20 Eureka Fin. Corp. v. Hartford Accident & Indem. Co.,

21

136 F.R.D. 179 (E.D. Cal. 1991) ...............................................................................................7

22

Hemstreet v. Duncan, No. CV-07-732, 2007 WL 4287602 (D. Or. Dec. 4, 2007) .......................................................4

23 In re Search of Premises Known as 1182 Nassau Averill Park Rd.,

24

203 F. Supp. 2d 139 (N.D.N.Y. 2002) .......................................................................................4

25 Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) ...................................................................................................10
26

PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS
(No. 2:17-cv-00094-RAJ) – ii
App. 275

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797123,FDilketdE0n9tr/y2:81/1-27, PPaaggee2479ofo1f 9518

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Kerr v. United States Dist. Court for N. Dist., 511 F.2d 192 (9th Cir. 1975) .....................................................................................................4
4

5

Mueller v. Walker, 124 F.R.D. 654 (D. Or. 1989) ....................................................................................................4

6 Northrop Grumman Corp. v. Factory Mut. Ins. Co.,

7

CV-058444-DDPPLAX, 2012 WL 12875772 (C.D. Cal. Aug. 29, 2012) ................................7

8 Peat, Marwick, Mitchell & Co. v. West,

748 F.2d 540 (10th Cir. 1984) ...................................................................................................7 9

Salim v. Mitchell,

10

No. CV-15-0286-JLQ, Dkt. No. 188 (E.D. Wash. May 31, 2017) ............................................8

11 Salim v. Mitchell,

12

No. CV-15-0286-JLQ, Dkt. No. 75 (E.D. Wash. Mar. 8, 2017)................................................6

13 United States ex rel. Burroughs v. DeNardi Corp.,

167 F.R.D. 680 (S.D. Cal. 1996) ...............................................................................................3

14

United States v. Reynolds,

15

345 U.S. 1 (1953)...................................................................................................................8, 9

16 United States v. Ruehle,

17

583 F.3d 600 (9th Cir. 2009) .....................................................................................................3

18 RULES

19 FED.R.CIV.P. 23(c)(2)(A).................................................................................................................5

20 FED. R. CIV. P. 26(b)(1) ...........................................................................................................2, 3, 5

21 FED. R. CIV. P. 26(b)(5) ...................................................................................................................7
22 FED. R. CIV. P. 26(b)(5)(A) ............................................................................................................11
23 FED. R. CIV. P. 37(a)(1), (3)–(4) ......................................................................................................2 24
REGULATIONS 25
82 Fed. Reg. 8977 ............................................................................................................1, 9, 10, 11 26

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TABLE OF AUTHORITIES

(continued)

2

Page

3 82 Fed. Reg. 13209 ..........................................................................................................1, 9, 10, 11

4

5

6

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8

9

10

11

12

13

14

15

16

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18

19

20

21

22

23

24

25

26

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1

I. INTRODUCTION

2

Plaintiffs served Defendants with discovery requests two months ago. In response,

3 Defendants served a series of general and specific objections riddled with legal errors and

4 proposed an unreasonable and lengthy six-month timeline for production. In this motion, 5 Plaintiffs address four discrete issues with Defendants’ responses.1 First, the Court should

6 compel Defendants to produce a list of class members, other documents sufficient to identify

7 class members, and documents regarding why Named Plaintiffs have been subject to CARRP.

8 Although this Court has certified two nationwide classes whose membership is defined through

9 application of a secret vetting program of which class members themselves never receive notice,

10 Defendants improperly refuse to provide the list of class members. Second, the Court should

11 compel Defendants to review classified documents for responsiveness and produce a log for any

12 such documents they seek to withhold. Third, the Court should order Defendants to produce

13 documents relating to the First and Second Executive Orders, which institute “extreme vetting”

14 procedures that promise to expand CARRP. Despite the Court’s denial of Defendants’ motion to

15 dismiss claims related to the Orders, Defendants have elected not to search for or produce

16 responsive documents relating to those claims. And finally, the Court should make clear that

17 Defendants cannot artificially limit their production to documents of “national applicability.”

18

II. RELEVANT PROCEDURAL BACKGROUND

19

This lawsuit challenges the legality of the Controlled Application Review and Resolution

20 Program (“CARRP”), an agency-wide policy created by Defendant U.S. Citizenship and

21 Immigration Services in 2008, Dkt. 47 ¶ 55, and “extreme vetting” programs instituted in

22 Executive Orders 13769, 82 Fed. Reg. 8977 (“First EO”), and 13780, 82 Fed. Reg. 13209

23 (“Second EO”) id. ¶¶ 18, 138-141. Plaintiffs allege that CARRP implements an extra-statutory

24
1 The negotiation process is ongoing with respect to several others of Plaintiffs’ concerns, including
25 fundamental issues related to the burden, scope, and timeliness of Defendants’ productions. Declaration of David A.
Perez in Support of Plaintiffs’ Motion to Compel Production of Documents (“Perez Decl.”) Exs. C, D. Should these
26 negotiations prove unsuccessful, Plaintiffs may need to again seek the Court’s assistance.

PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS
(No. 2:17-cv-00094-RAJ) – 1
App. 278

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1 internal vetting policy that discriminates on the basis of religion or national origin to indefinitely

2 delay or pretextually deny statutorily-qualified immigration benefit applicants. Id. ¶¶ 35-51, 62-

3 76. The Court certified two nationwide classes of individuals subject to CARRP or a successor

4 “extreme vetting” program: one made up of individuals who have applied for adjustment of

5 status (“Adjustment Class”), and the other of individuals who have applied for naturalization.

6 (“Naturalization Class”). Dkt. 69 at 31.

7

Subsequently, Plaintiffs served a first set of 39 requests for production (“RFPs”).

8 Defendants served their objections and responses on September 5, 2017. Perez Decl. Ex. A

9 (Defendants’ Objections and Responses to Plaintiffs’ First Request for Production of

10 Documents) (“Defendants’ Responses”). Plaintiffs promptly wrote to Defendants, setting out a

11 wide array of concerns with Defendants’ Responses and requesting a time to meet and confer on

12 the issues. Id. Ex. B (September 11, 2017 letter from Nick Gellert to counsel for Defendants).

13 During the three-hour meet and confer conference, the parties discussed each of the concerns

14 Plaintiffs had identified in their letter and attempted to resolve their differences. Id. ¶¶ 5-6.

15 Though the parties made progress on some of Plaintiffs’ concerns, and are continuing

16 negotiations with respect to several others, the parties agreed they were at an impasse on four

17 important issues, which are the subject of this motion. Id. ¶¶ 7-12.

18

III. LEGAL STANDARD

19

The Federal Rules of Civil Procedure authorize broad discovery “regarding any non-

20 privileged matter that is relevant to any party’s claim or defense.” FED. R. CIV. P. 26(b)(1); see

21 Broyles v. Convergent Outsourcing, Inc., No. C16-775-RAJ, 2017 WL 2256773, at *1 (W.D.

22 Wash. May 23, 2017) (“Most importantly, the scope of discovery is broad.”). Moreover,

23 relevance is assessed independently of the Federal Rules of Evidence—material “need not be

24 admissible in evidence to be discoverable.” FED. R. CIV. P. 26(b)(1).

25

The Federal Rules authorize motions to compel production to remedy an opposing party’s

26 evasive or incomplete answers or disclosures. FED. R. CIV. P. 37(a)(1), (3)–(4). Under the

PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS (No. 2:17-cv-00094-RAJ)– 2
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1 “liberal discovery principles” codified in the Federal Rules, a party opposing discovery “carr[ies]

2 a heavy burden of showing why discovery was denied.” Blankenship v. Hearst Corp., 519 F.2d

3 418, 429 (9th Cir. 1975). The party seeking to compel discovery need only show that its request

4 complies with the broad relevancy requirements of Rule 26(b)(1) to place this heavy burden on

5 the opposing party. Colaco v. ASIC Advantage Simplified Pension Plan, 301 F.R.D. 431, 434

6 (N.D. Cal. 2014).

7 8 A. 9

IV. ARGUMENT Defendants Must Identify Class Members Defendants’ refusal to produce requested documents sufficient to identify class members,

10 including a list of class members, as well as documents related to the reasons why Named

11 Plaintiffs’ applications were subject to CARRP, is improper. Perez Decl., Ex. A at 32, 34-39,

12 48-51 (RFP Nos. 13, 15, 17, 19, 21, 34, 35).

13

Defendants have made broad and unspecified assertions of privilege over class members’

14 names and A-numbers, id. at 48-51 (RFP Nos. 34-35), and have asserted similar privilege

15 concerns to prevent disclosure of whether Named Plaintiffs were subject to CARRP, id. at 32,

16 34-39 (RFP Nos. 13, 15, 17, 19, 21). But courts must reject such “blanket refusals inserted into a

17 response to a Rule 34 request for production of documents” as “insufficient to assert a privilege.”

18 See Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142, 1149

19 (9th Cir. 2005); see also United States v. Ruehle, 583 F.3d 600, 609 (9th Cir. 2009) (noting that 20 “blanket claims of privilege are generally disfavored”) (citations omitted).2

21

To the extent Defendants claim that the law enforcement investigatory privilege bars

22 identification of individuals subject to CARRP or the reasons why the Named Plaintiffs were

23 subjected to CARRP, they have failed to meet their burden. See, e.g., United States ex rel.

24 Burroughs v. DeNardi Corp., 167 F.R.D. 680, 687 (S.D. Cal. 1996) (outlining strict requirements

25

26

2 Defendants also refuse to produce any privilege log for these documents, contrary to their obligations

under the Federal Rules of Civil Procedure. See infra at IV.B (discussing privilege log requirements).

PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS (No. 2:17-cv-00094-RAJ)– 3
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1 for asserting law enforcement privilege).3 Even if Defendants had properly asserted the

2 privilege, it is not absolute. Kerr v. United States Dist. Court for N. Dist., 511 F.2d 192, 198 (9th

3 Cir. 1975). Where, as here, the requested documents “are ‘both relevant and essential’ to the

4 presentation of the case on the merits, ‘the need for disclosure outweighs the need for secrecy,’

5 and the privilege is overcome.” See Hemstreet v. Duncan, No. CV-07-732, 2007 WL 4287602,

6 at *2 (D. Or. Dec. 4, 2007) (quoting In re Search of Premises Known as 1182 Nassau Averill

7 Park Rd., 203 F. Supp. 2d 139, 140 (N.D.N.Y. 2002)); Mueller v. Walker, 124 F.R.D. 654, 656-

8 57 (D. Or. 1989).

9

In other contexts, even Defendants do not treat the identification of CARRP cases or the

10 reasons why an individual was subjected to CARRP as privileged, including in responses to

11 Freedom of Information Act requests and litigation. See, e.g., Dkt. 27-1, Ex. E (document,

12 obtained through FOIA, indicating Plaintiff Wagafe’s file was reviewed by a CARRP officer);

13 Declaration of Stacy Tolchin in Support of Plaintiffs’ Motion to Compel Production of

14 Documents, Exs. 1, 2 (documents, obtained through FOIA, indicating CARRP officers involved

15 in naturalization and adjustment of status applications); Perez Decl. Ex. E at 276:15-17 (in

16 deposition, USCIS officer confirming that plaintiff’s case was “a CARRP case”); id. at 277:3-9

17 (providing officer’s understanding “of why [case] was designated a CARRP case”); cf. id., Ex. F

18 (providing for notice to individuals on the “No Fly List” of their status on the list). Thus, the 19 Court should reject Defendants’ assertion of privilege in RFPs 13, 15, 17, 19, 21, 34 and 35.4

20

Second, Defendants incorrectly assert that the identity of class members is not relevant to

21 Plaintiffs’ claims and defenses in this certified nationwide class action. See Perez Decl., Ex. A at

22 48-51 (RFP Nos. 34-35). But each individual identified is a potential witness or source of

23
3 In Defendants’ Responses, they assert an unspecified privilege, but indicated during the meet and confer
24 that they referred to the law enforcement privilege. Perez Decl., ¶ 9.
4 Because Defendants assert that privilege prevents disclosure of whether Named Plaintiffs are subject to
25 CARRP, they do not address what privilege, if any, they believe applies to documents disclosing why Named
Plaintiffs are subject to CARRP, as requested in RFP Nos. 13, 15, 17, 19 and 21. But, to the extent that they
26 intended their blanket assertion of law enforcement privilege to cover such information, it is improper and
insufficient for the reasons discussed supra.

PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS (No. 2:17-cv-00094-RAJ)– 4
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1 relevant information regarding, inter alia, delays, unwarranted denials, or other impacts of

2 CARRP and successor extreme vetting programs.

3

Additionally, members of the Naturalization Class are witnesses and/or sources of

4 relevant information regarding the government’s failure to provide naturalization applicants any

5 notice that they are subject to CARRP or explanation for their classification under CARRP. This

6 is directly relevant to the Naturalization Class’s procedural due process claim, which contends,

7 inter alia, that individuals subjected to CARRP deserve the right to notice of and a meaningful

8 explanation for their classification. See Dkt. 47 ¶ 263.

9

Moreover, now that the court has certified the classes, many individuals reach out to class

10 counsel to inquire as to whether they are class members. Until Defendants produce a class list,

11 Class Counsel is unable to appropriately advise potential class members whether their interests

12 are represented in this lawsuit, or whether they face a separate issue causing delay that requires a

13 separate legal analysis. In addition, in certifying classes of noncitizens, courts have often

14 required Defendants to provide notice to class members in circumstances where “INS [now

15 DHS] is uniquely positioned to ascertain class membership.” Barahona-Gomez v. Reno, 167

16 F.3d 1228, 1237 (9th Cir. 1999) (requiring Defendants to provide notice to class members). The

17 requested documents also may be necessary should the Court eventually require notice pursuant

18 to Federal Rule of Civil Procedure 23(c)(2)(A) or order class-wide relief. Cf. Algee v.

19 Nordstrom, Inc., No. C 11-301, 2012 WL 1575314, at *4 (N.D. Cal. May 3, 2012) (“The

20 disclosure of names, addresses, and telephone numbers is a common practice in the class action

21 context.”).

22

Thus, the requested documents are relevant pursuant to the broad scope of discovery,

23 especially given that Named Plaintiffs and class members otherwise have no access to this

24 information. See, e.g., FED. R. CIV. P. 26(b)(1) (requiring consideration of, among other factors,

25 “the parties’ relative access to relevant information”). Nor would a response be overly

26 burdensome, as applicants for adjustment of status and naturalization are not subject to CARRP

PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS (No. 2:17-cv-00094-RAJ)– 5
App. 282

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1 unless Defendants first identify them as such, making that information readily available. The

2 Court should order Defendants to produce documents responsive to RFP Nos. 34 and 35.

3 B. 4

Defendants Must Log Responsive Classified Documents Defendants have taken the position that they will not search any documents that have

5 been marked classified, much less list any such responsive documents in a privilege log or

6 produce them. Perez Decl. ¶ 10. Thus, Defendants have unilaterally decided—before reviewing

7 such documents for responsiveness—that they will not produce any classified documents in this

8 case because they are all privileged. But purported classification is not in itself a basis for

9 circumventing Defendants’ discovery obligations. See, e.g., Salim v. Mitchell, No. CV-15-0286-

10 JLQ, Dkt. No. 75 (E.D. Wash. Mar. 8, 2017) (government reviewed classified materials, deemed

11 some no longer classified, disclosed documents in full or in redacted form, and produced a

12 privilege log identifying objections on a document-by-document basis). By refusing even to

13 search documents the executive branch has deemed classified, Defendants are conflating

14 classification and privilege, and failing to determine (1) whether any such information is still

15 properly classified; (2) whether unclassified information may be segregated and produced to

16 Plaintiffs; and (3) whether classified information may be produced in summary and/or redacted

17 form. If accepted, Defendants’ position would also preclude Plaintiffs from effectively arguing,

18 and the Court from adjudicating, whether classified information nevertheless must be produced 19 because vindication of Plaintiffs’ constitutional rights requires it.5

20

21

22

5 In their September 22, 2017 letter, Defendants tried to clarify their position by saying “there are no

classified documents relating to CARRP on a programmatic level,” and that therefore they would only search

23 “programmatic level” documents. See Perez Decl., Ex. C. But the scope of discovery is not limited to

“programmatic” documents. To the extent Defendants have documents responsive to Plaintiffs’ discovery requests

24 which fall outside their narrow category of programmatic documents, Defendants refuse to search for or produce

them. In addition, Defendants made clear in the parties’ telephonic meet and confer conference that their claim that

25 some non-programmatic documents could be classified was speculative. They did not actually know at that point in

time if any responsive documents were in fact classified–only that, to the extent there are classified documents, they

26 refuse to search them for responsive documents, produce any non-privileged information, and catalogue privileged

information in a privilege log. See id. ¶ 10.

PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS (No. 2:17-cv-00094-RAJ)– 6
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1

It is well-established that an entity that withholds discovery materials based on a

2 privilege must provide sufficient information (i.e., a privilege log) to enable the requesting party

3 to evaluate the applicability of the privilege or other protection. FED. R. CIV. P. 26(b)(5); see

4 Clarke v. Am. Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir. 1992). Failure to provide

5 sufficient information may constitute a waiver of the privilege. See Peat, Marwick, Mitchell &

6 Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984) (privilege waived when defendant did not make

7 a timely and sufficient showing that the documents were protected by privilege). Asserting a

8 “blanket objection” to document requests is insufficient and improper. Clarke, 974 F.2d at 129

9 (blanket assertions of privilege are “extremely disfavored”); Davis v. Fendler, 650 F.2d 1154,

10 1160 (9th Cir. 1981) (blanket privilege objection is improper); Eureka Fin. Corp. v. Hartford

11 Accident & Indem. Co., 136 F.R.D. 179, 182-83 (E.D. Cal. 1991) (a “blanket objection” to each

12 document on the ground of privilege with no further description is clearly insufficient).

13 Defendants are obligated to review any classified documents and properly determine—and

14 invoke for adjudication—which, if any, privilege they believe applies.

15

At a threshold level, then, although Defendants have asserted that responsive documents

16 previously labeled classified may exist, they have not reviewed these documents to determine

17 whether they are still classified. Nor do Defendants intend to produce a log identifying each

18 document they are withholding on the basis that it is classified. Perez Decl. ¶ 10. Thus,

19 Defendants have not shown that the purpose of whatever privilege they would attach to these

20 documents is even implicated in this case. See Clarke, 974 F.2d at 129 (failure to show purpose

21 of attorney/client privilege had been implicated). This Court should “not sustain an objection by

22 [Defendants] on this ground as there is no showing that the privilege attaches to any of the

23 requested documents. In the event that the privilege is later invoked as to any specific document,

24 [Defendants] must provide [Plaintiffs] the requisite privilege log.” Northrop Grumman Corp. v.

25 Factory Mut. Ins. Co., CV-058444-DDPPLAX, 2012 WL 12875772, at *9 (C.D. Cal. Aug. 29,

26 2012).

PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS (No. 2:17-cv-00094-RAJ)– 7
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1

Closely reviewing these documents and generating a privilege log is especially important

2 if the government plans to assert that the state secrets privilege applies to any particular

3 document or documents. In another similar context in which the government identified

4 particular documents over which it claimed the privilege, litigation was able to progress so that

5 the privileged information was not required to be produced. Salim v. Mitchell, No. CV-15-0286-

6 JLQ, Dkt. No. 188 (E.D. Wash. May 31, 2017). That may well be possible here. Moreover, the

7 Ninth Circuit has cautioned that the state secrets privilege “is not to be lightly invoked.” Al-

8 Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1196 (9th Cir. 2007). Therefore, the

9 privilege should be invoked, if at all, only with respect to a specific record, and it is well

10 established that to assert the state secrets privilege, “[t]here must be a formal claim of privilege,

11 lodged by the head of the department which has control over the matter, after actual personal

12 consideration by the officer.” United States v. Reynolds, 345 U.S. 1, 7-8 (1953) (emphasis

13 added). Blanket objections without individual review of specific documents do not suffice here.

14 If the privilege is in fact invoked, Plaintiffs may object and the court must determine whether the

15 privilege assertion is appropriate under the circumstances. Id. at 8. In short, even this

16 exceptional privilege requires Defendants to review any responsive classified document.

17

Defendants must review these documents for responsiveness. If they are responsive,

18 Defendants should determine whether they are still legitimately classified, and whether there are 19 any alternatives to withholding the information entirely. 6 If Defendants seek to assert that any

20 particular document is privileged, they must make a formal claim of privilege to facilitate the

21 necessary judicial review of that determination.

22 C. Defendants Must Produce Documents Related to the First and Second Executive Orders
23
Defendants’ outright refusal to produce documents related to the First and Second 24
Executive Orders is improper because there is a recognized potential connection between 25

26

6 Moreover, if a responsive document is classified, Plaintiffs’ counsel may pursue the necessary security

clearance to view classified materials.

PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS (No. 2:17-cv-00094-RAJ)– 8
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1 CARRP and the “extreme vetting” policies instituted by the First and Second EOs. Dkt. 47 ¶¶

2 138-141; Dkt. 69 at14-15, 23-24. Accordingly, Defendants must produce documents related to

3 the First and Second EOs, as requested in Plaintiffs’ RFP Nos. 23 and 24.

4

The SAC challenges the legality of CARRP on several constitutional and statutory

5 grounds. Dkt 47. Plaintiffs contend that CARRP applies extra-statutory, secret criteria to delay

6 indefinitely, or deny on pretextual grounds, the applications of statutorily-qualified adjustment of

7 status and naturalization applicants who are Muslim or hail from Muslim-majority countries.

8 See, e.g., id. ¶¶ 7, 11, 76, 94-95. The First and Second EOs order the implementation of an

9 “extreme vetting” regime that, upon information and belief, would dramatically expand CARRP 10 as it currently exists. See id. ¶¶ 138-141.7 Due to the secrecy of CARRP, Plaintiffs have no way

11 of knowing whether and to what extent CARRP has shifted over time, including pursuant to

12 these EOs. See id. ¶ 19 n.1. Thus, Plaintiffs’ challenge to CARRP incorporates a challenge to

13 any similar successor vetting policy that may exist. Id.

14

In their motion to dismiss, Defendants contended the claims “concerning ‘extreme

15 vetting’” under the Second EO should be dismissed. Dkt. 56 at 22. Defendants also challenged

16 the inclusion of the EOs in their Response to Plaintiffs’ First Amended Motion for Class

17 Certification. Dkt. 60 at 7-8. The Court already rejected both challenges. Dkt. 69 at 15 & n.6,

18 23-24.

19

Following the Court’s ruling, Plaintiffs sought targeted discovery regarding any

20 consideration of CARRP in the promulgation of the First or Second EOs, as well as documents

21 regarding the “extreme vetting” program the EOs promised. Specifically, Plaintiffs’ Requests

22 state:

23

24
7 A recent Presidential Proclamation expanding the scope of the travel ban does not alter the “extreme
25 vetting” provisions of the First and Second EOs. Compare Presidential Proclamation Enhancing Vetting
Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorist or Other Public-Safety
26 Threats, Sept. 24, 2017, https://www.whitehouse.gov/the-press-office/2017/09/24/enhancing-vetting-capabilities-
and-processes-detecting-attempted-entry, with Second EO, sections 4, 5.

PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS (No. 2:17-cv-00094-RAJ)– 9
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1

REQUEST FOR PRODUCTION NO. 23: All Documents

referring or relating to any consideration of or reference to CARRP

2

during the planning, drafting, or issuing of the First and Second

EOs.

3

REQUEST FOR PRODUCTION NO. 24: All Documents

4

referring or relating to “extreme vetting” or any other screening,

vetting, or adjudication program, policy, or procedure connected to

5

the First or Second EOs. This request includes, but is not limited

to, programs that reference, relate to, or expand upon CARRP. 6
Perez Decl. Ex. A at 40-42 (Defendants’ Responses).

7 First, discovery related to the EOs is not, as Defendants contend, “premature in light of

8 the oral argument scheduled before the Supreme Court on October 10, 2017, in Trump v. Int’l

9 Refugee Assistance Project.” Id. at 3. The issues before the Supreme Court are limited to the

10 legality of the temporary suspension of the entry of non-citizens pursuant to Section 2(c) of the

11 Second EO. See Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 572, 579 (4th Cir.

12 2017). Plaintiffs’ Requests, in contrast, are aimed at Section 4 of the First EO and Sections 4

13 and 5 of the Second EO, which relate to the “extreme vetting” program to be promulgated

14 thereunder that promises to expand or modify CARRP. Dkt. 47 ¶¶ 111, 138-141; Perez Decl.

15 Ex. A at 40-42 (RFP Nos. 23-24).8

16 Second, discovery related to the First EO is not moot based on Defendants’ contention

17 that the Second EO rescinded and replaced the First EO. Perez Decl. Ex. A at 3, 40-41.

18 Although any “extreme vetting” policy would currently be implemented pursuant to the Second

19 EO, such a program may have been discussed, planned, or initially implemented pursuant to the

20 First EO.

21 Third, discovery related to the EOs is not, as Defendants contend, categorically

22 privileged pursuant to the deliberative process privilege. Id. Ex. A at 41; id. ¶ 11. As explained

23 in IV.B, supra, Defendants cannot assert privilege on a categorical basis before searching for and

24

25
8 Though the Supreme Court has since canceled the October 10 oral argument to permit supplemental
26 briefing on the recent Presidential Proclamation, Plaintiffs’ response to Defendants’ objections remains is
unchanged.

PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS (No. 2:17-cv-00094-RAJ)– 10
App. 287

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t797123F, DilekdtE0n9t/r2y8: /11-72, PPaaggee21961ooff15918

1 reviewing potentially responsive documents. Indeed, Rule 26 requires parties to detail the nature

2 and basis for withholding all otherwise responsive documents. FED. R. CIV. P. 26(b)(5)(A); see

3 Broyles, 2017 WL 2256773 at *3 (“Under Rule 26, a party who withholds information as

4 privileged must produce a privilege log.”). Moreover, the deliberative process privilege would

5 only potentially attach to the subset of responsive documents that are (1) “predecisional,”

6 meaning “prepared in order to assist an agency decisionmaker in arriving at his decision,” and

7 (2) “deliberative,” meaning “disclosure of the materials would expose an agency’s

8 decisionmaking process in such a way as to discourage candid discussion within the agency and

9 thereby undermine the agency’s ability to perform its functions.” Assembly of State of Cal. v.

10 U.S. Dep't of Commerce, 968 F.2d 916, 920 (9th Cir. 1992), as amended on denial of reh’g

11 (Sept. 17, 1992) (quotations omitted). Defendants’ contention that every document referencing

12 or referring to CARRP in the planning, drafting or issuing of the First and Second EOs satisfies

13 this narrow standard—without even reviewing the potentially responsive documents—strains

14 credulity. Relatedly, production of documents directly from the President may be subject to

15 heightened standards of relevancy, but the President—as a party to this case—is not

16 automatically immune from all discovery. During the parties’ meet and confer, Defendants

17 admitted that though they believed the President’s office would be the primary source of

18 information related to the EOs, they had not asked the President’s office about potentially 19 responsive custodians or sources of non-custodial documents.9 Perez Decl. ¶ 11. If Defendants

20 argue that the President himself must be insulated from document production obligations, they

21 must provide alternate custodians and non-custodial sources of information that will capture the

22 documents Plaintiffs seek.

23

24

25

26

9 Accordingly, it is unclear whether a litigation hold has been issued at the Executive Office of the

President.

PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS (No. 2:17-cv-00094-RAJ)– 11
App. 288

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t797123F, DilekdtE0n9t/r2y8: /11-72, PPaaggee21972ooff15918

1 D. 2

Defendants Cannot Limit Production to Documents of “National Applicability” Finally, Defendants’ refusal to produce documents other than those of “national

3 applicability” is improper. Defendants state that they will restrict the bulk of their production of

4 responsive documents to those of “national applicability.” See Perez Decl. Ex. A at 17-29, 40-43

5 (RFP Nos. 1, 3-10, 22, 24-25). Though this term is undefined in Defendants’ Responses, the

6 parties’ meet and confer confirmed that Defendants intend to produce only national, policy-level

7 documents related to CARRP because they interpret Plaintiffs’ case to challenge the CARRP

8 policy on a national and not individual level. Id. ¶ 12.

9

Defendants’ claim is based on an incorrect understanding of Plaintiffs’ challenge to the

10 legality of CARRP. As outlined in Plaintiffs’ SAC, CARRP is an agency-wide policy by which

11 USCIS identifies immigration benefit applications that raise “national security concerns,” and

12 then processes and adjudicates those applications subject to extra-statutory rules and criteria that

13 result in indefinite delay or pretextual denial of statutorily-qualified applicants. See, e.g., Dkt. 47

14 ¶¶ 55, 60-61. The official CARRP policy imposes several criteria to determine whether an

15 applicant is considered a “national security concern,” which, in practice, “often turn on

16 discriminatory factors such as religion or national origin.” Id. ¶¶ 62, 76. Plaintiffs seek

17 documents that will reveal not only what these criteria are, but how they are applied in a

18 discriminatory manner. In addition to official policy documents, such evidence is likely to also

19 appear in regional or individual communications about CARRP’s application to specific

20 categories of applications or people. Defendants’ qualification that they will only produce

21 documents of “national applicability” promises to conceal any discriminatory application of

22 CARRP by local offices adjudicating applications for adjustment of status and naturalization

23 and to prevent the judicial review that the Court has ordered must occur.

24

V. CONCLUSION

25

The Court should enter an order compelling Defendants to produce the categories of

26 documents as outlined in this motion and the proposed order submitted herewith.

PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS (No. 2:17-cv-00094-RAJ)– 12
App. 289

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t797123F, DilekdtE0n9t/r2y8: /11-72, PPaaggee21983ooff15918

1 2 DATED: September 28, 2017

3 s/Jennifer Pasquarella (admitted pro hac vice) s/ Harry H. Schneider, Jr.

s/Sameer Ahmed (admitted pro hac vice)

Harry H. Schneider, Jr. #9404

4 ACLU Foundation of Southern California

s/ Nicholas P. Gellert

1313 W. 8th Street

Nicholas P. Gellert #18041

5 Los Angeles, CA 90017

s/ David A. Perez

Telephone: (213) 977-5236

David A. Perez #43959

6 Facsimile: (213) 997-5297

s/ Laura K. Hennessey

jpasquarella@aclusocal.org

Laura K. Hennessey #47447

7 sahmed@aclusocal.org

Attorneys for Plaintiffs

8 s/Matt Adams

Perkins Coie LLP

s/Glenda M. Aldana Madrid

1201 Third Avenue, Suite 4900

9 Matt Adams #28287

Seattle, WA 98101-3099

Glenda M. Aldana Madrid #46987

Telephone: 206.359.8000

10 Northwest Immigrant Rights Project

Facsimile: 206.359.9000

615 Second Ave., Ste. 400

Email: HSchneider@perkinscoie.com

11 Seattle, WA 98122

NGellert@perkinscoie.com

Telephone: (206) 957-8611

DPerez@perkinscoie.com

12 Facsimile: (206) 587-4025

LHennessey@perkinscoie.com

matt@nwirp.org

13 glenda@nwirp.org

14 s/Stacy Tolchin (admitted pro hac vice) Law Offices of Stacy Tolchin
15 634 S. Spring St. Suite 500A Los Angeles, CA 90014
16 Telephone: (213) 622-7450 Facsimile: (213) 622-7233
17 Stacy@tolchinimmigration.com
18
19 s/Hugh Handeyside
20 Hugh Handeyside #39792 s/Lee Gelernt (admitted pro hac vice)
21 s/Hina Shamsi (admitted pro hac vice) American Civil Liberties Union Foundation
22 125 Broad Street New York, NY 10004
23 Telephone: (212) 549-2616 Facsimile: (212) 549-2654
24 lgelernt@aclu.org hhandeyside@aclu.org
25 hshamsi@aclu.org

s/Trina Realmuto (admitted pro hac vice) s/Kristin Macleod-Ball (admitted pro hac vice) Trina Realmuto Kristin Macleod-Ball American Immigration Council 100 Summer St., 23rd Fl. Boston, MA 02110 Tel: (857) 305-3600 Email: trealmuto@immcouncil.org Email: kmacleod-ball@immcouncil.org
s/Emily Chiang Emily Chiang #50517 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Echiang@aclu-wa.org

26

PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS (No. 2:17-cv-00094-RAJ)– 13
App. 290

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t797123F, DilekdtE0n9t/r2y8: /11-72, PPaaggee21994ooff15918

1

CERTIFICATE OF SERVICE

2 The undersigned certifies that on the dated indicated below, I caused service of the
3 foregoing PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS via the
4 CM/ECF system that will automatically send notice of such filing to all counsel of record herein.
5 DATED this 28th day of September, 2017, at Seattle, Washington.
6

7

By: s/Laura K. Hennessey

8

Laura K. Hennessey, 47447 Attorneys for Plaintiffs

9

Perkins Coie LLP 1201 Third Avenue, Suite 4900

10

Seattle, WA 98101-3099 Telephone: 206.359.8000

11

Facsimile: 206.359.9000 Email: LHennessey@perkinscoie.com

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

CERTIFICATE OF SERVICE (No. 2:17-cv-00094-RAJ) – 1

App. 291

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797423,FDilketdE1n0tr/y1:01/1-27, PPaaggee2195ofo1f 518

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9
ABDIQAFAR WAGAFE, et al.,
10
Plaintiffs,
11
v.
12

CASE NO. C17-0094-RAJ
RESPONSE IN OPPOSTION TO PLAINTIFF’S MOTION TO COMPEL

13

DONALD TRUMP, et al.,

14

Defendants.

15

16 I. INTRODUCTION

17

Plaintiffs have alleged that, for close to a decade, a government conspiracy cutting

18 across three administrations of both major political parties has intentionally and

19 unlawfully delayed processing of certain immigration benefit applications based on

20 impermissible criteria. Relying almost exclusively on authority that pre-dates the 2015

21 amendments to the Federal Rules of Civil Procedure concerning the scope of discovery,

22 Plaintiffs (i) demand that Defendants identify members of the certified classes

23 notwithstanding that, by definition, each class member has an articulable link to a

24 national-security ground of inadmissibility; (ii) demand Defendants search for and log

25 classified documents; (iii) demand Defendants produce documents subject to the

26 deliberative process privilege and Executive privilege as a class; and (iv) demand

27 Defendants produce voluminous documents concerning individual class members that are

28 inconsistent with Plaintiffs’ facial challenges and shed no light on the legality of national

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL C17-0094-RAJ - 1
App. 292

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797423,FDilketdE1n0tr/y1:01/1-27, PPaaggee2296ofo1f 518

1 policy. For the reasons detailed below, Plaintiffs’ demands are inconsistent with Rule 26,

2 which limits discovery to relevant, non-privileged material that is proportional to the

3 needs of the case. See Fed. R. Civ. P. 26(b)(1). Each of the categories of information

4 Plaintiffs seek to compel fails to meet at least one (and often more than one) of these

5 requirements for documents to be discoverable.

6 II. PROCEDURAL HISTORY

7

On August 1, 2017, Plaintiffs served Defendants with Plaintiffs’ First Requests for

8 Production to Defendants (“Requests for Production”). See ECF No. 92, Ex. A. On

9 September 5, 2017,1 Defendants served Objections and Responses to Plaintiffs’ First

10 Request for Production of Documents (“Objections and Responses”). Id. On September

11 11, 2017, Plaintiffs’ counsel sent a letter to Defendants’ counsel, outlining Plaintiffs’

12 issues with Defendants’ Objections and Responses. Id., Ex. B. On September 19, 2017,

13 via telephone conference, the Parties’ counsel met and conferred to discuss Plaintiffs’

14 counsel’s September 11, 2017 letter. After the meet and confer, the Parties’ counsel

15 exchanged letters on September 22 and 27, 2017, in an attempt to resolve the issues. Id.,

16 Exs. C, D. In Plaintiffs’ counsel’s September 27, 2017 letter, Plaintiffs’ counsel

17 requested Defendants’ counsel to confirm whether the Parties had reached an impasse on

18 four issues:

19

We also write to confirm that the parties are at an impasse on the following

four issues: (1) Defendants’ refusal to produce a list or other documents

20

sufficient to identify the members of each class and documents regarding

21

why Named Plaintiffs have been subject to CARRP; (2) Defendants’

refusal to review classified documents and produce a privilege log of any

22

such documents they seek to withhold; (3) Defendants’ refusal to produce

23

documents relating to the First and Second Executive Orders; and (4)

Defendants’ refusal to produce responsive documents that are not of

24

“national applicability.”

25

26

27

28 1 Plaintiffs consented to a modest extension of time, from August 31, 2017 to September 5, 2017 to respond to their

39 individual Requests for Production. Defendants’ response to the Requests for Production was timely.

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL C17-0094-RAJ - 2
App. 293

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542

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1 Id., Ex. D. In Plaintiffs’ counsel’s letter of September 27, 2017, Plaintiffs’ counsel

2 requested a response by October 2, 2017. Id. On September 28, 2017, Plaintiffs filed the

3 instant motion to compel.2

4 III. LEGAL STANDARD

5

In describing the relevant standard under Rule 26, Plaintiffs state that “[t]he

6 Federal Rules of Civil Procedure authorize broad discovery ‘regarding any non-

7 privileged matter that is relevant to any party’s claim or defense.’” Doc. 91 at 2. That is

8 only part of the rule. The rest of Rule 26 provides that, in addition to privilege and

9 relevancy, discovery is limited to that which is:

10

proportional to the needs of the case, considering the importance of the

issues at stake in the action, the amount in controversy, the parties relative

11

access to the relevant information, the parties’ resources, the importance of

12

discovery in resolving the issues, and whether the burden or expense of the

proposed discovery outweighs its likely benefit.
13
Fed. R. Civ. P. 26(b)(1). Thus, the possibility that a category of documents will be

14
privileged (or even that many documents within a category will be privileged) is relevant

15
to determining whether the request is proportional to the needs of the case, and especially

16
whether the burden outweighs its likely benefit. In re Blue Cross Blue Shield Antitrust

17
Litig., 13-cv-20000, 2017 WL 2889679, *2 (N.D. Ala. Jul 6, 2017) (“given the likelihood

18
that most of the responsive documents relating to Professional Liability insurance

19
coverage will be subject to some privilege or work-product protection, the burden and

20
expense of searching for the remaining non-privileged responsive documents outweighs

21
the potential benefit.”); IDS Prop. & Cas. Ins. Co v. Fellows, No. 15-cv-2031, 2017 WL

22
202128, *5 (W.D. Wash. Jan. 18, 2017) (holding potential privilege rendered discovery

23
request disproportionate to the needs of the case).

24
IV. ARGUMENT

25
This case raises a facial challenge to the Controlled Application Review and

26
Resolution Program (“CARRP”), a procedure used by U.S. Citizenship and Immigration

27

28

2 Plaintiffs’ counsel did not propose the use of the Court’s expedited joint motion procedure. See LCR 37(a)(2).

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL C17-0094-RAJ - 3
App. 294

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542

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1 Services (“USCIS”) to adjudicate some applications for immigration benefits where there

2 is an articulable link between the applicant and a national-security related ground of

3 inadmissibility. Specifically, Plaintiffs have challenged the lawfulness of CARRP, and

4 any successor program. ECF No. 58, at 24 (“Plaintiffs, however, ‘do not seek damages

5 for specific acts of discrimination against themselves,’ but rather ask only that the Court

6 review the legality of CARRP against requirements dictated by Congress in the INA.”).

7 The Court has agreed—“The common question here is whether CARRP is lawful. The

8 answer is ‘yes’ or ‘no.’ The answer to this question will not change based on facts

9 particular to each class member, because each class member’s application was (or will

10 be) subjected to CARRP.” ECF No. 69, at 27. Given these challenges to the overall

11 program, the discovery Plaintiffs seek is not related to the claims or defenses of any

12 party, is not proportional to the needs of the case under Rule 26(b)(1), and much of it is

13 privileged as well. Indeed, the likelihood that many documents or categories of

14 documents will be privileged weighs against permitting discovery as disproportionate and

15 burdensome. A lengthy and accurate privilege log benefits no one, least of all the Court

16 if asked to review documents in camera.

17

A. The Identity of Class Members Is Not Discoverable Under Rule

26(b)(1)
18

1. The Identity of Class Members Is Not Relevant to This Rule

19

23(b)(2) Class Action

20

The specific identity of individual class members—as distinct from anonymized

21 data that does not include names—is irrelevant to this litigation. Indeed, it is far from

22 clear that demographic information about class members is itself relevant, as Plaintiffs

23 claim that Defendants have acted on grounds equally applicable to the class as a whole.

24 ECF No. 49 at 17 (noting “the conduct at issue can be enjoined or declared unlawful only

25 as to all of the class members or as to none of them”) (internal citation omitted).

26 Disclosing personally identifiable information (i.e., names and A-numbers) of particular

27 individuals adds nothing to Plaintiffs’ case.

28

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL C17-0094-RAJ - 4
App. 295

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542

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1

Plaintiffs suggest that “each individual is a potential witness or source of relevant

2 information.” ECF No. 91, at 4-5. But Rule 23 no longer permits discovery of

3 information merely “reasonably calculated to lead to the discovery of admissible

4 evidence.” Fed. R. Civ. P. 23(b)(1), advisory committee notes to 2015 amendments.

5 Moreover, witnesses who can attest only to their own situation are not—indeed, cannot—

6 be relevant to the claims that can be pursued by a Rule 23(b)(2) class. As noted,

7 Plaintiffs have alleged that Defendants “acted or refused to act on grounds that apply

8 generally to the class, so that final injunctive relief or corresponding declaratory relief is

9 appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2) (emphasis added);

10 see ECF No. 49, at 17-18. If individual class members are relevant witnesses because

11 they can speak to individual “delays, unwarranted denials,3 or other impacts of CARRP,”

12 ECF No. 91, at 5, then the class should be decertified, because injunctive relief would not

13 be appropriate to the class as a whole. Plaintiffs cannot have it both ways. If, as

14 Plaintiffs allege, Defendants acted on grounds equally applicable to all class members,

15 then individual hardships are irrelevant.4

16

Plaintiffs claim that courts “often” require disclosure of class members’ contact

17 information. ECF No. 91 at 5. But neither of the two cases Plaintiffs cite for this

18 proposition raise national security concerns. See Barahona-Gomez v. Reno, 167 F.3d

19 1227, 1238 (9th Cir. 1999) (requiring notice to class-member aliens to prevent their

20 deportation in violation of injunction); Algee v. Nordstrom, Inc., No. 11-cv-301, 2012

21 WL 1575314, *4-*5 (N.D. Cal. May 3, 2012) (permitting discovery of contact

22 information for putative class members in a labor dispute to “determine whether a class

23 action is maintainable”). Indeed, the Algee court noted that, in the context of a labor

24 3 As Defendants have noted, see ECF No. 77 at 3, n.5; ECF No. 56 at 9 n.6, Plaintiffs’ repeated assertions that they
25 are challenging “unwarranted” or otherwise unlawful denials is inconsistent with the definitions of the certified classes, and no class representative has had an application denied. The classes concern delay only.
26
4 The same is true for Plaintiffs’ contention that identifying members of the Naturalization Class is relevant to 27 determining whether Due Process entitles them to notice and explanation of why their application was handled
pursuant to CARRP. ECF No. 91, at 5. Individualized anecdotal evidence is not relevant to determining whether 28 Defendants acted or refused to act on grounds applicable to the class as a whole. See Fed. R. Civ. P. 23(b)(2).

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL C17-0094-RAJ - 5
App. 296

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797423,FDilketdE1n0tr/y1:01/1-27, PPaaggee3600ofo1f 518

1 dispute, contact information for putative class members was “not particularly sensitive.”

2 Id. at *5. The same cannot be said here, where identifying class members ipso facto

3 identifies aliens with an articulable connection to a national-security related ground of

4 inadmissibility or deportability. ECF No. 94 ¶¶ 61-62; Declaration of James W.

5 McCament (Ex. E) ¶¶ 14-15. Plaintiffs also claim they have difficulty in advising

6 individuals who may be class members whether their interests are adequately represented.

7 This is not relevant to whether the identity of class members is discoverable.5 See Fed.

8 R. Civ. P. 26(b)(1) (limiting analysis of discoverability to that which is relevant, non-

9 privileged, and proportionate).

10

2. Identifying Class Members is Unreasonably Burdensome

11

Beyond this, Plaintiffs cavalierly suggest that because applicants for adjustment of

12 status and naturalization are subjected to CARRP by Defendants, it necessarily follows

13 that Defendants’ identification of class members cannot be unreasonably burdensome.

14 ECF No. 91 at 5-6. But as Defendants have explained, CARRP is a method, not a status;

15 it is a “how” rather than a “what.” ECF No. 74 ¶ 96 (“CARRP is not a ‘classification’

16 but rather an internal handling policy to guide USCIS personnel in the thorough and

17 consistent investigation and adjudication of immigration benefit applications that raise

18 national security concerns.”); Ex. E ¶ 14. As such, determining the identity of class

19 members based on the factors enumerated in the class definitions would require manual

20 compilation of data from multiple sources, including paper records for each individual

21 class member.

22

As USCIS Deputy Director James McCament explains in his attached declaration,

23 USCIS employs different systems to track adjudication and national-security concerns.

24 Declaration of James W. McCament (Ex. F) ¶¶ 7-12. Additionally, some USCIS systems

25 require manual data entry and, like any such systems, are subject to occasional errors,

26 omissions, and delays in data entry. Id. ¶ 12. Identifying all likely class members would

27 thus require a time- and labor-intensive process requiring engagement among multiple

28 5 It does highlight, however, the difficulty of certifying classes that may contain class members who lack Article III

standing. See ECF No. 73, at 2-4.

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL C17-0094-RAJ - 6
App. 297

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542

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1 components of USCIS. USCIS estimates the cost of doing so would exceed $1.2 million.

2 Id. ¶ 27. This figure does not account for changes in the composition of the class, which

3 would occur each time an application subject to CARRP reaches the six-month mark, and

4 when an application is adjudicated and the former class member no longer has standing.

5 Id. ¶ 28.

6

Furthermore, compiling a list of likely class members would have detrimental

7 consequences for USCIS, and in particular FDNS, “to conduct its core mission to

8 enhance the integrity of the legal immigration system by leading USCIS’s efforts to

9 identify threats to national security and public safety, detect and combat immigration

10 benefit fraud, and remove systematic and other vulnerabilities.” Id. at 29. In short, the

11 burden on Defendants to identify class members—both monetary and by degrading

12 USCIS’s law-enforcement capability—far outweigh the utility of providing Plaintiffs

13 with a list of class members that may be outdated as soon as it is created. See Fed. R.

14 Civ. P. 23(b)(1).

15

3. The Identities of Class Members Are Privileged

16

In any event, the identities of class members are privileged. The law enforcement

17 privilege protects from dissemination information contained in both criminal and civil

18 investigatory files. See Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1136,

19 1341 (D.C. Cir. 1984); United States v. McGraw-Hill Cos. Inc., No. 13-cv-779, 2014 WL

20 1647385, *6 (C.D. Cal. Apr. 15, 2014). The privilege acknowledges the strong public

21 interest in safeguarding the integrity of investigations, In re Sealed Case, 856 F.2d 268,

22 272 (D.C. Cir. 1988), and it may be invoked to protect the ongoing or future effectiveness

23 of investigatory techniques, Shah v. Dep’t of Justice, 89 F. Supp. 3d 1074, 1080 (D. Nev.

24 2015).

25

As more fully explained in the attached declaration, disclosure of whether a

26 particular individual application is subject to CARRP could cause substantial harm to law

27 enforcement investigations and intelligence activities. Ex. E ¶ 18. Acknowledging that a

28 particular individual has an articulable link to national-security related grounds of

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL C17-0094-RAJ - 7
App. 298

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797423,FDilketdE1n0tr/y1:01/1-27, PPaaggee3802ofo1f 518

1 inadmissibility or removability, 8 U.S.C. §§ 1182(a)(3)(A), (B), (F) or 1227(a)(3)(A),

2 (B), (F), could understandably cause the individual, or his associates, to seek out means

3 to avoid detection, or frustrate an on-going investigation by revealing to the individual

4 that the government has information linking him or her to a national security ground of

5 inadmissibility or removability. Id. Because disclosure of the identities of individuals

6 subject to CARRP could naturally and directly impede the effectiveness of ongoing and

7 future investigations, the identities of class members are protected from disclosure by the

8 law enforcement privilege. See Shah, 89 F. Supp. 3d at 1080.

9

Plaintiffs observe that the law enforcement privilege can be overcome in certain,

10 limited instances upon a showing of necessity. See ECF No. 91, at 4. But the “key” to

11 evaluating necessity is “the extent to which adequate alternative means could have

12 substituted.” United States v. Cintolo, 818 F.2d 980, 1003 (1st Cir. 1987) (internal

13 quotation omitted). Here, there is no need to personally identify the class members.

14 Defendants have offered to provide, if requested, class members’ anonymized

15 biographical data reasonably available to Defendants in electronic systems, which goes to

16 the crux of Plaintiffs’ theory that class members are being unlawfully discriminated

17 against because of their religion or national origin. Because names and other personally

18 identifying information add nothing to Plaintiffs’ case, the privilege cannot be

19 overcome.6

20

Plaintiffs suggest that in other contexts Defendants have disclosed information

21 concerning specific applications subject to CARRP. ECF No. 91, at 4. But, as discussed

22 in separate declarations, any such disclosures were made by mistake. Ex. E ¶ 19

23 (documents released in litigation); Declaration of Jill A. Eggelston (Ex. G) ¶¶ 13-26

24 (documents released pursuant to FOIA request). Moreover, the Government’s mistaken

25 “release of a document only waives these privileges for the document or information

26 specifically released, and not for related materials.” In re Sealed Case, 121 F.3d 729, 741

27

6 To the extent that the Court requires disclosure of class-wide demographics despite the burden it places on

28 Defendants, for what should be obvious reasons the Court should not require Defendants to disclose the identities of

individual class members.

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL C17-0094-RAJ - 8
App. 299

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797423,FDilketdE1n0tr/y1:01/1-27, PPaaggee3903ofo1f 518

1 (D.C.Cir.1997); see also Smith v. Cromer, 159 F.3d 875, 880 (4th Cir.1998) (explaining

2 that “disclosure of factual information does not effect a waiver of sovereign immunity as

3 to other related matters”); Commonwealth of Puerto Rico v. United States, 490 F.3d 50,

4 66 (1st Cir. 2007).

5

B. No Relevant Classified Documents Exist

6

Plaintiffs next demand that Defendants search for and log classified information.

7 Defendants previously indicated that responsive classified documents may exist.

8 Defendants’ investigation has now progressed to the point that Defendants are confident

9 there are no classified documents that pertain to the CARRP policy.

10

Matthew D. Emrich, the Associate Director of the Fraud Detection and National

11 Security Directorate of USCIS, is unaware of any classified information that was used or

12 consulted in developing, drafting, revising, or modifying CARRP; does not believe that

13 any relevant classified CARRP policy, guidance, or training exists; does not believe that

14 any CARRP policy, training, or guidance has been discussed over classified email; and,

15 accordingly, is not aware of any places that classified information concerning CARRP

16 might be found. Declaration of Matthew D. Emrich (Ex. H) ¶ 10-13. Although there are

17 likely classified communications related to the specific case and circumstances of

18 individual class members, as explained above, such case-specific information is not

19 relevant to the facial CARRP challenge being raised in this case. As the individual

20 responsible for the relevant directorate is unaware of any classified information or data

21 sources likely to contain documents pertaining to CARRP, there is nowhere to search and

22 nothing to log.

23

C. Discovery Concerning the Executive Orders Is Improper

24

Plaintiffs next contend that “there is a recognized potential connection between

25 CARRP and the ‘extreme vetting’ policies instituted by the First and Second EOs.” ECF

26 No. 91 at 8-9. This “potential connection” is merely an allegation. The Court permitted

27 claims related to the Executive Orders to move beyond the pleading stage because “they

28 include allegations of a possible future and unlawful program that would embody

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL C17-0094-RAJ - 9
App. 300

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t797423F, DilekdtE1n0t/r1y0: /11-72, PPaaggee31004ooff15518

1 CARRP in all but name.” ECF No. 69 at 15. The Court cautioned, however, that “[t]he

2 main thrust of this case is the legality of CARRP.” Id. As described in the attached

3 declaration, however, there is no actual connection between CARRP and the Executive

4 Orders. The CARRP policy and any EO-related policies are distinct. Declaration of Julie

5 H. Farnam (Ex. I) ¶ 10.

6

In its Order, the Court construed “Plaintiffs’ allegations regarding an ‘extreme

7 vetting’ program as a safeguard against the Government doing away with CARRP and

8 reinstituting a substantially similar program under a different name.” ECF No. 69, at 23.

9 That has not happened. Id. ¶¶ 8-9. Thus, any discovery into the rationale behind

10 Executive Orders that have neither affected Plaintiffs nor superseded CARRP is neither

11 related to the claims currently at issue nor proportionate to the needs of the litigation. It

12 is, at a minimum, wildly premature. As the Court indicated, discovery would be

13 appropriate only if and when CARRP is replaced by a new program pursuant to

14 Executive Order. But no such plans are currently under consideration. Id.

15

Moreover, regardless of whether Defendants can assert a categorical deliberative-

16 process privilege over materials related to the EOs before searching and logging

17 documents, Defendants can show, simply based on the language of Request for

18 Production No. 23, that any responsive documents are virtually assured to be privileged

19 under the deliberative-process privilege, Executive privilege, or both. See Ex. A, Request

20 for Production No. 23 (requesting “[a]ll documents referring or relating to any

21 consideration of or reference to CARRP during the planning, drafting, or issuing of the

22 First and Second EOs”). The burden of searching for, reviewing, and logging

23 documents—virtually all of which are assured to fall under the deliberative-process

24 privilege simply by virtue of being part of the “planning” or “drafting” process—is

25 disproportionate to the needs of the case under Rule 26(b)(1).

26

Beyond this, as the President is not subject to suit for injunctive relief in the

27 performance of his official duties and the potential benefit of responding to discovery

28 demands is exceedingly slight as compared to the burden of conducting the search and

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL C17-0094-RAJ - 10
App. 301

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t797423F, DilekdtE1n0t/r1y0: /11-72, PPaaggee31015ooff15518

1 the intrusion on the Executive. The Supreme Court requires Plaintiffs to make a

2 heightened showing of need before they can require a search for, and force the

3 government to determine whether to formally assert privileges with respect to, discovery

4 sought from the President or his close advisers. See Cheney v. U.S. Dist. Ct. for the Dist.

5 of Columbia, 542 U.S. 367 (2004) (reversing court of appeals decision that the Vice

6 President and other executive officials must first formally assert privilege before the

7 Court may address their separation-of-powers objections to discovery requests).

8

Courts have thus applied Cheney to require a heightened showing of need before

9 imposing the burden of responding to discovery, as the consideration and assertion of

10 applicable privileges in these circumstances must be a “last resort.” United States v.

11 McGraw-Hill Companies, Inc., No. 13-cv-0779, 2014 WL 8662657, at *8 (C.D. Cal.

12 Sept. 25, 2014); see also Dairyland Power Co-op v. United States, 79 Fed. Cl. 659, 662

13 (2007) (“The Court agrees with the Government that, in the case of a discovery request

14 aimed at the President and his close advisors, the White House need not formally invoke

15 the presidential communications privilege until the party making the discovery request

16 has shown a heightened need for the information sought.”).

17

A showing of heightened need is necessary because, as the Supreme Court has

18 recognized, the separation of powers under our Constitution is directly implicated by

19 subjecting the President to judicial process in matters arising out of the performance of

20 his official duties. Nixon v. Fitzgerald, 457 U.S. 731, 748-55 (1982); cf. Mississippi v.

21 Johnson, 71 U.S. 475, 501 (1866). This is motivated not solely by the concern for

22 maintaining Presidential confidentiality and preventing the need to address difficult

23 separation of powers issues, but also with the distractions created by the burden of

24 responding to discovery requests, and evaluating documents for the assertion of privilege,

25 in light of the President’s official duties. See Cheney, 542 U.S. at 382, 385, 389-90.

26 Plaintiffs have not made this showing.

27

28

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL C17-0094-RAJ - 11
App. 302

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t797423F, DilekdtE1n0t/r1y0: /11-72, PPaaggee31026ooff15518

D. Only Documents of Nationwide Applicability Are Relevant to
1
Nationwide Classes

2

1. Producing Documents From Over 100 Locations Is Unduly

3

Burdensome

4

If USCIS were compelled to conduct an agency-wide domestic search for

5 documents referring or relating to CARRP, it could potentially involve collection from

6 85 field offices, 26 district offices, and 5 service centers, regardless of whether they

7 issued national-level policy or processed the types of immigration benefit applications at

8 issue in this litigation, as well as certain directorates and program offices within USCIS

9 headquarters. Moreover, as written, the relevant Requests for Production would require

10 Defendants to search for, review, and produce or log documents relating to CARRP

11 solely in the context of adjudication of specific benefit applications. As explained above,

12 searching for, reviewing, and producing or logging documents that shed no light on the

13 legality of national policy are beyond the claims that can be pursued by the two

14 nationwide classes. Plaintiffs’ request is therefore not related to their claims or defenses

15 and is clearly disproportionate to the needs of the litigation.

16

2. Plaintiffs Have Challenged CARRP on Its Face, Not As Applied

17

Finally, Defendants insist that Plaintiffs produce documents to include “regional

18 or individual communications about CARRP’s application to specific categories of

19 applications or people.” ECF No. 91 at 12. Plaintiffs contend that this information is

20 necessary to uncover “any discriminatory application of CARRP by local offices

21 adjudicating applications for adjustment of status and naturalization.” This rationale is

22 inconsistent with Plaintiffs’ claims and the scope of the certified classes.

23

Plaintiffs have framed their case as a challenge to “the legality of CARRP against

24 requirements dictated by Congress in the INA.” ECF No. 58 at 24. And, as noted above,

25 the Court has observed that the “common question here is whether CARRP is lawful.

26 The answer is ‘yes’ or ‘no.’ The answer to this question will not change based on facts

27 particular to each class member, because each class member’s application was (or will

28 be) subjected to CARRP.” ECF No. 69 at 27. As such, application of CARRP to specific

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL C17-0094-RAJ - 12
App. 303

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t797423F, DilekdtE1n0t/r1y0: /11-72, PPaaggee31037ooff15518

1 types of applications, categories of people, or specific individuals—including Plaintiffs’

2 demand for discovery into information regarding “discriminatory application of CARRP

3 by local offices,” ECF No. 91 at 12—is beyond the purview of the classes certified by the

4 Court. See Fed. R. Civ. P. 23(b)(2); ECF No. 69, at 30 (“Here, Plaintiffs allege that

5 CARRP is unlawful and ask the Court to enjoin the Government from submitting putative

6 class members’ immigration application to CARRP. A single ruling would therefore

7 provide relief to each member of the class.”).

8

Plaintiffs sought—and were granted—permission to represent two nationwide

9 classes. Remedies for discriminatory application at regional or local offices is

10 inconsistent with the relief that can be provided to a nationwide class certified under Rule

11 23(b)(2). The scope of discovery must now align with the certified classes and exclude

12 documents not relevant to whether the Court can grant relief on a national class-wide

13 basis.

14 V. CONCLUSION

15

The Court should deny Plaintiffs’ Motion to Compel Production of Documents.

16 Dated: October 10, 2017

Respectfully submitted,

17 CHAD A. READLER 18 Acting Assistant Attorney General
19 WILLIAM C. PEACHEY Director, District Court Section
20
21 EDWARD S. WHITE Senior Litigation Counsel
22 National Security & Affirmative Litigation Unit
23
24
25

/s/ Aaron R. Petty AARON R. PETTY Trial Attorney, National Security
& Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Telephone: (202) 532-4542 E-mail: Aaron.R.Petty@usdoj.gov
JOSEPH F. CARILLI, JR. Trial Attorney

26

Attorneys for Defendants

27

28

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL C17-0094-RAJ - 13
App. 304

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t797423F, DilekdtE1n0t/r1y0: /11-72, PPaaggee31048ooff15518

CERTIFICATE OF SERVICE
1

I HEREBY CERTIFY that on October 10, 2017, I electronically filed the
2

foregoing with the Clerk of the Court using the CM/ECF system, which will send
3

notification of such filing to the following CM/ECF participants:
4

Harry H. Schneider, Jr., Esq.

5

Nicholas P. Gellert, Esq.

6

David A. Perez, Esq.

Laura K. Hennessey, Esq.

7

Perkins Coie L.L.P.

1201 Third Ave., Ste. 4800
8
Seattle, WA 98101-3099

9

PH: 359-8000

FX: 359-9000

10

Email: HSchneider@perkinscoie.com

11

Email: NGellert@perkinscoie.com

Email: DPerez@perkinscoie.com

12

Email: LHennessey@perkinscoie.com

13
Matt Adams, Esq.

14

Glenda M. Aldana Madrid, Esq.

Northwest Immigrant Rights Project
15
615 Second Ave., Ste. 400

16

Seattle, WA 98104

PH: 957-8611
17
FX: 587-4025

18

E-mail: matt@nwirp.org

E-mail: glenda@nwirp.org
19

20

Emily Chiang, Esq.

ACLU of Washington Foundation

21

901 Fifth Avenue, Suite 630

Seattle, WA 98164

22

Telephone: (206) 624-2184

23

E-mail: Echiang@aclu-wa.org

24

25

26

27

28

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL C17-0094-RAJ - 14
App. 305

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t797423F, DilekdtE1n0t/r1y0: /11-72, PPaaggee31059ooff15518

Jennifer Pasquarella, Esq.

1

Sameer Ahmed, Esq.

2

ACLU Foundation of Southern California

1313 W. 8th Street

3

Los Angeles, CA 90017

Telephone: (213) 977-5211

4

Facsimile: (213) 997-5297

5

E-mail: jpasquarella@aclusocal.org

Email: sahmed@aclusocal.org

6

7

Stacy Tolchin, Esq.

Law Offices of Stacy Tolchin

8

634 S. Spring St. Suite 500A

Los Angeles, CA 90014

9

Telephone: (213) 622-7450

10

Facsimile: (213) 622-7233

E-mail: Stacy@tolchinimmigration.com

11

Trina Realmuto, Esq.

12

Kristin Macleod-Ball, Esq.

13

National Immigration Project of the National Lawyers Guild

14 Beacon St., Suite 602

14

Boston, MA 02108

Telephone: (617) 227-9727

15

Facsimile: (617) 227-5495

16

E-mail: trina@nipnlg.org

E-mail: kristin@nipnlg.org
17

18

Lee Gelernt, Esq.

Hugh Handeyside, Esq.

19

Hina Shamsi, Esq.

American Civil Liberties Union Foundation

20

125 Broad Street

21

New York, NY 10004

Telephone: (212) 549-2616

22

Facsimile: (212) 549-2654

E-mail: lgelernt@aclu.org
23
E-mail: hhandeyside@aclu.org

24

E-mail: hshamsi@aclu.org

25

26

s/ Aaron R. Petty

AARON R. PETTY

27

U.S. Department of Justice

28

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL C17-0094-RAJ - 15
App. 306

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section 219 S. Dearborn St., 5th Floor Chicago, IL 60604 (202) 532-4542

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 79742-13, DFkiletEdn1tr0y/:110-/21,7PaPgaeg3e110ooff35818
Exhibit A
App. 307

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 79742-13, DFkiletEdn1tr0y/:110-/21,7PaPgaeg3e121ooff35818

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 8

9 ABDIQAFAR WAGAFE et al., on behalf of themselves and others similarly situated,
10
Plaintiffs, 11
v. 12
DONALD TRUMP, President of the 13 United States et al.,

No. 17-cv-00094 RAJ
PLAINTIFFS’ FIRST REQUESTS FOR PRODUCTION TO DEFENDANTS

14

Defendants.

15

16

17

18

19

20

21

22

23

24

25

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ)
135025481.5

App. 308

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 79742-13, DFkiletEdn1tr0y/:110-/21,7PaPgaeg3e132ooff35818

1 TO: 2

Defendants Donald J. Trump, United States Citizenship and Immigration Services, John F. Kelly, James McCament, Matthew D. Emrich, and Daniel Renaud.

3 AND TO: Edward S. White and Aaron R. Petty, Office of Immigration Litigation, U.S. Department of Justice, attorneys for Defendants.
4 Pursuant to Federal Rules of Civil Procedure 26 and 34, Abdiqafar Wagafe, Mehdi
5 Ostadhassan, Hanin Omar Bengezi, Noah Adam Abraham (f/k/a Mushtaq Abed Jihad), and
6 Sajeel Manzoor (collectively, “Plaintiffs”), on behalf of themselves and others similarly situated,
7 request that Donald Trump, President of the United States; United States Citizenship and
8 Immigration Services; John F. Kelly, in his official capacity as Secretary of the U.S. Department
9 of Homeland Security; James McCament, in his official capacity as Acting Director of the U.S.
10 Citizenship and Immigration Services; Matthew D. Emrich, in his official capacity as Associate
11 Director of the Fraud Detection and National Security Directorate of the U.S. Citizenship and
12 Immigration Services (“FDNS”); and Daniel Renaud, in his official capacity as Associate
13 Director of the Field Operations Directorate of the U.S. Citizenship and Immigration Services
14 (collectively, “Defendants”) produce for inspection and copying the documents and things within
15 their possession, custody, or control falling within the scope of the requests below within thirty
16 (30) days of service hereof, in accordance with the Federal Rules of Civil Procedure and the
17 definitions and instructions below. Please produce the documents and things described herein to
18 the attention of the law firm of Perkins Coie LLP, 1201 Third Ave., Ste. 4900, Seattle, WA
19 98101-3099. These requests are continuing in nature. As such, Defendants must supplement
20 their responses in a timely manner in accordance with Federal Rule of Civil Procedure 26(e) as
21 additional or corrective information comes to their or their counsel’s attention.
22

23

24

25

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 1
135025481.5

App. 309

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 79742-13, DFkiletEdn1tr0y/:110-/21,7PaPgaeg3e143ooff35818

1

INSTRUCTIONS

2

The following instructions shall apply when responding to these requests for production:

3

1.

Each request herein calls for production of all responsive Documents within Your

4 possession, custody, or control, or that of Your agents, consultants, representatives, and, unless

5 privileged, attorneys.

6

2.

Without limitation of the term “control” as used in the preceding instruction, a

7 Document is deemed to be in Your control if You have the right to secure the Document or a

8 copy thereof from another Person having actual possession thereof.

9

3.

Each Document request and subparagraph or subdivision thereof is to be

10 answered separately. After each Document request, state whether all Documents responsive to

11 that request are being produced.

12

4.

Each Document request herein shall be deemed to be continuing and, in the event

13 that additional Documents are later discovered or become known to You, further production is to

14 be made hereto.

15

5.

If You object to answering any of these requests, or withhold Documents from

16 production in response to these requests, in whole or in part, state your objections and/or reasons

17 for not producing and state all factual and legal justifications that you believe support your

18 objection or failure to produce.

19

6.

If any requested Document has been lost, discarded, or destroyed, describe the

20 Document as completely as possible, including: the name, title, and description of employment

21 of each author or preparer of the Document; a complete description of the nature and subject

22 matter of the Document; and the date on which and manner in which the Document was lost,

23 discarded, destroyed, or otherwise disposed of.

24

7.

If any part of a Document is responsive to a Document request, the whole

25 Document is to be produced.

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 2
135025481.5

App. 310

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 79742-13, DFkiletEdn1tr0y/:110-/21,7PaPgaeg3e154ooff35818

1

8.

If You contend that it would be unreasonably burdensome to obtain and provide

2 all of the Documents called for in response to any Document request or any subsection thereof,

3 then in response to the appropriate Document request:

4

a.

Produce all such Documents as are available to You without undertaking

5

what You contend to be an unreasonable request;

6

b.

Describe with particularity the efforts made by You or on Your behalf to

7

produce such Documents; and

8

c.

State with particularity the grounds upon which You contend that

9

additional efforts to produce such Documents would be unreasonable.

10

9.

If any request is deemed to call for privileged Documents, and such privilege is

11 asserted in order to avoid production, provide a list with respect to each Document withheld

12 based on a claim of privilege, stating: the name of each author, the name of each recipient and

13 addressee, the date of the Document, the general subject matter of the Document, the basis upon

14 which the claim of privilege is asserted, and the Document request under which the production of

15 the Document is called for.

16

10.

In producing the Documents requested, You are requested to search electronic

17 Documents, records, data, and any other electronically stored information (“ESI”) which may be

18 stored in or on any electronic medium or device, including without limitation computers,

19 network servers, computer hard drives, e-mails, and voicemails. Your production of any ESI

20 should be produced in an electronic format permitting electronic search functionality, pursuant to

21 the Parties’ stipulation, if any, regarding preservation and production of ESI.

22

11.

In producing records responsive to Document requests, please produce tangible

23 Documents and records organized either (1) in separate groups responsive to specific requests or

24 (2) in the format and organization in which the Documents are kept in the ordinary course of

25 Your business. Please produce electronic Documents and records in Tagged Image File Format

26 (“TIFF”), single page, black and white (or in color, if necessary, for any Document or its content

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 3
135025481.5

App. 311

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 79742-13, DFkiletEdn1tr0y/:110-/21,7PaPgaeg3e165ooff35818

1 to be readable), dithered (if appropriate), at 300 x 300 dpi resolution and 8½ x 11 inch page size,

2 except for Documents requiring different resolution or page size to make them readable. Each

3 TIFF Document should be produced with an image load file in standard Opticon (*.log) format

4 that reflects the parent/child relationship. In addition, each TIFF Document should be produced

5 with a data load file in Concordance delimited format (*.dat), indicating (at a minimum)

6 appropriate unitization of the Documents, including beginning and ending production numbers

7 for (a) each Document set, and (b) each attachment within each Document set. TIFF images

8 should also be accompanied by extracted text or, for those files that do not have extracted text

9 upon being processed, optical character recognition (“OCR”) text data; such extracted text or

10 OCR text data should be provided in Document level form and named after the TIFF image. For

11 Documents produced in TIFF format, metadata should be included with the data load files

12 described above, and should include (at a minimum) the following information: file name

13 (including extension); original file path; page count; creation date and time; last saved date and

14 time; last modified date and time; author; custodian of the Document (that is, the custodian from

15 whom the Document was collected or, if collected from a shared drive or server, the name of the

16 shared driver or server); and MD5 hash value. In addition, for e-mail Documents, the data load

17 files should also include the following metadata: sent date; sent time; received date; received

18 time; “to” name(s) and address(es); “from” name and address; “cc” name(s) and address(es);

19 “bcc” name(s) and address(es); subject; names of attachment(s); and attachment(s) count. All

20 images and load files should be named or foldered in such a manner that all records can be

21 imported without modification of any path or file name information.

22

23

24

25

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 4
135025481.5

App. 312

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 79742-13, DFkiletEdn1tr0y/:110-/21,7PaPgaeg3e176ooff35818

1

DEFINITIONS

2

The following definitions shall apply when responding to these requests for production:

3

1.

“A,” “an,” and “any” include “all,” and “all” includes “a,” “an,” and “any.” All

4 of these words should be construed as necessary to bring within the scope of these requests any

5 Documents that might otherwise be construed to be outside of their scope.

6

2.

“Adjustment of Status Application” means an Immigration Benefit Application to

7 adjust the applicant’s status to that of permanent legal resident using USCIS Form I-485.

8

3.

“Adjustment of Status Applicant” means any individual who has filed an

9 Adjustment of Status Application.

10

4.

“Adjustment Class” means the following class certified by the Court in its Order

11 Granting Class Certification, Dkt. 69: A national class of all persons currently and in the future

12 (1) who have or will have an application for adjustment of status pending before USCIS, (2) that

13 is subject to CARRP or a successor “extreme vetting” program, and (3) that has not been or will

14 not be adjudicated by USCIS within six months of having been filed.

15

5.

“Alien File” or “A-file” means the collection of documents that the Department of

16 Homeland Security (DHS) maintains for non-citizens, including all official files related to

17 immigration status, citizenship or relief.

18

6.

“And” and “or” shall be construed either conjunctively or disjunctively,

19 whichever makes the request more inclusive.

20

7.

“ACLU FOIA Request” means the American Civil Liberties Union’s May 17,

21 2012 Freedom of Information Act Request, attached hereto as Exhibit A.

22

8.

“CARRP” means the Controlled Application Review and Resolution Program, an

23 internal vetting policy instituted by USCIS in April 2008. Upon information and belief, USCIS

24 first outlined the parameters of CARRP in an April 11, 2008 memorandum addressed to field

25 leadership from Deputy Director Jonathan R. Scharfen regarding “Policy for Vetting and

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 5
135025481.5

App. 313

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 79742-13, DFkiletEdn1tr0y/:110-/21,7PaPgaeg3e187ooff35818

1 Adjudicating Cases with National Security Concerns.” See Declaration of Jennifer Pasquarella

2 in Support of Plaintiffs’ Motion for Class Certification, Dkt. 27, Ex. A.

3

9.

“Communication” means the transmittal of information (in the form of facts,

4 ideas, inquiries, or otherwise), and encompasses every medium of information transmittal,

5 including but not limited to written, graphic, and electronic communication.

6

10.

“Defendants,” “You,” “Your,” or any similar word or phrase includes each

7 individual or entity responding to these requests and, where applicable, each subsidiary, parent,

8 or affiliated entity of each such Person and all Persons acting on its or their behalf.

9

11.

“Document” and its plural shall be interpreted in the broadest possible manner

10 and shall mean all written, electronic, graphic, or printed matter of any kind in Your possession

11 or control, however produced or reproduced, including all originals, drafts, working papers, and

12 all non-identical copies, whether different from the originals by reason of any notation made on

13 such copies or otherwise, and all other tangible things, including anything that would be a

14 writing or recording as defined in Federal Rule of Evidence 1001(1) or as defined in Federal

15 Rule of Civil Procedure 34(a).

16

12.

“Donkey” Security Advisory Opinion means the type of Security Advisory

17 Opinion generated when there are national security and/or terrorism concerns raised by the visa

18 application.

19

13.

“Employee” means any director, trustee, officer, employee, agent, consultant,

20 partner, reseller, distributor, corporate parent, subsidiary, affiliate, or servant of the designated

21 entity, whether active or retired, full-time or part-time, current or former, and compensated or

22 not.

23

14.

“First EO” means Executive Order 13769, entitled “Protecting the Nation from

24 Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 8977 (Feb. 1, 2017).

25

15.

“Immigration Benefit Application” means any application or petition to confer,

26 certify, change, adjust, or extend any status granted under the Immigration and Nationality Act.

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 6
135025481.5

App. 314

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 79742-13, DFkiletEdn1tr0y/:110-/21,7PaPgaeg3e198ooff35818

1

16.

“Immigration Benefit Applicant” means any individual who has filed an

2 Immigration Benefit Application.

3

17.

“National Security Concern” or “NS Concern” means the classification of

4 Immigration Benefit Applications and Immigration Benefit Applicants that are subjected to

5 CARRP. This includes, but is not limited to, the definition of National Security Concern used in

6 the April 11, 2008 memorandum addressed to field leadership from Deputy Director Jonathan R.

7 Scharfen regarding “Policy for Vetting and Adjudicating Cases with National Security

8 Concerns”: “A NS [C]oncern exists when an individual or organization has been determined to

9 have an articulable link to prior, current, or planned involvement in, or association with, an

10 activity, individual, or organization described in sections 212(a)(3)(A), (B), or (F), or

11 237(a)(4)(A) or (B) of the Immigration and Nationality Act.” See Declaration of Jennifer

12 Pasquarella in Support of Plaintiffs’ Motion for Class Certification, Dkt. 27, Ex. A.

13

18.

“Naturalization Application” means an Immigration Benefit Application to

14 naturalize as a U.S. citizen using USCIS Form N-400.

15

19.

“Naturalization Applicant” means any individual who has filed a Naturalization

16 Application.

17

20.

“Naturalization Class” means the following class certified by the Court in its

18 Order Granting Class Certification, Dkt. 69: A national class of all persons currently and in the

19 future (1) who have or will have an application for naturalization pending before USCIS, (2) that

20 is subject to CARRP or a successor “extreme vetting” program, and (3) that has not been or will

21 not be adjudicated by USCIS within six months of having been filed.

22

21.

“Person” means an individual, proprietorship, partnership, firm, corporation,

23 association, governmental agency, or other organization or entity.

24

22.

“Relate,” “reflect,” or “refer,” in all forms, means, in addition to the customary

25 and usual meaning of those words, concerning, constituting, embodying, describing, evidencing,

26 or having any logical or factual connection with the subject matter described.

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 7
135025481.5

App. 315

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege3190 of 53188

1

23.

“Second Amended Complaint” means the Second Amended Complaint for

2 Declaratory and Injunctive Relief, Dkt. 47, filed in the above-captioned action by Plaintiffs on

3 April 4, 2017.

4

24.

“Second EO” means Executive Order 13780, entitled “Protecting the Nation from

5 Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 13209 (Mar. 9, 2017).

6

25.

“Security Advisory Opinion” means the Document created in response to a

7 request by a U.S. consulate for a background security check on a foreign national who is

8 applying for a U.S. visa.

9

26.

“USCIS” means U.S. Citizenship and Immigration Services, a federal agency that

10 is a component of the United States Department of Homeland Security and is headed by a

11 director, currently James McCament.

12

27.

Where appropriate, the singular form of a word should be interpreted in the plural

13 and vice versa, to acquire the broadest possible meaning.

14

28.

Any term defined herein shall have the indicated meaning whenever that term is

15 used in these requests for production unless the context clearly requires otherwise. All defined

16 terms are indicated by capitalizing the first letter of each term (except “and,” “or,” “relate,”

17 “reflect,” and “refer”), as shown in the instructions and definitions above.

18

REQUESTS FOR PRODUCTION

19

20

REQUEST FOR PRODUCTION NO. 1: All Documents referring or relating to the

21 development, conception, or origins of CARRP.

22

23

RESPONSE:

24

25

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 8
135025481.5

App. 316

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege32101 of 53188

1

REQUEST FOR PRODUCTION NO. 2: All Documents referring or relating to the

2 implementation of CARRP.

3

4

RESPONSE:

5

6

REQUEST FOR PRODUCTION NO. 3: All policy memoranda or other policy

7 Documents referring or relating to CARRP, including any and all attachments. This request

8 includes but is not limited to policy memoranda produced by USCIS, U.S. Department of

9 Defense, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department

10 of State, U.S. Customs and Border Protection, or the Office of the Director of National

11 Intelligence.

12

13

RESPONSE:

14

15

REQUEST FOR PRODUCTION NO. 4: All operational guidance referring or relating

16 to CARRP, including any and all attachments. This request includes but is not limited to

17 operational guidance produced by USCIS, U.S. Department of Defense, U.S. Department of

18 Homeland Security, U.S. Department of Justice, U.S. Department of State, U.S. Customs and

19 Border Protection, or the Office of the Director of National Intelligence.

20

21

RESPONSE:

22

23

REQUEST FOR PRODUCTION NO. 5: All training materials referring or relating to

24 CARRP, including any and all attachments. This requests includes but is not limited to training

25 materials produced by USCIS, U.S. Department of Defense, U.S. Department of Homeland

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 9
135025481.5

App. 317

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege32112 of 53188

1 Security, U.S. Department of Justice, U.S. Department of State, U.S. Customs and Border

2 Protection, or the Office of the Director of National Intelligence.

3

4

RESPONSE:

5

6

REQUEST FOR PRODUCTION NO. 6: All Documents referring or relating to the

7 definition or interpretation of National Security Concern.

8

9

RESPONSE:

10

11

REQUEST FOR PRODUCTION NO. 7: All Documents referring or relating to any

12 and all policies, procedures, guidelines and training materials relating to the processing and

13 adjudication of Immigration Benefit Applications with a National Security Concern from any

14 directorate, department, unit or entity within USCIS, including but not limited to the Fraud

15 Detection and National Security Directorate (FDNS), Domestic Operations Directorate

16 (DomOps), Service Center Operations Directorate, Field Operations Directorate, Background

17 Check Unit (BDU), and The Screening Coordination Office (SCO) of FDNS.

18

19

RESPONSE:

20

REQUEST FOR PRODUCTION NO. 8: All Documents referring or relating to the

21 definition of or interpretation of “national security indicators” or “national security activities,” as

22 these terms are used and applied under CARRP. This request includes, but is not limited to, any

23 policies, procedures, guidelines, and training materials referring or relating to the identification

24 of “national security indicators” or “national security activities,” the evaluation of “national

25 security indicators” or “national security activities,” the relationship between national security

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 10
135025481.5

App. 318

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege32123 of 53188

1 indicators,” “national security activities” and National Security Concerns, and the vetting,

2 deconfliction and resolution of “national security indicators” and “ national security activities.”

3

4

RESPONSE:

5

6

REQUEST FOR PRODUCTION NO. 9: All Documents referring or relating to the

7 definition of or interpretation of the possible “articulable links” between a given individual and a

8 “national security indicator” or “national security activity,” as these terms are used and applied

9 under CARRP.

10

11

RESPONSE:

12

13

REQUEST FOR PRODUCTION NO. 10: All Documents referring or relating to any

14 policy memoranda or procedures rescinded by the implementation of CARRP. This request

15 includes, but is not limited to, those policy memoranda and procedures listed as rescinded in the

16 April 11, 2008 USCIS memorandum from Jonathan R. Scharfen to Field Leadership regarding

17 “Policy for Vetting and Adjudicating Cases with National Security Concerns.” See Declaration

18 of Jennifer Pasquarella in Support of Plaintiffs’ Motion for Class Certification, Dkt. 27, Ex. A at

19 2-3.

20

21

RESPONSE:

22

23

REQUEST FOR PRODUCTION NO. 11: All Documents referring or relating to the

24 connection between Security Advisory Opinion(s) issued by the U.S. Department of State and

25 CARRP. This request encompasses both connections between CARRP and (1) specific Security

26 Advisory Opinion(s) and (2) the Security Advisory Opinion procedure in general. This request

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 11
135025481.5

App. 319

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege32134 of 53188

1 includes, but is not limited to, any Security Advisory Opinion(s), including Donkey Security

2 Advisory Opinion(s), as well as requests for Security Advisory Opinion(s) that refer or relate to

3 the applications of any named Plaintiff or any other application subject to CARRP.

4

5

RESPONSE:

6

7

REQUEST FOR PRODUCTION NO. 12: All Documents referring or relating to

8 named Plaintiff Abdiqafar Wagafe. This request includes, but is not limited to, Mr. Wagafe’s

9 Alien File, any records and information stored in the Fraud Detection and National Security

10 Directorate Data System (“FDNS-DS”), e-mail correspondence, any and all records to which

11 USCIS adjudicators and FDNS officers had access in federal, state, or local databases referring

12 or relating to Mr. Wagafe, and any and all records created by any U.S. Department of Homeland

13 Security official referring or relating to Mr. Wagafe.

14

15

RESPONSE:

16

17

REQUEST FOR PRODUCTION NO. 13: All Documents referring or relating to the

18 reasons why Plaintiff Abdiqafar Wagafe’s naturalization application was subject to CARRP.

19

20

RESPONSE:

21

22

REQUEST FOR PRODUCTION NO. 14: All Documents referring or relating to

23 named Plaintiff Mehdi Ostadhassan. This request includes, but is not limited to, Mr.

24 Ostadhassan’s Alien File, any records and information stored in the Fraud Detection and

25 National Security Directorate Data System (“FDNS-DS”), e-mail correspondence, any and all

26 records to which USCIS adjudicators and FDNS officers had access in federal, state, or local

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 12
135025481.5

App. 320

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege32145 of 53188

1 databases referring or relating to Mr. Ostadhassan, and any and all records created by any U.S.

2 Department of Homeland Security official referring or relating to Mr. Ostadhassan.

3

4

RESPONSE:

5

6

REQUEST FOR PRODUCTION NO. 15: All Documents referring or relating to the

7 reasons why Plaintiff Mehdi Ostadhassan’s adjustment of status application was subject to

8 CARRP.

9

10

RESPONSE:

11

12

REQUEST FOR PRODUCTION NO. 16: All Documents referring or relating to

13 named Plaintiff Hanin Omar Bengezi. This request includes, but is not limited to, Ms. Bengezi’s

14 Alien File, any records and information stored in the Fraud Detection and National Security

15 Directorate Data System (“FDNS-DS”), e-mail correspondence, any and all records to which

16 USCIS adjudicators and FDNS officers had access in federal, state, or local databases referring

17 or relating to Ms. Bengezi, and any and all records created by any U.S. Department of Homeland

18 Security official referring or relating to Ms. Bengezi.

19

20

RESPONSE:

21

22

REQUEST FOR PRODUCTION NO. 17: All Documents referring or relating to the

23 reasons why Plaintiff Hanin Omar Bengezi’s adjustment of status application was subject to

24 CARRP.

25

26

RESPONSE:

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 13
135025481.5

App. 321

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege32156 of 53188

1

2

REQUEST FOR PRODUCTION NO. 18: All Documents referring or relating to

3 named Plaintiff Noah Adam Abraham, f/k/a Mushtaq Abed Jihad. This request includes, but is

4 not limited to, Mr. Abraham’s Alien File, any records and information stored in the Fraud

5 Detection and National Security Directorate Data System (“FDNS-DS”), e-mail correspondence,

6 any and all records to which USCIS adjudicators and FDNS officers had access in federal, state,

7 or local databases referring or relating to Mr. Abraham, and any and all records created by any

8 U.S. Department of Homeland Security official referring or relating to Mr. Abraham.

9

10

RESPONSE:

11

12

REQUEST FOR PRODUCTION NO. 19: All Documents referring or relating to the

13 reasons why Plaintiff Noah Adam Abraham, f/k/a Mushtaq Abed Jihad’s naturalization

14 application was subject to CARRP.

15

16

RESPONSE:

17

18

REQUEST FOR PRODUCTION NO. 20: All Documents referring or relating to the

19 Immigration Benefit Application(s) of named Plaintiff Sajeel Manzoor. This request includes,

20 but is not limited to, Mr. Manzoor’s Alien File, any records and information stored in the Fraud

21 Detection and National Security Directorate Data System (“FDNS-DS”), e-mail correspondence,

22 any and all records to which USCIS adjudicators and FDNS officers had access in federal, state,

23 or local databases referring or relating to Mr. Manzoor, and any and all records created by any

24 U.S. Department of Homeland Security official referring or relating to Mr. Manzoor.

25

26

RESPONSE:

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 14
135025481.5

App. 322

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege32167 of 53188

1

2

REQUEST FOR PRODUCTION NO. 21: All Documents referring or relating to the

3 reasons why Plaintiff Sajeel Manzoor’s naturalization application was subject to CARRP.

4

5

RESPONSE:

6

7

REQUEST FOR PRODUCTION NO. 22: All Documents referring or relating to any

8 proposed, implemented, or planned modifications to CARRP from April 11, 2008 to the present.

9

10

RESPONSE:

11

12

REQUEST FOR PRODUCTION NO. 23: All Documents referring or relating to any

13 consideration of or reference to CARRP during the planning, drafting, or issuing of the First and

14 Second EOs.

15

16

RESPONSE:

17

18

REQUEST FOR PRODUCTION NO. 24: All Documents referring or relating to

19 “extreme vetting” or any other screening, vetting, or adjudication program, policy, or procedure

20 connected to the First or Second EOs. This request includes, but is not limited to, programs that

21 reference, relate to, or expand upon CARRP.

22

23

RESPONSE:

24

25

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 15
135025481.5

App. 323

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege32178 of 53188

1

REQUEST FOR PRODUCTION NO. 25: All Documents referring or relating to the

2 relationship between CARRP and any other preexisting or planned policy, program, standard, or

3 procedure for screening, vetting, or adjudicating Immigration Benefit Applications.

4

5

RESPONSE:

6

7

REQUEST FOR PRODUCTION NO. 26: All Documents referring or relating to

8 “extreme vetting” or any other program, policy or procedure to identify, screen, vet, or

9 adjudicate naturalization or adjustment of status applications where a National Security Concern

10 is present.

11

RESPONSE:

12

13

REQUEST FOR PRODUCTION NO. 27: All Documents referring or relating to the

14 number of Immigration Benefit Applications subject to CARRP or designated as a National

15 Security Concern at any point from 2008 to the present. This request includes, but is not limited,

16 to all National Security Monthly Case Load and Aging Reports, National Security Quarterly

17 Workload and Aging Reports, and any other periodic reports, data, or statistics related to

18 CARRP, including those that break down applications by country of origin, citizenship, religion,

19 or any other demographics.

20

21

RESPONSE:

22

23

REQUEST FOR PRODUCTION NO. 28: All Documents referring to, relating to, or

24 reflecting the age, sex, country of origin, country of citizenship, religion, race, ethnicity, or other

25 demographics of Immigration Benefit Applicants who have been identified as a National

26 Security Concern or otherwise subjected to CARRP, including application processing times.

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 16
135025481.5

App. 324

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege32189 of 53188

1

2

RESPONSE:

3

4

REQUEST FOR PRODUCTION NO. 29: All Documents referring or relating to any

5 program, policy or procedure to identify, screen, vet, or adjudicate naturalization or adjustment

6 of status applications based on national origin.

7

8

RESPONSE:

9

10

REQUEST FOR PRODUCTION NO. 30: All Documents referring or relating to any

11 program, policy or procedure to identify, screen, vet, or adjudicate naturalization or adjustment

12 of status applications based on religion.

13

14

RESPONSE:

15

16

REQUEST FOR PRODUCTION NO. 31: All Documents referring or relating to any

17 program, policy or procedure to identify, screen, vet, or adjudicate naturalization or adjustment

18 of status applications based on race or ethnicity.

19

20

RESPONSE:

21

22

REQUEST FOR PRODUCTION NO. 32: All Documents that any Defendant

23 contends support any denial of any allegation in the Second Amended Complaint, or that any

24 Defendant relies upon in denying any of the allegations in the Second Amended Complaint.

25

26

RESPONSE:

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 17
135025481.5

App. 325

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege3290 of 53188

1

2

REQUEST FOR PRODUCTION NO. 33: All Documents that any Defendant

3 contends support any affirmative defense set forth in response to the Second Amended

4 Complaint, or that any Defendant relies upon in asserting any affirmative defense set forth in

5 response to the Second Amended Complaint.

6

7

RESPONSE:

8

9

REQUEST FOR PRODUCTION NO. 34: All Documents sufficient to identify

10 members of the Naturalization Class, including, but not limited to, any list that might exist

11 identifying those who are or have been subject to CARRP, and, where available, the following

12 identifying information for each class member: name, A-number, age, sex, country of origin,

13 country of citizenship, religion, race, ethnicity, date the naturalization application was filed, and

14 current status of the naturalization application.

15

16

RESPONSE:

17

18

REQUEST FOR PRODUCTION NO. 35: All Documents sufficient to identify all

19 members of the Adjustment Class, including, including, but not limited to, any list that might

20 exist identifying those who are or have been subject to CARRP, and, where available, the

21 following identifying information for each class member: name, A-number, age, sex, country of

22 origin, country of citizenship, religion, race, ethnicity, date the adjustment application was filed,

23 and current status of the adjustment application.

24

25

RESPONSE:

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 18
135025481.5

App. 326

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege33201 of 53188

1

REQUEST FOR PRODUCTION NO. 36: All versions of USCIS’s organization chart

2 for USCIS headquarters and the Seattle USCIS Field Office, reflecting the names, titles, and

3 positions of officials and Employees from 2007 to the present. This request includes

4 organization charts of USCIS as a whole, as well as the Fraud Detection and National Security

5 (FDNS) Directorate of USCIS.

6

7

RESPONSE:

8

9

REQUEST FOR PRODUCTION NO. 37: All versions of any organization chart or

10 similar document reflecting or identifying the individuals responsible for implementing CARRP,

11 including but not limited to those individuals responsible for drafting and presenting training

12 materials about CARRP and officers designated as CARRP officers.

13

14

RESPONSE:

15

16

REQUEST FOR PRODUCTION NO. 38: All Documents referring or relating to the

17 names, titles, and job descriptions of all Your officials and Employees who bear any

18 responsibility, directly or indirectly, in whole or in part, for CARRP or any related extreme

19 vetting program. This request includes but is not limited to officials and Employees who are or

20 were responsible for the creation, implementation, execution, oversight, and future development

21 of CARRP or any related extreme vetting program.

22

23

RESPONSE:

24

25

REQUEST FOR PRODUCTION NO. 39: All Documents previously withheld or

26 produced in redacted form pursuant to any exemption from the Freedom of Information Act,

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 19
135025481.5

App. 327

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege33212 of 53188

1 produced in unredacted form. This request is limited to Documents withheld or produced in

2 response to the ACLU FOIA Request.

3 4 DATED: August 1, 2017

5 s/Jennifer Pasquarella (admitted pro hac vice) s/ Harry H. Schneider, Jr. ACLU Foundation of Southern California Harry H. Schneider, Jr. #9404

6 1313 W. 8th Street Los Angeles, CA 90017

s/ Nicholas P. Gellert Nicholas P. Gellert #18041

7 Telephone: (213) 977-5236 Facsimile: (213) 997-5297

s/ David A. Perez David A. Perez #43959

8 jpasquarella@aclusocal.org

s/ Laura K. Hennessey Laura K. Hennessey #47447

9 s/Matt Adams

Attorneys for Plaintiffs

10 s/Glenda M. Aldana Madrid Matt Adams #28287

Perkins Coie LLP 1201 Third Avenue, Suite 4900

11 Glenda M. Aldana Madrid #46987 Northwest Immigrant Rights Project

Seattle, WA 98101-3099 Telephone: 206.359.8000

12 615 Second Ave., Ste. 400 Seattle, WA 98122

Facsimile: 206.359.9000 Email: HSchneider@perkinscoie.com

13 Telephone: (206) 957-8611 Facsimile: (206) 587-4025

NGellert@perkinscoie.com DPerez@perkinscoie.com

14 matt@nwirp.org glenda@nwirp.org

LHennessey@perkinscoie.com

15 s/Stacy Tolchin (admitted pro hac vice)

s/Trina Realmuto (admitted pro hac vice)

16 Law Offices of Stacy Tolchin 634 S. Spring St. Suite 500A

s/Kristin Macleod-Ball (admitted pro hac vice) National Immigration Project

17 Los Angeles, CA 90014 Telephone: (213) 622-7450

of the National Lawyers Guild 14 Beacon St., Suite 602

18 Facsimile: (213) 622-7233 Stacy@tolchinimmigration.com

Boston, MA 02108 Telephone: (617) 227-9727

19

Facsimile: (617) 227-5495

trina@nipnlg.org

20

kristin@nipnlg.org

21

22

23

24

25

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 20
135025481.5

App. 328

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege33223 of 53188

1 s/Hugh Handeyside Hugh Handeyside #39792
2 s/Lee Gelernt (admitted pro hac vice) s/Hina Shamsi (admitted pro hac vice)
3 American Civil Liberties Union Foundation 125 Broad Street
4 New York, NY 10004 Telephone: (212) 549-2616
5 Facsimile: (212) 549-2654 lgelernt@aclu.org
6 hhandeyside@aclu.org hshamsi@aclu.org
7

s/Emily Chiang Emily Chiang #50517 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Echiang@aclu-wa.org

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

PLAINTIFFS’ FIRST RFPS (No. 17-cv-00094 RAJ) – 21
135025481.5

App. 329

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege33234 of 53188

1

CERTIFICATE OF SERVICE

2

3

The undersigned certifies under penalty of perjury and the laws of the State of

4 Washington that on August 1st, 2017, I caused service of the foregoing, PLAINTIFFS’ FIRST

5 SET OF REQUESTS FOR PRODUCTION TO DEFENDANTS, via email to all counsel of

6 record herein.

7

Aaron R. Petty US Department Of Justice

8

219 S. Dearborn St., 5th Floor

9

Chicago, IL 60604 Telephone: 202-532-4542

10 aaron.r.petty@usdoj.gov

Via Email

11

Edward S. White US Department Of Justice

12

PO Box 868 Ben Franklin Station

13

Washington, DC 20044 Telephone: 202-616-9131

14

Facsimile: 202-305-7000 edward.s.white@usdoj.gov

Via Email

15 Joseph F. Carilli, Jr.
U.S. Department Of Justice 16 PO Box 868,
Ben Franklin Station 17 Washington, DC 20044
Telephone: 202-616-4848 18 Facsimile: 202-305-7000
joseph.f.carilli2@usdoj.gov 19

Via Email

20

I certify under penalty of perjury that the foregoing is true and correct.

21

DATED this 1st day of August 2017, at Seattle, Washington.

22 23 24 25 26
CERTIFICATE OF SERVICE (No. 17-cv-00094 RAJ) – 1
135025481.5

s/Laura K. Hennessey Laura K. Hennessey #47447 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: LHennessey@perkinscoie.com

App. 330

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege33245 of 53188
EXHIBIT A
App. 331

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege33256 of 53188 App. 332

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege33267 of 53188 App. 333

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege33278 of 53188 App. 334

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege33289 of 53188 App. 335

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege3390 of 53188 App. 336

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege34301 of 53188 App. 337

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege34312 of 53188 App. 338

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege34323 of 53188 App. 339

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege34334 of 53188 App. 340

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege34345 of 53188 App. 341

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege34356 of 53188 App. 342

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege34367 of 53188 App. 343

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t49747-213, FDilketdEn1t0ry/1: 01/-127, PPagaege34378 of 53188 App. 344

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-32, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e481 of 5618
Exhibit B
App. 345

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-32, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e492 of 5618

September 11, 2017
VIA EMAIL
Aaron R. Petty, IL 6293553 US Department of Justice Office of Immigration Litigation 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Aaron.R.Petty@usdoj.gov
Joseph F. Carilli, Jr. U.S. Department of Justice PO Box 868, Ben Franklin Station Washington, DC 20044 joseph.f.carilli2@usdoj.gov

Nicholas P. Gellert NGellert@perkinscoie.com
D. +1.206.359.8680 F. +1.206.359.9680
Edward S. White (NY 2088979) Office of Immigration Litigation-District Court Section Civil Div., U.S. Department of Justice PO Box 868, Ben Franklin Station Washington, DC 20044 Edward.s.white@usdoj.gov

Re: Wagafe et al. v. Donald Trump et al. United States District Court No. 17-cv-00094-RAJ
Dear Counsel:
We write in reference to Defendants’ Objections and Responses to Plaintiffs’ First Set of Requests for Production of Documents (“Responses”). Based on our initial review, we have several concerns that we would like to discuss at your earliest convenience. Our review of Defendants’ Responses is ongoing, and we reserve the right to supplement these concerns at a later date.
As an initial matter, the proposed production timeline is unworkable. Given the complexity and breadth of this case, Plaintiffs are amenable to rolling productions over a reasonable period of time, but Defendants’ proposal of rolling productions over a six-month period would put Plaintiffs dangerously close to the agreed discovery cutoff date before Plaintiffs would even receive a full production on their first set of discovery requests. This timing would make followup discovery requests and depositions before the discovery deadline impracticable, if not impossible. The Rules require that Defendants produce documents within 30 days after they are requested (a deadline that has already passed) or “another reasonable time specified in the response.” FED. R. CIV. P. 34(b)(2)(B). A six-month timeline is not reasonable. We can offer

136863886.2

App. 346

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-32, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e503 of 5618

Wagafe et al. v. Donald Trump et al. September 11, 2017 Page 2
Defendants until October 31 to complete production of the first set of discovery requests, with weekly rolling productions between now and then—which is three full months from the date the requests were made.
Turning to the substance, Defendants’ Responses include sweeping general objections and do not clearly state whether and to what extent responsive, non-privileged information will be withheld in response to each request. Defendants are required to state objections with specificity and state whether any responsive materials are being withheld on the basis of the objections. FED. R. CIV. P. 34(b)(2)(B), (C). As the Responses currently stand, Plaintiffs cannot ascertain whether and to what extent Defendants plan to withhold responsive documents based on the several broad categories outlined in Defendants’ general objections.
Moreover, Defendants’ objections are improper. For example:
 Privilege: Defendants’ categorical assertion of several privileges, implying that unidentified categories of responsive documents will be withheld without inclusion on a privilege log, is improper. The Rules require, among other things, that Defendants individually log every document they claim is responsive but privileged, and identify (a) the persons involved with such communication, and (b) the nature of the privilege. See, e.g., FED. R. CIV. P. 26(b)(5)(A).
 Executive Orders: Discovery sought in this case related to the Second Executive Order (EO) is not wedded to the issues before the Supreme Court this term. Additionally, although the First EO was rescinded, Plaintiffs seek discovery related to the consideration of the Controlled Application Review and Resolution Program (CARRP) or a similar program in connection with the First EO and, therefore, is not moot. The Court denied Defendants’ motion to dismiss the claims related to the Executive Orders, which forecloses Defendants’ argument that Plaintiffs are not entitled to discovery on these claims.
 Classified Documents: The mere fact that a document is classified does not automatically render it unresponsive, untraceable, and untouchable by the discovery process. Defendants’ categorical refusal to search any classified documents is unacceptable. To the extent responsive documents are classified, the parties can discuss methods by which those documents can be produced to and accessed by Plaintiffs’ counsel. Simply stating that Defendants will not produce them violates obligations under the Rules.
 Attorney-Related Communications: Defendants’ categorical refusal to produce any communications to or from attorneys is inappropriate. Not every communication with an attorney is inherently or automatically privileged. Defendants cannot avoid their

136863886.2

App. 347

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-32, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e514 of 5618

Wagafe et al. v. Donald Trump et al. September 11, 2017 Page 3
obligation to review all potentially responsive documents and make a privilege determination for each document. Again, as outlined above, if Defendants’ position is that a document is privileged, it must be included in a privilege log.
 E-mail: Defendants’ categorical refusal to produce any email correspondence is unacceptable. The Court has certified two nationwide classes and has denied Defendants’ motion to dismiss. E-mail is a typical (often the primary) source of document production, and the inconvenience of Defendants’ chosen storage methods does not outweigh the obvious relevance of this material. The Second Amended Complaint was filed in April—Defendants have had time to obtain externally stored emails. To the extent Defendants have not yet requested these externally stored e-mails for purposes of this document production, we ask that Defendants do so immediately so that they can be included in weekly productions before October 31.
 Non-USCIS Documents: The President of the United States and the Department of Homeland Security are Defendants in Plaintiffs’ Second Amended Complaint, which the Court has ruled adequately pleads several claims for relief. As such, the same discovery obligations attach to these entities as attach to the named USCIS entities. Defendants’ purported refusal to produce any documents from non-USCIS entities is improper. Further, even if it were correct that injunctive relief is not available against the President (which Plaintiffs do not concede under the circumstances), the Second Amended Complaint also seeks declaratory relief and thus Defendants’ objection to participating in discovery from the President on the basis that an injunction cannot be sought is without merit.
 Documents Outside of USCIS: Plaintiffs are entitled to discovery from all Defendants of documents within Defendants’ possession, custody, or control, not just those stored at or generated by USCIS. Defendants’ assertion to the contrary is without merit.
Plaintiffs accordingly request clarification on the scope and application of these general objections, including a discussion of how each general objection will apply to Defendants’ production of documents responsive to Plaintiffs’ requests for production.
In addition, Plaintiffs also note several substantive issues with Defendants’ responses to individual RFPs. For example:
 Identification of Class Members (RFPs 13, 15, 17, 19, 21, 34, 35): The Court has certified two nationwide classes represented by the five named Plaintiffs. In order to pursue their claims regarding CARRP, the named Plaintiffs need to know whether they were in fact subjected to CARRP. With respect to persons who are not named plaintiffs but who are subjected to CARRP, they have a right to know whether they are Plaintiffs

136863886.2

App. 348

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-32, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e525 of 5618

Wagafe et al. v. Donald Trump et al. September 11, 2017 Page 4

and part of these certified classes. (Please note that for class members who are not named plaintiffs we are not requesting information on why they were subjected to CARRP.) Defendants’ vague and categorical assertion that this information is privileged is unacceptable.
 FOIA Documents (RFP 39): Defendants’ assertion that two of the FOIA exemptions— (5) and (7)(E)—are categorically privileged does not appear to have any legal justification and defies the plain text of the exemptions.
 No Responsive Documents Assertion (RFPs 29, 30, 31): Plaintiffs do not understand how Defendants can assert that there are “no documents responsive” to these RFPs before they have searched for such responsive documents, produced those that are not privileged, and logged those they claim are privileged. If such a search has occurred and no responsive documents were located, Plaintiffs request Defendants provide information regarding the breadth of what was searched and how the search was conducted.
 Documents Relating to Development of CARRP (RFP 1): The development of CARRP is central to all of Plaintiffs’ claims. Defendants’ outright refusal to identify who was involved in CARRP’s development and collect documents from those custodians is inappropriate. These documents are highly relevant and the average and expected burden of identifying custodians and producing documents from those custodians cannot outweigh this relevance.
 Documents of “National Applicability” (throughout): Throughout the Responses, Defendants limit their production to documents of “national applicability.” This term is unclear, though the implication is that Defendants intend to limit any document production to formal documents stored centrally at USCIS headquarters. As stated above, Defendants cannot avoid the identification of custodians and production of responsive, non-privileged documents from those custodians’ files.
 Documents Dated Before April 11, 2017 (RFP 26): RFP 26 asks for “all Documents referring or relating to ‘extreme vetting’ or any other program, policy or procedure to identify, screen, vet, or adjudicate naturalization or adjustment of status applications where a National Security Concern is present.” In response, Defendants contend, without reason or justification, that they will only produce responsive documents “that are dated on or after April 11, 2017.” There is no reason for this arbitrary deadline, and Defendants are required to produce all responsive documents before that date.
 Documents Produced by the U.S. Department of Defense, U.S. Department of Justice, U.S. Department of State, and the Office of the Director of National Intelligence (RFPs

136863886.2

App. 349

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Wagafe et al. v. Donald Trump et al. September 11, 2017 Page 5
3, 4, 5): Defendants contend that they will not produce responsive documents from these federal agencies because they were not explicitly named as Defendants in the Second Amended Complaint. As explained above, to the extent any documents produced by these federal agencies are in the possession, custody, or control of named Defendants (the President, the Department of Homeland Security, USCIS, etc.), they are responsive and must be produced.
 Documents with respect to any other immigration benefits that are subject to CARRP (throughout): Defendants contend that because the certified classes address only applicants for naturalization and adjustment of status that any other programs are irrelevant. This is incorrect for several reasons—including, (1) the fact that the implementation of CARRP as to other immigration benefits may directly impact applicants’ ability to adjust or naturalize (e.g., the application of CARRP to visa petitions, or application of CARRP to I-751’s, depriving persons of the opportunity to move forward with naturalization applications); and (2) policies clarifying the processing of CARRP may have been initially directed at other programs.
Finally, Plaintiffs would like to discuss the process for agreeing on search terms to be used in Defendants’ document production. Plaintiffs request that, on or before September 18, Defendants propose search term strings on an RFP-by-RFP basis, complete with a catalogue of the document hits that accompany each string. Plaintiffs will review and suggest modifications by September 22.
Please let us know a time on Thursday or Friday (September 14 or 15) when you can meet and confer on these items.
Very truly yours,
Nicholas P. Gellert
cc: Jennie Pasquarella Sameer Ahmed David Perez Laura Hennessey

136863886.2

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CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-33, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e541 of 5618
Exhibit C
App. 351

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-33, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e552 of 5618

U.S. Department of Justice

Civil Division

Office of Immigration Litigation

District Court Section

______________________________________________________________________________

Direct Dial: (202) 616-9131

P.O. Box 868

Facsimile: (202) 305-7000

Ben Franklin Station

Washington, DC 20044-0868

September 22, 2017

VIA EMAIL

Mr. Nicholas P. Gellert (NGellert@perkinscoie.com) Mr. David A. Perez (DPerez@perkinscoie.com) Ms. Laura K. Hennessey (LHennessey@perkinscoie.com) Perkins Coie 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099

Ms. Jennifer Pasquarella (JPasquarella@aclusocal.org) Mr. Sameer Ahmed (SAhmed@aclusocal.org) ACLU Foundation of Southern California 1313 W. 8th Street Los Angeles, CA 90017

Re: Wagafe v. Trump, No. 2:17-cv-00094-RAJ (W.D. Wash.)

Dear Counsel:

Thank you for taking the time on Tuesday, September 19, 2017, to discuss, during a telephone conference, Defendants’ Objections and Responses to Plaintiffs’ First Requests for Production (hereinafter “Responses to the RFPs”) for Wagafe v. Trump. The conversation focused on Plaintiffs’ counsel’s September 11, 2017 letter to Defendants’ counsel about the Responses to the RFPs. During the conversation, Plaintiffs’ counsel reviewed the content of the September 11, 2017 letter and requested Defendants to reconsider the Responses to the RFPs. As promised, we are writing to follow up on that conversation. We do not intend in this letter to address every point raised in your September 11th letter or during our September 19th telephone conference, but rather just those matters on which we said we would follow up with you.

1. United States Citizenship and Immigration Services (“USCIS”) informed counsel that the non-custodial source “FDNS ECN,” listed in Defendants’ September 11, 2017 ESI Disclosures (hereinafter “ESI Disclosures”), includes FDNS’s CARRP materials that are stored on the ECN. On our call, we referred to that as the CARRP SharePoint site, but that is not a term that USCIS uses. There are also CARRP materials on the ECN sites of other directorates/offices listed on the ESI disclosures. FDNS’s ECN site, however, has the most extensive CARRP documents. Defendants intend to prioritize the responsiveness and privilege review (hereinafter “review”) of the documents from that non-custodial source, because that non-custodial source is the best source of discoverable information. Once the review is complete, Defendants intend to prioritize the review of the remaining non-custodial sources listed in the ESI Disclosures because

App. 352

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Wagafe v. Trump, No. 2:17-cv-00094-RAJ
those non-custodial sources are the most likely sources to contain discoverable information relevant to the claims and defenses at issue in this matter.
2. As discussed during the telephone call, Defendants have commenced the review of the CARRP documents contained on the FDNS ECN site. Additionally, Defendants are working diligently to continue to transfer documents from USCIS to our review platform as quickly as possible. That said, after discussing the collection, review, and production timeframe with USCIS, Defendants and counsel continue to believe that a production timeline of less than six months is unrealistic. Once Defendants have loaded the documents contained in all of the noncustodial sources listed in the ESI Disclosures into the review platform, Defendants may be in position to re-assess the six month production timeline; however, this still will not account for documents collected from Custodians.
a. During our phone conversation, Plaintiffs’ counsel stated multiple times that Defendants were obliged to produce responsive materials within 30 days of the request. Defendants respectfully disagree with that reading of the Federal Rules of Civil Procedure. Defendants have complied with our obligation under Federal Rule Of Civil Procedure 34(b)(2) to respond in writing within thirty days.1 Rule 34(b)(2) further states that the documents requested must be produced by the responding party “no later than the time . . . specified in the request or another reasonable time specified in the response.” Fed. R. Civ. P. 34(b)(2)(B) (emphasis added). Defendants assert that the timeline delineated in our Responses to the RFPs is reasonable. That said, Defendants intend to produce documents on a rolling basis, and Defendants will endeavor to complete, if able, production in less than six (6) months.
b. Additionally, to the extent Plaintiffs’ counsel are concerned that Plaintiffs will be unable to complete additional discovery if Defendants’ take six months to complete their production of documents responsive to the First RFPs, Defendants continue to propose a joint motion to the Court to extend the discovery period (and all other associated dates), so that both sides have adequate time to work through discovery in this case.
3. After consulting with USCIS, Defendants propose to prioritize the search, collection, review, and production from the Custodians identified in Defendants’ ESI Disclosures, as follows:
a. Christopher Heffron b. Ronnie Thomas c. Jaime Benevides d. Ronald Atkinson e. Cristina Hamilton f. Susan Knafla g. Mark Freeman h. Markus Montezemolo
Please inform counsel if Plaintiffs agree or prefer a different prioritization. You also requested that Defendants identify the “main architects” of CARRP. Various individuals have worked on
1 Defendants recognize that the response occurred 35 days after service, based on Plaintiffs’ consent.
2
App. 353

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Wagafe v. Trump, No. 2:17-cv-00094-RAJ
CARRP, and until there has been a thorough search and review of materials, any attempt to identify the key individuals involved in the development of CARRP would be based on any individual’s potentially incomplete recollections. Defendants believe the people identified above are the key custodians of potentially discoverable information, but as production of the documents responsive to the First RFPs progresses, Plaintiffs can make their own assessment of who was key. Further, respectfully, your request for us to provide the key individuals involved in the development of the CARRP policy is not appropriately raised through a Request for Production.
4. Ronald A. Atkinson was the Chief of the National Security Adjudications Unit within the National Security Branch of FDNS when CARRP was developed, and was involved in planning its operational implementation. He is listed in Defendants’ ESI Disclosure. He has identified at least one meeting invitation from January 2008 with the subject “CARRP policy memo” that has 20 invitees. He believes there would have been additional staff who were working technical, legal, coordination, and other issues, which led to the estimate in Defendants’ Response to the RFPs that “40 to 50 people” were involved in the creation of CARRP.
5. As we discussed, Defendants will search, collect, review, and produce (or withhold and log on a privilege log), e-mail messages from the Custodians identified in the ESI Disclosures that are journaled. In the Response to the RFPs, Defendants stated that, as of August 1, 2014, USCIS began “journaling” its e-mail messages, whereas an e-mail message sent or received prior to that date may not have been migrated to the “journal” and may only be accessible, if at all, on back-up tapes, which would be expensive and time-consuming to restore, making recovery unduly burdensome and disproportionate.
a. To clarify the Response to the RFPs, Custodians may currently have access to e-mail messages older than August 1, 2014, dependent on how individual Custodians maintained their e-mail messages. Therefore, the search of e-mail messages available to Defendants without restoring the back-up tapes may produce e-mail messages older than August 1, 2014, even without searching the backup tapes.
b. Defendants continue to maintain that restoring and searching email on backup tapes would be unduly burdensome, excessively expensive, and disproportionate to the needs of this case, as described in Defendants’ ESI Disclosures. As delineated in the Response to the RFPs, Defendants will consider a focused request. After receiving the request, Defendants will determine whether the request significantly reduces burden and expense, but Defendants reserve the right to object to those specific requests pursuant to the Federal Rules of the Civil Procedure.
6. With respect to RFPs, 29, 30, and 31, USCIS confirmed they have no responsive documents. As discussed during the telephone call, USCIS counsel inquired with those officials knowledgeable about the history, development, and implementation of CARRP, and USCIS’s vetting programs, policies, and procedures, and were told that, at least since the time CARRP came into being in 2008, USCIS has had no programs, policies, or procedures to identify, screen, vet, or adjudicate naturalization or adjustment-of-status applications based on national origin, religion, race, or ethnicity. Of course, there was a time in U.S. history when U.S. immigration law imposed nationality-based quotas, but those were eliminated by the Immigration and
3
App. 354

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-33, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e585 of 5618
Wagafe v. Trump, No. 2:17-cv-00094-RAJ
Nationality Act of 1965. Defendants had not presumed that Plaintiffs seek documents relating to the consideration of nationality, ethnicity, or national origin in the context of administering those pre-1965 immigration quotas. Defendants respectfully decline to provide a written declaration about how USCIS determined the response to the RFPs. Plaintiffs may, of course, inquire further about the response, if and when, Plaintiffs depose the knowledgeable agency officials.
7. USCIS has informed counsel that, putting aside individual case files/application adjudications, there are no classified documents relating to CARRP on a programmatic level. Therefore, there is no need to search for classified documents, as conducting a search for documents that do not exist is unduly burdensome and disproportionate.
8. With respect to communications between Department of Justice (“DoJ”) attorneys and USCIS, Plaintiffs recognized that the communications between DoJ attorneys representing USCIS in litigation and USCIS is protected under the attorney-work-product (“AWP”) doctrine but argued that DoJ attorneys may have communicated with USCIS about CARRP or “extreme vetting” outside of a litigation context. Defendants agree that Defendants will search and collect communications between DoJ attorneys and USCIS that are not related to any DoJ representation of USCIS in, or in anticipation of, litigation. To the extent Defendants identify responsive material that is privileged, whether under the AWP doctrine or some other privilege, Defendants will log the information on a privilege log. That said, Defendants continue to maintain that Defendants have no obligation to search DoJ records for such communication (or for material responsive to any other RFP), as DoJ is not a defendant in this case. Consequently, any such communications would have to be found in the possession, custody, or control of Defendants.
9. At this point, counsel think that the April 11, 2017 date in the response to RFP No. 26 is a typographical error, as the RFPs and the responses refer, in multiple other places, to April 11, 2008. Consequently, Defendants will treat that date limitation in the response to RFP No. 26 as April 11, 2008, rather than April 11, 2017.
10. With respect to whether Defendants need to search the Office of the Secretary of Homeland Security, counsel has confirmed that agency counsel has consulted with knowledgeable officials within both DHS Headquarters and USCIS Headquarters, and those knowledgeable officials have reported that they believe it is unlikely the Office of the Secretary of Homeland Security would have any documents responsive to Plaintiffs’ First Request for Production (as Defendants have interpreted those requests, as explained in Defendants’ Responses to the RFPs). Consequently, given the unlikelihood of finding responsive documents in the Office of the Secretary, Defendants continue to assert that it would be unduly burdensome and disproportionate for Defendants to undertake a formal search of the Office of the Secretary.
If there are any other matters that require further response or discussion, or Plaintiffs’ counsel desires to discuss the content of this letter, please let me know.
4
App. 355

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-33, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e596 of 5618 Wagafe v. Trump, No. 2:17-cv-00094-RAJ
Finally, as we move forward with the collection and search of the custodial sources identified in Defendants’ ESI Disclosures, we would welcome discussing with Plaintiffs’ counsel proposed search terms. Please let me know when you would like to have any such discussion.
Sincerely, EDWARD S. WHITE Senior Litigation Counsel AARON R. PETTY JOSEPH F. CARILLI, JR. Trial Attorneys National Security & Affirmative Litigation Unit
5 App. 356

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-34, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e601 of 5618
Exhibit D
App. 357

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-34, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e612 of 5618

September 27, 2017
VIA EMAIL
Aaron R. Petty, IL 6293553 US Department of Justice Office of Immigration Litigation 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Aaron.R.Petty@usdoj.gov
Joseph F. Carilli, Jr. U.S. Department of Justice PO Box 868, Ben Franklin Station Washington, DC 20044 joseph.f.carilli2@usdoj.gov

Nicholas P. Gellert NGellert@perkinscoie.com
D. +1.206.359.8680 F. +1.206.359.9680
Edward S. White (NY 2088979) Office of Immigration Litigation-District Court Section Civil Div., U.S. Department of Justice PO Box 868, Ben Franklin Station Washington, DC 20044 Edward.s.white@usdoj.gov

Re: Wagafe et al. v. Donald Trump et al. United States District Court No. 17-cv-00094-RAJ
Dear Counsel:
We write in response to your September 22, 2017 letter discussing, among other things, Defendants’ proposed six-month timeline to produce documents responsive to Plaintiffs’ First Set of Requests for Production of Documents (“RFPs”), Custodians from whom Defendants propose to collect documents, and proposed search terms for custodial sources. We write to address some of our ongoing concerns with your positions regarding these issues.
We also write to confirm that the parties are at an impasse on the following four issues: (1) Defendants’ refusal to produce a list or other documents sufficient to identify the members of each class and documents regarding why Named Plaintiffs have been subject to CARRP; (2) Defendants’ refusal to review classified documents and produce a privilege log of any such documents they seek to withhold; (3) Defendants’ refusal to produce documents relating to the First and Second Executive Orders; and (4) Defendants’ refusal to produce responsive documents that are not of “national applicability.” As stated on our September 19, 2017 meet and confer call, Plaintiffs will file a motion to compel on these issues.

137094108.1

App. 358

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-34, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e623 of 5618

Wagafe et al. v. Donald Trump et al. September 27, 2017 Page 2

1. Proposed Six-Month Timeline
On our meet-and-confer call on September 19, 2017, we requested that Defendants provide an explanation for their proposed six-month timeline to produce documents responsive to Plaintiffs’ First Set of RFPs, including a proposed discovery schedule would include dates certain by which Defendants plan to produce documents within that six-month timeframe and a summary of which categories of documents will be produced on each date. We also requested that Defendants provide an estimate of the number of potentially responsive documents, at least for the FDNS ECN site which you have identified as the best source of discoverable information.
Your response continues to fail to explain your six-month timeframe and failed to provide the information we requested. Your letter vaguely states, without explanation, that “after discussing the collection, review, and production timeframe with USCIS, Defendants and counsel continue to believe that a production timeline of less than six months is unrealistic.” You note that “Defendants commenced the review of the CARRP documents contained on the FDNS ECN site,” but fail to provide an approximate number of the documents contained in that review. With respect to the FDNS ECN site, it is especially unclear why you should need six months to produce these documents. You informed us that everything in this database is responsive. Therefore, it is our understanding that the only work required to produce these documents is a privilege review.
You further note that “[o]nce Defendants have loaded the documents contained in all of the noncustodial sources listed in the ESI Disclosures into the review platform, Defendants may be in position (sic) to re-assess the six month production timeline,” but fail to provide a date by which the documents will be loaded. Finally, you indicate that Defendants intend to produce documents on a rolling basis, and prioritize first the FDNS ECN site, then the remaining noncustodial sources listed in the ESI Disclosures, and then, it appears, the eight Custodians you have identified. However, you fail to explain why review and production of these sources cannot be done simultaneously or to provide internal deadlines as to when these categories of documents will be produced.
Because you acknowledge the difficulty that your proposed six-month timeframe creates for follow up discovery requests and depositions before the court-ordered discovery deadline, you propose that the parties agree to a joint motion to extend the discovery period (and all other associated dates). Plaintiffs cannot agree to your request. In the Joint Status Report and Discovery Plan, Defendants agreed with Plaintiffs that “fact discovery can be completed by May 18, 2018,” and only indicated a potential extension of that deadline “if the Supreme Court’s decision in Hawaii materially alters the scope of discovery in this case.” Dkt. 78 at 13. Based on the parties’ agreement, the Court ordered the current May 29, 2018 deadline. Dkt. 79 at 1. At that time, Defendants should have been aware of the scope of their discovery obligations in this case, and have failed to provide any justification for extending the deadline.

137094108.1

App. 359

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-34, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e634 of 5618

Wagafe et al. v. Donald Trump et al. September 27, 2017 Page 3

For these reasons, we again request, by October 2, that Defendants provide us with the following information so that Plaintiffs may be able to assess your requested six-month timeframe for responding to Plaintiffs’ First Set of RFPs:
 A production schedule, including dates certain by which Defendants will produce documents on a rolling basis and a summary of which categories of documents will be produced on each date.
 The number of documents contained in the review of the FDNS ECN site.
 The number of documents to be loaded into the review platform for all of the noncustodial sources listed in the ESI Disclosures, or, at least, a date certain by which those documents will be loaded.
If you fail to provide this information, we will assume that the parties are at an impasse regarding the timeline to respond to Plaintiffs’ First Set of RFPs and will, therefore, need to seek relief from the Court.
2. Custodians
Regarding discovery from custodial sources, we continue to have the following concerns.
First, your letter provides no explanation for your proposed prioritization of the eight Custodians identified in Defendants’ ESI Disclosures. For example, you indicate that “Ronald A. Atkinson was the chief of the National Security Adjudications Unit within the National Security Branch of FDNS when CARRP was developed, and was involved in planning its operational implementation,” but list him fourth for prioritization purposes. By October 2, please provide an explanation for your proposed prioritization, including a summary of the responsibilities of each individual vis-à-vis the CARRP program. Only then will we be able to assess your proposed prioritization.
Second, we continue to object to your position that only eight Custodians need to be searched for documents responsive to Plaintiffs’ First Set of RFPs. As acknowledged in your letter, Mr. Atkinson has identified at least one meeting invitation from January 2008 with the subject “CARRP policy memo” that has 20 invitees. Thus, all 20 of these individuals likely have documents responsive to Plaintiffs’ First Set of RFPs and would only not be appropriate custodians if their roles were minor. By October 2, please produce this meeting invitation and the underlying “CARRP policy memo,” because they are responsive to, at least, RFP Nos. 1-3, and will help us determine whether additional Custodians are needed. Please also provide information about the role of each person on the invite, and an explanation as to why you do not

137094108.1

App. 360

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-34, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e645 of 5618
Wagafe et al. v. Donald Trump et al. September 27, 2017 Page 4
believe searching all of the 20 invitees is necessary to provide an adequate response to Plaintiffs’ First Set of RFPs.
Third, we continue to object to your position that e-mail messages older than August 1, 2014 would be unduly burdensome and disproportionate to search. You acknowledge that some “Custodians may currently have access to e-mail messages older than August 1, 2014, dependent on how individual Custodians maintained their e-mail messages.” However, you fail to identify which of the eight Custodians listed in your ESI Disclosures this applies to and whether those individuals have maintained all of their e-mail messages older than August 1, 2014 or only a subset of their e-mail messages. You also have not explained, in anything more than bald assertions, why accessing e-mail messages on the back-up tapes would be burdensome. You have provided Plaintiffs with no explanation as to what work would be involved and why restoration of these e-mail messages would be so laborious. For Plaintiffs to accurately understand your alleged burden of producing e-mail messages, please identify by October 2:
(1) which Custodians only have e-mail messages older than August 1, 2014 on back-up tapes;
(2) which Custodians currently have access to their e-mail messages older than August 1, 2014 and, of those, how far back in time they maintained those e-mail messages, and whether they have maintained all or only a subset of their e-mail messages from that time period; and
(3) for those Custodians whose e-mail messages are only stored on back-up tapes, please provide more information on what would be required to access emails saved in this manner.
3. Search Terms
Finally, with regard to your request to discuss proposed search terms regarding the search of the custodial sources, we request that, by October 2, Defendants provide us a list of proposed search terms for, at least, the eight Custodians that you have identified in your ESI Disclosures. We will review your proposed terms and provide our proposed changes to them.

137094108.1

App. 361

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-34, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e656 of 5618
Wagafe et al. v. Donald Trump et al. September 27, 2017 Page 5
We appreciate your prompt consideration of the issues identified in this letter. Very truly yours,
Nicholas P. Gellert cc: Jennie Pasquarella
Sameer Ahmed David Perez Laura Hennessey

137094108.1

App. 362

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-35, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e661 of 5918
Exhibit E
App. 363

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-35, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e672 of 5918 App. 364

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-35, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e683 of 5918 App. 365

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-35, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e694 of 5918 App. 366

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-35, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e705 of 5918 App. 367

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-35, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e716 of 5918 App. 368

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-35, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e727 of 5918 App. 369

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-35, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e738 of 5918 App. 370

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-35, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e749 of 5918 App. 371

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-36, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e751 of 5818
Exhibit F
App. 372

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-36, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e762 of 5818 App. 373

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-36, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e773 of 5818 App. 374

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-36, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e784 of 5818 App. 375

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-36, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e795 of 5818 App. 376

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-36, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e806 of 5818 App. 377

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-36, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e817 of 5818 App. 378

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-36, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e828 of 5818 App. 379

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-37, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e831 of 5718
Exhibit G
App. 380

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-37, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e842 of 5718 App. 381

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-37, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e853 of 5718 App. 382

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-37, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e864 of 5718 App. 383

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-37, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e875 of 5718 App. 384

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-37, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e886 of 5718 App. 385

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-37, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e897 of 5718 App. 386

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-38, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e901 of 5418
Exhibit H
App. 387

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-38, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e912 of 5418 App. 388

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-38, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e923 of 5418 App. 389

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-38, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e934 of 5418 App. 390

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-39, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e941 of 5418
Exhibit I
App. 391

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-39, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e952 of 5418 App. 392

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-39, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e963 of 5418 App. 393

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79742-39, DFkitleEdnt1ry0:/110-2/1,7PaPgeag3e974 of 5418 App. 394

CaCsaes:e182-:71171-c7v1-,0040/9243-/R2A01J8,DIDo:cu1m08e4n7t79283, FDikletEdn1t0ry/1: 91/-127, PaPgaege3918ooff6518

1

HONORABLE RICHARD A. JONES

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 9

10

ABDIQAFAR WAGAFE, et al., on

11

behalf of themselves and others similarly situated,

12

CASE NO. C17-94 RAJ ORDER

13

Plaintiffs,

14

v.

DONALD TRUMP, President of the

15

United States, et al.,

16

Defendants.

17

18 This matter comes before the Court on Plaintiffs’ Motion to Compel Production of
19 Documents. Dkt. # 91. The Government opposes the Motion. Dkt. # 94. For the
20 following reasons, the Court GRANTS in part and DENIES in part the Motion.
21 I. BACKGROUND
22 On June 21, 2017, the Court granted Plaintiffs’ motion to certify two classes: a
23 Naturalization Class and an Adjustment Class. Dkt. # 69. The parties have since been
24 engaged in discovery. The parties have attempted to resolve their discovery disputes
25 without court intervention but have reached an impasse. Plaintiffs now move the Court
26 to compel the Government to produce certain documents.
27

ORDER- 1

App. 395

CaCsaes:e182-:71171-c7v1-,0040/9243-/R2A01J8,DIDo:cu1m08e4n7t79283, FDikletEdn1t0ry/1: 91/-127, PaPgaege3929ooff6518

1

II. LEGAL STANDARD

2

The Court has broad discretion to control discovery. Hallett v. Morgan, 296 F.3d

3 732, 751 (9th Cir. 2002); see also Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828,

4 833 (9th Cir. 2011), In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). That

5 discretion is guided by several principles. Most importantly, the scope of discovery is

6 broad. A party must respond to any discovery request that is not privileged and that is

7 “relevant to any party’s claim or defense and proportional to the needs of the case,

8 considering the importance of the issues at stake in the action, the amount in controversy,

9 the parties’ relative access to relevant information, the parties’ resources, the importance

10 of the discovery in resolving the issues, and whether the burden or expense of the

11 proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).

12

If a party refuses to respond to discovery, the requesting party “may move for an

13 order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). “The party who

14 resists discovery has the burden to show that discovery should not be allowed, and has

15 the burden of clarifying, explaining, and supporting its objections.” Cable & Computer

16 Tech., Inc. v. Lockheed Saunders, Inc., 175 F.R.D. 646, 650 (C.D. Cal. 1997).

17

III. DISCUSSION

18

Plaintiffs seek, and the Government refuses to provide, discovery in four discrete

19 areas: (1) information to allow Plaintiffs to identify potential class members and why

20 Named Plaintiffs were subjected to CARRP; (2) responsive documents despite their

21 classified status, or a privilege log in lieu of the documents; (3) documents related to two

22 Executive Orders; and (4) documents outside the scope of “national applicability.” Dkt.

23 # 91.

24

A. Identifying Class Members

25

As to the first matter, the Government argues that the class members’ specific

26 identities are neither relevant nor required for Plaintiffs to pursue this class action. Dkt. #

27 94 at 4-5. Many of the Government’s arguments in opposition to this request are mere

ORDER- 2

App. 396

CaCsaes:e182-:71171-c7v1-,0040/9243-/R2A01J8,DIDo:cu1m08e4n7t79283, FDikletEdn1t0ry/1: 91/-127, PaPgaege4030ooff6518

1 conclusions, and therefore are not sufficient to avoid disclosure. See id. at 4-6. However,

2 the Government advances two arguments that are supported by more than mere

3 conclusions: (1) identifying class members is unreasonably burdensome, and (2) the

4 identities of class members are privileged. Id. at 6-7.

5

In asserting that that task of identifying class members is too burdensome, the

6 Government concedes that it already compiles potential class members into searchable

7 databases. Dkt. # 94-6 at ¶¶ 13-21. It claims, however, that conducting detailed, quality

8 assurance on these searches will cost up to $1.17 million. Id. at ¶ 26. This does not

9 diminish the fact that the Government is capable of at least providing Plaintiffs with

10 spreadsheets of the potential class members—information that already exists and is

11 readily accessible. See id. at ¶ 23 (based on the data it has, the Government estimates that

12 roughly 3,000 CARRP cases exist). This information is relevant and the Government can

13 produce it without incurring such a high expense.

14

That Government further argues that, even if producing the records were not

15 burdensome, the requested discovery is protected by the law enforcement privilege. Dkt.

16 ## 94 at 7-8, 94-5 at ¶ 7. To claim this privilege, the Government must satisfy three

17 requirements: (1) there must be a formal claim of privilege by the head of the department

18 having control over the requested information; (2) assertion of the privilege must be

19 based on actual personal consideration by that official; and (3) the information for which

20 the privilege is claimed must be specified, with an explanation why it properly falls

21 within the scope of the privilege. In re Sealed Case, 856 F.2d at 271. This privilege is

22 qualified: “[t]he public interest in nondisclosure must be balanced against the need of a

23 particular litigant for access to the privileged information.” Id. at 272.

24

The Government contends, broadly, that releasing the identities of potential class

25 members could lead individuals to potentially alter their behavior, conceal evidence of

26 wrongdoing, or attempt to influence others in a way that could affect national security

27 interests. Dkt. # 94-5 at ¶ 18. Such a vague, brief explanation that consists of mere

ORDER- 3

App. 397

CaCsaes:e182-:71171-c7v1-,0040/9243-/R2A01J8,DIDo:cu1m08e4n7t79283, FDikletEdn1t0ry/1: 91/-127, PaPgaege4041ooff6518

1 speculation and a hypothetical result is not sufficient to claim privilege over basic

2 spreadsheets identifying who is subject to CARRP. See, e.g., In re Sealed Case, 856 F.2d

3 at 272 (explaining that the SEC “submitted a lengthy declaration detailing the effect

4 disclosure would have on its ongoing Wall Street investigation” to support its claim for

5 privilege). Even if it were sufficient, the privilege is not automatic; the Court must

6 balance the need for Plaintiffs to obtain this information against the Government’s

7 reasons for withholding. In doing so, the Court finds that the balance weigh in favor of

8 disclosure. The Court notes that there is a protective order in place, Dkt. # 86, and

9 Plaintiffs’ attorneys could supplement the protective order or obtain security clearances

10 to assuage any remaining concerns on the part of the Government. Latif v. Holder, 28 F.

11 Supp. 3d 1134, 1160 (D. Or. 2014) (citing Al Haramain Islamic Found., Inc. v. U.S.

12 Dep't of Treasury, 686 F.3d 965, 983 (9th Cir. 2012)).

13

Finally, Plaintiffs request to know why the Named Plaintiffs were subjected to

14 CARRP.1 For the same reasons stated above, the Court finds that this information is

15 relevant to the claims and Plaintiffs’ needs outweigh the Government’s reasons for

16 withholding.

17

B. Classified Documents

18

The Government claims that no relevant classified documents exist. Dkt. # 94 at

19 9. It appears that the Government only searched for classified documents that relate to

20 CARRP on a programmatic level. Id.; see also Dkt. # 91 at 11.2 The Government asserts

21 that any other documentation is irrelevant. As stated above, the Court rejected the

22

23

1 Importantly, Plaintiffs seek this information only on behalf of the Named Plaintiffs, not for each potential

24

class member. 2 Plaintiffs included this clarifying information in a footnote. The Court strongly disfavors footnoted legal

25

citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. See Local Rules W.D. Wash. LCR 7(e). Moreover, several courts have observed that “citations are

26

highly relevant in a legal brief” and including them in footnotes “makes brief-reading difficult.” Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2014 WL 289924, at *1 (D. Ariz. Jan. 24, 2014). The Court strongly

27

discourages the parties from footnoting their legal citations in any future submissions. See Kano v. Nat’l Consumer Co-op Bank, 22 F.3d 899-900 (9th Cir. 1994).

ORDER- 4

App. 398

CaCsaes:e182-:71171-c7v1-,0040/9243-/R2A01J8,DIDo:cu1m08e4n7t79283, FDikletEdn1t0ry/1: 91/-127, PaPgaege4052ooff6518

1 Government’s conclusory arguments as to relevance. As such, the Government must

2 either produce the relevant documents or provide Plaintiffs with a proper privilege log.

3

C. Documents Related to the Executive Orders

4

Plaintiffs seek documents that connect any kind of “extreme vetting” program to

5 two Executive Orders. Dkt. # 91 at 14-15. The Government refuses to search for such

6 documents, arguing that any such documents are subject to the deliberative-process

7 privilege. But this argument is premature; the Government fails to show why it is exempt

8 from providing Plaintiffs with a privilege log. The Court finds that the Government must

9 provide a proper privilege log if it means to assert a deliberative-process privilege over

10 certain documents.

11

The Government further invokes Executive privilege and argues that Plaintiffs

12 have not made a “showing of heightened need” to demand discovery from the President.

13 Dkt. # 94 at 10-11. Plaintiffs argue that the Government must “provide alternate

14 custodians and non-custodial sources of information that will capture the documents

15 Plaintiffs seek.” Dkt. # 91 at 16. The Court is mindful that intruding on the Executive in

16 this context is a matter of last resort, Cheney v. U.S. Dist. Ct. for the Dist. Of Columbia,

17 542 U.S. 367 (2004), and the Court does not find that the record before it justifies such an

18 intrusion. However, the Court orders the parties to meet and confer within thirty (30)

19 days from the date of this Order to discuss alternative custodians and non-custodial

20 sources of information for any discovery over which the Government asserts this specific

21 privilege. The Court requests a joint status report within five (5) days of the court-

22 ordered conference detailing any resolution of this issue.

23

D. Nationwide Applicability

24

Plaintiffs object to the Government’s refusal to produce documents outside the

25 scope of “national applicability.” Dkt. # 91 at 17. The Government argues that searching

26 for documents outside of this scope is unduly burdensome and irrelevant. Dkt. # 94 at

27 12-13. However, Plaintiffs clarify in their Reply that they are not seeking documents

ORDER- 5

App. 399

CaCsaes:e182-:71171-c7v1-,0040/9243-/R2A01J8,DIDo:cu1m08e4n7t79283, FDikletEdn1t0ry/1: 91/-127, PaPgaege4063ooff6518

1 beyond those that the Government “already agreed to search.” Dkt. # 95 at 7. If this is

2 the case, then it appears that the parties are able to resolve this dispute without Court

3 intervention. To the extent that Plaintiffs seek documents for which the Government has

4 already searched, the Court grants the request with the caveat that the Government may

5 produce a privilege log in lieu of the documents if appropriate.

6

IV. CONCLUSION

7

For the foregoing reasons, the Court GRANTS in part and DENIES in part

8 Plaintiffs’ Motion to Compel Production of Documents. Dkt. # 91. The Court orders

9 the parties to meet and confer and submit a joint status report thereafter in

10 accordance with this Order.

11

12

Dated this 19th day of October, 2017.

13

14

A

15

16

The Honorable Richard A. Jones United States District Judge

17

18

19

20

21

22

23

24

25

26

27

ORDER- 6

App. 400

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1

The Honorable Richard A. Jones

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9
ABDIQAFAR WAGAFE, et al., on 10 behalf of themselves and others similarly 11 situated,

12

Plaintiffs,

13

v.

14
DONALD TRUMP, President of the 15 United States, et al.,

16

Defendants.

17

No. 2:17-cv-00094-RAJ
DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017
HON. RICHARD A. JONES
NOTED ON MOTION CALENDAR: November 2, 2017

18

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20

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24

25

26

27

28

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 1 (2:17-cv-00094-RAJ)
App. 401

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797923,FDilketdE1n1tr/y0:21/1-27, PPaaggee4205ofo1f 1518

1

On October 19, 2017, the Court issued an order granting in part and denying in

2 part Plaintiffs’ motion to compel production of certain documents. Defendants

3 respectfully seek reconsideration of Part III.A of the Court’s order, which concerns

4 identification of class members. The Court erred in analyzing the law enforcement

5 privilege in Part III.A. And Part III.A presents public-safety and national-security

6 dangers, given the extreme sensitivity of the information at issue and the chilling effect it

7 may have on information sharing within the Government. See In re U.S. Dep’t of

8 Homeland Sec., 459 F.3d 565, 569 (5th Cir. 2006) (“in today’s times the compelled

9 production of government documents could impact highly sensitive matters relating to

10 national security”); The 9/11 Commission Report, 416-17 & Executive Summary, 14

11 (2004) (finding that both lack of information sharing and less-than-full partnership of

12 immigration agencies in the intelligence community contributed to the 9/11 attacks).

13

In brief, (1) the Court erroneously rejected Acting Director McCament’s assertion

14 of the law enforcement privilege as speculative, because all assertions of law

15 enforcement privilege involve an assessment of potential future risk—and Acting

16 Director McCament’s invocation of the privilege otherwise meets the requisite standard;

17 (2) the Court failed to identify and apply the correct standard—necessity—to overcome

18 an assertion of the privilege; (3) even assuming Plaintiffs had demonstrated a necessity,

19 the Court did not explain its balancing of Plaintiffs’ interest in the information sought

20 against the Government’s and the public’s interest in nondisclosure of sensitive law

21 enforcement information; and (4) the Court improperly and speculatively relied on other

22 means to protect the information at issue. Any one of these errors would justify

23 reconsideration and vacatur of Part III.A of the Court’s order. Accordingly,

24 reconsideration is appropriate under Local Rule 7(h)(1).

25

1. Rejecting an Assertion of Law Enforcement Privilege as “Speculative” is

Improper as All Assertions of Law Enforcement Privilege Involve a

26

Prediction of Potential Future Harm

27

The Court dismissed the sworn statement of the head of USCIS that releasing a list

28 of thousands of individuals who have articulable ties to terrorism and other national

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 2 (2:17-cv-00094-RAJ)
App. 402

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797923,FDilketdE1n1tr/y0:21/1-27, PPaaggee4306ofo1f 1518

1 security grounds of inadmissibility and removability would impair national security.

2 ECF No. 98 at 3-4. The Court termed the Acting Director’s statement “vague” and

3 “brief,” and held that “mere speculation” and only “a hypothetical result” was insufficient

4 to claim the law enforcement privilege over the identities of individuals in CARRP—

5 including known or suspected terrorists and individuals who may be the subject of

6 ongoing investigations. Id.; Answer ¶¶ 64 & 78.

7

The Court erred in rejecting the Acting Director’s testimony as speculative and

8 hypothetical. Every assertion of law enforcement privilege inherently involves a

9 prediction of future risks. This does not make assertion of the privilege “mere

10 speculation.” Black v. Sheraton Corp. of Am., 564 F.2d 531, 541 (D.C. Cir. 1977)

11 (explaining that the privilege is “based primarily on the harm to law enforcement efforts

12 which might arise from public disclosure of [Government] investigatory files”) (emphasis

13 and alteration added). The very purpose of the privilege is to prevent what might occur if

14 the information is disclosed from actually occurring. The party invoking the privilege

15 need not establish that any particular future event will occur; it is enough to show,

16 through competent evidence, that disclosure risks that possibility. Defendants met that

17 bar, and all other criteria to validly invoke the law enforcement privilege. See Shah v.

18 U.S. Dep’t of Justice, 89 F. Supp. 3d 1074, 1080 (D. Nev. 2015) (explaining that to

19 invoke the privilege (1) the head of the Department must formally claim the privilege;

20 (2) that claim must be based on personal consideration; and (3) the official must identify

21 the information subject to privilege and explain why it is privileged). Here, the highest

22 official at USCIS formally claimed the privilege in a sworn statement detailing how

23 disclosure of the identities of individuals with an articulable link to national-security

24 grounds of inadmissibility would threaten law enforcement interests. ECF No. 94-5. The

25 Acting Director’s declaration explained:

26

Public confirmation that a particular individual is subject to CARRP would

necessarily alert an individual that he/she may be the subject of an

27

investigation, or at least that the government possess information that

28

creates an articulable link to a national security ground of inadmissibility.

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 3 (2:17-cv-00094-RAJ)
App. 403

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797923,FDilketdE1n1tr/y0:21/1-27, PPaaggee4407ofo1f 1518

By alerting an individual that he or she is subject to an investigation and the
1
types of records consulted, that individual might learn the focus of these

2

investigations. The individual could then, for example, alter his or her

behavior, conceal evidence of wrongdoing, or attempt to influence

3

witnesses or adjust his or her means of communication or financial dealings

4

to avoid detection of the very behavior that the law enforcement and

intelligence communities have determined may be indicative of a national

5

security threat, and which form the core of pending investigative efforts.

6
ECF No. 94-5, ¶ 18. To the extent the Court believed that the law requires additional

7
certainty of what would result from disclosure, the Court erred. To require certainty and

8
specificity in what harm will result from disclosure is to negate the law enforcement

9
privilege entirely. Moreover, the declaration is neither vague nor brief—and, in any

10
event, brevity is not a basis to reject a validly invoked privilege. The declaration was

11
based on the Acting Director’s personal knowledge of the facts contained therein and

12
provided sufficient specificity to meet the requirement to “provide an explanation.”

13
Shah, 89 F. Supp. 3d at 1080-81 (providing similarly detailed reasoning).1 Defendants

14
met all of the criteria to validly invoke the law enforcement privilege. Id.

15
2. The Court Did Not Require Plaintiffs to Demonstrate a “Necessity” for the

16

Identities of Class Members and Erred in Ordering Disclosure Only Upon

17

a Showing of Relevance

Furthermore, the Court did not specify what burden Plaintiffs bore to overcome
18

the privilege, or, indeed, acknowledge they had such a burden at all. See ECF No. 98 at 4
19

(moving directly from whether the privilege was validly asserted to balancing the party’s
20

interests without first considering whether Plaintiff’s need was sufficiently great to
21

overcome the presumption against lifting the privilege). The Supreme Court and the
22

Ninth Circuit have held that evidence must be “essential,” or meet an equally high
23

threshold, to justify piercing the privilege. United States v. Valenzuela-Bernal, 458 U.S.
24

858, 870 (1982) (“The Roviaro Court held that the informer’s identity had to be
25

disclosed, but only after it concluded that the informer’s testimony would be highly
26

27 1 Defendants continue to maintain that, given the nature of this case—a facial challenge to the lawfulness of CARRP, applicable nationwide to all class members—Plaintiffs have no need for the identities of the class
28 members, and that disclosure of anonymous demographic information would be sufficient to meet the needs of the case.

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 4 (2:17-cv-00094-RAJ)
App. 404

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797923,FDilketdE1n1tr/y0:21/1-27, PPaaggee4508ofo1f 1518

1 relevant”) (emphasis added); In re Perez, 749 F.3d 849, 859 (9th Cir. 2014) (holding

2 identifying information of whistleblowers must be “essential” to justify disclosure).

3 Other courts have ruled similarly. See Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d

4 1122, 1125 (7th Cir. 1998) (“It seems to us, however, and not only to us, that there ought

5 to be a pretty strong presumption against lifting the privilege.”); Dole v. Local 1942, Int’l

6 B’hood of Elec. Workers, AFL-CIO, 870 F.2d 368-375 (7th Cir. 1989) (“The informer’s

7 privilege will yield upon a showing of substantial need”); United States v. Cintolo, 818

8 F.2d 980, 983-84 (1st Cir. 1987) (requiring showing of “necessity” to pierce privilege).

9

Plaintiffs have not met this “pretty strong presumption,” nor explained why the

10 identities of the class members are “necessary” or “essential” to their case rather than

11 merely relevant. In re Perez involved an analogous request to disclose specific identities

12 of whistleblowers which the requesting party could then associate with particular facts.

13 The Ninth Circuit concluded that associating an identity with other evidence was not

14 essential and did not justify piercing the privilege:

15

The information the Secretary has not disclosed consists of only the

identifying information in the 250 statements. While this information may

16

meet the general standard for relevance under Federal Rule of Evidence

17

401, we are not convinced that its probative value is so great that it is

“essential” to DSHS’s defense. DSHS cannot force the Secretary to reveal

18

the identities of the informants on such a weak showing.

19 749 F.3d at 859.

20

Here, as in In re Perez, the information Defendants seek to withhold consists only

21 of identifying information. Plaintiffs specifically requested the name, A-number, age,

22 sex, country of origin, country of citizenship, religion, race, ethnicity, date the relevant

23 application was filed, and the current status of the relevant application. See ECF No. 94-

24 1 at 18-19 (RFP No. 28). Defendants are willing to provide all of this information, to the

25 extent it is known and stored in the relevant electronic system, other than the name and

26 A-number. ECF No. 94 at 8. Because Plaintiffs have not, and cannot, establish a

27 legitimate need for identifying information, there is no basis for releasing the names and

28 other identifying information of those applicants with an articulable tie to national

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 5 (2:17-cv-00094-RAJ)
App. 405

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797923,FDilketdE1n1tr/y0:21/1-27, PPaaggee4609ofo1f 1518

1 security grounds of inadmissibility. As in In re Perez, while individual identities may be

2 “relevant” under Federal Rule of Evidence 401, they are not “essential” or “necessary,”

3 and, accordingly, Defendants’ assertion of privilege should not be disturbed. Moreover,

4 this case involves considerations of national security, public safety, and the integrity of

5 ongoing investigations not present in In re Perez. Accordingly, this case presents a

6 greater justification for withholding identities than the Ninth Circuit has already

7 approved.

8

3. Even Assuming a Necessity, the Court Did Not Articulate Its Basis For

Concluding the Plaintiffs’ Litigation Needs Outweighed The Public

9

Interest in Nondisclosure

10

Beyond this, the Court failed to balance the litigation needs of the Plaintiffs

11 against the Government’s and the public’s interest in nondisclosure. Even assuming

12 Plaintiffs had shown a “necessity” or “compelling need” for the names and A-numbers of

13 the class members, that need must still outweigh the public interest in nondisclosure to

14 justify piercing the privilege. In re City of New York, 607 F.3d at 948 (“If the

15 presumption against disclosure is successfully rebutted (by a showing of, among other

16 things, ‘compelling need’), the district court must then weigh the public interest in

17 nondisclosure against the need of the litigant for access. . . ”); In re Sealed Case, 856

18 F.2d at 272. Here, the Court did not identify a relevant standard or explain its analysis in

19 concluding that “the balance weigh[s] in favor of disclosure.” ECF No. 98 at 4. This was

20 error. Explicit balancing of the competing factors is required. In re Sealed Case, 856

21 F.2d 268, 272 (D.C. Cir. 1988) (“the failure to balance at all requires remand”). In re

22 City of New York, 607 F.3d 943, 948 (2d Cir. 2010), and Frankenhauser v. Rizzo, 59

23 F.R.D. 339, 344 (E.D. Pa. 1973), contain illustrative lists of factors to be considered in

24 determining the applicability of the privilege. Assuming that Plaintiffs could establish

25 the requisite necessity, the Court must articulate how it is balancing the competing

26 interests, and should conclude that the Government’s and the public’s interest in

27 nondisclosure of the identities takes precedence over Plaintiffs’ desire to associate names

28 with information, jeopardizing ongoing law enforcement efforts.

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 6 (2:17-cv-00094-RAJ)
App. 406

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797923,FDilketdE1n1tr/y0:21/1-27, PPaaggee4710ofo1f 1518

4. Courts Have Rejected Protective Orders as Insufficient to Guard Against
1
Improper Disclosure of Law Enforcement Privileged Information

2

The Court also suggested that Plaintiffs’ attorneys could supplement the protective

3 order. ECF No. 98 at 4. Courts, including the Ninth Circuit, have routinely concluded

4 that protective orders are insufficient in contexts implicating law enforcement privileged

5 information, improper disclosure of which could threaten public safety. The Second

6 Circuit, in perhaps the most extensive analysis of this subject, rejected similar

7 procedures, concluding that inadvertent (or intentional) disclosure of law enforcement

8 information was too great a risk, and the potential harm too difficult to remedy. In re

9 City of New York, 607 F.3d at 935-39. Likewise, the Ninth and D.C. Circuits have

10 similarly rejected an attorney-eyes-only remedy in cases involving national security

11 interests in FOIA litigation. Islamic Shura Council of So. Cal. v. FBI, 635 F3d 1160,

12 1168 (9th Cir. 2011) (citing Arieff v. U.S. Dep’t of Navy, 712 F.2d 1462, 1469-71 (D.C.

13 Cir. 1983)). These courts have concluded that permitting access would “color public

14 perception of the security of confidential information in government files.” Id. The same

15 analysis applies with equal force here. Once disclosed, the bell cannot be un-rung.

16

CONCLUSION

17

For these reasons, Defendants respectfully submit that the Court should grant

18 Defendants’ Motion to Reconsider.

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 7 (2:17-cv-00094-RAJ)
App. 407

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797923,FDilketdE1n1tr/y0:21/1-27, PPaaggee4811ofo1f 1518

1 Dated: November 2, 2017
2 CHAD A. READLER Acting Assistant Attorney General
3 Civil Division
4
WILLIAM C. PEACHEY 5 Director, District Court Section 6 Office of Immigration Litigation

7 TIMOTHY M. BELSAN
8 Deputy Chief, National Security & Affirmative Litigation Unit
9

10 /s/ Edward S. White EDWARD S. WHITE

11 Senior Counsel, National Security

12

& Affirmative Litigation Unit

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Respectfully submitted,
AARON R. PETTY JOSEPH F. CARILLI, JR. Trial Attorneys, National Security
& Affirmative Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Telephone: (202) 532-4542 E-mail: Aaron.R.Petty@usdoj.gov

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 8 (2:17-cv-00094-RAJ)
App. 408

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t797923,FDilketdE1n1tr/y0:21/1-27, PPaaggee4912ofo1f 1518

1

CERTIFICATE OF COMPLIANCE

2

I HEREBY CERTIFY that on November 1, 2017, I conferred with opposing

3 counsel and thoroughly discussed the substance of this motion and in good faith

4 attempted to reach an accord to eliminate the need for the motion.

5

s/ Edward S. White
6
EDWARD S. WHITE

7

U.S. Department of Justice

8

9

CERTIFICATE OF SERVICE

10

I HEREBY CERTIFY that on November 2, 2017, I electronically filed the

11 foregoing with the Clerk of the Court using the CM/ECF system, which will send

12 notification of such filing to the following CM/ECF participants:

13

Harry H. Schneider, Jr., Esq.

14

Nicholas P. Gellert, Esq.

David A. Perez, Esq.

15

Laura K. Hennessey, Esq.

16

Perkins Coie L.L.P.

1201 Third Ave., Ste. 4800

17

Seattle, WA 98101-3099

18

PH: 359-8000

FX: 359-9000

19

Email: HSchneider@perkinscoie.com

20

Email: NGellert@perkinscoie.com

Email: DPerez@perkinscoie.com

21

Email: LHennessey@perkinscoie.com

22
Matt Adams, Esq.

23

Glenda M. Aldana Madrid, Esq.

24

Northwest Immigrant Rights Project

615 Second Ave., Ste. 400

25

Seattle, WA 98104

26

PH: 957-8611

FX: 587-4025

27

E-mail: matt@nwirp.org

28

E-mail: glenda@nwirp.org

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 9 (2:17-cv-00094-RAJ)
App. 409

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t797923F, DilekdtE1n1t/r0y2: /11-72, PPaaggee41103ooff15118

Emily Chiang, Esq.

1

ACLU of Washington Foundation

2

901 Fifth Avenue, Suite 630

Seattle, WA 98164

3

Telephone: (206) 624-2184

E-mail: Echiang@aclu-wa.org
4

5

Jennifer Pasquarella, Esq.

ACLU Foundation of Southern California

6

1313 W. 8th Street

7

Los Angeles, CA 90017

Telephone: (213) 977-5211

8

Facsimile: (213) 997-5297

E-mail: jpasquarella@aclusocal.org
9

10

Stacy Tolchin, Esq.

Law Offices of Stacy Tolchin

11

634 S. Spring St. Suite 500A

Los Angeles, CA 90014

12

Telephone: (213) 622-7450

13

Facsimile: (213) 622-7233

E-mail: Stacy@tolchinimmigration.com

14

15

Trina Realmuto, Esq.

Kristin Macleod-Ball, Esq.

16

National Immigration Project of the National Lawyers Guild

14 Beacon St., Suite 602

17

Boston, MA 02108

18

Telephone: (617) 227-9727

Facsimile: (617) 227-5495

19

E-mail: trina@nipnlg.org

E-mail: kristin@nipnlg.org
20

21

Lee Gelernt, Esq.

Hugh Handeyside, Esq.

22

Hina Shamsi, Esq.

23

American Civil Liberties Union Foundation

125 Broad Street

24

New York, NY 10004

Telephone: (212) 549-2616

25

Facsimile: (212) 549-2654

26

E-mail: lgelernt@aclu.org

E-mail: hhandeyside@aclu.org

27

E-mail: hshamsi@aclu.org

28

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 10 (2:17-cv-00094-RAJ)
App. 410

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t797923F, DilekdtE1n1t/r0y2: /11-72, PPaaggee41114ooff15118

s/ Edward S. White
1
EDWARD S. WHITE

2

U.S. Department of Justice

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ MOTION TO RECONSIDER ORDER OF OCTOBER 19, 2017 - 11 (2:17-cv-00094-RAJ)
App. 411

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79792-31, DFkitleEdnt1ry1:/012-2/1,7PaPgeag4e151 of 5218

1

The Honorable Richard A. Jones

2

3

4

5

6

7

8
UNITED STATES DISTRICT COURT FOR THE

9

WESTERN DISTRICT OF WASHINGTON

10

AT SEATTLE

11

12 ABDIQAFAR WAGAFE, et al.,
13

14

Plaintiffs,

15

v.

CASE NO. 2:17-cv-00094-RAP
[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO RECONSIDER

16 DONALD TRUMP, et al.,

17

Defendants.

18

19

20

Upon consideration of Defendants’ Motion to Reconsider, the Court

21 GRANTS said motion. The Court VACATES Part III.A of its Order of October

22 19, 2017.

23

Dated this ______ day of _________, 2017.

24

25

26

_______________________________ HON. RICHARD A. JONES

27

United States District Judge

28

[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO RECONSIDER 2:17-cv-00094-RAP

- 1 -

App. 412

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

CCaassee: 128:1-771-c1v7-10,00049/42-3R/2A0J18D, IoDc:u1m0e8n4t79792-31, DFkitleEdnt1ry1:/012-2/1,7PaPgeag4e162 of 5218

1 Presented by:

2
CHAD A. READLER 3 Acting Assistant Attorney General

4

5

WILLIAM C. PEACHEY Director, District Court Section

6 Office of Immigration Litigation

7
s/ Edward S. White 8 EDWARD S. WHITE

9 Counsel for National Security/Trial Attorney

10

National Security & Affirmative Litigation Unit District Court Section

11 Office of Immigration Litigation

12 U.S. Department of Justice P.O. Box 868, Ben Franklin Station
13 Washington, DC 20044-0868

14 Telephone: (202) 616-9131

15 Facsimile: (202) 305-7000 Email: Edward.S.White @usdoj.gov
16

17 AARON R. PETTY JOSEPH F. CARILLI JR.
18 Counsels for National Security/Trial Attorneys
19 National Security & Affirmative Litigation Unit
20 District Court Section Office of Immigration Litigation
21

22 Attorneys for Defendants

23

24

25

26

27

28

[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO RECONSIDER 2:17-cv-00094-RAP

- 2 -

App. 413

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section Ben Franklin Station, P O Box 868 Washington, DC 20044 (202) 616-9131

CCasaes:e128:-1771-1c7v-10,00049/243-R/2A0J18,DIoDc:u1m0e8n4t7170223, DFkilteEdn1tr1y/:218-/21,7PaPgaeg4e117 of 3518

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT FOR THE

9

WESTERN DISTRICT OF WASHINGTON

10

AT SEATTLE

11

CASE NO. 2:17-cv-00094-RAJ

12 ABDIQAFAR WAGAFE, et al.,

13 Plaintiffs,

14

v.

15 DONALD TRUMP, et al., 16

17

Defendants.

ORDER

18

19

This matter comes before the Court on Defendants’ motion for reconsideration.

20 Dkt. # 99. Plaintiffs oppose the motion. Dkt. # 100. For the following reasons, the

21 Court DENIES the motion.

22

“Motions for reconsideration are disfavored.” LCR 7(h)(1). “The court will

23 ordinarily deny such motions in the absence of a showing of manifest error in the prior

24 ruling or a showing of new facts or legal authority which could not have been brought to

25 its attention earlier with reasonable diligence.” Id.

26

Defendants move the Court to reconsider Part III.A. of its prior discovery order,

27 entered at docket number 98, wherein the Court granted in part and denied in part

28 Plaintiffs’ motion to compel. Defendants argue that the Court reached its decision in

ORDER- 1 -

App. 414

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1 error by (1) rejecting Mr. McCament’s declaration; (2) failing to find that Plaintiffs did

2 not meet their burden to show “necessity”; (3) failing to articulate why the balance of the
3 parties’ needs weighed in favor of disclosure; and (4) suggesting that the parties could
4
cure their issues with a detailed and thorough protective order. See generally Dkt. # 99. 5

6

First, the Court considered Mr. McCament’s declaration and found that it was

7 insufficient under the standard advanced by the Government. That the Government

8 disagrees with this assessment is not proper grounds for granting a motion for

9 reconsideration.

10

Second, Defendants’ Ninth Circuit authority cited for the proposition that

11 Plaintiffs failed to show “necessity” is based on the informants privilege, not the law

12 enforcement privilege.1 The premise behind the informants privilege differs from that of

13 the law enforcement privilege. For example, Defendants rely on In re Perez for “an

14 analogous request to disclose specific identities.” Dkt. # 99 at 5. However, In re Perez

15 aimed to protect “employees seeking to vindicate rights claimed to have been denied.” In

16 re Perez, 749 F.3d 849, 856 (9th Cir. 2014) (quotations and citations omitted). Here, the

17 identities that the Government seeks to withhold are those individuals who wish to
18 vindicate their own rights. The Government is not withholding those identities to protect
19 those individuals.
20

21

Third, the Court exercised its discretion in balancing the needs of Plaintiffs versus

22 those of Defendants and found that the balance weighed in favor of disclosure. The

23 Government argued that grave national security threats could materialize were the

24 Government forced to reveal the individuals subject to CARRP and “the types of records

25 consulted” because this could lead those individuals to “alter [their] behavior, conceal

26 evidence of wrongdoing, or attempt to influence witnesses or adjust [their] means of

27

28
1 Moreover, the persuasive authority that the Government cited dealt with asserting privilege over evidence collected through surveillance and recording; such situations are not analogous to the one at hand.

ORDER- 2 -

App. 415

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1 communication or financial dealings to avoid detection of the very behavior that the law 2
enforcement and intelligence community have determined may be indicative of a national 3
security threat[.]” Dkt. 94-5 at ¶ 18. But Plaintiffs did not request more than the 4
identities of the class members; Plaintiffs did not request “the types of records consulted” 5 6 for each potential class member. The Government may not merely say those magic 7 words—“national security threat”—and automatically have its requests granted in this
8 forum. Plaintiffs articulated enough to tip the balance in their favor; they requested
9 limited information—only the names of potential class members—and explained that

10 those potential class members may already be aware of the Government’s additional

11 scrutiny considering the passage of time. Under any rational balancing act, such a limited

12 scope of request will not be outbalanced by the speculative scope of what the

13 Government offered in opposition.

14

Finally, the Government disagreed with the Court’s conclusion that a robust

15 protective order was sufficient to protect against improper disclosure of privileged
16 information. The Government cited cases that were not analogous to this matter and 17
therefore did not persuade the Court. Disagreement with the Court’s conclusions is not a 18
sufficient basis upon which to grant a motion for reconsideration. 19
For the foregoing reasons, the Court DENIES Defendants’ motion for 20 21 reconsideration. Dkt. # 99.

22

Dated this 28th day of November, 2017.

23

24

25 26

A

27

The Honorable Richard A. Jones

United States District Judge

28

ORDER- 3 -

App. 416

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172263, FDikletEdn0t3ry/0: 1/-128, PaPgaege4210ooff15118

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10
ABDIQAFAR WAGAFE, et al.,
11
Plaintiffs,
12
v.
13

CASE NO. C17-0094-RAJ
DEFENDANTS’ MOTION FOR LIMITED PROTECTIVE ORDER

14
DONALD TRUMP, et al.,

15

Defendants.

16

Noting Date: March 9, 2018

17

On October 19, 2017, the Court issued an order concerning the discoverability of the

18 identities of class members. Dkt. No. 98. Noting the sensitivity of the information, the Court

19 suggested that the parties “could supplement the protective order . . . to assuage any remaining

20 concerns on the part of the government.” Id. at 4. The Court subsequently denied the

21 Defendants’ motion for reconsideration, noting that a “robust protective order” was sufficient

22 to guard against misuse of official information. Dkt. No. 102 at 3.

23

Defendants have conducted the searches directed by the Court to create a list of class

24 members (though, consistent with the Court’s order, see Dkt. No. 98 at 3, they have not

25 conducted the expensive and time-consuming steps required to manually cross-check and

26 verify the accuracy of all of the information in the databases from which the class list was

27 compiled with the individuals’ Alien Files). The class list is now ready for disclosure to

28 Plaintiffs’ counsel in discovery.

DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 1

App. 417

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, BenFranklin Station Washington, DC 20044 (202) 616-9131

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172263, FDikletEdn0t3ry/0: 1/-128, PaPgaege4221ooff15118

1

As explained in the accompanying declarations from officials at United States

2 Citizenship and Immigration Services (“USCIS”), Immigration and Customs Enforcement

3 (“ICE”), and the Federal Bureau of Investigation (“FBI”), the information in the class list that

4 identifies individuals (i.e. their names, alien file numbers (“A numbers”) and application filing

5 dates) is highly sensitive, non-public, “for official use only” information. The disclosure of this

6 information to those individuals or the public at-large could, in the informed opinion of the

7 declarants, damage national security and/or intelligence investigations and the proper

8 adjudication of the benefit the individual is seeking. Consequently, Defendants now

9 respectfully move this honorable Court to supplement the existing protective order to limit

10 disclosure of the names, A numbers, and application filing dates of the certified class members

11 solely to Plaintiffs’ attorneys of record, any experts retained by Plaintiffs, and the Court and

12 court personnel. Further, Defendants ask that the Court require Plaintiffs’ counsel take certain

13 security measures identified below in their handling of that information, and prohibit Plaintiffs’

14 counsel from contacting unnamed plaintiffs or confirming to an individual that contacts

15 Plaintiffs’ counsel that he or she is a member of either of the two certified classes.

16

STANDARD

17

A district court has broad power to fashion protective orders, and may do so upon a

18 showing of good cause. See Fed. R. Civ. P. 26(c) (requiring only good cause to issue protective

19 order); Phillips v. General Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002). The Court must

20 identify and discuss the factors it considers, and the party asserting good cause must show that

21 specific prejudice or harm would result from the disclosure of each category of information it

22 seeks to protect. See Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1130 (9th Cir.

23 2003).

24

ARGUMENT

25

“Courts commonly issue protective orders limiting access to sensitive information to

26 counsel and their experts.” Nutratech, Inc. v. Syntech (SSPF) Intern, Inc., 242 F.R.D. 552, 555

27 (C.D. Cal. 2007). In the unique context of this litigation, the names, A numbers, and

28 application filing dates of class members are sensitive, and good cause exists to protect them

DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 2

App. 418

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, BenFranklin Station Washington, DC 20044 (202) 616-9131

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172263, FDikletEdn0t3ry/0: 1/-128, PaPgaege4232ooff15118

1 from disclosure to those individuals and the public at-large. Names and A-numbers of the class

2 members of the two certified classes would allow one to determine whether a specific

3 individual’s immigration benefit application has been processed pursuant to the CARRP

4 policy. The application filing date, together with other biographic information that would be

5 provided on the class list, would also be sufficient to allow an individual to identify him or

6 herself. This fact would, if disclosed to the applicant, alert the applicant that an articulable link

7 exists between that individual and one or more specific national security-related grounds of

8 inadmissibility or removability.

9

A. Disclosure Risks Prejudice to National Security and Intelligence Interests

10

Notwithstanding the existing protective order, Plaintiffs’ counsel intends to inform

11 unnamed class members of their status in CARRP. See Dkt. No. 91 at 4-5. As detailed in the

12 accompanying declarations, Exhibits (“Ex.”) A through C, that disclosure would risk damage

13 to national security and intelligence interests and investigations, and the proper adjudication of

14 the benefit the individual is seeking.

15

In USCIS’s experience, it is difficult to gather evidence if an applicant prematurely

16 becomes aware of an investigation. Declaration of Matthew D. Emrich, Ex. A, at ¶¶ 26, 27.

17 That is because the individual may change his or her behavior, coordinate with others to

18 prevent USCIS from collecting statements from other relevant persons, stop certain behaviors,

19 or intentionally provide misleading information. Id. at ¶ 27. As a result, USCIS’s ability to

20 ensure that only eligible applicants are afforded immigration benefits is degraded, and some

21 persons who might, in fact, be ineligible for the benefit sought, could obtain benefits to which

22 they would not be entitled. Id.

23

Similarly, disclosure that an applicant is (or was) subject to CARRP, and therefore has

24 (or had) an articulable link to a national security ground of inadmissibility or removability,

25 would allow the applicant to infer that he or she may be subject to investigative scrutiny by law

26 enforcement. Id. at ¶ 28. For example, an applicant might infer that USCIS received derogatory

27 information from the FBI during the name check process. Declaration of David Eisenreich, Ex.

28 B, at ¶ 32. If an unnamed class member is a bad actor, the individual is likely aware of the bad

DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 3

App. 419

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, BenFranklin Station Washington, DC 20044 (202) 616-9131

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172263, FDikletEdn0t3ry/0: 1/-128, PaPgaege4243ooff15118

1 acts in which he or she is involved. Notification that he or she has been subject to CARRP

2 would then certainly lead the individual to suspect or believe that those bad acts are being

3 investigated. That conclusion, in turn, could disrupt an individual investigation, or, if the

4 individual is the subject of an investigation involving a large number of people, that individual

5 could report back to others in the group that their activities are likely being investigated. In this

6 way, large scaled investigations could also be interrupted and adversely affected. Ex. A at ¶ 28;

7 Ex. B at ¶ 31-32; Declaration of Tatum King, Ex. C, at ¶ 5.

8

An applicant’s ability to reasonably infer that he or she is of national security or law

9 enforcement investigative interest to the U.S. government, including whether an individual is

10 or has been the subject of an FBI counterterrorism or counterintelligence investigation or of

11 other intelligence interest, could harm national security and seriously impair the ability of

12 government agencies to conduct future investigations. Ex. A at ¶ 27; Ex. B at ¶ 31-32; Ex. C at

13 ¶ 5.

14

B. The Existing Protective Order Is Insufficient To Protect Against Disclosure

15

Although there is an existing protective order in place, it is insufficient to adequately

16 guard against the prejudice to the Government and the public identified above.

17

On August 15, 2017, almost two months after the Court certified two nationwide

18 classes, the Parties submitted a joint motion for entry of a stipulated protective order. Dkt. No.

19 84. The Court entered the stipulated protective order three days later. Dkt. No. 86. Under that

20 stipulated protective order, Plaintiffs agreed to terms that prohibit them from divulging to

21 unnamed class members that they are, in fact, class members in this litigation, or that their

22 immigration benefit applications have been processed pursuant to the CARRP policy. See Dkt.

23 No. 86 at ¶ 4.2. Although unnamed class members are not authorized to receive confidential

24 information under the Stipulated Protective Order, Dkt. No. 86, Plaintiffs’ have indicated their

25 intention to inform unnamed class members whether they are included on the class list.

26 Further, the current protective order would permit the named Plaintiffs to receive the class list,

27 Plaintiffs’ counsel to reveal to some unnamed class members the fact of their inclusion on the

28 list by means of deposing them, and could also allow Plaintiffs’ counsel to comply with the

DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 4

App. 420

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, BenFranklin Station Washington, DC 20044 (202) 616-9131

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172263, FDikletEdn0t3ry/0: 1/-128, PaPgaege4254ooff15118

1 letter of the order while violating its spirit by approaching unnamed class members and

2 communicating sufficient information to them to implicitly communicate to those individuals

3 that they are, in fact, unnamed class members. Defendants’ proposed order avoids these 4 difficulties by drawing clearer lines than was possible for a protective order that applies

5 generally across all discovery.

6

Under the current stipulated protective order, certain information is considered

7 “Confidential Information.” Confidential Information includes, inter alia, A numbers; “any

8 other information that, either alone or in association with other related information[] would 9 allow the identification of the particular individual(s) to whom the information relates”

10 (including names); sensitive but unclassified information, including information deemed

11 “limited official use” and “for official use only”; any information complied for law 12 enforcement purposes1; and personally identifiable information. Dkt. No. 86 at ¶ 2(a), (b), (k),

13 (l), (p). Confidential Information “including all information derived therefrom, shall be

14 restricted to use in this litigation . . . and shall not be used by anyone subject to the terms of

15 this agreement, for any purpose outside of this litigation or any other proceeding between the

16 parties.” Id. at 6 ¶4.3. Disclosure of confidential information is limited, as relevant here, to:

17

• “named Plaintiffs”;

18

• “Plaintiffs’ counsel in this action and any support staff of such counsel assisting in this

19

action with an appropriate need to know”;

20

• “experts and consultants to whom disclosure is reasonably necessary for this litigation”;

21

• “any other person mutually authorized by both parties’ counsel”;

22

• “the Court, court personnel, and court reporters, and their staff”;

23

• “copy or imaging or data processing services retained by counsel to assist in this

24

litigation”;

25

• “during their depositions, witnesses in this action to whom disclosure is reasonably

26

necessary”; or

27

28 1 This category presumably concerns any law enforcement information that may not be withheld from disclosure as privileged.

DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 5

App. 421

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, BenFranklin Station Washington, DC 20044 (202) 616-9131

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172263, FDikletEdn0t3ry/0: 1/-128, PaPgaege4265ooff15118

1

• “the author or recipient of a document containing Confidential Information or a

2

custodian or other person who otherwise possessed or knew the Confidential

3

Information”.

4 Id. at 5-6 ¶ 4.2(a)-(i). Notably absent from this list is unnamed class members. Thus, unless

5 they are provided access during a deposition under paragraph 4.2(h), the fact that an unnamed

6 class members is included on the list of class members is Confidential Information that cannot

7 be disclosed to the class member.

8

Although this provides some measure of protection, there is nothing in the current

9 protective order that would prevent an attorney, or the organizations for which they work, from

10 stopping just short of this line while doing the same damage. For example, Plaintiffs’ attorneys

11 or agents could seek out class members and provide them factual information on this litigation,

12 explain the class definitions, ask the individuals to contact them in order to learn more—but

13 stop short of actually saying that the individual is a class member and demur if asked. Even

14 without being directly told, the applicant—having full knowledge of his or her own

15 immigration benefit application—would reasonably surmise that he or she is a class member.

16 Plaintiffs would have arguably complied with the letter of the current protective order, while

17 violating its spirit and occasioning the very same harm that would occur as if the individual

18 were directly told that he or she is a class member. Thus, protection beyond the current

19 protective order is necessary to prevent unnamed class members from learning that the

20 Government is considering whether they are ineligible for a benefit under a national-security

21 related ground of inadmissibility and whether they are the subject of a current law enforcement

22 investigation, as well as to prevent the named plaintiffs from learning the identities of others

23 deemed to have an articulable link to a national security ground of inadmissibility.

24

C. A “For Attorney Eyes Only” Provision Is Appropriate and Necessary

25

Courts have frequently employed “For Attorneys’ Eyes Only” provisions in patent

26 disputes and to protect trade secrets. See Louisiana Pac. Corp. v. Money Marker 1 Institutional

27 Inv. Dealer, 285 F.R.D. 481, 490 (N.D. Cal. 2012) (upholding For Attorney Eyes Only

28 designation over investment documents “[e]ven though LP and DBSI are not direct

DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 6

App. 422

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, BenFranklin Station Washington, DC 20044 (202) 616-9131

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172263, FDikletEdn0t3ry/0: 1/-128, PaPgaege4276ooff15118

1 competitors and do not operate in the same industry”); Matrix, Inc. v. Midthrust Imports, Inc.,

2 No. 13-cv-1278, 2014 WL 12589634, *2 (C.D. Cal. Mar. 7, 2018). The need for nondisclosure

3 in this context is substantially greater, as disclosure is likely to risk the ability of USCIS to

4 properly adjudicate immigration benefit applications, or risk important national security and/or

5 intelligence investigations by confirming for “bad actors” that the government has an

6 articulable link between them and a national security ground of inadmissibility or removability.

7

By (a) limiting disclosure of the names, A numbers, and application filing dates solely

8 to Plaintiffs’ attorneys of record; (b) requiring Plaintiffs’ attorneys to maintain that information

9 either in a locked filing cabinet (if held in paper copy) or in a password-protected file (if held

10 electronically); (c) requiring Plaintiffs’ attorneys not to transmit that information via electronic

11 mail or cloud-based sharing unless the method of transmission employs point-to-point

12 encryption, or other similar encrypted transmission, and (d) prohibiting Plaintiffs’ attorneys

13 from contacting the class members, Plaintiffs’ counsel will be able to view all of the

14 information they have sought, while preventing the harm the Government has identified. This

15 is an appropriate and necessary balance to permit Plaintiffs’ counsel access to this information,

16 while simultaneously protecting the government’s legitimate concerns about potential damage

17 to important national security and law enforcement interests.2

18

CONCLUSION

19

For the foregoing reasons, as well as those described in the accompanying declarations,

20 exhibits A through C, Defendants respectfully move the Court to issue a protective order that

21 2 To the extent Plaintiffs’ counsel subsequently contend that they need various items of information about

particular unnamed class members to develop evidence for use in their case, the parties can meet and confer over 22 ways in which the Defendants might be able to provide Plaintiffs with such information while simultaneously

protecting against the above described dangers to important governmental interests. To the extent Plaintiffs 23 contend they need to be able to tell an individual who contacts them asking if he or she is in one of the classes (so

24

that the individual can determine whether to file a separate lawsuit), they are mistaken. Insofar as an individual has different legal claims than those alleged in the Second Amended Complaint, this lawsuit would not advance

25

those distinct claims, regardless of whether the individual is in one of the classes. Insofar as an individual has the same legal claims as those alleged in this case and is in one of the classes, that individual will benefit from any

26

ruling in Plaintiffs’ favor in this case and need not file a separate lawsuit. And, finally, insofar as an individual has the same legal claims as those alleged in his case, but is not in one of the classes—which means the individual’s

27 application is not pending over six months and subject to CARRP—that individual has no standing to bring such claims. Consequently, there is no reason a curious individual needs to know whether he or she is in one of the

28 certified classes—classes which do not require notice to class members, see Fed. R. Civ. P. 23(c)(2)(A)—to determine whether to bring a separate lawsuit.

DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 7

App. 423

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, BenFranklin Station Washington, DC 20044 (202) 616-9131

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172263, FDikletEdn0t3ry/0: 1/-128, PaPgaege4287ooff15118

1 (a) limits disclosure of the names, A numbers, and application filing dates of the unnamed class 2 members solely to Plaintiffs’ attorneys of record; (b) requires Plaintiffs’ attorneys to maintain 3 that information either in a locked filing cabinet (if held in paper copy) or in a password4 protected file (if held electronically); (c) requires Plaintiffs’ attorneys not to transmit that 5 information via electronic mail or cloud-based sharing unless the method of transmission 6 employs point-to-point encryption, or other similar encrypted transmission; and (d) prohibits 7 Plaintiffs’ attorneys, or any person acting on their behalf, from contacting unnamed plaintiff 8 members of the Naturalization Class and Adjustment-of-Status Class for any purpose without 9 prior order of this Court.

10 Dated: March 1, 2018
11
CHAD A. READLER 12 Acting Assistant Attorney General

13 WILLIAM C. PEACHEY 14 Director, District Court Section

15 TIMOTHY M. BELSAN

Deputy Chief, 16 National Security & Affirmative

17

Litigation Unit

18

19

20

21

22

Respectfully submitted,
/s/ Edward S. White EDWARD S. WHITE Senior Counsel for National Security AARON R. PETTY JOSEPH F. CARILLI, JR. Counsels for National Security National Security & Affirmative
Litigation Unit District Court Section Office of Immigration Litigation U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0868 Tel: (202) 616-9131 Fax: (202) 305-7000 Email: edward.s.white@usdoj.gov
Attorneys for Defendants

23

24

25

26

27

28

DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 8

App. 424

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, BenFranklin Station Washington, DC 20044 (202) 616-9131

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172263, FDikletEdn0t3ry/0: 1/-128, PaPgaege4298ooff15118

CERTIFICATE OF COMPLIANCE
1

2

I HEREBY CERTIFY that on March 1, 2018, I thoroughly discussed the substance of

3 this motion with counsel for Plaintiffs, and in good faith attempted to reach an accord to

4 eliminate the need for the motion. During that discussion, the parties agreed that we were at an

5 impasse over the relief requested in this motion.

6

/s/ Edward S. White

7

EDWARD S. WHITE

U.S. Department of Justice
8

9

CERTIFICATE OF SERVICE

10
I HEREBY CERTIFY that on March 1, 2018, I electronically filed the foregoing with

11
the Clerk of the Court using the CM/ECF system, which will send notification of such filing to

12
the following CM/ECF participants:

13
Harry H. Schneider, Jr., Esq.

14

Nicholas P. Gellert, Esq.

David A. Perez, Esq.

15

Laura K. Hennessey, Esq.

16

Perkins Coie L.L.P.

1201 Third Ave., Ste. 4800

17

Seattle, WA 98101-3099

PH: 359-8000

18

FX: 359-9000

19

Email: HSchneider@perkinscoie.com

Email: NGellert@perkinscoie.com

20

Email: DPerez@perkinscoie.com

Email: LHennessey@perkinscoie.com
21

22

Matt Adams, Esq.

Glenda M. Aldana Madrid, Esq.

23

Northwest Immigrant Rights Project

615 Second Ave., Ste. 400

24

Seattle, WA 98104

25

PH: 957-8611

FX: 587-4025

26

E-mail: matt@nwirp.org

E-mail: glenda@nwirp.org
27

28

Emily Chiang, Esq.

DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 9

App. 425

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, BenFranklin Station Washington, DC 20044 (202) 616-9131

Case:21:81-77-1c1v-7010,00944/2-R3A/2J018D,oIcDu:m1e0n8t41727623,FDilketdE0n3tr/y0:11/1-28, PPaaggee41209 of 1518

ACLU of Washington Foundation

1

901 Fifth Avenue, Suite 630

2

Seattle, WA 98164

Telephone: (206) 624-2184

3

E-mail: Echiang@aclu-wa.org

4

Jennifer Pasquarella, Esq.

5

Sameer Ahmed, Esq.

ACLU Foundation of Southern California

6

1313 W. 8th Street

Los Angeles, CA 90017
7
Telephone: (213) 977-5211

8

Facsimile: (213) 997-5297

E-mail: jpasquarella@aclusocal.org

9

Email: sahmed@aclusocal.org

10
Stacy Tolchin, Esq.

11

Law Offices of Stacy Tolchin

634 S. Spring St. Suite 500A

12

Los Angeles, CA 90014

13

Telephone: (213) 622-7450

Facsimile: (213) 622-7233

14

E-mail: Stacy@tolchinimmigration.com

15

Trina Realmuto, Esq.

16

Kristin Macleod-Ball, Esq.

American Immigration Council

17

100 Summer St., 23rd Fl.

Boston, MA 02110

18

Tel: (857) 305-3600

19

Email: trealmuto@immcouncil.org

Email: kmacleod-ball@immcouncil.org

20

Lee Gelernt, Esq.

21

Hugh Handeyside, Esq.

22

Hina Shamsi, Esq.

American Civil Liberties Union Foundation

23

125 Broad Street

New York, NY 10004

24

Telephone: (212) 549-2616

25

Facsimile: (212) 549-2654

E-mail: lgelernt@aclu.org

26

E-mail: hhandeyside@aclu.org

E-mail: hshamsi@aclu.org
27

28

DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 10

App. 426

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, BenFranklin Station Washington, DC 20044 (202) 616-9131

Case:21:81-77-1c1v-7010,00944/2-R3A/2J018D,oIcDu:m1e0n8t41727623,FDilketdE0n3tr/y0:11/1-28, PPaaggee41310 of 1518

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DEFENDANT’S MOTION FOR PROTECTIVE ORDER C17-0094-RAJ - 11

s/ Edward S. White EDWARD S. WHITE U.S. Department of Justice

App. 427

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation District Court Section PO Box 868, BenFranklin Station Washington, DC 20044 (202) 616-9131

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-1, DFktiElendtr0y3: /10-12/,1P8agPea4g3e11ooff5918
EXHIBIT A
App. 428

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-1, DFktiElendtr0y3: /10-12/,1P8agPea4g3e22ooff5918 App. 429

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-1, DFktiElendtr0y3: /10-12/,1P8agPea4g3e33ooff5918 App. 430

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-1, DFktiElendtr0y3: /10-12/,1P8agPea4g3e44ooff5918 App. 431

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-1, DFktiElendtr0y3: /10-12/,1P8agPea4g3e55ooff5918 App. 432

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-1, DFktiElendtr0y3: /10-12/,1P8agPea4g3e66ooff5918 App. 433

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-1, DFktiElendtr0y3: /10-12/,1P8agPea4g3e77ooff5918 App. 434

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-1, DFktiElendtr0y3: /10-12/,1P8agPea4g3e88ooff5918 App. 435

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-1, DFktiElendtr0y3: /10-12/,1P8agPea4g3e99ooff5918 App. 436

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t4172762-32, DFkitleEdnt0ry3:/011-2/1,8PaPgeag4e401 of 5118
EXHIBIT B
App. 437

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t4172762-32, DFkitleEdnt0ry3:/011-2/1,8PaPgeag4e412 of 5118 App. 438

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t4172762-32, DFkitleEdnt0ry3:/011-2/1,8PaPgeag4e423 of 5118 App. 439

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t4172762-32, DFkitleEdnt0ry3:/011-2/1,8PaPgeag4e434 of 5118 App. 440

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t4172762-32, DFkitleEdnt0ry3:/011-2/1,8PaPgeag4e445 of 5118 App. 441

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t4172762-32, DFkitleEdnt0ry3:/011-2/1,8PaPgeag4e456 of 5118 App. 442

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t4172762-32, DFkitleEdnt0ry3:/011-2/1,8PaPgeag4e467 of 5118 App. 443

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t4172762-32, DFkitleEdnt0ry3:/011-2/1,8PaPgeag4e478 of 5118 App. 444

Case:21:187-7-c1v1-7010,00944/-2R3A/2J01D8,oIcDu:m1e0n8t4172762-32, DFkitleEdnt0ry3:/011-2/1,8PaPgeag4e489 of 5118 App. 445

CCaassee2: :1187--7c1v1-07010, 9044-/R23A/J201D8o,cIuDm: 1e0n8t 4172762-23, DFkiletEdn0tr3y/:011-/21,8PaPgaeg4e4190ooff51118 App. 446

CCaassee2: :1187--7c1v1-07010, 9044-/R23A/J201D8o,cIuDm: 1e0n8t 4172762-23, DFkiletEdn0tr3y/:011-/21,8PaPgaeg4e5101ooff51118 App. 447

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-3, DFktiElendtr0y3: /10-12/,1P8agPea4g5e11ooff5518
EXHIBIT C
App. 448

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-3, DFktiElendtr0y3: /10-12/,1P8agPea4g5e22ooff5518 App. 449

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-3, DFktiElendtr0y3: /10-12/,1P8agPea4g5e33ooff5518 App. 450

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-3, DFktiElendtr0y3: /10-12/,1P8agPea4g5e44ooff5518 App. 451

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-3, DFktiElendtr0y3: /10-12/,1P8agPea4g5e55ooff5518 App. 452

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-4, DFktiElendtr0y3: /10-12/,1P8agPea4g5e61ooff5418

1

The Honorable Richard A. Jones

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT FOR THE

9

WESTERN DISTRICT OF WASHINGTON

10

AT SEATTLE

11

12 ABDIQAFAR WAGAFE, et al., 13

14

Plaintiffs,

15

v.

16 DONALD TRUMP, et al.,

CASE NO. 2:17-cv-00094-RAP
[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR LIMITED PROTECTIVE ORDER

17 Defendants.
18

19

20

21

22

23

24

25

26

27

28

[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR LIMITED PROTECTIVE ORDER

- 1 -

2:17-cv-00094-RAP

App. 453

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION
CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. BOX 868, BEN FRANKLIN STATION
WASHINGTON, D.C. 20044-0860 (202) 616-9131

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-4, DFktiElendtr0y3: /10-12/,1P8agPea4g5e72ooff5418

1

Upon consideration of Defendants’ motion for a limited protective order, the

2 Court, finding good cause therefor, GRANTS Defendants’ motion.

3

IT IS HEREBY ORDERED that disclosure of, and access to, the names,

4 Alien numbers (“A numbers”), and application filing dates of the unnamed

5 plaintiff members of the Naturalization Class and Adjustment-of-Status Class shall

6 be limited to the following:

7

(1) Plaintiffs’ attorneys of record, during such time as they continue to represent

8

9

Plaintiffs;

10 (2) Experts retained by Plaintiffs to the extent reasonably necessary to prepare

11

expert reports and testimony; and

12 (3) The Court and court personnel.

13

AND IT IS FURTHER ORDERED that Plaintiffs’ attorneys of record

14 shall maintain the above-described information in a secure manner, i.e. in a locked

15 filing cabinet (for any paper copy) or in a password-protected electronic file to

16 which only authorized persons have access, and shall not transmit that information

17 over any electronic mail or cloud-based sharing unless the method of transmission

18 employs point-to-point encryption or other similar encrypted transmission.

19

AND IT IS FURTHER ORDERED that Plaintiffs’ counsel, and any

20 person acting on their behalf, are prohibited from either disclosing to any

21 individual who contacts them whether that individual is an unnamed member of
22

either the Naturalization Class or Adjustment-of-Status class, or contacting the 23

24 unnamed plaintiff members of the Naturalization Class and Adjustment-of-Status

25 class for any purpose absent prior order of this Court.

26

27

28

[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR LIMITED PROTECTIVE ORDER

- 2 -

2:17-cv-00094-RAP

App. 454

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION
CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. BOX 868, BEN FRANKLIN STATION
WASHINGTON, D.C. 20044-0860 (202) 616-9131

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-4, DFktiElendtr0y3: /10-12/,1P8agPea4g5e83ooff5418

1

It is so ordered.

2

3

Dated this ______ day of _________, 2018.

4

5

6

_______________________________

HON. RICHARD A. JONES

7

United States District Judge

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR LIMITED PROTECTIVE ORDER

- 3 -

2:17-cv-00094-RAP

App. 455

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION
CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. BOX 868, BEN FRANKLIN STATION
WASHINGTON, D.C. 20044-0860 (202) 616-9131

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7172263-4, DFktiElendtr0y3: /10-12/,1P8agPea4g5e94ooff5418

1 Presented by:

2 CHAD A. READLER
3 Acting Assistant Attorney General

4

5

WILLIAM C. PEACHEY Director, District Court Section

6 Office of Immigration Litigation

7 TIMOTHY M. BELSAN
8 Deputy Chief, National Security & Affirmative Litigation Unit, 9 District Court Section 10 Office of Immigration Litigation

11 s/ Edward S. White
12 EDWARD S. WHITE, NY Bar #2088979 Counsel for National Security/Trial Attorney
13 National Security & Affirmative Litigation Unit
14 District Court Section
15 Office of Immigration Litigation Civil Division
16 United States Department of Justice
17 P.O. Box 868, Ben Franklin Station Washington, D.C. 20044-0868
18 Telephone: (202) 616-9131
19 Facsimile: (202) 305-7000
20 Email: edward.s.white@usdoj.gov

21 AARON R. PETTY
22 JOSEPH F. CARILLI, JR. Counsel for National Security/Trial Attorney
23 National Security & Affirmative Litigation Unit 24 District Court Section 25 Office of Immigration Litigation

26 Attorneys for Defendants 27

28

[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR LIMITED PROTECTIVE ORDER

- 4 -

2:17-cv-00094-RAP

App. 456

OFFICE OF IMMIGRATION LITIGATION DISTRICT COURT SECTION
CIVIL DIV., U.S. DEP’T OF JUSTICE P.O. BOX 868, BEN FRANKLIN STATION
WASHINGTON, D.C. 20044-0860 (202) 616-9131

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172273, FDikletEdn0t3ry/0: 71/-128, PaPgaege4610ooff15718

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 8

9 ABDIQAFAR WAGAFE, et al., on behalf of themselves and others similarly situated,
10
Plaintiffs, 11
v. 12
DONALD TRUMP, President of the 13 United States; et al.,

14

Defendants.

No. 2:17-CV-00094-RAJ
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR PROTECTIVE ORDER RE CLASS LIST
NOTED ON MOTION CALENDAR: MARCH 9, 2018

15

16

17

18

19

20

21

22

23

24

25

26

PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR

PROTECTIVE ORDER RE CLASS LIST

(No. 2:17-cv-00094-RAJ)
138851031.2

App. 457

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172273, FDikletEdn0t3ry/0: 71/-128, PaPgaege4621ooff15718

1

TABLE OF CONTENTS

2

PAGE

3 I. 4 II. 5 6 7 8 9 10 11

BACKGROUND .............................................................................................................. 2
ARGUMENT.................................................................................................................... 4
A. Defendants’ Motion Is Procedurally Improper Because It Is Effectively an Untimely Second Motion for Reconsideration. ..................................................... 4
B. If the Court Addresses the Merits of Defendants’ Motion, it Should Be Denied for the Reasons That the Court Has Already Articulated.......................... 5
1. The Government Raises the Same Law Enforcement Concerns That the Court Has Already Rejected and Should Do So Again. .............. 6
2. The Court Has Already Found that Plaintiffs’ Need for the Class List Outweighs the Government’s Concerns. ............................................ 7
C. The Current Protective Order Is Sufficient. Alternatively, the Court Should Adopt the Compromise That Plaintiffs’ Proposed to Defendants. .......... 11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR

PROTECTIVE ORDER RE CLASS LIST - i

(No. 2:17-cv-00094-RAJ)
138851031.2

App. 458

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172273, FDikletEdn0t3ry/0: 71/-128, PaPgaege4632ooff15718

1

TABLE OF AUTHORITIES

2 CASES

PAGE

3

Baumann v. Chase Inv. Servs. Corp.,

4

747 F.3d 1117 (9th Cir. 2014) .................................................................................................10

5 Domingo v. New England Fish Co.,

6

727 F.2d 1429 (9th Cir. 1984) .................................................................................................10

7 Franco-Gonzalez v. Holder, No. CV 10-02211-DMG (C.D. Cal. Mar. 2, 2015)..................................................................11

8 Gulf Oil Co. v. Bernard,

9

452 U.S. 89 (1981)...................................................................................................................10

10 Inland Empire-Immigrant Youth Collective v. Nielsen,

11

No. EDCV 17-2048, 2018 WL 1061408 (C.D. Cal. Feb. 26, 2018) .......................................11

12 Kleiner v. First Nat’l. Bank of Atlanta, 751 F.2d 1193 (11th Cir. 1985) ...............................................................................................10

13 Latif v. Holder,

14

28 F.Supp.3d 1134, 1151-62 (D. Or. 2014) ...........................................................................7, 9

15 Resnick v. Am. Dental Ass’n, 95 F.R.D. 372 (N.D. Ill. 1982).................................................................................................10
16

17

S.E.C. v. Kuipers, 399 F. App’x 167 (9th Cir. 2010) ..............................................................................................5

18 RULES
19 Fed. R. Civ. P. 26(e)(1)(A) ............................................................................................................13
20 Local Rule 7(h)(2)............................................................................................................................5
21

22

23

24

25

26
PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR PROTECTIVE ORDER RE CLASS LIST - ii (No. 2:17-cv-00094-RAJ)

138851031.2

App. 459

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172273, FDikletEdn0t3ry/0: 71/-128, PaPgaege4643ooff15718

1

The Court ordered Defendants to produce a class list in its October 19, 2017 Order. Dkt.

2 98 at 3-4. The Court denied Defendants’ motion to reconsider that order. Dkt. 102. Five

3 months after the Court’s initial order, Defendants have filed yet another motion, this time asking

4 the Court to impose certain restrictions on the class list. The Court should deny the motion

5 because it is procedurally improper and substantively meritless, and the relief Defendants seek is

6 unnecessary in light of the Stipulated Protective Order and Plaintiffs’ proposed compromise.

7

The motion is improper for several reasons. First, although couched as a motion for

8 protective order, Defendants simply re-argue the same points they advanced in opposing

9 Plaintiffs’ motion to compel and in their motion for reconsideration. In effect, Defendants now

10 bring an improper second motion for reconsideration. Notably, at the hearing on February 14,

11 2018, when Defendants commented that they might “come back to the Court prior to the

12 production deadline [of the class list] to seek further relief,” the Court responded:

13

I just want to reemphasize, counsel, that two orders have already

been issued. I don’t know how to make this any clearer of what the

14

court’s expectations are. And unless there’s something that’s

extraordinarily different that I’m not aware of or hasn’t already

15

been identified by either the parties, or the court’s order, I expect

full compliance in a timely fashion without further delay. 16

Feb. 14, 2018 Transcript, at 27-28 (emphasis added). There is nothing “extraordinarily

17

different” identified in Defendants’ motion; there is nothing different at all. Second, Defendants’

18

motion is untimely. There is no reason Defendants could not have made this request months ago,

19

rather than waiting until two business days before their production deadline to file this motion.

20

Third, Defendants did not fully meet and confer, as required by this Court’s Standing Order.

21

Even were the Court to address the merits of Defendants’ motion, it should be denied for

22

the same reasons the Court already articulated in its prior orders. As explained before, Plaintiffs’

23

counsel require the class list and class members’ personally identifiable information both to

24

communicate with class members to obtain information that is directly relevant to the claims at

25

issue, and to respond to inquiries from potential class members to inform them if their interests

26

PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR PROTECTIVE

ORDER RE CLASS LIST - 1

(No. 2:17-cv-00094-RAJ)

138851031.2

App. 460

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172273, FDikletEdn0t3ry/0: 71/-128, PaPgaege4654ooff15718

1 are represented in this case. The Court has already found (twice) that Plaintiffs’ counsel’s need

2 for the class list outweighs the exact same speculative law enforcement concerns that Defendants

3 raise again here. Far from striking a balance, the restrictions Defendants propose would defeat

4 Plaintiffs’ reasons for requesting the class list in the first place.

5

And finally, the relief Defendants seek is unnecessary. Defendants assert that the

6 Stipulated Protective Order is inadequate based on strained hypotheticals that involve Plaintiffs’

7 counsel violating “the spirit” of the Court’s orders. These are ad hominem attacks, not legal

8 arguments. There is no evidence that anyone entitled to receive confidential information under

9 the Stipulated Protective Order would violate either the letter or the spirit of that court order.

10 Additionally, consistent with the Stipulated Protective Order already in place, Plaintiffs’ counsel

11 suggested a reasonable compromise that would provide both an additional layer of protection to

12 the class list, and also enable the list to be used in a way the Court has already approved to

13 advance this litigation. Defendants’ counsel rejected this proposed compromise.

14

In light of the procedural, substantive, and practical flaws with Defendants’ motion,

15 Plaintiffs respectfully request that the Court deny the motion. Alternatively, if the Court believes

16 certain information in the class list should be subject to additional protections, the Court should

17 adopt Plaintiffs’ proposed compromise because it strikes the right balance.

18

I. BACKGROUND

19

This motion is another example of Defendants’ delay tactics. On June 21, 2017, the

20 Court granted Plaintiffs’ motion to certify two classes: a Naturalization Class and an Adjustment

21 Class. Dkt. 69. On August 1, 2017, Plaintiffs served Defendants with discovery requests asking

22 for, among other things, documents sufficient to identify the class members, including a list of

23 class members. Dkt. 92, Ex. A at 32, 34-39, 48-51. Defendants refused to provide a class list,

24 forcing Plaintiffs to file a motion to compel (Dkt. 91). The Court granted Plaintiffs’ motion on

25 October 19, 2017, ordering Defendants to produce a class list. Dkt. 98. Notably, in arguing

26 against producing a class list, Defendants asserted that disclosing class members’ personally

PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR

PROTECTIVE ORDER RE CLASS LIST – 2

(No. 2:17-cv-00094-RAJ)

138851031.2

App. 461

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172273, FDikletEdn0t3ry/0: 71/-128, PaPgaege4665ooff15718

1 identifiable information would cause class members to “alter their behavior, conceal evidence of

2 wrongdoing, or attempt to influence others in a way that could affect national security interests.”

3 Id. at 3. The Court rejected these arguments as vague and speculative. Id. at 3-4. The Court

4 also reasoned “that the balance weigh[s] in favor of disclosure,” because the list “is relevant to

5 the claims and Plaintiffs’ needs outweigh the Government’s reasons for withholding.” Id. at 4.

6 The Court then denied Defendants’ motion for reconsideration. Dkt. 102 at 2-3.

7

In the ensuing months, Plaintiffs repeatedly asked Defendants about the status of the class

8 list, but several requests would go unanswered. See Declaration of David A. Perez (“Perez

9 Decl.”), Ex. A (2/5/18 Perez E-mail to White re Class List) (two requests go unanswered).

10 Defendants committed to producing the class list by March 5, 2018. Dkt. 114 at 4. On February

11 14, the Court reminded Defendants that it had already issued two orders concerning the class list,

12 and made clear that absent “something that’s extraordinarily different,” the Court expected full

13 compliance with its orders. Feb. 14, 2018 Transcript, at 27-28 (emphasis added).

14

At the end of the day on Friday, February 23, Defendants asked for a meet and confer

15 “concerning the production of the Class Member List.” Perez Decl., Ex. B (bottom e-mail).

16 Over the next five days, Plaintiffs repeatedly asked “what it is [Defendants] plan on requesting

17 so [Plaintiffs] can make sure [they] have the right people on the line, and prepare accordingly in

18 terms of checking in with our team and conducting research.” Id. Defendants declined to

19 provide details. Nevertheless, before the meet and confer Plaintiffs sent Defendants a proposed

20 compromise: (a) identifying information on the class list would be subject to “Attorneys’ Eyes

21 Only” protection; (b) Plaintiffs could challenge those designations later (pursuant to the

22 procedure in the Stipulated Protective Order); (c) class counsel could inform potential class

23 members whether they are on the list; (d) but the entire class list would not be shared with any

24 named plaintiff or class member. Id. (Gellert e-mail to White). Plaintiffs invited Defendants to

25

26

PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR

PROTECTIVE ORDER RE CLASS LIST – 3

(No. 2:17-cv-00094-RAJ)

138851031.2

App. 462

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172273, FDikletEdn0t3ry/0: 71/-128, PaPgaege4676ooff15718

1 draft a supplement to the Stipulated Protective Order consistent with this compromise. 2 Defendants declined to compromise, and failed to explain the relief they were seeking.1

3

On March 5, 2018, in violation of the Court’s order, Defendants produced a class list that

4 fully redacted the names, A-numbers and filing dates of each person. Perez Decl., ¶ 6.

5

II. ARGUMENT

6 A. Defendants’ Motion Is Procedurally Improper Because It Is Effectively an Untimely Second Motion for Reconsideration.
7 The Court should deny Defendants’ motion because it is procedurally improper. First,
8
Defendants raise no new arguments that the Court has not already rejected. See infra Section B. 9
For example, the law enforcement concerns Defendants raise here are identical to the concerns 10
that Defendants previously raised in their October 2017 opposition to Plaintiffs’ motion to 11
compel production of the class list, and again in their motion for reconsideration. Compare Dkt. 12
126 at 3 (Disclosure to “class members of their status in CARRP” “would risk damage to 13
national security and intelligence interests and investigations.”) with Dkt. 94 at 7 (“[D]isclosure 14
of whether a particular individual application is subject to CARRP could cause substantial harm 15
to law enforcement investigations and intelligence activities.”). Defendants previously argued 16
that class members would “alter their behavior, conceal evidence of wrongdoing, or attempt to 17
influence others in a way that could affect national security interests.” Dkt. 98 at 3; see also Dkt. 18
102 at 2-3. Almost verbatim, Defendants repeat the same argument here. See Dkt. 126 at 3 (“the 19
individual may change his or her behavior, coordinate with others to prevent USCIS from 20
collecting statements from other relevant persons, stop certain behaviors, or intentionally provide 21
misleading information”). Back in October, Defendants advanced these arguments to resist 22
disclosing the class list altogether; here, Defendants are regurgitating these arguments to deny 23
Plaintiffs’ counsel the ability to use the class list in the way that Plaintiffs had requested in their 24

25
1 Defendants did not properly meet and confer. In fact, Plaintiffs did not know Defendants would be
26 seeking relief concerning the “application dates,” much less why, until after the motion was filed. Perez Decl., ¶ 4.

PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR

PROTECTIVE ORDER RE CLASS LIST – 4

(No. 2:17-cv-00094-RAJ)

138851031.2

App. 463

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172273, FDikletEdn0t3ry/0: 71/-128, PaPgaege4687ooff15718

1 motion to compel—which, in effect, means that Defendants are seeking the same result they had

2 sought back in October. In other words, Defendants’ motion is nothing more than an improper

3 and untimely third attempt to get the Court to litigate the order issued five months ago. See

4 Lopez v. Bollweg, No. CV 13-00691-TUC-DCB, 2017 WL 4677851, at *3 (D. Ariz. Aug. 28,

5 2017) (“There is nothing in the Local Rules of Civil Procedure that provides for multiple

6 motions for reconsideration, and filing a successive motion for reconsideration with the same

7 unsuccessful arguments wastes valuable Court resources.”).

8

Second, the Court should reject Defendants’ delay tactics. Defendants acknowledge that

9 they agreed to the Stipulated Protective Order two months after class certification, and two

10 weeks after Plaintiffs had requested the class list. Dkt. 126 at 4. They have had six months to

11 ask for this relief—but instead waited until the last possible day to file a motion before the class

12 list was due. These dilatory tactics cast doubt on Defendants’ contentions regarding the sensitive

13 nature of the information Defendants seek to protect because. If Defendants’ concerns had merit, 14 Defendants would have been far more proactive in seeking this relief.2

15

In sum, this motion is a second request to reconsider, masquerading as a protective order,

16 filed five months late. The Court should deny it.

17 B. If the Court Addresses the Merits of Defendants’ Motion, it Should Be Denied for the Reasons That the Court Has Already Articulated.
18
If the Court reaches the merits, it should deny the motion for the same reasons articulated 19
in its previous orders, and because the relief Defendants are seeking would undermine Plaintiffs’ 20
reasons for seeking the class list. 21

22

23
2 Defendants also violated the Court’s Standing Order by failing to “discuss thoroughly, . . . the substance
24 of the contemplated motion and any potential resolution. The Court construes this requirement strictly. Half-
hearted attempts at compliance with this rule will not satisfy counsel’s obligation.” Dkt. 65 at 3 (emphasis in
25 original). Plaintiffs asked Defendants several times what relief they would seek in their motion, and were not even
aware that the motion would include class members’ application dates until two hours before the motion was filed.
26 Perez Decl., Exs. B and C.

PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR

PROTECTIVE ORDER RE CLASS LIST – 5

(No. 2:17-cv-00094-RAJ)

138851031.2

App. 464

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7172273, FDikletEdn0t3ry/0: 71/-128, PaPgaege4698ooff15718

1

1. The Government Raises the Same Law Enforcement Concerns That the

Court Has Already Rejected and Should Do So Again.

2

Defendants contend that disclosure to “class members of their status in CARRP” “would

3 risk damage to national security and intelligence interests and investigations.” Dkt. 126 at 3.

4 The Court already rejected this argument twice, and should do so again here. In granting

5 Plaintiffs’ motion to compel, the Court expressly rejected Defendants’ assertion “that releasing

6 the identities of potential class members could lead individuals to potentially alter their behavior,

7 conceal evidence of wrongdoing, or attempt to influence others in a way that could affect

8 national security interests.” Dkt. 98 at 3. The Court recognized that Defendants’ argument

9 “consist[ed] of mere speculation and a hypothetical result [and] is not sufficient to claim

10 privilege over basic spreadsheets identifying who is subject to CARRP.” Id. at 3-4. Defendants

11 moved for reconsideration. The Court once again rejected Defendants’ claim, noting that “[t]he

12 Government may not merely say those magic words—‘national security threat’—and

13 automatically have its requests granted in this forum.” Dkt. 102 at 3.

14 As the Court has previously acknowledged on multiple occasions, permitting class

15 members to know that they are subjected to CARRP would not cause any of the speculative harm

16 that Defendants’ claim for multiple reasons. First, as Plaintiffs explained in their motion to

17 compel briefing, Defendants have routinely disclosed to individuals that they are subject to

18 CARRP in response to FOIA requests and in other litigation, and Defendants have failed to

19 provide a single example of how those disclosures caused any harm to law enforcement interests.

20 See Dkt. 95 at 4 (citing Dkt. 97 (attorney noting that, in response to FOIA requests, USCIS and

21 ICE have regularly provided him “with a copy of the CARRP Coversheet . . . and other CARRP-

22 related information when [his] client’s case has been held under the CARRP program”); id., Exs.

23 A, B, & C (FOIA documents indicating individuals subjected to CARRP)); Dkt. 91 at 4 (citing

24 Dkt. 27-1, Ex. E (FOIA document indicating Plaintiff Wagafe’s file was reviewed by CARRP

25 officer); Dkt. 93, Exs. 1, 2 (FOIA documents indicating CARRP officers involved in

26

PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR

PROTECTIVE ORDER RE CLASS LIST – 6

(No. 2:17-cv-00094-RAJ)

138851031.2

App. 465

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:81-77-1c1v-7010,00944/2-R3A/2J018D,oIcDu:m1e0n8t41727723,FDilketdE0n3tr/y0:71/1-28, PPaaggee41609 of 15718

1 naturalization and adjustment of status applications); Dkt. 92, Ex. E at 276:15-17 (USCIS officer

2 confirming in deposition that plaintiff’s case was “a CARRP case”)).

3

Second, Defendants repeat their argument that “disclosure that an applicant is (or was)

4 subject to CARRP . . . would allow the applicant to infer that he or she may be subject to

5 investigative scrutiny by law enforcement.” Dkt. 126 at 3-4. But the Court has already rejected

6 that argument too. Because the two certified classes are limited to individuals whose

7 applications have been languishing for at least six months, they are already on notice that their

8 applications have been subject to additional scrutiny. See Dkt. 95 at 3-4; see also Latif v.

9 Holder, 28 F. Supp. 3d 1134, 1151-62 (D. Or. 2014) (holding that individuals on the No Fly List

10 be provided “with notice regarding their status on the No–Fly List” and rejecting similar security

11 concerns raised by the Government). When denying Defendants’ motion for reconsideration, the

12 Court explicitly recognized that the limited scope of Plaintiffs’ request—only releasing “the

13 names of potential class members” to those individuals—cannot be “outbalanced by the

14 speculative scope of” Defendants’ alleged harm in part because “those potential class members

15 may already be aware of the Government’s additional scrutiny considering the passage of time.” 16 Dkt. 102 at 3.3 The Court should once again reject Defendants’ arguments here.4

17

2. The Court Has Already Found that Plaintiffs’ Need for the Class List

Outweighs the Government’s Concerns. 18

The Court should also reject Defendants’ request for an additional protective order

19

because it would defeat Plaintiffs’ purpose in requesting the class list in the first place. As

20

21
3 Defendants also claim that “it is difficult [for USCIS] to gather evidence if an applicant prematurely
22 becomes aware of an investigation.” Dkt. 126 at 3. But that argument is as speculative, if not more so, than
Defendants’ other arguments. As mentioned above, class members whose applications have been unreasonably
23 delayed more than six months already suspect they are being investigated by Defendants, so confirmation of that
investigation would not cause any additional harm to the Government.
24
4 Defendants also admit that “[a]bout 24 percent of the current class members have their USCIS national
25 security concern resolved . . . but they remain class members because their immigration benefit request remains
pending.” Dkt. 126-1 ¶ 17. Because these class members are not currently subject to an investigation, Defendants
26 have provided no justification as to why they cannot be notified that their applications were subjected to CARRP.

PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR

PROTECTIVE ORDER RE CLASS LIST – 7

(No. 2:17-cv-00094-RAJ)

138851031.2

App. 466

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:81-77-1c1v-7010,00944/2-R3A/2J018D,oIcDu:m1e0n8t41727723,FDilketdE0n3tr/y0:71/1-28, PPaaggee41710 of 15718

1 Plaintiffs previously explained, Plaintiffs’ counsel need the class list and class members’

2 personally identifiable information for two main reasons: (1) to communicate with class

3 members, who may be witnesses and sources of information that is directly relevant to Plaintiffs’

4 claims, and (2) to respond to inquiries from potential class members and inform them if their

5 interests are represented in this case. See Dkt. 91 at 5; Dkt. 95 at 1-2; Dkt. 100 at 5-6. In

6 granting Plaintiffs’ motion to compel, the Court found that these needs outweighed Defendants’

7 conclusory security concerns. See Dkt. 98 at 4 (“[T]he Court must balance the need for Plaintiffs

8 to obtain [the class list] against the Government’s reasons for withholding. In doing so, the

9 Court finds that the balance weigh in favor of disclosure.”); Dkt. 102 at 2 (denying Defendants’

10 motion for reconsideration because “the Court exercised its discretion in balancing the needs of

11 Plaintiffs versus those of Defendants and found that the balance weighed in favor of

12 disclosure.”).

13

Defendants’ request would undermine Plaintiffs’ ability to use the class list in a way that

14 the Court has already approved. Defendants contend that the ability of class members to know

15 they are Plaintiffs in this case is not relevant. See Dkt. 126 at 7 n.2 (“[T]here is no reason a

16 curious individual needs to know whether he or she is in one of the certified classes.”). This is

17 the same relevance argument that Defendants previously made. See Dkt. 94 at 4 (“Disclosing

18 personally identifiable information (i.e., names and A-numbers) of particular individuals adds

19 nothing to Plaintiffs’ case.”); id. at 6 (Plaintiffs’ “difficulty in advising individuals who may be

20 class members whether their interests are adequately represented … is not relevant[.]”). The

21 Court considered Defendants’ arguments and found that they had no merit. See Dkt. 98 at 2-3

22 (“[T]he Government argues that the class members’ specific identities are neither relevant nor

23 required for Plaintiffs to pursue this class action. Many of the Government’s arguments in

24 opposition to this request are mere conclusions, and therefore are not sufficient to avoid

25 disclosure.” (internal citation omitted)); id. at 4-5 (“[T]he Court rejected the Government’s

26 conclusory arguments as to relevance.”).

PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR

PROTECTIVE ORDER RE CLASS LIST – 8

(No. 2:17-cv-00094-RAJ)

138851031.2

App. 467

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:81-77-1c1v-7010,00944/2-R3A/2J018D,oIcDu:m1e0n8t41727723,FDilketdE0n3tr/y0:71/1-28, PPaaggee41721 of 15718

1

The Court was correct. As Plaintiffs previously explained, Plaintiffs’ counsel must be

2 able to communicate with class members to obtain information relevant to Plaintiffs’ claims

3 regarding, inter alia, the unreasonable delays in their applications, the Government’s failure to

4 provide them any notice that they are subject to CARRP or explanation for their classification

5 under CARRP, their religious background (given that the Government claims not to record that

6 information), and other harmful impacts of CARRP and successor extreme vetting programs.

7 See Dkt. 91 at 5; Dkt. 95 at 1-2; Dkt. 100 at 5-6. Defendants appear to now concede that some of

8 this information is relevant, but state that if Plaintiffs “need various items of information about

9 particular unnamed class members to develop evidence for use in their case, the parties can meet

10 and confer over ways in which the Defendants might be able to provide Plaintiffs with such

11 information.” Dkt. 126 at 7 n.2. Defendants’ offer to meet and confer makes no sense and fails

12 to explain how Plaintiffs’ counsel can obtain information that is solely in the possession of

13 unnamed class members without making those class members aware that they are Plaintiffs in

14 this lawsuit and their applications have been subjected to CARRP.

15

Furthermore, as Plaintiffs also previously explained, individuals have a right to know that

16 they are members of this class action and their interests are being represented in this case. See

17 Dkt. 91 at 5; Dkt. 95 at 1; Dkt. 100 at 6. Defendants contend that Plaintiffs “are mistaken,” Dkt.

18 126 at 7 n.2, but it is Defendants who misunderstand the importance of class counsel’s duty to

19 advise individuals who inquire about class membership. “[C]lass counsel represents all class

20 members as soon as a class is certified.” Kleiner v. First Nat’l. Bank of Atlanta, 751 F.2d 1193,

21 1207 n.28 (11th Cir. 1985); see also Baumann v. Chase Inv. Servs. Corp., 747 F.3d 1117, 1122-

22 23 (9th Cir. 2014) (noting that “class counsel’s ability to fairly and adequately represent

23 unnamed [class members]” is a “critical requirement[] in federal class actions”); Resnick v. Am.

24 Dental Ass’n, 95 F.R.D. 372, 376 (N.D. Ill. 1982) (“Class counsel have the fiduciary

25 responsibility and all the other hallmarks of a lawyer representing a client.”). Therefore, when

26 individuals reach out to class counsel to inquire as to whether they are class members, class

PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR

PROTECTIVE ORDER RE CLASS LIST – 9

(No. 2:17-cv-00094-RAJ)

138851031.2

App. 468

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:81-77-1c1v-7010,00944/2-R3A/2J018D,oIcDu:m1e0n8t41727723,FDilketdE0n3tr/y0:71/1-28, PPaaggee41732 of 15718

1 counsel must be able to respond and appropriately advise their clients. It is very important for

2 individuals with pending naturalization and adjustment of status applications to know whether

3 they can seek and obtain relief through this lawsuit, or whether they face a separate issue causing

4 delay that requires a separate legal analysis and potential litigation to ensure the Government

5 properly adjudicates their applications.

6

Defendants’ proposed restrictions would effectively put a ban on class counsel’s ability to

7 communicate with class members. The Supreme Court has noted the “adoption of a

8 communications ban that interferes with . . . the prosecution of a class action” must include

9 “specific findings that reflect a weighing of the need for limitation and the potential interference

10 with the rights of the parties.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 101, 104 (1981); see also

11 Domingo v. New England Fish Co., 727 F.2d 1429, 1441 (9th Cir. 1984) (finding that

12 “restrictions on [plaintiffs’] communications [with class members] created at least potential

13 difficulties for them as they sought to vindicate the legal rights of [the class]”) (internal quotation

14 marks omitted). Here, Defendants have failed to demonstrate the need for the limitations they

15 seek. To the contrary, because of the important role that class counsel plays in advising and

16 protecting the rights of all class members, Defendants should produce the class list with class

17 members’ personally identifiable information, as courts have ordered the Government to produce

18 in similar situations. See, e.g., Inland Empire-Immigrant Youth Collective v. Nielsen, No. EDCV

19 17-2048 PSG (SHKx), 2018 WL 1061408, at *23 (C.D. Cal. Feb. 26, 2018) (“Defendants shall

20 provide Class Counsel with a list of all [class members]. That list shall include the following

21 information for each person: Name, Alien Number . . . .”); Franco-Gonzalez v. Holder, No. CV

22 10-02211-DMG (C.D. Cal. Mar. 2, 2015), Dkt. 810 at 8 & n.7 (ordering the government to

23 provide “Plaintiffs with a report from the Class Database indicating the [class members]

24 currently identified by Defendants,” including their names and A numbers).

25

26

PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR

PROTECTIVE ORDER RE CLASS LIST – 10

(No. 2:17-cv-00094-RAJ)

138851031.2

App. 469

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:81-77-1c1v-7010,00944/2-R3A/2J018D,oIcDu:m1e0n8t41727723,FDilketdE0n3tr/y0:71/1-28, PPaaggee41743 of 15718

1 C. The Current Protective Order Is Sufficient. Alternatively, the Court Should Adopt the Compromise That Plaintiffs’ Proposed to Defendants.
2 Defendants assert that they require added protection because the existing protective order
3 “is insufficient.” Dkt. 126 at 4. This argument fails for several reasons. First, it simply
4 highlights Defendants’ procrastination. Defendants agreed to the Stipulated Protective Order in
5 August—nearly eight months ago. Therefore, after class certification and after Plaintiffs had
6 requested a class list, Defendants expressly agreed to terms that “would permit named Plaintiffs
7 to receive the class list.” Dkt. 126 at 4. Contrary to Defendants’ suggestion, Plaintiffs never
8 agreed that “inform[ing] unnamed class members whether they are included on the class list”
9 would be subject to the Stipulated Protective Order. Id. Instead, Plaintiffs noted that “there is no
10 need to shield the identities of class members pursuant to a protective order.” Dkt. 100 at 8. The
11 Court rejected Defendants’ argument that class members cannot be made aware of their inclusion
12 in this case, and stated that “Plaintiffs’ attorneys could supplement the protective order . . . to
13 assuage any remaining concerns on the part of the Government.” Dkt. 98 at 4 (emphasis added).
14 But Defendants have raised no new concerns here to justify supplementing the protective order.
15 Second, Defendants also assert that their proposed changes are necessary because
16 Plaintiffs’ counsel “or the organizations for which they work,” will violate “the spirit” of the
17 Stipulated Protective Order. Dkt. 126 at 5-6. Put differently, Defendants request this order
18 because they do not believe the Court can trust Plaintiffs’ counsel or “the organizations for
19 which they work.” To be clear, this is not a legal argument, or a factual statement based on any
20 empirical evidence. It is an ad hominem attack. There is no basis to suggest, much less
21 conclude, that Plaintiffs’ counsel will violate either the letter or the spirit of any order, and
22 certainly not one to which Plaintiffs stipulated. On the contrary, Plaintiffs have demonstrated
23 throughout this case their commitment to following all the Court’s orders.
24 And finally, far from striking the right balance, Defendants’ proposed restrictions would
25 completely undermine Plaintiffs’ ability to use the class list to gather evidence and adequately
26

PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR

PROTECTIVE ORDER RE CLASS LIST – 11

(No. 2:17-cv-00094-RAJ)

138851031.2

App. 470

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:81-77-1c1v-7010,00944/2-R3A/2J018D,oIcDu:m1e0n8t41727723,FDilketdE0n3tr/y0:71/1-28, PPaaggee41754 of 15718

1 represent their clients. It would also cause significant practical obstacles that would impede

2 Plaintiffs’ counsel from accessing the list. For instance, limiting access only to counsel of record

3 may exclude the many other attorneys and staff members (for instance, paralegals and discovery

4 attorneys at Perkins Coie) from accessing the list. And requiring encrypted point-to-point

5 communication would severely limit Plaintiffs’ counsel’s ability to communicate about the list.

6 Defendants have not explained why such restrictions are necessary (e.g., why Plaintiffs’ current

7 e-mail systems are insufficient or why legal staff members could not access the list). Worse,

8 Defendants’ proposed restrictions would contravene the very reasons this Court ordered the list

9 produced in the first place.

10

Alternatively, if the Court is inclined to add additional protections to the class list,

11 Plaintiffs’ proposed compromise strikes the right balance. Under Plaintiffs’ proposal, class

12 members’ identifiable information (names and A numbers) would be subject to Attorneys’ Eyes 13 Only protection,5 with the understanding that Plaintiffs could challenge that designation under

14 the process set forth in the Stipulated Protective Order. However, consistent with the Court’s

15 prior orders, Plaintiffs would be able to inform individual persons whether they are on the list,

16 and thus are potential class members. But neither Named Plaintiffs nor unnamed class members

17 would have access to the list itself or information about other persons on the list. This practical

18 compromise gives Defendants the protections they need, while allowing Plaintiffs to use the

19 class list in a manner that is consistent with the underlying reasons for why Plaintiffs requested it 20 in the first place.6

21

22

5 Consistent with the general understanding of Attorneys’ Eyes Only restrictions, this would not be limited

to counsel of record, but would include legal and support staff, such as paralegals, legal secretaries, and others

23 working under the direction and supervision of the attorneys, but would not include Named Plaintiffs or unnamed

class members.

24
6 Defendants also indicate that the class list they plan to produce “is based on who was a class member on

25 December 1, 2017.” Dkt. 126-1, ¶ 17 n.3. As Plaintiffs previously noted, given Defendants’ duty under Fed. R.

Civ. P. 26(e)(1)(A) to supplement discovery responses “in a timely manner,” Plaintiffs request that Defendants

26 produce quarterly updates to the list. See Dkt. 95 at 3.

PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR

PROTECTIVE ORDER RE CLASS LIST – 12

(No. 2:17-cv-00094-RAJ)

138851031.2

App. 471

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:81-77-1c1v-7010,00944/2-R3A/2J018D,oIcDu:m1e0n8t41727723,FDilketdE0n3tr/y0:71/1-28, PPaaggee41765 of 15718

1

By:

s/Jennifer Pasquarella (admitted pro hac vice) s/ Harry H. Schneider, Jr.

2 s/Sameer Ahmed (admitted pro hac vice)

Harry H. Schneider, Jr. #9404

ACLU Foundation of Southern California s/ Nicholas P. Gellert

3 1313 W. 8th Street

Nicholas P. Gellert #18041

Los Angeles, CA 90017 4 Telephone: (213) 977-5236

s/ David A. Perez David A. Perez #43959

Facsimile: (213) 997-5297 5 jpasquarella@aclusocal.org

s/ Laura K. Hennessey Laura K. Hennessey #47447

sahmed@aclusocal.org 6

Perkins Coie LLP 1201 Third Avenue, Suite 4900

7 s/Matt Adams

Seattle, WA 98101-3099 Telephone: 206.359.8000

s/Glenda M. Aldana Madrid 8 Matt Adams #28287

Facsimile: 206.359.9000 Email: HSchneider@perkinscoie.com

Glenda M. Aldana Madrid #46987 9 Northwest Immigrant Rights Project

NGellert@perkinscoie.com KReddy@perkinscoie.com

615 Second Ave., Ste. 400 10 Seattle, WA 98122

DPerez@perkinscoie.com LHennessey@perkinscoie.com

Telephone: (206) 957-8611 11 Facsimile: (206) 587-4025

matt@nwirp.org 12 glenda@nwirp.org

13 s/Stacy Tolchin (admitted pro hac vice) Law Offices of Stacy Tolchin
14 634 S. Spring St. Suite 500A Los Angeles, CA 90014
15 Telephone: (213) 622-7450 Facsimile: (213) 622-7233
16 Stacy@tolchinimmigration.com
17
18

s/Trina Realmuto (admitted pro hac vice) s/Kristin Macleod-Ball (admitted pro hac vice) Trina Realmuto Kristin Macleod-Ball American Immigration Council 100 Summer St., 23rd Fl. Boston, MA 02110 Tel: (857) 305-3600 Email: trealmuto@immcouncil.org Email: kmacleod-ball@immcouncil.org

s/Hugh Handeyside 19 Hugh Handeyside #39792

s/Emily Chiang Emily Chiang #50517

s/Lee Gelernt (admitted pro hac vice) 20 s/Hina Shamsi (admitted pro hac vice)

ACLU of Washington Foundation 901 Fifth Avenue, Suite 630

American Civil Liberties Union Foundation Seattle, WA 98164

21 125 Broad Street

Telephone: (206) 624-2184

New York, NY 10004 22 Telephone: (212) 549-2616

Echiang@aclu-wa.org

Facsimile: (212) 549-2654 23 lgelernt@aclu.org

hhandeyside@aclu.org 24 hshamsi@aclu.org

25 Attorneys for Plaintiffs

26

PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR

PROTECTIVE ORDER RE CLASS LIST – 13

(No. 2:17-cv-00094-RAJ)

138851031.2

App. 472

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case:21:81-77-1c1v-7010,00944/2-R3A/2J018D,oIcDu:m1e0n8t41727723,FDilketdE0n3tr/y0:71/1-28, PPaaggee41776 of 15718

1

CERTIFICATE OF SERVICE

2 The undersigned certifies that on the dated indicated below, I caused service of the

3 foregoing PLAINTIFFS’ OPPOSITION TO GOV’T MOTION FOR PROTECTIVE ORDER

4 RE CLASS LIST via the CM/ECF system that will automatically send notice of such filing to all

5 counsel of record herein.

6 DATED this 7th day of March, 2018, at Seattle, Washington.

7

s/ David A. Perez

8

David A. Perez, WSBA No. 43959

9

Attorneys for Plaintiffs

Perkins Coie LLP

10

1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099

11

Telephone: 206.359.8000

12

Facsimile: 206.359.9000 Email: DPerez@perkinscoie.com

13

14

15

16

17

18

19

20

21

22

23

24

25

26

CERTIFICATE OF SERVICE (No. 2:17-cv-00094-RAJ) – 14

138851031.2

App. 473

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7174283, FDikletEdn0t4ry/1: 1/-128, PaPgaege4717ooff15118

1

HONORABLE RICHARD A. JONES

2

3

4

5

6

7

8

9

10

11

12

13 UNITED STATES DISTRICT COURT

14

WESTERN DISTRICT OF WASHINGTON

15

AT SEATTLE

16

ABDIQAFAR WAGAFE, et al., on

17

behalf of themselves and others

similarly situated,

18

CASE NO. C17-94 RAJ ORDER

19

Plaintiffs,

20

v.

21

DONALD TRUMP, President of the United States, et al.,

22 Defendants.
23

24 This matter comes before the Court on Plaintiffs’ Motions to Compel (Dkt. ##
25 109, 111) and on Defendants’ Motion for Protective Order (Dkt. # 126). For the
26 following reasons, the Court grants in part and denies in part the motions.
27

ORDER- 1

App. 474

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7174283, FDikletEdn0t4ry/1: 1/-128, PaPgaege4728ooff15118

1

I. BACKGROUND

2

On June 21, 2017, the Court granted Plaintiffs’ motion to certify two classes: a

3 Naturalization Class and an Adjustment Class. Dkt. # 69. The parties have since been

4 engaged in discovery. The parties have attempted to resolve their discovery disputes

5 without court intervention but have reached an impasse. Plaintiffs now move the Court

6 to compel the Government to produce certain documents. In addition, the Government

7 requests that certain information be subject to a limited and more robust protective order.

8

II. LEGAL STANDARD

9

The Court has broad discretion to control discovery. Hallett v. Morgan, 296 F.3d

10 732, 751 (9th Cir. 2002); see also Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828,

11 833 (9th Cir. 2011), In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). That

12 discretion is guided by several principles. Most importantly, the scope of discovery is

13 broad. A party must respond to any discovery request that is not privileged and that is

14 “relevant to any party’s claim or defense and proportional to the needs of the case,

15 considering the importance of the issues at stake in the action, the amount in controversy,

16 the parties’ relative access to relevant information, the parties’ resources, the importance

17 of the discovery in resolving the issues, and whether the burden or expense of the

18 proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).

19

If a party refuses to respond to discovery, the requesting party “may move for an

20 order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). “The party who

21 resists discovery has the burden to show that discovery should not be allowed, and has

22 the burden of clarifying, explaining, and supporting its objections.” Cable & Computer

23 Tech., Inc. v. Lockheed Saunders, Inc., 175 F.R.D. 646, 650 (C.D. Cal. 1997).

24

III. DISCUSSION

25

A. Law Enforcement Privilege

26

The Government has claimed that the law enforcement privilege protects its

27 documents for quite some time. See, e.g., Dkt. ## 94 at 7-8, 94-5 at ¶ 7. The Court

ORDER- 2

App. 475

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7174283, FDikletEdn0t4ry/1: 1/-128, PaPgaege4739ooff15118

1 addressed the issue and required the Government to produce privilege logs if it wished to

2 withhold documents based upon the privilege. The Government created privilege logs

3 and claimed the law enforcement privilege. See, e.g., Dkt. # 110. The Government now

4 argues that it need not satisfy the requirements of this specific privilege unless it

5 “formally invoke[s]” the same. Dkt. # 119 at 8. This argument—that the Government

6 may somehow claim the privilege without actually claiming it—defies logic. The

7 Government’s actions and discovery tactics—including, for example, unjustified delays

8 and the questionable timing of affidavits—thus far have been nothing less than

9 obstructionist; such behavior is inappropriate and will not be tolerated.

10

To claim this privilege, the Government must satisfy three requirements: (1) there

11 must be a formal claim of privilege by the head of the department having control over the

12 requested information; (2) assertion of the privilege must be based on actual personal

13 consideration by that official; and (3) the information for which the privilege is claimed

14 must be specified, with an explanation why it properly falls within the scope of the

15 privilege. In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). This privilege is

16 qualified: “[t]he public interest in nondisclosure must be balanced against the need of a

17 particular litigant for access to the privileged information.” Id. at 272.

18

The Government did not properly claim this privilege because it refused to abide

19 by the first and second prongs; that is, a department head did not claim the privilege and

20 therefore did not assert such privilege based on actual personal consideration. This is

21 notable considering the Government cited the privilege at least as early as October 2017

22 and included a declaration from the agency head, Mr. Emrich, though not in support of

23 the privilege. Dkt. ## 94, 94-8. The Government now offers an affidavit of this same

24 agency head—more than four months later—to invoke the law enforcement privilege.

25 See Dkt. # 119-2. Tactics like this do nothing more than delay and frustrate the

26 fundamental concept of discovery.

27

ORDER- 3

App. 476

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7174283, FDikletEdn0t4ry/1: 1/-128, PaPgaege4840ooff15118

1

In his new affidavit, Mr. Emrich describes categories of withheld information and

2 the law enforcement interest in keeping the information withheld. Id. The compelling

3 portions of the affidavit relate to any documents “for applicants whom adjudicators have

4 determined pose a national security or public risk,” and the processes and checks utilized

5 to assess such applicants and related risks. See, e.g., id. at ¶ 21. Mr. Emrich states that

6 disclosure of this information “could provide aliens with a roadmap into the techniques

7 USCIS uses to uncover information that an individual may wish to hide, and the

8 techniques used to elicit information.” Id. But this type of information—the specific

9 process in which USCIS discovers a national security risk and the subsequent

10 investigation—is distinguishable from documents that “relate primarily to immigration

11 benefits processing, not law enforcement in the traditional sense[.]” Am. Civil Liberties

12 Union of S. California v. United States Citizenship & Immigration Servs., 133 F. Supp.

13 3d 234, 245 (D.D.C. 2015).

14

Because this is an important distinction, and because the Court must view

15 USCIS’s withholding with more skepticism than it might with a different agency, see id.,

16 the Court requires the Government’s privilege log to reflect such precise distinctions.

17 This is to ensure that the Government’s blanket affidavit is not being used in an unbridled

18 sense; the Government must specifically identify the documents that fall within this

19 privilege. The Government’s privilege log is insufficient in this regard. For example,

20 most if not all of the Government’s law enforcement privilege descriptions relate only to

21 “procedures on the adjudication of an immigrant benefit application” as they pertain to

22 the “applicant’s eligibility for the immigration benefit.” See, e.g., Dkt. # 11- at 11. There

23 is no law enforcement concern here; the Government’s vague concern is that an applicant

24 may learn how eligibility was decided and this may somehow “risk circumvention or

25 evasion of the law.” Id. This description—repeated throughout the log—relates

26 primarily to immigration benefits processing and not to Mr. Emrich’s contention that the

27 individual document is related to law enforcement or national security concerns. Though

ORDER- 4

App. 477

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7174283, FDikletEdn0t4ry/1: 1/-128, PaPgaege4851ooff15118

1 the Court accepts Mr. Emrich’s affidavit to claim the privilege, generally1, the Court

2 requires the Government to use the privilege deliberately and will expect the Government

3 to be exacting with which documents fall within this privilege, stating its reasons for

4 withholding clearly in the privilege logs. Am. Civil Liberties Union of S. California, 133

5 F. Supp. 3d at 243–44 (“There is no explanation of how the information, if released,

6 could risk circumvention of the law, no explanation of what laws would purportedly be

7 circumvented, and little detail regarding what law enforcement purpose is involved (other

8 than vague references to ‘national security concerns’). This is not enough to justify

9 withholding records . . . .”).

10

The Court will allow the Government to revise its privilege log. Based on its

11 review, the Court is hesitant to conclude that all of the currently claimed law enforcement

12 privileges are accurate. The Government has fourteen (14) days from the date of this

13 Order to revise its log and reproduce to Plaintiffs. The parties may file supplemental

14 briefing at that time to address the privilege’s balancing test for any documents that the

15 Government continues to withhold based upon the law enforcement privilege. The

16 Government must produce any documents over which it declines to claim the law

17 enforcement privilege.

18

The deadlines vacated pursuant to the parties’ stipulation, Dkt. # 136, remain

19 vacated pending the Government’s revised privilege log and resolution of the remaining

20 discovery issues addressed in this Order. The Government is warned that any further

21

22

23

1 The Court is perplexed why this affidavit or specific claim of privilege was not asserted

24

months ago, thereby avoiding much of the delays that have occurred. Tactics like this only fuel the notion that the Government’s intention is to purposely delay the discovery process in this

25 lawsuit. Nonetheless, the Court finds Mr. Emrich’s affidavit suitable for the issue at hand. This does not alleviate the Government of its responsibility to provide additional affidavits from

26 heads of agencies for future productions in which the Government wishes to claim the law

enforcement privilege. This affidavit may not be sufficient to cover all discovery productions 27 during the course of litigation.

ORDER- 5

App. 478

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7174283, FDikletEdn0t4ry/1: 1/-128, PaPgaege4862ooff15118

1 obstructionist behavior with regard to discovery production will not be met with such

2 leniency.

3

B. Production of Documents Responsive to RFPs 40, 41, and 44

4

Plaintiffs’ Requests for Production (“RFP”) Numbers 40, 41, and 44 are as

5 follows:

6

REQUEST FOR PRODUCTION NO. 40: All Documents

7

referring or relating to any interpretation or implementation of

8

the First EO or Second EO that would affect in any way the

9

adjudication of immigration benefits petitions, applications, or

10

requests of those individuals who are part of the Naturalization

11

Class, the Adjustment of Status Class, or the Muslim Ban

12

Class, including, but not limited to, all documents referring or

13

relating to the Extreme Vetting Initiative by the U.S.

14

Immigration and Customs Enforcement agency.

15

16

REQUEST FOR PRODUCTION NO. 41: All Documents

17

referring or relating to “the suspension of immigration

18

petitions, applications, or requests involving Plaintiff Wagafe,

19

Plaintiff Ostadhassan, Plaintiff Bengezi, and members of the

20

Muslim Ban Class,” pursuant to the First or Second Eos, as

21

described in the First and Second Claims for Relief outline in

22

Plaintiffs’ Second Amended Complaint.

23

24

REQUEST FOR PRODUCTION NO. 44: All Documents

25

referring or relating to any screening, vetting, or adjudication

26

program, policy, or procedure connection to Section 4 of the

27

First EO or Sections 4 or 5 of the Second EO, including, but

ORDER- 6

App. 479

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7174283, FDikletEdn0t4ry/1: 1/-128, PaPgaege4873ooff15118

1

not limited to, all documents referring or relating to the

2

Extreme Vetting Initiative by the U.S. Immigration and

3

Customs Enforcement agency. This Request is limited to those

4

programs that apply or would apply to, or would affect in any

5

way the immigration benefit petitions, applications, or requests

6

of those individuals who are part of the Naturalization Class,

7

the Adjustment of Status Class, or the Muslim Ban Class.

8 Dkt. # 112 at 22-24, 25-26.

9

The parties disagree about the continued relevancy of the Muslim Ban Class (also

10 referred to as the Six Countries Class) and the propriety of producing records from ICE.

11 Plaintiffs referenced the Muslim Ban Class in their Second Amended Complaint. Dkt. #

12 47 at ¶ 237. But Plaintiffs did not seek certification of this class in their Amended

13 Motion for Class Certification “because, after the filing of the First Amended Complaint,

14 the Acting Director of USCIS issued a memorandum indicating that Section 3(c) of the

15 First EO would no longer operate to stop the processing of immigration benefits for those

16 already in the United States.” Dkt. # 49 at 9, n. 1. Plaintiffs reserved the “right to seek

17 certification of the additional class if circumstances change again.” Id.

18

Local Rule 23(i)(3) affords parties 180 days after filing a complaint to move for

19 class certification. Local Rules W.D. Wash. LCR 23(i)(3). “This period may be

20 extended on motion for good cause.” Id. Any such motion “should, whenever possible,

21 be filed sufficiently in advance of the deadline to allow the court to rule on the motion

22 prior to the deadline.” LCR 7(j). If a determination as to class certification is postponed,

23 “a date will be fixed by the court for renewal of the motion.” LCR 23(i)(3).

24

Plaintiffs have not pursued certification of the Muslim Ban Class. They claim that

25 RFP Nos. 40, 41, and 44 are pre-certification discovery requests, yet those requests were

26 propounded after the 180-day deadline had passed. Dkt. # 112 at ¶ 2 (Plaintiffs served

27 the RFPs in November 2017; the deadline to seek class certification on the Muslim Ban

ORDER- 7

App. 480

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7174283, FDikletEdn0t4ry/1: 1/-128, PaPgaege4884ooff15118

1 Class was in October 2017). Plaintiffs did not seek an extension of any deadlines with

2 regard to pre-certification discovery or certifying the Muslim Ban Class. And, they fail

3 to offer any compelling reasons for failing to conduct such discovery or file such motions

4 within the 180-day window. Moreover, Plaintiffs’ articulated reasons for not seeking

5 certification of the Muslim Ban Class related to whether certain portions of the First and

6 Second EOs would be implemented. Plaintiffs do not argue that circumstances have

7 changed to warrant such a request to now certify the Muslim Ban Class. Nor do

8 Plaintiffs argue that RFP Nos. 40, 41, or 44 seek to discover evidence of changing

9 circumstances such that this discovery would impact the decision to request class

10 certification. In fact, at the time of this Order, it is unclear whether Plaintiffs had even

11 contemplated filing a motion to certify the Muslim Ban Class. To follow Plaintiffs’

12 approach would relegate class certification to a moving target subject only to Plaintiffs’

13 control and completely ignore the established Local Rule of this Court.

14

Plaintiffs did not timely move to certify the Muslim Ban Class. However, this

15 does not affect their ability to pursue discovery as to the representative plaintiffs.

16 Whether the named plaintiffs’ claims are moot has not been briefed before this Court, and

17 the Court will not entertain a motion to dismiss embedded in an opposition to a motion to

18 compel.

19

Defendants object to RFP Nos. 40, 41, and 44 on account of their allegedly broad

20 context and target of ICE records. Dkt. # 120 at 11-12. The Court disagrees that the

21 RFPs are too broad. Indeed, the RFPs are targeted at certain programs that may

22 encompass a successor program to CARRP. The Court finds that the information

23 requested in RFP Nos. 40, 41, and 44 is relevant and within the scope of litigation at this

24 stage in the proceedings, albeit not with regard to the Muslim Ban Class.2

25

26

2 The Court will not tolerate the Government using this Order to withhold swaths of

information that is discoverable. The Court notes that information relevant to the Muslim Ban

27 Class is most likely relevant to the two certified classes, as well as the named plaintiffs who

ORDER- 8

App. 481

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1

Defendants also object to these RFPs because they claim that searching for

2 documents at ICE “is not proportional to the needs of this case,” especially in light of

3 ICE’s non-party status. Id. at 13. But the RFPs do not ask Defendants to search for

4 records “at ICE.” See Dkt. # 112 at 21, 25-26; see also Dkt. # 122 at 9 (stating that

5 Plaintiffs are inquiring into documents that are in the possession, custody, or control of

6 DHS). Plaintiffs are seeking documents within Defendants’ control that reference certain

7 programs that are promulgated or maintained by ICE. Any relevant documents within

8 Defendants’ possession, custody, and control must be produced.

9

C. Protective Order

10

The Government argues that a more robust protective order must be in place

11 before it will produce the class list to Plaintiffs. Dkt. # 126. In support of its argument,

12 the Government contends that disclosure “risks prejudice to national security and

13 intelligence interests.” Id. at 3. But the risks cited by the Government are vague and

14 speculative—there is no evidence that any individuals on the class list are or were

15 subjects of investigations or are, generally, “bad actors.” Id. Furthermore, any sensitive

16 information on the class list is subject to the existing protective order. To be sure, the

17 Government creates scenarios in which Plaintiffs may violate the spirit of the protective

18 order. Id. at 6. The Court warns Plaintiffs that should they attempt to purposely and

19 improperly disclose information subject to the protective order, then the Court may issue

20 sanctions, which may include dismissal of this matter.

21

The Court does not find that the Government has supported its argument that the

22 class list, generally, must be subject to an “attorney eyes only” provision. However, the

23 Court recognizes that potential national security risks may exist as to specific individuals;

24 the burden is on the Government to make such case-by-case determinations. Any

25

26 would have represented the Muslim Ban Class. Plaintiffs should not be forced to file yet another
27 motion to compel in the event that the Government purposely withholds such information.

ORDER- 9

App. 482

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1 determinations must be made with sufficient detail and specificity. Such determinations

2 and the individuals to which they apply must be protected by the “attorney eyes only”

3 protections described by the Government in its brief. Dkt. # 126. Any such

4 determinations must be produced to Plaintiffs’ counsel—with the understanding that this

5 information is considered “attorney eyes only”—within fourteen (14) days from the date

6 of this Order. The remaining portion of the class list must be produced at the same time,

7 subject to the existing protective order, Dkt. # 86.

8

D. Status Reports (Dkt. ## 124, 125, 130, 132)

9

The Court is in receipt of the parties’ status reports. Dkt. ## 124, 125, 130, 132.

10 The Court is concerned with the Government’s behavior in this matter. Based on the

11 record before it, the Court finds reason to believe that the Government is purposely

12 obstructing and hindering the discovery process in this lawsuit.

13

There is already a pending motion for sanctions in this matter regarding the

14 Government’s discovery behavior. Dkt. # 137. As previously noted, the Government

15 must cease its delay tactics in the discovery practice. These tactics do nothing more than

16 unduly delay the production of documents it is obligated to produce. Unless the

17 Government has a credible basis to assert a claim of privilege, it should fully abide by the

18 rules of timely disclosure.

19

The Court has repeatedly explained to the Government that orders from the federal

20 bench are mandatory, not voluntary. See, e.g., Dkt. ## 115, 121 (hearing and hearing

21 transcript regarding discovery disputes). The executive branch does not stand alone in

22 the federal system; the Government may not usurp the judicial branch and decide for

23 itself when or if it will produce documents. The Court has no patience for Defendants’

24 apparent disregard for the discovery process and for its attorneys’ inappropriate actions in

25

26

27

ORDER- 10

App. 483

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1 furthering and participating in such behavior.3 The Court hopes to proceed to the merits

2 in this matter rather than interminably remain in this morass of unnecessary delays and

3 discovery disputes.

4

IV. CONCLUSION

5

For the foregoing reasons, the Court grants in part and denies in part the motions.

6 Dkt. ## 109, 111, 126.

7

8

Dated this 11th day of April, 2018.

9

10 11

A

12

The Honorable Richard A. Jones

United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

3 Attorneys appearing in the Western District of Washington must be familiar with the

Washington Rules of Professional Conduct (“RPC”). Local Rules W.D. Wash. LCR 83.3(a)(2).

26 These include RPC 3.3 and 3.4, which aim to prevent “conduct that undermines the integrity of

the adjudicative process.” WA R RPC 3.3. Attorneys’ duty to advocate for their clients “is 27 qualified by the advocate’s duty of candor to the tribunal.” Id.

ORDER- 11

App. 484

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7175263, FDikletEdn0t4ry/2: 01/-128, PaPgaege4818ooff15218

1

The Honorable Richard A. Jones

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

11 ABDIQAFAR WAGAFE, et al.,

12

Plaintiffs,

13

v.

14 DONALD TRUMP, President of the United 15 States, et al.,

16

Defendants.

No. 2:17-cv-00094-RAJ
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW
NOTED FOR: April 20, 2018

17

18

19

20

21

22

23

24

25

26

27

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 1
(2:17-cv-00094-RAJ)

App. 485

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7175263, FDikletEdn0t4ry/2: 01/-128, PaPgaege4829ooff15218

1

Through Orders issued on October 19, 2017, ECF No. 98, November 28, 2017, ECF No.

2 102, and April 11, 2018, ECF No. 148, this Court has directed the Defendants to produce a list of

3 class members in this case, including their identifying information. Although this Court has

4 found to the contrary, the Defendants continue to believe that information identifying individuals

5 on the class list—individuals subject to a sensitive program designed to protect national

6 security—is protected under the law enforcement privilege. After the Court’s October 19, 2017,

7 and November 28, 2017 Orders, counsel for the Defendants attempted in good faith to find an

8 acceptable solution by which the government could protect its national security and law

9 enforcement interests while disclosing the class list to Plaintiffs’ attorneys. In its order dated

10 April 11, 2018, this Court rejected the government’s proposed “attorneys’ eyes only” solution,

11 requiring instead that the government to disclose to opposing counsel the government’s detailed

12 and specific case-by-case determinations of the need to restrict access to particular class

13 members’ identifying information. As explained further below, making such disclosures—which

14 Plaintiffs did not request in discovery—is in many ways more harmful that disclosing the class

15 list under the original protective order.

16

Given the serious concerns about the requirement to disclose privileged information vital

17 to national security and law enforcement, the United States has been authorized by the Solicitor

18 General to file a petition for a writ of mandamus in the United States Court of Appeals for the

19 Ninth Circuit requesting vacatur of this Court’s orders directing production of the class list. To

20 permit orderly review by the court of appeals, Defendants respectfully request that this Court

21 stay the requirement that Defendants produce the class list by April 25, 2018, pending

22 disposition of the mandamus petition by the Ninth Circuit. In the alternative, Defendants

23 respectfully request that the Court reconsider the portion of its April 11, 2018 Order rejecting

24 Defendants’ “attorneys’ eyes only” proposal. Defendants respectfully request a ruling on this

25 motion by 5 p.m., Pacific Daylight Time, on Monday, April 23, 2018. If the Court is unable to

26 rule by that time, Defendants plan to seek a stay in the court of appeals pursuant to Rule 8(a)(2)

27 of the Federal Rules of Appellate Procedure.

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 2
(2:17-cv-00094-RAJ)

App. 486

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7175263, FDikletEdn0t4ry/2: 01/-128, PaPgaege4930ooff15218

1

Seeking review of this Court’s orders in the court of appeals is not an option that the

2 government takes lightly, but because of the critical importance of this issue, in the absence of a

3 resolution that provides adequate protection to this information, the government has concluded

4 that this unusual step must be taken. Although the reasons for requesting the stay are grounded

5 largely in arguments already presented to the Court, we are attempting to present these concerns

6 with greater clarity and respectfully request that this Court consider this request and permit the

7 opportunity for expedited appellate review.

8

I. STANDARD FOR SEEKING A STAY

9

The court has ““inherent power to control the disposition of the causes on its docket [to]

10 promote economy of time and effort for itself, for counsel, and for [the] litigants” by staying this

11 matter pending appellate review. CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962); see also

12 Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); Filtrol Corp. v. Kelleher, 467 F.2d 242, 244

13 (9th Cir. 1972); Mediterranean Enters., Inc. v. Ssangyong Corp, 708 F.2d 1458, 1465 (9th Cir.

14 1983) (“A trial court may, with propriety, find it is efficient for its own docket and the fairest

15 course for the parties to enter a stay of an action before it, pending resolution of independent

16 proceedings which bear upon the case.” (citation omitted)).

17

District courts apply a four-factor test to determine whether to issue a stay of an order:

18 (1) the applicant’s likely success on the merits; (2) irreparable injury to the applicant absent a

19 stay; (3) substantial injury to the other parties; and (4) the public interest. Hilton v. Braunskill,

20 481 U.S. 770, 776 (1987); see Nken v. Holder, 556 U.S. 418, 433-34 (2009); Leiva-Perez v.

21 Holder, 640 F.3d 962, 970 (9th Cir. 2011) (Nken requires a showing of irreparable harm, but

22 applies a balancing test showing “that irreparable harm is probable and either: (a) a strong

23 likelihood of success on the merits and that the public interest does not weigh heavily against a

24 stay; or (b) a substantial case on the merits and that the balance of hardships tips sharply in the

25 petitioner’s favor”). All of those factors are satisfied here.

26 II. ANALYSIS

27

A. Defendants Have a Strong Likelihood of Success on the Merits.

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 3
(2:17-cv-00094-RAJ)

App. 487

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7175263, FDikletEdn0t4ry/2: 01/-128, PaPgaege4941ooff15218

1

The Court is familiar with Defendants’ arguments on the merits, which we will not

2 reprise in detail here. In short, as explained in numerous previous filings and declarations,

3 Defendants believe that the class list is protected by the law enforcement privilege because it

4 includes “information pertaining to law enforcement techniques and procedures, information that

5 would undermine the confidentiality of sources,” and information that would “otherwise ...

6 interfere with an investigation.” In re City of New York, 607 F.3d 923, 944 (2d Cir. 2010)

7 (internal quotation marks and brackets omitted); accord, e.g., In re U.S. Dep’t of Homeland

8 Security, 459 F.3d 565, 571 (5th Cir. 2006); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033

9 (9th Cir. 1990). Exhibit A, Declaration of Tatum King (hereafter “King Decl.”), at ¶¶ 16-18;

10 Exhibit B, Declaration of Tracy Renaud (hereafter “Renaud Decl.”), at ¶¶ 16-18.

11

B. Defendants Will Be Irreparably Harmed Absent a Stay.

12

Defendants would suffer irreparable harm in being required to disclose the identities (as

13 distinct from the demographic information that form the crux of this case) of individuals on the

14 class list. That harm would be both substantial and irreversible. “Secrecy is a one-way street:

15 Once information is published, it cannot be made secret again.” In re Copley Press, Inc., 518

16 F.3d 1022, 1025 (9th Cir. 2008). Review on appeal from a final judgment, even if favorable to

17 Defendants, could not un-ring the bell of disclosure. See In re Ford Motor Co., 110 F.3d 954,

18 962-63 (3rd Cir. 1997) (appealing privilege issues after final judgment is ineffective).

19

Plaintiffs have stated their desire to inform individuals who contact Plaintiffs’ counsel

20 whether they are part of the class, and affirmatively to contact other class members to seek out

21 additional information from them. ECF No. 91 at 4-5. Given the nature of this case as a

22 challenge to the CARRP policy, contact by Plaintiff’s counsel will necessarily tend to reveal to

23 that person that he or she is in fact subject to CARRP, even if Plaintiffs’ counsel does not

24 directly reveal that such member is subject to CARRP.

25

The government—and the public at-large—will be harmed irreparably if this sensitive

26 information is released, because it may lead dangerous individuals to attempt to evade the

27 immigration system to obtain benefits for which they are not eligible, and permit those

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 4
(2:17-cv-00094-RAJ)

App. 488

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7175263, FDikletEdn0t4ry/2: 01/-128, PaPgaege4952ooff15218

1 individuals to infer the existence of ongoing criminal, national security, or other law enforcement

2 or intelligence investigations, or that the government has information about activities about

3 which they were previously unaware the government had any knowledge. ECF No. 94-5, ¶¶ 16,

4 18; ECF No. 126-3, ¶ 5. This knowledge could then allow them to change their behavior, alert

5 co-conspirators or larger organizations of government interest in or awareness of their activities,

6 and take actions to conceal wrong-doing. Id. Thus, disclosure of this information harms not

7 only Defendants but also puts public safety at risk.

8

Making any of these disclosures would impair ongoing law enforcement activities.

9 James McCament, the Deputy Director of U.S. Citizenship and Immigration Services (“USCIS”)

10 explained that if an individual learns he or she is subject to CARRP, that could lead him or her to

11 infer the type of investigation that is under way (e.g., whether the individual is inadmissible on

12 national security grounds), and to alter his or her behavior or influence witnesses to make it more

13 difficult for USCIS to accurately determine whether those national security grounds bar or

14 adversely impact the benefit application. ECF No. 94-5, ¶ 18. Tatum King, Assistant Director

15 of U.S. Immigration and Customs Enforcement (“ICE”), Homeland Security Investigations,

16 overseeing Domestic Operations, echoed these concerns, explaining that individuals who are

17 prematurely notified that they are the subject of law enforcement interest may “alter their habits

18 and/or appearances, may alert their compatriots and co-conspirators, may go into hiding, may

19 destroy evidence, or may anticipate the activities of federal agents and thereby put the agents,

20 their investigations, and members of the public at risk.” ECF No. 126-3, ¶ 5. Furthermore, even

21 inadvertent disclosure could compromise law enforcement techniques and methods, and thereby

22 endanger national security. Id. ¶ 6. Matthew Emrich, the Associate Director of U.S. Citizenship

23 and Immigration Services and head of the Fraud Detection and National Security directorate

24 explained that individuals may be subject to CARRP as the result of derogatory information

25 received from the FBI name check or fingerprint check process or from other DHS databases.

26 ECF No. 126-1, ¶ 10. Mr. Emrich also explained that revealing that a person is subject to

27 CARRP could disrupt ongoing investigations of either the individual or a larger group of which

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 5
(2:17-cv-00094-RAJ)

App. 489

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7175263, FDikletEdn0t4ry/2: 01/-128, PaPgaege4963ooff15218

1 the individual is a member. Id. ¶ 28. Finally, David Eisenreich, Section Chief of the National

2 Name Check Section Program of the Federal Bureau of Investigation (“FBI”) similarly explained

3 that disclosure to individuals that they are subject to CARRP would allow them to infer that they

4 are subject to scrutiny by law enforcement beyond the specific immigration benefit application at

5 issue. ECF No. 126-2, ¶ 32. Mr. Eisenreich also explained that the FBI treats all name check

6 results—whether positive or negative—as privileged because it is necessary to do so to avoid

7 telegraphing whether any particular result was positive or negative, and that disclosures that

8 would enable a person to infer the existence of an investigation would impair ongoing FBI

9 investigations. Id. at ¶ 31; Exhibit A, Declaration of Tatum King (hereafter “King Decl.”), at ¶¶

10 16-18; Exhibit B, Declaration of Tracy Renaud (hereafter “Renaud Decl.”), at ¶¶ 16-18.

11

Although the Court stated “there is no evidence that any individuals on the class list are

12 or were subjects of investigations or are, generally, ‘bad actors,’” ECF No. 148 at 9, it is a

13 requirement of the class definition that the individual has a pending benefit application and is or

14 was subject to the CARRP policy. CARRP is a USCIS policy to investigate immigrant benefit

15 applicants whose cases raise national security concerns. ECF No. 94-5, ¶ 14. In order for

16 USCIS to consider an individual a national security concern, the individual must have an

17 articulable link to one of the national security inadmissibility or deportability grounds listed in

18 the Immigration and Nationality Act (“INA”). These grounds include, for example, membership

19 in a terrorist organization or espionage. 8 U.S.C. §§ 1182(a)(3)(A), (B), (F); 1227(a)(3)(A), (B).

20 ECF No. 94-5, ¶ 15. By virtue of the fact that these individuals were subject to a civil

21 immigration background investigation for a national security concern, they are members of the

22 class. See ECF No. 94-5, ¶¶ 14-15. Further, because USCIS engages in information-sharing and

23 gathers information from outside sources, including agencies engaged in criminal and/or

24 intelligence investigations, many of these individuals may also be the subject of a criminal

25 and/or intelligence law enforcement investigation, including terrorism or national security

26 investigations. ECF No. 94-5, ¶ 18; ECF No. 126-1, ¶ 28.

27

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 6
(2:17-cv-00094-RAJ)

App. 490

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7175263, FDikletEdn0t4ry/2: 01/-128, PaPgaege4974ooff15218

1

The Supreme Court and Ninth Circuit agree that “‘the Government’s interest in

2 combating terrorism is an urgent objective of the highest order.’” Washington v. Trump, 847

3 F.3d 1151, 1168 (9th Cir. 2017) (quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 28

4 (2010)). The Government has explained how the Court’s order to disclose the identities of class

5 members harms national security and endangers public safety through numerous affidavits from

6 officials at multiple agencies. ECF No. 94-5, ¶ 20; ECF No. 126-1, ¶¶ 20-30; ECN No. 126-2,

7 ¶¶ 31-32; ECN No. 126-3, ¶¶ 5-6. The Government—and the public—deserve an opportunity to

8 have those claims heard by the Ninth Circuit before the irreversible harm that would result from

9 disclosure.

10

C. Plaintiffs Will Not Be Prejudiced By a Stay.

11

The potential harm to Plaintiffs from a stay is minimal, if there is indeed any cognizable

12 potential harm at all. The deadlines for expert discovery and to amend the pleadings have been

13 vacated and have not been not reset. In addition, insofar as Plaintiffs seek the class list

14 information to assist them to make a discrimination claim, Defendants have provided Plaintiffs

15 with information on the age, country of citizenship, and country of birth for all class members,

16 and the ethnicity for any class member who submitted a Form N-400 through USCIS Electronic

17 Immigration System (ELIS), which collects that information. Further, other discovery in the

18 case continues and will not be affected by a stay concerning a single document. In any event, it

19 is self-evident that no complaint about the pace of discovery would outweigh the efficacy of

20 ongoing law enforcement investigations and the safety of federal law enforcement officers. See

21 ECF No. 126-2, ¶ 32; ECF No. 126-3, ¶ 5.

22

D. The Public Interest Favors a Stay

23

The public factor favors a stay for the same reasons that the government would be

24 harmed by disclosure. See Nken, 556 U.S. at 435. In addition, a stay would further “the orderly

25 course of justice” by facilitating the court of appeals to review of Defendants’ privilege claim

26 before damaging disclosure occurs. Washington, 2017 WL 2172020 at *2 (internal quotation

27 omitted). Among other things, the Ninth Circuit’s resolution of Defendant’s claim of law

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 7
(2:17-cv-00094-RAJ)

App. 491

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7175263, FDikletEdn0t4ry/2: 01/-128, PaPgaege4985ooff15218

1 enforcement privilege may provide additional guidance on the applicability of that privilege

2 beyond the particular document at issue and, indeed, may provide guidance on how

3 governmental privileges are to be invoked more generally. A stay is appropriate and beneficial

4 to the orderly course of justice under these circumstances. See id.

5

III. IN THE ALTERNATIVE, THE COURT SHOULD RECONSIDER THE

6

CONDITIONS IT IMPOSED ON DEFENDANTS’ USE OF “ATTORNEYS’

EYES ONLY DISCLOSURE, AND PERMIT DEFENDANTS TO

7

PRODUCE ALL THE CLASS IDENTITYING INFORMATION TO

8

PLAINTFFS’ COUNSEL SUBJECT TO THE RESTRICTIONS INDENTIFIED IN DEFENDANTS’ MOTION TO SUPPLEMENT THE

9

PROTECTIVE ORDER

10

In the alternative, Defendants respectfully seek reconsideration of the Court’s April 11,

11 2018 Order concerning the use of the “attorneys’ eyes only” protection. The Court erred in

12 analyzing the harms related to the Court’s requirement to provide information under the

13 attorneys’ eyes only protective order. This error justifies reconsideration and vacatur of the

14 relevant portions of the Order. Accordingly, reconsideration is appropriate under Local Rule

15 7(h)(1).

16

Adherence to the case-by-case determination portion of the Court’s order to gain the

17 benefits of releasing the information under an attorneys’ eyes only protective order is arguably

18 more damaging to national security than releasing the class list under the current stipulated

19 protective order. First, providing case-by-case, individualized information to Plaintiffs’ counsel

20 about the national security risks of specific individuals arguably provides far less protection to

21 national security interests than providing the names of the entire class list with no additional

22 information. Second, such determinations, which may involve classified information, are subject

23 to the law enforcement privilege, and, perhaps the state secrets privileges. The Government has

24 never had an opportunity to assert any privilege over this specific information, given that

25 Plaintiffs never propounded a discovery request for this information or otherwise requested this

26 information before the Court ordered the information to be provided. And, third, the

27 individualized determinations that the Court has ordered here are similar to providing “why”

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 8
(2:17-cv-00094-RAJ)

App. 492

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

CCaassee: 128:1-71-c1v7-10,0049/42-3R/A20J18D, oIDcu: m10e8n4t7175263, FDikletEdn0t4ry/2: 01/-128, PaPgaege4996ooff15218

1 information for the five named Plaintiffs. United States Citizenship and Immigration Services,

2 the Federal Bureau of Investigation, Immigration and Customs Enforcement, and the

3 Transportation Security Administration have previously filed declarations explaining that the

4 “why” information is privileged and the harms associated with the disclosure of the “why”

5 information. ECF Nos. 146-2, 146-3, 146-4, 146-5, 146-6, 146-7; King Decl., ¶¶ 14-19; Renaud

6 Decl., ¶¶ 8-18. Additionally, the Government has also filed a motion for the Court to review

7 other declarations ex parte. If the Government engaged in the case-by-case process that the

8 Court required to take advantage of the attorneys’ eyes only protective order, such review would 9 be contrary to the positions taken in those filings.1

10 IV. CONCLUSION

11

For the foregoing reasons, the Court should STAY its orders of October 19, 2017, ECF

12 No. 98, November 28, 2017, ECF No. 102, and April 11, 2018, ECF No. 148, to the extent they

13 requires disclosure of the class list.

14 Dated: April 20, 2018

Respectfully submitted,

15

CHAD A. READLER

16

Acting Assistant Attorney General

17

/s/ August Flentje

18

AUGUST FLENTJE Special Counsel

19

Civil Division

U.S. Department of Justice

20

950 Pennsylvania Ave.

21

Washington, DC 20530

Telephone: (202) 514-3309

22

E-mail: august.flentje@usdoj.gov

23

Counsel for Defendants

24

25 1 The government also notes its concern about the portion of the Court’s April 11, 2018 Order, that, after noting the
timing of the Ermich declaration, ECF No. 119-2, indicated that the government may be required to “provide
26 additional affidavits from heads of agencies for future productions in which the Government wishes to claim the law
enforcement privilege.” ECF No. 148, at 5 fn. 1. As the government explained in detail in a previous filing, see
27 ECF No. 119, the suggestion that Defendants must claim the law enforcement privilege through a formal declaration
by an agency head at the time documents are produced reflects a fundamental misunderstanding of privilege law.
28

DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 9
(2:17-cv-00094-RAJ)

App. 493

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

Case:21:81-77-1c1v-7010,00944/2-R3A/2J018D,oIcDu:m1e0n8t41757623,FDilketdE0n4tr/y2:01/1-28, PPaaggee41907 of 15218

1

CERTIFICATE OF CONFERENCE

2

I HEREBY CERTIFY that on April 20, 2018, I conferred with opposing counsel,

3 specifically Mr. Nicholas Gellert, and thoroughly discussed the substance of this motion and in

4 good faith attempted to reach an accord to eliminate the need for the motion. The parties were

5 unable to reach an accord.

6 7 Dated: April 20, 2018 8
9

/s/ August Flentje AUGUST FLENTJE Special Counsel U.S. Department of Justice

10

11

12

13

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15

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24

25

26

27

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 10
(2:17-cv-00094-RAJ)

App. 494

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

Case:21:81-77-1c1v-7010,00944/2-R3A/2J018D,oIcDu:m1e0n8t41757623,FDilketdE0n4tr/y2:01/1-28, PPaaggee41918 of 15218

1

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on April 20, 2018, I electronically filed the foregoing with the 2

Clerk of the Court using the CM/ECF system, which will send notification of such filing to the 3

following CM/ECF participants: 4

5

Harry H. Schneider, Jr., Esq.

Nicholas P. Gellert, Esq.

6

David A. Perez, Esq.

7

Laura Hennessey, Esq. Perkins Coie L.L.P.

8

1201 Third Ave., Ste. 4800

Seattle, WA 98101-3099

9

PH: 359-8000

10

FX: 359-9000

Email: HSchneider@perkinscoie.com

11

Email: NGellert@perkinscoie.com

Email: DPerez@perkinscoie.com

12

Email: LHennessey@perkinscoie.com

13 Matt Adams, Esq.

14

Glenda M. Aldana Madrid, Esq.

Northwest Immigrant Rights Project

15

615 Second Ave., Ste. 400

16

Seattle, WA 98104

PH: 957-8611

17

FX: 587-4025

E-mail: matt@nwirp.org

18

E-mail: glenda@nwirp.org

19 Emily Chiang, Esq.

20

ACLU of Washington Foundation

21

901 Fifth Avenue, Suite 630 Seattle, WA 98164

22

Telephone: (206) 624-2184

E-mail: Echiang@aclu-wa.org

23

24

Jennifer Pasquarella, Esq. Sameer Ahmed, Esq.

25

ACLU Foundation of Southern California

1313 W. 8th Street

26

Los Angeles, CA 90017

27

Telephone: (213) 977-5211 Facsimile: (213) 997-5297

28

DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 11
(2:17-cv-00094-RAJ)

App. 495

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

Case:21:81-77-1c1v-7010,00944/2-R3A/2J018D,oIcDu:m1e0n8t41757623,FDilketdE0n4tr/y2:01/1-28, PPaaggee41929 of 15218

1

E-mail: jpasquarella@aclusocal.org E-mail: sahmed@aclusocal.org

2

Stacy Tolchin, Esq.

3

Law Offices of Stacy Tolchin

4

634 S. Spring St. Suite 500A Los Angeles, CA 90014

5

Telephone: (213) 622-7450

Facsimile: (213) 622-7233

6

E-mail: Stacy@tolchinimmigration.com

7 Trina Realmuto, Esq.

8

Kristin Macleod-Ball, Esq.

American Immigration Council

9

100 Summer St., 23rd Fl.

10

Boston, MA 02110

Tel: (857) 305-3600

11

Email: trealmuto@immcouncil.org

Email: kmacleod-ball@immcouncil.org 12

13

Lee Gelernt, Esq.

Hugh Handeyside, Esq.

14

Hina Shamsi, Esq.

American Civil Liberties Union Foundation

15

125 Broad Street

16

New York, NY 10004

Telephone: (212) 549-2616

17

Facsimile: (212) 549-2654

18

E-mail: lgelernt@aclu.org E-mail: hhandeyside@aclu.org

19

E-mail: hshamsi@aclu.org

20

/s/ August Flentje

21

AUGUST FLENTJE Special Counsel

22

U.S. Department of Justice

23

24

25

26

27

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 12
(2:17-cv-00094-RAJ)

App. 496

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-1, DFktiElendtr0y4: /12-02/,1P8agPea5g0e01ooff5918
Exhibit A
App. 497

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-1, DFktiElendtr0y4: /12-02/,1P8agPea5g0e12ooff5918 App. 498

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-1, DFktiElendtr0y4: /12-02/,1P8agPea5g0e23ooff5918 App. 499

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-1, DFktiElendtr0y4: /12-02/,1P8agPea5g0e34ooff5918 App. 500

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-1, DFktiElendtr0y4: /12-02/,1P8agPea5g0e45ooff5918 App. 501

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-1, DFktiElendtr0y4: /12-02/,1P8agPea5g0e56ooff5918 App. 502

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-1, DFktiElendtr0y4: /12-02/,1P8agPea5g0e67ooff5918 App. 503

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-1, DFktiElendtr0y4: /12-02/,1P8agPea5g0e78ooff5918 App. 504

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-1, DFktiElendtr0y4: /12-02/,1P8agPea5g0e89ooff5918 App. 505

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-2, DFktiElendtr0y4: /12-02/,1P8agPea5g0e91ooff5718
Exhibit B
App. 506

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-2, DFktiElendtr0y4: /12-02/,1P8agPea5g1e02ooff5718 App. 507

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-2, DFktiElendtr0y4: /12-02/,1P8agPea5g1e13ooff5718 App. 508

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-2, DFktiElendtr0y4: /12-02/,1P8agPea5g1e24ooff5718 App. 509

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-2, DFktiElendtr0y4: /12-02/,1P8agPea5g1e35ooff5718 App. 510

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-2, DFktiElendtr0y4: /12-02/,1P8agPea5g1e46ooff5718 App. 511

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-2, DFktiElendtr0y4: /12-02/,1P8agPea5g1e57ooff5718 App. 512

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-3, DFktiElendtr0y4: /12-02/,1P8agPea5g1e61ooff5318

1

The Honorable Richard A. Jones

2

3 4 5

6 7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

11 ABDIQAFAR WAGAFE, et al.,

12

Plaintiffs,

13

v.

14 DONALD TRUMP, President of the United

15 States, et al.,

No. 2:17-cv-00094-RAJ
[PROPOSED] ORDER GRANTING DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW

16

Defendants.

17

18

Having considered Defendants’ Emergency Motion for Stay Pending Appellate Review,

19 finding good cause for the granting the motion, and acknowledging the requirements of Federal

20 Rule of Appellate Procedure 8 to first seek a stay in the district court where practicable, it is

21 hereby:

22

ORDERED that Defendants’ Motion is GRANTED. Insofar as the Court’s Order of

23 April 11, 2018 (ECF No. 148) ordered Defendants to provide the class list to Plaintiffs by April

24 25, 2018, that portion of said order is STAYED pending further order of the Court.

25

26

27

28 [PROPOSED] ORDER GRANTING
DEFENDANTS’ EMERGENCY MOTION FOR STAY
PENDING APPELLATE REVIEW - 1
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Avenue, N W Washington, D C 20530 (202) 514-3309

App. 513

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-3, DFktiElendtr0y4: /12-02/,1P8agPea5g1e72ooff5318

1 IT IS SO ORDERED. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 2 (2:17-cv-00094-RAJ)

___________________________________ HON. RICHARD A. JONES United States District Judge

App. 514

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Avenue, N W Washington, D C 20530 (202) 514-3309

CCaassee: 21:81-77-1c1v7-010, 00944/2-R3/A2J018D,oIDcu:m10e8n4t 7175263-3, DFktiElendtr0y4: /12-02/,1P8agPea5g1e83ooff5318

1 Presented by:

2 CHAD A. READLER Acting Assistant Attorney General
3

4

AUGUST FLENTJE Special Counsel

5 Civil Division

U.S. Department of Justice 6 950 Pennsylvania Avenue, N.W.

7 Washington, D.C. 20530 Tel: (202) 514-3309

8 Email: august.flentje@usdoj.gov

9 Counsel for Defendants
10 Dated: April 20, 2018
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 [PROPOSED] ORDER GRANTING
DEFENDANTS’ EMERGENCY MOTION FOR STAY
PENDING APPELLATE REVIEW - 3
(2:17-cv-00094-RAJ)

App. 515

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Avenue, N W Washington, D C 20530 (202) 514-3309

Case: 18-71171, 04/23/2018, ID: 10847723, DktEntry: 1-3, Page 1 of 1

Molly C. Dwyer Clerk of Court

Office of the Clerk United States Court of Appeals for the Ninth Circuit
Post Office Box 193939 San Francisco, California 94119-3939
415-355-8000
April 23, 2018

No.: D.C. No.: Short Title:

18-71171 2:17-cv-00094-RAJ Donald Trump, et al v. USDC-WAWSE

Dear Petitioners/Counsel
A petition for writ of mandamus and/or prohibition has been received in the Clerk's Office of the United States Court of Appeals for the Ninth Circuit. The U.S. Court of Appeals docket number shown above has been assigned to this case. Always indicate this docket number when corresponding with this office about your case.
If the U.S. Court of Appeals docket fee has not yet been paid, please make immediate arrangements to do so. If you wish to apply for in forma pauperis status, you must file a motion for permission to proceed in forma pauperis with this court.
Pursuant to FRAP Rule 21(b), no answer to a petition for writ of mandamus and/or prohibition may be filed unless ordered by the Court. If such an order is issued, the answer shall be filed by the respondents within the time fixed by the Court.
Pursuant to Circuit Rule 21-2, an application for writ of mandamus and/or prohibition shall not bear the name of the district court judge concerned. Rather, the appropriate district court shall be named as respondent.

 
 Case 2:17-cv-00094-RAJ Document 156 Filed 04/20/18 Page 1 of 12

1

The Honorable Richard A. Jones

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

11 ABDIQAFAR WAGAFE, et al.,

12

Plaintiffs,

13

v.

14 DONALD TRUMP, President of the United 15 States, et al.,

16

Defendants.

No. 2:17-cv-00094-RAJ
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW
NOTED FOR: April 20, 2018

17

18

19

20

21

22

23

24

25

26

27

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 1
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

Case 2:17-cv-00094-RAJ Document 156 Filed 04/20/18 Page 2 of 12

1

Through Orders issued on October 19, 2017, ECF No. 98, November 28, 2017, ECF No.

2 102, and April 11, 2018, ECF No. 148, this Court has directed the Defendants to produce a list of

3 class members in this case, including their identifying information. Although this Court has

4 found to the contrary, the Defendants continue to believe that information identifying individuals

5 on the class list—individuals subject to a sensitive program designed to protect national

6 security—is protected under the law enforcement privilege. After the Court’s October 19, 2017,

7 and November 28, 2017 Orders, counsel for the Defendants attempted in good faith to find an

8 acceptable solution by which the government could protect its national security and law

9 enforcement interests while disclosing the class list to Plaintiffs’ attorneys. In its order dated

10 April 11, 2018, this Court rejected the government’s proposed “attorneys’ eyes only” solution,

11 requiring instead that the government to disclose to opposing counsel the government’s detailed

12 and specific case-by-case determinations of the need to restrict access to particular class

13 members’ identifying information. As explained further below, making such disclosures—which

14 Plaintiffs did not request in discovery—is in many ways more harmful that disclosing the class

15 list under the original protective order.

16

Given the serious concerns about the requirement to disclose privileged information vital

17 to national security and law enforcement, the United States has been authorized by the Solicitor

18 General to file a petition for a writ of mandamus in the United States Court of Appeals for the

19 Ninth Circuit requesting vacatur of this Court’s orders directing production of the class list. To

20 permit orderly review by the court of appeals, Defendants respectfully request that this Court

21 stay the requirement that Defendants produce the class list by April 25, 2018, pending

22 disposition of the mandamus petition by the Ninth Circuit. In the alternative, Defendants

23 respectfully request that the Court reconsider the portion of its April 11, 2018 Order rejecting

24 Defendants’ “attorneys’ eyes only” proposal. Defendants respectfully request a ruling on this

25 motion by 5 p.m., Pacific Daylight Time, on Monday, April 23, 2018. If the Court is unable to

26 rule by that time, Defendants plan to seek a stay in the court of appeals pursuant to Rule 8(a)(2)

27 of the Federal Rules of Appellate Procedure.

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 2
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

Case 2:17-cv-00094-RAJ Document 156 Filed 04/20/18 Page 3 of 12

1

Seeking review of this Court’s orders in the court of appeals is not an option that the

2 government takes lightly, but because of the critical importance of this issue, in the absence of a

3 resolution that provides adequate protection to this information, the government has concluded

4 that this unusual step must be taken. Although the reasons for requesting the stay are grounded

5 largely in arguments already presented to the Court, we are attempting to present these concerns

6 with greater clarity and respectfully request that this Court consider this request and permit the

7 opportunity for expedited appellate review.

8

I. STANDARD FOR SEEKING A STAY

9

The court has ““inherent power to control the disposition of the causes on its docket [to]

10 promote economy of time and effort for itself, for counsel, and for [the] litigants” by staying this

11 matter pending appellate review. CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962); see also

12 Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); Filtrol Corp. v. Kelleher, 467 F.2d 242, 244

13 (9th Cir. 1972); Mediterranean Enters., Inc. v. Ssangyong Corp, 708 F.2d 1458, 1465 (9th Cir.

14 1983) (“A trial court may, with propriety, find it is efficient for its own docket and the fairest

15 course for the parties to enter a stay of an action before it, pending resolution of independent

16 proceedings which bear upon the case.” (citation omitted)).

17

District courts apply a four-factor test to determine whether to issue a stay of an order:

18 (1) the applicant’s likely success on the merits; (2) irreparable injury to the applicant absent a

19 stay; (3) substantial injury to the other parties; and (4) the public interest. Hilton v. Braunskill,

20 481 U.S. 770, 776 (1987); see Nken v. Holder, 556 U.S. 418, 433-34 (2009); Leiva-Perez v.

21 Holder, 640 F.3d 962, 970 (9th Cir. 2011) (Nken requires a showing of irreparable harm, but

22 applies a balancing test showing “that irreparable harm is probable and either: (a) a strong

23 likelihood of success on the merits and that the public interest does not weigh heavily against a

24 stay; or (b) a substantial case on the merits and that the balance of hardships tips sharply in the

25 petitioner’s favor”). All of those factors are satisfied here.

26 II. ANALYSIS

27

A. Defendants Have a Strong Likelihood of Success on the Merits.

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 3
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

Case 2:17-cv-00094-RAJ Document 156 Filed 04/20/18 Page 4 of 12

1

The Court is familiar with Defendants’ arguments on the merits, which we will not

2 reprise in detail here. In short, as explained in numerous previous filings and declarations,

3 Defendants believe that the class list is protected by the law enforcement privilege because it

4 includes “information pertaining to law enforcement techniques and procedures, information that

5 would undermine the confidentiality of sources,” and information that would “otherwise ...

6 interfere with an investigation.” In re City of New York, 607 F.3d 923, 944 (2d Cir. 2010)

7 (internal quotation marks and brackets omitted); accord, e.g., In re U.S. Dep’t of Homeland

8 Security, 459 F.3d 565, 571 (5th Cir. 2006); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033

9 (9th Cir. 1990). Exhibit A, Declaration of Tatum King (hereafter “King Decl.”), at ¶¶ 16-18;

10 Exhibit B, Declaration of Tracy Renaud (hereafter “Renaud Decl.”), at ¶¶ 16-18.

11

B. Defendants Will Be Irreparably Harmed Absent a Stay.

12

Defendants would suffer irreparable harm in being required to disclose the identities (as

13 distinct from the demographic information that form the crux of this case) of individuals on the

14 class list. That harm would be both substantial and irreversible. “Secrecy is a one-way street:

15 Once information is published, it cannot be made secret again.” In re Copley Press, Inc., 518

16 F.3d 1022, 1025 (9th Cir. 2008). Review on appeal from a final judgment, even if favorable to

17 Defendants, could not un-ring the bell of disclosure. See In re Ford Motor Co., 110 F.3d 954,

18 962-63 (3rd Cir. 1997) (appealing privilege issues after final judgment is ineffective).

19

Plaintiffs have stated their desire to inform individuals who contact Plaintiffs’ counsel

20 whether they are part of the class, and affirmatively to contact other class members to seek out

21 additional information from them. ECF No. 91 at 4-5. Given the nature of this case as a

22 challenge to the CARRP policy, contact by Plaintiff’s counsel will necessarily tend to reveal to

23 that person that he or she is in fact subject to CARRP, even if Plaintiffs’ counsel does not

24 directly reveal that such member is subject to CARRP.

25

The government—and the public at-large—will be harmed irreparably if this sensitive

26 information is released, because it may lead dangerous individuals to attempt to evade the

27 immigration system to obtain benefits for which they are not eligible, and permit those

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 4
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

Case 2:17-cv-00094-RAJ Document 156 Filed 04/20/18 Page 5 of 12

1 individuals to infer the existence of ongoing criminal, national security, or other law enforcement

2 or intelligence investigations, or that the government has information about activities about

3 which they were previously unaware the government had any knowledge. ECF No. 94-5, ¶¶ 16,

4 18; ECF No. 126-3, ¶ 5. This knowledge could then allow them to change their behavior, alert

5 co-conspirators or larger organizations of government interest in or awareness of their activities,

6 and take actions to conceal wrong-doing. Id. Thus, disclosure of this information harms not

7 only Defendants but also puts public safety at risk.

8

Making any of these disclosures would impair ongoing law enforcement activities.

9 James McCament, the Deputy Director of U.S. Citizenship and Immigration Services (“USCIS”)

10 explained that if an individual learns he or she is subject to CARRP, that could lead him or her to

11 infer the type of investigation that is under way (e.g., whether the individual is inadmissible on

12 national security grounds), and to alter his or her behavior or influence witnesses to make it more

13 difficult for USCIS to accurately determine whether those national security grounds bar or

14 adversely impact the benefit application. ECF No. 94-5, ¶ 18. Tatum King, Assistant Director

15 of U.S. Immigration and Customs Enforcement (“ICE”), Homeland Security Investigations,

16 overseeing Domestic Operations, echoed these concerns, explaining that individuals who are

17 prematurely notified that they are the subject of law enforcement interest may “alter their habits

18 and/or appearances, may alert their compatriots and co-conspirators, may go into hiding, may

19 destroy evidence, or may anticipate the activities of federal agents and thereby put the agents,

20 their investigations, and members of the public at risk.” ECF No. 126-3, ¶ 5. Furthermore, even

21 inadvertent disclosure could compromise law enforcement techniques and methods, and thereby

22 endanger national security. Id. ¶ 6. Matthew Emrich, the Associate Director of U.S. Citizenship

23 and Immigration Services and head of the Fraud Detection and National Security directorate

24 explained that individuals may be subject to CARRP as the result of derogatory information

25 received from the FBI name check or fingerprint check process or from other DHS databases.

26 ECF No. 126-1, ¶ 10. Mr. Emrich also explained that revealing that a person is subject to

27 CARRP could disrupt ongoing investigations of either the individual or a larger group of which

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 5
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

Case 2:17-cv-00094-RAJ Document 156 Filed 04/20/18 Page 6 of 12

1 the individual is a member. Id. ¶ 28. Finally, David Eisenreich, Section Chief of the National

2 Name Check Section Program of the Federal Bureau of Investigation (“FBI”) similarly explained

3 that disclosure to individuals that they are subject to CARRP would allow them to infer that they

4 are subject to scrutiny by law enforcement beyond the specific immigration benefit application at

5 issue. ECF No. 126-2, ¶ 32. Mr. Eisenreich also explained that the FBI treats all name check

6 results—whether positive or negative—as privileged because it is necessary to do so to avoid

7 telegraphing whether any particular result was positive or negative, and that disclosures that

8 would enable a person to infer the existence of an investigation would impair ongoing FBI

9 investigations. Id. at ¶ 31; Exhibit A, Declaration of Tatum King (hereafter “King Decl.”), at ¶¶

10 16-18; Exhibit B, Declaration of Tracy Renaud (hereafter “Renaud Decl.”), at ¶¶ 16-18.

11

Although the Court stated “there is no evidence that any individuals on the class list are

12 or were subjects of investigations or are, generally, ‘bad actors,’” ECF No. 148 at 9, it is a

13 requirement of the class definition that the individual has a pending benefit application and is or

14 was subject to the CARRP policy. CARRP is a USCIS policy to investigate immigrant benefit

15 applicants whose cases raise national security concerns. ECF No. 94-5, ¶ 14. In order for

16 USCIS to consider an individual a national security concern, the individual must have an

17 articulable link to one of the national security inadmissibility or deportability grounds listed in

18 the Immigration and Nationality Act (“INA”). These grounds include, for example, membership

19 in a terrorist organization or espionage. 8 U.S.C. §§ 1182(a)(3)(A), (B), (F); 1227(a)(3)(A), (B).

20 ECF No. 94-5, ¶ 15. By virtue of the fact that these individuals were subject to a civil

21 immigration background investigation for a national security concern, they are members of the

22 class. See ECF No. 94-5, ¶¶ 14-15. Further, because USCIS engages in information-sharing and

23 gathers information from outside sources, including agencies engaged in criminal and/or

24 intelligence investigations, many of these individuals may also be the subject of a criminal

25 and/or intelligence law enforcement investigation, including terrorism or national security

26 investigations. ECF No. 94-5, ¶ 18; ECF No. 126-1, ¶ 28.

27

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 6
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

Case 2:17-cv-00094-RAJ Document 156 Filed 04/20/18 Page 7 of 12

1

The Supreme Court and Ninth Circuit agree that “‘the Government’s interest in

2 combating terrorism is an urgent objective of the highest order.’” Washington v. Trump, 847

3 F.3d 1151, 1168 (9th Cir. 2017) (quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 28

4 (2010)). The Government has explained how the Court’s order to disclose the identities of class

5 members harms national security and endangers public safety through numerous affidavits from

6 officials at multiple agencies. ECF No. 94-5, ¶ 20; ECF No. 126-1, ¶¶ 20-30; ECN No. 126-2,

7 ¶¶ 31-32; ECN No. 126-3, ¶¶ 5-6. The Government—and the public—deserve an opportunity to

8 have those claims heard by the Ninth Circuit before the irreversible harm that would result from

9 disclosure.

10

C. Plaintiffs Will Not Be Prejudiced By a Stay.

11

The potential harm to Plaintiffs from a stay is minimal, if there is indeed any cognizable

12 potential harm at all. The deadlines for expert discovery and to amend the pleadings have been

13 vacated and have not been not reset. In addition, insofar as Plaintiffs seek the class list

14 information to assist them to make a discrimination claim, Defendants have provided Plaintiffs

15 with information on the age, country of citizenship, and country of birth for all class members,

16 and the ethnicity for any class member who submitted a Form N-400 through USCIS Electronic

17 Immigration System (ELIS), which collects that information. Further, other discovery in the

18 case continues and will not be affected by a stay concerning a single document. In any event, it

19 is self-evident that no complaint about the pace of discovery would outweigh the efficacy of

20 ongoing law enforcement investigations and the safety of federal law enforcement officers. See

21 ECF No. 126-2, ¶ 32; ECF No. 126-3, ¶ 5.

22

D. The Public Interest Favors a Stay

23

The public factor favors a stay for the same reasons that the government would be

24 harmed by disclosure. See Nken, 556 U.S. at 435. In addition, a stay would further “the orderly

25 course of justice” by facilitating the court of appeals to review of Defendants’ privilege claim

26 before damaging disclosure occurs. Washington, 2017 WL 2172020 at *2 (internal quotation

27 omitted). Among other things, the Ninth Circuit’s resolution of Defendant’s claim of law

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 7
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

Case 2:17-cv-00094-RAJ Document 156 Filed 04/20/18 Page 8 of 12

1 enforcement privilege may provide additional guidance on the applicability of that privilege

2 beyond the particular document at issue and, indeed, may provide guidance on how

3 governmental privileges are to be invoked more generally. A stay is appropriate and beneficial

4 to the orderly course of justice under these circumstances. See id.

5

III. IN THE ALTERNATIVE, THE COURT SHOULD RECONSIDER THE

6

CONDITIONS IT IMPOSED ON DEFENDANTS’ USE OF “ATTORNEYS’

EYES ONLY DISCLOSURE, AND PERMIT DEFENDANTS TO

7

PRODUCE ALL THE CLASS IDENTITYING INFORMATION TO

8

PLAINTFFS’ COUNSEL SUBJECT TO THE RESTRICTIONS INDENTIFIED IN DEFENDANTS’ MOTION TO SUPPLEMENT THE

9

PROTECTIVE ORDER

10

In the alternative, Defendants respectfully seek reconsideration of the Court’s April 11,

11 2018 Order concerning the use of the “attorneys’ eyes only” protection. The Court erred in

12 analyzing the harms related to the Court’s requirement to provide information under the

13 attorneys’ eyes only protective order. This error justifies reconsideration and vacatur of the

14 relevant portions of the Order. Accordingly, reconsideration is appropriate under Local Rule

15 7(h)(1).

16

Adherence to the case-by-case determination portion of the Court’s order to gain the

17 benefits of releasing the information under an attorneys’ eyes only protective order is arguably

18 more damaging to national security than releasing the class list under the current stipulated

19 protective order. First, providing case-by-case, individualized information to Plaintiffs’ counsel

20 about the national security risks of specific individuals arguably provides far less protection to

21 national security interests than providing the names of the entire class list with no additional

22 information. Second, such determinations, which may involve classified information, are subject

23 to the law enforcement privilege, and, perhaps the state secrets privileges. The Government has

24 never had an opportunity to assert any privilege over this specific information, given that

25 Plaintiffs never propounded a discovery request for this information or otherwise requested this

26 information before the Court ordered the information to be provided. And, third, the

27 individualized determinations that the Court has ordered here are similar to providing “why”

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 8
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

Case 2:17-cv-00094-RAJ Document 156 Filed 04/20/18 Page 9 of 12

1 information for the five named Plaintiffs. United States Citizenship and Immigration Services,

2 the Federal Bureau of Investigation, Immigration and Customs Enforcement, and the

3 Transportation Security Administration have previously filed declarations explaining that the

4 “why” information is privileged and the harms associated with the disclosure of the “why”

5 information. ECF Nos. 146-2, 146-3, 146-4, 146-5, 146-6, 146-7; King Decl., ¶¶ 14-19; Renaud

6 Decl., ¶¶ 8-18. Additionally, the Government has also filed a motion for the Court to review

7 other declarations ex parte. If the Government engaged in the case-by-case process that the

8 Court required to take advantage of the attorneys’ eyes only protective order, such review would 9 be contrary to the positions taken in those filings.1

10 IV. CONCLUSION

11

For the foregoing reasons, the Court should STAY its orders of October 19, 2017, ECF

12 No. 98, November 28, 2017, ECF No. 102, and April 11, 2018, ECF No. 148, to the extent they

13 requires disclosure of the class list.

14 Dated: April 20, 2018

Respectfully submitted,

15

CHAD A. READLER

16

Acting Assistant Attorney General

17

/s/ August Flentje

18

AUGUST FLENTJE Special Counsel

19

Civil Division

U.S. Department of Justice

20

950 Pennsylvania Ave.

21

Washington, DC 20530

Telephone: (202) 514-3309

22

E-mail: august.flentje@usdoj.gov

23

Counsel for Defendants

24

25 1 The government also notes its concern about the portion of the Court’s April 11, 2018 Order, that, after noting the
timing of the Ermich declaration, ECF No. 119-2, indicated that the government may be required to “provide
26 additional affidavits from heads of agencies for future productions in which the Government wishes to claim the law
enforcement privilege.” ECF No. 148, at 5 fn. 1. As the government explained in detail in a previous filing, see
27 ECF No. 119, the suggestion that Defendants must claim the law enforcement privilege through a formal declaration
by an agency head at the time documents are produced reflects a fundamental misunderstanding of privilege law.
28

DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 9
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

Case 2:17-cv-00094-RAJ Document 156 Filed 04/20/18 Page 10 of 12

1

CERTIFICATE OF CONFERENCE

2

I HEREBY CERTIFY that on April 20, 2018, I conferred with opposing counsel,

3 specifically Mr. Nicholas Gellert, and thoroughly discussed the substance of this motion and in

4 good faith attempted to reach an accord to eliminate the need for the motion. The parties were

5 unable to reach an accord.

6 7 Dated: April 20, 2018 8
9

/s/ August Flentje AUGUST FLENTJE Special Counsel U.S. Department of Justice

10

11

12

13

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28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 10
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

Case 2:17-cv-00094-RAJ Document 156 Filed 04/20/18 Page 11 of 12

1

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on April 20, 2018, I electronically filed the foregoing with the 2

Clerk of the Court using the CM/ECF system, which will send notification of such filing to the 3

following CM/ECF participants: 4

5

Harry H. Schneider, Jr., Esq.

Nicholas P. Gellert, Esq.

6

David A. Perez, Esq.

7

Laura Hennessey, Esq. Perkins Coie L.L.P.

8

1201 Third Ave., Ste. 4800

Seattle, WA 98101-3099

9

PH: 359-8000

10

FX: 359-9000

Email: HSchneider@perkinscoie.com

11

Email: NGellert@perkinscoie.com

Email: DPerez@perkinscoie.com

12

Email: LHennessey@perkinscoie.com

13 Matt Adams, Esq.

14

Glenda M. Aldana Madrid, Esq.

Northwest Immigrant Rights Project

15

615 Second Ave., Ste. 400

16

Seattle, WA 98104

PH: 957-8611

17

FX: 587-4025

E-mail: matt@nwirp.org

18

E-mail: glenda@nwirp.org

19 Emily Chiang, Esq.

20

ACLU of Washington Foundation

21

901 Fifth Avenue, Suite 630 Seattle, WA 98164

22

Telephone: (206) 624-2184

E-mail: Echiang@aclu-wa.org

23

24

Jennifer Pasquarella, Esq. Sameer Ahmed, Esq.

25

ACLU Foundation of Southern California

1313 W. 8th Street

26

Los Angeles, CA 90017

27

Telephone: (213) 977-5211 Facsimile: (213) 997-5297

28

DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 11
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

Case 2:17-cv-00094-RAJ Document 156 Filed 04/20/18 Page 12 of 12

1

E-mail: jpasquarella@aclusocal.org E-mail: sahmed@aclusocal.org

2

Stacy Tolchin, Esq.

3

Law Offices of Stacy Tolchin

4

634 S. Spring St. Suite 500A Los Angeles, CA 90014

5

Telephone: (213) 622-7450

Facsimile: (213) 622-7233

6

E-mail: Stacy@tolchinimmigration.com

7 Trina Realmuto, Esq.

8

Kristin Macleod-Ball, Esq.

American Immigration Council

9

100 Summer St., 23rd Fl.

10

Boston, MA 02110

Tel: (857) 305-3600

11

Email: trealmuto@immcouncil.org

Email: kmacleod-ball@immcouncil.org 12

13

Lee Gelernt, Esq.

Hugh Handeyside, Esq.

14

Hina Shamsi, Esq.

American Civil Liberties Union Foundation

15

125 Broad Street

16

New York, NY 10004

Telephone: (212) 549-2616

17

Facsimile: (212) 549-2654

18

E-mail: lgelernt@aclu.org E-mail: hhandeyside@aclu.org

19

E-mail: hshamsi@aclu.org

20

/s/ August Flentje

21

AUGUST FLENTJE Special Counsel

22

U.S. Department of Justice

23

24

25

26

27

28
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW - 12
(2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Ave. Washington, DC 20530 Telephone: (202) 514-3309

 
 Case 2:17-cv-00094-RAJ Document 157 Filed 04/23/18 Page 1 of 18

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 ABDIQAFAR WAGAFE, et al., on

10

behalf of themselves and others similarly situated,

11

Plaintiffs,

12

v.

13 DONALD TRUMP, President of the

14

United States; et al.,

15

Defendants.

No. 2:17-cv-00094-RAJ PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING APPELLATE REVIEW NOTED FOR: April 20, 2018

16

17

18

19

20

21

22

23

24

25

26

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR STAY OR RECONSIDERATION (No. 2:17-cv-00094-RAJ)
139531510.1

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 157 Filed 04/23/18 Page 2 of 18

1 2 3 I. 4 II.
III. 5 6 7 8 9 10 11 12 IV. 13 14 15 16 17 18 19 20 21 22 23 24 25 26

TABLE OF CONTENTS
Page
INTRODUCTION ............................................................................................................. 1 RELEVANT FACTUAL BACKGROUND...................................................................... 2 ARGUMENT ..................................................................................................................... 4 A. Legal Standard and Summary of Argument. ......................................................... 4 B. Defendants’ Motion Is Improper Because Defendants Have Not
Established an Unforeseen Emergency.................................................................. 6 C. The Court Should Deny Defendants’ Request for Reconsideration. ..................... 7 D. Defendants Are Not Entitled to a Stay................................................................... 8
1. Defendants are not likely to succeed on the merits because they do not identify clear error. .............................................................................. 8
2. Defendants do not demonstrate irreparable injury to support a stay. ...... 10 3. Plaintiffs’ injuries and the public interest weigh against a stay............... 11 E. The Court Should Strike Defendants’ Declarations............................................. 12 CONCLUSION................................................................................................................ 12

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR STAY OR RECONSIDERATION (No. 2:17-cv-00094-RAJ) – i
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Case 2:17-cv-00094-RAJ Document 157 Filed 04/23/18 Page 3 of 18

1

TABLE OF AUTHORITIES

2 CASES

3 Anderson v. Domino’s Pizza, Inc.,

4

11-CV-902 RBL, 2012 WL 2891804 (W.D. Wash. July 16, 2012) ..........................................5

5 Arizona v. California,

460 U.S. 605 (1983)...................................................................................................................9 6

7

Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Ct. for Dist. of Mont., 408 F.3d 1142 (9th Cir. 2005) ...................................................................................................8

8 Carroll v. Nakatani,

9

342 F.3d 934 (9th Cir. 2003) ...................................................................................................12

10 Chapman v. Bd. of Cty. Comm’rs of Douglass Cty.,

107 U.S. 348 (1883)...................................................................................................................9

11

Cheney v. U.S. Dist. Ct.,

12

542 U.S. 367 (2004)...................................................................................................................8

13 Does 1-10 v. Univ. of Washington,

14

C16-1212JLR, 2016 WL 11066699 (W.D. Wash. Aug. 18, 2016) ...........................................6

15 Henderson v. Metro. Prop. & Cas. Ins. Co., C09-1723 RAJ, 2010 WL 3937482 (W.D. Wash. Oct. 5, 2010) ...............................................7

16

In re Excel Innovations, Inc.,

17

502 F.3d 1086 (9th Cir. 2007) .................................................................................................10

18 In re Sealed Case,

19

856 F.2d 268 (D.C. Cir. 1988) ...................................................................................................7

20

Lair v. Bullock, 697 F.3d 1200 (9th Cir. 2012) ...................................................................................................5

21 Latif v. Holder,

22

28 F. Supp. 3d 1134 (D. Or. 2014) ..........................................................................................10

23 Ledcor Indus. (USA) Inc. v. Virginia Sur. Co., Inc.,

24

No. 09-CV-01807 RSM, 2012 WL 223904 (W.D. Wash. Jan. 25, 2012) .................................5

25

Minhnga Nguyen v. Boeing Co., C15-793RAJ, 2017 WL 2834273 (W.D. Wash. June 30, 2017) ...............................................7

26

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR STAY OR RECONSIDERATION (No. 2:17-cv-00094-RAJ) – ii
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Case 2:17-cv-00094-RAJ Document 157 Filed 04/23/18 Page 4 of 18

1 Mount Graham Coal. v. Thomas,

2

89 F.3d 554 (9th Cir. 1996) .....................................................................................................11

3

Nken v. Holder, 556 U.S. 418 (2009).........................................................................................................5, 6, 12

4 Powertech Tech. Inc. v. Tessera, Inc.,

5

No. C 11-6121 CW, 2013 WL 1164966 (N.D. Cal. Mar. 20, 2013) .........................................6

6 Richards v. Ernst & Young LLP,

7

No. C-08-04988 RMW, 2012 WL 92738 (N.D. Cal. Jan. 11, 2012).......................................12

8

ThermoLife Int’l, LLC v. Myogenix Corp., No. 13-CV-651 JLS (MDD), 2017 WL 4792426 (S.D. Cal. Oct. 24, 2017) ...........................12

9 United States v. Alexander,

10

106 F.3d 874 (9th Cir. 1997) .....................................................................................................9

11 Washington v. Trump,

12

847 F.3d at 1168 ......................................................................................................................11

13

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).....................................................................................................................10

14 Ziglar v. Abbasi,

15

137 S. Ct. 1843 (2017) .............................................................................................................11

16 OTHER AUTHORITIES

17 Local Rule 7(d) ........................................................................................................................... 6, 7

18 Local Rule 7(h) ............................................................................................................................1, 5 19 Local Rule 7(j) ............................................................................................................................ 1, 4 20

21

22

23

24

25

26

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR STAY OR RECONSIDERATION (No. 2:17-cv-00094-RAJ) – iii
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Case 2:17-cv-00094-RAJ Document 157 Filed 04/23/18 Page 5 of 18

1

I. INTRODUCTION

2

On April 11, 2018, the Court made clear that “orders from the federal bench are

3 mandatory, not voluntary.” Dkt. 148 at 10. “The executive branch does not stand alone in the

4 federal system; the Government may not usurp the judicial branch and decide itself when or if it

5 will produce documents.” Id. That was not the first time the Court has had to emphasize the

6 Court expects compliance with its orders. See id. (citing Dkt. 115, 121 (hearing and hearing

7 transcript regarding discovery disputes)).

8

Despite the Court’s repeated warnings, late Friday, with less than two hours’ notice to

9 Plaintiffs, Defendants filed what they style an “emergency motion for stay.” Defendants demand

10 a decision from this Court by the end of the day Monday, April 23, or else they will seek

11 immediate review from the Ninth Circuit. This motion should be denied for several reasons.

12

First, despite framing their motion as an “emergency” request, Defendants do not even

13 try to meet the standard set forth in LCR 7(j). During a telephone conference with Plaintiffs,

14 Defendants did not identify any emergency (despite the title of their motion), and made clear that

15 they were not moving under LCR 7(j), or pursuant to any of the Local Rules governing motions.

16 Declaration of David A. Perez, ¶ 4. The Federal Rules of Civil Procedure and this Court’s Local

17 Rules are not guidelines; they are rules that the parties must obey. Defendants cannot proceed as

18 if they are subject to a different set of rules altogether.

19

Second, Defendants’ alternative request for reconsideration should be denied because it

20 does not meet the standard outlined in LCR 7(h). Far from showing any manifest error,

21 intervening change in the law, or new facts, Defendants simply insist that they “continue to

22 believe that information identifying individuals on the class list . . . is protected under the law

23 enforcement privilege.” Dkt. 156 at 2. That is not a new argument. The Court tailored its April

24 11, 2018 order in a reasonable manner that was well within its discretion and rightfully placed

25 the burden on Defendants as the designating party.

26

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR STAY OR RECONSIDERATION (No. 2:17-cv-00094-RAJ) – 1
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Case 2:17-cv-00094-RAJ Document 157 Filed 04/23/18 Page 6 of 18

1

Third, setting aside these procedural defects, on the merits Defendants have not shown

2 that they are entitled to a stay. Rather than show that they will likely succeed on the merits of

3 their mandamus petition, Defendants simply rehash the same arguments the Court already has

4 rejected in three separate orders spanning six months. Far from demonstrating a likelihood of

5 success on the merits, Defendants’ motion is just another example of their delay tactics and

6 refusal to accept the Court’s orders as “mandatory, not voluntary.” Dkt. 148 at 10. The Court

7 should deny Defendants’ motion.

8

Plaintiffs additionally request the Court strike Exhibits A and B to Defendants’ motion

9 from the Court’s consideration. Defendants offer no reasons why they should now be able to

10 supplement the record with evidence they could have previously offered the Court.

11

II. RELEVANT FACTUAL BACKGROUND

12

The Court is aware of the procedural history leading up to this motion, which Plaintiffs

13 will not reprise in detail here, except to highlight a few key facts. Plaintiffs asked Defendants to

14 produce the Class List on August 1, 2017, which Defendants refused to do, leading to a motion

15 to compel, and the Court’s order of October 19, 2017. Dkt. 98. In that order, the Court

16 considered and rejected Defendants’ arguments against disclosure of “the class members’

17 specific identities.” Id. at 3. Specifically, the Court considered and rejected Defendants’ assertion

18 of the law enforcement privilege over the Class List, and explained that the privilege is

19 “qualified” and that “the balance weigh[s] in favor of disclosure.” Id. at 3-4.

20

Defendants moved to reconsider this portion of the Court’s order, which the Court denied

21 on November 28, 2017. Dkt 102. The Court explained that it had “exercised its discretion in

22 balancing the needs of Plaintiffs versus those of Defendants and found that the balance weighed

23 in favor of disclosure.” Id. at 2. In doing so, the Court expressly considered the “Government[’s]

24 argu[ments] that grave national security threats could materialize were the Government forced to

25 reveal the individuals subject to CARRP.” Id. The Court explained that the “Government may

26 not merely say those magic words—‘national security threat’—and automatically have its

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR STAY OR RECONSIDERATION (No. 2:17-cv-00094-RAJ) – 2
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Case 2:17-cv-00094-RAJ Document 157 Filed 04/23/18 Page 7 of 18

1 requests granted in this forum.” Id. at 3. In neither its opposition to Plaintiffs’ motion to compel,

2 nor in its motion for reconsideration, did Defendants argue that a new protective order was

3 necessary. Nor did Defendants move for further relief from the requirement to disclose the

4 specific names of the Class Members.

5

Defendants now assert that after these two orders, “counsel for the Defendants attempted

6 in good faith to find an acceptable solution by which the government could protect its national

7 security and law enforcement interests while disclosing the class list to Plaintiffs’ attorneys.”

8 Dkt. 156 at 2. But in the intervening months, Defendants did no such thing. Plaintiffs repeatedly

9 asked about the status of the Class List, and Defendants avoided providing any dates by which

10 the Class List would be produced. See, e.g., Dkt. 128 (Perez Decl. ISO Plaintiffs’ Opposition to

11 Defendants’ Motion for Protective Order). Finally, on February 13, 2018, the parties filed a joint

12 status report where Defendants expressly committed to produce the Class List by March 5, 2018.

13 Dkt. 114 at 4.

14

The next day, during a hearing, the Court noted that Defendants had “agreed to a deadline

15 for production [of the Class List] by March 5th.” Dkt. 115 (hearing); Dkt. 121 at 26 (hearing

16 transcript). The Court emphasized that “the court expects full compliance, because that fits

17 within the context of two prior orders that have already been issued by this court.” Dkt. 121 at

18 26. Plaintiffs’ counsel predicted (accurately) that Defendants would not comply, and that “this

19 court will have to issue a third order on the class list.” Id. at 27. The Court “reemphasize[d] . . .

20 that two orders have already been issued,” and that “unless there’s something extraordinarily

21 different . . . [the court] expect[s] full compliance in a timely fashion without further delay.” Id.

22 at 28.

23

Rather than heed the Court’s instructions, and comply with the Court’s two written orders

24 and its oral rulings, Defendants opted for further delay, filing a motion for protective order on the

25 eve of their deadline to produce the Class List. Dkt. 126. In the meantime, and in direct violation

26 of the Court’s order compelling disclosure of “the class members’ specific identities,” Dkt. 98 at

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR STAY OR RECONSIDERATION (No. 2:17-cv-00094-RAJ) – 3
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Case 2:17-cv-00094-RAJ Document 157 Filed 04/23/18 Page 8 of 18

1 3, Defendants unilaterally decided to produce a redacted Class List that omitted the identities of

2 the Class Members.

3

In its April 11, 2018 order, the Court concluded that Defendants had not supported their

4 argument “that the class list, generally, must be subject to an ‘attorney eyes only’ provision.”

5 Dkt. 148 at 9. Acknowledging that “potential national security risks may exist as to specific

6 individuals,” the Court explained that “the burden is on the Government to make such case-by-

7 case determinations . . . with sufficient detail and specificity,” and if the Government does so

8 then those individuals’ identities “must be protected by the ‘attorney eyes only’ protections

9 described by the Government in its brief.” Id. at 9-10. In other words, the Court granted in part

10 Defendants’ request to designate certain individuals’ identities under “attorney eyes only,” but

11 ordered Defendants to “do their homework” for each designation, rather than apply that

12 designation to the entire Class List.

13

More than six months after the Court’s initial October 19, 2017 order, Defendants have

14 moved to stay the Court’s order compelling the production of a Class List.

15

III. ARGUMENT

16

A. Legal Standard and Summary of Argument.

17

Defendants frame their request as an “emergency motion,” asking the Court to stay its

18 discovery orders related to the Class List pending Defendants’ petition for a writ of mandamus.

19 In effect, Defendants ask for relief from the Court’s deadline to produce the Class List by April

20 25, 2018. Dkt. 148 at 10 (ordering that the class list “must be produced” by April 25).

21 Defendants alternatively ask the Court to reconsider its orders regarding the Class List and

22 protective order.

23

LCR 7(j) provides that a “motion for relief from a deadline should, whenever possible, be

24 filed sufficiently in advance of the deadline to allow the court to rule on the motion prior to the

25 deadline.” The rule makes clear that “[i]f a true, unforeseen emergency exists that prevents a

26 party from meeting a deadline, and the emergency arose too late to file a motion for relief from

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR STAY OR RECONSIDERATION (No. 2:17-cv-00094-RAJ) – 4
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Case 2:17-cv-00094-RAJ Document 157 Filed 04/23/18 Page 9 of 18

1 the deadline, the party should contact the adverse party, meet and confer regarding an extension,

2 and file a stipulation and proposed order with the court.” Id. As outlined below, Defendants do

3 not even try to establish that “a true, unforeseen emergency exists,” much less one that requires

4 the Court to rule within one business day.

5

As for Defendants’ alternative request—that the Court reconsider its prior orders—LCR

6 7(h) emphasizes that “[m]otions for reconsideration are disfavored.” The Court “will ordinarily

7 deny such motions” unless the moving party demonstrates “manifest error” in the Court’s prior

8 ruling or “new facts or legal authority which could not have been brought to its attention earlier

9 with reasonable diligence.” LCR 7(h). It follows that when a motion for reconsideration “merely

10 rehashes the same arguments made and rejected by the Court,” it “may be denied for this reason

11 alone.” Ledcor Indus. (USA) Inc. v. Virginia Sur. Co., Inc., No. 09-CV-01807 RSM, 2012 WL

12 223904, at *1 (W.D. Wash. Jan. 25, 2012); see also Anderson v. Domino’s Pizza, Inc., 11-CV-

13 902 RBL, 2012 WL 2891804, at *1 (W.D. Wash. July 16, 2012) (noting reconsideration is an

14 “extraordinary remedy” that “should not be granted . . . unless the district court is presented with

15 newly discovered evidence, committed clear error, or if there is an intervening change in the

16 controlling law”) (quotations omitted). Here, there is no basis for reconsideration. Rather than

17 identify any manifest errors, new facts, or intervening change in law, the motion simply rehashes

18 the same arguments Defendants already briefed.

19

Procedural defects aside, “[a] stay is not a matter of right, even if irreparable injury might

20 otherwise result.” Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting Virginian Ry. Co. v. United

21 States, 272 U.S. 658, 672 (1926)). “It is instead ‘an exercise of judicial discretion,’ and ‘the

22 propriety of its issue is dependent upon the circumstances of the particular case.’” Id. (quoting

23 Virginian, 272 U.S. at 672-73) (alterations omitted). “The party requesting a stay bears the

24 burden of showing that the circumstances justify an exercise of that discretion.” Id. at 433-34. A

25 court’s decision to grant or deny a stay application is guided by four factors: “(1) whether the

26 stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR STAY OR RECONSIDERATION (No. 2:17-cv-00094-RAJ) – 5
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Case 2:17-cv-00094-RAJ Document 157 Filed 04/23/18 Page 10 of 18

1 the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will

2 substantially injure the other parties interested in the proceeding; and (4) where the public

3 interest lies.” Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken, 556 U.S. at

4 434). “The first two factors . . . are the most critical,” and the last two steps are reached “[o]nce

5 an applicant satisfies the first two factors.” Nken, 556 U.S. at 434-35. The factors considered in

6 determining whether a stay pending petition for writ of mandamus is warranted are the same as a

7 stay pending appeal.” Powertech Tech. Inc. v. Tessera, Inc., No. C 11-6121 CW, 2013 WL

8 1164966, at *1 (N.D. Cal. Mar. 20, 2013) (internal quotation marks omitted).

9

By this standard, Defendant’s request for a stay pending review of their mandamus

10 petition should be denied. Defendants cannot demonstrate a likelihood of success on the merits

11 of their mandamus petition or irreparable injury by simply rehashing the same arguments the

12 Court has considered and rejected three times over six months. Continued disagreement and

13 persistent refusals to comply with the Court’s decisions do not provide any basis for a stay.

14

B. Defendants’ Motion Is Improper Because Defendants Have Not Established

15

an Unforeseen Emergency.

LCR 7(j) provides that emergencies must be “unforeseen.” But Defendants have known 16

about their obligation to produce the Class List, including the specific identities of those on the 17

Class List, since at least October 2017. Dkt. 98. 18

Moreover, “[t]here is no provision in the Local Rules for the Western District of 19

20 Washington for an ‘emergency motion’ or for a motion on shortened time.” Does 1-10 v. Univ.

21 of Washington, C16-1212JLR, 2016 WL 11066699, at *1 (W.D. Wash. Aug. 18, 2016).

Defendants’ “motion does not fall within the category of motions that the court’s Local Rules 22

23 permit counsel to note for the same day the motion is filed.” Id. (citing LCR 7(d)(1) (listing

motions that may be noted on the same day filed)). 24

Ultimately, Defendants ask for relief from the Court’s deadline to produce the Class List, 25

and the reasons for subjecting certain identifies on that class list to “attorney eyes only” 26

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR STAY OR RECONSIDERATION (No. 2:17-cv-00094-RAJ) – 6
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Case 2:17-cv-00094-RAJ Document 157 Filed 04/23/18 Page 11 of 18

1 protection, by April 25, 2018. The Court’s Local Rules provide that motions for relief from a

2 deadline “may be noted for consideration no earlier than the second Friday after filing and

3 service of the motion.” LCR 7(d)(2). Defendants have provided no reason for their failure to

4 abide by the Local Rules, and their motion should be denied for that reason alone.

5

C. The Court Should Deny Defendants’ Request for Reconsideration.

6

Defendants previously opposed Plaintiffs’ request for a Class List, and waited six months

7 before filing a motion for a protective order, which the Court denied in part. As the Court

8 previously explained when denying a separate reconsideration request: “Defendants couch their

9 motion in terms of the Court’s manifest errors but in reality the motion argues that the Court

10 should revisit its conclusions. Parties cannot use motions for reconsideration to simply obtain a

11 second bite at the apple, and this is what Defendants appear to be doing with this motion.” Dkt.

12 85 at 2; see Minhnga Nguyen v. Boeing Co., C15-793RAJ, 2017 WL 2834273, at *2 (W.D.

13 Wash. June 30, 2017) (denying reconsideration where the litigant did not “present new facts or

14 legal authority that were not also available to her earlier”); Henderson v. Metro. Prop. & Cas.

15 Ins. Co., C09-1723 RAJ, 2010 WL 3937482, at *2 (W.D. Wash. Oct. 5, 2010) (same).

16

Here, Defendants repeat their argument that disclosing the Class List to Plaintiffs’

17 counsel “may lead dangerous individuals to attempt to evade the immigration system to obtain

18 benefits for which they are not eligible.” Dkt. 156 at 4. The Court already considered and

19 rejected this argument three times. See Dkt. 98, 102, and 148. Even if that reasoning was

20 sufficient to invoke the law enforcement privilege, the Court explained that it still “must balance

21 the need for Plaintiffs to obtain this information against the Government’s reasons for

22 withholding.” Dkt. 98 at 4; see also In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988).

23 Notably, “a district court has considerable leeway” in striking that balance. Id. Here, after

24 Plaintiffs and Defendants each laid out their needs in their respective briefs, the Court has come

25 down in favor of disclosure. Defendants disagree with that conclusion, but fail to show how it

26 was manifestly erroneous.

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1

The Court has afforded Defendants the protection they want—attorney eyes only—but

2 only if they “do their homework” by showing with particularity why each name should be

3 subject to that designation. Defendants assert, in a conclusory fashion, that justifying this

4 designation is even worse than not having it in the first place. But they never explain how or why

5 that is the case. They simply assert it, and expect the Court to believe them. But, as this Court

6 has already observed, the “Government may not merely say those magic words—‘national

7 security threat’—and automatically have its requests granted in this forum.” Dkt. 102 at 3.

8

The Court should deny Defendants’ alternative request asking the Court to reconsider its

9 April 11, 2018 order concerning the use of the “attorneys’ eyes only” provision.

10

D. Defendants Are Not Entitled to a Stay.

11

Defendants intend to file a petition for a writ of mandamus requesting vacatur of the

12 Court’s orders regarding production of the Class List, see Dkt. 156 at 2, but to obtain stay relief

13 pending review of their mandamus petition, Defendants must establish that they are likely to

14 succeed on the merits of that petition. Defendants cannot show that the Court’s orders are

15 “clearly erroneous as a matter of law”—the dispositive factor in obtaining mandamus relief.

16 Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Ct. for Dist. of Mont., 408 F.3d 1142, 1146 (9th

17 Cir. 2005). Nor is Defendants’ hypothetical harm sufficient to show that they will be irreparably

18 harmed absent the stay. Defendants are not entitled to a stay.

19

1. Defendants are not likely to succeed on the merits because they do not

20

identify clear error.

As to the merits, Defendants must show that they are likely to obtain mandamus relief. 21

But mandamus is a “drastic and extraordinary remedy reserved for really extraordinary causes,” 22

and “only exceptional circumstances amounting to a judicial usurpation of power, or a clear 23

24 abuse of discretion, will justify the invocation of this extraordinary remedy.” Cheney v. U.S.

25 Dist. Ct., 542 U.S. 367, 380 (2004). The Ninth Circuit has established five factors for use in

deciding whether mandamus is appropriate, but this Court should focus on whether its “order[s] 26

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR STAY OR RECONSIDERATION (No. 2:17-cv-00094-RAJ) – 8
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1 [are] clearly erroneous as a matter of law.” Burlington, 408 F.3d at 1146. The absence of clear

2 error “is dispositive.” Id.

3

Rather than explain why Defendants are likely to succeed on the merits of their

4 mandamus petition, Defendants cursorily state that they continue to “believe that the class list is

5 protected by the law enforcement privilege[.]” Dkt. 156 at 4. But this Court has thrice ordered

6 Defendants to produce the Class List, see Dkt. 98, 102, 148, rejecting Defendants’ law

7 enforcement privilege argument each time. Defendants make no separate arguments as to how

8 the Court committed clear error in its orders, and they simply incorporate by reference these

9 prior arguments. Losing the same argument three times does not entitle the moving party to a

10 stay. To hold otherwise would eliminate Defendants’ burden to establish this first stay factor.

11

Moreover, this Court has consistently held that Defendants’ arguments are “vague and

12 speculative” and sensitive information is already protected by the Stipulated Protective Order.

13 Dkt. 148 at 9. The Court should apply the law of the case doctrine and follow this holding

14 through the pendency of this matter. See Arizona v. California, 460 U.S. 605, 618 (1983); United

15 States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997). All of the Defendants’ contentions were

16 previously argued and rejected when the Court granted Plaintiffs’ motion to compel, denied

17 Defendants’ motion for reconsideration, and denied in large part Defendants’ motion for a

18 supplemental protective order. The Court should affirm its prior rejections of these arguments

19 because Defendants have failed to identify substantially different evidence, a change in the

20 controlling legal authority, or other changed circumstances. See Alexander, 106 F.3d at 876

21 (explaining when a court has discretion to depart from the law of the case).

22

In addition, Defendants’ mandamus petition is not likely to succeed on the merits because

23 it is barred by laches. Laches can bar a petition for a writ of mandamus if the petitioner “slept

24 upon his rights for an unreasonable time, and especially if the delay has been prejudicial to the

25 [other party], or to the rights of other persons.” Chapman v. Bd. of Cty. Comm’rs of Douglass

26 Cty., 107 U.S. 348, 355 (1883). Here, Defendants’ posture of delay makes the application of

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR STAY OR RECONSIDERATION (No. 2:17-cv-00094-RAJ) – 9
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1 laches appropriate. The Court denied Defendants’ motion for reconsideration on November 28,

2 2018. Defendants neglect to explain why they could not then assert their rights and instead

3 waited until the eve of their production deadline months later to modify the protective order.

4

2. Defendants do not demonstrate irreparable injury to support a stay.

5

Defendants must show more than a mere “possibility” of irreparable harm. They must

6 “demonstrate that irreparable injury is likely in the absence of [a stay].” Winter v. Nat. Res. Def.

7 Council, Inc., 555 U.S. 7, 22 (2008). “Speculative injury cannot be the basis for a finding of

8 irreparable harm.” In re Excel Innovations, Inc., 502 F.3d 1086, 1098 (9th Cir. 2007).

9 Defendants have not shown that a stay is necessary to avoid irreparable injury.

10

The stipulated protective order already restricts disclosure of confidential information to

11 a select category of persons and with strict conditions. See Dkt. 86 at 5-6; id. at 4-5

12 (“[Confidential Information] shall not be disseminated outside the confines of this case, nor shall

13 it be included in any pleading, record, or document that is not filed under seal with the Court or

14 redacted in accordance with applicable law.”).

15

Defendants’ arguments fall short for several additional reasons. First, the two certified

16 classes are limited to individuals whose applications have been languishing for at least six

17 months; practically speaking, those individuals would already be on notice that their applications

18 have been subject to additional scrutiny. See Dkt. 95 at 3-4. Second, courts previously have

19 rejected similar concerns about disclosing the names of individuals on the No Fly List. See Latif

20 v. Holder, 28 F. Supp. 3d 1134, 1162 (D. Or. 2014). Third, Defendants have routinely disclosed

21 this information without any restrictions in response to Freedom of Information Act requests and

22 in other litigation. See Dkt. 95 at 4. Each of these arguments casts doubt on Defendants’ belated

23 arguments about national security concerns.

24

Fourth, the Court’s previous orders each make clear that the Court expressly considered

25 Defendants’ assertions “that releasing the identities of potential class members could lead

26 individuals to potentially alter their behavior, conceal evidence of wrongdoing, or attempt to

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1 influence others in a way that could affect national security interests.” Dkt. 98 at 3 (citing the

2 McCament Declaration). The Court concluded that these assertions were too speculative “to

3 claim privilege over basic spreadsheets identifying who is subject to CARRP.” Id. at 4. In other

4 words, the Court disagreed with Defendants’ factual arguments. See Dkt. 148 at 9 (“[T]he risks

5 cited by the Government are vague and speculative—there is no evidence that any individuals on

6 the class list are or were subjects of investigations or are, generally, ‘bad actors.’”).

7

Finally, Defendants cite Washington v. Trump, to assert that their interest in “combating

8 terrorism is an urgent objective of the highest order.” Dkt. 156 at 7 (citing 847 F.3d 1151, 1168

9 (9th Cir. 2017)). But the Ninth Circuit admonished the federal government that it must do more

10 “than reiterate that fact.” Washington, 847 F.3d at 1168; see also Ziglar v. Abbasi, 137 S. Ct.

11 1843, 1862 (2017) (explaining that “national-security concerns must not become a talisman used

12 to ward off inconvenient claims—a label used to cover a multitude of sins”). Here, the Court

13 carefully weighed potential national security risks in crafting the requirements Defendants must

14 meet to designate specific individuals under an “attorney eyes only” provision and rightfully

15 placed the burden of using this designation on the designating party. See Dkt. 148 at 9.

16

3. Plaintiffs’ injuries and the public interest weigh against a stay.

17

Because Defendants have shown neither irreparable harm nor that they are likely to

18 succeed on the merits of their mandamus petition, the Court need compare Plaintiffs’ injuries or

19 weigh the public interest. See Mount Graham Coal. v. Thomas, 89 F.3d 554, 558 (9th Cir. 1996).

20

But should the Court consider these final two factors, they further weigh against

21 Defendants’ stay application. First, the Court’s balance of equities in denying the stay is similar

22 to the Court’s prior analyses determining that Plaintiffs’ need for the Class List outweighs

23 Defendants’ reasons for withholding it. See Dkt. 98 at 4; Dkt. 102 at 3. As Plaintiffs have

24 explained, Plaintiffs’ counsel need the Class List and class members’ personally identifiable

25 information for two least main reasons: (1) to communicate with class members who may be

26 witnesses and sources of information that is directly relevant to Plaintiffs’ claims, and (2) to

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR STAY OR RECONSIDERATION (No. 2:17-cv-00094-RAJ) – 11
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1 respond to inquiries from potential class members and inform them if their interests are

2 represented in this case. See Dkt. 127 at 11; Dkt. 91 at 5; Dkt. 95 at 1-2. Granting the stay would

3 further delay Plaintiffs’ and class members’ access to this critical information, and continue to

4 impair counsel’s ability to fully represent all class members and factually develop this case. In

5 the meantime, Plaintiffs continue to suffer harm as their immigration benefit applications remain

6 improperly delayed by Defendants’ unlawful CARRP and successor extreme vetting programs.

7

The public interest weighs against a stay. The public would benefit from prompt

8 adjudication of this case, and further delay harms the public, “particularly where the substance of

9 the case itself implicates the public interest.” Richards v. Ernst & Young LLP, No. C-08-04988

10 RMW, 2012 WL 92738, at *4 (N.D. Cal. Jan. 11, 2012); see Nken, 556 U.S. at 427 (regarding a

11 stay as “an intrusion into the ordinary processes of administration of judicial review”).

12

E. The Court Should Strike Defendants’ Declarations.

13

Plaintiffs request the Court strike the Declarations of Tatum King and Tracy Renaud—

14 which Defendants filed as Exhibits A and B to Defendants’ stay motion—from the Court’s

15 consideration. Defendants provide no reasons why they should now be able to supplement the

16 record in this case with evidence that could have been provided before this Court made its

17 decisions on Plaintiffs’ motion to compel, Defendants’ motion for reconsideration, and

18 Defendants’ motion for a limited protective order. See Carroll v. Nakatani, 342 F.3d 934, 945

19 (9th Cir. 2003) (“A [motion for reconsideration] may not be used to raise arguments or present

20 evidence for the first time when they could reasonably have been raised earlier in the

21 litigation.”); ThermoLife Int’l, LLC v. Myogenix Corp., No. 13-CV-651 JLS (MDD), 2017 WL

22 4792426, at *2 (S.D. Cal. Oct. 24, 2017) (striking declaration and exhibits attached to motion).

23 IV. 24

CONCLUSION The Court should deny Defendants’ motion for stay or for reconsideration of the Court’s

25 orders as they pertain to disclosure of the Class List, and strike Exhibits A and B from the record.

26

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR STAY OR RECONSIDERATION (No. 2:17-cv-00094-RAJ) – 12
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Case 2:17-cv-00094-RAJ Document 157 Filed 04/23/18 Page 17 of 18

1 By:

2 s/Jennifer Pasquarella (admitted pro hac vice) s/ Harry H. Schneider, Jr.

s/Sameer Ahmed (admitted pro hac vice)

Harry H. Schneider, Jr. #9404

3 ACLU Foundation of Southern California s/ Nicholas P. Gellert

1313 W. 8th Street

Nicholas P. Gellert #18041

4 Los Angeles, CA 90017

s/ David A. Perez

Telephone: (213) 977-5236

David A. Perez #43959

5 Facsimile: (213) 997-5297

s/ Laura K. Hennessey

jpasquarella@aclusocal.org

Laura K. Hennessey #47447

6 sahmed@aclusocal.org

Perkins Coie LLP

1201 Third Avenue, Suite 4900

7

Seattle, WA 98101-3099

s/Matt Adams

Telephone: 206.359.8000

8 s/Glenda M. Aldana Madrid

Facsimile: 206.359.9000

Matt Adams #28287

Email: HSchneider@perkinscoie.com

9 Glenda M. Aldana Madrid #46987

NGellert@perkinscoie.com

Northwest Immigrant Rights Project

DPerez@perkinscoie.com

10 615 Second Ave., Ste. 400

LHennessey@perkinscoie.com

Seattle, WA 98122

11 Telephone: (206) 957-8611

Facsimile: (206) 587-4025

12 matt@nwirp.org

glenda@nwirp.org

13

s/Stacy Tolchin (admitted pro hac vice)

s/Trina Realmuto (admitted pro hac vice)

14 Law Offices of Stacy Tolchin

s/Kristin Macleod-Ball (admitted pro hac vice)

634 S. Spring St. Suite 500A

Trina Realmuto

15 Los Angeles, CA 90014

Kristin Macleod-Ball

Telephone: (213) 622-7450

American Immigration Council

16 Facsimile: (213) 622-7233

100 Summer St., 23rd Fl.

Stacy@tolchinimmigration.com

Boston, MA 02110

17

Tel: (857) 305-3600

Email: trealmuto@immcouncil.org

18

Email: kmacleod-ball@immcouncil.org

19 s/Hugh Handeyside

s/Emily Chiang

Hugh Handeyside #39792

Emily Chiang #50517

20 s/Lee Gelernt (admitted pro hac vice)

ACLU of Washington Foundation

s/Hina Shamsi (admitted pro hac vice)

901 Fifth Avenue, Suite 630

21 American Civil Liberties Union Foundation Seattle, WA 98164

125 Broad Street

Telephone: (206) 624-2184

22 New York, NY 10004

Echiang@aclu-wa.org

Telephone: (212) 549-2616

23 Facsimile: (212) 549-2654

lgelernt@aclu.org

24 hhandeyside@aclu.org

hshamsi@aclu.org

25

Attorneys for Plaintiffs 26

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Case 2:17-cv-00094-RAJ Document 157 Filed 04/23/18 Page 18 of 18

1

CERTIFICATE OF SERVICE

2 The undersigned certifies that on the dated indicated below, I caused service of the
3 foregoing PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ EMERGENCY MOTION FOR
4 STAY PENDING APPELLATE REVIEW via the CM/ECF system that will automatically send
5 notice of such filing to all counsel of record herein.
6 DATED this 23rd day of April, 2018, at Seattle, Washington.
7

8

s/ David A. Perez David A. Perez #43959

9

Attorneys for Plaintiffs Perkins Coie LLP

10

1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099

11

Telephone: 206.359.8000 Facsimile: 206.359.9000

12

Email: DPerez@perkinscoie.com

13

14

15

16

17

18

19

20

21

22

23

24

25

26

CERTIFICATE OF SERVICE (No. 2:17-cv-00094-RAJ) – 1
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 Case 2:17-cv-00094-RAJ Document 148 Filed 04/11/18 Page 1 of 11

1

HONORABLE RICHARD A. JONES

2

3

4

5

6

7

8

9

10

11

12

13 UNITED STATES DISTRICT COURT

14

WESTERN DISTRICT OF WASHINGTON

15

AT SEATTLE

16

ABDIQAFAR WAGAFE, et al., on

17

behalf of themselves and others

similarly situated,

18

CASE NO. C17-94 RAJ ORDER

19

Plaintiffs,

20

v.

21

DONALD TRUMP, President of the United States, et al.,

22 Defendants.
23

24 This matter comes before the Court on Plaintiffs’ Motions to Compel (Dkt. ##
25 109, 111) and on Defendants’ Motion for Protective Order (Dkt. # 126). For the
26 following reasons, the Court grants in part and denies in part the motions.
27

ORDER- 1

Case 2:17-cv-00094-RAJ Document 148 Filed 04/11/18 Page 2 of 11

1

I. BACKGROUND

2

On June 21, 2017, the Court granted Plaintiffs’ motion to certify two classes: a

3 Naturalization Class and an Adjustment Class. Dkt. # 69. The parties have since been

4 engaged in discovery. The parties have attempted to resolve their discovery disputes

5 without court intervention but have reached an impasse. Plaintiffs now move the Court

6 to compel the Government to produce certain documents. In addition, the Government

7 requests that certain information be subject to a limited and more robust protective order.

8

II. LEGAL STANDARD

9

The Court has broad discretion to control discovery. Hallett v. Morgan, 296 F.3d

10 732, 751 (9th Cir. 2002); see also Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828,

11 833 (9th Cir. 2011), In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). That

12 discretion is guided by several principles. Most importantly, the scope of discovery is

13 broad. A party must respond to any discovery request that is not privileged and that is

14 “relevant to any party’s claim or defense and proportional to the needs of the case,

15 considering the importance of the issues at stake in the action, the amount in controversy,

16 the parties’ relative access to relevant information, the parties’ resources, the importance

17 of the discovery in resolving the issues, and whether the burden or expense of the

18 proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).

19

If a party refuses to respond to discovery, the requesting party “may move for an

20 order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). “The party who

21 resists discovery has the burden to show that discovery should not be allowed, and has

22 the burden of clarifying, explaining, and supporting its objections.” Cable & Computer

23 Tech., Inc. v. Lockheed Saunders, Inc., 175 F.R.D. 646, 650 (C.D. Cal. 1997).

24

III. DISCUSSION

25

A. Law Enforcement Privilege

26

The Government has claimed that the law enforcement privilege protects its

27 documents for quite some time. See, e.g., Dkt. ## 94 at 7-8, 94-5 at ¶ 7. The Court

ORDER- 2

Case 2:17-cv-00094-RAJ Document 148 Filed 04/11/18 Page 3 of 11

1 addressed the issue and required the Government to produce privilege logs if it wished to

2 withhold documents based upon the privilege. The Government created privilege logs

3 and claimed the law enforcement privilege. See, e.g., Dkt. # 110. The Government now

4 argues that it need not satisfy the requirements of this specific privilege unless it

5 “formally invoke[s]” the same. Dkt. # 119 at 8. This argument—that the Government

6 may somehow claim the privilege without actually claiming it—defies logic. The

7 Government’s actions and discovery tactics—including, for example, unjustified delays

8 and the questionable timing of affidavits—thus far have been nothing less than

9 obstructionist; such behavior is inappropriate and will not be tolerated.

10

To claim this privilege, the Government must satisfy three requirements: (1) there

11 must be a formal claim of privilege by the head of the department having control over the

12 requested information; (2) assertion of the privilege must be based on actual personal

13 consideration by that official; and (3) the information for which the privilege is claimed

14 must be specified, with an explanation why it properly falls within the scope of the

15 privilege. In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). This privilege is

16 qualified: “[t]he public interest in nondisclosure must be balanced against the need of a

17 particular litigant for access to the privileged information.” Id. at 272.

18

The Government did not properly claim this privilege because it refused to abide

19 by the first and second prongs; that is, a department head did not claim the privilege and

20 therefore did not assert such privilege based on actual personal consideration. This is

21 notable considering the Government cited the privilege at least as early as October 2017

22 and included a declaration from the agency head, Mr. Emrich, though not in support of

23 the privilege. Dkt. ## 94, 94-8. The Government now offers an affidavit of this same

24 agency head—more than four months later—to invoke the law enforcement privilege.

25 See Dkt. # 119-2. Tactics like this do nothing more than delay and frustrate the

26 fundamental concept of discovery.

27

ORDER- 3

Case 2:17-cv-00094-RAJ Document 148 Filed 04/11/18 Page 4 of 11

1

In his new affidavit, Mr. Emrich describes categories of withheld information and

2 the law enforcement interest in keeping the information withheld. Id. The compelling

3 portions of the affidavit relate to any documents “for applicants whom adjudicators have

4 determined pose a national security or public risk,” and the processes and checks utilized

5 to assess such applicants and related risks. See, e.g., id. at ¶ 21. Mr. Emrich states that

6 disclosure of this information “could provide aliens with a roadmap into the techniques

7 USCIS uses to uncover information that an individual may wish to hide, and the

8 techniques used to elicit information.” Id. But this type of information—the specific

9 process in which USCIS discovers a national security risk and the subsequent

10 investigation—is distinguishable from documents that “relate primarily to immigration

11 benefits processing, not law enforcement in the traditional sense[.]” Am. Civil Liberties

12 Union of S. California v. United States Citizenship & Immigration Servs., 133 F. Supp.

13 3d 234, 245 (D.D.C. 2015).

14

Because this is an important distinction, and because the Court must view

15 USCIS’s withholding with more skepticism than it might with a different agency, see id.,

16 the Court requires the Government’s privilege log to reflect such precise distinctions.

17 This is to ensure that the Government’s blanket affidavit is not being used in an unbridled

18 sense; the Government must specifically identify the documents that fall within this

19 privilege. The Government’s privilege log is insufficient in this regard. For example,

20 most if not all of the Government’s law enforcement privilege descriptions relate only to

21 “procedures on the adjudication of an immigrant benefit application” as they pertain to

22 the “applicant’s eligibility for the immigration benefit.” See, e.g., Dkt. # 11- at 11. There

23 is no law enforcement concern here; the Government’s vague concern is that an applicant

24 may learn how eligibility was decided and this may somehow “risk circumvention or

25 evasion of the law.” Id. This description—repeated throughout the log—relates

26 primarily to immigration benefits processing and not to Mr. Emrich’s contention that the

27 individual document is related to law enforcement or national security concerns. Though

ORDER- 4

Case 2:17-cv-00094-RAJ Document 148 Filed 04/11/18 Page 5 of 11

1 the Court accepts Mr. Emrich’s affidavit to claim the privilege, generally1, the Court

2 requires the Government to use the privilege deliberately and will expect the Government

3 to be exacting with which documents fall within this privilege, stating its reasons for

4 withholding clearly in the privilege logs. Am. Civil Liberties Union of S. California, 133

5 F. Supp. 3d at 243–44 (“There is no explanation of how the information, if released,

6 could risk circumvention of the law, no explanation of what laws would purportedly be

7 circumvented, and little detail regarding what law enforcement purpose is involved (other

8 than vague references to ‘national security concerns’). This is not enough to justify

9 withholding records . . . .”).

10

The Court will allow the Government to revise its privilege log. Based on its

11 review, the Court is hesitant to conclude that all of the currently claimed law enforcement

12 privileges are accurate. The Government has fourteen (14) days from the date of this

13 Order to revise its log and reproduce to Plaintiffs. The parties may file supplemental

14 briefing at that time to address the privilege’s balancing test for any documents that the

15 Government continues to withhold based upon the law enforcement privilege. The

16 Government must produce any documents over which it declines to claim the law

17 enforcement privilege.

18

The deadlines vacated pursuant to the parties’ stipulation, Dkt. # 136, remain

19 vacated pending the Government’s revised privilege log and resolution of the remaining

20 discovery issues addressed in this Order. The Government is warned that any further

21

22

23

1 The Court is perplexed why this affidavit or specific claim of privilege was not asserted

24

months ago, thereby avoiding much of the delays that have occurred. Tactics like this only fuel the notion that the Government’s intention is to purposely delay the discovery process in this

25 lawsuit. Nonetheless, the Court finds Mr. Emrich’s affidavit suitable for the issue at hand. This does not alleviate the Government of its responsibility to provide additional affidavits from

26 heads of agencies for future productions in which the Government wishes to claim the law

enforcement privilege. This affidavit may not be sufficient to cover all discovery productions 27 during the course of litigation.

ORDER- 5

Case 2:17-cv-00094-RAJ Document 148 Filed 04/11/18 Page 6 of 11

1 obstructionist behavior with regard to discovery production will not be met with such

2 leniency.

3

B. Production of Documents Responsive to RFPs 40, 41, and 44

4

Plaintiffs’ Requests for Production (“RFP”) Numbers 40, 41, and 44 are as

5 follows:

6

REQUEST FOR PRODUCTION NO. 40: All Documents

7

referring or relating to any interpretation or implementation of

8

the First EO or Second EO that would affect in any way the

9

adjudication of immigration benefits petitions, applications, or

10

requests of those individuals who are part of the Naturalization

11

Class, the Adjustment of Status Class, or the Muslim Ban

12

Class, including, but not limited to, all documents referring or

13

relating to the Extreme Vetting Initiative by the U.S.

14

Immigration and Customs Enforcement agency.

15

16

REQUEST FOR PRODUCTION NO. 41: All Documents

17

referring or relating to “the suspension of immigration

18

petitions, applications, or requests involving Plaintiff Wagafe,

19

Plaintiff Ostadhassan, Plaintiff Bengezi, and members of the

20

Muslim Ban Class,” pursuant to the First or Second Eos, as

21

described in the First and Second Claims for Relief outline in

22

Plaintiffs’ Second Amended Complaint.

23

24

REQUEST FOR PRODUCTION NO. 44: All Documents

25

referring or relating to any screening, vetting, or adjudication

26

program, policy, or procedure connection to Section 4 of the

27

First EO or Sections 4 or 5 of the Second EO, including, but

ORDER- 6

Case 2:17-cv-00094-RAJ Document 148 Filed 04/11/18 Page 7 of 11

1

not limited to, all documents referring or relating to the

2

Extreme Vetting Initiative by the U.S. Immigration and

3

Customs Enforcement agency. This Request is limited to those

4

programs that apply or would apply to, or would affect in any

5

way the immigration benefit petitions, applications, or requests

6

of those individuals who are part of the Naturalization Class,

7

the Adjustment of Status Class, or the Muslim Ban Class.

8 Dkt. # 112 at 22-24, 25-26.

9

The parties disagree about the continued relevancy of the Muslim Ban Class (also

10 referred to as the Six Countries Class) and the propriety of producing records from ICE.

11 Plaintiffs referenced the Muslim Ban Class in their Second Amended Complaint. Dkt. #

12 47 at ¶ 237. But Plaintiffs did not seek certification of this class in their Amended

13 Motion for Class Certification “because, after the filing of the First Amended Complaint,

14 the Acting Director of USCIS issued a memorandum indicating that Section 3(c) of the

15 First EO would no longer operate to stop the processing of immigration benefits for those

16 already in the United States.” Dkt. # 49 at 9, n. 1. Plaintiffs reserved the “right to seek

17 certification of the additional class if circumstances change again.” Id.

18

Local Rule 23(i)(3) affords parties 180 days after filing a complaint to move for

19 class certification. Local Rules W.D. Wash. LCR 23(i)(3). “This period may be

20 extended on motion for good cause.” Id. Any such motion “should, whenever possible,

21 be filed sufficiently in advance of the deadline to allow the court to rule on the motion

22 prior to the deadline.” LCR 7(j). If a determination as to class certification is postponed,

23 “a date will be fixed by the court for renewal of the motion.” LCR 23(i)(3).

24

Plaintiffs have not pursued certification of the Muslim Ban Class. They claim that

25 RFP Nos. 40, 41, and 44 are pre-certification discovery requests, yet those requests were

26 propounded after the 180-day deadline had passed. Dkt. # 112 at ¶ 2 (Plaintiffs served

27 the RFPs in November 2017; the deadline to seek class certification on the Muslim Ban

ORDER- 7

Case 2:17-cv-00094-RAJ Document 148 Filed 04/11/18 Page 8 of 11

1 Class was in October 2017). Plaintiffs did not seek an extension of any deadlines with

2 regard to pre-certification discovery or certifying the Muslim Ban Class. And, they fail

3 to offer any compelling reasons for failing to conduct such discovery or file such motions

4 within the 180-day window. Moreover, Plaintiffs’ articulated reasons for not seeking

5 certification of the Muslim Ban Class related to whether certain portions of the First and

6 Second EOs would be implemented. Plaintiffs do not argue that circumstances have

7 changed to warrant such a request to now certify the Muslim Ban Class. Nor do

8 Plaintiffs argue that RFP Nos. 40, 41, or 44 seek to discover evidence of changing

9 circumstances such that this discovery would impact the decision to request class

10 certification. In fact, at the time of this Order, it is unclear whether Plaintiffs had even

11 contemplated filing a motion to certify the Muslim Ban Class. To follow Plaintiffs’

12 approach would relegate class certification to a moving target subject only to Plaintiffs’

13 control and completely ignore the established Local Rule of this Court.

14

Plaintiffs did not timely move to certify the Muslim Ban Class. However, this

15 does not affect their ability to pursue discovery as to the representative plaintiffs.

16 Whether the named plaintiffs’ claims are moot has not been briefed before this Court, and

17 the Court will not entertain a motion to dismiss embedded in an opposition to a motion to

18 compel.

19

Defendants object to RFP Nos. 40, 41, and 44 on account of their allegedly broad

20 context and target of ICE records. Dkt. # 120 at 11-12. The Court disagrees that the

21 RFPs are too broad. Indeed, the RFPs are targeted at certain programs that may

22 encompass a successor program to CARRP. The Court finds that the information

23 requested in RFP Nos. 40, 41, and 44 is relevant and within the scope of litigation at this

24 stage in the proceedings, albeit not with regard to the Muslim Ban Class.2

25

26

2 The Court will not tolerate the Government using this Order to withhold swaths of

information that is discoverable. The Court notes that information relevant to the Muslim Ban

27 Class is most likely relevant to the two certified classes, as well as the named plaintiffs who

ORDER- 8

Case 2:17-cv-00094-RAJ Document 148 Filed 04/11/18 Page 9 of 11

1

Defendants also object to these RFPs because they claim that searching for

2 documents at ICE “is not proportional to the needs of this case,” especially in light of

3 ICE’s non-party status. Id. at 13. But the RFPs do not ask Defendants to search for

4 records “at ICE.” See Dkt. # 112 at 21, 25-26; see also Dkt. # 122 at 9 (stating that

5 Plaintiffs are inquiring into documents that are in the possession, custody, or control of

6 DHS). Plaintiffs are seeking documents within Defendants’ control that reference certain

7 programs that are promulgated or maintained by ICE. Any relevant documents within

8 Defendants’ possession, custody, and control must be produced.

9

C. Protective Order

10

The Government argues that a more robust protective order must be in place

11 before it will produce the class list to Plaintiffs. Dkt. # 126. In support of its argument,

12 the Government contends that disclosure “risks prejudice to national security and

13 intelligence interests.” Id. at 3. But the risks cited by the Government are vague and

14 speculative—there is no evidence that any individuals on the class list are or were

15 subjects of investigations or are, generally, “bad actors.” Id. Furthermore, any sensitive

16 information on the class list is subject to the existing protective order. To be sure, the

17 Government creates scenarios in which Plaintiffs may violate the spirit of the protective

18 order. Id. at 6. The Court warns Plaintiffs that should they attempt to purposely and

19 improperly disclose information subject to the protective order, then the Court may issue

20 sanctions, which may include dismissal of this matter.

21

The Court does not find that the Government has supported its argument that the

22 class list, generally, must be subject to an “attorney eyes only” provision. However, the

23 Court recognizes that potential national security risks may exist as to specific individuals;

24 the burden is on the Government to make such case-by-case determinations. Any

25

26 would have represented the Muslim Ban Class. Plaintiffs should not be forced to file yet another
27 motion to compel in the event that the Government purposely withholds such information.

ORDER- 9

Case 2:17-cv-00094-RAJ Document 148 Filed 04/11/18 Page 10 of 11

1 determinations must be made with sufficient detail and specificity. Such determinations

2 and the individuals to which they apply must be protected by the “attorney eyes only”

3 protections described by the Government in its brief. Dkt. # 126. Any such

4 determinations must be produced to Plaintiffs’ counsel—with the understanding that this

5 information is considered “attorney eyes only”—within fourteen (14) days from the date

6 of this Order. The remaining portion of the class list must be produced at the same time,

7 subject to the existing protective order, Dkt. # 86.

8

D. Status Reports (Dkt. ## 124, 125, 130, 132)

9

The Court is in receipt of the parties’ status reports. Dkt. ## 124, 125, 130, 132.

10 The Court is concerned with the Government’s behavior in this matter. Based on the

11 record before it, the Court finds reason to believe that the Government is purposely

12 obstructing and hindering the discovery process in this lawsuit.

13

There is already a pending motion for sanctions in this matter regarding the

14 Government’s discovery behavior. Dkt. # 137. As previously noted, the Government

15 must cease its delay tactics in the discovery practice. These tactics do nothing more than

16 unduly delay the production of documents it is obligated to produce. Unless the

17 Government has a credible basis to assert a claim of privilege, it should fully abide by the

18 rules of timely disclosure.

19

The Court has repeatedly explained to the Government that orders from the federal

20 bench are mandatory, not voluntary. See, e.g., Dkt. ## 115, 121 (hearing and hearing

21 transcript regarding discovery disputes). The executive branch does not stand alone in

22 the federal system; the Government may not usurp the judicial branch and decide for

23 itself when or if it will produce documents. The Court has no patience for Defendants’

24 apparent disregard for the discovery process and for its attorneys’ inappropriate actions in

25

26

27

ORDER- 10

Case 2:17-cv-00094-RAJ Document 148 Filed 04/11/18 Page 11 of 11

1 furthering and participating in such behavior.3 The Court hopes to proceed to the merits

2 in this matter rather than interminably remain in this morass of unnecessary delays and

3 discovery disputes.

4

IV. CONCLUSION

5

For the foregoing reasons, the Court grants in part and denies in part the motions.

6 Dkt. ## 109, 111, 126.

7

8

Dated this 11th day of April, 2018.

9

10 11

A

12

The Honorable Richard A. Jones

United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

3 Attorneys appearing in the Western District of Washington must be familiar with the

Washington Rules of Professional Conduct (“RPC”). Local Rules W.D. Wash. LCR 83.3(a)(2).

26 These include RPC 3.3 and 3.4, which aim to prevent “conduct that undermines the integrity of

the adjudicative process.” WA R RPC 3.3. Attorneys’ duty to advocate for their clients “is 27 qualified by the advocate’s duty of candor to the tribunal.” Id.

ORDER- 11

 
 Case 2:17-cv-00094-RAJ Document 159 Filed 04/23/18 Page 1 of 2

1

HONORABLE RICHARD A. JONES

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 9

10

ABDIQAFAR WAGAFE, et al.,

11

Plaintiffs,

CASE NO. C17-94 RAJ

12 v.
13

ORDER

14

DONALD TRUMP, President of the

United States, et al.,

15

Defendants. 16

17 This matter comes before the Court on Defendants’ emergency motion for stay
18 pending appellate review. Dkt. # 156. Plaintiffs oppose the motion. Dkt. # 157.
19 Defendants filed this motion to dispute a portion of the Court’s April 11, 2018
20 Order. Dkt. # 148. On April 12, 2018, subsequent to entering that Order, the Court held
21 a telephonic hearing involving counsel for both parties. Dkt. # 149. Defendants did not
22 mention that the Court’s Order, entered the previous day, created an emergency situation.
23 Neither did Defendants object—indeed, they agreed—when the Court set a specific
24 briefing schedule. Defendants did not indicate that any other matter required immediate
25 attention. As of April 11 and 12, 2018, Defendants were aware that they were obligated
26 to produce the class list by April 25, 2018. Dkt. # 148 at 10.
27

ORDER- 1

Case 2:17-cv-00094-RAJ Document 159 Filed 04/23/18 Page 2 of 2

1

Defendants waited nine days after the Court’s Order to file their emergency

2 motion. They filed the motion at 4:19 p.m. P.D.T. on Friday, April 20, 2018, and

3 requested a ruling by 5:00 p.m. P.D.T. on Monday, April 23, 2018. Dkt. # 156. Such

4 tactics—filing an emergency motion more than one week after the event creating the

5 apparent emergency and directing the Court to make a determination within one business

6 day—are unprecedented in this District. Defendants offer no authority for the

7 proposition that the Government may set any such deadlines for federal courts to make

8 their determinations.

9

Defendants’ emergency claim renews the Court’s concern about Defendants’

10 litigation strategy. The Court would expect at a minimum, proper notice, an opportunity

11 to respond, and certainly a reasonable opportunity to rule. This Court is more than

12 willing to respond to emergency matters, but the record does not support this issue

13 constituting an emergency. In the interest of avoiding further delay, and having now

14 received Plaintiffs’ response, the Court will make a determination as to the motion’s

15 merits on Tuesday, April 24, 2018.

16

Dated this 23rd day of April, 2018.

17

18

A

19

20

The Honorable Richard A. Jones United States District Judge

21

22

23

24

25

26

27

ORDER- 2

 
 Case 2:17-cv-00094-RAJ Document 162 Filed 04/24/18 Page 1 of 4

1

HONORABLE RICHARD A. JONES

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 9

10

ABDIQAFAR WAGAFE, et al.,

11

Plaintiffs,

CASE NO. C17-94 RAJ

12 v.
13

ORDER

14

DONALD TRUMP, President of the

United States, et al.,

15

Defendants. 16

17 This matter comes before the Court on Defendants’ emergency motion for stay
18 pending appellate review. Dkt. # 156. Plaintiffs oppose the motion. Dkt. # 157.
19 I. BACKGROUND
20 Despite the Court’s orders, the Government maintains its refusal to produce the
21 class list to Plaintiffs. This dispute has been pending since Plaintiffs’ August 1, 2017
22 discovery requests, in which Plaintiffs sought the class list. Dkt. ## 91, 92. Plaintiffs
23 filed a motion to compel, and on October 19, 2017, the Court granted it in part, requiring
24 the Government to produce the class list. Dkt. # 98. On November 2, 2017, the
25 Government moved for reconsideration, which the Court denied. Dkt. ## 99, 102. But
26 the Government did not produce the class list.
27

ORDER- 1

Case 2:17-cv-00094-RAJ Document 162 Filed 04/24/18 Page 2 of 4

1

On February 8, 2018, Plaintiffs filed another motion to compel the class list. Dkt.

2 # 109. On February 13, 2018, the Government agreed to produce “a copy of the list of

3 each potential class member by March 5, 2018,” but reserved the right to seek further

4 relief if necessary. Dkt. # 114. On February 14, 2018, the Court held a hearing regarding

5 the outstanding discovery issues. Dkt. # 115.

6

On March 1, 2018, the Government moved for a protective order with regard to

7 producing the class list. Dkt. # 126. On March 5, 2018, the Government produced a

8 redacted version of the class list to Plaintiffs. Dkt. # 127 at 7. On April 11, 2018, the

9 Court denied the Government’s motion for a protective order to the extent that all names

10 must be produced on the basis of “attorney eyes only.” Dkt. # 148. However, the Court

11 offered the Government an alternative: the Government could produce the class list under

12 the current stipulated protective order, or, it could make case-by-case determinations with

13 regard to names it refused to provide, see Al Haramain Islamic Found., Inc. v. U.S. Dept.

14 of Treasury, 686 F. 3d 965, 984 (9th Cir. 2012) and Latif v. Holder, 28 F. Supp. 3d 1134,

15 1162 (D. Or. 2014), and produce such information under the “attorney eyes only”

16 provision that it requested. Id. Either way, the Court required the Government to

17 produce the class list or the case-by-case determinations by April 25, 2018. Id. The

18 Government did not raise objections to this Order until filing an emergency motion on

19 April 20, 2018. Dkt. # 156.

20 II. DISCUSSION

21

Although the instant motion is styled as an emergency motion to stay, the Court

22 finds it more appropriate to consider the motion as one for reconsideration of its April 11,

23 2018 Order. See Local Rules W.D. Wash. LCR 7(h). The Government seeks

24 reconsideration of the portion of the Court’s Order requiring the Government to produce

25 the unredacted class list or to produce case-by-case determinations of the individuals for

26 whom production would create a national security concern. Dkt. # 156. However, the

27 Government grossly misreads the Court’s Order as “creat[ing] a new harm.” Dkt. # 156-

ORDER- 2

Case 2:17-cv-00094-RAJ Document 162 Filed 04/24/18 Page 3 of 4

1 2 (Renaud Decl.) at ¶ 9. The Court did not order the Government to produce the case-by-

2 case information unless it continued to refuse to produce the class list under the current

3 stipulated protective order—something that the Court had ordered the Government to do

4 months earlier. The Government is under no obligation to produce this information to

5 Plaintiffs if it simply abides by the Court’s prior orders to produce the class list.

6 Importantly, the issue continues to be that the Government claims vague and speculative

7 national security threats when such general statements are not sufficient. Hawaii v.

8 Trump, 878 F.3d 662, 699 (9th Cir. 2017). “Everyone agrees that the Government’s

9 interest in combating terrorism is an urgent objective of the highest order.” Holder v.

10 Humanitarian Law Project, 561 U.S. 1, 28 (2010). Indeed, “no governmental interest is

11 more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307

12 (1981). But national security “cannot be used as a ‘talisman ... to ward off inconvenient

13 claims.’” Hawaii, 878 F.3d at 699.

14

It appears that the parties and the Court will never move past the endless cycle of

15 motions to compel, motions to reconsider, and the Government’s ultimate refusal to

16 produce the compelled documents. The Court maintains that, based on the record before

17 it, wholesale production of the class list under a more robust protective order is

18 unnecessary. At each junction, the Government has failed to present facts or arguments

19 that are meaningfully new or different that could not have been previously raised with

20 regard to its general “national security threat” arguments. The Government’s opposition

21 continues to be rooted in its fundamental disagreement with the Court’s determinations.

22 Such disagreement does not amount to manifest error. LCR 7(h) (moving parties carry

23 the burden to show manifest error when seeking reconsideration of a prior order).

24

The Court acknowledges that potential national security threats may exist with

25 regard to specific individuals on the class list. Rather than provide case-by-case

26 determinations to Plaintiffs, the Court will give the Government an opportunity to file a

27 sampling of such determinations in camera with the Court. The Court requires the

ORDER- 3

Case 2:17-cv-00094-RAJ Document 162 Filed 04/24/18 Page 4 of 4

1 Government to identify the total number of potential class members to the Court. The

2 Court then requires a random sampling of these members with explanations why their

3 names may not be produced to Plaintiffs. See, e.g., Latif, 28 F. Supp. 3d at 1162

4 (“Defendants must make such a determination on a case-by-case basis including

5 consideration of, at a minimum, the factors outlined in Al Haramain; i.e., (1) the nature

6 and extent of the classified information, (2) the nature and extent of the threat to national

7 security, and (3) the possible avenues available to allow the Plaintiff to respond more

8 effectively to the charges.”). The Court requests at least fifty records from this random

9 sample. The Government must file these case-by-case determinations with the Court

10 within seven (7) days from the date of this Order. The Court will reserve ruling on this

11 motion for reconsideration pending review of the Government’s samples.

12

The Court finds it appropriate to stay the April 25, 2018 deadline to produce the

13 unredacted class list until the Court has ruled on the motion for reconsideration. No other

14 discovery deadlines are stayed.

15

16

Dated this the 24th day of April, 2018.

17

18

A

19

20

The Honorable Richard A. Jones United States District Judge

21

22

23

24

25

26

27

ORDER- 4

 
 Case 2:17-cv-00094-RAJ Document 174 Filed 04/30/18 Page 1 of 17

1 The Honorable Richard A. Jones
2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

11 ABDIQAFAR WAGAFE, et al., 12
Plaintiffs, 13
v. 14
15 DONALD TRUMP, President of the United States, et al.,
16 Defendants.
17

No. 2:17-cv-00094-RAJ
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE
NOTE ON MOTION CALENDAR: MAY 4, 2018

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (2:17-cv-00094-RAJ)

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 514-3309

Case 2:17-cv-00094-RAJ Document 174 Filed 04/30/18 Page 2 of 17

1

INTRODUCTION

2 Plaintiffs challenge Defendants’ invocation of the deliberative process privilege on the
3 grounds that the privilege is inapplicable in this case because the government’s intent is at issue,
4 that the privilege must yield because Plaintiffs’ need outweighs Defendants’ non-disclosure
5 interests, and that Defendants did not properly invoke the privilege. The deliberative process
6 privilege is a critical protection to enable effective governmental decision-making, and it would
7 be highly unusual to pierce it based upon the generalized showing made by Plaintiffs. Indeed,
8 Plaintiffs must make a strong showing of malfeasance to probe the mental processes of agency
9 decisionmakers. This they have not done. Moreover, a fundamental problem with Plaintiffs’
10 argument for piercing the privilege is that their allegations of discriminatory conduct are made
11 exclusively in counts 2, 3, and 6, which challenge two Executive Orders no longer in force—not
12 CARRP, which has been in existence since 2008. Further, Plaintiffs are mistaken that their need
13 for privileged material outweighs the government’s interest in non-disclosure, and that
14 Defendants have not properly invoked the privilege.
15

16

PROCEDURAL HISTORY

17

At the time that Plaintiffs initially challenged Defendants’ assertion of the deliberative

18 process privilege, eight production volumes by Defendants were at issue. See Decl. of Joseph F.

19 Carilli (“Carilli Decl.”) at ¶ 3 (attached hereto as Ex. 1). Defendants have produced privilege

20 logs for each document production.1 Id. at ¶ 4. Defendants’ document production in this matter

21 continues bi-weekly. On March 7, 2018, via telephone conference, Plaintiffs categorically

22 challenged Defendants’ claim of the deliberative process privilege. Id. at ¶ 5. Defendants asked

23 Plaintiffs to identify the specific documents for which Plaintiffs were challenging the claim of

24 privilege, but Plaintiffs declined to do so. Id. Plaintiffs then moved to compel. Id.

25 LEGAL STANDARD
26

27

28

1 Plaintiffs understate the number of privilege logs produced. See Dkt. 152 at 2. At present, Defendants have produced privilege logs for Defendant USCIS 001 through USCIS 008. Ex. 1 at ¶ 4. Privilege logs for Defendant

USCIS 009 and 010 are forthcoming.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (2:17-cv-00094-RAJ) - 1

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 514-3309

Case 2:17-cv-00094-RAJ Document 174 Filed 04/30/18 Page 3 of 17

1 The deliberative process privilege protects the government’s decision-making process by

2 shielding from disclosure documents “reflecting advisory opinions, recommendations and

3 deliberations comprising part of a process by which governmental decisions and policies are

4 formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). “[P]redecisional” and

5 “deliberative” materials are shielded from disclosure. See Renegotiation Bd. v. Grumman

6 Aircraft Eng'g Corp., 421 U.S. 168, 184 (1975); Klamath Water Users Protective Ass'n v. Dep't

7 of the Interior, 189 F.3d 1034, 1043 (9th Cir. 1999), aff'd, 532 U.S. 1 (2001); In re Sealed Case,

8 121 F.3d 729, 735-36 (D.C. Cir. 1997) (citing cases). A document is “predecisional” if it

9 precedes a final agency decision or policy, and is “deliberative” if reflects the process by which a

10 decision or policy was formulated. See Dep’t of Interior v. Klamath Water Users Protective

11 Ass'n, 532 U.S. 1, 8-9 (2001); National Wildlife Fed’n v. United States Forest Service, 861 F.2d

12 1114, 1117 (9th Cir. 1988).

13 The deliberative process privilege is qualified, and may not apply where, upon balancing,

14 the court determines a party’s need for privileged material outweighs the government’s interest

15 in non-disclosure. See FTC v. Warner Commc'ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). A

16 court must balance several factors, including: (1) the relevance of the evidence; (2) the

17 availability of other evidence; (3) the government’s role in the litigation; and (4) the extent to

18 which disclosure would hinder frank and independent discussion regarding contemplated policies

19 and decisions. Id.

20 ARGUMENT
21

22 A.

Plaintiffs Apply the Wrong Standard to Pierce the Privilege Based on Alleged Government Misconduct and Do Not Satisfy the Proper Standard.

23 Plaintiffs seek to pierce the deliberative process privilege with regard to every document
24 produced thus far, without any individualized showing of need with respect to those materials.
25 Their argument relies wholly on In re Subpoena Duces Tecum Served on Office of Comptroller
26 of Currency, 145 F.3d 1422 (D.C. Cir. 1998), on reh’g in part, 156 F.3d 1279 (D.C. Cir. 1998).
27 See Dkt. 152 at 3-7. The court in In re Subpoena ordered disclosure of deliberative process-
28 protected documents, declining to apply the privilege to certain materials of the FDIC, the

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (2:17-cv-00094-RAJ) - 2

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 514-3309

Case 2:17-cv-00094-RAJ Document 174 Filed 04/30/18 Page 4 of 17

1 Federal Reserve Board, and the Comptroller of the Currency, in light of the movant’s allegation
2 of bad faith cooperation between the agencies. Id. at 1425 (“If the plaintiff’s cause of action is
3 directed at the government’s intent, [] it makes no sense to permit the government to use the
4 privilege as a shield.”).
5 Applying In re Subpoena, Plaintiffs contend that “Defendants’ decision-making process
6 is central to this case” given Plaintiffs’ allegation that “Defendants created an extra-statutory
7 internal vetting program that discriminates on the basis of religion and/or national origin[.]” Dkt.
8 152 at 10. But the special rule of In re Subpoena applied where Congress had specifically 9 enacted a statute that “requires a showing of the government’s intent” and “the cause of action is 10 directed at the agency’s subjective motivation.” 145 F.3d at 1425 n.2. That special rule does not 11 apply in challenges to administrative action under the APA, as the D.C. Circuit acknowledged on 12
rehearing. In re Subpoena Duces Tecum Served on the Comptroller of the Currency, 156 F.3d 13
1279, 1279 (D.C.Cir.1998) (on petition for reh'g) (In re Subpoena standard does not apply in 14
APA case); see Georgia Aquarium, Inc. v. Pritzker, 134 F. Supp. 3d 1374, 1380 (N.D. Ga. 2014) 15
(same); Arizona Rehab. Hosp., Inc. v. Shalala, 185 F.R.D. 263, 267 (D. Ariz. 1998) (to apply In 16
re Subpoena and “find the privilege does not exist in this APA challenge would undermine the 17
very basis for its existence”); Pub. Employees for Envtl. Responsibility v. Beaudreu, No. CV 1018
1073, 2013 WL 12193038, at *4 (D.D.C. May 16, 2013). A much higher bar is set in this context 19
to inquire into the subjective motivation that underlies agency actions. In the context of a case 20 like this one, the Supreme Court has explained that “there must be a strong showing of bad faith 21 or improper behavior before [inquiry into the mental processes of the administrative 22 decisionmaker] may be made.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 23 (1971) (emphasis added); see In re Subpoena, 156 F.3d at 1279 (must be “showing of bad faith 24
or improper behavior” under Citizens to Preserve Overton Park to inquire into decisionmaking 25 process).2 Plaintiffs have not made such a showing here. 26

27
2 Relatedly, the Supreme Court also has held that, “in the absence of clear evidence to the contrary, courts presume

28 that [Executive Branch officials] have properly discharged their official duties,” and must apply “rigorous
standard[s] for discovery in aid of” discriminatory enforcement claims. United States v. Armstrong, 517 U.S. 456,

464, 468.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (2:17-cv-00094-RAJ) - 3

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 514-3309

Case 2:17-cv-00094-RAJ Document 174 Filed 04/30/18 Page 5 of 17

1 Plaintiffs showing also fails even under the erroneous In re Subpoena test. First,

2 Plaintiffs have not alleged discriminatory intent or misconduct specific to the CARRP,

3 independent of the Executive Orders. Relatedly, they do not identify a discrete factual basis to

4 pierce the privilege.

5

1. Plaintiffs do not challenge the government’s intent in connection with the

6

bulk of documents produced

7

The Second Amended Complaint does not allege discriminatory intent with respect to

8 CARRP or the CARRP decision-making process. The allegations of discriminatory intent in the

9 complaint (in counts Two, Three, and Six)3 all relate to the 2017 Executive Orders issued nine

10 years after U.S. Citizenship and Immigration Services (“USCIS”) began using CAARP.4

11 Moreover, Plaintiffs’ motion to compel highlights their misplaced reliance on the Executive

12 Orders for their intent-based arguments. From among the paragraphs Plaintiffs cite in their

13 motion to try to show that discriminatory intent is at issue here, four of five relate to the

14 Executive Orders. See Dkt. 152 at 6 (citing Dkt. 47 at ¶¶ 268, 269, 271, 272). Although the fifth

15 paragraph refers to CARRP, that paragraph merely alleges that CARRP “labels applicants

16 national security concerns” using criteria that “turn on national origin.” That allegation makes an

17 objective claim about the criteria used to designate a person a “national security concern,” does

18 not allege discriminatory intent in the creation or execution of CARRP, and does not substantiate

19 the conclusory and erroneous claim that CARRP subjects are selected based upon national

20 origin. See Dkt. 152 at 6 (citing Dkt. 47 at ¶ 76). In short, Plaintiffs attempt to use allegations

21 about the intent motivating the Executive Orders to bootstrap their argument that the Court

22 should pierce the privilege over documents relating to CARRP, as to which they have not alleged

23 discriminatory intent.5

24
3 Count Two alleges Defendants interpret the First and Second EOs “to authorize the suspension of immigration
25 benefit applications [of the named Plaintiffs] and reiterates Defendants’ “statutory and constitutional duty to
adjudicate . . . in a nondiscriminatory manner.” See Dkt. 47 at ¶¶ 254-59. Count Three alleges that the intent behind
26 the EOs is to “target a specific religious faith” in violation of the First Amendment’s Establishment Clause. Id. at ¶¶
260-61. Count Six alleges Defendants suspended adjudication of benefit applications based on country of origin
27 with a “discriminatory animus and discriminatory intent.” Id. at ¶¶ 267-72.

28 4 USCIS began using CARRP in 2008; the Executive Orders in question issued in 2017. See Dkt. 47 at ¶ 10.
5 Prior to issuance of either Executive Order, Plaintiffs never questioned the government’s “intent” as a basis for Plaintiffs’ challenge to CARRP. Compare Dkt. 1 (lacking discrimination allegations) with Dkts. 17, 47 (alleging,

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (2:17-cv-00094-RAJ) - 4

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1

Defendants’ document production to date primarily relates to CARRP documents.6

2 Because these documents do not concern to the Executive Orders, they do not relate to Plaintiffs’

3 allegations concerning Defendants’ intent. As such, even applying the erroneous logic of In re

4 Subpoena, Plaintiffs’ allegations of discriminatory intent do not suffice to permit piercing the

5 deliberative process privilege with respect to the documents at issue here.

6 Defendants also submit that to the extent this Court wants to consider the need to pierce

7 the deliberative privilege based upon the two executive orders, that would also not be warranted,

8 and the Court should await the ruling of the Supreme Court in Trump v. Hawaii. That case is

9 addressing related claims that the travel proclamation – issued after the two executive orders –

10 was motivated by an improper animus and will therefore provide significant guidance in this

11 area. See Trump v. Hawaii, No. 17-965 (S. Ct.) (argued Apr. 25, 2018).

12

2. Plaintiffs do not meet the standard for piercing the deliberative process

13

privilege

14

Even in non-APA cases where a party seeks to disclose of deliberative process-privileged

15 material based on alleged misconduct, Plaintiffs must identify “a discrete factual basis for the

16 belief that ‘the deliberative information sought may shed light on government misconduct.’” See

17 Alexander v. F.B.I., 186 F.R.D. 154, 164–65 (D.D.C. 1999) (quoting In re Sealed Case, 121 F.3d

18 729, 746 (D.C. Cir. 1997)); see also Landry v. F.D.I.C., 204 F.3d 1125, 1136 (D.C. Cir. 2000) 19 (upholding application of the deliberative process privilege and declining to find waiver where

20 plaintiff “ma[de] no credible claims that improper factors motivated [the] enforcement action”).

21 Plaintiffs do not do so and therefore do not meet the standard to pierce the privilege.

22

23

24 among other things, “intent” to “target a specific religious faith” while preferring others; violation of the

Establishment Clause “by not pursuing a course of neutrality with regard to different religious faiths;” and
25 “discriminatory animus” and “discriminatory intent” to suspend benefits adjudications based on “country of

origin”).
26
6 Of the 2,456 documents produced in volumes USCIS 001 through USCIS 008, 459 documents were responsive to

27 Plaintiffs’ requests for production for documents related to E.O. 13769 and E.O. 13780. See Ex. 1, ¶ 6b. Of those
459 documents, Defendants claimed the deliberative process privilege over 75 documents, and only 70 documents

28 relate to USCIS actions under E.O. 13769 and E.O. 13780. See id., ¶ 6e. These 70 EO-related documents represent
merely 9.7% of Defendants’ deliberative process claims in production volumes USCIS 001 through USCIS 008. See

id., 6b,e.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (2:17-cv-00094-RAJ) - 5

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1 As explained above, the documents Defendants have produced are predominantly

2 CARRP-related. Accordingly, the complaint must meet the piercing standard as to the CARRP-

3 specific allegations. The complaint, however, identifies no “discrete factual basis” specific to

4 CARRP and independent of the Executive Orders to support the claim that the privileged

5 materials will “shed light” on discriminatory animus as a motivating factor for USCIS’s adoption

6 of CARRP. See generally Dkt. 47.

7 In an effort to remedy this lack of a discrete showing, Plaintiffs’ motion attempts to read

8 allegations into the complaint that are not present. For example, to “shed light on whether

9 discriminatory animus motivated [Defendants’] enactment of CARRP,” Plaintiffs argue the

10 privileged documents they seek “are clearly relevant to Plaintiffs’ claims that Defendants

11 violated the First Amendment and the Equal Protection Clause.” See Dkt. 152 at 8. Plaintiffs’

12 First Amendment and Equal Protection Clause claims (Counts Three and Six), however, lack any

13 reference to CARRP. See Dkt. 47 at ¶¶ 260-61, 267-72. These claims instead cite the “First EO”

14 and “Second EO” as examples of intentional targeting of a specific religious faith, with no

15 explanation of whether CARRP is a part of this alleged targeting and, if so, how CARRP is a

16 part of it.7 And with respect to the two Executive Orders – which have limited relevance to this

17 suit – plaintiffs have not identified the sort of discrete factual basis for misconduct that justifies

18 piercing the privilege. The Court should also await the Hawaii ruling before addressing that

19 claim. In sum, Plaintiffs have not identified a discrete factual basis showing that the deliberative

20 material they seek would shed light on government misconduct.

21 B. The Balancing Approach is the More Reasoned Approach to Application of the

22

Deliberative Process Privilege

23

We have shown there no “strong showing of bad faith” here (Citizens to Preserve

24 Overton Park, 401 U.S. at 420, and no “discrete factual basis” to conclude that deliberative

25 material would reveal misconduct (Sealed Case, 121 F.3d at 746). Further, the balancing

26

27

28

7 The other counts lack allegations of intent or motive, alleging arbitrary and capricious action, unauthorized suspension of adjudication in violation of due process, unreasonable delay, failure to provide a notice and comment

period, and creation of ultra vires naturalization requirements.

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1 approach articulated by the Ninth Circuit also weighs against piercing the privilege. See Warner,

2 742 F.2d at 1161.

3

1. This Court should apply FTC v. Warner Commc'ns Inc., 742 F.2d 1156 (9th

4

Cir. 1984), rather than the D.C. Circuit’s approach in In re Subpoena

5

The Ninth Circuit has not adopted In re Subpoena,8 and Defendants are unaware of any

6 other circuit decision requiring the privilege to yield simply upon a party’s challenge to

7 government intent in the decision-making process.9 Instead, the great weigh of authority,

8 including Citizens to Preserve Overton Park and Sealed Case, weigh strongly in the other

9 direction, first requiring some affirmative showing of misconduct when that is the basis for the

10 claim that the privilege should be pierced. Significantly, the Court of Federal Claims directly

11 eschews the D.C. Circuit’s approach of automatically piercing the deliberative process privilege

12 where government intent is relevant to the claim. First Heights Bank, FSB v. United States, 46

13 Fed. Cl. 312, 322 (2000) (applying a balancing approach weighing evidentiary need against

14 potential harm from disclosure and “declin[ing] to follow the reasoning of In re Subpoenas [sic]

15 to the extent that it supports an automatic bar on assertions of deliberative process privilege in

16 any case where the Government’s intent is potentially relevant.”). In First Heights, the plaintiffs

17 challenged government actions pursuant to federal financial assistance agreements, alleging that

18 certain losses incurred by the plaintiffs resulted from an intentional government effort to

19 minimize government losses. Id. Despite allegations implicating government intent, the Federal

20 Circuit balanced plaintiffs’ need for the documents against potential harm to the government

21 from disclosure, piercing the deliberative process privilege only upon finding the government

22 failed to “articulate[] any specific or significant harm that would result from disclosure[.]” Id. at

23 322.

24

25
8 Plaintiffs effectively acknowledge no other circuit has adopted the In re Subpoena approach. See Dkt. 152 at 4.

26 9 In re Sealed Case cited Texaco Puerto Rico, Inc. v. U.S. Dep’t of Consumer Affairs, 60 F.3d 867, 885 (1st Cir.

1995) in support of the “routine” denial of the deliberative process privilege. But that case applied a balancing test
27 and cited the “district court’s warranted conclusion that [the agency] acted in bad faith over a lengthy period of

28

time.” Id. The cases cited by Texaco applied similar scrutiny rather than rejecting the privilege as a matter of routine. See In re Franklin Nat’l Bank Secs. Litig., 478 F.Supp. 577, 582 (E.D.N.Y. 1979), and Bank of Dearborn v.

Saxon, 244 F. Supp. 394, 402-03 (E.D. Mich. 1965), aff'd on other grounds, 377 F.2d 496 (6th Cir. 1967).

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (2:17-cv-00094-RAJ) - 7

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1 Other courts have likewise declined to follow In re Subpoena’s approach, even where bad

2 intent or misconduct is alleged. In Jones v. Hernandez, as Plaintiffs explain, the court noted that

3 the privilege may be pierced if “there is reason to believe” government misconduct is at issue.

4 See Dkt. 152 at 4 (citing Jones v. Hernandez, No. 16-CV-1986-W (WVG), 2017 WL 3020930, at

5 *3 (S.D. Cal. July 14, 2017)). But unlike In re Subpoena, Jones does not automatically bar

6 deliberative process protection upon allegations of bad intent or misconduct in agency

7 deliberations. Rather, Jones merely acknowledges there are “certain circumstances” that “may”

8 warrant denial of deliberative process protection. Id. Significantly, despite allegations of

9 retaliatory agency decision-making, the Jones court ultimately reviewed the subject emails in

10 camera, weighed the need for the information against the interest in non-disclosure, and found

11 the privilege shielded the material. Id. at *3-6.

12 Similarly, in Thomas v. Cate, also cited by Plaintiffs, see Dkt. 152 at 4, the court opted

13 against application of In re Subpoena’s automatic bar to the deliberative process privilege where

14 misconduct is alleged, and conducted a balancing test despite allegations of misconduct in the

15 government’s decision-making process. Thomas v. Cate, 715 F. Supp. 2d 1012, 1024 (E.D. Cal.

16 2010) (“Once a litigant makes a prima facie showing sufficient to call the decision-making

17 process into issue, the litigant may be entitled to discovery of information that reveals the

18 deliberative and mental processes of the administrative actor, subject to the balance of interests

19 between the parties.”).

20

While the Ninth Circuit has not, to Defendants’ knowledge, ever ruled on the

21 applicability of In re Subpoena, its decision in Warner, which requires a four-part balancing test,

22 is directly inconsistent with the approach taken in In Re Subpoena. And as we have explained,

23 the D.C. Circuit and the Supreme Court have held that an even higher threshold should apply

24 when the goal is to look behind the stated reasons for an agency decision based on allegations of

25 bad faith. Consequently, considering the national security and investigatory interests at stake

26 here, this Court should reject an automatic bar to deliberative process protection based on the

27 inclusion of certain purportedly talismanic words in a complaint. Instead, this Court should apply

28

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1 the Warner approach, which calls for a more nuanced balancing of an articulated need for the

2 documents against the government’s non-disclosure interests. Warner, 742 F.2d at 1161.

3

2. The Warner balancing approach favors application of the deliberative

4

process privilege

5

As we explained before, under basic administrative law principles, a “strong showing of

6 bad faith or improper behavior” is required before it would be appropriate to probe the intent of

7 decisionmakers. Citizens to Preserve Overton Park, 401 U.S. at 420 (1971). But even applying

8 the Warner balancing approach, which weighs Plaintiffs’ need for the privileged material against

9 the government’s interest in non-disclosure, the factors counsel against disclosure. See Warner,

10 742 F.2d at 1161.

11

The first factor to consider is the relevance of the documents sought. Plaintiffs argue that

12 “records describing Defendants’ deliberations would shed light on whether discriminatory

13 animus motivated their enactment of CARRP and any successor ‘extreme vetting’ programs.”

14 Dkt. 152 at 8. But Plaintiffs cannot demonstrate the relevance of the deliberative process-

15 privileged material Defendants have withheld to date because, as noted above, the Plaintiffs do

16 not allege discriminatory intent in the CARRP-related counts of the SAC.10

17

The second and third factors are the availability of other evidence and the government’s

18 role in the litigation. Defendants acknowledge they possess the bulk of CARRP documents.11 19 And, because USCIS created CARRP, the government’s role in this litigation is significant, yet,

20 Plaintiffs do not demonstrate bad intent or misconduct by Defendants as to the CARRP policy.

21

22 10 As to assertions of privilege specific to documents within “named Plaintiffs’ A-files,” see Dkt. 152 at 2, two
additional relevance arguments tip the balance strongly in favor of preserving the privilege. Plaintiffs claim their
23 case is a global challenge to the lawfulness of CARRP and any successor program. Dkt. 58 (Plaintiff’s Opposition to
Motion to Dismiss) at 24 (“Plaintiffs, however, ‘do not seek damages for specific acts of discrimination against
24 themselves,’ but rather ask only that the Court review the legality of CARRP against requirements dictated by
Congress in the INA.”). The Court has adopted this global approach, minimizing the importance in this litigation of
25 discrete facts specific to individual class members’ applications. E.g., Dkt. 69 (Order) at 27 (“The common question
here is whether CARRP is lawful. The answer is ‘yes’ or ‘no.’ The answer to this question will not change based on
26 facts particular to each class member, because each class member’s application was (or will be) subjected to
CARRP.”). In light of the broad, nationwide challenge Plaintiffs mount through their global focus on CARRP’s
27 lawfulness, documents addressing facts particular to an individual class member are of marginal importance under
Rule 26 because such documents are not relevant to Plaintiffs’ global-oriented approach described above.
28 11 It is important to note, however, that Plaintiffs have obtained a significant amount of material through the FOIA
process and other litigation. See Dkt. 47 at ¶ 59.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (2:17-cv-00094-RAJ) - 9

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1 The fourth factor to consider is the extent to which disclosure would hinder frank and

2 independent discussion regarding contemplated policies and decisions. Of the four Warner

3 factors, the Ninth Circuit has held this fourth factor the most significant, and it weighs

4 overwhelmingly against disclosure of the documents at issue here. See National Wildlife Fed’n.,

5 861 F.2d at 1117.12 Plaintiffs facially challenge, on various statutory and constitutional grounds,

6 the legality of USCIS’s procedures for handling the adjudication of immigration benefit

7 applications where there exits an articulable link between the applicant and a national security-

8 related inadmissibility ground. The Plaintiffs’ allegations about the illegality of CARRP do not

9 depend upon internal deliberations at USCIS or DHS concerning either the development of the

10 policy or its application in individual cases.

11

On the other hand, piercing the privilege for the documents at issue here, would directly

12 harm national security by revealing predecisional, deliberative advice, opinions, and

13 recommendations concerning important questions of policy affecting national security and the

14 proper application of the nation’s immigration laws. See Aff. of Matthew D. Emrich (“Emrich

15 Aff.”) at ¶ 6 (attached hereto as Ex. 2). The range of material is vast and includes, among other

16 things, reports, revisions to procedures, advisory panel materials, emails, and policy guidance.

17 Id. at ¶¶ 8-92. Disclosure of such material risks chilling future internal policy discussions that

18 require free and frank communication within the government. Id. at ¶ 6. Such direct harm to the

19 core government responsibility to protect its citizens should carry overwhelming weight.13

20

If, however, after requiring Plaintiffs to show a need for specific documents, rather than

21 allowing them to mount a global challenge regarding the privilege as applied to all documents,

22 the Court has any doubt about the application of the deliberative process privilege here, the Court

23 can, and should, review the documents in camera before piercing the privilege. Doing so will

24 allow it to make an accurate finding of whether the material warrants protection, and whether the

25

26 12 Plaintiffs also cite to “other factors” not identified in Warner but suggested by a by a district court in N. Pacifica,
LLC v. City of Pacifica, 274 F. Supp. 2d 1118, 1122 (N.D. Cal. 2003). Each of these additional factors either favors

27 the protection of the government’s national security information or effectively “double counts” arguments
articulated in one or more of Warner’s four factors. The Court therefore should ignore Pacifica’s “other factors.”
28 13 Plaintiffs argue the stipulated protective order provides adequate protection against disclosure. Dkt. 152 at 8. The
protective order, however, lacks even an “attorneys’ eyes only” provision and does not offer sufficient protection for

the national security and investigatory information revealed in the deliberations at issue. See Ex. 2 at ¶ 7.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (2:17-cv-00094-RAJ) - 10

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1 material would, in fact, reveal information relevant to Plaintiffs’ claims. See National Wildlife

2 Federation, 861 F.2d at 1116, 1123 (reviewing material in camera and finding it deliberative

3 process privileged); see also Judicial Watch, Inc. v. United States Department of State, 235 F.

4 Supp. 3d 310, 314 (D.D.C. 2017) (reviewing material in camera and, despite allegations of

5 government misconduct, finding it deliberative process privileged); Neighborhood Assistance

6 Corp. of America v. U.S. Dep’t of Housing and Urban Dev., 19 F. Supp. 3d 1, 21 (D.D.C. 2013)

7 (same). If the predecisional, deliberative material involved here does not reveal discriminatory

8 intent or bad faith, then the balance would clearly weigh in favor of upholding the privilege.

9

In sum, the very existence of the balancing approach demonstrates that litigation of

10 matters such as this is not such a zero-sum game. Upon conducting that balancing, the Court

11 should conclude that the government’s interest in non-disclosure far outweighs Plaintiffs need

12 for the privileged, deliberative, predecisional material at issue. Finally, if the Court were not able

13 to conclude that the balance weighs in favor of applying the privilege without reviewing the

14 material at issue, then the Court should review of the documents ex parte in order to properly

15 weigh the federal interests in non-disclosure against Plaintiffs’ purported need for the

16 information. The Court previously has recognized the possibility of undertaking such review.

17 See Feb. 14, 2018 Hearing Transcript at 11:18-19.

18 C. Defendants Have Complied with the Procedure for Asserting the Deliberative

19

Process Privilege

20

Plaintiffs argue that Defendants waived the deliberative process privilege by not

21 providing declaratory support at the time of production. Defendants acknowledge this Court’s

22 April 11 ruling addressing a similar issue with respect to the law enforcement privilege. The

23 productions here predated that ruling. Further, we submit that ruling is in error and will result in

24 a significant reduction in the ability to produce documents in the timeframes expected by the

25 Court and the Plaintiffs – as the agency declarant will now be a bottleneck before any production 26 can be made. This will soon become a very substantial bottleneck, as, to address Plaintiff’s 27 significant document discovery requests, Defendants have onboarded 10 full time contract 28 reviewers, and another 10 contract reviewers are slated to begin reviewing documents at a later

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (2:17-cv-00094-RAJ) - 11

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1 date. In addition, USCIS is adding 50-60 employees to spend part of their time conducting
2 document review for this case. That large number of reviewers will, we hope, help address the
3 concerns by the Court and the Plaintiffs regarding the speed of production – but that will not
4 work under this Court’s April 11 order, which will require a single official – the agency head –
5 to review every document that includes a privilege assertion before productions can be made.
6 In any event, it is well established that the submission of a supporting declaration is
7 appropriate when responding to a motion to compel. In re Sealed Case, 121 F.3d 729, 741 (D.C.
8 Cir. 1997) (“motion to compel was the first event which could have forced disclosure of the 9 documents,” and agency had no “obligation to formally invoke its privileges in advance of the 10 motion to compel.”); see also Huntleigh USA Corp. v. United States, 71 Fed. Cl. 726, 727 11 (2006); Abramson v. United States, 39 Fed. Cl. 290, 294 n.3 (1997). Defendants are filing with 12
this brief the affidavit of Matthew D. Emrich, see Ex. 2, formally invoking the deliberative 13
process privilege. Defendants initially withheld this information on a claim that it was privileged, 14
and identified to Plaintiffs via privilege logs a description of the material withheld and the basis 15
on which it was withheld. Once challenged on those claims by the Plaintiffs’ motion to compel, 16
Defendants have now formally asserted the privilege. Plaintiffs’ argument to the contrary lacks 17
merit. 18
As to the specificity of privilege log descriptions accompanying Defendants’ document 19
production, Plaintiffs similarly miss the mark by again relying on this Court’s previous order on 20 the sufficiency of Defendants’ law enforcement assertion. See Dkt. 152 at 12 (citing Dkt. 148 at 21 4). Defendants contend their privilege log entries adequately balance specificity against 22 disclosure concerns and this Court has not yet ruled on the sufficiency of Defendants’ privilege 23 log descriptions with respect to the deliberative process privilege. 24
CONCLUSION 25

26

For the foregoing reasons, the Court should deny Plaintiffs’ Motion to Compel Regarding

27 the Deliberative Process Privilege.

28

Dated: April 30, 2018

Respectfully submitted,

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (2:17-cv-00094-RAJ) - 12

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
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1 ANNETTE L. HAYES 2 United States Attorney

CHAD A. READLER Acting Assistant Attorney General

3 BRIAN C. KIPNIS Assistant United States Attorney

/s/ August Flentje AUGUST FLENTJE

4 Senior Litigation Counsel

Special Counsel

5

Office of the United States Attorney for the Western District of Washington

Civil Division U.S. Department of Justice

6 5220 United States Courthouse 700 Stewart Street
7 Seattle, Washington 98101-1271

950 Pennsylvania Ave., N.W. Washington, DC 20530 Telephone: (202) 514-3309

8

Telephone: (206) 553-7970 e-mail: brian.kipnis@usdoj.gov

E-mail: august.flentje@usdoj.gov

9

Counsel for Defendants

10

11

12

13

14

15

16

17

18

19

20

21

22

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24

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DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (2:17-cv-00094-RAJ) - 13

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1 CERTIFICATE OF SERVICE

2 I HEREBY CERTIFY that on April 30, 2018, I electronically filed the foregoing with the

3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to the

4 following CM/ECF participants:

5

Harry H. Schneider, Jr., Esq.

6

Nicholas P. Gellert, Esq.

David A. Perez, Esq.

7

Kathryn Reddy, Esq.

8

Laura Kaplan Hennessey, Esq. Perkins Coie L.L.P.

9

1201 Third Ave., Ste. 4800

Seattle, WA 98101-3099

10

PH: 359-8000

11

FX: 359-9000 E-mail: HSchneider@perkinscoie.com

12

E-mail: NGellert@perkinscoie.com

E-mail: DPerez@perkinscoie.com

13

E-mail: KReddy@perkinscoie.com

14

E-mail: LHennessey@perkinscoie.com

15

Matt Adams, Esq.

Glenda M. Aldana Madrid, Esq.

16

Northwest Immigrant Rights Project

17

615 Second Ave., Ste. 400

Seattle, WA 98104

18

PH: 957-8611

FX: 587-4025

19

E-mail: matt@nwirp.org

20

E-mail: glenda@nwirp.org

21

Emily Chiang, Esq.

22

ACLU of Washington Foundation 901 Fifth Avenue, Suite 630

23

Seattle, WA 98164

Telephone: (206) 624-2184

24

E-mail: Echiang@aclu-wa.org

25

Jennifer Pasquarella, Esq.

26

Sameer Ahmed, Esq.

ACLU Foundation of Southern California

27

1313 W. 8th Street

28

Los Angeles, CA 90017 Telephone: (213) 977-9500

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (2:17-cv-00094-RAJ) - 14

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
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Case 2:17-cv-00094-RAJ Document 174 Filed 04/30/18 Page 16 of 17

1

Facsimile: (213) 997-5297

2

E-mail: jpasquarella@aclusocal.org

3

Stacy Tolchin, Esq.

Law Offices of Stacy Tolchin

4

634 S. Spring St. Suite 500A

5

Los Angeles, CA 90014 Telephone: (213) 622-7450

6

Facsimile: (213) 622-7233

E-mail: Stacy@tolchinimmigration.com

7

8

Hugh Handeyside, Esq. Coor Cronin Michelson Baumgardner Fogg & Moore LLP

9

1001 4th Ave., Ste. 3900

Seattle, WA 98154

10

Telephone: (206) 625-8600

11

E-mail: hhandeyside@aclu.org

12

Lee Gelernt, Esq.

Hina Shamsi, Esq.

13

American Civil Liberties Union Foundation

14

125 Broad Street

New York, NY 10004

15

Telephone: (212) 549-2616

Facsimile: (212) 549-2654

16

E-mail: lgelernt@aclu.org

17

E-mail: hshamsi@aclu.org

18

Trina Realmuto, Esq.

Kristin Macleod-Ball, Esq.

19

American Immigration Council

20

100 Summer St., 23rd Floor

Boston, MA 02110

21

Telephone: (857) 305-3600

22

E-mail: trealmuto@immcounsel.org E-mail: kmacleod-ball@immcouncil.org

23 Trina Realmuto, Esq.

24

Kristin Macleod-Ball, Esq.

25

National Immigration Project of the National Lawyers Guild 14 Beacon St., Suite 602

26

Boston, MA 02108

Telephone: (617) 227-9727

27

Facsimile: (617) 227-5495

28

E-mail: trina@nipnlg.org E-mail: kristin@nipnlg.org

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (2:17-cv-00094-RAJ) - 15

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 514-3309

Case 2:17-cv-00094-RAJ Document 174 Filed 04/30/18 Page 17 of 17

1

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s/August E. Flentje

August E. Flentje

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U.S. Department of Justice

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DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (2:17-cv-00094-RAJ) - 16

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 514-3309

 
 Case 2:17-cv-00094-RAJ Document 176 Filed 05/01/18 Page 1 of 5

1

The Honorable Richard A. Jones

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

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11 ABDIQAFAR WAGAFE, et al.,

12

Plaintiffs,

13

v.

DONALD TRUMP, President of the United

14 States, et al.,

15

Defendants.

No. 2:17-cv-00094-RAJ
DEFENDANTS’ SUBMISSION PER THE COURT’S ORDER OF APRIL 24, 2018

16

17 In its April 24, 2018, order, the Court directed Defendants to (a) identify the total number
18 of potential class members belonging to the two classes certified by the Court; and (b) provide in
19 an in camera submission a random sampling of at least fifty class members with case-by-case
20 explanations for why their names may not be produced to Plaintiffs. Dkt. 162. In response to
21 the Court’s order, Defendants today have submitted four declarations. The first, an unclassified
22 declaration from USCIS, certifies the process used to identity the random sampling and includes
23 the privileged list of fifty randomly-selected members appended to it. The second, a classified
24 FBI declaration, addresses a subset of individuals from that list. The third, a classified USCIS
25 declaration, addresses a subset of individuals from that list. The fourth, a privileged U.S.
26 Immigration and Customs Enforcement (“ICE”) declaration, addresses a subset. Together, these
27 declarations address all individuals on the list.
28

DEFENDANT’S SUBMISSION PER THE COURT’S

ORDER OF APRIL 24, 2018

(2:17-cv-00094-RAJ)

- 1 -

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-3309

Case 2:17-cv-00094-RAJ Document 176 Filed 05/01/18 Page 2 of 5

1

Anthony J. Kassekert, Statistician, Reports and Analysis Branch, Fraud Detection and

2 National Security Directorate, USCIS, explains in an unclassified declaration how USCIS

3 gathered the random sample of fifty class members. Appended to the Kassekert declaration is a

4 complete list of the fifty class members’ names and immigration (“A”) numbers pulled in the

5 random sample – that attachment is privileged and is being submitted ex parte.

6

Matthew D. Emrich, Associate Director of the Fraud Detection and National Security

7 Directorate, USCIS, identifies in a classified declaration the total number of Controlled

8 Application Review and Resolution Program (“CARRP”) class members as 4,817 as of April 12,

9 2018, from roughly 150 countries. The Emrich declaration notes that the total number of

10 naturalization and adjustment of status applications pending six months or more is approximately

11 1.4 million, of which the 4,871 CARRP class members’ applications are a subset.

12

The Emrich declaration also addresses a subset of the randomly selected class members

13 to explain why unredacted information in the possession of USCIS relating to them may not be

14 produced to Plaintiffs or their counsel.

15

The unclassified but privileged declaration of Tatum King, Assistant Director, Domestic

16 Operations, Homeland Security Investigations (“HSI”), ICE, summarizes its concerns about

17 disclosing the identities of the class members and specifically discusses a subset of the

18 individuals from the random sample who are the subjects of active HSI investigations.

19

Last is a classified declaration by Stephen P. Rees, Assistant Director of the FBI’s

20 Records Management Division, detailing reasons why unredacted information in the possession

21 of the FBI regarding a subset of the individuals from the random sampling, as well as all the

22 potential class members more broadly, may not be produced to Plaintiffs or their counsel.

23 Defendants respectfully note that because the declarations contain classified and privileged

24 information, they must be reviewed ex parte, in camera.

25

Defendants are producing this information in accordance with the Court’s April 24, 2018,

26 order, but respectfully reserves the right to seek further review or assert privilege in the event

27 that the Court determines it must be disclosed to the Plaintiffs.

28 Dated: May 1, 2018

Respectfully submitted,

DEFENDANT’S SUBMISSION PER THE COURT’S

ORDER OF APRIL 24, 2018

(2:17-cv-00094-RAJ)

- 2 -

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-3309

Case 2:17-cv-00094-RAJ Document 176 Filed 05/01/18 Page 3 of 5

1 ANNETTE L. HAYES 2 United States Attorney

CHAD A. READLER Acting Assistant Attorney General

3 BRIAN C. KIPNIS

/s/ August E. Flentje

4

Assistant United States Attorney Senior Litigation Counsel

AUGUST E. FLENTJE Special Counsel

5 Office of the United States Attorney for the Civil Division

Western District of Washington 6 5220 United States Courthouse

P.O. Box 868, Ben Franklin Station Washington, DC 20044

7 700 Stewart Street Seattle, Washington 98101-1271

Telephone: (202) 514-3309 E-mail: august.flentje@usdoj.gov

8 Telephone: (206) 553-7970

e-mail: brian.kipnis@usdoj.gov 9

Counsel for Defendants

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DEFENDANT’S SUBMISSION PER THE COURT’S

ORDER OF APRIL 24, 2018

(2:17-cv-00094-RAJ)

- 3 -

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-3309

Case 2:17-cv-00094-RAJ Document 176 Filed 05/01/18 Page 4 of 5

1

CERTIFICATE OF SERVICE

2

I HEREBY CERTIFY that on May 1, 2018, I electronically filed the foregoing with the

3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to the

4 following CM/ECF participants:

5

Harry H. Schneider, Jr., Esq.

6

Nicholas P. Gellert, Esq.

David A. Perez, Esq.

7

Laura Hennessey, Esq.

8

Perkins Coie L.L.P. 1201 Third Ave., Ste. 4800

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Seattle, WA 98101-3099

PH: 359-8000

10

FX: 359-9000

11

Email: HSchneider@perkinscoie.com Email: NGellert@perkinscoie.com

12

Email: DPerez@perkinscoie.com

Email: LHennessey@perkinscoie.com 13

14

Matt Adams, Esq.

Glenda M. Aldana Madrid, Esq.

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Northwest Immigrant Rights Project

615 Second Ave., Ste. 400

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Seattle, WA 98104

17

PH: 957-8611

FX: 587-4025

18

E-mail: matt@nwirp.org

E-mail: glenda@nwirp.org 19

20

Emily Chiang, Esq.

ACLU of Washington Foundation

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901 Fifth Avenue, Suite 630

22

Seattle, WA 98164 Telephone: (206) 624-2184

23

E-mail: Echiang@aclu-wa.org

24

Jennifer Pasquarella, Esq.

25

Sameer Ahmed, Esq. ACLU Foundation of Southern California

26

1313 W. 8th Street

Los Angeles, CA 90017

27

Telephone: (213) 977-5211

28

Facsimile: (213) 997-5297 E-mail: jpasquarella@aclusocal.org

DEFENDANT’S SUBMISSION PER THE COURT’S

ORDER OF APRIL 24, 2018

(2:17-cv-00094-RAJ)

- 4 -

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-3309

Case 2:17-cv-00094-RAJ Document 176 Filed 05/01/18 Page 5 of 5

1

E-mail: sahmed@aclusocal.org

2

Stacy Tolchin, Esq.

Law Offices of Stacy Tolchin

3

634 S. Spring St. Suite 500A

4

Los Angeles, CA 90014 Telephone: (213) 622-7450

5

Facsimile: (213) 622-7233

E-mail: Stacy@tolchinimmigration.com 6

7

Trina Realmuto, Esq.

Kristin Macleod-Ball, Esq.

8

American Immigration Council

100 Summer St., 23rd Fl.

9

Boston, MA 02110

10

Tel: (857) 305-3600

Email: trealmuto@immcouncil.org

11

Email: kmacleod-ball@immcouncil.org

12

Lee Gelernt, Esq.

13

Hugh Handeyside, Esq.

Hina Shamsi, Esq.

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American Civil Liberties Union Foundation

15

125 Broad Street New York, NY 10004

16

Telephone: (212) 549-2616

Facsimile: (212) 549-2654

17

E-mail: lgelernt@aclu.org

18

E-mail: hhandeyside@aclu.org E-mail: hshamsi@aclu.org

19

/s/ August Flentje

20

AUGUST FLENTJE

21

Civil Division U.S. Department of Justice

22

Counsel for Defendants

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24

25

26

27

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DEFENDANT’S SUBMISSION PER THE COURT’S

ORDER OF APRIL 24, 2018

(2:17-cv-00094-RAJ)

- 5 -

UNITED STATES DEPARTMENT OF JUSTICE Civil Division
950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-3309

 
 Case 2:17-cv-00094-RAJ Document 180 Filed 05/04/18 Page 1 of 11

1

THE HONORABLE RICHARD A. JONES

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3

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

7

AT SEATTLE

8
ABDIQAFAR WAGAFE, et al., on behalf 9 of themselves and others similarly situated,

10

Plaintiffs,

11

v.

12 DONALD TRUMP, President of the United States, et al.,
13
Defendants. 14

No. 2:17-cv-00094-RAJ PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE
NOTE ON MOTION CALENDAR: MAY 4, 2018

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PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (No. 2:17-cv-00094-RAJ)

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 180 Filed 05/04/18 Page 2 of 11

1

TABLE OF CONTENTS

2 3
I. 4 II. 5 6 7 8 9 III. 10

Page
INTRODUCTION ............................................................................................................. 1 ARGUMENT ..................................................................................................................... 1 A. The Deliberative Process Privilege Does Not Apply Where, As Here,
Plaintiffs Allege That The Government Has Engaged In Unconstitutional Discrimination........................................................................................................ 1 B. Plaintiffs’ Need For Information Outweighs Any Interest In Keeping the Information Secret. ................................................................................................ 4 C. The Emrich Declaration Is Insufficient To Satisfy Defendants’ Burden Of Establishing Entitlement To The Privilege. ........................................................... 5 CONCLUSION.................................................................................................................. 6

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PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE
(No. 2:17-cv-00094-RAJ) – i
139676344.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 180 Filed 05/04/18 Page 3 of 11

1

TABLE OF AUTHORITIES

2 3 CASES

Page

4 Bernat v. City of California City,

5

No. 1:10-CV-00305, 2010 WL 4008361 (E.D. Cal. Oct. 12, 2010)..........................................6

6

Children First Found., Inc. v. Martinez, No. CIV. 1:04-CV-0927, 2007 WL 4344915 (N.D.N.Y. Dec. 10, 2007)..............................3, 5

7 Citizens to Preserve Overton Park, Inc. v. Volpe,

8

401 U.S. 402 (1971)...................................................................................................................2

9 Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001).......................................................................................................................3
10

11

In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 145 F.3d 1422 (D.C. Cir. 1998), on reh’g in part, 156 F.3d 1279 (D.C. Cir.

12

1998) ..................................................................................................................................1, 2, 3

13 Kelly v. City of San Jose,

114 F.R.D. 653 (N.D. Cal. 1987)...............................................................................................6 14

Rodriguez v. City of Fontana,

15

No. EDCV 16–1903–JGB, 2017 WL 4676261 (C.D. Cal. Oct. 17, 2017) ................................5

16 Thomas v. Cate,

17

715 F. Supp. 2d 1012 (E.D. Cal. 2010)......................................................................................2

18 Trump v. Hawaii,

No. 17-965 (S. Ct.).....................................................................................................................4

19

Welby v. United States Dep’t of Health,

20

No. 15-CV-195 (NSR), 2016 WL 1718263 (S.D.N.Y. Apr. 27, 2016) .....................................3

21

22

23

24

25

26
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO COMPEL RE LAW ENFORCEMENT PRIVILEGE
(No. 2:17-cv-00094-RAJ) – ii
139676344.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 180 Filed 05/04/18 Page 4 of 11

1

I. INTRODUCTION

2

The deliberative process privilege “has no place . . . in a constitutional claim for

3 discrimination.” In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 145

4 F.3d 1422, 1424 (D.C. Cir. 1998) (“Subpoena I”), on reh’g in part, 156 F.3d 1279 (D.C. Cir.

5 1998) (“Subpoena II”). The privilege is thus inapplicable where, as here, Plaintiffs have alleged

6 invidious discrimination based on religion and national origin. And even if the privilege applied,

7 Plaintiffs’ need for information outweighs any interest in keeping their deliberations secret,

8 particularly in light of the parties’ protective order. Finally, Defendants’ declaration invoking the

9 privilege is insufficient. Plaintiffs’ motion to compel should be granted.

10

II. ARGUMENT

11 A. 12 13

The Deliberative Process Privilege Does Not Apply Where, As Here, Plaintiffs Allege That The Government Has Engaged In Unconstitutional Discrimination.
1. Defendants’ efforts to distinguish Subpoena I are unavailing, and this Court should follow its persuasive reasoning.

14

As the D.C. Circuit has explained, the deliberative process privilege “was fashioned in

15 cases where the governmental decisionmaking process is collateral to the plaintiff’s suit.”

16 Subpoena I, 145 F.3d at 1424 (emphasis added). “If the plaintiff’s cause of action is directed at

17 the government’s intent, however, it makes no sense to permit the government to use the privilege

18 as a shield.” Id. The privilege thus “has no place . . . in a constitutional claim for discrimination.”

19 Id. “[I]f . . . the Constitution . . . makes the nature of governmental officials’ deliberations the

20 issue, the privilege is a non sequitur.” Id.

21

To be sure, as Defendants point out (Opp’n at 3), the deliberative process privilege applies

22 in challenges to administrative action under the APA. But the very reasons why the privilege

23 applies in APA actions highlight why it does not apply to claims alleging unconstitutional

24 discrimination. “When a party challenges agency action as arbitrary and capricious the

25 reasonableness of the agency’s action is judged in accordance with its stated reasons.” Subpoena

26
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO COMPEL RE LAW ENFORCEMENT PRIVILEGE
(No. 2:17-cv-00094-RAJ) – 1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 180 Filed 05/04/18 Page 5 of 11

1 II, 156 F.3d at 1279 (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402

2 (1971)). “Agency deliberations not part of the record are deemed immaterial.” Id. “That is

3 because the actual subjective motivation of agency decisionmakers is immaterial as a matter of

4 law—unless there is a showing of bad faith or improper behavior.” Id. at 1279-80 (emphasis

5 added). Accordingly, “the ordinary APA cause of action does not directly call into question the

6 agency’s subjective intent.” Id. at 1280. By contrast, “the deliberative process privilege is

7 unavailable” where “the cause of action is directed at the agency’s subjective motivation.” Id. See

8 also Thomas v. Cate, 715 F. Supp. 2d 1012, 1023 (E.D. Cal. 2010).

9

Defendants’ reliance on Overton Park, 401 U.S. 402, is thus misplaced. See Opp’n at 3, 6-

10 7, 9. In that case, which does not involve the deliberative process privilege, the Court found that

11 “there must be a strong showing of bad faith or improper behavior” before a plaintiff may inquire

12 into the mental processes of administrative decisionmakers where “administrative findings . . .

13 were made at the same time as the decision.” 401 U.S. at 420 (emphasis added). By contrast, a

14 party may inquire into an agency’s decisionmaking process where there is no administrative

15 record to review. See id. (without “formal findings,” “it may be that the only way there can be

16 effective judicial review is by examining the decisionmakers themselves”). Here, Defendants

17 issued no administrative findings with respect to CARRP; indeed, CARRP’s very existence was

18 kept secret. But more importantly, Plaintiffs do not seek disclosure of the withheld materials on

19 the ground that Defendants’ decisions were arbitrary and capricious. Rather, Plaintiffs contend

20 that the privilege is inapplicable because they allege that Defendants engaged in unconstitutional

21 discrimination in enacting CARRP and its successor extreme vetting programs.

22

Defendants argue that “the special rule of [Subpoena I] applied where Congress had

23 specifically enacted a statute that require[d] a showing of the government’s intent.” Opp’n at 3

24 (alterations omitted). But the reasoning of Subpoena I is not limited to the specific facts of that

25 case. To the contrary, the D.C. Circuit observed that “the privilege has no place in a Title VII

26 action or in a constitutional claim for discrimination.” 145 F.3d at 1424 (footnote omitted).

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (No. 2:17-cv-00094-RAJ)– 2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 180 Filed 05/04/18 Page 6 of 11

1 Defendants’ attempt to cast Subpoena I as a one-off, therefore, does not withstand scrutiny.

2 Indeed, as Plaintiffs noted in their motion to compel, courts across the country have found the

3 deliberative process privilege inapplicable in a wide variety of factual circumstances. In Children

4 First Found., Inc. v. Martinez, No. CIV. 1:04-CV-0927, 2007 WL 4344915, at *5 (N.D.N.Y. Dec.

5 10, 2007), for example, the court found that the “deliberative process privilege [could] not stand”

6 where plaintiff alleged that the Department of Motor Vehicles violated its First and Fourteenth

7 Amendment rights by denying its application for a custom license plate. Defendants do not

8 distinguish that case or the others cited in Plaintiffs’ motion. See Dkt. # 152 at pp. 5-6.

9

As the Ninth Circuit has neither embraced nor rejected Subpoena I, this Court is free to

10 follow its persuasive logic. Indeed, the D.C. Circuit’s opinion on the scope of the deliberative

11 process privilege should carry particular weight, as the D.C. Circuit frequently adjudicates such

12 claims in the FOIA context. See Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532

13 U.S. 1, 8 (2001) (FOIA Exemption 5 incorporates the deliberative process privilege); Welby v.

14 United States Dep’t of Health, No. 15-CV-195 (NSR), 2016 WL 1718263, at *4 n.5 (S.D.N.Y.

15 Apr. 27, 2016) (“Courts in the Second Circuit frequently cite FOIA decisions from the D.C.

16 Circuit as it is a jurisdiction with considerable experience on FOIA matters.”) (alterations

17 omitted). The Court should follow Subpoena I and hold that the deliberative process privilege is

18 inapplicable where the government’s intent is at issue.

19

2. Plaintiffs allege discriminatory intent with respect to CARRP.

20

Defendants argue that the Second Amended Complaint does not allege discriminatory

21 intent with respect to CARRP. Opp’n at 4. In so arguing, Defendants overlook the gravamen of

22 the Complaint. As Defendants acknowledge, Plaintiffs allege that “CARRP labels applicants

23 national security concerns based on vague and overbroad criteria that often turn on national origin

24 or innocuous and lawful activities or associations.” Dkt. # 47 ¶ 76. Plaintiffs allege that those

25 activities and associations include involvement in Muslim communities, such as donating to

26 Muslim charities and traveling to Muslim-majority countries. See, e.g., id. ¶ 170 (“USCIS may

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (No. 2:17-cv-00094-RAJ)– 3

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 180 Filed 05/04/18 Page 7 of 11

1 have subjected Mr. Ostadhassan’s adjustment application to CARRP because he has resided in

2 and traveled through . . . Iran . . . and because of his donations to Islamic charities and

3 involvement in the Muslim community.”); see also id. ¶¶ 62-76, 158-60, 190-96. Plaintiffs’ claim

4 that CARRP erects extra-statutory obstacles for Muslim immigrants puts the motivations behind

5 CARRP at issue. So do Plaintiffs’ allegations that Defendants delay or deny applications subject

6 to CARRP for pretextual reasons. See id. ¶¶ 84, 94. Moreover, Defendants err in attempting to

7 divorce CARRP from the EOs. Plaintiffs allege that CARRP and the EOs are part of the same

8 unlawful program, and that the EOs built upon and expanded CARRP’s unlawful vetting

9 procedures. See id. ¶¶ 18, 26-28, 132-141; see also id. ¶ 19 n.1. (“Plaintiffs’ reference to

10 ‘CARRP’ incorporates any similar non-statutory and sub-regulatory successor vetting policy,

11 including pursuant to . . . the Second EO.”). Indeed, this Court has understood that “Plaintiffs’

12 case centers on their allegation that an extra-statutory policy based on discriminatory and illegal

13 criteria is blocking the fair adjudication of immigration benefits of which they are statutorily

14 eligible.” Dkt. # 69 at p. 17 (emphasis added).

15

Even if Plaintiffs’ allegations of discriminatory intent with respect to CARRP were

16 insufficiently clear, however, there can be no doubt that Plaintiffs have alleged discriminatory

17 animus with respect to the EOs. Defendants have claimed the deliberate process privilege over 75

18 documents related to the EOs. See Opp’n at 5 n.6. At a minimum, the Court should order

19 disclosure of those documents.1

20 B. Plaintiffs’ Need For Information Outweighs Any Interest In Keeping the Information Secret.
21
Even if the privilege applied, Plaintiffs explained in their motion to compel why their need 22
for information outweighs any interest in maintaining total secrecy over the records at issue. See 23
Dkt. # 152 at pp. 7-10. While Defendants disagree, it is notable that they say little about the 24
Stipulated Protective Order. They state that the protective order “does not offer sufficient 25

26

1 Defendants’ suggestion that the Court should await the ruling of the Supreme Court in Trump v. Hawaii,

No. 17-965 (S. Ct.), is misplaced, as that case will not determine the scope of the deliberative process privilege.

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (No. 2:17-cv-00094-RAJ)– 4

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 180 Filed 05/04/18 Page 8 of 11

1 protection for the national security and investigatory information revealed in the deliberations at

2 issue,” but that concern appears to relate to materials withheld under the law enforcement

3 privilege, not the deliberative process privilege. Opp’n at 10 n.13 (emphasis added). The Emrich

4 Declaration (see infra) is similarly lacking, as it offers nothing more than the conclusory assertion

5 that “a protective order would not mitigate the chilling effect and detrimental consequences that

6 would result” from disclosure under such an order. Dkt. # 174-3 ¶ 7. To the contrary, the

7 protective order provides that “confidential information” includes “any information not in the

8 public domain,” Dkt. # 86 ¶ 2, and that such information “shall not be disseminated outside the

9 confines of this case, nor shall it be included in any pleading, record or document that is not filed

10 under seal with the Court or redacted in accordance with applicable law.” Id. ¶ 4.1. Given this

11 protection, there is minimal risk that the limited disclosure of information relevant to this lawsuit

12 would hinder frank discussion within the government.

13

Defendants also claim that the balance weighs in their favor because CARRP-related

14 documents are purportedly not relevant to Plaintiffs’ allegations of discriminatory intent.

15 Plaintiffs have addressed that argument above, and also note that CARRP-related documents are

16 relevant to Plaintiffs’ claims for additional reasons—e.g., they may reveal the extra-statutory

17 criteria Defendants apply to delay and deny applications under CARRP.

18 C. The Emrich Declaration Is Insufficient To Satisfy Defendants’ Burden Of Establishing Entitlement To The Privilege.
19
Faced with Plaintiffs’ motion to compel, Defendants belatedly submit a declaration from 20
Matthew D. Emrich formally “assert[ing] the deliberative process privilege over documents 21
previously withheld or redacted on that basis.” Dkt. # 174-3 ¶ 5. The Emrich Declaration is 22
insufficient for three reasons. First, as noted, it does not adequately explain why “disclosure 23
under a protective order would create a substantial risk of harm” to government interests. 24
Rodriguez v. City of Fontana, No. EDCV 16–1903–JGB (KKx), 2017 WL 4676261, at *3 (C.D. 25
Cal. Oct. 17, 2017). While Mr. Emrich asserts that the protective order “would not mitigate the 26

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (No. 2:17-cv-00094-RAJ)– 5

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 180 Filed 05/04/18 Page 9 of 11

1 chilling effect” of disclosure, Dkt. # 174-3 ¶ 7, the protective order does not allow for public

2 disclosure of confidential information. Rather, the information may be shared only with a select

3 list of people, which includes the named Plaintiffs, Plaintiffs’ counsel and support staff, experts

4 and witnesses to whom disclosure is reasonably necessary, and the Court and its personnel. Dkt. #

5 86 ¶ 4.2. Mr. Emrich makes no attempt to explain why disclosing information only to those

6 individuals listed in the order would purportedly have a chilling effect on government

7 deliberations. Cf. Kelly v. City of San Jose, 114 F.R.D. 653, 662 (N.D. Cal. 1987) (explaining

8 with respect to the law enforcement privilege that in many situations it is “is disclosure to the

9 public generally, not simply to an individual litigant and/or her lawyer,” that would pose a risk).

10

Second, the declaration does not “show[] that the material for which the privilege is

11 asserted has been kept confidential.” Bernat v. City of California City, No. 1:10-CV-00305, 2010

12 WL 4008361, at *4 (E.D. Cal. Oct. 12, 2010).

13

Third, Mr. Emrich asserts the deliberative process privilege over a large number of

14 documents that he groups into categories with generalized descriptions. See, e.g., Dkt. # 174-3 ¶¶

15 9-13, 15-24, 29, 41, 68, 73, 75, 76. These generalized descriptions do not pass muster. The Court

16 has already ruled with respect to the law enforcement privilege that the Government must use the

17 privilege “deliberately” and be “exacting” with which documents fall within its scope; the same is

18 true here. Dkt. # 148 at p. 5.

19

In any event, given the belated production of the Emrich Declaration, Plaintiffs request the

20 opportunity to challenge each specific assertion of the privilege if the Court concludes the

21 privilege may be invoked in this case. In light of the new information, for example, Plaintiffs

22 would request the opportunity to show why specific withholdings/redactions are overbroad and

23 why their need for individual documents outweighs Defendants’ interest in secrecy.

24

III. CONCLUSION

25

Plaintiffs request that the Court grant their motion to compel. In the alternative, they

26 request the opportunity to challenge each privilege assertion in light of the Emrich Declaration.

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (No. 2:17-cv-00094-RAJ)– 6

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 180 Filed 05/04/18 Page 10 of 11

1 2 DATED: May 4, 2018

3 s/Jennifer Pasquarella (admitted pro hac vice) s/ Harry H. Schneider, Jr.

s/Sameer Ahmed (admitted pro hac vice)

Harry H. Schneider, Jr. #9404

4 ACLU Foundation of Southern California

s/ Nicholas P. Gellert

1313 W. 8th Street

Nicholas P. Gellert #18041

5 Los Angeles, CA 90017

s/ David A. Perez

Telephone: (213) 977-5236

David A. Perez #43959

6 Facsimile: (213) 997-5297

s/ Laura K. Hennessey

jpasquarella@aclusocal.org

Laura K. Hennessey #47447

7 sahmed@aclusocal.org

Attorneys for Plaintiffs

8 s/Matt Adams

Perkins Coie LLP

s/Glenda M. Aldana Madrid

1201 Third Avenue, Suite 4900

9 Matt Adams #28287

Seattle, WA 98101-3099

Glenda M. Aldana Madrid #46987

Telephone: 206.359.8000

10 Northwest Immigrant Rights Project

Facsimile: 206.359.9000

615 Second Ave., Ste. 400

Email: HSchneider@perkinscoie.com

11 Seattle, WA 98122

NGellert@perkinscoie.com

Telephone: (206) 957-8611

DPerez@perkinscoie.com

12 Facsimile: (206) 587-4025

LHennessey@perkinscoie.com

matt@nwirp.org

13 glenda@nwirp.org

14 s/Stacy Tolchin (admitted pro hac vice) Law Offices of Stacy Tolchin
15 634 S. Spring St. Suite 500A Los Angeles, CA 90014
16 Telephone: (213) 622-7450 Facsimile: (213) 622-7233
17 Stacy@tolchinimmigration.com
18
19 s/Hugh Handeyside
20 Hugh Handeyside #39792 s/Lee Gelernt (admitted pro hac vice)
21 s/Hina Shamsi (admitted pro hac vice) American Civil Liberties Union Foundation
22 125 Broad Street New York, NY 10004
23 Telephone: (212) 549-2616 Facsimile: (212) 549-2654
24 lgelernt@aclu.org hhandeyside@aclu.org
25 hshamsi@aclu.org

s/Trina Realmuto (admitted pro hac vice) s/Kristin Macleod-Ball (admitted pro hac vice) Trina Realmuto Kristin Macleod-Ball American Immigration Council 100 Summer St., 23rd Fl. Boston, MA 02110 Tel: (857) 305-3600 Email: trealmuto@immcouncil.org Email: kmacleod-ball@immcouncil.org
s/Emily Chiang Emily Chiang #50517 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Echiang@aclu-wa.org

26

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO COMPEL RE DELIBERATIVE PROCESS PRIVILEGE (No. 2:17-cv-00094-RAJ)– 7

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 2:17-cv-00094-RAJ Document 180 Filed 05/04/18 Page 11 of 11

1

CERTIFICATE OF SERVICE

2 The undersigned certifies that on the date indicated below, I caused service of the
3 foregoing PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO COMPEL RE
4 DELIBERATIVE PROCESS PRIVILEGE via the CM/ECF system that will automatically send
5 notice of such filing to all counsel of record herein.
6 DATED this 4th day of May, 2018, at Seattle, Washington.
7

8

By: s/David A. Perez

9

David A. Perez Attorney for Plaintiffs

10

Perkins Coie LLP 1201 Third Avenue, Suite 4900

11

Seattle, WA 98101-3099 Telephone: 206.359.8000

12

Facsimile: 206.359.9000 Email: DPerez@perkinscoie.com

13

14

15

16

17

18

19

20

21

22

23

24

25

26

CERTIFICATE OF SERVICE (No. 2:17-cv-00094-RAJ) – 1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

 
 PROTO
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:17-cv-00094-RAJ

Wagafe et al v. Biden, et al Assigned to: Judge Richard A. Jones Case in other court: 9th Circuit Court of Appeals, 18-
71171 Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 01/23/2017 Jury Demand: None Nature of Suit: 460 Deportation Jurisdiction: U.S. Government Defendant

Plaintiff
Abdiqafar Wagafe on behalf of themselves and others similarly situated

represented by Charles Hogle AMERICAN CIVIL LIBERTIES UNION (NY) IMMIGRANTS' RIGHTS PROJECT 125 BROAD ST 18TH FLOOR NEW YORK, NY 10004-2400 608-469-8084 Email: chogle@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David A. Perez PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-6767 Email: dperez@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glenda Melinda Aldana Madrid NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8646 Email: glenda@nwirp.org

TERMINATED: 11/08/2018 LEAD ATTORNEY
Harry H Schneider , Jr. PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-8508 Email: hschneider@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hina Shamsi AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 BROAD ST 18TH FL NEW YORK, NY 10004 212-284-7321 Email: hshamsi@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh E Handeyside CORR CRONIN, LLP 1001 4TH AVE STE 3900 SEATTLE, WA 98154-1051 206-625-8600 Email: hhandeyside@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Pasquarella ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 WEST 8TH STREET LOS ANGELES, CA 90017 213-977-9500 Email: jpasquarella@aclusocal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Reddy PERKINS COIE (SEA)

1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-8000 Email: kreddy@perkinscoie.com TERMINATED: 05/18/2017 LEAD ATTORNEY
Lee Gelernt AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 BROAD ST 18TH FL NEW YORK, NY 10004 212-549-2616 Email: lgelernt@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Liga Chia ACLU OF SOUTHERN CALIFORNIA 1313 WEST 8TH STREET STE 200 LOS ANGELES, CA 90017 213-977-5239 Email: lchia@aclusocal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8611 Email: matt@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sabrineh Ardalan HARVARD IMMIGRATION AND REFUGEE CLINICAL PROGRAM 6 EVERETT STREET STE WCC 3106

CAMBRIDGE, MA 02138 617-384-7504 Email: sardalan@law.harvard.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sameer Ahmed HARVARD IMMIGRATION AND REFUGEE CLINICAL PROGRAM 6 EVERETT ST WASSERSTEIN 3103 BOSTON, MA 02138 617-384-0088 Email: sahmed@law.harvard.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stacy Tolchin LAW OFFICES OF STACY TOLCHIN 776 E GREEN ST STE 210 PASADENA, CA 91101 213-622-7450 Email: stacy@tolchinimmigration.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristina Sepe ATTORNEY GENERAL'S OFFICE (SEATTLE) 800 FIFTH AVENUE STE 2000 SEATTLE, WA 98104 206-342-6409 Email: cristina.sepe@atg.wa.gov TERMINATED: 01/14/2020
Emily Chiang ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 SEATTLE, WA 98164

206-624-2184 Email: echiang@aclu-wa.org TERMINATED: 12/31/2019
Heath L Hyatt PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-8000 Email: hhyatt@perkinscoie.com ATTORNEY TO BE NOTICED
John B. Midgley ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 PO BOX 2728 SEATTLE, WA 98111 206-624-2184 Email: jmidgley@aclu-wa.org ATTORNEY TO BE NOTICED
Kristin Macleod-Ball AMERICAN IMMIGRATION COUNCIL 1318 BEACON STREET STE 18 BOSTON, MA 02446 857-305-3722 Email: kristin@immigrationlitigation.org TERMINATED: 02/01/2021 PRO HAC VICE
Laura Kaplan Hennessey PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-8000 Fax: 206-359-9000 Email: LHennessey@perkinscoie.com TERMINATED: 11/16/2018
Michelle Cho ACLU FOUNDATION OF NORTHERN CA 39 DRUMM ST

Plaintiff

SAN FRANCISCO, CA 94111 415-621-2493 Email: mcho@aclunc.org TERMINATED: 02/05/2021 PRO HAC VICE
Molly Tack-Hooper ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 PO BOX 2728 SEATTLE, WA 98111 206-624-2184 Email: mollytack@gmail.com TERMINATED: 12/04/2020
Nicholas Peter Gellert PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-8680 Fax: FAX 359-8500 Email: NGellert@perkinscoie.com ATTORNEY TO BE NOTICED
Paige L Whidbee PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-3629 Email: pwhidbee@perkinscoie.com ATTORNEY TO BE NOTICED
Trina Realmuto NATIONAL IMMIGRATION LITIGATION ALLIANCE 10 GRIGGES TERRACE BROOKLINE, MA 02446 617-513-0802 Email: trina@immigrationlitigation.org TERMINATED: 04/20/2020 PRO HAC VICE

Mehdi Ostadhassan on behalf of themselves and others similarly situated

represented by Charles Hogle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David A. Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) TERMINATED: 11/08/2018 LEAD ATTORNEY
Harry H Schneider , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh E Handeyside (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Pasquarella (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Reddy (See above for address) TERMINATED: 05/18/2017 LEAD ATTORNEY
Lee Gelernt (See above for address) LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Liga Chia (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sabrineh Ardalan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sameer Ahmed (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stacy Tolchin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristina Sepe (See above for address) TERMINATED: 01/14/2020
Emily Chiang (See above for address) TERMINATED: 12/31/2019
Heath L Hyatt (See above for address) ATTORNEY TO BE NOTICED
John B. Midgley (See above for address)

Plaintiff Hanin Omar Bengezi

ATTORNEY TO BE NOTICED
Kristin Macleod-Ball (See above for address) TERMINATED: 02/01/2021 PRO HAC VICE
Laura Kaplan Hennessey (See above for address) TERMINATED: 11/16/2018
Michelle Cho (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE
Molly Tack-Hooper (See above for address) TERMINATED: 12/04/2020
Nicholas Peter Gellert (See above for address) ATTORNEY TO BE NOTICED
Paige L Whidbee (See above for address) ATTORNEY TO BE NOTICED
Trina Realmuto (See above for address) TERMINATED: 04/20/2020 PRO HAC VICE
represented by Charles Hogle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) TERMINATED: 11/08/2018 LEAD ATTORNEY
Harry H Schneider , Jr.

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh E Handeyside (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Pasquarella (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Reddy (See above for address) TERMINATED: 05/18/2017 LEAD ATTORNEY
Lee Gelernt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Liga Chia (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sameer Ahmed (See above for address) LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Stacy Tolchin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristina Sepe (See above for address) TERMINATED: 01/14/2020
Emily Chiang (See above for address) TERMINATED: 12/31/2019
Heath L Hyatt (See above for address) ATTORNEY TO BE NOTICED
John B. Midgley (See above for address) ATTORNEY TO BE NOTICED
Kristin Macleod-Ball (See above for address) TERMINATED: 02/01/2021 PRO HAC VICE
Laura Kaplan Hennessey (See above for address) TERMINATED: 11/16/2018
Molly Tack-Hooper (See above for address) TERMINATED: 12/04/2020
Nicholas Peter Gellert (See above for address) ATTORNEY TO BE NOTICED
Paige L Whidbee (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mushtaq Abed Jihad

Trina Realmuto (See above for address) TERMINATED: 04/20/2020 PRO HAC VICE
David A. Perez (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Hogle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) TERMINATED: 11/08/2018 LEAD ATTORNEY
Harry H Schneider , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh E Handeyside (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Pasquarella (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Reddy (See above for address) TERMINATED: 05/18/2017

LEAD ATTORNEY
Lee Gelernt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Liga Chia (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sabrineh Ardalan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sameer Ahmed (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stacy Tolchin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristina Sepe (See above for address) TERMINATED: 01/14/2020
Emily Chiang (See above for address) TERMINATED: 12/31/2019
Heath L Hyatt

Plaintiff Sajeel Manzoor

(See above for address) ATTORNEY TO BE NOTICED
John B. Midgley (See above for address) ATTORNEY TO BE NOTICED
Kristin Macleod-Ball (See above for address) TERMINATED: 02/01/2021 PRO HAC VICE
Laura Kaplan Hennessey (See above for address) TERMINATED: 11/16/2018
Molly Tack-Hooper (See above for address) TERMINATED: 12/04/2020
Nicholas Peter Gellert (See above for address) ATTORNEY TO BE NOTICED
Paige L Whidbee (See above for address) ATTORNEY TO BE NOTICED
Trina Realmuto (See above for address) TERMINATED: 04/20/2020 PRO HAC VICE
David A. Perez (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Hogle (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address)

TERMINATED: 11/08/2018 LEAD ATTORNEY
Harry H Schneider , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hugh E Handeyside (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Pasquarella (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Reddy (See above for address) TERMINATED: 05/18/2017 LEAD ATTORNEY
Lee Gelernt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Liga Chia (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sabrineh Ardalan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sameer Ahmed (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stacy Tolchin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cristina Sepe (See above for address) TERMINATED: 01/14/2020
Emily Chiang (See above for address) TERMINATED: 12/31/2019
Heath L Hyatt (See above for address) ATTORNEY TO BE NOTICED
John B. Midgley (See above for address) ATTORNEY TO BE NOTICED
Kristin Macleod-Ball (See above for address) TERMINATED: 02/01/2021 PRO HAC VICE
Laura Kaplan Hennessey (See above for address) TERMINATED: 11/16/2018
Molly Tack-Hooper (See above for address)

V.
Defendant
US Citizenship and Immigration Services

TERMINATED: 12/04/2020
Nicholas Peter Gellert (See above for address) ATTORNEY TO BE NOTICED
Paige L Whidbee (See above for address) ATTORNEY TO BE NOTICED
Trina Realmuto (See above for address) TERMINATED: 04/20/2020 PRO HAC VICE
David A. Perez (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron R Petty US DEPARTMENT OF JUSTICE 219 S. DEARBORN ST., 5TH FLOOR CHICAGO, IL 60604 202-532-4542 Email: aaron.r.petty@usdoj.gov TERMINATED: 04/29/2018
Andrew C Brinkman US DEPT. OF JUSTICE OFFICE OF IMMIGRATION LITIGATION 450 5TH ST. NW WASHINGTON, DC 20001 202-305-7035 Email: andrew.brinkman@usdoj.gov ATTORNEY TO BE NOTICED
Anne Donohue US DEPARTMENT OF JUSTICE (CIVIL - BOX 261) CIVIL DIVISION

PO BOX 261 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-305-4193 Email: anne.p.donohue@usdoj.gov ATTORNEY TO BE NOTICED
Antonia Konkoly US DEPARTMENT OF JUSTICE (CIVIL- FEDERAL PROGRAMS BRANCH) 1100 L STREET NW WASHINGTON, DC 20530 202-514-2395 Email: antonia.konkoly@usdoj.gov ATTORNEY TO BE NOTICED
August Flentje DEPARTMENT OF JUSTICE 901 PENNSYLVANIA AVENUE NW ROOM 3613 WASHINGTON, DC 20530 202-514-3309 Email: august.flentje@usdoj.gov ATTORNEY TO BE NOTICED
Brendan T Moore US DEPARTMENT OF JUSTICE (BOX 878) PO BOX 878 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-598-8173 Email: brendan.t.moore@usdoj.gov ATTORNEY TO BE NOTICED
Brian C Kipnis US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101-1271 206-553-7970 Email: Brian.Kipnis@usdoj.gov ATTORNEY TO BE NOTICED

Brigham John Bowen US DEPARTMENT OF JUSTICE (CIVIL- FEDERAL PROGRAMS BRANCH) 1100 L STREET NW WASHINGTON, DC 20530 202-514-6289 Email: brigham.bowen@usdoj.gov ATTORNEY TO BE NOTICED
Christopher W. Hollis US DEPT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION 450 FIFTH ST. NW STE 6038 WASHINGTON, DC 20001 202-305-0899 Email: christopher.hollis@usdoj.gov TERMINATED: 05/03/2018
Daniel E Bensing US DEPARTMENT OF JUSTICE CIVIL DIVISION 20 MASSACHUSETTS AVENUE N.W. WASHINGTON, DC 20001 202-305-0693 Email: Daniel.Bensing@usdoj.gov TERMINATED: 07/22/2019
Derek C. Julius US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-532-4323 Email: Derek.Julius2@usdoj.gov ATTORNEY TO BE NOTICED
Edward S. White US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION

WASHINGTON, DC 20044 202-616-9131 Fax: 202-305-7000 Email: edward.s.white@usdoj.gov TERMINATED: 04/29/2018
Ethan B Kanter US DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION LIBERTY SQUARE BLDG, 450 5TH ST NW WASHINGTON, DC 20001 202-616-9123 Email: ethan.kanter@usdoj.gov ATTORNEY TO BE NOTICED
Jeffrey L Menkin US DEPARTMENT OF JUSTICE (BOX 878) PO BOX 878 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-353-3920 Email: Jeff.Menkin2@usdoj.gov TERMINATED: 12/06/2018
Jesse Busen US DEPARTMENT OF JUSTICE (BOX 878) PO BOX 878 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-305-7205 Email: Jesse.Busen@usdoj.gov ATTORNEY TO BE NOTICED
Joseph F. Carilli , Jr. US DEPARTMENT OF JUSTICE (450 FIFTH) CIVIL DIVISION, OFFICE OF IMMIGRATION LITIGATION 450 FIFTH STREET NW WASHINGTON, DC 20001 202-616-4848 Email: joseph.f.carilli2@usdoj.gov

TERMINATED: 05/11/2018
Kathryn C Davis US DEPT OF JUSTICE 1100 L STREET NW WASHINGTON, DC 20005 202-616-8298 Email: Kathryn.C.Davis@usdoj.gov TERMINATED: 12/03/2020
Leon B Taranto US DEPT OF JUSTICE CIVIL DIVISION 1331 PENNSYLVANIA AVE NW ROOM 8018-S WASHINGTON, DC 20004 202-616-4231 Email: Leon.B.Taranto@usdoj.gov ATTORNEY TO BE NOTICED
Lindsay M. Murphy US DEPARTMENT OF JUSTICE (BOX 878) PO BOX 878 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-616-4018 Email: Lindsay.M.Murphy@usdoj.gov ATTORNEY TO BE NOTICED
Lyle D Jentzer US DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION LIBERTY SQUARE BLDG, 450 5TH ST NW WASHINGTON, DC 20001 202-305-0192 Fax: 202-307-8698 Email: lyle.jentzer@usdoj.gov TERMINATED: 03/14/2019
Michelle R Slack US DEPARTMENT OF JUSTICE (BOX 878)

Defendant
John Kelly in his official capacity as Secretary of the U.S. Department of Homeland Security

PO BOX 878 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-598-8897 Email: michelle.r.slack@usdoj.gov ATTORNEY TO BE NOTICED
Timothy Michael Belsan US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-532-4596 Email: timothy.m.belsan@usdoj.gov TERMINATED: 05/11/2018
Victoria Braga US DEPARTMENT OF JUSTICE (BOX 878) PO BOX 878 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-616-5573 Email: Victoria.M.Braga@usdoj.gov ATTORNEY TO BE NOTICED
Walter Manning Evans US DEPARTMENT OF JUSTICE (BOX 878) PO BOX 878 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-616-2186 Fax: 202-616-4923 Email: Manning.Evans@usdoj.gov ATTORNEY TO BE NOTICED
represented by Aaron R Petty (See above for address) TERMINATED: 04/29/2018
Andrew C Brinkman (See above for address) ATTORNEY TO BE NOTICED

Anne Donohue (See above for address) ATTORNEY TO BE NOTICED
Antonia Konkoly (See above for address) ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
Brendan T Moore (See above for address) ATTORNEY TO BE NOTICED
Brian C Kipnis (See above for address) ATTORNEY TO BE NOTICED
Brigham John Bowen (See above for address) ATTORNEY TO BE NOTICED
Christopher W. Hollis (See above for address) TERMINATED: 05/03/2018
Daniel E Bensing (See above for address) TERMINATED: 07/22/2019
Derek C. Julius (See above for address) ATTORNEY TO BE NOTICED
Edward S. White (See above for address) TERMINATED: 04/29/2018
Ethan B Kanter (See above for address) ATTORNEY TO BE NOTICED
Jeffrey L Menkin

Defendant Lori Scialabba

(See above for address) TERMINATED: 12/06/2018
Jesse Busen (See above for address) ATTORNEY TO BE NOTICED
Joseph F. Carilli , Jr. (See above for address) TERMINATED: 05/11/2018
Kathryn C Davis (See above for address) TERMINATED: 12/03/2020
Leon B Taranto (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Murphy (See above for address) ATTORNEY TO BE NOTICED
Lyle D Jentzer (See above for address) TERMINATED: 03/14/2019
Michelle R Slack (See above for address) ATTORNEY TO BE NOTICED
Timothy Michael Belsan (See above for address) TERMINATED: 05/11/2018
Victoria Braga (See above for address) ATTORNEY TO BE NOTICED
Walter Manning Evans (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron R Petty (See above for address)

TERMINATED: 04/29/2018
Andrew C Brinkman (See above for address) ATTORNEY TO BE NOTICED
Anne Donohue (See above for address) ATTORNEY TO BE NOTICED
Antonia Konkoly (See above for address) ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
Brendan T Moore (See above for address) ATTORNEY TO BE NOTICED
Brian C Kipnis (See above for address) ATTORNEY TO BE NOTICED
Brigham John Bowen (See above for address) ATTORNEY TO BE NOTICED
Christopher W. Hollis (See above for address) TERMINATED: 05/03/2018
Daniel E Bensing (See above for address) TERMINATED: 07/22/2019
Derek C. Julius (See above for address) ATTORNEY TO BE NOTICED
Edward S. White (See above for address) TERMINATED: 04/29/2018

Ethan B Kanter (See above for address) ATTORNEY TO BE NOTICED
Jeffrey L Menkin (See above for address) TERMINATED: 12/06/2018
Jesse Busen (See above for address) ATTORNEY TO BE NOTICED
Joseph F. Carilli , Jr. (See above for address) TERMINATED: 05/11/2018
Kathryn C Davis (See above for address) TERMINATED: 12/03/2020
Leon B Taranto (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Murphy (See above for address) ATTORNEY TO BE NOTICED
Lyle D Jentzer (See above for address) TERMINATED: 03/14/2019
Michelle R Slack (See above for address) ATTORNEY TO BE NOTICED
Timothy Michael Belsan (See above for address) TERMINATED: 05/11/2018
Victoria Braga (See above for address) ATTORNEY TO BE NOTICED
Walter Manning Evans

Defendant
Matthew D Emrich in his official capacity as Associate Director of the Fraud Detection and National Security Directorate of the U.S. Citizenship and Immigration Services (FDNS)

(See above for address) ATTORNEY TO BE NOTICED
represented by Aaron R Petty (See above for address) TERMINATED: 04/29/2018
Andrew C Brinkman (See above for address) ATTORNEY TO BE NOTICED
Anne Donohue (See above for address) ATTORNEY TO BE NOTICED
Antonia Konkoly (See above for address) ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
Brendan T Moore (See above for address) ATTORNEY TO BE NOTICED
Brian C Kipnis (See above for address) ATTORNEY TO BE NOTICED
Brigham John Bowen (See above for address) ATTORNEY TO BE NOTICED
Christopher W. Hollis (See above for address) TERMINATED: 05/03/2018
Daniel E Bensing (See above for address) TERMINATED: 07/22/2019
Derek C. Julius (See above for address)

ATTORNEY TO BE NOTICED
Edward S. White (See above for address) TERMINATED: 04/29/2018
Ethan B Kanter (See above for address) ATTORNEY TO BE NOTICED
Jeffrey L Menkin (See above for address) TERMINATED: 12/06/2018
Jesse Busen (See above for address) ATTORNEY TO BE NOTICED
Joseph F. Carilli , Jr. (See above for address) TERMINATED: 05/11/2018
Kathryn C Davis (See above for address) TERMINATED: 12/03/2020
Leon B Taranto (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Murphy (See above for address) ATTORNEY TO BE NOTICED
Lyle D Jentzer (See above for address) TERMINATED: 03/14/2019
Michelle R Slack (See above for address) ATTORNEY TO BE NOTICED
Timothy Michael Belsan (See above for address) TERMINATED: 05/11/2018

Defendant
Daniel M Renaud in his official capacity as Associate Director of the Field Operations Directorate of the U.S. Citizenship and Immigration Services

Victoria Braga (See above for address) ATTORNEY TO BE NOTICED
Walter Manning Evans (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron R Petty (See above for address) TERMINATED: 04/29/2018
Andrew C Brinkman (See above for address) ATTORNEY TO BE NOTICED
Anne Donohue (See above for address) ATTORNEY TO BE NOTICED
Antonia Konkoly (See above for address) ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
Brendan T Moore (See above for address) ATTORNEY TO BE NOTICED
Brian C Kipnis (See above for address) ATTORNEY TO BE NOTICED
Brigham John Bowen (See above for address) ATTORNEY TO BE NOTICED
Christopher W. Hollis (See above for address) TERMINATED: 05/03/2018
Daniel E Bensing

(See above for address) TERMINATED: 07/22/2019
Derek C. Julius (See above for address) ATTORNEY TO BE NOTICED
Edward S. White (See above for address) TERMINATED: 04/29/2018
Ethan B Kanter (See above for address) ATTORNEY TO BE NOTICED
Jeffrey L Menkin (See above for address) TERMINATED: 12/06/2018
Jesse Busen (See above for address) ATTORNEY TO BE NOTICED
Joseph F. Carilli , Jr. (See above for address) TERMINATED: 05/11/2018
Kathryn C Davis (See above for address) TERMINATED: 12/03/2020
Leon B Taranto (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Murphy (See above for address) ATTORNEY TO BE NOTICED
Lyle D Jentzer (See above for address) TERMINATED: 03/14/2019
Michelle R Slack (See above for address) ATTORNEY TO BE NOTICED

Defendant
Donald J Trump President of the United States TERMINATED: 04/05/2021

Timothy Michael Belsan (See above for address) TERMINATED: 05/11/2018
Victoria Braga (See above for address) ATTORNEY TO BE NOTICED
Walter Manning Evans (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron R Petty (See above for address) TERMINATED: 04/29/2018
Andrew C Brinkman (See above for address) ATTORNEY TO BE NOTICED
Anne Donohue (See above for address) ATTORNEY TO BE NOTICED
Antonia Konkoly (See above for address) ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
Brendan T Moore (See above for address) ATTORNEY TO BE NOTICED
Brian C Kipnis (See above for address) ATTORNEY TO BE NOTICED
Brigham John Bowen (See above for address) ATTORNEY TO BE NOTICED

Christopher W. Hollis (See above for address) TERMINATED: 05/03/2018
Daniel E Bensing (See above for address) TERMINATED: 07/22/2019
Derek C. Julius (See above for address) ATTORNEY TO BE NOTICED
Edward S. White (See above for address) TERMINATED: 04/29/2018
Ethan B Kanter (See above for address) ATTORNEY TO BE NOTICED
Jeffrey L Menkin (See above for address) TERMINATED: 12/06/2018
Jesse Busen (See above for address) ATTORNEY TO BE NOTICED
Joseph F. Carilli , Jr. (See above for address) TERMINATED: 05/11/2018
Kathryn C Davis (See above for address) TERMINATED: 12/03/2020
Leon B Taranto (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Murphy (See above for address) ATTORNEY TO BE NOTICED
Lyle D Jentzer (See above for address)

Defendant
Joseph R Biden President of the United States

TERMINATED: 03/14/2019
Michelle R Slack (See above for address) ATTORNEY TO BE NOTICED
Timothy Michael Belsan (See above for address) TERMINATED: 05/11/2018
Victoria Braga (See above for address) ATTORNEY TO BE NOTICED
Walter Manning Evans (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew C Brinkman (See above for address) ATTORNEY TO BE NOTICED
Anne Donohue (See above for address) ATTORNEY TO BE NOTICED
Antonia Konkoly (See above for address) ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
Brendan T Moore (See above for address) ATTORNEY TO BE NOTICED
Brian C Kipnis (See above for address) ATTORNEY TO BE NOTICED
Brigham John Bowen (See above for address) ATTORNEY TO BE NOTICED

Amicus
Creating Law Enforcement Accountability & Responsibility

Derek C. Julius (See above for address) ATTORNEY TO BE NOTICED
Ethan B Kanter (See above for address) ATTORNEY TO BE NOTICED
Jesse Busen (See above for address) ATTORNEY TO BE NOTICED
Leon B Taranto (See above for address) ATTORNEY TO BE NOTICED
Lindsay M. Murphy (See above for address) ATTORNEY TO BE NOTICED
Michelle R Slack (See above for address) ATTORNEY TO BE NOTICED
Victoria Braga (See above for address) ATTORNEY TO BE NOTICED
Walter Manning Evans (See above for address) ATTORNEY TO BE NOTICED
represented by Julia Harvey MANATT PHELPS & PHILLIPS (MA) 177 HUNTINGTON AVE BOSTON, MA 02115 561-706-4360 Email: jharvey@manatt.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Gottlieb

Amicus
Asian Americans Advancing Justice - Asian Law Caucus

MANATT PHELPS & PHILLIPS LLP (IL) 151 N FRANKLIN ST STE 2600 CHICAGO, IL 60606 312-529-6310 Fax: 310-312-4224 Email: rgottlieb@manatt.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sirena Peleka Castillo MANATT PHELPS & PHILLIPS (CA) 2049 CENTURY PARK EAST STE 1700 LOS ANGELES, CA 90067 310-312-4336 Email: scastillo@manatt.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa R Lee RONALD A PETERSON LAW CLINIC SEATTLE UNIVERSITY SCHOOL OF LAW 1112 E COLUMBIA STREET SEATTLE, WA 98122 206-398-4394 Email: leeme@seattleu.edu ATTORNEY TO BE NOTICED
represented by Julia Harvey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Gottlieb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus National Immigration Project of the National Lawyers Guild
Amicus Other Civil Rights Organizations

Sirena Peleka Castillo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa R Lee (See above for address) ATTORNEY TO BE NOTICED
represented by Julia Harvey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Gottlieb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sirena Peleka Castillo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa R Lee (See above for address) ATTORNEY TO BE NOTICED
represented by Julia Harvey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Gottlieb (See above for address) LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Sirena Peleka Castillo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa R Lee (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/23/2017 01/24/2017 01/24/2017
01/24/2017 01/25/2017 01/26/2017 01/26/2017

# Docket Text
1 COMPLAINT against All Defendants (Receipt # 0981-4742817), filed by Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Civil Cover Sheet)(Adams, Matt) (Entered: 01/23/2017)
U.S. District Judge John C Coughenour added. (ST) (Entered: 01/24/2017)
NOTICE TO FILER: When opening a new case, the filer is responsible for entering party text exactly as it appears on the complaint. For example, in his official capacity as Secretary of the U.S. Department of Homeland Security should have been entered as party text for John F Kelly instead of being entered in the title field on the case participants screen. If you have questions about party text, please refer to the Attorney's Guide to Opening a Civil Case on the court's website at wawd.uscourts.gov. The docket has now been corrected. Thank you.(ST) (Entered: 01/24/2017)
2 PRAECIPE TO ISSUE SUMMONS re 1 Complaint by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe (Aldana Madrid, Glenda) (Entered: 01/24/2017)
3 Summons Issued electronically as to defendant(s) Matthew D Emrich, John F Kelly, Daniel M Renaud, Lori Scialaba, United States Citizenship and Immigration Services. (PM) (Entered: 01/25/2017)
4 ORDER REGARDING DISCOVERY AND DEPOSITIONS by U.S. District Judge John C. Coughenour. (PP) (Entered: 01/26/2017)
5 MINUTE ENTRY re: STATUS CONFERENCE.
The attorney who will be responsible for trying the case should attend the conference and be prepared to discuss the following matters at the

01/26/2017 01/26/2017 01/26/2017
01/26/2017

conference: 1. The nature of the case; 2. The status of matters which are presently set before the Court, e.g., hearings, motions, etc.; 3. The status of discovery and a time schedule for its completion; 4. A statement of any legal issues about which motions are contemplated and a possible briefing schedule; 5. An estimate of the number of days needed for trial; 6. Whether the case is jury or non-jury; 7. The date by which the case will be ready for trial; 8. Settlement probabilities; and 9. Whether the parties consent to proceed to trial before an assigned magistrate judge pursuant to 28 U.S.C. 636(c). If counsel's office is outside of the Greater Metropolitan Seattle area, arrangements may be made to participate telephonically in the conference by contacting the Courtroom Deputy Clerk at Paul_Pierson@wawd.uscourts.gov at least TEN (10) days prior to the proceeding. Counsel do NOT need to file a Joint Status Report or Rule 26(f) Report in advance of the Status Conference. Counsel should plan on arriving 10-15 minutes early to check in with the Courtroom Deputy Clerk, as the Court's calendar begins promptly at 9:00 a.m. COUNSEL OR THE PRO SE PARTY WHO FILED THIS MATTER SHALL IMMEDIATELY NOTIFY ALL PARTIES OF THE DATE AND TIME OF THE SCHEDULED STATUS CONFERENCE. A Status Conference is set for 5/2/2017 at 9:00 AM in Courtroom 16206 before U.S. District Judge John C. Coughenour. (PP) (Entered: 01/26/2017)
6 APPLICATION OF ATTORNEY Trina Realmuto FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe (Fee Paid) Receipt No. 0981-4747078 (Adams, Matt) (Entered: 01/26/2017)
7 APPLICATION OF ATTORNEY Kristin Macleod-Ball FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe (Fee Paid) Receipt No. 0981-4747088 (Adams, Matt) (Entered: 01/26/2017)
8 ORDER re 6 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Trina Realmuto for Mehdi Ostadhassan and for Abdiqafar Wagafe, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 01/26/2017)
9 ORDER re 7 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Kristin Macleod-Ball for Mehdi Ostadhassan and

01/26/2017 01/27/2017
01/31/2017 01/31/2017
01/31/2017 01/31/2017

for Abdiqafar Wagafe, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 01/26/2017)
10 APPLICATION OF ATTORNEY Stacy Tolchin FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe (Fee Paid) Receipt No. 0981-4747503 (Adams, Matt) (Entered: 01/26/2017)
11 ORDER re 10 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Stacy Tolchin for Mehdi Ostadhassan and for Abdiqafar Wagafe, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 01/27/2017)
12 APPLICATION OF ATTORNEY Hina Shamsi FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe (Fee Paid) Receipt No. 0981-4752134 (Chiang, Emily) (Entered: 01/31/2017)
13 ORDER re 12 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Hina Shamsi for Mehdi Ostadhassan and Abdiqafar Wagafe, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CDA) (Entered: 01/31/2017)
14 APPLICATION OF ATTORNEY Lee Gelernt FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe (Fee Paid) Receipt No. 0981-4752759 (Chiang, Emily) (Entered: 01/31/2017)
15 ORDER re 14 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Lee Gelernt for Mehdi Ostadhassan and

02/01/2017 02/01/2017 02/02/2017 02/02/2017 02/02/2017
02/03/2017 02/07/2017 02/07/2017

Abdiqafar Wagafe, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CDA) (Entered: 01/31/2017)
16 NOTICE of Appearance by attorney Nicholas Peter Gellert on behalf of Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe. (Gellert, Nicholas) (Entered: 02/01/2017)
17 AMENDED COMPLAINT against defendant(s) All Defendants, filed by Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Exhibit)(Adams, Matt) (Entered: 02/01/2017)
18 NOTICE of Appearance by attorney Aaron R Petty on behalf of Defendants Matthew D Emrich, John F. Kelly, Daniel M Renaud, Lori Scialaba, Donald Trump, United States Citizenship and Immigration Services. (Petty, Aaron) (Entered: 02/02/2017)
Attorneys Harry H Schneider, Jr, David A. Perez, and Kathryn Reddy for plaintiffs Mehdi Ostadhassan and Abdiqafar Wagafe added; per 16 Notice of Appearance. (CDA) (Entered: 02/02/2017)
19 PRAECIPE TO ISSUE SUMMONS re 17 Amended Complaint by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe (Attachments: # 1 Summons Donald Trump, # 2 Summons John E. Kelly, # 3 Summons Lori Scialabba, # 4 Summons Matthew D. Emrich, # 5 Summons Daniel Renaud, # 6 Summons USCIS)(Gellert, Nicholas) (Entered: 02/02/2017)
20 Summonses electronically issued as to defendant(s) Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(CDA) (Entered: 02/03/2017)
21 NOTICE of Appearance by attorney Edward S. White on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (White, Edward) (Entered: 02/07/2017)
22 NOTICE of Related Case(s) 17-cv-00141, 17-cv-00135, 17-cv-00178, by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe. (Gellert, Nicholas) (Entered: 02/07/2017)

02/07/2017 02/07/2017
02/07/2017 02/09/2017 02/09/2017 02/09/2017 02/09/2017 02/09/2017 02/09/2017

23 APPLICATION OF ATTORNEY Jennifer Pasquarella FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe (Fee Paid) Receipt No. 0981-4760202 (Adams, Matt) (Entered: 02/07/2017)
24 ORDER re 23 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Jennifer Pasquarella for Plaintiffs Mehdi Ostadhassan and for Abdiqafar Wagafe, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 02/07/2017)
25 CERTIFICATE OF SERVICE by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe re 19 Praecipe for a Summons, 20 Summons Issued, 17 Amended Complaint (Gellert, Nicholas) (Entered: 02/07/2017)
26 MOTION to Certify Class , filed by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 3/3/2017, (Perez, David) (Entered: 02/09/2017)
27 DECLARATION of Jennifer Pasquarella filed by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe re 26 MOTION to Certify Class (Attachments: # 1 Exhibit A-G)(Perez, David) (Entered: 02/09/2017)
28 DECLARATION of Abdiqafar Wagafe filed by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe re 26 MOTION to Certify Class (Perez, David) (Entered: 02/09/2017)
29 DECLARATION of Mehdi Ostadhassan filed by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe re 26 MOTION to Certify Class (Perez, David) (Entered: 02/09/2017)
30 DECLARATION of Lee Gelernt filed by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe re 26 MOTION to Certify Class (Perez, David) (Entered: 02/09/2017)
31 DECLARATION of Matt Adams filed by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe re 26 MOTION to Certify Class (Perez, David) (Entered: 02/09/2017)

02/09/2017 02/09/2017 02/09/2017 02/16/2017 02/22/2017 02/22/2017 02/27/2017 03/02/2017
03/20/2017

32 DECLARATION of Stacy Tolchin filed by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe re 26 MOTION to Certify Class (Perez, David) (Entered: 02/09/2017)
33 DECLARATION of Trina Realmuto filed by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe re 26 MOTION to Certify Class (Perez, David) (Entered: 02/09/2017)
34 DECLARATION of Harry H. Schneider, Jr. filed by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe re 26 MOTION to Certify Class (Perez, David) (Entered: 02/09/2017)
35 MOTION for Extension of Time to Respond to Plaintiffs' Motion for Class Certification, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 2/24/2017, (White, Edward) (Entered: 02/16/2017)
36 RESPONSE, by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe, to 35 MOTION for Extension of Time to Respond to Plaintiffs' Motion for Class Certification. (Gellert, Nicholas) (Entered: 02/22/2017)
37 REPLY, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services, TO RESPONSE to 35 MOTION for Extension of Time to Respond to Plaintiffs' Motion for Class Certification (White, Edward) (Entered: 02/22/2017)
38 MINUTE ORDER granting Defendants' 35 Motion for extension of time to response to Plaintiffs' 26 Motion to Certify Class. Response due 4/10/2017. Plaintiffs' 26 Motion to Certify Class is RENOTED to 4/14/2017. Authorized by U.S. District Judge John C Coughenour. (PM) (Entered: 02/27/2017)
39 MOTION to Transfer Case , filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Exhibit Naturalization Interview Results, # 2 Exhibit Notice of Naturalization Oath Ceremony, # 3 Exhibit Declaration of Leslie D. Tritten, # 4 Proposed Order) Noting Date 3/24/2017, (Petty, Aaron) (Entered: 03/02/2017)
40 REPLY, filed by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 39 MOTION to Transfer Case (Perez, David) (Entered: 03/20/2017)

03/20/2017 03/22/2017 03/23/2017 03/29/2017 03/31/2017
04/03/2017
04/04/2017 04/10/2017 04/10/2017

41 DECLARATION of Jennifer Pasquarella ISO Plaintiffs' Opposition to Defendants' Motion to Transfer Venue filed by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe re 39 MOTION to Transfer Case (Perez, David) (Entered: 03/20/2017)
42 MOTION to Amend Plaintiff's Motion for Leave to File Second Amended Complaint, filed by Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 4/7/2017, (Perez, David) (Entered: 03/22/2017)
43 REPLY, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services, TO RESPONSE to 39 MOTION to Transfer Case (Petty, Aaron) (Entered: 03/23/2017)
44 NOTICE of Appearance by attorney Laura Kaplan Hennessey on behalf of Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe. (Hennessey, Laura) (Entered: 03/29/2017)
45 Stipulated MOTION TO EXTEND DEFENDANTS' TIME TO RESPOND TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND [PROPOSED] ORDER, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. Noting Date 3/31/2017, (White, Edward) (Entered: 03/31/2017)
46 MINUTE ORDER granting 45 stipulated motion to extend Defendants' time to respond to Plaintiffs' motion for class certification 26 ; granting Plaintiffs' 42 motion for leave to file a second amended complaint; Amended complaint due within 30 days; staying until further notice Defendants' 39 motion to transfer venue. Authorized by U.S. District Judge John C Coughenour. (PM) (Entered: 04/03/2017)
47 Second AMENDED COMPLAINT for Declaratory and Injunctive Relief against defendant(s) All Defendants, filed by Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Exhibit Exhibits AI)(Perez, David) (Entered: 04/04/2017)
48 NOTICE Plaintiffs' Notice of Renoting Motion for Class Certification re 26 MOTION to Certify Class ; filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan. (Hennessey, Laura) (Entered: 04/10/2017)
49 Amended MOTION to Certify Class Plaintiffs' First Amended Motion for Class Certification, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan. Oral

04/10/2017 04/10/2017 04/10/2017 04/10/2017 04/11/2017
04/11/2017 04/18/2017

Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 5/19/2017, (Hennessey, Laura) (Entered: 04/10/2017)
50 DECLARATION of Mushtaq Abed Jihad filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan re 49 Amended MOTION to Certify Class Plaintiffs' First Amended Motion for Class Certification (Hennessey, Laura) (Entered: 04/10/2017)
51 DECLARATION of Hanin Omar Bengezi filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan re 49 Amended MOTION to Certify Class Plaintiffs' First Amended Motion for Class Certification (Hennessey, Laura) (Entered: 04/10/2017)
52 DECLARATION of Sajeel Manzoor filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan re 49 Amended MOTION to Certify Class Plaintiffs' First Amended Motion for Class Certification (Hennessey, Laura) (Entered: 04/10/2017)
53 Supplemental DECLARATION of Jennifer Pasquarella filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan re 49 Amended MOTION to Certify Class Plaintiffs' First Amended Motion for Class Certification (Hennessey, Laura) (Entered: 04/10/2017)
54 MINUTE ORDER per the filing of Plaintiffs' 48 amended motion to certify class, Plaintiffs' 26 motion to certify class is dismissed as moot. Defendants' response to the amended motion for class certification due 5/10/2017; Plaintiffs' reply due 5/19/2017. The Court lifts the stay of Defendants' 39 motion to transfer case and will issue a decision on that motion by 5/10/2017. Authorized by U.S. District Judge John C Coughenour. (PM) (Entered: 04/11/2017)
55 MINUTE ORDER denying Government's 39 motion to transfer venue. Authorized by U.S. District Judge John C Coughenour. (PM) (Entered: 04/11/2017)
56 MOTION to Dismiss , filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. Oral Argument Requested. (Attachments: # 1 Exhibit Exhibit A Scialabba Memo, # 2 Exhibit Exhibit B Tritten Declaration, # 3 Proposed Order Proposed Order) Noting Date 5/12/2017, (Petty, Aaron) (Entered: 04/18/2017)

04/24/2017 05/08/2017 05/08/2017 05/10/2017
05/12/2017 05/18/2017 05/19/2017 06/13/2017

57 NOTICE OF RESCHEDULED STATUS CONFERENCE. The Court, on its own motion and in the interest of judicial economy, hereby orders the Status Conference RESET from 5/2/2017 to 6/27/2017 at 9:00 AM in Courtroom 16206 before U.S. District Judge John C. Coughenour.(PP) (Entered: 04/24/2017)
58 RESPONSE, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, to 56 MOTION to Dismiss . Oral Argument Requested. (Hennessey, Laura) (Entered: 05/08/2017)
59 DECLARATION of Jennifer Pasquarella ISO Plaintiffs' Opposition to Defendants' Motion to Dismiss filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 56 MOTION to Dismiss (Hennessey, Laura) (Entered: 05/08/2017)
60 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services, to 49 Amended MOTION to Certify Class Plaintiffs' First Amended Motion for Class Certification. (Attachments: # 1 Exhibit A, Declaration of Leslie Tritten, # 2 Exhibit B, Bengezi I-485 Approval, # 3 Exhibit C, Jihad Form I-652, # 4 Exhibit D, Jihad Form I-445, # 5 Exhibit E, Manzoor naturalization certificate)(White, Edward) (Entered: 05/10/2017)
61 REPLY, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services, TO RESPONSE to 56 MOTION to Dismiss (Petty, Aaron) (Entered: 05/12/2017)
62 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Kathryn Reddy for Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Reddy, Kathryn) (Entered: 05/18/2017)
63 REPLY, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 49 Amended MOTION to Certify Class Plaintiffs' First Amended Motion for Class Certification (Hennessey, Laura) (Entered: 05/19/2017)
64 ORDER REASSIGNING CASE. The Honorable John C. Coughenour, United States District Judge, hereby RECUSES himself from this case. The case is REASSIGNED in rotation to the Honorable Richard A. Jones. Signed by U.S. District Judge John C Coughenour. (PM) Cc to RAJ. (Entered: 06/13/2017)

06/13/2017 06/13/2017 06/19/2017
06/21/2017 06/21/2017 06/21/2017 06/22/2017 06/30/2017

65 STANDING ORDER for Civil Cases Assigned to Judge Richard A. Jones. (VE) (Entered: 06/13/2017)
66 NOTICE of Stricken Hearing: As this matter has now been reassigned to Judge Richard A. Jones, STATUS CONFERENCE set for 6/27/2017 at 9:00 AM in STRICKEN. (VE) (Entered: 06/13/2017)
67 NOTICE TO PARTIES: When this case was originally filed as an immigration matter the court docketing system automatically placed a restricted access code on all documents that were filed pursuant to Local Rule 5.2 and Federal Rule of Civil Procedure 5.2. Due to this docketing format when the parties have filed pleadings public access has been restricted to case participants and the public access terminals in the courthouse. The effect of this format has caused nearly all of the pleadings filed to date to effectively be restricted from full public access. The Court does not believe this is warranted or the desire of the named plaintiffs. The Court exercises its discretion in ordering that the documents in this case be made fully accessible to the public, subject to certain redactions protecting Plaintiffs' personal information. If the parties wish for certain documents to remain restricted, then they must file redacted versions of those documents no later than Wednesday, June 21, 2017 at 12:00 p.m. P.S.T. The Court will not automatically restrict future filings in this matter. (VE) (Entered: 06/19/2017)
68 NOTICE of Filing Redacted Version of Court's Docket No. 53 Pursuant to Court's Notice re 67 Notice-Other,,,, ; filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Redacted Supplmenetal Declaration of Jennifer Pasquerella ISO Plaintiffs' Motion for Class Certification)(Hennessey, Laura) (Entered: 06/21/2017)
MINUTE ENTRY at the direction of Judge Jones: The Court hereby orders the Clerk make all the documents in this case, with the exception of dkt 53, available for remote public access. (RS) (Entered: 06/21/2017)
69 ORDER granting plaintiffs' 49 Motion to Certify Class; granting in part and denying in part defendants' 56 Motion to Dismiss signed by Judge Richard A Jones.(RS) (Entered: 06/21/2017)
70 ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT. FRCP 26f Conference Deadline is 7/7/2017, Initial Disclosure Deadline is 7/14/2017, Joint Status Report due by 7/21/2017, by Judge Richard A. Jones. (VE) (Entered: 06/22/2017)
71 NOTICE of Appearance by attorney Joseph F. Carilli, Jr on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori

06/30/2017 07/05/2017
07/06/2017 07/06/2017 07/06/2017 07/12/2017 07/13/2017 07/13/2017 07/18/2017

Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Carilli, Joseph) (Entered: 06/30/2017)
72 STIPULATION AND PROPOSED ORDER to Extend Time to Answer by parties (Carilli, Joseph) (Entered: 06/30/2017)
73 MOTION for Reconsideration re 69 Order on Motion to Certify Class, Order on Motion to Dismiss , filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Exhibit Declaration) Noting Date 7/5/2017, (Petty, Aaron) (Entered: 07/05/2017)
Set Deadlines: The Court will require Plaintiffs to respond to Defendants' 73 MOTION for Reconsideration. Plaintiffs' Responsive Brief due by 7/13/2017, and shall not exceed 10 pages in length. Defendants' Reply Brief due by 7/18/2017, and shall not exceed 5 pages in length. (VE) (Entered: 07/06/2017)
Noting Date Reset: 73 MOTION for Reconsideration is renoted for 7/18/2017 pursuant to the briefing schedule set by the Court. (VE) (Entered: 07/06/2017)
Reset Deadline: Pursuant to the parties' 72 STIPULATION to Extend Time to Answer, the Answer deadline shall be extended to 7/12/2017. (VE) (Entered: 07/06/2017)
74 ANSWER to 47 Amended Complaint by Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services.(Petty, Aaron) (Entered: 07/12/2017)
75 RESPONSE, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, to 73 MOTION for Reconsideration re 69 Order on Motion to Certify Class, Order on Motion to Dismiss . (Attachments: # 1 Proposed Order)(Hennessey, Laura) (Entered: 07/13/2017)
76 DECLARATION of Nicholas P. Gellert filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 73 MOTION for Reconsideration re 69 Order on Motion to Certify Class, Order on Motion to Dismiss (Hennessey, Laura) (Entered: 07/13/2017)
77 REPLY, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services, TO RESPONSE to 73 MOTION for

07/21/2017 07/28/2017 08/02/2017
08/08/2017 08/09/2017 08/09/2017
08/15/2017

Reconsideration re 69 Order on Motion to Certify Class, Order on Motion to Dismiss (Petty, Aaron) (Entered: 07/18/2017)
Reset Deadline: By agreement of the parties, deadline to submit Joint Status Report is extended to 7/28/2017. (VE) (Entered: 07/21/2017)
78 JOINT STATUS REPORT signed by all parties estimated Trial Days: 5. (Hennessey, Laura) (Entered: 07/28/2017)
79 ORDER SETTING TRIAL DATE AND RELATED DATES. Length of Trial: 5 days. BENCH TRIAL is set for 9/24/2018 at 9:00 AM before Judge Richard A. Jones. Joinder of Parties due by 10/20/2017, Amended Pleadings due by 3/28/2018, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 3/28/2018, Discovery completed by 5/29/2018, Dispositive motions due by 6/26/2018, Motions in Limine due by 8/27/2018, Pretrial Order due by 9/10/2018, Trial briefs, deposition designations, and trial exhibits to be submitted by 9/17/2018, by Judge Richard A. Jones. (VE) (Entered: 08/02/2017)
80 Stipulated MOTION for Order Pursuant to Federal Rule of Evidence 502(d), filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 8/8/2017, (Petty, Aaron) (Entered: 08/08/2017)
81 APPLICATION OF ATTORNEY Sameer Ahmed FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Fee Paid) Receipt No. 0981-4973754 (Perez, David) (Entered: 08/09/2017)
82 ORDER re 81 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Sameer Ahmed for Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan,and Abdiqafar Wagafe, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CDA) (Entered: 08/09/2017)
83 STIPULATED ORDER PURSUANT TO FEDERAL RULE OF EVIDENCE 502(d) signed by Judge Richard A. Jones. (VE) (Entered: 08/15/2017)

08/15/2017 08/16/2017 08/18/2017 08/22/2017
08/29/2017 09/21/2017 09/21/2017 09/28/2017 09/28/2017

84 Stipulated MOTION for Protective Order, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 8/15/2017, (Hennessey, Laura) (Entered: 08/15/2017)
85 ORDER denying Defendants' 73 Motion to Reconsideration Class Certification, signed by Judge Richard A Jones. (SWT) (Entered: 08/16/2017)
86 STIUPLATED PROTECTIVE ORDER by Judge Richard A. Jones. (VE) (Entered: 08/18/2017)
87 Stipulated MOTION for Entry of Agreement Regarding Discovery of Electronically Stored Information, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order PROPOSED Order) Noting Date 8/22/2017, (Hennessey, Laura) (Entered: 08/22/2017)
88 Agreement Regarding Discovery of Electronically Stored Information and Order, signed by Judge Richard A. Jones. (VE) (Entered: 08/29/2017)
89 NOTICE of Change of Address/Change of Name of Attorney Trina Realmuto. Filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Realmuto, Trina) Modified address and firm association on 9/21/2017 (DS). (Entered: 09/21/2017)
90 NOTICE of Change of Address/Change of Name of Attorney Kristin Macleod-Ball. Filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Macleod-Ball, Kristin) Modified address and firm association on 9/21/2017 (DS). (Entered: 09/21/2017)
91 MOTION to Compel Production of Documents, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 10/13/2017, (Hennessey, Laura) (Entered: 09/28/2017)
92 DECLARATION of David Perez in Support of Plaintiffs' Motion to Compel Production of Documents filed by Plaintiffs Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 91 MOTION to Compel Production of Documents (Hennessey, Laura) (Entered: 09/28/2017)

09/28/2017 10/10/2017
10/13/2017 10/13/2017 10/13/2017 10/19/2017 11/02/2017 11/03/2017

93 DECLARATION of Stacy Tolchin in Support of Plaintiffs' Motion to Compel Production of Documents filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 91 MOTION to Compel Production of Documents (Hennessey, Laura) (Entered: 09/28/2017)
94 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services, to 91 MOTION to Compel Production of Documents. (Attachments: # 1 Plaintiffs' First RFPs, # 2 Letter dated 9/11/17, # 3 Letter dated 9/22/17, # 4 Letter dated 9/27/17, # 5 First McCament Declaration, # 6 Second McCament Declaration, # 7 Eggleston Declaration, # 8 Emrich Declaration, # 9 Farnam Declaration)(Petty, Aaron) (Entered: 10/10/2017)
95 REPLY, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 91 MOTION to Compel Production of Documents (Hennessey, Laura) (Entered: 10/13/2017)
96 DECLARATION of Laura Hennessey filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 91 MOTION to Compel Production of Documents (Hennessey, Laura) (Entered: 10/13/2017)
97 DECLARATION of Jay Gairson filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 91 MOTION to Compel Production of Documents (Hennessey, Laura) (Entered: 10/13/2017)
98 ORDER granting in part and denying in part Plaintiffs' 91 Motion to Compel Production of Documents. The Court orders the parties to meet and confer and submit a joint status report thereafter in accordance with this Order. Signed by Judge Richard A Jones. (TH) (Entered: 10/19/2017)
99 MOTION for Reconsideration re 98 Order on Motion to Compel, , filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 11/2/2017, (White, Edward) (Entered: 11/02/2017)
Set Deadline: No later than 11/14/2017, the Court will require Plaintiffs to file a responsive brief to Defendants' 99 MOTION for Reconsideration, which shall not exceed 10 pages. No reply brief will be permitted. (VE) (Entered: 11/03/2017)

11/14/2017

100 RESPONSE, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, to 99 MOTION for Reconsideration re 98 Order on Motion to Compel, . (Perez, David) (Entered: 11/14/2017)

11/20/2017 101 JOINT STATUS REPORT signed by all parties estimated Trial Days: 0. (Attachments: # 1 Exhibit A)(Perez, David) (Entered: 11/20/2017)

11/28/2017 102 ORDER denying Defendants' 99 Motion for Reconsideration signed by Judge Richard A Jones. (TH) (Entered: 11/28/2017)

12/08/2017

103 MOTION to Expedite LCR 37 Submission Regarding Requests for Production Nos 23 & 24, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 12/8/2017, (Perez, David) (Entered: 12/08/2017)

01/10/2018

104 ORDER on LCR 37 Submission Regarding Requests for Production Nos. 23 & 24 re Plaintiffs' 103 MOTION to Expedite. The Court orders the parties to meet and confer within twenty-one (21) days from the date of this Order to discuss alternative custodians, non-custodial sources, search terms, and other means of review that Defendants will use to search for relevant documents. Defendants shall conduct their search of the records within ten (10) days of the parties' meeting. Defendants will then have thirty (30) days to produce relevant records, if any exist, to Plaintiffs or, in the alternative, to produce a privilege log. Signed by Judge Richard A Jones. (TH) (Entered: 01/10/2018)

02/01/2018

Set Hearing and Deadline: IN-COURT HEARING re: Discovery Disputes set for 2/8/2018 at 1:30 PM in Courtroom 13106 before Judge Richard A. Jones. No later than 2/6/2018 by 4:00 PM the parties shall submit either joint or separate briefing, not to exceed 5 pages, setting forth the parties' positions on the discovery disputes. (VE) (Entered: 02/01/2018)

02/06/2018

105 MOTION for Discovery Submission Regarding Discovery Dispute Relating to Requests for Production 23 and 24, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 2/8/2018, (Perez, David) Modified on 2/7/2018 to indicate document is not a motion, but a submission requested by the Court as to the parties' discovery dispute. (VE) (Entered: 02/06/2018)

02/06/2018

106 DECLARATION of David A. Perez filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 105 MOTION for Discovery Submission Regarding Discovery Dispute Relating to Requests for Production 23

and 24 (Attachments: # 1 Exhibit 1-8)(Perez, David) (Entered: 02/06/2018)

02/06/2018

107 Defendants' BRIEF re 104 Order,,, Terminate Motions,, Concerning Discovery Disputes by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services (Attachments: # 1 Chart)(White, Edward) (Entered: 02/06/2018)

02/07/2018

108 NOTICE of Appearance by attorney Timothy Michael Belsan on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Belsan, Timothy) (Entered: 02/07/2018)

02/07/2018

***Motion terminated: 105 MOTION for Discovery Submission Regarding Discovery Dispute Relating to Requests for Production 23 and 24 filed by Hanin Omar Bengezi, Mehdi Ostadhassan, Abdiqafar Wagafe, Sajeel Manzoor, Mushtaq Abed Jihad. Document is not a motion, but a submission required by the Court regarding the parties' discovery dispute, to be addressed at hearing set for 2/8/2018. (VE) (Entered: 02/07/2018)

02/08/2018

109 MOTION to Compel Re Law Enforcement Privilege, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 2/23/2018, (Perez, David) (Entered: 02/08/2018)

02/08/2018

110 DECLARATION of David A. Perez filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 109 MOTION to Compel Re Law Enforcement Privilege (Perez, David) (Entered: 02/08/2018)

02/08/2018

111 MOTION to Compel Production of Documents Responsive to RFPS 40, 41 and 44, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 2/23/2018, (Hennessey, Laura) (Entered: 02/08/2018)

02/08/2018

112 DECLARATION of Laura K. Hennessey filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 111 MOTION to Compel Production of Documents Responsive to RFPS 40, 41 and 44 (Hennessey, Laura) (Entered: 02/08/2018)

02/08/2018 113 MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: David Perez, Sameer Ahmed, Nicholas Gellert, Laura Hennessey, Matt Adams; Def

Counsel: Edward White, Joseph Carilli, Timothy Belsan; CR: Nancy Bauer; DISCOVERY HEARING held on 2/8/2018 regarding the parties' dispute as to Requests for Production 23 and 24. After hearing from counsel regarding their respective positions on search terms and proposed deadlines for production, the Court recesses the proceedings. The Court will reconvene this hearing by way of a telephone conference set for 2/14/2018 at 9:00 AM. No later than 3:00 PM on 2/13/2018, the parties shall submit to the Court a status update on the items upon which they have reached agreement. (VE) (Entered: 02/09/2018)

02/13/2018

114 Joint STATUS REPORT on Court's Order on LCR 37 Submission Regarding Requests for Production Nos. 23 & 24 by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Attachments: # 1 Exhibit 1)(Perez, David) (Entered: 02/13/2018)

02/14/2018

115 MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: David Perez, Sameer Ahmed, Nicholas Gellert, Laura Hennessey; Def Counsel: Edward White, Joseph Carilli, Timothy Belsan; CR: Debbie Zurn; TELEPHONE CONFERENCE held on 2/14/2018 regarding the outstanding discovery issues as set forth in the parties' 114 Joint Status Report on Court's Order on LCR 37 Submission Regarding Requests for Production Nos. 23 and 24. The Court hears from counsel as to the issues upon which the parties have reached agreement, provides direction to counsel as stated on the record regarding those issues that remain in dispute, and reserves further ruling pending the Court's determination on the outstanding motions to compel. (VE) (Entered: 02/14/2018)

02/16/2018

116 STATUS REPORT Plaintiffs' Status Report re Production Deadlines by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Perez, David) (Entered: 02/16/2018)

02/16/2018

117 STATUS REPORT On Court's Order on LCR 37 Submission Regarding Requests for Production Nos. 23 & 24, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services (Attachments: # 1 Exhibit Palmer Delcaration, # 2 Exhibit Jones Declaration, # 3 Exhibit Bell Declaration)(White, Edward) (Entered: 02/16/2018)

02/16/2018 118 DECLARATION of David Perez ISO Plaintiffs' Status Report re Production Timelines of David Perez in Support of Plainitffs' Status

Report re Production Timelines re 116 Status Report by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Perez, David) (Entered: 02/16/2018)

02/20/2018

119 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services, to 109 MOTION to Compel Re Law Enforcement Privilege. (Attachments: # 1 Exhibit, # 2 Exhibit)(Carilli, Joseph) (Entered: 02/20/2018)

02/20/2018

120 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services, to 111 MOTION to Compel Production of Documents Responsive to RFPS 40, 41 and 44. (Attachments: # 1 Exhibits A-E)(Petty, Aaron) (Entered: 02/20/2018)

02/21/2018 121 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephone Conference held on 2/14/2018 before Judge Richard A. Jones.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.

Release of Transcript Restriction set for 5/22/2018, (DZ) (Entered: 02/21/2018)

02/23/2018

122 REPLY, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 111 MOTION to Compel Production of Documents Responsive to RFPS 40, 41 and 44 (Perez, David) (Entered: 02/23/2018)

02/23/2018

123 REPLY, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 109 MOTION to Compel Re Law Enforcement Privilege (Perez, David) (Entered: 02/23/2018)

02/23/2018

124 STATUS REPORT on Court's Order on LCR 37 Submission Regarding Requests for Production Nos. 23 & 24, Supplemental to ECF No. 117 by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump (White, Edward) (Entered: 02/23/2018)

02/26/2018

125 RESPONSE by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 124 Status Report, Regarding Production Deadlines (Gellert, Nicholas) (Entered: 02/26/2018)

03/01/2018

126 MOTION for Protective Order , filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Exhibit A, Decl of Matthew Emrich (USCIS), # 2 Exhibit B, Decl. of David Eisenreich (FBI), # 3 Exhibit C, Decl. of Tatum King (ICE), # 4 Proposed Order) Noting Date 3/9/2018, (White, Edward) (Entered: 03/01/2018)

03/07/2018

127 RESPONSE, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, to 126 MOTION for Protective Order . (Perez, David) (Entered: 03/07/2018)

03/07/2018

128 DECLARATION of David A. Perez filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 126 MOTION for Protective Order (Attachments: # 1 Exhibit A-C)(Perez, David) (Entered: 03/07/2018)

03/08/2018 129 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Oral argument held on 2/8/2018 before Judge Richard A. Jones.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Nancy Bauer, nancy_bauer@wawd.uscourts.gov, 206-370-8506.

Release of Transcript Restriction set for 6/6/2018, (NB) (Entered: 03/08/2018)

03/09/2018

130 STATUS REPORT on Court's Order on LCR 37 Submission Regarding Requests for Production Nos. 23 & 24 by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services (Attachments: # 1 Exhibit 1, Decl of Joseph Carilli, # 2 Exhibit 2, Decl of Stephen Bell)(White, Edward) (Entered: 03/09/2018)

03/09/2018

131 REPLY, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services, TO RESPONSE to 126 MOTION for Protective Order (Petty, Aaron) (Entered: 03/09/2018)

03/12/2018

132 STATUS REPORT regarding Discovery by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Perez, David) (Entered: 03/12/2018)

03/14/2018

133 NOTICE of Appearance by attorney Christopher W. Hollis on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Hollis, Christopher) (Entered: 03/14/2018)

03/19/2018

134 MOTION Plaintiffs' Motion for Leave to File Overlength Brief in supp of Plaintiffs' Omnibus Motion for Sanctions , filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 3/19/2018, (Hennessey, Laura) (Entered: 03/19/2018)

03/21/2018 135 ORDER granting in part Plaintiff's 134 Motion for leave to file an overlength brief. Signed by Judge Richard A Jones. (PM) (Entered: 03/21/2018)

03/27/2018

136 Stipulated MOTION Stipulated Motion for Relief from Case Schedule Deadlines for Amending Pleadings and Expert Disclosures, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. Noting Date 3/27/2018, (Hennessey, Laura) (Entered: 03/27/2018)

03/27/2018

Pursuant to the parties' 136 Stipulated MOTION for Relief from Case Schedule Deadlines, the deadlines to file amended pleadings and for expert witness disclosures/reports are vacated pending the Court's ruling on the production timeline issues. (VE) (Entered: 03/27/2018)

03/29/2018 137 MOTION for Sanctions Plaintffs' Motion for Sanctions Against Defendants, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed

Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 4/13/2018, (Hennessey, Laura) (Entered: 03/29/2018)

03/29/2018

138 DECLARATION of Carol Sobel in Support of Plaintiffs' Motion for Sanctions filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 137 MOTION for Sanctions Plaintffs' Motion for Sanctions Against Defendants (Hennessey, Laura) (Entered: 03/29/2018)

03/29/2018

139 DECLARATION of Hugh Handeyside in Support of Plaintiffs' Motion for Sanctions filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 137 MOTION for Sanctions Plaintffs' Motion for Sanctions Against Defendants (Hennessey, Laura) (Entered: 03/29/2018)

03/29/2018

140 DECLARATION of Laura Hennessey in Support of Plaintiffs' Motion for Sanctions filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 137 MOTION for Sanctions Plaintffs' Motion for Sanctions Against Defendants (Hennessey, Laura) (Entered: 03/29/2018)

03/29/2018

141 DECLARATION of Matt Adams in Support of Plaintiffs' Motion for Sanctions filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 137 MOTION for Sanctions Plaintffs' Motion for Sanctions Against Defendants (Hennessey, Laura) (Entered: 03/29/2018)

03/29/2018

142 DECLARATION of Nicholas Gellert in Support of Motion for Sanctions filed by Plaintiffs Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 137 MOTION for Sanctions Plaintffs' Motion for Sanctions Against Defendants (Hennessey, Laura) (Entered: 03/29/2018)

03/29/2018

143 DECLARATION of Sameer Ahmed in Support of Plaintiffs' Motion for Sanctions filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 137 MOTION for Sanctions Plaintffs' Motion for Sanctions Against Defendants (Hennessey, Laura) (Entered: 03/29/2018)

03/29/2018

144 DECLARATION of Stacy Tolchin in Support of Plaintiffs' Motion for Sanctions filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 137 MOTION for Sanctions Plaintffs' Motion for Sanctions Against Defendants (Hennessey, Laura) (Entered: 03/29/2018)

03/29/2018

145 DECLARATION of Trina Realmuto in Support of Plaintiffs' Motion for Sanctions filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 137 MOTION for Sanctions Plaintffs' Motion for Sanctions Against Defendants (Hennessey, Laura) (Entered: 03/29/2018)

04/09/2018

146 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services, to 137 MOTION for Sanctions Plaintffs' Motion for Sanctions Against Defendants. (Attachments: # 1 Carilli Declaration, # 2 Blair Declaration, # 3 Emrich Declaration, # 4 Ghattas Declaration, # 5 King Declaration, # 6 Price Declaration, # 7 Wagner Declaration)(Petty, Aaron) (Entered: 04/09/2018)

04/09/2018

147 MOTION for Leave to Submit Documents Ex Parte, In Camera, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 4/9/2018, (Petty, Aaron) (Entered: 04/09/2018)

04/10/2018

Set Hearing: TELEPHONE CONFERENCE regarding 147 MOTION for Leave to Submit Documents Ex Parte, In Camera set for 4/12/2018 at 10:00 AM before Judge Richard A. Jones. (VE) (Entered: 04/10/2018)

04/11/2018

148 ORDER granting in part and denying in part Defendants' 109 Motion to Compel Re Law Enforcement Privilege; granting in part and denying in part Defendants' 111 Motion to Compel Production of Documents Responsive to RFPS 40, 41 and 44; granting in part and denying in part Defendants' 126 Motion for Protective Order. Signed by Judge Richard A Jones. (TH) (Entered: 04/11/2018)

04/12/2018

149 MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: Hugh Handeyside, David Perez; Def Counsel: Aaron Petty, Joseph Carilli; CR: Debbie Zurn; TELEPHONE CONFERENCE held on 4/12/2018. After hearing from counsel on Defendants' 147 MOTION for Leave to Submit Documents Ex Parte, In Camera, the Court sets the following briefing schedule: Defendants' supplemental brief is due 4/20/2018, Plaintiffs' response is due 4/25/2018, Defendants' reply is due 4/2/2018, and the motion is to be renoted for 4/27/2018. (VE) (Entered: 04/12/2018)

04/12/2018

Noting Date Reset: Defendants' 147 MOTION for Leave to Submit Documents Ex Parte, In Camera is renoted for 4/27/2018. (VE) (Entered: 04/12/2018)

04/13/2018

150 REPLY, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 137 MOTION for Sanctions Plaintffs' Motion for Sanctions Against Defendants (Hennessey, Laura) (Entered: 04/13/2018)

04/19/2018

151 NOTICE of Appearance by attorney August Flentje on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Flentje, August) (Entered: 04/19/2018)

04/19/2018

152 MOTION to Compel Plaintiffs' Motion to Compel Re Deliberative Process Privilege, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 5/4/2018, (Perez, David) (Entered: 04/19/2018)

04/19/2018

153 DECLARATION of David Perez in Support of Plainitffs' Motion to Compel Re Deliberative Process Privilege filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 152 MOTION to Compel Plaintiffs' Motion to Compel Re Deliberative Process Privilege (Perez, David) (Entered: 04/19/2018)

04/20/2018

154 Supplemental BRIEF re 147 MOTION for Leave to Submit Documents Ex Parte, In Camera submitted pursuant to Court's Order of Apr. 12, 2018, ECF No. 149, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services (White, Edward) (Entered: 04/20/2018)

04/20/2018

155 NOTICE Regarding Substitution of Counsel ; filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Flentje, August) (Entered: 04/20/2018)

04/20/2018

156 Emergency MOTION to Stay re 148 Order on Motion to Compel,,,, Order on Motion for Protective Order, Pending Appellate Review, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Exhibit A, Declaration of King, # 2 Exhibit B, Declaration of Renaud, # 3 Proposed Order) Noting Date 4/20/2018, (Flentje, August) (Entered: 04/20/2018)

04/23/2018

Set Deadline: Plaintiffs must file their response to Defendants' 156 Emergency MOTION to Stay Pending Appellate

Review no later than 4:30 PM on 4/24/2018. (VE) (Entered: 04/23/2018)

04/23/2018

157 RESPONSE, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, to 156 Emergency MOTION to Stay re 148 Order on Motion to Compel,,,, Order on Motion for Protective Order, Pending Appellate Review. (Perez, David) (Entered: 04/23/2018)

04/23/2018

158 DECLARATION of David Perez ISO Plaintiffs' Opposition to Defendants' Emergency Motion for Stay Pending Appellate Review filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 156 Emergency MOTION to Stay re 148 Order on Motion to Compel,,,, Order on Motion for Protective Order, Pending Appellate Review (Perez, David) (Entered: 04/23/2018)

04/23/2018

159 ORDER re Defendants' 156 Emergency Motion for stay pending appellate review. The Court will make a determination as to the motion's merits on Tuesday, April 24, 2018. Signed by Judge Richard A Jones. (PM) (Entered: 04/23/2018)

04/23/2018

160 NOTICE from 9th Circuit Court of Appeals (18-71171) A petition for writ of mandamus and/or prohibition has been received in the Clerk's Office of the United States Court of Appeals for the Ninth Circuit. The U.S. Court of Appeals docket number shown above has been assigned to this case. Always indicate this docket number when corresponding with this office about your case.If the U.S. Court of Appeals docket fee has not yet been paid, please make immediate arrangements to do so. If you wish to apply for in forma pauperis status, you must file a motion for permission to proceed in forma pauperis with this court. Pursuant to FRAP Rule 21(b), no answer to a petition for writ of mandamus and/or prohibition may be filed unless ordered by the Court. If such an order is issued, the answer shall be filed by the respondents within the time fixed by the Court. Pursuant to Circuit Rule 21-2, an application for writ of mandamus and/or prohibition shall not bear the name of the district court judge concerned. Rather, the appropriate district court shall be named as respondent. (CDA) (Entered: 04/24/2018)

04/24/2018 161 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephone Conference held on 4/12/2018 before Judge Richard A. Jones.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed,

the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.

Release of Transcript Restriction set for 7/23/2018, (DZ) (Entered: 04/24/2018)

04/24/2018

162 ORDER re Defendants' 156 Emergency MOTION to Stay re 148 Order on Motion to Compel, Order on Motion for Protective Order, Pending Appellate Review. The Court requires the Government to identify the total number of potential class members to the Court. The Court then requires a random sampling of these members with explanations why their names may not be produced to Plaintiffs. The Government must file these case-by-case determinations with the Court within seven (7) days from the date of this Order. The Court will reserve ruling on this motion for reconsideration pending review of the Government's samples. The Court finds it appropriate to stay the April 25, 2018 deadline to produce the unredacted class list until the Court has ruled on the motion for reconsideration. Signed by Judge Richard A Jones. (TH) (Entered: 04/24/2018)

04/25/2018

163 RESPONSE, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, to 147 MOTION for Leave to Submit Documents Ex Parte, In Camera. (Attachments: # 1 Proposed Order)(Hennessey, Laura) (Entered: 04/25/2018)

04/25/2018

164 NOTICE Regarding Ninth Circuit Filing re 162 Order,,, ; filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Exhibit Ninth Circuit Letter)(Flentje, August) (Entered: 04/25/2018)

04/25/2018

166 NOTICE/ORDER from 9th Circuit Court of Appeals (18-71171) re 160 Notice from 9th Circuit Court of Appeals. In light of petitioners April 25, 2018 letter filing, we deem the April 23, 2018 petition for writ of mandamus and the emergency motion at Docket Entry No. 2 withdrawn. SO ORDERED (CDA) (Entered: 04/26/2018)

04/26/2018

165 NOTICE of Appearance by attorney Derek C. Julius on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Certificate of Service)(Julius, Derek) (Entered: 04/26/2018)

04/27/2018

167 NOTICE of Appearance by attorney Lindsay M. Murphy on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Murphy, Lindsay) (Entered: 04/27/2018)

04/27/2018

168 NOTICE of Appearance by attorney Brian C Kipnis on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Kipnis, Brian) (Entered: 04/27/2018)

04/27/2018

169 REPLY, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services, TO RESPONSE to 147 MOTION for Leave to Submit Documents Ex Parte, In Camera (Flentje, August) (Entered: 04/27/2018)

04/29/2018

170 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Aaron R Petty for Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Petty, Aaron) (Entered: 04/29/2018)

04/29/2018

171 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Edward S. White for Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (White, Edward) (Entered: 04/29/2018)

04/30/2018

172 NOTICE of Appearance by attorney Lyle D Jentzer on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Jentzer, Lyle) (Entered: 04/30/2018)

04/30/2018

173 NOTICE of Appearance by attorney Andrew C Brinkman on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Certificate of Service)(Brinkman, Andrew) (Entered: 04/30/2018)

04/30/2018

174 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services, to 152 MOTION to Compel Plaintiffs' Motion to Compel Re Deliberative Process Privilege. (Attachments: # 1 Exhibit

Carilli Declaration, # 2 Exhibit Exhibits to Carilli Declaration, # 3 Exhibit Emrich Affidavit)(Flentje, August) (Entered: 04/30/2018)

05/01/2018

175 NOTICE of Appearance by attorney Ethan B Kanter on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Kanter, Ethan) (Entered: 05/01/2018)

05/01/2018

176 RESPONSE by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services re 162 Order,,, (Attachments: # 1 Exhibit Kassekert Declaration)(Flentje, August) (Entered: 05/01/2018)

05/03/2018

177 NOTICE of Appearance by attorney Jeffrey L Menkin on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Menkin, Jeffrey) (Entered: 05/03/2018)

05/03/2018

178 NOTICE of Appearance by attorney Daniel E Bensing on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Bensing, Daniel) (Entered: 05/03/2018)

05/03/2018

179 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Christopher W. Hollis for Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Hollis, Christopher) (Entered: 05/03/2018)

05/04/2018

180 REPLY, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 152 MOTION to Compel Plaintiffs' Motion to Compel Re Deliberative Process Privilege (Perez, David) (Entered: 05/04/2018)

05/04/2018 181 ORDER granting Defendants' 147 Motion for Leave to Submit Documents Ex Parte, In Camera signed by Judge Richard A Jones. (TH) (Entered: 05/04/2018)

05/08/2018

Set Hearing: TELEPHONE CONFERENCE set for 5/9/2018 at 10:00 AM before Judge Richard A. Jones. (VE) (Entered: 05/08/2018)

05/09/2018

182 MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: David Perez; Def Counsel: August Flentje, Brian Kipnis; CR: Debbie Zurn; TELEPHONE CONFERENCE held on 5/9/2018 re: Defendants' 156 Emergency MOTION to Stay re 148 Order on Motion to Compel, Order on Motion for Protective Order, Pending Appellate

Review. The Court hears from counsel and takes this matter under advisement. (VE) (Entered: 05/09/2018)

05/10/2018

183 ORDER re Defendants' 156 Emergency Motion to Stay pending appellate review. The Court understands this motion to be one for reconsideration of its April 11, 2018 Order denying in part Defendants' motion for a protective order. (Dkt. # 148 ). The Court GRANTS Defendants' motion for reconsideration. (Dkt. # 156 ). Signed by Judge Richard A. Jones. (TH) (Entered: 05/10/2018)

05/11/2018

184 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Timothy Michael Belsan for Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Belsan, Timothy) (Entered: 05/11/2018)

05/11/2018

185 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Joseph F. Carilli, Jr for Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Carilli, Joseph) (Entered: 05/11/2018)

05/16/2018

186 NOTICE of Appearance by attorney Brendan T Moore on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Moore, Brendan) (Entered: 05/16/2018)

05/17/2018 187 STIPULATION AND PROPOSED ORDER Stipulated Motion for Relief from Case Schedule by parties (Attachments: # 1 Proposed Order)(Hennessey, Laura) (Entered: 05/17/2018)

05/18/2018

188 NOTICE of Appearance by attorney Leon B Taranto on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Taranto, Leon) (Entered: 05/18/2018)

05/18/2018

Reset Deadlines: Pursuant to the parties' 187 Stipulated MOTION for Relief from Case Schedule, the trial date and all remaining pretrial deadlines are STRICKEN. On or before 6/14/2018, the Parties shall either (1) jointly submit an agreed proposed case schedule and new trial date, or (2) provide the Court with their respective positions (with supporting explanation not to exceed five pages) for a case schedule and a trial date. (VE) (Entered: 05/18/2018)

05/21/2018

189 ORDER re Plaintiffs' 152 MOTION to Compel Plaintiffs' Motion to Compel Re Deliberative Process Privilege. The Court reserves ruling on the motion pending supplemental briefing. Plaintiffs must file their supplemental brief within seven (7) days from the date of this Order; the Government will have five (5) days to respond; Plaintiffs will then

have five (5) days to reply. Signed by Judge Richard A. Jones. (TH) (Entered: 05/21/2018)

05/23/2018

190 STIPULATION AND PROPOSED ORDER Stipulated Motion to Postpone Supplemental Briefing re Deliberative Process Privilege by parties (Attachments: # 1 Proposed Order)(Hennessey, Laura) (Entered: 05/23/2018)

05/24/2018

191 STIPULATION AND PROPOSED ORDER Stipulation Regarding May 10, 2018 Order by parties (Attachments: # 1 Proposed Order)(Hennessey, Laura) (Entered: 05/24/2018)

05/25/2018

Reset Deadlines: The Court GRANTS the parties' 190 STIPULATED MOTION to Postpone Supplemental Briefing re Deliberative Process Privilege, and orders that Plaintiffs file a supplemental brief (if any) on or before 6/15/2018; that Defendants file a response (if any) by 6/22/2018; and that Plaintiffs file a reply (if any) by 6/29/2018. (VE) (Entered: 05/25/2018)

05/25/2018 192 ORDER by Judge Richard A. Jones GRANTING the parties' 191 STIPULATED MOTION Regarding May 10, 2018 Order. (VE) (Entered: 05/25/2018)

06/14/2018

193 RESPONSE STIPULATION and PROPOSED ORDER re Case Schedule and Trial Date by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services re Terminate Deadlines/Hearings,, Set/Reset Deadlines, (Flentje, August) Modified on 6/18/2018 to edit docket text to reflect language on pleading (TH). (Entered: 06/14/2018)

06/15/2018

194 Supplemental BRIEF re 152 MOTION to Compel Plaintiffs' Motion to Compel Re Deliberative Process Privilege by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Attachments: # 1 Proposed Order)(Hennessey, Laura) (Entered: 06/15/2018)

06/15/2018

195 DECLARATION of Laura K. Hennessey filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 152 MOTION to Compel Plaintiffs' Motion to Compel Re Deliberative Process Privilege (Hennessey, Laura) (Entered: 06/15/2018)

06/18/2018

NOTICE of Docket Text Modification re 193 Response (non motion), : Wrong event selected. Edited docket text to reflect language on pleading. (TH) (Entered: 06/18/2018)

06/19/2018

196 Stipulated MOTION to Postpone Supplemental Briefing re Deliberative Process Privilege, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 6/19/2018, (Brinkman, Andrew) (Entered: 06/19/2018)

06/20/2018

197 ORDER SETTING AMENDED TRIAL DATE AND RELATED DATES. Length of Trial: 5 days. Having considered the parties' 193 Stipulated Proposed Case Schedule and Trial Date, and taking into account the Court's availability, the Court sets the following trial date and pretrial deadlines: BENCH TRIAL is set for 3/11/2019 at 9:00 AM in Courtroom 13106 before Judge Richard A. Jones. Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 9/26/2018, Discovery completed by 11/13/2018, Dispositive motions due by 12/11/2018, Motions in Limine due by 2/11/2019, Pretrial Order due by 2/25/2019, Trial briefs, deposition designations, and trial exhibits to be submitted by 3/4/2019, by Judge Richard A. Jones. (VE) (Entered: 06/20/2018)

06/20/2018

Reset Deadlines: The Court GRANTS the parties' 196 STIPULATED MOTION to Postpone Supplemental Briefing re Deliberative Process Privilege, and orders that Defendants file a response (if any) by 7/6/2018, and that Plaintiffs file a reply (if any) by 7/13/2018. (VE) (Entered: 06/20/2018)

07/06/2018

198 Supplemental BRIEF re 152 MOTION to Compel Plaintiffs' Motion to Compel Re Deliberative Process Privilege by Defendants John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services (Attachments: # 1 Exhibit Emrich Affidavit, # 2 Exhibit Brinkman Affidavit)(Brinkman, Andrew) (Entered: 07/06/2018)

07/13/2018

199 SUPPLEMENTAL REPLY BRIEF, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 152 MOTION to Compel Plaintiffs' Motion to Compel Re Deliberative Process Privilege (Hennessey, Laura) (Entered: 07/13/2018)

09/26/2018

200 Joint MOTION for Extension of Time for Expert Disclosures, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 9/26/2018, (Bensing, Daniel) (Entered: 09/26/2018)

09/27/2018

Having considered the parties' 200 Joint MOTION for Extension of Time for Expert Disclosures, and finding good cause, the Court extends

the deadline for Expert Witness Disclosure/Reports under FRCP 26(a)(2) to 10/3/2018. (VE) (Entered: 09/27/2018)

10/03/2018

201 STIPULATION AND PROPOSED ORDER Stipulated Motion for Relief from Case Schedule Deadline for Expert Disclosures by parties (Attachments: # 1 Proposed Order)(Hennessey, Laura) (Entered: 10/03/2018)

10/04/2018

Having considered the parties' 201 STIPULATED MOTION for Relief from Case Schedule Deadline for Expert Disclosures, and finding good cause, the Court extends the deadline for Expert Witness Disclosure/Reports under FRCP 26(a)(2) to 10/12/2018. (VE) (Entered: 10/04/2018)

10/12/2018

202 Unopposed MOTION for Extension of Time to File Expert Disclosures, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 10/12/2018, (Bensing, Daniel) (Entered: 10/12/2018)

10/16/2018

Having considered the parties' 202 Unopposed MOTION for Extension of Time to File Expert Disclosures, and finding good cause, the Court extends the following deadlines: The parties' Expert Witness Disclosure/Reports under FRCP 26(a)(2) shall be due on or before 10/26/2018, and the parties' Responsive Expert Witness Disclosure/Reports under FRCP 26(a)(2) shall be due on or before 11/13/2018. (VE) (Entered: 10/16/2018)

10/26/2018

203 Unopposed MOTION for Extension of Time to File Expert Disclosures, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 10/26/2018, (Moore, Brendan) (Entered: 10/26/2018)

10/29/2018

Having considered the parties' 203 Unopposed MOTION for Extension of Time to File Expert Disclosures, and finding good cause, the Court extends the following deadlines: The parties' Expert Witness Disclosure/Reports under FRCP 26(a)(2) shall be due on or before 11/9/2018, and the parties' Responsive Expert Witness Disclosure/Reports under FRCP 26(a)(2) shall be due on or before 11/27/2018. (VE) (Entered: 10/29/2018)

11/08/2018 204 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Glenda Melinda Aldana Madrid for Plaintiffs Hanin Omar Bengezi, Mushtaq

Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Aldana Madrid, Glenda) (Entered: 11/08/2018)

11/09/2018

205 Stipulated MOTION for Entry of Proposed Amended Case Schedule and Trial Date, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Proposed Order)(Taranto, Leon) (Entered: 11/09/2018)

11/13/2018

206 ORDER SETTING AMENDED TRIAL DATE AND RELATED DATES. Length of Trial: 5 days. Having considered the parties' 205 Stipulated Motion for Entry of Proposed Amended Trial Date and Case Schedule, and finding good cause, the Court GRANTS the parties' Stipulated Motion and orders that the previously scheduled trial of this case and pretrial deadlines are amended as follows: BENCH TRIAL is continued to 7/29/2019 at 9:00 AM in Courtroom 13106 before Judge Richard A. Jones. Deadline to Complete Non-Expert Discovery is 2/11/2019, Expert Witness Disclosures/Reports Under FRCP 26(a)(2) due 2/25/2019, Deadline for Depositions (other than of experts) is 3/11/2019, Responsive Expert Witness Disclosure/ Reports Under FRCP 26(a)(2) due 3/18/2019, Deadline to Complete Expert Discovery is 4/11/2019, Dispositive motions must be filed by 4/25/2019, Motions in Limine must be filed by 6/25/2019, Agreed Pretrial Order due 7/8/2019, Trial briefs, deposition designations, and trial exhibits due 7/15/2019, by Judge Richard A. Jones. (VE) (Entered: 11/13/2018)

11/16/2018

207 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Laura Kaplan Hennessey for Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Hennessey, Laura) (Entered: 11/16/2018)

11/16/2018

208 NOTICE of Appearance by attorney Cristina Sepe on behalf of Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Sepe, Cristina) (Entered: 11/16/2018)

12/06/2018

209 NOTICE OF WITHDRAWAL OF COUNSEL: for Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Menkin, Jeffrey) (Entered: 12/06/2018)

12/11/2018

210 Stipulated MOTION to Set Briefing Schedule on Discovery Disputes, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 12/11/2018, (Sepe, Cristina) (Entered: 12/11/2018)

12/12/2018

Set Hearing: TELEPHONE CONFERENCE set for 12/18/2018 at 10:00 AM PDT before Judge Richard A. Jones. (VE) (Entered: 12/12/2018)

12/18/2018

211 MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: Sameer Ahmed; Def Counsel: Ethan Kanter, Brian Kipnis, Andrew Brinkman, Linsay Murphy; CR: Andrea Ramirez; TELEPHONE CONFERENCE held on 12/18/2018. The Court hears from counsel on the status of discovery; the status of Plaintiffs' 137 Motion for Sanctions; the status of Plaintiffs' 152 Motion to Compel; and whether the subject matter of the parties' proposed discovery motion briefing schedule is duplicative of Plaintiffs' previous discovery-related or sanctions motions. Counsel are directed to meet and confer, and no later than 12/21/2018 provide to the Court a proposed briefing schedule and the parties' proposed parameters of the in camera review of documents. (VE) (Entered: 12/18/2018)

12/21/2018

212 STATUS REPORT Parties' Joint Notice Following December 18, 2018 Status Conference by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services (Kipnis, Brian) (Entered: 12/21/2018)

01/03/2019

213 NOTICE of Change of Address/Change of Name of Attorney Trina Realmuto. Filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Realmuto, Trina) (Entered: 01/03/2019)

01/03/2019

214 ORDER granting parties' 210 Stipulated Motion to Set Briefing Schedule on Discovery Disputes. Plaintiffs' Motion to Compel due 1/3/2019, Defendants' Joint Opposition to Plaintiffs' Motion to Compel and Motion for Protective Order due 1/17/2019, Plaintiffs' Joint Reply in Support of Motion to Compel and Opposition to Defendants' Motion for Protective Order due 1/31/2019, Defendants' Reply in Support of Motion for Protective Order due 2/14/2019. Signed by Judge Richard A. Jones. (PM) (Entered: 01/03/2019)

01/03/2019

215 MOTION to Stay Due to Lapse of Appropriations, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald Trump, United States Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 1/11/2019, (Brinkman, Andrew) (Entered: 01/03/2019)

01/04/2019

216 NOTICE of Change of Address/Change of Name of Attorney Kristin Macleod-Ball. Filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Macleod-Ball, Kristin) (Entered: 01/04/2019)

01/14/2019

Having considered Defendants' unopposed 215 MOTION to Stay Due to Lapse of Appropriations, and finding good cause, the Court grants the motion. The existing case schedule is stayed pending further order of the Court. The parties shall meet and confer and submit a revised, proposed case schedule for the Court's consideration within ten days after Congress has appropriated funds for the government agencies involved in this case or within ten days after the Court has lifted the stay, whichever is sooner. (VE) (Entered: 01/14/2019)

01/29/2019

217 STIPULATION AND PROPOSED ORDER Stipulation for Order Extending Time to File Revised Proposed Case Schedule by Three Days; Order Thereon by parties re Terminate Motions,, (Kipnis, Brian) (Entered: 01/29/2019)

01/29/2019

Reset Deadlines: Having considered the parties' 217 STIPULATION for Order Extending Time to File Revised Proposed Case Schedule by Three Days, and finding good cause, the Court extends the date by which a revised proposed case schedule must be submitted to 2/7/2019. (VE) (Entered: 01/29/2019)

02/05/2019

218 NOTICE of Submission of Four Documents for In Camera Review at the Direction of the Court re 212 Status Report, 152 MOTION to Compel Plaintiffs' Motion to Compel Re Deliberative Process Privilege ; filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Kipnis, Brian) (Entered: 02/05/2019)

02/07/2019

219 Stipulated MOTION for Entry of Case Schedule, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 2/7/2019, (Moore, Brendan) (Entered: 02/07/2019)

02/14/2019

220 ORDER by Judge Richard A. Jones granting 219 Stipulated MOTION for Entry of Case Schedule. Having considered the parties' stipulated motion and finding good cause, the stay in this matter is lifted and the following schedule is adopted for the parties' filings relating to Plaintiffs' Motion to Compel and Defendants' Motion for Protective Order: Plaintiffs' Motion to Compel due 2/21/2019, Defendants' Opposition and Motion for Protective Order due 3/7/2019, Plaintiffs' Opposition to Defendants' Motion and Reply in support of Plaintiffs' Motion due 3/21/2019, Defendants' Reply in support of Defendants' Motion due 4/4/2019. BENCH TRIAL is reset for 10/21/2019 at 9:00 AM in Courtroom 13106 before Judge Richard A. Jones. Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 5/10/2019, Deadline for Depositions (other than of experts) is

5/24/2019, Responsive Expert Witness Disclosure/ Reports due 5/31/2019, Deadline to Complete Expert Discovery (including all expert depositions) is 6/24/2019, Dispositive motions due by 7/8/2019, Motions in Limine due by 9/9/2019, Pretrial Order due by 9/30/2019, Trial briefs, deposition designations, and trial exhibits to be submitted by 10/7/2019. (VE) (Entered: 02/14/2019)

02/21/2019

221 MOTION to Compel , filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order Granting Plaintiffs' Motion to Compel) Noting Date 4/5/2019, (Sepe, Cristina) (Entered: 02/21/2019)

02/21/2019

222 DECLARATION of Sameer Ahmed filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 221 MOTION to Compel (Attachments: # 1 Exhibit A-H)(Sepe, Cristina) (Entered: 02/21/2019)

02/27/2019

223 ORDER granting in part and denying in part Plaintiffs' 137 Motion for Sanctions. Within fourteen (14) days of this Order, Plaintiffs are directed to file supplemental briefing detailing the reasonable attorneys fees incurred in preparing and filing its Motion for Sanctions (Dkt. # 137 ). Within fourteen (14) days of Plaintiffs' filing, Defendants may file an opposition. Signed by Judge Richard A. Jones. (TH) (Entered: 02/27/2019)

02/27/2019

224 ORDER granting in part and denying in part and reserving ruling in part Plaintiff's 152 Motion to Compel. Within fourteen (14) days of this Order, Defendants are instructed to produce a randomly-selected sample of 10 documents from Paragraph 17 of the Emrich Affidavit for in camera review for this Court. Signed by Judge Richard A. Jones. (TH) (Entered: 02/27/2019)

03/05/2019 225 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephone Conference held on 12/18/2018 before Judge Richard A. Jones.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through

PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Andrea Ramirez, andrea_ramirez@wawd.uscourts.gov, 206-370-8509.

Release of Transcript Restriction set for 6/3/2019, (AR) (Entered: 03/05/2019)

03/07/2019

226 CROSS-MOTION AND RESPONSE re 221 MOTION to Compel ., filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A-F Declarations, # 3 Proposed Order, # 4 Certificate of Compliance) Noting Date 4/4/2019, (Moore, Brendan) (Entered: 03/07/2019)

03/07/2019

227 MOTION for leave to file ex parte, in camera declarations re 226 CROSS-MOTION AND RESPONSE re 221 MOTION to Compel . , filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 3/22/2019, (Moore, Brendan) (Entered: 03/07/2019)

03/08/2019

228 NOTICE OF LODGING re 227 MOTION for leave to file ex parte, in camera declarations re 226 CROSS-MOTION AND RESPONSE re 221 MOTION to Compel . ; filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Moore, Brendan) (Entered: 03/08/2019)

03/12/2019

229 NOTICE Notice of Submission of Ten Randomly Selected Documents for In Camera Review at the Direction of the Court; Declaration of Anthony J. Kassekert re 224 Order on Motion to Compel, ; filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Declaration of Anthony J. Kassekert)(Kipnis, Brian) (Entered: 03/12/2019)

03/13/2019

230 Unopposed MOTION for Reconsideration re 224 Order on Motion to Compel, , filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Exhibit Exhibits A-C, # 2 Proposed Order Proposed Order) Noting Date 3/13/2019, (Brinkman, Andrew) (Entered: 03/13/2019)

03/13/2019

231 SUPPLEMENTAL BRIEF re 223 Order on Motion for Sanctions, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Attachments: # 1 Proposed Order)(Sepe, Cristina) (Entered: 03/13/2019)

03/13/2019

232 DECLARATION of Nicholas P. Gellert re 231 Brief by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Attachments: # 1 Exhibit A)(Sepe, Cristina) (Entered: 03/13/2019)

03/13/2019 233 DECLARATION of Hugh Handeyside re 231 Brief by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Sepe, Cristina) (Entered: 03/13/2019)

03/13/2019

234 DECLARATION of Matt Adams re 231 Brief by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Sepe, Cristina) (Entered: 03/13/2019)

03/13/2019 235 DECLARATION of Sameer Ahmed re 231 Brief by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Sepe, Cristina) (Entered: 03/13/2019)

03/13/2019

236 DECLARATION of Stacy Tolchin re 231 Brief by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Sepe, Cristina) (Entered: 03/13/2019)

03/13/2019 237 DECLARATION of Trina Realmuto re 231 Brief by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Sepe, Cristina) (Entered: 03/13/2019)

03/14/2019

238 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Lyle D Jentzer for Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Murphy, Lindsay) (Entered: 03/14/2019)

03/18/2019

239 RESPONSE, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, to 227 MOTION for leave to file ex parte, in camera declarations re 226 CROSS-MOTION AND RESPONSE re 221 MOTION to Compel . . (Attachments: # 1 Proposed Order Denying Defendants' Motion for Leave to Submit Documents Ex Parte, In Camera)(Sepe, Cristina) (Entered: 03/18/2019)

03/21/2019 240 MOTION to Seal Plaintiffs' Reply to Motion to Compel and Opposition to Defendants' Cross-Motion for a Protective Order, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi

Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 4/5/2019, (Sepe, Cristina) (Entered: 03/21/2019)

03/21/2019

241 REPLY, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 221 MOTION to Compel , 226 CROSS-MOTION AND RESPONSE re 221 MOTION to Compel . (Sepe, Cristina) (Entered: 03/21/2019)

03/21/2019

242 DECLARATION of Sameer Ahmed filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 221 MOTION to Compel , 226 CROSSMOTION AND RESPONSE re 221 MOTION to Compel ., 240 MOTION to Seal Plaintiffs' Reply to Motion to Compel and Opposition to Defendants' Cross-Motion for a Protective Order (Attachments: # 1 Exhibit A-L (Public version))(Sepe, Cristina) (Entered: 03/21/2019)

03/21/2019

243 DECLARATION of Jay Gairson filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 221 MOTION to Compel , 226 CROSSMOTION AND RESPONSE re 221 MOTION to Compel . (Attachments: # 1 Exhibit A-W)(Sepe, Cristina) (Entered: 03/21/2019)

03/21/2019

244 SEALED DOCUMENT Reply in Support of Motion to Compel and Opposition to Defendants' Cross-Motion for a Protective Order by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 240 MOTION to Seal Plaintiffs' Reply to Motion to Compel and Opposition to Defendants' Cross-Motion for a Protective Order, 221 MOTION to Compel , 226 CROSS-MOTION AND RESPONSE re 221 MOTION to Compel . (Sepe, Cristina) (Entered: 03/21/2019)

03/21/2019

245 SEALED DOCUMENT Exhibit C to Declaration of Sameer Ahmed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 240 MOTION to Seal Plaintiffs' Reply to Motion to Compel and Opposition to Defendants' Cross-Motion for a Protective Order, 244 Sealed Document,, 241 Reply to Response to Motion, 242 Declaration, (Sepe, Cristina) (Entered: 03/21/2019)

03/21/2019

246 SEALED DOCUMENT Exhibit D to Declaration of Sameer Ahmed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 240 MOTION to Seal Plaintiffs' Reply to Motion to Compel and Opposition to Defendants' Cross-Motion for a Protective Order, 244 Sealed

Document,, 241 Reply to Response to Motion, 242 Declaration, (Sepe, Cristina) (Entered: 03/21/2019)

03/21/2019

247 SEALED DOCUMENT Exhibit E to Declaration of Sameer Ahmed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 240 MOTION to Seal Plaintiffs' Reply to Motion to Compel and Opposition to Defendants' Cross-Motion for a Protective Order, 244 Sealed Document,, 241 Reply to Response to Motion, 242 Declaration, (Sepe, Cristina) (Entered: 03/21/2019)

03/21/2019

248 SEALED DOCUMENT Exhibit F to Declaration of Sameer Ahmed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 240 MOTION to Seal Plaintiffs' Reply to Motion to Compel and Opposition to Defendants' Cross-Motion for a Protective Order, 244 Sealed Document,, 241 Reply to Response to Motion, 242 Declaration, (Sepe, Cristina) (Entered: 03/21/2019)

03/21/2019

249 SEALED DOCUMENT Exhibit G to Declaration of Sameer Ahmed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 240 MOTION to Seal Plaintiffs' Reply to Motion to Compel and Opposition to Defendants' Cross-Motion for a Protective Order, 244 Sealed Document,, 241 Reply to Response to Motion, 242 Declaration, (Sepe, Cristina) (Entered: 03/21/2019)

03/21/2019

250 SEALED DOCUMENT Exhibit H to Declaration of Sameer Ahmed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 240 MOTION to Seal Plaintiffs' Reply to Motion to Compel and Opposition to Defendants' Cross-Motion for a Protective Order, 244 Sealed Document,, 241 Reply to Response to Motion, 242 Declaration, (Sepe, Cristina) (Entered: 03/21/2019)

03/21/2019

251 SEALED DOCUMENT Exhibit I to Declaration of Sameer Ahmed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 240 MOTION to Seal Plaintiffs' Reply to Motion to Compel and Opposition to Defendants' Cross-Motion for a Protective Order, 244 Sealed Document,, 241 Reply to Response to Motion, 242 Declaration, (Sepe, Cristina) (Entered: 03/21/2019)

03/21/2019

252 SEALED DOCUMENT Exhibit J to Declaration of Sameer Ahmed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 240 MOTION to Seal Plaintiffs' Reply to Motion to Compel and Opposition to

Defendants' Cross-Motion for a Protective Order, 244 Sealed Document,, 241 Reply to Response to Motion, 242 Declaration, (Sepe, Cristina) (Entered: 03/21/2019)

03/21/2019

253 SEALED DOCUMENT Exhibit K to Declaration of Sameer Ahmed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor re 240 MOTION to Seal Plaintiffs' Reply to Motion to Compel and Opposition to Defendants' Cross-Motion for a Protective Order, 244 Sealed Document,, 241 Reply to Response to Motion, 242 Declaration, (Sepe, Cristina) (Entered: 03/21/2019)

03/22/2019

254 REPLY, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, TO RESPONSE to 227 MOTION for leave to file ex parte, in camera declarations re 226 CROSS-MOTION AND RESPONSE re 221 MOTION to Compel . (Taranto, Leon) (Entered: 03/22/2019)

03/27/2019

255 SUPPLEMENTAL RESPONSE BRIEF re 231 Brief, 223 Order on Motion for Sanctions, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services (Attachments: # 1 Exhibit Ex. 1)(Murphy, Lindsay) (Entered: 03/27/2019)

04/01/2019

256 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 240 MOTION to Seal Plaintiffs' Reply to Motion to Compel and Opposition to Defendants' Cross-Motion for a Protective Order. (Attachments: # 1 Exhibit Exhibit A)(Brinkman, Andrew) (Entered: 04/01/2019)

04/04/2019

257 REPLY, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, TO RESPONSE to 221 MOTION to Compel (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Moore, Brendan) (Entered: 04/04/2019)

04/04/2019

258 Second DECLARATION of Jill A. Eggleston filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 226 CROSS-MOTION AND RESPONSE re 221 MOTION to Compel . (Moore, Brendan) (Entered: 04/04/2019)

04/08/2019 259 NOTICE of Appearance by attorney Jesse Busen on behalf of Defendant Donald J Trump. (Busen, Jesse) (Entered: 04/08/2019)

04/11/2019

260 MOTION to Compel Documents Witheld Under the Law Enforcement and Deliberative Process Privileges, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 4/26/2019, (Sepe, Cristina) (Entered: 04/11/2019)

04/11/2019

261 DECLARATION of Sameer Ahmed filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 260 MOTION to Compel Documents Witheld Under the Law Enforcement and Deliberative Process Privileges (Sepe, Cristina) (Entered: 04/11/2019)

04/12/2019

262 NOTICE that the following is RE-NOTED: 260 MOTION to Compel Documents Witheld Under the Law Enforcement and Deliberative Process Privileges. Filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. Noting Date 5/3/2019, (Sepe, Cristina) (Entered: 04/12/2019)

04/23/2019

263 ORDER denying Plaintiff's Motion to Compel as to the Paragraph 17 documents (Dkt. # 152 ) and granting Defendants' Unopposed Motion for Reconsideration (Dkt. # 230 ). Signed by Judge Richard A. Jones. (TH) (Entered: 04/23/2019)

04/24/2019

264 Stipulated MOTION for Entry of Amended Case Schedule, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 4/24/2019, (Kipnis, Brian) (Entered: 04/24/2019)

04/24/2019

NOTICE REGARDING LACK OF PROPER SIGNATURE. The 264 Stipulated Motion, was improperly signed by Brian C. Kipnis. Signatures must be in accordance with FRCP 11 and LCR 83.2(a) and must comply with ECF Filing Procedures. Please file corrected signature page using Praecipe to Attach event and link to original filing. (MW) (Entered: 04/25/2019)

04/25/2019

265 ORDER SETTING AMENDED TRIAL DATE AND RELATED DATES. Length of Trial: 5 days. The Court, having considered the parties' 264 Stipulated MOTION for Entry of Amended Case Schedule, and finding good cause, GRANTS the motion and resets the trial date and pretrial deadlines as follows: BENCH TRIAL is continued to 3/2/2020. Deadline to Complete Discovery (other than expert discovery and all depositions), which extension does not authorize new written discovery requests (other than requests to admit) or subpoenas for document production is 7/26/2019, Expert Witness Disclosures/Reports Under FRCP 26(a)(2) due 9/6/2019, Deadline for Depositions (other

than of experts) is 9/20/2019, Responsive Expert Witness Disclosure/ Reports Under FRPC 26(a)(2) due by 9/27/2019, Deadline to Complete Expert Discovery is 10/21/2019, Dispositive Motions to be filed on or before 11/18/2019, Motions in Limine must be filed by 1/20/2020, Agreed Pretrial Order due by 1/31/2020, Trial briefs, deposition designations, and trial exhibits due 2/10/2020, by Judge Richard A. Jones. (VE) (Entered: 04/25/2019)

04/26/2019

266 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 260 MOTION to Compel Documents Witheld Under the Law Enforcement and Deliberative Process Privileges. (Attachments: # 1 Exhibit)(Bensing, Daniel) (Entered: 04/26/2019)

04/26/2019

267 MOTION for Leave to File document ex parte, in camera, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. Noting Date 5/17/2019, (Busen, Jesse) (Entered: 04/26/2019)

05/03/2019

268 NOTICE of Appearance by attorney Victoria Braga on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Certificate of Service)(Braga, Victoria) (Entered: 05/03/2019)

05/03/2019

269 REPLY, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 260 MOTION to Compel Documents Witheld Under the Law Enforcement and Deliberative Process Privileges (Sepe, Cristina) (Entered: 05/03/2019)

05/13/2019

270 RESPONSE, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, to 267 MOTION for Leave to File document ex parte, in camera. (Sepe, Cristina) (Entered: 05/13/2019)

05/17/2019

271 REPLY, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, TO RESPONSE to 267 MOTION for Leave to File document ex parte, in camera (Busen, Jesse) (Entered: 05/17/2019)

05/28/2019

272 ORDER granting Plaintiff's 240 Motion to Seal: Plaintiffs may retain the unredacted versions of Plaintiff's Reply to their Motion to Compel and Opposition to Defendants Cross-Motion (Dkt. # 244), and Exhibits C-K to the Ahmed Declaration (Dkt. ## 245-53), under seal. Signed by Judge Richard A. Jones.(MW) (Entered: 05/28/2019)

06/03/2019

273 ORDER granting Defendants' Motions to file the Declarations of Mr. Groh, Mr. Tabb, Mr. Emrich, and Mr. Allen ex parte and in camera; re Dkts. 227 , 267 . Signed by Judge Richard A. Jones. (SWT) (Entered: 06/03/2019)

07/09/2019

274 ORDER granting in part and denying in part Plaintiffs' 221 Motion to Compel; granting in part and denying in part Defendants' 226 Cross Motion for a Protective Order. Signed by Judge Richard A. Jones.(MW) (Entered: 07/09/2019)

07/12/2019

275 NOTICE of Appearance by attorney Brigham John Bowen on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Bowen, Brigham) (Entered: 07/12/2019)

07/22/2019

276 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Daniel E Bensing for Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Murphy, Lindsay) (Entered: 07/22/2019)

07/24/2019

277 STIPULATION AND PROPOSED ORDER - Stipulation for Order Provisionally Extending Deadlines; Order Thereon by parties re 274 Order on Motion to Compel, Order on Cross Motion (Kipnis, Brian) (Entered: 07/24/2019)

07/25/2019

Reset Deadlines: Having considered the parties' 277 STIPULATION for Order Provisionally Extending Deadlines, and finding good cause, the Court extends certain deadlines as follows: The time within which defendants shall be required to produce A-files of named plaintiffs, reredacted as set forth in the Court's 274 Order, is extended to 8/2/2019. The deadline to complete written discovery as set forth in the Court's 265 Order is extended to 8/2/2019. (VE) (Entered: 07/25/2019)

07/31/2019

278 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Sameer Ahmed for Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Ahmed, Sameer) (Entered: 07/31/2019)

08/02/2019

279 STIPULATION AND PROPOSED ORDER Stipulation for Order Revising Case Schedule; Order Thereon by parties re 265 Minute Order Setting Trial Date and Related Dates,,,, (Kipnis, Brian) (Entered: 08/02/2019)

08/09/2019

280 ORDER SETTING AMENDED TRIAL DATE AND RELATED DATES. Length of Trial: 5 days. Finding good cause, the Court GRANTS the parties' 279 STIPULATION for Order Revising Case Schedule and sets the following revised case schedule: BENCH

TRIAL is continued to 6/15/2020 at 9:00 AM in Courtroom 13106 before Judge Richard A. Jones. Deadline to file Administrative Record and/or Motion to file Administrative Record Under Seal is 9/10/2019, Deadline to Complete Discovery is 9/27/2019 (other than expert discovery and all depositions), which extension does not authorize new written discovery requests (other than requests to admit) or subpoenas for document production; Deadline to File Discovery-Related Motions is 10/18/2019, Expert Witness Disclosures/Reports Under FRCP 26(a)(2) by 11/29/2019, Deadline for Depositions (other than of experts) is 12/13/2019, Responsive Expert Witness Disclosure/ Reports Under FRCP 26(a)(2) due 1/10/2020, Deadline to Complete Expert Discovery (including all expert depositions) is 2/3/2020, Deadline for filing dispositive motions is 3/2/2020, Motions in limine filed by 5/4/2020, Agreed Pretrial Order due 5/15/2020, Trial briefs, deposition designations, and trial exhibits due 5/22/2020. Signed by Judge Richard A. Jones. (VE) (Entered: 08/09/2019)

09/10/2019

281 Stipulated MOTION - Stipulated Motion for Order Authorizing Portion of Administrative Record to be Filed Under Seal, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 9/10/2019, (Kipnis, Brian) (Entered: 09/10/2019)

09/10/2019

282 DECLARATION of Matthew D. Emrich Regarding Stipulated Motion to Seal Portions of the Administrative Record filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 281 Stipulated MOTION - Stipulated Motion for Order Authorizing Portion of Administrative Record to be Filed Under Seal (Kipnis, Brian) (Entered: 09/10/2019)

09/10/2019

283 DECLARATION of Brian C. Kipnis Regarding Certification of Fulfillment of Meet and Confer Requirement Re: Motion for Order Authorizing Portion of Administrative Record to be Filed Under Seal [LCR5(g)(3)(A)] filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 281 Stipulated MOTION - Stipulated Motion for Order Authorizing Portion of Administrative Record to be Filed Under Seal (Kipnis, Brian) (Entered: 09/10/2019)

09/13/2019

284 MINUTE ORDER (text only) entered upon the authority of Judge Richard A. Jones. Having considered the parties' 281 Stipulated MOTION - Stipulated Motion for Order Authorizing Portion of Administrative Record to be Filed Under Seal, and finding good cause, the Court GRANTS the motion. Defendants are granted leave to file the

portion of the certified administrative record that contains the documents listed in paragraph 5 of the Declaration of Matthew D. Emrich under seal within 30 days. Defendants shall also file the remaining administrative record documents in an unsealed portion of the administrative record at the same time. (VE) (Entered: 09/13/2019)

09/25/2019

285 STIPULATION AND PROPOSED ORDER Stipulation for Order Revising Case Schedule; Order Thereon by parties re 280 Order Setting Trial Date and Related Dates,,,,, (Braga, Victoria) (Entered: 09/25/2019)

10/11/2019

286 ADMINISTRATIVE RECORD filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Administrative Record Certification, # 2 Index for Administrative Record, # 3 Certified Administrative Record, # 4 Certificate of Service)(Kipnis, Brian) (Entered: 10/11/2019)

10/11/2019

287 SEALED ADMINISTRATIVE RECORD filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Administrative Record Certification, # 2 Index for Administrative Record, # 3 Part 1 of 11 - CAR000010 CAR000335, # 4 Part 2 of 11 - CAR000336 - CAR000591, # 5 Part 3 of 11 - CAR000592 - CAR000822, # 6 Part 4 of 11 - CAR000823 CAR001074, # 7 Part 5 of 11 - CAR001075 - CAR001325, # 8 Part 6 of 11 - CAR001326 - CAR001619, # 9 Part 7 of 11 - CAR001620 CAR001812, # 10 Part 8 of 11 - CAR001813 - CAR001898, # 11 Part 9 of 11 - CAR001899 - CAR001996, # 12 Part 10 of 11 - CAR001997 CAR002092, # 13 Part 11 of 11 - CAR002093 - CAR002172, # 14 Certificate of Service)(Kipnis, Brian) (Entered: 10/11/2019)

10/18/2019

288 NOTICE of Hearing: TELEPHONE CONFERENCE set for 10/24/2019 at 10:00 AM in Courtroom 13106 before Judge Richard A. Jones. (VE) (Entered: 10/18/2019)

10/18/2019

289 MOTION to Compel Plaintiffs' Interrogatory Responses and to Challenge the Sufficiency of Plaintiffs' Answers and Objections to Defendants' Requests for Admission, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Proposed Order) Noting Date 11/8/2019, (Moore, Brendan) (Entered: 10/18/2019)

10/21/2019

290 Stipulated MOTION to Seal Exhibits 1-25 ISO Plaintiffs' Motion to Compel, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments:

# 1 Proposed Order) Noting Date 10/21/2019, (Sepe, Cristina) (Entered: 10/21/2019)

10/21/2019

291 DECLARATION of Cristina Sepe filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 260 MOTION to Compel Documents Witheld Under the Law Enforcement and Deliberative Process Privileges (Attachments: # 1 Exhibit 1-25 (Public))(Sepe, Cristina) (Entered: 10/21/2019)

10/21/2019

292 SEALED DOCUMENT Exhibits 1-25 to Declaration of Cristina Sepe by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 290 Stipulated MOTION to Seal Exhibits 1-25 ISO Plaintiffs' Motion to Compel, 260 MOTION to Compel Documents Witheld Under the Law Enforcement and Deliberative Process Privileges (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25)(Sepe, Cristina) (Entered: 10/21/2019)

10/22/2019

293 NOTICE to Withdraw Pending Motion re 290 Stipulated MOTION to Seal Exhibits 1-25 ISO Plaintiffs' Motion to Compel ; by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Sepe, Cristina) (Entered: 10/22/2019)

10/22/2019

294 MOTION to Seal Exhibits 1-25, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 11/8/2019, (Sepe, Cristina) (Entered: 10/22/2019)

10/23/2019 295 ORDER granting Plaintiffs' 294 Motion to Seal Exhibits 1-25. Signed by Judge Richard A. Jones.(MW) (Entered: 10/23/2019)

10/23/2019

296 NOTICE of Appearance by attorney Heath L Hyatt on behalf of Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Hyatt, Heath) (Entered: 10/23/2019)

10/24/2019

297 MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: David Perez, Heath Hyatt; Def Counsel: Brian Kipnis, Ethan Kanter, Lindsay Murphy, Jesse Busen; CR: Nickie Drury; TELEPHONE CONFERENCE held on 10/24/2019. The Court hears argument of counsel and reserves ruling

on the parties' 285 STIPULATION for Order Revising Case Schedule. No later than 11/1/2019, Defendant shall submit to the Court the 25 documents at issue in the pending motion to compel in unredacted form for in camera review. (VE) (Entered: 10/24/2019)

10/24/2019

298 ORDER SETTING AMENDED TRIAL DATE AND RELATED DATES. Length of Trial: 5 days. Having considered the parties' 285 Stipulated MOTION to Continue the Trial Date and Revise the Case Schedule, and finding good cause, the Court GRANTS the stipulated motion and sets the following revised case schedule: BENCH TRIAL is continued to 8/17/2020. Deadline to Complete Discovery (other than expert discovery and all depositions), which extension does not authorize new written discovery requests (other than requests to admit) or subpoenas for document production is 11/29/2019, Deadline to File Discovery-Related Motions is 12/20/2019, Expert Witness Disclosures/Reports Under FRCP 26(a)(2) is 1/31/2020, Deadline for Depositions (other than of experts) is 2/14/2020, Responsive Expert Witness Disclosure/ Reports Under FRCP 26(a)(2) is 3/13/2020, Deadline to Complete Expert Discovery (including all expert depositions) is 4/6/2020, Deadline for filing dispositive motions is 5/11/2019, motions in limine must be filed by 7/13/2020, Agreed Pretrial Order due 7/24/2020, Trial briefs, deposition designations, and trial exhibits due 7/31/2020. Signed by Judge Richard A. Jones. (VE) (Entered: 10/24/2019)

10/25/2019 299 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephone Conference held on 10/24/2019 before Judge Richard A. Jones.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Nickoline Drury, nickoline_drury@wawd.uscourts.gov, 206-370-8508.

Release of Transcript Restriction set for 1/23/2020, (ND) (Entered: 10/25/2019)

11/01/2019

300 NOTICE of Submission of Twenty-Five Documents for In Camera Review at the Direction of the Court re 297 Telephone Conference,, ; filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Kipnis, Brian) (Entered: 11/01/2019)

11/04/2019

301 RESPONSE, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, to 289 MOTION to Compel Plaintiffs' Interrogatory Responses and to Challenge the Sufficiency of Plaintiffs' Answers and Objections to Defendants' Requests for Admission. (Sepe, Cristina) (Entered: 11/04/2019)

11/04/2019

302 DECLARATION of Cristina Sepe ISO Plaintiffs' Opposition to Defendants' Motion to Compel (with Exhibits A-B) filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 289 MOTION to Compel Plaintiffs' Interrogatory Responses and to Challenge the Sufficiency of Plaintiffs' Answers and Objections to Defendants' Requests for Admission (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sepe, Cristina) (Entered: 11/04/2019)

11/08/2019

303 REPLY, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, TO RESPONSE to 289 MOTION to Compel Plaintiffs' Interrogatory Responses and to Challenge the Sufficiency of Plaintiffs' Answers and Objections to Defendants' Requests for Admission (Attachments: # 1 Exhibit 1, Kipnis Decl.)(Braga, Victoria) (Entered: 11/08/2019)

11/20/2019

304 NOTICE of Appearance by attorney Michelle R Slack on behalf of Defendants Daniel M Renaud, Lori Scialabba, Matthew Emrich, John Kelly, Donald J Trump, US Citizenship and Immigration Services. (Slack, Michelle) Modified per counsel added additional parties that they represent on 11/20/2019 (STP). (Entered: 11/20/2019)

11/20/2019

NOTICE of Docket Text Modification re 304 Notice of Appearance : per counsel added additional parties that they represent. (STP) (Entered: 11/20/2019)

12/17/2019 305 STIPULATION AND PROPOSED ORDER revising case schedule by parties (Busen, Jesse) (Entered: 12/17/2019)

12/18/2019

Reset Deadlines: Having considered the parties' 305 STIPULATION revising case schedule, and finding good cause, the Court modifies its 298 case schedule as follows: The deadline to file discovery-related motions is extended to 1/2/2020. Any

such motions shall be noted for 1/17/2020. The deadline to serve expert witness disclosures/reports pursuant to FRCP 26(a)(2) is extended to 2/28/2020, except that the parties shall make disclosure by 1/31/2020, of the number of experts to be disclosed, the field of expertise of each such expert witness, and a summary of the subject matter of that expert witness' disclosure/report and expected testimony. The deadline to serve responsive expert witness disclosures/reports pursuant to FRCP 26(a)(2) is extended to 3/28/2020. The trial date and all other deadlines set forth in the Court's 298 Order remain in effect. (VE) (Entered: 12/18/2019)

12/31/2019

306 NOTICE of Appearance by attorney John B. Midgley on behalf of Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Midgley, John) (Entered: 12/31/2019)

12/31/2019

307 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Emily Chiang for Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Midgley, John) (Entered: 12/31/2019)

12/31/2019

308 Stipulated MOTION to Modify Discovery-Related Motions Deadline, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 12/31/2019, (Sepe, Cristina) (Entered: 12/31/2019)

01/03/2020

Reset Deadline: Having considered the parties' 308 Stipulated MOTION to Modify Discovery-Related Motions Deadline, and finding good cause, the Court grants the stipulated motion. Discovery-related motions shall be filed by 1/9/2020 and noted for 1/24/2020. All other deadlines previously set remain in effect. (VE) (Entered: 01/03/2020)

01/09/2020

309 MOTION for Court Permission to Interview Limited Number of Persons Who Suspect They Have Been Subjected to CARRP re 183 Order on Motion to Stay, , filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 1/24/2020, (Sepe, Cristina) (Entered: 01/09/2020)

01/09/2020

310 DECLARATION of Cristina Sepe ISO Motion for Court Permission to Interview Limited Number of Persons re 309 MOTION for Court Permission to Interview Limited Number of Persons Who Suspect They Have Been Subjected to CARRP re 183 Order on Motion to Stay, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Attachments: # 1 Exhibit AC)(Sepe, Cristina) (Entered: 01/09/2020)

01/09/2020

311 MOTION to Seal Exhibits to the Declaration in Support of Plaintiffs' Motion to Compel, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. Noting Date 1/24/2020, (Sepe, Cristina) (Entered: 01/09/2020)

01/09/2020

312 MOTION to Compel Documents Withheld Under the Law Enforcement and Deliberative Process Privileges, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 1/24/2020, (Sepe, Cristina) (Entered: 01/09/2020)

01/09/2020

313 DECLARATION of Heath Hyatt filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 312 MOTION to Compel Documents Withheld Under the Law Enforcement and Deliberative Process Privileges (Sepe, Cristina) (Entered: 01/09/2020)

01/09/2020

314 SEALED DOCUMENT Exhibits 1-3 to Declaration of Heath Hyatt by Plaintiffs Hanin Omar Bengezi, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 311 MOTION to Seal Exhibits to the Declaration in Support of Plaintiffs' Motion to Compel, 313 Declaration, (Sepe, Cristina) (Entered: 01/09/2020)

01/09/2020

315 MOTION to Seal Exhibits C-F to Sepe Declaration, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. Noting Date 1/24/2020, (Sepe, Cristina) (Entered: 01/09/2020)

01/09/2020

316 MOTION to Compel A-File Information, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. Noting Date 1/24/2020, (Sepe, Cristina) (Entered: 01/10/2020)

01/10/2020

317 DECLARATION of Cristina Sepe ISO Plaintiffs' Motion to Compel re 316 MOTION to Compel A-File Information by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Attachments: # 1 Exhibit A-F)(Sepe, Cristina) (Entered: 01/10/2020)

01/10/2020

318 SEALED DOCUMENT Exhibits C-F to Declaration of Cristina Sepe by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 315 MOTION to Seal Exhibits C-F to Sepe Declaration, 316 MOTION to Compel A-File Information (Sepe, Cristina) (Entered: 01/10/2020)

01/14/2020 319 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Cristina Sepe for Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel

Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Sepe, Cristina) (Entered: 01/14/2020)

01/16/2020

320 ORDER granting in part and denying in part Plaintiff's 260 Motion to Compel: Defendants are ordered to reproduce the 25 documents in Plaintiffs' motion consistent with the parameters outlined above within twenty-one (21) days from the date of this order. Signed by Judge Richard A. Jones.(MW) (Entered: 01/16/2020)

01/17/2020

321 Stipulated MOTION revising case schedule, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. Noting Date 1/17/2020, (Busen, Jesse) (Entered: 01/17/2020)

01/17/2020

322 STIPULATION AND ORDER revising case schedule re parties' 321 Stipulated Motion. The deadline for Defendants to file their response to the motion to compel, Dkt. 312 , shall be moved to February 4, 2020, and the deadline for Plaintiffs to file their reply shall be moved to February 7, 2020. Defendants will review and reproduce the documents at issue in the motion to compel to Plaintiffs by January 27, 2020, and the parties will hold a meet and confer on January 31, 2020, to determine what, if any, issues remain for purposes of the motion to compel. Signed by Judge Richard A. Jones. (TH) (Entered: 01/17/2020)

01/21/2020

323 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 311 MOTION to Seal Exhibits to the Declaration in Support of Plaintiffs' Motion to Compel. (Busen, Jesse) (Entered: 01/21/2020)

01/21/2020

324 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 315 MOTION to Seal Exhibits C-F to Sepe Declaration. (Busen, Jesse) (Entered: 01/21/2020)

01/21/2020

325 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 309 MOTION for Court Permission to Interview Limited Number of Persons Who Suspect They Have Been Subjected to CARRP re 183 Order on Motion to Stay, . (Brinkman, Andrew) (Entered: 01/21/2020)

01/21/2020 326 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 316 MOTION to Compel A-File Information.

(Attachments: # 1 Exhibits A-F)(Murphy, Lindsay) (Entered: 01/21/2020)

01/24/2020

327 REPLY, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 309 MOTION for Court Permission to Interview Limited Number of Persons Who Suspect They Have Been Subjected to CARRP re 183 Order on Motion to Stay, (Hyatt, Heath) (Entered: 01/24/2020)

01/24/2020

328 REPLY, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 316 MOTION to Compel A-File Information (Hyatt, Heath) (Filed by clerk due to system unavailability) (MW) (Entered: 01/27/2020)

01/24/2020

329 MOTION to Seal Hyatt Declaration and Attached Exhibit in Support of 316 Motion to Compel Named Plaintiffs' A-Files, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Hyatt, Heath) (Filed by clerk due to system unavailability) Noting Date 1/24/2020 (MW) (Entered: 01/27/2020)

01/24/2020

330 SEALED DOCUMENT Declaration of Heath Hyatt by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 316 MOTION to Compel A-File Information. (Hyatt, Heath) (Filed by clerk due to system unavailability) (Attachments: # 1 Exhibit A)(MW) (Entered: 01/27/2020)

01/27/2020

331 [Duplicate entry, see 332 ] Stipulated MOTION to Seal, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. Noting Date 1/27/2020, (Hyatt, Heath) Modified on 1/28/2020 (MW). (Entered: 01/27/2020)

01/27/2020 332 MOTION to Seal (Stipulated), filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. Noting Date 1/27/2020, (Hyatt, Heath) (Entered: 01/27/2020)

01/27/2020

333 SEALED DOCUMENT Stipulated Motion by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 332 MOTION to Seal (Stipulated) (Hyatt, Heath) (Entered: 01/27/2020)

01/27/2020 334 Redacted Stipulated MOTION , filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan,

Abdiqafar Wagafe. Noting Date 1/27/2020, (Hyatt, Heath) (Entered: 01/27/2020)

01/28/2020

Noting Date Reset: Plaintiffs' 329 MOTION to Seal Hyatt Declaration and Attached Exhibit in Support of 316 Motion to Compel Named Plaintiffs' A-Files is renoted for 2/7/2020, pursuant to LCR 7(d)(2)(C). (VE) (Entered: 01/28/2020)

01/30/2020

335 APPLICATION OF ATTORNEY Michelle Y. Cho FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Mehdi Ostadhassan, Abdiqafar Wagafe (Fee Paid) Receipt No. AWAWDC-6113319 (Hyatt, Heath) (Entered: 01/30/2020)

01/30/2020

336 ORDER re 335 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Michelle Cho for plaintiffs Mehdi Ostadhassan and Abdiqafar Wagafe, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CDA) (Entered: 01/30/2020)

02/03/2020

337 MINUTE ORDER (text only) entered upon the authority of Judge Richard A. Jones. Having considered the parties' 332 MOTION to Seal (Stipulated) and 334 Redacted Stipulated MOTION to Seal, and finding good cause, the Court GRANTS the motions. (VE) (Entered: 02/03/2020)

02/03/2020

338 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 329 MOTION to Seal. (Busen, Jesse) (Entered: 02/03/2020)

02/04/2020

339 NOTICE of Appearance by attorney Paige L Whidbee on behalf of Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan. (Whidbee, Paige) Modified on 2/4/2020 adding Ms. Whidbee as counsel for Wagafe.(JF). (Entered: 02/04/2020)

02/04/2020

NOTICE of Docket Text Modification re 339 Notice of Appearance : Modified to include Plaintiff Wagafe as being represented by Ms. Whidbee (JF) (Entered: 02/04/2020)

02/04/2020

340 ORDER granting Plaintiffs' Motions to Seal (Dkt. Nos. 311 , 315 ). Exhibits 1-3 of the Hyatt Declaration (Dkt. # 314 ) and Exhibits C-F of the Sepe Declaration (Dkt. # 318 ) shall remain under seal. Signed by Judge Richard A. Jones. (TH) (Entered: 02/04/2020)

02/04/2020

341 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 312 MOTION to Compel Documents Withheld Under the Law Enforcement and Deliberative Process Privileges. (Attachments: # 1 Exhibit A, CAR Duplicates Chart, # 2 Exhibit B, E-Mails, # 3 Exhibit C, Emrich Decl., # 4 Exhibit D, Scardaville Decl., # 5 Exhibit E, Campbell Decl., # 6 Exhibit F, Allen Decl., # 7 Exhibit F, Jung Decl.)(Braga, Victoria) (Entered: 02/04/2020)

02/05/2020

342 NOTICE of Appearance by attorney Kathryn C Davis on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Davis, Kathryn) (Entered: 02/05/2020)

02/07/2020 343 STIPULATION to Hold Ostadhassan Deposition after Deadline for Depositions by parties (Hyatt, Heath) (Entered: 02/07/2020)

02/07/2020

344 REPLY, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 312 MOTION to Compel Documents Withheld Under the Law Enforcement and Deliberative Process Privileges (Attachments: # 1 Proposed Order)(Hyatt, Heath) (Entered: 02/07/2020)

02/07/2020

345 DECLARATION of Heath Hyatt filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 312 MOTION to Compel Documents Withheld Under the Law Enforcement and Deliberative Process Privileges (Hyatt, Heath) (Entered: 02/07/2020)

02/13/2020

346 STIPULATION AND PROPOSED ORDER - Stipulation to Hold Rule 30(b)(6) Deposition of U.S. Citizenship and Immigration Services After Deadline for Depositions by parties (Kipnis, Brian) (Entered: 02/13/2020)

02/13/2020

347 MINUTE ORDER (text only), authorized by Judge Richard A. Jones. Having considered the parties' 346 STIPULATION - Stipulation to Hold Rule 30(b)(6) Deposition of U.S. Citizenship and Immigration Services After Deadline for Depositions, and finding good cause, the Court orders that the deadline for depositions (other than experts) shall not apply to the Rule 30(b)(6) deposition of U.S. Citizenship and Immigration Services originally noted for 2/13/2020. The parties are free to schedule the deposition at a mutually agreeable time after 2/14/2020. (VE) (Entered: 02/13/2020)

03/24/2020

348 Joint Stipulated MOTION to Temporarily Suspend Case Schedule, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. Noting Date 3/24/2020, (Murphy, Lindsay) (Entered: 03/24/2020)

03/26/2020

349 MINUTE ORDER (text only) entered upon the authority of Judge Richard A. Jones. Having considered the parties' 348 Joint Stipulated MOTION to Temporarily Suspend Case Schedule, and finding good cause, the Court GRANTS the motion. The trial date is STRICKEN and the case schedule established by the Court is suspended until such time as current limitations no longer impair counsel's ability to meet case deadlines and efficiently perform their duties associated with this case. Counsel shall file a Joint Status Report no later than 4/27/2020 setting forth any progress made in this matter since the date of this minute order. (VE) (Entered: 03/26/2020)

04/20/2020

350 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Trina Realmuto for Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Realmuto, Trina) (Entered: 04/20/2020)

04/27/2020

351 JOINT STATUS REPORT signed by all parties. Filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services.(Kipnis, Brian) (Entered: 04/27/2020)

04/28/2020

Set Deadline: The Court acknowledges it has received and reviewed the parties' 352 JOINT STATUS REPORT. The parties shall file an updated Joint Status Report by 5/27/2020. (VE) (Entered: 04/28/2020)

05/07/2020

Set Hearing: TELEPHONE CONFERENCE set for 5/14/2020 at 9:30 AM before Judge Richard A. Jones. (VE) (Entered: 05/07/2020)

05/12/2020 352 ORDER granting Plaintiff's 329 Motion to Seal. Signed by Judge Richard A. Jones.(MW) (Entered: 05/12/2020)

05/14/2020

353 NOTICE of Appearance by attorney Molly Tack-Hooper on behalf of Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Tack-Hooper, Molly) (Entered: 05/14/2020)

05/14/2020

354 MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: Heath Hyatt; Def Counsel: Victoria Braga, Brian Kipnis, Andrew Brinkman, Michelle Slack; CR: Nickie Drury; TELEPHONE CONFERENCE held on 5/14/2020. The Court hears from counsel on the pending discovery motions, Dkts. 289 , 309 , 312 , and 316 . For the reasons stated on the

record, the Court will enter an order STRIKING the pending motions and requiring counsel to meet and confer and file a joint submission setting forth the substance of the meet and confer efforts, the areas of resolution or compromise, and any remaining issues. (VE) (Entered: 05/14/2020)

05/14/2020

355 MINUTE ORDER: The Court STRIKES the four pending discovery motions (Dkt. ## 289 , 309 , 312 , 316 ) and ORDERS the parties to meet and confer within 10 days from the date of this order. No later than 5/26/2020, the parties must submit a joint status report describing the substance of their meet and confer efforts, areas of resolution or compromise, and any remaining issues. The parties' filing should also propose a revised case schedule. A telephonic status conference will be set for 5/28/2020 at 9:30 am. Authorized by Judge Richard A. Jones. (MW) (Entered: 05/14/2020)

05/14/2020

356 ORDER ON SANCTIONS: Plaintiffs' request for sanctions in connection with the litigation of Plaintiffs' motion for sanctions (Dkt. # 137 ) is GRANTED. Dkt. # 231 . Within 30 (thirty) days of the date of this order, Defendants are ordered to pay $36,738.04, along with the $50,507.92 previously ordered (see Dkt. # 223 ), to the Perkins Coie Trust Account. Signed by Judge Richard A. Jones. (MW) (Entered: 05/14/2020)

05/26/2020 357 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Motions Hearing held on 5/14/2020 before Judge Richard A. Jones.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Nickoline Drury, nickoline_drury@wawd.uscourts.gov, 206-370-8508.

Release of Transcript Restriction set for 8/24/2020, (ND) (Entered: 05/26/2020)

05/26/2020 358 APPLICATION OF ATTORNEY Sameer Ahmed FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Hanin Omar Bengezi,

Mushtaq Abed Jihad, Mehdi Ostadhassan, Abdiqafar Wagafe (Fee Paid) Receipt No. AWAWDC-6359990 (Hyatt, Heath) (Entered: 05/26/2020)

05/26/2020 359 JOINT STATUS REPORT signed by all parties. (Moore, Brendan) (Entered: 05/26/2020)

05/27/2020

360 ORDER re 358 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Sameer Ahmed for Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, and for Abdiqafar Wagafe, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 05/27/2020)

05/28/2020

361 MINUTE ENTRY for proceedings held before Judge Richard A. JonesDep Clerk: Victoria Ericksen; Pla Counsel: Heath Hyatt, Nicholas Gellert; Def Counsel: Brian Kipnis, Michelle Slack, Victoria Braga, Ethan Kanter, Andrew Brinkman; CR: Nickie Drury; TELEPHONE CONFERENCE held on 5/28/2020. The Court and counsel discuss the discovery issues and proposed deadlines set forth in the parties' 359 JOINT STATUS REPORT. Telephone Conference set for 7/1/2020 at 9:30 AM in Courtroom 13106 before Judge Richard A. Jones. (VE) (Entered: 05/28/2020)

06/05/2020

362 STIPULATION AND PROPOSED ORDER Stipulation for Extension of Time for Parties to Reach Agreement on Resolution of Plaintiffs' Motion re: Notice Responders; Order Thereon by parties (Kipnis, Brian) (Entered: 06/05/2020)

06/08/2020

Reset Deadline: Having considered the parties' 362 STIPULATION for Extension of Time for Parties to Reach Agreement on Resolution of Plaintiffs' Motion re: Notice Responders, and finding good cause, the Court adopts the stipulation. The parties shall have until 6/12/2020, to lodge a stipulation with the Court containing their proposed resolution of Plaintiffs' 309 Motion for an Order Amending the Protective Order to Contact Class Notice, or to notify the Court that the matter remains unresolved. (VE) (Entered: 06/08/2020)

06/09/2020 363 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Motions Hearing held on 5/28/2020 before Judge Richard A. Jones.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Nickoline Drury, nickoline_drury@wawd.uscourts.gov, 206-370-8508.

Release of Transcript Restriction set for 9/8/2020, (ND) Transcript provisionally SEALED on 7/8/2020 per 376 Notice to the Parties and pending the Court's ruling on the 375 MOTION for Redaction. (VE) (Entered: 06/09/2020)

06/10/2020

364 NOTICE of Appearance by attorney Walter Manning Evans on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Evans, Walter) (Entered: 06/10/2020)

06/12/2020

365 STATUS REPORT (Plaintiffs') regarding Motion to Amend Protective Order (Dkt. 309) by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Hyatt, Heath) (Entered: 06/12/2020)

06/12/2020

366 STATUS REPORT REGARDING PLAINTIFFS' MOTION TO AMEND PROTECTIVE ORDER (DKT. #309) by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services (Brinkman, Andrew) (Entered: 06/12/2020)

06/16/2020 367 NOTICE of Intent to Request Redaction by Jesse Busen of 363 Electronic Transcript (Busen, Jesse) (Entered: 06/16/2020)

06/19/2020

368 MOTION to Seal Defendants' Unopposed Motion to Seal, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 6/19/2020, (Kipnis, Brian) (Entered: 06/19/2020)

06/19/2020

369 SEALED DOCUMENT Stipulation for Order Resolving Plaintiffs' Motion for Court Permission to Interview Limited Number of Persons (DKT. #309); Order Thereon by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 368 MOTION to Seal Defendants' Unopposed Motion to Seal, 309 MOTION for Court Permission to Interview Limited Number of Persons Who Suspect They Have Been Subjected to CARRP re 183 Order on Motion to Stay, (Kipnis, Brian) (Entered: 06/19/2020)

06/23/2020

370 MINUTE ORDER (text only) granting 368 MOTION to Seal Defendants' Unopposed Motion to Seal. The parties' 369 Stipulation for an Order Resolving Plaintiffs' Motion For Court Permission to Interview Limited Number of Persons shall be maintained under seal. Authorized by Judge Richard A. Jones. (VE) (Entered: 06/23/2020)

06/23/2020

371 SEALED STIPULATION AND ORDER Resolving Plaintiffs' Motion for Court Permission to Interview Limited Number of Persons, signed by Judge Richard A. Jones. (cc: Counsel via email) (VE) (Entered: 06/23/2020)

06/26/2020 372 STATUS REPORT by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Whidbee, Paige) (Entered: 06/26/2020)

06/26/2020

373 STATUS REPORT by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services (Braga, Victoria) (Entered: 06/26/2020)

07/01/2020

Set Deadlines and Reset Hearing: The Court GRANTS Plaintiffs' request for supplemental briefing. Plaintiffs are ordered to submit a supplemental brief, not to exceed 15 pages, addressing the remaining discovery disputes, by 7/10/2020. Defendants may submit a response, not to exceed 15 pages, no later than 7/17/2020. TELEPHONE CONFERENCE reset for 7/22/2020 at 10:00 AM before Judge Richard A. Jones. (VE) (Entered: 07/01/2020)

07/07/2020

374 MOTION to Seal motion to redact 5/28/2020 hearing transcript, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. Noting Date 7/24/2020, (Busen, Jesse) (Entered: 07/07/2020)

07/07/2020

375 SEALED MOTION to redact the 5/28/2020 hearing transcript; re 374 MOTION to Seal motion to redact 5/28/2020 hearing transcript ; by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and

Immigration Services. Noting Date 7/24/2020, (Busen, Jesse) (Entered: 07/07/2020)

07/08/2020

376 NOTICE TO THE PARTIES: The Court has provisionally sealed the 363 TRANSCRIPT of the telephone conference held on 5/28/2020, pending its ruling on Defendants' 375 SEALED MOTION to Redact the 5/28/2020 Hearing Transcript. After the Court's ruling on the Motion to Redact, the transcript will either be unsealed in its entirety or with redactions if the Court so orders. (cc: Court Reporter) (VE) (Entered: 07/08/2020)

07/10/2020

377 MOTION to Seal Plaintiffs' Supplemental Brief re: Outstanding Discovery Disputes and Supporting Documents, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. Noting Date 7/31/2020, (Whidbee, Paige) (Entered: 07/10/2020)

07/10/2020

378 (Redacted) Supplemental BRIEF re 372 Status Report (Re Outstanding Discovery Disputes) by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Whidbee, Paige) (Entered: 07/10/2020)

07/10/2020

379 DECLARATION of Paige L. Whidbee re 378 Brief by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Whidbee, Paige) (Entered: 07/10/2020)

07/10/2020

380 SEALED DOCUMENT Supplemental Brief re: Outstanding Discovery Disputes by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 377 MOTION to Seal Plaintiffs' Supplemental Brief re: Outstanding Discovery Disputes and Supporting Documents, 378 Brief (Whidbee, Paige) (Entered: 07/10/2020)

07/10/2020

381 SEALED DOCUMENT Exhibits A-SS to Declaration of Paige L. Whidbee by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 377 MOTION to Seal Plaintiffs' Supplemental Brief re: Outstanding Discovery Disputes and Supporting Documents, 379 Declaration (non motion) (Whidbee, Paige) (Entered: 07/10/2020)

07/17/2020

382 MOTION to Seal Defendants' Response to Plaintiffs' Supplemental Brief and Supporting Exhibits, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. Noting Date 8/7/2020, (Braga, Victoria) (Entered: 07/17/2020)

07/17/2020

383 (Redacted) Responsive BRIEF re 380 Sealed Document, 378 Brief by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services (Braga, Victoria) (Entered: 07/17/2020)

07/17/2020

384 DECLARATION of Victoria M. Braga re 383 Brief by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services (Attachments: # 1 Exhibit Ex. B, CARRP Policy)(Braga, Victoria) (Entered: 07/17/2020)

07/17/2020

385 SEALED DOCUMENT Responsive Brief by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 382 MOTION to Seal Defendants' Response to Plaintiffs' Supplemental Brief and Supporting Exhibits, 380 Sealed Document, 378 Brief (Braga, Victoria) (Entered: 07/17/2020)

07/17/2020

386 SEALED DOCUMENT Exhibits A, C-S by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 382 MOTION to Seal Defendants' Response to Plaintiffs' Supplemental Brief and Supporting Exhibits, 384 Declaration (non motion), (Attachments: # 1 Exhibit Ex. A, # 2 Exhibit Ex. C, # 3 Exhibit Ex. D, # 4 Exhibit Ex. E, # 5 Exhibit Ex. F, # 6 Exhibit Ex. G, # 7 Exhibit Ex. H, # 8 Exhibit Ex. I, # 9 Exhibit Ex. J, # 10 Exhibit Ex. K, # 11 Exhibit Ex. L, # 12 Exhibit Ex. M, # 13 Exhibit Ex. N, # 14 Exhibit Ex. O, # 15 Exhibit Ex. P, # 16 Exhibit Ex. Q, # 17 Exhibit Ex. R, # 18 Ex. S)(Braga, Victoria) (Entered: 07/17/2020)

07/20/2020

387 RESPONSE, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, to 375 SEALED MOTION to redact the 5/28/2020 hearing transcript; re 374 MOTION to Seal motion to redact 5/28/2020 hearing transcript ;, 374 MOTION to Seal motion to redact 5/28/2020 hearing transcript. (Hyatt, Heath) (Entered: 07/20/2020)

07/22/2020

388 MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: Sameer Ahmed, Nicholas Gellert, Heath Hyatt; Def Counsel: Victoria Braga, Michelle Slack, Brian Kipnis; CR: Debbie Zurn; TELEPHONE CONFERENCE held on 7/22/2020 regarding the parties' ongoing discovery dispute related to information as to why named Plaintiffs were subjected to CARRP. After hearing from counsel, the Court determines it will consider conducting an in camera document review. The Court requires counsel to meet and confer and file a joint submission identifying the scope and

anticipated volume of the possible in camera review. (VE) Modified on 7/23/2020 (VE). (Entered: 07/22/2020)

07/23/2020

NOTICE of Docket Text Modification re: 388 Telephone Conference. Docket entry modified as follows: After hearing from counsel, the Court determines it will consider conducting an in camera document review. The Court requires counsel to meet and confer and file a joint submission identifying the scope and anticipated volume of the possible in camera review. (VE) (Entered: 07/23/2020)

07/24/2020

389 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 377 MOTION to Seal Plaintiffs' Supplemental Brief re: Outstanding Discovery Disputes and Supporting Documents. (Busen, Jesse) (Entered: 07/24/2020)

07/24/2020

390 MOTION to Seal Defendants' reply to Plaintiffs' opposition to the motion to redact the May 28, 2020 hearing transcript, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. Noting Date 8/7/2020, (Busen, Jesse) (Entered: 07/24/2020)

07/24/2020

391 SEALED DOCUMENT Defendants' reply to Plaintiffs' opposition to the motion to redact the May 28, 2020 hearing transcript by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 390 MOTION to Seal Defendants' reply to Plaintiffs' opposition to the motion to redact the May 28, 2020 hearing transcript (Busen, Jesse) (Entered: 07/24/2020)

07/24/2020

392 ORDER: This matter comes before the Court sua sponte. On 7/22/2020, this Court held a telephone conference with the parties to discuss outstanding discovery disputes detailed in the parties' supplemental briefings. Dkt. ## 378 (Plaintiffs' supplemental briefing), 383 (Defendants' responsive briefing). Having considered the parties' briefs and oral arguments, the Court ORDERS as follows: The center of dispute between the parties is the scope of what should be produced from the five A-Files, and the Defendants have represented there may be thousands of pages of documents contained within the files. The Court is amenable to an in-camera review of the A-Files, and the parties are directed to meet and confer to narrow the scope of the AFile review. Based upon the parties' submission, the Court will make a final determination of whether it will take a random selection of the AFiles or review the entirety of what the parties have recommended. The parties have agreed to provide the narrowed scope of documents to the Court by 8/5/2020.

The Court DENIES Plaintiff's request to subpoena third agencies as untimely. The deadlines set by the Court have passed and it will not revisit that topic. Dkt. # 280 . The Attorneys' Eyes Only Protective Orders (Dkt. ## 183 , 192 ) are sufficient and the Court is not convinced that, based upon the record, there is any reason to modify or revise what was previously approved. With respect to Defendants' clawback requests, if Defendants believe they have a basis, they need to file a motion. The Court reserves further decisions pending its decision on the requested in-camera document review. Signed by Judge Richard A. Jones. (MW) (Entered: 07/24/2020)

07/29/2020

Noting Date Reset: 390 MOTION to Seal Defendants' reply to Plaintiffs' opposition to the motion to redact the May 28, 2020 hearing transcript filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services is renoted for 8/14/2020, pursuant to LCR 7(d)(3). (VE) (Entered: 07/29/2020)

08/03/2020

393 APPLICATION OF ATTORNEY Sabrineh Ardalan FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Fee Paid) Receipt No. AWAWDC-6505275 (Hyatt, Heath) (Entered: 08/03/2020)

08/05/2020

394 STATEMENT re 392 Order,,,,,,, Redacted Joint Statement by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services (Braga, Victoria) (Entered: 08/05/2020)

08/05/2020

395 MOTION to Seal Joint Submission, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. Noting Date 8/21/2020, (Braga, Victoria) (Entered: 08/05/2020)

08/05/2020

396 SEALED DOCUMENT Joint Submission by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 395 MOTION to Seal Joint Submission, 392 Order,,,,,,, (Braga, Victoria) (Entered: 08/05/2020)

08/06/2020

397 MOTION to Exclude Untimely Disclosed Witnesses, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 8/21/2020, (Hyatt, Heath) (Entered: 08/06/2020)

08/06/2020 398 DECLARATION of Nicholas Gellert filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan,

Abdiqafar Wagafe re 397 MOTION to Exclude Untimely Disclosed Witnesses (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Hyatt, Heath) (Entered: 08/06/2020)

08/12/2020

399 Stipulated Unopposed MOTION to Seal Stipulation for Order to Modify Protective Order Thereon, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. Noting Date 8/28/2020, (Hyatt, Heath) Modified on 8/24/2020 to correct document title. (VE) (Entered: 08/12/2020)

08/12/2020 400 STIPULATION AND PROPOSED ORDER (Redacted) to Modify Protective Order; Order Thereon by parties re 183 Order on Motion to Stay, (Hyatt, Heath) (Entered: 08/12/2020)

08/12/2020

401 SEALED DOCUMENT Stipulation for Order to Modify Protective Order; Order Thereon by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 399 Stipulated MOTION to Seal Stipulation for Order to Modify Protective Order Thereon, 183 Order on Motion to Stay, (Hyatt, Heath) (Entered: 08/12/2020)

08/13/2020

402 ORDER re 393 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Sabrineh Ardalan for Plaintiffs Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, and Abdiqafar Wagafe, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 08/13/2020)

08/16/2020

403 NOTICE of Appearance by attorney Antonia Konkoly on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Konkoly, Antonia) (Entered: 08/16/2020)

08/17/2020

404 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 397 MOTION to Exclude Untimely Disclosed Witnesses. (Busen, Jesse) (Entered: 08/17/2020)

08/17/2020

405 DECLARATION of Jesse Busen filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 397 MOTION to Exclude Untimely Disclosed Witnesses (Attachments: # 1 Exhibit Exhibits A-E)(Busen, Jesse) (Entered: 08/17/2020)

08/21/2020

406 REPLY, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 397 MOTION to Exclude Untimely Disclosed Witnesses (Hyatt, Heath) (Entered: 08/21/2020)

08/24/2020

407 ORDER granting 399 Unopposed MOTION to Seal Stipulation for Order to Modify Protective Order Thereon, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. Signed by Judge Richard A. Jones. (VE) (Entered: 08/24/2020)

08/24/2020

408 SEALED ORDER on the parties' 401 SEALED DOCUMENT Stipulation for Order to Modify Protective Order, signed by Judge Richard A. Jones. (cc: Counsel via email) (VE) (Entered: 08/24/2020)

08/24/2020

409 MINUTE ORDER authorized by Judge Richard A. Jones granting 377 MOTION to Seal Plaintiffs' Supplemental Brief re: Outstanding Discovery Disputes and Supporting Documents, filed by Plaintiffs; granting 382 MOTION to Seal Defendants' Response to Plaintiffs' Supplemental Brief and Supporting Exhibits, filed by Defendants; granting 390 MOTION to Seal Defendants' reply to Plaintiffs' opposition to the motion to redact the May 28, 2020 hearing transcript, filed by Defendants; and granting 395 MOTION to Seal Joint Submission, filed by Defendants. (VE) (Entered: 08/24/2020)

08/27/2020

410 ORDER granting in part and denying in part Plaintiffs' 397 Motion to Exclude. The Court DENIES Plaintiffs' motion to exclude untimely disclosed witnesses and GRANTS Plaintiffs' request to conduct four additional depositions. Signed by Judge Richard A. Jones. (LH) (Entered: 08/27/2020)

08/28/2020

411 MINUTE ORDER (text only) entered upon the authority of Judge Richard A. Jones. On 5/26/2020, the parties submitted a proposed case schedule in their 359 Joint Status Report. The Court now orders the parties to meet and confer and file a joint submission with proposed changes, if any, to that initial proposed schedule. The joint submission shall be filed no later than 9/4/2020 and shall not exceed three (3) pages. (VE) (Entered: 08/28/2020)

09/04/2020

412 Joint STATUS REPORT re Case Schedule by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services (Braga, Victoria) (Entered: 09/04/2020)

09/11/2020 413 SCHEDULING ORDER by Judge Richard A. Jones. The Court adopts the case schedule as set forth in the parties' 412 Joint STATUS

REPORT re Case Schedule. SEE ORDER FOR DETAILS. The Court declines to set a trial date at this time and will do so, if necessary, after ruling on the parties' dispositive motions. (VE) (Entered: 09/11/2020)

09/17/2020

414 MOTION for Leave to Take Additional Depositions, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 10/2/2020, (Brinkman, Andrew) (Entered: 09/17/2020)

09/17/2020

415 APPLICATION OF ATTORNEY Charles Hogle FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Fee Paid) Receipt No. AWAWDC-6606165 (Gellert, Nicholas) (Entered: 09/17/2020)

09/18/2020

416 ORDER re 415 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Charles Hogle for Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, and Abdiqafar Wagafe, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/18/2020)

09/25/2020

417 RESPONSE, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, to 414 MOTION for Leave to Take Additional Depositions. (Attachments: # 1 Proposed Order)(Gellert, Nicholas) (Entered: 09/25/2020)

09/25/2020

418 DECLARATION of Nicholas Gellert filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 414 MOTION for Leave to Take Additional Depositions (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Gellert, Nicholas) (Entered: 09/25/2020)

10/02/2020

419 REPLY, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, TO RESPONSE to 414 MOTION for Leave to Take Additional Depositions (Attachments: # 1 Exhibit Declaration of Andrew Brinkman)(Brinkman, Andrew) (Entered: 10/02/2020)

10/06/2020 420 NOTICE of Appearance by attorney Anne Donohue on behalf of Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori

Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Donohue, Anne) (Entered: 10/06/2020)

10/14/2020

421 MOTION for Leave to File Overlength Brief, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 10/14/2020, (Gellert, Nicholas) (Entered: 10/14/2020)

10/14/2020

422 NOTICE of Defendants re 421 MOTION for Leave to File Overlength Brief ; filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Evans, Walter) (Entered: 10/14/2020)

10/15/2020

423 MOTION to Seal Plaintiffs' Motion to Compel Statistical Data and Supporting Documents, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 10/23/2020, (Whidbee, Paige) (Entered: 10/15/2020)

10/15/2020

424 Redacted MOTION to Compel Statistical Data Under Fed. R. Civ. P. 37(a)(3), filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 10/30/2020, (Whidbee, Paige) (Entered: 10/15/2020)

10/15/2020

425 SEALED DOCUMENT Plaintiffs' Motion to Compel Statistical Data Under Fed. R. Civ. P. 37(a)(3) by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 423 MOTION to Seal Plaintiffs' Motion to Compel Statistical Data and Supporting Documents, 424 Redacted MOTION to Compel Statistical Data Under Fed. R. Civ. P. 37(a)(3) (Whidbee, Paige) (Entered: 10/15/2020)

10/15/2020

426 SEALED DOCUMENT Declaration of Sameer Ahmed in Suupport of Plaintiffs' Motion to Compel Statistical data and Exhibits A--R by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 423 MOTION to Seal Plaintiffs' Motion to Compel Statistical Data and Supporting Documents, 424 Redacted MOTION to Compel Statistical Data Under Fed. R. Civ. P. 37(a)(3), 425 Sealed Document, (Attachments: # 1 Exhibit A-R)(Whidbee, Paige) (Entered: 10/15/2020)

10/16/2020

427 ORDER: This matter comes before the Court on Plaintiffs' Motion for Leave to File Overlength Brief, Dkt. # 421 , and Defendants' request to file an opposition to Plaintiffs' motion, Dkt. # 422 . Dkt. Given the extraordinary nature of Plaintiffs' request, the Court hereby GRANTS Defendants' motion to file an opposition and ORDERS Defendants to

file their response within 7 days from the date of this order. Signed by Judge Richard A. Jones. (MW) (Entered: 10/16/2020)

10/19/2020

428 ORDER granting Defendants' 414 Motion for Leave to Take Additional Depositions. Signed by Judge Richard A. Jones.(MW) (Entered: 10/19/2020)

10/20/2020 429 ORDER granting 374 Motion to Seal; granting 375 Sealed Motion to redact 5/28/2020 hearing transcript. Signed by Judge Richard A. Jones.(MW) (Entered: 10/20/2020)

10/23/2020

430 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 421 MOTION for Leave to File Overlength Brief. (Evans, Walter) (Entered: 10/23/2020)

10/26/2020

431 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 424 Redacted MOTION to Compel Statistical Data Under Fed. R. Civ. P. 37(a)(3). (Attachments: # 1 Exhibit Murphy Decl with Exhibits 1-9)(Murphy, Lindsay) (Entered: 10/26/2020)

10/26/2020

432 MOTION to Seal Defendants' Exhibits in Support of Response to Plaintiffs' Motion to Compel Statistical Data, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. Noting Date 11/6/2020, (Donohue, Anne) (Entered: 10/26/2020)

10/27/2020

433 SEALED DOCUMENT Declaration of Anne P. Donohue in Support of Defendants' Motion to Seal Exhibits in Support of Defendants' Response to Plaintiffs' Motion to Compel Statistical Data by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 432 MOTION to Seal Defendants' Exhibits in Support of Response to Plaintiffs' Motion to Compel Statistical Data, 431 Response to Motion, (Donohue, Anne) (Entered: 10/27/2020)

10/28/2020

Noting Date Reset: 432 MOTION to Seal Defendants' Exhibits in Support of Response to Plaintiffs' Motion to Compel Statistical Data is renoted for 11/13/2020, pursuant to LCR 7(d)(3). (VE) (Entered: 10/28/2020)

10/28/2020 434 STIPULATION AND PROPOSED ORDER Re Page Limits for CrossMotions for Summary Judgment, and Related Matters by parties re 430 Response to Motion (Evans, Walter) (Entered: 10/28/2020)

10/29/2020

435 ORDER re Parties' 434 Stipulation for Order Setting Page Limits for Cross-Motions for Summary Judgment and Related Matters: Each side shall be allocated a maximum of 90 pages for briefing their respective motions for summary judgment. The deadlines for dispositive motions and summary judgment briefing set out in Dkt. # 413 , page 3, are not suspended, but the Court may consider reasonable adjustments based on a joint proposal submitted by the parties no later than 11/6/2020. Plaintiffs' Motion for Leave to File an Overlength Brief, Dkt. # 421 , is deemed withdrawn. Signed by Judge Richard A. Jones.(MW) (Entered: 10/29/2020)

10/30/2020

436 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 423 MOTION to Seal Plaintiffs' Motion to Compel Statistical Data and Supporting Documents. (Murphy, Lindsay) (Entered: 10/30/2020)

10/30/2020

437 MOTION to Seal Plaintiff's Reply in Support of Motion to Compel Statistical Data, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 11/13/2020, (Whidbee, Paige) (Entered: 10/30/2020)

10/30/2020

438 REPLY, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 424 Redacted MOTION to Compel Statistical Data Under Fed. R. Civ. P. 37(a)(3) (Whidbee, Paige) (Entered: 10/30/2020)

10/30/2020

439 SEALED DOCUMENT Reply in Support of Motion to Compel Statistical Data by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 437 MOTION to Seal Plaintiff's Reply in Support of Motion to Compel Statistical Data, 438 Reply to Response to Motion (Whidbee, Paige) (Entered: 10/30/2020)

11/04/2020

440 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 424 Redacted MOTION to Compel Statistical Data Under Fed. R. Civ. P. 37(a)(3), 423 MOTION to Seal Plaintiffs' Motion to Compel Statistical Data and Supporting Documents, 425 Sealed Document (Plaintiffs' Motion to Compel Statistical Data Under Fed. R. Civ. P. 37(a)(3)). Oral Argument Requested. (Kipnis, Brian) Modified on 11/5/2020 to create relationship to 425 at request of filer (KB). (Entered: 11/04/2020)

11/05/2020 441 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and

Immigration Services, to 437 MOTION to Seal Plaintiff's Reply in Support of Motion to Compel Statistical Data. (Murphy, Lindsay) (Entered: 11/05/2020)

11/05/2020

NOTICE of Docket Text Modification re 440 Response to Motion: Modified on 11/5/2020 to create relationship to 425 (Plaintiffs' Motion to Compel Statistical Data Under Fed. R. Civ. P. 37(a)(3)), at request of filer. (KB) (Entered: 11/05/2020)

11/06/2020

442 STIPULATION AND PROPOSED ORDER Re Amending Briefing Schedule For Cross-Motions For Summary Judgment by parties (Evans, Walter) (Entered: 11/06/2020)

11/06/2020

Set Deadlines: The Court adopts the parties' proposed briefing schedule set forth in their 442 STIPULATION Re Amending Briefing Schedule For Cross-Motions For Summary Judgment as follows: Plaintiffs' motion for summary judgment shall be filed by 1/28/2021, Defendants' cross-motion and opposition due 3/8/2021, Plaintiffs' cross-opposition and reply due 4/16/2021, Defendants' cross-reply due 5/7/2021, and cross-motions both to be noted for 5/7/2021. (VE) (Entered: 11/06/2020)

11/24/2020

443 APPLICATION OF ATTORNEY Liga Chia FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe (Fee Paid) Receipt No. AWAWDC-6760208 (Adams, Matt) (Entered: 11/24/2020)

11/24/2020

444 ORDER re 443 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Liga Chia for Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, and Abdiqafar Wagafe, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 11/24/2020)

12/01/2020

445 ORDER granting Plaintiff's 424 Motion to Compel Statistical Data. The Court also GRANTS Plaintiffs' motion to seal the motion to compel statistical data, Dkt. # 423 , Plaintiffs' motion to seal its reply in support of the motion to compel statistical data, Dkt. # 437 , and Defendants motion to seal its exhibits, Dkt. # 432 . Signed by Judge Richard A. Jones.(MW) (Entered: 12/01/2020)

12/03/2020

446 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Kathryn C Davis for Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Davis, Kathryn) (Entered: 12/03/2020)

12/04/2020

447 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Molly TackHooper for Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Tack-Hooper, Molly) (Entered: 12/04/2020)

12/16/2020

448 LETTER from Defendants to Correct Inaccuracies in Brief re 431 Response to Motion, filed by Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services (Murphy, Lindsay) (Entered: 12/16/2020)

12/17/2020

449 Unopposed MOTION to Amend Briefing Schedule for Cross Motions for Summary Judgment re 442 Stipulation , filed by Plaintiffs Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 12/17/2020, (Hyatt, Heath) (Entered: 12/17/2020)

12/18/2020

450 MINUTE ORDER authorized by Judge Richard A. Jones granting 449 Unopposed MOTION to Amend Briefing Schedule for Cross-Motions for Summary Judgment. The following schedule will govern briefing of the cross-motions for summary judgment and supplemental declarations filed by the parties' statistical experts in response to the updated USCIS data: Supplemental Declaration of Mr. Kruskol due 2/25/2021, Plaintiffs' motion for summary judgment to be filed by 3/11/2021, Supplemental Declaration of Dr. Siskin due 4/5/2021, Defendants' cross-motion and opposition due 4/19/2021, Plaintiffs' cross-opposition and reply due 5/28/2021, Defendants' crossreply due 6/18/2021, Cross-motions both to be noted for 6/18/2021. (VE) (Entered: 12/18/2020)

02/01/2021 451 ORDER RE IN CAMERA REVIEW signed by Judge Richard A. Jones. (SEALED Attachment: # 1 ATTACHMENT to Order re In Camera Review (cc: Counsel via email) (VE) (Entered: 02/01/2021)

02/01/2021

452 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Kristin Macleod-Ball for Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (MacleodBall, Kristin) (Entered: 02/01/2021)

02/05/2021

453 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Michelle Cho for Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Cho, Michelle) (Entered: 02/05/2021)

02/16/2021

454 Redacted MOTION for Reconsideration re 451 Sealed Order , filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. Noting Date 2/16/2021, (Braga, Victoria) (Entered: 02/16/2021)

02/16/2021

455 MOTION to Seal Motion to Reconsider, Dkt. No. 456, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. Noting Date 3/5/2021, (Braga, Victoria) (Entered: 02/16/2021)

02/16/2021

456 SEALED MOTION to Reconsider; re 455 MOTION to Seal Motion to Reconsider, Dkt. No. 456, 451 Sealed Order ; by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. Noting Date 2/16/2021, (Braga, Victoria) (Entered: 02/16/2021)

02/24/2021

457 Stipulated MOTION for Order Amending Briefing Schedule for Cross Motions for Summary Judgment and Related Deadlines; Order Thereon, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. Noting Date 2/24/2021, (Hyatt, Heath) (Entered: 02/24/2021)

02/25/2021

Reset Deadlines: The parties' 457 Stipulated MOTION for Order Amending Briefing Schedule for Cross Motions for Summary Judgment and Related Deadlines is GRANTED. The following schedule will govern briefing of the cross-motions for summary judgment and the supplemental declarations filed by the parties' statistical experts in response to the updated USCIS data: Supplemental declaration of Mr. Kruskol (if any) by 3/4/2021, Plaintiff's motion for summary judgment filed by 3/25/2021, Supplemental declaration of Dr. Siskin (if any) by 4/19/2021, Defendants' cross-motion and opposition due 5/3/2021, Plaintiffs' cross-opposition and reply due 6/11/2021, Defendants' crossreply due 7/2/2021, Cross-motions both to be noted for 7/2/2021. (VE) (Entered: 02/25/2021)

02/26/2021 458 ORDER granting Defendants' 454 Motion for Reconsideration and 455 Motion to Seal. Signed by Judge Richard A. Jones.(MW) (Entered: 02/26/2021)

03/25/2021

459 MOTION to Seal Plaintiffs' Motion to Exclude Opinions of Bernard Siskin, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 4/9/2021, (Hyatt, Heath) (Entered: 03/25/2021)

03/25/2021 460 Redacted MOTION to Exclude Opinions of Bernard Siskin, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor,

Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 4/9/2021, (Hyatt, Heath) (Entered: 03/25/2021)

03/25/2021

461 DECLARATION of Hugh Handeyside filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 460 Redacted MOTION to Exclude Opinions of Bernard Siskin (Hyatt, Heath) (Entered: 03/25/2021)

03/25/2021

462 SEALED DOCUMENT Exhibits A-F to Delcaration of Hugh Handeyside by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 459 MOTION to Seal Plaintiffs' Motion to Exclude Opinions of Bernard Siskin, 461 Declaration (Hyatt, Heath) (Entered: 03/25/2021)

03/25/2021

463 SEALED MOTION to Exclude Opinons of Bernard Siskin; re 459 MOTION to Seal Plaintiffs' Motion to Exclude Opinions of Bernard Siskin, 460 Redacted MOTION to Exclude Opinions of Bernard Siskin ; by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. Noting Date 4/9/2021, (Hyatt, Heath) (Entered: 03/25/2021)

03/25/2021

464 SEALED MOTION for Leave to File a Highly Sensitive Document by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order, # 2 Certificate of Service) Noting Date 4/9/2021, (Hyatt, Heath) (Entered: 03/25/2021)

03/25/2021

465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 4/9/2021, (Hyatt, Heath) (Entered: 03/25/2021)

03/25/2021

466 DECLARATION of Mehdi Ostadhassan filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 464 SEALED MOTION for Leave to File a Highly Sensitive Document, 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents (Hyatt, Heath) (Entered: 03/25/2021)

03/25/2021

467 DECLARATION of Hanin Bengezi filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 464 SEALED MOTION for Leave to File a Highly Sensitive Document, 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents (Hyatt, Heath) (Entered: 03/25/2021)

03/25/2021

468 DECLARATION of Noah Abraham filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 464 SEALED MOTION for Leave to File a Highly Sensitive Document, 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents (Hyatt, Heath) (Entered: 03/25/2021)

03/25/2021

469 DECLARATION of Sajeel Manzoor filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 464 SEALED MOTION for Leave to File a Highly Sensitive Document, 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents (Hyatt, Heath) (Entered: 03/25/2021)

03/25/2021

470 DECLARATION of Jennifer Pasquarella filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 464 SEALED MOTION for Leave to File a Highly Sensitive Document, 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents (Hyatt, Heath) (Entered: 03/25/2021)

03/25/2021

471 MOTION to Exclude Defendants' Notice of Motion, and Motion to Exclude Testimony of Sean M. Kruskol; Memorandum of Supporting Points and Authorities, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 4/9/2021, (Murphy, Lindsay) (Entered: 03/25/2021)

03/25/2021

472 SEALED DOCUMENT Declaration of Jennifer Pasquarella in Support of Plaintiffs' Motion for Summary Judgment by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents, 470 Declaration, (Attachments: # 1 Exhibit 1-19, # 2 Exhibit 20-35, # 3 Exhibit 36-39, # 4 Exhibit 40-43, # 5 Exhibit 4450, # 6 Exhibit 51-57, # 7 Exhibit 58-72, # 8 Exhibit 73-100)(Hyatt, Heath) (Entered: 03/25/2021)

03/25/2021

473 DECLARATION of Lindsay M. Murphy in Support of Defendants' Notice of Motion, and Motion to Exclude Testimony of Sean M. Kruskol; Memorandum of Supporting Points and Authorities filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 471 MOTION to Exclude Defendants' Notice of Motion, and Motion to Exclude Testimony of Sean M. Kruskol; Memorandum of Supporting Points and Authorities (Murphy, Lindsay) (Entered: 03/25/2021)

03/25/2021

474 MOTION to Seal Defendants' Motion to Seal Defendants' Unredacted Motion to Exclude Testimony of Plaintiffs' Expert Sen M. Kruskol, and Supporting Exhibits, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 4/9/2021, (Murphy, Lindsay) (Entered: 03/25/2021)

03/25/2021

475 SEALED MOTION to Defendants' Notice of Motion, and Motion to Exclude Testimony of Sean M. Kruskol; Memorandum of Supporting Points and Authorities; re 474 MOTION to Seal Defendants' Motion to Seal Defendants' Unredacted Motion to Exclude Testimony of Plaintiffs' Expert Sen M. Kruskol, and Supporting Exhibits ; by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. Noting Date 4/9/2021, (Murphy, Lindsay) (Entered: 03/25/2021)

03/25/2021

476 SEALED DOCUMENT Declaration of Lindsay M. Murphy in Support of Defendants' Unredacted Motion to Exclude Testimony of Plaintiffs' Expert Sean M. Kruskol, and Supporting Exhibits by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 474 MOTION to Seal Defendants' Motion to Seal Defendants' Unredacted Motion to Exclude Testimony of Plaintiffs' Expert Sen M. Kruskol, and Supporting Exhibits, 475 SEALED MOTION to Defendants' Notice of Motion, and Motion to Exclude Testimony of Sean M. Kruskol; Memorandum of Supporting Points and Authorities; re 474 MOTION to Seal Defendants' Motion to Seal Defen (Murphy, Lindsay) (Entered: 03/25/2021)

03/25/2021

477 MOTION to Exclude Defendants' Notice of Motion and Motion to Exclude the Testimony and Reports of Plaintiffs' Experts Dr. Nermeen Arastu, Mr. Jay Gairson, and Mr. Thomas Ragland; Memorandum of Supporting Points and Authorities, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 4/9/2021, (Busen, Jesse) (Entered: 03/25/2021)

03/25/2021

478 DECLARATION of Jesse L. Busen in Support of Defendants' Motion to Exclude Testimony and Reports of Plaintiffs' Experts Arastu, Gairson and Ragland filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 477 MOTION to Exclude Defendants' Notice of Motion and Motion to Exclude the Testimony and Reports of Plaintiffs' Experts Dr. Nermeen Arastu, Mr.

Jay Gairson, and Mr. Thomas Ragland; Memorandum of Supporting Points and Authorities (Busen, Jesse) (Entered: 03/25/2021)

03/25/2021

479 MOTION to Seal Defendants' Motion to Seal Exhibits filed Supporting Defendants' Motion to Exclude Testimony and Reports of Plaintiffs' Experts Arastu, Gairson and Ragland, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 4/9/2021, (Busen, Jesse) (Entered: 03/25/2021)

03/25/2021

480 SEALED DOCUMENT Declaration of Jesse L. Busen in Support of Defendants' Motion to Seal Exhibits Supporting Motion to Exclude Experts Arastu, Gairson and Ragland by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 479 MOTION to Seal Defendants' Motion to Seal Exhibits filed Supporting Defendants' Motion to Exclude Testimony and Reports of Plaintiffs' Experts Arastu, Gairson and Ragland (Busen, Jesse) (Entered: 03/25/2021)

04/05/2021

481 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents. (Attachments: # 1 Proposed Order)(Braga, Victoria) (Entered: 04/05/2021)

04/05/2021

482 RESPONSE, by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 459 MOTION to Seal Plaintiffs' Motion to Exclude Opinions of Bernard Siskin. (Busen, Jesse) (Entered: 04/05/2021)

04/05/2021

483 SEALED DOCUMENT Defendants' response to Plaintiffs' motion for leave to file a highly sensitive document by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents, 464 SEALED MOTION for Leave to File a Highly Sensitive Document (Busen, Jesse) (Entered: 04/05/2021)

04/05/2021

***Add/Terminate Parties: Joseph R. Biden, President of the United States, is automatically substituted for former President Donald J. Trump pursuant to Federal Rule of Civil Procedure 25(d). (VE) (Entered: 04/05/2021)

04/05/2021 484 MOTION to Seal Defendants' Motion to Seal Defendants' Unredacted Opposition to Plaintiffs' Motion to Exclude Opinions of Dr. Bernard

Siskin, and Supporting Exhibits, filed by Defendants Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 4/23/2021, (Donohue, Anne) (Entered: 04/05/2021)

04/05/2021

485 SEALED DOCUMENT Defendants' Opposition to Plaintiffs' Motion to Exclude Opinions of Dr. Bernard Siskin by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 484 MOTION to Seal Defendants' Motion to Seal Defendants' Unredacted Opposition to Plaintiffs' Motion to Exclude Opinions of Dr. Bernard Siskin, and Supporting Exhibits, 459 MOTION to Seal Plaintiffs' Motion to Exclude Opinions of Bernard Siskin, 461 Declaration, 460 Redacted MOTION to Exclude Opinions of Bernard Siskin (Donohue, Anne) (Entered: 04/05/2021)

04/05/2021

486 SEALED DOCUMENT Declaration of Leon B. Taranto in Support of Defendants' Motion to Seal Defendants' Unredacted Opposition to Plaintiffs' Motion to Exclude Opinions of Dr. Bernard Siskin, and Supporting Exhibits by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 484 MOTION to Seal Defendants' Motion to Seal Defendants' Unredacted Opposition to Plaintiffs' Motion to Exclude Opinions of Dr. Bernard Siskin, and Supporting Exhibits, 485 Sealed Document,, (Donohue, Anne) (Entered: 04/05/2021)

04/05/2021

487 RESPONSE, by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services, to 459 MOTION to Seal Plaintiffs' Motion to Exclude Opinions of Bernard Siskin, 460 Redacted MOTION to Exclude Opinions of Bernard Siskin. (Donohue, Anne) (Entered: 04/05/2021)

04/05/2021

488 DECLARATION of Leon B. Taranto in Support of Defendants' Opposition to Plaintiffs' Motion to Exclude Opinions of Dr. Bernard Siskin of Leon B. Taranto in Support of Defendants' Opposition to Plaintiffs' Motion to Exclude Opinions of Dr. Bernard Siskin re 487 Response to Motion, by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services (Donohue, Anne) (Entered: 04/05/2021)

04/05/2021

489 MOTION to Seal Plaintiffs' Opposition to Motion to Exclude Opinions of Sean Kruskol, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe.

(Attachments: # 1 Proposed Order) Noting Date 4/23/2021, (Hyatt, Heath) (Entered: 04/05/2021)

04/05/2021

490 RESPONSE, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, to 475 SEALED MOTION to Defendants' Notice of Motion, and Motion to Exclude Testimony of Sean M. Kruskol; Memorandum of Supporting Points and Authorities; re 474 MOTION to Seal Defendants' Motion to Seal Defen. (Attachments: # 1 Proposed Order)(Hyatt, Heath) (Entered: 04/05/2021)

04/05/2021

491 Redacted DECLARATION of Sameer Ahmed filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 489 MOTION to Seal Plaintiffs' Opposition to Motion to Exclude Opinions of Sean Kruskol, 475 SEALED MOTION to Defendants' Notice of Motion, and Motion to Exclude Testimony of Sean M. Kruskol; Memorandum of Supporting Points and Authorities; re 474 MOTION to Seal Defendants' Motion to Seal Defen (Hyatt, Heath) (Entered: 04/05/2021)

04/05/2021

492 DECLARATION of Sean Kruskol filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 489 MOTION to Seal Plaintiffs' Opposition to Motion to Exclude Opinions of Sean Kruskol, 475 SEALED MOTION to Defendants' Notice of Motion, and Motion to Exclude Testimony of Sean M. Kruskol; Memorandum of Supporting Points and Authorities; re 474 MOTION to Seal Defendants' Motion to Seal Defen (Hyatt, Heath) (Entered: 04/05/2021)

04/05/2021

493 SEALED DOCUMENT Opposition to Defendants' Motion to Exclude Testimony of Sean M. Kruskol by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 489 MOTION to Seal Plaintiffs' Opposition to Motion to Exclude Opinions of Sean Kruskol, 490 Response to Motion, (Hyatt, Heath) (Entered: 04/05/2021)

04/05/2021

494 SEALED DOCUMENT Exhibit A to Declaration of Sameer Ahmed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 489 MOTION to Seal Plaintiffs' Opposition to Motion to Exclude Opinions of Sean Kruskol, 491 Declaration,, (Hyatt, Heath) (Entered: 04/05/2021)

04/05/2021

495 SEALED DOCUMENT Exhibit F to Declaration of Sameer Ahmed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 489 MOTION to

Seal Plaintiffs' Opposition to Motion to Exclude Opinions of Sean Kruskol, 491 Declaration,, (Hyatt, Heath) (Entered: 04/05/2021)

04/05/2021

496 MOTION to Seal Plaintiffs' Opposition to Motion to Exclude Opinions of Gairson, Ragland and Arastu, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 4/23/2021, (Hyatt, Heath) (Entered: 04/05/2021)

04/05/2021

497 RESPONSE, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, to 477 MOTION to Exclude Defendants' Notice of Motion and Motion to Exclude the Testimony and Reports of Plaintiffs' Experts Dr. Nermeen Arastu, Mr. Jay Gairson, and Mr. Thomas Ragland; Memorandum of Supporting Points and Authorities, 496 MOTION to Seal Plaintiffs' Opposition to Motion to Exclude Opinions of Gairson, Ragland and Arastu. (Attachments: # 1 Proposed Order)(Hyatt, Heath) (Entered: 04/05/2021)

04/05/2021

498 DECLARATION of Heath Hyatt filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 477 MOTION to Exclude Defendants' Notice of Motion and Motion to Exclude the Testimony and Reports of Plaintiffs' Experts Dr. Nermeen Arastu, Mr. Jay Gairson, and Mr. Thomas Ragland; Memorandum of Supporting Points and Authorities, 496 MOTION to Seal Plaintiffs' Opposition to Motion to Exclude Opinions of Gairson, Ragland and Arastu (Hyatt, Heath) (Entered: 04/05/2021)

04/05/2021

499 SEALED DOCUMENT Opposition to Defendants' Motion to Exclude the Testimony and Reports of Gairson, Ragland and Arastu by Plaintiffs Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 496 MOTION to Seal Plaintiffs' Opposition to Motion to Exclude Opinions of Gairson, Ragland and Arastu, 477 MOTION to Exclude Defendants' Notice of Motion and Motion to Exclude the Testimony and Reports of Plaintiffs' Experts Dr. Nermeen Arastu, Mr. Jay Gairson, and Mr. Thomas Ragland; Memorandum of Supporting Points and Authorities (Hyatt, Heath) (Entered: 04/05/2021)

04/05/2021

500 SEALED DOCUMENT Exhibits A, B, C, E to Declaration of Heath Hyatt by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 496 MOTION to Seal Plaintiffs' Opposition to Motion to Exclude Opinions of Gairson, Ragland and Arastu, 498 Declaration,, (Hyatt, Heath) (Entered: 04/05/2021)

04/08/2021

501 Stipulated MOTION to Seal Plaintiffs' motion to exclude opinions of Bernard Siskin, filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services. Noting Date 4/9/2021, (Busen, Jesse) (Entered: 04/08/2021)

04/09/2021

502 SEALED DOCUMENT Reply to Motion to Treat Documents as HSD by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents, 464 SEALED MOTION for Leave to File a Highly Sensitive Document (Hyatt, Heath) (Entered: 04/09/2021)

04/09/2021

503 REPLY, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 463 SEALED MOTION to Exclude Opinons of Bernard Siskin; re 459 MOTION to Seal Plaintiffs' Motion to Exclude Opinions of Bernard Siskin, 460 Redacted MOTION to Exclude Opinions of Bernard Siskin ;, 460 Redacted MOTION to Exclude Opinions of Bernard Siskin (Hyatt, Heath) (Entered: 04/09/2021)

04/09/2021

504 REPLY, filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, TO RESPONSE to 477 MOTION to Exclude Defendants' Notice of Motion and Motion to Exclude the Testimony and Reports of Plaintiffs' Experts Dr. Nermeen Arastu, Mr. Jay Gairson, and Mr. Thomas Ragland; Memorandum of Supporting Points and Authorities (Busen, Jesse) (Entered: 04/09/2021)

04/09/2021

505 MOTION to Seal Defendants' Motion to Seal Defendants' Unredacted Reply to Plaintiffs' Opposition to Defendants' Motion to Exclude Testimony of Sean M. Kruskol, and Supporting Exhibits, filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 4/30/2021, (Donohue, Anne) (Entered: 04/09/2021)

04/09/2021

506 SEALED DOCUMENT Defendants' Reply to Plaintiffs' Opposition to Defendants' Motion to Exclude Testimony of Sean M. Kruskol by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 505 MOTION to Seal Defendants' Motion to Seal Defendants' Unredacted Reply to Plaintiffs' Opposition to Defendants' Motion to Exclude Testimony of Sean M. Kruskol, and Supporting

Exhibits, 471 MOTION to Exclude Defendants' Notice of Motion, and Motion to Exclude Testimony of Sean M. Kruskol; Memorandum of Supporting Points and Authorities, 476 Sealed Document,,, 493 Sealed Document, (Donohue, Anne) (Entered: 04/09/2021)

04/09/2021

507 SEALED DOCUMENT Declaration of Leon B. Taranto in Support of Defendants' Motion to Seal Defendants' Unredacted Reply to Plaintiffs' Opposition to Defendants' Motion to Exclude Testimony of Sean M. Kruskol, and Supporting Exhibits by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 505 MOTION to Seal Defendants' Motion to Seal Defendants' Unredacted Reply to Plaintiffs' Opposition to Defendants' Motion to Exclude Testimony of Sean M. Kruskol, and Supporting Exhibits, 506 Sealed Document,,, (Donohue, Anne) (Entered: 04/09/2021)

04/09/2021

508 REPLY, filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services, TO RESPONSE to 471 MOTION to Exclude Defendants' Notice of Motion, and Motion to Exclude Testimony of Sean M. Kruskol; Memorandum of Supporting Points and Authorities (Donohue, Anne) (Entered: 04/09/2021)

04/09/2021

509 DECLARATION of Leon B. Taranto in Support of Defendants' Reply to Plaintiffs' Opposition to Defendants' Motion to Exclude Testimony of Mr. Sean M. Kruskol filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 471 MOTION to Exclude Defendants' Notice of Motion, and Motion to Exclude Testimony of Sean M. Kruskol; Memorandum of Supporting Points and Authorities (Donohue, Anne) (Entered: 04/09/2021)

04/09/2021

510 REPLY, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents (Hyatt, Heath) (Entered: 04/09/2021)

04/19/2021

511 RESPONSE, by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 496 MOTION to Seal Plaintiffs' Opposition to Motion to Exclude Opinions of Gairson, Ragland and Arastu. (Busen, Jesse) (Entered: 04/19/2021)

04/19/2021

512 RESPONSE, by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 489 MOTION to

Seal Plaintiffs' Opposition to Motion to Exclude Opinions of Sean Kruskol. (Donohue, Anne) (Entered: 04/19/2021)

05/03/2021

513 SEALED MOTION for Leave to File a Highly Sensitive Document by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services. (Evans, Walter) (Entered: 05/03/2021)

05/04/2021

514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Cross-Motion for Summary Judgment, filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services. Noting Date 5/21/2021, (Evans, Walter) (Entered: 05/04/2021)

05/04/2021

515 SEALED DOCUMENT Declaration of W. Manning Evans in Support of Defendants' Motion to Seal Exhibits in Support of Defendants' Motion for Summary Judgment and Cross-Motion for Summary Judgment by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Cross-Motion for Summary Judgment (Attachments: # 1 Exhibit 45, # 2 Exhibit 7-12, # 3 Exhibit 14, # 4 Exhibit 17, # 5 Exhibit 19)(Evans, Walter) (Entered: 05/04/2021)

05/04/2021

516 SEALED DOCUMENT Exhibit 33 to Evans Declaration by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and CrossMotion for Summary Judgment, 515 Sealed Document,, (Attachments: # 1 Exhibit 35-37, # 2 Exhibit 42, # 3 Exhibit 46-47, # 4 Exhibit 50)(Evans, Walter) (Entered: 05/04/2021)

05/04/2021

517 SEALED DOCUMENT Declaration of Ronald Alan Atkinson in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and CrossMotion for Summary Judgment (Evans, Walter) (Entered: 05/04/2021)

05/04/2021

518 SEALED DOCUMENT Declaration of Kevin Quinn in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment by Defendants Joseph R

Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Cross-Motion for Summary Judgment (Evans, Walter) (Entered: 05/04/2021)

05/04/2021

519 SEALED DOCUMENT Declaration of Matthew Relph in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Cross-Motion for Summary Judgment (Evans, Walter) (Entered: 05/04/2021)

05/04/2021

520 SEALED DOCUMENT Declaration of Daniel Renaud in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Cross-Motion for Summary Judgment (Evans, Walter) (Entered: 05/04/2021)

05/04/2021

521 SEALED DOCUMENT Declaration of Bernard R. Siskin, Ph.D. by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and CrossMotion for Summary Judgment (Evans, Walter) (Entered: 05/04/2021)

05/04/2021

522 SEALED DOCUMENT Declaration of Russell L. Webb in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Cross-Motion for Summary Judgment (Evans, Walter) (Entered: 05/04/2021)

05/04/2021

523 DECLARATION of W. Manning Evans in Support of Defendants Consolidated Memorandum of Points and Authorities in Opposition to Plaintiffs Motion for Summary Judgment and in Support of Defendants' Cross-Motion for Summary Judgment filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 465 MOTION

to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents, 513 SEALED MOTION for Leave to File a Highly Sensitive Document (Attachments: # 1 Exhibit 1, # 2 Exhibit 3, # 3 Exhibit 6, # 4 Exhibit 9, # 5 Exhibit 11, # 6 Exhibit 13, # 7 Exhibit 15-16, # 8 Exhibit 18, # 9 Exhibit 20, # 10 Exhibit 22, # 11 Exhibit 2526, # 12 Exhibit 31-32, # 13 Exhibit 34, # 14 Exhibit 38-41, # 15 Exhibit 43-45, # 16 Exhibit 48-49, # 17 Exhibit 51-53)(Evans, Walter) (Entered: 05/04/2021)

05/04/2021

524 DECLARATION of Ronald Alan Atkinson in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents, 513 SEALED MOTION for Leave to File a Highly Sensitive Document (Evans, Walter) (Entered: 05/04/2021)

05/04/2021

525 DECLARATION of Kevin Quinn in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents, 513 SEALED MOTION for Leave to File a Highly Sensitive Document (Evans, Walter) (Entered: 05/04/2021)

05/04/2021

526 DECLARATION of Matthew Relph in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents, 513 SEALED MOTION for Leave to File a Highly Sensitive Document (Evans, Walter) (Entered: 05/04/2021)

05/04/2021

527 DECLARATION of Daniel Renaud in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents, 513 SEALED MOTION for Leave to File a Highly Sensitive Document (Evans, Walter) (Entered: 05/04/2021)

05/04/2021

528 DECLARATION of Bernard R. Siskin, Ph.D. filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents, 513 SEALED MOTION for Leave to File a Highly Sensitive Document (Evans, Walter) (Entered: 05/04/2021)

05/04/2021

529 DECLARATION of Russell L. Webb in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents, 513 SEALED MOTION for Leave to File a Highly Sensitive Document (Evans, Walter) (Entered: 05/04/2021)

05/04/2021

530 DECLARATION of W. Manning Evans in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 465 MOTION to Seal Plaintiffs' Motion for Summary Judgment and Supporting Documents, 513 SEALED MOTION for Leave to File a Highly Sensitive Document (Evans, Walter) (Entered: 05/04/2021)

05/04/2021

Noting Date Set: 513 SEALED MOTION for Leave to File a Highly Sensitive Document noted for 5/21/2021. (VE) (Entered: 05/04/2021)

05/04/2021

531 PROPOSED ORDER (Unsigned) re 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Cross-Motion for Summary Judgment (Evans, Walter) (Entered: 05/04/2021)

05/04/2021

532 PROPOSED ORDER (Unsigned) re 513 SEALED MOTION for Leave to File a Highly Sensitive Document (Evans, Walter) (Entered: 05/04/2021)

05/05/2021

RECEIPT of HSD re 513 SEALED MOTION for Leave to File a Highly Sensitive Document. (LH) (Sealed motion and proposed HSD delivered to Judge's inbox in sealed envelope) (Entered: 05/05/2021)

05/13/2021

RECEIPT of HSD re 513 SEALED MOTION for Leave to File a Highly Sensitive Document. (SR) (Sealed motion and proposed HSD delivered to Judge's inbox in sealed envelope) (Entered: 05/13/2021)

05/17/2021 533 SEALED DOCUMENT Opposition to Defendants' Motion to Treat Documents as HSD by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed

Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and CrossMotion for Summary Judgment, 513 SEALED MOTION for Leave to File a Highly Sensitive Document (Attachments: # 1 Proposed Order)(Hyatt, Heath) (Entered: 05/17/2021)

05/17/2021

534 RESPONSE, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, to 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and CrossMotion for Summary Judgment. (Attachments: # 1 Proposed Order)(Hyatt, Heath) (Entered: 05/17/2021)

05/20/2021

535 SEALED DOCUMENT Praecipe to add SEALED Exhibit 9 to Dkt No 515-2 by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Cross-Motion for Summary Judgment, 515 Sealed Document,, (Attachments: # 1 Exhibit)(Murphy, Lindsay) (Entered: 05/20/2021)

05/21/2021

536 SEALED DOCUMENT Reply to Plaintiffs' Opposition to Defendants' motion to Treat Documents as HSDs by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and CrossMotion for Summary Judgment, 513 SEALED MOTION for Leave to File a Highly Sensitive Document (Busen, Jesse) (Entered: 05/21/2021)

05/21/2021

537 SEALED DOCUMENTREPLY, filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, TO RESPONSE to 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Cross-Motion for Summary Judgment (Busen, Jesse) Duplicate of 536 , sealed per request of filer on 5/21/2021, corrected document to be filed (MW). (Entered: 05/21/2021)

05/21/2021

538 REPLY, filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, TO RESPONSE to 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and CrossMotion for Summary Judgment (Busen, Jesse) (Entered: 05/21/2021)

06/04/2021

539 PRAECIPE to attach document - Notice of Errata re: Defendants' Consolidated Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Summary Judgment and In Support of Defendants' Cross-Motion for Summary Judgment re 513 SEALED MOTION for Leave to File a Highly Sensitive Document by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services (Attachments: # 1 Notice of Errata)(Murphy, Lindsay) (Entered: 06/04/2021)

06/04/2021

540 PRAECIPE to attach document - Exhibit 9 (Revised) re 523 Declaration,,, by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services (Attachments: # 1 Exhibit 9)(Murphy, Lindsay) (Entered: 06/04/2021)

06/04/2021

541 PRAECIPE to attach document - SEALED Exhibit 9 (Revised) and SEALED Exhibit 37 (Revised) re 515 Sealed Document,, by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services (Murphy, Lindsay) (Entered: 06/04/2021)

06/04/2021

542 SEALED DOCUMENT Exhibit 9 (Revised) by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Cross-Motion for Summary Judgment, 515 Sealed Document,, 541 Praecipe to Attach Document, (Attachments: # 1 Exhibit 37 (Revised))(Murphy, Lindsay) (Entered: 06/04/2021)

06/11/2021

543 SEALED MOTION for Leave to File a Highly Sensitive Document by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order, # 2 Certificate of Service) Noting Date 7/2/2021, (Hyatt, Heath) (Entered: 06/11/2021)

06/11/2021

544 MOTION to Seal Plaintiffs' Reply In Support of Motion for Summary Judgment and Opposition to Defendants' Cross Motion for Summary Judgment and Supporting Documents, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. (Attachments: # 1 Proposed Order) Noting Date 7/2/2021, (Hyatt, Heath) (Entered: 06/11/2021)

06/11/2021

545 Second DECLARATION of Jennifer Pasquarella filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 544 MOTION to Seal Plaintiffs'

Reply In Support of Motion for Summary Judgment and Opposition to Defendants' Cross Motion for Summary Judgment and Supporting Documents (Hyatt, Heath) (Entered: 06/11/2021)

06/11/2021

546 DECLARATION of Heath Hyatt filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 544 MOTION to Seal Plaintiffs' Reply In Support of Motion for Summary Judgment and Opposition to Defendants' Cross Motion for Summary Judgment and Supporting Documents (Hyatt, Heath) (Entered: 06/11/2021)

06/11/2021

547 DECLARATION of Liga Chia filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 544 MOTION to Seal Plaintiffs' Reply In Support of Motion for Summary Judgment and Opposition to Defendants' Cross Motion for Summary Judgment and Supporting Documents (Hyatt, Heath) (Entered: 06/11/2021)

06/11/2021

548 SEALED DOCUMENT Exhibits 104, 105, 106, 108, 109, 110 to Declaration of Jennifer Pasquarella by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 544 MOTION to Seal Plaintiffs' Reply In Support of Motion for Summary Judgment and Opposition to Defendants' Cross Motion for Summary Judgment and Supporting Documents, 545 Declaration, (Hyatt, Heath) (Entered: 06/11/2021)

06/11/2021

549 SEALED DOCUMENT Exhibits A-D to Declaration of Heath Hyatt by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 544 MOTION to Seal Plaintiffs' Reply In Support of Motion for Summary Judgment and Opposition to Defendants' Cross Motion for Summary Judgment and Supporting Documents, 546 Declaration, (Hyatt, Heath) (Entered: 06/11/2021)

06/11/2021

550 SEALED DOCUMENT Exhibit A to Declaration of Liga Chia by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 544 MOTION to Seal Plaintiffs' Reply In Support of Motion for Summary Judgment and Opposition to Defendants' Cross Motion for Summary Judgment and Supporting Documents, 547 Declaration, (Hyatt, Heath) Modified on 7/22/2021. Document unsealed pursuant to 572 Minute Order granting the parties' 571 Stipulated Motion to Unseal Dkt. 550. (VE) (Entered: 06/11/2021)

06/17/2021

551 NOTICE of Appearance by attorney Melissa R Lee on behalf of Amicus Parties Creating Law Enforcement Accountability & Responsibility, Asian Americans Advancing Justice - Asian Law

Caucus, National Immigration Project of the National Lawyers Guild, Other Civil Rights Organizations. (Lee, Melissa) (Entered: 06/17/2021)

06/17/2021

552 APPLICATION OF ATTORNEY Richard E. Gottlieb FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Parties Asian Americans Advancing Justice - Asian Law Caucus, Creating Law Enforcement Accountability & Responsibility, National Immigration Project of the National Lawyers Guild, Other Civil Rights Organizations (Fee Paid) Receipt No. AWAWDC-7131166 (Lee, Melissa) (Entered: 06/17/2021)

06/17/2021

553 APPLICATION OF ATTORNEY Sirena Castillo FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Parties Asian Americans Advancing Justice - Asian Law Caucus, Creating Law Enforcement Accountability & Responsibility, National Immigration Project of the National Lawyers Guild, Other Civil Rights Organizations (Fee Paid) Receipt No. AWAWDC-7131177 (Lee, Melissa) (Entered: 06/17/2021)

06/17/2021

554 APPLICATION OF ATTORNEY Julia Harvey FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Parties Asian Americans Advancing Justice - Asian Law Caucus, Creating Law Enforcement Accountability & Responsibility, National Immigration Project of the National Lawyers Guild, Other Civil Rights Organizations (Fee Paid) Receipt No. AWAWDC-7131182 (Lee, Melissa) (Entered: 06/17/2021)

06/18/2021

555 MOTION for Leave to File Amicus Brief, filed by Amicus Parties Asian Americans Advancing Justice - Asian Law Caucus, Creating Law Enforcement Accountability & Responsibility, National Immigration Project of the National Lawyers Guild, Other Civil Rights Organizations. (Attachments: # 1 Exhibit Amicus Brief, # 2 Proposed Order) Noting Date 7/9/2021, (Lee, Melissa) (Entered: 06/18/2021)

06/21/2021

556 ORDER re 553 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Sirena Peleka Castillo for Amicus Parties Asian Americans Advancing Justice - Asian Law Caucus, Creating Law Enforcement Accountability & Responsibility, National Immigration Project of the National Lawyers Guild, and for Other Civil Rights Organizations, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 06/21/2021)

06/22/2021

557 ORDER re 554 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Julia Harvey for Amicus Parties Asian Americans Advancing Justice - Asian Law Caucus, Creating Law

Enforcement Accountability & Responsibility, National Immigration Project of the National Lawyers Guild, Other Civil Rights Organizations by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 06/22/2021)

06/24/2021

558 RESPONSE, by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 555 MOTION for Leave to File Amicus Brief. (Busen, Jesse) (Entered: 06/24/2021)

06/24/2021

559 ORDER re 552 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Richard Gottlieb for Amicus Parties Asian Americans Advancing Justice - Asian Law Caucus, Creating Law Enforcement Accountability & Responsibility, National Immigration Project of the National Lawyers Guild, Other Civil Rights Organizations by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 06/24/2021)

06/28/2021

560 SEALED DOCUMENT Defendants' response to Plaintiffs' motion for leave to file a highly sensitive document by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 544 MOTION to Seal Plaintiffs' Reply In Support of Motion for Summary Judgment and Opposition to Defendants' Cross Motion for Summary Judgment and Supporting Documents, 543 SEALED MOTION for Leave to File a Highly Sensitive Document (Busen, Jesse) (Entered: 06/28/2021)

06/28/2021

561 RESPONSE, by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services, to 544 MOTION to Seal Plaintiffs' Reply In Support of Motion for Summary Judgment and Opposition to Defendants' Cross Motion for Summary Judgment and Supporting Documents. (Murphy, Lindsay) (Entered: 06/28/2021)

07/02/2021

562 SEALED MOTION for Leave to File a Highly Sensitive Document by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 7/23/2021, (Evans, Walter) (Entered: 07/02/2021)

07/02/2021

563 DECLARATION of W. Manning Evans in Support of Defendants' Summary Judgment Reply filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 514 MOTION to Seal Documents in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Cross-Motion for Summary Judgment (Attachments: # 1 Exhibit 54, # 2 Exhibit 55, # 3 Exhibit 56, # 4 Exhibit 57, # 5 Exhibit 58, # 6 Exhibit 59, # 7 Exhibit 60)(Evans, Walter) (Entered: 07/02/2021)

07/02/2021

564 MOTION to Seal Reply and Supporting Documents, filed by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 7/23/2021, (Evans, Walter) (Entered: 07/02/2021)

07/02/2021

565 SEALED DOCUMENT Declaration of W. Manning Evans in Support of Defendants' Motion to Seal Defendants' Summary Judgment Reply and Supporting Documents by Defendants Joseph R Biden, Matthew D Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, US Citizenship and Immigration Services re 564 MOTION to Seal Reply and Supporting Documents (Attachments: # 1 Exhibit 55, # 2 Exhibit 56)(Evans, Walter) (Entered: 07/02/2021)

07/02/2021

566 SEALED DOCUMENT Reply to Motion to Treat Dcouments as HSD by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 544 MOTION to Seal Plaintiffs' Reply In Support of Motion for Summary Judgment and Opposition to Defendants' Cross Motion for Summary Judgment and Supporting Documents, 543 SEALED MOTION for Leave to File a Highly Sensitive Document (Hyatt, Heath) (Entered: 07/02/2021)

07/02/2021

567 REPLY, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, TO RESPONSE to 544 MOTION to Seal Plaintiffs' Reply In Support of Motion for Summary Judgment and Opposition to Defendants' Cross Motion for Summary Judgment and Supporting Documents (Hyatt, Heath) (Entered: 07/02/2021)

07/02/2021

RECEIPT of HSD re 562 SEALED MOTION for Leave to File a Highly Sensitive Document. (MW) (Sealed motion and proposed HSD delivered to Judge's inbox in sealed envelope) (Entered: 07/06/2021)

07/08/2021

RECEIPT of HSD re 564 SEALED MOTION for Leave to File a Highly Sensitive Document. (SR)(Sealed reply delivered to the Judge's inbox in a sealed envelope) (Entered: 07/08/2021)

07/15/2021

568 Stipulated MOTION for Order Allowing Redacted Filings on Summary Judgment Briefing Designated as Highly Sensitive Documents Pending Resolution of the Motions to Seal, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. Noting Date 7/15/2021, (Hyatt, Heath) (Entered: 07/15/2021)

07/19/2021

569 RESPONSE, by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe, to 564 MOTION to Seal Reply and Supporting Documents. (Attachments: # 1 Proposed Order)(Hyatt, Heath) (Entered: 07/19/2021)

07/19/2021

570 SEALED DOCUMENT Opposition to Defendants' Motion to Treat Documents as HSD by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe re 564 MOTION to Seal Reply and Supporting Documents (Attachments: # 1 Proposed Order)(Hyatt, Heath) (Entered: 07/19/2021)

07/21/2021

571 Stipulated MOTION for Order that the Clerk Unseal Docket 550 and Order Thereon, filed by Plaintiffs Hanin Omar Bengezi, Mushtaq Abed Jihad, Sajeel Manzoor, Mehdi Ostadhassan, Abdiqafar Wagafe. Noting Date 7/21/2021, (Hyatt, Heath) (Entered: 07/21/2021)

07/22/2021

572 MINUTE ORDER (text only) authorized by Judge Richard A. Jones granting 571 Stipulated MOTION for Order that the Clerk Unseal Docket 550. The Clerk is directed to unseal Docket 550. (VE) (Entered: 07/22/2021)

07/22/2021

573 NOTICE of Supplemental Authority re 562 SEALED MOTION for Leave to File a Highly Sensitive Document, 513 SEALED MOTION for Leave to File a Highly Sensitive Document by Defendants Joseph R Biden, Matthew D Emrich, Daniel M Renaud, US Citizenship and Immigration Services (Evans, Walter) (Entered: 07/22/2021)

07/23/2021 574 SEALED DOCUMENT Reply to Plaintiffs opposition to motion to treat document as HSD by Defendants Joseph R Biden, Matthew D

Emrich, John Kelly, Daniel M Renaud, Lori Scialabba, Donald J Trump, US Citizenship and Immigration Services re 564 MOTION to Seal Reply and Supporting Documents, 562 SEALED MOTION for Leave to File a Highly Sensitive Document (Busen, Jesse) (Entered: 07/23/2021)

PACER Service Center Transaction Receipt

07/23/2021 08:29:14

PACER Login:

CRClearinghouse Client Code: Woo Kee

Description:

Docket Report

Search Criteria:

2:17-cv-00094RAJ

Billable Pages: 30

Cost:

3.00

Exempt flag: Not Exempt

Exempt reason: Not Exempt

 
 MUSLIM BAN UNLAWFULLY TARGETS U.S. RESIDENTS SEEKING CITIZENSHIP AND IMMIGRATION STATUS, CIVIL RIGHTS GROUPS SUE
For Immediate Release February 1st, 2017 Matt Adams, Northwest Immigrant Rights Project | 206-957-8611 | matt@nwirp.org Marcus Benigno, ACLU SoCal, 213-977-5252 | communications@aclusocal.org Trina Realmuto, National Immigration Project | 617-227-9727×8 | trina@nipnlg.org
SEATTLE – Today, civil and immigrant rights groups asked a federal court to lift the unconstitutional ban that blocks Muslim immigrants lawfully living in the United States from becoming U.S. citizens, permanent residents, and asylees, among other things. The class action lawsuit challenges provisions of President Donald Trump’s January 27, 2017 executive order suspending the issuance of visas and other immigration benefits to nationals of Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. Immigration attorneys have now learned from leaked documents that the order is being applied to immigrants already lawfully residing within the United States who have pending applications for asylum, lawful permanent residence and other immigration benefits.
The government has suspended action on all pending immigration applications for individuals from the seven countries identified in the executive order for 90 days.
In addition, the lawsuit alleges that the government’s “extreme vetting” of people applying for citizenship and permanent residency under the executive order and an existing program known as CARRP violates federal laws and due process. The vetting program is designed to delay and deny citizenship and permanent residency to Muslim immigrants and immigrants from Muslim majority countries, despite their eligibility under the law.
Tens of thousands of immigrants residing in the United States are now affected by these unlawful actions.
Plaintiffs Abdiqafar Wagafe and Mehdi Ostadhassan are practicing Muslims and long-time U.S. residents. Like many seeking naturalization, green cards, visas or asylum, they have been subjected to the unconstitutional executive order and an unlawful vetting program that bars them from obtaining the citizenship and immigration status they seek.
“This ban seeks to shut me out of the United States, simply because of my religion and my nationality, but my life and my future is here,” said Ostadhassan, an engineering professor at the University of North Dakota who has been living in the U.S. since 2009 and has an American wife and son. “This ban goes against everything I have known the United States to stand for. Welcoming immigrants is part of the American tradition. I have experienced this myself.”

Ostadhassan applied for his green card in 2014, and has been left waiting since.
“Applying the Executive Order to residents of the United States defies the plain language of the statute the President purports to rely on,” said Matt Adams, Legal Director for Northwest Immigrant Rights Project. “Moreover, any program targeting Muslims violates basic Constitutional protections.”
“By freezing Muslim immigrants out of the ability to become U.S. citizens and lawful permanent residents, the President’s unconstitutional ban now takes aim at the very system that has made the United States a pluralistic nation,” said Jennie Pasquarella, immigrants’ rights director for the ACLU of California and senior staff attorney at the ACLU of Southern California.
“The halt to the processing of applications has caused fear and anxiety to thousands of noncitizens who legally are entitled to benefits. This decision is irrational and illegal,” said Stacy Tolchin, an immigration attorney in Los Angeles who represents many Muslim clients.
“These xenophobic policies do not make us safer,” said Trina Realmuto, Litigation Director for the National Immigration Project of the National Lawyers Guild. “Instead, they undermine American values.”
The lawsuit was brought forth by attorneys from Northwest Immigrant Rights Project, the ACLU Foundation of Southern California, National Immigration Project of the National Lawyers Guild, Law Offices of Stacy Tolchin, the American Civil Liberties Union Foundation, the ACLU of Washington, and Perkins Coie LLP.
The complaint can be read here.